Bulfinch v. Montgomery County, Texas

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Timothy Winton Bulfinch and
Betty Jo Mathis,
Plaintiffs,
v.
Montgomery County, Texas,
et al.,
Defendants.
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Civil Action H-25-3457
MEMORANDUM AND RECOMMENDATION
This case has been referred to the undersigned magistrate
judge pursuant to 28 U.S.C. § 636(b)(1). ECF No. 6. Pending before
the 	court 	are 	Defendants 	Montgomery 	County 	and 	the
Montgomery County Sheriff’s Motion to Dismiss, ECF No. 46;
Defendants Mary Phillips and Deputy Ulises Garcia’s Motion to
Dismiss, ECF No. 55; and Plaintiff Timothy Bulfinch’s Motion for
Leave to File a Sur-Reply, ECF No. 63. The court recommends that
Defendants Montgomery County and the Montgomery County
Sheriff’s Motion to Dismiss, ECF No. 46, be GRANTED and that
Defendants Mary Phillips and Deputy Ulises Garcia’s Motion to
Dismiss, ECF No. 55, be DENIED as MOOT. Bulfinch’s Motion
for Leave to File a Sur-Reply, ECF No. 63, is DENIED as MOOT.
1. Background
Timothy Bulfinch and Betty Jo Mathis (Plaintiffs) were
involved in a domestic dispute with each other in June 2025. In
their Third Amended Complaint, Plaintiffs bring claims under
42 U.S.C. § 1983 alleging that several of their constitutional rights
were violated following the dispute. Plaintiffs allege claims against
Montgomery 	County, 	the 	Montgomery 	County 	Sheriff 	in 	his
official capacity, Deputy Ulises Garcia, and the Victim Assistance
United States District Court
Southern District of Texas
ENTERED
June 23, 2026
Nathan Ochsner, Clerk
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Coordinator 	for 	the 	Ninth 	District 	Court 	in 	the 	Montgomery
County District Attorney’s Office (the Victim Coordinator) Mary
Phillips. ECF No. 42 at 3.
Plaintiffs 	allege 	that 	Bulfinch 	called 	911 	“regarding 	an
incident involving Betty Jo Mathis” on June 4, 2025. ECF No. 42
at 4. After officers arrived, Bulfinch was detained.1 Plaintiffs
allege that “[t]he articulated basis for probable cause centered on
allegations that Bulfinch wiped his blood on Ms. Mathis and
knocked [sic] doors in the house[.]” Id. at 6. Bulfinch informed
Garcia, one of the responding officers, that “[Bulfinch’s] phone
contained 	[an] 	exculpatory 	video 	showing 	the 	end 	of 	the
altercation.” 	Id. 	at 	4. 	Garcia 	refused 	to 	watch 	the 	video. 	Id.
Bulfinch alleges that there was no probable cause to arrest him.
At some point while the officers were investigating the
events leading to the 911 call, Mathis offered to show Garcia a
specific video on her phone. ECF No. 42 at 4–5. According to
Plaintiffs, “Garcia became frustrated when Ms. Mathis would not
show him every video on her phone; . . . Garcia nevertheless placed
his fingers on Ms. Mathis’s phone and manually scrolled to the clip
he wanted to see.” Id. at 5. Plaintiffs allege that Garcia unlawfully
searched Mathis’s cell phone by navigating to additional videos
that exceeded the scope of Mathis’s consent. Id. at 15–17.
It 	appears 	that 	Mathis 	was 	subsequently 	arrested 	and
charged with a crime in state court related to the events of June 4,
2025. Bulfinch says he is the “recognized victim” in Mathis’s case.
ECF No. 42 at 1–2, 20–21.
Plaintiffs allege that Bulfinch was denied access to Mathis’s
state court criminal proceedings on four separate occasions based
on a “gatekeeping regime that vested discretionary admission
1 It appears that Bulfinch had a stab wound, and one officer asked why Bulfinch was
handcuffed when he was injured. ECF No. 42 at 5.
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authority in courthouse security/bailiffs subject to permissions or
vetoes communicated by DA-office personnel.” ECF No. 42 at 12–
14, 21–22. On June 13, 2025, Phillips, the Victim Coordinator, told
Bulfinch that “although court is open, admission of the public is up
to 	the 	bailiffs 	(including 	when 	the 	courtroom 	is 	full 	or 	for
unspecified ‘other circumstances’); if admitted, [Bulfinch] may not
engage defendants.” Id. at 11.
