Barnes v. Texas Ethics Commission

Filing 46

AMENDED REPORT AND RECOMMENDATIONS re 32 Motion to Dismiss filed by Texas Ethics Commission, 39 Motion to Dismiss filed by David A. Reisman, Natalia Luna Ashley.. Signed by Judge Andrew W. Austin. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
MIKE BARNES
v.
TEXAS ETHICS COMMISSION AND
NATALIA LUNA ASHLEY AND
DAVID A. REISMAN, IN THEIR
INDIVIDUAL CAPACITY

§
§
§
§
§
§
§
§

A-13-CA-916 LY

AMENDED1 REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court are: Defendant Texas Ethics Commission’s Motion to Dismiss Plaintiff’s

Third Amended Complaint Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (Dkt.
No. 32); Defendant Natalia Ashley and David Reisman’s Motion to Dismiss Plaintiff’s Third
Amended Complaint (Dkt. No. 39); Plaintiff’s Consolidated Response (Dkt. No. 43); and
Defendants’ Reply in Support of their Motions to Dismiss (Dkt. No. 44). The District Court referred
the above-motion to the undersigned Magistrate Judge for a report and recommendation pursuant
to 28 U.S.C. §636(b) and Rule 1(c) of Appendix C of the Local Rules of the United States District
Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States
Magistrate Judges. Having reviewed the parties’ filings, the entire case file, and the applicable law,
the Court enters the following Report and Recommendation.

1

The Court is amending the Report & Recommendation issued on May 13, 2015 (Dkt. No.
45) to correct Section IV of the Order which erroneously refers to Defendant’s Texas Ethics
Commission’s Motion to Dismiss as Clerk’s Dkt. No. “8.” The correct number is Clerk’s Dkt. No.
32.

I. GENERAL BACKGROUND
In the Spring of 2011, Plaintiff Mike Barnes (“Barnes”) ran for a Blanco Independent School
District (“Blanco ISD”) school board position and lost. Barnes alleges that during the school board
campaign, three Blanco ISD school employees either emailed, printed flyers or fund-raised during
school hours and/or using school resources in violation of the Texas Election Code and the Texas
Education Code. Almost two years later, on March 1, 2013, Barnes sent letters to the Texas Ethics
Commission (“Commission”),2 the Texas Education Agency, and the Secretary of State, to inquire
about how to make a formal complaint regarding the three school employee’s alleged violations of
state law.
On March 15, 2013, the Commission responded to Barnes’s letter inquiry advising him that
its enforcement jurisdiction extended only to possible violations of the Texas Election Code. The
Commission also explained how to make a complaint using the required sworn complaint and
affidavit forms and noted the applicable limitations period of two years for the alleged violations.
On April 10, 2013, Barnes then sent three sworn complaints and affidavits to the Commission
against the three Blanco ISD employees.

However, the Commission issued Notices of

Noncompliance for each of these complaints and again advised Barnes how to file a complying
complaint. Barnes sent several more letters/complaints to the Commission urging reconsideration
of his three complaints, but the Commission declined to reconsider whether to investigate his
complaints.

2

The Commission administers and enforces Title 15 of the Texas Elections Code which
concerns political contributions and expenditures, and political advertising. TEX. GOV’T CODE ANN.
§ 571.061(a)(3) (West 2012). As part of administering the Elections Code, the Commission is
charged with receiving individuals’ complaints for possible investigation of purported illegal use of
public funds to engage in political advertising. TEX. ELECTIONS CODE ANN. § 251.003; Tex. Ethics
Comm’n R. 20.1(13) (defining “political advertising”).
2

