Draper v. Ott et al
REPORT AND RECOMMENDATIONS re 10 Motion for Protective Order filed by Mark Ott, City of Austin, 9 Motion to Dismiss for Failure to State a Claim, Motion to Dismiss/Lack of Jurisdiction filed by Mark Ott, City of Austin. The undersigned RECOMMENDS that the District Judge GRANT IN PART Defendants Rule 12(b)(1) and 12(c) Motion to Dismiss, or in the Alternative, Motion to Dismiss Defendant Marc Ott Pursuant to Texas Civil Practice and Remedies Code 101.106(a) & (e) (Dkt. No. 9), and DISMISS this case against all Defendants for lack of subject matter jurisdiction. Signed by Judge Andrew W. Austin. (dm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
CHARLES N. DRAPER
MARK OTT, in his official capacity as
City Manager, and CITY OF AUSTIN
REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court are: Defendants’ Rule 12(b)(1) and 12(c) Motion to Dismiss, or in the
Alternative, Motion to Dismiss Defendant Marc Ott Pursuant to Texas Civil Practice and Remedies
Code 101.106(a) & (e) (Dkt. No. 9); Plaintiff’s Response to Defendants’ Motion to Dismiss (Dkt.
No. 11); and Defendants’ Reply (Dkt. No. 14). 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. Also before the Court are Defendants’ Motion for
Protection and Stay or Limit Discovery (Dkt. No. 10); Plaintiff’s Response (Dkt. No. 12); and
Defendants’ Reply (Dkt. No 15), which Have been referred for disposition.
Plaintiff Charles N. Draper (“Draper”), proceeding pro se, brings suit against Defendants City
of Austin (“the City”) and Marc Ott (“Ott”) the City Manager for the City of Austin in his official
capacity. In his Original Complaint, Draper outlines a potpourri of events which he believes
establish that Ott has “pursued Draper with a vendetta.” Dkt. No. 1 at 7. Draper alleges that, due
to his involvement in a lawsuit against Bank of America “involving a fraudulent loan,” his office was
burglarized and that an “emasculated buck was deposited” on the doorstep of his commercial
property on Thanksgiving Day 2009. Id. at. 2. Draper alleges that “numerous operatives” including
individuals from General Motors and Homeland Security burglarized his home at the same time, and
that he reported both crimes to the Austin Police Department. Id. Draper was also involved in a
dispute with a neighbor, which led Draper to bring a defamation suit against that neighbor, with
whom he had several exchanges. Id. at 3. Draper also called the Austin Police Department
regarding the neighbor. He complains that he made a records request to the City of Austin who
refused his request. He alleges that the ““public record’ has been redacted” regarding his various
reports to the Austin Police Department, “under the coercion of Austin’s City Manager Marc Ott.”
Id. at 2-3.
Draper also alleges that he was involved in litigation against the City of Austin when it
denied his land development applications. Id. at 3. He alleges that Ott coerced city employees to lie
in affidavits provided in connection with that litigation. It is unclear whether Draper is alleging City
employees also lied regarding any of Draper’s other numerous lawsuits. Id. As part of the alleged
vendetta against him, Draper further complains that the City Manager’s Office conspired with Austin
Energy to charge Draper twice the regular commercial rate and “fraudulently transposed” his
commercial account onto his residential account overstating charges by $1000.00. Id. at 3-4.
Draper next complains that during the Spring of 2014, Marc Ott’s Office of the City Manager
encouraged Austin Travis County Integral Care Service to contact Draper to “fabricate a mental
health issue.” Id. at 4. He alleges that Austin Police Department Officer Randy Hunt contacted him
via text message and then later by telephone, requesting a meeting. Draper asserts that he refused
the meetings. Id. at 5. Draper alleges that Ott maliciously and knowingly made false statements to
a prosecutor and that the prosecutor acted on the information. Id. at 6.
In the Complaint, Draper asserts only one cause of action— a common law claim of
malicious prosecution, apparently based on Marc Ott’s actions. He requests damages for his
emotional distress and a permanent injunction. Although poorly pled, it appears that through the suit
Draper is attempting to enjoin any potential attempt to detain him for mental health reasons.
