DEFENDING THE INDEFENSIBLE: GRACIA'S MOTION TO DISMISS; WILL CAMERON COUNTY CONTINUE TO PROLONG THIS FARCE?

 By Juan Montoya

In a response to Sgt. Rodrigo Alamanza's First Amendment retaliation lawsuit in federal court, Cameron County Sheriff Department Chief Deputy Robert Gracia's defense attorneys filed a response that is revealing – if not inept –  in their motion for a summary judgment to dismiss.

Gracia claimed that the lawsuit must be dismissed because Almanza failed to state a claim against (him) in his individual capacity based on qualified immunity as a county employee.

In response, Almanza – through his attorney David Willis – still maintains that  Gracia cannot invoke the defense because he was not a “government official” at the time made relevant by Almanza’s claims. Almanza filed the response Wednesday, July 21.

Almanza alleges that Gracia’s retaliatory actions occurred between January 1, 2021 and February 18, 2021 and Sheriff Eric Garza did not “select” Gracia to be Chief Deputy until March 22, 2021. Moreover, Gracia was not an employee of Cameron County, Texas until March 22. 

Gracia, then. was not a “government official” at the time Almanza’s claims. How then, can he claim qualified immunity as a county employee in  his motion to dismiss?

The proof, they say, in in the pudding. 

In his response,  Almanza filed a letter from Garza to Gracia dated march 22, where he informs his underling that he has been "selected" for the position of chief deputy and orders him t report o work the same day. 

Apparently, Gracia's lawyers were either unaware of the existence of the document or are milking Gracia for good money and filing this ludicrous motion to dismiss.

Haven't had enough proof?

How about the document from the Cameron County Auditor's Office Payroll Department that finally gets Gracia on the county payroll?

That came even later, and was received by the Cameron County Human Resources Dept. on March 26. - his "first day on the job" - where it shows that Gracia will be paid $94,528 – $86,028 in salary and an additional $8,500 for car allowance.

Not bad for a first-time employee who did not meet the requirements to qualify for the job description when he "assumed" the position on January 1, 2021 even though he was not a certified peace officer as required by the Texas Commission On Law Enforcement.

Gracia further challenges the lawsuit by contending that Almanza failed to “allege the actions he suffered were implemented or executed by a... decision officially adopted or promulgated by those whose acts may fairly represent official policy.”

He further claims that “a Texas county sheriff’s office may be deemed an arm of the State under the Eleventh Amendment and employees of the sheriff’s office in their official capacity enjoy the same protection.”

Yet, established Fifth Circuit precedent that states that “Texas counties are not mere arms or agents of the state; they are independent units of local government to which the immunity granted by the Eleventh Amendment does not apply," Almanza responds. His suit against Gracia is his official capacity "is not a suit against the State of Texas and therefore (he) is not entitled to the protections granted by the Eleventh Amendment. Cameron County is not an organ of the State of Texas. Cameron County, Texas is a “person” for the purposes of 42 U.S.C. §1983 and is liable for damages."

Gracia's lawyers dig their hole even deeper.

They claim that plaintiff must demonstrate the decision-maker knew of the protected actions and that the protected activity (supporting Omar Lucio, Garza's opponent in the Democratic Party primary) was a substantial or motivating factor for the decision.”

Almanza's response to this motion to dismiss based on this contention states that "Only three (3) days passed from the time Sheriff Garza and Chief Deputy Gracia assumed office on January 1, 2021 and Sgt. Almanza’s transfer on January 4, 2021. 

When Sgt. Almanza’s factual allegations are assumed to be true, they show a right to relief that is more than mere speculation and Sgt. Almanza’s factual allegations show a right to relief that is plausible." 

Gracia also alleges that Almanza had failed to identify any policy of Cameron County that has caused his constitutional deprivation and therefore the lawsuit should be dismissed.

In response, Almanza states that Gacia made a decision to retaliate against him in concert with
Garza, a final policymaker, and thus put the force of municipal policy behind his chief deputy's illegal conduct.

Garza’s ratification of Gracia’s decision to retaliate "puts the force of municipal policy behind Chief Deputy Gracia’s illegal conduct., "Almanza's response reads. "Because Sheriff Garza is a final policymaker, Gracia and Garza’s policy to retaliate against Almanza, by laterally transferring him from his prestigious position to a less desirable one and stripping him of all supervisory duties, responsibilities, and benefits because of his political speech is a violation of the First Amendment."

How long can the county commission continue to hemorrhage public resources defending Gracia's specious claims? Or will it commissioners come to their senses and cut the county's losses and put an end to this charade?