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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

Stephen Tapp

v.

CASE NUMBER: 4:11cv2971 District Judge: Lee H Rosenthal

University of Texas Health Sciences Centerat Houston-School of Dentistry et al

Court Reporter(s): B Slavin

NOTICE OF THE FILING OF AN APPEAL

In connection with this appeal, instrument # 34, filed by Stephen Tapp, a copy of the notice ofappeal, the order being appealed and the docket sheet are attached.

In regard to this appeal:

The Court of Appeal $455.00 filing and docketing fees have been paid or a motionfor in forma pauperis has been granted.

DKT-13 transcript ordering instructions are attached.

The Clerk of Court will submit to the Fifth Circuit Court of Appeals a Certificate ofNon-Compliance if the appellant fails to return the transcript order form.

David Bradley, Clerk

Case 4:11-cv-02971 Document 35 Filed in TXSD on 09/05/12 Page 1 of 3


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HOUSTON DIVISION

Stephen Tapp

v.




TRANSCRIPT ORDER INSTRUCTIONS TO APPELLANT

Pursuant to FRAP 10(a)(1), a transcript order form must be filed within 14 days of thefiling of the notice of appeal.

Please review the instructions on the attached DKT 13 Transcript Order Form. Prepare aseparate DKT 13 for each reporter from whom transcripts are ordered. All transcripts fromtape recorded proceedings may be ordered on one form. Specify exact dates of proceedingsto be transcribed on the appropriate reporter or tape order.

If transcript is unnecessary or already on file in the Clerk's office, prepare a DKT 13 andmark the appropriate box to indicate this information.

The appellant must contact the court reporter within 14 days of the filing of the notice ofappeal to arrange for the preparation of transcripts.

Court Reporting ServicesP.O. Box 61010

Houston, TX 77208

Electronic Court Reporting 713-250-5404

Court Reporters 713-250-5499

US District Court

600 E Harrison StreetBrownsville, TX 78520-7114

956-548-2500

US District Court

1133 North Shoreline Blvd, Room 208Corpus Christi, TX 78401

361-888-3142

US District Court

PO Box 2300Galveston, TX 77553

409-766-3530

US District Court

1300 Victoria Street, Suite 1131Laredo, TX 78040

956-723-3542

US District Court

1701 W. Business Hwy 83, Suite 1011McAllen, TX 78501

956-618-8065

US District Court

PO Box 1638Victoria, TX 78476

361-788-5000



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HOUSTON DIVISION

Stephen Tapp

v.




NOTICE OF THE FILING OF AN APPEAL

In connection with this appeal, instrument # 34, filed by Stephen Tapp, a copy of the noticeof appeal, the order being appealed and the docket sheet are attached.


The Court of Appeal $455.00 filing and docketing fees have been paid ora motion for in forma pauperis has been granted.


The Clerk of Court will submit to the Fifth Circuit Court of Appeals aCertificate of Non-Compliance if the appellant fails to return the transcriptorder form.




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IN THE UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

STEPHEN TAPP, Plaintiff,

vs. Civil Action No. 4:11-CV-02971

DR. JOHN A. VALENZA, D.D.S., DEAN OF THE UNIVERSITY OF TEXAS HEALTH SCIENCES CENTER AT HOUSTON- SCHOOL OF DENTISTRY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY

Defendant.

PLAINTIFFS RESPONSE TO DEFENDANTS MOTION TO DISMISSPLAINTIFFS SECOND AMENDED COMPLAINT

TO THE HONORABLE JUDGE OF SAID COURT:

Notice is hereby given that Plaintiff Stephen Tapp in the above-styled andnumbered cause, hereby appeals to the United States Court of Appeals for the FifthCircuit pursuant to 28 U.S.C. 1291 from the Opinions and Orders entered onDecember 19, 2011 (Dkt. 24) and those entered on August 6, 2012 (Dkts. 32, 33).

Respectfully submitted,

Cirkiel & Associates, P.C.

Martin J. Cirkiel/s/ Mr. Martin J. Cirkiel, Esq.1901 E. Palm Valley Blvd.Round Rock, Texas 78664(512) 244-6658 [Telephone](512) 244-6014 [Facsimile][email protected] [Email]Texas Bar No. 00783829Souther District Fed. ID# 21488

ATTORNEY FOR PETITIONER

Notice Of Appeal 1

Case 4:11-cv-02971 Document 35-1 Filed in TXSD on 09/05/12 Page 1 of 2


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CERTIFICATE OF SERVICE

This is to certify that on this the 31 day of August I electronically filed thest

foregoing document with the Clerk of the Court for the U.S. District Court, SouthernDistrict of Texas, using the electronic filing system of the Court. The electronic casefiling system will send a Notice of Electronic Filing to the following attorney ofrecord who has consented in writing to accept this Notice as service of this document

by electronic means:

Honorable Darren G. GibsonAttorney-In-ChargeTexas Bar No. 24068846Southern District No. 1041236Assistant Texas Attorney GeneralPost Office Box 12548Capitol Station, AustinTexas 78711-2548(512) 463-2120 [Telephone](512) 320- 0667 [Facsimile][email protected] [Email]

/s/ Martin J. Cirkiel

Notice Of Appeal 2



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HOUSTON DIVISION

STEPHEN TAPP,

Plaintiff,

v. CIVIL ACTION NO. H-11-2971

DR. JOHN A. VALENZA, DEAN OF

THE UNIVERSITY OF TEXAS

HEALTH SCIENCE CENTER AT

HOUSTON SCHOOL OF DENTISTRY,

IN HIS OFFICIAL CAPACITY AND

INDIVIDUALLY

Defendant.