In response to the Commission’s failure to investigate his complaints, Barnes filed this
lawsuit under 42 U.S.C. § 1983 against the Commission alleging that “[t]he practice of the Texas
Ethics Commission to make it difficult if not impossible to file a complaint and have it investigated
is a violation of Barnes[’] rights, pursuant to both the United States and Texas Constitutions.” Dkt.
No. 5 at ¶53.
On February 10, 2014, the Commission filed a Motion to Dismiss arguing that Barnes’ First
Amended Complaint should be dismissed for lack of subject matter jurisdiction and failure to state
any claims for which relief can be granted. The undersigned recommended that the District Court
grant the Motion to Dismiss for lack of subject matter jurisdiction based on the doctrine of sovereign
immunity. Dkt. No. 14. On September 18, 2014, the District Court adopted the Report and
Recommendation, but granted Barnes leave to file a Second Amended Complaint. Dkt. No. 16. On
October 29, 2014, Barnes filed a Motion for Leave to file a Third Amended Complaint, which the
District Court granted on November 5, 2014. Dkt. No. 27. The Third Amended Complaint is
therefore the “live” pleading in the case.
In addition to naming the Commission as a defendant, Barnes’ Third Amended Complaint
also names as defendants Natalia Luna Ashley, Executive Director of the Commission, and David
A. Reisman, former Executive Director of the Commission. Barnes alleges that the Defendants
(1) violated his right to redress his grievances before a government entity in violation of the First and
Fourteenth Amendments to the Unites States Constitution, and (2) “failed to assure the complaint
process affords a citizen the ability to have their right to file a complaint and have it investigated
without unnecessary barriers,” in violation of the Open Courts and Due Course of Law provisions
of the Texas Constitution, Article I, Sections 13 and 19. Dkt. No. 28 at ¶78. Barnes further alleges
that “Defendant Reisman, as Executive Director of the Texas Ethics Commission, in his Individual
3

Capacity, has set into place a pattern and practice of purposefully putting up barriers to citizens,
when attempting to effectuate their legal right to file a complaint about an election,” and that
“Defendant Ashley continues to maintain such violations of constitutional, statutory and regulatory
law.” Dkt. No. 28 at ¶ 67. In addition to seeking monetary damages, attorney’s fees and costs,
Barnes also seeks a declaration that Reisman is a responsible party and that “the laws, rules and
practices of the Texas Ethics Commission violate substantive and procedural law.” He also asks that
the Court order Defendant Ashley and the Commission to investigate his complaints and “change
their policies and practices in place that impeded the investigation of complaints about elections but
rather, has policies and practices in place, that foster such investigations.” Dkt. No. 28 at p. 17-18.
The Commission and the Individual Defendants have each filed Motions to Dismiss arguing
that Barnes’ Third Amended Complaint should be dismissed for lack of subject matter jurisdiction
and for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).
II. STANDARDS OF REVIEW
A.

Rule 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) allows a party to assert lack of subject-matter

jurisdiction as a defense to suit. Federal district courts are courts of limited jurisdiction, and may
only exercise such jurisdiction as is expressly conferred by the Constitution and federal statutes.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A federal court properly
dismisses a case for lack of subject matter jurisdiction when it lacks the statutory or constitutional
power to adjudicate the case. Home Builders Assn. of Miss., Inc. v. City of Madison, 143 F.3d 1006,
1010 (5th Cir. 1998). “The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party
asserting jurisdiction.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001), cert. denied,
536 U.S. 960 (2002). “Accordingly, the plaintiff constantly bears the burden of proof that
4

jurisdiction does in fact exist.” Id. In ruling on a Rule 12(b)(1) motion, the court may consider any
one of the following: (1) the complaint alone; (2) the complaint plus undisputed facts evidenced in
the record; or (3) the complaint, undisputed facts, and the court’s resolution of disputed facts. Lane
v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008).
B.

Rule 12(b)(6)
Rule 12(b)(6) allows for dismissal of an action “for failure to state a claim upon which relief

can be granted.” While a complaint attacked by a Rule 12(b)(6) motion does not need detailed
factual allegations in order to avoid dismissal, the plaintiff's factual allegations “must be enough to
raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007); see also, Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). A plaintiff's obligation
“requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Id. The Supreme Court recently expounded on the Twombly standard, explaining
that a complaint must contain sufficient factual matter to state a claim to relief that is plausible on
its face. Ashcroft v. Iqbal, 556 U.S. 662 (2009). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. In evaluating a motion to dismiss, the Court must construe
the complaint liberally and accept all of the plaintiff's factual allegations in the complaint as true.
See In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2009).
Although this Court construes the briefs of pro se litigants liberally, a pro se litigant must
still comply with the court rules of procedural and substantive law. Bird v. Estelle, 660 F.2d 592,
593 (5th Cir. 1981). See also, Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)
(“[R]egardless of whether the plaintiff is proceeding pro se or is represented by counsel, conclusory
allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a
5

motion to dismiss.”) (internal quotation marks and citations omitted), cert. denied, 537 U.S. 1200
(2003).
Courts must consider a Rule 12(b)(1) jurisdictional attack before addressing any attack on
the merits. Ramming, 281 F.3d at 161. Considering Rule 12(b)(1) motions first “prevents a court
without jurisdiction from prematurely dismissing a case with prejudice.” Id.
III. ANALYSIS
A.

