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Roe v. Johnson County

United States District Court, N.D. Texas, Dallas Division

July 29, 2019

JOHN ROE, Plaintiff,



         A plaintiff who identifies by the pseudonym John Roe, a former immigration and state-jail detainee, brings pro se claims, mostly for alleged civil rights violations, against various entities and individuals. See Dkt. No. 50 (first amend. compl.). His case has been referred to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and an order of reference from United States District Judge Jane J. Boyle [Dkt. No. 8].

         Eight motions to dismiss Roe's amended claims under Federal Rule of Civil Procedure 12(b)(6) are now before the Court:

1. Defendant Sheriff Parnell McNamara's motion to dismiss [Dkt. No. 61], to which Plaintiff responded, see Dkt. No. 117, and Defendant replied, see Dkt. No. 128;
2. Defendant Randall Price's motion to dismiss [Dkt. No. 74], to which Plaintiff responded, see Dkt. No. 105, and Defendant replied, see Dkt. No. 129;
3. The Johnson County Defendants' motion to dismiss [Dkt. No. 76] - filed by Defendants Johnson County, Texas, Sheriff Bob Alford, Sheriff Adam King, David Blakenship, Robert Mayfiled, Bill Moore, Stu Madison, and Jeffrey Acklen - to which Plaintiff responded, see Dkt. No. 108, and Defendants replied, see Dkt. No. 143;
4. Defendant Robert Matson's motion to dismiss [Dkt. Nos. 77 & 78], to which Plaintiff responded, see Dkt. No. 114, and Defendant replied, see Dkt. No. 147;
5. The LaSalle Defendants' motion to dismiss [Dkt. Nos. 79 & 89] - filed by Dependants Southwestern Correctional, LLC d/b/a LaSalle Corrections, LLC d/b/a LaSalle Southwest Corrections and LaSalle Management Company, LLC - to which Plaintiff responded, see Dkt. No. 117, and Defendants replied, see Dkt. No. 148;
6. Defendant Phillip Roden's motion to dismiss (and motion to strike) [Dkt. No. 81], to which Plaintiff responded, see Dkt. No. 104, and Defendant replied, see Dkt. No. 130;
7. Defendants Jacob Aguilar and Ivan Alvarado's motion to dismiss [Dkt. Nos. 96 & 97], to which Plaintiff responded, see Dkt. No. 120, and Defendants replied, see Dkt. No. 138 and
8. Defendants Eddie Williams and Richard Alford's motion to dismiss [Dkt. Nos. 99 & 107], to which Plaintiff responded, see Dkt. No. 137, and Defendants replied, see Dkt. No. 151.

         Many of the grounds for dismissal, most notably statute of limitations, overlap. This reason - and Plaintiff's casting his allegations under so many novel theories of liability but including so few specific facts (if any) to support each allegation - require the undersigned to generally address the motions together. Because the undersigned recommends leave to amend, this approach does not prejudice Plaintiff.

         After considering the motions and the parties' extensive briefing, the undersigned enters these findings of fact, conclusions of law, and recommendation that, to the extent and for the reasons explained below, the Court should grant the eight motions to dismiss without prejudice to Plaintiff's filing, within a reasonable time that the Court sets, one final amended complaint that cures all deficiencies noted below, but the Court should require Plaintiff to move for leave to continue to prosecute this action anonymously and should deny the pending motion to strike made under Federal Rule of Civil Procedure 12(f).

         Applicable Background

         Further details of Plaintiff's allegations will be discussed below as necessary to address his claims. But, briefly, Plaintiff was taken into immigration custody and detained in Johnson County in November 2015. He suffered a seizure there that month and was transported to a local hospital.

         At the hospital, he alleges that he was sexually assaulted by a guard assigned to him. He reported the assault when he returned to the detention center. He was examined, and his wife filed a civil rights complaint with the Department of Homeland Security (“DHS”) related to the assault.

         On December 1, 2015, he took a polygraph exam. The next day, he was arrested for making a false report to a peace officer and received related disciplinary sanctions. Also on that day, DHS agents interview him regarding his sexual assault outcry.

         On either December 2 or December 3, he alleges that he was pepper-sprayed to force him out of his cell, after he refused to be taken to booking. He was then taken into segregation, where he alleges that he was prevented from contacting an attorney. And, after spending ten days in the criminal section of the jail, he posted bail and was transferred back to immigration detention.

