Scott E. Shine v. Ricky Jones Franklin County Sheriff

Filing 56

MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATION for 48 Report and Recommendation; It is ORDERED that 27 Motion to Dismiss filed by Ricky Jones is GRANTED. It is further ORDERED that Plaintiffs state-law claims alleging tortious interference with a contractual relationship against Defendant Jones are DISMISSED WITHOUT PREJUDICE and Plaintiffs § 1983 claims against Defendant Jones are DISMISSED WITH PREJUDICE. Ricky Jones (Franklin County Sheriff) terminated. Signed by District Judge Robert W. Schroeder, III on 1/22/2018. (slo, )

IN THE UNITED STATES DISTRICT COURT
OF THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
SCOTT E. SHINE and JOSEPH HICKS §
§
V.
§
§
RICKY JONES FRANKLIN COUNTY §
SHERIFF In his Capacity as Sheriff and §
Individually and HEATH HYDE
§

No. 5:17CV51-RWS-CMC

MEMORANDUM ORDER
The above-entitled and numbered civil action was heretofore referred to United States
Magistrate Judge Caroline M. Craven under 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. Docket No. 48. Plaintiffs filed objections to the
Report and Recommendation under 28 U.S.C. § 636(b)(1)(C). Docket No. 49. Defendant Ricky
Jones filed a response to the objections. Docket No. 53. The Court conducts a de novo review of
the Magistrate Judge’s findings and conclusions.
I. FACTUAL BACKGROUND
On March 3, 2017, Plaintiff Scott Shine (“Plaintiff Shine”) filed his complaint alleging 42
U.S.C. § 1983 violations and damages against Franklin County Sheriff Ricky Jones (“Defendant
Jones”), in his individual and official capacity, and unknown agents of the Franklin County
Sheriff’s Department.1 Docket No. 1. On May 4, 2017, Defendant Jones answered and filed his

On August 22, 2017, the Court granted Plaintiff Shine’s Motion to Dismiss Unknown Agents.
Docket No. 25.
1

first motion to dismiss. Docket Nos. 6, 7. On May 25, 2017, Plaintiff Shine filed his First
Amended Complaint. Docket No. 9.
On June 8, 2017, Defendant Jones filed his second motion to dismiss, and on June 26, filed
his motion for summary judgment. Docket Nos. 12, 14. On August 21, Plaintiff Shine filed a
Second Amended Complaint, wherein Plaintiff Shine added Joseph Hicks (“Plaintiff Hicks”) as an
additional plaintiff and Heath Hyde as an additional defendant. Docket No. 24. On September 1,
2017, Defendant Jones filed his third motion to dismiss all claims brought by Plaintiff Shine and
Plaintiff Hicks. Docket No. 27.
II. REPORT AND RECOMMENDATION
On November 21, 2017, the Magistrate Judge issued a 35-page Report and
Recommendation recommending Defendant Jones’ third motion to dismiss be granted. Docket
No. 48.

Based on Plaintiffs’ withdrawal of their tortious interference with a contractual

relationship state law claims against Defendant Jones, the Magistrate Judge recommended those
state law claims be dismissed without prejudice.

Id. at 7.

The Magistrate Judge further

recommended Plaintiffs’ § 1983 claims against Defendant Ricky Jones be dismissed with
prejudice. Id. at 34.
Specifically, the Magistrate Judge found that Plaintiff Hicks’s claims are barred by the
statute of limitations. Id. at 11–13. The Magistrate Judge further found Plaintiffs’ claims do not
allege a deprivation of Plaintiffs’ Fourth or Eighth Amendment rights, and Defendant Jones is
entitled to qualified immunity. Id. at 21–25. The Magistrate Judge also found that without a
deprivation of a constitutional right, there can be no claim for conspiracy and no municipal
liability. Id. at 26–30.

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Plaintiffs filed objections to the Report and Recommendation. Docket No. 49. Plaintiffs
object to the exclusion of summary judgment affidavits in the consideration of Defendant Jones’s
Rule 12(b)(6) motion to dismiss, the finding that Plaintiff Hicks’s claims are barred by the statute
of limitations, and the dismissal of Plaintiffs’ Fourth Amendment claims. Id.
III. DE NOVO REVIEW
A.

