Pagan Perez et al v. ME Alpha, LLC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ALAN ISMAEL PAGAN PEREZ, et al.,
Plaintiffs,
v.
ME ALPHA I, LLC, et al.,
Defendants.
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§
§
§
§
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§
§
CIVIL ACTION NO. H-25-3178
MEMORANDUM AND OPINION
The plaintiffs, Alan Ismael Pagan Perez and Maricella Ana Benevente, contest their
eviction from their residence. (Docket Entry No. 20). The defendants—ME Alpha I, LLC, Harris
County, and Deryk Fields in his individual and official capacities—have moved to dismiss.
(Docket Entry Nos. 24, 25, 33, 34). The plaintiffs have also filed a motion for leave to file a second
amended complaint. (Docket Entry No. 37). Based on the pleadings, the motion, the record, and
the applicable law, the court grants the motions to dismiss and denies the motion for leave to file
a second amended complaint, because amendment would be futile. This case is dismissed, with
prejudice. The reasons are below.
I. 	Background
The first amended complaint, which is the operative pleading, alleges that the plaintiffs
own a home in Spring, Texas. 1 (Docket Entry No. 20 ¶ 6). On March 18, 2025, a judgment for
1 The same property that is the subject of this suit was also the subject of a suit before Judge Hittner. See
Case No. 4:24-cv-03051, Docket Entry No. 1-2 at 4. 	That case—brought by Benavente as the “Trust
Protector” for De Novo Dymante Express Trust—alleged, among other things, wrongful foreclosure of the
property. 	Judge Hittner granted the defendants’ motion to dismiss (to which Benavente had failed to
respond). Case No. 4:24-cv-03051, Docket Entry No. 7. Judge Hittner denied Benavente’s motion for
United States District Court
Southern District of Texas
ENTERED
May 26, 2026
Nathan Ochsner, Clerk
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possession was entered in the Harris County Civil Court at Law. (Id. ¶ 10). That court issued a
writ of possession on April 1, 2025. (Id. ¶ 11). The plaintiffs allege that under Texas Rule of Civil
Procedure 510.8(d)(2), the writ expired 60 days later, on May 31, 2025, and that no motion to
extend the writ was filed, heard, or granted. (Id. ¶ 11).
On June 13, 2025, the plaintiffs notified Deryk Fields, a deputy constable with Harris
County, that the writ of possession had expired. (Id. ¶¶ 8, 12). On June 17, 2025, Fields appeared
at the plaintiffs’ home with a locksmith crew and threatened arrest if they did not comply with his
demand that they leave the property. (Id. ¶ 13). Although the plaintiffs told Fields that the writ
had expired, Fields refused to provide a court order authorizing his actions. 	(Id. ¶ 14). 	Fields
directed the locksmith crew to attempt to remove the plaintiffs. (Id. ¶ 15).
The first amended complaint does not allege or even imply that the plaintiffs were actually
removed from their home on June 17, 2025, and the state court record confirms that they were not.
Because the plaintiffs’ complaint is based on the state court’s issuance of a writ of possession, and
the state court documents are referred to in the complaint and relied on by the plaintiffs, the court
may take judicial notice of the state court filings.2 Fields’s notes on the writ of possession included
in the state court docket state that, on June 17, 2025, he arrived at the property to execute the writ
reconsideration and her motion for abatement due to lack of proper service. 	Case No. 4:24-cv-03051,
Docket Entry Nos. 9, 12.
2 “[A] district court ‘may consider’ other ‘sources’ when deciding a Rule 12(b)(6) motion to dismiss, such
as ‘documents incorporated into the complaint by reference or integral to the claim, items subject to judicial
notice, matters of public record, orders, items appearing in the record of the case, and exhibits attached to
the complaint whose authenticity is unquestioned.’” Stiel v. Heritage Numismatic Auctions, Inc., 816 F.
App’x 888, 892 (5th Cir. 2020) (quoting Meyers v. Textron, Inc., 540 F. App’x 408, 409 (5th Cir. 2013).
