Mims et al v. Oliver et al
MEMORANDUM, RECOMMENDATION, and Order entered. It is RECOMMENDED that Plaintiffs federal claims be DISMISSED. It is also RECOMMENDED that the court decline to exercise supplemental jurisdiction over the remaining state law claims and DISMISS the state law claims. (Signed by Magistrate Judge Nancy K Johnson) Parties notified. (wbostic, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
LISA MIMS and JOSHUA JACKSON,
July 18, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-15-644
MEMORANDUM, RECOMMENDATION, AND ORDER
Pending before the court1 are Plaintiffs’ Motion for Summary
Judgment (Doc. 91), Defendant’s Motion for Summary Judgment and
Amended Motion for Summary Judgment (Docs. 92, 97), Defendant’s
Motion to Strike Plaintiffs’ Summary Judgment Evidence (Doc. 103),
Plaintiffs’ Motion for Partial Summary Judgment (Doc. 114), and
Plaintiffs’ Objections to Defendant’s Exhibits (Doc. 165).
court has considered the motions, the responses, all other relevant
filings, and the applicable law.
For the reasons set forth below, the court RECOMMENDS that
Defendant’s motion to strike be GRANTED IN PART AND DENIED IN PART,
Plaintiffs’ objections be OVERRULED, Plaintiffs’ motion for summary
judgment be DENIED, Plaintiffs’ motion for partial summary judgment
be DENIED AS MOOT, and Defendant’s motion for summary judgment be
GRANTED IN PART AND DENIED IN PART AS MOOT.
Because the court
This case was referred to the undersigned magistrate judge pursuant
to 28 U.S.C. § 636(b)(1)(A) and (B), the Cost and Delay Reduction Plan under the
Civil Justice Reform Act, and Federal Rule of Civil Procedure 72. See Doc. 18,
Ord. Dated July 1, 2015.
recommends dismissal of all of Plaintiffs’ federal claims, the
Plaintiffs’ remaining state law claims and RECOMMENDS that this
action be DISMISSED.
Plaintiffs filed this action on March 11, 2015, against
Defendant J.D. Oliver (“Oliver”), a former professor at Prairie
violations under 42 U.S.C. § 1983 (“Section 1983”) and several
related state law claims.
Plaintiff Lisa Mims (“Mims”) was a student at Prairie View and
registered for Oliver’s computer education course during the Fall
Mims averred that she visited Oliver’s office
several times, and, on one occasion, Oliver propositioned Mims for
sex at a hotel.3
Mims became alarmed at Oliver’s statement and
stood up to leave his office.4
Oliver blocked Mims from leaving
his office, forced her up against his body, and grabbed her
See Doc. 76-5, Ex. 3 to Pls.’ Resp. in Opp’n to Def.’s Emergency 2d
Mot. to Compel, Dep. of Oliver p. 53.
In Plaintiffs’ motion for summary
judgment, Plaintiffs list this deposition as one of their exhibits, but cite to
Document 76-5 rather than including the full text with the motion for summary
See Doc. 91-9, Ex. 10 to Pls.’ Mot. for Summ. J., Aff. of Mims ¶ 3.
Out of concern that he would try to rape her, Mims
averred, Mims pulled away and left his office.6
Oliver denied under oath that Mims came to his office and that
he grabbed her breast.7
Oliver testified that he loaned Mims a
textbook after Mims explained to him that she was not performing
well in his class because she had a job at night in addition to
Oliver also told Mims that she could
work with his teaching assistant but denied that he offered her
help on the final exam or with her missing assignments.9
Mims averred that Oliver obtained her cell phone number from
an unknown source.10
During his deposition, Oliver was questioned
about phone calls made to Mims from his cell phone.
When asked to
confirm that the number from which the calls were placed was his
cell phone number, Oliver stated “It looks like–if I can remember
correctly, my old number that was stolen.”11
The phone records
showed frequent calls from late November 2013 through December 14,
See Doc. 76-5, Ex. 3 to Pls.’ Resp. in Opp’n to Def.’s Emergency 2d
Mot. to Compel, Dep. of Oliver p. 56.
See id. p. 57.
See id. p. 58.
See Doc. 91-9, Ex. 10 to Pls.’ Mot. for Summ. J., Aff. of Mims ¶ 4.
Doc. 76-5, Ex. 3 to Pls.’ Resp. in Opp’n to Def.’s Emergency 2d Mot.
to Compel, Dep. of Oliver p. 65.
2013, to Mims’ cell phone from Oliver’s former number.12
denied that he called Mims and stated that he did not know why the
phone records reflected that he called Mims on those dates.13
averred that Oliver offered her, in person and over the phone, an
“A” in his class without taking the final or turning in missing
assignments if she agreed to have sex with him and threatened to
fail her if she did not have sex with him.14
On Saturday, December 14, 2013, Oliver testified, he needed to
grade papers to meet the end of the semester deadline.15
his wife had scheduled the carpets to be cleaned, Oliver planned to
go to Prairie View to work.16
On his way to campus, Oliver stopped
at an IHOP to eat breakfast.17
After eating, Oliver began feeling
faint so he decided to check into a nearby hotel instead of going
to campus to work.18
Mims called Oliver to return the textbook she
Oliver told her that he would not be working on
See id. pp. 66-68.
See id. pp. 66-69.
See Doc. 91-9, Ex. 10 to Pls.’ Mot. for Summ. J., Aff. of Mims ¶ 5.
See Doc. 76-5, Ex. 3 to Pls.’ Resp. in Opp’n to Def.’s Emergency 2d
Mot. to Compel, Dep. of Oliver pp. 70-71.
See id. p. 72.
See id. pp. 72-73.
See id. pp. 73-74.
See id. pp. 78-79, 81-83.
campus that day.20
Mims averred that, although she agreed to meet
Oliver at the hotel, she did not intend to have sex with him, but
instead her intention was to confront him about his inappropriate
behavior towards her in the presence of witnesses.21
Jackson averred that they wanted proof that Oliver had asked Mims
to go to the hotel to have sex with him.22
Oliver testified that
he intermittently graded and took naps that day until Mims arrived
at the hotel with Jackson and two other men around 4:30 in the
Mims, Jackson, and two other men24 went to the hotel room.25
When Mims knocked on the door, Oliver stopped grading, looked out
through the eyehole in the door, and saw Mims and the three men.26
Oliver testified that he opened the door for them and they “threw
[him] on the floor.”27
As one of the men held Oliver on the floor,
See Doc. 91-9, Ex. 10 to Pls.’ Mot. for Summ. J., Aff. of Mims ¶¶ 6-
See Doc 91-10, Ex. 11 to Pls.’ Mot. for Summ. J., Aff. of Jackson ¶¶
See id. Doc. 76-5, Ex. 3 to Pls.’ Resp. in Opp’n to Def.’s Emergency
2 Mot. to Compel, Dep. of Oliver pp. 78-82.
In Oliver’s deposition, Oliver mostly refers to Mims, Jackson, and
the two men as “they” in terms of what happened at the hotel room; thus, the
court will refer to them as “they” unless Oliver has been more specific.
See Doc. 76-5, Ex. 3 to Pls.’ Resp. in Opp’n to Def.’s Emergency 2d
Mot. to Compel, Dep. of Oliver pp. 78-83, 85.
See id. pp. 83, 85.
See id. p. 85.
they demanded that Oliver give them $9,000 and then took his credit
cards, driver’s license, and thirteen dollars in cash from his
They recorded the incident and threatened Oliver that
they would disclose prior recordings they had of his conversations
with Mims if he did not pay them.29
Jackson played one of the
recordings for Oliver.30 They also looked through Oliver’s computer
and took “pictures of [him] with condoms.”31
Mims and Jackson
averred that they did not rob Oliver at the hotel.32
Oliver testified that after Plaintiffs and the two men left,
Oliver went to the front desk and called the police.33
subsequently filed criminal charges against Plaintiffs.34
Jackson testified that, after the incident took place at the
hotel room, he and Mims went to Oliver’s home and put notes in his
mailbox and on his car stating, “J.D. Oliver contact 281-782-1711
See id. pp. 85-86.
