Lewis v. Ellis County et al

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
LINDA LEWIS, §
§
Plaintiff, §
§
V. § No. 3:25-cv-1221-E-BN
§
ELLIS COUNTY, ET AL., §
§
Defendants. §
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Plaintiff Linda Lewis filed a pro se complaint under 42 U.S.C. § 1983 against
Ellis County, the Waxahachie Police Department, and unidentified individuals. See
Dkt. No. 3. And United States District Judge Ada Brown referred Lewis’s lawsuit to
the undersigned United States magistrate judge for pretrial management under 28
U.S.C. § 636(b) and a standing order of reference.
Lewis paid the statutory filing fee and, by doing so, undertook the obligation
to (1) properly serve each defendant with a summons and the complaint in compliance
with Federal Rule of Civil Procedure 4 or (2) obtain a waiver of service from each
defendant. See FED. R. CIV. P. 4(j) (setting forth procedures for serving state and local
governments); FED. R. CIV. P. 4(e) (setting forth procedures for serving individuals);
see also FED. R. CIV. P. 4(d) (procedures for requesting that certain non-governmental
defendants waive service); but see Moore v. Hosemann, 591 F.3d 741, 746-47 (5th Cir.
2009) (state official sued in official capacity not subject to “mandatory waiver
obligations” of Rule 4(d)).
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Lewis filed documents purporting to be proofs of service for Ellis County and
the Waxahachie Police Department. See Dkt. Nos. 9, 10. But the documents indicate
that both were served on the same person despite the fact that the Waxahachie Police
Department is not part of Ellis County. See id. And the address provided by Lewis for
both summonses is the Ellis County Courthouse. See Dkt. No. 5.
Ellis County moved to dismiss the complaint. See Dkt. Nos. 11, 12. Lewis
responded. See Dkt. No. 14. And the County replied. See Dkt. No. 15.
Lewis has also filed a motion for an emergency hearing and a motion seeking
“a court order directing Ellis County and its officials to cease retaliation, harassment,
and interference with Plaintiff’s rights.” See Dkt. No. 19, 21. The undersigned
construes these motions as motions for injunctive relief. Ellis County responded. See
Dkt. No. 22. And Lewis replied. See Dkt. No. 23. Lewis also filed a notice of
supplemental facts and continuing violations with her motions for injunctive relief.
See Dkt. No. 20.
For the reasons and to the extent set out below, the undersigned recommends
that the Court grant the motion to dismiss the complaint against Ellis County.
Further, the undersigned recommends that the Court dismiss the claims against the
Waxahachie Police Department without prejudice under Federal Rules of Civil
Procedure 4(m) and 41(b) and dismiss the claims against the unnamed individual
defendants as frivolous. And the undersigned recommends denying the construed
motions for injunctive relief and any other pending motions for relief.
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I. Ellis County’s Motion to Dismiss Should Be Granted.
Legal Standards
Considering a motion under Rule 12(b)(6), the Court “accepts all well-pleaded
facts as true, viewing them in the light most favorable to the plaintiff.” In re Katrina
Canal Breaches Litig., 495 F.3d 191, 205-06 (5th Cir. 2007).
Even so, a plaintiff must plead “enough facts to state a claim to relief that is
plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and must
plead those facts with enough specificity “to raise a right to relief above the
speculative level,” id. at 555.
“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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); cf. Bryant v. Ditech
Fin., L.L.C., No. 23-10416, 2024 WL 890122, at *3 (5th Cir. Mar. 1, 2024) (“[J]ust as
plaintiffs cannot state a claim using speculation, defendants cannot defeat plausible
inferences using speculation.”).
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556
U.S. at 678.
So, “[w]here a complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between possibility and plausibility of
entitlement to relief.” Id. (cleaned up; quoting Twombly, 550 U.S. at 557); see, e.g.,
Parker v. Landry, 935 F.3d 9, 17 (1st Cir. 2019) (Where “a complaint reveals random
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puffs of smoke but nothing resembling real signs of fire, the plausibility standard is
not satisfied.”).
