Appellate Circuit

Lights on Fifth; Interesting Orders from Friday 22nd Nov., 2019

A familiar panel from the Article we wrote about earlier, the case of Powe v. Deutsche Bank, this one worded ORDER caught the eye as we know how the Fifth Circuit think and operate. #RESTORETX

Teresa Waters v. Texas Attorney General, et al  (19-20414)

HIGGINGBOTHAM, PATRICK E.

HO, JAMES C.

ENGELHARDT, KURT E.

A familiar panel from the Article we wrote about earlier, the case of Powe v. Deutsche Bank, this one worded ORDER caught the eye as we know how the Fifth Circuit think and operate. So we went to work to investigate the case. At the lower court, S.D. Tex. there was no ‘public documents about the underlying case so we pulled the first Order on a Motion to Dismiss which provided the background we needed.

Of course, it was a “Constitutional Challenge” and although the subject matter is sensitive (sex offender case), the law is what we are interested in and whether the Courts are complying or writing their own stories. Sadly, it appears that is the case again here.

denied early termination of her registration requirement. [2]

She seeks “compensatory costs” and “equitable, declaratory, and injunctive relief that removes all barriers to Plaintiff being deregistered  as a Tier I Sex  Offender.” [3]

Plaintiff previously filed a writ of mandamus with this Court seeking essentially the same remedy, which was dismissed, and the Fifth Circuit affirmed the dismissal on appeal. See Teresa Ann Waters v. State of Texas, et al., No. 4: 17-cv-3568 (S.D.  Tex. July 31,  2018),  aff’d  No. 18-20565 (5th Cir. Jan. 9, 2019). Defendant Ogg moves to dismiss Plaintiff’s claims against her for failure to state a claim and on the basis of prosecutorial immunity. The remaining Defendants move to dismiss Plaintiff’s claims on several grounds including Eleventh Amendment immunity and res judicata.

Under Rule 12(b)(1), a party can seek dismissal of an action for lack of subject-matter jurisdiction. FED. R. Crv. P. 12(b)(1). The burden of establishing subject-matter jurisdiction is on the party seeking to invoke it. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). A claim is “properly dismissed for lack of subject-matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate” the claim. Home Builders Ass’n, Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (internal citation omitted). The court should consider a Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits. Ramming, 281 F.3d at 161.


2 Id. at 1. Plaintiff sues the Texas Attorney General’s Office, Texas Attorney General Ken Paxton in his official capacity, the Harris County District Attorney’s Office, Harris District Attorney Kim Ogg in her official capacity, the Texas Department of Public Safety, Director of the Texas Department of Public Safety Steve Mccraw in his official capacity, the Texas Department of Health Services, and Commissioner of the Texas Department of Health Services John Hellerstedt.

3 Id. at 10 of 15.

To survive dismissal under Rule 12(b)(6), a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974 (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.”

Ashcroft v. Igbal, 129 S. Ct. 1937, 1949 (2009). While a complaint “does not need detailed factual allegations [the] allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 127 s. Ct. at 1964-65 (citations omitted).

Congress has given to this Court only limited jurisdiction, beyond which this Court has no power to act. The Court’s jurisdiction is also limited by the United States Constitution.

Defendants correctly argue that the Court does not have subject matter jurisdiction over Plaintiff’s claims against the Texas Department of Public Safety, the Texas Department of State Health Services, the Texas Attorney General’s Office, and the Harris County District Attorney’s Office because such claims are barred by the Eleventh Amendment. “The Eleventh Amendment bars suits by private citizens against a state in federal court.” K.P. v. LeBlanc, 627 F.3d 115, 124 (5th Cir. 2010). “Federal courts are without jurisdiction over suits against a state, a state agency, or a state official in his official capacity unless that state has waived its sovereign immunity or Congress has clearly abrogated it.” NiGen Biotech, L.L.C. v. Paxton, 804 F.3d 389, 393-94 (5th Cir. 2015). “Texas has not consented by statute, and§ 1983 does not abrogate state sovereign immunity.” Id. at 394.

Under the doctrine of sovereign immunity and the Eleventh Amendment, Plaintiff’s claims cannot proceed against the Texas state agencies she names as Defendants.

Accordingly, Plaintiff’s claims against the Texas Department of Public Safety, the Texas Department of State Health Services, the Texas Attorney General’s Office, and the Harris County District Attorney’s Office are DISMISSED for lack of subject matter jurisdiction.

However, claims against state officials in their official capacities are not categorically barred by the Eleventh Amendment because “[a] suit is not ‘against’ a state . . when it seeks prospective, injunctive relief from a state actor … based on an alleged ongoing violation of the federal constitution.” NiGen Biotech, L.L.C., 804 F.3d at 394 (citation omitted).

“Under the doctrine articulated in Ex parte Young, [28 S. Ct. 441 (1908)], a state official attempting to enforce an unconstitutional law ‘is stripped of his official clothing and becomes a private person subject to suit.'” Id. (citation omitted).

To avoid an Eleventh Amendment bar by means of Ex Parte Young, “a court need only conduct a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Va. Office for Prot. & Advocacy v. Stewart, 131 S. Ct. 1632, 1639 (2011).

Here, Plaintiff seeks both “compensatory” relief as well as “declaratory[] and injunctive relief that removes all barriers to Plaintiff being deregistered as a Tier I Sex Offender.”

The Ex Parte Young exception does not apply to claims for retrospective money damages.

NiGen Biotech, L.L.C., 804 F.3d at 394 (citing Edelman v. Jordan, 94 S. Ct. 1347, 1356 (1974)). Therefore, to the extent Plaintiff seeks “compensatory damages” from Defendants Paxton, Ogg, Hellerstedt, and Mccraw, these claims are barred by the Eleventh Amendment and accordingly, DISMISSED.