The Fifth Circuit has “allowed a ‘district court to take judicial notice of the public records in . . . prior state
court proceedings.’” Id. (quoting Kahn v. Ripley, 772 F. App’x 141, 142 (5th Cir. 2019)). Because the
plaintiffs’ complaint is based on the state court proceedings and because the court may take judicial notice
of state court records, the court finds it appropriate to consider the state court record at this stage.
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of possession; that the “Defendant” advised him that the writ was set to expire; that he then spoke
with a Harris County attorney, who told him to stand down; and that he did not execute the writ
until July 11, 2025. See Harris County Civil Court, Case No. 1245224.3
On June 27, 2025, a state court judge held another hearing and signed an order dated July
2, 2026, issuing what the plaintiffs call a “second writ” of possession. (Docket Entry No. 20 ¶¶ 16,
17). The state court record shows that the state court did not issue a new writ but instead entered
an order after an automatic bankruptcy stay was lifted, directing the Harris County Constable to
execute the existing writ. See Harris County Civil Court, Case No. 1245224. The plaintiffs allege
that they were not notified of the hearing that preceded the issuance of the “new” writ. (Docket
Entry No. 20 ¶ 16). 	On July 8, 2025, the writ and 24-hour yellow notice were posted on the
plaintiffs’ door. 	(Id. ¶ 16). 	Although the amended complaint does not allege that the plaintiffs
were removed from their home after the notice was posted, the proposed second amended
complaint clarifies that the plaintiffs were removed on July 11, 2025. 	(Docket Entry No. 37-1
¶ 17). The state court record is consistent. The proposed second amended complaint clarifies that
the property was transferred or sold to a third party on February 10, 2026. (Id. ¶ 20).
On July 9, 2025, the plaintiffs filed this federal lawsuit. (Docket Entry No. 1). The court
denied the plaintiffs’ request for a temporary restraining order, first because the plaintiffs had
misstated the law—Texas Rule of Civil Procedure 510.8(d)(2) states that a writ of possession may
not be executed more than 90 days after the judgment for possession is signed, not 60 days—and
because the plaintiffs had failed to identify any details about the second writ. (Docket Entry No.
8). On November 18, 2026, the plaintiffs filed their first amended complaint, which remains the
3 The state court docket does not sort by docket number, but Fields’ notes are attached to the document
entitled “Writ of Property Possession Returned” filed on July 16, 2025.
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operative complaint. 	(Docket Entry No. 20). 	The defendants—Fields, Harris County, and ME
Alpha I—all filed motions to dismiss. (Docket Entry Nos. 24, 25, 33).
Months later, the plaintiffs filed a motion for leave to file a second amended complaint.
(Docket Entry No. 37). The only notable changes in the proposed second amended complaint are
additional factual allegations about the seizure and sale of the plaintiffs’ home. (Docket Entry No.
37-1). 	No new causes of action were added and no other factual allegations were materially
changed.
The first amended complaint asserts a single cause of action under 42 U.S.C. § 1983. The
plaintiffs allege that all three defendants deprived them of their protected property rights without
due process of law. 	(Docket Entry No. 20 ¶¶ 31–36). 	The plaintiffs’ briefing, however,
characterizes their claims both as procedural due process violations and Fourth Amendment
claims.4 (Docket Entry No. 29 at 5–6). They request a declaratory judgment that the defendants
violated their Fourteenth Amendment rights and seek compensatory damages, punitive damages,
and costs and attorney’s fees. 	(Docket Entry No. 20 at 9). 	In response, the defendants seek
dismissal and oppose the motion for leave to file a second amended complaint. 	(Docket Entry
Nos. 24, 25, 33, 34, 39).
II. 	The Legal Standard
Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which relief can be
granted.” 	FED. R. CIV. P. 12(b)(6). 	Rule 12(b)(6) must be read in conjunction with Rule 8(a),
which requires “a short and plain statement of the claim showing that the pleader is entitled to
4 As the plaintiffs frame the issues in response to the Fields’s motion to dismiss, they allege a procedural
due process claim for failure to issue notice and a hold hearing before issuing the new writ, in violation of
Mathews v. Eldrige, 424 U.S. 319, 333 (1976), and a Fourth Amendment violation based on Fields’s
unlawful seizure of their property and persons and use of excessive force. (Docket Entry No. 29 at 5–8).