         On December 12, 2015, he was transferred to an immigration processing center in Pearsall, Texas, where he was detained for five weeks. He posted bail and was released from immigration custody on January 2, 2016. The state prosecution for making a false report nevertheless continued. And immigration authorities continued to investigate Plaintiff's sexual assault allegation.

         On August 25, 2017, Plaintiff failed to appear for his trial on the state charge. On December 19, 2017, he was arrested, and an immigration detainer prevented his release from custody. After his return to custody, Plaintiff alleges that he was retaliated against, that his food was tampered with, and that he was pepper-sprayed a second time. He further alleges that, while he was in pretrial custody, the Johnson County Defendants and the LaSalle Defendants attempted to frame and entrap him.

         In May 2018, he was found not guilty on the making-a-false-report offense. He was then taken back into immigration custody. And, on September 28, 2018, he received a response to his civil rights complaint - DHS's office of civil rights and civil liberties “found concerns about [the Johnson County Sheriff's Office's] investigation and prosecution of you for making a false police report. Therefore, [the office] made a recommendation to ICE regarding decisions to prosecute sexual assault complainants.”


         As a preliminary matter, the Court should consider Plaintiff's use of a pseudonym. He has proceeded under the pseudonym John Roe based on an assertion that, “as a survivor of sexual assault, he may elect to conceal his true identity.” Dkt. No. 50 at 1 n.1 (citing Tex. Code Crim. Proc. art. 57.02). But he has voluntarily signed his actual name to pleadings and briefs multiple times. See, e.g., id. at 202.

         “Article 57.02 speaks to the use of a pseudonym to protect a victim's identity on documentation and in judicial proceedings and applies only after the victim completes a specified form and returns that form to law enforcement.” Cantu v. Rocha, 77 F.3d 795, 808 (5th Cir. 1996); cf. Johnson v. Sawyer, 47 F.3d 716, 734 n.37 (5th Cir. 1995) (“We recognize that occasionally statutes provide for the use in certain criminal proceedings of a victim's pseudonym. See, e.g., Tex. Code Crim. Proc. art. 57.02. We are aware, however, of no comparable statute, state or federal, authorizing a felony defendant's use of a pseudonym in the criminal proceedings against him.” (emphasis in original)).

         There is no evidence that Plaintiff has complied with the requirements of Article 57.02 or that Article 57.02 applies to this proceeding.

         Even so, the United States Court of Appeals for the Fifth Circuit recently examined a district court's application of “three factors common to anonymous-party suits that [the Court of Appeals has] said ‘deserve considerable weight.'” Doe v. McKesson, 922 F.3d 604, 615 n.6 (5th Cir. 2019) (quoting Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981)). “These are: (1) whether the plaintiff is ‘challeng[ing] governmental activity'; (2) whether the plaintiff will be required to disclose information ‘of the utmost intimacy'; and (3) whether the plaintiff will be ‘compelled to admit [his] intention to engage in illegal conduct, thereby risking criminal prosecution.'” Id. (quoting Stegall, 653 F.2d at 185).

         The plaintiff in McKesson moved the district court to allow him to proceed anonymously. And some factors may weigh in favor of allowing Plaintiff to do so as well. But, because Plaintiff failed to move the Court for leave to proceed anonymously initially, if the Court accepts these findings, conclusions, and recommendation - and if Plaintiff elects to file a second amended complaint to cure the deficiencies discussed herein - the Court should require that, when he files the amended complaint, he also file a separate motion for leave to continue to proceed anonymously that “demonstrates a privacy interest that outweighs the ‘customary and constitutionally embedded presumption of openness in judicial proceedings.'” Id. (quoting Stegall, 653 F.2d at 186); cf. Craig v. Harney, 331 U.S. 367, 374 (1947) (“What transpires in the court room is public property.”).

         Legal Standards

         In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted, the Court “accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205-06 (5th Cir. 2007). But a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face, ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and must plead those facts with enough specificity “to raise a right to relief above the speculative level, ” id. at 555.

         “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “A claim for relief is implausible on its face when ‘the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct.'” Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 796 (5th Cir. 2011) (quoting Iqbal, 556 U.S. at 679); see also Inclusive Communities Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 899 (5th Cir. 2019) (“Where the well-pleaded facts of a complaint do not permit a court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]' - ‘that the pleader is entitled to relief.'” (quoting Iqbal, 556 U.S. at 678 (quoting, in turn, Fed.R.Civ.P. 8(a)(2)))).