See Doc. 91-10, Ex. 11 to Pls.’ Mot. for Summ. J., Aff. of Jackson
See id. pp. 88-89.
See Doc. 91-9, Ex. 10 to Pls.’ Mot. for Summ. J., Aff. of Mims ¶ 8;
Doc. 91-10, Ex. 11 to Pls.’ Mot. for Summ. J., Aff. of Jackson ¶ 7.
See Doc. 76-5, Ex. 3 to Pls.’ Resp. in Opp’n to Def.’s Emergency 2d
Mot. to Compel, Dep. of Oliver pp. 91-92.
See id. p. 134.
See Doc. 98, Ex. 2 to Def.’s Am. Mot. for Summ. J., Dep. of Jackson
testified that they went to Oliver’s home because Mims had not
received a grade for the class.36
Additionally, Oliver testified
that he received an email from Mims on December 15, 2013, informing
him that, because Oliver had not contacted them as instructed, they
would release the recordings and a video to his wife, his place of
work, and local radio stations.37
Oliver was later terminated by Prairie View as a result of
Mims’ complaint of the incident.38
Oliver subsequently filed two
lawsuits, one against Plaintiffs and another against Prairie View.39
Both lawsuits were dismissed on jurisdictional grounds.40
Plaintiffs filed their complaint on March 11, 2015, alleging
the following federal constitutional causes of action brought under
Section 1983: equal protection, First Amendment retaliation, and
unreasonable seizure under Section 1983.41
Plaintiffs also brought
state law causes of action: Texas constitutional claims, official
See Doc. 92-2, Ex. 2 to Def.’s Mot. for Summ. J., Dep. of Jackson pp.
See Doc. 76-5, Ex. 3 to Pls.’ Resp. in Opp’n to Def.’s Emergency 2d
Mot. to Compel, Dep. of Oliver p. 132.
See id. p. 135.
See Oliver v. Mims, et al., Civ. Action No. H-15-654 (S.D. Tex. Mar.
12, 2015), Doc. 1, Oliver’s Compl.; Oliver v. Prairie View A&M Univ., Civ. Action
No. H-15-1665 (S.D. Tex. June 16, 2015), Doc. 1, Oliver’s Compl.
See Oliver v. Mims, et al., Civ. Action No. H-15-654 (S.D. Tex. Apr.
8, 2015), Doc. 6, Ord. of Dismissal; Oliver v. Prairie View A&M Univ., Civ.
Action No. H-15-1665 (S.D. Tex. Feb. 3, 2016), Doc. 28, Final J.
See Doc. 1, Pls.’ Compl.
malicious prosecution.42 Plaintiffs filed a first amended complaint
with leave of court on January 15, 2016, stating that they made
changes that included: (1) adding a claim for abuse of process; (2)
substituting a federal malicious prosecution claim in lieu of a
recharacterized her equal protection claim as equal protection and
substantive due process claims.44
Plaintiffs later supplemented
their first amended complaint to add a claim of invasion of
privacy, which is the subject of the pending motion for partial
The deadline for dispositive motions was extended to November
28, 2016, after Oliver failed to timely produce certain discovery
items and failed to provide potential dates for his and his wife’s
On November 28, 2016, Plaintiffs filed their motion
for summary judgment.47
On November 29, 2016, one day past the
See Doc. 36, Pls.’ Mot. for Leave to File Am. Pleading; Doc. 36-1,
Pls.’ 1st Am. Compl.; Doc. 42, Ord. Dated June 2, 2016.
See Doc. 36-1, Pls.’ 1st Am. Compl.
See Doc. 71, Opposed Mot. to Supplement 1st Am. Compl.; Doc. 71-1,
Supp. to 1st Am. Compl.; Doc. 114, Pls.’ Mot. for Partial Summ. J.
See Doc. 54, Pls.’ Mot. to Compel Disc.; Doc. 62, Min. Entry Ord.
Dated Sept. 19, 2016.
See Doc. 91, Pls.’ Mot. for Summ. J.
deadline for dispositive motions, Oliver filed his motion for
Oliver asked the court for leave to file his
motion for summary judgment one day late, which the court granted.49
However, without leave of court, on December 15, 2016, Oliver filed
a “corrected” motion for summary judgment along with some, but not
subsequently filed a motion to strike Plaintiffs’ summary judgment
evidence and a response to Plaintiffs’ motion.51
Plaintiffs filed a response to Oliver’s corrected motion for
summary judgment on December 20, 2016.52
incomplete and/or missing exhibits.53
Plaintiffs, in their
On June 6, 2017, the court
ordered Oliver to produce a complete set of exhibits to the court
by June 9, 2017.54
Oliver submitted the missing exhibits on June
Plaintiffs object to the court’s consideration of these
See Doc. 92, Def.’s Mot. for Summ. J.
See Doc. 117, Min. Entry Ord. Dated Jan. 18, 2017.
See Doc. 97, Def.’s Am. Mot. for Summ. J. In fact, most of the pages
of the attached exhibits are blank.
See Doc. 103, Def.’s Mot. to Strike Pls.’ Summ. J. Evid.; Doc. 104,
Def.’s Resp. to Pls.’ Mot. for Summ. J.; Doc. 105, Def.’s Exs. to Def.’s Resp.
to Pls.’ Mot. for Summ. J.
See Doc. 106, Pls.’ Resp. to Def.’s Mot. for Summ. J.
See Doc. 92, Def.’s Mot. for Summ. J.; Doc. 97, Def.’s Am. Mot. for
Summ. J; Doc. 98, Def.’s Exs. to Def.’s Am. Mot. for Summ. J.
See Doc. 158, Ord. Dated June 6, 2017.
See Doc. 161, Def.’s Exs.
Objections and Preliminary Issues
Oliver lodges a number of objections to Plaintiffs’ summary
judgment evidence in his motion to strike.
Additionally, in his
response to Plaintiffs’ motion for summary judgment, Oliver asks
the court to strike statements he characterizes as conclusory
contained in the requests for admission and the first amended
complaint. Plaintiffs object to Oliver’s evidence and presentation
of the facts and contend that the complaint and requests for
admission are deemed admitted due to Oliver’s late-filing of
A party must support its factual positions on summary judgment
by citing to particular evidence in the record.
Fed. R. Civ. P.
56(c)(1). Federal Rule of Civil Procedure 56(c)(2) allows a movant
to object to exhibits that “cannot be presented in a form that
would be admissible in evidence” under the Federal Rules of
Only relevant evidence is admissible.
Fed. R. Evid. 402.
Relevant evidence has a “tendency to make a fact more or less
probable than it would be without the evidence” and relates to a
fact “of consequence in determining the action.”
Fed. R. Evid.
Affidavits supporting summary judgment “must be made on
See Doc. 165, Pls.’ Objs. to Def.’s Exs.
personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to
testify on the matters stated.”
Fed. R. Civ. P. 56(c)(4).
court may strike an affidavit that violates this rule. Akin v. Q-L
Investments, Inc., 959 F.2d 521, 530 (5th Cir. 1992).
allegations, unsubstantiated assertions, improbable inferences, and
speculation are not competent evidence.
Roach v. Allstate Indem.
Co., 476 F. App’x 778, 780 (5th Cir. 2012)(unpublished)(citing
S.E.C. v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993)).
Hearsay is not admissible evidence.
Fed. R. Evid. 802.