On June 16, 2025, a bailiff told Bulfinch that “he could not
be in the courtroom, and escorted him to the gallery, stating [that
Bulfinch] needed permission to enter[.]” Id. at 12. On June 30,
2025, a bailiff told Bulfinch that he could enter the courtroom if
Mary 	Phillips 	approved. 	Id. 	at 	12–13. 	Phillips 	did 	not 	allow
Bulfinch into the courtroom, stated that she had too many other
victims to handle that day, and stated that Bulfinch “supports the
defendant.” Id. On July 14, 2025, Bulfinch was not permitted to
enter the courtroom and was told that someone would notify him
if he was needed in court. Id. at 13. On July 24, 2025, Bulfinch
informed the Judge’s secretary that he intended to attend court
that day. Id. at 13–14. The bailiff thereafter denied Bulfinch access
to the courtroom. Id.
Plaintiffs also allege that Bulfinch observed approximately
thirty officers near his home soon after he filed many motions in
Mathis’s state court criminal case. ECF No. 42 at 9–10. According
to Bulfinch, two marked Sheriff’s Office K-9 units positioned their
vehicles to partially block the road leading to Bulfinch’s home. Id.
Plaintiffs 	allege 	that 	the 	police 	presence 	was 	retaliation 	for
Bulfinch’s filings and involvement in Mathis’s case. Id. at 8–10.
The Third Amended Complaint alleges that Garcia violated
Plaintiffs’ 	Fourth 	Amendment 	rights 	by 	unlawfully 	searching
Mathis’s cell phone and by arresting Bulfinch without probable
cause. ECF No. 42 at 15–19. Bulfinch also alleges that Phillips
violated his First Amendment right to access state court criminal
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proceedings and that she retaliated against him by excluding him
from the courtroom when he attempted to attend hearings in
Mathis’s criminal case. Id. at 20–23. Bulfinch also asserts a § 1983
Monell2 claim against Montgomery County and the Montgomery
County Sheriff. Id. at 23–25.
2. Legal Standard
Rule 12(b)(6) authorizes the court to dismiss a complaint for
“failure 	to 	state 	a 	claim 	upon 	which 	relief 	can 	be 	granted.”
Fed. R. Civ. P. 12(b)(6). Generally, the court is constrained to the
“four corners of the complaint” to determine whether the plaintiff
has stated a claim. Morgan v. Swanson, 659 F.3d 359, 401 (5th Cir.
2011).
Under 	Rule 	12(b)(6), 	the 	court 	determines 	whether 	the
plaintiff’s complaint contains “enough facts to state a claim to
relief that is plausible on its face.” 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.” Calogero v. Shows, Cali & Walsh, L.L.P.,
970 F.3d 576, 	580 	(5th 	Cir. 	2020) 	(quoting 	Ashcroft 	v. 	Iqbal,
556 U.S. 662, 678 (2009)).
Courts accept “all well-pleaded facts as true” and “view[]
them in the light most favorable to the plaintiff.” Allen v. Walmart
Stores, L.L.C., 907 F.3d 170, 177 (5th Cir. 2018) (quoting Jones v.
Greninger, 188 F.3d 322, 324 (5th Cir. 1999)). “A plaintiff need only
plausibly allege facts going to the ultimate elements of the claim
to survive a motion to dismiss.” Cicalese v. Univ. of Tex. Med.
Branch, 924 F.3d 762, 768 (5th Cir. 2019). Only statements of fact
are to be taken as true. “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not
2 Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658 (1978).
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suffice.” 	Iqbal, 	556 	U.S. 	at 	678. 	Conclusory 	allegations 	are
“disentitled . . . to the presumption of truth.” Id. at 681.
The court liberally construes pro se pleadings. Erickson v.
Pardus, 551 U.S. 89, 94 (2007). When a plaintiff’s complaint fails
to state a claim, the court should generally give the plaintiff a
chance to amend the complaint under Rule 15(a) before dismissing
the action with prejudice, unless doing so would be futile. See Great
Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305,
329 (5th Cir. 2002); see also Ayers v. Johnson, 247 F. App’x 534,
535 (5th Cir. 2007) (“[A] district court acts within its discretion
when dismissing a motion to amend that is frivolous or futile.”).