Consideration of the summary judgment affidavits
In their objections, Plaintiffs concur with the Magistrate Judge’s procedural history but

assert the summary judgment affidavits of Defendants Jones and Hyde attached to Defendant
Jones’s motion for summary judgment are critical documents and should be considered. Docket
No. 49 at 1. However, in ruling on Defendant Jones’s Rule 12(b)(6) motion to dismiss, the
Magistrate Judge, as is proper, did not consider any extrinsic evidence. Docket No. 48 at 9 (citing
Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996)). Consequently, Plaintiffs are incorrect when
they argue the Magistrate Judge, or the undersigned, should consider the affidavits that were
attached to Defendant Jones’s earlier motion for summary judgment.2
B.

Whether Plaintiff Hicks’ claims are barred by limitations
Turning to the Magistrate Judge’s finding that Plaintiff Hicks’s claims are barred by the

statute of limitations, Plaintiff Hicks’s claims relate to alleged actions on the part of Defendant
Jones that occurred in February 2015. Yet Plaintiff Hicks raised those claims against Defendant
Jones on August 21, 2017 in the Second Amended Complaint, approximately six months after the
statute of limitations had run.

However, even if the Court were to consider the affidavits, the Court’s ruling would be the
same, not only based on the statute of limitations having run but also because Plaintiffs’ § 1983
claims are not viable as discussed hereafter.
2

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According to Plaintiffs, the limitations period begins to run when the plaintiff either is or
should be aware of both the injury and its connection with the alleged acts of the defendant. Docket
No. 49 at 4. Plaintiffs assert Plaintiff Hicks has been incarcerated since being re-arrested on
February 26, 2016 and would have no reason to know that Defendant Jones was a factor in moving
Defendant Hyde to file the Article 17.19 Affidavits that led to Plaintiff Hicks’s re-arrest. Id.
The statute of limitations for constitutional actions is governed by the two-year statute of
limitations found in Texas Civil Practice and Remedies Code § 16.003. Piotrowski v. City of
Houston, 237 F.3d 567, 576 (5th Cir. 2001). While the applicable two-year statute of limitations
period is borrowed from Texas law, courts “determine the accrual date of a § 1983 action by
reference to federal law.” Walker v. Epps, 550 F.3d 407, 414 (5th Cir. 2008) (citing Wallace v.
Kato, 549 U.S. 384, 388 (2007)). Federal law holds generally that an action accrues when a
plaintiff has a complete and present cause of action, or, expressed differently, when the plaintiff
can file suit and obtain relief.” Id. (quoting Bay Area Laundry & Dry Cleaning Pension Trust
Fund v. Ferber Corp. Of Cal., 522 U.S. 192, 201 (1997)) (internal quotation marks omitted). The
Fifth Circuit Court of Appeals has stated “the limitations period begins to run ‘the moment the
plaintiff becomes aware that he has suffered an injury or has sufficient information to know he has
been injured.’” Id. (quoting Piotrowski, 237 F.3d at 576); see also Shelby v. City of El Paso, Tex.,
577 F. App’x 327, 331–32 (5th Cir. 2014) (per curiam) (“The standard in § 1983 actions provides
‘that the time for accrual is when the plaintiff knows or has reason to know of the injury which is
the basis of the action.’ ” (quoting Burrell v. Newsome, 883 F.2d 416, 418 (5th Cir. 1989)).
The discovery rule is an accrual rule for the applicable statute of limitations, not a tolling
rule, and simply defers the accrual of a cause of action. Shelby, 577 F. App’x at 331. In their
objections, Plaintiffs argue that Plaintiff Hicks’s claims are not barred by limitations because he

