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Wooten v. Roach

United States District Court, E.D. Texas, Sherman Division

December 23, 2019

SUZANNE H. WOOTEN
v.
JOHN ROACH, SR., CHRISTOPHER MILNER, COLLIN COUNTY, TEXAS, GREGORY ABBOTT and HARRY EUGENE WHITE

          MEMORANDUM OPINION AND ORDER

          AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE

         Pending 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.

         BACKGROUND

         As 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[1] took it upon itself to investigate Plaintiff's campaign without the assistance of law enforcement. Eventually, the Office of the Attorney General[2] (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.

         The 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).

         Based 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).

         Based 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).

         LEGAL STANDARD

         The 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).

         A Rule 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)).

         In 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.

         Thus, “[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).

         ANALYSIS

         In 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 case.

         I. Court's Jurisdiction Over the Matters not on Appeal

         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 the Court.

(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[3] 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).

         On April 9, 2019, the CCDAO Defendants and the AG Defendants filed a notice of interlocutory appeal, [4] 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[5] (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).

         In 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.

         Here, 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.[6]

         Even 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[7] 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.

         The 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.[8] 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 this time.

         II. Motions to Dismiss

         Because 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[9] as to the County, [10] 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.[11]

         A. Personal Involvement, Supervisory Liability, and Failure to Intervene

         The 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.

         “As 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, 2017).

         “However, 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).

         Additionally, “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)).

         The 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)).[12]

         Using these legal principles, the Court will address the allegations against Defendant Roach and Abbott in turn.

         1. Roach

         The 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.[13] 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 investigations.

         While 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.[14] 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.

         2. Abbott

         The AG 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 supervisory liability.

         It 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 Abbott.

         3. The County

         The 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.

         B. Qualified Immunity

         Public 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)).

         The 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 immunity prongs.

         1.The CCDAO Defendants' and the County's Alleged Early Involvement

         The 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.

         Accepting 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).[15] As such, it is plausible ...


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