Opinion
5-22-CV-01065-XR-RBF
05-25-2023
MAGDA HAGAN OF THE FAMILY, Plaintiff, v. JOSE ROSALES, POLICE OFFICER, WINDCREST POLICE DEPARTMENT, INDIVIDUAL CAPACITY; SELENA BRELAND, POLICE OFFICER, WINDCREST POLICE DEPARTMENT, INDIVIDUAL CAPACITY; AND DARRELL E. VOLZ, CHIEF OF POLICE, WINDCREST POLICE DEPARTMENT, INDIVIDUAL CAPACITY; Defendants.
RICHARD B. FARRER, UNITED STATES MAGISTRATE JUDGE
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE XAVIER RODRIGUEZ:, UNITED STATES DISTRICT JUDGE
This Report and Recommendation concerns Defendants' Motion to Dismiss. See Dkt. No. 25. All pretrial matters in this action have been referred for resolution pursuant to Rules CV-72 and 1 of Appendix C to the Local Rules for the United States District Court for the Western District of Texas. See Dkt. No. 23. Authority to enter this recommendation stems from 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, the Motion to Dismiss, Dkt. No. 25, should be GRANTED.
Factual and Procedural Background
The factual allegations in this case are extremely light, but the Court endeavors to piece together what little has been provided in the original pro se complaint and all subsequent filings. Plaintiff Magda Hagan of the Family owns property at 5907 Crescent Falls in Windcrest, Texas, which has been under construction for some time. On October 15, 2021, Plaintiff alleges, without meaningful elaboration, that Defendants conducted an “illegal search” of her property:
Plaintiff states that some of the alleged violations also occurred on June 31, 2022, but it is not entirely clear what happened on that date. See Dkt No. 1 at 4. Plaintiff also states that a neighbor informed her that officers went to her property sometime during the week of August 29, 2022, but she does not allege any search or potential violation of her rights therefrom.
Officer Rosales and Breland barged into my house without authorization, or a court order, and performed an illegal search. Officer Rosales told me a “Stop work order” issued by the city's inspector gives him the right to come in to my house when he wanted at any time. ...
My rights were violated, officer Rosales and officer Breland lied to us, and they forced their way into my house without a court order. Violation of the fourth amendment - Illegal search, they illegally search my home.
Dkt. No. 1 at 4. At the time, Plaintiff, her husband, and several contractors were present at the property. Plaintiff also alleges that she made repeated requests under the Freedom of Information Act (“FOIA”) and the Texas Public Information Act (“TPIA”) to the City of Windcrest regarding the alleged search, but the City “refuses to disclose the camera footage, and the reports of all of these events . . . without any explanation.” Id.
Plaintiff restates the same basic allegations in her motion for default, namely that Officers Selena Breland and Jose Rosales “forced their way into my house without a court order, warrant, or invite,” and “performed an illegal search.” Dkt. No. 7 at 2. Plaintiff also alleges that the City and Chief of Police Darrell Volz “refuse to disclose the camera footage” or any reports despite her repeated public information requests. Id. Plaintiff additionally alleges harassment by police, consisting of visiting her property without permission, parking close to her house, and asking questions of neighbors and construction workers. Id. at 3.
Defendants filed two separate motions to dismiss those claims. See Dkt. Nos. 5, 6. Plaintiff never responded. The Court ordered Plaintiff to amend her complaint in response to the motions to dismiss, which the Court described as “meritorious.” Dkt. No. 14 at 1. The Court warned Plaintiff that “now is the time to amend the complaint to address the issues raised in the motions to dismiss,” as any future attempts to address arguments already raised in those motions “will be viewed with skepticism.” Id. at 3-4.
In her amended complaint, Plaintiff explicitly asserts only claims against Officer Breland. Dkt. No. 20 at 9-12. Officer Rosales is mentioned twice, and Chief Volz not even once. The amended complaint contains no mention of the previous FOIA and TPIA claims. And although Plaintiff complains that the city inspector was not properly licensed, see id. at 7-9, she does not add the inspector or the City as a party. Plaintiff expands upon a few factual allegations in her amended complaint: “After being asked ‘Do you have a court order?' Officer Rosales answered ‘I don't need one with that paper on the door' (he was referring to the court order).” Id. at 11. Elsewhere, Plaintiff alleges that the Officers “burst into private property, justifying the forced entry due to a [stop-work order].” Id. at 5-6. But no construction was being performed and nobody was living on the property at the time. And although Plaintiff repeatedly labels the Officers' intrusion onto her property as a “search,” Plaintiff alleges that the “search was not undertaken by law enforcement individuals to discover evidence of criminal wrongdoing,” and “there was no criminal investigation.” Id. at 10-11. Plaintiff asserts that the stop-work order was invalid for various reasons, and Defendants violated her rights because they “never checked on the validity and followed an illegal order to enforce an invalid and illegal [stop-work order].” Id. at 10. Plaintiff attaches a largely illegible copy of the stop-work order to her amended complaint. See id. at 20.