MEMORANDUM AND OPINION

I. Background and Claims

This lawsuit arises from the dismissal of a student, Stephen Tapp, from the University of

Texas Health Sciences Center at Houston (UTHealth)School of Dentistry. After UTHealth

dismissed Tapp from the dental school on the basis of academic deficiencies, he sued UTHealth,

alleging disability discrimination. (Docket Entry No. 1). Tapp amended his complaint to add two

defendants, John A. Valenza, D.D.S., Dean of the School of Dentistry, and Sergeant J. Taylor of the

University of Texas System Police Department. Against Valenza and Taylor, Tapp added claims

under 42 U.S.C. 1983 for false arrest and excessive force. (Docket Entry No. 5). UTHealth

moved to dismiss the disability-discrimination claims on the basis of limitations, (Docket Entry No.

6), and Tapp responded by moving for leave to file a second amended complaint, (Docket Entry No.

8). In December 2011, this court granted UTHealths motion to dismiss the disability-discrimination

claims, with prejudice, concluding that those claims were time-barred and that amendment would

be futile. The court denied Tapps motion for leave to file the proposed second amended complaint



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1 Tapp did not allege a 1983 claim against Dr. Valenza for excessive force. (See Docket Entry No. 26, 49

(Defendant, acting under color of law, had Plaintiff arrested and jailed without cause, thereby depriving Plaintiff of his

liberty without due process, thereby violating the Fourteenth Amendment to the Constitution of the United States, for

which Defendant is liable pursuant to 42 U.S.C. 1983.)).

2Tapp has alleged two separate assault claims: one for assault by infliction of bodily injury, (Docket Entry No.

26, 51), and one for assault by offensive physical contact, (id., 53). This opinion treats the claims together because

the analysis is the same for each.

2

that he previously had submitted. The court did allow him to file a new second amended complaint

that did not reassert the dismissed claims. (Docket Entry No. 24).

Tapp timely filed a second amended complaint. (Docket Entry No. 26). This complaint

named Dr. Valenza, in both his official and individual capacities, as the only defendant. Tapp has

asserted four causes of action against Dr. Valenza. One is a 1983 claim for false arrest.1 The other

three are state-law claims for assault,2 false imprisonment, and defamation. Neither the federal nor

state-law causes of action arise from the schools August 2009 decision to expel Tapp as a student.

Instead, the only basis for the causes of action is a December 2010 occurrence. The facts alleged

in the complaint and those properly reviewed in deciding the motion to dismiss are briefly described

below.

On July 23, 2009, Tappthen a student at the UTHealths School of Dentistryreceived

a letter from Associate Dean Leslie Roeder recommending that he be dismissed from the school.

(Docket Entry No. 26, 26). On August 4, Tapp appealed the decision to an ad hoc appeals

committee, arguing that his mental-health condition justified his remaining at the school. (Id.,

28, 31). On August 12, 2009, Tapp informed Dr. Roeder that he would be meeting with an attorney

about possible legal action against UTHealth for disability discrimination. (Id., 40). There is no

allegation that Dr. Roeder relayed this information to Dr. Valenza. On August 13, 2009, Dr.

Valenza sent Tapp a letter upholding his dismissal from the dental school. (Id., 41). Among other



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3Ordinarily, a district court may not look beyond the pleadings when deciding a motion to dismiss. See, e.g.,

5B CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE 1356 (3d ed. 2004). The Fifth Circuit

recognizes one limited exception to this rule. When documents are referred to in the plaintiffs complaint and are

central to the plaintiffs claim, a district court may consider those documents when they are attached to the motion to

dismiss. Scanlan v. Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003). Tapp refers to the letter in his complaint and

it is appropriately considered in deciding this motion to dismiss, without the need to convert the motion to one for

summary judgment. The threshold inquiry is whether Tapp has adequately stated a claim that can overcome qualified

immunity.

3

things, the letter stated that Tapp was to cease all activity in the building upon receipt of this letter

and surrender [his] identification badge. (Docket Entry No. 27, Ex. 1).3 On September 11, 2009,

Tapp filed an internal complaint with the school alleging disability discrimination, but the complaint

was never investigated by the universitys administration. (Docket Entry No. 26, 42).

