Charboneau v. Davis et al

Filing 24

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE - Having considered each of Plaintiff's objections (Dkts. #45-46; Dkt. #59) and having conducted a de novo review, the Court is of the opinion that the findings a nd conclusions of the Magistrate Judge are correct and adopts the Magistrate Judge's reports (Dkt. 42 ; Dkt. 54 ) as the findings and conclusions of the Court. Accordingly, it is ORDERED that Plaintiff's Amended Complaint (Dkt. #38) is DISMISSED, and Plaintiff's claims are DISMISSED with prejudice. All relief not previously granted is DENIED. The Clerk is directed to CLOSE this civil action. Signed by Judge Amos L. Mazzant, III on 3/29/2017. (baf, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

DR. JANINE CHARBONEAU
v.
TERRY BOX, ET AL.

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Civil Action No. 4:13-CV-678
(Judge Mazzant/Judge Nowak)

MEMORANDUM ADOPTING REPORT AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Came on for consideration the reports 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 February 5, 2016, the report of the Magistrate Judge (Dkt. #42) was entered containing
proposed findings of fact and recommendations that Defendant the SPCA of Texas’s (“the SPCA”)
12(b)(6) Motion to Dismiss (“SPCA Motion to Dismiss”) (Dkt. #39) be granted.

On

February 16, 2017, the report of the Magistrate Judge (Dkt. #54) was entered containing proposed
findings of fact and recommendations that (1) Defendants Collin County Sheriff’s Department’s,
Danny Davis’s, Russell Driver’s, Misty Brown’s, James Kirk’s, and Chris Ware’s Motion to
Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) (“Collin County Motion to Dismiss”) (Dkt. #41) be
granted; (2) Plaintiff’s First Motion to Quash and Motion for Emergency Protective Order
(“Motion to Quash”) (Dkt. #52) be denied; and (3) all other named, but unserved, Defendants be
dismissed. Having received the reports and recommendations of the Magistrate Judge (Dkt. #42;
Dkt. #54), having considered each of Plaintiff’s objections (Dkts. #45-46; Dkts. #59-60), and
having conducted a de novo review, the Court is of the opinion that the findings and conclusions
of the Magistrate Judge are correct and adopts the Magistrate Judge’s reports (Dkt. #42; Dkt. #54)
as the findings and conclusions of the Court.

BACKGROUND
I.

Introduction
Plaintiff Janine Charboneau filed this suit on November 18, 2013, asserting myriad

constitutional and statutory claims against numerous persons and entities allegedly involved in
events related to Plaintiff’s animal cruelty conviction (Dkt. #1; Dkt. #38 (Plaintiff’s Amended
Complaint)). The Court substantially adopts the Magistrate Judge’s findings of fact herein.1 Given
the number of named Defendants and Plaintiff’s diffuse allegations, the Court has attempted to
identify at the outset certain groups of Defendants against whom Plaintiff raises the same or similar
claims and who are discussed herein.
II.

Plaintiff’s Allegations
A.

Collin County and the Individual County Defendants

Plaintiff alleges various persons and entities associated with or employed by Collin County
were involved in the events giving rise to her claims here. Plaintiff identifies Collin County
Animal Control Officers Danny Davis (“Davis”) and Misty Brown (“Brown”), as well as Collin
County Sheriff Terry Box (“Box”), Collin County Sheriff’s Department, Collin County Animal
Control Services, and the City of Lucas specifically in her factual allegations. Plaintiff also names
the following Defendants but fails to allege their involvement in any of these events: Russell
Driver, James Kirk, Chris Ware, Nathan Holton, Matt Shaheen, Chris Hill, Duncan Webb, Cheryl
Williams, Sarah Fox, and Brandon Wannacott. Defendants Davis, Driver, Brown, Kirk, and Ware
make clear through their Motion to Dismiss that Holton, Shaheen, Hill, Webb, Williams, Fox, and
Wannacott each are (or were) employed by or representative of Collin County. Accordingly, the

1

The Magistrate Judge’s findings of fact are contained in the Background sections of the February 5, 2016 report and
recommendation (Dkt. #42 at 1-3) and the February 16, 2017 report and recommendation (Dkt. #54 at 2-5),
respectively.

2

Court hereinafter and collectively refers to Holton, Shaheen, Hill, Webb, Williams, Fox,
Wannacott, Davis, Driver, Brown, Kirk, and Ware as the “Individual County Defendants.”
Plaintiff alleges that, in November 2011, Davis received an anonymous phone call about
potential animal cruelty involving horses at 2120 Estates Parkway, Lucas, Texas (the
“Property”)—Plaintiff’s mother’s home (Dkt. #38). Plaintiff asserts Davis visited the Property
and later in the day caused Collin County, Collin County Animal Services, and certain Collin
County enforcement officials to seize a number of dogs from the Property (Dkt. #38 at 15-17).
Plaintiff alleges Collin County Sheriff’s Department and certain of its representatives took part in
this seizure.2
B.

The Church Defendants

The next day, Plaintiff claims Jim Kaya (“Kaya”) and Cheryl Reeves (“Reeves”), members
of the Church of Latter-Day Saints (the “Church”) came to the Property, presumably with a Collin
County Animal Control officer (Dkt. #38 at 18-19, 38). Certain unidentified individuals then
seized Plaintiff’s horses on behalf of Collin County (Dkt. #38 at 18-19). Plaintiff alleges that
Collin County officials and certain members of the Church entered the Property the same day and
removed and/or moved her personal property from or around the Property, which Plaintiff allowed,
purportedly under threat of condemnation (Dkt. #38 at 20). Plaintiff also claims that Pamela
Paxton (“Paxton”), a member of the Church, drove her to Collin County Animal Services to sign
a “release” with Brown and that Paxton encouraged Plaintiff to sign it (Dkt. #38 at 20).
Regarding other persons and entities associated with the Church, Plaintiff further alleges
Bishop Scott Graham (“Graham”) and other members of the Church conspired with Affordable

2

Plaintiff also alleges the City of Lucas and members of the Church of Latter-Day Saints who lived nearby attempted
to boost real-estate values in the area by re-designating a public road leading to the Property as a private road (Dkt. #38
at 18-22, 27).

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Dumpster Company (“Affordable”) to conduct the collection and disposal of large amounts of
Plaintiff’s personal property from the Property (Dkt. #38 at 27-33). Throughout the Amended
Complaint Plaintiff refers to these and other related Defendants as “the [M]ormons,” whom she
alleges associated themselves with this conspiracy to deprive her of her animals and personal
property (e.g., Dkt. #38 at 27-29). Plaintiff also has identified Craig Paxton, Ron Haas, and Janice
Haas as Defendants here, but does not ever detail these persons’ involvement with the alleged
scheme in the Amended Complaint. For ease of reference, the Court hereinafter and collectively
refers to Kaya, Paxton, Graham, Reeves, Craig Paxton, Ron Haas, Janice Haas, the Church, and
Affordable as the “Church Defendants.”
C.

Animal Rescue Defendants

Following the alleged seizure, Plaintiff asserts, various animal rescue entities and
associated persons sold the dogs “without clear title” and without compensation (Dkt. #38 at 2122). Plaintiff identifies Defendants Sheree’s Dog Rescue, Lynda Van Asveld, Texas Sporting Dog
Rescue, Inc., Mazie’s Mission, and Erin Shults in reference to these allegations. Alongside
Defendants T.S. Cannon (and the Cannon Veterinary Clinic), whom Plaintiff alleges improperly
treated one of her dogs (Dkt. #38 at 36-37), the Court hereinafter and collectively refers to these
Defendants as the “Animal Rescue Defendants.”
III.

Conviction and Procedural History
Subsequently, Plaintiff was arrested and charged with cruelty to non-livestock animals

(Dkt. #38 at 18). See Charboneau v. State, No. 05-13-340-CR, 2014 WL 7476392, at *2 (Tex.
App.—Dallas Dec. 30, 2014, no pet.).3 Following a trial, Plaintiff was convicted and a jury

3

The Court agrees with the Magistrate Judge that Plaintiff’s conviction relates only to non-livestock “animals”
(Dkt. #38 at 18). See also Charboneau, 2014 WL 7476392, at *2. Texas law distinguishes between “animals,” such
as dogs, and “livestock animals,” such as horses. Tex. Penal Code § 42.092(a)(2) (defining “animal”), (a)(6) (defining

4

assessed punishment at 365 days’ confinement and a $2,000 fine. Charboneau, 2014 WL
7476392, at *2. The jury recommended that the sentence be suspended, and the trial court placed
Plaintiff on community supervision for twenty-four months, assessed ten days’ confinement in jail,
and, among other conditions, ordered that Plaintiff could not thereafter “possess any animals”
(Dkt. #41, Exhibit 1).4 Plaintiff appealed and the Fifth District Court of Appeals in Dallas, Texas,
affirmed her conviction. Charboneau, 2014 WL 7476392, at *2. Plaintiff appealed her conviction
no further and, as a result, the Fifth District Court of Appeals issued its Mandate on March 11,
2015.
Meanwhile, Plaintiff filed the instant action on November 18, 2013, prior to the Fifth
District Court of Appeals’ affirmance of her conviction, asserting causes of action for
(1) violations of her Fourth, Fifth, Eighth, and Fourteenth Amendment rights arising under 42
U.S.C. § 1983; (2) conspiracy to interfere with her civil rights under 42 U.S.C. § 1985(3); (3) abuse
of process; (4) disability discrimination under the Americans with Disabilities Act and/or the
Americans with Disabilities Act’s amended counterpart (collectively, “ADAA”); and
(5) conversion against approximately fifty-seven (57) Defendants (Dkt. #1; Dkt. #38).

