Hicks v. McKinney et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Brandon Hicks, 	§
§
Plaintiff, 	§
§
v. 	§ 	Civil Action No. 4:25-cv-4762
§
Dagnee McKinney and 	§
Karen Rundlof, 	§
§
Defendants. 	§
JUDGE PALERMO’S
REPORT AND RECOMMENDATION AND ORDER
This case stems from a previous divorce.1 There are multiple motions pending
before the Court. Plaintiff Brandon Hicks filed two motions to amend and filed his
amended complaint before obtaining leave. ECF Nos. 36, 39, 56. In addition,
Defendant Dagnee McKinney moves to dismiss. ECF No. 43. Plaintiff responded.
ECF No. 61. 	Having considered the parties’ briefing and the applicable law, the
Court grants Plaintiff’s motion to amend and recommends McKinney’s motion to
dismiss be granted. In addition, the Court grants McKinney’s motion to abate
pending the final resolution of the motion to dismiss, and denies Plaintiff’s motions
to compel discovery, ECF Nos. 44, 46, 62, 63,
I. 	BACKGROUND
In 2016, Hicks and his wife divorced. ECF No. 1-2 at 52. McKinney is a
1 The district judge referred all pretrial proceedings under 28 U.S.C. § 636. Order, ECF No. 55.
United States District Court
Southern District of Texas
ENTERED
July 09, 2026
Nathan Ochsner, Clerk
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private attorney and represented Hicks’ ex-wife in the divorce proceedings. Id. Hicks
claims he “did not receive any proper and timely legal notice of [his] divorce
hearing,” leaving him without “an opportunity to contest any claims, demands,
custody agreements, separation of assets/property or retain [his] own legal counsel.”
Id.
Eight years later, in June 2024, Hicks “was properly served and notified by an
officer of the courts that [he] needed to appear for a child support hearing.” Id. He
alleges that McKinney and an attorney from the Texas AG’s Office, Karen Rundlof,
“conspired with [his] ex-wife . . . to . . . violate [his] rights” in the divorce and child-
support proceedings somehow. Id.
Hicks sued McKinney and Rundlof on October 3, 2025, alleging that they
violated his “constitutional right to due process under the 14th Amendment of the
U.S. Constitution and Article I, section 19 of the Texas Constitution.” ECF No. 1
at 3, ECF No. 56.
McKinney now moves to dismiss. ECF No. 43.
II. 	STANDARD TO DISMISS UNDER 12(B)(6)
Rule 12(b)(6) authorizes courts to dismiss a complaint for “failure to state a
claim upon which relief can be granted.” To survive a 12(b)(6) motion, a plaintiff
must plead “enough facts to state a claim to relief that is plausible on its face.”
Gaskin v. Univ. of Hous. Police Dep’t, No. CV H-25-1658, 2025 WL 3514356, at *3
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(S.D. Tex. Dec. 8, 2025) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is facially plausible when the factual allegations “allow[] the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (quoting Calogero v. Shows, Cali & Walsh, L.L.P., 970 F.3d 576, 580
(5th Cir. 2020)).
In determining a motion to dismiss, “‘[c]ourts accept ‘all well-pleaded facts
as true’ and ‘view them in the light most favorable to the plaintiff.’” Id. (original
alteration adopted) (quoting Allen v. Walmart Stores, L.L.C., 907 F.3d 170, 177 (5th
Cir. 2018)). At this stage, courts may only consider “(1) the facts in the complaint;
(2) documents attached to the complaint; and (3) matters of which the court may
take judicial notice.” Id. (citing Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724,
735 (5th Cir. 2019)).
III. 	THE COURT GRANTS HICKS’ MOTION TO FILE HIS AMENDED
COMPLAINT.
Hicks moves—twice—to file his amended complaint. ECF Nos. 36, 39. He
subsequently filed his amended complaint. ECF No. 56. Although he states he filed
it “pursuant to the Court’s Order granting leave to amend,” he does not cite to any
order. Id. at 1. Nor can the Court find any order granting him leave to file his
amended complaint.
In any event, the Court will grant his motions. The amended complaint does
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not add any new material allegations—if anything, it contains less than the original.2
In the amended complaint, Hicks files his claims “against Defendant Dagnee
McKinney only” and lists McKinney as the only Defendant in the caption and
“parties” section. ECF No. 56 at 1 (emphasis added). As a result, Hicks has dropped
his claims against Rundlof.
IV. 	HICKS 	FAILS 	TO 	STATE 	A 	PLAUSIBLE 	CLAIM 	AGAINST
MCKINNEY.
Hicks asserts two claims against McKinney: one under the Fourteenth
Amendment of the U.S. Constitution, and the other under Article 1, section 19 of the
Texas Constitution. Both fail.
A. 	Hicks Fails to State a Due Process Claim Under the Fourteenth
Amendment.
“The due process clause of the Fourteenth Amendment applies only to actions
conducted under color of state law; ‘the protections of the Fourteenth Amendment
do not extend to private conduct abridging individual rights.’” Lopez v. Beard &
Lane, P.C., No. CV H-23-2895, 2023 WL 6283325, at *4 (S.D. Tex. Sept. 26, 2023)
(internal quotation marks omitted) (quoting Nat’l Collegiate Athletic Ass’n v.