Complaint at 7.
Defendants move to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction,
contending that there is diversity between the parties, and that Draper has failed to allege a federal
question. Additionally, Defendants argue that malicious prosecution is an intentional tort for which
Defendants have immunity. Alternatively, Defendants move for judgment on the pleadings pursuant
to Rule 12(c), asserting that Draper has failed to state a claim upon which relief may be granted.
A. 12(b)(1) Standard
A motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction tests the
court’s statutory or constitutional power to adjudicate the case. Home Builders Ass’n of Miss., Inc.
v. City of Madison, Miss., 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). In ruling on a Rule 12(b)(1) motion to dismiss, the court may rely on
(1) the complaint alone, presuming the allegations to be true, (2) the complaint supplemented by
undisputed facts, or (3) the complaint supplemented by undisputed facts and by the court’s resolution
of disputed facts. Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir.
2001). When a Rule 12(b)(1) motion is filed with other Rule 12 motions, the court should address
the jurisdictional attack before addressing any attack on the merits. Cloud v. United States, 536 U.S.
Draper does not state in his Complaint what the alleged basis for the Court’s subject matter
jurisdiction is. Defendants assert he cannot establish either diversity or federal question jurisdiction
based upon the claims stated in his Complaint, and therefore it is properly dismissed.
28 U.S.C. § 1332 provides for the original subject matter jurisdiction of federal district courts
in all civil actions where the amount in controversy exceeds $75, 000, exclusive of costs and interest
and is between citizens of different states. Diversity among parties must be complete and, therefore,
no plaintiff may have the same citizenship as any defendant. Strawbridge v. Curtiss, 7 U.S. (3
Cranch) 267 (1806); Powell v. Offshore Navigation, Inc., 644 F.2d 1063 (5th Cir. 1981), cert.
denied, 454 U.S. 972 (1981). Defendants note that the Plaintiff, as well as all defendants, are
citizens of Texas, and therefore no diversity jurisdiction exists. Draper responds that he intends to
add additional defendants, including General Motors, the Department of Homeland Security, the
University of Texas, and Covert Chevrolet, thereby creating diversity. Draper misunderstands the
requirements of complete diversity. Since he is a citizen of Texas, as long as at least one defendant
is also a Texas citizen, there is no diversity of citizenship in the case, regardless of how many other
parties he might join.
Federal Question Jurisdiction
The only other possible basis for federal jurisdiction would be the presence of a federal
question. Federal question jurisdiction is invoked when a plaintiff properly pleads a claim arising
under the Constitution or the laws of the United States. Bell v. Hood, 327 U.S. 678, 681–85 (1946).
“A federal question exists ‘if there appears on the face of the complaint some substantial, disputed
question of federal law.’” In re HotHed, Inc., 477 F.3d 320, 323 (5th Cir. 2007) (quoting Carpenter
v. Wichita Falls Indep. Sch. Dist., 44 F.3d 632, 366 (5th Cir. 1995)). Draper’s Original Complaint
alleged only malicious prosecution, which arises under state, and not federal law. From the
Complaint, it appears that Draper has failed to plead a federal question.
In Draper’s Response, and for the first time, he alleges that Defendants conspired with
Officer Hunt to deprive him of his Constitutional right to due process. Draper alleges that Hunt
attempted to certify Draper as mentally impaired without giving him due process, in violation of 42
U.S.C. § 1983. A cause of action brought pursuant to § 1983 is sufficient to establish federal
question jurisdiction. Draper is proceeding pro se, so the Court gives his briefs “a liberal
construction.” Brown v. Sudduth, 675 F.3d 472, 477 (5th Cir. 2012). “When a pro se plaintiff raises
a new claim for the first time in response to a motion to dismiss, the district court should construe
the new claim as a motion to amend the complaint under FED. R. CIV. P. 15(a).” King v. Life School,
809 F.Supp.2d 572, 581 (N.D. Tex. 2011); Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 989
n. 2 (5th Cir. 2008) (collecting cases). Although leave to amend is to be freely given when justice
so requires, denial of a motion for leave to amend is appropriate when the proposed amendment
would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962) (specifying futility of amendment as an
adequate justification to refuse to grant leave to amend). The decision whether to grant a motion to
amend is generally left to the sound discretion of the district court. Smith v. EMC Corp., 393 F.3d
590, 595 (5th Cir. 2004).