Standard of Review
On a motion to dismiss for failure to state a claim, courts are limited to the contents of the pleadings, including any attachments or documents referenced in the pleadings. See Fed. R. Civ. P. 12(b)(6); Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000) (holding documents attached to motion and referenced in complaint are properly considered). To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Fed.R.Civ.P. 8(a). Courts are not required to accept as true any “legal conclusions” or “conclusory statements” contained in the complaint. Iqbal, 556 U.S. at 678. And a whether a claim for relief is “plausible” poses a higher bar than “mere possibility,” which in turn “requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. In addition to accepting factual allegations as true, Courts must “draw all reasonable inferences in favor of the nonmoving party.” Kelson v. Clark, 1 F.4th 411, 416 (5th Cir. 2021) (quotation omitted). A motion for judgment on the pleadings under Rule 12(c) is treated in the same way as a motion to dismiss under Rule 12(b)(6). See Waller v. Hanlon, 922 F.3d 590, 599 (5th Cir. 2019).
Analysis
A. Plaintiff Has Abandoned Her FOIA, TPIA, and Official-Capacity Claims.
Because Plaintiff is proceeding pro se, the Court liberally construes her original complaint as asserting § 1983 claims against all three named Defendants in both their individual and official capacities. Plaintiff also explicitly brought claims under FOIA and the TPIA. But Plaintiff's amended complaint, Dkt. No. 20, submitted in response to Defendants' motions to dismiss, Dkt. Nos. 5, 6, only addresses claims against Officer Breland and perhaps Officer Rosales, particularly in the context of qualified immunity. The Court construes these omissions as reflecting Plaintiff's intent to abandon all but the § 1983 individual-capacity claims against the two Officers. Nonetheless, the Court explains below why Plaintiff's abandoned claims also would fail on the merits even if they weren't abandoned.
1. Plaintiff cannot assert FOIA violations against municipal police officers. FOIA only applies to federal agencies, not local governments. See 5 U.S.C. §§ 551(1), 552(f)(1) (defining “agency”); Wells v. State Att'y Gens. of La., 469 Fed. App'x 308, 309 (5th Cir. 2012) (explaining that FOIA only applies “to documents under the control of federal agencies”). Defendants stated as much in their original motions to dismiss. See Dkt. No. 6 at 3. Accordingly, even if Plaintiff had reasserted FOIA claims in her amended complaint, FOIA does not apply to municipalities or municipal officers, and those claims must fail.
2. Plaintiff cannot file TPIA claims in federal court. The TPIA provides a private right of enforcement against any “governmental body” that refuses a public records request. Tex. Gov't Code § 552.321(a). Any lawsuit to enforce the TPIA “must be filed in a district court for the county in which the main offices of the governmental body are located.” Id. § 552.321(b). Federal courts in Texas have uniformly interpreted this language “to require plaintiffs to file suit in the appropriate state court in the first instance.” Post Hole Ventures, LLC v. City of Kerrville, No. SA-21-CV-00980-XR, 2022 WL 11455956, at *7 (W.D. Tex. Oct. 19, 2022) (emphasis added) (collecting cases). Defendants previously argued that federal courts lack jurisdiction over TPIA claims and Defendants are not the proper custodians of public records. See Dkt. No. 6 at 4. Indeed, Plaintiff's failure to bring her TPIA claims in state court is fatal to the claims. Furthermore, Plaintiff attaches to her amended complaint responses to two other TPIA requests. Each appears with the City's letterhead and is signed by the City Secretary. See Dkt. No. 20 at 27-28. Plaintiff thus should have been aware that the City is the only governmental body against whom she may assert TPIA claims. Accordingly, Plaintiff's TPIA claims must be dismissed regardless.