Over a year later, on December 21, 2010, Tapp entered the School of Dentistry to meet with

Dr. Jerry Bouquot, one of his former professors, in Dr. Bouquots office. Tapp had scheduled this

meeting through Dr. Bouquots secretary. (Id., 43). Tapp had not yet filed a lawsuit against the

school or any members of its faculty or administration. Except for the internal complaint, there is

no allegation of any further legal or other action Tapp had taken against the school from the date of

his expulsion to December 21, 2010. According to the second amended complaint, [w]hile

peacefully meeting in his former professors office, and without just cause, two campus officers

interrupted the meeting and arrested Tapp for trespassing. (Id., 44). During the arrest, the officers

allegedly caus[ed] Tapp physical pain when handcuffing him. (Id.). Tapp was charged with

trespassing and taken to Harris County Jail. He does not allege how long he remained in the jail.

The charges were dismissed. (Id.). Tapp alleges that Valenza falsely told the officers that he had

sent Tapp a letter warning him that if he came on campus, he would be arrested for trespassing.

(Id., 45).

II. The Legal Standard for a Motion to Dismiss



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A complaint may be dismissed when the plaintiff fails to state a claim upon which relief can

be granted. FED.R.CIV. P. 12(b)(6). InBell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007),

andAshcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 194950 (2009), the Supreme Court confirmed

that Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires a short and plain

statement of the claim showing that the pleader is entitled to relief. FED. R . CIV. P. 8(a)(2). A

complaint must contain enough facts to state a claim to relief that is plausible on its face to

withstand a Rule 12(b)(6) motion. Iqbal, 129 S. Ct. at 1949. A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged. Id. Facial plausibility does not require detailed

factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation. Id. (quoting Twombly, 550 U.S. at 555). Nor is facial plausibility akin to a

probability requirement; rather, it asks for more than a sheer possibility that a defendant has

acted unlawfully. Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 556). Facial plausibility

requires the plaintiff [to] plead[] factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged. Iqbal, 129 S. Ct. at 1949. Where

a complaint pleads facts that are merely consistent with a defendants liability, it stops short of

the line between possibility and plausibility of entitlement to relief. Id. (quoting Twombly, 550

U.S. at 557).

When a plaintiffs complaint fails to state a claim, a district court generally should provide

the plaintiff at least one chance to amend the complaint under Rule 15(a) before dismissing the

action with prejudice. See Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co. , 313 F.3d

305, 329 (5th Cir. 2002) (district courts often afford plaintiffs at least one opportunity to cure

pleading deficiencies before dismissing a case);see also United States ex rel. Adrian v. Regents



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of the Univ. of Cal., 363 F.3d 398, 403 (5th Cir. 2004) (Leave to amend should be freely given, and

outright refusal to grant leave to amend without a justification . . . is considered an abuse of

discretion. (internal citation omitted)). Denial of leave to amend may be warranted for undue

delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies,

undue prejudice to the opposing party, or futility of a proposed amendment. United States ex rel.

Steury v. Cardinal Health, Inc., 625 F.3d 262, 270 (5th Cir. 2010). A district court has broad

discretion to dismiss a complaint without leave to amend where the plaintiff has previously been

granted leave to amend [to cure pleading deficiencies] and has subsequently failed to add the

requisite particularity to its claims[.] Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007

(9th Cir. 2009); see also Carroll v. Fort James Corp., 470 F.3d 1171, 1175 (5th Cir. 2006)

(affirming a district courts dismissal for failure to state a claim without leave to amend after the

court instructed [the plaintiffs] to plead their fraud claim with greater particularity, but the amended

complaint was still woefully inadequate). And when the issue is not pleading sufficiency but

whether the law recognizes a cause of action on the facts alleged, if the court concludes that the law

affords no relief and that repleading would be futile, no opportunity to amend is required.

III. The Motion to Dismiss the State-Law Claims

Dr. Valenza has moved to dismiss all the claims against him. As to the state-law claims

against him in his official capacity, Dr. Valenza also asserts governmental immunity not waived by

the Texas Tort Claims Act, TEX. CIV. PRAC. & REM. CODE 101.021. (Docket Entry No. 27). In

response, Tapp stated that he agrees that he has no claim against Valenza in his official capacity,

so he proceeds against Valenza in his individual capacity. (Docket Entry No. 30, 24 n.1). The

motion to dismiss the claims against Dr. Valenza in his official capacity is granted, with prejudice

and without leave to amend.



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Tapp continues to assert the state-law claims against Dr. Valenza in his individual capacity.

Tapp conceded, however, that that he has no claims pursuant to the Texas Tort Claims Act[.] (Id.).

Although he stated that he believes he continues to have relevant common law and state law claims

against Valenza, in his individual capacity, (id.), he does not plead them or identify them in his

response. Moreover, as Dr. Valenza correctly points out, all tort suits are suits under the Texas

Tort Claims Act. Brown v. Ke-Ping Xie, 260 S.W.3d 117, 122 n.1 (Tex. App.Houston [1st Dist.]

2008, no pet.); accord Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008)

([A]ll tort theories alleged against a governmental unit, whether it is sued alone or together with

its employees, are assumed to be under [the Tort Claims Act] for purposes of section 101.106.).