3. Analysis
Section 	1983 	provides 	redress 	for 	those 	who 	have 	been
injured 	or 	deprived 	of 	their 	rights 	under 	color 	of 	state 	law.
42 U.S.C. § 1983; Moody v. Farrell, 868 F.3d 348, 351 (5th Cir.
2017). The court turns to the parties’ motions.
A. Montgomery County and the Montgomery County
Sheriff
Bulfinch asserts a claim against Montgomery County and
the Montgomery County Sheriff in his official capacity.3 ECF
No. 42 at 7, 23–25. It appears that the parties agree that only
Bulfinch, not Mathis, brings claims against the County. See ECF
No. 53 at 3.
Municipalities can be sued directly under § 1983, but Monell
establishes that “the unconstitutional conduct must be directly
attributable to the municipality through some sort of official action
or imprimatur; isolated unconstitutional actions 	by 	municipal
3 “A suit against the Sheriff in his official capacity is a suit against the County.”
Bennett v. Pippin, 74 F.3d 578, 584 (5th Cir. 1996). As such, the court refers to the
County and the Sheriff together as “the County.”
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employees will almost never trigger liability.” Webb v. Town of
Saint Joseph, 925 F.3d 209, 214 (5th Cir. 2019).
To assert a Monell claim under § 1983, a plaintiff must allege
(1) an official policy or custom; (2) the policymaker of that policy or
custom; and (3) a constitutional violation that the policy or custom
was the 	“moving force” behind. 	Moore v. LaSalle Mgmt. Co.,
41 F.4th 493, 509 (5th Cir. 2022); Quiroz v. Hernandez, 167 F.4th
254, 266 (5th Cir. 2025). There are three ways to establish the first
element: (1) written policy statements, ordinances, or regulations;
(2) a widespread practice that is so common and well-settled as to
constitute a custom; or (3) in rare circumstances, a single decision
may constitute municipal policy when the official possessing final
policymaking authority performed the specific act that forms the
basis of the § 1983 claim. Webb, 925 F.3d at 214–15.
Bulfinch alleges a policy, practice, or custom claim that is
based on the county’s alleged violation of the First Amendment.
ECF No. 42 at 23–24. Bulfinch argues that the County unlawfully
burdened his right to petition the government and barred access
to criminal proceedings. Id. Bulfinch also appears to argue that the
County retaliated against him for various protected activities. Id.
at 9.
Bulfinch does not identify any written policy statements,
ordinances, or regulations affecting the exercise of his rights.
Bulfinch also does not allege that an official with final policy
making authority performed the acts that form the basis of his
claims. Thus, the court considers whether Bulfinch has sufficiently
alleged a widespread practice or pattern to support his claims
against the County.
To show that a practice is so common and widespread as to
practically have the force of law, a plaintiff must do more than
describe the incident that gave rise to his injury. Johnson v. Harris
Cnty., 83 F.4th 941, 946 (5th Cir. 2023). To be actionable, a pattern
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“must have occurred for so long or so frequently that the course of
conduct 	warrants 	the 	attribution 	to 	the 	governing 	body 	of
knowledge that the objectionable conduct is the expected, accepted
practice of city employees.” Davidson v. City of Stafford, 848 F.3d
384, 396 (5th Cir. 2017), as rev’d (Mar. 31, 2017) (quoting Peterson
v. City of Fort Worth, 588 F.3d 838, 850 (5th Cir. 2009)). A pattern
requires similarity, specificity, and sufficiently numerous prior
incidents. 	Id. 	A 	plaintiff 	must 	show 	a 	pattern 	of 	abuse 	that
transcends an error made in a single case. Peterson, 588 F.3d
at 850–51. “A plaintiff’s description of the challenged practice
‘cannot be conclusory; it must contain specific facts.’” Johnson, 83
F.4th at 946 (quoting Pena v. City of Rio Grande City, 879 F.3d
613, 621–22 (5th Cir. 2018)).
The County argues that Bulfinch did not allege an official
policy or persistent widespread practice. ECF No. 46 at 8. In
response, Bulfinch argues that he “need not identify the precise
written policy or training directive responsible for the violation.