On

January 7, 2014, the Court granted Plaintiff’s motion for leave to proceed in forma pauperis, but
ordered that issuance of service to Defendants be determined at a later date (Dkt. #6). The Court
stayed the case pending the outcome of Plaintiff’s then-pending state court appeal of her conviction
(Dkt. #7). During the pendency of the stay, and on April 25, 2014, Plaintiff filed an identical,

“livestock animal” by reference); id. § 42.09(b)(5) (“Livestock animal means: . . . a horse, pony, donkey, mule, or
hinny[.]”).
4
The Court notes the state court did not define “animals” or reference the aforementioned statutory distinction in the
Order Placing Defendant on Community Supervision (see Dkt. #41, Exhibit 1). Plaintiff objects to the Magistrate
Judge’s inclusion of this fact in the report’s fact recitation, claiming such “is irrelevant” (Dkt. #59 at 40). To the
contrary, this factual finding provides crucial support for the Magistrate Judge’s legal finding that Plaintiff’s claims
regarding the horses (and personal property) are not Heck-barred (see Dkt. #54 at 24-26). The Court discusses this
finding more fully infra in addressing Plaintiff’s objections.

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second lawsuit in the Eastern District of Texas, Marshall Division, asserting the same factual
allegations and causes of action against the same defendants. See Dkt. #1 in Eastern District of
Texas Case No. 4:14-cv-385. That case was later consolidated with the instant litigation and also
stayed (Dkt. #21). On April 17, 2015, certain Defendants filed a Motion to Lift Stay and Notice
of Finality of Criminal Conviction of the Plaintiff, notifying the Court that Plaintiff’s conviction
was final as of March 11, 2015 (Dkt. #35). Accordingly, on April 24, 2015, the Court lifted the
stay and ordered Plaintiff to file an Amended Complaint (Dkt. #37). On May 26, 2015, Plaintiff
filed an Amended Complaint, which is the live pleading in this action (Dkt. #38).
On June 16, 2015, the SPCA filed the SPCA Motion to Dismiss (Dkt. #39). Defendants
Collin County Sheriff’s Department, Davis, Driver, Brown, Kirk, and Ware filed the Collin County
Motion to Dismiss on January 18, 2016 (Dkt. #41). The Magistrate Judge entered a report and
recommendation on February 5, 2016, recommending the SPCA Motion to Dismiss be granted
(Dkt. #42). Subsequently, Plaintiff filed a Motion to Deny Defendants’ Motion to Dismiss Due to
Lack of Personal Jurisdiction (Dkt. #43) on February 18, 2016, which the Court construes as a
response to Defendants’ Motion to Dismiss. Also on February 18, 2016, Plaintiff filed her
objections to the February 5, 2016 report and recommendation (Dkt. #45). On February 29, 2016,
Defendants Collin County Sheriff’s Department, Davis, Driver, Brown, Kirk, and Ware filed a
Reply (Dkt. #47). Plaintiff filed a Surreply (Dkt. #50) and the Motion to Quash (Dkt. #52) on
March 22, 2016.

The Magistrate Judge entered a report and recommendation on

February 16, 2017, recommending the Collin County Motion to Dismiss (Dkt. #41) be granted,
Plaintiff’s Motion to Quash (Dkt. #52) be denied, and all other named but unserved Defendants be
dismissed (Dkt. #54).

Plaintiff filed her objections to the February 16, 2017 report and

recommendation on March 17, 2017 (Dkt. #59).

6

The Court notes certain Defendants and/or groups of Defendants have been served, while
others have not. Specifically, Davis, Driver, Kirk, Brown, and Ware are each Individual County
Defendants who have been served. Collin County Sheriff’s Department, a Collin County entity,
has been served. The SPCA also has been served. No other Defendant has been served. In
particular, Holton, Box, Shaheen, Hill, Webb, Williams, Fox, and Wannacott are each Individual
County Defendants who have not been served. Neither Collin County nor Collin County Animal
Services has been served. None of the Animal Rescue Defendants nor the Church Defendants
have been served. And the State of Texas has not been served. Because the Court finds Plaintiff’s
claims against each and every Defendant fail under the exacting standard applied when screening
an in forma pauperis complaint for frivolousness, the Court will proceed herein to examine
Plaintiff’s claims against all Defendants under this standard. See, e.g., DeMarsh v. City of Denton,
No. 4:16-cv-89, 2016 WL 5402946 (E.D. Tex. Aug. 30, 2016), report and recommendation
adopted, 2016 WL 5369493 (Sept. 26, 2016) (determining pro se plaintiff’s claims should be
dismissed under Section 1915 standard for frivolousness notwithstanding that defendant also had
filed a Rule 12(b)(6) motion to dismiss).5
PLAINTIFF’S OBJECTIONS
A party 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). As a
threshold matter, the Court notes no party specifically objects to the Magistrate Judge’s findings
that Plaintiff’s 42 U.S.C. § 1985(3), abuse of process, and conversion claims should be dismissed
(see Dkt. #54 at 26-30). Neither do any of the Parties object to the Magistrate Judge’s finding that

5

The Court further explains the distinction between the frivolousness analysis and that under Rule 12(b)(6) infra in
its analysis of objection three.

7

Plaintiff’s Motion to Quash (Dkt. #52) should be denied (see Dkt. #54 at 30).6 In light of the
Parties’ failure to object to these findings, and after de novo review of the record, the Court holds
these findings are correct. The Court now turns to Plaintiff’s objections, which the Court discerns
are as follows: (1) the Magistrate Judge lacks authority to hear and consider Plaintiff’s claims
because all Parties have not consented to such (Dkt. #45 at 1, 6; Dkt. #46; Dkt. #59 at 6-12, 35);
(2) the Magistrate Judge improperly relies upon Charboneau, 2014 WL 7476392, in the
February 5, 2016 report and recommendation; (3) the Magistrate Judge improperly finds Plaintiff
fails to state a claim against (a) the Church Defendants, (b) Collin County and the City of Lucas,
and (c) the SPCA such that dismissal under Rule 12(b)(6) and/or 28 U.S.C. § 1915(e) is
appropriate against those Defendants (Dkts. #45-46; Dkt. #59 at 14-18, 22-23, 36); (4) the
Magistrate Judge improperly finds the Individual County Defendants are entitled to qualified
immunity (Dkt. #59 at 17, 19-38); (5) the Magistrate Judge improperly finds Plaintiff fails to state
an ADAA claim against any Defendant; (6) the Magistrate Judge erroneously concludes Heck v.
Humphrey, 512 U.S. 477 (1994), bars Plaintiff’s claims that Collin County took without
compensation Plaintiff’s horses and personal property (Dkt. #59 at 41); (7) the Magistrate Judge
improperly considers the SPCA’s Motion to Dismiss because the SPCA has no attorney of record
and/or because the SPCA has not been served in this case (Dkts. #45-46); and (8) the Magistrate
Judge erroneously characterizes certain of Plaintiff’s alleged facts (Dkt. #45 at 10-11; Dkt. #46 at
7; Dkt. #59 at 5, 7-8, 41-42). Plaintiff also raises new claims and/or arguments in her objections,
namely (a) the Collin County Motion to Dismiss and the SPCA Motion to Dismiss were untimely

6

To the extent Plaintiff attempts to object to these findings, she has failed to do so specifically. Plaintiff does object
to the report and recommendation generally, asserting “it does not follow federal law, the [ADAA], or the
Constitutional Amendments” (Dkt. #59 at 12). But this sweeping assertion exemplifies the sort of “general
objection[]” that the Fifth Circuit has held district courts “need not consider[.]” 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 1412
(5th Cir. 1996) (en banc). Notwithstanding this deficiency, the Court has undertaken and performed a de novo review
of the Magistrate Judge’s report and recommendation herein.

