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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION Stephen Tapp v. University of Texas Health Sciences Center at Houston-School of Dentistry et al CASE NUMBER: 4:11cv2971 District Judge: Lee H Rosenthal 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 of appeal, 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 motion for 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 of Non-Compliance if the appellant fails to return the transcript order form.

David Bradley, Clerk

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION Stephen Tapp v. University of Texas Health Sciences Center at Houston-School of Dentistry et al CASE NUMBER: 4:11cv2971 District Judge: Lee H Rosenthal Court Reporter(s): B Slavin

TRANSCRIPT ORDER INSTRUCTIONS TO APPELLANT Pursuant to FRAP 10(a)(1), a transcript order form must be filed within 14 days of the filing of the notice of appeal. Please review the instructions on the attached DKT 13 Transcript Order Form. Prepare a separate DKT 13 for each reporter from whom transcripts are ordered. All transcripts from tape recorded proceedings may be ordered on one form. Specify exact dates of proceedings to 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 and mark the appropriate box to indicate this information. The appellant must contact the court reporter within 14 days of the filing of the notice of appeal to arrange for the preparation of transcripts.
Court Reporting Services P.O. Box 61010 Houston, TX 77208 Electronic Court Reporting 713-250-5404 Court Reporters 713-250-5499 US District Court 600 E Harrison Street Brownsville, TX 78520-7114 956-548-2500 US District Court 1133 North Shoreline Blvd, Room 208 Corpus Christi, TX 78401 361-888-3142 US District Court PO Box 2300 Galveston, TX 77553 409-766-3530 US District Court 1300 Victoria Street, Suite 1131 Laredo, TX 78040 956-723-3542 US District Court 1701 W. Business Hwy 83, Suite 1011 McAllen, TX 78501 956-618-8065 US District Court PO Box 1638 Victoria, TX 78476 361-788-5000

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION Stephen Tapp v. University of Texas Health Sciences Center at Houston-School of Dentistry et al CASE NUMBER: 4:11cv2971 District Judge: Lee H Rosenthal 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 of appeal, 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 motion for 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 of Non-Compliance if the appellant fails to return the transcript order form. David Bradley, Clerk

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IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION STEPHEN TAPP, 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. Plaintiff, PLAINTIFFS RESPONSE TO DEFENDANTS MOTION TO DISMISS PLAINTIFFS SECOND AMENDED COMPLAINT TO THE HONORABLE JUDGE OF SAID COURT:

Notice is hereby given that Plaintiff Stephen Tapp in the above-styled and numbered cause, hereby appeals to the United States Court of Appeals for the Fifth Circuit pursuant to 28 U.S.C. 1291 from the Opinions and Orders entered on December 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] marty@cirkielaw.com [Email] Texas Bar No. 00783829 Souther District Fed. ID# 21488 ATTORNEY FOR PETITIONER

Notice Of Appeal

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CERTIFICATE OF SERVICE This is to certify that on this the 31st day of August I electronically filed the foregoing document with the Clerk of the Court for the U.S. District Court, Southern District of Texas, using the electronic filing system of the Court. The electronic case filing system will send a Notice of Electronic Filing to the following attorney of record who has consented in writing to accept this Notice as service of this document by electronic means:

Honorable Darren G. Gibson Attorney-In-Charge Texas Bar No. 24068846 Southern District No. 1041236 Assistant Texas Attorney General Post Office Box 12548 Capitol Station, Austin Texas 78711-2548 (512) 463-2120 [Telephone] (512) 320- 0667 [Facsimile] Darren.Gibson@texasattorneygeneral.gov [Email]

/s/ Martin J. Cirkiel

Notice Of Appeal

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION STEPHEN TAPP,

Plaintiff, v. 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.

CIVIL ACTION NO. H-11-2971

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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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

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.)). Tapp 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.
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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

Ordinarily, 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.

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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). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), and Ashcroft 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. (citing Alcala 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 would understand 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) (quoting Ashcroft 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.) (citing Day 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. (citing Devenpeck 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. MarioniMelendez, 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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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

If 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).

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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 first finds 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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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

14

Case 4:11-cv-02971 Document 35-3

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION STEPHEN TAPP,

Plaintiff, v. 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.

CIVIL ACTION NO. H-11-2971

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

Case 4:11-cv-02971 Document 35-4

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION Stephen Tapp v. University of Texas Health Sciences Center at Houston-School of Dentistry et al CASE NUMBER: 4:11cv2971 District Judge: Lee H Rosenthal 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 of appeal, 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 motion for 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 of Non-Compliance if the appellant fails to return the transcript order form.

David Bradley, Clerk

Case 4:11-cv-02971 Document 35-4

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION Stephen Tapp v. University of Texas Health Sciences Center at Houston-School of Dentistry et al CASE NUMBER: 4:11cv2971 District Judge: Lee H Rosenthal Court Reporter(s): B Slavin