Hearsay is an out-of-court statement that is offered for “the truth
of the matter asserted in the statement.”
Fed. R. Evid. 801.
Statements offered against an opposing party made “by the party in
an individual or representative capacity” are not hearsay.”
R. Evid. 801(d)(2).
The Federal Rules of Evidence also list
exceptions to the rule against hearsay.
Fed. R. Evid. 803-804,
For purposes of authentication, Federal Rule of Evidence
901(a) requires “evidence sufficient to support a finding that the
item is what the proponent claims it is.” Circumstantial evidence,
such as the document itself and the circumstances surrounding its
discovery, is sufficient for authentication.
F.3d 301, 308 (5th Cir. 2008).
In re McLain, 516
The Fifth Circuit “does not require
conclusive proof of authenticity before allowing the admission of
disputed evidence . . . It merely requires some evidence which is
sufficient to support a finding that the evidence in question is
what its proponent claims it to be.”
(quoting United States
v. Arce, 997 F.2d 1123, 1128 (5th Cir. 1993), and prior case law).
Oliver challenges Plaintiffs’ reliance on: (1) unauthenticated
exhibits; (2) the complaints in other related cases; and (3)
Emails and Requests for Admission
Oliver contends that Plaintiffs’ requests for admission,
served on Oliver on March 21, 2016, are inadmissible hearsay
because the document was not accompanied by a supporting affidavit.
This defect has been corrected by the affidavit submitted by
Oliver also argues that the requests for
admission are inadmissible because his counsel was not served with
the request for admission on March 21, 2016.
Oliver has not
provided evidence supporting this argument. Oliver’s objections to
Exhibit 1 are OVERRULED.
Oliver contends that an email sent to Plaintiffs’ counsel
attaching Oliver’s responses to Plaintiffs’ requests for admission
is improper because no affidavit was attached to authenticate this
As with Exhibit 1, Plaintiffs have attached an affidavit
from Plaintiffs’ attorney authenticating this exhibit.
Oliver’s objection is OVERRULED.
Oliver objects to Exhibit 4, a series of emails between
Plaintiffs’ attorney and Oliver’s attorneys on the grounds that it
has not been authenticated, that it is conclusory and self-serving,
and that it omits some emails in the string.
any authentication issue by their attorney’s affidavit attached to
their response. Reviewing Exhibit 4, the emails are not conclusory
or self-serving, as the exhibit merely shows email correspondence
between the attorneys concerning the requests for admission.
Additionally, Oliver has not provided any evidence to show that
this email chain is incomplete or that an omitted email is relevant
to any dispute in this case.
Therefore, Oliver’s objections are
Plaintiffs have attached two original complaints and two
amended complaints from related cases, one in which Oliver sued
Plaintiffs and another in which Oliver sued Prairie View and
Oliver objects to Plaintiffs’ reliance on the original
complaint from each of these cases, arguing that they are not
competent summary judgment evidence because they are unverified
Plaintiffs contend that these complaints are judicial
admissions that are binding on Oliver.
Judicial admissions are “factual assertions in pleadings . .
. [that are] conclusively binding on the party who made them.”
Blankenship, 653 F. App’x 330, 335 (5th Cir. 2016)(quoting White v.
ARCO/Polymers, Inc., 720 F.2d 1391, 1396 (5th Cir. 1983)). Judicial
admissions withdraw facts from contention.
Id. (quoting Martinez
v. Bally’s La., Inc., 244 F.3d 474, 476 (5th Cir. 2001)).
“judicial admissions are not conclusive and binding in a separate
case from the one in which the admissions were made.”
Am. Barge Corp. v. J-Chem, Inc., 946 F.2d 1131, 1142 (5th Cir.
Oliver’s pleadings in other cases are not judicial admissions
in this case.
Moreover, Oliver specifically challenges
the inclusion of the original complaints, not the first amended
The Fifth Circuit has held that pleadings that have
been withdrawn may not be considered as judicial admissions.
Blankenship, 653 F. App’x at 335-36.
positions Oliver has taken in this suit, these pleadings may be
submitted as admissions against interest and they can be used for
impeachment purposes. See In re Zonagen, Inc. Secs. Litig., 322 F.
Supp.2d 764, 783 (S.D. Tex. 2003)(“Statements a party makes in
pleadings in one case that are inconsistent with the positions a
party takes in another case may be admissible as admissions against
interest and for impeachment.”).
Therefore, Oliver’s objection is
SUSTAINED IN PART AND OVERRULED IN PART.57
In a related argument, Oliver objects
of Plaintiffs’ Exhibit 12 on the grounds that it
leave of court. Exhibit 12 is a court order from a
et al., Civ. Action No. H-15-654 (S.D. Tex. Apr.
to the court’s consideration
was filed a day late without
related case, Oliver v. Mims,
8, 2015), Doc. 6, Ord. Dated
Oliver objects to the court’s consideration of affidavits from
Mims and Jackson in support of their motion for summary judgment.
Oliver generally contends that Plaintiffs’ affidavits contain
inadmissible hearsay, legal conclusions, bare allegations of fact,
and conclusory and non-specific inadmissible evidence. Oliver also
testimony they gave at an administrative hearing at Prairie View.
Oliver’s general objections to Mims’ and Jackson’s affidavits are
Oliver specifically challenges four of Mims’ statements in her
affidavit as inadmissible hearsay. First, Oliver contends that the
assertions, “I did not give Defendant Oliver my cell phone number
and I do not know how he got it.
I did not give Defendant Oliver
permission to call me,”58 are hearsay. The court OVERRULES Oliver’s
objection as these are not out-of-court statements offered for the
truth of the matter asserted but statements concerning her actions
Oliver objects to the following statements as hearsay: “I
agreed to meet Defendant Oliver at a hotel (as described in the
Complaint) but not for sex.
I went to tell him that I was upset
Apr. 8, 2015, wherein the court dismissed the action for lack of subject matter
jurisdiction. The court OVERRULES AS MOOT Oliver’s objection as the court has
not relied on this exhibit in ruling on the motions for summary judgment.
Doc. 91-9, Ex. 10 to Pls.’ Mot. for Summ. J., Aff. of Mims ¶ 4.
with how he sexually harassed me and that he should not treat any
person that way.
I told him these things at the hotel room.”59
concerning her actions or non-actions. However, Mims’ assertion of
what she told Oliver at the hotel room is clearly hearsay.
their response, Plaintiffs have not provided any other reason this
statement was offered, instead arguing that it is not a statement.
Oliver’s hearsay objections to this paragraph are SUSTAINED IN PART
AND OVERRULED IN PART.
Finally, Oliver challenges the following two paragraphs in
Mims’ affidavit as inadmissible hearsay: (1) “I also went to get
proof that he arranged for us to meet in a hotel for sex.
afraid that no one would believe my side of the story if I had no
proof;”60 (2) “I did not rob Defendant Oliver on Dec. 14, 2013, or
on any other day.”61 Oliver also challenges the same two statements
in Jackson’s affidavit.62
Neither of these averments contains an
out-of-court statement. Instead, they describe Mims’ and Jackson’s
actions in conjunction with the facts involved in this case.
Id. ¶ 6.
Id. ¶ 7.
Id. ¶ 8.
Doc. 91-10, Ex. 11 to Pls.’ Mot. for Summ. J., Aff. of Jackson ¶¶ 67. Paragraph 6 in Jackson’s affidavit reads “I also went to get proof that he
arranged for him and Lisa Mims to meet in a hotel for sex. I was afraid that no
one would believe her side of the story if we had no proof.” Id. Paragraph 7
states “I did not rob Defendant Oliver on December 14, 2013, or on any other
day.” Id. ¶ 7.
Oliver’s objections are OVERRULED.
