Ferguson v. Dunn et al

Filing 94

ORDER overruling objections and adopting 63 Report and Recommendation by granting 47 Motion to Dismiss of Parvin Butler, 48 Motion to Dismiss of Angie Brown and 49 Motion to Dismiss of Pete Patrick. Pltf is allowed 14 days from receipt of this order to amend his complaint to include facts or allegations demonstrating violations by these defendants under 1983. Signed by Judge Ron Clark on 7/17/17. (tkd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
RALPH LYNN FERGUSON, JR.
v.
ERIC MARCINE DUNN, et al.

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CIVIL ACTION NO. 1:16-CV-272

ORDER OVERRULING OBJECTIONS AND ADOPTING
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
The court referred this case by order to the Honorable Zack Hawthorn, United States
Magistrate Judge, for pretrial management pursuant to General Order 05-07. The court has
received and considered Judge Hawthorn’s report and recommendation (Doc. No. 63), which
recommends granting pro se Defendants Parvin Butler, Angie Brown, and Pete Patrick’s (the
“Patrick Auto Defendants”) second motions to dismiss. Doc. Nos. 47, 48, 49. The court has
received the objections of Plaintiff Ralph Lynn Ferguson (Doc. No. 70). A party who files timely,
written objections to a magistrate judge’s report and recommendation is entitled to a de novo
determination 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). After undertaking a de novo review of Judge
Hawthorn’s report, the court concludes that Ferguson’s objections are without merit. As a result,
the court adopts the report and recommendation of Judge Hawthorn.
Because both Ferguson and the Patrick Auto Defendants are proceeding pro se, their
pleadings are necessarily held to “less stringent standards than formal pleadings drafted by
lawyers,” and are liberally construed by the court. See Haines v. Kerner, 404 U.S. 519, 520 (1972);
Perez v. U.S., 312 F.3d 191, 194-95 (5th Cir. 2002). “Parties filing objections must specifically
identify those findings [to which they object]. Frivolous, conclusive or general objections need
not be considered by the district court.” 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).
Liberally construing Ferguson’s objections, Ferguson appears to argue that because the
Patrick Auto Defendants operate their business at least in part by towing cars involved in traffic
stops, this “financial gain” constitutes “significant aid from” state officials sufficient to deem the
Patrick Auto Defendants state actors. Doc. No. 70, at 2 (citing Nguyen v. Ridling, 4:11-CV-151,
2012 WL 3763793, at *4 (E.D. Tex. Aug. 29, 2012) (Bush, M.J.), report and recommendation
adopted, 4:11-CV-151, 2012 WL 4322151 (E.D. Tex. Sept. 20, 2012) (internal quotations
omitted)). In Nguyen, the court found the plaintiff’s allegations did not simply allege the
defendants were engaged to perform a state contract. Rather, the plaintiff alleged facts to “show
‘a sufficiently close nexus between the State and the challenged action of the regulated entity.’”
Nguyen, 2012 WL 3763793, at *5 (quoting Cornish v. Corr. Servs. Corp., 402 F.3d 545, 550 (5th
Cir.2005)) (emphasis in original).
Here, the Patrick Auto Defendants are merely a private auto towing business who
occasionally receive referrals from state law enforcement officers.

See Nguyen, 2012 WL

3763793, at *4-5. As explained by Judge Hawthorn in his report, a private contractor’s mere
engagement in performing public contracts, absent more, is insufficient to deem the contractor a
state actor. See Doc. No. 63, at 7-8 (citing Rendell-Baker v. Kohn, 457 U.S. 830, 840-41 (1982)).
Ferguson’s objections do not dispute this point, and even concedes that “towing cars and vehicles
for the state at the state’s behest is such a lucrative position to have . . . that the state offers this
position on a rotation bases [sic] to appear unbiased.” Doc. No. 70, at 3. Moreover, further
distinguishing the present circumstances from those in Nguyen, the Patrick Auto Defendants were

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not “charged by the State of Texas” to arrest and detain individuals suspected of traffic infractions.
See Nguyen, 2012 WL 3763793, at *5.
Thus, by Ferguson’s own admission, towing companies such as Patrick Auto Supply do not
even receive consistent state engagement of their business. Because Ferguson has failed to
demonstrate a sufficiently intertwined nature between the Patrick Auto Defendants and the state,
he has failed to demonstrate that the Patrick Auto Defendants were acting under color of state law.
As private actors, they are immune from suit under § 1983. See Priester v. Lowndes Cnty.,
354 F.3d 414, 420 (5th Cir. 2004).
After completing a de novo review of Judge Hawthorn’s report and Ferguson’s objections,
the objections are overruled and the report and recommendation of the magistrate judge is
ADOPTED. Ferguson shall be allowed fourteen (14) days from the receipt of this order to amend
his complaint to include facts or allegations demonstrating the Patrick Auto Defendants’ violations
under § 1983.
So ORDERED and SIGNED this 17 day of July, 2017.

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Ron Clark, United States District Judge

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