United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN UNITED STATES MAGISTRATE JUDGE.
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].
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.
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.
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
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).
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.
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.
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.
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.
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.
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
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
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.
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)).
is no evidence that Plaintiff has complied with the
requirements of Article 57.02 or that Article 57.02 applies
to this proceeding.
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).
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.”).
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.
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)))).
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.”))).
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)).
“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.”
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
undersigned therefore limits the analysis below to
considering the allegations as made in Plaintiff's
amended complaint [Dkt. No. 50].
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
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).
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))).
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.
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))).
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)).
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)).
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)); ...