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discovered his injury only when he was incarcerated with Plaintiff Shine and heard about Shine’s
lawsuit and the affidavits of Defendants Jones and Hyde which were filed in support of Defendant
Jones’ motion for summary judgment. Docket No. 49 at 4. Plaintiff Hicks argues he did not
discover there was a communication between Defendant Jones and Defendant Hyde prior to
Hicks’s re-arrest on February 26, 2015, as detailed in the affidavits that have been filed in this case,
and thus he did not know of his injury. Id. at 2. This argument is without merit.
In Brown v. Walraven, 9 F.3d 1546, 1993 WL 503349 (5th Cir. Nov. 17, 1993) (per
curiam), Brown alleged he was arrested on December 9, 1988, for selling drugs in October 1988.
“The crux of his allegations of constitutional violations surrounding his arrest and prosecution
[was] that the defendants did not have authority or jurisdiction to arrest him in 1988 because the
Ark-La-Tex narcotics task force did not have authority to operate in Harrison County, Texas, in
1988. All of the allegations in his pleadings refer[red] to 1988.” Brown, 1993 WL 503349, at *2.
Brown filed suit in state court on February 10, 1992. Id. The district court found Brown’s cause
of action was barred by the statute of limitations. Id. According to the Fifth Circuit,
Brown argue[d] on appeal though that he was not aware of his cause of action at
the time of the arrest because he did not know at the time that the defendants were
acting without jurisdiction or authorization. He contend[ed] that he did not have
knowledge of any wrongful acts by the defendants until the date of the criminal
trial, when testimony revealed their tainted authorization. This argument fails.
Brown knew that he was injured when he was arrested and prosecuted, and the
statute of limitations began to run in 1988.
Id. at *2–*3 (citing Longoria v. City of Bay City, Tex., 779 F.2d 1136, 1139 (5th Cir. 1986)).
As referenced above, a § 1983 cause of action accrues when the plaintiff knows or has
reason to know of the injury which is the basis of the action. “Because the Texas statute of
limitations is borrowed in Section 1983 cases, Texas’s equitable tolling principles control this
litigation.” Peterson v. Davies, No. 3:15-CV-247-M (BF), 2017 WL 1378281, at *3 (N.D. Tex.
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Mar. 16, 2017), report and recommendation adopted, No. 3:15-CV-247-M (BF), 2017 WL
1376377 (N.D. Tex. Apr. 11, 2017) (internal quotation marks and citations omitted). “Texas courts
sparingly apply equitable tolling and look, inter alia, to whether a plaintiff diligently pursued his
rights; litigants may not use the doctrine to avoid the consequences of their own negligence.
Federal courts also apply the doctrine sparingly.” Id. “[E]quitable tolling is available where a
plaintiff has actively pursued judicial remedies but filed a defective pleading, as long as the
plaintiff has exercised due diligence. . . . [T]he principles of equitable tolling . . . do not extend to
what is at best a garden variety claim of excusable neglect.” Id.
“When a Section 1983 plaintiff knows or has reason to know of an injury and the cause of
that injury – such as arrest by police officers that he believes to be wrongful or use of force by
prison guards that he believes to be excessive – the limitations period begins, and he acquires a
duty to fully investigate his claims.” Rogers v. Buchanan, No. 3:12-CV-2458-M-BN, 2015 WL
5772203, at *3 (N.D. Tex. Aug. 4, 2015), report and recommendation adopted, No. 3:12-CV2458-M-BN, 2015 WL 5771926 (N.D. Tex. Sept. 30, 2015). “Simply because a plaintiff later
learns – in pursuing his investigation, for example – that a particular defendant also may be liable
for his harm does not restart the limitations period as to that defendant.” Id.
As argued by Defendant Jones, there is no basis for tolling the limitations period, because
Plaintiff Hicks had or with due diligence could have had the information necessary to file suit
against Defendant Jones before the statute of limitations expired. See Longoria, 779 F.2d at 1138
(“The fact that the Longorias took all of this action after the first flood and before the second
clearly establishes that they knew of their injury, and were on notice of its cause, at the occurrence
of the first flood. . . . [W]e reject the Longorias’ argument here that the statutory period was tolled
until they learned through a newspaper article of possible wrongdoing by this defendant. They
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were on ample notice after the first flood that it would be appropriate to investigate the possibility
of fraud. At that point, the limitations period began to run and the Longorias acquired a duty to
exercise reasonable diligence to discover their cause of action. The argument that the statutory
period is tolled until the plaintiff learns that the defendant’s conduct may have been wrongful finds
no support in the relevant case law.”).
What is more, Plaintiff Shine had the same knowledge of his alleged injury when he filed
suit within the limitations period. Because Plaintiff Hicks had knowledge of his re-arrest and the
stated reasons for his re-arrest on February 27, 2015, the limitations period began to run on that
date. Because Plaintiff Hicks’s claims are barred, his claims should be dismissed under Rule
12(b)(6) for failure to state a claim upon which relief can be granted.
The Magistrate Judge correctly applied the above stated law, and then went on to discuss
how other legal arguments, not raised by Plaintiff Hicks, also fail. Docket No. 48. Tolling based
on fraudulent concealment does not apply because there was no relationship of trust and confidence
between Plaintiff Hicks and Defendant Jones giving rise to such duty. Id. at 12–13. Also, the
relation-back doctrine does not apply because Defendant Jones did not have fair notice of a claim
by Plaintiff Hicks, there was no identity of interest between Plaintiff Shine and Plaintiff Hicks, and
Defendant Jones would be prejudiced by the addition of Hicks as a Plaintiff. Id. at 15. Plaintiffs’
objections to this part of the Report and Recommendation are OVERRULED.
C.

