McVea v. Swan et al
Filing
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ORDER GRANTING 15 Motion to Dismiss; DENYING 17 Motion for Judicial Notice; GRANTING 24 Motion to Dismiss. This dismissal is without prejudice and Plaintiff shall have thirty (30) days from the date of this Order to file an amended complaint. Signed by Judge David A. Ezra. (rg)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
DENISE MCVEA,
§
§
Plaintiff,
§
§
vs.
§
§
JOSEPH SWAN, DANIEL SCOTT,
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FNU BERNAL, UNKNOWN
§
OFFICER 1, SAN ANTONIO POLICE §
DEPARTMENT,
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Defendants.
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No. SA:14–CV–73–DAE
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AND DENYING
PLAINTIFF’S MOTION FOR JUDICIAL NOTICE
Before the Court are two motions to dismiss filed by Defendants
Joseph Swan and Daniel Scott (Dkt. ## 15, 24). Additionally before the Court is
Plaintiff Denise McVea’s Motion for Judicial Notice (Dkt. # 17). The Court heard
argument on each of these motions on September 10, 2014. Plaintiff appeared pro
se. Mark Kosanovich, Esq., represented Defendants Swan and Scott, and Michael
Siemer, Esq., appeared on behalf of the San Antonio Police Department. After
careful consideration of the arguments at the hearing and in the supporting and
opposing memoranda, the Court GRANTS Defendants Swan and Scott’s Motions
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to Dismiss the claims against them (Dkt. ## 15, 24) and DENIES Plaintiff’s
Motion for Judicial Notice (Dkt. # 17).
BACKGROUND
Plaintiff filed her complaint on February 11, 2014, alleging that
Defendants Swan and Scott, Officer Bernal, an unknown officer, and the San
Antonio Police Department (“SAPD”) violated her constitutional rights.
(“Compl.,” Dkt. # 5.) Plaintiff alleges that on January 21, 2013, she held a “Martin
Luther King Day fundraiser and information event” at her place of business. (Id.
¶ 9.) Plaintiff contends that Defendants arrested her without probable cause to do
so. (Id.) Plaintiff claims that Defendants then searched her property without a
warrant and seized her “personal property.” (Id.) Plaintiff asserts that these
officers conspired to violate her civil rights and that they failed to intervene to
protect her civil rights. (Id.)
Plaintiff states that she was charged with violating “Sec. 16.296 – No
Yard Sale Permit” and arrested. (Id. ¶ 12.) Plaintiff argues that her arrest under
this section was improper. (Id.) Plaintiff avers that she could not have applied for
a yard sale permit because the property was a business, not her home, and yard sale
permits are only available for residences. (Id.) Plaintiff argues that she was
unconstitutionally imprisoned as a result of this. (Id.)
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Plaintiff next alleges that these actions were part of a pattern of
“repeated and willful activity that routinely deprived Plaintiff of equal
protection . . . .” (Id. ¶ 10.) Plaintiff claims that the SAPD has a policy of not
requiring its officers “to understand, uphold, and be guided by substantive law.”
(Id. ¶ 11.) Plaintiff claims that because of this policy, “SAPD officers view the
application of state law as under their personal discretion.” (Id.) Plaintiff alleges
that SAPD failed to properly train its officers on the application of the law and the
limits of their “statutory powers.” (Id.) Plaintiff states that over the course of the
last four years, SAPD has falsely arrested her three times. (Id. ¶ 16.)
Plaintiff states that “Defendant municipality engaged in malicious
prosecution when it pursued a criminal misdemeanor trial against her without
permitting her to be seen by a magistrate.” (Id. ¶ 14.)
In closing, Plaintiff also seeks redress for “violations of rights that
may be protected by the laws of Texas, such as false arrest, assault, battery, false
imprisonment, malicious prosecution, conspiracy, and/or any other claims that may
be supported by the allegations of this complaint.” (Id. ¶ 20.)
Plaintiff then requests the following relief: (1) “Damages to
compensate for all bodily harm, emotional harm, pain and suffering, loss of
income, loss of enjoyment of life, property damage and loss, and any other injuries
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inflicted by defendants”; (2) “punitive damages”; and (3) “such injunctive,
declaratory, or other relief as may be appropriate . . . .” (Id. ¶ 21.)
