Richards v. Cannon et al

Filing 123

ORDER ADOPTING REPORT AND RECOMMENDATIONS 109 Report and Recommendations, GRANTING 54 MOTION to Dismiss filed by Vester Roney, Ricky Bryant, Luiz Gonzalez, 56 MOTION to Dismiss filed by City of Mt Pleasant Texas, 66 MOTION to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) filed by Lauren Craig-Burns, 51 MOTION for Summary Judgment with Brief in Support filed by Justin Hilton, FNU Head, Charles Cannon, Jason Pearce, 67 MOTION to Dismiss filed by Titus County Texas, Brad Fosdick, 55 MOTION to Dismiss filed by Texas Department of Public Safety. Brad Fosdick, Luiz Gonzalez, Lauren Craig-Burns, Vester Roney, Titus County Texas, Ricky Bryant and City of Mt Pleasant Texas are DISMISSED WITH PREJUDICE and Further ORDERED that Texas Department of Public Safety is DISMISSED WITHOUT PREJUDICE. Signed by Judge Rodney Gilstrap on 2/23/2016. (sm, )

IN THE UNITED STATES DISTRICT COURT
OF THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
ELIZABETH RICHARDS AND
MARCUS TYRELL GAY, SR.
V.
CHARLES CANNON, ET AL.

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No. 5:14CV111-JRG-CMC

MEMORANDUM ORDER
The above-entitled and numbered civil action was heretofore referred to United States
Magistrate Judge Caroline M. Craven pursuant to 28 U.S.C. § 636. The Report of the Magistrate
Judge which contains her proposed findings of fact and recommendations for the disposition of such
action has been presented for consideration.

Plaintiffs filed objections to the Report and

Recommendation. The Court conducted a de novo review of the Magistrate Judge’s findings and
conclusions.
I. BACKGROUND
Pro se plaintiffs Elizabeth Richards and Marcus Tyrell Gay, Sr. (“Plaintiffs”) filed separate
civil rights lawsuits seeking damages arising under the United States Constitution via 42 U.S.C. §
1983 for their alleged wrongful arrest on February 26, 2013. The two lawsuits were consolidated into
the current matter on October 17, 2014. On October 20, 2014, Plaintiffs filed an Amended
Defendants List, which included the State of Texas; Troopers Charles Cannon, Jason Pearce, Justin
Hilton, and Nathan Head in their individual and official capacities; and an “unknown officer” with
the Texas Department of Public Safety. The consolidated amended complaint filed by Plaintiffs on
December 29, 2014 listed the State of Texas and Troopers Cannon, Hilton, and Head (but not

Pearce).1
A June 9, 2015 Docket Control Order, which was later vacated in November of 2015,
provided an August 31, 2015 deadline to join parties. More than two years after the incidents of
February 26, 2013, Plaintiffs filed a Second Amended Complaint on July 22, 2015, adding as
defendants for the first time the Texas Department of Public Safety; Captain Ricky Bryant;
Lieutenant Colonel and Chief Luis Gonzalez, and Supervisor Vestor Roney; Lauren Craig-Burns,
an employee with the Texas Department of Family and Protective Services (“DFPS”); Titus County
Jail Captain Brad Fosdick and Titus County, Texas; and the City of Mt. Pleasant, Texas (collectively
“Moving Defendants”).
II. MOVING DEFENDANTS’ MOTIONS TO DISMISS
The City of Mt. Pleasant moved to dismiss Plaintiffs’ claims based on the applicable statute
of limitations. According to this defendant, Plaintiffs filed their SAC adding the City of Mt. Pleasant
on July 22, 2015, which was well after the two-year statute of limitations had run. Defendant CraigBurns, Titus County Jail Captain Fosdick, and Titus County, Texas also moved to dismiss Plaintiffs’
claims as barred by limitations. The Texas Department of Public Safety (“DPS”) moved to dismiss
under Rules 12(b)(1) and 12(b)(6), asserting § 1983 does not waive Eleventh Amendment immunity
for the State or its agencies, and Plaintiffs’ suit is barred by the Eleventh Amendment. Supervisors
Bryant, Gonzalez, and Roney moved to dismiss pursuant to Rule 12(b)(6), asserting they are entitled
to qualified immunity and the statute of limitations has expired.
III. REPORT AND RECOMMENDATION
On January 25, 2016, the Magistrate Judge issued a 16-page Report and Recommendation,

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Any unknown officer(s) and the State of Texas have been dismissed from this lawsuit.
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recommending Moving Defendants’ motions to dismiss be granted and that Plaintiffs’ case against
Bryant, Gonzalez, Roney, Craig-Burns, the City of Mt. Pleasant, Texas, Brad Fosdick, and Titus
County, Texas be dismissed with prejudice and Plaintiffs’ case against the Texas DPS be dismissed
without prejudice. Specifically, the Magistrate Judge found the Court does not have jurisdiction over
the Texas DPS.
Regarding the remaining defendants first added to this case in Plaintiffs’ SAC (“newly-added
Moving Defendants”), the Magistrate Judge concluded Plaintiffs’ claims against them were barred
by the two-year statute of limitations. After noting Plaintiffs acknowledged their “claims accrued
on February 26, 2013, and the statute of limitations ran on February 27, 2015,” the Magistrate Judge
held the claims against these newly-added defendants did not relate back to the original complaints
so as to avoid the statute of limitations bar. Finally, the Magistrate Judge rejected Plaintiffs’
argument that their compliance with the deadline to join additional parties immunized an amendment
outside the statute of limitations. See Clark v. Hawkins, 41 F.3d 664, 664 n. 8 (5th Cir.1994)(“We
have found no authority to support the conclusion that compliance with a scheduling order
immunizes an amendment against a statute of limitations defense.”).
Plaintiffs filed objections to the Magistrate Judge’s recommendation. Defendants CraigBurns, Fosdick, Titus County, Texas, and the City of Mt. Pleasant, Texas filed responses to
Plaintiffs’ objections.
IV. DE NOVO REVIEW
A.