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filed and, accordingly, Plaintiff should receive default judgment against all Collin County
Defendants,7 (b) the Collin County Defendants consented to suit when they sought to transfer
and/or consolidate Plaintiff’s second-filed action in the Eastern District of Texas, Marshall
Division, with the present case, and (c) the Magistrate Judge should be recused or disqualified for
demonstrating bias against Plaintiff (Dkt. #59 at 5-7, 9-10, 32). The Court considers the objections
in turn.
Objection 1: Use of Magistrate Judge
Plaintiff objects to the Court’s use of the Magistrate Judge in this case, asserting she has
given no permission “for the Magistrate to sign and order or even handle any part of this case”
(Dkt. #59 at 35; see also Dkts. #45-46). The SPCA, for its part, argues federal law permits the
Court to refer matters to a magistrate judge for consideration and recommendations, and that the
Court makes the ultimate determination on any such dispositive matters (Dkt. #49).
The Federal Magistrates Act, 28 U.S.C. § 636, permits “a [full Article III] judge [to]
designate a magistrate judge to hear and determine any pretrial matter pending before the court,
except [certain dispositive motions]” and further “permits a judge [to] designate a magistrate judge
to . . . submit to a judge of the court proposed findings of fact and recommendations for the
disposition, by a judge of the court, of any [of those excepted] motion[s] . . . .”
28 U.S.C. § 636(b)(1)(A)-(B) (2012). The Court’s Local Rules also provide district judges wide
latitude in referring matters and motions for a magistrate judge’s review. E.D. Tex. Local Rule
CV-72(d). A magistrate judge may, therefore, recommend disposition of a motion to dismiss to
the district judge, who will then conduct a de novo review of those portions of the recommendation

7

Plaintiff does not define “Collin County Defendants.” The Court presumes Plaintiff intends through this reference
to capture all Defendants employed by Collin County and/or the City of Lucas, such as the Individual County
Defendants, as well as Collin County and the City of Lucas (and related entities, such as the Collin County Sheriff’s
Department).

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to which parties raise specific, timely objection. 28 U.S.C. § 636(b)(1)(C). The Fifth Circuit has
repeatedly recognized the statutory authority to designate a magistrate judge for such purpose and
has clearly upheld the requirement to file such timely, specific objections. Douglass v. United
Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc), superseded by statute on other
grounds, 28 U.S.C. § 636(b)(1).
Here, the Magistrate Judge made recommendations as to the SPCA Motion to Dismiss
(Dkt. #42), the Collin County Motion to Dismiss, Plaintiff’s Motion to Quash, and all other named
Defendants (Dkt. #54). The Magistrate Judge acted within the bounds of statutory authority in
issuing such reports and recommendations, Douglass, 700 F.3d at 1417, and the Court now
properly reviews those portions of the Magistrate Judge’s reports and recommendations to which
Plaintiff raises specific, timely objections. The Court overrules this objection.
Objection 2: Magistrate Judge’s Reliance on Charboneau v. State
Plaintiff objects to the Magistrate Judge’s reliance in the February 5, 2016 report and
recommendation (Dkt. #42) on the facts as reported in Charboneau v. State, a state court appellate
opinion relating to Plaintiff’s animal cruelty conviction (Dkts. #45-46). See also Charboneau, No.
No. 05-13-340-CR, 2014 WL 7476392, at *2 (Tex. App.—Dallas Dec. 30, 2014, no pet.). Plaintiff
asserts reliance on another legal opinion’s recitation of facts violates the rule against hearsay.
Here, the Magistrate Judge found in an order made within the February 16, 2017 report and
recommendation that a court’s reliance on another legal opinion to establish facts (other than the
fact that the proceeding underlying that opinion occurred) would generally violate the rule against
hearsay (see Dkt. #54 at 10-11). The Magistrate Judge accordingly “decline[d] to take notice of
the discrete facts articulated in the Fifth District Court of Appeal’s (“Fifth Court”) Charboneau
opinion, but [did] take notice of the fact of the [existence of the] judgment, conviction, and

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underlying proceedings” in that case (Dkt. #54 at 11-12). Indeed, in the February 16, 2017 report
and recommendation, the Magistrate Judge relies upon the Fifth Court’s opinion only to show
“such proceedings occurred and to provide procedural background[,]” as well as to explain that
the resulting sentence from the underlying criminal proceedings related wholly to her conviction
for cruelty to non-livestock animals (Dkt. #54 at 2 n.1, 3 & n.5). The Magistrate Judge also refers
to the Fifth Court’s opinion in the February 5, 2016 report and recommendation, but again only to
establish that Plaintiff had been convicted on (non-livestock) animal cruelty charges and to
describe the punishment Plaintiff received incident to that conviction (Dkt. #42 at 1-2).
The Court finds no improper reliance by the Magistrate Judge upon review of the record.
Moreover, such reliance is appropriate, as neither the procedural history of the case nor the
sentence imposed are disputed. See Taylor v. Charter Med. Corp., 162 F.3d 827, 829, 831 (5th
Cir. 1998) (A court may take notice of another court’s judgment “for the limited purpose of taking
as true the action of the [other] court in entering judgment . . . .”); Bauer v. Texas, 341 F.3d 352,
362 n.8 (5th Cir. 2003) (granting motion to take judicial notice “of public court records and
information . . . not in dispute”). The Court overrules Plaintiff’s objection.
Objection 3: Failure to State a Claim Findings
Plaintiff also variously objects to the Magistrate Judge’s findings that Plaintiff fails to state
a claim against any of the Church Defendants, Collin County and the City of Lucas, and the SPCA
(Dkts. #45-46; Dkt. #59). Because the Magistrate Judge recommended that Plaintiff’s claims
against these Defendants be dismissed either under Rule 12(b)(6)—where the Defendant has
moved for dismissal—or under 28 U.S.C. § 1915(e) (“Section 1915”)—where the Defendant has
not—the Court begins by outlining the standards governing Rule 12(b)(6) and Section 1915
dismissals.

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A party may move under Federal Rule of Civil Procedure 12(b)(6) for dismissal of a
plaintiff’s complaint where the complaint fails to state a claim upon which relief may be granted.
Fed. R. Civ. P. 12. Further, Rule 8 requires 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). The
claims 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). 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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 570). In considering a Rule 12(b)(6) motion, a court must accept as true all wellpleaded facts contained in a plaintiff’s complaint and view them in the light most favorable to the
plaintiff-nonmovant. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). Taken as true, those
“[f]actual allegations must be enough to raise a right to relief above the speculative level[,]” in
order for the plaintiff to survive the motion to dismiss. Twombly, 550 U.S. at 555; Gonzalez v.
Kay, 577 F.3d 600, 603 (5th Cir. 2009). Indeed, the U.S. Supreme Court has explained that, under
Twombly, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.’” Gonzalez, 577 F.3d at 603 (quoting Iqbal, 556 U.S. at 678).
“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. “It
follows [that], ‘where the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not “shown”—“that the pleader is
entitled to relief.”’” Id. The U.S. Supreme Court established a two-step approach in Iqbal for
assessing the sufficiency of a complaint in the 12(b)(6) context. First, the Court identifies
conclusory allegations and proceeds to disregard them, for they are “not entitled to the assumption

12

of truth.” Iqbal, 556 U.S. at 681. 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 F. App’x 466, 470 (5th Cir. 2009).
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. In determining whether to grant
a motion to dismiss, a district court may generally not “go outside the complaint.” Scanlan v. Tex.
A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003).
Relatedly, district courts have authority under Section 1915 to dismiss a complaint sua
sponte where the complaint, inter alia, “fails to state a claim on which relief may be granted[]
. . . .” 28 U.S.C. § 1915(e)(2)(B); see Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997);
Kenechukwu v. Holder, No. 9:15-CV-62, 2016 WL 3961714, at *1-2 (E.D. Tex. June 10, 2016),
report and recommendation adopted, 2016 WL 3926576 (E.D. Tex. July 21, 2016). A court may
dismiss a complaint under this standard “if it lacks an arguable basis in law or fact.” Siglar, 112
F.3d at 193; see Moore v. Mabus, 976 F.2d 268, 269-70 (5th Cir. 1992) (explaining the distinction
between factual and legal frivolousness in in forma pauperis complaints). Although courts
construe pro se filings liberally in this context, see, e.g., Flanagan v. LaGrone, No. 9:16-CV-59MHS, 2016 WL 4163557, at *1 (E.D. Tex. July 6, 2016), report and recommendation adopted,
2016 WL 4140751 (E.D. Tex. Aug. 3, 2016), dismissal is appropriate where the claims have no
chance of success, cf. Booker v. Koonce, 2 F.3d 114, 115-16 (5th Cir. 1993) (noting dismissal of
claims with “some chance” of success is inappropriate at screening stage but affirming dismissal
where pro se plaintiff’s claim “[was] based upon an indisputably meritless legal theory”). And
though the Section 1915 standard demands more than the Rule 12(b)(6) standard in certain

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circumstances, see Neitzke v. Williams, 490 U.S. 319, 326-27 (1989), where “the plaintiff is not
entitled to relief” on the claims presented, the standards largely are the same, Kenechukwu, 2016
WL 3961714, at *1-2 (citing Newsome v. E.E.O.C., 301 F.3d 227, 231 (5th Cir. 2002) (per
curiam)). See also Neitzke, 490 U.S. at 328 (“To the extent that a complaint filed in forma pauperis
which fails to state a claim lacks even an arguable basis in law, Rule 12(b)(6) and § 1915[(e)] both
counsel dismissal.”). The Magistrate Judge recommended that the Court dismiss the Church
Defendants, Collin County, the City of Lucas, and certain of the Individual County Defendants
under Section 1915, as the Court withheld service to those Defendants in order to properly screen
Plaintiff’s complaint (see Dkt. #59 at 15-19). The Magistrate Judge also recommended that the
Court dismiss certain of the Individual County Defendants as well as the SPCA under Rule
12(b)(6), as certain of the Individual County Defendants and the SPCA have filed motions to
dismiss pursuant to same (Dkt. #42). As noted supra, for purposes of its de novo review herein,
the Court considers Plaintiff’s claims against each and every Defendant under Section 1915e’s
heightened standard, rather than under the 12(b)(6) standard, for failure to state a claim.
A.

