Algoe v. McNulty et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
RANDY G. ALGOE, 	§
Plaintiff, 	§
§
v. 	§ 	CIVIL ACTION NO. 1:25-cv-245
§
PATRICK MCNULTY, et al., 	§
Defendants. 	§
REPORT AND RECOMMENDATION
TO GRANT DEFENDANTS’ MOTION TO DISMISS
I. 	Synopsis
Plaintiff Randy G. Algoe’s1 claims against Defendants Patrick McNulty, City of
South Padre Island, and Does 1-50, stem from his application for a permit to operate food
trucks on his property. Defendants Patrick McNulty and City of South Padre Island argue
Plaintiff’s claims “consist primarily of vague, ambiguous, and conclusory statements
followed by formulaic recitations of legal concepts,” in their Motion to Dismiss for
failure to state a claim. The issue before the Court is whether Mr. Algoe raises a claim
against Mr. McNulty and the Island in their dealings with him and his requested permit.
Because the Court finds that Plaintiff fails to plead sufficient factual matters to state a
claim for which relief can be granted, it is recommended the Court grant the Defendant’s
Motion to Dismiss and dismiss Mr. Algoe’s complaint.
II. 	Jurisdiction and Venue
Plaintiff states this Court has jurisdiction, because Plaintiff “invoke[s] [the Court]
in its equitable and fiduciary capacity, not for trial at law but for the exercise of its
inherent jurisdiction in conscience.” Dkt. No. 8 at 1. The Court notes that when stating
1 Plaintiff proceeds without a legal representative. Plaintiffs without a legal representative are considered
pro se plaintiffs and receive the benefit of liberal construction of their claims. See Kaltenbach v.
Richards, 464 F.3d 524, 527 (5th Cir. 2006).
United States District Court
Southern District of Texas
ENTERED
July 13, 2026
Nathan Ochsner, Clerk
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his grounds for relief, Plaintiff states that the grounds arise “in the spirit of” Title 42 §
1983, Fourteenth Amendment, Title 42 § 1983(3), and one “by analogy to Monell.” Dkt.
No. 8 at 12. The Court also notes that Plaintiff initially filed this Complaint in this Court,
seeking to assert federal jurisdiction over his claims. See Dkt. No. 1. For these reasons,
the Court construes Plaintiff’s claims against the Mayor of the City of South Padre
Island, Texas as claims arising under federal statue 42 U.S.C. § 1983. Additionally, the
Court construes Plaintiff’s claims against the City of South Padre Island as a Monell
claim, or as a claim of municipal liability under 42 U.S.C. § 1983. Accordingly, the Court
finds it has federal subject matter jurisdiction over Plaintiff’s claims and can exercise
supplemental jurisdiction over the claims arising under the Texas Public Information Act
(TPIA). 28 U.S. Code § 1367(a).
Venue is proper in the United States District Court for the Southern District of
Texas, Brownsville Division, because a substantial portion of alleged events giving rise
to this lawsuit occurred in this geographical jurisdiction. See Dkt. No. 8 at 5. (stating the
property at issue is located in the City of South Padre Island, Texas, Cameron County,
Texas); 28 U.S.C. §1391(b)(2) (noting that a civil action may be brought in the judicial
district where “a substantial part of the events or omissions giving rise to the claim
occurred, or a substantial part of property that is the subject of the action is situated”).
III. 	Factual History
Plaintiff alleges that 	“[b]eginning in 2021, 	Respondent McNulty and others
retaliated against Complainant for exercising rights of free speech and petition.” Dkt. No.
8 at 3. Plaintiff states that the “controversy began when Complainant sought a Mobile
Food Unit (food-truck) property designation for his commercial lot at 1612 Padre Blvd.”
Dkt. No. 8 at 5. Plaintiff states that this property “was lawfully grandfathered, requiring
no new zoning action.” Dkt. No. 8 at 3. Plaintiff alleges that “Respondent McNulty and
aligned officials orchestrated continuing interference with Complainant’s property and
business rights by fabricating new pretexts.” Dkt. No. 8 at 6.
