Fields v. Texas Department of State Health Services et al

Filing 124

MEMORANDUM ADOPTING IN PART REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE 103 re Opposed MOTION to Dismiss 63 . ORDERED that Defendant Dr. David Lackey's and Respondent Office of the Attorney General's Motion to Dismiss (Dkt. #63) is GRANTED IN PART. It is further ORDERED that Plaintiff Fields shall file a Rule 7(a) reply within 14 days from the date of this Order. Signed by District Judge Amos L. Mazzant, III on 12/7/2017. (rpc, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

SCOTT FIELDS
v.
TEXAS DEPARTMENT OF STATE
HEALTH SERVICES, DAVID LACKEY,
JOHN DOE, (OFFICER COLBERT),
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 IN PART REPORT AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report 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 September 15, 2017, the report of the Magistrate Judge (Dkt. #103) was entered containing
proposed findings of fact and recommendations that Defendant Dr. David Lackey and Respondent
Office of the Attorney General’s Motion to Dismiss (Dkt. #63) be granted in part. Having received
the report and recommendation of the Magistrate Judge (Dkt. #103), having considered Plaintiff
Scott Fields’s objections (Dkt. #110), Dr. David Lackey and the Office of the Attorney General’s
objections (Dkt. #109) and having conducted a de novo review, the Court is of the opinion that the
Magistrate Judge’s report (Dkt. #103) should be adopted in part as set forth below.
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 the Parties’ objections.

On August 12, 2014, Defendant Dr. 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 Dr. Lackey, wherein Fields allegedly threatened to
physically assault or murder Dr. Lackey. Fields claims the accusations made by Dr. Lackey and
Officer 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
Dr. Lackey or anyone else (Dkt. #14 at p. 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
against Fields, and then formally charge, arrest, and prosecute Fields based on Dr. Lackey and
Officer Colbert’s false accusations of criminal activity (Dkt. #14 at pp. 3-4). After being detained
for 215 days, the charges against Fields were dismissed (Dkt. #14 at pp. 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. #15). 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). On October 19, 2017, the
Court dismissed Fields’s claims against each of Defendants Otis Henry, James Dunn, City of
Sherman, Texas, Cary Wacker, Sam Boyle, Ryan Hapiuk, Jeff Jones, Grayson County, Texas,
Grayson County, Texas Justice of the Peace Court No. 1, Judge Larry Atherton, Office of the

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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 (Dkt. #117). Accordingly, the Office of the Attorney
General, the DSHS, Dr. Lackey, and Officer Colbert are the only remaining defendants in this
action.
Dr. Lackey and the Office of the Attorney General filed their Motion to Dismiss on May 30,
2017 (Dkt. #63). On June 15, 2017, Fields filed his original response (Dkt. #70), and on June 29,
2017, Fields filed his supplemental response (Dkt. #81). The Magistrate Judge entered a Report
and Recommendation on September 15, 2017, recommending partially granting the Motion to
Dismiss (Dkt. #103). Specifically, the Magistrate Judge found that: (1) Fields’s claims against the
Office of the Attorney General, the DSHS, and Dr. Lackey and Officer Colbert in their official
capacities should be dismissed for lack of subject matter jurisdiction pursuant to Eleventh
Amendment immunity (Dkt. #103 at pp. 9–12); (2) Fields’s claims against Dr. Lackey are not
barred by the statute of limitations (Dkt. #103 at pp. 12–13); (3) Fields’s claims against Dr. Lackey
and Officer Colbert in their individual capacities should not be dismissed (Dkt. #103 at p. 16); and
(4) Fields should be ordered to file a Rule 7(a) reply that addresses Dr. Lackey and
Officer Colbert’s qualified immunity defense and clarifies his (potential) malicious prosecution
claim (Dkt. #103 at p. 16). Dr. Lackey filed his objections to the Report and Recommendation on
September 28, 2017 (Dkt. #109). Fields filed his objections to the Report and Recommendation
on October 2, 2017 (Dkt. #110).

