Smith v. State of Texas et al

Filing 54

MEMORANDUM OPINION AND ORDER OF PARTIAL DISMISSAL granting in part and denying in part 21 Motion to Dismiss, filed by Texas Department of Family and Protective Services, Child Care Licensing Division (CCL), 45 Motion for Judgment,, filed by Fami ly Based Support Services (FBSS), Isabel McFarlane, Christin E Clardy, Carol Herman, Kristyn Gonzales, Rhonda Henderson, Child Care Licensing Division (CCL), Texas Department of Family and Protective Services, Starr Mills, Denise Hall, Georganna Ecke r, Elisa Crawford, Joe Bill Jones. The claims remaining in this suit are Pltf Smith's alleged Fourth and Fourteenth due process violations arising from revocation of her childcare license and Pltf Smith's alleged breach of her federal cons titutional right to privacy by continuing "harassment." To the extend that Pltf Smith brings in this suit a viable claim on behalf of her minor child, those claims are dismissed without prejudice.Starr Mills, State of Texas, Child Care Licensing Division (CCL) and Family Based Support Services (FBSS) terminated. (Ordered by Judge Mary Lou Robinson on 7/15/2011) (plh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION
SHEMIKA D. SMITH,Individually and as
Next Friend of G.S.. a Minor.

$
$
$

PLAINTIFF,
vs.

$
$

CNIL ACTION CAUSE NUMBER

$

STATE OF TEXAS, et al.,

$

2:10-CV-218-J

$

DEFENDANTS.

$

MEMORANDUM OPINION AND ORDER OF PARTIAL DISMISSAL
Before the Court are Defendants' two motions, filed October 5, 2010 and May

l3,2lll,for

dismissal of some of Plaintiff s claims, the response in opposition filed by Plaintiff Smith, and the
Defendants' reply. For the following reasons, Defendants' motions are granted in part and denied
in part.

Standards
The federal rules require that a pleading need only furnish a short and plain statement of the

claim showing that the pleader is entitled to relief. Fed. R. Civ. Pro. 8(a). Rule 12(bX1) & (6)
motions therefore function to test the formal sufficiency of a complaint against the liberal pleading
requirements of Rule 8. In analyzingamotion to dismiss under Federal Rule of Civil Procedure 12,

the Court accepts all well-pleaded facts as true, viewing them in the light most favorable to the

plaintiff. Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit,369 F.3d 464,467 (5th Cir.
2004). To survive, "the plaintiff must plead 'enough facts to state a claim to relief that is plausible

onitsface."'InreKatrinaCanalBreachesLitig.,495F.3dl9I,205(5thCir.2007)(quotingBell
Atlantic Corp. v. Twombly,550 U.S. 544,127 S.Ct. 1955, 1974,167 L.8d.2d929 (2007)). "[A]
plaintiffl s obligation to provide the grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly,

I27 S.Ct. at 1964-65 (citations, quotation marks, and brackets omitted). "Factual allegations must
be enough to raise a right to relief above the speculative level, on the assumption that all the
allegations in the complaint are true (even

if doubtful in fact)." Katrina Canal,495

F.3d at 205

(quoting Twombly,127 S.Ct. at 1965).
Although

a

court accepts all well-pleaded facts as true, "the tenet thatacourt must accept as

true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft
v. Iqbal,

elements

_

U.S.

_,129

S.Ct. 1937, 1949,173 L.Ed.2d s6s (2009). "Threadbare recitals of the

of a cause of action, supported by mere conclusory statements do not suffice." Id.

"[W]here the well-pleaded facts do not permit the court 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."' Id. at 1950 (quoting Fed. R. Civ. Pro. 8(aX2).
Discussion and Analysis

On September 13, 2010, Plaintiff Shemika D. Smith filed her pro se complaint listing
twenty-one causes of action against different combinations of Defendants. Plaintiff Smith, on her
own behalf and that of her minor child, seeks hundreds of millions of dollars in damases and costs

for claims alleged against the Defendants, plus injunctive relief. Plaintiff Smith's claims overlap
insofar as she seeks recovery for the same wrong under more than one theory of law, for the same
wrongs within all 21 listed causes of action, and under multiple different legal bases within the same
cause

of action number./r
Defendants are the Texas Department of Family and Protective Services (DFPS), the Texas

Child Protective Services (CPS), DFPS' Child Care Licensing (CCL), which are two divisions within

'

For example, within Plaintiff s "First Cause of Action" (n11206-214) she brings six
different claims: a criminal claim under 18 U.S.C. S 242, a negligent tort claim under $ 101.001 of the
Texas Tort Claims Act, a 42 U.S.C. $ 1983 failure to train and supervise claim, a 4fr Amendment due
process claim, a l4n Amendment due process claim, and a criminal claim under Texas Penal Code $
25.03. This pattern of multiple claims asserted within one listed cause of action is repeated within other
enumerated causes of action in her original complaint.

