Fields v. Texas Department of State Health Services et al

Filing 117

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE - Having considered Fields's timely filed objections (Dkts. #97, #98, #111, #112, #113), and having conducted a de novo review, the Court adopts the Magistrate Jud ge's reports (Dkts. #93, #94, #100, #101, #102) as the findings and conclusions of the Court. It is ORDERED that Defendant Jim Fallon Motion to Dismiss (Dkt. 41 ), the County Defendants' Motion to Dismiss (Dkt. 42 ), Defendant Keith Ga ry's Motion to Dismiss (Dkt. 66 ), and the City Defendants' Motion to Dismiss (Dkt. #67) each be GRANTED. It is finally ORDERED that Fields's Motion for Leave of District Court to Amend Complaint Pleadings (Dkt. 107 ) and Fields's Motion to Deem September 25, 2017 Filing As Filed on September 22, 2017 (Dkt. 108 ) are DENIED. Signed by District Judge Amos L. Mazzant, III on 10/19/2017. (baf, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

SCOTT FIELDS
v.
TEXAS DEPARTMENT OF STATE
HEALTH SERVICES, DAVID LACKEY,
CITY OF SHERMAN, TEXAS, CARY
WACKER, OTIS HENRY, SAM BOYLE,
RYAN HAPIUK, JEFF JONES, GRAYSON
COUNTY, TEXAS, TEXAS JUSTICE OF
THE PEACE COURT NO 1, LARRY
ATHERTON, JUDGE; OFFICE OF THE
DISTRICT ATTORNEY FOR GRAYSON
COUNTY, TEXAS, JOE BROWN, BRETT
SMITH, KEITH GARY, 15TH JUDICIAL
DISTRICT COURT OF GRAYSON
COUNTY, TEXAS, JIM FALLON, JUDGE;
JAMES DUNN, JOHN DOE, (OFFICER
COLBERT); MIKE REEVES, GRAYSON
COUNTY, TEXAS JUSTICE OF THE
PEACE COURT NO. 3, OFFICE OF THE
ATTORNEY GENERAL FOR THE STATE
OF TEXAS

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Civil Action No. 4:16-CV-607
(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 August 15, 2017, the report of the Magistrate Judge (Dkt. #93) was entered containing
proposed findings of fact and recommendations that Defendant Jim Fallon’s Motion to Dismiss be
granted (Dkt. #41). On August 21, 2017, the report of the Magistrate Judge (Dkt. #94) was entered
containing proposed findings of fact and recommendations that the County Defendants’ Motion to
Dismiss (Dkt. #42) be granted. On September 13, 2017, the reports of the Magistrate Judge
(Dkts. #100, #101, #102) were entered containing proposed findings of fact and recommendations

that Defendant Dunn be dismissed from Fields’s Complaint pursuant to §1915, and that Defendant
Gary’s Motion to Dismiss (Dkt. #66) and the City Defendants’ Motion to Dismiss (Dkt. #67) each
be granted. Having received the reports and recommendations of the Magistrate Judge (Dkts. #93,
#94, #100, #101, #102), having considered Fields’s timely filed objections (Dkts. #97, #98, #111,
#112, #113), and having conducted a de novo review, the Court is of the opinion that the Magistrate
Judge’s reports (Dkts. #93, #94, #100, #101, #102) should be adopted as set forth below. Further,
Fields’s Motion for Leave of District Court to Amend Complaint Pleadings (Dkt. #107) is denied.
RELEVANT BACKGROUND
1.

General Background
The underlying facts are set out in further detail by the Magistrate Judge and need not be

repeated here in their entirety. Accordingly, the Court sets forth herein only those facts pertinent
to Fields’s objections. On August 12, 2014, Defendant David Lackey, the then-commissioner for
the Texas Department of State Health Services (“DSHS”), and Defendant FNU Colbert, a DSHS
officer, reported to the Sherman, Texas Police Department that Plaintiff Scott Fields (“Fields”) left
a phone message for Lackey, wherein Fields allegedly threatened to physically assault or murder
Lackey. Fields claims the accusations made by DSHS Officers Lackey and Colbert were false
because the phone message itself did not contain any statements whatsoever which could be
construed as threats of violence, physical assault or murder against Lackey or anyone else
(Dkt. #14 at 3).
Fields claims that thereafter Defendants City of Sherman, Texas, Sherman Mayor Cary
Wacker, Sherman Police Chief Otis Henry, Sherman Police Officers Sam Boyle and Ryan Hapiuk,
Grayson County Prosecutors Joe Brown and Brett Smith, Judges Larry Atherton, Mike Reeves,
and Jim Fallon, and Fields’s defense counsel James Dunn acted together to investigate charges