And, while Federal Rule of Civil Procedure 8(a)(2) does not mandate detailed
factual allegations, it does require that a plaintiff allege more than labels and
conclusions, and, so, while a court must accept a plaintiff’s factual allegations as true,
it is “not bound to accept as true a legal conclusion couched as a factual allegation.”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
Consequently, a threadbare or formulaic recitation of the elements of a cause
of action, supported by mere conclusory statements, will not suffice. See id.;
Armstrong v. Ashley, 60 F.4th 262, 269 (5th Cir. 2023) (“[T]he court does not ‘presume
true a number of categories of statements, including legal conclusions; mere labels;
threadbare recitals of the elements of a cause of action; conclusory statements; and
naked assertions devoid of further factual enhancement.’” (quoting Harmon v. City of
Arlington, Tex., 16 F.4th 1159, 1162-63 (5th Cir. 2021))).
And, so, “to survive a motion to dismiss” under Twombly and Iqbal, plaintiffs
must “plead facts sufficient to show” that the claims asserted have “substantive
plausibility” by stating “simply, concisely, and directly events” that they contend
entitle them to relief. Johnson v. City of Shelby, Miss., 574 U.S. 10, 12 (2014) (per
curiam) (citing FED. R. CIV. P. 8(a)(2)-(3), (d)(1), (e)).
Analysis
“Municipalities can be held liable for violating a person’s constitutional rights
under § 1983.” Sanchez v. Young Cnty., 956 F.3d 785, 791 (5th Cir. 2020) (“Sanchez
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II”) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978)).
And the general pleading standards set out above apply to such a claim against
a municipality. See Hutcheson v. Dall. Cnty., 994 F.3d 477, 482 (5th Cir. 2021) (“There
is no heightened pleading standard for § 1983 claims against municipalities. To
survive a motion to dismiss, the complaint need not contain detailed factual
allegations but still must state sufficient facts to establish a plausible claim on its
face.” (citing Littell v. Hous. Indep. Sch. Dist., 894 F.3d 616, 622 (5th Cir. 2018))).
But a county “cannot be held liable under § 1983 unless ‘execution of a
government’s policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy, inflicts the injury.’”
Martinez v. Nueces Cnty., 71 F.4th 385, 389 (5th Cir. 2023) (quoting Monell, 436 U.S.
at 694). A plaintiff may proceed on a Monell claim only by
identify[ing] “(1) an official policy (or custom), of which (2) a policy maker
can be charged with actual or constructive knowledge, and (3) a
constitutional violation whose moving force is that policy (or custom).”
Pineda v. City of Hous., 291 F.3d 325, 328 (5th Cir. 2002) (cleaned up).
Municipalities are not liable “on the theory of respondeat superior” and
are “almost never liable for an isolated unconstitutional act on the part
of an employee.” Peterson v. City of Fort Worth, 588 F.3d 838, 847 (5th
Cir. 2009).
Hutcheson, 994 F.3d at 482; see also Brown v. Tarrant Cnty., 985 F.3d 489, 497 & n.11
(5th Cir. 2021) (noting that where a plaintiff’s claim fails as to one prong, a court
“need not consider whether [his] claim also fails the other two Monell prongs” (citing
Zarnow v. City of Wichita Falls, 614 F.3d 161, 168-69 (5th Cir. 2010))).
“Official policy can arise in various forms. It usually exists in the form of
written policy statements, ordinances, or regulations, but may also arise in the form
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of a widespread practice that is ‘so common and well-settled as to constitute a custom
that fairly represents municipal policy.’” James v. Harris Cnty., 577 F.3d 612, 617
(5th Cir. 2009) (citations omitted).
And, in rare circumstances, “a single decision by a policymaker may …
constitute a policy for which a municipality may be liable,” where (1) the “decision
was made by a final policymaker, and (2) a plainly obvious consequence of the decision
is a constitutional violation.” Doe v. Englewood Indep. Sch. Dist., 964 F.3d 351, 366
(5th Cir. 2020) (cleaned up); see also Johnson v. Harris Cnty., 83 F.4th 941, 946 (5th
Cir. 2023) (“[A]n official policy includes the decisions of a government’s law-makers,
the acts of its policymaking officials, and practices so persistent and widespread as
to practically have the force of law.” (cleaned up)).
“To establish a custom, a plaintiff must demonstrate (and, at the pleading
stage, must plausibly plead) ‘a pattern of abuses that transcends the error made in a
single case.’” Pinedo v. City of Dall., 3:14-cv-958-D, 2015 WL 5021393, at *5 (N.D.
Tex. Aug. 25, 2015) (quoting Piotrowski v. City of Hous., 237 F.3d 567, 582 (5th Cir.
2001)). A pattern requires “sufficiently numerous incidents,” as opposed to “isolated
instances.” McConney v. City of Hous., 863 F.2d 1180, 1184 (5th Cir. 1989) (cleaned
up).
