Opinion
1:23-CV-1120-DII
04-25-2024
JEREMY WADE STORY, Plaintiff, v. WILLIAMSON COUNTY JUDGE BILL GRAVELL, WILLIAMSON COUNTY SHERIFF MIKE GLEASON, et al., Defendants.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
MARK LANE UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE:
Before the court is Defendants Williamson County Judge Bill Gravell, Williamson County Sheriff Mike Gleason, and Williamson County Deputies Brian Casey and Jason Briggs's Motion to Dismiss Under Rule 12(b)(6) and all related briefing. After reviewing the pleadings and the relevant case law, and determining that a hearing is unnecessary, the undersigned submits the following Report and Recommendation to the District Court.
United States District Judge Robert Pitman referred the Motion to the undersigned for a Report and Recommendation as to the merits pursuant to 28 U.S.C. § 636(b), Rule 72 of the Federal Rules of Civil Procedure, and Rule 1(d) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas. Text Order, Feb. 5, 2024.
I. Background
Plaintiff Jeremy Story is suing Defendants Sheriff Mike Gleason, Williamson County Judge Bill Gravell, Williamson County Deputies Brian Casey and Jason Briggs (together deputies are “Deputies”), and unknown Williamson County Deputies Doe 1 and Doe 2 for violating his constitutional rights under the First, Fourth, and Fourteenth Amendments. Dkt. 5 at 1. He contends Defendants “worked in conjunction with [Round Rock Independent School District] to prosecute political enemies.” Dkt. 5 ¶38. Story alleges Deputies arrested him “without probable cause,” Dkt. 5 at 1, pursuant to a “tainted [arrest] warrant.” Dkt. 12 at 1. He also alleges that Gravell violated his First Amendment rights and the Texas Open Meetings Act by “kicking [Story] out” of a county commissioners meeting “based on his viewpoint ....” Id. Story “nonsuits his equal protection cause of action regarding the COVID-19 jailing policy.” Id. at 1 n.1.
The docket does not reflect that Story served Plaintiff's Original Complaint on Williamson County Deputies Doe 1 and 2. See Civil Docket for Case #: 1:23-cv-01120-DII. The Motion also reports that “Story did not send a copy of the amended complaint to the two John Does at the Williamson County Sheriff's Office.” Dkt. 11 at 1 n.1.
Gravell, Gleason, Casey, and Briggs move to dismiss Plaintiff's Amended Complaint for failure to state a claim under Rule 12(b)(6). Dkt. 11 at 1.
II. Legal Standard-RULE 12(b)(6)
When evaluating a motion to dismiss for failure to state a claim under Rule 12(b)(6) the complaint must be liberally construed in favor of the plaintiff and all facts pleaded must be taken as true. Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). Although Federal Rule of Civil Procedure 8 mandates only that a pleading contain a “short and plain statement of the claim showing that the pleader is entitled to relief,” this standard demands more than unadorned accusations, “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s]” devoid of “further factual enhancement.” Bell Atl. v. Twombly, 550 U.S. 544, 555-57 (2007). Rather, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id. at 570.
The Supreme Court has made clear this plausibility standard is not simply a “probability requirement,” but imposes a standard higher than “a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The standard is properly guided by “[t]wo working principles.” Id. First, although “a court must ‘accept as true all of the allegations contained in a complaint,' that tenet is inapplicable to legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. Second, “[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus, in considering a motion to dismiss, the court must first identify pleadings that are no more than legal conclusions not entitled to the assumption of truth, then assume the veracity of well-pleaded factual allegations and determine whether those allegations plausibly give rise to an entitlement to relief. If not, “the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)).
Documents “attache[d] to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to her claim.” Collins v. Morgan Stanley Dean Witter, 224 F.3d 496 (5th Cir. 2000) (quoting Venture Assocs. v. Zenith Data Sys., 987 F.2d 429, 431 (7th Cir. 1993)) (quotations omitted). There are three elements to consider documents attached to a motion to dismiss to be considered part of the pleadings: (1) the complaint must refer to the documents, (2) they must be central to the plaintiff's claim, and (3) they must be attached to the defendant's motion to dismiss. Id. “[M]atters of which a court may take judicial notice” may be considered when resolving a 12(b)(6) motion. Tellabs v. Makaor Issues & Rts., 551 U.S. 308, 322 (2007).