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against Fields, and then formally charge, arrest, and prosecute Fields based on DSHS Officers
Lackey and Colbert’s false accusations of criminal activity (Dkt. #14 at 4). The Sherman police
allegedly did not sufficiently investigate Lackey and Colbert’s accusations, arrested Fields without
probable cause, and should have contacted the Austin, Texas police force to investigate this case
(Dkt. #14 at 14). City of Sherman police officers Henry, Boyle and Hapiuk investigated the false
accusations and authored a related police report (Dkt. #14 at 15). Fields contends that the City of
Sherman, Sherman Mayor Wacker, Officer Henry, and Grayson County Prosecutors Brown and
Smith, allegedly directed the investigation (Dkt. #14 at 15). On August 19, 2014, Officer Hapiuk
went to Fields’s home for the purpose of obtaining Fields’s recorded statement; Fields refused to
respond to Officer Hapiuk’s questions (Dkt. #14 at 18-19).
Subsequently, on August 22, 2014, after being presented a warrant application, Judge
Atherton, a Grayson County justice of the peace, issued a warrant for Fields’s arrest
(Dkt. #14 at 20).

Officer Hapiuk arrested Fields at his home during the afternoon of

August 22, 2014 (Dkt. #14 at 22). On August 25, 2014, Judge Atherton arraigned Fields, ordered
Fields’s detention, and set Fields’s bond at $75,000 (Dkt. #14 at 22). Further, Judge Atherton
offered Fields the assistance of court-appointed counsel, but Fields declined (Dkt. #14 at 23).
While Fields was in custody, Sheriff Gary allegedly kept Fields in solitary confinement at the
Grayson County Jail from August 25, 2014 to November 2014 without cause, with no access to
the law library, and with access to the recreation courtyard for one hour each day (Dkt. #14 at 2223).
Fields claims that Lackey, Colbert, Officers Henry, Boyle, Hapiuk, and Jones, Judge
Atherton, and Prosecutor Brown conspired together to present evidence before the grand jury in
November 2014, which resulted in the grand jury charging Fields in a two-count indictment

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(Dkt. #14 at 24). Fields alleges Judge Reeves, a Grayson County justice of the peace, failed to
notice that the indictment was vague and ambiguous, and failed to state a crime (Dkt. #14 at 25).
Fields’s case was then assigned to Judge Jim Fallon, of the 15th Judicial District Court, Grayson
County (Dkt. #14 at 25). Judge Fallon contacted Fields in jail with a further offer of courtappointed counsel. Fields accepted Judge’s Fallon’s offer, but insisted that the attorney not be
from Grayson County. Judge Fallon appointed Dunn, a criminal defense attorney from Sherman,
Texas (Dkt. #14 at 26). Attorney Dunn met with Fields at Grayson County Jail (Dkt. #14 at 26).
Fields alleges Attorney Dunn conspired with law enforcement, the prosecutors and the judges
against Fields, namely by refusing to challenge Fields’s continued detention, and failing to file a
motion to dismiss or a state habeas corpus petition (Dkt #14 at 27-28). After being detained for
215 days, Prosecutors Brown and Smith moved to dismiss the charges against Fields
(Dkt. #14 at 4, 33).
On August 12, 2016, Fields filed the instant suit, and on January 9, 2017, the Court ordered
Fields to file an amended complaint consolidating all factual allegations and claims against all
Defendants into a single pleading (Dkt. #12). Fields timely complied, but soon after moved to
further amend his complaint (Dkt. #16). The Court ordered Fields to file the requested Second
Amended Complaint on or before April 7, 2017 (Dkt. #17). After Fields failed to file any amended
complaint, the Court ordered the preparation of summons and the Marshal’s service of Fields’s
First Amended Complaint and summons on Defendants (Dkt. #21). More specifically, Fields’s
allegations against each Defendant relevant to this memorandum adopting are:

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2.

Judge Jim Fallon
Fields sues Judge Jim Fallon in both his official and individual capacity and seeks monetary

damages (Dkt. #14 at 5-8). Specifically, Fields alleges that Judge Fallon failed to fulfill his judicial
duties by allowing the prosecution to go forward and keeping Fields detained (Dkt. #14 at 29).
Judge Fallon filed his Motion to Dismiss Fields’s Claims on May 8, 2017 (Dkt. #41). The Court
ordered Fields to respond to the Motion to Dismiss on June 8, 2017 (Dkt. #69). Fields’s original
Response to the Motion to Dismiss was filed on June 15, 2017 (Dkt. #71), and an amended
Response was filed on June 29, 2017 (Dkt. #84). Judge Fallon filed a reply on June 22, 2017
(Dkt. #79). On August 15, 2017, the Magistrate Judge recommended that Defendant Fallon’s
Motion to Dismiss be granted because: (1) Fields’s claims against Judge Fallon in his official
capacity are barred by sovereign immunity; and (2) Fields’s claims against Judge Fallon in his
individual capacity are barred by absolute judicial immunity (Dkt. #93).
3.