And allegations “limited to the events surrounding the plaintiff” cannot
constitute “an allegation of a de facto policy … by [a municipality],” Culbertson v.
Lykos, 790 F.3d 608, 629 (5th Cir. 2015); accord Hutcheson, 994 F.3d at 482, as such
allegations do “not plausibly allege any pattern of conduct – much less a pattern of
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similar violations,” Johnson, 83 F.4th at 947 (emphasis in original).
[Instead, a] plaintiff can establish a policy by pointing to similar
incidents that are sufficiently numerous and have occurred for so long
or so frequently that the course of conduct warrants the attribution to
the governing body of knowledge that the objectionable conduct is the
expected, accepted practice of city employees. That knowledge, coupled
with a failure to act, can show the existence of a municipal policy.
Robinson v. Midland Cnty., 80 F.4th 704, 710 (5th Cir. 2023) (cleaned up).
And, regardless of the theory of municipal liability, “[t]o proceed beyond the
pleading stage, a complaint’s ‘description of a policy or custom and its relationship to
the underlying constitutional violation ... cannot be conclusory; it must contain
specific facts.’” Peña v. City of Rio Grande City, 879 F.3d 613, 622 (5th Cir. 2018)
(citation and footnote omitted).
That is because “[t]he causal link ‘moving force’ requirement and the degree of
culpability ‘deliberate indifference’ requirement must not be diluted, for ‘where a
court fails to adhere to rigorous requirements of culpability and causation, municipal
liability collapses into respondeat superior liability.’” Alvarez v. City of Brownsville,
904 F.3d 382, 390 (5th Cir. 2018) (en banc) (quoting Snyder v. Trepagnier, 142 F.3d
791, 796 (5th Cir. 1998) (quoting Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520
U.S. 397, 415 (1997))).
Lewis does not identify any written policy of Ellis County that allegedly was
the moving force behind the constitutional violations she alleges. And she also does
not sufficiently plead a custom because many of Lewis’s allegations relate to actions
of Waxahachie police officers, not employees of Ellis County. And, with respect to the
allegations as to Ellis County judges in the complaint, she has not sufficiently pled a
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widespread pattern that goes beyond events surrounding her.
And, although Lewis attempts to add additional allegations and claims in her
response to Ellis County’s motion to dismiss, see Dkt. No. 14, those allegations and
claims are not part of the complaint. See Roebuck v. Dothan, 515 F. App’x 275, 280
(5th Cir. 2013) (“When deciding a Rule 12(b)(6) motion to dismiss, the district court
is limited to the allegations set forth in the complaint.” (citing Kennedy v. Chase
Manhattan Bank, 369 F.3d 833, 839 (5th Cir. 2004); Car Carriers, Inc. v. Ford Motor
Co., 745 F.2d 1101, 1107 (7th Cir. 1984) (explaining that “it is axiomatic that the
complaint may not be amended by the briefs in opposition to a motion to dismiss”))).
But, even if she had filed these new allegations in an amended complaint, the
new allegations also fail to allege a claim under Monell for the same reasons as the
claims in the complaint. And the same is true for the allegations in Lewis’s notice of
supplemental facts and continuing violations. See Dkt. No. 20.
And, so, the Section 1983 claim against Ellis County should be dismissed for
this reason alone. And, because Lewis fails to plausibly allege an official policy or
custom of Ellis County, the Court need not take up the remaining prongs of Monell.
See Brown, 985 F.3d at 497 & n.11; Zarnow, 614 F.3d at 168-69.
Lewis also briefly mentions a claim under Title VI in the heading with her
equal protection claim. See Dkt. No. 3 at 4. But she does not even conslusorily plead
the elements for a Title VI claim. The pleadings are not sufficient to state a Title VI
claim. Cf. Nat’l Ass’n of Gov’t Emps. v. City Pub. Serv. Bd. of San Antonio, 40 F.3d
698, 705-06 (5th Cir. 1994) (inferring that “district court did not believe Plaintiffs had
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asserted a claim under Title VI” where complaint contained only passing references
to Title VI claim and did not allege essential elements).
II. The Claims Against The Waxahachie Police Department Should Be
Dismissed Under Federal Rule Of Civil Procedure 4(m).