III. Analysis
Defendants argue that Gleason and Deputies are not liable for Story's arrest based on the independent intermediary doctrine. Dkt. 11 at 6. They argue that Story's claim that Gleason and Deputies chilled his First Amendment speech is unsupportable. Id. at 14. Defendants argue that Story's “vague allegations of viewpoint discrimination” do not give rise to a claim on which relief can be granted. Id. at 15-16. And they assert Defendants are shielded by qualified immunity. Id. at 18.
A. September 17, 2021 arrest
The Amended Complaint alleges that Story “was arrested on misdemeanor grounds, through the efforts of” Gleason and Deputies. Dkt. 5 ¶39. Story contends he “is innocent as the warrants were based off false statements, and the WC Sheriff Defendants acted without probable cause” and “with malice.” Id. He asserts that Gleason and Deputies violated “his Fourth Amendment rights against unlawful arrests and Fourteenth Amendment Due process and Equal protection rights [sic].” Id. ¶40.
Defendants contend that because Story was arrested pursuant to an arrest warrant, “the ‘independent intermediary doctrine' applies.” Dkt. 11 at 6.
“The independent-intermediary doctrine ‘becomes relevant when . . . a plaintiff's claims depend on a lack of probable cause.'” Trevino v. Iden, 79 F.4th 524, 531 (5th Cir. 2023) (quoting Buehler v. City of Austin/Austin Police Dep't, 824 F.3d 548, 553 (5th Cir. 2016)). “Under the independent-intermediary doctrine, ‘if facts supporting an arrest are placed before an independent intermediary such as a magistrate or grand jury, the intermediary's decision breaks the chain of causation . . . insulating the initiating party.'” Id. (quoting Wilson v. Stroman, 33 F.4th 202, 208 (5th Cir. 2022)). “[T]he intermediary's deliberations protect even officers with malicious intent,' a plaintiff must show that the official's malicious motive led the official to withhold relevant information or otherwise misdirect the independent intermediary by omission or commission.” McLin v. Ard, 866 F.3d 682, 689 (5th Cir. 2017) (quoting Buehler, 824 F.3d at 555).
The Amended Complaint provides that Round Rock ISD Superintendent Azaiez “employed his personal police force to create a false affidavit, secure an arrest warrant, and then encourage a retaliatory arrest.” Dkt. 5 ¶24. In his Response, Story contends “[t]he situation itself shows Gleason's involvement,” Dkt. 12 at 4, because “[f]our sheriff's cars and many officers were mobilized in less than a few hours after the arrest warrant was inked by Gleason for a simultaneous arrest of Clark and Story at their respective homes in different parts of Round Rock.” Dkt. 5 ¶47. The Amended Complaint alleges such action “would have required Gleason or his direct reports approval and involvement.” Id. (emphasis added). Story also argues the “[I]ndependent intermediary doctrine does not apply because comments by [Deputies while effecting Story's arrest] are significant in showing their personal knowledge of the situation, involvement, and intentions to knowingly execute a false warrant to arrest [Story] and his ‘money man' in support of [Round Rock ISD Superintendent Azaiez].” Dkt. 12 ¶6 (citing Beck v. State of Ohio, 379 U.S. 89, 96-97 (1964)).
Story alleges Gleason signed the warrant, but he does not allege that Deputies signed the affidavit or provided information contained in the affidavit supporting the warrant. Id.; see also Id. ¶46. Story also alleges that Deputies “made reference” to Story's “money man helping you out with that campaign” and stated that “[w]e are also arresting your ‘money man' who lives near you.” Dkt. 12 at 3 (quoting Dkt. 5 (Amended Complaint) ¶22).
Story was arrested pursuant to a warrant. See Dkt. 5 ¶43. Defendants attached the warrant to their Motion. Dkt. 11-1 at 2. A magistrate signed the warrant. Id. The affidavit supporting the warrant was signed by a Round Rock ISD Police Department detective sergeant not named in this lawsuit. Id. at 4. Gleason did not sign the warrant or affidavit; his typed name appears in the warrant's Peace Officer Return section. Id. at 1.
The Amended Complaint references the arrest warrant. E.g., Dkt. 5 ¶20. The warrant is central to Story's claim against Gleason and Deputies. E.g., id. ¶43. Because the warrant is also attached to the Motion, the court considers it part of the pleadings. See Collins, 224 F.3d at 498-499.