DFPS, a nonexistent "Family Based Support Services division" of DFPS, and thirteen of their
employees. Plaintiff s claims arise out of two distinct actions involving various DFPS-employee

Defendants.P Both claims involve Defendants' interactions with Plaintiff in the performance of

official duties. The first instance involved the removal of Plaintiff Smith's minor child from her
custody, which occurred from August 16,2007, to November 29,2007. See Complaint at ffi 46 &

75. The second instance involved an investigationresulting in aNovember7,2008,notice of intent
to revoke, and a February 9,2009,notice of revocation, of Plaintiff Smith's state license to operate
a registered childcare

facility within her home.

See

Plaintiffs' original complaint

at fltf 80-95.

Defendants seek dismissal of some but not all claims. Plaintiff agrees to dismissal of some
but not all claims.

Title 42, United States Code, Section 1983 (S 1983) Claims

Plaintiff Smith brings twenty-one $ 1983 causes of action for damages against Defendant
Texas DFPS, CPS and the individual Defendants,/3 generally alleging:

first,

the State through its

employees violated Plaintiff s and her child's rights when they removed her minor child from her
home andplacedherwith arelative; and, second, the revocationofPlaintiff Smith's home childcare

license. Plaintiff alleges that both actions were done without due process of law and in violation of
various state and federal statutory and federal constitutional rights. Plaintiff states that her claims
arise out ofher interactions with DFPS-employee Defendants performing their offrcial duties as state

2

The 13 named DFPS employees within those two divisions, who are sued in both their
official and individual capacities, are: Carol Herman, Rhonda Henderson, Georganna Ecker, Christine
Clardy, Kristyn Gonzales, Denise Hall, Joe Bill Jones, Isabel McFarlane, Star Mills, Elizabeth Taylor,
Connie Davis, Elisa Crawford, and Pam Pollard (collectively Defendants). In addition, Plaintiff sues up
to 25 unknown Jane and John Doe defendants who allegedly engaged in the named Defendants'
conspiracies to violate Plaintiff Smith and her daughter's rights.

3
Defendants.

That is, against all thirteen of the individually-named Defendants, plus the Doe

employees, although Plaintiff alleges that the

taken were at times not done pursuant to

official State policies.
Defendants' motions do not address or seek

of Plaintiff Smith's Fourth and

Fourteenth Amendment due process claims brought pursuant to Section 1983 for violation of her
allegedly vested property right in a home childcare license. This part of the Court's order therefore
addresses: 1) Plaintiff s claim arising out of the removal of her minor child from her custody from

August 16,2007, to November 29,2007, see Plaintif?s original complaint atlJu a6
repeated elsewhere),la and 2)

& 75 (and,

Plaintiff s $ 1983 claims which are asserted under Texas law.

Section 1983 Claims Based Upon Texas Law

A

$

1

983 action may generally not be based on a violation of state law, Ybarra v. Bastian, 647

F.2d 891 (9th Cir. 1981); State of Mo. ex rel. Gore v. Wochner, 620F.2d 183, 185 (8th Cir. 1980),

including

a state

aff d,823 F.2d

constitutional provision, Eldridge v. Bouchard,645F. Supp. 749 (W.D.Va. 1986),

546 (4th

Cir. 1987), because purely state-created rights are not protected by g 1983.

Quinlan v. Fairman,663 F. Supp. 24 (N.D. Ill. 1987); DeWalt v. Barger,490 F. Supp. 1262 (M.D.

Pa. 1980).

It is only

constitutional right

-

when such a violation has also resulted

a federally-protected

right

-

in infringement of a federal

that the basis for a $ 1983 cause of action exists.

State of Mo. ex rel. Gore, supra, 620F.2d at 185 ("Rights which derive solely from state law,
however, cannot be the subject of a claim for relief under 42 U.S.C. $ 1983."); Ortega Cabrera

v.