         While, under Federal Rule of Civil Procedure 8(a)(2), a complaint need not contain detailed factual allegations, a plaintiff must allege more than labels and conclusions, and, while a court must accept all of a plaintiff's allegations as true, it is “not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). A threadbare or formulaic recitation of the elements of a cause of action, supported by mere conclusory statements, will not suffice. See id. Instead, “to survive a motion to dismiss” under Twombly and Iqbal, a plaintiff need only “plead facts sufficient to show” that the claims asserted have “substantive plausibility” by stating “simply, concisely, and directly events” that the plaintiff contends entitle him or her to relief. Johnson v. City of Shelby, Miss., 574 U.S. 10, 135 S.Ct. 346, 347 (2014) (per curiam) (citing Fed.R.Civ.P. 8(a)(2)-(3), (d)(1), (e)); see also Inclusive Communities Project, 920 F.2d at 899 (“‘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 sense.'” (quoting Iqbal, 556 U.S. at 679; citing Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) (“[T]he degree of specificity necessary to establish plausibility and fair notice, and therefore the need to include sufficient factual allegations, depends on context.”))).

         Aside from “matters of which judicial notice may be taken under Federal Rule of Evidence 201, ” Inclusive Communities Project, 920 F.2d at 900 (citations omitted), a court cannot look beyond the pleadings in deciding a Rule 12(b)(6) motion. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). Pleadings in the Rule 12(b)(6) context include attachments to the complaint. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). Documents “attache[d] to a motion to dismiss are considered to be part of the pleadings, if they are referred to in the plaintiff's complaint and are central to her claim.” Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000) (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993)).

         While “the Fifth Circuit has not articulated a test for determining when a document is central to a plaintiff's claims, the case law suggests that documents are central when they are necessary to establish an element of one of the plaintiff's claims. Thus, when a plaintiff's claim is based on the terms of a contract, the documents constituting the contract are central to the plaintiff's claim.” Kaye v. Lone Star Fund V (U.S.), L.P., 453 B.R. 645, 662 (N.D. Tex. 2011). “However, if a document referenced in the plaintiff's complaint is merely evidence of an element of the plaintiff's claim, then the court may not incorporate it into the complaint.” Id.

         And a plaintiff may not amend his allegations through a response to a motion to dismiss. “[A] claim for relief” must be made through a pleading, Fed.R.Civ.P. 8(a), and a response to a motion is not among the “pleadings [that] are allowed” under the Federal Rules of Civil Procedure, Fed.R.Civ.P. 7(a); see Klaizner v. Countrywide Fin., No. 2:14-CV-1543 JCM (PAL), 2015 WL 627927, at *10 (D. Nev. Feb. 12, 2015) (“All claims for relief must be contained in a pleading. A response to a motion is not a pleading and it is improper for the court to consider causes of action not contained in the pleadings.” (citations omitted); cf. Crisco v. Lockheed Martin Corp., No. 4:10-cv-418-A, 2010 WL 3119170, at *2 n.2 (N.D. Tex. Aug. 4, 2010) (“Rule 8 requires that a statement of the court's jurisdiction be included in a ‘pleading,' and plaintiff's response to defendant's motion is not a pleading.” (citation omitted)).

         The undersigned therefore limits the analysis below to considering the allegations as made in Plaintiff's amended complaint [Dkt. No. 50].


         I. Shotgun Pleading

         In his amended complaint, Plaintiff pleads 70 separate claims. The first paragraph under each claim begins with some variation of “Plaintiff repeats, realleges, and incorporates herein each of the preceding and following paragraph as if fully set forth herein.” Claims presented in this “shotgun” manner lack substantive plausibility.

As opposed to the “short and plan statement” requirement contemplated by Rule 8, shotgun pleadings contain several counts within a complaint with each count “incorporating by reference the allegations of its predecessors, leading to a situation where most of the counts (i.e., all but the first) contain irrelevant factual allegations and legal conclusions.”

Copeland v. Axion Mortg. Group LLC, No. 1:16cv159-HSO-JCG, 2016 WL 4250431, at *4 (S.D.Miss. Aug. 11, 2016) (quoting Griffin v. HSBC Mortg. Servs., Inc., No. 4:14cv132-DMB-JMV, 2015 WL 4041657, at *5 (N.D. Miss. July 1, 2015) (quoting, in turn, Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellog Corp., 305 F.3d 1293, 1295 (11th Cir. 2002)); internal quotation marks omitted).

