United States District Court, W.D. Texas, San Antonio Division
ROSANNA BARRERA, SAGE BARRERA, JENESEY BARRERA, and ANDREA PEREZ Plaintiffs,
DEAN CHERER INDIVIDUALLY AND ON BEHALF OF CHERERCO LLC, LEROY SCOTT, GRACE KUNDE, CONSTABLE JIMMY HARLESS PCT. 2, and GUADALUPE COUNTY Defendants .
RODRIGUEZ UNITED STATES DISTRICT JUDGE.
date, the Court considered United States Magistrate Judge
Henry J. Bemporad's Report and Recommendation regarding
the above numbered and styled case, filed December 28, 2018
(Docket No. 11), and Plaintiffs' objections, filed
January 25, 2019 (Docket No. 20). After careful
consideration, the Court ACCEPTS Magistrate Judge
Bemporad's recommendation and DISMISSES Plaintiffs'
claim against Constable Harless for lack of subject matter
jurisdiction, as well as Plaintiffs' constitutional and
conspiracy claims against Defendants Cherer, Kunde and Scott
for failure to state a claim upon which relief may be
granted. The Court further DECLINES to exercise supplemental
jurisdiction over Plaintiffs' remaining state claims.
case is primarily concerned with a residence on Redwood Road
in San Marcos, Texas, purchased in 2001 by Esequiel and Mary
Angela Barrera. Docket No. 10 at 3. The
property was purchased with community funds; however, it was
placed solely in Mr. Barrera's name. Id. In
2010, a default judgment was entered against Mr. Barrera for
nonpayment of property taxes, and a tax suit ensued.
Id. Mrs. Barrera allegedly had no knowledge of or
involvement in the tax suit. Id.
Barrera died intestate in January 2012 and left a one-half
interest in the property to her children, who are Plaintiffs
in the present case: Rosanna Barrera, Sage Barrera, Jenesey
Barrera, and Andrea Perez. Id. Sage Barrera was
living at the Redwood residence at the time of Mrs.
Barrera's death. Id. In January 2013, Defendant
Chererco, LLC (“Chererco”) obtained a tax resale
deed for the property. Id. at 4. Defendant Dean
Cherer, agent for Chererco, demanded that Sage and her
sister, Plaintiff Jenesey Barrera, sign a lease to rent the
property; they refused. Id.
litigation ensued, ultimately resulting in judgment for
Chererco and forcible removal of the Barrera's from the
property in 2017. See id. at 4-12. Defendant Grace
Kunde was the attorney who represented Defendants Cherer and
Chererco in the state litigation; Defendant Leroy Scott
represented Plaintiffs; Justice of the Peace Sheryl
Sachtleben entered judgment for Cherer; and Defendant
Constable Jimmy Harless executed the judgment, removing
Plaintiffs from the property in 2017. Id. Plaintiff
Rosanna Barrera filed a petition to re-enter the property,
but Sachtleben denied the petition. Id.
acting pro se, filed their initial Complaint on
November 1, 2018, and were granted leave to proceed in forma
pauperis (“IFP”). Docket Nos. 2, 3.
Plaintiffs' First Complaint brought claims for conspiracy
under 42 U.S.C. § 1983, alleging an unconstitutional
deprivation of property and due process, and state-law claims
for abuse of process, trespass, conversion, and intentional
infliction of emotional distress. Docket No. 3 at 11-20;
Docket No. 11 at 3.
Judge Bemporad issued a Show Cause Order on November 7, 2018.
Docket No. 2. The order noted specific deficiencies in the
pleading, including: (1) Plaintiffs' failure to
demonstrate how a 42 U.S.C. § 1983 civil rights claim
could be properly asserted against certain Defendants, who
are non-state actors; and (2) the naming of an actor who is
protected by judicial immunity. Id. at 1, 4.
Additionally, Plaintiffs were informed their complaint was
subject to dismissal under the Rooker-Feldman
doctrine because it appears to bring a federal claim that
collaterally attacks a state court ruling. Id. at
2-3; see Rooker v. Fidelity Tr. Co., 263 U.S. 413
(1923); Dist. Of Columbia Court of Appeals v.
Feldman, 460 U.S. 462 (1983).
filed their First Amended Complaint in response to the Show
Cause Order on December 6, 2018. Docket No. 10. In the
amended complaint, Plaintiffs removed Sachtleben from the
caption, and specifically named Constable Harless as a
Defendant. Id. at 1, 3. Plaintiffs further clarified
their existing claims against Defendants Kunde and Scott,
alleging the attorneys “acted under color of law”
in the state litigation, and “deprived Plaintiffs of
their Constitutional rights of a full and fair opportunity to
litigate their Federal claims.” Id. at 19.
Additionally, plaintiffs allege that attorney Kunde acted
under “state compulsion” in preparing orders for
the state court, and that Constable Harless conducted an
illegal seizure of the Redwood Property. Id. at 10,
this response addressed some of the issues raised, the
amended complaint failed to adequately remedy the Court's
concerns, and Magistrate Judge Bemporad issued his Report and
Recommendation on December 28, 2018, recommending
Plaintiffs' case be dismissed for lack of subject matter
jurisdiction. Id. at 6.
January 25, 2019, Plaintiffs filed a Second Amended Complaint
and specific objections to Judge Bemporad's report.
Docket Nos. 20, 21. In this revision, Plaintiffs appear to
have removed their Fourth Amendment and illegal seizure
claims against Constable Harless. Compare Docket No.
10 at 19 with Docket No. 21 at 17. Plaintiffs'
remaining claims can be found in Counts 1-3 of their Second
Amended Complaint, in which Plaintiffs re-allege their
conspiracy claim under 42 U.S.C. § 1983 and state law
claims of abuse of process and intentional infliction of
emotional distress. See id. at 17-19.
Report or Recommendation issued by a Magistrate Judge that is
properly objected to requires de novo review.
See U.S.C. 636(b)(1) (“A judge of the court
shall make a de novo determination of those portions
of the report or specified proposed findings or
recommendations to which objection is made.”). Such a
review means the Court will examine the entire record and
make an independent assessment of the law. The Court need
not, however, conduct a de novo review when the
objections are frivolous, conclusive, or general in nature.
Battle v. United States Parole Comm'n, 834 F.2d
419, 421 (5th Cir. 1987). ...