Oliver also contends that Plaintiffs have not affirmatively
shown that they are competent to testify about what is contained in
However, both Mims’ and Jackson’s affidavits are
based on their personal knowledge of the facts in this case.
Therefore, Oliver’s objection is OVERRULED.
As to Jackson’s affidavit, Oliver complains that some of the
statements in the affidavit are inadmissible hearsay.
asserts that the following paragraph is inadmissible hearsay,
“During the Fall 2013 semester, my girlfriend Lisa Mims told me
several instances of Defendant Professor J.D. Oliver [’s] sexually
harassing her as described in the First Amended Complaint.”63
Jackson’s assertion that Mims told him about Oliver’s sexual
harassment is hearsay as proof of the fact that Oliver harassed
Plaintiffs contend that this statement falls under Federal
Rule of Evidence 803(3), the state of mind exception to hearsay.
The state of mind exception, in relevant part, is “[a] statement of
the declarant’s then-existing state of mind (such as motive,
intent, or plan) or emotional, sensory, or physical conditions
(such as mental feeling, pain, or bodily health), but not including
a statement of memory or belief to prove the fact remembered or
believed . . . .”
Fed. R. Evid. 803(3).
However, there is no
assertion contained in that paragraph about anyone’s state of mind.
Id. ¶ 3.
Oliver’s objection is therefore SUSTAINED.
Oliver also argues the following statement is hearsay: “I
played one such recording that Defendant Oliver heard.”64 The court
finds that this is not hearsay because there is no out-of-court
statement; rather, Jackson is merely stating that he played a phone
recording in Oliver’s presence.
Oliver’s objection is OVERRULED.
Oliver argues that paragraph four wherein Jackson states, “I
went to meet Defendant Oliver at the hotel room (also described in
the Complaint) to tell him that I was upset with how he sexually
harassed my girlfriend, and that Lisa Mims and I had recorded
several conversations between him and Lisa Mims in case he decided
to fail Lisa Mims for not having sex with him.
I told him these
things at the hotel room”65 is inadmissible hearsay.
argue in their response that this is not a statement or that it
statement, as Jackson states that he told Oliver these assertions
at the hotel rooms, and if Plaintiffs are offering these statements
to prove that Oliver harassed Mims, it is hearsay.
disagrees with Plaintiffs’ characterization of this as falling
under the state of mind exception as it does not relate to
Jackson’s state of mind at the time of making the statements.
Oliver’s hearsay objection is therefore SUSTAINED.
See id. ¶ 5.
See id. ¶ 4.
Oliver’s Request to Strike
In his response, Oliver asks the court to strike conclusory
statements contained in the requests for admission and the first
The only arguments offered in support of this
request are that: (1) his answer was timely because it relates back
“[t]here is no evidence that Oliver grabbed Lisa Mims’ breast or
grabbed Joshua Jackson anywhere.”66
The court does not find that Oliver’s arguments warrant
striking statements contained Plaintiffs’ amended complaint.
Plaintiffs filed their amended complaint and the supplement to the
amended complaint with leave of court.
As to the requests for
admission, Federal Rule of Civil Procedure 36 allows “litigants to
request admissions as to a broad range of matters, including
ultimate facts, as well as applications of law to fact.”
admission were proper and did not ask Oliver to admit conclusions
See In re Carney, 258 F.3d at 419.
amended complaint and requests for admission is DENIED.
See Doc. 104, Def.’s Resp. to Pls.’ Mot. for Summ. J. p. 7.
In their response to Oliver’s motion for summary judgment and
their separately-filed objections, Plaintiffs object to Oliver’s
summary judgment evidence on several bases.
that Oliver failed to file his exhibits in a timely fashion, which
prejudiced Plaintiffs in developing their response to Oliver’s
motion for summary judgment.
As the court granted Oliver leave to
unauthenticated, modified, and irrelevant.
Although the court
shares Plaintiffs’ concerns, it did not rely on the exhibit in
reaching its decision herein. This objection is OVERRULED AS MOOT.
Finally, Plaintiffs object to a notation among the exhibits
indicating that Oliver intended to hand deliver to the court an
unredacted version of one exhibit and a video exhibit because
Plaintiffs were not served these supplemental exhibits.
the court did not rely on these exhibits, the court OVERRULES AS
MOOT this objection as well.
Additionally, as pointed out by Plaintiffs, the court agrees
that Oliver’s motion discusses irrelevant facts and facts not
supported by summary judgment evidence and that some of Oliver’s
exhibits are unauthenticated. However, the court has not relied on
these unsubstantiated assertions or unauthenticated exhibits in its
statement of the facts; rather, the court relied on the affidavits
of Plaintiffs, the deposition of Oliver, and the deposition of
Jackson in recounting the factual background of this case.
Therefore, Plaintiffs’ objections are OVERRULED AS MOOT.
Oliver’s testimony is uncorroborated and that he has no factual
support for his statements, Plaintiffs’ objection is OVERRULED.
Plaintiffs themselves submitted his deposition as part of their
summary judgment evidence, Oliver’s deposition was taken under
oath, and it is clearly competent summary judgment evidence.
Plaintiffs contend that because Oliver did not file an answer
Plaintiffs’ allegations in the first amended complaint have been
Plaintiffs also assert that their requests for
admission should be deemed admitted because Oliver did not respond
within the time allowed by the applicable rule.
Oliver argues that the requests for admission should not
deemed as admitted because Oliver’s counsel was not served with the
requests on March 21, 2016, as claimed.
argues that if the requested facts are deemed admitted, Plaintiffs
still fall short of meeting the elements of their claims and he
moves to strike any conclusory statements in the requests and in
the amended complaint.
Plaintiffs’ Requests for Admission
Under Federal Rule of Civil Procedure 36, a party may request
admission from the other side as to matters relating to the case,
including facts or how the law applies to the facts.
P. 36(a); In re Carney, 258 F.3d at 418-19.
Fed. R. Civ.
A party served with
requests for admission has thirty days to respond or they are
Fed. R. Civ. P. 36(a)(3).
The parties may
stipulate to a different time frame under a Federal Rule of Civil
Procedure 29 agreement, or the court may order a different due
Fed. R. Civ. P. 29; Fed. R. Civ. P. 36(a)(3).
of Civil Procedure 36(b) states that “[a] matter admitted under
this rule is conclusively established unless the court, on motion,
permits the admission to be withdrawn or amended.” Fed. R. Civ. P.
This case has been rife with discovery disputes.
contends that the parties agreed to extend his response period
until May 9, 2016, a fact that Plaintiffs dispute.
that his attorney attempted to fax the responses to the requests
for admission in a timely fashion and that Plaintiffs’ counsel
interrupted the fax transmission so the response could not be sent.
The lack of a timely response on this and other discovery requests
prompted a motion to compel by Plaintiffs’ counsel.67
On June 2, 2016, the court ordered Oliver to mail the missing
See Doc. 38, Pls.’ Mot. to Compel.
documents that day and, when that order was not fully honored,
again ordered that the discovery be resent on June 9, 2016.
Plaintiff received Oliver’s response to the requests for admission
on June 9, 2016.
Plaintiffs argue that in the face of an untimely response,
Oliver should have moved for permission to file the responses to
the requests for admission out of time.
However, under Federal
Rule of Civil Procedure 36(a)(3), the court has the power to order
a longer period of time for a party to respond to requests for
The court’s intervention in this dispute gave Oliver
extra time to turn over the requests for admission to Plaintiffs.
The court declines to deem Plaintiffs’ requests for admission as
admitted and declines to grant Plaintiffs’ motion for summary
judgment on this basis.
