United States District Court, E.D. Texas, Sherman Division
SUZANNE H. WOOTEN
JOHN ROACH, SR., CHRISTOPHER MILNER, COLLIN COUNTY, TEXAS, GREGORY ABBOTT and HARRY EUGENE WHITE
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE
before the Court are Defendants John Roach, Sr. and
Christopher Milner's (“CCDAO Defendants”)
First Amended Motion to Dismiss Pursuant to Fed.R.Civ.P.
12(b)(6) (Dkt. #59), Defendant Collin County, Texas'
(“the County”) First Amended Motion to Dismiss
Pursuant to Fed.R.Civ.P. 12(b)(6) (Dkt. #60), and Defendants
Abbott and White's (“AG Defendants”) Motion
to Dismiss Putative Second Amended Complaint (Dkt. #61).
Having considered the motions and the relevant pleadings, the
Court finds that the CCDAO Defendants' and AG
Defendants' motions (Dkt. #59; Dkt. #61) should be
granted in part and denied in part and the County's
motion (Dkt. #60) should be denied.
alleged by Plaintiff Suzanne H. Wooten, on March 4, 2008,
Plaintiff defeated incumbent Judge Charles Sandoval in the
Republican primary election for the 380th District Court
Judge in Collin County, Texas by a landslide. The next day,
Judge Sandoval approached the Collin County District
Attorney's Office (the “CCDAO”) to complain
about Plaintiff, asserting that she cheated during the
election and he wanted the CCDAO to find a crime against her.
After this meeting, the CCDAO took it upon itself to
investigate Plaintiff's campaign without the assistance
of law enforcement. Eventually, the Office of the Attorney
General (the “OAG”), joined in the
case against Plaintiff. The investigation lasted over two
years before Plaintiff was initially indicted on October 14,
2010, with the final indictment filed on July 14, 2011.
theory of the criminal investigation and prosecution against
Plaintiff was that a married couple, David Frederick Cary and
Stacy Stine Cary (“the Carys”), gave itemized
monetary contributions to Plaintiff, through the Carys'
consultant who also happened to be Plaintiff's media
consultant, James Stephen Spencer (“Spencer”).
The Carys and Spencer were Plaintiff's co-defendants in
the criminal prosecution. Plaintiff and the Carys were all
tried separately, and convicted by three different juries.
Specifically, Plaintiff's jury found her guilty of six
counts of bribery, one count of engaging in organized
criminal activity, one count of money laundering, and one
count of tampering with a governmental record. After these
three trials, Spencer took a plea deal. The Carys appealed
their convictions. The Dallas Court of Appeals affirmed Stacy
Cary's conviction but several months later a different
panel determined David Cary should be acquitted on all
counts. Both cases were then appealed to the Texas Court of
Criminal Appeals. On December 14, 2016, the Texas Court of
Criminal Appeals determined that the Carys should be
acquitted on all counts, as the allegations against the Carys
were not actually a crime pursuant to the relevant statutes.
Stacy Cary v. State, 507 S.W.3d 750 (2016);
David Cary v. State, 507 S.W.3d 761 (2016).
on these holdings, on May 10, 2017, Plaintiff filed her First
Amended Application for 11.072 Writ of Habeas Corpus
Declaring Actual Innocence as a Matter of Law with the 366th
Judicial District in Collin County, Texas. On May 24, 2017,
the 366th Judicial District in Collin County granted the
requested relief “finding the evidence presented
legally insufficient because the allegations, even if true,
were not crimes under Texas law.” (Dkt. #3 at p. 1).
The 366th Judicial District in Collin County further
determined that because the evidence was legally insufficient
to convict her of the nine felony charges, there had been a
“violation of the Applicant's due process
rights.” (Dkt. #3 at p. 1).
on this set of facts, Plaintiff filed suit on May 23, 2018
(Dkt. #1). On May 29, 2018, Plaintiff amended her complaint
(Dkt. #10) suing the CCDAO Defendants, the AG Defendants, and
the County for violation of her due process rights, violation
of the Fourth Amendment, conspiracy to deprive constitutional
rights, and malicious prosecution, among other causes of
action and theories of liability. On April 10, 2019,
Plaintiff filed an amended complaint (Dkt. #42). On April 24,
2019, the CCDAO Defendants (Dkt. #59), the AG Defendants
(Dkt. #61), and the County (Dkt. #60) filed their present
motions to dismiss. Plaintiff responded to the CCDAO
Defendants' (Dkt. #66), the AG Defendants' (Dkt.