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OBJECTIONS
Fields and Dr. Lackey have filed objections to the Magistrate Judge’s report referenced
herein (Dkt. #103). 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 the Magistrate Judge’s recommendation that the Court dismiss his
claims against the Office of the Attorney General, DSHS, and Dr. Lackey and Officer Colbert in
their official capacities. Specifically, Fields objects that: (1) “this district court has impermissibly
revoked [] his entitlement to service of process and has likewise effectively impaired him from
effectively litigating this cause” (Dkt. #110 at pp. 1–2); (2) “this district court has balked and failed
to properly address issues regarding whether or not Judge Amos Mazzant or Judge Christine
Nowak hold personal relationships or impermissible sentiment toward the named Defendants”
(Dkt. #110 at p. 2); (3) “the attending magistrate has balked and failed to properly address his
complaint pleadings” (Dkt. #110 at p. 2); and (4) “this district court currently operates bogus and
unauthorized protocols regarding this cause” (Dkt. #110 at p. 2). Notably, each of Fields’s
objections to the Report and Recommendation currently before the Court are identical and/or
substantially similar to the objections Fields previously raised in connection with the Magistrate
Judge’s related Reports and Recommendations in this case (see Dkts. #97, #98, #111, #112, #113).
The Court has already considered and subsequently overruled each of Fields’s objections in its
Memorandum Adopting Report and Recommendation of United States Magistrate Judge
(Dkt. #117). Notwithstanding, the Court again sets forth herein its analysis of such objections.

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Dr. Lackey makes a singular objection; he objects to the Magistrate Judge’s
recommendation that Fields’s claims against Dr. Lackey in his individual capacity should not be
dismissed at this stage, and instead, Fields should be ordered to file a Rule 7(a) reply (Dkt. #109).
Specifically, Dr. Lackey objects that because Fields “failed to demonstrate the inapplicability of
the qualified immunity defense,” (Dkt. #109 at p. 2) (internal quotation marks omitted), and
“failed to state a colorable claim,” Fields’s claims against Dr. Lackey in his individual capacity
should have been dismissed on these bases (Dkt. #109 at p. 2). Dr. Lackey also objects to the
Magistrate Judge’s recommendation to provide Fields “a second opportunity to respond to
Defendant Colbert’s qualified immunity defense” because Fields should not be “entitled to
continue pursuing claims against a fictional party” (Dkt. #109 at p. 3) (internal quotation marks
omitted).
Neither Fields nor Dr. Lackey specifically object to the Magistrate Judge’s findings that:
(1) Fields’s claims against the Office of the Attorney General, DSHS, and Dr. Lackey and
Officer Colbert in their official capacities should be dismissed for lack of subject matter
jurisdiction pursuant to Eleventh Amendment immunity; and that (2) Fields’s claims against
Dr. Lackey are not barred by the statute of limitations (Dkt. #103 at pp. 12–13). As such, the Court
adopts such findings and turns to analyze both Fields and Dr. Lackey’s objections.
1.

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

process and likewise impaired him from effectively litigating this cause” (Dkt. #110 at p. 2).
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

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for the summons and complaint (see Dkt. #4). But, 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 did not ask 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 how such a fact (that the Marshals did not serve each document he filed) has
or could have kept him from prosecuting his case. 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 “this district court has balked and failed to properly address issues

regarding whether or not Judge Amos Mazzant or Judge Christine Nowak hold personal
relationships or impermissible sentiment toward the named Defendants” (Dkt. #110 at p. 2).
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. See, 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.
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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
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 fails to raise any legal authority or factual support for his
proposition that the undersigned or the Magistrate Judge should be disqualified from presiding
over this case. Fields’s unfounded contention that “Judge Amos Mazzant or Judge Christine
Nowak hold personal relationships” with the Defendants, even if true, without more, is insufficient
for recusal. Accordingly, this objection is overruled.
3.

Fields’s Conclusory Objections
Fields argues that the Magistrate Judge’s Report and Recommendation “balked and failed

to properly address his complaint pleadings” (Dkt. #110 at p. 2). Fields fails to allege what

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arguments or facts were overlooked or not considered by the Magistrate Judge in its Report and
Recommendation.