At the time that Plaintiffs filed their motion for summary
judgment, Oliver had not filed an answer to their first amended
complaint, which made significant modifications to the factual
allegations compared to the original complaint. Oliver later filed
a general denial, which was stricken by the court, and Oliver was
ordered to file a new answer within two weeks that complied with
the Federal Rules of Civil Procedure.68
To date, Oliver has not
complied with the court’s order.
See Doc. 160, Ord. Dated June 8, 2017.
Federal Rule of Civil Procedure 37(b)(2)(A) lists appropriate
sanctions for the failure of a party to obey a discovery order,
which includes rendering default judgment against disobedient
party. The court “has broad discretion under Rule 37(b) to fashion
remedies suited to the misconduct.” Smith & Fuller, P.A. v. Cooper
Tire & Rubber Co., 685 F.3d 486, 488 (5th Cir. 2012)(quoting Pressey
v. Patterson, 898 F.2d 1018, 1021 (5th Cir. 1990)).
In the context of default judgments, the Fifth Circuit has
explained that “there is a strong policy to decide cases on the
merits” and that “[t]he Federal Rules of Civil Procedure are
designed for the just, speedy, and inexpensive disposition of cases
on their merits, not for the termination of litigation by a
procedural manner.” Fortenberry v. Texas, 75 F. App’x 924, 926 n.1
(5th Cir. 2003)(unpublished)); Lindsey v. Prive Corp., 161 F.3d 886,
893 (5th Cir. 1998)(quoting Sun Bank v. Pelican Homestead & Sav.
Ass’n, 874 F.2d 274, 276 (5th Cir. 1989)).
Although Oliver has acted in a uniformly disorganized and
untimely manner during this lawsuit, he has not failed to defend
this suit and the court does not consider his actions to be willful
The court finds that, in accordance with the Fifth
Circuit’s strong policy to decide cases on the merits, Plaintiffs’
motion for summary judgment based on Oliver’s failure to file an
Motions for Summary Judgment
specifically that there is no genuine dispute of material fact as
to each of their claims.
Oliver has moved for summary judgment on
Plaintiffs’ claims for: (1) Section 1983 constitutional violations;
oppression;69 and (5) Title IX sexual harassment.70
Summary Judgment Standard
Summary judgment is warranted when the evidence reveals that
no genuine dispute exists on any material fact and the moving party
is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Stauffer v.
Gearhart, 741 F.3d 574, 581 (5th Cir. 2014).
A material fact is a
fact that is identified by applicable substantive law as critical
to the outcome of the suit.
Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); Ameristar Jet Charter, Inc. v. Signal
Composites, Inc., 271 F.3d 624, 626 (5th Cir. 2001). To be genuine,
the dispute regarding a material fact must be supported by evidence
such that a reasonable jury could resolve the issue in favor of
See Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d
396, 400 (5th Cir. 2013)(quoting Anderson, 477 U.S. at 248).
The movant must inform the court of the basis for the summary
In Plaintiffs’ response to Oliver’s motion, Plaintiffs explicitly
state that they “are not suing Defendant for official oppression or attempted
sexual assault.” Doc. 106, Pls.’ Resp. to Def.’s Mot. for Summ. J. p. 17.
Plaintiffs did not bring a claim for Title IX sexual harassment. See
Doc. 36-1, Pls.’ 1st Am. Compl.
judgment motion and must point to relevant excerpts from pleadings,
depositions, answers to interrogatories, admissions, or affidavits
that demonstrate the absence of genuine factual issues.
Corp., 477 U.S. at 323; Topalian v. Ehrman, 954 F.2d 1125, 1131
If the moving party carries its burden, the nonmovant may
not rest on the allegations or denials in his pleading but must
respond with evidence showing a genuine factual dispute. Stauffer,
741 F.3d at 581 (citing Hathaway v. Bazany, 507 F.3d 312, 319 (5th
Cross-motions for summary judgment are considered separately
under this rubric. See Shaw Constructors v. ICF Kaiser Eng’rs, 395
F.3d 533, 538-39 (5th Cir. 2004).
Each movant must establish that
no genuine issue of material fact exists and that it is entitled to
judgment as a matter of law, and the court views the evidence in
favor of each nonmovant. See id.; Tidewater Inc. v. United States,
565 F.3d 299, 302 (5th Cir. 2009)(quoting Ford Motor Co. v. Tex.
Dep’t of Transp., 264 F.3d 493, 499 (5th Cir. 2001)).
Plaintiffs contend that there is no genuine issue of material
fact on their Section 1983 claims.
Oliver generally moves for
summary judgment on Plaintiffs’ Section 1983 claims, asserting that
constitutional rights or that Oliver is entitled to qualified
The court will address Plaintiffs’ Section 1983 claims
for substantive due process, equal protection, First Amendment
retaliation, and malicious prosecution.
A plaintiff can establish a prima facie case under Section
198372 for the deprivation of civil rights by establishing: (1) a
violation of a federal constitutional or statutory right; and (2)
that the violation was committed by an individual acting under the
color of state law.
Doe v. Rains Cty. Indep. Sch. Dist., 66 F.3d
1402, 1406 (5th Cir. 1995).
The statute creates no substantive
rights but only provides remedies for deprivations of rights
created under federal law.
Graham v. Connor, 490 U.S. 386, 393-94
Government officials are entitled to qualified immunity from
liability for civil damages “unless [(1)] the official violated a
Oliver’s other arguments include: (1) that Oliver was sued in his
official capacity, not individual capacity; (2) that Plaintiffs do not have
evidence to support their causes of action; and (3) Plaintiffs cannot show
damages. As to Oliver’s argument that he was sued in his official capacity, this
argument is frivolous. Plaintiffs have clearly indicated from the beginning of
this case, as evidenced by the original complaint, that Plaintiffs are suing
Oliver in his individual capacity.
The provision reads, 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 . . . .
42 U.S.C. § 1983.
established at the time of the challenged conduct.”
Howards, 566 U.S. 658, 132 S. Ct. 2088, 2093 (2012)(citing Ashcroft
v. al-Kidd, 563 U.S. 731, 735 (2011)).
Courts have discretion to
determine in which order the two prongs are considered.
563 U.S. at 735. Qualified immunity protects an officer regardless
of whether the error was “a mistake of law, a mistake of fact, or
a mistake based on mixed questions of law and fact.”
Callahan, 555 U.S. 223, 231 (2009)(quoting Groh v. Ramirez, 540
U.S. 551, 567 (2004)).
A common starting point for the qualified immunity arguments
is to determine whether a plaintiff’s allegations against an
officer stated a violation of plaintiff’s constitutional rights and
whether that right was clearly established law at the time of the
McCreary, 738 F.3d at 656.
The two prongs may be
established” if pre-existing law sufficiently defines the right so
that a reasonable public official would understand whether his
actions were constitutional in the situation confronting him.
Hope, 536 U.S. at 739; Williams, 352 F.3d at 1002-03 (quoting Hope,
536 U.S. at 539).
Ultimately, if the legal rules are sufficiently
clear, then a plaintiff must prove that the officer’s actions were
objectively unreasonable within that legal context.
See Hare v.
City of Corinth, Miss., 135 F.3d 320, 326 (5th Cir. 1998).
Plaintiffs contend that Oliver is a state actor for purposes
of Section 1983 liability based on his employment at a state
university at the time of the incidents alleged in this case.
Oliver does not challenge this proposition.
Courts have treated
professors as state actors for purposes of Section 1983 analysis.
See Hayut v. State Univ. of New York, 352 F.3d 733, 744 (2d Cir.
2003)(“We think it [is] clear that a professor employed at a state
university is a state actor.
A professor at a state university is
vested with a great deal of authority over his students with
respect to grades and academic advancement by virtue of that
position. When a professor misuses that authority in the course of
performing his duties, he necessarily acts under color of state law
for purposes of a section 1983 action.”); see also Chestang v.