#65), and the County's (Dkt. #64) motions on May 8, 2019.
The AG Defendants filed a reply in support of their motion on
May 15, 2019 (Dkt. #73). The CCDAO Defendants (Dkt. #77) and
the County filed replies on March 20, 2019 (Dkt. #78). On May
22, 2019, Plaintiff filed a sur-reply to the AG
Defendants' motion (Dkt. #79). Finally, on May 31, 2019,
Plaintiff filed sur-replies to the CCDAO Defendants'
motion (Dkt. #80) and the County's motion (Dkt. #81).
Federal Rules of Civil Procedure require that each claim in a
complaint include a “short and plain statement . . .
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). Each claim must include enough factual
allegations “to raise a right to relief above the
speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
12(b)(6) motion allows a party to move for dismissal of an
action when the complaint fails to state a claim upon which
relief can be granted. Fed.R.Civ.P. 12(b)(6). When
considering a motion to dismiss under Rule 12(b)(6), the
Court must accept as true all well-pleaded facts in the
plaintiff's complaint and view those facts in the light
most favorable to the plaintiff. Bowlby v. City of
Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012). The Court
may consider “the complaint, any documents attached to
the complaint, and any documents attached to the motion to
dismiss that are central to the claim and referenced by the
complaint.” Lone Star Fund V (U.S.), L.P.
v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010).
The Court must then determine whether the complaint states a
claim for relief that is plausible on its face. “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the [C]ourt to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Gonzalez v. Kay, 577 F.3d
600, 603 (5th Cir. 2009) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). “But where the well-pleaded
facts do not permit the [C]ourt 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.'” Iqbal, 556 U.S. at
679 (quoting Fed.R.Civ.P. 8(a)(2)).
Iqbal, the Supreme Court established a two-step
approach for assessing the sufficiency of a complaint in the
context of a Rule 12(b)(6) motion. First, the Court should
identify and disregard conclusory allegations, for they are
“not entitled to the assumption of truth.”
Iqbal, 556 U.S. at 664. Second, the Court
“consider[s] the factual allegations in [the complaint]
to determine if they plausibly suggest an entitlement to
relief.” Id. “This standard
‘simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence of the
necessary claims or elements.'” Morgan v.
Hubert, 335 Fed.Appx. 466, 470 (5th Cir. 2009) (citation
omitted). This evaluation will “be a context-specific
task that requires the reviewing court to draw on its
judicial experience and common sense.” Iqbal,
556 U.S. at 679.
“[t]o survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.”' Id. at 678 (quoting
Twombly, 550 U.S. at 570).
response to Plaintiff's Second Amended Complaint, the
CCDAO Defendants, the AG Defendants, and the County each
filed motions to dismiss. However, prior to addressing these
motions, the Court needs to address its jurisdiction to
accept the new factual allegations added to Plaintiff's
complaint and to decide the motions to dismiss filed in this
Court's Jurisdiction Over the Matters not on
March 27, 2019, the Court issued its Order on Defendants'
Initial Motions to Dismiss (Dkt. #39) (“Court's
Initial Order”). Defendants initially moved to dismiss
Plaintiff's claims based on absolute prosecutorial
immunity, qualified immunity, official immunity under state
law, failure to state a claim under a Monell theory,
statute of limitations, and failure to state a claim as to
punitive damages. In summary, the Court decided that: (1) the
CCDAO Defendants, at this stage in the litigation, are not
entitled to prosecutorial immunity; (2) some of the AG
Defendants' actions are covered by prosecutorial immunity
and some are not; (3) the AG Defendants are not entitled to
official immunity; (4) Plaintiff plausibly stated a valid
claim using a Monell theory against the County; (5)
Plaintiff plausibly pleaded a timely claim; (6) there is no
plausible claim for punitive damages against the County; and
(7) there is a plausible claim of punitive damages against
the CCDAO Defendants. However, the Court did not decide the
issue of qualified immunity. The Court stated that
“[d]ue to the nature of qualified immunity, the Court
finds allowing the Plaintiff to replead will assist the Court
in deciding qualified immunity.” (Dkt. #39 at p. 14).
