Liverman et al v. Denton County, Texas, Criminal District Attorney et al

Filing 50

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE for 40 Report and Recommendations, 18 Motion to Dismiss, filed by Paul Johnson, Lindsey Sheguit, Denton County, Texas, Criminal District Attorney, Lara Toml in, Rick Daniel. The District Attorney Defendants' Consolidated Rule 12 Motion to Dismiss, pursuant to Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6) (Dkt. 18 ), is GRANTED, and Plaintiffs' claims against Denton County Criminal District Attorney Paul Johnson and three Assistant Criminal District Attorneys, Lara Tomlin, Rick Daniel, and Lindsey Sheguit, are hereby DISMISSED with prejudice, with all costs to be borne by the party incurring same. All other named Defendants remain in the suit at this time. Signed by Judge Amos L. Mazzant, III on 3/23/2017. (baf, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

ROGER LIVERMAN AND
AARON LIVERMAN
Plaintiffs,
V.
DENTON COUNTY, TEXAS,
CRIMINAL DISTRICT ATTORNEY,
PAUL JOHNSON, LARA TOMLIN,
RICK DANIEL, LINDSEY SHEGUIT,
and KATHERYN PAYNE HALL,
Defendants.

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CASE NO. 4:16CV801
Judge Mazzant/Judge Johnson

