United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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.
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.
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).
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),
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.
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.