3. Plaintiff fails to assert any claims against Chief Volz. “Section 1983 does not create supervisory or respondeat superior liability.” Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002). Plaintiff's original complaint contains no factual allegations pertaining to Chief Volz. See Dkt. No. 1. Only in the relief section does Plaintiff explain that she requests the Court to punish “the Chief of police, for authorizing an illegal search.” Id. at 5. Plaintiff's motion for default also mentions Chief Volz, arguing that: “As their supervisor Chief Volz condoned [the officers'] actions, allowed the process to take place, and knowingly and willfully allowed his officers to break the law.” Dkt. No. 7 at 2. But aside from such conclusory assertions, which courts must disregard under Iqbal and Twombly, Plaintiff has alleged no personal involvement by Chief Volz. Defendants sought dismissal of all claims against Chief Volz on those grounds. See Dkt. No. 5 at 7-8. And other than the case caption, Plaintiff's amended complaint contains no mention of Chief Volz. Defendants thus renew their motion to dismiss on those grounds. See Dkt. No. 25 at 10. Plaintiff cannot assert claims under § 1983 for supervisor liability. And because Plaintiff has failed to include any factual allegations against Chief Volz, those claims have been abandoned.
4. Plaintiff does not assert any official-capacity or municipal-liability claims against Defendants. Local governments cannot be sued for constitutional violations caused by employees unless the injury results from an official “policy or custom.” Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). A Monell claim thus contains three elements: “(1) a policymaker; (2) an official policy; and (3) a violation of a constitutional right whose ‘moving force' is the policy or custom.” Alvarez v. City of Brownsville, 904 F.3d 382, 389 (5th Cir. 2018). Claims against municipal officers in their official capacity are indistinguishable from claims against the municipality itself. See Harmon v. Dallas Cnty., 927 F.3d 884, 891 (5th Cir. 2019), as revised (July 9, 2019); Hafer v. Melo, 502 U.S. 21, 25 (1991).
Plaintiff complains at length about the City's stop-work order. Despite baselessly asserting that the city inspector is unqualified and somehow municipal codes and ordinances do not apply to her, Plaintiff does not appeal or challenge that order. Neither the City of Windcrest nor the inspector are named as Defendants in this action. The Court attempted to explain this shortcoming previously. Plaintiff elected to ignore those instructions. Indeed, in a subsequent advisory, Plaintiff confirms an intent to forego claims against the City: “At no point did Plaintiff make the city of Windcrest or its inspector part of this case.” Dkt. No. 26 at 1. Plaintiff has thus waived any challenge to the stop-work order she might have had. Nor are any of Plaintiff's arguments on the inspector's qualifications meritorious.
Plaintiff also does not explicitly bring any official-capacity claims against Defendants. And although the Court liberally construes her pro se complaint as though Chief Volz is identified as a policymaker, Plaintiff alleges no official policy and offers no explanation connecting any potential policy to the alleged violations. Plaintiff thus fails to state any claims for municipal liability under Monell. The only remaining claims at this juncture, therefore, are those against Officers Breland and Rosales in their individual capacities, which are the subject of Defendants' renewed motion to dismiss.
B. Plaintiff's Remaining Individual-Capacity Claims Must Be Dismissed.
Defendants seek dismissal under Rules 12(b)(6) and 12(c) for failure to state a claim and for qualified immunity. See Dkt. No. 25. Plaintiff never directly responded to Defendants' motion to dismiss. Nonetheless, Plaintiff filed several documents in the meantime, see Dkt. Nos. 26, 27, 28, 29, which the Court has reviewed for any arguments on the merits of her claims. As explained below, dismissal is appropriate for multiple reasons.
1. Plaintiff's amended complaint fails to satisfy basic pleading standards, much less the heightened pleading standards for qualified-immunity cases. Plaintiff appears to assert § 1983 claims against Officers Breland and Rosales for an unlawful search in violation of the Fourth Amendment. See Dkt. No. 20. But as noted above, Plaintiff's pleadings, including her amended complaint, contain few factual allegations, and certainly not enough to even “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Courts are instructed to disregard mere “labels and conclusions,” and any “legal conclusion couched as a factual allegation” is not accepted as true on a motion to dismiss. Id. (quotation omitted). Moreover, individual-capacity suits against government officials are subject to a somewhat heightened pleading standard. See Arnold v. Williams, 979 F.3d 262, 267 (5th Cir. 2020) (explaining that “the same Rule 8 pleading standard” applies, but “a plaintiff seeking to overcome qualified immunity must plead specific facts” to defeat that affirmative defense). Here, Plaintiff fails to describe the alleged search or any of the events with sufficient detail for the Court to discern what happened. Aside from the conclusory allegation that the Officers conducted “an illegal search,” all Plaintiff alleges is that Officers Breland and Rosales entered her property while contractors were present. The Officers then told Plaintiff that the stop-work order allows them to enter her property without a court order. Plaintiff fails to state any plausible claim for relief.