Tapp cannot avoid the TTCA by alleging that he is suing Dr. Valenza in his individual capacity.

The TTCA, in relevant part, states:

If a suit is filed against an employee of a governmental unit based on

conduct within the general scope of that employees employment and

if it could have been brought under this chapter against the

governmental unit, the suit is considered to be against the employee

in the employees official capacity only.

TEX. CIV. PRAC. & REM. CODE 101.106(f). An official acts within the scope of her authority if

she is discharging the duties generally assigned to her. Anderson v. Bessman, 365 S.W.3d 119, 125

(Tex. App.Houston [1st Dist.] 2011, no pet.) (quoting City of Lancaster v. Chambers, 883 S.W.2d

650, 658 (Tex. 1994)). Tapp alleged that Valenza was responsible for the[] management and

control of all school business within its jurisdiction[.] (Docket Entry No. 26, 9). A university

dean who acts to restrict a persons access to the campus and has that person arrested for remaining

on campus is acting within the scope of his employment. See Justice For All v. Faulkner, 410 F.3d

760, 765 (5th Cir. 2005) (Public universities can and typically do restrict access to campus

facilities.). As Dr. Valenza points out, [c]ommunicating with campus police regarding campus



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safety and directing those police officers to arrest trespassers are actions not of a private individual,

but are only actions that can be take by a university official. (Docket Entry No. 27, at 13). This

is true even if Dr. Valenza brought personal motives to bear in taking these actions. See

Anderson, 365 S.W.3d at 125126 (So long as it falls within the duties assigned, an employees

conduct is within the scope of employment, even if done in part to serve the purposes of the

employee or a third person.).

Although Tapp asserts (but does not plead) unidentified state-law tort claims against Dr.

Valenza in his individual capacity under Texas law, those claims are treated directed to his official

capacity. Cf. George v. Harris Cnty., Tex., Civ. A. No. H-10-3235, 2012 WL 2744332, at *14 (S.D.

Tex. July 9, 2012) (reconstruing claims brought against government officials in individual capacities

as against those officials in their official capacities, pursuant to the TTCA). Dr. Valenza is entitled

to governmental immunity on the state-law claims asserted against him in his individual as well as

his official capacity. See id. at *13 (Governmental immunity also extends to state employees sued

in their official capacities. (citingAlcala v. Tex. Webb. Cnty., 620 F. Supp. 2d 795, 801 (S.D. Tex.

2009));see also TEX. CIV. PRAC. & REM. CODE 101.057(2) (no waiver of governmental immunity

for claims arising out of assault, battery, false imprisonment, or any other intentional tort). These

claims are dismissed, with prejudice and without leave to amend. See also Steury, 625 F.3d at 271

(holding that a district court has discretion to deny leave to amend when the pleading defects are

incurable).

IV. The Motion to Dismiss the 1983 Claim

The remaining question is whether Tapps 1983 claim against Dr. Valenza in his individual

capacity should be dismissed based on qualified immunity and, if so, whether that dismissal should

be with or without prejudice.



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A. The Legal Standard for Qualified Immunity

42 U.S.C. 1983 provides a cause of action against an individual who, acting under color

of state law, has deprived a person of a federally protected statutory or constitutional right. But

[t]he doctrine of qualified immunity protects government officials from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional rights of which

a reasonable person would have known. Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal

quotation marks omitted). As the en banc Fifth Circuit recently held:

When considering a defendants entitlement to qualified immunity,

we must ask whether the law so clearly and unambiguously

prohibited his conduct that every reasonable official wouldunderstand that what he is doing violates [the law]. To answer that

question in the affirmative, we must be able to point to controlling

authorityor a robust consensus of persuasive authoritythat

defines the contours of the right in question with a high degree of

particularity.

Morgan v. Swanson, 659 F.3d 359, 37172 (5th Cir. 2011) (en banc) (quotingAshcroft v. al-Kidd,

131 S. Ct. 2074, 2083, 2084 (2011)) (internal footnotes omitted; alterations in original). Qualified

immunity balances two important intereststhe need to hold public officials accountable when they

exercise power irresponsibly and the need to shield officials from harassment, distraction, and

liability when they perform their duties reasonably. Id. The doctrine of qualified immunity gives

government officials breathing room to make reasonable but mistaken judgments, and protects all

but the plainly incompetent or those who knowingly violate the law. Messerschmidt v. Millender,

132 S. Ct. 1235, 1244 (2012) (internal quotation marks omitted).

A public official is entitled to qualified immunity unless the plaintiff demonstrates that (1)

the defendant violated the plaintiffs constitutional rights and (2) the defendants actions were

objectively unreasonable in light of clearly established law at the time of the violation. Porter v.



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Epps, 659 F.3d 440, 445 (5th Cir. 2011). District courts may exercise their sound discretion in

deciding which of the two prongs of the qualified immunity analysis should be addressed first in

light of the circumstances in the particular case at hand. Pearson, 555 U.S. at 236.