County Defendants
Fields sues Grayson County Justice of the Peace Larry Atherton, Grayson County District

Attorney Joe Brown, Grayson County Justice of the Peace Mike Reeves, Grayson County
Prosecutor Brett Smith, and Grayson County, Texas (herein, the “County Defendants”) under
§§1983 and 1985 for monetary damages. Fields sued the individual defendants in both their
official and individual capacities (Dkt. #14). Specifically, Fields alleges that Judge Reeves failed
to notice that the indictment was vague, ambiguous, and failed to state a crime. Fields contends
that Judge Atherton issued the warrant for Fields’s arrest, presided over Fields’s initial appearance
and detention hearing following the arrest, offered to appoint counsel for Fields, and set a $75,000
bond. Fields argues that Prosecutors Smith and Brown violated Fields’s constitutional rights
because they guided the criminal investigation performed by Sherman police officers Henry, Boyle

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and Hapiuk, pursued an indictment, prepared the case for trial, and ultimately dismissed the
charges against Fields in March of 2015. Finally, Fields alleges that Judges Reeves and Atherton,
Prosecutors Brown and Smith, along with DSHS Officers Lackey and Colbert, City of Sherman,
Texas, Officers Henry, Boyle, Hapiuk and Jones, and Attorney Dunn, “actively colluded and
conspired” “to lodge or advance egregiously insufficient crime accusations against him [and] to
usurp TxDSHS resources to lodge or advance crime accusation[s] against him.”
The County Defendants filed their Motion to Dismiss on May 8, 2017 (Dkt. #42). The
Court ordered Fields to respond to the Motion to Dismiss on June 8, 2017 (Dkt. #69). Fields’s
original Response to the Motion to Dismiss was filed on June 15, 2017 (Dkt. #72), and an amended
Response was filed on June 29, 2017 (Dkt. #85). On August 21, 2017, the Magistrate Judge
recommended that the County Defendants’ Motion to Dismiss be granted because: (1) Fields’s
claims against Grayson County and the individual County Defendants in their official capacities
fail to state a claim because Fields fails to allege any Grayson County policy that caused injury to
Fields; (2) Fields’s state tort claims are barred by the Texas Tort Claims Act; (3) Fields’s claims
against Judges Atherton and Reeves in their individual capacities are barred by absolute judicial
immunity; (4) Fields’s claims against Smith and Brown in their individual capacities are barred by
absolute prosecutorial immunity; and (5) Fields’s conspiracy claims fail to allege the individual
involvement of each of the County Defendants (Dkt. #94).
4.

City Defendants
Fields sued City of Sherman, Texas, Sherman Mayor Cary Wacker, and Officers Sam

Boyle, Ryan Hapiuk and Jeff Jones (collectively “City Defendants”) and Sherman Police Chief
Otis Henry under §§1983 and 1985 for monetary damages. Fields sued the individual defendants
in both their official and individual capacities (Dkt. #14). Specifically, Fields alleges that the City

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Defendants and Officer Henry conspired together to raise “insufficient crime accusations against
him.” Fields contends that Mayor Wacker and Officer Henry “directed and guided” the conduct of
the named city police officers. Further, Fields asserts that Officer Hapiuk violated Fields’s
constitutional rights by attempting to interview Fields and presenting a warrant application to a
magistrate judge. Finally, Fields alleges Officer Henry, along with Officers Jones, Hapiuk and
Boyce presented the results of the police investigation, which indicted Fields.
The City Defendants filed their Motion to Dismiss on June 7, 2017 (Dkt. #67). Fields’s
Response was filed on June 29, 2017 (Dkt. #82). On September 13, 2017, the Magistrate Judge
recommended that the City Defendants’ Motion to Dismiss be granted and Officer Henry should
be dismissed from Fields’s Complaint under §1915 because: (1) Fields’s allegations fail to state a
claim for conspiracy under §1985; (2) Fields’s claims against the City of Sherman and the
individual City Defendants and Officer Henry in their official capacities fail to state a claim
because Fields fails to allege any City of Sherman policy that caused injury to Fields; (3) Fields’s
allegations against the City Defendants and Officer Henry fail to state a claim for relief under
§1983 (Dkt. #102).
5.