Municipality of Bayamon, 562F.2d91,102 (1st Cir. I977)("A violation of a federal constitutional
provision must be shown.").; Sigler v. Lowrie,404F.2d 659,662 (8th Cir.), cert. denied,395 U.S.

4

Plaintiff also brings this $ 1983 claim based upon a violation of her rights under Texas
Family Code $ 42.002, alleging liability for intentional interference with Plaintiffs possessory right to
her minor child. As discussed infra,no such claim can be brought under $ 1983. Likewise, her
unauthorized practice of law claim (within her eighth cause of action), fraud in contracting, and civil
conspiracy to commit fraud claims are not viable under g 1983.

940, 89 S.Ct. 2010,23 L.Ed.2d 456 (1969x"Title 42 U.S.C. $ 1983 is not concerned with mere

violations of state law."). Accord Screws v. United States,325 U.S. 91, 108, 65 S.Ct. 1031, 1038,
89 L.Ed. r49s

(r94r.f

While some personal interests in vested benefits provided under state law may be protected
by the due process clause of the Fourteenth Amendment, Perry v. Sindermann,40S U.S. 593, 92 S.

Ct.2694,33 L. Ed. 2d

570 (1972), an alleged right to engage

in lawful trade is a privilege

and

immunity of state citizenship, and is consequently not subject to protection by the Fourteenth
Amendmentanditsimplementinglegislation.

Murphyv. MountCarmel HighSchool,543 F.2d 1189

(7th Cir. 1976). Likewise, an individual's alleged right to have state civil and criminal laws obeyed
is not a federal

right cognizable in a civil rights action. McKinney v. George,556 F. Supp. 645 (N.D.

Ill. 1983), affd,726F.2d1183 (7th Cir. 1984).
Therefore, all of Plaintiff Smith's $ 1983 claims which are alleged to arise under Texas law

fail to state a federal claim for which relief can be granted. That does not, however, apply to
Plaintiff s federal Fourth and Fourteenth Amendment due process allegations.
Section 1983 Claims Related to Removal of Her Child
As Defendants correctly assert, not all of

Plaintiff s federal claims

can be brought in this suit.

Whether asserted under federal due process or some other basis,/6 Plaintiff brings all of her child

s

cclhe problem is not whether state law has been violated but whether an inhabitant of a
ocolor of any law.' He who acts under
State has been deprived of a federal right by one who acts under
'color' of law may be a federal officer or a state officer. He may act under'color' of federal law or of
state law. The statute does not come into play merely because the federal law or the state law under

which the officer purports to act is violated. It is applicable when and only when someone is deprived
a federal right by the action." (Justice Douglas).

6

of

For example, arising from the removal of her child Plaintiff brings these claims: Fourth
and Fourteenth Amendment due process and negligent failure to provide adequate employee guidance,
oversight and supervision (within her first and second-listed causes of action); a "negligence within the
scope of employment" claim (within her first, second and eleventh causes of action); "abuse of court
process," "negligent conspiracy," and 42 U.S.C. $ 14141 (law enforcement's deprivation of rights,

removal claims and causes of actionpursuantto $ 1983./ These claims and causes of action all arise

from alleged violations that occurred and concluded before November 30,2007 . All of these $ 1983
claims and causes of action are time-barred.
The applicable limitations period for 42 U.S.C. $ 1983 claims is governed by reference to
the most analogous cause of action under state

law.

Owens v. Okure,488 U.S. 235,236,109 S.Ct.

5i3, l02L.Ed.2d 594 (1989). Under the general Texas tort statute, Plaintiff Smith

had two years

after the day the cause of action accrued to bring her claims. Cuadra v. Houston Independent School
Dist., 626F.3d 808, 814 n.9 (5th Cir. 2010)(citing Tex. Civ. Prac.

& Rem. Code Ann. $ 16.003).

Federal law determines the date of accrual for $ 19S3 claims. Jacksonv. Johnson,950 F.2d 263,265

(5th Cir. lgg2). A general cause of action accrues when the plaintiff becomes aware that he has
suffered an injury or has sufficient information to know that he has been injured.

1d While arguably

privileges or immunities) claims (all within her third cause of action); intentional interference with
parental rights (second and fourth causes of action);"false imprisonment of' her minor child (fifth cause
of action);l'kidnaping"and "hostage taking" (tenth cause of action); criminal "conspiracy to commit
fraud" (twelfth cause of action); "breach of confidence" (thirteenth cause of action); and "mistake of
fact" and "mistake of law" (twentieth and twenty-first causes of action).