2. Even assuming Plaintiff's pleadings satisfy Rule 8(a), Defendants are entitled to qualified immunity. Officers performing discretionary functions in furtherance of their duties are shielded from liability for civil damages under the doctrine of qualified immunity. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This doctrine “is an immunity from suit rather than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Courts employ a two-step inquiry to determine whether a claim is barred by qualified immunity: (1) whether the facts alleged establish the violation of a constitutional right under current law, and (2) whether that right was “clearly established” at the time. Pearson v. Callahan, 555 U.S. 223, 232 (2009). A right is “clearly established” if binding case law sufficiently places the “constitutional question beyond debate” when framed narrowly “in light of the specific context of the case.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (quotations omitted). The plaintiff bears the “heavy” burden on this showing. Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir. 2019).
The Court previously explained this framework and the obligation to identify a “clearly established” right. See Dkt. No. 14. Plaintiff then argues in her amended complaint that “[t]here was no clearly established law to justify the officers' actions considering they enforced a city ordinance.” Dkt. No. 20 at 5. Plaintiff misstates and likely misapprehends the standard for qualified immunity. Plaintiff bears the burden to identify a clearly established right, and Plaintiff effectively concedes there is none. Defendants, understandably, seek summary judgment on those grounds. The Court agrees that no Supreme Court or Fifth Circuit cases could be found clearly establishing that a stop-work order, issued by a municipal building inspector, does not permit officers to enter the premises of an unoccupied house under construction to enforce code violations in plain view. Qualified immunity is thus proper as Plaintiff fails to establish that Defendants violated any clearly established right.
3. Plaintiff's factual allegations do not support the legal conclusion that a Fourth Amendment “search” ever occurred. The Supreme Court has explained that a “search” for purposes of the Fourth Amendment means an invasion of privacy alongside “an attempt to find something or to obtain information.” United States v. Jones, 565 U.S. 400, 408 n.5 (2012).
In other words, an officer trespassing onto private property, even a house, “is not alone a search unless it is done to obtain information; and the obtaining of information is not alone a search unless it is achieved by such a trespass or invasion of privacy.” Id.; see also E.R. v. Jasso, 573 F.Supp.3d 1117, 1131-35 (W.D. Tex. 2021) (applying “common-law trespassory test” to find search had occurred), aff'd, No. 22-50017, 2022 WL 4103621 (5th Cir. Sept. 8, 2022); cf. Artes-Roy v. City of Aspen, 31 F.3d 958, 962 (10th Cir. 1994) (finding no search occurred where building inspector entered house to enforce a stop-work order).
Despite repeatedly labeling the intrusion as an “illegal search,” Plaintiff disclaims that the Officers ever searched anything. See Dkt. No. 20 at 10 (alleging that the Officers made no attempts to “discover evidence of criminal wrongdoing”). The only facts alleged are that Officers Breland and Rosales entered Plaintiff's property without permission. See id. (“Defendants were not entitled to enter my property without a court order.”). In other words, Plaintiff attempts to state a simple claim for trespass. Although the Fifth Circuit has not decided the issue, other courts have concluded that § 1983 does not encompass common-law claims for trespass. See Jones v. Gorman, No. 3:22-CV-1875-C (BT), 2023 WL 2976561, at *3 (N.D. Tex. Mar. 21, 2023) (“[T]respass to land is merely a common law tort without constitutional ramifications.”), report and recommendation adopted, No. 3:22-CV-1875-C, 2023 WL 2975167 (N.D. Tex. Apr. 17, 2023); Andree v. Ashland Cnty., 818 F.2d 1306, 1315 (7th Cir. 1987) (reasoning that entry on property without permission is not a constitutional violation). If Defendants never conducted a search or sought to uncover any further statutory or code violations, then Plaintiff has no claim for a Fourth Amendment violation. And because Plaintiff has no recourse under § 1983 for the tort of trespass to property, Plaintiff fails to state a claim for which relief can be granted.
