Dunsmore v. Burroughs

Filing 80

ORDER ON PENDING MOTIONS denying 72 Motion in Limine( Dispositive Motion Filing due by 7/14/2017, Initial Disclosures due by 5/11/2017.); denying 75 Motion; granting 79 Motion for Extension of Time.(Signed by Magistrate Judge B Janice Ellington) Parties notified.(mserpa, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
RICHARD A DUNSMORE,
Plaintiff,
VS.
SCOTT BURROUGHS, et al,
Defendants.

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May 05, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. 2:16-CV-132

ORDER ON PENDING MOTIONS
Plaintiff Richard A. Dunsmore brought this cause of action in state court on June
4, 2015, seeking injunctive and declaratory relief as well as damages from Defendant
Scott A. Burroughs, individually and as chief of police of Port Aransas, Texas.
Defendant removed the action to federal court on April 25, 2016 (D.E. 1). Plaintiff
sought remand of the action to state court, but his motion was denied on July 21, 2016
(D.E. 36). In his amended complaint filed on December 5, 2016, Plaintiff names as
defendants the City of Port Aransas, Lieutenant Johnson in his official capacity, 1 and
Scott Burroughs in his official capacity. (D.E. 55).
Pending before the undersigned are: (1) Plaintiff’s Motion in Limine (D.E. 72); (2)
Plaintiff’s Motion that Verification Barred by Heck vs. Humphrey is Being Sought in the
Trial Court (D.E. 75); and (3) Defendants’ Second Motion for Extension of Time to File
Responsive Pleadings and Dispositive Motions, and to Serve Disclosures (D.E 79). For

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Plaintiff did not serve Johnson, and Defendants have informed the Court that Defendant Johnson has died.

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the reasons stated below, Plaintiff’s motions are denied and Defendants’ motion is
granted.
BACKGROUND
In an Order entered on February 8, 2017, the undersigned set forth a detailed
summary in the background section as to Plaintiff’s allegations raised in both his
complaint and amended complaint. (D.E. 66). The undersigned further took judicial
notice of two 2008 criminal proceedings in Brazoria County, Texas, in which Plaintiff
pleaded guilty to convictions for sexual assault and attempted sexual assault.

See

Dunsmore v. State, Nos. 01-10-00981-CR and 01-10-00982-CR, 2012 WL 1249418
(Tex. App. –Houston [1st Dist.] 2012, pet. Ref’d).2 The undersigned’s summary, as set
forth in the background section of the February 8, 2017 Order, is incorporated by
reference herein and will not be repeated.
DISCUSSION
A.

Motion in Limine

Plaintiff has filed a Motion in Limine seeking a Court order instructing all
attorneys, parties, and witnesses not to mention certain matters before the venire panel or
jury. (D.E. 72). However, because this case has not been set for trial, Plaintiff’s motion
is DENIED as premature.

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Plaintiff refers to these criminal proceedings in his pleadings as “56909” and “56910,” which were their trial court
case numbers.

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B.

Motion for Verification

Plaintiff has filed a Motion that Verification Barred by Heck vs. Humphrey is
Being Sought in the Trial Court. (D.E. 75). Plaintiff states very clearly that he is not
asking this Court to release him from custody or vacate his Brazoria County convictions.
Rather than seek any type of relief from this Court in his motion, Plaintiff is merely
seeking to verify with the Court that he is currently petitioning the Brazoria County
district court to release him from custody. Accordingly, while taking notice of Plaintiff’s
verification regarding his state court filings, his motion (D.E. 75) is DENIED as
unnecessary.
C.

Motion for Extension

On April 6, 2017, the undersigned granted Plaintiff’s first motion to extend
deadlines and ordered Defendants to file a responsive pleading and dispositive motions, if
any, on or before April 17, 2017. (D.E. 71). This deadline passed without any action on
the part of Defendants. On May 4, 2017, Defendants submitted their second motion to
extend these deadlines, seeking until May 11, 2017 to file a responsive pleading and to
serve initial disclosures.
Defendants also seek to file dispositive motions within a week of the Nueces
County District Attorney’s Office reviewing materials in the possession of the Port
Aransas Police Department. Defendants ask for this additional time in order to allow the
Nueces County District Attorney’s office time to properly review these materials and to
make a decision about whether to move forward with any prosecution of Plaintiff in
Nueces County. Defendants, however, have not provided a timetable as to when the
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District Attorney plans to review the materials and make any decisions as to Plaintiff’s
prosecution. Upon consideration, Defendants’ motion (D.E. 79) is granted, and they will
be allowed an extension of the deadlines as set forth below.
CONCLUSION
Plaintiff’s Motion in Limine (D.E. 72) and Motion that Verification Barred by
Heck vs. Humphrey is Being Sought in the Trial Court (D.E. 75) are DENIED.
Defendants’ Second Motion for Extension of Time to File Responsive Pleadings and
Dispositive Motions, and to Serve Disclosures (D.E 79) is GRANTED as follows: (1)
Defendants are ordered to file a Responsive Pleading and to serve initial disclosures on or
before May 11, 2017; and (2) Defendants are ORDERED to file any dispositive motions
on or before July 14, 2017. Absent a showing of extraordinary circumstances, no further
extensions of time will be granted.
Respectfully submitted this 5th day of May, 2017.

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B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE

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NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to
each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of
the Memorandum and Recommendation, a party may file with the Clerk and serve on the
United States Magistrate Judge and all parties, written objections, pursuant to Fed. R.
Civ. P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District
Court for the Southern District of Texas.
A party’s failure to file written objections to the proposed findings, conclusions,
and recommendation in a magistrate judge’s report and recommendation within
FOURTEEN (14) DAYS after being served with a copy shall bar that party, except upon
grounds of plain error, from attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the district court. Douglass v. United Servs.
Auto Ass’n, 79 F.3d 1415 (5th Cir. 1996)(en banc).

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