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Plaintiff identifies six “Grounds for Relief in Equity,” alleging that
• 	“Respondent, 	acting 	under 	color 	of 	public 	office, 	retaliated 	against
Complainant for protected speech and petition;”
• 	“Respondent deprived Complainant of liberty and property without due
process or equal protection;”
• 	conspiracy to interfere with Civil Rights;
• 	violation of open-records principles and official oppression because of
“Respondent’s refusal to release records after waiver of exemption, and the
false statement made to the Attorney General;”
• 	supervisory and municipal liability because “Respondent maintained and
enforced a policy or custom of retaliation and concealment;” and
• 	obstruction 	of 	free 	enterprise 	and 	retaliation 	because 	“Respondent
intentionally interfered with Complainant’s lawful business . . . [and]
deprived Complainant of the liberty interests protected by equity and by the
principles embodied in the Constitution and laws of the United State and of
Texas.”
Dkt. No. 8 at 12.
IV. 	Procedural History
On October 31, 2025, Plaintiff Randy G. Algoe, proceeding pro se, filed a
complaint against Defendants City of South Padre Island, Texas and Patrick McNulty,
individually and in his official capacity.2 Dkt. No. 1. Plaintiff filed a First Amended
Complaint on November 4, 2025. Dkt. No. 8. Plaintiff then filed proof of service upon
Patrick McNulty and the City of South Padre Island. Dkt. No. 13. According to Plaintiff’s
filing, they received his First Amended Petition on November 6, 2025. Id. On November
21, 2025, 15 days later, Defendants City of South Padre Island, Texas, and Patrick
2 Plaintiff states that “PATRICK McNULTY appears in his private and public capacities, acting as Mayor
of the City of South Padre Island, Texas.” Dkt. No. 8 at 2.
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McNulty, individually and in his official capacity, filed a “Motion for More Definite
Statement.” Dkt. No. 15. Subsequently, Plaintiff filed “Request for Clerk’s Entry of
Default Under F.R.C.P. 55(a). Dkt. No. 20.
On December 3, 2025, this Court entered an Order granting the Defendant’s
request requiring Plaintiff to provide a more definite statement. Dkt. No. 23. The Court
noted that pursuant to Federal Rule of Civil Procedure 12(e), a party may move for a
more definitive statement of a pleading but must do so before filing a responsive
pleading. Fed. R. Civ. Pro. 12(e). The Court found that Defendants properly filed their
Motion for a More Definite Statement, and the Court considered Defendants’ Motion for
a More Definite Statement (Dkt. No. 15) the equivalent of making an appearance in this
case. Dkt. No. 23.
Plaintiff filed “Objection to Magistrate Judge’s Order of December 3, 2025.” Dkt.
No. 26. Then, the Court issued “Amended Order Requiring Plaintiff to Provide a More
Definite Statement” (Dkt. No. 27). The Court again ordered Plaintiff to file a more
definite statement, instructed Plaintiff on what the statement should include, and granted
Plaintiff an extension to respond to Defendants’ Motion for a More Definite Statement.
Dkt. No. 27.
Next, the Court denied Plaintiffs “Request for Clerk’s Entry of Default Under
F.R.C.P. 55(a)”3. Dkt. No. 29. Subsequently, U.S. District Judge Fernando Rodriguez Jr.,
the U.S. District Judge assigned to this case, overruled as moot Plaintiff’s Objections
(Dkt. No. 26)4. Dkt. No. 31. Plaintiff did not comply with the Court’s deadline to submit
3 The Court also reminded Plaintiff of the deadline to file a more definite statement.
4 The District Judge’s order notes that “[t]he Magistrate Judge has since withdrawn the order that Algoe
objected to and issued an Amended Order (Doc. 27).” Dkt. No. 31.
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the More Definitive Statement5. For this reason, the Court ordered Defendants to respond
to Plaintiff’s Amended Complaint as is. Dkt. No. 39. Defendants filed a timely Motion to
Dismiss for Failure to State a Claim. Dkt. No. 44.
Plaintiff 	filed 	“Complainant’s 	Motion 	to 	Recognize 	Continuing 	Voidness 	of
Unauthorized Appearance, to Strike All Filings Submitted without Lawful Authority, and
for Related Relief.” Dkt. No. 45. The Court denied the motion, noting that the Court had
already recognized Defendants’ lawful appearance in the instant case. Dkt. No. 46. The
Court granted Plaintiff an extension of time to file a response to Defendants’ Motion to
Dismiss and reminded Plaintiff that failure to file a response would be taken as a showing
that the Motion to Dismiss is unopposed under the Local Rules of the Southern District of
Texas. Dkt. No. 46.