Upon independent review of Fields’s pleadings and the Report and

Recommendation, the Court finds that this conclusory objection is meritless.
Finally, Fields objects that “this district court currently operates bogus and unauthorized
protocols regarding this cause” (Dkt. #110 at p. 2). 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 this objection with any specific argument or evidence, the Court finds it is unsupported by
the record. Even though Fields is proceeding pro se, he must support his objections with facts and
argument. Accordingly, this objection is overruled.
4.

Rule 7(a) Reply
Dr. Lackey objects to the Magistrate Judge’s recommendation that Fields’s claims against

him in his individual capacity should not be dismissed, and that Fields be allowed to file a Rule
7(a) reply (Dkt. #109). Specifically, Dr. Lackey argues that because Fields “failed to demonstrate
the inapplicability of the qualified immunity defense,” and “failed to state a colorable claim,”
Fields’s claims against Dr. Lackey in his individual capacity should have been dismissed on these
bases (Dkt. #109 at p. 2). The Magistrate Judge found:
Viewing in the light most favorable to Plaintiff, his allegations regarding Lackey’s
false accusations, the Court is not convinced at this time that the Motion to Dismiss
should be granted. Instead, the Court finds that Plaintiff should be ordered to file a
Rule 7(a) reply that addresses Defendants’ qualified immunity defense and:
(1) clarifies under which constitutional right he brings his malicious prosecution
claim; and (2) responds with specific, concrete facts demonstrating Defendant
Lackey and Colbert acted without probable cause and acted with malice in making
false accusations about Plaintiff’s phone message.
(Dkt. #103 at p. 16). Further, the Magistrate Judge recommended that Fields be ordered to respond
to Dr. Lackey and Officer Colbert’s immunity defense by filing a Rule 7(a) reply (or an amended

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complaint), “and that the reply should specifically: (1) clarify under which constitutional right
Plaintiff brings his malicious prosecution claim; and (2) respond with specific, concrete facts that
demonstrate Defendant Lackey and Colbert acted without probable cause and acted with malice in
making false accusations about Plaintiff’s phone message” (Dkt. #103 at p. 17).
At the pleading stage, an individual defendant official is entitled to qualified immunity
“unless [the] plaintiff pleads facts showing (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.”
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011). The qualified immunity analysis has two steps,
which can be taken up in either order. Pearson v. Callahan, 555 U.S. 223, 236 (2009). A defendant
cannot be said to have violated a clearly established right unless the right’s contours were
sufficiently definite that any reasonable official in the defendant’s shoes would have understood
that he was violating it. In other words, existing precedent must have placed the statutory or
constitutional question confronted by the official beyond debate. Plumhoff v. Rickard, 134 S. Ct.
2012, 2023 (2014).
“When a public official pleads the defense of qualified immunity, a district court has
discretion under Rule 7(a) to require the plaintiff to file a reply specifically tailored to that
defense.” Hatcher v. City of Grand Prairie, No. 3:14-CV-432-M, 2014 WL 3893907, at *8–9
(N.D. Tex. Aug. 6, 2014) (citing Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995)). “A Rule
7(a) reply is required when a plaintiff pleads only sparse details of claimed wrongdoing by
officials.” Id. (citing Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir. 1999) (Plaintiffs’ “pleading was
little more than a bare conclusion, and the district court erred in finding the complaint to be
sufficient. Rather, it should first have ordered a reply, and if the required detail was not
forthcoming, dismiss the complaint.”)).

