Rogers v. Frazier et al

Filing 93

ORDER ADOPTING REPORT AND RECOMMENDATIONS. The Court hereby adopts the findings and conclusions of the Magistrate Judge 82 as the findings and conclusions of the Court. Defendant McNear's motion to dismiss 46 is GRANTED, and all claims against Defendant Clint McNear are hereby dismissed. Signed by Judge Michael H. Schneider on 03/15/16. (mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
WILLIAM ROGERS,
Plaintiff,
v.
EILEEN FRAZIER, RON VODA, DONA
JORDON, CANDYCE PALMERTREE,
WAYNE KIRKPATRICK, SHERRY DAVIS,
NORMA OGLESBY, JACKIE RUCKER, TODD
EDDINGTON, CLINT MCNEAR, MIKE
MABERRY, GLYNDIA LANE, HOWARD
COQUAT,
Defendants.

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No. 6:15CV714-MHS-JDL

ORDER ADOPTING REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of United States Magistrate Judge John D.
Love in this action, this matter having been heretofore referred to the United States
Magistrate Judge pursuant to 28 U.S.C. § 636. On February 8, 2016, the report of the
Magistrate Judge was entered containing proposed findings of fact and recommendations
that Defendant Clint McNear’s (“McNear”) Motion to Dismiss (Doc. No. 46) be granted.
Pro se Plaintiff William Rogers filed objections to the Magistrate Judge’s report
(Doc. No. 83) on February 22, 2016, and McNear filed a response (Doc. No. 90) on March
8, 2016.
The court has made a de novo review of the objections raised by Plaintiff, as well
as McNear’s response to those objections, and is of the opinion that the findings and

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conclusions of the Magistrate Judge are correct and the objections are without merit as to
the ultimate findings of the Magistrate Judge.
The Magistrate Judge correctly found that Plaintiff has failed to state a claim
against McNear. Therefore, dismissal is warranted pursuant to Federal Rule 12(b)(6).
FED. R. CIV. P. 12(b)(6). For a claim to have facial plausibility, a plaintiff must plead facts
that allow the court to draw the reasonable inference that the defendant is liable for the
alleged misconduct. Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009). As noted by the
Magistrate Judge, Plaintiff’s claims fail to provide “sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face” as to McNear. Ashcroft v. Iqbal,
556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed. 2d 868 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 563, 127 S.Ct. 1955, 1969, 167 L.Ed.2d 929 (2007) (internal
quotations omitted).
As the Magistrate Judge noted, Plaintiff’s claims for violation of his civil rights
pursuant to 42 U.S.C. §§ 1983 and 1985 contain little more than “formulaic recitation of
the elements” of the statute. Twombly, 550 U.S. at 555. Plaintiff’s objections merely
reassert these same “formulaic recitations” and fail to provide any new information or legal
arguments to support his claim that McNear conspired with other Defendants to deprive
Plaintiff of his constitutional rights. The only factual allegations against McNear involve
his attendance at a city council meeting, an interview with the media, and a “FOIA”
request to obtain Plaintiff’s emails. As detailed by the Magistrate Judge in his report,
Plaintiff failed to show the existence of any actual conspiracy involving McNear and
government officials, or that any of McNear’s actions were in any way unlawful or in
furtherance of a conspiracy.
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In his objections, Plaintiff attempts to claim the existence of an agreement between
private and state actors based on the fact that two of the defendants affiliated with the City
of Hawkins are also members of the TMPA, McNear’s employer. See Doc. No. 83 at 2-3.
However, the mere fact that certain defendants are members of TMPA, a state-wide nonprofit law enforcement organization, fails to establish that they “exercised coercive power
or…provided such significant encouragement” over McNear such that his conduct as a
private citizen is deemed to be that of the state. See Wong v. Stripling, 881 F.2d 200, 202
(5th Cir. 1989) (citing Daigle v. Opelousas Health Care, Inc., 774 F.2d 1344, 1348-49 (5th
Cir. 1985) (internal citations and quotations omitted). As correctly the Magistrate Judge
correctly found, there can be no actionable claim against a private actor under § 1983
without an agreement between private and state actors. Cinel v. Connick, 15 F.3d 1338
(5th Cir. 1994).
Plaintiff’s claims under § 1985 fail for similar reasons. Not only has Plaintiff has
failed to show the existence of an actual conspiracy, a claim under § 1985 in the Fifth
Circuit must allege “the action of the conspirators is motivated by a racial animus. Horaist
v. Doctor's Hosp. of Opelousas, 255 F.3d 261, 270 n.12 (5th Cir. 2001) (quoting Wong,
881 F.2d at 202-03 (5th Cir. 1989). As the Magistrate Judge noted, Plaintiff failed to
establish any underlying racial motivation on the part of McNear or any of the other
Defendants. Even viewing the alleged facts in the light most favorable to Plaintiff and
taking into account the allegations contained in his second supplemental response (see

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Doc. No. 68) – as the Magistrate Judge did here – Plaintiff failed to allege any set of facts
entitling him to relief under 42 U.S.C. § 1985.1
The Magistrate Judge properly recommended dismissal of Plaintiff‟s remaining
claims for similar reasons. The Court thus agrees with the Magistrate Judge’s finding that
. Plaintiff has failed to assert a claim upon which relief may be granted on any of his causes
of action against McNear.
Therefore the Court hereby adopts the findings and conclusions of the Magistrate
Judge as the findings and conclusions of the Court. It is accordingly ORDERED that
McNear’s motions to dismiss (Doc. No. 46) is GRANTED, and all claims against
Defendant Clint McNear are hereby dismissed.
SIGNED this 15th day of March, 2016.

____________________________________
MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE

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The Court notes that although Plaintiff’s objections reference a number of responsive pleadings
purporting to contain “evidence” to support his allegations, McNear’s Rule 12(b)(6) Motion to Dismiss is not
an evidentiary motion. To survive dismissal under Rule 12(b)(6), a plaintiff must plead “enough facts to
state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.

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