Federal Rule of Civil Procedure 4(m) authorizes a district court to, after
providing notice, dismiss a case sua sponte without prejudice for a plaintiff’s failure
to effectuate service on a defendant within 90 days of filing the complaint. See, e.g.,
Davis v. Bank of Am., NA, No. 3:12-cv-1036-M-BF, 2012 WL 4795591 (N.D. Tex. Oct.
9, 2012).
While “[a] pro se plaintiff is entitled to notice before a district court dismisses
an action, sua sponte, for failure to timely serve the defendants under Rule 4(m),”
Drgac v. Treon, No. H-07-4283, 2008 WL 4746984, at *1 (S.D. Tex. Oct. 27, 2008)
(citing Lindsey v. U.S. R.R. Ret. Bd., 101 F.3d 444, 446 (5th Cir. 1996)), “[a] plaintiff’s
pro se status and ignorance of the law do not constitute cause for his failure to effect
service in compliance with the rules,” id. (citing Kersh v. Derozier, 851 F.2d 1509,
1512 (5th Cir. 1988)).
That is, “a litigant’s pro se status does not excuse failure to effect proper
service,” Zellmar v. Ricks, No. 6:17cv386, 2021 WL 805154, at *2 (E.D. Tex. Feb. 2,
2021) (citing Sys. Signs Supplies v. U.S. Dep’t of Justice, 903 F.2d 1011, 1013 (5th
Cir. 1990)), rec. adopted, 2021 WL 796133 (E.D. Tex. Mar. 2, 2021), as “[t]he party
effecting service has the burden of showing the validity of service,” Walker v. Forte,
No. 5:19cv158, 2021 WL 6930957, at *1 (E.D. Tex. Nov. 9, 2021) (citing Sys. Signs
Supplies, 903 F.2d at 1013; Matter of Arbitration Between Trans Chem. Ltd. v. China
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Nat. Mach. Imp. & Exp. Corp., 978 F. Supp. 266, 298 (S.D. Tex. 1997), op. adopted,
161 F.3d 314 (5th Cir. 1998)), rec. adopted, 2022 WL 468031 (E.D. Tex. Feb. 15, 2022);
see also Savage v. Reliance Mortg. Corp., No. 6:17-cv-00053-RP-JCM, 2018 WL
4702535, at *3 (W.D. Tex. June 7, 2018) (“[T]he right of self-representation does not
exempt a party from compliance with the relevant rules of civil procedure.” (citing
Kersh, 851 F.2d at 1512)), rec. accepted, 2018 WL 4688785 (W.D. Tex. Aug. 27, 2018).
And “Rule 4 requires only that the court notify a claimant that dismissal is
impending for lack of timely service.” Roberts v. U.S. Dep’t of Army, 275 F.3d 42, 2001
WL 1223674, at *1 (5th Cir. Sept. 26, 2001) (per curiam) (citing FED. R. CIV. P. 4(m)).
The court need not also guide a plaintiff “on how to effect proper service.” Id.
Here, the Court provided Lewis notice and also directed her to the provisions
of Rule 4. See Dkt. No. 6. And Ellis County’s brief in support of its motion to dismiss
further informed Lewis that it was not the proper party to serve on behalf of the
Waxahachie Police Department. See Dkt. No. 12 at 1 n.1.1
The Waxahachie Police Department is not a servient agency or department of
Ellis County, so serving the summons and compliant on Ellis County was improper.
But despite the fact that Ellis County’s filings informed Lewis it was not the proper
party to serve more than two months before her deadline to effect service, Lewis has
not filed anything with the Court or otherwise taken steps to correct the error.
1 And Ellis County’s brief also correctly notes that the Waxahachie Police Department is
likely a non-jural entity not subject to suit. See Darby v. City of Pasadena, 939 F.2d 311,
313-14 (5th Cir. 1991) (servient agency or department cannot be sued unless it
“enjoy[s] a separate legal existence” because “true political entity has taken explicit
steps to grant the servient agency with jural authority”).
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But, affording some leniency, given her pro se status, the time to file objections
to this recommendation (explained below) provides Lewis the opportunity to show, in
writing, both (1) good cause for the failure to timely and properly effect service and
(2) good cause for the Court to extend the time for service.
III. The Claims Against the Unidentified Individuals Should Be Dismissed
And, as to Lewis’s general inclusion of “John and Jane Does,” the only
description or allegations provided are that they “are individual officers and/or
officials whose identities are currently unknown but who acted under color of law and
within the scope of their employment.” See Dkt. No. 3 at 3.