The Court further explained in a footnote:
For example, in her complaint: (1) Plaintiff does not mention
her probation, which is a basis for a deprivation of liberty
in her procedural due process claim; (2) lacks factual
details surrounding her arrest, which is the basis for her
false arrest claim; (3) could contain more specifics
surrounding her supervisory liability and failure to
intervene claims; and (4) could be more specific as to her
due process claim- whether she seeks only procedural or also
substantive due process and what property and liberty
interests are alleged, although some of this information is
contained in the briefing, it could be more clearly
identified in the complaint. The Court does not hold that any
of the areas are insufficient or that there are no other
areas that could be clarified, but merely provides some
examples of where some additional clarity could be helpful to
(Dkt. #39 at p. 14 n.7). Finally, in the conclusion of the
Order, the Court denied as moot the portions of the initial
motions to dismiss involving the defense of qualified
immunity, ordered Plaintiff to file an amended
complaint within fourteen days of the order and
allowed the Defendants to reurge their motions to dismiss,
narrowing the issues to be discussed in the reurged motions
to Plaintiff's constitutional claims and the defense of
qualified immunity. (Dkt. #39 at p. 22).
April 9, 2019, the CCDAO Defendants and the AG Defendants
filed a notice of interlocutory appeal,  appealing the
Court's ruling denying the motions to dismiss on
prosecutorial immunity grounds. The next day, on April 10,
2019, Plaintiff filed an amended complaint to clarify the
qualified immunity issue. Thereafter, on April 17, 2019, the
County, the AG Defendants, and the CCDAO Defendants
(collectively, “Defendants”) filed their Joint
Advisory Regarding Interlocutory Appeal (Dkt. #43). On April
18, 2019, Plaintiff filed a response to the notice (Dkt.
#44). On April 19, 2019, the AG Defendants filed a reply to
the notice (Dkt. #46) as did the CCDAO Defendants and the
County (Dkt. #49). Finally, on April 22, 2019,
Plaintiff filed a sur-reply to the AG Defendants (Dkt. #52)
and the CCDAO Defendants and the County (Dkt. #53).
their Joint Advisory, Defendants assert that the filing of
their interlocutory appeals “immediately divested this
Court of jurisdiction to proceed against Defendants.”
(Dkt. #43 at p. 2) (citations omitted). Defendants maintain
that because the Court was divested of jurisdiction based on
the appeal, it has no authority to accept Plaintiff's
amended complaint. (Dkt. #43 at p. 2) (citations omitted).
Defendants then request “the Court [to] issue an order
making clear that it lacks jurisdiction while this matter is
pending on appeal” or “[i]f the Court believes
that it retains jurisdiction, Defendants respectfully request
an order stating the Court's understanding.” (Dkt.
#43 at p. 2). Plaintiff counters that the Court is only
divested of jurisdiction regarding the matters on appeal and
is permitted to proceed on matters not on appeal. According
to Plaintiff, qualified immunity is a matter that is not on
appeal. With these arguments presented, the Court turns to
the law on the issue.
[A] federal district court and a federal court of appeals
should not attempt to assert jurisdiction over a case
simultaneously[. Thus, t]he filing of a notice of appeal is
an event of jurisdictional significance-it confers
jurisdiction on the court of appeals and divests the district
court of its control over those aspects of the case involved
in the appeal.
Griggs v. Provident Consumer Disc. Co., 459 U.S. 56,
58 (1982) (citations omitted). The Fifth Circuit further
explains that “[a] notice of appeal from an
interlocutory order does not produce a complete divesture of
the district court's jurisdiction over the case; rather,
it only divests the district court of jurisdiction over those
aspects of the case on appeal.” Alice L. v.
Dusek, 492 F.3d 563, 564 (5th Cir. 2007). “[W]here
an appeal is allowed from an interlocutory order, the
district court may still proceed with matters not involved in
the appeal.” Id. at 564-65 (quoting Taylor
v. Sterret, 640 F.2d 663, 667-68 (5th Cir. 1981)).