Defendant Gary
Fields sued Sheriff Keith Gary in both his official and individual capacity and seeks

monetary damages (Dkt. #14 at 5-8). Specifically, Fields alleges that following Fields’s arrest,
Fields was placed in solitary confinement from August 25, 2014 to November 2014, was allowed
into the recreation courtyard only one time, and was not allowed to use the law library. Fields
alleges that Sheriff Gary is liable for this treatment.

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Sheriff Gary filed his Motion to Dismiss on June 7, 2017 (Dkt. #66). Fields’s original
Response to the Motion to Dismiss was filed on June 15, 2017 (Dkt. #73), and an amended
Response was filed on June 29, 2017 (Dkt. #86). On September 13, 2017, the Magistrate Judge
recommended that Defendant Gary’s Motion to Dismiss be granted because: (1) Fields’s claims
against Sheriff Gary in his official capacities fail to state a claim because Fields fails to allege any
Grayson County policy that caused injury to Fields; (2) Fields’s state tort claims are barred by the
Texas Tort Claims Act; and (3) Fields’s allegations against Sheriff Gary fail to state a claim for
relief under §1983 (Dkt. #101).
6.

Defendant Dunn
Fields sued Attorney Dunn under §§ 1983 and 1985 for monetary damages (Dkt. #14 at 5-

8). Specifically, Fields alleges Attorney Dunn conspired with law enforcement, the prosecutors,
and the judges against Fields, refused to challenge the accusations against Fields and Fields’s
continued detention, and failed to file a motion to dismiss or a state habeas petition (Dkt. #14 at 2728). Fields contends that “Dunn, through acts and omissions, actively colluded and conspired with
Defendants Lackey, Colbert, City of Sherman, Texas, Henry, Boyle, Hapiuk, Atherton, Jones,
Reeves, Brown and Smith to lodge or advance egregiously insufficient crime accusations against
him” (Dkt. #14 at 28).
On August 13, 2017, the Magistrate Judge recommended that Attorney Dunn be dismissed
from Fields’s Complaint pursuant to §1915 because: (1) Fields’s allegations fail to state a claim
for conspiracy under §1985; and (2) Dunn, as Fields’s court-appointed criminal defense counsel,
is not a state actor under §1983 (Dkt. #100).

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PLAINTIFF’S OBJECTIONS
Fields has filed objections to each of the Magistrate Judge’s reports referenced herein
(Dkts. #93, #94, #100, #101, #102). 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).
Fields has objected to each of the Magistrate Judge’s recommendations that the Court grant
Defendants’ Motions to Dismiss and dismiss Officer Henry and Attorney Dunn from his
Complaint under §1915 (Dkts. #97, #98, #111, #112, #113). Specifically, Fields objects that:
(1) “the district court has impermissibly revoked his entitlement to service of process and has
likewise effectively impaired him from effectively litigating this cause;” (2) “the district court has
balked and failed to properly address issues regarding whether or not Judge Amos Mazzant or
Christine Nowak hold personal relationships or impermissible sentiment toward the named
Defendants of this cause;” (3) “the attending magistrate has balked and failed to properly address
his complaint pleadings” and “repeatedly coins Fields’s complaint pleadings….[and]
responses…to be unspecific and deficient;” (4) “the district court currently operates bogus and
unauthorized protocols regarding this cause;” (5) “Judges Mazzant and Nowak alike have balked
or failed to address Fields’s allegations that Defendant Atherton, Reeves, Brown, Smith, and
Grayson County, Texas ha[ve] coerced him from bringing various pleadings and claims amid this
cause….[and] documents and evidence…from presentation and review;” (6) Judge Fallon and the
County Defendants have impermissibly “omit[t]ed or bypass[ed] an answer protocol and instead
delve[d] directly to a motion to dismiss protocol;” (7) the Magistrate Judge incorrectly considered
Judge Fallon and the County Defendants’ Motions to Dismiss by not subjecting their Motions to