MEMORANDUM ADOPTING 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 United States Magistrate Judge pursuant to 28 U.S.C.
§636. On January 30, 2017, the report of the Magistrate Judge was entered containing proposed
findings of fact and recommendations that the Consolidated Rule 12 Motion to Dismiss, pursuant to
Federal Rule of Civil Procedure 12(b)(5) and 12(b)(6), filed by Defendant Denton County, Texas
Criminal District Attorney, on behalf of Denton County Criminal District Attorney Paul Johnson and
three Assistant Criminal District Attorneys, Lara Tomlin (“Tomlin”), Rick Daniel (“Daniel”), and
Lindsey Sheguit (“Sheguit”) (collectively, the “District Attorney Defendants”) (see Dkt. #18) be
GRANTED.
Pro se Plaintiffs Roger Liverman and Aaron Liverman (“Plaintiffs”) filed objections to the
report on February 15, 2017 (see Dkt. #47).1 The Court has made a de novo review of the objections
raised by Plaintiffs and is of the opinion that the findings and conclusions of the Magistrate Judge are
correct and the objections are without merit as to the ultimate findings of the Magistrate Judge. The
Plaintiff’s objections are titled “Pro se Plaintiffs Response & Brief in Support to the Report and
Recommendation of United States Magistrate Judge.” See Dkt. #47.
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Court hereby adopts the findings and conclusions of the Magistrate Judge as the findings and
conclusions of the Court.
Plaintiffs have sued the District Attorney Defendants in their individual capacities, as well as
Defendant Katheryn Payne Hall (“Hall”), who, apparently, is the daughter of Plaintiff Roger
Liverman and the sister of Plaintiff Aaron Liverman. Plaintiffs also name as a Defendant “Denton
County, Texas, Denton Criminal District of Attorney” (“Denton County”), which they identify as a
“governmental entity.” See Dkt. #1 at 4. Denton County has not entered an appearance in this lawsuit.
Nor is it clear that Denton County been properly served with process. This case apparently arises from
Plaintiffs’ prosecution by the Denton County District Attorney’s Office for a violation of Texas Penal
Code section 32.46 (Securing the Execution of Documents by Deception), an indictment by the
Denton County Grand Jury, a finding of guilty by a Denton County District Court Judge in a bench
trial, and, ultimately, the reversal of the convictions by the Court of Criminal Appeals. See Dkt. 18 at
2-3.
Having reviewed the record herein and finding that Plaintiffs' objections are without merit,
the Court hereby adopts the findings and conclusions of the Magistrate Judge as the findings and
conclusions of the Court.
Plaintiffs object to the Magistrate Judge’s finding that all claims alleged involved the District
Attorney Defendants’ prosecutorial advocacy functions and that the Magistrate Judge incorrectly
concluded that prosecutorial immunity applies. See Dkt. #47 at 7-13. Although Plaintiffs extensively
cite a wide variety of cases in their objections (see Dkt. #47), they fail to provide any meaningful
analysis to overcome the Magistrate Judge’s finding that the District Attorney Defendants are entitled
to both absolute and qualified immunity. The majority of Plaintiffs’ arguments arise from qualified
immunity cases. See id. at 8-13. The Magistrate Judge properly concluded that the conclusory
allegations and assertions in Plaintiffs’ complaint failed to meet the heightened pleading requirement
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for qualified immunity claims. See Baker v. Putnal, 75 F.3d at 196 (5th Cir. 1996); Spivey v.
Robertson, 197 F.3d 772, 774 (5th Cir. 1999), cert. denied, 530 U.S. 1229, (2000).
More importantly, however, Plaintiffs cannot overcome the District Attorney Defendants’
absolute immunity defense. Plaintiffs make two arguments—both of which are unavailing. Plaintiffs
argue that: (1) the Eleventh Amendment does not . . . immunize local governments from private suits;”
and (2) “state officials may be sued . . . in their individual capacit[ies] for violations of federal
constitutional or statutory rights.” However, neither of Plaintiffs’ arguments address the issue of
prosecutorial immunity. As the Magistrate Judge correctly stated, Fifth Circuit law is clear that when
acting in a prosecutorial capacity, a district attorney is an agent of the state, not an agent of the county
in which the criminal case happens to be prosecuted, and is thus, protected by Eleventh Amendment
Immunity. See Esteves v. Brock, 106 F.3d 674 (5th Cir.), cert. denied, 522 U.S. 828 (1997); see also
Spikes v. Phelps, 131 Fed. Appx 47 (5th Cir. 2005); Shanafelt v. Office of the Attorney General, 213
F.3d 638 (5th Cir. 2000).
The law is equally clear that absolute immunity covers a prosecutor’s actions associated
with the judicial phase of the criminal process, including actions related to initiating, investigating,
and pursuing a criminal prosecution. Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976); Esteves, 106
F.3d at 676; see also Cook v. Houston Post, 616 F.2d 791, 793 (5th Cir. 1980). Furthermore, absolute
immunity protects prosecutors from all liability even when they act “maliciously, wantonly or
negligently.” Morrison v. City of Baton Rouge, 761 F.2d 242, 248 (5th Cir. 1985). The Court has
reviewed the pleadings and the Magistrate Judge’s findings, and agrees with the Magistrate Judge
that all of the facts alleged, even when taken as true, do not amount to conduct for which waiver of
absolute immunity is warranted.
Plaintiffs also raise an issue regarding a “murder for hire plot” perpetrated against them by
Defendant Hall. See Dkt. 47 at 13 and 17-18. Plaintiffs have previously raised this issue by way of
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their motion requesting the Court to notify the “proper authorities” about the alleged murder-for-hire
plot (see Dkt. 31). The murder-for-hire plot is not alleged in Plaintiffs’ complaint (see Dkt. #1) and
thus is not addressed in either the District Attorney Defendants’ motion to dismiss (see Dkt. #18) or
the Magistrate Judge’s report and recommendation (see Dkt. #40). However, to the extent that Plaintiffs
intend to assert this issue to overcome the District Attorney Defendants’ assertion of immunity, the
Court will address it here.
Plaintiffs allege they provided evidence of the alleged murder-for-hire plot to the District
Attorney Defendants and the District Attorney Defendants failed to take any action. See Dkt. #47 at
14. Prosecutors have discretionary power to decide whether or not to bring charges and when to bring
charges. See, e.g., Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978); see also United States v. Cox,
342 F.2d 167, 172 (5th Cir. 1965); Oliver v. Collins, 914 F.2d 56, 60 (5th Cir. 1990) (internal citation
omitted) (holding there is no constitutional right to have someone criminally prosecuted); Gill v. State
of Texas, 2004 WL 852285, at *2 (N.D. Tex. 2004), aff'd, 153 F. App’x 261 (5th Cir. 2005). Thus,
contrary to Plaintiffs’ contention, it was within the discretion of the District Attorney Defendants to
assess the evidence and decide whether or not to bring charges. See Bordenkircher, 434 U.S. at 364.
Moreover, as previously explained, absolute immunity protects prosecutors from all liability even
when they act “maliciously, wantonly or negligently.” Morrison, 761 F.2d at 248 (5th Cir. 1985).
For reasons unclear to the Court, Plaintiffs also raise the issue of standing. The Magistrate
Judge’s report does not challenge—or even discuss—Plaintiffs’ standing to bring their lawsuit.
Therefore, to the extent that Plaintiffs have raised an objection on this point, the objection is overruled
as moot.
The only issue before the Court in a Rule 12(b)(6) motion to dismiss is whether Plaintiffs
have successfully stated a claim upon which relief can be granted. See FED. R. CIV. P. 12(b)(6).
Plaintiffs’ claims must have facial plausibility to survive the District Attorney Defendants’ 12(b)(6)
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motion to dismiss. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662 (2009); see also Gonzalez v. Kay, 577
F.3d 600, 603 (5th Cir. 2009). Even construing all the facts in a light most favorable to Plaintiffs, see
Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996), the Court finds that Plaintiffs have failed to state a
claim upon which relief can be granted.
Accordingly, the District Attorney Defendants’ Consolidated Rule 12 Motion to Dismiss,
pursuant to Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6) (Dkt. #18), is GRANTED, and
Plaintiffs’ claims against Denton County Criminal District Attorney Paul Johnson and three

. Assistant Criminal District Attorneys, Lara Tomlin, Rick Daniel, and Lindsey Sheguit, are hereby
DISMISSED with prejudice, with all costs to be borne by the party incurring same. All other
named Defendants remain in the suit at this time.
IT IS SO ORDERED.

SIGNED this 23rd day of March, 2017.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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