2011)(considering a professor at a public university a state actor
for purposes of Section 1983); see also Doe v. Taylor Indep. Sch.
Dist., 15 F.3d 443, 450-51 (5th Cir. 1994)(treating a teacher at a
public school as a state actor for purposes of Section 1983).
Section 1983 claims.
Sexual Harassment: Substantive Due Process and Equal
In her amended complaint, Mims claims that her Fourteenth
Amendment rights to substantive due process and equal protection
In her motion for summary judgment, Mims appears
to conflate the two clauses, simply alleging that sexual harassment
violates the Fourteenth Amendment’s substantive due process and
equal protection clauses.74
Substantive Due Process
Substantive due process prevents governmental intrusions of
115, 125 (1992).
Collins v. City of Harker Heights, 503 U.S.
The Supreme Court has stated, however, that it
“has always been reluctant to expand the concept of substantive due
process because guideposts for responsible decisionmaking in this
unchartered area are scarce and open-ended,” and it has therefore
“previously rejected claims that the Due Process Clause should be
interpreted to impose federal duties that are analogous to those
traditionally imposed by state tort law.”
Id. at 125, 128.
Governmental action violates the substantive portion of the due
process clause “only when it ‘can properly be characterized as
arbitrary, or conscience shocking, in a constitutional sense.’”
In the motion for summary judgment, Mims argues that Oliver is liable
for “sexual harassment per se” because “[u]sing state authority to coerce sex is
statutory rape,” citing Texas Penal Code §§ 22.011 and 39.03 in support. See
Doc. 91, Pls.’ Mot. for Summ. J. p. 12.
However, in Plaintiffs’ amended complaint, there is no claim for sexual
harassment per se. The amended complaint refers to these two sections of the
Texas Penal Code in reference to official oppression, a claim which Plaintiffs
state explicitly that they dropped in filing the amended complaint. The court
only considers Plaintiffs’ amended complaint to raise substantive due process and
equal protection claims under Section 1983.
Additionally, in Oliver’s motion for summary judgment, Oliver moves
for summary judgment on Plaintiffs’ Title IX sexual harassment quid pro quo
claim. Plaintiffs’ first amended complaint did not raise a claim under Title IX.
Their only claims for sexual harassment are brought under Section 1983 for
Fourteenth Amendment violations.
Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)(quoting
Collins, 503 U.S. at 128).
To determine whether it meets this
governmental officer is so egregious, so outrageous, that it may
fairly be said to shock the contemporary conscience.”
Id. at 847
n.8; see also Morris v. Dearborne, 181 F.3d 657, 668 (5th Cir.
Citing Taylor, 15 F.3d at 450-51, Mims argues that she has a
right to be free from sexual harassment by a state actor.75
facts in Taylor were particularly egregious.
There, a high school
teacher seduced a fifteen-year-old freshman student into a sexual
Id. at 448.
Relying on prior case law that held
that an elementary school student had a substantive due process
right “to be free of state-occasioned damage to a person’s bodily
integrity,” the court reasoned that if the Constitution protected
a schoolchild from being tied to a chair or subjected to arbitrary
paddlings, it surely protected a student from sexual fondling and
statutory rape. Id. at 451 (citing Jefferson v. Ysleta Indep. Sch.
Dist., 817 F.2d 303, 305 (5th Cir. 1987)(tying a second-grader to
his chair for two days is a substantive due process violation) and
punishment wholly unrelated to legitimate state goal of maintaining
a learning environment is a substantive due process violation)).
See Doc. 91, Pls.’ Mot. for Summ. J. p. 11.
constitutional cause of action to college-age students who were
subjected to unwanted touching by a professor.
In Chestang, the
court analyzed whether there was a substantive due process right to
bodily integrity that was violated when a college student alleged
“unwanted sexual advances” by his professor, consisting of “several
telephone calls and in-person conversations as well as one incident
when [the professor] ‘rubbed against [the student’s] body.’”
F. Supp.2d at 779-80.
inappropriate,” it did “not rise to the level of activity that
‘shocks the conscience’ such that it violates substantive due
Id. at 780.
In reaching this decision, the court
acknowledged Taylor’s holding that a school-age child has a right
to bodily integrity but found that the Fifth Circuit and other
courts have only found this right to be violated when there is
The Chestang court noted that in Morris v.
Dearborne, the Fifth Circuit did not find a substantive due process
claim where a teacher sat a child on his lap and guided the child’s
hand to type violent and sexually explicit messages. Chestang, 820
F. Supp.2d at 668 (citing Morris, 181 F.3d at 668).
Both Mims and Oliver have moved for summary judgment on this
In determining whether Mims has alleged a substantive due
process violation, the court must determine whether the facts taken
in the light most favorable to the non-movant, may properly be
improper touching of Mims’ person, Mims has not established an
undisputed factual basis for summary judgment on this claim.
Turning to Oliver’s motion for summary judgment, taking Mims’
facts as true, while Oliver’s conduct towards Mims was certainly
inappropriate and boorish, it does not shock the conscience.
Oliver’s behavior in this case is certainly distinguishable from
Taylor, where a teacher committed a statutory rape of an underaged
student, and is similar to Chestang, wherein the court did not find
a substantive due process violation.
Even if Mims were able to show that she had a constitutional
right under the facts of this case, she still cannot overcome
Oliver’s assertion of qualified immunity.
It is not clearly
established law that there is a constitutional, substantive due
process right to be free from unwanted touching by a professor in
circumstances such as presented in this case.
motion for summary judgment on this claim should be granted.
In Southard v. Tex. Bd. of Crim. J., 114 F.3d 539, 550 (5th
Cir. 1997), the Fifth Circuit held that “[s]ex discrimination and
Protection Clause of the Fourteenth Amendment.” (emphasis added).
harassment outside the workplace may violate the equal protection
In Young v. Isola, Miss., No. 3:15-CV-00108-GHD, 2016 WL
6916790, at *6 (N.D. Miss. Nov. 13, 2016)(unpublished), a case
where a police officer sexually harassed a store clerk and grabbed
her arm, the court declined to find an equal protection violation,
stating that “the Fifth Circuit has not to date recognized an equal
protection claim based on verbal sexual harassment and an unwanted
touching not resulting in physical injury in a non-employment
In Taylor, the Fifth Circuit, sitting en banc, declined to
address whether the plaintiff had stated a claim under the equal
protection clause of the Fourteenth Amendment.
In the vacated
opinion, the Fifth Circuit had addressed the issue of whether a
sexual harassment claim could be recognized outside the employment
context, stating that sexual harassment “is a form of sexual
discrimination proscribed by the equal protection clause” and that
“[a]lthough most of the cases on this subject arise in the context
of harassment in the work place, there is no meaningful distinction
between the work environment and school environment which would
forbid such discrimination in the former context and tolerate it in
Doe v. Taylor Indep. Sch. Dist., 975 F.2d 137, 149
(5th Cir. 1992), reh’g granted & op. vacated by Taylor, 15 F.3d 443
(5th Cir. 1994).
However, the Fifth Circuit chose not to restate
this reasoning when sitting en banc, instead deciding not to
address whether there is an equal protection right to be free from
sexual harassment outside the employment context.
Other circuits have elected to create a broader definition of
the right to be free from sexual harassment, stating that sexual
harassment by state actor violates the equal protection clause.
See, e.g., Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d
1238, 1249 (10th Cir. 1999); Wright v. Rolette Cty., 417 F.3d 879,
884 (8th Cir. 2005); Hickman v. Laskodi, 45 F. App’x 451, 453 (6th
In Chestang, the court looked to Second Circuit and Fourth
Circuit cases that both found that sexual harassment towards a
student by a professor can constitute an equal protection violation
by the university and the professor.
