Duve v. Forrest et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
SUSAN ELIZABETH DUVE,
Plaintiff.
V.
WILLIAM CHARLES FORREST, et
al.,
Defendants.
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CIVIL ACTION NO. 3:26-cv-00158
MEMORANDUM AND RECOMMENDATION
On April 28, 2026, Plaintiff Susan Elizabeth Duve instituted this civil rights
action against 108 defendants. One of those defendants is Shonda Hortness. On May
28, 2026, Hortness filed several motions before she was served with process. See Dkts.
21, 22. I issued an order denying those motions and cautioning Hortness to “consider
whether it is necessary to file any motions” given that she had not been served. Dkt.
23 at 2. Despite my order of caution and despite the absence of any proof of service in
the record, Hortness filed an answer, a motion for appointment of counsel, and an
application to proceed in forma pauperis on July 28, 2026. See Dkts. 51, 52. Hortness
is apparently determined to litigate this case as a defendant, even though it may never
be necessary to do so. 1
Having reviewed the pleadings, I recommend that the court sua sponte dismiss
Duve’s claims against Hortness because Duve fails to state a claim upon which relief
1 Hortness states that she “is submitting all documents at this time because she is
scheduled to undergo a major surgical procedure that will require two days to complete,
followed by an uncertain recovery period. Because this medical circumstance will likely
extend beyond the 21-day period for responding, [she] wishes to ensure that all necessary
documents are filed in a timely manner and that no deadlines are inadvertently missed
while she is recovering.” Dkt. 51 at 1–2. I appreciate Hortness’s concern for timeliness,
but the better course of action would have been to simply request an extension of time to
respond. Moreover, simply filing an answer does not stop this case. There will continue
to be deadlines, and without knowing when Hortness is scheduled to have surgery or how
long she will be in recovery, I cannot meaningfully extend time.
United States District Court
Southern District of Texas
ENTERED
August 03, 2026
Nathan Ochsner, Clerk
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may be granted and deny Hortness’s remaining requested relief as moot. I also
recommend that the court sua sponte dismiss: (1) Duve’s civil rights conspiracy claim
under 42 U.S.C. § 1985(3) as to every defendant because Duve fails to allege the race-
based animus required to state a § 1985(3) claim against any defendant; and
(2) Duve’s intentional infliction of emotional distress claim against all defendants
except William Charles Forrest for failure to allege extreme and outrageous conduct.
LEGAL STANDARD
Dismissal is warranted when a plaintiff fails “to state a claim upon which relief
can be granted.” Fed. R. Civ. P. 12(b)(6). “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)). “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
678. “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.” Id. (quoting Twombly, 	550 	U.S. 	at 	556). 	Conversely, 	“when 	the
allegations in a complaint, however true, could not raise a claim of entitlement to
relief, this basic deficiency should be exposed at the point of minimum expenditure of
time and money by the parties and the court.” Twombly, 550 U.S. at 558 (cleaned up).
When determining whether a plaintiff has stated a claim, I accept “all well-
pleaded facts as true and view[] those facts in the light most favorable to the
plaintiff.” Cummings v. Premier Rehab Keller, P.L.L.C., 948 F.3d 673, 675 (5th Cir.
2020) (quotation omitted). I “do not, however, accept as true legal conclusions,
conclusory 	statements, 	or 	naked 	assertions 	devoid 	of 	further 	factual
enhancement.” Benfield v. Magee, 945 F.3d 333, 336–37 (5th Cir. 2019) (cleaned up).
“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. The Fifth Circuit
“hold[s] pro se plaintiffs to a more lenient standard than lawyers when analyzing
complaints, but pro se plaintiffs must still plead factual allegations that raise the right
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to relief above the speculative level.” Chhim v. Univ. of Tex. at Austin, 836 F.3d 467,
469 (5th Cir. 2016); see also Twombly, 550 U.S. at 555.