The Texas Ethics Commission’s Motion to Dismiss
The Commission argues that Barnes’ lawsuit must be dismissed for lack of subject matter

jurisdiction because it is barred by Eleventh Amendment/sovereign immunity.3 The Court agrees.
The Eleventh Amendment states:
The Judicial power of the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State.
U.S. CONST. Amend. XI. “Sovereign immunity is the privilege of the sovereign not to be sued
without its consent.” Virginia Office for Protection and Advocacy v. Stewart, 131 S.Ct. 1632, 1638
(2011). Absent a waiver or valid abrogation, “federal courts may not entertain a private person’s suit
against a State.” Id. at 1638. It is well-established that sovereign immunity applies not only to
actions where a state is actually named as a defendant, but also to “ceratin actions against state

3

While sovereign immunity is often referred to as “Eleventh Amendment immunity,” the
Supreme Court has noted that such a phrase is “something of a misnomer, for the sovereign
immunity of the States neither derives from, nor is limited by, the terms of the Eleventh
Amendment.” Alden v. Maine, 527 U.S. 706, 713 (1999). As the Supreme Court explained in
Alden, “the States’ immunity from suit is a fundamental aspect of the sovereignty which the States
enjoyed before the ratification of the Constitution, and which they retain today. . . .” Id. Regardless,
courts continue to use “Eleventh Amendment immunity” and “sovereign immunity” interchangeably.
6

agents and state instrumentalities.” Regents of the University of California v. Doe, 519 U.S. 425,
429 (1997). Barnes does not dispute that the Texas Ethics Commission is an agency of the State of
Texas. See Dkt. No. 43 at ¶27 (“The Texas Ethics Commission is a state agency...”); see also, TEX.
GOV’T CODE ANN. § 571.001; Hoyt v. City of El Paso, 878 F. Supp.2d 721, 735 n.14 (2012) (“The
Texas Ethics Commission is a state government agency. . .”).
Relying on Ex Parte Young, 209 U.S. 123 (1908), Barnes argues that sovereign immunity
does not preclude his claims because he is seeking prospective injunctive relief against the
Commission. Barnes is mistaken. Sovereign immunity applies to all suits brought against “States
and their agencies . . . regardless of the relief sought.” P.R. Aqueduct & Sewer Auth. v. Metcalf &
Eddy, Inc., 506 U.S. 139, 146 (1993) (citing Cory v. White, 457 U.S. 85, 90–91 (1982)). Ex Parte
Young only applies to suits for prospective relief against state officials; it “has no application in suits
against. . .States and their agencies.” Id.; Cox v. City of Dallas, Tex., 256 F.3d 281, 307 (5th Cir.
2001) (“Ex parte Young held that the Eleventh Amendment does not bar a suit against a state official
who is alleged to be acting in violation of federal law.”). Because the Commission has not waived
its sovereign immunity in this case, all of Barnes’ claims against the Commission are barred by
sovereign immunity. See Quern v. Jordan, 440 U.S. 332, 341(1979) (stating that § 1983 does not
“override the traditional sovereign immunity of the States”); Lewis v. University of Texas Med.
Branch at Galveston, 665 F.3d 625, 630 (5th Cir. 2011) (university is state agency entitled to
immunity from § 1983 suit despite request for prospective injunctive relief). Accordingly, the Texas
Ethics Commission’s Motion to Dismiss for lack of subject matter jurisdiction pursuant to Rule
12(b)(1) should be granted.

7

B.