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“strict construction;” (8) the Magistrate Judge did not address Fields’s prior objections raised
regarding Judge Fallon and the County Defendants’ Motions to Dismiss; and (9) the Magistrate
Judge “omitted material facts from [its] review and likewise authored and yielded a magistrate
report that gives a sketchy and omissive [sic] presentation of [Fields’s] complaint and claims
[against Judge Fallon and the County Defendants].”
Fields does not specifically object to the Magistrate Judge’s findings that: (1) Fields’s
claims against Judge Fallon in his official capacity are barred by sovereign immunity; (2) Fields’s
claims against Judges Fallon, Atherton, and Reeves and Prosecutors Smith and Brown are barred
by absolute immunity; (3) Fields’s claims against the City of Sherman, the individual City
Defendants and Officer Henry in their official capacities fail to state a claim because Fields fails
to allege any City of Sherman policy that caused injury to Fields; (4) Fields’s state tort claims are
barred by the Texas Tort Claims Act; (5) Fields’s claims against Grayson County, the individual
County Defendants and Sheriff Gary in their official capacities fail to state a claim because Fields
fails to allege any Grayson County policy that caused injury to Fields; (6) Fields’s allegations
against Sheriff Gary, the City Defendants, Officer Henry, and the County Defendants fail to state
a claim for relief under §1983; (7) Fields’s allegations fail to state a claim for conspiracy under
§ 1985; and (8) Fields’s claims against Attorney Dunn fail to state a claim because Dunn is not a
state actor under § 1983. As such, the Court adopts such findings and turns to analyze the
objections.
1.

Service of Fields’s Pleadings
Fields objects that “this district court impermissibly revoked his entitlement to service of

process by the United States Marshall [sic] Service; and likewise impaired his opportunities to
plead and be heard regarding [Defendants’] motion[s] to dismiss.” Specifically, Fields asserts that

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because the Court allowed him to proceed in forma pauperis, “he is entitled to service of process
regarding his every document filed amid this cause.” Section 1915 allows Courts to grant indigent
litigants permission to proceed without the prepayment of fees and appoint the U.S. Marshal
Service to effectuate service of process (i.e., serve the named defendants with the summons and
complaint). 28 U.S.C. § 1915 does not automatically cover all other costs associated with
litigation, such as costs of service for documents other than the complaint. See 28 U.S.C. § 1915.
By proceeding in forma pauperis in this cause, Fields does not have to pay the filing fee or pay for
service of process for the summons and complaint. However, Fields is not automatically entitled
to have the U.S. Marshal Service serve all the documents he files in this cause; instead, he must
ask the Court for such relief. In the instant case, Fields never asked the Court for relief from any
other costs other than the filing fee and service of process for the summons and complaint. Even
so, Fields has failed to demonstrate such fact (that the Marshals did not serve each document he
filed) has or could have kept him from prosecuting his case or responding to the Motions to
Dismiss. Insofar as Fields alleges, every pleading filed by Fields has been considered by the Court.
Accordingly, this objection is overruled.
2.

Disqualification
Fields next argues that “the district court has balked and failed to properly address issues

regarding whether or not Judge Amos Mazzant or Christine Nowak hold personal relationships or
impermissible sentiment toward the named Defendants of this cause.” In its Report and
Recommendation, the Magistrate Judge noted:
Fields’s responses state that the judges assigned in the above-captioned file (the
undersigned Magistrate Judge and the assigned presiding judge, District Judge
Amos Mazzant), are biased in their management of this litigation and their review
of Fields’s Complaint. To the extent Fields’s responses could be construed as a
motion for recusal of the undersigned magistrate judge, there is no basis for the
motion, and it is denied as lacking any merit.

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(Dkt. #93 at 8, n. 2). As such, Fields is incorrect that the Court has not considered his complaint
that the Judges in this matter are biased in their management of this case. Further, upon
independent review, the Court agrees with the Magistrate Judge’s conclusion that Fields’s
argument is without merit.
Under 28 U.S.C. § 455, Fields, as the party moving to recuse, bears “a heavy burden of
proof” in showing the Court should recuse. E.g., United States v. Reggie, No. 13-111-SDD-SCR,
2014 WL 1664256, at *2 (M.D. La. Apr. 25, 2014). The statute provides that “[a]ny justice, judge,
or magistrate judge of the United States shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.” 28 U.S.C. § 455. The decision whether to recuse
under § 455 is committed to the sound discretion of the Court asked to recuse. See, e.g., Garcia v.
City of Laredo, 702 F.3d 788, 793-94 (5th Cir. 2012); Sensley v. Albritton, 385 F.3d 591, 598
(5th Cir. 2004) (quoting Chitimacha Tribe v. Harry L. Laws Co., 690 F.2d 1157, 1166
(5th Cir. 1982)).
The U.S. Supreme Court has made clear “[t]he recusal inquiry must be made from the
perspective of a reasonable observer who is informed of all the surrounding facts and
circumstances.” Cheney v. U.S. Dist. Court for Dist. of Columbia, 541 U.S. 913, 924 (2004)
(emphases added); see also United States v. Morrison, 833 F.3d 491, 506 (5th Cir. 2016), cert.
denied, 137 S. Ct. 1098 (2017). The Fifth Circuit has interpreted this mandate to mean that
“[courts] ask how things appear to the well-informed, thoughtful and objective observer, rather
than the hypersensitive, cynical, and suspicious person” while remaining “mindful that an observer
of our judicial system is less likely to credit judges’ impartiality than the judiciary” would be.
United States v. Jordan, 49 F.3d 152, 156-57 (5th Cir. 1995). Indeed, the statute exists to mandate
recusal in cases where it truly appears (or is the case that) the presiding judge cannot consider the