Tarkanian, 109 S. Ct. 454, 461 (1988)).
Here, Hicks asserts a Fourteenth Amendment due process claim against
McKinney. In conclusory fashion, his amended complaint alleges that she “act[ed]
2 McKinney’s motion to dismiss was filed as to the original complaint, but since the allegations
are the same, the Court construes the motion to dismiss as to the amended complaint.
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under color of state law” to deprive him “of constitutionally protected liberty and
property interests without due process of law.” ECF No. 56 ¶ 9. Notably, neither the
original complaint nor amended complaint alleges facts indicating McKinney was—
or has ever been—a state official, agent, or employee or otherwise acted under color
of state law. In fact, as McKinney points out, she is a private attorney who
represented Hicks’ ex-wife in their divorce proceedings. ECF No. 43 at 2. Private
attorneys are not state actors. Accord Escobedo v. Reynolds, No. SA-24-CV-00773-
XR, 2025 WL 1699841, at *5 (W.D. Tex. June 5, 2025) (noting that “[i]t is well
established that an attorney does not act under color of state law in representing a
defendant 	in 	a 	criminal 	case” 	and 	dismissing 	§ 1983 	claims 	against 	private
attorneys); Hill v. Cox, No. 3:11-CV-1209-O BK, 2011 WL 5101571, at *1 (N.D.
Tex. Sept. 9, 2011) (same), adopted, No. 3:11-CV-1209-O, 2011 WL 5101506
(N.D. 	Tex. 	Oct. 	25, 	2011); 	Polk 	Cnty. 	v. 	Dodson, 	454 	U.S. 	312, 	324–25
(1981) (holding public defender does not act under color of state law when
performing lawyer’s traditional functions in representing defendant in criminal
case); Mills v. Crim. Dist. Ct. No. 3, 837 F.2d 677, 679 (5th Cir. 1988) (holding
court-appointed attorneys are not official state actors).
There is a narrow exception where a private actor may be held liable under
§ 1983 if their challenged conduct is “fairly attributable to the State.” Arvie v.
Cathedral of Faith Missionary Baptist Church, No. 24-30759, 2025 WL 1565149,
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at *5 (5th Cir. June 3, 2025) (quoting Bass v. Parkwood Hosp., 180 F.3d 234, 241
(5th Cir. 1999)), cert. denied sub nom. Arvie v. Cathedral of Faith, 223 L. Ed. 2d
526 (Jan. 12, 2026). To invoke this exception, a plaintiff must “demonstrat[e] that
the non-state actor ‘conspired with or acted in concert with state actors.’” Id.
(quoting Mylett v. Jeane, 879 F.2d 1272, 1275 (5th Cir. 1989)). Specifically, “[t]he
plaintiff must allege: (1) an agreement between the private and public defendants to
commit an illegal act and (2) a deprivation of constitutional rights. Allegations that
are merely conclusory, without reference to specific facts, will not suffice.” Id.
(quoting Priester v. Lowndes Cnty., 354 F.3d 414, 420 (5th Cir. 2004)).
Here, Hick alleges no agreement between McKinney and assistant Texas AG
Rundlof to commit an illegal act, nor does he assert any facts to support an inference
that McKinney acted in concert with Rundlof or any other state actor to violate his
constitutional rights. While he seems to imply that the adverse rulings in his child-
custody and child-support hearings “were the product of collusion between the
attorneys, judges, and court officials, this bare allegation of conspiracy is insufficient
to state a § 1983 claim.” Arvie, 2025 WL 1565149, at *5. “Being on the winning
side of a lawsuit does not make a party [or attorney] a co–conspirator or a joint actor
with the judge” or other attorneys. Id. (cleaned up) (quoting Dennis v. Sparks,
449 U.S. 	24, 	28 	(1980)). 	At 	bottom, 	Hicks’ 	bald 	assertion 	that 	McKinney
“conspired” with Rundlof to “violate [his] rights” cannot carry the day. Id. (“Bald
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allegations that a conspiracy existed are insufficient.” (quoting Lynch v. Cannatella,
810 F.2d 1363, 1370 (5th Cir. 1987))).
Because Hicks fails to allege specific facts showing that McKinney acted
under color of state law, his Fourteenth Amendment due process claim against her
should be dismissed.
B. 	Hicks Fails to State a Claim Under Article I, Section 19 of the Texas
Constitution.
Article I, section 19 of the Texas Constitution provides that “[n]o citizen of
this State shall be deprived of life, liberty, property, privileges or immunities . . .
except by the due course of the law of the land.” But just as the Fourteenth
Amendment only applies to state actors, so too does Article I, section 19 of the Texas
Constitution. See Edinburg Hous. Auth. v. Ramirez, No. 13-19-00269-CV, 2021 WL
727016, at *6 (Tex. App.—Corpus Christi–Edinburg Feb. 25, 2021, no pet.) (“Due
course of law exists to prevent the State from depriving persons of liberty and
property without notice and hearing.” (emphasis in original) (quoting Tex. A & M
Univ. Sys. v. Luxemburg, 93 S.W.3d 410, 420 (Tex. App.—Houston [14th Dist.]
