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Johnston v. Dexel

United States District Court, S.D. Texas, Houston Division

May 15, 2018

SHERRY LYNN JOHNSTON, Plaintiff,
v.
DAVID DEXEL, et al., Defendants.

          MEMORANDUM AND OPINION

          Lee H. Rosenthal Chief United States District Judge

         Sherry Johnston's elderly mother, Willie Jo Mills, died in a nursing home. Johnston alleges that Mills received improper and negligent care that contributed to or caused her death. Johnston asserts a long list of claims against a long list of defendants who she alleges played some role in Mills's death.

         In August 2017, the court granted in part the defendants' motions to dismiss and dismissed, with prejudice, the claims against Sherry Fox and Judge Christine Butts, except for one claim against Judge Butts under § 1201.003 of the Texas Estates Code. The court also dismissed with prejudice and the claims under 42 U.S.C. § 1983 against David Dexel, Ginger Lott, GSL Care Management LLC, and Clarinda Comstock. The court dismissed, without prejudice and with leave to amend, the § 1983 claims against Harris County, the state-law wrongful-death claim against Dexel, the claims under the Americans with Disabilities Act, the state-law claims for civil conspiracy to breach fiduciary duties, intentional infliction of emotional distress, fraud, defamation, violating statutory duties, and for “ultra vires” illegal acts. The court retained as adequately pleaded the claims for breach of fiduciary duty against Dexel and Lott, and the wrongful-death claim against Lott.

         Johnston filed a second amended complaint seeking to cure the identified deficiencies. (Docket Entry No. 38). The defendants again moved to dismiss, Johnston responded, and the defendants replied. (Docket Entries No. 43, 45, 46, 47, 49, 52, 53, 56, 57, 59). This Memorandum and Opinion addresses the second motions to dismiss.

         A threshold matter. Johnston filed a motion for leave to file a third amended complaint after the briefing ended on the motions to dismiss the second amended complaint. (Docket Entry No. 61). This was more than 5 months after Johnston filed her second amended complaint in October 2017, which was after the court had twice extended the filing deadline. Johnston's position that the proposed third amended complaint seeks to “further narrow her claims” is undermined by its length-it is 140 pages, 71 pages longer than the second amended complaint. Johnston's response to the second round of motions to dismiss states that “most of the basic facts are set out and contained within the lengthy second amended complaint.” (Docket Entry No. 53 at 29). While Johnston also asserts that “the factual recitation can be improved, ” her acknowledgment that the “basic facts” are the same in the proposed amended complaint weighs against granting leave to file it. (Id.). Johnston has not shown good cause to file her third amended complaint. And even if the court considered the additional allegations in the proposed third amended complaint, (Docket Entry No. 61, Ex. 1), those allegations would not change the outcome, making the proposed amendment futile. The motion for leave to amend is denied.

         Johnston's second amended complaint asserted nine claims:

1. Dexel, Comstock, and Lott breached their fiduciary duties to Mills.
2. Dexel and Lott caused Mills's wrongful death through their “wrongful acts of fraud, conspiracy, and breach of fiduciary duty” as Mills's guardians.
3. Dexel's “fraudulent concealment of his resignation” and the “illegal, ex parte meeting with Judge Butts” constituted fraud.
4. All defendants committed civil conspiracy by participating in “the illegal, ex parte meeting that resulted in the order appointing Lott as Successor Guardian so that Dexel could resign.” (Docket Entry No. 38 ¶ 86).
5. Judge Butts violated her duty to exercise reasonable diligence to ensure that Dexel and Lott were performing their duties as Mills's guardians, giving rise to a claim against her bond under § 1201.003 of the Texas Estates Code.
6. Mills suffered from the defendants' intentional infliction of emotional distress.
7. Harris County violated the ADA by discriminating against Mills based on her disability.
8. All the defendants violated Title II of the ADA by depriving Mills and Johnston of their Fourteenth Amendment due-process right to a meaningful hearing and depriving Mills of her First Amendment rights to freedom of speech and association.
9. All defendants allegedly violated the ADA's retaliation provision, 42 U.S.C. § 12203.

         In the response to the defendants' motions to dismiss, (Docket Entry No. 52), Johnston dismissed the following claims: (1) the claim under the Rehabilitation Act, 29 U.S.C. § 504; (2) the civil-conspiracy claims against Dexel, Comstock, Lott, Harris County, and Judge Butts; (3) the fraud claims; (4) the intentional-infliction-of-emotional-distress claim; and (5) the wrongful-death claim against Dexel. After the motions and replies were filed, Johnston also stipulated to dismiss, with prejudice, the claims against Lott and GSL Care Management. (Docket Entry No. 62). Those claims are dismissed, with prejudice, and Lott's motion to dismiss those claims, (Docket Entry No. 46), is moot.

         The motions to dismiss challenge the remaining claims for: (1) breach of fiduciary duty against Dexel and Comstock; (2) recovery against Judge Butts's bond under § 1201.003 of the Texas Estates Code; and (3) retaliation and discrimination based on Mills's disability, against all the defendants. Based on the pleadings; the motions, responses, replies; the record; and the applicable law, Judge Butts's motion to dismiss, (Docket Entry No. 49), is denied; Dexel's motion to dismiss, (Docket Entry No. 43), is granted in part and denied in part; and Comstock's and Harris County's motions to dismiss, (Docket Entries No. 45, 57), are granted.

         The reasons for these rulings are explained below.

         I. ...


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