See Jennings v. Univ. of N.
C., 482 F.3d 686, 701 (4th Cir. 2007)(in the context of a college
coach and a student, finding an “equal protection right to be free
from sexual harassment in an education setting”); Hayut, 352 F.3d
environment claim under Section 1983 where professor repeatedly
made off-color comments in front of the class at her expense).
Notably, the sexual harassment in the cases cited was found to be
sufficiently severe to have altered the educational environment.
See Jennings, 482 F.3d at 701;
Hayut, 352 F.3d at 744-45.
Chestang court agreed with these other circuits in finding that
there was a right to be free from sexual harassment in the
professor-student context, stating that there was no distinction
between that and the employer-employee context.
820 F. Supp.2d at
Despite the positions taken by the above-mentioned courts,
this court is not wont to extend constitutional rights beyond the
perimeters explicitly set by Fifth Circuit law.
The Fifth Circuit
has chosen not to recognize an equal protection right to be free
from sexual harassment outside the employment context.
Fifth Circuit’s explicit acknowledgment of such a right and in
light of the decisions such as Young, the court cannot hold that
Oliver’s boorish behavior violated clearly established law of which
a reasonable professor in this circuit would have known.
equal protection claim fails as a matter of law.
Fourth Amendment Unreasonable Seizure
Mims pled a Section 1983 claim for unreasonable seizure under
the Fourth Amendment, alleging that Oliver unreasonably seized her
person when he attempted to block her from leaving his office and
acted with excessive force when he touched her breast.
argues that Mims has not shown that she was deprived of any
constitutional right and also raises qualified immunity.
The Supreme Court has counseled that a seizure occurs for
purposes of the Fourth Amendment only where a government actor has,
by means of physical force or a show of authority, restrained a
person’s liberty and where, in view of all the circumstances, a
reasonable person would have believed that she was not free to
Graham v. Connor, 490 U.S. 386, 395 n.10 (1989); United
States v. Mendenhall, 446 U.S. 544, 554 (1980).
In California v.
Hodari, 499 U.S. 621 (1999), the Court held that in order to show
a seizure of a person under the Fourth Amendment, there must either
be the application of force, “however slight,” or a submission to
an officer’s show of authority.
In her motion for summary judgment, Mims simply cites Carnaby
v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011), for the
proposition that, in order to prevail on her Fourth Amendment
excessive use of force claim, she must simply establish: (1) an
injury; (2) that the injury resulted directly from the use of
excessive force; (3) and that the excessiveness of the force was
unreasonable. Carnaby was decided in the context of a traffic stop
that devolved into a police shooting.
Id. at 186.
questions whether the present facts even trigger a Fourth Amendment
In Jones v. Wellham, 104 F.3d 620, 622 (4th Cir. 1997), a young
suspicion of driving while intoxicated.
The court found that
“[b]ecause the harm inflicted did not occur in the course of an
attempted arrest or apprehension of one suspected of criminal
conduct . . . the claim was not one of a Fourth Amendment
(internal citations omitted).
The court in Poe
v. Leonard, 282 F.3d 123, 125 (2d Cir. 2002), also found that the
Fourth Amendment was not implicated when a female police officer
was surreptitiously videotaped undressing at a police training
center, reasoning that the Fourth Amendment did not apply because
Id. at 136 (collecting cases).
In another case with
similar facts, Doe v. Luzerne Cty., 660 F.3d 169, 172 (3d Cir.
2011), the court found that, when a female police officer was
decontaminating process after she was exposed to filth and fleas,
the Fourth Amendment did not apply, agreeing with the decision in
In making this finding, the court reasoned that the filming
was for personal reasons and occurred outside the scope of a
Id. at 179.
In Doe v. S & S Consol. I.S.D., 149 F. Supp.2d 274, 278-83,
286-87 (E.D. Tex. 2001), a decision that was later affirmed by the
Fifth Circuit, the plaintiff asserted that her minor daughter was
“unreasonably seized” when she was wrapped in a sheet at school.
The minor was suffering from severe bipolar disorder with violent
confinement was to protect her from hurting herself or other
“unreasonably seized” by the school officials, which the court
rejected, stating that it did not believe that the conduct fell
within the scope of the Fourth Amendment’s protections.
In Young, 2016 WL 6916790 at *2, in addition to the allegation
that the police officer violated the plaintiff’s equal protection
rights by sexually harassing her, the plaintiff also alleged that
the officer “forcefully grabbed her by her left arm, thereby
detaining and preventing Plaintiff from carrying on with her
The plaintiff further complained that the
officer watched her while she was working and yelled expletives at
The district court found that the facts alleged by
the plaintiff did not “constitute a cognizable seizure under the
Fourth and Fourteenth Amendments” and that the plaintiff had not
shown an “actionable injury.”
Id. at *7.
As in S & S Consol. I.S.D., Mims contends that her person was
“unreasonably seized” by Oliver.
Viewing the facts most favorably
to Oliver, for purposes of Mims’ motion for summary judgment, he
claims that he did not touch her or meet with her in his office.
Therefore, no “seizure” occurred for purposes of Mims’ motion, and
Mims’ motion on this claim must be denied.
Looking at the facts most favorably to Mims for purposes of
Oliver’s motion, Mims’ claim fails as a matter of law.
There is no
authority cited by Mims, and the court is aware of none, indicating
The court concludes that the Fourth Amendment cannot
form the basis for Mims’ claims against Oliver.
Even if Mims met her burden to demonstrate that she had a
constitutional right under the facts alleged, the court can find
nothing to overcome Oliver’s claim for qualified immunity.
has failed to cite authority indicating that Oliver’s actions
violated clearly established law.
In fact, cases such as Young, S
& S Consol. I.S.D., Poe, Jones, and Luzerne Cty. indicate that
courts have found conduct similar to this case not to constitute a
cognizable Fourth Amendment claim.
Therefore, even if Mims had
established that a Fourth Amendment constitutional violation, she
has not met her burden to overcome Oliver’s assertion of qualified
First Amendment Retaliation
Plaintiffs also allege that Oliver retaliated against them for
the exercise of their rights to free speech and assembly when he
filed what they contend to be false criminal charges against them.
Plaintiffs’ motion for summary judgment barely skims the surface of
what they need to prove in support of their First Amendment claims.
The court must therefore examine the law and facts of this matter
in detail to determine if Plaintiffs’ motion may be granted on
their First Amendment claims.
The First Amendment protects an individual against official
reprisal for protected speech. Hartman v. Moore, 547 U.S. 250, 256
(2006)(quoting Crawford-El v. Britton, 523 U.S. 574, 588 n.10
(1998)); Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002).
“[T]he law is settled that as a general matter the First Amendment
prohibits government officials from subjecting an individual to
retaliatory actions, including criminal prosecutions, for speaking
Hartman, 547 U.S. at 256.
In order to succeed on a First Amendment retaliation claim, a
plaintiff must show that: (1) he was engaged in constitutionally
plaintiff] to suffer an injury that would chill a person of
ordinary firmness from continuing to engage in that activity;” and
plaintiff[’s] exercise of constitutionally protected conduct.”
Keenan, 290 F.3d at 258.
The plaintiff who is pursuing a claim
based on retaliatory prosecution must also plead and prove the
absence of probable cause to support the criminal charges.
Hartman, 547 U.S. at 265-66; Keenan, 290 F.3d at 260.
For speech to qualify for constitutional protection, it must
involve a matter of public concern.
Snyder v. Phelps, 562 U.S.
443, 452 (2011)(“[R]estricting speech on purely private matters
does not implicate the same constitutional concerns as limiting
speech on matters of public interest . . . .”).