Individual Defendants and Qualified Immunity
Barnes also brings claims against Natalia Luna Ashley, Executive Director of the

Commission, and David A. Reisman, former Executive Director of the Commission, seeking
monetary damages “in an amount sufficient to fully compensate him” for the alleged injuries he
received.4 Dkt. No. 28 at p. 21. Barnes alleges that “Defendant Reisman, as Executive Director of
the Texas Ethics Commission, in his Individual Capacity, has set into place a pattern and practice
of purposefully putting up barriers to citizens, when attempting to effectuate their legal right to file
a complaint about an election,” and that “Defendant Ashley continues to maintain such violations
of constitutional, statutory and regulatory law.” Dkt. No. 28 at ¶ 67. Specifically, Barnes alleges that
the Reisman and Ashley (1) violated his right to redress his grievances before a government entity
in violation of his First and Fourteenth Amendment rights to the Unites States Constitution, and
(2) failed “to have a complaint process affording a citizen the ability to have their right to file a
complaint and have it investigated without unnecessary barriers,” in violation of the Open Courts
and Due Course of Law provisions of the Texas Constitution, Article I, Sections 13 and 19.
Because any claim against Ashley and Reisman in their official capacities would be barred
by sovereign immunity,5 Barnes only sues Ashley and Reisman in their individual capacities. Both

4

Given the thanklessness of a school board position, one might view Barnes’ defeat as having
saved him from injury, but that is an issue for another day.
5

“[A] suit against a state official in his official capacity for monetary damages is treated as
a suit against the state and is therefore barred by the Eleventh Amendment.” Chaney v. Louisiana
Work Force Commission, 560 F. App’x 417, 418 (5th Cir. 2014) (citing Hafer v. Melo, 502 U.S. 21,
25 (1991)). Furthermore, while the Eleventh Amendment does not preclude suits against state
officers for prospective injunctive relief, Ex parte Young, 209 U.S. 123 (1908), it does prevent a
federal court from awarding retroactive relief. See Edelman v. Jordan, 415 U.S. 651 (1974). Barnes
is seeking retroactive relief in this lawsuit since he is seeking damages to compensate for past
injuries and requests an investigation into his previous complaints regarding the school board
8

Ashley and Reisman contend the suit should be dismissed based on their qualified immunity. “The
doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar
as their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity shields federal and state
officials from money damages unless a plaintiff pleads facts showing: (1) that the official violated
a statutory or constitutional right, and (2) that the right was “clearly established” at the time of the
challenged conduct. Harlow, 457 U.S. at 818. “A Government official’s conduct violates clearly
established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are]
sufficiently clear’ that every ‘reasonable official would have understood that what he is doing
violates that right.’” Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2083 (2011) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). Once the defense of qualified immunity has been raised, the
burden shifts to the plaintiff to show that it does not apply. Jones v. Lowndes County, Miss., 678
F.3d 344, 351 (5th Cir. 2012). In determining whether immunity applies, a court may take up the
two issues in whichever order is merited by the case, and need not answer both questions if one is
lacking. Pearson v. Callahan, 555 U.S. 223, 237 (2009).
As noted, Barnes alleges that Reisman and Ashley violated his First and Fourteenth
Amendment rights to “redress his grievances before a governmental entity” by failing to sufficiently
investigate his complaints regarding the Blanco ISD School Board election. Dkt. No. 28 at p. 15.
Barnes has failed to allege facts showing that his constitutional rights were violated.
election. See Students for a Conservative America v. Greenwood, 378 F.3d 1129, 1130 (9th Cir.
2004) (holding that request for new election was not a request for prospective injunctive relief and
thus was barred by the Eleventh Amendment).
9

1.

First Amendment Claim

The First Amendment to the United States Constitution provides: “Congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.” U.S. Const. amend. I. “The First Amendment protects
the right of an individual to speak freely, to advocate ideas, to associate with others, and to petition
his government for redress of grievances. And it protects the right of associations to engage in
advocacy on behalf of their members.” Smith v. Arkansas State Highway Emp., Local 1315, 441
U.S. 463, 464 (1979). “The government is prohibited from infringing upon these guarantees either
by a general prohibition against certain forms of advocacy, . . .or by imposing sanctions for the
expression of particular views it opposes.” Id. However, “[t]he First Amendment right to associate
and to advocate ‘provides no guarantee that a speech will persuade or that advocacy will be
effective.’” Id. (quoting Hanover Township Federation of Teachers v. Hanover Community School
Corp., 457 F.2d 456, 461 (1972)). While the citizen “can associate and speak freely and petition
openly. . .the First Amendment does not impose any affirmative obligation on the government to
listen, [or] to respond [to]” that petition. Smith, 441 U.S. at 465. Accordingly, citizens “have no
constitutional right as members of the public to a government audience for their policy views.”
Minnesota State Bd. for Community Colleges v. Knight, 465 U.S. 271, 286 (1984).
Barnes’ own allegations show that he was able to exercise his First Amendment rights in this
case. Barnes sent numerous complaints to the Commission complaining about the Blanco ISD
school board election. The fact that he was unhappy with the Commission’s response to his
complaints does not demonstrate that his First Amendment right to petition was violated. See Smith,