On March 10, 2014, Defendants Swan and Scott filed a Motion to
Dismiss Plaintiff’s claims against them. (Dkt. # 15.) Plaintiff did not file a
response, per se, but Plaintiff did file a “First Request for Judicial Notice” in which
she asks the Court to deny Defendants Swan and Scott’s Motion to Dismiss. (Dkt.
# 17.) Defendants Swan and Scott construed this filing as a response to their
Motion to Dismiss, and replied to it accordingly. (Dkt. # 18.) Additionally, the
City of San Antonio filed a Response to Plaintiff’s First Request for Judicial
Notice (Dkt. # 19).
LEGAL STANDARD
A proper pleading under the Federal Rules of Civil Procedure must
contain a “short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he pleading standard Rule 8
announces does not require ‘detailed factual allegations,’ but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint must contain more
than mere “labels and conclusions” or “a formulaic recitation of the elements of a
cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly,
550 U.S. at 555).
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In reviewing a motion to dismiss, the Court accepts as true all of the
well-pleaded factual allegations in the complaint. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). In order to survive a motion to dismiss, a claim must allege
“enough facts to state a claim to relief that is plausible on its face.” Twombly, 550
U.S. at 547. “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.” Iqbal, 556 U.S. at 677.
In adjudicating a motion to dismiss, the Court considers only the
pleadings and those matters of which it may take judicial notice under Rule 201 of
the Federal Rules of Evidence. Lovelace v. Software Spectrum Inc., 78 F.3d 1015,
1018–19 (5th Cir. 1996) (adopting a rule that a court in a securities fraud action
may take judicial notice of relevant public disclosure documents required to be
filed with the SEC); Hurd v. BAC Home Loans Servicing, LP, 880 F. Supp. 2d
747, 758 (N.D. Tex. 2012) (taking judicial notice of matters of public record and
considering documents attached to a motion to dismiss as part of the pleadings
because they were central to the claims in the complaint).
DISCUSSION
I.
Plaintiff’s First Request for Judicial Notice
On March 30, 2014, Plaintiff filed a First Request for Judicial Notice
(Dkt. # 17). Because the Court’s decision on Plaintiff’s First Request for Judicial
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Notice is relevant to the Court’s adjudication of Defendants Scott and Swan’s
Motion to Dismiss, the Court will address it first.
Pursuant to the Federal Rules of Evidence, “[t]he court may judicially
notice a fact that is not subject to reasonable dispute because it: (1) is generally
known within the trial court’s territorial jurisdiction; or (2) can be accurately and
readily determined from sources whose accuracy cannot reasonably be
questioned.” Fed. R. Evid. 201(b).
Plaintiff asks the Court to take judicial notice of the following facts:
A.
“Texas Transportation Code states that speeding and violation of the
open container law pursuant to Section 49.03 of the Texas Penal
Code, are ‘the only offenses for which issuance of a written notice to
appear is mandatory.’ TTC 543.004(a-c). By arresting Plaintiff for
the spurious offense of not signing a code enforcement citation, the
conspiring officers violated Section 543.008, which states
unequivocally: ‘A violation by an officer of a provision of Section
543-003–543.007 is misconduct in office and the officer is subject
from removal from the officer’s position.’” (Dkt. # 17 ¶ 4 (internal
citations omitted).)
B.
“Article 15.17(a) of the Code of Criminal Procedure requires that ‘the
person making the arrest or the person having custody of the person
arrested shall without unnecessary delay but not later than 48 hours
after the person is arrested, take the person before some
magistrate . . . .’ Defendant’s [sic] failure to present Plaintiff and their
charges to magistrate while pursuing false criminal charges against
her is prima facie evidence of their willful violations of Plaintiff’s
constitutional protections of unreasonable search and seizure.” (Id.
¶ 5.)
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C.
“Texas has no misdemeanor criminal offense for the charges the
conconsipirators enumerated as rational [sic] for the illegal and
unconstitutional arrest and detention of plaintiff nor the illegal and
unconstitutional seizure of her effects. . . .” (Id. ¶ 6.)