Texas DPS
The bulk of Plaintiffs’ objections address the Magistrate Judge’s findings as to the statute of

limitations. Specifically regarding the Magistrate Judge’s recommendation that the Texas DPS’

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motion be granted based on Eleventh Amendment immunity, Plaintiffs argue as follows:
The Supreme Court has held that a local government defendant has no qualified
immunity from compensatory damages liability. . . . Municipalities and local
governments are persons subject to suit for damages and prospective relief. . . . No
defendants are entitled to Eleventh Amendment immunity of qualified immunity.
(Dkt. No. 117 at 6)(internal citations omitted).
Other than providing general legal principles and the conclusory statement that no defendants
are entitled to immunity, Plaintiffs do not specifically address the findings of the Magistrate Judge
that the Texas DPS is entitled to immunity. Plaintiffs’ objections are without merit and are
overruled.
B.

The remaining newly-added Moving Defendants
The Magistrate Judge recommended Plaintiffs’ claims against the remaining newly-added

Moving Defendants (City of Mt. Pleasant, Texas; Supervisors Bryant, Gonzalez, and Roney; Titus
County, Texas; Fosdick; and Craig-Burns) are barred by limitations. The statute of limitations for
constitutional actions is governed by the two-year statute of limitations found in the Texas Civil
Practice and Remedies Code § 16.003. Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir.
2001). A complaint that shows relief to be barred by an affirmative defense, such as the statute of
limitations, may be dismissed for failure to state a cause of action. Kaiser Alluminum & Chem. Sales
v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982); see also Doe v. Linam, 225
F.Supp.2d 731, 734 (S.D. Tex. 2002) (“A Rule 12(b)(6) motion to dismiss for failure to state a claim
is the proper vehicle by which to assert a limitations defense where a plaintiff’s complaint shows
affirmatively that his claims are time-barred.”).
As noted by the Magistrate Judge, Plaintiffs filed their SAC adding the newly-added Moving
Defendants on July 22, 2015. The underlying arrest and incarceration made the basis of Plaintiffs’
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claims occurred on February 26, 2013. In Plaintiffs’ response to Defendants’ motions to dismiss,
Plaintiffs admitted the statute of limitations ran on February 27, 2015.
Their only argument was the Docket Control Order allowed joinder of parties until August
31, 2015. Plaintiffs failed to cite any authority that allows a scheduling order to extend the statute
of limitations. Although there can be cases where joinder after the statute of limitations has run is
allowed under the Federal Rules of Civil Procedure, the Court agrees with the Magistrate Judge this
case is not one of them. Prior to July 22, 2015, the only defendants were Texas state agencies and
several Texas DPS Troopers that are all being represented by the Texas Attorney General’s Office.
In their objections to the Report and Recommendation, Plaintiffs assert, for the first time, a
claim of conspiracy. According to Plaintiffs, the conspiracy began on February 26, 2013 and lasted
until May 26, 2015,2 tolling the statute of limitations. Plaintiffs’ newly-raised conspiracy and tolling
claims are not supported by the pleadings in this case. Plaintiffs’ SAC (Dkt. No. 48) makes no
mention of any conspiracy with respect to any of the defendants. The word “conspiracy” does not
appear one time. Additionally, no conspiracy theory was ever alleged against Moving Defendants
in Plaintiffs’ response to Defendants’ motions to dismiss. Plaintiffs’ “conspiracy” theory to extend
the statute of limitations fails.
As acknowledged by Plaintiffs, the SAC adding the City of Mt. Pleasant, Texas; Supervisors
Bryant, Gonzalez, and Roney; Titus County, Texas; Fosdick; and Craig-Burns was filed
approximately five months after the statute of limitations had run. The Magistrate Judge correctly
ruled that Plaintiffs’ claims against these newly-added Moving Defendants should be dismissed with
prejudice.

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The Court notes Plaintiffs give no explanation or reasoning for this date.
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Plaintiffs’ objections are without merit. The Court is of the opinion that the findings and
conclusions of the Magistrate Judge are correct. Therefore, the Court hereby adopts the Report of
the United States Magistrate Judge as the findings and conclusions of this Court. Accordingly, it is
hereby
ORDERED that Defendants Bryant, Gonzalez, and Roney’s Motion to Dismiss (Dkt. No.
54); Defendant Texas Department of Public Safety’s Motion to Dismiss (Dkt. No. 55); Defendant
City of Mt. Pleasant, Texas’ Motion to Dismiss (as to Plaintiff’s Amended Complaint) Dkt. No. 56);
Defendant Lauren Craig-Burns’ Motion to Dismiss Pursuant to Federal Rule of Civil Procedure
12(b)(6) and 12(b)(1) (Dkt. No. 66); and Defendants Brad Fosdick and Titus County, Texas’ Motion
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to Dismiss (Dkt. No. 67) are GRANTED. It is further
ORDERED that Plaintiffs’ above-entitled and numbered cause of action against Bryant,
Gonzalez, Roney, Craig-Burns, the City of Mt. Pleasant, Texas, Brad Fosdick, and Titus County,
Texas is DISMISSED WITH PREJUDICE. It is further
ORDERED that Plaintiffs’ above-entitled and cause of action against the Texas Department
of Public Safety is DISMISSED WITHOUT PREJUDICE.

SIGNED this 19th day of December, 2011.
So ORDERED and SIGNED this 23rd day of February, 2016.

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RODNEY GILSTRAP
UNITED STATES DISTRICT JUDGE

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