The undersigned will therefore construe Draper’s response to the motion to dismiss as a
request for leave to amend his complaint to add a claim under 42 U.S.C. § 1983. The question the
Court must resolve is whether that claim would be futile. The relevant language of the reply with
regard to this claim states:
Austin City Manager, Marc Ott, acted outside of the scope of his legal authority, by
performing an executive “proprietary act”; the malicious prosecution of the plaintiff,
over the course of several years, with the malicious intention of “unconstitutional
detainment,” violating plaintiff’s civil rights to due process. The state, Marc Ott, and
City of Austin, “symbiotic relationship” on executive action, engaged in joint activity
with private parties, Officer Hunt and Austin Travis County Integral Care Service,
that resulted in the deprivation of plaintiffs constitutional rights [citations omitted],
which are protected by Federal Civil Rights Act. Marc Ott is culpable, and
accountable for acts of malice, under his executive action.
* * *
The Due Process Clause, under Fourteenth Amendment, Section 1 of the United
States Constitution limits state powers, protects actions involving, concerted
activities between state actor (defendants) and private actors (Officer Hunt, and
Austin Travis County Integral), towards depriving plaintiff’s individuals of due
process. The critical element is, the interdependence of the state and the private actor.
Defendants had a “symbiotic relationship” with Officer Hunt and Austin Travis
County Integral Care Service, which violated plaintiffs right to due process under
Fourteenth Amendment. [citations omitted]. . . . In Def Mo. to Dismiss, p. 8 of 14,
Defendants contend; “To establish liability, a plaintiff must “identify a policy,
connect the policy to the city itself and show that the particular injury incurred
because of the execution of that policy.” [citations omitted]. Plaintiff’s Original
Complaint emphasizes, Officer Hunt and Austin Travis County Integral Health
dogged attempted, to certify Draper as mentally impaired, was without just-cause, or
due process. Clearly, this policy connects the City (state) with Austin Travis County
Integral Health (private parties) in a coordinated attack on Draper's constitutional
Dkt. No. 12 at 2-3. Draper furthers states that:
Plaintiff sued defendants for malicious prosecution, a civil right violation, protected
under the U.S. Constitution Fourteenth Amendment, Section 1. Plaintiffs claims is
substantially based on federal law, namely, the Federal Civil Rights Act, Title 42
§1983, and Title 28 U.S.C. §1343.
“ ‘Malicious prosecution’ “ as such and standing alone, ‘is no violation of the United States
Constitution,’ and thus provides no basis for relief under 42 U.S.C. § 1983.” Ahmed v. City of
Houston, 2014 WL 5460590, *2 (S.D. Tex. Oct.27, 2014) (quoting Castellano v. Fragozo, 352 F.3d
939, 942 (5th Cir. 2003)). Still, “[t]he initiation of criminal charges without probable cause may set
in force events that run afoul of explicit constitutional protection—the Fourth Amendment if the
accused is seized and arrested, for example.” Castellano, 352 F.3d at 953. While such claims may
be made under 42 U.S.C. § 1983, “they are not claims for malicious prosecution and labeling them
as such only invites confusion.” Id. at 953–54.1
Draper has consistently asserted that he is claiming malicious prosecution. Although he
claims that “Defendants, Mark Ott, made knowingly false information to a prosecutor, and the
prosecutor acted ion the false information,” he has not asserted that any criminal charges have been
lodged against him or that he has been arrested or incarcerated. Rather, Draper focuses his
Complaint on the outreach attempts of Austin Travis County Integral Care Services – which does
not incarcerate individuals, but focuses on community outreach to the mentally ill.
http://www.integralcare.org/content/integrated-services. He also focuses on the actions of Austin
Police Department Office Randy Hunt, who is a member of the Crisis Intervention Team, which,
according the 211 service provider website, “provides assistance for people in a mental health crisis
who are a danger to themselves or to another person. Officers have mental health training, and will
assess and resolve the immediate crisis, and if necessary link the individuals with appropriate
resources for ongoing assistance. . . .” http://www.211texas.org/zf/profile/service/id/1308828.