“A district court may dismiss a complaint for failure to state a claim on its own
motion as long as the procedure is fair.” Miller v. Sam Houston State Univ., 986 F.3d
880, 888 (5th Cir. 2021) (quotation omitted). Fairness “requires both notice of the
court’s intention and an opportunity to respond.” Davoodi v. Austin Indep. Sch. Dist.,
755 F.3d 307, 310 (5th Cir. 2014) (quotation omitted). “This report is such notice.
[Duve’s] objections to this report, if any, are [her] opportunity to be heard.” Crosswell
v. Rodriguez, No. 4:22-cv-01105, 2023 WL 6206911, at *8 (S.D. Tex. Sept. 8, 2023),
report and recommendation adopted as modified sub nom. Crosswell v. Martinez,
No. 4:22-cv-01105, 2023 WL 6207754 (S.D. Tex. Sept. 25, 2023), aff’d, 120 F.4th 177
(5th Cir. 2024).
ANALYSIS2
Duve asserts the following claims against Hortness: (1) RICO conspiracy under
18 	U.S.C. 	§ 1962(d); 	(2) civil 	rights 	conspiracy 	under 	42 	U.S.C. 	§ 1985(3);
(3) conversion; 	(4) intentional 	infliction 	of 	emotional 	distress; 	and 	(5) civil
conspiracy. Duve also seeks injunctive relief against Hortness and other defendants in
the form of an order requiring “them to cease all contact, stalking, and harassment of
Plaintiff and her daughter.” Dkt. 1 at 66. I will address each claim in turn.
Before I address Duve’s claims against Hortness, the following are the principal
factual allegations against Hortness:
17. Defendant SHONDA HORTNESS is an individual, citizen of Texas,
and resident of Matagorda County, Texas. Hartness is [Duve’s ex-
husband’s] romantic partner and co-conspirator, who was installed in
the marital residence at 211 E. Austin Avenue, Palacios, Texas, within two
weeks of [Duve]’s flight for safety on September 11, 2022. Hartness has
engaged in a sustained campaign of harassment, stalking, and witness
intimidation against [Duve], including:
a. Sending taunting photographs of [Duve]’s personal and professional
belongings piled in garbage bags;
2 Although I have reviewed Hortness’s filings, I have not considered the factual assertions
in her answer or the exhibits attached to her answer in determining whether Duve states
a claim against Hortness.
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b. Occupying and converting [Duve]’s separate property;
c. Filing a false, frivolous complaint against [Duve] with the Texas Board
of Chiropractic Examiners in 2023, alleging failure to update a business
address while [Duve] was in hiding from domestic violence—a complaint
the Board ultimately dropped after nearly two years of investigation,
with no finding of wrongdoing;
d. Sending [Duve] a Facebook message in February 2025, apologizing
and attempting to “befriend” her shortly after [Duve] filed complaints
with 	the 	U.S. 	Department 	of 	Justice—an 	act 	constituting 	witness
tampering and consciousness of guilt.
. . . .
Upon information and belief, [Jammie McCartney] has colluded with
Forrest 	and 	Hortness 	to 	conceal 	assets 	and 	frustrate 	[Duve]’s
enforcement of the Final Decree.
Dkt. 1 at 13; see also id. at 40 (repeating the same allegations). With these allegations
in mind, I will examine whether Duve has stated a claim against Hortness.
A. 	RICO C ONSPIRACY
“RICO creates a civil cause of action for ‘[a]ny person injured in his business or
property by reason of a violation of [18 U.S.C. §] 1962.’” Brown v. Protective Life Ins.
Co., 353 F.3d 405, 407 (5th Cir. 2003) (quoting 18 U.S.C. § 1964(c)). Duve alleges that
Defendants violated 18 U.S.C. § 1962(d). See Dkt. 1 at 8. According to the Fifth Circuit
[Subsections 1962(a)–(d)] state, in their simplest terms, that:
(a) a person who has received income from a pattern of racketeering
activity cannot invest that income in an enterprise;
(b) a person cannot acquire or maintain an interest in an enterprise
through a pattern of racketeering;
(c) a person who is employed by or associated with an enterprise cannot
conduct the affairs of the enterprise through a pattern of racketeering
activity; and
(d) a person cannot conspire to violate subsections (a), (b), or (c).
Abraham v. Singh, 480 F.3d 351, 354–55 (5th Cir. 2007) (quotation omitted). To state
a claim for RICO conspiracy under § 1962(d), Duve must allege: “(1) that two or more
people agreed to commit a substantive RICO offense and (2) that [Hortness] knew of
and agreed to the overall objective of the RICO offense.” Chaney v. Dreyfus Serv.
