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Winegarner v. Hartz

United States District Court, N.D. Texas, Dallas Division

January 16, 2018

PETER DAVID WINEGARNER, Plaintiff,
v.
KAREN HARTZ, ET AL., Defendants.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE.

         This case has been referred to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and an order of reference from United States District Judge Sam A. Lindsay. See Dkt. No. 15.

         Defendants Karen Hartz and Michael Arrellano, City of Coppell Code Enforcement Officers, and Defendant City of Coppell move to dismiss Plaintiff Peter David Winegarner's complaint under Federal Rule of Civil Procedure 12(b)(6). See Dkt. Nos. 9 & 10. Winegarner has filed a motion to strike Defendants' motions to dismiss on the basis that they are untimely, see Dkt. No. 14, and a separate motion to strike that also requests a hearing, see Dkt. No. 17. As ordered by the Court, Defendants filed a response to the first motion to strike. See Dkt. No. 18. But Winegarner failed to file a court-ordered response to the motions to dismiss, and the deadline to do so has passed.

         The undersigned enters these findings of fact, conclusions of law, and recommendation that the Court should deny the motions to strike and grant the motions to dismiss without prejudice to Winegarner's filing an amended complaint containing factual allegations that are sufficient enough to allege a plausible claim for relief and his properly serving that amended complaint on all defendants.

         Applicable Background

         Winegarner, who is proceeding pro se but not in forma pauperis (as he filed the $400.00 filing fee to initiate this action), brings claims that stem from efforts to address code violations associated with his property. See, e.g., Dkt. No. 3 at 7 (Karen Hartz affidavit for search warrant, attached to the complaint, providing in part that at 521 Oak Grove, Coppell, Texas “[t]here is ... a public nuisance that has been created by the resident of that premises. Interior of premises contains accumulated materials and debris causing a health and safety hazard and is in violation of the 2009 International Property Maintenance Code and Coppell Code of Ordinances.”).

He alleges in pertinent part that [t]he illegal unreasonable Search And Seizure 4th Amendment Civil Rights Violations Incident, was under authorities and the execution of each of the above defendants and took place on June 8, 2015, at 521 Oak Grove Ln, in The City of Coppell, Dallas County, Texas, 75019, and within Their Official City Of Coppell Capacities is how all of the Defendants acted, so it is also a 42 USC section 1983 violation as well as Abuse of Process and Intentional Infliction of Emotional Distress Causes of Actions against them all.

Id. at 2, 3.

         Waivers of service of summons have been filed by the defendants moving for dismissal. See Dkt. No. 8. Winegarner also has sued unnamed Coppell police and fire officers. And, as his complaint makes plain, the code enforcement officers have been sued in their official capacities. See Dkt. No. 3 at 2, 3.

         Legal Standards

         In deciding a Rule 12(b)(6) motion, the Court must “accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205-06 (5th Cir. 2007). To state a claim upon which relief may be granted, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face, ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and must plead those facts with enough specificity “to raise a right to relief above the speculative level.” Id. at 555. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “A claim for relief is implausible on its face when ‘the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct.'” Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 796 (5th Cir. 2011) (quoting Iqbal, 556 U.S. at 679).

         While, under Federal Rule of Civil Procedure 8(a)(2), a complaint need not contain detailed factual allegations, a plaintiff must allege more than labels and conclusions, and, while a court must accept all of a plaintiff's allegations as true, it is “not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). A threadbare or formulaic recitation of the elements of a cause of action, supported by mere conclusory statements, will not suffice. See id. But, “to survive a motion to dismiss” under Twombly and Iqbal, a plaintiff need only “plead facts sufficient to show” that the claims asserted have “substantive plausibility” by stating “simply, concisely, and directly events” that Plaintiff contends entitle him or her to relief. Johnson v. City of Shelby, Miss., 574 U.S.__, 135 S.Ct. 346, 347 (2014) (per curiam) (citing Fed.R.Civ.P. 8(a)(2)-(3), (d)(1), (e)).

         The Supreme Court of the United States “has made clear that a Rule 12(b)(6) motion turns on the sufficiency of the ‘factual allegations' in the complaint, ” Smith v. Bank of Am., N.A., 615 F. App'x 830, 833 (5th Cir. 2015) (per curiam) (quoting Johnson, 135 S.Ct. at 347; emphasis added by Smith), and the Federal Rules of Civil Procedure “do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted, ” Johnson, 135 S.Ct. at 346.

         That rationale has even more force in this case, as the Court “must construe the pleadings of pro se litigants liberally, ” Andrade v. Gonzales, 459 F.3d 538, 543 (5th Cir. 2006), “to prevent the loss of rights due to inartful expression, ” Marshall v. Eadison, 704CV123HL, 2005 WL 3132352, at *2 (M.D. Ga. Nov. 22, 2005) (citing Hughes v. Rowe, 449 U.S. 5, 9 (1980)); see United States v. Ayika, 554 F. App'x 302, 308 (5th Cir. 2014) (per curiam) (a court has a “duty to construe pro se [filings] liberally so that a litigant will not suffer simply because he did not attend law school or find a suitable attorney”); but see Smith v. CVS Caremark Corp., No. ...


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