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relief.” FED. R. CIV. P. 8(a)(2). “[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)). Rule 8 “does not require
‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-
harmed-me accusation.” 	Id. at 678 (quoting Twombly, 550 U.S. 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.” Id. “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).
“A complaint ‘does not need detailed factual allegations,’ but the facts alleged ‘must be
enough to raise a right to relief above the speculative level.’” Cicalese v. Univ. Tex. Med. Branch,
924 F.3d 762, 765 (5th Cir. 2019) (quoting Twombly, 550 U.S. at 555). “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.” 	Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (quotation marks
omitted, alterations adopted) (quoting Twombly, 550 U.S. at 558).
A court reviewing a motion to dismiss under Rule 12(b)(6) may consider “(1) the facts set
forth in the complaint, (2) documents attached to the complaint, and (3) matters of which judicial
notice may be taken under Federal Rule of Evidence 201.” 	Inclusive Cmtys. Project, Inc. v.
Lincoln Prop. Co., 920 F.3d 890, 900 (5th Cir. 2019).
III. 	Analysis
A. The Claims Against Deryk Fields
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The plaintiffs brought claims against Fields in both his individual and official capacities.
(Docket Entry No. 20). Fields moves to dismiss the individual claims on the grounds of quasi-
judicial and qualified immunity.5 	(Docket Entry No. 24). 	In response, the plaintiffs argue that
qualified immunity does not warrant dismissal because Fields deprived them of their home without
valid judicial authorization; that qualified immunity is “fact dependent”; and that at the Rule 12
stage, “the Court must accept Plaintiffs’ allegations as true.” (Docket Entry No. 29 at 6).
The court dismisses the claims against Fields in his individual capacity. 	First, Fields is
entitled to both quasi-judicial and qualified immunity for his actions in enforcing the writ of
possession. “[L]aw enforce officers ‘have absolutely immunity for enforcing the terms of a court
order but only qualified immunity for the manner in which they choose to enforce it.’” Hermann
v. Credit Union of Tex., No. SA-25-CV-642-XR, 2026 WL 196395, at *8 (W.D. Tex. Jan. 15,
5 All three defendants first argue that the court lacks subject matter jurisdiction under the Rooker-Feldman
doctrine. (Docket Entry Nos. 24, 25, 33). The plaintiffs respond that the Rooker-Feldman doctrine does
not apply because it “does not bar claims based on independent constitutional violations by state actors”
and because they are not challenging the validity of the possession judgment, but rather the “attempted and
actual execution of a writ of possession after it expired by operation of Texas law” and Fields’s
“independent enforcement conduct.” (Docket Entry No. 28 at 3; Docket Entry No. 29 at 3). Although any
direct collateral attack on the state court judgment is barred by Rooker-Feldman, claims about enforcing
the judgment are not. See Mosley v. Bowie County, Tex., 275 F. App’x 327, 329 (5th Cir. 2008) (holding
that the plaintiffs’ claims collaterally attacking a state court judgment as void were barred under Rooker-
Feldman, but claims that the defendants violated the plaintiffs’ constitutional rights in enforcing the state
child support judgment were not). 	The Fifth Circuit is also clear that the language of “inextricably
intertwined” (which the defendants rely on) “does not enlarge the core holding of Rooker or Feldman.”
Truong v. Bank of Am., N.A., 717 F.3d 377, 385 (5th Cir. 2013); see also English v. Crochet, 154 F.4th 369,
373 (5th Cir. 2025) (“The key inquiry, then, is the source of the injury alleged in the federal complaint. If
the injury stems from the state court decision itself, then Rooker-Feldman bars federal jurisdiction. But if
the injury arises from the defendant’s actions, the plaintiff asserts an independent claim not subject to
Rooker-Feldman.”). In this case, the plaintiffs—in their own framing—request damages based on Fields’
allegedly unconstitutional enforcement actions. 	Those claims are not barred by Rooker-Feldman, even
though the dispute stems from questions about the validity of the state court judgment that he was enforcing.