1

42 U.S.C. S 1983 provides in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any
State ... subjects, or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress ' . .'
In order to maintain a claim under 42 U.S.C. $ 1983, a plaintiff must show two essential elements: 1)
that defendants deprived them of a right secured by the Constitution of the United States, and 2) that this
deprivation occurred while defendants were acting under color of State law. Menchaca v. Chrysler
Ciedit Corporation, 613 F.2d507, 510 (5th Cir. 1980). Plaintiff can bring no 1983 cause of action for
negligence by any Defendant in failing to stop an illegal action. Negligence is not actionable under 42

u.s.c.$1983. Danietsv.Wiiliams,474U.S.327,106S.Ct.662,666,88L.Ed.zd662(1986).
Plaintiff s "negligent" violations of constitutional rights allegations therefore fail to state
which relief may be granted, and these claims are hereby dismissed.

Allof

a claim upon

that date would have been when her child was first removed from her custody, in any event it would
have been when her child was returned to her custody on November 29,2007

.

The events of which Plaintiff Smith complains arise from her minor child being taken from
her by the State and placed with a relative. That removal and placement occurred and concluded

beforeNovember30,2007. PlaintiffSmithdidnotfilethislawsuituntilSeptemberl3,20l0. All
of those claims are time-barred because this lawsuit was filed more than thirty-three months after
limitations had run.

Criminal Claims

Plaintiff states in her response to Defendants' first motion for dismissal that she

agrees to

dismissal of her criminal claims against Defendant Texas "Family Based Support Services" and all
other sued Defendants. Specifically, Defendants move to dismiss criminal claims asserted pursuant

to 18 U.S. Code $ 1203 (kidnaping under Hostage Taking Act;'lifl 119 and 426

and

within the

seventh, eighth and tenth-listed causes of action) and $ 242 (criminal deprivation of rights under

color of law; in the first cause of action); Texas Penal Code $ 15.02 (criminal conspiracy; ninth and

twelfth causes of action), $ 25.03 (interference with child custody; first cause of action), $ 25.04
(criminal enticement of a child; fourth cause of action), $ 3 1 .01 (criminal deception; sixth cause of
action); and criminal "mistake of fact" and "mistake of law."/8 This portion of Defendants' motion
was agreed to by Plaintiff Smith, individually and on behalf of her minor child. Defendants' motion

to dismiss all criminal law claims asserted against Defendants DFPS, FBSS, CCL and CPS, as well
as

all of Plaintiffs' criminal claims asserted against Defendants Jones, Clardy, Davis, Pollard, Ecker,

I

Within her fourteenth cause of action (for unjust enrichment) and as her twentieth and
twenty-first causes of action, Plaintiff Smith assets two "mistake" claims - "mistake of fact" and
"mistake of law." Defendants move for dismissal of both because these are affirmative contractual
defenses, not causes of action. Plaintiff also agrees to the dismissal of these claims as causes of action.

Gonzales, Taylor, Davis, Hall, Henderson, McFarlane, Crawford, Herman and John and Jane Does
1

through 25,is granted.

All of Plaintiff Smith's criminal-law based claims are hereby dismissed with prejudice by
agreement.

Individual Capacity Claims
The individually-named Defendants who are sued in their individual capacitiesP seek
dismissal of all of the individual-capacity claims asserted against them pursuant to the Texas Tort
Claims Act. They state that because Plaintiff Smith has chosen to also sue their employer, the Texas

Department of Family Protective Services, by that election to sue a govemmental unit she has
irrevocably bared any suit or recovery against any individual employee, pursuant to $
Texas Civ. Prac.

1

0

1

.106. See

& Rem. Code $ 101.106 (a) & (e). Plaintiff did not respond to this argument.

Section 101.106(a) states:

(a) The filing of a suit under this chapter against

a govemmental

unit constitutes an

irrevocable election by the plaintiff and immediately and forever bars any suit or
recovery by the plaintiff against any individual employee of the governmental unit
regarding the same subject matter.

Plaintiff does not contest Defendants' assertion that the Texas Department of Family Protective
Services is a "governmental unit" for purposes of potential liability under the Texas Tort Claims Act,

$ 101.021 (1XA) or (2).