Whether Plaintiffs stated a Fourth Amendment claim
In the Second Amended Complaint (“SAC”), Plaintiffs allege Defendant Jones is liable for

an unreasonable seizure because he allegedly misrepresented facts to the private bondsman who
wrote Plaintiffs’ bonds after Plaintiffs were released from jail. Docket No. 24 at 5. Plaintiffs
allege that because of this unspecified “misrepresentation,” Plaintiffs’ bondsman made the

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decision to prepare and sign “Article 17.19 Affidavits” and submit them to a justice of the peace
to issue warrants for Plaintiffs’ arrest. Id. As set forth in the SAC, neither Defendant Jones nor
any other governmental actor prepared or signed the affidavits which were presented to the justice
of the peace.
The justice of the peace found cause that the arrest warrants should issue. Defendant
Jones’s deputies arrested Plaintiffs based on facially valid warrants. See Docket Nos. 24-5, 24-6,
24-7. The Fifth Circuit has held that officers acting pursuant to a facially valid judicial warrant
enjoy qualified immunity for executing the warrant. Hamill v. Wright, 870 F.2d 1032, 1036 (5th
Cir. 1989). Plaintiffs’ case rests on allegations that Defendant Jones told Plaintiffs’ bondsman they
were a flight risk resulting in the bondsman surrendering Plaintiffs back to jail. As recommended
by the Magistrate Judge (Docket No. 48), even assuming the truth of the allegations, they fail to
state a claim upon which relief can be granted.
According to Defendant Jones, because Plaintiffs were clearly arrested pursuant to valid
arrest warrants issued by a justice of the peace, the only arguable cause of action Plaintiffs could
be asserting is a Franks/Hart-style conspiracy claim. Franks v. Delaware, 438 U.S. 154, 155
(1978); Hart v. O’Brien, 127 F.3d 424, 442 (5th Cir. 1997). Defendant Jones asserts, in line with
the Magistrate Judge’s finding, the facts and circumstances of this case do not support such a cause
of action. Docket No. 53 at 7. In their objections, Plaintiffs concede that Franks/Hart is not
applicable to this case. Docket No. 49 at 7–8 (“Plaintiff would note that the Frank/Hart is not
applicable because the process that led to the re-arrest of Plaintiff Shine and Hicks was not
governed by a concept of probable cause, the initiating factor[] was instead a procedure process
under Article 17.19 of the Texas Code of Criminal which dictated the filing of an Article 17.19
Affidavit a document that the Sheriff nor any other governmental agent could have filed after the

