United States District Court, E.D. Texas, Sherman Division
SUZANNE M. STANTON
CLAY HEIBERG, ET AL.
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
L. MAZZANT UNITED STATES DISTRICT JUDGE.
for consideration the report of the United States Magistrate
Judge in this action, this matter having been heretofore
referred to the Magistrate Judge pursuant to 28 U.S.C. §
636. On July 25, 2019, the report of the Magistrate Judge
(Dkt. #56) was entered containing proposed findings of fact
and recommendations that Defendant Collin County’s
Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) (Dkt.
#18) and Defendant Ocwen Loan Servicing, LLC’s Motion
to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) (Dkt. #20) each
be granted. Having received the report of the Magistrate
Judge, having considered Plaintiff Suzanne M. Stanton’s
construed Objections (Dkt. #59), Defendants’ Responses
(Dkts. #60; #61), and Plaintiff’s Replies (Dkts. #62,
#63; #64), and having conducted a de novo review, the Court
is of the opinion that the Magistrate Judge’s report
should be adopted.
underlying facts of this case have been set forth previously
(see Dkt. #56); as such, the Court sets forth only
those facts pertinent to Plaintiff’s Objections.
Plaintiff filed the instant law suit on June 11, 2018 (Dkt.
#1). In her Complaint, Plaintiff posits that “[t]his is
an action for money damages, declaratory, and injunctive
relief brought pursuant to 42 U.S.C. §§ 1983 and
1988, the Sixth and Fourteenth Amendments to the United
States Constitution, and under the laws of the State of
Texas, against defendants Clay Heiberg, and Ocwen Loan
Servicing, LLC, in their individual and corporate capacities
and against the County of Collin, Texas and John Does
1–20” (Dkt. #1 at p. 2). As to Defendants Heiberg
and Collin County, Plaintiff contends that:
[D]efendant Clay Heiberg (“Defendant Heiberg”),
as part of an illegal and fraudulent scheme engineered with
employees of Collin County, Texas, illegally and fraudulently
caused Plaintiffs lawful husband, Gregory L. Collins
(“Decedent”), who was diagnosed as being
terminally ill, to be spirited out of the State of Texas to
Tennessee where Heiberg used fraudulent powers of attorney to
file a fraudulent Last Will and Testament to open a Tennessee
estate for the Decedent with Heiberg as executor thereof,
after which Heiberg illegally and wrongfully seized and
wasted all the assets of the estate of the Decedent.
By wrongfully spiriting the Decedent out of the State of
Texas to Tennessee, and thereafter depriving the Decedent of
critically-needed medical care and treatment, Defendant
Heiberg wrongfully accelerated the rate of the Decedent s
physical deterioration with the result that the Decedent died
much sooner than when Decedent otherwise would have died,
assuming the Decedent had been allowed continue to receive
the care specified in Decedent’s Texas medical
treatment plan without Heiberg’s interference.
(Dkt. #1 at pp. 2–3). Regarding Defendant Ocwen,
Plaintiff asserts that “[Defendant Ocwen] has conspired
with and aided and abetted Defendant Heiberg by entering into
a false, fraudulent ‘settlement’ agreement with
Defendant Heiberg in Heiberg’s fraudulent capacity as
‘executor’ for the Decedent, whereby Defendant
Ocwen attempted to wrongfully foreclose upon and seize real
property belonging to the Estate of the Decedent, thereby
wrongfully depriving Plaintiff” (Dkt. #1 at p. 6).
September 12, 2018, Defendant Collin County filed its Motion
to Dismiss asserting that Plaintiff’s claims failed as
Collin County does not control probate proceedings, any
request for monetary damages or injunctive relief under 42
U.S.C. § 1983 must fail because Plaintiff does not
identify any official policy or custom which caused her to be
deprived of a federally protected right, and further that a
governmental entity cannot be held vicariously liable under
42 U.S.C. § 1983 for purported unconstitutional acts
committed by its employees (Dkt. #18 at pp.7–9). On
September 17, 2018, Defendant Ocwen filed its Motion to
Dismiss alleging that Plaintiff’s claims fail under 42
U.S.C. §§ 1983 and 1988 because Ocwen is not a
state actor subject to liability under those statutes (Dkt.
#20 at pp. 3–6). On July 25, 2019, the Magistrate Judge
entered a report, recommending that Defendant Collin
County’s and Defendant Ocwen’s Motions to Dismiss
each be granted and Plaintiff’s claims against all
Defendants, including Defendant Heiberg, be dismissed with
prejudice, and, to the extent Plaintiff asserts Tennessee
state law claims for wrongful death and/or fraud, such state
law claims should be dismissed without prejudice (Dkt. #56 at
p. 13). On August 7, 2019, Plaintiff filed a document
entitled “Answer to Judge Nowak’s Recommendation
and Report Filed 7-25-19” (Dkt. #59), which the Court
construes as objections to the report. Therein, Plaintiff
asserts that “[t]his case should not be dismissed.
Collin County is responsible for the wrongful death of my
husband as you will see in the facts presented to you”
(Dkt. #59 at p. 1). Defendants Ocwen and Collin County filed
responses to Plaintiff’s construed objections on August
22, 2019 (Dkts. #60; #61) and Plaintiff filed replies
thereafter (Dkts. #62; #63; #64).
TO REPORT AND RECOMMENDATION
who files timely written objections to a magistrate
judge’s report and recommendation is entitled to a de
novo review of those findings or recommendations to which the
party specifically objects. 28 U.S.C. § 636(b)(1)(C);
Fed.R.Civ.P. 72(b)(2)-(3). Objections to a report must
specifically identify portions of the report and the basis
for those objections. Fed.R.Civ.P. 72(b); see also Battle
v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir.
1987) (explaining that if the party fails to properly object
because the objections lack the requisite specificity, then
de novo review by the court is not required.). In other
words, a party objecting to a magistrate judge’s report
must specifically identify those findings to which he or she
objects. Moreover, the District Court need not consider
frivolous, conclusory, or general objections. Nettles v.
Wainwright, 677 F.2d 404, 410 n.8 (5th Cir. 1982) (en
banc), overruled on other grounds by Douglass v.
United Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir.
1996) (en banc).
does not specify in her objections those findings in the
report to which she objects; rather, Plaintiff merely broadly
asserts that “[t]his case should not be
dismissed” based on the factual allegations presented
in her filing (Dkt. #59 at p. 1). In response to
Plaintiff’s broad assertion, Defendant Ocwen states:
[A] fundamental part of Plaintiff’s claims against
Ocwen is that Ocwen must be a “state actor” for
purposes of §§ 1983 and 1988. Plaintiff’s
Response failed to address this essential element of her
claim and dismissal is appropriate. Her objections
provide no reason for t his Court to disturb the findings of
the Magistrate in her Report. Her Objections are a narrative
of Mr. Collins’s illness, his treatments, probate
issues, and his unfortunate passing. Yet they provide no
reason, nor was one shown in her Response, that refutes
Ocwen’s contention that it was not a state actor for 42
U.S.C. § 1983 purposes.
(Dkt. #60 at p. 3) (emphasis added). Defendant Collin County
similarly concurs that “Plaintiff’s
‘Objections’ do not appear to address, let alone
rebut, the ground(s) found by the Magistrate Judge for