“How broadly a court defines the aspects of the case on
appeal depends on the nature of the appeal.”
Id. at 565.
the nature of the appeal in this case, based on the unique
procedural history of this case, is whether absolute
prosecutorial immunity applies to Plaintiff's claims
against the CCDAO Defendants and the AG Defendants. What
remains-that is, what has not already been decided by the
Court and is not before the Fifth Circuit-is whether
qualified immunity applies to Plaintiff's constitutional
claims against the CCDAO Defendants and AG Defendants. While
qualified immunity and prosecutorial immunity apply to the
same causes of action, the analysis of the separate
arguments, legal principles, and facts surrounding the
defenses are different. There is no possibility that the
Court, in deciding the motions to dismiss currently pending,
will decide an issue or an aspect that the Fifth Circuit will
decide in the current appeal.
so, Defendants argue that the Court does not have
jurisdiction to accept the amended complaint, citing May
v. Sheehan, 226 F.3d 876 (7th Cir. 2000). Although not
binding precedent in the Fifth Circuit, the Seventh Circuit
in May held that after the plaintiff filed an
interlocutory appeal regarding a district court's
grant of a motion to dismiss on qualified
immunity grounds, the district court lacked jurisdiction to
accept an amended complaint from the plaintiff. Id.
at 879. The Seventh Circuit explained that an amended
complaint supersedes the previous complaint. Id.
Thus, if the district court were permitted to accept an
amended complaint, the original complaint would be superseded
and the motion to dismiss filed in response to that initial
complaint would be rendered moot. Id. Because the,
now moot, motion to dismiss was the motion on appeal, the
appeal would also be rendered moot. Id. As such,
because the district court accepting an amended complaint
would affect the appeal, the district court does not have
authority to accept the amended complaint, according to the
Seventh Circuit. Id.
Court finds it unnecessary to decide whether, in the Fifth
Circuit, the Court can accept an amended complaint while a
matter is on appeal based on a motion to dismiss a complaint.
In this case, although the Court stated that Plaintiff was
permitted to file an amended complaint, it is clear from the
nature of the Court's Initial Order that the Court
intended Plaintiff to supplement her complaint with
additional allegations regarding her constitutional claims
solely for purposes of analyzing qualified immunity at this
stage. Accordingly, the Court finds that
Plaintiff's Second Amended Complaint is in fact a
supplement to her First Amended Complaint and does not
supersede the First Amended Complaint. Thus, there is no
issue regarding whether the complaint that was the basis of
the Court's Initial Order is still the live complaint,
and there is no mootness issue with the appeal currently
pending. As such, the Court has jurisdiction to proceed at
Motions to Dismiss
the Court has jurisdiction to accept the supplement to the
complaint, the Court has jurisdiction to consider the renewed
motions to dismiss filed by the CCDAO Defendants, the AG
Defendants, and the County. The Court notes that Defendants
filed their motions to dismiss based on a wide variety of
defenses and issues, some of which have been previously ruled
on and/or are currently on appeal. The CCDAO Defendants move
to dismiss Plaintiff's claims asserted against them based
on: (1) failure to state personal involvement of District
Attorney Roach; (2) absolute prosecutorial immunity; (3)
qualified immunity; (4) official immunity; (5) statute of
limitations; (6) failure to plead a cognizable constitutional
violation, including the Due Process Clause, false arrest,
malicious prosecution, and conspiracy; and (7) failure to
demonstrate “ultra vires” actions. The AG
Defendants move to dismiss on (1) absolute immunity; (2)
qualified immunity; (3) official immunity; (4) statute of
limitations; and (5) failure to state a claim. The County
moves to dismiss Plaintiff's complaint arguing (1)
Plaintiff has not stated a proper Monell theory of
liability, not presenting a policy maker or an official
policy; (2) Plaintiff's claims are barred by statute of
limitations; (3) Collin County is immune based on the CCDAO
Defendants' immunity; and (4) Plaintiff failed to state a
plausible claim The Court has already addressed absolute
prosecutorial immunity as to the CCDAO Defendants and the AG
Defendants, a Monell theory of
liability as to the County,  statute of
limitations, and official immunity as to the AG Defendants.