Church Defendants

Plaintiff objects to the Magistrate Judge’s findings that the Court should dismiss Plaintiff’s
Section 1983 claims against the Church Defendants under Section 1915(e) (Dkt. #59 at 36).
Plaintiff asserts she has alleged “joint action” between the government and the Church Defendants
sufficiently to show the Church Defendants engaged in “state action” so as to render themselves
liable under Section 1983.
Sufficiently pleading a Section 1983 claim requires a plaintiff to allege (1) “the defendant
has deprived [the plaintiff] of a right secured by the ‘Constitution and laws’ of the United States”
and (2) “the defendant acted ‘under color of law.’” Adickes v. S. H. Kress & Co., 398 U.S. 144,

14

150 (1970). Where the plaintiff claims a private party, rather than a state actor, violated Section
1983, the plaintiff must allege the private party defendant “[was] a willful participant in joint
activity with the State or its agents” in order to show the defendant “act[ed] ‘under color’ of law
. . . .” Id. at 152. Only where a plaintiff alleges “an agreement between the private and public
defendants to commit an illegal act” will the plaintiff have stated a claim under Section 1983
against a private party defendant. Cinel v. Connick, 15 F.3d 1338, 1343-44 (5th Cir. 1994)
(emphasis added) (affirming dismissal under 12(b)(6) of pro se plaintiff complaint where plaintiff
failed to allege sufficiently such agreement).
Here, the Court agrees with the Magistrate Judge that Plaintiff fails to allege that the Church
Defendants conspired with governmental entity or agent to commit an illegal act intending to
deprive Plaintiff of her constitutional and/or statutory rights (see Dkt. #54 at 15-17). Plaintiff
alleges that the Church Defendants and Collin County (and/or its agents) attempted to increase real
estate development near the Property (Dkt. #38 at 9). Plaintiff alleges that, in doing so, these
Defendants in fact deprived her of her rights—Plaintiff does not allege that these Defendants
conspired with the purpose of depriving Plaintiff of her rights and/or committing an illegal act.
See Cinel, 15 F.3d at 1343-44. Further, Plaintiff’s allegations that the Church Defendants
conspired with state actors are wholly conclusory: Plaintiff repeatedly states the legal conclusion
of conspiracy without providing any factual allegations whatsoever that would support such claim
(see, e.g., Dkt. #38 at 22). See Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir. 1982) (“The
conspiracy allegations made by [plaintiff] are conclusory, and more than a blanket of accusation
is necessary to support a § 1983 claim.”). Accordingly, the Court finds Plaintiff’s Section 1983

15

claims against the Church Defendants in the Amended Complaint lack even an arguable basis in
law.8
B.

Collin County and the City of Lucas

Plaintiff also objects to the Magistrate Judge’s findings that the Court should dismiss
Plaintiff’s Section 1983 claims against Collin County and/or the City of Lucas under Section
1915(e) (Dkt. #59 at 17-38). Specifically, Plaintiff seemingly contends neither Collin County nor
the City of Lucas may assert the qualified immunity defense because these entities, as
municipalities, may not rely on the good faith of the official involved in the deprivation of
Plaintiff’s rights (see Dkt. #59 at 15). Plaintiff asserts, as well, that the City of Lucas and Collin
County, in “deciding to go against the law [to transform] the road to [the Property into] a private
road from a public road” exhibited a “custom” sufficient to establish municipal liability under
Section 1983 (Dkt. #59 at 17-18). Plaintiff also claims the Magistrate Judge erred in finding Collin
County and the City not liable under the ADAA (Dkt. #59 at 22-23).9
To begin, the Court notes the Magistrate Judge nowhere finds Collin County or the City of
Lucas immune from Plaintiff’s claims under the qualified immunity doctrine, and neither does the
Magistrate Judge find these Defendants may rely—or even that they attempt to rely—upon a good

8

The Court notes Plaintiff seemingly also asserts the Collin County Defendants should face independent liability for
engaging in such “joint action” with the Church Defendants (see Dkt. #59 at 36). Joint action in this context, however,
operates as a proxy for the requisite “state action”—it does not create an independent basis for liability but rather
permits plaintiffs to hold non-governmental persons and entities liable for constitutional and/or statutory harms in
certain (very limited) circumstances. See Cinel, 15 F.3d at 1343. Accordingly, the Court overrules Plaintiff’s
objection to the extent Plaintiff asserts the Collin County Defendants—each of which are governmental entities or
government actors—should face independent liability for their allegedly engaging in “joint action” to deprive Plaintiff
of her legal rights.
9
It appears that, because Plaintiff raises this same claim against the Individual County Defendants, the Magistrate
Judge considered this claim in the analysis of the Individual County Defendants’ liability. The same reasoning
disposes of Plaintiff’s claims against each set of Defendants; accordingly, the Court considers this objection infra in
its analysis of Plaintiff’s objections concerning qualified immunity.

16

faith defense (Dkt. #54 at 17-19). Accordingly, the Court disregards this particular objection as
irrelevant.
The U.S. Supreme Court has held that Section 1983 captures claims against municipalities
such as the City of Lucas or Collin County. See Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S.
658, 690 (1978); see also Hampton Co. Nat’l Sur., LLC v. Tunica Cty., 543 F.3d 221, 224, 226-27
(5th Cir. 2008) (applying Section 1983 to county-defendant). Plaintiffs must, however, base
claims under Section 1983 against such entities on the entities’ use or creation of an official “policy
or custom” that “inflicts the injury [for which] the government as an entity is responsible under
§ 1983.” Monell, 436 U.S. at 691, 94 (concluding “a municipality cannot be held liable solely
because it employs a tortfeasor—or, in other words, . . . on a respondeat superior theory”); see
also Hampton Co., 543 F.3d at 227 (“[M]unicipal liability under section 1983 requires proof of
three elements: (1) a policymaker, (2) an official policy, and (3) violation of constitutional rights
whose moving force is the policy or custom.” (internal quotations omitted)). An official policy or
custom comprises of either one of the following:
1. A policy statement, ordinance, regulation, or decision that is officially adopted
and promulgated by the municipality’s lawmaking officers or by an official to
whom the lawmakers have delegated policy-making authority; or
2. A persistent, widespread practice of city officials or employees, which, although
not authorized by officially adopted and promulgated policy, is so common and
well settled as to constitute a custom that fairly represents municipal policy.
Quinn v. Roach, No. 4:06CV120, 2007 WL 737523, at *3 (E.D. Tex. Mar. 7, 2007), report and
recommendation adopted as modified, 2007 WL 922233 (E.D. Tex. Mar. 23, 2007), aff’d, 326 F.
App’x 280 (5th Cir. 2009).
The Court agrees with the Magistrate Judge that Plaintiff fails to allege an official policy
or custom through which either Collin County or the City of Lucas acted to deprive Plaintiff of her
constitutional rights (Dkt. #54 at 17-19). With regard to purported constitutional violations,

17

Plaintiff alleges only that Collin County and/or the City of Lucas, acting through its employees
and/or the Private Party Defendants, deprived her (and her mother) of certain personal property,
horses, and access to the Property via a certain public road (e.g., Dkt. #38 at 27, 41-43). To begin,
Plaintiff fails to allege either that municipal officials engaged in any “persistent, widespread
practice” of depriving persons or entities of their constitutional rights—Plaintiff merely asserts
certain Collin County officers and City of Lucas representatives deprived her (and her mother) of
such rights, and that Collin County and the City of Lucas should, as a result, face liability. Plaintiff
in essence alleges a respondeat superior liability theory, which cannot serve as a basis for
municipal liability under Section 1983. See Monell, 436 U.S. at 691, 94; Hampton Co., 543 F.3d
at 227. Further, Plaintiff’s claim that the City of Lucas, in re-designating a public road somehow
connected to the Property as a private road, has promulgated an official policy that violates
Plaintiff’s constitutional rights likewise lacks merit. Even assuming a City of Lucas policymaker
promulgated an official policy to re-designate the road, Plaintiff fails to allege any facts that would
support a finding that such re-designation violated Plaintiff’s constitutional rights. Plaintiff states
in a conclusory fashion that the re-designation violates her Fifth, Eighth, and Fourteenth
amendment rights and/or her rights under the ADAA, but does not allege facts showing such
violation(s) occurred because of the re-designation (Dkt. #59 at 18 n.26). Cf. Arsenaux, 726 F.2d
at 1024. Accordingly, the Court finds Plaintiff’s Section 1983 claims against Collin County and
the City of Lucas in the Amended Complaint lack even an arguable basis in law.
C.