D.
“The Bexar County justice system is under unprecedented federal
investigation for corruption (See Attachment A.) Dismissal of this
suit with prejudice would be premature pending results of the federal
investigation referenced in Attachment A.” (Id. ¶ 7.)
The Court will address each of these in turn.
A.
The Texas Transportation Code
First, Plaintiff’s complaint alleges that she was arrested and charged
with violation of § 16.296 of the San Antonio Municipal Code for operating a
garage sale without a permit. (Dkt. # 5 ¶ 12.) Plaintiff does not allege that
Defendants charged her with any other violations. (See id.) Therefore, the Court
finds that these sections of the Texas Transporation Code, of which Plaintiff
requests the Court to take judicial notice, are completely irrelevant to her case.
First, Plaintiff requests the Court take notice of section 543.004 that
provides “An officer shall issue a written notice to appear if: (1) the offense
charged is speeding or a violation of the open container law . . .and (2) the person
makes a written promise to appear in court. . . . [These offenses] are the only
offenses for which issuance of a written notice to appear is mandatory.” While this
is an accurate statement of the text of § 543.004, this section does not apply to
Plaintiff’s complaint. Plaintiff does not allege that her arrest was at all related to
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transportation. (See Compl.) Plaintiff then alleges that officers conspired to
violate this section. (Dkt. # 17 ¶ 4.) However, because the Court cannot find any
conceivable connection between these code sections and any allegation in
Plaintiff’s complaint, the Court DENIES Plaintiff’s request for judicial notice of
§ 543.004.
B.
The Code of Criminal Procedure
Plaintiff next asks this Court to take judicial notice of Article 15.17(a)
of the Texas Code of Criminal Procedure that requires that officers bring persons
arrested under a warrant before a magistrate judge within forty-eight hours. (Dkt.
# 17 ¶ 5.) Plaintiff has provided an accurate excerpt of Article 15.17(a); however,
the Court does not need to take judicial notice of a statement of the Texas Code of
Criminal procedure as that is not an adjudicative fact.
More importantly, however, the Court recognizes that Plaintiff did not
plead in her Complaint that Defendants did not bring her before a Magistrate Judge
within the requisite timeframe. (See Compl.) Additionally, the Court will not take
judicial notice of Plaintiff’s allegations that Defendants willfully violated her
rights. These facts are in dispute and are not the proper subject for judicial notice.
Plaintiff’s request for judicial notice of these facts is DENIED.
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C.
Texas’ Lack of Misdemeanor Criminal Offense for Alleged Charges
Plaintiff’s request on this point is vague; she requests that the Court
take judicial notice that “Texas has no misdemeanor criminal offense for the
charges the co-conspirators enumerated” as a rationale for her arrest. (Dkt. # 17 ¶
6.) The Court declines to take notice of Plaintiff’s blanket assertion. Again, this is
a statement of law, not an adjudicative fact, and therefore is not a proper subject
for the Court to take judicial notice. Plaintiff’s request on this point is DENIED.
D.
Bexar County Corruption
Finally, Plaintiff requests that this Court take judicial notice of the fact
that the Bexar County justice system is “under unprecedented federal investigation
for corruption.” (Dkt. # 17 ¶ 7.) Plaintiff attaches an article referencing the federal
investigation into the conduct of Al Acevedo, Jr., an attorney who is under
investigation for allegedly bribing people within the criminal justice system with
gifts in exchange for favors on his cases. (Dkt. # 17, Ex. A.) Plaintiff has not
provided even a scintilla of evidence that this investigation could be related to her
complaint. Therefore, the Court DENIES Plaintiff’s request for judicial notice of
this fact.
Because Plaintiff has either failed to demonstrate a connection
between the facts for which she seeks judicial notice or only requested judicial
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notice of non-adjudicative facts, the Court DENIES Plaintiff’s First Request for
Judicial Notice (Dkt. # 17).
II.
Defendants Swan and Scott’s Motion to Dismiss
Defendants Swan and Scott have filed two motions to dismiss (Dkt.