It is also unclear whether the Fourth Amendment covers an unoccupied and unfinished residential building. Whereas the Fourth Amendment specifically protects dwelling “houses” from unreasonable searches, those protections do not extend to “open fields,” for which there can be no “reasonable expectations of privacy.” Oliver v. United States, 466 U.S. 170, 180 (1984); see also United States v. Dunn, 480 U.S. 294, 301-04 (1987) (indicating that barn 60 yards from dwelling was not protected under the Fourth Amendment). At least one court applying Oliver has concluded that an uninhabited residential property under construction was not a “dwelling” and therefore fell under the “open fields” doctrine. Morse v. State, 655 S.E.2d 217, 220 (Ga.App. 2007). Defendants thus argue that Plaintiff's failure to distinguish between her “property” and her “house”-which was under construction and vacant-requires dismissal. The Court agrees. Plaintiff does not provide a detailed account of the events, or even a description of the structure as it existed at the time. There is no indication whether there was even a house frame erected or any walls in place. Cf. Dkt. No. 1 at 5 (demanding relief for having to “tear down all the walls” and “buy all the new material to frame the walls in the house”). The Court need not determine whether Plaintiff had a reasonable expectation of privacy in her property at the time. But that unanswered question further supports Defendants' qualified immunity arguments. Dismissal is thus appropriate for several reasons.
C. Further Leave to Amend Should Be Denied.
The Court next addresses the question of whether dismissal should be with or without prejudice. “Generally, a district court errs in dismissing a pro se complaint for failure to state a claim under Rule 12(b)(6) without giving the plaintiff an opportunity to amend.” Baxrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (per curiam). However, “[w]hen a plaintiff is given an opportunity to amend a complaint that fails to state a claim upon which relief can be granted, but refuses to do so, then the district court is justified in dismissing the complaint with prejudice.” Rodriguez v. United States, 66 F.3d 95, 98 (5th Cir. 1995). Plaintiff has already been afforded an opportunity to amend her complaint. See Dkt. Nos. 14, 20. This Court even took pains to point out additional shortcomings in Plaintiff's amended complaint when mooting Defendants' original motions to dismiss. See Dkt. No. 22. In response, Plaintiff confirmed that she had actual knowledge of the motions to dismiss but would refuse to address the arguments raised therein as the motions were allegedly improperly served. See Dkt. No. 26. But the Court warned Plaintiff that it would countenance no further disputes over service of mailed documents, and Plaintiff was “presumed aware of all papers filed on the docket, and the Court will enforce filing deadlines accordingly.” Dkt. No. 22 at 2. Plaintiff's deadline to respond to Defendants' motion to dismiss was February 17, 2023. Out of an abundance of caution, the Court waited three more months for a response.
Plaintiff has repeatedly stated that she will not comply with court orders and court rules. See Dkt. Nos. 26, 27. Plaintiff apparently refuses to accept mail, both from Defendants and from the Court, based on immaterial labeling discrepancies. See Dkt. No. 9. And although Plaintiff has filed many nonsensical motions and advisories in this case, Plaintiff has never attempted to respond to any of Defendants' motions to dismiss. This evinces not only a failure to prosecute but also an implicit acknowledgment of the frivolousness of her claims.
Plaintiff has likely pleaded her best case, which at most amounts to trespass. Although no scheduling order is yet in place, the deadline for amending pleadings, as proposed in the parties' agreed scheduling recommendations, Dkt. No. 18, was February 13, 2023. Rather than seek leave to further amend on that date, Plaintiff filed an objection to the order referring this case to a U.S. Magistrate Judge, Dkt. No. 27, and a self-styled response to the Court's Order mooting the earlier motions to dismiss. See Dkt. No. 26. The Court construes that response, wherein Plaintiff reiterates that she intentionally did not add the City or the inspector as parties to this case, as confirming that no further amendment is desired. Accordingly, dismissal of all claims should be with prejudice.
Conclusion and Recommendation
For the reasons discussed above, it is recommended that Defendants' Motion to Dismiss, Dkt. No. 25, be GRANTED, and this case should be DISMISSED WITH PREJUDICE.
Having considered and acted upon all matters for which this case was referred, it is ORDERED that this case is RETURNED to the District Court for all purposes.
Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy by certified mail, return receipt requested, to those not registered. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Objections, responses, and replies must comply with the same page limits as other filings, unless otherwise excused by the district court's standing orders. See Rule CV-7. The objecting party shall file the objections with the clerk of the court, and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to timely file written objections to the proposed findings, conclusions, and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
IT IS SO ORDERED.