Section 101.106 (e) provides that

"[i]f a suit is filed

under this chapter against both a

governmental unit and any of its employees, the employees shall immediately be dismissed on the

filing of a motion by the governmental unit." Tex. Civ. Prac. & Rem. Code $101.106 (e). "The

e

Defendants Jones, Clardy, Davis, Pollard, Ecker, Gonzales, Taylor, Davis, Hall,
Henderson, McFarlane, Crawford, Herman, and John and Jane Does 1 throush 25.

just those for
Texas Supreme Court has held that all claims falling under the Tort Claims Act, not
Rodriguez
which the Tort Claims Act waived immunity, trigger the election of remedies provision."
Consol'
v. Christus Spohn Health System Corp.,628 F.3d 731,738 (5th Cir. 201O)(citing Mission
intended to
Indep. sch. Dist. v. Garcia,253 S.W.3d 653,657-59 (Tex. 2008)(Section 101.106 "is
protect governmental employees by favoring their early dismissal when a claim regarding the same
pursuant to the
subject matter is also made against the governmental employer")). "Therefore,
the
election of remedies provision of the Tort Claims Act" $ 101.106 (e), Plaintiff s claims against
all ofindividual Defendants intheir individual capacities "must be dismissed." Rodriguez, 628F.3d

at738.
Malicious Prosecution Claim Brought Under S 198i
In her seventh cause of action (and elsewhere), Plaintiff alleges that all of the Defendants
..malicious use of process" that is actionable under $ 1983. She alleges that the
engaged in a
her
Defendants intentionally and maliciously prosecuted her by preventing her from maintaining

family's integrity (i.e., by the removal of her child from her custody), by not timely and fully
informing her of all of her legal rights, by misuse of administrative and court procedures, by taking
away or preventing her from having and keeping her home childcare license, and by Defendants'
actions taken in the administrative appeal of Plaintiff Smith's license revocation.

To satisff the elements of malicious prosecution under a Texas common law that is
was
actionable in federal court pursuant to $ 1983, Plaintiff must show: 1) a criminal action
commenced against

he

r;2) theprosecution

was caused (initiated or procured) by

or with his or her aid; 3) the action terminated in the

a

named Defendant

Plaintiffs favor; 4) the Plaintiff was innocent;

the
5) the Defendant acted without probable cause; 6) the Defendant acted with malice; and 7)

not
criminal proceeding damaged the Plaintiff. Cuadra, supra, 626F.3d at 813 n.6. Plaintiff has

alleged that any of the Defendants initiated or procured a criminal prosecution against

her. A

"malicious prosecution may be a constitutional violation ... only if all of its common law elements
areestablished." Evansv. Ball,168 F.3d 856,862n.9,863 (5thCir. 1999). Plaintiffdoesnotallege
that she was criminally prosecuted by or at the instigation of any of the Defendants sued herein.
Failing that essential allegation, her federal malicious prosecution claims fails.

In addition, the statute of limitations on a state-law based malicious prosecution claim in
Texas is one year. Tex. Civ. Prac. & Rem. Code Ann. $ 16.002(a) (Vernon 2002D.110 Assuming

without deciding that Plaintiff Smith's malicious misuse of civil process claim may properly be
brought as a state-law malicious prosecution claim arising out of the removal of her child from her
custody, which ended before November 30,2007, or the revocation of her home childcare license,

which occurred on February 9,2009, both malicious prosecution claims are time barred. Plaintiff
did not file suit until September 13, 2010. That is over thirty-three months too late for her child
removal claim, and over seven months too late for her license revocation claim.
Therefore, all of Plaintiff

s

malicious prosecution claims, also referred to

as

malicious misuse

of process, are dismissed pursuant to Rule 12(b)(6) because she has failed to state a claim for which

relief can be sranted.
Other Intentional Torts Brought Under State Law

Plaintiff

sues under state law for numerous intentional

Plaintiff which are brought pursuant to Texas law

10

torts. The intentional torts alleged by

l11are barred, except where

allowed by the Texas

$ 16.002(a) states: "(a) A person must bring suit for malicious prosecution ... not later

than one year after the day the cause ofaction accrues."