## 15, 24), and the Court will address these motions together.
Defendants Scott and Swan first move to dismiss Plaintiff’s complaint
for failure to state a claim for which relief can be granted. (Dkt. # 15.) In her
complaint, Plaintiff alleged violations of 42 U.S.C. §§ 1985, 1986, 1983, 14141; 18
U.S.C. §§ 241, 242; and Texas state law claims. Defendants Scott and Swan allege
that Plaintiff has not pled sufficient facts to survive a motion to dismiss for any of
these provisions.
A.
42 U.S.C. § 1985
Plaintiff alleges a violation of 42 U.S.C. § 1985; however, she does
not state which subpart of § 1985 she believes was violated. (See Compl.)
Because the only section that could conceivably relate to her Complaint is
subsection 3, the Court will assume that Plaintiff asserts violations of § 1985(3).
Section 1985(3) provides:
If two or more persons in any State or Territory conspire or go in
disguise on the highway or on the premises of another, for the purpose
of depriving, either directly or indirectly, any person or class of
persons of the equal protection of the laws, or of equal privileges and
immunities under the laws; or for the purpose of preventing or
hindering the constituted authorities of any State or Territory from
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giving or securing to all persons within such State or Territory the
equal protection of the laws; . . . in any case of conspiracy set forth in
this section, if one or more persons engaged therein do, or cause to be
done, any act in furtherance of the object of such conspiracy, whereby
another is injured in his person or property, or deprived of having and
exercising any right or privilege of a citizen of the United State, the
party so injured or deprived may have an action for the recovery of
damages occasioned by such injury or deprivation, against any one or
more of the conspirators.
42 U.S.C. § 1985(3). The Fifth Circuit maintains that § 1985(3) “requires, as an
element of the cause of action, a racial or otherwise class-based invidiously
discriminatory animus behind the conspirator’s actions.” Bradt v. Smith, 634 F.2d
796, 801 (5th Cir. 1981). If no such animus is pled or shown, then a claim under
§ 1985(3) cannot survive a motion to dismiss.
Here, Plaintiff has failed to plead any animus establishing a claim
under § 1985. (See Compl.) Additionally, Plaintiff has not pled any specifics of
the alleged conspiracy or any fact that would render her claims plausible.
Plaintiff’s complaint contains nothing more than conclusory allegations, devoid of
factual support. Therefore, the Court GRANTS Defendants Swan and Scott’s
Motion to Dismiss this claim.
B.
42 U.S.C. § 1986
Defendants Swan and Scott next move to dismiss Plaintiff’s claims
pursuant to 42 U.S.C. § 1986. (Dkt. # 15.)
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Section 1986 is a cause of action for “neglecting to prevent a known
conspiracy under Section 1985.” Hamilton v. Chaffin, 506 F.2d 904, 913 (5th Cir.
1975). In relevant part, it provides:
Every person who, having knowledge that any of the wrongs
conspired to be done, and mentioned in section 1985 of this title, are
about to be committed, and having power to prevent or aid in
preventing the commission of the same, neglects or refuses so to do, if
such wrongful act be committed, shall be liable to the party
injured . . . .
42. U.S.C. § 1986. As stated in the statute itself, in order to establish a violation of
§ 1986, a plaintiff must first establish a violation of § 1985. Bradt, 634 F.2d at
801; see also Hamilton, 506 F.2d at 913.
Therefore, because this Court has dismissed Plaintiff’s claim under
§ 1985, the Court GRANTS Defendants Swan and Scott’s Motion to Dismiss
Plaintiff’s claim under § 1986.
C.
42 U.S.C. §1983
Defendants also move to dismiss Plaintiff’s claim under 42 U.S.C.
§ 1983. (Dkt. # 15 at 5–6.) Section 1983 provides
Every person who, under color of any statute . . . 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 . . . .
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42 U.S.C. § 1983. “Section 1983 is not itself a source of substantive rights, but
merely provides a method for vindicating federal rights elsewhere conferred.”
Albright v. Oliver, 510 U.S. 266, 271 (1994) (internal quotation marks omitted).