B. Analysis

According to Tapp, [t]he police officers had been instructed by Defendant Valenza to arrest

Tapp for criminal trespass. (Docket Entry No. 26, 45). [T]he offense of criminal trespass

consists of the following elements: (1) a person (2) without effective consent (3) enters or remains

on the property or in a building of another (4) knowingly or intentionally or recklessly (5) when he

had notice that entry was forbidden or received notice to depart but failed to do so. Texas Dept

of Pub. Safety v. Axt, 292 S.W.3d 736, 73940 (Tex. App.Fort Worth 2009, no pet.) (citingDay

v. State, 532 S.W.2d 302, 306 n.2 (Tex. Crim. App. 1976), disapproved of on other grounds by Hall

v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007));see also TEX. PENAL CODE 30.05. In order to

establish a Fourth Amendment violation for false arrest, Tapp must show that Dr. Valenza lacked

an objectively reasonable basis to order the officers to arrest him for trespassing. The constitutional

claim of false arrest requires a showing of no probable cause. Club Retro, L.L.C. v. Hilton, 568

F.3d 181, 204 (5th Cir. 2009). Probable cause is determined from an objective standard, which

means that we will find that probable cause existed if the officer was aware of facts justifying a

reasonable belief that an offense was being committed, whether or not the officer charged the

arrestee with that specific offense. Id. (citingDevenpeck v. Alford, 543 U.S. 146, 15354 (2004));

see also United States v. Ochoa, 667 F.3d 643, 649 (5th Cir. 2012) (Probable cause for a

warrantless arrest exists when the totality of the facts and circumstances within a police officers

knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect

had committed or was committing an offense. (internal quotation marks omitted)). Under Texas



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law, [a] finding of probable cause requires more than bare suspicion but less than would justify

conviction. State v. Mosely, 348 S.W.3d 435, 441 (Tex. App.Austin 2011, pet. refd) (citing

Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009)); accord United States v. Marioni-

Melendez, 460 F. Appx 336, 339 (5th Cir. 2012) (per curiam) (citing United States v. Watson, 273

F.3d 599, 602 (5th Cir. 2011)).

Tapp does not dispute that, in August 2009, he received a letter from Dr. Valenza stating that

he had been expelled and was to cease all activity in the building upon receipt of this letter and

surrender [his] identification badge. (Docket Entry No. 27, Ex. 1). According to Tapp, this

referred only to ceasing activity related to receiving his dental education; it does not refer to other

activity, such as having a meeting with a former professor for professional advice. (See Docket

Entry No. 30, 27, 30).

The issue, however, is not how Tapp subjectively interpreted the letter. The issue is whether

it was objectively reasonable for Dr. Valenza to interpret the August 2009 letter as providing notice

to Tapp that he was forbidden to enter the dental school after receiving the letter. Probable cause

is determined from the standpoint of the arresting officeror, in this case, Valenza, who is alleged

to be the official instructing officers to make the arrest. Cf. Mesa v. Prejean, 543 F.3d 264, 274 (5th

Cir. 2008) (discussing how a supervisory official can be held liable under 1983 when the plaintiff

alleges the supervisory officials overt personal participation in the violation of his own rights,

such as by alleging that the supervisory official gave any command, signal, or other form of

direction to the officers that prompted [the officers] to arrest and subdue the plaintiff (internal



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4If the campus officers arrested through their own volition, as opposed to carry[ing] out the request of Dr.

Valenza, then Tapp cannot proceed with his false-arrest claim against Dr. Valenza. Ewans v. Wells Fargo Bank, N.A.,

389 F. Appx 383, 389 (5th Cir. 2010) (per curiam) (internal quotation marks omitted); see also Halbert v. City of

Sherman, Tex., 33 F.3d 526, 52829 (5th Cir. 1994) (holding that a private citizen cannot be held liable for false arrest

under Texas law based on a tip to officers when the officers did not rely on this information in determining whether

to arrest the plaintiff but, instead, arrested the plaintiff on their own volition).

11

quotation marks omitted)).4 If the facts Tapp alleged show that, as a matter of law, it was

objectively reasonable for Dr. Valenza to believe that Tapp was on notice that he was prohibited

from entering the dental school based on the August 2009 letter, then Dr. Valenza is entitled to

dismissal based on qualified immunity.

The letter Tapp received when he was dismissed from the school in August 2009 instructed

him that he was to cease all activity in the building upon receipt of this letter and turn in his

identification badge. (Docket Entry No. 27, Ex. 1). The letter did not simply tell Tapp to stop

activities related to his prior status as a student, as Tapp argues. The letter told him to cease all

activity in the building and to turn in his identification. It was objectively reasonable for Dr.

Valenza to read the letter as providing notice to Tapp that, as an expelled student who had been

instructed to cease all activity in the building and relinquish his identification badge, he was

forbidden to enter the building. Tapp cannot demonstrate that every reasonable dean in Dr.

Valenzas position would conclude that directing police to arrest Tapp for trespass for reentering

the dental school under these circumstances was unlawful. See Morgan, 659 F.3d at 37172.

