United States District Court, E.D. Texas, Sherman Division
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
L. MAZZANT UNITED STATES DISTRICT JUDGE
for consideration the report of the United States Magistrate
Judge in this action, this matter having been heretofore
referred to the United States Magistrate Judge pursuant to 28
U.S.C. §636. On January 30, 2017, the report of the
Magistrate Judge was entered containing proposed findings of
fact and recommendations that the Consolidated Rule 12 Motion
to Dismiss, pursuant to Federal Rule of Civil Procedure
12(b)(5) and 12(b)(6), filed by Defendant Denton County,
Texas Criminal District Attorney, on behalf of Denton County
Criminal District Attorney Paul Johnson and three Assistant
Criminal District Attorneys, Lara Tomlin
(“Tomlin”), Rick Daniel (“Daniel”),
and Lindsey Sheguit (“Sheguit”) (collectively,
the “District Attorney Defendants”) (see
Dkt. #18) be GRANTED.
se Plaintiffs Roger Liverman and Aaron Liverman
(“Plaintiffs”) filed objections to the report on
February 15, 2017 (see Dkt. #47). The Court has
made a de novo review of the objections raised by
Plaintiffs and is of the opinion that the findings and
conclusions of the Magistrate Judge are correct and the
objections are without merit as to the ultimate findings of
the Magistrate Judge. The Court hereby adopts the findings
and conclusions of the Magistrate Judge as the findings and
conclusions of the Court.
have sued the District Attorney Defendants in their
individual capacities, as well as Defendant Katheryn Payne
Hall (“Hall”), who, apparently, is the daughter
of Plaintiff Roger Liverman and the sister of Plaintiff Aaron
Liverman. Plaintiffs also name as a Defendant “Denton
County, Texas, Denton Criminal District of Attorney”
(“Denton County”), which they identify as a
“governmental entity.” See Dkt. #1 at 4.
Denton County has not entered an appearance in this lawsuit.
Nor is it clear that Denton County been properly served with
process. This case apparently arises from Plaintiffs'
prosecution by the Denton County District Attorney's
Office for a violation of Texas Penal Code section 32.46
(Securing the Execution of Documents by Deception), an
indictment by the Denton County Grand Jury, a finding of
guilty by a Denton County District Court Judge in a bench
trial, and, ultimately, the reversal of the convictions by
the Court of Criminal Appeals. See Dkt. 18 at 2-3.
reviewed the record herein and finding that Plaintiffs'
objections are without merit, the Court hereby adopts the
findings and conclusions of the Magistrate Judge as the
findings and conclusions of the Court.
object to the Magistrate Judge's finding that all claims
alleged involved the District Attorney Defendants'
prosecutorial advocacy functions and that the Magistrate
Judge incorrectly concluded that prosecutorial immunity
applies. See Dkt. #47 at 7-13. Although Plaintiffs
extensively cite a wide variety of cases in their objections
(see Dkt. #47), they fail to provide any meaningful
analysis to overcome the Magistrate Judge's finding that
the District Attorney Defendants are entitled to both
absolute and qualified immunity. The majority of
Plaintiffs' arguments arise from qualified immunity
cases. See id. at 8-13. The Magistrate Judge
properly concluded that the conclusory allegations and
assertions in Plaintiffs' complaint failed to meet the
heightened pleading requirement for qualified immunity
claims. See Baker v. Putnal, 75 F.3d at 196 (5th
Cir. 1996); Spivey v. Robertson, 197 F.3d 772, 774
(5th Cir. 1999), cert. denied, 530 U.S. 1229, (2000).
importantly, however, Plaintiffs cannot overcome the District
Attorney Defendants' absolute immunity defense.
Plaintiffs make two arguments-both of which are unavailing.
Plaintiffs argue that: (1) the Eleventh Amendment does not .
