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Barrera v. Cherer

United States District Court, W.D. Texas, San Antonio Division

April 25, 2019

ROSANNA BARRERA, SAGE BARRERA, JENESEY BARRERA, and ANDREA PEREZ Plaintiffs,
v.
DEAN CHERER INDIVIDUALLY AND ON BEHALF OF CHERERCO LLC, LEROY SCOTT, GRACE KUNDE, CONSTABLE JIMMY HARLESS PCT. 2, and GUADALUPE COUNTY Defendants .

          ORDER

          XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE.

         On this 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.

         BACKGROUND

         This 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.

         Mrs. 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.

         State 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.

         PROCEDURAL HISTORY

         Plaintiffs, 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.

         Magistrate 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).

         Plaintiffs 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, 12, 19.

         While 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.

         On 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.

         DISCUSSION

         I. Legal Standard

         Any 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). ...


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