McCoy v. Harris County et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
RICO R. MCCOY,
Plaintiff,
versus
HARRIS COUNTY, et al,
Defendants.
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CIVIL ACTION NUMBER
4:25-cv-00135
JUDGE CHARLES ESKRIDGE
ORDER ADOPTING
MEMORANDUM AND RECOMMENDATION
Plaintiff Rico R. McCoy brought this action to pursue
claims for various constitutional violations under 42 USC
§1983 and Monell v Department of Social Services, 436 US
658 (1978). See Dkt 32 at ¶¶72–112 (amended complaint).
He sues Defendants Harris County, Sheriff Ed Gonzalez,
Deputy Christopher Bolin, and Deputy Shane Wyrick. See
id at 1. He also brought, but later nonsuited, additional
claims against other Defendants. See Dkts 41 (motion to
nonsuit) & 45 (order dismissing claims). The matter was
referred for disposition to Magistrate Judge Richard
Bennett. Dkt 8.
All Defendants moved to dismiss. See Dkts 35 (Bolin),
38 (Gonzalez and Harris County), & 39 (Wyrick). Judge
Bennett entered a Memorandum and Recommendation in
which he recommends that the motions to dismiss each be
granted in part and denied in part. Dkt 56. He recommends
that Plaintiff’s claims for excessive force, First Amendment
retaliation, and punitive damages against individual
officers survive dismissal, but that his claims for unlawful
search/seizure, equal protection, Monell liability, and any
United States District Court
Southern District of Texas
ENTERED
March 16, 2026
Nathan Ochsner, Clerk
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claims against individuals in their official capacity be
dismissed with prejudice. Id at 44–46.
The district court reviews de novo those conclusions of
a magistrate judge to which a party has specifically
objected. See FRCP 72(b)(3) & 28 USC § 636(b)(1)(C); see
also United States v Wilson, 864 F2d 1219, 1221 (5th Cir
1989, per curiam). The district court may accept any other
portions to which there’s no objection if satisfied that no
clear error appears on the face of the record. See Guillory v
PPG Industries Inc, 434 F3d 303, 308 (5th Cir 2005), citing
Douglass v United Services Automobile Association, 79 F3d
1415, 1430 (5th Cir 1996, en banc); see also FRCP 72(b)
advisory committee note (1983).
Plaintiff and Deputy Bolin filed objections. Dkts 58
(Bolin) & 59 (Plaintiff). On de novo review and
determination, the objections lack merit and will thus be
overruled.
As to Bolin’s objections, he first argues that the
Magistrate Judge erroneously rejected his statute of
limitations argument by not applying Texas law requiring
due diligence in effectuating service within the limitations
period. See Dkt 58 at 2. But the Magistrate Judge properly
determined that Fifth Circuit precedent holds that the
requirement of “due diligence” in service doesn’t apply to
§1983 actions. See Dkt 56 at 15, citing Gonzalez v Wyatt,
157 F3d 1016, 1022 n 1 (5th Cir 1998). Numerous Texas
district courts have continued to follow Gonzalez even after
the cited decision of Wallace v Kato, 549 US 384 (2007). See
Dkt 56 at 14–15 (collecting cases). The objection lacks
merit.
Bolin next argues that the Magistrate Judge
erroneously analyzed use of force under Graham v Connor,
490 US 386, 393–96, as applied to claims tracing to the
First Amendment. Dkt 58 at 6. But the Supreme Court has
clarified that Graham “does not hold that all constitutional
claims relating to physically abusive government conduct
must arise under either the Fourth or Eighth
Amendments.” United States v Lanier, 520 US 259, 272 n 7
(1997). The Magistrate Judge thus correctly concluded that
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First Amendment retaliatory force claims aren’t precluded
by the availability of excessive force claims. See Dkt 56
at 28.
As to Plaintiff’s objections, he largely reargues matters
presented to the Magistrate Judge regarding his Monell
claims. See Dkt 59 at 3–8. The Magistrate Judge correctly
dismissed such claims because Plaintiff failed to
adequately plead a pattern or practice of unconstitutional
activity of any kind. Further, Plaintiff provided an
insufficient factual basis to support ratification of the
conduct of the relevant officers. Dismissal of all such claims
with prejudice was also proper because the relevant statute
of limitations has lapsed.
The objections to the Memorandum and
Recommendation of the Magistrate Judge are OVERRULED.
Dkts 58 & 59.
No clear error otherwise appears upon review and
consideration of the Memorandum and Recommendation,
the record, and the applicable law.
The Memorandum and Recommendation of the
Magistrate Judge is ADOPTED as the Memorandum and
Order of this Court. Dkt 56.
The motions to dismiss are each GRANTED IN PART and
DENIED IN PART as specified in the Memorandum and
Recommendation. Id at 44–46; see Dkts 35, 38 & 39.
Plaintiff’s claims against Bolin, Wyrick, and Gonzalez
in their official capacities are DISMISSED WITH PREJUDICE.
Plaintiff’s unlawful search/seizure claims against Bolin
and Wyrick are DISMISSED WITH PREJUDICE.
Plaintiff’s equal protection claims against Bolin,
Wyrick, and Gonzalez are DISMISSED WITH PREJUDICE.
All of Plaintiff’s claims against Defendant Harris
County are DISMISSED WITH PREJUDICE.
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SO ORDERED.
Signed on March 16, 2026, at Houston, Texas.
___________________________
Honorable Charles Eskridge
United States District Judge
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