10

441 U.S. at 465-66 (holding that State Highway Commission’s refusal to consider a grievance did
not violate First Amendment); We the People Foundation, Inc. v. United States, 485 F.3d 140, 14344 (D.C. Cir. 2007) (relying on Smith to reject citizen group’s argument that the First Amendment
guarantees a citizen’s right to receive a government response to or official consideration of a petition
for redress of grievances), cert. denied, 552 U.S. 1102 (2008); Taylor v. Cockrell, 92 F. App’x 77,
78 (5th Cir. 2004) (holding that plaintiff’s claims “that the defendant violated his constitutional rights
by failing to investigate his grievances fall short of establishing federal constitutional claim.”).
Barnes has failed to allege a violation of his First Amendment rights.
2.

Fourteenth Amendment Claim

Although Barnes states a separate Fourteenth Amendment claim, that claim merely reiterates
his First Amendment right to redress claim. See Dkt. No. 28 at ¶ 75. While the Fourteenth
Amendment makes the First Amendment applicable to the States, Stromberg v. California, 283 U.S.
359, 368 (1931), Barnes has failed to allege a separate viable due process claim under the Fourteenth
Amendment. “In order for a person to have a procedural due process claim that damages or other
relief can remedy, he must have been denied life, liberty, or property protected by the Fourteenth
Amendment.” Wilson v. Birnberg, 667 F.3d 591, 597 (5th Cir.), cert. denied, 133 S.Ct. 32 (2012).
As noted, Barnes fails to show that his First Amendment right was violated by the Commission’s
alleged failure to thoroughly investigate his complaints. Barnes has failed to allege that he was
denied a right specifically protected by the due process clause. See Snowden v. Hughes, 321 U.S.
1, 7 (1944) (The “unlawful denial by state action of a right to state political office is not a denial of
a right of property or liberty secured by the due process clause.”); Wilson, 667 F.3d at 598 (holding
that prospective candidate whose name was not placed on ballot did not have a property interest in

11

public office protected by procedural due process). Barnes is merely complaining about how the
Commission responded to his complaints about the school board election, which does not rise to the
level of a Fourteenth Amendment due process violation.
Because Barnes has failed to allege any tenable constitutional claim against Reisman or
Ashley, they are entitled to qualified immunity.
3.

State Constitutional Claims

Barnes also contends that Defendants Ashley and Reisman violated the Open Courts and Due
Course of Law provisions of the Texas Constitution, Article I, Sections 13 and 19, further contends
that the Commission applied the wrong statute of limitations under Texas law. Because the Court
recommends the dismissal of all of Barnes’ federal claims, pursuant to 28 U.S.C. § 1367(c),the Court
recommends that the district judge decline to exercise jurisdiction over Barnes’ remaining state
claim. See United Mine Workers of America v. Gibbs, 383 U.S. 715,726 (1966) (“[I]f the federal
claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state
claims should be dismissed as well.”).
IV. RECOMMENDATION
For the reasons set forth above, the undersigned RECOMMENDS that the District Court
GRANT Defendant Texas Ethics Commission’s Motion to Dismiss (Dkt. No. 32) and DISMISS
Mike Barnes’ lawsuit against the Texas Ethics Commission pursuant to Federal Rule of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction. The Court FURTHER RECOMMENDS
that the District Court GRANT Defendants Natalia Ashley and David Reisman’s Motion to Dismiss
Plaintiff’s Third Amended Complaint (Dkt. No. 39) based on qualified immunity. The Court

12

FURTHER RECOMMENDS that the District Court DISMISS this lawsuit in its entirety and
DENY Mike Barnes leave to amend his Complaint for a fourth time.
V. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections. See
Battle v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(c); Thomas v. Arn, 474 U.S. 140, 150-53, 106 S. Ct. 466,
472-74 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en
banc).

To the extent that a party has not been served by the Clerk with this Report &

Recommendation electronically pursuant to the CM/ECF procedures of this District, the Clerk is
directed to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 18th day of May, 2015.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

13