11

These intentional torts include causes of action for: abuse of process by not allowing
contact between Plaintiff and her child and filing false investigation reports; malicious prosecution for
investigatin g on 81412007 and removing G.S. without probable cause; intentional infliction of emotional
distress; breach of fiduciary futies by removing G.S. from Plaintiff Smith's custody; false light

10

Tort Claims Act (TTCA) or some other specific statutory waiver. Plaintiff cites no state statute
waiving immunity from suit other than the TTCA and, when

a

plaintiff

against a Texas government unit, her claim is held to arise under the

asserts any state tort theory

TTCA. Mission Consolidated

Ind. Sch. Dist. v. Garcia,253 S.W.3d 653,659 (Tex. 2008)(citing Newman v. Obersteller,960
S.W.2d 62I,622-23 (Tex. 1997)). The TTCA is the only vehicle through which one may recover
on a state law tort theory against a Texas governmental unit, and "all tort theories alleged against a

governmental unit, whether it is sued alone or together with its employees, are assumed to be 'under

the

[Act]."'. Gorcia,

253 S.W.3d at 658-59.

"Although the Texas Tort Claims Act waives sovereign immunity for certain torts, the
intentional torts alleged by [Plaintiff] fall outside that waiver ." Pearlman v. City of Fort Worth, 400
Fed. Appx. 956,959

(5thCir.2010)(citingTaylorv. Gregg,36F.3d 453,457 (5thCir.1994). That

is because intentional torts are not permitted to be brought under the TTCA. Alcala v. Tex. Webb
County,620 F.Supp .2d795,802 (S.D. Tex. 2009)(the TTCA "explicitly states that it does not extend
its limited waiver of immunity to claims 'arising out of assault, battery, false imprisonment, or any
o th e

r

i nt e nt i o n a

I

tor

Therefore,

t.

"') (ernphasi s in original).

all intentional tort claims against Defendant Texas Department of Family

Protective Services, and its divisions, as well as the individual employee Defendants sued in their

official capacities,/r2

asserted pursuant to the Texas

Tort Claims Act, Texas common law and the

defamation, slander and libel by falsely stating that Plaintiff Smith is a perpetrator of child abuse against
G.S.; intentional tortious interference with business relationships; and, pursuant to Texas Family Code
542.002, intentional interference with Plaintiffs possessory right to her minor child.

12

Defendants Jones, Clardy, Davis, Pollard, Ecker, Gonzales, Taylor, Davis,
Henderson, McFarlane, Crawford, Herman and John and Jane Does 1 through 25.

11

cited Texas statutes, are dismissed with prejudice because the Texas Tort Claims Act does not waive

Defendants' immunity from state-law based, intentional-tort lawsuits.
Unjust Enrichment

In her fourteenth cause of action fln 372-376), Plaintiff alleges that the DFPS, CPS, and
Defendants Taylor, Ecker, Davis, Pollard, Clardy, Jones, Gonzales, and Jane and/or John Does

1

through 25,actingwithin the course and scope of their employment, were able to collect payments

from their illegal and unjust actions. Defendants respond that the Court should dismiss Plaintiff

s

claim for unjust enrichment against all Defendants because they are entitled to Eleventh Amendment

immunity and, in addition, Plaintiff fails to state

a

claim for which relief can be granted because she

does not allege the necessary element lhataDefendant has obtained an unjust enrichment or benefit

from Plaintiff Smith or her daughter.

Within

fll

372-376, Plaintiff has alleged no facts regarding any benefit received by

Defendants from the

Plaintiff. Elsewhere within her complaint, Plaintiff alleges that the Defendants

by their wrongful actions obtained federal funding for their employer. Plaintiff fails to allege any
facts that could allow a reasonable person to infer that Defendants received an unduebenefitfrom

her, as contrasted to collecting benefits from or for their employer or federal program funds.
When "one person has obtained a benefit from another by fraud, duress, or the taking of an
undue advantage" he is unjustly enriched, and the other parfy may then sue to recover. Heldenfels

Bros.,Inc.v.CityofCorpusChristi,832S.W.2d39,4l(Tex.1992).
an action for unjust enrichment,

Plaintiff must allege

a

Inorderforapartytomaintain

connection between the parties that could be

interpreted as her having an "implied or quasi-contract to repay" between her and them. Villaneal
v. Grant Geophysical, lnc.,136 S.W.3d 265,270 (Tex. App.-San Antonio 2004, pet. denied).

Plaintiff has also not alleged the existence of such an implied or quasi-contractual
relationship to repay her. Dismissal under Rule 12(b)(6) is proper because Plaintiff has failed to
state a claim for which relief can be granted by not alleging any connection that could be interpreted
as a

quasi-contract between her and any Defendant, and by not alleging that any Defendant received

any undue benefrtfrom her

whichin equity the Court can order repaid to the Plaintiff.