Plaintiff then filed “Complainant’s Notice of Non-Service of Respondents’ Motion
to Dismiss, Request for Extension of Time to Respond, and Request for Production of
Proof of Service.” Dkt. No. 48. Plaintiff stated that he had not been served with the
Motion to Dismiss for Failure to State a Claim filed by Defendants. Dkt. No. 48 at 1.
Plaintiff requested the Court extend the deadline for him to file a response to Defendants’
Motion to Dismiss. Id. at 3. The Court issued an order which in part directed the U.S.
District Clerk to mail a copy of Defendants’ Motion to Dismiss to Plaintiff. Dkt. No. 49.
The Court again granted Plaintiff an extension of time to file a response to Defendants’
Motion to Dismiss and reminded Plaintiff that failure to file a response would be taken as
a showing that the Motion to Dismiss is unopposed under the Local Rules of the Southern
District of Texas. Dkt. No. 49.
5 Plaintiff, instead, submitted two other filings. Plaintiff submitted a filing titled “Verified Challenge to
Authority to Appear and Notice of Jurisdictional Defect, Suspension of Deadlines, and Preservation of
Objection” (Dkt. No. 37) on December 18, 2025, but this filing is not a more definite statement. Plaintiff
also filed another document titled “Notice of Jurisdictional Non-Cure, Affirmation of Laches, and
Continuing Voidness of Respondents’ Filings for Want of Authority” (Dkt. No. 38) on January 12, 2026.
This filing was filed outside of the deadline to file a more definite statement set by the Court, and it is not
a more definite statement.
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In May 20266, Plaintiff Randy G. Algoe filed a document titled “Verified Motion
for Reassignment, Certification to the Chief Judge, or Other Appropriate Relief due to
Continuing Appearance-Of-Impartiality Concerns and Repeated Sue Sponte Procedural
Advancement 	of 	Respondents’ 	Litigation 	Posture.” 	Dkt. 	No. 	55. 	Considering 	his
requests for relief7, the Court construed Algoe’s motion as a Motion for Recusal. Dkt.
No. 57. The Court denied the Motion for Recusal, finding that Algoe met neither the
standards under 28 U.S.C. § 144 and 28 U.S.C. § 455, which generally govern recusal
motions. Dkt. No. 57.
In June 2026, Plaintiff filed “Ex Parte’ Sealed Record In-Chambers-Private-
Hearing Request and; Complainant’s Objection to Order Denying Reassignment and;
Renewed Motion for Assignment of Special Master or Other Article III Qualified Judicial
Officer Sitting in Exclusive Equity/Chancery - In Trust; Not an Administrator Acting
under Statutory 1938 Merged Concurrent Equity under TWEA – 50 U.S.C. App. 5(b) and
12 U.S.C. 95.” Dkt. No. 60.
The Court considers Defendant’s Motion to Dismiss. Because Plaintiff failed to
respond to Defendant’s Motion despite multiple extensions of time and warnings from
the Court, the Court takes Plaintiff’s failure to respond as a representation of no
opposition pursuant to Local Rule 7.4. See SDTX L. R. 7.4.
V. 	Standard of Review—Failure to State a Claim under FRCP 12(b)(6)
Dismissal under Federal Rule of Civil Procedure 12(b)(6) is appropriate when a
plaintiff fails to plead sufficient facts “to state a claim to relief that is plausible on its
face.” Ferguson v. Bank of New York Mellon Corp., 802 F.3d 777, 780 (5th Cir. 2015)
6 The Court ordered Plaintiff to respond to Defendant’s Motion to Dismiss (Dkt. No. 44) by no later than
May 21, 2026. See Dkt. No. 49. Plaintiff filed this Motion (Dkt. No. 55) as well as two other filings (Dkt.
Nos. 54, 56) but did not file a response to Defendant’s Motion to Dismiss.
7 Plaintiff sought in part to “[c]ertify” the purported “appearance-of-impartiality concerns to the Chief
Judge of the Southern District of Texas for review” or, alternatively, to “reassign this matter to another
judicial officer outside the present assignment chain.” Dkt. No. 55 at 5.