The court concludes that it can reach the (meritless) merits. Courts routinely hear such claims, and, just as
routinely, dismiss them on the grounds of immunity or for failure to state a claim. See, e.g., Jefferson v.
Broadnax, No. 3:12-CV-4638-L, 2014 WL 3747151 (N.D. Tex. July 30, 2014); Herrmann v. Credit Union
of Texas, No. SA-25-CV-642-XR, 2026 WL 196395, at *8 (W.D. Tex. Jan. 15, 2026); see also Coleman v.
Williams, 538 F. App’x 513, 515 (5th Cir. 2013).
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2026) (quoting Hermann v. Squires, No. SA-25-CV-561-OLG, 2025 WL 2327946, at *2 (W.D.
Tex. July 21, 2025, report and recommendation adopted, 2025 WL 2326066 (W.D. Tex. Aug. 12,
2025)). “‘[G]overnment officials in their execution of facially valid judicial orders entered by a
court of competent jurisdiction’ have . . . absolute immunity.” Hermann, 2025 WL 2327946, at
*1 (quoting Mays v. Sudderth, 97 F.3d 107, 112 (5th Cir. 1996)).
There is no dispute that the July 2, 2025, order directed the Harris County Constable to
“immediately” execute the writ. “Courts routinely find that sheriffs or constables acting within
the scope of their authority are entitled to quasi-judicial immunity when serving or executing writs
and are absolutely immune from a suit for damages to the extent that the cause of action arises
from compliance with a facially valid judicial order issued by a court acting within its jurisdiction.”
Burgess v. Cox, No. 4:14-CV-466-ALM-CAN, 2015 WL 5578009, at *5 (E.D. Tex. July 27,
2015), report and recommendation adopted, No. 4:14-CV-466, 2015 WL 5579866 (E.D. Tex.
Sept. 21, 2015); see also Santoro v. County of Collin, Tex., No. 4:18-CV-00660-ALM-CAN, 2019
WL 5692190, at *7 (E.D. Tex. Aug. 16, 2019); report and recommendation adopted, 2019 WL
4686361 (E.D. Tex. Sept. 26, 2019).
Because Fields complied with a facially valid court order, he is entitled to absolute
immunity for his actions in executing the writ on July 11, 2025, notwithstanding the plaintiffs’
allegations that the court erred by issuing a “second” writ outside the time limit for doing so.
“Government officials ‘should not be required to make the Hobson’s choice between disobeying
the court order or being haled into court to answer for damages.’” Mays, 97 F.3d at 113 (quoting
Patterson v. Von Riesen, 999 F.2d 1235, 1240 (8th Cir. 1993)). 	“In effect,” what the plaintiffs
seek is a requirement that Fields should have “act[ed] as an appellate court in evaluating the
legality of a decision issued by a judge trained in the law and authorized to issue such orders.” Id.
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Even more specifically, the plaintiffs assert that Fields should have listened to them, rather than
the judge, in determining whether the writ was expired. In these circumstances, such a result is
“untenable.” Id.; see also Jefferson v. Broadnax, No. 3:12-CV-4638-L, 2014 WL 3747151 (N.D.
Tex. July 30, 2014) (“An officer who executes a facially valid writ acts in good faith even when
he is aware that there is a legal dispute over the matter.”). There is no allegation in any version of
the complaint that Fields did anything other than carry out the writ as ordered in July 2025.
To the extent that the plaintiffs’ allegations in both the amended complaint and proposed
second amended complaint (generously construed) are based partly on an allegation that the
manner in which Fields chose to enforce the writ on June 17, 2025, was unconstitutional, Fields is
entitled to qualified immunity. “Qualified immunity shields law enforcement officials from suit
under 42 U.S.C. § 1983 if they could have reasonably believed their actions to be lawful, in light
of the law ‘clearly established’ at the time of their actions and the information the officers
possessed.” Hermann, 2026 WL 196305, at *8. The plaintiff bears the burden of demonstrating
that qualified immunity does not apply. See Doe v. Univ. of Tex. M.D. Anderson Cancer Ctr., 653
F. Supp. 3d 359, 373 (S.D. Tex. 2023). “The plaintiff ‘must show: (1) that the official violated a
statutory or constitutional right, and (2) that the right was clearly established at the time of the
challenged conduct.’” Id. (quoting Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011)).
