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

Filing 63

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE for 58 Report and Recommendations. Defendant Hall's Motion to Dismiss (Dkt. 52 ) is GRANTED, and her Motion to Strike (Dkt. 52 ) is DENIED as moot. The case as to Defendant Katheryn Payne Hall shall be dismissed with all costs to be borne by the party incurring same. Signed by Judge Amos L. Mazzant, III on 6/15/2017. (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 DANNIEL, 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 May 17, 2017, the report of the Magistrate Judge (Dkt. 58)
was entered containing proposed findings of fact and recommendations that Defendant
Katheryn Payne Hall’s (“Hall”) Motion to Dismiss and Motion to Strike (Dkt. 52) be
GRANTED in part and DENIED in part, specifically that the Motion to Dismiss be
GRANTED and the Motion to Strike be DENIED as moot.
Having received the report of the United States Magistrate Judge, and no objections
thereto having been timely filed, the Court is of the opinion that the findings and conclusions
of the Magistrate Judge are correct and adopts the Magistrate Judge’s report as the findings
and conclusions of the Court.1
The Court notes that although no objections to the Magistrate Judge’s report were filed, Plaintiffs filed
a motion seeking to stay the Court’s final ruling on Defendant Hall’s motion to dismiss pending resolution of
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Pro se Plaintiffs Roger Liverman and Aaron Liverman (“Plaintiffs”) have sued
various individuals and entities, including “Denton County, Texas Denton County Criminal
District Attorney”2 and Denton County Criminal District Attorney Paul Johnson
(“Johnson”), Assistant Criminal District Attorneys Lara Tomlin (“Tomlin”), Rick Daniel
(“Daniel”), and Lindsey Sheguit (“Sheguit”) (collectively the “District Attorney
Defendants”), and Defendant Hall, who according to the record is the daughter of Plaintiff
Roger Liverman and the sister of Plaintiff Aaron Liverman. Plaintiffs’ claims against the
District Attorney Defendants have been dismissed. See Dkt. 50.
The Magistrate Judge properly found that Defendant Hall’s motion to dismiss should
be granted because she is a private citizen and not a state actor, and thus no claim can be
stated against her under Section 1983. Accordingly, Plaintiffs’ pleadings against Defendant
Hall present no federal question claims over which this Court has subject matter jurisdiction.
The Magistrate Judge also correctly concluded that lacking subject matter jurisdiction, the
Court should decline to exercise pendent jurisdiction over Plaintiffs’ state-law malicious
prosecution claim.
Accordingly, Defendant Hall’s Motion to Dismiss (Dkt. 52) is GRANTED, and her
Motion to Strike (Dkt. 52) is DENIED as moot.

Plaintiffs’ interlocutory appeal of the Court’s Order dismissing the District Attorney Defendants. See Dkt. 60.
Plaintiffs appeal, case number 17-40325, is currently pending before the Fifth Circuit Court of Appeals. The
Magistrate Judge properly found that a stay is not warranted here because the issues in Defendant Hall’s motion
to dismiss are not “substantially intertwined” with the issues and claims in Plaintiffs’ appeal. See Dkt. 61 (citing
Hinojosa v. Livingston, 2014 WL 3588474, at *3 (S.D. Tex. 2014)).
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Plaintiffs’ complaint (Dkt. 1) alleges that Defendant Denton County is a “governmental entity.” Id. at
4. However, Denton County has not entered an appearance in this lawsuit; nor is it clear that Denton County
been properly served with process.

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The case as to Defendant Katheryn Payne Hall shall be dismissed with all costs to be
borne by the party incurring same.
It is SO ORDERED.

SIGNED this 15th day of June, 2017.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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