United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
ROSENTHAL, CHIEF UNITED STATES DISTRICT JUDGE
McGinnis sued Harris County, Texas and the Klein Independent
School District in state court, asserting claims for trespass
to land, civil conspiracy, and violations of her Fourth
Amendment rights through 42 U.S.C.§ 1983. She alleged
that the defendants intentionally violated her rights and
damaged her property when deputies from the Harris County
Sheriff's Office executed a warrant and searched her
home. (Docket Entry No. 8). Klein ISD timely removed under 28
U.S.C. §§ 1331 and 1446(a). (Docket Entry No. 1).
Both defendants have now filed motions to dismiss under
Federal Rule of Civil Procedure 12(b)(1), 12(b)(5), and
12(b)(6). (Docket Entries Nos. 10 &16). Ms. McGinnis
filed her response to the defendants' motions over two
weeks past the extended deadline she sought, and received, in
her second motion for extension of time. (Docket Entry No.
21). Klein ISD opposes the late filing of Ms. McGinnis's
response to the motions to dismiss. (Docket Entry No. 27).
Without addressing the timeliness of the response, and
instead considering the arguments it raises, the court grants
both Harris County and Klein ISD's motions to dismiss.
The reasons are set out below.
McGinnis lives with a minor child, F.W.P., in Houston, Texas.
(Docket Entry No. 8, ¶ 9). F.W.P. attends elementary
school in the Klein Independent School District.
(Id.). On February 16, 2017, F.W.P.'s principal
reported that a green, leafy substance had fallen from
F.W.P.'s pocket. (Id.). Based on the
principal's report, Jonathan Sandel, a Harris County
Deputy Sheriff, drafted an affidavit requesting a search
warrant for the McGinnis home. (Id. at ¶ 10).
Based on the affidavit, a Harris County district judge issued
a search warrant for the home. (Id.). Ms. McGinnis
alleges that during their search, the Harris County
Sheriff's deputies destroyed some of her personal
property. They found no drugs or other evidence of criminal
activity. (Id. at ¶ 11).
McGinnis now claims that Harris County, through the
Sheriff's Office, entered the home without her
permission; that Klein ISD, in conjunction with Harris
County, conspired against Ms. McGinnis to commit the tort of
trespass to land and to violate her Fourth Amendment Rights;
and that Klein ISD, through its own police officers,
communicated information to the Harris County Sheriff's
Office that resulted in the unreasonable search and seizure
of her personal property without probable cause.
(Id. at ¶¶ 15, 18-20, 23-25).
their motions to dismiss, Harris County and Klein ISD argue
that governmental immunity bars Ms. McGinnis's state law
tort claims. (Docket Entries Nos. 10 & 16). They also
argue that her amended complaint does not plead sufficient
facts to state a claim for her federal conspiracy and §
1983 claims. (Docket Entries Nos. 10 &16). At the hearing
on these motions, Ms. McGinnis did not argue her state-law
Dismissal under Rule 12(b)(1): Subject-Matter
as here, ‘a Rule 12(b)(1) motion is filed in
conjunction with other Rule 12 motions, the court should
consider the Rule 12(b)(1) jurisdictional attack before
addressing any attack on the merits.'” In re
Great Lakes Dredge & Dock Co., 624 F.3d 201, 209
(5th Cir. 2010) (quoting Ramming v. United States,
281 F.3d 158, 161 (5th Cir. 2001)). This jurisdictional
approach prevents courts from issuing advisory opinions.
Steel Co. v. Citizens for a Better Env't, 523
U.S. 83, 101, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).
County argues that, as a governmental unit, it is immune from
suit for intentional torts, including trespass to land.
“In Texas, sovereign immunity deprives a trial court of
subject-matter jurisdiction for lawsuits in which the state
or certain governmental units have been sued unless the state
consents to suit.” Texas Dept. of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004).
While the Texas Tort Claims Act does waive governmental
immunity for some tort claims, the Act does not waive
immunity for most intentional torts. See Tex. Civ.
Prac. & Rem. Code § 101.057(2); Id. §
101.001(3)(B) (including counties in the definition of
“governmental units” for purposes of the Texas
Tort Claims Act); see also Hidalgo Cty. v. Dyer, 538
S.W.3d 698, 704 (Tex. App.-Corpus Christi 2011, no pet.)
(“Although Dyer attempts to characterize his trespass
claim as a negligence claim, Dyer's petition alleges
intentional conduct for which there is no waiver of
pleading, Ms. McGinnis alleges that Harris County, through
its Sheriff's Office, intentionally entered her property
without her permission. (Docket Entry No. 8, ¶ 15). As a
governmental unit, Harris County is immune from suit for
intentional torts, including trespass to land. See
Tex. Civ. Prac. & Rem. Code § 101.057(2);
Dyer, 538 S.W.3d at 704. Governmental immunity
deprives this court of subject-matter jurisdiction under
Miranda. 133 S.W.3d at 224. Harris County's
motion to dismiss Ms. McGinnis's trespass-to-land claim
under Rule 12(b)(1) is granted.
McGinnis's state-law civil conspiracy claim fares no
better. Both Harris County and Klein ISD assert that they are
immune from this claim as governmental units. (Docket Entries
Nos. 10 & 16). Klein ISD, like Harris County, meets the
definition of a governmental unit under the Texas Tort Claims
Act. Tex. Civ. Prac. & Rem. Code § 101.001(3)(B).
Civil conspiracy, like trespass to land, is an intentional
tort that governmental units cannot be held liable for under
Texas law. TCI West End, Inc. v. City of Dallas, 274
S.W.3d 913, 921 (Tex. App.-Dallas 2008, no pet.)
(“Assuming without deciding that a cause of action
exists for a conspiracy to take claim, the Texas Tort Claims
Act provides that sovereign immunity exists for intentional
torts, such as conspiracy.”). Because Klein ISD and
Harris County are immune from civil conspiracy suits, this
court has no jurisdiction to hear this claim.
Miranda, 133 S.W.3d at 224. Klein ISD and Harris
County's motion to dismiss Ms. McGinnis's state-law
civil conspiracy claim under Rule 12(b)(1) is granted.
Dismissal under Rule 12(b)(6): Failure to State a
ISD and Harris County further assert that Ms. McGinnis fails
to state a claim for federal civil conspiracy and violation
of her Fourth Amendment rights. Rule 12(b)(6) allows
dismissal if a plaintiff fails “to state a claim upon
which relief can be granted.” Fed.R.Civ.P. 12(b)(6).
Rule 12(b)(6) must be read in conjunction with Rule 8(a),
which requires “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a). Claims may be dismissed under Rule
12(b)(6) if the complaint does not contain “enough
facts to state a claim to relief that is plausible on its
face.” Bel Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). Rule 8 “does not require
‘detailed factual allegations,' but it demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Twombly, 550 U.S. at 556).
“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.” Id. (citing (citing
Twombly, 550 U.S. at 556). “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. (citing Twombly, 550 U.S. at 556).
should generally give a plaintiff at least one chance to
amend under Rule 15(a) before dismissing the action with
prejudice for factual pleading insufficiency, unless doing so
would be futile. See Pervasive Software, Inc. v. Lexware
GmbH & Co. KG, 688 F.3d 214, 232 (5th Cir. 2012)
(“[Rule 15(a) ] evinces a bias in favor of ...