The Amended Complaint does not contain allegations sufficient to overcome the presumption that the independent intermediary doctrine applies. Deputies' alleged statements do not show knowledge that the arrest was based on a faulty warrantaffidavit. For those reasons, the undersigned will recommend that the District Court dismiss Story's Fourth and Fourteenth Amendment claim against Gleason and Deputies related to his September 17, 2021 arrest.
The undersigned agrees with Defendants: “It is not at all clear how a statement that [the Deputies] were also serving an arrest warrant on Mr. Clark or a belief that Mr. Clark was a financial backer of a potential campaign does anything to plausibly suggest that the [D]eputies had knowledge of a false arrest warrant for Mr. Story's arrest.” Dkt. 13 at 7.
B. First Amendment: Right to petition
Story contends that Gleason and Deputies “arrested Plaintiff [based on false warrants] to chill him from continuing to petition Williamson County and RRISD regarding Superintendent Azaiez.” Dkt. 5 ¶62. Defendants move to dismiss this claim because Story did not allege the elements of a First Amendment retaliation claim. Dkt. 11 at 14.
“[T]he initiating party may be liable for false arrest if the plaintiff shows that ‘the deliberations of that intermediary were in some way tainted by the actions of the defendant.'” Deville v. Marcantel, 567 F.3d 156, 170 (5th Cir. 2009) (emphasis in original) (quoting Hand v. Gary, 838 F.2d 1420, 1428 (5th Cir. 1988)); Wilson v. Stroman, 33 F.4th 202, 208 (5th Cir. 2022).
To state a First Amendment retaliation claim, plaintiffs “must show that (1) they were engaged in constitutionally protected activity, (2) the defendants' actions caused them to suffer an injury that would chill a person 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 second element “requires some showing that the plaintiff['s] exercise of free speech has been curtailed.” Id. at 259.
The Amended Complaint alleges that Story “was engaged in constitutionally protected activity of speaking at the RRISD Board meetings.” Dkt. 5 ¶64. The Amended Complaint continues, “Defendants' actions of wrongful arrest caused Story an injury that would chill a person of ordinary firmness from continuing to engage at RRISD or similar Board meetings.” Id. Story contends “Defendants' adverse actions were substantially motivated against Story's exercise of constitutionally protected conduct of petitioning his government.” Id.
Defendants contend that the Amended Complaint does not satisfy the second element- that his speech was chilled-because Story “spoke before the Williamson County Commissioners Court three months after his arrest, addressing matters related to his concern about the school district.” Dkt. 14 at 21. Story “asserts that such a response is a tacit admission to the chilling of his speech for those [three] months.” Dkt. 12 ¶10. The court need not resolve whether pointing out Story's participation in a similar meeting was a tacit admission of anything because the Amended Complaint contains only a recitation of elements and a conclusory statement about the second element. Thus, the Amended Complaint does not contain an allegation supported by facts that Story's speech was chilled.
Paragraph 63 of the Amended Complaint provides the elements of a retaliation claim. And Paragraph 64 merely states in conclusory fashion that the elements are satisfied.
63. “[The plaintiffs] must show that (1) they were engaged in constitutionally protected activity, (2) the defendants' actions caused them to suffer an injury that would chill a person 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).
64. Plaintiff was engaged in constitutionally protected activity of speaking at the RRISD Board meetings. WC Sheriff Defendants' actions of wrongful arrest caused Story an injury that would chill a person of ordinary firmness from continuing to engage at RRISD or similar Board meetings. The WC Sheriff Defendants' adverse actions were substantially motivated against Story's exercise of constitutionally protected conduct of petitioning his government. IdDkt. 5 (Amended Complaint) ¶¶63-64.
Under Keenan, “defendants' adverse actions [must have been] substantially motivated against the plaintiffs' exercise of constitutionally protected conduct.” Keenan, 290 F.3d at 258. Story is clear that “Defendants' malice resulted in [his] unlawful arrest ....” Id. ¶40. Indeed, the Amended Complaint states he was arrested “based on a warrant with utterly false statements.” Id. ¶60. Thus, the Amended Complaint alleges that the adverse actions resulted from the allegedly faulty warrant (in which Gleason, Casey, and Briggs played no role in obtaining, supra 4-6), not his speech.