There are no allegations in the amended complaint or the proposed second amended
complaint that Fields took any action on June 17, 2025, besides arriving with a locksmith crew,
threatening arrest, and then departing after he could not determine if the writ was still valid. A
threat of arrest is, without more, not a basis for a Fourth Amendment claim. Ristow v. Hansen,
719 F. App’x 359, 363 (5th Cir. 2018). Nor is there any plausible allegation of excessive force.
See Martin v. Petty, 699 F. Supp. 3d 547, 557 (S.D. Tex. 2023) (elements of an excessive force
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claim). And to the extent that the plaintiffs complain about a “seizure” of their property (although
no property was actually seized that day), the property had already been foreclosed upon, and so
the plaintiffs no longer had any ownership interests in it. See Hermann, 2025 WL 2327946, at *2;
see also Daniel v. Ferguson, 839 F.2d 1124, 1128–29 (5th Cir. 1988) (a plaintiff cannot state a
claim for deprivation of property rights without due process of law under § 1983 where the
underlying foreclosure is not invalid because a plaintiff cannot state a claim “for deprivation of
rights that he does not have in property that he no longer owns”).
To the extent that Fields was mistaken in attempting to execute what he believed was a
valid writ, “qualified immunity allows ‘ample room for mistaken judgments.’” Woods v. Keiffer,
610 F. App’x 416, 417 (5th Cir. 2015) (quoting Malley v. Briggs, 475 U.S. 335, 343 (1986)); see
also Dore v. Chaisson, Civ. A. No. 93-2632, 1995 WL 9396, at *3 (E.D. La. Jan. 9, 1995)
(concluding that qualified immunity protected the deputy executing a writ of possession because
“Deputy Chaisson is not an attorney and would not have any reason to consider whether the writ
of possession was subject to invalidation before he executed it”); Hermann, 2026 WL 196395, at
*8. The plaintiffs have “not plausibly alleged” that Fields was “aware of a defect in the writ that
should have stopped” him from either attempting to (or actually executing) the writ. Id. At most,
the plaintiffs allege that they told Fields that the writ had expired days before he attempted to
execute it on June 17. 	Neither the plaintiffs nor Fields are trained in the law, and the plaintiffs
misquote and misread Texas Rule of Civil Procedure 510.8(d)(2). (Docket Entry No. 8).
In addition, the plaintiffs have not rebutted Fields’s qualified immunity defense by pleading
facts that could show that his conduct violated “clearly established” law. (See generally Docket
Entry No. 29). That is fatal to their claims. See Carmona v. City of Brownsville, 126 F.4th 1091,
1096 (5th Cir. 2025) (a plaintiff seeking to overcome qualified immunity at the Rule 12(b)(6) stage
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must not only adequately plead the violation of a federal right, but also adequately plead facts
showing that the defendant’s conduct was unreasonable in light of clearly established law); Doe,
653 F. Supp. 3d at 374 (analyzing qualified immunity at the motion to dismiss stage, noting that it
is the plaintiff’s burden to find favorable cases that do not define the law at a high level of
generality, and concluding that the individual defendants were entitled to qualified immunity in
part because the plaintiff had pointed to no relevant case law).
The claims against Fields in his individual capacity are dismissed, with prejudice. 	The
plaintiffs have already amended their complaint and the court’s review of the proposed second
amended complaint6 and the state court record show that further amendments would be futile.
B. The Claims Against Harris County
The plaintiffs also bring claims against Fields in his official capacity and against Harris
County. The official-capacity claims against Fields are dismissed, with prejudice, because they
are duplicative of the claims against Harris County. See Will v. Mi. Dep’t of State Police, 491 U.S.
58, 71 (1989) (“[A] suit against a state official in his or her official capacity is not a suit against
the official but rather is a suit against the official’s office. As such, it is no different from a suit
against the State itself.” (citation omitted)).