TRANSCRIPT ORDER INSTRUCTIONS TO APPELLANT Pursuant to FRAP 10(a)(1), a transcript order form must be filed within 14 days of the filing of the notice of appeal. Please review the instructions on the attached DKT 13 Transcript Order Form. Prepare a separate DKT 13 for each reporter from whom transcripts are ordered. All transcripts from tape recorded proceedings may be ordered on one form. Specify exact dates of proceedings to 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 and mark the appropriate box to indicate this information. The appellant must contact the court reporter within 14 days of the filing of the notice of appeal to arrange for the preparation of transcripts.
Court Reporting Services P.O. Box 61010 Houston, TX 77208 Electronic Court Reporting 713-250-5404 Court Reporters 713-250-5499 US District Court 600 E Harrison Street Brownsville, TX 78520-7114 956-548-2500 US District Court 1133 North Shoreline Blvd, Room 208 Corpus Christi, TX 78401 361-888-3142 US District Court PO Box 2300 Galveston, TX 77553 409-766-3530 US District Court 1300 Victoria Street, Suite 1131 Laredo, TX 78040 956-723-3542 US District Court 1701 W. Business Hwy 83, Suite 1011 McAllen, TX 78501 956-618-8065 US District Court PO Box 1638 Victoria, TX 78476 361-788-5000

Case 4:11-cv-02971 Document 35-4

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION Stephen Tapp v. University of Texas Health Sciences Center at Houston-School of Dentistry et al CASE NUMBER: 4:11cv2971 District Judge: Lee H Rosenthal 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 of appeal, 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 motion for 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 of Non-Compliance if the appellant fails to return the transcript order form. David Bradley, Clerk

Case 4:11-cv-02971 Document 35-5

INSTRUCTIONS TO COURT REPORTER

Filed in TXSD on 09/05/12 Page 1 of 2

This is an electronic version of the original 8-page, multipart cabon-less form. The court reporter is responsible for ensuring that 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 adequate financial 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 arrangements have 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. If financial negotiations with the ordering party are still in progress when the 10 days expire, and the chances for completion within a short period of 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 of the fact, furnishing the estimated delivery date. THE JUDICIAL COUNCIL'S 60-DAY DISCOUNT DATE BEGINS TO RUN FROM THE DATE SATISFACTORY FINANCIAL ARRANGEMENTS HAVE BEEN MADE. WRITTEN REQUEST FOR EXTENSION OF TIME WITH EXPLANATION OF CIRCUMSTANCES AND A REQUEST FOR WAIVER OF DISCOUNT MUST BE 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 PRESS FIRMLY 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 transcript order form must be completed for each court reporter) 3. 4. Send Copies 1,2,3, and 4 to each court reporter. Send copy 5 to: U.S. Court of Appeals for the Fifth Circuit 600 South Maestri Place New Orleans, LA 70130 5. 6. 7. Send Copy 6 to District Court. Send Copy 7 to appellee(s). (Make additional photocopies if necessary) Retain Copy 8 for your files.

SHOULD SATISFACTORY ARRANGEMENTS FOR TRANSCRIPT PRODUCTION, INCLUDING NECESSARY FINANCIAL ARRANGEMENTS, NOT BE MADE 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 Copy 2 Copy 3 Copy 4 Copy 5 Copy 6 Copy 7 Copy 8 Court Reporter's Copy 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 70130 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 70130 Court Reporter's Copy to be returned to appellant upon completion of Part II 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 I Appellant's Copy to be sent to the District Court upon completion of Part I Appellant's Copy to be sent to appellee(s) upon completion of Part I (Make additional photocopies if necessary) Appellant's Copy to be retained upon completion of Part I

Case 4:11-cv-02971 Document 35-5 FiledPAGE in TXSD onCOMPLETING 09/05/12 Page 2 of 2 READ INSTRUCTIONS ON BACK OF LAST BEFORE TRANSCRIPT ORDER
District Court District Court Docket Number

Short Case Title Date Notice of Appeal Filed by Clerk of District Court

Court Reporter Court of Appeals #

(If Available)

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 ; ; Sentencing ; ; defendant ; PROCEEDING JUDGE/MAGISTRATE ; ; Closing argument of plaintiff Jury instructions HEARING DATE(S) Opinion of court

Bail hearing

FAILURE TO SPECIFY IN ADEQUATE DETAIL THOSE PROCEEDINGS TO BE TRANSCRIBED, OR FAILURE TO MAKE PROMPT SATISFACTORY FINANCIAL ARRANGEMENTS FOR TRANSCRIPT, ARE GROUNDS FOR DISMISSAL OF THE APPEAL. B. This is to certify that satisfactory financial arrangements have been completed with the court reporter for payment of the cost of the transcript. The method of payment will be: Private funds; Criminal Justice Act Funds (Attach copy of CJA Form 24 to court reporter's copy); Other IFP Funds; Other Signature Print Name Address Date Transcript Ordered Counsel for Phone Number ALLOWANCE BY THE COURT FOR LEAVE TO PROCEED IN FORMA PAUPERIS IN A CIVIL APPEAL DOES NOT ENTITLE THE LITIGANT TO HAVE TRANSCRIPT AT GOVERNMENT EXPENSE. PART II. COURT REPORTER ACKNOWLEDGEMENT (To be completed by the Court Reporter and forwarded to the Court of Appeals within 7 days after receipt. Read instruction on reverse side of copy 4 before completing.) Date transcript order If arrangements are not yet made, date contact made with Estimated completion Estimated number received ordering party re: financial arrangements date * of pages Advance Payment waived by reporter; U.S. Government Funds;

Satisfactory Arrangements for payment were made on Arrangements for payment have not been made. Reason: contact ordering party Other (Specify) Deposit not received Unable to

Date Address of Court Reporter:

Signature of Court Reporter

Telephone

* 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 transcript in 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

Date
DKT-13 (5/96) modified 01/05 WDTX

Signature of Court Reporter