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Sheriff and or his agents approved the Bonds of Plaintiff Shine[] and Hicks on February 21st and
24th respectively.”).
Instead, Plaintiffs argue their conspiracy claim supports a § 1983 cause of action. To
support a claim of conspiracy under § 1983, a plaintiff “must allege facts that indicate: (1) an
agreement between the private and public defendants to commit an illegal act, and (2) an actual
deprivation of constitutional rights.” Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994)
(citations omitted). A plaintiff who asserts a conspiracy claim under the civil rights statutes must
plead the “operative facts” showing an illegal agreement; “bald allegations” of an agreement do
not suffice. Lynch v. Cannatella, 810 F.2d 1363, 1369–70 (5th Cir. 1987).
There are no factual allegations revealing Defendant Jones’s participation in an illegal
agreement. The SAC merely makes the allegation of conspiracy without indicating what factual
basis exists for such allegations. Such allegations are “not entitled to the assumption of truth.”
Ashcroft v. Iqbal, 556 U.S at 662, 664, 129 S.Ct. 1937 (2009). Moreover, as the Magistrate Judge
pointed out, “a conspiracy claim is not actionable without an actual violation of section 1983.”
Docket No. 48 at 26 (citing Pfannstiel v. City of Marion, 918 F.2d 1178, 1187 (5th Cir. 1990),
abrogated on other grounds by Martin v. Thomas, 973 F.2d 449 (5th Cir. 1992) (citations
omitted)). Here, Plaintiffs have not plausibly pleaded an actual deprivation of their Fourth
Amendment rights in connection with their arrest. Nor have Plaintiffs plausibly pleaded an actual
deprivation of their Eighth Amendment rights regarding excessive bail. Thus, to the extent
Plaintiffs’ conspiracy claims against Defendant Jones relate to those alleged deprivations, any
claim for conspiracy fails.

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D.

Qualified immunity
Finally, Defendant Jones asserts he is entitled to qualified immunity for Plaintiffs’ claims

against him in his individual capacity. Docket No. 53 at 6–8. The Magistrate Judge determined
Defendant Jones is entitled to qualified immunity on the two constitutional claims underlying
Plaintiffs’ conspiracy claim. Docket No. 48 at 29–30. In Pfannstiel v. City of Marion, the Fifth
Circuit explained that “[t]he defense of qualified immunity exists to protect an officer whose law
enforcement actions were objectively reasonable. The protection granted extends to freedom from
the expense of extensive fact development or trial as well as from a personal judgment for
damages.” 918 F.2d 1178, 1187 (5th Cir. 1990), abrogated on other grounds by Martin v. Thomas,
973 F.2d 449 (5th Cir. 1992). Where, as here, a plaintiff alleges both constitutional violations and
a conspiracy to commit those violations, if the court is required to “consider whether a conspiracy
might have been formed, the officer will face fact development or trial even where the official
action was objectively reasonable.” Id. This consequence “carries the potential for destroying the
efficacy of the [qualified immunity] defense.” Id. To avoid this consequence, the Fifth Circuit
determined that it would “look to whether the officer’s actions were taken pursuant to a
conspiracy” only if it first determined that the state action at issue was “not objectively
reasonable.” Id. Following this procedure “insures that the defense of qualified immunity is given
full meaning, and that the right of plaintiff to be compensated for damage caused by any official
action which a reasonable official would not have taken is preserved.” Id.
“The defendant’s acts are held to be objectively reasonable unless all reasonable officials
in the defendant's circumstances would have then known that the defendant’s conduct violated the
United States Constitution or the federal statute as alleged by the plaintiff.” Thompson v. Upshur
Cty., TX, 245 F.3d 447, 457 (5th Cir. 2001) (emphasis original). Here, in construing the facts in

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the light most favorable to Plaintiffs, the undersigned concludes Plaintiffs failed to allege facts that
would show that “all reasonable officials in the defendant’s circumstances” would have known
that the Defendants’ conduct violated the Plaintiffs’ asserted constitutional or federal statutory
right. Id. Therefore, Defendant Jones’s motion to dismiss (Docket No. 27) should also be
GRANTED on this ground.
Finally, as recommended by the Magistrate Judge (Docket No. 48), without an underlying
constitutional violation, Defendant Jones cannot be liable in his official capacity.
IV. CONCLUSION
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. Defendant Ricky
Jones should be dismissed under FED. R. CIV. P. 12(b)(6) in his individual and official capacities.
Accordingly, it is hereby
.
ORDERED that Defendant Ricky Jones’s Motion to Dismiss (Docket No. 27) is hereby
GRANTED. It is further
ORDERED that Plaintiffs’ state-law claims alleging tortious interference with a
contractual relationship against Defendant Jones are DISMISSED WITHOUT PREJUDICE. It
is further
ORDERED that Plaintiffs’ § 1983 claims against Defendant Jones are DISMISSED WITH
PREJUDICE.
SIGNED this 22nd day of January, 2018.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE
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