Corp., 595 F.3d 219, 239 (5th Cir. 2010) (quotation omitted).
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Duve does not plausibly allege the second element as to Hortness: that
Hortness knew of and agreed to the overall objective of a substantive RICO offense.
Duve nominally recites that element: “Each Defendant, by their conduct alleged
herein, agreed to participate in the conduct of the enterprise’s affairs through a pattern
of racketeering activity.” Dkt. 1 at 57. And Duve alleges in conclusory fashion that
“each Defendant committed at least two predicate acts.” Id. But those are legal
conclusions that the court is not required to credit when evaluating whether a
complaint states a claim. See Iqbal, 556 U.S. at 678.
The only Hortness-specific allegations are that Hortness: (i) was Duve’s ex-
husband’s romantic partner and moved into the marital residence; (ii) sent Duve
photographs of Duve’s belongings in garbage bags; (iii) occupied or converted Duve’s
property; (iv) filed an allegedly false complaint with the chiropractic board; and
(v) later sent an apologetic Facebook message that Duve characterizes as witness
tampering. None of these allegations show that Hortness knew of the alleged RICO
objective or that she agreed with anyone to further that objective. At most, they allege
a romantic relationship with an alleged conspirator; hostile or tortious conduct
toward Duve; and participation in a discrete property dispute. Because Hortness’s
knowledge and agreement cannot be reasonably inferred from any of the factual
allegations in Duve’s complaint, Duve’s RICO conspiracy claim against Hortness
should be dismissed. See Aaes v. 4G Cos., No. CIV.A. H-11-975, 2012 WL 949040, at
*8 (S.D. Tex. Mar. 20, 2012) (dismissing civil RICO conspiracy claim because
“Plaintiffs have not advanced any claim that . . . Defendants knew of the existence of
a conspiracy . . . nor that they agreed to join in such acts. Nor do any of the facts in
their complaint support such a conclusion.”).
B. 	C IVIL R IGHTS C ONSPIRACY
Duve alleges that all Defendants, including Hortness, “conspired for the
purpose of depriving [Duve] of the equal protection of the laws and of equal privileges
and immunities under the laws” in violation of 42 U.S.C. § 1985(3). Dkt. 1 at 58. The
Fifth Circuit has explained the requirements to state a claim under § 1985(3):
A plaintiff must allege: (1) a conspiracy involving two or more persons;
(2) for the purpose of depriving, directly or indirectly, a person or class
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of persons of the equal protection of the laws; and (3) an act in
furtherance of the conspiracy; (4) which causes injury to a person or
property, or a deprivation of any right or 	privilege of a citizen of the
United States. In so doing, the plaintiff must show that the conspiracy
was motivated by a class-based animus.
Hilliard v. Ferguson, 30 F.3d 649, 652–53 (5th Cir. 1994) (emphasis added) (cleaned
up). The Fifth Circuit “require[s] an allegation of a race-based conspiracy” for a
§ 1985(3) claim to survive the motion-to-dismiss stage. Bryan v. City of Madison, 213
F.3d 267, 276 (5th Cir. 2000).
Here, Duve “has alleged no racial animus, so her claim fails” as to Hortness and
as to every other defendant. Horaist v. Doctor’s Hosp. of Opelousas, 255 F.3d 261, 271
(5th Cir. 2001). Because Duve has not alleged racial animus, I recommend that her
§ 1985(3) claim be dismissed outright as to every defendant.
C. 	C ONVERSION
Duve alleges that Hortness is liable for conversion of Duve’s “chiropractic
equipment and personal belongings left at the Palacios residence.” Dkt. 1 at 60–61.
“Texas law defines conversion as ‘the unauthorized and unlawful exercise of dominion
and control over property inconsistent with or to the exclusion of another’s superior
rights in that property.’” Nat’l Union Fire Ins. Co. of Pittsburgh v. Care Flight Air
Ambulance Serv., Inc., 18 F.3d 323, 325 (5th Cir. 1994) (quoting Vickery v. Tex.
Carpet Co., 792 S.W.2d 759, 762 (Tex. App.—Houston [14th Dist.] 1990, writ denied)).