“Generally, Section 1983 claims must be asserted against identified persons,
rather than ‘John Doe’ defendants.” Gibson v. Gusman, No. 14-cv-2273, 2015 WL
5060854, at *3 (E.D. La. Aug. 18, 2015). “The federal rules make no provision for
joining fictitious or ‘John Doe’ defendants in an action under a federal statute.”
Staritz v. Valdez, No. 3:06-cv-1926-D, 2007 WL 1498285, at *2 (N.D. Tex. May 21,
2007); see also Francis v. Terrebonne Parish Sheriff's Office, No. 08-cv-4972, 2009 WL
4730707, at *3 (E.D. La. Dec. 9, 2009) (stating that “a § 1983 action must be filed
against an actual identified person”); Vollmer v. Bowles, No. 3:96-cv-81-D, 1997 WL
102476, at *2 (N.D. Tex. Feb. 28, 1997) (“Neither the Federal Rules of Civil Procedure
nor 42 U.S.C. § 1983 provides authority for joining fictitious defendants in this suit.
The rules make no provision for the naming of ‘Does' and later substituting a real
person’s name.”). And such unidentified defendants cannot be served until they are
able to be identified.
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So the claims against the unidentified John and Jane Doe Defendants should
be dismissed as frivolous.
But, affording some leniency, given her pro se status, the time to file objections
to this recommendation (explained below) provides Lewis the opportunity to identify
the unnamed defendants and seek leave to amend the complaint to assert claims and
specific allegations against identified defendants.
IV. The Court Should Deny Any Request for Injunctive Relief.
Temporary restraining orders and preliminary injunctions are “an
extraordinary and drastic remedy, not to be granted routinely, but only when the
movant, by a clear showing, carries the burden of persuasion.” White v. Carlucci, 862
F.2d 1209, 1211 (5th Cir. 1989) (internal quotation marks omitted). As “[a] TRO is
simply a highly accelerated and temporary form of preliminary injunctive relief,” “[t]o
obtain a temporary restraining order, an applicant must show entitlement to a
preliminary injunction.” Horner v. Am. Airlines, Inc., No. 3:17-cv-665-D, 2017 WL
978100, at *1 (N.D. Tex. Mar. 13, 2017) (cleaned up).
“To be entitled to a preliminary injunction, the applicant must show (1) a
substantial likelihood that he will prevail on the merits, (2) a substantial threat that
he will suffer irreparable injury if the injunction is not granted, (3) his threatened
injury outweighs the threatened harm to the party whom he seeks to enjoin, and (4)
granting the preliminary injunction will not disserve the public interest.” Bluefield
Water Ass’n, Inc. v. City of Starkville, Miss., 577 F.3d 250, 252-53 (5th Cir. 2009)
(internal quotation marks omitted). The United States Court of Appeals for the Fifth
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Circuit “has repeatedly cautioned that [such relief] should not be granted unless the
party seeking it has clearly carried the burden of persuasion on all four
requirements.” Voting for Am., Inc. v. Steen, 732 F.3d 382, 386 (5th Cir. 2013) (cleaned
up).
For all the reasons stated above, Lewis has not shown a substantial likelihood
of success on his claims, so the Court should deny her construed motions for injunctive
relief. See Bluefield Water Ass’n, 577 at 252-53.
Recommendation
The Court should grant Defendant Ellis County’s motion to dismiss and
dismiss Plaintiff Linda Lewis’s claims against Ellis County with prejudice. Further,
the Court should dismiss the claims against the Waxahachie Police Department
without prejudice under Federal Rules of Civil Procedure 4(m) and 41(b), dismiss all
claims against John and Jane Doe defendants as frivolous, and deny Lewis’s
construed motions for injunctive relief [Dkt. Nos. 19, 21] and any other pending
requests for relief.
A copy of these findings, conclusions, and recommendation shall be served on
all parties in the manner provided by law. Any party who objects to any part of these
findings, conclusions, and recommendation must file specific written objections
within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.
P. 72(b). In order to be specific, an objection must identify the specific finding or
recommendation to which objection is made, state the basis for the objection, and
specify the place in the magistrate judge’s findings, conclusions, and recommendation
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where the disputed determination is found. An objection that merely incorporates by
reference or refers to the briefing before the magistrate judge is not specific. Failure
to file specific written objections will bar the aggrieved party from appealing the
factual findings and legal conclusions of the magistrate judge that are accepted or
adopted by the district court, except upon grounds of plain error. See Douglass v.
United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).
DATED: January 12, 2026
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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