Discovery 	is 	the 	mechanism 	through 	which 	such 	policies 	are
uncovered.” ECF No. 53 at 9.
Bulfinch has not met his burden. Bulfinch alleges that an
unnamed bailiff (or multiple unnamed bailiffs) and the Victim
Coordinator violated his right of public access on four occasions.
Bulfinch 	alleges 	that 	courthouse 	bailiffs 	operate 	under 	the
Sheriff’s authority and that the Sheriff “maintained and enforced
a discretionary gatekeeping practice that lacked neutral, objective,
and narrowly tailored criteria[.]” ECF No. 42 at 22. Even if such
acts 	constitute 	a 	violation 	of 	his 	First 	Amendment 	rights,4
Bulfinch does not allege any facts to show that his experience rises
to the level of a practice that is so common and widespread as to
4 The court does not decide whether the alleged exclusions amount to constitutional
violations.
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practically have the force of law. See Peterson, 588 F.3d at 851–52
(finding 	that, 	even 	where 	a 	plaintiff 	identified 	at 	least 	four
incidents 	where 	a 	police 	force 	violated 	multiple 	individual’s
constitutional 	rights, 	the 	incidents 	do 	not 	show 	that 	the
municipality 	maintained 	an 	official 	policy 	of 	condoning 	those
violations).
Bulfinch has done no more than describe the incidents that
gave rise to his injury. Bulfinch did not allege any facts showing
that his denial of entry into the courtroom is the expected, accepted
practice of county employees, nor did he allege that any other
individuals were denied access to the courtroom. Cf. Davidson, 848
F.3d at 396. Bulfinch also did not allege that the conduct occurred
for so long or so frequently that the course of conduct warrants
attribution to the County. Bulfinch’s allegations relate only to his
own experiences in this case. Bulfinch’s conclusory assertions that
such 	acts 	constitute 	a 	gatekeeping 	practice 	or 	scheme 	are
speculative and insufficient. Bulfinch has not alleged an official
policy or custom necessary to state his Monell liability claim.
To the extent that Bulfinch also alleges a claim against the
County for alleged retaliatory conduct, Bulfinch has not alleged an
official policy, nor has he alleged a constitutional violation behind
which the policy or custom was the “moving force.” Bulfinch’s bare
allegations 	that 	a 	large 	police 	presence 	near 	his 	home 	was
retaliatory do not plausibly allege an official policy or practice that
can be attributed to the County. Bulfinch does not allege that the
police interacted with him in any way and there is nothing to show
that the officers 	were there because 	of him. Bulfinch 	merely
speculates that the police were in his neighborhood because of him.
The 	County’s 	Motion 	to 	Dismiss 	should 	be 	GRANTED, 	and
Bulfinch’s 	claims 	against 	Montgomery 	County 	and 	the
Montgomery County Sheriff should be DISMISSED.
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Bulfinch does not seek leave to amend the complaint as to
the County. In any event, the court has already granted Plaintiffs
leave to amend their claims against the County. ECF No 41
(granting Plaintiffs leave to file their Third Amended Complaint).
Plaintiffs have had many opportunities to state their case against
the County and granting further leave to amend as to the County
would be futile. It appears that there are no facts Plaintiffs can
allege to establish Monell liability. As such, leave to amend the
claims against the County is DENIED.
B. Garcia and Phillips
Garcia and Phillips argue that the claims against them
should 	be 	dismissed 	because 	they 	are 	entitled 	to 	qualified
immunity. ECF No. 55. In response, Plaintiffs request leave to
amend and state that they can clarify facts related to “the sequence
of denied access; the off-docket or special-hearing notice issue; . . .
Garcia’s refusal to review Plaintiff's identified video; . . . and the
surrounding 	facts 	showing 	why 	the 	blood 	allegation 	was
ambiguous rather than conclusive probable cause.” ECF No. 58
at 23.
“Dismissing an action after giving the plaintiff only one
opportunity to state his case is ordinarily unjustified.” Davoodi v.
