Smith v. City of Princeton Texas et al

Filing 71

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE 67 . ORDERED that Defendant City of Princeton, Texas's Motion to Dismiss (Dkt. #48) and Motions to Strike Plaintiff's Third Amended Complaint (Dkts. #54, #57) are GRANTED, and Plaintiff Joyce Ann Smith's Motion Judgment for A Matter of Law (Dkt. #43) is DENIED. Plaintiff Joyce Ann Smith's claims against the City of Princeton, Anne Angell, and the City of Princeton's Code Enforcement Department are hereby DISMISSED pursuant to Rule 12(b)(6) and § 1915 for failure to state a claim. All relief not previously granted is DENIED. Signed by District Judge Amos L. Mazzant, III on 1/8/2018. (rpc, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

JOYCE ANN SMITH
v.
CITY OF PRINCETON, TEXAS,
ANNE ANGELL

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Civil Action No. 4:17-CV-85
(Judge Mazzant/Judge Nowak)

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 Magistrate Judge pursuant to 28 U.S.C. § 636.
On October 31, 2017, the report of the Magistrate Judge (Dkt. #67) was entered containing
proposed findings of fact and recommendations that Defendant City of Princeton, Texas’s Motion
to Dismiss (Dkt. #48) and Motions to Strike Plaintiff’s Third Amended Complaint (Dkts. #54, #57)
each be granted, and Plaintiff Joyce Ann Smith’s (“Smith”) “Motion Judgment for A Matter of
Law” (Dkt. #43) be denied. Further, the Magistrate Judge recommended that Smith’s claims
against Anne Angell and the City of Princeton Code Enforcement Department be dismissed
pursuant to 28 U.S.C. § 1915.

Having received the report and recommendation of the

Magistrate Judge, having considered Smith’s timely filed objections (Dkt. #68) and the City of
Princeton’s response thereto (Dkt. #69), and having conducted a de novo review, the Court is of
the opinion that the Magistrate Judge’s report (Dkt. #67) should be adopted.
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 only those facts pertinent to
Smith’s objections. Plaintiff Joyce Ann Smith lives in Princeton, Texas, in a neighborhood

governed by the Villa of Monte Carlo Homeowners Association (“HOA”). Smith asserts that in
violation of the City of Princeton’s ordinances and the Villa Monte Carlo’s HOA regulations, the
City of Princeton improperly labeled her vehicle as abandoned and instructed First Choice Towing,
owned by Anne Angell, to tow it from her residence on August 24, 2016 (Dkt. #46 at pp. 2–3).
Smith filed this lawsuit on February 3, 2017 (Dkt. #1). On February 9, 2017, the Court granted
Smith leave to proceed in forma pauperis (Dkt. #3). Broadly construed, Smith claims that the
actions of the City of Princeton and Anne Angell constitute violations of 42 U.S.C. § 1983,
18 U.S.C. § 1956, 18 U.S.C. § 242, Texas Penal Code § 31.03(a), and “Texas Vehicle Code
226581(1)(a) section 683.011 [and] section 683.012” (Dkt. #46 at pp. 2–3).
The City of Princeton filed its Motion to Dismiss Smith’s original complaint on March 14,
2017 (Dkts. #10, #11). On March 23, 2017, “[t]o ensure clarity in the record and allow Plaintiff
an adequate opportunity to plead her claims,” the Court denied the City of Princeton’s Motion to
Dismiss as moot, and ordered Smith to file an amended complaint that “set forth each cause of
action alleged by Plaintiff, specifically identify which causes of action are asserted against which
Defendant, and specifically identify the factual basis for each claim” (Dkt. #14). Smith filed her
First Amended Complaint on April 27, 2017 (Dkt. #24). Defendants City of Princeton and Angell
filed Motions to Dismiss Smith’s First Amended Complaint on May 15, 2017 (Dkt. #28) and
May 18, 2017 (Dkt. #29), respectively. On June 8, 2017, the Magistrate Judge, for a second time,
recommended the Court deny the Defendants’ Motions to Dismiss and order Smith to file a second
amended complaint. The Magistrate Judge’s Report provided Smith with a clear, detailed roadmap
to correct her pleading deficiencies (Dkt. #33). The Court fully adopted the Magistrate Judge’s
recommendation (Dkt. #44). On July 7, 2017, Smith filed her Motion for Judgment (Dkt. #43); to
which the City of Princeton responded on July 24, 2017 (Dkt. #45). On July 31, 2017, Smith filed