The SPCA

Plaintiff objects to the Magistrate Judge’s findings that the Court should dismiss Plaintiff’s
claims against the SPCA under Rule 12(b)(6) (Dkts. #45-46). Plaintiff seemingly contends she
need not state a claim in order to survive a Rule 12(b)(6) motion to dismiss, citing Brown v. Budz,

18

398 F.3d 904, 913-14 (7th Cir. 2005) (Dkt. #46 at 3).

The SPCA responds that Plaintiff

misconstrues Brown’s holding, arguing the court in that case “still required that the plaintiff
sufficiently allege a cause of action” (Dkt. #49 at 2).
The Court agrees with the SPCA. In Brown, the Seventh Circuit reversed where the district
court granted a 12(b)(6) motion to dismiss because the plaintiff failed to show his claims had merit.
398 F.3d at 913-14. The Seventh Circuit noted “the plaintiff does not have to ‘show’ anything; he
need only allege[,]” and that “[a]t this stage of the litigation, we are concerned not with what
plaintiff did or did not show, but rather with what plaintiff did or did not allege.” Id. at 914. Here,
the Magistrate Judge found “Plaintiff’s allegations against the SPCA of Texas are insufficient to
state a plausible claim for relief” (Dkt. #42 at 6). Indeed, Plaintiff alleges with respect to the SPCA
only that “the SPCA of Texas has already answered. 8411 Stacy Road/FM 720 McKinney, TX
75070; Phone Number: 214-742-the SPCA (7722),Fax: [phone]” (Dkt. #38 at 5). Plaintiff’s
objections to the Magistrate Judge’s February 5, 2016 report and recommendation provide little
else from which the Court may discern what, precisely, Plaintiff asserts the SPCA has done (see
Dkts. #45-46). Plaintiff claims “it appears that the S.P.C.A.’s ‘smear campaign’ of good AKC and
other registrable breeders who are actively working at breeding away from hereditary problems
are now all ‘puppy mills’” (Dkt. #45). Plaintiff only otherwise states the SPCA should remove
such misinformation from the SPCA website “because it is miseducating [sic] future juries in
criminal cases” (Dkt. #45 at 10). It is unclear either from Plaintiff’s Amended Complaint or her
objections what, if any, claim she intends to state against the SPCA or that the SPCA is liable for
any of its actions. Failure to “put forward . . . concrete allegations” against a defendant and
“[pleading] no facts that could possibly indicate that [a defendant] may be liable” merits dismissal

19

under Rule 12(b)(6). Amos v. Palmetto Gov’t Benefit Adm’r, 122 F. App’x 105, 112 (5th Cir.
2005) (per curiam). Accordingly, Plaintiff’s claims against the SPCA should be dismissed.
D.

Individual County Defendants

Plaintiff objects to the Magistrate Judge’s findings that the Court should dismiss Plaintiff’s
Section 1983 claims against the Individual County Defendants under either Section 1915(e) or
Rule 12(b)(6) (Dkt. #59 at 17-38). Plaintiff asserts the Magistrate Judge erred in finding the
Individual County Defendants are immune to Plaintiff’s Section 1983 claims because the
Magistrate Judge incorrectly concluded the Individual County Defendants violated no clearly
established statutory or constitutional rights. Specifically, Plaintiff contends the Magistrate Judge
committed the following errors in reaching the conclusion the Individual County Defendants
should be dismissed: (1) the Magistrate Judge improperly relied upon Texas State Board of
Veterinary Medical Examiners v. Jefferson, No. 03–14–00774–CV, 2016 WL 768778, at *2 (Tex.
App.—Austin Feb. 26, 2016, no pet.), given that the opinion post-dates the Individual County
Defendants’ alleged wrongdoing (Dkt. #59 at 14-23); (2) the Magistrate Judge failed to find Box
and/or Brown liable under Section 1983 in their respective supervisory capacities over those
Individual County Defendants that conducted the takings of Plaintiff’s horses and personal
property; and (3) the Magistrate Judge improperly determined the facts alleged give rise to no
violation of Title II of the ADAA (Dkt. #59 at 12-13, 22-23).10
The Fifth Circuit has held that, because Section 1983 “simply provides a remedy for the
rights that it designates[,] . . . an underlying constitutional or statutory violation is a predicate to
liability under [Section] 1983.” Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997) (internal

10

The Court has addressed Plaintiff’s objections regarding the ADAA collectively in its analysis of Plaintiff’s ADAA
claims against these and other Defendants, as those findings relate to Plaintiff’s claims against other Defendants in
addition to the Individual County Defendants (see infra Objection 4, pp. 22-24).

20

quotations and citation omitted). Moreover, even if a plaintiff states a claim under Section 1983,
qualified immunity may bar liability. See Johnston v. City of Houston, 14 F.3d 1056, 1059 (5th
Cir. 1994). Qualified immunity shields government officials in certain circumstances from “civil
damages liability as long as their actions could reasonable have been thought consistent with the
rights they are alleged to have violated.” Id. (noting that, “[i]f reasonable public officials could
differ on the lawfulness of the defendant’s actions, the defendant is entitled to qualified
immunity”). In order to overcome a qualified immunity defense, the plaintiff must allege or show:
“(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly
established’ at the time of the challenged conduct.” Morgan v. Swanson, 659 F.3d 359, 371 (5th
Cir. 2011) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). A court must first determine
“whether the facts, either as the plaintiff alleges or as proved without dispute, establish that the
offic[ial] violated a clearly established constitutional [or statutory] right.” Linbrugger v. Abercia,
363 F.3d 537, 540 (5th Cir. 2004). The inquiry ends if the plaintiff fails to allege the defendant
violated a constitutional or statutory right. Id. If the plaintiff alleges such violation, a court must
consider whether the official’s conduct was nonetheless objectively reasonable in light of clearly
established law at the time of the challenged conduct. Anderson v. Creighton, 483 U.S. 635, 63840 (1987).
Here, the Court agrees with the Magistrate Judge that the Individual County Defendants
are entitled to qualified immunity because Plaintiff fails to allege violation of a statutory or
constitutional right that was clearly established at the time of the challenged conduct (see Dkt. #54
at 19-22). Plaintiff’s first specific objection focuses on the Magistrate Judge’s reliance on
Jefferson in finding that the Individual County Defendants did not violate Texas Occupation Code
§ 801.352 because that statute did not apply in the circumstances Plaintiff alleged. Plaintiff objects

21

that Jefferson post-dates the challenged conduct and accordingly cannot answer the question
whether the law analyzed therein was clearly established at the time of the challenged conduct
(Dkt. #59 at 38). The statutory provision at issue prohibits interference with the veterinarian-client
relationship. See Tex. Occ. Code § 801.352. The statute defines the “client” as “the owner or
other caretaker of the animal” and confines the relationship generally to situations where the
veterinarian “possesses sufficient knowledge of the animal to initiate at least a general or
preliminary diagnosis . . .” and “is readily available to provide, or has provided, follow-up medical
care in the event of an adverse reaction to, or a failure of, the regimen of therapy provided by the
veterinarian.” Id. § 801.351. The statute itself excludes from such definition those relationships
between veterinarians and their own animals such that a veterinarian who owns an animal cannot
also have a veterinarian-client relationship with that animal under this provision. Id. § 801.004(1).
Texas lawmakers enacted this statute in September 1999, and the most recent modification
occurred in September 2011. See, e.g., Tex. S.B. 811, 82nd Leg., R.S. (2011); Tex. H.B. 3155,
76th Leg., R.S. (1999). The legislature did not add or modify the exclusion provision in 2011, and
it existed prior to the 2007 amendments to the statute. See Tex. S.B. 1562, R.S. (2007). The Court
accordingly finds the owner exclusion constituted part of the clearly established law at the time
Plaintiff alleges the Individual Defendants violated her rights. As a result, the Individual County
Defendants cannot have violated Texas Occupation Code § 801.352 as Plaintiff alleges. Further,
the Magistrate Judge did not err in citing Jefferson, which merely notes the existence of the owner
exclusion in Texas law. See 2016 WL 768778, at *2. Because the Court finds infra that Plaintiff
fails to state an ADAA Title II claim, the Court’s finding here that the Individual County
Defendants did not violate Texas Occupation Code § 801.352 disposes of Plaintiff’s objection
regarding the Magistrate Judge’s qualified immunity finding. Accordingly, the Individual County

22

Defendants are entitled to qualified immunity, and Plaintiff’s specific objection that Box and/or
Brown should be held liable in their supervisory capacities also is overruled.
Objection 4: ADAA Finding
Plaintiff objects to the Magistrate Judge’s finding that Plaintiff states no claim under the
ADAA against the State of Texas (Dkt. #59 at 12-13). Specifically, Plaintiff asserts she has
sufficiently alleged “the State violated Title II of the [ADAA], by discrimination against her on
the basis of her disability” (Dkt. #59 at 13).11
ADAA Title II provides that “no qualified individual with a disability shall, by reason of
such disability, be excluded from participating in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42
U.S.C. § 12132 (2012). The Fifth Circuit has held that, in order to state a claim for relief under
Title II, a plaintiff must allege “(1) that he has a qualifying disability; (2) that he is being denied
the benefits of services, programs or activities for which the public entity is responsible, or is
otherwise discriminated against by the public entity; and (3) that such discrimination is by reason
of his disability.” Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011). A plaintiff must allege more
than the mere failure to accommodate his or her disability to allege sufficiently that he or she
suffered discrimination on account of that disability. See Barber v. Maoirana, No. 14-cv-2227,
2015 WL 5562222, at *10 (W.D. La. June 3, 2015) (dismissing a prisoner’s ADAA claims
because, inter alia, the prisoner alleged only that the prison failed to make special accommodations
for his alleged disability).

