United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION
Rosenthal Chief United States District Judge
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
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.
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.
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.
second amended complaint asserted nine claims:
1. Dexel, Comstock, and Lott breached their fiduciary duties
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
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
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
9. All defendants allegedly violated the ADA's
retaliation provision, 42 U.S.C. § 12203.
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.
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.
reasons for these rulings are explained below.