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her Second Amended Complaint (Dkt. #46), and on August 2, 2017, Smith filed additional
attachments to such complaint (Dkt. #47). On August 10, 2017, the City of Princeton filed a
Motion to Dismiss Smith’s Second Amended Complaint, its third motion to dismiss (Dkt. #48).
Smith subsequently filed a Third Amended Complaint, constituting her fourth attempt at pleading
her best case (Dkt. #49), without moving for leave and outside of the deadlines delineated in the
Scheduling Order (Dkt. #35) (the Parties’ deadline to add parties was July 17, 2017, and Smith’s
deadline to file amended pleadings was July 28, 2017). On September 7, 2017, the City of
Princeton filed a Motion to Strike Smith’s Third Amended Complaint (Dkts. #54, #57). Smith
filed her Response to the City of Princeton’s Motion to Dismiss her Second Amended Complaint
on September 21, 2017 (Dkt. #59).
On October 31, 2017, the Magistrate Judge entered a report and recommendation
(Dkt. #67), recommending that the City of Princeton’s Motion to Dismiss (Dkt. #48) and Motion
to Strike Plaintiff’s Third Amended Complaint (Dkts. #54, #57) each be granted,1 and Smith’s
“Motion Judgment for A Matter of Law” (Dkt. #43) be denied. Further, the Magistrate Judge
recommended that Smith’s claims against Defendant Angell and the City of Princeton’s Code
Enforcement Department, to the extent asserted, be dismissed pursuant to § 1915. Smith filed
objections to the report on November 14, 2017 (Dkt. #68). On November 28, 2017, the City of
Princeton filed a response to Smith’s objections (Dkt. #69).
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).

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Docket Numbers 54 and 57 appear to be identical.

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Broadly construing her objections, Smith objects to each of the Magistrate Judge’s ultimate
recommendations (Dkt. #68). Specifically, Smith states that the City of Princeton’s Motion to
Strike should not be granted because: (1) “there is no motion to strike pleadings in the State of
Texas” (Dkt. #68 at p. 2) (emphasis omitted); (2) the “motion to strike is untimely because it was
made after answering the complaint” (Dkt. #68 at p. 2); and (3) the “City of Princeton Texas went
into default because they failed to serve a[n] answer to this complaint on March 19, 2017”
(Dkt. #68 at p. 2) (emphasis in original). Smith objects that her complaint should not be dismissed
because: (1) “the statute of limitations should, in equity, be deemed tolled because Plaintiff could
not have discovered the facts supporting this claim” (Dkt. #68 at p. 2); and (2) the “City of
Princeton, Texas has a clear motive to engineer a cover-up because of being a conspirator in illegal
towing from First Choice Towing that has NO TEXAS License to Tow, the Plaintiff[’]s Vehicle
in HOA” (Dkt. #68 at p. 3) (emphasis in original). Finally, Smith objects that her Motion for
Judgment should not be denied because:
The City of Princeton, Texas ha[s] no sufficient evidence to Support it[s] case.
They have laws, municipal codes and ordinances, but they choose not to abide by
them. First Choice Towing ha[s] no sufficient evidence to Support its case. The
[S]tate of Texas ha[s] rules and regulations[,] but First Choice Towing [chose] not
to abide by them. Never had a license to operate as a tower.
(Dkt. #68 at p. 7).
1.

Motions to Strike
To begin, Smith objects that “there is no motion to strike pleadings in the State of Texas”

(Dkt. #68 at p. 2). Smith is proceeding in federal court. Federal Rule of Civil Procedure 1 states
“[t]hese [Federal Rules of Civil Procedure] govern the procedure in all civil actions and
proceedings in the United States district courts, except as stated in Rule 81.” Because Rule 81 is
inapplicable to Smith’s case, the instant lawsuit is not subject to Texas state procedure law, but