11

The Court notes Plaintiff raises the same claims based upon the same factual circumstances against various other
Defendants in her Amended Complaint (see Dkt. #54 at 21-22). To the extent Plaintiff objects to the Magistrate
Judge’s findings regard the ADAA to those Defendants, as well, the Court considers those objections herein.

23

Here, assuming arguendo Plaintiff adequately alleges the first two elements of her ADAA
Title II claim (see Dkt. #54 at 21), Plaintiff nevertheless fails to demonstrate discrimination by
reason of her alleged disability. Plaintiff’s claims under ADAA Title II relate entirely to the
Individual County Defendants’ alleged failure to provide her accommodation in responding to the
animal cruelty complaint (Dkt. #38 at 43 (asserting Defendants should have provided Plaintiff a
“citation and time to make changes regarding care of the horses”)). Plaintiff seemingly reasons
that the failure to provide this accommodation itself shows the Individual County Defendants (and
the entities employing them) discriminated against Plaintiff on the basis of her alleged disability.
This reasoning blurs the line between a mere failure to accommodate and a failure to accommodate
because of disability discrimination. It also illustrates why an allegation solely of failure to
accommodate does not itself amount to an allegation of discrimination on the basis of disability.
See Barber, 2015 WL 5562222, at *10. Plaintiff fails to state a claim of disability discrimination
under ADAA Title II, as she fails to allege the third element of such a claim. The Court accordingly
overrules Plaintiff’s objection.
Objection 5: Heck Finding
Plaintiff asserts in her objections that “[t]he taking[] of the horses is not ‘Heck barred’”
and that “[t]he destruction of Personal property does not and [sh]ould not” be barred by Heck,
either (Dkt. #59 at 41). It appears Plaintiff misunderstands the Magistrate Judge’s finding with
regard to Heck’s application in the present case. The Magistrate Judge found that Plaintiff is
correct, namely that Heck does not bar her claims concerning the alleged takings of the horses and
personal property (Dkt. #54 at 24-26). The Magistrate Judge found, in relevant part, as follows:
The Supervision Order accordingly contemplates removal of the dogs from
Plaintiff’s custody, but not necessarily the horses and certainly not the personal
property. As a result, to the extent Plaintiff seeks damages for the “taking” without
due process of her dogs under Section 1983, Heck bars such claim: finding the dogs

24

were seized in violation of Plaintiff’s federal constitutional rights would necessarily
draw into question the validity of Plaintiff’s conviction and/or sentence in violation
of Heck. But a finding that the personal property and horse seizures violated
Plaintiff’s due process, equal protection, or Eighth Amendment rights would not
necessarily do so, as neither the Judgment nor the Supervision Order clearly
indicates removal of either is appropriate.
(Dkt. #54 at 25-26). The Magistrate Judge then noted that the report and recommendation had
evaluated Plaintiff’s claims regarding the horses and personal property in a preceding section
(Dkt. #54 at 26). The Court agrees with the Magistrate Judge that Heck does not bar Plaintiff’s
claims regarding the horses and/or Plaintiff’s personal property, given that Plaintiff’s conviction
and, arguably, aspects of her punishment, namely the requirement that Plaintiff “[c]annot possess
any animals[,]” related solely to non-livestock animals (see Dkt. #54 at 24-26). The Court
overrules Plaintiff’s objection.
Objection 6: The SPCA’s Attorney of Record and Personal Jurisdiction
Plaintiff also objects to the Court’s ruling on the SPCA Motion to Dismiss both because
“the SPCA to Plaintiff’s belief, was not served with summons” and because “the attorney that
wrote . . . the SPCA’s Motion to Dismiss did not file a Notice of Appearance unless it can be
shown that he did” (Dkt. #46 at 2, 5). The SPCA responds that “[r]egardless of whether or not
Plaintiff properly served the SPCA with summons, insufficient service on the SPCA is not a proper
objection for Plaintiff to make” (Dkt. #49 at 3). The SPCA argues, as well, its attorney properly
made an appearance on the record in June 2014 and that, in any event, Plaintiff’s objection
asserting the contrary is irrelevant (Dkt. #49 at 3).
To begin, the SPCA’s attorney made an appearance on the record in June 2014 in the case
Plaintiff brought (and that the Court later consolidated with the present case) in the Eastern District
of Texas, Marshall Division (see Dkt. #11 in Eastern District of Texas Case No. 4:14-cv-385).
The Court accordingly overrules Plaintiff’s objection asserting to the contrary. Further, lack of

25

personal jurisdiction over a defendant—via failure of service or otherwise—is an argument that
the defendant makes, and one which the defendant may waive. See Fed. R. Civ. P. 12(h); see also
Stavang v. Am. Potash & Chem. Corp., 344 F.2d 117, 118-19 (5th Cir. 1965). The SPCA has
waived such argument and, in any event, seeks dismissal on other grounds here. Fed. R. Civ. P.
12(h) (referencing Rule 12(g)(2)). The Court overrules Plaintiff’s objection.
Objection 7: Alleged Factual Errors by Magistrate Judge in Report and Recommendation
Plaintiff objects that the Magistrate Judge mischaracterizes Plaintiff’s requested relief,
erroneously summarizes the facts surrounding the seizure of her horses, and fails to correct and/or
relies upon certain characterizations of Plaintiff and the Property allegedly made in the underlying
criminal proceedings. The Court considers each objection in turn.
A.

Magistrate Judge’s Characterization of Plaintiff’s Requested Relief

Plaintiff takes issue with the Magistrate Judge’s characterization of this case as one which
“revolves around a conviction of animal cruelty”; Plaintiff objects to this characterization because
“this case rightfully revolves around the deprivations of [Plaintiff’s] constitutional rights in the
takings of [Plaintiff’s] horses and [personal property]” (Dkt. #59 at 5). In reviewing the report and
recommendation, the Court finds the Magistrate Judge’s characterization appropriate, as Plaintiff’s
claims relate to events that occurred incident to, or temporally proximate to, Plaintiff’s conviction.
Furthermore, the Magistrate Judge makes clear throughout the report and recommendation that
Plaintiff’s claims in the present case relate to the taking of her horses and personal property (see,
e.g., Dkt. #54 at 2-3, 13-14, 24-26).
B.

Magistrate Judge’s Observation Regarding Seizure of the Horses

Plaintiff objects to the Magistrate Judge’s observations that Brown came to the Property
on the day the horses were seized and that Plaintiff seemingly alleges she received some amount

26

of money as compensation for the horses (Dkt. #59 at 7-8). Plaintiff asserts now that Brown never
was on the Property and that she received no compensation for the horses (Dkt. #59 at 7-8). But
Plaintiff alleged in her Amended Complaint that “[n]either ACO Officer Misty Brown, nor Danny
Davis followed the manual’s protocol” in conducting the horse seizure and, further, that “[t]he
horses were just taken by the county, with $4,300 left to be paid back by [Plaintiff] for the beautiful
grey stallion . . .” (Dkt. #38 at 18-19). Moreover, Plaintiff asserts as part of her conversion claims
that Brown (and others) converted her horses (Dkt. #38 at 38). Even were the Court to accept as
true Plaintiff’s description of these events in her objections, the result remains the same—she fails
to state a claim upon which relief may be granted. Accordingly, the Court finds the error, if any,
harmless.
C.

Characterization of Plaintiff and the Property

Plaintiff objects to the Magistrate Judge’s failure to correct and/or reliance upon specific
characterizations of Plaintiff and the Property allegedly made in the underlying criminal
proceedings, namely Davis’s characterization of Plaintiff as a hoarder (Dkt. #59 at 41-42) and
Davis’s representation that dogs on the Property were starving and kept in a “shed,” rather than in
a “barn” (e.g., Dkt. #45 at 10-11; Dkt. #46 at 7). The Court finds upon review of the record that
the Magistrate Judge does not rely upon Davis’s allegedly false characterizations of Plaintiff or his
representations of the Property. Further, the Court finds that these details have no bearing on the
outcome of the present case, which concerns, as Plaintiff alleges, the taking and/or destruction of
Plaintiff’s personal property and horses. The Court notes it discusses Plaintiff’s animal cruelty
conviction and the related sentence here only to provide procedural background for the present
proceedings and to evaluate whether Plaintiff’s claims are Heck barred. Plaintiff’s objection is
overruled.