. . immunize local governments from private suits;” and
(2) “state officials may be sued . . . in their
individual capacit[ies] for violations of federal
constitutional or statutory rights.” However, neither
of Plaintiffs' arguments address the issue of
prosecutorial immunity. As the Magistrate Judge correctly
stated, Fifth Circuit law is clear that when acting in a
prosecutorial capacity, a district attorney is an agent of
the state, not an agent of the county in which the criminal
case happens to be prosecuted, and is thus, protected by
Eleventh Amendment Immunity. See Esteves v. Brock,
106 F.3d 674 (5th Cir.), cert. denied, 522 U.S. 828 (1997);
see also Spikes v. Phelps, 131 Fed.Appx. 47 (5th
Cir. 2005); Shanafelt v. Office of the Attorney
General, 213 F.3d 638 (5th Cir. 2000).
is equally clear that absolute immunity covers a
prosecutor's actions associated with the judicial phase
of the criminal process, including actions related to
initiating, investigating, and pursuing a criminal
prosecution. Imbler v. Pachtman, 424 U.S. 409,
430-31 (1976); Esteves, 106 F.3d at 676; see
also Cook v. Houston Post, 616 F.2d 791, 793 (5th Cir.
1980). Furthermore, absolute immunity protects prosecutors
from all liability even when they act “maliciously,
wantonly or negligently.” Morrison v. City of Baton
Rouge, 761 F.2d 242, 248 (5th Cir. 1985). The Court has
reviewed the pleadings and the Magistrate Judge's
findings, and agrees with the Magistrate Judge that all of
the facts alleged, even when taken as true, do not amount to
conduct for which waiver of absolute immunity is warranted.
also raise an issue regarding a “murder for hire
plot” perpetrated against them by Defendant Hall.
See Dkt. 47 at 13 and 17-18. Plaintiffs have
previously raised this issue by way of their motion
requesting the Court to notify the “proper
authorities” about the alleged murder-for-hire plot
(see Dkt. 31). The murder-for-hire plot is not
alleged in Plaintiffs' complaint (see Dkt. #1)
and thus is not addressed in either the District Attorney
Defendants' motion to dismiss (see Dkt. #18) or
the Magistrate Judge's report and recommendation
(see Dkt. #40). However, to the extent that
Plaintiffs intend to assert this issue to overcome the
District Attorney Defendants' assertion of immunity, the
Court will address it here.
allege they provided evidence of the alleged murder-for-hire
plot to the District Attorney Defendants and the District
Attorney Defendants failed to take any action. See
Dkt. #47 at 14. Prosecutors have discretionary power to
decide whether or not to bring charges and when to bring
charges. See, e.g., Bordenkircher v. Hayes, 434 U.S.
357, 364 (1978); see also United States v. Cox, 342
F.2d 167, 172 (5th Cir. 1965); Oliver v. Collins,
914 F.2d 56, 60 (5th Cir. 1990) (internal citation omitted)
(holding there is no constitutional right to have someone
criminally prosecuted); Gill v. State of Texas, 2004
WL 852285, at *2 (N.D. Tex. 2004), aff'd, 153 F.
App'x 261 (5th Cir. 2005). Thus, contrary to
Plaintiffs' contention, it was within the discretion of
the District Attorney Defendants to assess the evidence and
decide whether or not to bring charges. See
Bordenkircher, 434 U.S. at 364. Moreover, as previously
explained, absolute immunity protects prosecutors from all
liability even when they act “maliciously, wantonly or
negligently.” Morrison, 761 F.2d at 248 (5th
reasons unclear to the Court, Plaintiffs also raise the issue
of standing. The Magistrate Judge's report does not
challenge-or even discuss-Plaintiffs' standing to bring
their lawsuit. Therefore, to the extent that Plaintiffs have
raised an objection on this point, the objection is overruled
only issue before the Court in a Rule 12(b)(6) motion to
dismiss is whether Plaintiffs have successfully stated a
claim upon which relief can be granted. See Fed. R.
Civ. P. 12(b)(6). Plaintiffs' claims must have facial
plausibility to survive the District Attorney Defendants'
12(b)(6) motion to dismiss. See, e.g., Ashcroft v.
Iqbal, 556 U.S. 662 (2009); see also Gonzalez v.
Kay, 577 F.3d 600, 603 (5th Cir. 2009). Even construing
all the facts in a light most favorable to Plaintiffs,
see Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.
1996), the Court finds that Plaintiffs have failed to state a
claim upon which relief can be granted.
the District Attorney Defendants' Consolidated Rule 12
Motion to Dismiss, pursuant to Federal Rules of Civil
Procedure 12(b)(5) and 12(b)(6) (Dkt. #18), is GRANTED, and
Plaintiffs' claims against Denton County Criminal
District Attorney Paul Johnson and three Assistant Criminal
District Attorneys, Lara Tomlin, Rick Daniel, and Lindsey
Sheguit, are hereby DISMISSED with prejudice, with ...