Here, Plaintiff has failed to plead any facts identifying a deprivation
of a substantive right that might be vindicated pursuant to § 1983. Even construed
liberally, Plaintiff’s complaint does not include any specific facts relating to these
claims. Therefore, because Plaintiff has not identified any substantive right of
which she was deprived and because she may not bring a free-standing § 1983
claim, the Court GRANTS Defendants Swan and Scott’s Motion to Dismiss this
claim.
D.
42 U.S.C. § 14141
Defendants Scott and Swan move to dismiss Plaintiff’s claims under
42 U.S.C. § 14141. (Dkt. # 15 at 5.)
Section 14141 provides:
(a) Unlawful conduct
It shall be unlawful for any governmental authority, or any agent
thereof, or any person acting on behalf of a governmental authority, to
engage in a pattern or practice of conduct by law enforcement officers
or by officials or employees of any governmental agency with
responsibility for the administration of juvenile justice or the
incarceration of juveniles that deprives persons of rights, privileges, or
immunities secured or protected by the Constitution or laws of the
United States.
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(b) Civil Action by the Attorney General
Whenever the Attorney General has reasonable cause to believe that a
violation of paragraph [(a)] has occurred, the Attorney General, for or
in the name of the United States, may in a civil action obtain
appropriate equitable and declaratory relief to eliminate the pattern or
practice.
42 U.S.C. § 14141. Defendants argue, and are supported by the text of the statute,
that a violation of this section creates a cause of action belonging only to the
Attorney General. Therefore, the Court GRANTS Defendants Swan and Scott’s
Motion to Dismiss Plaintiff’s claim under § 14141.
E.
18 U.S.C. §§ 241, 242
Defendants Swan and Scott next move to dismiss Plaintiffs claims
under 18 U.S.C. §§ 241, 242 because these sections are criminal in nature. (Dkt.
# 15 at 5.) Sections 241and 242 do not create civil liability. Gill v. Texas, 153 Fed.
App’x 261, 262 (5th Cir. 2005); see also Willing v. Lake Orion Cmty. Sch. Bd. of
Trustees, 924 F. Supp. 815, 818 (E.D. Mich. 1996); Agnew v. Compton, 239 F.2d
226, 230 (9th Cir. 1956). A private citizen, like Plaintiff, “has no standing to
institute a federal criminal prosecution and no power to enforce a criminal statute.”
Gill, 153 F. App’x at 263 (dismissing a private plaintiff’s claims under 18 U.S.C.
§§ 241 and 242 as legally frivolous). Therefore, the Court GRANTS Defendants
Swan and Scott’s Motion to Dismiss these claims.
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F.
Texas State Law Claims
Finally, Defendants Swan and Scott move to dismiss Plaintiff’s state
law claims.
As a preliminary matter, Plaintiff has failed to specifically plead any
state law claims. (Compl. ¶ 20.) Rather she makes the vague assertion that she is
claiming
violations of rights that may be protected by the laws of Texas, such
as false arrest, assault, battery, false imprisonment, malicious
prosecution, conspiracy, and/or any other claim that may be supported
by the allegations of this complaint.
(Compl. ¶ 20.) Although Plaintiff is pro se, and this Court construes her pleading
liberally, Plaintiff has not provided any facts that would put this Court or
Defendants on notice of the substance of Plaintiff’s claims. Plaintiff has not pled
any facts connecting any of the Defendants to her state law claims. Therefore, the
Court GRANTS Defendants Swan and Scott’s Motion to Dismiss these claims.
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CONCLUSION
For the reasons stated above, the Court GRANTS Defendants Swan
and Scott’s Motions to Dismiss (Dkt. ## 15, 24). Plaintiff’s First Request for
Judicial Notice is DENIED (Dkt. # 17). This dismissal is without prejudice and
Plaintiff shall have thirty (30) days from the date of this Order to file an amended
complaint. Failure to file an amended complaint within that timeframe shall result
in the Court dismissing this case with prejudice.
IT IS SO ORDERED.
DATED: September 10, 2014, San Antonio, Texas.
_____________________________________
David Alan Ezra
Senior United States Distict Judge
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