United States District Court, N.D. Texas, Fort Worth Division
CLARENCE D. BROWN, Plaintiff,
ALLISON TAYLOR, ET AL., Defendants.
MEMORANDUM OPINION AND ORDER
McBrite United States Distract Judge
for consideration the motion of defendants Tarrant County,
Texas ("County"), and Dee Anderson
("Sheriff") to dismiss. Also came on for
consideration the motion of plaintiff, Clarence D. Brown, for
leave to file third amended complaint and/or supplement to
plaintiff's second amended complaint. The court, having
considered the motions, the responses, the replies, the
record, and applicable authorities, finds that the motion to
dismiss should be granted and that the motion for leave to
amend should be denied.
October 1, 2012, plaintiff filed his original complaint in
this action complaining of his treatment as a civilly
committed sexually violent predator between 2011 and 2012.
Doc.1. The court dismissed plaintiff's
claims, Docs. 17 & 18, and plaintiff appealed. Doc. 21.
The United States Court of Appeals for the Fifth Circuit
vacated the judgment and remanded the action for further
proceedings. Docs. 45 & 46 . On October 26, 2016,
plaintiff filed his amended complaint. Doc. 55. By order and
final judgment signed October 27, 2016, court ordered a
dismissal of certain claims and parties, Docs. 57 & 58,
and, by-memorandum opinion and order and final judgment
signed November 4, 2016, the court dismissed the remaining
claims asserted by plaintiff. Docs. 62 & 63. The court
also denied plaintiff leave to file a further amended
complaint (which had been filed November 3, 2016, Doc. 60,
and which although titled both "original" and
"first amended" complaint was actually the second
amended complaint). Doc. 61. Plaintiff again appealed. Doc.
64. The Fifth Circuit affirmed in part, vacated in part, and
remanded for further proceedings. Doc. 72.
to the Fifth Circuit's mandate, plaintiff was allowed to
proceed with his second amended complaint. The only claims
that remain pending are plaintiff's due process claims
against Sheriff and County, and a retaliation claim against
Greg Basham. Doc. 72; Doc. 73.
of the Motion to Dismiss
and Sheriff assert three grounds in support of their motion.
First, Sheriff is entitled to qualified immunity. Second,
plaintiff has failed to plead sufficient facts to establish a
plausible municipal liability claim against County. And,
third, service of process on Sheriff was
8(a)(2) of the Federal Rules of Civil Procedure provides, in
a general way, the applicable standard of pleading. It
requires that a complaint contain "a short and plain
statement of the claim showing that the pleader is entitled
to relief," Fed.R.Civ.P. 8(a)(2), "in order to give
the defendant fair notice of what the claim is and the
grounds upon which it rests," Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal quotation
marks and ellipsis omitted). Although a complaint need not
contain detailed factual allegations, the "showing"
contemplated by Rule 8 requires the plaintiff to do more than
simply allege legal conclusions or recite the elements of a
cause of action. Twombly, 550 U.S. at 555 & n.3.
Thus, while a court must accept all of the factual
allegations in the complaint as true, it need not credit bare
legal conclusions that are unsupported by any factual
underpinnings. See Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009) ("While legal conclusions can provide the
framework of a complaint, they must be supported by factual
to survive a motion to dismiss for failure to state a claim,
the facts pleaded must allow the court to infer that the
plaintiff's right to relief is plausible. Iqbal,
556 U.S. at 678. To allege a plausible right to relief, the
facts pleaded must suggest liability; allegations that are
merely consistent with unlawful conduct are insufficient.
Id. In other words, where the facts pleaded do no
more than permit the court to infer the possibility of
misconduct, the complaint has not shown that the pleader is
entitled to relief. Id. at 679. "Determining
whether a complaint states a plausible claim for relief . . .
[is] a context-specific task that requires the reviewing
court to draw on its judicial experience and common
immunity insulates a government official from civil damages
liability when the official's actions do not
"violate clearly established statutory or constitutional
rights of which a reasonable person would have known."
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). For
a right to be "clearly established," the
right's contours must be "sufficiently clear that a
reasonable official would understand that what he is doing
violates that right." Anderson v. Creighton,
483 U.S. 635, 640 (1987). Individual liability thus turns on
the objective legal reasonableness of the defendant's
actions assessed in light of clearly established law at the
time. Hunter v. Bryant. 502 U.S. 224, 228 (1991);
Anderson, 483 U.S. at 639-40. In Harlow,
the court explained that a key question is "whether that
law was clearly established at the time an action
occurred" because "[i]f the law at that time was
not clearly established, an official could not reasonably be
expected to anticipate subsequent legal developments, nor
could he fairly be said to 'know' that the law
forbade conduct not previously identified as unlawful."
4 57 U.S. at 818. In assessing whether the law was clearly
established at the time, the court is to consider all
relevant legal authority, whether cited by the parties or
not. Elder v. Holloway, 510 U.S. 510, 512 (1994). If
public officials of reasonable competence could differ on the
lawfulness of defendant's actions, the defendant is
entitled to qualified immunity. Mullenix v. Luna,
136 S.Ct. 305, 308 (2015); Malley V. Brigqs, 475
U.S. 335, 341 (1986); Fraire v. City of Arlington,
957 F.2d 1268, 1273 (5th Cir. 1992)." [A] n allegation
of malice is not sufficient to defeat immunity if the
defendant acted in an objectively reasonable manner."
Malley, 475 U.S. at 341.
analyzing whether an individual defendant is entitled to
qualified immunity, the court considers whether plaintiff has
alleged any violation of a clearly established right, and, if
so, whether the individual defendant's conduct was
objectively reasonable. Siegert v. Gilley, 500 U.S.
226, 231 (1991); Duckettv. City of Cedar
Park, 950 F.2d 272, 276-80 (5th Cir. 1992). In so doing,
the court should not assume that plaintiff has stated a
claim, i.e., asserted a violation of a constitutional right.
Siegert, 500 U.S. at 232. Rather, the court must be
certain that, if the facts alleged by plaintiff are true, a
violation has clearly occurred. Connelly v.