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Here, Fields pleads only sparse details of claimed wrongdoing by Dr. Lackey and
Officer Colbert, necessitating the need for a Rule 7(a) reply. As recommended by the Magistrate
Judge, the Court orders Fields to file a Rule 7(a) reply within 14 days from the date of this Order,
addressing the inapplicability of the qualified immunity defense and specifically (1) clarifying
under which constitutional right he brings his malicious prosecution claim; and, (2) alleging facts
demonstrating Dr. Lackey and Officer Colbert acted without probable cause and acted with malice
in making false accusations about Fields’s phone message.
Dr. Lackey also objects to the Magistrate Judge’s recommendation to provide Fields “a
second opportunity to respond to Defendant Colbert’s qualified immunity defense” because Fields
should not be “entitled to continue pursuing claims against a fictional party” (Dkt. #109 at p. 3)
(internal quotation marks omitted). This objection lacks merit. The Court is not convinced at this
time that Officer Colbert is a fictional party. Officer Colbert has been identified and named by
Plaintiff, and was served by certified mail, return receipt requested on April 17, 2017 (Dkt. #61).
Additionally, discovery is stayed pending resolution of the immunity claims (Dkt. #104). Thus
Fields has not had adequate opportunity to confirm or further identity Officer Colbert. In Cowart
v. Dallas County Jail, the Fifth Circuit rejected a district court’s dismissal for a plaintiff’s failure
to identify John Doe defendants with enough specificity to allow service, and stated that “[the
plaintiff] was likely entitled to conduct discovery to determine the identities of the unnamed
defendants, as ‘[i]t is conceivable that’ readily available documentation would reveal the identities
of some of the John Doe defendants. 439 F. App’x 332, 333 (5th Cir. 2011); see also Williams v.
Certain Individual Employees of TDC–ID at Jester Unit, 480 F. App’x 251 (5th Cir. 2010) (district
court abused its discretion by granting summary judgment without adequate discovery, even if
only to learn the employee’s identity); Gallegos v. Slidell Police Department, 304 F. App’x 327

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(5th Cir. 2008) (holding that the plaintiff was “likely entitled to conduct discovery to determine
the identities of the unnamed defendants.”). In the instant case, discovery is stayed pending
resolution of the immunity claims (Dkt. #104). Accordingly, it would be inappropriate to dismiss
Fields’s claims against Officer Colbert on this basis. See Mathews v. Bowie Cty., No. 5:12-CV82, 2013 WL 5142381, at *16 (E.D. Tex. Sept. 13, 2013). Dr. Lackey’s objections are overruled
in part.
CONCLUSION
Having considered both Fields’s timely filed objections (Dkt. #110), Dr. Lackey’s timely
filed objections (Dkt. #109), and having conducted a de novo review, the Court adopts the
Magistrate Judge’s report (Dkt. #103) as the findings and conclusions of the Court.
It is ORDERED that Defendant Dr. David Lackey’s and Respondent Office of the
Attorney General’s Motion to Dismiss (Dkt. #63) is GRANTED IN PART. The following claims
are DISMISSED:
•

Fields’s claims against the Office of the Attorney General,

•

Fields’s claims against the Texas Department of State Health Services,

•

Fields’s § 1983 claims against Dr. David Lackey in his official capacity, and

•

Fields’s § 1983 claims against Officer Colbert in his official capacity.

As such, only Fields’s § 1983 claims against Dr. Lackey and Officer Colbert in their
individual capacities remain in this suit.

The Court REJECTS the recommendation of the

Magistrate Judge denying the Motion to Dismiss as to Fields’s claims against Dr. Lackey in his
individual capacity. The Clerk’s Office is instructed to leave the Motion to Dismiss as an open
motion pending further review by the Magistrate Judge.

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It is further ORDERED that Plaintiff Fields shall file a Rule 7(a) reply within 14 days
from the date of this Order, addressing the inapplicability of the qualified immunity defense and
specifically (1) clarifying under which constitutional right he brings his malicious prosecution
claim; and, (2) alleging facts demonstrating Dr. Lackey and Officer Colbert acted without probable
cause and acted with malice in making false accusations about Plaintiff’s phone message. After
. consideration of the Rule 7(a) reply and any additional briefing deemed necessary by the
Magistrate Judge, the Magistrate Judge should enter an amended report and recommendation on
the motion to dismiss addressing these claims.
IT IS SO ORDERED.
SIGNED this 7th day of December, 2017.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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