According to Tapps response, Dr. Valenza is not entitled to qualified immunity because

there was no emergency situation, (Docket Entry No. 30, 29); Tapp did not trespass because he

did not clearly know that he was banned from entering the dental school, (id., 30); the officers did

not allow Tapp to leave first before arresting him, (id.); and Valenzas arrest order was based upon

personal animus and a retaliatory intent, (id., 31). As to the first argument, there is no



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requirement that exigent or emergency circumstances exist for an officer to make a warrantless

arrest for criminal trespass or other criminal offense; rather, the requirement is that the officer have

probable cause to believe that the individual had committed or was committing a criminal offense.

See Ochoa, 667 F.3d at 649; Club Retro, 568 F.3d at 204. Second, as discussed above, the issue is

not what Tapp did or did not clearly know; the issue is what was objectively reasonable from the

viewpoint of Dr. Valenza in light of the letter. Third, there is no requirement that officers first give

a person they objectively believe to be criminally trespassing a chance to leave the location before

arresting him for criminal trespass.

Tapps final argument is that Dr. Valenza acted based on personal animus and retaliatory

intent in ordering him arrested for trespass. (Docket Entry No. 30, 31). According to Tapp, Dr.

Valenza was angry at him for having met with an attorney and for filing a complaint with the school

compliance officer. (Id.). Both these events occurred over a year earlier. But if Dr. Valenza had

an objectively reasonable basis to believe that Tapp was trespassing by his presence in the building

based on what was stated in the August 2009 letter, he is entitled to qualified immunity even if he

had other reasons for personal animus toward Tapp. [S]ubjective intent, motive, or even outright

animus are irrelevant in a determination of qualified immunity based on arguable probable cause to

arrest, just as an officers good intent is irrelevant when he contravenes settled law. Lockett v. New

Orleans City, 607 F.3d 992, 998 (5th Cir. 2010) (internal quotation marks omitted); see also Swindle

v. Livingston Parish School Bd., 655 F.3d 386, 401 (5th Cir. 2011) ([W]e perform an objective

analysis of the reasonableness of the officials conduct in light of the circumstances and are

forbidden from considering the officials subjective state of mind. (internal quotation marks

omitted)). And Tapp does not allege such personal animus by Dr. Valenza in his second amended



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complaint. The only allegation of personal animus is in reference to the refusal of UTHealth

(working under Defendant Valenza) to assist Tapp in expunging his trespass-arrest records.

(Docket Entry No. 26, 47).

Tapp argues that he should be permitted discovery into Dr. Valenzas state of mind before

a decision is made on qualified immunity. One of the reasons for qualified immunity is to protect

a defendant from the burdens of discovery when the plaintiff has not filed an adequate claim.

Winstead v. Box, 419 F. Appx 468, 469 (5th Cir. 2011) (per curiam) (citing Wicks v. Miss. State

Emp. Servs., 41 F.3d 991, 994 (5th Cir. 1995)). The Fifth Circuit has held that this court may not

allow discovery to proceed until it firstfinds that the plaintiffs pleadings assert facts which, if true,

would overcome the defense of qualified immunity. Id. (emphasis in original; internal quotation

marks omitted) (citing Wicks, 41 F.3d at 994). Here, Tapps pleadings do not pass this test, for the

reasons explained in detail above. He relies on allegations of Dr. Valenzas subjective bad motive

but pleads facts that, if proven, would show that Dr. Valenza was objectively reasonable in his

actions. Had Tapps complaint allege[d] facts to overcome the defense of qualified immunity, this

court could allow the discovery necessary to clarify those facts upon which the immunity defense

turns. Id. (quoting Wicks, 41 F.3d at 995). Because Tapps complaint fails to do so, instead

alleging facts that support qualified immunity, this court may not order a period of discovery, as

Tapp requests.

A plaintiff is often given an opportunity to amend his complaint, in order to state his best

case. Lozano v. Ocwen Fed. Bank, FSB, 489 F.3d 636, 643 (5th Cir. 2007) (internal quotation

marks omitted). Tapp has already had that opportunityhe has amended twice, without success.

And the record discloses facts that support qualified immunity, making amendment futile. This case



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14

is dismissed, with prejudice.

IV. Conclusion

Dr. Valenzas motion to dismiss, (Docket Entry No. 27), is granted, with prejudice and

without leave to amend. Final judgment is entered by separate order.

SIGNED on August 6, 2012, at Houston, Texas.

______________________________________

Lee H. Rosenthal

United States District Judge



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HOUSTON DIVISION

STEPHEN TAPP,

Plaintiff,

v. CIVIL ACTION NO. H-11-2971

DR. JOHN A. VALENZA, DEAN OF

THE UNIVERSITY OF TEXAS

HEALTH SCIENCE CENTER AT

HOUSTON SCHOOL OF DENTISTRY,

IN HIS OFFICIAL CAPACITY AND

INDIVIDUALLY

Defendant.