Moreover, the Court's decision regarding absolute
prosecutorial immunity is currently on appeal. The Court does
not address these arguments again but turns to the questions
that remain unanswered.
Personal Involvement, Supervisory Liability, and Failure to
CCDAO Defendants argue that Plaintiff did not allege Roach
was personally involved in the investigation, indictment, and
ultimate conviction of Plaintiff. Accordingly, the CCDAO
Defendants maintain that Plaintiff cannot sustain a §
1983 claim against Roach. Additionally, the AG Defendants
allege that Plaintiff has not stated a plausible claim for
supervisory liability or failure to intervene against Abbott.
Plaintiff counters that Roach and Abbott were personally
involved in the violation of her civil rights and her
complaint contains allegations of such involvement. Plaintiff
also pleads a cause of action for supervisory liability and
failure to intervene.
a prerequisite [to § 1983 liability], a plaintiff must
identify defendants who were either personally involved in
the constitutional violation or whose acts are causally
connected to the constitutional violation alleged.”
Roberts v. City of Shreveport, 397 F.3d 287, 292
(5th Cir. 2005) (quoting Woods v. Edwards, 51 F.3d
577, 583 (5th Cir. 1995)); see also Thompson v.
Steele, 709 F.2d 381, 382 (5th Cir. 1983)
(“Personal involvement is an essential element of a
civil rights cause of action.”); Lozano v.
Smith, 718 F.2d 756, 768 (5th Cir. 1983) (same). When
alleging a § 1983 claim, a plaintiff may not establish
liability against a government entity through respondeat
superior. Deville v. Marcantel, 567 F.3d 156,
170 (5th Cir. 2009) (citing Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 691 (1978)); Wright v. Denison
Indep. Sch. Dist., No. 4:16-cv-615, 2017 WL 2262778, at
*3 (E.D. Tex. May 24, 2017), memorandum adopting in
part, No. 4:16-cv-615, Dkt. #36 (E.D. Tex. Apr. 19,
a supervisor may be held liable if there exists either (1)
his personal involvement in the constitutional deprivation,
or (2) a sufficient causal connection between the
supervisor's wrongful conduct and the constitutional
violation.” Thompkins v. Belt, 828 F.2d 298,
304 (5th Cir. 1987) (citing Harvey v. Andrist, 754
F.2d 569, 572 (5th Cir 1985)). “A supervisory official
is held to a standard of ‘deliberate indifference,'
which requires proof that the supervisor ‘disregarded a
known or obvious consequence of his actions.'”
Evett v. DETNTFF, 330 F.3d 681, 689 (5th Cir. 2003)
(quoting Southard v. Tex. Bd. of Criminal Justice,
114 F.3d 539, 551 (5th Cir. 1997)); accord
Thompkins, 828 F.2d at 304 (explaining that there needs
to be a finding of knowledge, personal indifference, or
personal implementation of a system).
“there are limited circumstances in which an allegation
of a ‘failure to train' [or failure to supervise]
can be the basis for liability under § 1983.”
City of Canton v. Harris, 489 U.S. 378, 387 (1989).
To succeed on a failure to train or supervise claim,
Plaintiff must be able to show: (1) the training procedures
or supervision of employees was inadequate; (2) a causal link
between such failure and the violation of Plaintiff's
constitutional rights; and (3) such failure amounts to
deliberate indifference. Martinez v. Foster, No.
4:13-cv-59, 2017 WL 9286990, at *6 (E.D. Tex. Mar. 3, 2017),
report and recommendation adopted by, 2017 WL
1251105 (E.D. Tex. Mar. 31, 2017) (citing Brown v.
Callahan, 623 F.3d 249, 254 (5th Cir. 2010); Gast v.
Singleton, 402 F.Supp.2d 794, 798-99 (S.D. Tex. 2005)).
“To act with deliberate indifference, a state actor
must ‘know  of and disregard an excessive risk to
[the victim's] health or safety.” McClendon v.
City of Columbia, 305 F.3d 314, 326 n.8 (5th Cir. 2002)
(alterations in original) (quoting Ewolski v. City of
Brunswick, 287 F.3d 492, 513 (6th Cir. 2002)).