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case impartially—not where a litigant’s speculation based on incomplete information implies
concealment and impropriety. See H.R. REP. NO. 93-1453, at 6355 (1974). Further, the recusal
inquiry is “extremely fact intensive and fact bound” and requires “a close recitation of the factual
basis for the . . . recusal motion” by the movant. Republic of Panama v. Am. Tobacco Co., Inc.,
217 F.3d 343, 346 (5th Cir. 2000). A court’s own analysis must likewise “be guided, not by
comparison to similar situations addressed by prior jurisprudence, but rather by an independent
examination of the facts and circumstances of the particular claim.” Id.; see also United States v.
Bremers, 195 F.3d 221, 226-27 (5th Cir. 1999) (finding that a “similar situation” presented in
another case calling for the same district judge’s recusal merited independent consideration).
In the instant case, Fields neither cites any legal authority for his proposition that the
undersigned or the Magistrate Judge should be disqualified from presiding over this case, nor does
he allege any facts that support his conclusion. Fields’s unfounded contention that “Judges
Mazzant and Nowak both know some or many of the defendants of this cause; and have personal
time with them in the same,” even if true, without more, is insufficient for recusal. Accordingly,
this objection is overruled.
3.

Timing of Defendants’ Motions to Dismiss
Fields argues that Judge Fallon and the County Defendants have impermissibly “omit[t]ed

or bypassed an answer protocol and instead delve[d] directly to a motion to dismiss protocol.”
Fields specifically asserts that Judge Fallon and the County Defendants filed their Motions to
Dismiss “to swamp him to voluminous terms of this motion to dismiss protocol amid factual and
legal quagmires abound, to scurry his first amended complaint to review for dismiss, and to upend
him from any further amendment of his complaint pleadings.” (Dkt. #97 at 19). Fields’s argument
is meritless. Under Federal Rule of Civil Procedure 12(b), if a defendant desires to assert a Rule

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12(b) defense by motion, then he must do so before filing his answer. See also 5C A.C. Wright,
A. Miller & M. Kane, Federal Practice and Procedure §1361 (2017). Judge Fallon and the County
Defendants are not engaging in gamesmanship by filing their Motions to Dismiss prior to filing
their Answers; they are merely following the Federal Rules of Civil Procedure. Accordingly, this
objection is overruled.
4.

Strict Construction
Fields objects that the Magistrate Judge failed to submit Judge Fallon and the County

Defendants’ Motions to Dismiss to “strict construction.” According to Fields, had the Magistrate
Judge held these Motions to Dismiss to a higher standard, it would have found the Motions to
Dismiss contained a fatal error in that both were addressed “directly to Judge Nowak” and these
defendants “[have] never even lodged any valid motion to dismiss with this district court”
(Dkt. #97 at 15). Under 28 U.S.C. § 636(b)(1)(B), “a judge may also designate a magistrate judge
to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed
findings of fact and recommendations for the disposition, by a judge of the court, of [a motion to
dismiss].” The case was referred to the Magistrate Judge for pre-trial purposes in accordance with
28 U.S.C. § 636. Accordingly, Judge Fallon and the County Defendants did not err in addressing
their Motions to Dismiss to the Magistrate Judge, who bore responsibility for making a
recommendation to this Court on such motions, and did not fail to “lodge[] any valid motion to
dismiss with this district court.” This objection is overruled.
5.