2002, pet. denied))); T.L. v. Cook Childs.’ Med. Ctr., 607 S.W.3d 9, 76 (Tex. App.—
Fort Worth 2020, pet. denied) (explaining that “state action” is analyzed the same
under “the Fourteenth Amendment of the United States Constitution and 42 U.S.C.
§ 1983, as well as Article I, Section 19 of the Texas Constitution”).
As explained above, McKinney is a private actor. Hicks fails to plead any
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facts to the contrary. Thus, his claim against her under Article I, section 19 of the
Texas Constitution should be dismissed. See Ramirez, 2021 WL 727016, at *6
(holding that “[t]he Commissioners, as 	private actors, were entitled to have
[plaintiff’s] due course of law and equal protection causes of action [under Article I,
section 19] asserted against them dismissed” (emphasis added)); F.R.I. Ranch Living
Tr. v. Gateway First Bank, No. CV H-24-4238, 2024 WL 4993927, at *4 (S.D. Tex.
Dec. 5, 2024) (dismissing claim under Article I, section 19 because “the Complaint,
even liberally construed, alleges no state action, a requirement to bring claims
pursuant to the Texas Bill of Rights”).
V. 	RELATED PENDING MOTIONS
Concluding Hicks’ claims against McKinney should be dismissed, the Court
turns to several pending motions related to McKinney.
A. The Court Grants McKinney’s Motion To Abate.
McKinney moves to abate this case, including discovery, until the Court
resolves her pending motion to dismiss. ECF No. 41. “A trial court has broad
discretion and inherent power to stay discovery until preliminary questions that may
dispose of the case are determined.” Dougherty v. U.S. Dep’t of Homeland Sec.,
No. 22-40665, 2023 WL 6123106, at *7 n.39 (5th Cir. Sept. 19, 2023) (quoting
Petrus v. Bowen, 833 F.2d 581, 583 (5th Cir. 1987)). 	A 	stay 	of 	discovery 	is
“appropriate where the disposition of a motion to dismiss might preclude the need
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for discovery altogether thus saving time and expense.” Patel v. Qatar Airways Grp.
Q.C.S.C., No. 1:24-CV-1599-DAE, 2025 WL 1673911, at *1 (W.D. Tex. May 7,
2025) (quoting U.S. ex rel. Gonzalez v. Fresenius Med. Care N. Am., 571 F. Supp.
2d 766, 768 (W.D. Tex. 2008)); Landry v. Air Line Pilots Ass’n Int’l AFL–CIO,
901 F.2d 404, 435–36 (5th Cir. 1990) (upholding stay pending final ruling on a
motion 	for 	summary 	judgment 	because 	discovery 	would 	be 	expensive 	and
burdensome).
The Court has already determined that Hicks’ claims against McKinney
should be dismissed. If the Court’s recommendation is adopted, there will be no need
for discovery. Thus, staying discovery until the motion to dismiss is fully resolved
is appropriate to reduce unnecessary cost and inconvenience. Accordingly, the Court
grants McKinney’s motion to abate discovery.
B. The Court Denies Hicks’ Discovery Motions.
Hicks requests the Court permit discovery to move forward pending a final
ruling on McKinney’s motion to dismiss. ECF No. 44. He has also filed several
motions to compel discovery against McKinney. ECF Nos. 46, 62, 63.
Since the Court has already determined that the claims against McKinney
should be dismissed and that discovery should be stayed pending a final ruling, the
Court denies Hicks’ motions. If it turns out that his claims against McKinney will
proceed, the Court will lift the stay and discovery can resume. Otherwise, discovery
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will not be necessary.
VI. 	CONCLUSION
The Court ORDERS that Hicks’ motions to file his amended complaint, ECF
Nos. 36, 39, are GRANTED. Since he already filed his amended complaint,
however, he need not refile it.
Further, the Court RECOMMENDS McKinney’s motion to dismiss, ECF
No. 43, be GRANTED and Hicks’ claims against her be DISMISSED WITH
PREJUDICE.
Finding dismissal appropriate, the Court ORDERS the following:
• 	McKinney’s motion to abate discovery, ECF No. 41, is GRANTED.
Discovery related to claims against McKinney is STAYED pending final
resolution of her motion to dismiss.
• 	Hicks’ discovery motions against McKinney, ECF Nos. 44, 46, 62, 63, are
DENIED.
The 	Parties 	have 	fourteen 	days 	from 	service 	of 	this 	Report 	and
Recommendation to file written objections. 28 U.S.C. § 636(b)(1)(C); F ED.
R. CIV . P. 72(b). Failure to file timely objections will preclude review of
factual findings or legal conclusions, except for plain error. Quinn v.
Guerrero, 863 F.3d 353, 358 (5th Cir. 2017).
Signed at Houston, Texas, on July 8, 2026.
Dena Hanovice Palermo
United States Magistrate Judge
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