Story states that his “Fourth Amendment claims against the warrants survived dismissal in [his separate] case against RRISD.” Dkt. 5 ¶39. But that is only partially true; the claims that survived dismissal in that action were against defendants who were personally involved in securing the warrant. Jeremy Story and Dustin Clark v. Hafedh Azaiez, et al., 1:22-cv-448-DAE, Dkt. 43 (Order Granting in Part and Denying in Part Defendants' Motion to Dimiss) at 23, 46.
Because the Amended Complaint does not allege that Gleason, Deputies, or any Defendant took adverse action against Story that was substantially motivated against his exercise of constitutionally protected speech, the undersigned will recommend dismissal of Story's First, Fourth, and Fourteenth Amendment retaliation claim against Gleason and Deputies.
C. First Amendment & Texas Open Meetings Act: Free expression
The Amended Complaint alleges “Defendant Gravell misused his authority as county judge to act as no county judge may legally act, preventing Story from exercising his free speech and right to petition his government for redress of grievances.” Dkt. 5 ¶67. Defendants argue that “[n]either Judge Gravell nor any member of the commissioners court interrupted his presentation.” Dkt. 11 at 17. In response, Story asserts that “[t]here is no dispute that Judge Gravell ejected [Story] from the Commissioners Court in retaliation for [his] viewpoint.” Dkt. 12 ¶11. Defendants question Story's assertion, contending that they “vigorously reject[] any claim of viewpoint discrimination.” Dkt. 13 at 10. Story contends that Gravell's actions are the basis of both is First Amendment and Texas Open Meetings Act (“TOMA”) claims. Dkt. 12 ¶12.
Viewpoint discrimination by government regulation occurs “when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). The law prohibits viewpoint discrimination in a limited public forum. See, e.g., Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106 (2001). That said, the government may restrict or regulate speech in a limited public forum so long as the regulation (1) does not discriminate against speech on the basis of viewpoint and (2) is reasonable in light of the purpose served by the forum. Heaney v. Roberts, 846 F.3d 795, 802 (5th Cir. 2017).
Defendants attached to their Motion the video recording of the commissioners court meeting at which Story alleges Gravell violated his rights. Dkt. 11-1. A video recording of the meeting is also available at https://williamsoncountytx.new.swagit.com/videos/150724. Under Texas law, the recording is a public record. TEX. GOV'T CODE, § 551.022. “[I]t is clearly proper in deciding a 12(b)(6) motion to take judicial notice of matters of public record.” Norris v. Hearst Tr., 500 F.3d 454, 461, n. 9 (5th Cir. 2007). “[W]here video recordings are included in the pleadings, as is the case here, the video depictions of events, viewed in the light most favorable to the plaintiff, should be adopted over the factual allegations in the complaint if the video ‘blatantly contradict[s]' those allegations.” Harmon v. City of Arlington, 16 F.4th 1159, 1163 (5th Cir. 2021) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).
The Amended Complaint alleges:
Story followed the time, place, and manner restrictions that the Commissioners Court had adopted. He signed up to speak, stood at the time he was called and was
prepared to follow the time allotment set forth. Even while following the regulations, Story had his right to speak and address the body circumscribed.Dkt. 5 ¶69.
The video shows that Story spoke uninterrupted at the meeting. December 21, 2021 Commissioners Court - Regular Session, Williamson County, https://williamsoncountytx.new.swagit.com/videos/150724, at 20:17-21.09 (last visited Apr. 24, 2024). The video also shows Gravell admonishing those assembled that the commissioners court had rules of decorum, which he would enforce. Id. at 2:35, 17:01. Enforcement included ejection. Id. Indeed, Gravell ejected a person for applauding, id. at 35:04, and for a verbal outburst. Id. at 56:00.
The commissioners court unanimously passed the agenda item on which Story spoke. Id. at 1:35:53. Story applauded. Id. at 1:35:55. Gravell then informed Story that while Gravell respected Story, Story had been warned of the commissioners' court's rules of decorum and violated them. Id. at 1:36:16-1:36:36. Gravel then ejected Story and wished him a “good day.” Id. at 1:36:54-1:37:01. Gravell did not reference Story's viewpoint on any issue.