FINAL JUDGMENT

In accordance with the courts Memorandum and Opinion of todays date, this action is

dismissed with prejudice. Each party bears its own costs and fees.

This is a final judgment.

SIGNED on August 6, 2012, at Houston, Texas.

______________________________________

Lee H. Rosenthal

United States District Judge



21/25



HOUSTON DIVISION

Stephen Tapp

v.




NOTICE OF THE FI LING OF AN APPEAL

In connection with this appeal, instrument #34, filed by Stephen Tapp, a copy of the notice ofappeal, the order being appealed and the docket sheet are attached.


The Court of Appeal $455.00 filing and docketing fees have been paid or a motionfor in forma pauperis has been granted.


The Clerk of Court will submit to the Fifth Circuit Court of Appeals a Certificate ofNon-Compliance if the appellant fails to return the transcript order form.




22/25



HOUSTON DIVISION

Stephen Tapp

v.




TRANSCRIPT ORDER INSTRUCTIONS TO APPEL LANT

Pursuant to FRAP 10(a)(1), a transcript order form must be filed within 14 days of thefiling of the notice of appeal.

Please review the instructions on the attached DKT 13 Transcript Order Form. Prepare aseparate DKT 13 for each reporter from whom transcripts are ordered. All transcripts fromtape recorded proceedings may be ordered on one form. Specify exact dates of proceedingsto be transcribed on the appropriate reporter or tape order.

If transcript is unnecessary or already on file in the Clerk's office, prepare a DKT 13 andmark the appropriate box to indicate this information.

The appellant must contact the court reporter within 14 days of the filing of the notice ofappeal to arrange for the preparation of transcripts.

Court Reporting ServicesP.O. Box 61010

Houston, TX 77208

Electronic Court Reporting 713-250-5404Court Reporters 713-250-5499

US District Court600 E Harrison StreetBrownsville, TX 78520-7114956-548-2500

US District Court1133 North Shoreline Blvd, Room 208Corpus Christi, TX 78401361-888-3142

US District CourtPO Box 2300Galveston, TX 77553409-766-3530

US District Court1300 Victoria Street, Suite 1131Laredo, TX 78040956-723-3542

US District Court1701 W. Business Hwy 83, Suite 1011McAllen, TX 78501956-618-8065

US District CourtPO Box 1638Victoria, TX 78476361-788-5000



23/25



HOUSTON DIVISION

Stephen Tapp

v.




NOTICE OF THE FI LING OF AN APPEAL

In connection with this appeal, instrument #34, filed by Stephen Tapp, a copy of the noticeof appeal, the order being appealed and the docket sheet are attached.


The Court of Appeal $455.00 filing and docketing fees have been paid ora motion for in forma pauperis has been granted.


The Clerk of Court will submit to the Fifth Circuit Court of Appeals aCertificate of Non-Compliance if the appellant fails to return the transcriptorder form.




24/25

INSTRUCTIONS TO COURT REPORTER

This is an electronic version of the original 8-page, multipart cabon-less form. The court reporter is responsible for ensuringthat the correct number of copies are made to meet the distribution requirements.

To assure the Court of Appeals that the ordering party has fulfilled his or her obligations under FRAP 10(b), for ordering and making adequatefinancial arrangements with the court reporter, you are requested to complete Part II of Copy 3 and forward to the Court of Appeals within seven(7) days after receipt.

It is the appellant's responsibility to contact you and make financial arrangements before filling out the form. However, if financial arrangementshave not been made within ten (10) days after receipt of transcript order, complete Part II of Copy 3 and forward to the Court of Appeals. Iffinancial negotiations with the ordering party are still in progress when the 10 days expire, and the chances for completion within a short periodof time appears to be good, contact a Deputy Clerk for additional time to complete this form.

(504) 310-7700

If financial arrangements are made after you send the acknowledgement form to the Court of Appeals, immediately notify the Court in writing ofthe fact, furnishing the estimated delivery date.

THE JUDICIAL COUNCIL'S 60-DAY DISCOUNT DATE BEGINS TO RUN FROM THE DATE SATISFACTORY FINANCIAL ARRANGEMENTS HAVE BEENMADE.

WRITTEN REQUEST FOR EXTENSION OF TIME WITH EXPLANATION OF CIRCUMSTANCES AND A REQUEST FOR WAIVER OF DISCOUNT MUSTBE ADDRESSED TO THE CLERK OF THE CIRCUIT COURT FOR ANY TRANSCRIPTS WHICH CANNOT BE COMPLETED WITHIN 60 DAYS.

TO INSURE ALL EIGHT COPIES ARE LEGIBLE, THIS FORM SHOULD BE TYPED, IF IT IS IMPOSSIBLE TO TYPE. IT IS IMPERATIVE TO PRESSFIRMLY AND CHECK ALL EIGHT COPIES AFTER COMPLETION.