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instead is governed by the Federal Rules of Civil Procedure. Accordingly, whether Smith may file
her Third Amended Complaint or whether it should be stricken is governed by Federal Rules of
Civil Procedure. The appropriate means by which the City of Princeton may object to the
unauthorized filing of Smith’s Third Amended Complaint is through filing a motion to strike.
See Klein v. Walker, No. 1:14-CV-00509-RC-ZJH, 2016 WL 9245462, at *1 (E.D. Tex. Dec. 14,
2016), aff’d, No. 17-40052, 2017 WL 3879795 (5th Cir. Sept. 5, 2017) (Clark, J.); see also United
States v. Saul, No. 5:09-CV-69, 2011 WL 13220641, at *1 (E.D. Tex. Dec. 2, 2011). As discussed
in the Report and Recommendation, (pursuant to Federal Rules of Civil Procedure) Smith was not
entitled to file her Third Amended Complaint without first obtaining the Court’s leave or
Defendants’ consent; to date, Smith has failed to procure either. Therefore, this objection is
overruled.
Smith objects that the “motion to strike is untimely because it was made after answering
the complaint” (Dkt. #68 at p. 2). Smith offers no authority for this argument and the record does
not support her contention. Smith filed her Third Amended Complaint on August 25, 2017
(Dkt. #49). Thirteen days later, on September 7, 2017, the City of Princeton moved to strike
Smith’s Third Amended Complaint (Dkt. #54). Even so, the Court is not constrained by any such
deadlines because “the decision to grant or deny leave to amend a complaint lies within the sound
discretion of the district court.” Little v. Liquid Air Corp., 952 F.2d 841, 846 (5th Cir. 1992), on
reh’g en banc, 37 F.3d 1069 (5th Cir. 1994). Accordingly, this objection is also overruled.
Smith finally objects that the City of Princeton’s Motions to Strike should not be granted
because the “City of Princeton Texas went into default because they failed to serve an answer to
this complaint on March 19, 2017” (Dkt. #68 at p. 2) (emphasis in original). Federal Rule of Civil
Procedure 55 sets forth certain conditions under which default may be entered against a party, as

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well as the procedure to seek the entry of default judgment. Under Rule 55, a default “occurs when
a defendant has failed to plead or otherwise respond to the complaint within the time required by
the Federal Rules.” N.Y. Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir. 1996); accord Fed. R.
Civ. P. 55(a). The City of Princeton did not go “into default because they failed to serve an answer
to this complaint on March 19, 2017” as Smith suggests. Smith initiated the lawsuit on February 3,
2017 (Dkt. #1). The City of Princeton filed a motion to dismiss Smith’s complaint on March 14,
2017, prior to filing any answer (Dkt. #10). Accordingly, the City of Princeton has appeared by
virtue of filing its Motion to Dismiss. It is well established that “[t]he filing of a motion to dismiss
is normally considered to constitute an appearance.” Sun Bank of Ocala v. Pelican Homestead &
Sav. Ass’n, 874 F.2d 274, 277 (5th Cir. 1989); see also Washington v. M. Hanna Const. Inc.,
299 F. App’x 399, 400 (5th Cir. 2008). Because the City of Princeton has appeared in this case by
filing its Motion to Dismiss (which such appearance was on file prior to Smith’s instant mention
of default), and has been actively defending the claims against it since the inception of this case,
no default has occurred. Spence v. Argent Mortg. Co., LLC, No. 4:13CV512, 2014 WL 11486242,
at *1 (E.D. Tex. May 27, 2014), report and recommendation adopted, No. 4:13CV512, 2014 WL
11486244 (E.D. Tex. Sept. 29, 2014); see also Washington, 299 F. App’x at 400. This objection
is overruled.
2.

Motion to Dismiss
Smith initially objects that her complaint should not be dismissed because: (1) “the statute

of limitations should, in equity, be deemed tolled because Plaintiff could not have discovered the
facts supporting this claim” (Dkt. #68 at p. 2). Nowhere in the Report and Recommendation does
the Magistrate Judge recommend dismissing Smith’s complaint as barred by the statute of

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limitations (See Dkt. #67).

The limitations period is irrelevant to the Magistrate Judge’s

recommendations. Accordingly, this objection is overruled.
Smith also objects that the “City of Princeton, Texas has a clear motive to engineer a coverup because of being a conspirator in illegal towing from First Choice Towing that has NO TEXAS
License to Tow, the Plaintiff[’]s Vehicle in HOA” (Dkt. #68 at p. 3) (emphasis in original). Insofar
as Smith intends by this statement to argue Angell is a state actor or conspired with state actors,
her conclusory allegation fails. To state a claim under § 1983, Smith must allege that a person
acting under color of state law deprived her of a right secured by the Constitution or the laws of
the United States. American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49 (1999); Augustine v.
Doe, 740 F.2d 322, 324-25 (5th Cir. 1984). Where a private citizen is alleged to have committed
a § 1983 violation, such as Smith’s allegations against Angell, Smith must offer proof that Angell
is either a state actor or conspired with state actors. Ferguson v. Dunn, No. 1:16-CV-272,
2017 WL 3033338, at *3 (E.D. Tex. May 24, 2017), report and recommendation adopted,
No. 1:16-CV-272, 2017 WL 3020931 (E.D. Tex. July 17, 2017) (citing Priester v. Lowndes Cty.,
354 F.3d 414, 420 (5th Cir. 2004)). Moreover, “[t]he Fifth Circuit has explained that specific facts
must be pled when a conspiracy is alleged; mere conclusory allegations will not suffice.”
Covarrubias v. Wallace, 907 F. Supp. 2d 808, 819 (E.D. Tex. 2012) (citing Hale v. Harney,
786 F.2d 688, 690 (5th Cir. 1986)). “In pleading these specific facts, the Plaintiff must allege the
operative facts of the alleged conspiracy.” Id. (citing Lynch v. Cannatella, 810 F.2d 1363, 1369–
70 (5th Cir. 1987)). “In addition, the Fifth Circuit has noted that ‘charges as to such conspiracies
must be based on substantial and affirmative allegations, and no mere gossamer web of conclusion
or inference, as here, trifles light as air,’ will suffice to sustain a claim of conspiracy.” Id. (quoting
Crummer Company v. Du Pont, 223 F.2d 238, 245 (5th Cir. 1955). Here, Smith fails to allege