27

Plaintiff’s New Claims/Arguments
As noted, in addition to her specific objections to the Magistrate Judge’s report and
recommendation, Plaintiff also raises new claims and/or arguments in her objections, namely
(a) the Collin County Motion to Dismiss and the SPCA Motion to Dismiss were untimely filed
and, accordingly, Plaintiff should receive default judgment against all Collin County Defendants12;
(b) the Collin County Defendants consented to suit when they sought to transfer and/or consolidate
Plaintiff’s second-filed action in the Eastern District of Texas, Marshall Division, with the present
case; and (c) the Magistrate Judge should be recused or disqualified for demonstrating bias against
Plaintiff (Dkt. #59 at 9-10, 32).13
A.

Untimely Filed Motions and Request for Default

Plaintiff argues that because she filed the Amended Complaint in the instant case on
May 26, 2015, the SPCA and Defendants Collin County Sheriff’s Department, Davis, Driver,
Brown, Kirk, and Ware had until June 9, 2015 (fourteen days later) to respond under the Federal
Rules of Civil Procedure (Dkt. #59 at 9-10). Plaintiff further asks the Court to grant default
judgment against each of Defendants Collin County Sheriff’s Department, Davis, Driver, Brown,
Kirk, and Ware for their failure promptly to respond to the Amended Complaint (Dkt. #59 at 1011).

12

Plaintiff does not define “Collin County Defendants.” The Court presumes Plaintiff intends through this reference
to capture all Defendants employed by Collin County and/or the City of Lucas, such as the Individual County
Defendants, as well as Collin County and the City of Lucas (and related entities, such as the Collin County Sheriff’s
Department).
13
Plaintiff dedicates a section of her objections to “Prosecutorial Liability” wherein she raises wholly new allegations
regarding the prosecutor in the underlying criminal proceedings, as well as against two new persons not previously
named (Dkt. #59 at 33-34). Plaintiff failed to raise or even suggest the existence of such claims in any of her pleadings
before the Magistrate Judge. The Court declines to consider these allegations now. See, e.g., Imperium (IP) Holdings,
Inc. v. Apple, Inc., 920 F. Supp. 2d 747, 752 (E.D. Tex. 2013) (finding claims not presented before the magistrate
judge waived before the district court).

28

As an initial matter, the Court finds default inappropriate in this case. A default judgment
cannot be taken against any unserved Defendants (such as Collin County). See, e.g., Robinson v.
City of Houston, No. H-11-0654, 2011 WL 1806427, at *1 (S.D. Tex. May 11, 2011) (quoting Md.
State Firemen Ass’n v. Chaves, 166 F.R.D. 353, 354 (D. Md. 1996), which noted “[i]t is axiomatic
that service of process must be effective . . . before a default or a default judgment may be entered
against a defendant”). Moreover, as to the served Defendants, namely Davis, Driver, Kirk, Collin
County Sheriff’s Department, Brown, Ware, and the SPCA, each have filed timely answers and/or
responsive pleadings in this case, precluding a finding that any of them have defaulted.
As to the Defendants’ alleged untimeliness, Federal Rule of Civil Procedure 12 prescribes
a twenty-one-day period in which a defendant must serve a responsive pleading to a plaintiff’s
summons or complaint. Fed. R. Civ. P. 12(a)(1)(A). The clock begins to run on this period when
the defendant receives the summons and/or complaint. Id. Responsive pleadings include answers
to the complaint, as well as motions to dismiss pursuant to Rule 12(b)(6). See Fed. R. Civ. P. 7-8.
Importantly, if a defendant raises a defense in its timely answer to a plaintiff’s complaint, courts
generally allow a later Rule 12(b)(6) motion raising the same defense. Puckett v. United States,
82 F. Supp. 2d 660, 663 (S.D. Tex. 1999). Courts permit such motions because the timely filed
answer provides the requisite notice to the plaintiff of the defense later raised in the motion to
dismiss. Id.; see also Doe v. Bates, No. 5:05-CV-91-DF-CMC, 2006 WL 3813758, at *9 (E.D.
Tex. Dec. 27, 2006) (“[I]f the defendant has previously included in the answer the defense raised
in the Rule 12(b)(6) motion, thereby giving notice, then courts generally allow Rule 12(b)(6)
motions filed after the answer[] . . . .”). Further, a defendant need not re-assert defenses through
a new motion to dismiss in response to a plaintiff’s amended pleading absent court order,
particularly where “defects raised in the original [pleading] remain in the new pleading[] . . . .”

29

Jordan v. City of Phila., 66 F. Supp. 2d 638, 641 n.1 (E.D. Pa. 1999) (quoting 6 Charles A. Wright,
Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 1476 at 558 (2d ed.1990)
(in turn collecting cases)). And a defendant may file a Rule 12(b)(6) motion as late as trial. Fed.
R. Civ. P. 12(h)(2); Horwitz v. Food Town, Inc., 241 F. Supp. 1, 2 (E.D. La. 1965); Iturralde v.
Shaw Grp., Inc., No. 50-330, 2012 WL 1565356, at *3 (M.D. La. May 1, 2012). On the other
hand, a plaintiff’s failure to brief an argument in the plaintiff’s response to a motion to dismiss
generally results in waiver of such argument. See, e.g., Knudsen v. Bd. of Sup’rs of Univ. of La.
Sys., No. 14-382, 2015 WL 1757695, at *1 (E.D. La. Apr. 16, 2015) (finding plaintiff’s failure to
brief certain arguments in response to defendant’s motion for summary judgment waived those
arguments); Mayo v. Halliburton Co., No. H–10–1951, 2010 WL 4366908, at *5 (S.D. Tex. Oct.
26, 2010) (finding plaintiff’s failure to respond to defendants’ argument in their motion to dismiss
that plaintiff’s breach of contract claim be dismissed waived plaintiff’s argument on that point).
As noted supra, Plaintiff filed two lawsuits in this case, one presently pending before the
Court (the “Present Case”) and one before the Court’s Marshall Division that the Court later
consolidated with the Present Case (the “Consolidated Case”). Prior to consolidation, Defendants
Brown, Davis, Driver, Kirk, and Ware filed an answer to Plaintiff’s complaint in the Consolidated
Case asserting, inter alia, a qualified immunity defense (Dkt. #10 in Eastern District of Texas Case
No. 4:14-cv-385). Also prior to consolidation, Defendant the SPCA filed a motion to dismiss in
the Consolidated Case (Dkt. #11 in Eastern District of Texas Case No. 4:14-cv-385) substantially
identical to the SPCA Motion to Dismiss filed in the Present Case (see Dkt. #39).
In addition, after consolidation, the SPCA clearly filed its instant motion to dismiss in the
Present Case within twenty-one days of service, as the SPCA filed the Motion to Dismiss on the
twenty-first day following Plaintiff’s filing of the Amended Complaint (Dkt. #39). No argument

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can be made the motion is untimely. Plaintiff also filed no response to the SPCA Motion to
Dismiss, and Plaintiff does not argue in her objections (Dkts. #45-46) to the February 5, 2016
report and recommendation (Dkt. #42) that the SPCA Motion to Dismiss was untimely filed.
Defendants Brown’s, Davis’s, Driver’s, Kirk’s, and Ware’s answer in the Consolidated
Case appears to have been timely filed, as well,14 and therein these Defendants argue in addition
to their asserted immunity defenses that Plaintiff fails to state a claim upon which relief may be
granted (Dkt. #10 in Eastern District of Texas Case No. 4:14-cv-385). Plaintiff’s subsequent filing
of the Amended Complaint in the Present Case following consolidation does not render such
arguments null or untimely. See, e.g., Jordan, 66 F. Supp. 2d at 641 n.1. Further, as to Plaintiff’s
alleged failure to state a claim, Rule 12(h)(2) expressly permits filing of a motion to dismiss on
the basis of failure to state a claim as late as trial, particularly where the defendant already has
filed an answer or other responsive pleading. See Horwitz, 241 F. Supp. at 2; Iturralde, 2012 WL
1565356, at *3. Additionally, Plaintiff raised no argument regarding the timeliness of Defendants
Brown’s, Davis’s, Driver’s, Kirk’s, Ware’s, and Collin County Sheriff’s Department’s Motion to
Dismiss in her responses to that motion (see Dkt. #43; Dkt. #50). Because the failure to brief an
argument in response to such a motion results in waiver of that argument, the Court finds Plaintiff
waived the timeliness argument with regard to each of the instant motions to dismiss. See, e.g.,
Mayo, 2010 WL 4366908, at *5 (finding waiver and granting motion to dismiss breach of contract
claim where plaintiff failed to respond to defendants’ arguments made in motion to dismiss).
Even assuming either motion was untimely, the result herein would remain unchanged.
Because Plaintiff’s failure to state a claim against these Defendants merits dismissal under Section
1915, whether Defendants timely filed a motion to dismiss or answer in this case has no bearing

14

Summons were issued as to Brown, Davis, Driver, Kirk, and the SPCA, among others, on May 9, 2014, but the
record does not reflect when or whether those summons were executed.