However, Plaintiff’s complaint, on its face, also seeks prospective, injunctive relief against the state officials. See In re Tejas Testing Tech. One, No. 96-50830, 1998 WL 414018, at *4 (5th Cir. June 26, 1998) (“holding claims “at least on their face” were for prospective relief even where the court observed “whether [the] claims [were] truly for prospective declaratory or injunctive relief [was] uncertain”).

This relief is appropriate under the Ex Parte Young exception to Eleventh Amendment immunity and is not barred by the cases Defendants cite pertaining to mandamus relief against state officials.

Finally, to fall within the Ex Parte Young exception, Plaintiff must also allege an “ongoing constitutional violation.” Cantu Servs., Inc. v. Roberie, 535 F. App’x 342, 345 (5th Cir. 2013).

Plaintiff does not specifically allege how her constitutional rights are violated by the denial of her application to deregister as a Tier I sex offender.

Simply citing different constitutional provisions in the “Jurisdiction” section of her complaint is insufficient to allege a plausible, constitutional violation.

Accordingly, Plaintiff’s claims against Paxton, Hellerstedt, and Mccraw do not fall within the exception to Eleventh Amendment immunity recognized in Ex Parte Young and her claims against Defendants Paxton, Hellerstedt, and Mccraw will be DISMISSED for lack of jurisdiction, unless, within 14 days from the date of this Order, Plaintiff files a more definite statement in the form of a First Amended Complaint, in which she pleads with particularity any ongoing constitutional violations for which she seeks prospective injunctive relief from Defendants Paxton, Hellerstedt, and Mccraw.

Defendant  Ogg  moves  for  dismissal  under  FED. R.  Crv. P. 12(b)(6).  

As Defendant Ogg correctly argues, Plaintiff fails  to allege any facts pertaining to how the remaining Defendant Ogg was involved in the Texas Department of State Health Services’ denial of her application or how Ogg may otherwise have violated her constitutional rights.

Therefore, Plaintiff fails to state a claim against Ogg and Plaintiff’s claims for any type of relief against Ogg are DISMISSED.

For the foregoing reasons, it is

ORDERED that Defendants’ Motion to Dismiss (Document No. 13) is GRANTED as follows.

Plaintiff’s claims against Defendants Texas Attorney General’s Office, Harris County District Attorney’s Office, Texas Department of Public Safety, and Texas Department of State Health Services as well as Plaintiff’s claims against Ken Paxton, John Hellerstedt, Steve Mccraw, and Kim Ogg, to the extent such claims seek money damages, are DISMISSED for lack of jurisdiction.

Additionally, Defendants’ motion to dismiss Plaintiff’s claims against John Hellerstedt, Steve Mccraw, and Ken Paxton for declaratory and injunctive relief is GRANTED, unless Plaintiff within 14 days after the date of this Order files a more definite statement in the form of a First Amended Complaint limited to the specific ongoing constitutional violations that Plaintiff contends entitle her to prospective injunctive relief against these three individuals.

It is further ORDERED that Defendant Ogg’s Motion  to Dismiss  (Document No. 18) is GRANTED pursuant to Fed. R. Civ. P. 12(b)(6) and Plaintiff’s remaining claims against Kim Ogg for declaratory and injunctive relief are DISMISSED for failure to state a claim.

All other pending motions are DENIED. It is SO ORDERED.

The Clerk will enter this Order, providing a correct copy to all counsel of record.

SIGNED at Houston, Texas, on this 22nd day of March, 2019.

Ewing Werlein, Jr, US District Judge, S.D. Texas

List of Orders, Court of Appeals for the Fifth Circuit

Published
11/22/2019 Kathie Cutrer v. Tarrant County Local Workforce, e pub
11/22/2019 USA v. Rodney Johnson pub
11/22/2019 John Lavery v. William Barr, U. S. Atty Gen pub
Unpublished
11/22/2019 USA v. Nicholas Gilbert unpub
11/22/2019 USA v. Lamazaki Wilson unpub
11/22/2019 Nikesh Shah v. Chevron USA, Incorporated unpub
11/22/2019 USA v. Carla Dominguez unpub
11/22/2019 Elvia Ruiz Ortiz, et al v. William Barr, U.S. Atty unpub
11/22/2019 USA v. Demond Lynn unpub
11/22/2019 USA v. Miguel Fernandez-Matos unpub
11/22/2019 Teresa Waters v. Texas Attorney General, et al unpub
11/22/2019 Jay Fulmer, et al v. USA unpub
11/22/2019 USA v. Jesus Balboa-Gallardo unpub
11/22/2019 USA v. Carlos Hernandes unpub
11/22/2019 USA v. Carlos Hernandes unpub
11/22/2019 Lakshmi Arunachalam v. Beal Bank, SSB unpub

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

USA v. Nicholas Gilbert (18-10577)

BARKSDALE, RHESA H.

DENNIS, JAMES L.

SOUTHWICK, LESLIE H.

Kathie Cutrer v. Tarrant County Local Workforce (18-11092)

WIENER, JACQUES L. (JR.)

GRAVES, JAMES E. (JR)

OLDHAM, ANDREW “ANDY” S.

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Laws In Texas is a blog about the Financial Crisis and how the banks and government are colluding against the citizens and homeowners of the State of Texas and relying on a system of #FakeDocs and post-crisis legal precedents, specially created by the Court of Appeals for the Fifth Circuit to foreclose on homeowners around this great State. We are not lawyers. We do not offer legal advice. We are citizens of the State of Texas who have spent a decade in the court system in Texas and have been party to during this period to the good, the bad and the very ugly.

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