Fifth Circuit has also found limited circumstances, generally
in excessive force cases, where an officer can be liable for
bystander liability, which is what Plaintiff has labeled a
failure to intervene. Under a theory of bystander liability,
an officer can be liable when the officer: “(1) knows
that a fellow officer is violating an individual's
constitutional rights; (2) has a reasonable opportunity to
prevent the harm; and (3) chooses not to act.”
Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013)
(quotations and citations omitted). What Plaintiff has failed
to mention is that, “liability will not attach where an
officer is not present at the scene of the constitutional
violation.” Id. “[T]he Court should also
consider whether an officer ‘acquiesce[d] in' the
alleged constitutional violation.” Coleman v.
Fox, No. 1:14-cv-672, 2018 WL 2771563, at *19 (E.D. Tex.
Feb. 27, 2018) (second alteration in original) (quoting
Whitley, 726 F.3d at 647). The primary focus for
bystander liability is whether the bystander officer has
“a reasonable opportunity to realize the excessive
nature of the force and to intervene to stop it.”
Id. (quoting Hale v. Townley, 45 F.3d 914,
919 (5th Cir. 1995)).
these legal principles, the Court will address the
allegations against Defendant Roach and Abbott in turn.
CCDAO Defendants argue that Plaintiff did not allege that
Roach was personally involved in the investigation,
indictment, and ultimate conviction of Plaintiff. The CCDAO
Defendants argue that Plaintiff has not stated a plausible
claim for supervisory liability regarding
Roach. Plaintiff alleges that Defendants
engaged in a politically motivated investigation,
prosecution, indictment, and ultimate conviction. Plaintiff
further asserts that Roach was the driving force behind
politically motivated investigations in the CCDAO, and
specifically, the politically motivated investigation of
Plaintiff. Plaintiff maintains that Roach was even
investigated by the Federal Bureau of Investigation for using
the grand jury to further these politically motivated
Roach may have not conducted the investigation himself or
proceeded in front of the grand jury, he is alleged to be the
motivating factor behind inappropriate, politically-based
investigations, which is an essential element of
Plaintiff's claims for constitutional depravations. As
the motivating factor, Roach would be personally aware of the
alleged misconduct and be implementing the system promoting
the alleged misconduct. See Thompkins, 828 F.2d at
305. Furthering and promoting a policy to pursue
investigations based on politics in fact demonstrates an
excessive risk to the victim's constitutional privileges.
Thus, Roach plausibly acted with deliberate indifference when
disregarding this known and obvious risk. At this stage, the
Court finds the allegations suggest a plausible causal
connection between Roach's conduct and the alleged
constitutional deprivations that is sufficient. Thus, even as
a supervisor not directly involved in the actions resulting
in a constitutional deprivation, Plaintiff has stated a
plausible claim under this basis. See id.
Defendants allege that Plaintiff has not stated a plausible
claim for supervisory liability or failure to intervene
against Abbott. The AG Defendants contend that the
allegations under this count are nonspecific and conclusory.
The AG Defendants assert that there are no facts to support
the claim. Plaintiff disagrees. Plaintiff maintains that
White is liable because he acted, or failed to act, with
deliberate indifference. Plaintiff alleges that Abbott was
the Attorney General at the time of the alleged
constitutional violations in this case. As the Attorney
General, Abbott was White's superior and, thus,
supervised White. Abbott assigned White to assist and later
assume the investigation and prosecution of Plaintiff.
Plaintiff maintains that Abbott failed to supervise White and
failed to intervene to stop White from pursuing an illegal
investigation and prosecution. The Court address both
Plaintiff's failure to supervise and failure to train
claims in turn.