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on the Court’s determination that Plaintiff, who proceeds here in forma pauperis, states no claim
for relief under the heightened Section 1915 standard. 28 U.S.C. § 1915(e)(2)(B); see also Potts
v. Texas, 354 F. App’x 70, 71 (5th Cir. 2009) (per curiam) (“The district court shall dismiss a case
filed IFP at any time if the complaint is frivolous or malicious.”) (citing Siglar, 112 F.3d at 193,
which notes that “frivolous” complaints are those that “lack[] an arguable basis in law or fact”).
Indeed, the Court has an independent obligation under Section 1915 to screen in forma pauperis
complaints such as Plaintiff’s, and may do so “at any time” the Court finds the action is frivolous
or malicious, or if the plaintiff otherwise fails to state a claim on which relief may be granted. See
Kenechukwu, 2016 WL 3961714, at *1. The Court has found as much regarding Plaintiff’s claims
against each of the named Defendants, including specifically Defendants Collin County Sheriff’s
Department, Davis, Driver, Brown, Kirk, Ware, and the SPCA in its analysis supra. The Court
accordingly overrules Plaintiff’s objection.
B.

Consent to Suit

Plaintiff also asserts that the Collin County Defendants, in seeking venue transfer (and
consolidation) of this case, “consented to the suit . . . and waived their 11th Amendment immunity”
(Dkt. # 59 at 32). Plaintiff alludes to the Ex Parte Young doctrine and cites related cases in support
of this argument. Presumably Plaintiff argues the State of Texas has thereby rendered itself
amenable to her lawsuit, as the Magistrate Judge (correctly) discussed the Eleventh Amendment
only with regard to the State.
Indeed, the Magistrate Judge thoroughly outlined the law of Eleventh Amendment
immunity to suit and the accompanying consent exception in the report and recommendation (see
Dkt. #54 at 21-23). The Magistrate Judge then concluded that Plaintiff failed to allege the State
of Texas had in any way consented to suit under the law, and that “Plaintiff names no individual

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representative of the State against whom she might raise claims under Ex Parte Young” (Dkt. #54
at 23). Plaintiff’s objections remedy neither of these deficiencies. In the Section 1983 context,
and relying on its Eleventh Amendment precedents, the U.S. Supreme Court has distinguished
clearly between municipalities and their representatives on the one hand and the state and its
representatives on the other. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 62-64, 66-67 (1989);
see also Monell, 436 U.S. at 690. The Will Court found that the State is not a “person” within the
meaning of Section 1983 and, accordingly, is not subject to suit under that statute. Will, 491 U.S.
at 64.

Likewise, the Monell Court relied in part on the idea that “[t]here is certainly no

constitutional impediment to municipal liability” in determining Section 1983 contemplates claims
against municipalities. 436 U.S. at 690 n.54. By the same logic, and because counties are not
considered part of the State, the acts of municipalities and their agents, whether in litigation or
otherwise, cannot serve as a basis for abrogating the State’s Eleventh Amendment immunity to
suit. See Williams v. Kaufman Cty., No. 3:97–CV–0875–L, 1998 WL 34190569, at *2 (N.D. Tex.
Sept. 18, 1998) (citing Mt. Healthy City Sch. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977)).
Accordingly, the Court overrules Plaintiff’s objection.
C.

Magistrate Judge’s Bias

Plaintiff objects, as well, that the Magistrate Judge exhibits bias because the Magistrate
Judge has not experienced the same alleged destruction of property as Plaintiff claims she has
experienced (Dkt. #59 at 5-6). Plaintiff further asserts the Magistrate Judge’s recitation of “false
material facts” proves this bias (Dkt. #59 at 6).
“disqualification” or recusal (Dkt. #59 at 7).

Plaintiff seeks the Magistrate Judge’s

The Court already has addressed Plaintiff’s

contentions regarding the Magistrate Judge’s recitation of the facts of this case in its analysis
supra; accordingly, the Court will address only Plaintiff’s bias claims here.

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Judges should recuse themselves from adjudicating a case where they “exhibit [such] high
level of animosity [as] would render a fair judgment impossible.” Opiyo v. Musgrave, 574 F.
App’x 491, 493 (5th Cir. 2014) (per curiam) (citing United States v. Mizell, 88 F.3d 288, 299 (5th
Cir. 1996)). A party must produce a “timely and sufficient affidavit” evincing a judge’s “personal
bias” in order to properly seek recusal. Douglas v. Houston Hous. Auth., 587 F. App’x 94, 98 (5th
Cir. 2014) (per curiam) (quoting 28 U.S.C. § 144). Section 144 of 28 U.S.C. provides as follows:
Whenever a party to any proceeding in a district court makes and files a timely and
sufficient affidavit that the judge before whom the matter is pending has a personal
bias or prejudice either against him or in favor of any adverse party, such judge
shall proceed no further therein, but another judge shall be assigned to hear such
proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice
exists, and shall be filed not less than ten days before the beginning of the term at
which the proceeding is to be heard, or good cause shall be shown for failure to file
it within such time. A party may file only one such affidavit in any case. It shall be
accompanied by a certificate of counsel of record stating that it is made in good
faith.
28 U.S.C. § 144. Some of the grounds for recusal of a judge are stated in 28 U.S.C. § 455 and
include the following:
(a) Any justice, judge, or magistrate judge of the United States shall disqualify
himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the proceeding; . . .
28 U.S.C. § 455(a)-(b). Thus, an affidavit suffices to make the requisite showing where it
demonstrates “facts . . . such that, if true, . . . would convince a reasonable person that bias exists,”
and “facts [that would] show the bias is personal, as opposed to judicial[,] in nature.” Id. (quoting
Phillips v. Joint Legislative Comm. on Performance & Expenditure Review of Miss., 637 F.2d
1014, 1019 (5th Cir. 1981)). The party seeking recusal must show a “deep-seated favoritism or

34

antagonism that would make fair judgment impossible.” Liteky v. United States, 510 U.S. 540,
555 (1994). With or without such affidavit, however, judges should still recuse themselves where
“[their] impartiality might reasonably be questioned[,]” i.e., where “a well-informed, thoughtful
and objective observer would question the court’s impartiality.” Douglas, 587 F. App’x at 98
(quoting Republic of Panama v. Am. Tobacco Co., 217 F.3d 343, 346 (5th Cir. 2000)) (quotations
omitted). This would be the case where “the probability of actual bias on the part of the judge . . .
is too high to be constitutionally tolerable.” Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868,
877 (2009) (quotations omitted). To determine whether such probability exists, courts should ask
“not whether the judge is actually, subjectively biased, but whether the average judge in [the same]
position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’” Id. at
881.
In the present case, Plaintiff fails to show the Court should require the Magistrate Judge’s
recusal and/or disqualification. To begin, Plaintiff proffers no affidavit showing the Magistrate
Judge harbors impermissible bias regarding Plaintiff’s case. And even were the Court to consider
Plaintiff’s objections as such, Plaintiff still fails to show the Magistrate Judge’s bias. Plaintiff
asserts that, because the Magistrate Judge has not endured the same wrongs Plaintiff alleges she
has in this case, namely destruction of cherished personal property by Defendants, the Magistrate
Judge’s recommendation that Plaintiff’s claims be dismissed demonstrate the Magistrate Judge’s
bias (Dkt. #59 at 5). Given the Magistrate Judge’s detailed analysis of the facts (as Plaintiff alleges
them) and the Magistrate Judge’s citation to and application of the law governing Plaintiff’s
claims, however, the Court finds no reasonable observer would question the Magistrate Judge’s
impartiality on these grounds. Further, upon review of the record, the Court finds no indication of
any favoritism or antagonism towards any Party on the Magistrate Judge’s part or even the

35

appearance of same. Plaintiff fails to demonstrate the Magistrate Judge harbors any impermissible
bias or that the Magistrate Judge has in any way demonstrated partiality in this case. The Court
overrules Plaintiff’s objection.
CONCLUSION
Having considered each of Plaintiff’s objections (Dkts. #45-46; Dkt. #59) and having
conducted a de novo review, the Court is of the opinion that the findings and conclusions of the
Magistrate Judge are correct and adopts the Magistrate Judge’s reports (Dkt. #42; Dkt. #54) as the
findings and conclusions of the Court.
Accordingly, it is ORDERED that Plaintiff’s Amended Complaint (Dkt. #38) is

.

DISMISSED, and Plaintiff’s claims are DISMISSED with prejudice.
All relief not previously granted is DENIED.
The Clerk is directed to CLOSE this civil action.
IT IS SO ORDERED.

SIGNED this 29th day of March, 2017.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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