To state a claim for conversion, Duve must allege:
(1) [she] owned, had legal possession of, or was entitled to possession of
the property; (2) [Hortness] assumed and exercised dominion and
control over the property in an unlawful and unauthorized manner, to
the exclusion of and inconsistent with [Duve]’s rights; and (3) [Hortness]
refused [Duve]’s demand for return of the property.
Hunt v. Baldwin, 68 S.W.3d 117, 131 (Tex. App.—Houston [14th Dist.] 2001, no pet.).
Duve’s conversion claim against Hortness fails as to every element. To start,
Duve does not identify the property in question beyond “chiropractic equipment and
personal belongings left at the Palacios residence.” Dkt. 1 at 60–61. Second, Duve does
not allege that she had legal possession of this property or that she was entitled to
possession of this property. Third, Duve fails to allege that Hortness assumed and
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exercised dominion and control over any property in an unlawful or unauthorized
manner. Finally, Duve alleges that her ex-husband “[r]etained [Duve]’s personal and
professional belongings as hostage, refusing to return them,” id. at 40, but Duve does
not allege that Hortness failed to return Duve’s belongings. Nor does Duve allege that
she demanded return of any specific property from Hortness as opposed to Duve’s ex-
husband. 3
D. 	I NTENTIONAL I NFLICTION OF E MOTIONAL D ISTRESS
Duve alleges that each of the 108 defendants that she has named, including
Hortness, have “acted with the intent to cause, or reckless disregard of the probability
of causing, [Duve] severe emotional distress.” Dkt. 1 at 61. Duve claims that she “has
suffered severe emotional distress, including PTSD, anxiety, depression, migraines,
insomnia, hypervigilance, and physical illness, as a direct
result of Defendants’ conduct.” Id.
To state a claim for intentional infliction of emotional distress, Duve must
allege that: “(1) the defendant acted intentionally or recklessly; (2) the conduct was
extreme and outrageous; (3) the actions of the defendant caused the plaintiff
emotional distress; and (4) the resulting emotional distress was severe.” GTE Sw., Inc.
v. Bruce, 998 S.W.2d 605, 611 (Tex. 1999).4 Conduct is extreme and outrageous only
where it is “so outrageous in character, and so extreme in degree, as to go beyond all
3 I do not credit Duve’s conclusory allegation that she “demanded return of her property;
Defendants refused.” Dkt. 1 at 61. Duve has sued 108 defendants, and she asserts
conversion 	against 	nine 	of 	them. 	These 	nine 	defendants 	have 	vastly 	different
relationships to Duve. In addition to Hortness, Duve asserts conversion against her ex-
husband, her ex-husband’s adult child, current and former tenants and their romantic
partners, and a property manager and his associate. See id. at 8, 12, 13, 20. Stating
generally that she demanded return and “Defendants” refused does not put Hortness on
notice of the conduct relevant to Duve’s conversion claim against Hortness. See Fed. R.
Civ. P. 8.
4 The law is the same in Arkansas and New York, states where Duve alleges that other
defendants have committed intentional infliction of emotional distress. See, e.g., Jones v.
Clinton, 990 F. Supp. 657, 676 (E.D. Ark. 1998) (“the conduct was extreme and
outrageous and utterly intolerable in a civilized community”); Sorrell v. County of
Nassau, 162 F. Supp. 3d 156, 172 (E.D.N.Y. 2016) (“extreme and outrageous conduct,
measured by the reasonable bounds of decency tolerated by society”).
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possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in
a civilized community.” Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994)
(quotation omitted). “Generally, insensitive or even rude behavior does not constitute
extreme 	and 	outrageous 	conduct. 	Similarly, 	mere 	insults, 	indignities, 	threats,
annoyances, petty oppressions, or other trivialities do not rise to the level of extreme
and outrageous conduct.” GTE Sw., Inc., 998 S.W.2d at 612 (cleaned up).
Here, Duve’s intentional infliction of emotional distress claim fails as to
Hortness—and every other defendant except Forrest—because all Duve alleges are
insults, indignities, threats, annoyances, petty oppressions, and other trivialities.