INSTRUCTIONS FOR ANYONE FILING A NOTICE OF APPEAL

YOU HAVE TEN (10) DAYS AFTER FILING YOUR NOTICE OF APPEAL TO COMPLETE THIS FORM BY DOING THE FOLLOWING:

1. Complete Part 1. (Whether or not transcript is ordered)

2. Contact each court reporter involved in reporting the proceedings to make arrangements for payment. (A separate transcriptorder form must be completed for each court reporter)

3. Send Copies 1,2,3, and 4 to each court reporter.

4. Send copy 5 to:

U.S. Court of Appeals for the Fifth Circuit600 South Maestri PlaceNew Orleans, LA 70130

5. Send Copy 6 to District Court.

6. Send Copy 7 to appellee(s). (Make additional photocopies if necessary)

7. Retain Copy 8 for your files.

SHOULD SATISFACTORY ARRANGEMENTS FOR TRANSCRIPT PRODUCTION, INCLUDING NECESSARY FINANCIAL ARRANGEMENTS, NOT BEMADE WITHIN TEN (10) DAYS AFTER FILING YOUR NOTICE OF APPEAL, YOUR APPEAL CAN BE DISMISSED.

If you have further questions, contact the Clerk's Office, U.S. Court of Appeals for the Fifth Circuit:

(504) 310-7700

DISTRIBUTION:

Copy 1 Court Reporter's CopyCopy 2 Court Reporter's Copy for Completion of Part III and Transmittal to the U.S. Court of Appeals (5th Circuit),

600 South Maestri Place, New Orleans, LA 70130Copy 3 Court Reporter's Copy for Completion of Part II and Transmittal to the U.S. Court of Appeals (5th Circuit),

600 South Maestri Place, New Orleans, LA 70130Copy 4 Court Reporter's Copy to be returned to appellant upon completion of Part IICopy 5 Appellant's Copy to be transmitted to the U.S. Court of Appeals (5th Circuit), South Maestri Place, New Orleans,

LA 70130, upon completion of Part ICopy 6 Appellant's Copy to be sent to the District Court upon completion of Part ICopy 7 Appellant's Copy to be sent to appellee(s) upon completion of Part I (Make additional photocopies if necessary)

Copy 8 Appellant's Copy to be retained upon completion of Part I



25/25

PART I. (To be completed by party ordering transcript. Do not complete this form unless financial arrangements have been made.)

A. Complete one of the following:No hearings

Transcript is unnecessary for appeal purposes

Transcript is already on file in Clerk's office

This is to order a transcript of the following proceedings: (check appropriate box)

Voir dire ; Opening statement of plaintiff ; defendant ;

Closing argument of plaintiff ; defendant ; Opinion of court ;

Jury instructions ; Sentencing ; Bail hearing ;

HEARING DATE(S) PROCEEDING JUDGE/MAGISTRATE

B. This is to certify that satisfactory financial arrangements have been completed with the court reporter for payment of the cost of the transcript. Themethod of payment will be:

Private funds; Criminal Justice Act Funds (Attach copy of CJA Form 24 to court reporter's copy);

Other IFP Funds; Advance Payment waived by reporter; U.S. Government Funds;

Other

Signature

Print Name

Address

Counsel for

Date Transcript Ordered

Phone Number

ALLOWANCE BY THE COURT FOR LEAVE TO PROCEED IN FORMA PAUPERIS IN A CIVIL APPEALDOES NOT ENTITLE THE LITIGANT TO HAVE TRANSCRIPT AT GOVERNMENT EXPENSE.

FAILURE TO SPECIFY IN ADEQUATE DETAIL THOSE PROCEEDINGS TO BE TRANSCRIBED, OR FAILURETO MAKE PROMPT SATISFACTORY FINANCIAL ARRANGEMENTS FOR TRANSCRIPT, ARE GROUNDS FORDISMISSAL OF THE APPEAL.

READ INSTRUCTIONS ON BACK OF LAST PAGE BEFORE COMPLETING

TRANSCRIPT ORDER

District Court Docket NumberDistrict Court

Short Case Title

(If Available)

Date Notice of Appeal Filed by Clerk of District Court Court of Appeals #

Court Reporter

PART II. COURT REPORTER ACKNOWLEDGEMENT (To be completed by the Court Reporter and forwarded to the Court of Appeals within 7 days afterreceipt. Read instruction on reverse side of copy 4 before completing.)

Date transcript orderreceived

If arrangements are not yet made, date contact made withordering party re: financial arrangements

Estimated completiondate *

Estimated numberof pages

Satisfactory Arrangements for payment were made on

Arrangements for payment have not been made. Reason: Deposit not received Unable to

Other (Specify)contact ordering party

Date TelephoneSignature of Court Reporter

Address of Court Reporter:

* Do not include an estimated completion date unless satisfactory financial arrangements have been made or waived.

PART III. NOTIFICATION THAT TRANSCRIPT HAS BEEN FILED IN THE DISTRICT COURT (To completed by court reporter on date of filing transcriptin District Court and notification must be forwarded to Court of Appeals on the same date.)

This is to certify that the transcript has been completed and filed with the District Court today.

Actual Number of Pages Actual Number of Volumes


txsd 91 0erged copy

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