Fields’s Coercion Claims
Fields objects that “Judges Mazzant and Nowak alike have balked or failed to address

Fields’s allegations that Defendant Atherton, Reeves, Brown, Smith, and Grayson County, Texas
[and Judge Fallon] ha[ve] coerced him from bringing various pleadings and claims amid this

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cause….[and] documents and evidence…from presentation and review”(Dkts. #97 at 11;
#98 at 12). In his First Amended Complaint, Fields complains that Judge Fallon coerced him “to
speak with Grayson County prosecutors despite [Fields’s] expressed demand for a purely silent
defense; harped to Fields that he or attorney James Dunn had filed no motions” (Dkt. #14 at 29).
Aside from this single allegation which directly contradicts his objection, Fields does not raise any
other mention of coercion in his complaint. “The filing of objections is not an opportunity for
Fields[] to…present new arguments.” Green v. Bank of Am., N.A., No. 4:13CV92, 2013 WL
6178499, at *1 (E.D. Tex. Nov. 25, 2013) (Clark, J.).
Regardless, this argument is meritless. As the Magistrate Judge correctly found, Fields’s
claims against Judge Fallon and the County Defendants fail to state a claim for relief. Fields’s
claims against Judge Fallon are barred by sovereign immunity and judicial immunity: Fields’s new
bare accusation that Judge Fallon kept him from presenting certain claims and evidence does not
alter that conclusion. Moreover, Fields’s conclusory allegations against the County Defendants
fail to state a claim for relief. Fields does not state what these pleadings were or what this evidence
consisted of. Fields does not detail what actions or omissions were taken by these defendants to
prevent him from presenting these pleadings or arguments.

Accordingly, this objection is

overruled.
6.

Fields’s Conclusory Objections
Fields argues that the Report and Recommendation failed to address material facts in

Fields’s Complaint. Fields asserts that the “magistrate report gives a sketchy and omissive [sic]
presentation of his complaint.” Fields fails to allege what material facts were omitted by the
Magistrate Judge, and upon independent review of Fields’s pleadings and the Report and
Recommendation, the Court finds that this conclusory objection is meritless.

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Along the same vein, Fields argues that the Magistrate Judge discounted Fields’s
Complaint and Responses to Defendants’ Motions to Dismiss by labeling them as “unspecific and
deficient.” Fields fails to address how this characterization is incorrect, and moreover, upon
independent review of Fields’s Complaint and Responses, the Court agrees with the Magistrate
Judge’s characterization that these pleadings are unspecific and deficient. Fields also objects that
the Magistrate Judge did not address Fields’s prior objections raised regarding Judge Fallon and
the County Defendants’ Motions to Dismiss. Fields alleges in his Objection that “Fields filed
those objections with this district court on _________. (Dckt. ____).” (Dkts. #97 at 16, #98 at 19).
Fields does not identify when these alleged objections were filed or what docket number they were
filed under. Fields also does not reiterate the substance of these objections. Broadly construing
Fields’s objection that the Magistrate Judge did not consider his prior objections, insofar as Fields
is referring to his responses to Defendants’ Motions to Dismiss, the Court finds that the Magistrate
Judge aptly considered his responses in recommending that Defendants’ Motions to Dismiss be
granted.
Finally, Fields argues that “the district court currently operates bogus and unauthorized
protocols regarding this cause.” Fields fails to provide any examples of the allegedly bogus and
unauthorized protocols. Additionally, Fields does not describe or provide authority that the district
court’s handling of this matter is unauthorized. Because Fields fails to support these objections
with any specific argument or evidence, the Court finds that all are unsupported by the record.
Even though Fields is proceeding pro se, he must support his objections with facts and argument.
Accordingly, these objections are overruled.

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7.

Fields’s Motion for Leave to Amend
Fields filed a Motion for Leave of District Court to Amend Complaint Pleadings on

September 25, 2017 (Dkt. #107).1 Fields asserts that he “has need to amend his complaint
pleadings in this cause” (Dkt. #107 at 1). Defendants City of Sherman, Officers Wacker, Boyle,
Hapiuk and Jones, Grayson County, Judge Atherton, Prosecutors Brown and Smith, Sheriff Gary,
Judge Reeves, and Judge Fallon filed a Response in opposition to Fields’s Motion for Leave to
Amend Complaint (Dkt. #116). These Defendants argue that “Fields’s Motion for Leave is both
deficient and futile, and therefore, should be denied” (Dkt. #116 at 1). The Response further argues
that “Fields was previously given opportunity to amend and was previously ordered to file any
amendment by February 27, 2017. Later, the Court granted a prior Motion for Leave of Court to
Amend Pleadings and ordered any amendment to be filed April 7, 2017.” (Dkt. #116 at 1-2). The
Response adds that Fields’s Motion is deficient because it does not include Fields’s proposed
amendment, and that the new arguments Fields mentions in his Motion are futile because they “fail
to overcome the immunities asserted by [Defendants]” and do not “address the basis for dismissal
found in the…Reports and Recommendations” (Dkt. #116 at 2).
As an initial matter, Federal Rule of Civil Procedure 15(a)(1) states that “[a] party may
amend its pleading once as a matter of course within: (A) 21 days of serving it, or (B) if the
pleading is one to which a responsive pleading is required, 21 days after service of a responsive
pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.”
Rule 15(a)(2) provides that “[i]n all other cases, a party may amend its pleading only with the
opposing party’s written consent or the court’s leave.”