As presented both in the amended complaint and the plaintiffs’ responses to the motion to
dismiss, the Monell claim against Harris County is largely a failure-to-train theory based on
Fields’s execution of an allegedly expired writ. “To establish Monell liability on a failure-to-train
theory, a plaintiff must prove that: ‘(1) the city failed to train or supervise the officers involved;
6 The court has considered the facts alleged in the proposed second amended complaint only to establish
the futility of further amendment. See Pichardo v. Centene Co. of Tex., No. 7:19-cv-00085, 2020 WL
1308047, at *3 (S.D. Tex. Mar. 16, 2020) (“Nevertheless, in analyzing the motion to dismiss, the Court also
considers Plaintiff’s proposed second amended complaint in order to determine whether the second
amended complaint states a claim for relief and whether amendment would be futile.”).
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(2) there is a causal connection between the alleged failure to supervisor or train and the alleged
violation of the plaintiffs’ rights; and (3) the failure to train or supervise constituted deliberate
indifference to the plaintiff’s constitutional rights.’” Stapleton v. Lozano, 125 F.4th 743, 753 (5th
Cir. 2025) (quoting Henderson v. Harris County, 51 F.4th 125, 130 (5th Cir. 2022)).
Even assuming that there are viable constitutional claims here, the plaintiffs have failed to
plead multiple elements of a failure to train claim. As to the first element, the plaintiffs have not
plausibly alleged facts showing that the County failed to train Fields on proper eviction procedures,
including training related to writ expiration dates. And as to the third element, there is no plausible
allegation that any failure to train constituted deliberate indifference. 	“To show deliberate
indifference, a plaintiff normally must allege a ‘pattern of similar constitutional violations by
untrained employees.’” Hutcheson, 994 F.3d at 482 (quoting Connick v. Thompson, 563 U.S. 51,
62 (2011)). 	When a plaintiff cannot show a pattern, they may establish deliberate indifference
through a “single-incident exception,” but that exception is “extremely narrow” and only applies
when a plaintiff can prove “that the highly predictable consequence of a failure to train would
result in the specific injury suffered.” Id. The plaintiffs have neither alleged a pattern nor argued
that the single-incident exception applies.
In addition, to the extent the plaintiffs are also trying to bring a Monell claim based on an
alleged Harris County policy or custom of executing allegedly expired writs, there is no plausible
allegation of either an official policy or a sufficient number or pattern of incidents to constitute a
policy or custom. 	Nor have the plaintiffs identified a final policymaker behind an allegedly
unconstitutional policy or custom. On any ground, they have failed to plausibly plead a Monell
claim. See Peterson v. City of Fort Worth, 588 F.3d 838, 847–48 (5th Cir. 2009) (explaining the
elements of a Monell claim based on an official policy or custom).
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The plaintiffs fail to plausibly plead Monell liability in their amended complaint, and these
issues persist in the proposed second amended complaint. 	The claim for Monell liability is
dismissed, with prejudice, because amendment would be futile.
C. The Claims Against ME Alpha I
According to the amended complaint, ME Alpha I appears in this matter only as a
foreclosure purchaser. (Docket Entry No. 20 ¶ 7). ME Alpha I is not a state actor. “Claims against
private parties generally do not state a claim under § 1983.” Hampton v. Allstate Ins. Co., Civ.
Action No. H-23-2023, 2023 WL 2955910, at *1 (S.D. Tex. Apr. 13, 2023). “For a plaintiff to
state a viable § 1983 constitutional deprivation claim against a private party, the private party’s
alleged conduct must constitute state action under color of state law.” Rockette v. Carpenter Mgmt.
Co., No. 3:23-cv-00406-MPM-RP, 2026 WL 713682, at *2 (N.D. Miss. Mar. 13, 2026) (citing
Lugar v. Edmonson Oil Co., 459 U.S. 922, 931–32 (1982)). “A court seeking to determine if a
private party has acted under color of state law must inquire whether there exists such nexus
between the state and the action by the private party that otherwise private behavior has in fact
become behavior of the state itself.” Id. “A plaintiff must allege an agreement exists between a
private party and a government entity, resulting in a deprivation of constitutional rights.” Id.