         Shotgun pleadings are subject to dismissal under Rule 12(b)(6), see id., particularly where - as shown by the multiplicity of claims here - “the pleader heedlessly throws a little bit of everything into his complaint in the hopes that something will stick, ” S. Leasing Partners, Ltd. v. McMullan, 801 F.2d 783, 788 (5th Cir. 1986). Asserting claims in this manner - that is, “by merely attaching a label and/or legal conclusion to no facts unique to that claim or, at best, threadbare unique facts - is not sufficient to state a claim that is plausible on its face.” Lowe v. Dallas Police Dep't, No. 3:17-cv-704-G-BN, 2017 WL 4863076, at *9 (N.D. Tex. Oct. 17, 2017), rec. adopted, 2017 WL 4838980 (N.D. Tex. Oct. 26, 2017).

         While Plaintiff's amended complaint does contain factual material, most claims as currently pled “lack sufficient facts to support an inference that [the] defendant[(s)] is responsible for [that] particular harm to [Plaintiff] - therefore there is no ‘more than the mere possibility of misconduct,' which, of course, is not enough to state a plausible claim.” Id. (quoting Iqbal, 556 U.S. at 679; citing Robbins, 519 F.3d at 1247 (“The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” (quoting Twombly, 550 U.S. at 556))).

         This pleading deficiency is reason enough to grant all eight Rule 12(b)(6) motions to dismiss. But additional - more specific - reasons discussed below also require that the Court grant the motions to dismiss.

         II. Limitations

         A. Legal Standards

         Multiple defendants move to dismiss Plaintiff's claims accruing prior to September 19, 2016, two years prior to the date that he filed this action. See Dkt. No. 4; see also Dkt. Nos. 76 (Johnson County Defendants); Dkt. Nos. 77 & 78 (Matson); Dkt. Nos. 79 & 88 (LaSalle Defendants); Dkt. No. 81 (Roden); Dkt. Nos. 96 & 97 (Aguilar and Alvarado); Dkt. Nos. 99 & 107 (Williams); cf. King-White v. Humble Indep. Sch. Dist., 803 F.3d 754, 758 (5th Cir. 2015) (“A statute of limitations may support dismissal under Rule 12(b)(6) where it is evident from the plaintiff's pleadings that the action is barred and the pleadings fail to raise some basis for tolling or the like.” (quoting Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003))).

         Plaintiff primarily asserts civil rights claims against government actors under 42 U.S.C. §§ 1983 and 1985 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). See Dkt. No. 50 at 51-169, 192-200. Regardless whether these claims are asserted against state or federal actors, “[b]ecause there is no federal statute of limitations for § 1983 and Bivens claims, federal courts apply the general personal injury limitations period and tolling provisions of the forum state, ” Starks v. Hollier, 295 Fed.Appx. 664, 665 (5th Cir. 2008) (per curiam) (citing Brown v. Nationsbank Corp., 188 F.3d 579, 590 (5th Cir. 1999); Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993)).

         As such, there claims are governed by Texas's two-year, personal-injury limitations statute. See, e.g., Helton v. Clements, 832 F.2d 332, 334 (5th Cir. 1987) (“Civil rights actions brought under 42 U.S.C. §§ 1981, 1983, 1985, and 1988 are deemed analogous to Texas tort actions, and therefore, the applicable limitations period is ... two years.” (citations omitted)); Shelby v. City of El Paso, Tex . , 577 Fed.Appx. 327, 331 (5th Cir. 2014) (per curiam) (“[O]ur cases have consistently held that ‘[t]he statute of limitations for a suit brought under § 1983 is determined by the general statute of limitations governing personal injuries in the forum state.'” (quoting Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001)).

         Texas's two-year statute of limitations for personal injury actions, see Tex. Civ. Prac. & Rem. Code § 16.003, also applies to Plaintiff's various state law tort claims, see Dkt. No. 50 at 170-92. But, to the extent that Plaintiff alleges state law claims based on “any injury that ‘arises as a result' of sexual assault, ” it appears that Texas's “five-year statute of limitations applies.” Hernandez v. Baylor Univ., 274 F.Supp.3d 602, 624 (W.D. Tex. 2017) (quoting Tex. Civ. Prac. & Rem. Code § 16.0045(b))[1]; ...

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