Plaintiff also filed Plaintiff’s Motion to Deem September 25, 2017 Filing As Filed on September 22, 2017
(Dkt. #108), wherein Plaintiff requests the Court to construe his Motion for Leave as filed on September 22, 2017.
Because the Court denies Plaintiff’s Motion for Leave for reasons other than its September 25, 2017 filing, Plaintiff’s
Motion to Deem is denied as moot.
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Fields is not entitled to his requested relief under Rule 15(a)(1)(A)-(B) or Rule 15(a)(2).
Fields filed his First Amended Complaint (Dkt. #14) on February 27, 2017. The last-filed Motion
to Dismiss was filed (Dkt. #67) on June 7, 2017. Fields filed the instant Motion for Leave on
September 25, 2017. Rule 15(a)(1) does not apply because Fields seeks to file his Second
Amended Complaint more than twenty-one (21) days after service of his Amended Complaint
and/or Defendants’ Motions to Dismiss. Additionally, the Court finds that Rule 15(a)(2) does not
apply here because justice does not require the Court grant Fields leave to further amend. First, in
its September 9, 2016 Order, the Court gave Fields until November 16, 2016 to file an amended
complaint setting forth “all factual allegations and claims against all Defendants” (Dkt #4).
Second, on December 28, 2016, the Court gave Fields an additional sixty days to file an amended
complaint (Dkt. #11). Third, in its January 9, 2017 Order, the Court gave Fields until February
27, 2017 to file an amended complaint (Dkt. #12). Fourth, in its March 23, 2017 Order, the Court
allowed Fields until April 7, 2017 to file an amended complaint (Dkt. #17). Fields failed to take
advantage of any opportunity provided by the Court to amend his deficient pleading.
Moreover, Fields’s Motion for Leave neither sufficiently details the addition of any new
parties or claims, nor remedies the deficiencies in Fields’s current pleading. Fields fails to argue
any reason why he should now be granted leave to amend his complaint. Further, Fields states no
reason, much less a compelling reason, for seeking to amend his complaint nearly six months after
the Court last ordered him to do so. The Court previously provided Fields ample opportunity to
file an amended complaint setting forth any and all factual allegations and/or claims asserted by
Fields in this matter (Dkts. #4, #11, #12, #17).

Fields may not further amend his complaint as a

matter of course, nor does justice require any such amendment. Additionally, Local Rule CV-7(k)
states “[m]otions for leave to file a document should be filed separately and immediately before

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the document for which leave is sought.” Because Fields failed to attach his proposed amended
complaint, Fields’s Motion for Leave is deficient under Local Rule CV-7(k). Accordingly, Fields’s
Motion for Leave of District Court to Amend Complaint Pleadings is denied.
CONCLUSION
Having considered Fields’s timely filed objections (Dkts. #97, #98, #111, #112, #113), and
having conducted a de novo review, the Court adopts the Magistrate Judge’s reports (Dkts. #93,
#94, #100, #101, #102) as the findings and conclusions of the Court.
It is ORDERED that Defendant Jim Fallon Motion to Dismiss (Dkt. #41), the County
Defendants’ Motion to Dismiss (Dkt. #42), Defendant Keith Gary’s Motion to Dismiss (Dkt. #66),
and the City Defendants’ Motion to Dismiss (Dkt. #67) each be GRANTED. It is further
ORDERED that each and every of Fields’s claims against Defendants City of Sherman, Texas,
Cary Wacker, Sam Boyle, Ryan Hapiuk, Jeff Jones, Grayson County, Texas, Texas Justice of the
Peace Court No. 1, Judge Larry Atherton, Office of the District Attorney for Grayson County,
Texas, Joe Brown, Brett Smith, Keith Gary, 15th Judicial District Court of Grayson County, Texas,
Judge Jim Fallon, Mike Reeves, and Grayson County, Texas Justice of the Peace Court No. 3 are
DISMISSED.
It is further ORDERED that Fields’s claims against Defendants Otis Henry and James
Dunn are DISMISSED pursuant to § 1915.

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.

It is finally ORDERED that Fields’s Motion for Leave of District Court to Amend
Complaint Pleadings (Dkt. #107) and Fields’s Motion to Deem September 25, 2017 Filing As
Filed on September 22, 2017 (Dkt. #108) are DENIED.
IT IS SO ORDERED.

SIGNED this 19th day of October, 2017.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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