As to a
claim for failure to supervise, Plaintiff failed to identify
the supervision that was inadequate or any explanation as to
what supervision Abbott should have been taking, but was not,
except for conclusorily stating that Abbott should have
supervised White and prevented him from pursuing a wrongful
prosecution and investigation. Moreover, there are no factual
allegations to support the fact that Abbott knew of the
violation, therefore, any failure to supervise could not
equate to deliberate indifference. See McClendon,
305 F.3d at 326 n.8. Finally, Plaintiff argued that her
“supervisory liability claims are not based on
vicarious liability, a failure to train, or even a
failure to supervise.” (Dkt. #65 at p. 22)
(emphasis added). Thus, even if the Court accepted the
conclusory statements that Abbott did not supervise,
Plaintiff's own language contradicts this theory of
appears from Plaintiff's complaint and briefing that
Plaintiff's supervisory liability claim has much of its
basis in her “failure to intervene” claim, which
is actually called bystander liability. However, Plaintiff
has failed to plead just that, that Abbott was in fact a
bystander present and witnessing the constitutional
violations. Whitley, 726 F.3d at 646. Thus, the
Court finds that Plaintiff has not pleaded a plausible
supervisory liability claim or failure to intervene claim
against Defendant Abbott. Beyond these causes of action, the
Court does not find any personal involvement by Abbott in the
allegations in this case. Accordingly, the Court finds that
Plaintiff has not stated a plausible claim against Defendant
County argues that “[t]o the extent that Plaintiff
tries to impute liability onto Collin County for acts of
District Attorney Roach, District Attorney Milner, or even
others she cannot do so.” (Dkt. #60 at p. 18).
Plaintiff responds that she is not seeking to “hold
Collin County vicariously liable, but rather liable for its
own unconstitutional policies established by its policy
maker, District Attorney Roach.” (Dkt. #64 at p. 16).
The Court agrees with Plaintiff that she is not attempting to
hold the County vicariously liable; thus, there is no claim
or argument to dismiss on that ground.
officials are immune from suit under 42 U.S.C. § 1983
unless they have “violated a statutory or
constitutional right that was clearly established at the time
of the challenged conduct.” Plumhoff v.
Rickard, 572 U.S. 765, 778 (2014). Qualified immunity is
a two-prong inquiry upon which the Court, in its discretion,
may resolve either prong first in light of the circumstances
of the particular case at hand. Pearson v. Callahan,
555 U.S. 223, 236-37 (2009). The two prongs are: (1) a
statutory or constitutional right was violated on the facts
alleged, and (2) the defendant's actions violated clearly
established statutory or constitutional rights, which a
reasonable person would have known. Griggs v.
Brewer, 841 F.3d 308, 312 (5th Cir. 2016) (citing
Flores v. City of Palacios, 381 F.3d 391, 395 (5th
Cir. 2004)). “Qualified immunity ‘gives
government officials breathing room to make reasonable but
mistaken judgments,' and ‘protects all but the
plainly incompetent or those who knowingly violate the
law.'” Messerschmidt v. Millender, 565
U.S. 535, 546 (2012) (quoting Ashcroft v. al-Kidd,
563 U.S. 731, 743 (2011)).
Court will address both prongs in its analysis. However,
before turning to the prongs, the Court first addresses an
argument from the CCDAO Defendants that they cannot be liable
because they were involved early in the case and not at the
time of the indictment or conviction. The Court addresses
this argument first because it permeates the two prongs of
the analysis. The Court addresses this argument in one
location and the analysis equally applies throughout the
prongs. Subsequently, the Court turns to the qualified
CCDAO Defendants' and the County's Alleged Early
CCDAO Defendants and the County argue that they cannot be
liable for any constitutional deprivation that took place
after July 22, 2010, when the Attorney Pro Tem took
over the case. According to the County and CCDAO Defendants,
the CCDAO Defendants did not obtain the indictment, arrest,
or conviction themselves; therefore, they cannot be
responsible for any purported constitutional violation
associated with these occurrences-i.e., her Fourth Amendment
claim and due process claims. Plaintiff responds that the
CCDAO Defendants were still involved with the investigation
at the time of the indictment, arrest, and conviction.
Moreover, Plaintiff argues that the CCDAO Defendants cannot
avoid liability or responsibility for consequences of the
events that they set in motion.
as true Plaintiff's factual allegations, which the Court
must do, after the Attorney Pro Tem took over the
case, the CCDAO remained on the case to “render such
non-prosecutorial support, investigative aid and other
assistance as the Attorney Pro Tem deems
proper.” (Dkt. #10 ¶ 29) (emphasis
added). As such, it is plausible ...