Austin Indep. Sch. Dist., 755 F.3d 307, 310 (5th Cir. 2014) (quoting
Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986)). Here,
Plaintiffs have not yet amended their claims after naming Garcia
and Phillips as defendants. Plaintiffs state that they can provide
additional facts to support their claims. Plaintiffs’ response to the
Motion to Dismiss also goes beyond the facts they allege in their
complaint. See, e.g., ECF No. 58 at 4–5 (stating that Bulfinch
claimed he had been attacked). As such, Plaintiffs’ request to
amend their complaint is GRANTED in part.
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Plaintiffs 	may 	amend 	their 	complaint 	to 	add 	or 	clarify
factual allegations against Garcia and Phillips. Plaintiffs may not
otherwise amend their complaint by adding new claims or parties.
Plaintiffs may not amend their complaint with respect to the
County or the Sheriff. The amended complaint must include all the
relevant facts at Plaintiffs’ disposal and should address all the
issues that Defendants have raised in their Motion to Dismiss. The
court will not consider additional facts outside the complaint that
are raised in response to a motion to dismiss. Any response to a
motion to dismiss shall include pinpoint citations to the facts set
forth in the amended complaint. The amended complaint shall
address all the deficiencies identified in Defendants’ Motion to
Dismiss, 	ECF 	No. 	55. 	Further 	leave 	to 	amend 	to 	address
deficiencies 	already 	identified 	will 	be 	denied. 	The 	amended
complaint is due By July 2, 2026.
Once 	Plaintiffs 	have 	filed 	their 	Amended 	Complaint,
Defendants shall either answer or move to dismiss within the time
allotted by the Federal Rules of Civil Procedure.
Because the court has allowed Plaintiffs to amend their
complaint, Phillips and Garcia’s Motion to Dismiss, ECF No. 55,
should 	be 	DENIED 	as 	MOOT 	without 	prejudice 	to 	refiling.
However, should Plaintiffs fail to file their amended complaint by
the stated deadline, the court will reinstate Defendants’ Motion to
Dismiss, 	ECF 	No. 	55, 	as 	a 	live 	motion 	and 	take 	it 	under
advisement.
Bulfinch’s Motion for Leave to File a Sur-reply, ECF No. 63,
is DENIED as MOOT.
The court also reminds the parties that “[i]f, on a motion
under Rule 12(b)(6) or 12(c), matters outside the pleadings are
presented to and not excluded by the court, the motion must be
treated as one for summary judgment under Rule 56.” Fed. R. Civ.
P. 12(d). When considering a motion to dismiss, the court must
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limit itself to: (1) the facts in the complaint; (2) documents attached
to the complaint; and (3) matters of which the court may take
judicial notice. Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724,
735 (5th Cir. 2019). “The court may also consider documents
attached to either a motion to dismiss or an opposition to that
motion when the documents are referred to in the pleadings and
are central to a plaintiff’s claims.” Brand Coupon Network, L.L.C.
v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 2014).
If the parties ask the court to consider evidence attached to
a Motion to Dismiss, the parties shall include citations informing
the court (1) where the pleadings refer to the external documents
and (2) how the documents are central to the Plaintiffs’ claims.
Discovery is STAYED pending resolution of the qualified
immunity issue based on the anticipated amended complaint. To
be clear, the court still has the issue of qualified immunity under
advisement. Cf. Wertenbroch v. Hardeman, No. 25-40616, 2026 WL
1583938, at *2–3 (5th Cir. June 3, 2026).
4. Conclusion
The 	court 	recommends 	that 	Defendants 	Montgomery
County and the Montgomery County Sheriff’s Motion to Dismiss,
ECF No. 46, be GRANTED and that Defendants Mary Phillips
and Deputy Ulises Garcia’s Motion to Dismiss, ECF No. 55, be
DENIED as MOOT. Bulfinch’s Motion for Leave to File a Sur-
Reply, ECF No. 63, is DENIED as MOOT.
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The 	parties 	have 	fourteen 	days 	from 	service 	of 	this
Memorandum and Recommendation to file written objections. 28
U.S.C. 	§ 636(b)(1); 	Fed. 	R. 	Civ. 	P. 	72. 	Failure 	to 	timely 	file
objections will preclude appellate review of factual findings or legal
conclusions, except for plain error. See Thomas v. Arn, 474 U.S.
140, 147–49 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276–77 (5th
Cir. 1988).
Signed at Houston, Texas, on June 23, 2026.
______________________________________
Peter Bray
United States Magistrate Judge
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