There are no plausible allegations that make ME Alpha I a state actor.7 First, there are no
plausible allegations in the first or proposed second amended complaint that ME Alpha did
anything other than initiate the legal proceedings.8 	“Joint participation” with a state actor must
7 The bases for “joint action” by ME Alpha I in the amended complaint are (1) the initiation of court
proceedings, (2) continued participation in enforcement efforts after being informed the writ had expired,
(3) coordination with law enforcement during lock-out activities, and (4) benefit and reliance upon official
acts by state actors, including Fields and the court system. (Docket Entry No. 20 ¶ 21).
8 The court also notes that the plaintiffs do not actually question the validity of the initial writ or even the
underlying foreclosure proceedings in this case; they challenge only Fields’ enforcement conduct.
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“go[] beyond the mere use of the state court system by private litigants in the course of an ordinary
lawsuit” to constitute actionable conduct by a private party under § 1983. Earnest v. Lowentritt,
690 F.2d 1198, 1200 (5th Cir. 1982). Simply initiating legal proceedings based on foreclosure is
insufficient to transform a private party into one that could be liable under § 1983. Id. at 1202; see
also Tran v. Gulf Coast Bank & Tr. Co., Civ. Action No. 24-1933 2026 WL 294938, at *7 (E.D.
La. Feb. 4, 2026) (“[T]he Fifth Circuit has held that merely pursuing state action, specifically a
foreclosure action, does not amount to acting under color of state law.”).
Second, to the extent that the plaintiffs allege that ME Alpha I is separately liable under
§ 1983 because it conspired with Fields while he was attempting to (allegedly unlawfully) enforce
the writ, that allegation fails because, among other issues, general allegations of “joint action” are
insufficient to make ME Alpha I a state actor under § 1983. See, e.g., Berry v. Hilburn, Civ. Action
No. 23-380-JWD-RLB, 2023 WL 8104833, at *6 (M.D. La. Oct. 17, 2023), report and
recommendation adopted, 2023 WL 7930048 (M.D. La. Nov. 16, 2023); Groom v. Fickes, 966 F.
Supp. 1466, 11478 (S.D. Tex.), aff’d, 129 F.3d 606 (5th Cir. 1997). Even assuming that there are
viable constitutional claims against Fields—and there are not—there is no plausible allegation that
ME Alpha I conspired with Fields in the course of any unlawful activity.
The claims against ME Alpha I are dismissed, with prejudice, because amendment would
be futile.
IV. 	Conclusion
The plaintiffs repeatedly lost their challenges to the writ of possession in state court; lost
their petition for a writ of mandamus in the Texas Court of Appeals; lost a challenge for wrongful
foreclosure in a case before Judge Hittner; and failed to fix the fundamental issues with their case
in their proposed second amended complaint. 	Although pro se complaints are “held to less
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stringent standards than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89,
94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)), “pro se status does not provide
an ‘impenetrable shield,’ ‘for one acting pro se has no license to harass others, clog the machinery
with meritless litigation and abuse overloaded court dockets.’” Hunsinger v. Valor Intelligent
Processing, No. 3:25-cv-1880-X-BT, 2026 WL 271032, at *2 (N.D. Tex. Jan. 13, 2026) (quoting
Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986)), report and
recommendation adopted, 2026 WL 269365 (N.D. Tex. Jan. 30, 2026). Upon this record, another
bite at the eviction-challenge apple is simply not warranted.
This court grants the motions to dismiss the amended complaint. (Docket Entry Nos. 24,
25, 33, 34). The court denies the motion for leave to file the proposed second amended complaint
because it does not cure the pleading deficiencies. (Docket Entry No. 37). The court denies as
moot the motion to dismiss the second amended complaint. (Docket Entry No. 40). The court
grants the motion for leave to file a sur-reply, (Docket Entry No. 44), and has considered the sur-
reply, (Docket Entry No. 44-1). This case is dismissed, with prejudice, because further amendment
would be futile. The court will separately enter final judgment.
SIGNED on May 26, 2026, at Houston, Texas.
________________________________
Lee H. Rosenthal
Senior United States District Judge
Case 4:25-cv-03178 Document 46 Filed 05/26/26 in TXSD Page 14 of 14