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(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). To determine whether to grant a dismissal pursuant to
12(b)(6), the court accepts as true “all well-pleaded facts” and view those facts “in the
light most favorable to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191,
205 (5th Cir. 2007) (quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit¸ 396
F.3d 464, 467 (5th Cir. 2004).
Significantly, “the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.
Ashcroft v. Iqbal, 556 U.S. at 678. Additionally, if “the well-pleaded facts do not permit
the court to infer more than the mere possibility of misconduct,” then dismissal is
appropriate. Id. at 679.
VI. 	Analysis
Defendants’ Motion to Dismiss for Failure to State a Claim seeks dismissal of all
of Plaintiff’s claims and argues Plaintiff “has not identified sufficient factual or legal
authority to support any of his claims.” Dkt. No. 44 at 12-13. For the following reasons,
the Court agrees that Plaintiff has failed to state a claim under the federal pleading
standard.
First, Plaintiff argues that he engaged in protected speech and presents a few facts
stating that he spoke in open meetings held by the City of South Padre Island. Dkt. No. 8
at 5-6. “As a general rule, the First Amendment prohibits . . . adverse government action
against an individual because of her exercise of First Amendment freedoms.” Colson v.
Grohman, 174 F.3d 498, 508 (5th Cir. 1999). The Fifth Circuit has stated the elements
needed “to establish a First Amendment retaliation claim” as follows:
(1) 	they 	were 	engaged 	in 	constitutionally 	protected 	activity, 	(2) 	the
defendants' actions caused them to suffer an injury that would chill a person
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of ordinary firmness from continuing to engage in that activity, and (3) the
defendants' 	adverse 	actions 	were 	substantially 	motivated 	against 	the
plaintiffs' exercise of constitutionally protected conduct.
Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002).
The Plaintiff complains that after he exercised his right of free speech and petition
over how his permit request for food trucks was handled, McNulty and the City of South
Padre Island retaliated against him. 	Dkt. 8 at 3. 	However, Plaintiff’s allegation that the
Defendants retaliated against him for protected speech is supported only by conclusory
statements, such as stating that “Ricco began a retaliatory campaign . . . [and] more
retaliatory acts and public slanders by Ricco and McNulty.” Dkt. No. 8 at 5. Additionally,
even taken as true, acts such as asking the police to remove Plaintiff from the meeting,
disputes over parking-stripes, or placing an election sign on his property, do not
themselves demonstrate retaliatory acts. Dkt. No. 8 at 6. 	Furthermore, while Plaintiff
articulates a threat relayed to him by a third party stating a member of the city council
“threatened” that “he [Complainant] better do whatever we tell him to do or he will never
get anything done in this city again,” this statement does not identify a constitutionally
protect activity Plaintiff engaged in which prompted this response. Dkt. No. 8 at 5. Even
with the benefit of liberally construing Plaintiff’s claims, Plaintiff does not provide
sufficient well-pleaded facts to support the elements of a first amendment retaliation
claim.
Second, Plaintiff argues the Defendants deprived him of liberty and property
without due process or equal protection. “In a section 1983 cause of action asserting a
due process violation, a plaintiff must first identify a life, liberty, or property interest
protected by the Fourteenth Amendment and then identify a state action that resulted in a
deprivation of that interest.” Blackburn v. City of Marshall, 42 F.3d 925, 935 (5th Cir.
1995). Plaintiff states only that he owns property and that a request to operate food trucks
was eventually denied. Plaintiff states that he complied with requests from the City of
South Padre Island but does not plead facts to show he was denied any process.
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Additionally, for Plaintiff “[t]o establish an equal protection claim, [Plaintiff] must first
show 	that 	‘two 	or 	more 	classifications 	of 	similarly 	situated 	persons 	were 	treated
differently’ under the statute.” Duarte v. City of Lewisville, Texas, 858 F.3d 348, 353 (5th
Cir. 2017) (quoting Gallegos–Hernandez v. United States, 688 F.3d 190, 195 (5th Cir.
2012)). Plaintiff fails to do so because he only presents conclusory allegations to the
court concerning the treatment of others by Defendants, and the Court need not accept
these statements as true.