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Angell is a state actor or conspired with state actors and she fails to substantiate her claim of
conspiracy beyond a conclusory allegation that one existed. Under Fifth Circuit precedent, this is
insufficient and Smith’s objection is without merit.
3.

Motion for Judgment
Smith objects that the Magistrate Judge improperly recommended that her Motion for

Judgment be denied because:
The City of Princeton, Texas ha[s] no sufficient evidence to Support it[s] case.
They have laws, municipal codes and ordinances, but they choose not to abide by
them. First Choice Towing ha[s] no sufficient evidence to Support its case. The
[S]tate of Texas ha[s] rules and regulations[,] but First Choice Towing [chose] not
to abide by them. Never had a license to operate as a tower.
(Dkt. #68 at p. 7).
The Magistrate Judge broadly construed Smith’s Motion for Judgment as a motion for
judgment on the pleadings (Dkt. #67 at p. 15). “A motion for judgment on the pleadings pursuant
to Rule 12(c), Fed.R.Civ.P. is designed to dispose of cases where the material facts are not in
dispute and a judgment on the merits can be rendered by looking to the substance of the pleadings
and any judicially noticed facts.” Rosa v. Morvant, No. CIV.A. 9:06-CV-252, 2007 WL 3132613,
at *1 (E.D. Tex. Oct. 23, 2007) (citing Hebert Abstract v. Touchstone Properties, Ltd., 914 F.2d
74, 76 (5th Cir. 1990)). Thus, judgment in favor of Smith is appropriate under Rule 12(c) “only if
there is no issue of material fact and if the pleadings show [Smith] is entitled to judgment as a
matter of law.” Frost v. Martin, No. CIV.A. 1:08-CV-65, 2009 WL 3063386, at *2 (E.D. Tex.
Sept. 22, 2009) (citing Voest–Alpine Trading USA Corp. v. Bank of China, 142 F.3d 887, 891
(5th Cir.), cert. denied, 525 U.S. 1041 (1998). Smith’s objection wholly fails to address the
Magistrate Judge’s finding that she is not entitled to judgment as a matter of law on her claims;
instead, Smith focuses her objection on whether the City of Princeton has sufficient evidence to

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“[s]upport it[s] case.” Here, Smith has failed to state a plausible claim for relief against the
City of Princeton or Angell, much less show that no issue of material fact exists, and therefore, her
Motion for Judgment should be denied. In addition, the City of Princeton does not have a burden
to “[s]upport it[s] case” as Smith suggests; rather Smith bears the burden of proof on the causes of
action she has raised in this case. Sam’s Style Shop v. Cosmos Broad. Corp., 694 F.2d 998, 1003
(5th Cir. 1982) (“As a general proposition, of course, the plaintiff has the burden of proving all of
the affirmative elements of its case.”). This objection is similarly overruled.
CONCLUSION
Having considered Plaintiff Joyce Ann Smith’s timely filed objections (Dkt. #68), the City
of Princeton’s response thereto (Dkt. #69), and having conducted a de novo review, the Court
adopts the Magistrate Judge’s report (Dkt. #67) as the findings and conclusions of the Court.
Accordingly, it is ORDERED that Defendant City of Princeton, Texas’s Motion to
Dismiss (Dkt. #48) and Motions to Strike Plaintiff’s Third Amended Complaint (Dkts. #54, #57)
are GRANTED, and Plaintiff Joyce Ann Smith’s “Motion Judgment for A Matter of Law”
(Dkt. #43) is DENIED. Plaintiff Joyce Ann Smith’s claims against the City of Princeton, Anne
Angell, and the City of Princeton’s Code Enforcement Department are hereby DISMISSED
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pursuant to Rule 12(b)(6) and § 1915 for failure to state a claim.
All relief not previously granted is DENIED.
The Clerk is directed to CLOSE this civil action.
IT IS SO ORDERED.
SIGNED this 8th day of January, 2018.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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