The Supreme Court has established that involuntary commitment in a mental health facility
can constitute a deprivation of liberty that requires the protections of due process. See Addington
v. Tex., 441 U.S. 418, 425 (1979) (“civil commitment for any purpose constitutes a significant
To establish a Texas common law claim for malicious prosecution, the plaintiff must show:
(1) a criminal action was commenced against him; (2) the prosecution was caused (initiated or
procured) by the defendant or with his aid; (3) the action terminated in the plaintiff's favor; (4) the
plaintiff was innocent; (5) the defendant acted without probable cause; (6) the defendant acted with
malice; and (7) the criminal proceeding damaged the plaintiff. Taylor v. Gregg, 36 F.3d 453, 455
(5th Cir.1994), overruled in part by Castellano, 352 F.3d 939; Richey v. Brookshire Grocery Co.,
952 S.W.2d 515, 518 (Tex. 1997).
deprivation of liberty that requires due process protection”); Dahl v. Akin, 630 F.2d 277, 279 (5th
Cir. 1980). To prove a procedural due process violation in the involuntary commitment context, a
plaintiff must allege: (1) the existence of a liberty or property interest that has been subject to
interference by the state, and (2) that the procedures attendant upon the deprivation of an existing
interest were constitutionally insufficient. See Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 460
In this case, Draper has not alleged that he has been subjected to an involuntary
commitment—he merely alleges that he fears it will occur at a future date. Draper pleads that he
refused to meet with Hunt on two occasions.2 Without any state interference with his liberty, Draper
cannot state a Fourteenth Amendment due process violation or a cause of action pursuant to 42
U.S.C. § 1983. Since he cannot adequately plead a basis for federal question jurisdiction, Draper’s
claims are properly dismissed for lack of subject matter jurisdiction.
B. Pending Discovery Issues
Defendants also move to stay discovery until the Court resolves the issue of subject matter
jurisdiction raised in their Motion to Dismiss. Dkt. No. 10. Additionally, Defendants move for
protection because Draper has served discovery on them prior to a Rule 26(f) conference. Draper
responds that this case is exempted from the requirements of initial disclosures pursuant to Rule
26(a)(1)(B)(i) since it is “an action for review of an administrative record.” He also argues that since
the City of Austin inaugurated a new mayor and city council in 2015, it is important that he act
quickly in this case so that discovery will remain available.
Draper states in his Complaint, that he stated to Hunt, in response to a request for a meeting,
“I am not going to meet with your rodeo clown. I am willing to have a third party intermediary,
Honorable Justice Sam Sparks review the dispute, and make recommendation on the City of Austin’s
malicious prosecution.” Complaint at p. 5.
Draper’s arguments lack merit. This is not an action to review an administrative record
subject to any exception in Rule 26. Moreover, the change in the City’s administration has already
occurred, and the Court has no reason to believe that this change would result in the unavailability
of evidence relating to this case. Lastly, but most importantly, the undersigned is recommending that
the case be dismissed for lack of subject matter jurisdiction, which would make any discovery
unnecessary. In light of this recommendation, the Court will GRANT Defendants’ Motion for
Protection and Stay or Limit Discovery (Dkt. No. 10), and ORDERS any discovery stayed until such
time as the District Court rules on this Report and Recommendation.
The undersigned RECOMMENDS that the District Judge GRANT IN PART Defendants’
Rule 12(b)(1) and 12(c) Motion to Dismiss, or in the Alternative, Motion to Dismiss Defendant Marc
Ott Pursuant to Texas Civil Practice and Remedies Code 101.106(a) & (e) (Dkt. No. 9), and
DISMISS this case against all Defendants for lack of subject matter jurisdiction.
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 (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
SIGNED this 25th day of February, 2015.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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