The Amended Complaint alleges Gravell “singled [Story] out for discrimination[] and violated his free speech rights and rights to petition based on his viewpoint.” Dkt. 5 ¶70. But the video “blatantly contradicts” Story's allegation that his viewpoint was the reason for his ejection. Harmon, 16 F.4th at 1163 (quoting Scott, 550 U.S. at 380). Thus, no constitutional violation is alleged, and the undersigned will recommend that the District Court dismiss Story's First and Fourteenth Amendment and TOMA claims against Gravell. See Heaney v. Roberts, 846 F.3d 795, 802 (5th Cir. 2017) (where person violates “a reasonable restriction, such as a topic or time constraint, there would be no constitutional violation”).
D. Qualified immunity
Defendants also assert that they are entitled to qualified immunity. Dkt. 11 at 18. “The doctrine of qualified immunity shields government officials acting within their discretionary authority from liability when their conduct does not violate clearly established statutory or constitutional law of which a reasonable person would have known.” Wallace v. County of Comal, 400 F.3d 284, 289 (5th Cir. 2005). Qualified immunity protects officials “not simply from liability, but also from standing trial.” Johnson v. Jones, 515 U.S. 304, 312 (1995) “In other words, qualified immunity ‘means immunity from suit, not simply immunity from liability.'” Brown v. U.S. Postal Serv., 338 Fed.Appx. 438, 440 (5th Cir. 2009) (quoting Foster v. City of Lake Jackson, 28 F.3d 425, 428 (5th Cir. 1994)) (internal quotation omitted).
“The defense of qualified immunity involves a two[-]step evaluation: ‘[t]he first step is to determine whether plaintiff alleged a violation of a clearly established constitutional right' and ‘[t]he second step requires determining whether . . . the official's conduct was objectively reasonable under clearly established law existing at the time of the incident.'” Id. at 441 (quoting Bazan v. Hidalgo County, 246 F.3d 481, 490 (5th Cir. 2001)). “The plaintiff bears the burden of negating the defense of qualified immunity.” Id. (citing Foster, 28 F.3d. at 428). “Where a plaintiff fails to carry this burden, the district court may dismiss the suit.” Id. (citing Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995)).
The entirety of Story's argument against qualified immunity is:
Plaintiff's claims involving the 1st, 4th, and 14th Amendment claims involve issues of factual interpretation. Where claims against individual Defendants are proceeding, this Court should revisit the application of qualified immunity at the summary judgment stage on a complete record. Plaintiff's pleadings show an unreasonable violation of Plaintiff's clearly established constitutional rights.
In the alternative, Plaintiff has plead plausible facts showing an unreasonable violation of Plaintiff's clearly established 1st, 4th, and 14th Amendment constitutional rights, qualified immunity should not apply.Dkt. 12 ¶¶14-15 (citations omitted) (typos and grammatical errors in original).
As discussed, Story has not alleged a violation of a constitutional right. Accordingly, he fails the first step of a qualified immunity inquiry. Thus, the District Court may dismiss his suit.
IV. Conclusion
Simply put, conclusory allegations, half-truths, and demonstrably false allegations do plausibly suggest that Story is entitled to relief. See Twombly, 550 U.S. at 556-57. And neglecting to serve all defendants reveals a failure to prosecute. Accordingly, the undersigned will recommend the District Court dismiss Story's lawsuit in its entirety.
Again, Story abandoned his equal protection claim regarding the Williamson County Sheriff's Office's COVID-19 jailing policy. Dkt. 12 at 1 n.1.
V. Recommendations
For the reasons given above, the undersigned RECOMMENDS that Williamson County Judge Bill Gravell, Williamson County Sheriff Mike Gleason, and Williamson County Deputies Brian Casey and Jason Briggs's Motion to Dismiss Under Rule 12(b)(6) be GRANTED and the Amended Complaint be DISMISSED WITH PREJUDICE.
The undersigned FURTHER RECOMMENDS that even if the Amended Complaint may state a claim against Williamson County Deputies Doe 1 and Doe 2, the District Court DISMISS those claims. “Pursuant to Rule 4(m), the Court may dismiss an action without prejudice if a plaintiff fails to serve defendants within 90 days of filing the complaint.” FED. R. CIV. P. 4(m). Thomas v. Boyd, No. 1:23-CV-939-RP, 2023 U.S. Dist. LEXIS 187547, at *1 (W.D. Tex. 2023) (Pitman, J.). Story filed his Amended Complaint on October 9, 2023, Dkt. 5 at 1, but he did not serve Does 1 and 2 by January 7, 2024, which was 90 days later.
The referral to the undersigned should be canceled.
VI. Objections
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battles v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within 14 days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Services Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc).