Wooten v. Roach et al
Filing
39
MEMORANDUM OPINION AND ORDER. It is therefore ORDERED that Defendants John Roach, Sr. and Christopher Milner's Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. 17 ) is hereby DENIED. The motion is DENIED as to prosecutorial immun ity, statute of limitations, and punitive damages. The remainder of the motion is DENIED as moot at this time. It is further ORDERED that Defendant Collin County, Texas' Motion to Dismiss Pursuant to Fed R. Civ. P. 12(b)(6) (Dkt. 18 ) is her eby GRANTED in part and DENIED in part. The motion is GRANTED as to punitive damages, and DENIED as to the argument Plaintiff did not plausibly plead a Monell liability claims and the statute of limitations defense. The remainder of the motion is DENIED as moot at this time.It is also ORDERED that Defendant's Abbott and White's Motion to Dismiss (Dkt. 20 ) is hereby DENIED. The motion is DENIED as to prosecutorial immunity, official immunity, and statute of limitations. The remainder of the motion is DENIED as moot at this time. Signed by District Judge Amos L. Mazzant, III on 3/27/2019. (baf, )
United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
SUZANNE H. WOOTEN
v.
JOHN ROACH, SR., CHRISTOPHER
MILNER, COLLIN COUNTY, TEXAS,
GREGORY ABBOTT and HARRY
EUGENE WHITE
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Civil Action No. 4:18-CV-380
Judge Mazzant
MEMORANDUM OPINION AND ORDER
Pending before the Court are Defendants John Roach, Sr. and Christopher Milner’s
(“CCDAO Defendants”) Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. #17),
Defendant Collin County, Texas’ (“the County”) Motion to Dismiss Pursuant to Fed R. Civ. P.
12(b)(6) (Dkt. #18), and Defendants Abbott and White’s (“AG Defendants”) Motion to Dismiss
(Dkt. #20). Having considered the motion and the relevant pleadings, the Court finds that the
CCDAO’s motion should be denied, the County’s motion should be granted in part and denied in
part, and the AG’s motion should be denied.
BACKGROUND
As alleged by Plaintiff Suzanne H. Wooten, on March 4, 2008, Plaintiff defeated incumbent
Judge Charles Sandoval in the Republican primary election for the 380th District Court Judge in
Collin County, Texas by a landslide. The next day, Judge Sandoval approached the Collin County
District Attorney’s Office (the “CCDAO”) to complain about Plaintiff, asserting that she cheated
during the election and he wanted the CCDAO to find a crime against her. After this meeting, the
CCDAO 1 took it upon themselves to investigate Plaintiff’s campaign without the assistance of law
1
Defendant John Roach, Sr. was the elected Collin County District Attorney at this time. Defendant Cristopher Milner
was an assistant district attorney in Collin County at this time, and participated in the case against Plaintiff.
enforcement. Eventually, the Office of the Attorney General 2 (the “OAG”), joined in the case
against Plaintiff. The investigation lasted over two years before Plaintiff was initially indicted on
October 14, 2010, with the final indictment filed on July 14, 2011.
The theory of the criminal investigation and prosecution against Plaintiff was that a married
couple, David Frederick Cary and Stacy Stine Cary (“the Carys”) gave itemized monetary
contributions to Plaintiff, through the Carys consultant who also happened to be Plaintiff’s media
consultant, James Stephen Spencer. The Carys and Spencer were co-defendants in the criminal
prosecution. Plaintiff and the Carys were all tried separately, and convicted by three different
juries. Specifically, Plaintiff’s jury found her guilty of six counts of bribery, one count of engaging
in organized criminal activity, one count of money laundering, and one count of tampering with a
governmental record. After these three trials, Spencer took a plea deal. The Carys appealed their
convictions. The Dallas Court of Appeals affirmed Stacy Cary’s conviction but several months
later a different panel determined David Cary should be acquitted on all counts. Both cases were
then appealed to the Texas Court of Criminal Appeals. On December 14, 2016, the Texas Court
of Criminal Appeals determined that the Carys should be acquitted on all counts, as the allegations
against the Carys were not actually a crime pursuant to the relevant statutes. Stacy Cary v. State,
507 S.W.3d 750 (2016); David Cary v. State, 507 S.W.3d 761 (2016).
Based on these holdings, on May 10, 2017, Plaintiff filed her First Amended Application
for 11.072 Writ of Habeas Corpus Declaring Actual Innocence as a Matter of Law with the 366th
Judicial District in Collin County, Texas. On May 24, 2017, the 366th Judicial District in Collin
County granted the requested relief “finding the evidence presented legally insufficient because
the allegations, even if true, were not crimes under Texas law.” (Dkt. #3 at p. 1). The 366th
2
Defendant Gregory Abbott was the Attorney General for the State of Texas at this time. Defendant Harry Eugene
White was an assistant attorney general at this time and participated in the case against Plaintiff.
2
Judicial District in Collin County further determined that because the evidence was legally
insufficient to convict her of the nine felony charges, there had been a “violation of the Applicant’s
due process rights.” (Dkt. #3 at p. 1).
Based on this set of facts, Plaintiff filed suit on May 23, 2018 (Dkt. #1). On May 29, 2018,
Plaintiff amended her complaint (Dkt. #10) suing the CCDAO Defendants, the AG Defendants,
and the County for violation of her due process rights, violation of the fourth amendment,
conspiracy to deprive constitutional rights, and malicious prosecution, among other causes of
action and theories of liability. On July 30, 2018, the CCDAO Defendants (Dkt. #17), the County
(Dkt. #18), and the AG Defendants (Dkt. #20) filed their motions to dismiss Plaintiff’s amended
complaint asserting, among other things, immunity. On September 10, 2018, Plaintiff filed a
response to the CCDAO Defendants’ motion (Dkt. #29), the AG Defendants’ motion (Dkt. #30),
and the County’s motion (Dkt. #31). On September 24, 2018, the CCDAO Defendants (Dkt. #32),
the AG Defendants (Dkt. #35), and the County (Dkt. #33) filed a reply. Finally, on October 1,
2018, Plaintiff filed a sur-reply to the AG Defendants’ reply (Dkt. #36) and the County’s reply
(Dkt. #37). Plaintiff did not file a sur-reply to the CCDAO Defendants’ reply.
LEGAL STANDARD
The Federal Rules of Civil Procedure require that each claim in a complaint include a “short
and plain statement . . . showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Each
claim must include enough factual allegations “to raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007).
A Rule 12(b)(6) motion allows a party to move for dismissal of an action when the
complaint fails to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When
considering a motion to dismiss under Rule 12(b)(6), the Court must accept as true all well-pleaded
3
facts in the plaintiff’s complaint and view those facts in the light most favorable to the plaintiff.
Bowlby v. City of Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012). The Court may consider “the
complaint, any documents attached to the complaint, and any documents attached to the motion to
dismiss that are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.),
L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). The Court must then determine
whether the complaint states a claim for relief that is plausible on its face. ‘“A claim has facial
plausibility when the plaintiff pleads factual content that allows the [C]ourt to draw the reasonable
inference that the defendant is liable for the misconduct alleged.’” Gonzalez v. Kay, 577 F.3d 600,
603 (5th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L.Ed.2d
868 (2009)). “But where the well-pleaded facts do not permit the [C]ourt to infer more than the
mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the
pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)).
In Iqbal, the Supreme Court established a two-step approach for assessing the sufficiency
of a complaint in the context of a Rule 12(b)(6) motion. First, the Court should identify and
disregard conclusory allegations, for they are “not entitled to the assumption of truth.” Iqbal, 556
U.S. at 664. Second, the Court “consider[s] the factual allegations in [the complaint] to determine
if they plausibly suggest an entitlement to relief.” Id. “This standard ‘simply calls for enough
facts to raise a reasonable expectation that discovery will reveal evidence of the necessary claims
or elements.’” Morgan v. Hubert, 335 F. App’x 466, 470 (5th Cir. 2009) (citation omitted). This
evaluation will “be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679.
4
Thus, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.”’ Id. at 678 (quoting
Twombly, 550 U.S. at 570).
ANALYSIS
All Defendants in this case move to dismiss Plaintiff’s claims based on a variety of theories.
The Court addresses Defendants arguments in turn, either individually or grouped together when
applicable.
I.
Prosecutorial Immunity
The CCDAO Defendants and the AG Defendants both move to dismiss Plaintiff’s claims
asserting that they are entitled to absolute immunity.
The Supreme Court of the United States established that prosecutors are “immune for a
civil suit for damages under § 1983.” Imbler v. Pachtman, 424 U.S. 409, 430, 96 S. Ct. 984, 47
L.Ed.2d 128 (1976). However, prosecutors are not entitled to immunity simply based on their title,
instead courts are to look to the “‘functional nature of the activities’ of which the plaintiff
complains.” McGruder v. Necaise, 733 F.2d 1146, 1148 (5th Cir. 1984) (citations omitted); accord
Imbler, 424 U.S. at 431, Kalina v. Fletcher, 522 U.S. 118, 126, 118 S. Ct. 502, 139 L.Ed.2d 471
(1997). It is the prosecutor’s burden to establish that the “functional nature of the activities” are
protected by prosecutorial immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 274, 113 S. Ct. 2606,
125 L.Ed.2d 209 (1993).
Prosecutors are immune “insofar as that conduct is ‘intimately associated with the judicial
phase of the criminal process.’” Burns v. Reed, 500 U.S. 478, 486, 111 S. Ct. 1934, 114 L.Ed.2d
547 (1991) (citations omitted). This does not mean that only actions made during trial are
protected; the courts have recognized that “‘the duties of the prosecutor in his role as advocate for
5
the State involve actions preliminary to the initiation of a prosecution and actions apart from the
courtroom.’” Id. (citations omitted). The Fifth Circuit determined that prosecutorial immunity
extends to “investigating . . . a criminal prosecution.” Cook v. Hous. Post, 616 F.2d 791, 793 (5th
Cir. 1980) (citing Henzel v. Gerstein, 608 F.2d 654 (5th Cir. 1979); Conner v. Pickett, 552 F.2d
585 (5th Cir. 1976)). However,
[t]here is a difference between the advocate’s role in evaluating evidence and
interviewing witnesses as he prepares for trial [, in other words, investigating a
criminal prosecution], on the one hand, and the detective’s roles in searching for
the clues and corroboration that might give him probable cause to recommend that
a suspect be arrested on the other hand. When a prosecutor performs investigative
functions normally performed by a detective or police officer, it is “neither
appropriate nor justifiable that, for the same act, immunity should protect the one
and not the other.”
Buckley, 509 U.S. at 273 (citations omitted). As such, the Supreme Court of the United States held
that “[a] prosecutor’s administrative duties and those investigatory functions that do not relate to
an advocate’s preparation for the initiation of a prosecution or for judicial proceedings are not
entitled to absolute immunity.” Id. Based on this holding, a district court within the Fifth Circuit,
has held that “[a] prosecutor has no absolute immunity for legal advice given to the police, nor for
administrative duties or investigatory functions that do not relate to an advocate’s preparation to
initiate prosecution or further judicial proceedings.” Brown v. City of Hous., 297 F. Supp. 3d 748,
769 (S.D. Tex. 2017). “[T]he existence of probable cause with respect to a particular suspect is a
significant factor to be used in evaluating the advocatory nature [, as opposed to the investigatory
nature,] of prosecutorial conduct.” Cousin v. Small, 325 F.3d 627, 633 (5th Cir. 2003) (citing
Buckley, 509 U.S. at 274). With these guiding principles, the Court looks to the specific arguments
raised by the CCDAO Defendants and the AG Defendants.
6
A. The CCDAO Defendants
The CCDAO Defendants claim that their limited and early involvement in the process of
Plaintiff’s ultimate prosecution and conviction, is protected by prosecutorial immunity. The
CCDAO Defendants allege that their involvement is limited to appearing in front of the grand jury
and actions in preparation to be in front of the grand jury. According to the CCDAO Defendants,
these functions are intimately associated with the judicial phase, such that these actions are
guaranteed prosecutorial immunity. Plaintiff counters that while presenting information before
the grand jury and preparation of such can be protected by immunity, the CCDAO Defendants’
actions here are not. According to Plaintiff, the CCDAO Defendants’ conduct surrounding the
grand jury were purely investigative, as opposed to prosecutorial in nature, and were done without
probable cause.
Plaintiff alleges that after she defeated the incumbent, the incumbent approached the
CCDAO alleging Plaintiff cheated in the election and urging the CCDAO to find a crime.
Subsequently, the CCDAO launched its investigation into Plaintiff and her campaign. The
CCDAO conducted this investigation on its own without the help of law enforcement. To further
its investigation, the CCDAO, through Defendant Milner, 3 began issuing grand jury subpoenas.
In the Fall of 2008 alone, nine grand jury subpoenas were issued for documents. The following
fall, Defendant Milner began issuing grand jury subpoenas for Plaintiff’s employees, people who
contributed to Plaintiff’s campaign, and other people related to the campaign. A total of six
different grand juries were used to investigate Plaintiff: the grand juries of the Fall of 2008, Spring
of 2009, Fall of 2009, Spring of 2010, Fall of 2010, and Fall of 2011. Four of the six were used
to subpoena bank records, phone records, credit card documents, personal records, emails, and
3
It is interesting to note that generally another assistant district attorney presented cases to the grand jury; however,
when it came to Plaintiff’s case, Defendant Milner presented the case to the grand jury.
7
various campaign-related vendor information. Three of the six were used to subpoena witnesses.
According to Plaintiff, all of this occurred without probable cause. Not only that, but it is alleged
that Defendant Milner admitted to Collin County District Judge Chris Oldner, the judge presiding
over the Fall 2009 Grand Jury, that, although they did not have enough information to indict
Plaintiff, they would continue to gather information through their investigation. Moreover, even
though the CCDAO Defendants maintain that they only had limited and early involvement,
because the OAG took over the case as the Attorney Pro Team, the CCDAO was permitted to
“render such non-prosecutorial support, investigative aid and other assistance as the Attorney Pro
Team deems proper.”
Based on these allegations, the CCDAO Defendants conduct is along the lines of the
conduct described in Buckley. The CCDAO Defendants were acting as investigators searching for
probable cause, as opposed to acting as prosecutors with probable cause preparing for prosecution.
Buckley, 509 U.S. at 273 (citations omitted). As such, at this time, prosecutorial immunity does
not protect the actions of the CCDAO Defendants.
B. The AG Defendants
The AG Defendants argue that they are entitled to prosecutorial immunity.
First,
Defendant Abbott contends that, as a supervisor, he is entitled to the same immunity of those that
he is supervising. Defendant White contends that because the OAG did not intervene in the case
until after the investigatory phase, he is entitled to prosecutorial immunity. Accordingly, the AG
Defendants maintain that they only functioned in a capacity that was intimately associated with
the judicial phase of the case against Plaintiff.
Plaintiff counters that Defendant Abbott
affirmatively argued that he falls outside the scope of prosecutorial immunity and that Plaintiff has
8
sufficiently pleaded, for purposes of a motion to dismiss, that Defendant White was part of the
investigation against Plaintiff.
As an initial matter, Defendant Abbott is correct that, as a supervisor of the assistant
attorney generals, he is immune to the extent that, in this case, Defendant White, is immune. Van
de Kamp, 555 U.S. at 347 (emphasis in original) (explaining that not protecting the supervisor
would “create practical anomalies. A trial prosecutor would remain immune . . . but her supervisor
might be liable for negligent training or supervision . . . . [Thereby creating a situation where] a
plaintiff could restyle a complaint charging a trial failure so that it becomes a complaint charging
failure of training or supervision [essentially] eviscerate[ing] Imbler.”). As such, to determine the
immunity of Defendant Abbott, the Court must look to the immunity of Defendant White.
The Court finds, based on the allegations against White, that, at this stage, some of his
actions are protected by prosecutorial immunity and some of his actions are not. The Court
addresses the allegations against Defendant White in turn.
1. Involvement Starting in December 2008
The AG Defendants maintain that when Defendant White became involved in Plaintiff’s
case it was “well after the investigation was commenced by the CCDAO” and that at that point
Plaintiff was already a clearly identified suspect and the CCDAO already had probable cause,
comparing the case to Ramirez. However, Defendant White was involved in the case much earlier
than the point when he was appointed to the Attorney Pro Team. After Plaintiff defeated the
incumbent on March 4, 2008, the CCDAO almost immediately began an investigation into her
campaign. The first known grand jury subpoena was issued in September 2008. Three months
later, Defendant Milner, on behalf of the CCDAO, requested the assistance of the OAG specifically
requesting Defendant White for his “expertise” in election violations. Defendant White confirmed
9
to the FBI that he started assisting on Plaintiff’s case in December 2008, prior to Plaintiff taking
the bench.
Moreover, the facts of this case are distinguishable from Ramirez. The Northern District
of Texas in Ramirez held that a prosecutor’s actions in attending and allegedly directing a line-up
were “continuing to develop the State’s case against identified suspects, not attempting to identify
new suspects. Plaintiffs had already been indicted for the murder of Cruz, and by this time [the
prosecutors] had the majority of their witnesses and evidence in place for trial.” Ramirez v. Abreo,
No. 5:09-cv-190-C, 2010 WL 11565430, at *10 (N.D. Tex. Jan. 20, 2010). Here, according to the
allegations, this was not a case where the police investigated a crime to find a suspect, but rather
where the prosecutors investigated a suspect to find a crime. Thus, the fact that Plaintiff was
already identified as “the suspect” at the time Defendant White joined the investigation is irrelevant
in this case. Further, there is no allegation that the CCDAO had probable cause by December of
2008, and in fact, the allegations suggest that the Plaintiff was investigated for at least another year
and a half before ever even seeking an indictment against Plaintiff. Finally, Plaintiff had not yet
been indicted, nor were the prosecutors in this case anywhere close to having even enough
evidence to get an indictment, much less to be prepared to try the case. As such, the AG
Defendants’ reliance on this case, and this reasoning, is unavailing.
In this case, and at this stage, there are no allegations, that between December 2008 and, at
the earliest, July 22, 2010, anything occurred that was tangentially related to the judicial phase of
Plaintiff’s prosecution. Thus, Defendant White’s involvement beginning in December 2008
plausibly suggests that he was involved in the investigation 4 of Plaintiff.
4
The AG Defendants point out the complaint alleges that the CCDAO had control of the investigation; however,
Defendant White was deputized as an assistant district attorney for Collin County in September 2009 operating under
Defendant Roach’s authority.
10
2. June 2010 Meeting and Hearing
Plaintiff alleges that the district judge presiding over the Spring 2010 Grand Jury declined
to extend the grand jury’s six-month term on June 24, 2010. Despite this ruling, Plaintiff claims
that on June 28, 2010, Defendant White reached out to Plaintiff’s counsel requesting she appear at
an added grand jury session, which Plaintiff was not aware had not been approved. At that time,
Plaintiff’s counsel and Plaintiff offered to meet with Defendant White, and others, on June 29,
2010. The June 29, 2010 meeting was very short and Defendant White had no questions for
Plaintiff at that time. Plaintiff alleges that she perceived the meeting was an attempt to intimidate
her. Subsequently, Plaintiff learned of the ruling that the extension had been denied; accordingly,
on June 29, 2010, Plaintiff’s counsel filed a Motion to Quash the Illegally Re-Assembled Grand
Jury. On June 30, 2010, the district court held a hearing on the motion, with Plaintiff’s counsel
and Defendant White appearing at the hearing. The motion to quash was granted. 5 The AG
Defendants argue that any meeting prior to a grand jury and any pretrial hearing are protected by
prosecutorial immunity. Plaintiff disagrees.
The Court acknowledges that “interviewing witnesses who will appear before the grand
jury” generally falls “within the Imbler shelter.” Brown, 297 F. Supp. 3d at 770. However, as
identified earlier, not every grand jury proceeding is protected by the Imbler shelter. Accordingly,
it naturally follows that interviewing a witness before a grand jury will not always fall within the
Imbler shelter, particularly when the grand jury proceeding itself does not fall within the Imbler
shelter. Here, at the motion to dismiss stage, it is at least plausible that this “grand jury proceeding”
5
The district court held that “The Attorneys representing the State in this matter had absolute[ly] NO authority to reassemble this Court’s Grand Jury after it was discharged on June 24, 2010 without permission of the Court . . . .
Therefore, there is no authority for this Court’s Grand Jury to re-assemble to conduct any additional business. Any
such business will be VOID and have NO AUTHORITY. Any person who violates this order will immediately be
held in CONTEMPT.” (Dkt. #10 at ¶ 47) (emphasis in original).
11
would not be intimately connected with the judicial phase of the process, as it was expressly against
a direct order of the district court and, ultimately, never held upon threat of contempt.
Additionally, prior to the end of the grand jury’s term in Spring of 2010, the Spring 2010 Grand
Jury requested to hear the criminal case against Plaintiff but Defendant Milner refused. It is
unlikely that less than a week later the prosecution had probable cause to present their case against
Plaintiff. See Cousin, 325 F.3d at 633 (citing Buckley, 509 U.S. at 274) (holding “[T]he existence
of probable cause with respect to a particular suspect is a significant factor to be used in evaluating
the advocatory nature [as opposed to the investigatory nature] of prosecutorial conduct.”). As
such, based on the pleadings, the Court finds it plausible that this fits more in line with Defendant
White’s administrative and investigate role as opposed to his prosecutorial role.
3. Remaining Allegations
Plaintiff also alleges the following: (1) that Defendant White was appointed to the Attorney
Pro Team on July 22, 2010, Imbler, 424 U.S. at 421, Quinn v. Roach, 326 F. App’x 280, 292 (5th
Cir. 2009), Bellamy v. Harris Cty., No. H–16–02925, 2017 WL 2080157, at *2 (S.D. Tex. May
15, 2017); Liverman v. Denton Cty., No. 4:16cv801, 2017 WL 1088340, at *2 (E.D. Tex. Mar. 23,
2017); (2) that he provided evidence, although maybe scant, to the July 2011 Grand Jury to obtain
a “re-indictment” or indictment against Plaintiff, Buckley, 509 U.S. at 273, Cousin, 325 F.3d at
635, Brown, 297 F. Supp. 3d at 770; (3) that he relayed an offer to dismiss the indictment if she
agreed to resign and never run again, Humble v. Foreman, 563 F.2d 780, 781 (5th Cir. 1977),
overruled on other grounds, Sparks v. Duval Cty. Ranch Co., 604 F.2d 976, Bellamy, 2017 WL
2080157; (4) and Defendant White intentionally withheld, for a period of time, exculpatory
evidence in the summer of 2011, Cousin, 325 F.3d at 635; Henzel, 608 F.2d at 657. These actions
taken by Defendant White, regardless of the motive, fit squarely within the realm of prosecutorial
12
immunity as identified by Imbler. Accordingly, the Court finds that these allegations taken by
Defendant White are absolutely immune and should not be included going forward in this case.
Although these actions are all covered by prosecutorial immunity that “does not
retroactively transform that [previous] work from the administrative [or investigative] into the
prosecutorial.” Buckley, 509 U.S. at 275–76. Thus, this finding does not change the Court’s
previous holdings that certain actions taken by Defendant White were not protected by
prosecutorial immunity for purposes of defeating a motion to dismiss.
II.
Qualified Immunity
The CCDAO Defendants and the AG Defendants both assert that even if they are not
immune based on prosecutorial immunity, they are protected by qualified immunity. Plaintiff
disagrees.
Public officials are immune from suit under 42 U.S.C. § 1983 unless they have “violated a
statutory or constitutional right that was ‘clearly established’ at the time of the challenged
conduct.” Plumhoff v. Rickard, 572 U.S. 765, 777, 134 S. Ct. 2012, 188 L.Ed.2d (2014). Qualified
immunity is a two-prong inquiry upon which the Court, in its discretion, may resolve either prong
first in light of the circumstances of the particular case at hand. Pearson v. Callahan, 555 U.S.
223, 236–37, 129 S. Ct. 808, 172 L.Ed.2d (2009). The two prongs are: (1) a statutory or
constitutional right was violated on the facts alleged, 6 and (2) the defendant’s actions violated
clearly established statutory or constitutional rights, which a reasonable person would have known.
Griggs v. Brewer, 841 F.3d 308, 312 (citing Flores v. City of Palacios, 381 F.3d 391, 395 (5th Cir.
6
As properly laid out in the AG’s motion to dismiss, the claims of supervisory liability and failure to intervene are
incorporated into whether Plaintiff has pleaded a constitutional violation. As such, the Court reserves ruling on these
issues contained in the CCDAO Defendants’ and the AG Defendants’ motions to dismiss. Moreover, the AG
Defendants’ argument that Plaintiff has failed to sufficiently plead a claim against them will also be addressed within
the analysis of qualified immunity. Finally, Collin County’s argument that it is not liable because of the immunity of
the CCDAO Defendants will only be able to be decided after the qualified immunity issue is decided.
13
2004)). “Qualified immunity ‘gives government officials breathing room to make reasonable but
mistaken judgments,’ and ‘protects all but the plainly incompetent or those who knowingly violate
the law.’” Messerschmidt v. Millender, 565 U.S. 535, 547, 132 S. Ct. 1235, 182 L.Ed.2d 47(2012)
(quoting Ashcroft v. Al-Kidd, 563 U.S. 731, 743, 131 S. Ct. 2074, 179 L.Ed.2d 1149).
In her responses, Plaintiff requests leave to amend her complaint. Rule 15(a) of the Federal
Rules of Civil Procedure provides that a party may amend its pleading once without seeking leave
of court or the consent of the adverse party at any time before a responsive pleading is served.
FED. R. CIV. P. 15(a). After a responsive pleading is served, “a party may amend only with the
opposing party’s written consent or the court’s leave.” Id. Rule 15(a) instructs the Court to “freely
give leave when justice so requires.” Id. The rule “evinces a bias in favor of granting leave to
amend.” Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 994 (5th Cir. 2005) (quoting Lyn–Lea
Travel Corp. v. Am. Airlines, Inc., 283 F.3d 282, 286 (5th Cir. 2002)). The Court does not find
that an amendment would be futile in this case. Due to the nature of qualified immunity, the Court
finds allowing the Plaintiff to replead will assist the Court in deciding qualified immunity. 7
III.
Official Immunity Under State Law
The AG Defendants additionally argue that they are immune from Plaintiff’s claims against
them based on official immunity. Plaintiff counters that the AG Defendants have not met their
burden to show that they are entitled to official immunity. 8
7
For example, in her complaint: (1) Plaintiff does not mention her probation, which is a basis for a deprivation of
liberty in her procedural due process claim; (2) lacks factual details surrounding her arrest, which is the basis for her
false arrest claim; (3) could contain more specifics surrounding her supervisory liability and failure to intervene
claims; and (4) could be more specific as to her due process claim—whether she seeks only procedural or also
substantive due process and what property and liberty interests are alleged, although some of this information is
contained in the briefing, it could be more clearly identified in the complaint. The Court does not hold that any of the
areas are insufficient or that there are no other areas that could be clarified, but merely provides some examples of
where some additional clarity could be helpful to the Court.
8
Plaintiff also asserts that the AG Defendants were not acting within the scope of their authority as she has asserted
an ultra vires exception to immunity. Plaintiff argues that there is a statute that defines the role that the AG Defendants
14
“Government employees are entitled to official immunity from suit arising from the
performance of their (1) discretionary duties in (2) good faith as long as they are (3) acting within
the scope of their authority.” City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994)
(citing Baker v. Story, 621 S.W.2d 639, 644 (Tex. Civ. App.—San Antonio 1981, writ ref’d n.r.e.);
Wyse v. Dep’t of Pub. Safety, 733 S.W.2d 224, 227 (Tex. App.—Waco 1986, writ ref’d n.r.e.).
“Official immunity is an affirmative defense. Thus, the burden is on the defendant to establish all
elements of the defense.” City of Lancaster, 883 S.W.2d at 653 (citing Perry v. Tex. A & I Univ.,
737 S.W.2d 106, 110 (Tex. App.—Corpus Christi 1987, writ ref’d n.r.e.), Montgomery v. Kennedy,
669 S.W.2d 309, 310–11 (Tex. 1984)).
The Court finds conclusively establishing official immunity at this stage in the litigation to
be difficult based on the allegations of this case. At the very least, Plaintiff has alleged that the
defendants in this case did not act in good faith. To the contrary, Plaintiff alleges that the
defendants acted maliciously in this case, investigating and prosecuting her because she won an
election by a landslide and because the CCDAO Defendants disagreed with her rulings in criminal
cases. She has also alleged that the AG Defendants acted in concert with the CCDAO Defendants
to achieve this goal. Accordingly, while the AG Defendants may have not been the defendants
with the initial motive, they continued the malicious behavior of the CCDAO Defendants. As
such, at this stage, the AG Defendants are not entitled to official immunity. 9 See Carter v.
Diamond URS Huntsville, LLC, 175 F. Supp. 3d 711, 742 (S.D. Tex. 2016) (quoting Wood v.
Strickland, 420 U.S. 308, 322, 95 S. Ct. 992, 43 L.Ed.2d 214 (1975)) (explaining “good faith
are allowed to act within when assisting a district attorney’s office, and that the AG Defendants acted outside such
authority. The Court finds this argument intriguing, but unnecessary to fully develop at this time.
9
The AG Defendants also argued that they were entitled to official immunity in the same way they were entitled to
absolute prosecutorial immunity, which the Court previously determined they are not entitled to at this time.
15
immunity is not available if the officer asserting that affirmative defense ‘took the action with
malicious intention to cause a deprivation of constitutional rights or other injury.’”).
IV.
The County’s Liability
Plaintiff alleges that the County “had a policy of pursuing wrongful arrests and
prosecutions without probable cause and without due process.” (Dkt. #10 at p. 28). In relation to
this policy, Plaintiff asserts the policy maker is the Collin County District Attorney, Defendant
Roach. The County moves to dismiss this claim arguing that liability does not attach to the County
based on this policy, because the County has no control over the arrests or prosecution of
individuals in Collin County. The County further asserts that, even if the County could be liable,
Plaintiff has not sufficiently alleged an actual policy caused her harm in this case.
When alleging a § 1983 claim, a plaintiff may not establish liability against a government
entity through respondeat superior. Deville v. Marcantel, 567 F.3d 156, 170 (5th Cir. 2009) (citing
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L.Ed.2d 611 (1978)); Wright
v. Denison Indep. Sch. Dist., No. 4:16-cv-615, 2017 WL 2262778, at *3 (E.D. Tex. May 24, 2017),
memorandum adopting in part, No. 4:16-cv-615, Dkt. #36 (E.D. Tex. Apr. 19, 2017).
Accordingly, plaintiffs must plead and prove that the government entity “itself causes the
constitutional violation at issue.” City of Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197,
103 L.Ed.2d 412 (1989) (citing Monell, 436 U.S. at 694–95). To establish that the government
entity caused the constitutional violation, the Fifth Circuit requires a showing that an “official
policy” caused the plaintiff’s harm. Deville, 567 F.3d at 170. The Fifth Circuit has explained that
an official policy is:
1. A policy statement, ordinance, regulation, or decision that is officially adopted
and promulgated by the municipality’s lawmaking officers or by an official to
whom the lawmakers have delegated policy-making authority; or
16
2. A persistent, widespread practice of city officials or employees, which, although
not authorized by officially adopted and promulgated policy, is so common and
well settled as to constitute a custom that fairly represents municipal policy. Actual
or constructive knowledge of such custom must be attributable to the governing
body of the municipality or to an official to whom that body had delegated
policy-making authority.
Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984). The Court first addresses whether
Defendant Roach is a policy maker for the County and then whether there was actually an official
policy in this case.
A. The Responsibility of the County Based on the Actions of a District Attorney
The County argues that the alleged policy of “pursuing wrongful arrests and prosecution
without probable cause and without due process” is not a policy of the County because the Collin
County District Attorney acts on behalf of the State and not on behalf of the County. 10 The County
further argues that it has no control over the arrest or prosecution of individuals in Collin County,
and thus, this policy cannot be attributed to the County. Plaintiff counters that, while a district
attorney acting in non-policy making authority acts on behalf the State, the Fifth Circuit has held
that a district attorney can act as a policy maker for the county in relation to Monell liability.
As previously identified, Plaintiff must state that the County enacted an official policy,
which caused her harm in this case. “Such ‘policy’ must derive from the government entity’s
recognized [policy maker] . . . . This ensures plaintiffs do not saddle government entities with
vicarious liability for the actions of its agents not in accord with policy.” Wright, 2017 WL
2262778, at *3 (citing Rivera v. Hous. Indep. Sch. Dist., 349 F.3d 244, 247–48 (5th Cir. 2003);
Jett v. Dall. Indep. Sch. Dist., 7 F.3d 1241, 1245 (5th Cir. 1993); Bd. of Cty. Comm’rs of Bryan
10
The County also maintains that this argument is further supported by the fact that the CCDAO Defendants would
gain immunity in their official capacity under the 11th Amendment, which is derived from the State. Because Plaintiff
did not sue the CCDAO Defendants in their official capacity, the Court does not venture out to decide the hypothetical
situation of, if they had been sued in their official capacity, if the CCDAO Defendants would be immune pursuant to
the 11th Amendment.
17
Cty. v. Brown, 520 U.S. 397, 403–04 (1997)). The Fifth Circuit has described that a district
attorney has qualities of both a state official and a county official; explaining, that the district
attorney’s “office is a local entity, created by the State of Texas and deriving its powers from those
of the State, but limited in exercise of those powers to the county, filled by its voters, and paid for
with its funds.” Crane v. State of Tex., 766 F.2d 193, 194–95 (5th Cir. 1985). As such, there are
certain circumstances in which the district attorney is a policy maker for the State and
circumstances when the district attorney is a policy maker for the county.
The Court finds this case most factually similar to Crane v. State of Texas. In Crane, the
county was alleged to have a policy of issuing arrest warrants without probable cause through the
district attorney of the county. See generally Crane v. State of Tex., 759 F.2d 412 (5th Cir. 1985).
The Fifth Circuit determined that, under these circumstances, the district attorney was “properly
viewed as a county official, elected by its voters and responsible for its relevant policy.” Crane,
766 F.2d at 195. The Fifth Circuit continued that the county could not “evade[]” “responsibility
for violation[s] of the Constitution” simply by asserting that the district attorney works on behalf
of the State. Id. The Court finds subsequent Fifth Circuit decisions to fall in line with this holding.
For example, the Fifth Circuit held that when the district attorney was enforcing a State statute, as
opposed to acting contrary to state law as was present in Crane, the district attorney was acting on
behalf of the State instead of the county. Echols v. Parker, 909 F.2d 795, 800–01 (5th Cir. 1990).11
Moreover, a district court within the Fifth Circuit identified that there is a difference between a
county being held liable for a specific action of a district attorney in enforcing state law in his
11
The Court also notes that in Brown the Fifth Circuit pointed out that “Brown does not contend that, apart from the
role of Lyford, Upshur county has a policy of charging and arresting innocent people.” Brown v. Lyford, 243 F.3d
185, 191 (5th Cir. 2001). While the Court does not speculate on the Fifth Circuit’s ruling had that been the argument,
the Court does find it noteworthy that it was mentioned before the Court determined that the attorney appointed as
attorney pro team for the district attorney’s office was acting on behalf of the state.
18
prosecutorial capacity and an official policy of the district attorney and his office accepting or
prosecuting cases without probable cause. Jones v. Pillow, No. Civ.A.3:02-CV-1825-L, 2003 WL
21356818, at *2 (N.D. Tex. June 10, 2003). 12
Here, the County is alleged to have a policy of “pursuing wrongful arrests and prosecution
without probable cause and without due process.” This policy would be outside of the district
attorney’s role as a prosecutor in one case and instead is the implementing of a policy that is
contrary to state and federal law. Additionally, the CCDAO in this case was not attempting to
uphold the laws of the State, as the allegations against Plaintiff were not a crime under the laws of
the State. As such, because the policy is not about enforcing the laws of the State and instead runs
afoul of the laws of the State and serves as a violation of the Constitution, based on the precedent
before it, the Court finds that Defendant Roach, as the Collin County District Attorney, was acting
as a policy maker on behalf of the County for purposes of the motion to dismiss.
B. Constitutionally Deficient Policy, Practice, or Custom
The County additionally asserts that Plaintiff has not asserted a policy of the County that
caused Plaintiff’s harm. Plaintiff disagrees. A plaintiff has to “specifically identif[y]” the
contested policy. Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001). Further, if
that “policy [is] based on a pattern,” the plaintiff must demonstrate the pattern “‘occurred for so
long or so frequently that the course of conduct warrants the attribution to the governing body of
knowledge that the objectionable conduct is the expected, accepted practice of . . . employees.’”
Davidson v. City of Stafford, 848 F.3d 384, 396 (5th Cir. 2017) (quoting Peterson v. City of Fort
Worth, 588 F.3d 838, 850 (5th Cir. 2009)). After reviewing the current complaint, the motion to
12
The Northern District of Texas did identify the difference between the two allegations; however, the defendants in
that case did not argue against the official policy; accordingly, that claim proceeded past the motion to dismiss without
an argument against it. Jones, 2003 WL 21356818, at *2.
19
dismiss, the response, the reply, and the sur-reply, the Court finds that Plaintiff has stated a
plausible claim that there was an official policy that caused her harm for the purposes of defeating
a Rule 12(b)(6) motion to dismiss
V.
Statute of Limitations
All Defendants argue that the majority of Plaintiff’s claims do not require a favorable
determination in order to proceed. Accordingly, the Defendants maintain the last possible accrual
date, for a majority of her claims, is November 22, 2011, Plaintiff’s conviction date. There is no
debate that the case was filed on May 23, 2018. Thus, the Defendants argue that Plaintiff does not
meet the two-year statute of limitations. Plaintiff counters that when the allegations are part of a
broader malicious prosecution conspiracy, the causes of action accrue at the same time as the
malicious prosecution.
According to Plaintiff, malicious prosecution requires a favorable
termination. As such, Plaintiff maintains all her causes of action are timely based on the date of
accrual, May 24, 2017, the date her conviction was vacated and Plaintiff was acquitted.
The Court agrees with Plaintiff. All of Plaintiff’s claims “are essentially part of a broader
claim alleging a malicious prosecution conspiracy” and as such these claims “accrue[] at the same
time as the cause of action for malicious prosecution.” Casanova v. City of Brookshire, 119 F.
Supp. 2d. 639, 650 (S.D. Tex. 2000); accord Brandley v. Keeshan, 64 F.3d 196, 199 (5th Cir.
1995), Jacobs v. Port Neches Police Dep’t, No. 1:94-cv-767, 1996 WL 363023, at *5 (E.D. Tex.
1996). Moreover, malicious prosecution does require a favorable termination. Brown, 243 F.3d
at 189. Plaintiff’s 11.072 Writ of Habeas Corpus Declaring Actual Innocence as a Matter of Law
was granted on May 24, 2017. This case was filed less than a year after that on May 23, 2018.
Thus, Plaintiff’s claims are timely.
20
VI.
Punitive Damages
Both the CCDAO Defendants and the County argue that the Court should dismiss
Plaintiff’s claims for punitive damages against them. The Court addresses the arguments for each
separately.
A. CCDAO Defendants
The CCDAO Defendants ask the Court to dismiss Plaintiff’s claims for punitive damages
asserting that a plaintiff has to establish a certain level of culpability against a government
employee to receive punitive damages, noting it is harder to do when prosecutorial immunity is
involved. The CCDAO Defendants state Plaintiff’s punitive damage claim fails, without any
argument or factual support. The Court does not find this issue to be fully briefed for the Court to
consider. See United States v. Volksen, 766 F.2d 190, 193 (5th Cir. 1985); Ragland v. Dall. Cty.
Cmty. Coll. Dist., No. 3:16-CV-722-L, 2017 WL 1196863, at *5 (N.D. Tex. Mar. 31, 2017); Kostic
v. Tex. A & M Univ. at Commerce, 11 F. Supp. 3d 699, 735 (N.D. Tex. 2014) (citing Petrie v. City
of Grapevine, 904 F. Supp. 2d 569, 585 (N.D. Tex. 2012)). 13
B. The County
The County also argues that Plaintiff cannot recover punitive damages against it, citing
City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S. Ct. 2748, 69 L.Ed.2d 616 (1981).
Plaintiff does not respond to this argument. LOCAL RULE CV-7(d) (“A party’s failure to oppose a
motion in the manner prescribed herein creates a presumption that the party does not controvert
the facts set out by movant and has no evidence to offer in opposition to the motion.”). With no
opposition to the argument, and the Supreme Court of the United States’ holding that “a
13
Even so, just looking to the complaint, Plaintiff has plausibly pleaded that the CCDAO Defendants acted willfully
and intentionally.
21
municipality is immune from punitive damages under 42 U.S.C. § 1983” the Court finds the
motion should be granted as to this issue. Id.
CONCLUSION
It is therefore ORDERED that Defendants John Roach, Sr. and Christopher Milner’s
Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. #17) is hereby DENIED. The motion
is DENIED as to prosecutorial immunity, statute of limitations, and punitive damages. The
remainder of the motion is DENIED as moot at this time. After the Plaintiff files her amended
complaint, the CCDAO Defendants may reurge their motion with respect to the Plaintiff’s
constitutional claims and the defense of qualified immunity.
It is further ORDERED that Defendant Collin County, Texas’ Motion to Dismiss Pursuant
to Fed R. Civ. P. 12(b)(6) (Dkt. #18) is hereby GRANTED in part and DENIED in part. The
motion is GRANTED as to punitive damages, and DENIED as to the argument Plaintiff did not
plausibly plead a Monell liability claims and the statute of limitations defense. The remainder of
the motion is DENIED as moot at this time. After the Plaintiff files her amended complaint, the
County may reurge its motion with respect to Plaintiff’s constitutional claims and its arguments
based on the CCDAO Defendants’ qualified immunity.
It is also ORDERED that Defendant’s Abbott and White’s Motion to Dismiss (Dkt. #20)
is hereby DENIED. The motion is DENIED as to prosecutorial immunity, official immunity, and
statute of limitations. The remainder of the motion is DENIED as moot at this time. After the
Plaintiff files her amended complaint, the AG Defendants may reurge their motion with respect to
the Plaintiff’s constitutional claims and the defense of qualified immunity.
It is finally ORDERED that within fourteen days of this order, Plaintiff shall file an
amended complaint in this case.
22
SIGNED this 27th day of March, 2019.
___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
23
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