Simply put, there is nothing in Duve’s complaint that qualifies as extreme and
outrageous conduct. Accordingly, Duve’s intentional infliction of emotional distress
claim should be dismissed as to Hortness and as to every defendant except Forrest. 5
E. 	C IVIL C ONSPIRACY
Duve alleges that every defendant, including Hortness, is liable for civil
conspiracy because they each “agreed, by words or conduct, to accomplish an unlawful
purpose or a lawful purpose by unlawful means” and “committed overt acts in
furtherance of the conspiracy, as alleged throughout [Duve’s complaint].” Dkt. 1 at 62.
The court should sua sponte dismiss this claim against Hortness.
The Texas Supreme Court has clarified the five elements a plaintiff must allege
to state a claim for civil conspiracy under Texas law:
(1) a combination of two or more persons; (2) the persons seek to
accomplish an object or course of action; (3) the persons reach a meeting
of the minds on the object or course of action; (4) one or more unlawful,
overt acts are taken in pursuance of the object or course of action; and
(5) damages occur as a proximate result. An actionable civil conspiracy
requires specific intent to agree to accomplish something unlawful or to
accomplish 	something 	lawful 	by 	unlawful 	means. This 	inherently
requires a meeting of the minds on the object or course of action. Thus,
5 This is not to say that Duve has necessarily stated an intentional infliction of emotional
distress claim against Forrest. That question cannot be addressed until Forrest has been
served, appeared, and given the opportunity to brief that issue. But the conduct that Duve
alleges by Forrest is so different in quantity and character from her allegations against the
other defendants that it would be inappropriate for the court to consider sua sponte
dismissing Duve’s intentional infliction of emotional distress claim against Forrest.
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an actionable civil conspiracy exists only as to those parties who are
aware of the intended harm or proposed wrongful conduct at the outset
of the combination or agreement.
First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 222 (Tex.
2017) (emphasis added) (cleaned up).
Here, Duve’s state-law civil conspiracy claim against Hortness fails for the same
reason as her RICO conspiracy claim against Hortness: there is simply nothing in the
complaint from which I can plausibly infer that Hortness reached an agreement with
anyone, much less the specific intent of that agreement. Accordingly, Duve’s civil
conspiracy claim against Hortness should be dismissed.
F. 	I NJUNCTIVE R ELIEF
Duve seeks injunctive relief from this court against Hortness in the form of an
order that would require Hortness “to cease all contact, stalking, and harassment of
[Duve] and her [adult] daughter.” Dkt. 1 at 66. “Plaintiffs may only obtain injunctive
relief if they can demonstrate a likelihood of success on the merits of an underlying
claim.” Harris Cnty. Cmty. Dev. LLC v. JP Morgan Chase, Nat’l Ass’n, No. 4:24-cv-
3812, 2025 WL 1287751, at *4 (S.D. Tex. May 2, 2025). As discussed above, Duve
cannot state any claim against Hortness. Accordingly, Duve necessarily cannot obtain
injunctive relief against Hortness. 6 Thus, Duve’s request for injunctive relief against
Hortness should be dismissed.
CONCLUSION
For the reasons discussed above, I recommend that the court sua sponte
dismiss all Duve’s claims against Hortness for failure to state a claim upon which relief
may be granted and deny Hortness’s remaining requested relief as moot. I further
recommend that the court sua sponte dismiss: (1) Duve’s civil rights conspiracy claim
6 Even if Duve could seek injunctive relief against Hortness, Duve’s request for an
injunction against Hortness has no foundation in Duve’s complaint. By Duve’s own
admission, the last time that Hortness contacted Duve was in February 2025. It is difficult
to see any basis for enjoining Hortness from contacting Duve when Hortness has not
contacted Duve in more than a year. As for Duve’s adult daughter, Duve does not assert
any claims on her adult daughter’s behalf, and this court cannot enjoin conduct as to
Duve’s adult daughter because she is not a party before the court.
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against all defendants under § 1985(3) for failure to allege the race-based animus
required to state such a claim; and (2) Duve’s intentional infliction of emotional
distress claim against all defendants except Forrest for failure to allege extreme and
outrageous conduct.
The 	parties 	have 	14 	days 	from 	service 	of 	this 	Memorandum 	and
Recommendation to file written objections. See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ.
P. 72(b)(2). Failure to file timely objections will preclude appellate review of factual
findings and legal conclusions, except for plain error.
SIGNED this 	day of August 2026.
______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE
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