See Twombly,

550U.S. at570(failingtoallegeenoughfactstostateaclaimforreliefwhichisplausibleonitsface
requires dismissal under Rule 12(b)(6)). For these reasons, Plaintiffls unjust enrichment claim
against all Defendants is dismissed with prejudice for failure to state a claim upon which relief can
be granted.

Discriminatory Revocation of License

In her nineteenth

cause

of action, Plaintiff Smith alleges that all of the

Defendants

discriminated against her in violation of Tex. Civ. Prac. & Rem. Code 106.001 by revoking her
$
home childcare license./r3 Defendants argue that the Court should dismiss

plaintiffs $ 106.001

claim for discriminatory revocation of her registered home childcare license because this claim is
barred by the Eleventh Amendment against DFPS, CPS, CCL, and the DFPS-employee Defendants,

13

Texas Civil Practice & Remedies Code $ 106.001(a) states:
(a) An officer or employee of the state or of a political subdivision of the state who is
acting or purporting to act in an official capacity may not, because of a person's race,

religion, color, sex, or national origin:
(l) refuse to issue to the person a license, permit, or certificate;
(2) revoke or suspend the person's license, permit, or certificate;
(3) refuse to permit the person to use facilities open to the public and owned, operated,
or managed by or on behalf of the state or a political subdivision of the state;
(4) refuse to permit the person to participate in a program owned, operated, or managed
by or on behalf of the state or a political subdivision of the state;
(5) refuse to grant a benefit to the person;
(6) impose an unreasonable burden on the person; or
(7) refuse to award a contract to the person.

13

in their official capacities./ta They further argue that this claim should be dismissed against all
Defendants because Plaintiff Smith fails to claim or allege that she was discriminated against on
some impermissible basis, pleading instead that the revocation was caused by or done because of a

listing error in a state database.

Plaintiff Smith expressly alleges that her license was revoked because of an allegedly
incorrect designation within DFPS' central registry of child abusers. See Plaintiffs original
complaint at fl 360. She alleges that she does not know when her name was placed into that registry,
but that she found out that she was in it on or about November 7,2008.

Id.

Shedoes not allege, and

she does not plead any facts, showing that she was discriminated against because of her race,

religion, color, sex, national origin, country of origin, gender, or other prohibited basis in the
revocation of her state-granted, home childcare license, permit or certificate. Plaintiff Smith
therefore fails to state a discrimination claim for which relief can be granted, because she fails to
allege that her license was revoked because of her race, religion, color, sex, or national origin.

Defamation
In her fifteenth and eighteenth causes of action, Plaintiff Smith alleges that she was defamed,
slandered, libeled, and painted in a false light because she was falsely listed in a DFpS registry for

abuseofachild. SeePlaintiffsoriginalcomplaintat'J1fl360,377-398,and401-403. Sheallegesthat
she does not know when she was placed into that registry, but that she found out she was in

about November

7

,2008.

it on or

She seeks to bring these state-law claims in this Court pursuant to 19S3
$

which, as already discussed, she may not properly do.

14

Defendants assert 11ft Amendment immunity against all of Plaintiff s causes of action
except for one - her due process violation in the revocation of her home childcare license. The Court
does not reach that immunity issue because the claims that should be dismissed may be dismissed upon
alternate non-constitutional grounds which are asserted by the Defendants.

I4

Furthermore, aplaintiff suing for defamation will prevail if she proves that the Defendant in

question:
negligence

1) published a

statement,2) thatwas defamatory about the Plaintiff, 3) while acting with

ifthe plaintiff was a private individual, regarding

the truth

ofthe statement. WFAA-TI/,

Inc. v. McLemore, 978 S.W.2d 568,571 (Tex. 1998). Slander, libel and false light are forms of
defamation. The Texas statute of limitations on slander,libel and other forms of defamation is one
year. Rzss o v. Goodness,2}l I WL 2119627 (Tex. App.

-

Fort Worth 2011 , no writ history)(citing

Tex. Civ. Prac. & Rem. Code Ann. $ 16.002(a) (Vernon 2002D.115
While the discovery rule may apply to slander and libel causes of action when the matter is
notpublic knowledge,
1) she learned

Ke

lleyv. Rinkle,532 S.W.2d 947,949 (Tex.I976), Plaintiffexpresslyalleges:

ofthe allegeddefamatorylisting inthe state database onNovember7,200g,2) leamed

on February 9,2009, that the State would not remove her listing and let her keep her childcare
license, and 3) the database listing was a false publication made to the general public. Plaintiff does

not allege a continuing violation theory or any facts supporting such a theory and, because this suit
was not filed

until September I3,z}l},Plaintiff brings her defamation claims at least eight months

too late. Therefore, all ofher defamation claims and causes of action are dismissed because they are
barred by limitations.

