Thoele v. Abbott et al

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATIONS 5 . Signed by Judge Sam Sparks. FINALLY ORDERED that Plaintiff Troy Daniel Thoele's Complaint # 1 isDISMISSED WITH PREJUDICE as time-barred.(td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

2015

DEC

1

I

PM

2:

15

TROY DANIEL THOELE #1784662,
Plaintiff,
Case No. A-15-CA-997-SS

-vs-

GREG ABBOTT, MARGIE JOHNSON, ROSS
BEHRENS, and KEN PAXTON,
Defendants.

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and

specifically Plaintiff Troy Daniel Thoele (Thoele's) Complaint [#1], the Report and
Recommendation of United States Magistrate Judge Andrew W. Austin [#5], and Thoele's
Objections [#9].

All matters in this case were referred to United States Magistrate Judge Andrew W. Austin
for report and recommendation pursuant to 28 U.S.C.

§ 63 6(b)

and Rule 1(f) of Appendix C of the

Local Court 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. Thoele is entitled to de novo

review of the portions of the Magistrate Judge's report to which he filed specific objections.
28 U.S.C.

§

636(b)(1). All other review is for plain error. Douglass v.

United Servs. Auto. Ass 'n,

79

F.3d 1415, 1428-29 (5th Cir. 1996) (en banc). Nevertheless, this Court has reviewed the entire file
de novo, and agrees with the Magistrate Judge's recommendation.

I

Background
This case involves an alleged violation of the Federal Stored Communications Act.
18 U.S.C. §

See

2701-2712. At the time of filing his complaint on November 2, 2015, Thoele was

incarcerated in the Huntsville Unit of the Texas Department of Criminal Justice. Thoele had

previously been convicted of almost fifty counts of possession of child pornography and sentenced
to ten years in prison for each count.

Thoele sues Greg Abbott, Margie Johnson, Ross Behrens, and Ken Paxton, specifically
alleging Johnson and Behrens violated the Stored Communications Act and various state laws while

working for the Texas Attorney General's Office. He further alleges Greg Abbott established an
official policy or unofficial custom at the Attorney General's Office ofusing the Travis County grand

jury to issue fraudulent subpoenas to circumvent the requirements of the Stored Communications
Act and various state laws.
Thoele seeks a declaratory judgment that his rights have been violated and an injunction

ordering Attorney General Ken Paxton to eliminate the policy or custom of using fraudulent
subpoenas to illegally obtain subscriber billing information.

Analysis
The Court dismisses Thoele's complaint for two reasons: (1) his claims under the Stored
Communications Act are time-barred, and (2) the Court declines to exercise supplemental

jurisdiction over the remaining state law claims.
I.

Statute of Limitations
Under the Stored Communications Act, "[a] civil action under this section may not be

commenced later than two years after the date upon which the claimant first discovered or had a
-2-

reasonable opportunity to discover the violation." 18 U.S.C.

§

2707(f). Thoele committed the

offenses on June 8, 2011. He was convicted and sentenced on April 12,2012. The Court agrees with

the Magistrate Judge that Thoele would have had a reasonable opportunity to discover a potential

violation of the Stored Communications Act no later than the date of his conviction. However,
Thoele did not file his complaint until October30, 2015, well after the two-year statute of limitations

expired. As a result, Thoele's claims under the Stored Communications Act are time-barred.

II.

Supplemental Jurisdiction
In addition to his Stored Communications Act claims, Thoele also asserts various state law

claims. A district court may decline to exercise supplemental jurisdiction over a state claim where

the claim raises novel or complex issues of state law, where the state claim predominates over the
federal claims, where all federal claims have been dismissed, or where there are other compelling
reasons to decline jurisdiction. 28 U.S.C.

§

1367(c). Because the Court dismisses Thoele's federal

claims as time-barred, the Court declines to exercise supplemental jurisdiction over the remaining
state law claims.

Conclusion
Accordingly,
IT IS ORDERED that Plaintiff Troy Daniel Thoele's Objections [#9] are

OVERRULED;
IT IS FURTHER ORDERED that the Report and Recommendation ofUnited States

Magistrate Judge Andrew W. Austin [#5] is ACCEPTED;
IT IS FINALLY ORDERED that Plaintiff Troy Daniel Thoele's Complaint [#1] is

DISMISSED WITH PREJUDICE as time-barred.
-3-

SIGNED this the

//day of December 2015.

CI
SAM SPARKS
UNITED STATES DISTRICT JUDGE