Third, Plaintiff argues that the Defendants conspired to obstruct his rights and
conceal wrongdoing. However, to establish a claim of conspiracy to violate his civil
rights, Plaintiff must do so under 42 U.S.C. § 1985(3). “[T]o assert a claim under §
1985(3), a plaintiff must allege some class-based animus.” Burns-Toole v. Byrne, 11 F.3d
1270, 1276 (5th Cir. 1994). Most importantly, Plaintiff does not plead any facts alleging
class-based animus. In reading the complaint in the light most favorable to the Plaintiff,
the conspiracy allegation appears to be a claim that where he wanted his food trucks was
grandfathered property. Dkt. No. 8 at 6. The Plaintiff’s allegation that the City of South
Padre failed to recognize his grandfathered property does not plead the required class-
based animus. Considering this, Plaintiff cannot establish a claim of conspiracy to violate
his civil rights.
Fourth, 	Plaintiff 	argues 	the 	Defendants 	violated 	open-records 	principles 	and
official oppression. The Texas Public Information Act (TPIA) provides that “certain
categories of information are public information[.]” Tex. Gov’t. Code § 552.021. The
facts pleaded show that Plaintiff requested records on the Texas Public Information Act
and received at least some records.8 Dkt. No. 8 at 4. Plaintiff states that the copy he
received contains deleted portions. Id. Plaintiff alleges that this fact “show[s] willful
alteration of public records and even mail fraud and further evidence of concealment.” Id.
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Plaintiff’s allegations are only conclusory statements, which the Court does not need to
accept as true.
Fifth, Plaintiff claims supervisory and municipal liability based on a policy or
custom of retaliation and concealment. “Municipal liability under section 1983 requires
proof 	of 	three 	elements: 	a 	policymaker; 	an 	official 	policy; 	and 	a 	violation 	of
constitutional 	rights 	whose 	moving 	force 	is 	the 	policy 	or 	custom.” Brinsdon v.
McAllen Indep. Sch. Dist., 863 F.3d 338, 346 (5th Cir. 2017) (cleaned up). These
elements “are 	necessary 	to 	distinguish 	individual 	violations 	perpetrated 	by 	local
government 	employees 	from 	those 	that 	can 	be 	fairly 	identified 	as actions 	of 	the
government itself.” Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001).
Plaintiff’s statements alleging a policy or custom of retaliation and concealment
by Defendants are supported only by conclusory allegations. For instance, Plaintiff states
that after attending an open meeting there were “more retaliatory acts and public slanders
by Ricco and McNulty.” Dkt. No. 8 at 5. Because the Court does not need to accept these
conclusory statements as true, Plaintiff’s complaint fails to identify a custom or policy.
Sixth, Plaintiff repeats his retaliation claim, and the Court already found above
that Plaintiff did not plead sufficient well-pleaded facts to support this claim.
In conclusion, the Court finds plaintiff fails to establish any claim for which relief
can be granted.
VII. 	Recommendation
It is RECOMMENDED the Court (1) GRANT Defendants’ Motion to Dismiss
(Dkt. No. 44), (2) DISMISS Plaintiff’s action with prejudice, (3) DENY AS MOOT
Plaintiff’s Motion to Stay (Dkt. No. 54); and (4) DIRECT the Clerk of Court to close this
case.
8 Plaintiff also pleads that the Office of the Attorney General submitted a “15-Day Brief” after the
deadline required by Tex. Gov’t. Code § 552.301(b). This, alone, does not show official oppression. Dkt.
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VIII. 	Notice to the Parties
The parties have fourteen (14) days from the date of being served with a copy of
this Report and Recommendation in which to file written objections, if any, with the
United States District Judge assigned to the instant case. 28 U.S.C. § 636(b)(1). When
filing an objection, a party must object to specific facts or legal findings in this Report
and 	Recommendation. 	The 	District 	Judge 	is 	not 	required 	to 	consider 	frivolous,
conclusive, or general objections. Battle v. United States Parole Comm’n, 834 F.2d 419,
421 (5th Cir. 1987).
If any party fails to timely object to any factual or legal findings in this Report and
Recommendation, the District Judge is not required to conduct a de novo review of the
record before adopting these findings. If the District Judge chooses to adopt such findings
without conducting a de novo review of the record, the parties may not attack those
findings on appeal, except on the grounds of plain error. Alexander v. Verizon Wireless
Servs., L.L.C., 875 F.3d 243, 248 (5th Cir. 2017).
Signed on July 13, 2026.
__________________________
Karen Betancourt
United States Magistrate Judge
No. 8 at 4.
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