“Speech deals with
matters of public concern when it can be fairly considered as
relating to any matter of political, social, or other concern to
the community or when it is a subject of legitimate news interest;
that is, a subject of general interest and of value and concern to
omitted)(quoting Connick v. Myers, 461 U.S. 138, 146 (1983); City
of San Diego, Cal. v. Roe, 543 U.S. 77, 83-84 (2004)).
The test to
determine whether speech is public focuses on content, form, and
context and requires evaluation of all of the circumstances of the
speech, including what was said, where it was said, and how it was
Snyder, 562 U.S. at 453.
Mims and Jackson must also establish that Oliver was acting
under color of state law when he took the allegedly retaliatory
A purely private act will not be considered to be taken
under color of state law simply because the person is a public
See Smith v. Winter, 782 F.2d 508, 512 (5th Cir. 1986).
To determine if a government official is acting under color of
state law, courts must look at whether the official “misuse[d] or
abuse[d] his official power,” and (2) if “there [was] a nexus
between the victim, the improper conduct, and [the officer’s]
performance of official duties.”
Bustos v. Martini Club Inc., 599
F.3d 458, 464-65 (5th Cir. 2010)(quoting Townsend v. Moya, 291 F.3d
859, 861 (5th Cir. 2002).
“Acts of officers performing their
official duties ‘are included whether they hew to the line of their
authority or overstep it,’ but acts of officers ‘in the ambit of
their personal pursuits’ are generally excluded.” Bustos, 599 F.3d
actions from personal pursuits in determining whether an action was
taken under color of state law depends on whether official power
has been misused.
For example, in Townsend, 291 F.3d at 860, 862-
863, the Fifth Circuit found that a prison guard who engaged in
horseplay with an inmate, including stabbing him in the buttocks,
was not acting under color of state law during the incident.
The Fifth Circuit reasoned that even though the guard had
direct authority over the inmate, he was not using his authority to
injure the inmate.
Id. at 862.
The court stated that the “key
inquiry” in deciding whether the guard acted under the color of
state law was whether he had a “purely private aim” and that “[t]he
inquiry is not whether authority is possessed, but whether it is
used or misused.”
On the other hand, in Taylor, 15 F.3d at 447-52, the Fifth
Circuit found that a teacher was acting under color of state law
distinguished Taylor, stating, “The teacher required the student to
do little classwork, rewarded her with high grades, and asked other
teachers to raise her grades in inducing her to have a sexual
relationship with him.”
15 F.3d at 447-52).
Townsend, 291 F.3d at 863 (citing Taylor,
The court concluded that these “inappropriate
actions were clearly connected to his duties and obligations as a
teacher,” and were not “purely personal” like the prison guard’s
In Bustos, 599 F.3d at 460-61, the plaintiff alleged that
several off-duty police officers assaulted him at a bar. The court
affirmed the lower court’s dismissal of the Section 1983 claims
against the police officers, holding that, based on the plaintiff’s
allegations, the officers had not used their authority to carry out
Id. at 465-66.
Here, the summary judgment record supports a finding that
Oliver had authority over Mims as her professor.
And if Mims had
alleged that Oliver misused his authority as her professor to give
her a grade less than what she had earned, the court would agree
that the retaliatory action was taken under color of state law.
But Mims and Jackson claim that the retaliatory action was filing
allegedly false criminal charges with the police.
Although the court concedes that whether Mims, Jackson, or the
other two men robbed Oliver is disputed, what is clear is that
Oliver was not acting under color of state law when he filed the
criminal charges against Mims and Jackson.
Rather, he was acting
in his capacity as a private citizen reporting a crime.
no facts showing that he used or misused his authority as a
professor in making the report to the police.
In the absence of
any evidence that he was acting as Mims’ professor when he filed
criminal charges, the court finds that Mims and Jackson’s motion
for summary judgment on their First Amendment retaliation claims
must be denied as the claims fail as a matter of law.
recommends, sua sponte, that summary judgment in favor of Oliver be
entered on these claims.76
In Plaintiffs’ first amended complaint, they allege claims for
malicious prosecution under Section 1983, contending that Oliver
maliciously prosecuted them by filing false robbery charges.
Plaintiffs have moved for summary judgment on this claim, but
incorrectly cite the elements for a malicious prosecution claim
brought under Texas law.
Oliver moves for summary judgment
generally on Plaintiffs’ Section 1983 claims.
The court considers
The Fifth Circuit does not recognize an independent federal
cause of action for malicious prosecution.
Deville v. Marcantel,
567 F.3d 156, 169 (5th Cir. 2009)(citing Castellano v. Fragozo, 352
F.3d 939, 945 (5th Cir. 2003)).
Rather, violations of specific
Oliver moved for summary judgment generally on Plaintiffs’ Section
1983 claims, but did not raise the argument that Oliver was not acting under
color of state law to Plaintiffs’ First Amendment retaliation claim. Federal
Rule of Civil Procedure 56(f) allows the court, “[a]fter giving notice and a
reasonable time to respond,” to either “grant summary judgment for a nonmovant”
or to “grant the motion on grounds not raised by a party.” Fed. R. Civ. P.
56(f); see also Nautilus Ins. Co. v. Home Remedy Servs., LLC, No. H-09-3508, 2011
WL 13130886, at *8 (S.D. Tex. 2011); Norton v. Assisted Living Concepts, Inc.,
786 F. Supp.2d 1173, 1186-87 (E.D. Tex. 2011). A district court may sua sponte
enter summary judgment “only if the losing party is on notice and has the
opportunity to come forward with all its evidence.”
Luig v. North Bay
Enterprises, Inc., 817 F.3d 901, 905 (5th Cir. 2016); see also Celotex, 477 U.S.
Pursuant to Federal Rule of Civil Procedure 56(f) the court gives notice
of its recommendation that summary judgment be granted on this claim. The court
will reconsider this recommendation on a timely-filed objection to this
Memorandum and Recommendation.
constitutional protections and not under the broad category of
independent of another constitutional violation, and therefore, in
the absence of a separate constitutional violation, Plaintiffs
cannot pursue this claim on its own.
Remaining State Law Claims
If the above recommendations are adopted by the district
court, the federal claims that underpinned the court’s federal
question jurisdiction will be dismissed, leaving Plaintiffs’ state
28 U.S.C. § 1367(c) states:
The district courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if:
(1) the claim raises novel or complex issues
of State law,
(2) the claim substantially predominates over
the claim or claims over which the district
court has original jurisdiction,
(3) the district court has dismissed all
(4) in exceptional circumstances, there are
In the present case, the court has dismissed the federal
claims over which it had original jurisdiction.
In the court’s
opinion, the exercise of supplemental jurisdiction over purely
state law disputes would be an abuse of discretion.
See Moore v.
Willis Indep. Sch. Dist., 233 F.3d 871, 876 (5th Cir. 2000).
court declines to reach Plaintiffs’ and Oliver’s motions on these
remaining claims and recommends that these claims be dismissed.
For the reasons discussed above, it is RECOMMENDED that
Plaintiffs’ federal claims be DISMISSED.
It is also RECOMMENDED
that the court decline to exercise supplemental jurisdiction over
the remaining state law claims and DISMISS the state law claims.
Recommendation, and Order to the respective parties who have
fourteen days from the receipt thereof to file written objections
thereto pursuant to Federal Rule of Civil Procedure 72(b) and
General Order 2002-13.
Failure to file written objections within
the time period mentioned shall bar an aggrieved party from
attacking the factual findings and legal conclusions on appeal.
The original of any written objections shall be filed with the
United States District Clerk electronically.
Copies of such
objections shall be mailed to opposing parties and to the chambers
of the undersigned, 515 Rusk, Suite 7019, Houston, Texas 77002.
SIGNED in Houston, Texas, this ______ day of July, 2017.
U.S. MAGISTRATE JUDGE
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