Conclusions

Plaintiff

s $ 1 983

claims against Defendant Texas Department of Family Protective Services

(DFPS ) and the Texas Child Protective Services (CPS) Defendants, alleging that the State through

its employees violated her constitutional rights when they removed her minor child from her home

1s

$ 16.002(a) states: "(a) A person must bring suit for malicious prosecution, libel,
slander, or breach of promise of marriage not later than one year after the day the cause of action
accrues."

15

and placed her with another person, are dismissed with prejudice because
they are barred by

limitations.

All of Plaintiff s $ 1983 claims against all Defendants alleging that the State through its
agencies and employees violated her state-created statutory rights and
Texas constitutional rights
when they revoked her home childcare license are dismissed with prejudice
because they fail to state
a claim upon which

relief can be granted pursuant to 42 u.s.c. $ 19g3.

All ofPlaintiff s claims assertedpursuantto Title

18

ofthe United States Code and all Texas

Penal code statutes are dismissed with prejudice by agreement.

Plaintiff s twentieth and twenty-first
are dismissed

causes of action for mistake of fact and mistake of

law

with prejudice by agreement.

Plaintiffs negligence and intentional tort claims

asserted against the individually-sued

Defendants, all of whom are current or former employees of the Texas Department
of Family
Protective Services and its administrative divisions, are hereby dismissed with prejudice
pursuant
to the election of remedies provisions of Texas Tort Claims Act 101.106.
$

Plaintiff s federal constitutional claim of malicious prosecution is dismissed with prejudice
because she has failed to state a claim for which relief can be granted.

plaintiff s state-law

based

claim ofmalicious use ofprocess (or malicious prosecution) is also dismissed with prejudice
because
she has failed to state a claim

for which relief can be granted.

All of Plaintiff s intentional

state-law based tort claims asserted against Defendant Texas

Department of Family Protective Services and the individual employee Defendants
sued in their

official capacities pursuant to the Texas Tort Claims Act are dismissed with prejudice because
they
are barred by immunity.

t6

Plaintiff

s

libel, slander, and false light defamation claims are dismissed with prejudice
for

failure to state a claim for which relief can be granted.

Plaintiff s discriminatoryrevocation-of-license claim is dismissed with prejudice
for failure
to state a claim for which relief can be granted.

Plaintiff sunjust enrichmentclaimis dismissedwithprejudicebecause shehas failedto
state
a claim for which

relief can be granted.

Plaintiff s negligent constitutional tort claims

are dismissed

with prejudice because she has

failed to state a claim for which relief can be granted.
The $ 1983 claims remaining in this suit are: Plaintiff Smith's alleged
Fourth and Fourteenth

due process violations arising from revocation of her childcare license
(see t[fl 2g0(g)-2g5 and

300(d)-301 of Plaintiff s original complaint), and Plaintiff Smith's
alleged breach of her federal
constitutional right to privacy by continuing "harassment." see id. atll399-400(f).
The Defendants remaining in this lawsuit at this time are: the Texas
Department of Family

Protective Services, named Defendants Jones, Clardy, Davis, pollard,
Ecker, Gonzales, Taylor,
Davis, Hall, Henderson, McFarlane, Crawford, and Herm an, and,John
and Jane Does 1 through 25,

all in their official capacities only.

Plaintiff Smith's complaint is extensive and convoluted, and it is sometimes
difficult to
understand the relief she is seeking and alleged legal basis for her
claims. Nevertheless, the Court

has liberally construed Plaintiffs complaint in the light most favorable
to
alleges

a

her. plaintiff Smith

state-law based claim of an alleged breach of an alleged duty of
confidentiality arising from

revocation of her childcare license. See id. at
t[fl 360(e)-37L As a claim under $ l9S3 it is not
viable, for reasons already explained. The Court declines to exercise
its supplemental jurisdiction
over that claim, and it is hereby dismissed without prejudice.

L7

To the extent that Plaintiff Smith brings in this suit
a viable claim on behalf of her minor
child, those claims are dismissed without prejudice.

It is SO ORDERED.

Signed this the

day of

July,20ll.

MARY ZOU N
S

r_8

DISTRICT JUDGE