Brown v. Crow

1

THOMAS G. BROWN and ELLA H. BROWN, Plaintiffs, v. RICHARD CROW et al., Defendants.

No. 3:21-cv-02998-L-BT

United States District Court, N.D. Texas, Dallas Division

January 30, 2023

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE

On December 1, 2021, Plaintiffs Thomas G. Brown and Ella H Brown, proceeding pro se, initiated this civil action alleging that various governmental officials municipal entities, and private actors conspired against them to steal their property, ruin their reputations, and violate their constitutional rights because they are African-American. Several defendants filed motions to dismiss Plaintiffs' claims against them. In response, Plaintiffs sought leave to file their first amended complaint, which the Court subsequently granted. See Order (ECF No. 100). Thereafter, several defendants, including the City of Terrell, the City of Kaufman, Kaufman County, Mary Gayle Ramsey, and Jeff Brown (the “Moving Defendants”) filed motions to dismiss the first amended complaint. See Mots. (ECF Nos. 122, 123, 136, 151). Plaintiffs again sought leave to file a second amended complaint, which the Court also granted.^[1] Order 3. (ECF No. 161). However, the Court instructed all defendants with pending motions to dismiss that they did not need to refile their dispositive motions because the pending motions are responsive to the second amended complaint.^[2] Id. The Moving Defendants' separate motions to dismiss, and Plaintiffs' responses thereto, are now before the Court. For the following reasons, the Court should GRANT the pending motions (ECF Nos. 122, 123, 136, 151, 191) and DISMISS with prejudice all of Plaintiffs' claims against the Moving Defendants.

Background

In their second amended complaint (ECF No. 162), Plaintiffs allege that-in the summer of 1999-Richard Crow, a white man, stole a $58,000 check from Plaintiffs' company. Sec. Am. Compl. ¶ 19.^[3] Plaintiff Thomas Brown attempted to file a criminal complaint regarding the stolen check with the City of Terrell Police Department (Terrell PD), but he was met with disrespect and derogatory statements. Id. ¶¶ 21, 23. When Thomas returned to Terrell PD to obtain a copy of the complaint, “he was told [it] had been ‘lost.'” Id. ¶¶ 22, 55. According to Plaintiffs, “lost” is “a code word” used by the Terrell PD to mean that the complaint had been thrown in the trash “in conformity with the City of Terrell's policy of refusing to accept complaints against whites filed by African-Americans.” Id. ¶ 55. Plaintiffs ultimately had to hire an attorney to obtain a copy of the complaint. Id. Plaintiffs allege that “[a] white complainant would not have needed to hire a private attorney in the same or similar circumstance,” and they had to do so “solely because [Thomas] is a Black man deemed by the City of Terrell to be subservient to white people.” Id.

This alleged racial animosity was not confined to the Terrell PD. According to Plaintiffs, it infected the Kaufman County Sheriff's Office, the Kaufman County Tax Assessor's Office, and the Kaufman County courts. Id. ¶¶ 56, 58-60. The Kaufman County Sheriff and his deputies allegedly harassed Plaintiffs and used “unofficial means” to remove them from their property. Id. ¶ 56. The Sheriff and his deputies discriminated against Plaintiffs “because of their race” and failed to protect them, creating a hostile environment that made Plaintiffs afraid to leave their home at night. Id. The Tax Assessor's Office and its agents and employees, including Defendant Jeff Brown, conspired to deprive Plaintiffs of their home by “creating a scheme” to force the property into a tax sale without providing Plaintiffs notice of any indebtedness or arrears or an opportunity to redeem the property. Id. ¶58. Defendant Kaufman County allegedly knew of this wrongdoing and did nothing to prevent it because of the County's policy of racial discrimination against African-Americans. Id. ¶ 56.

Plaintiffs further allege that they hired Defendant Mary Gayle Ramsey, City Attorney for the City of Terrell, to represent them in the foreclosure proceeding initiated against their home and with respect to claims by “various taxing authorities in Kaufman County, including the City of Terrell.” Id. ¶ 76. Attorney Ramsey allegedly represented that she was competent to take Plaintiffs' case, but she did not save their home. Id. She failed to disclose her conflict of interest and improperly failed to refund or provide an accounting of Plaintiffs' retainer fee after she withdrew from their case. Id.

Based on this alleged conduct, Plaintiffs bring claims under 42 U.S.C. § 1983 against the City of Terrell, the City of Kaufman, Kaufman County (the “Municipal Defendants”) and Attorney Brown-in his individual capacity and in his official capacity as the Kaufman County Tax Attorney-for violations of their rights to due process and equal protection under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution and the Bill of Rights to the Texas Constitution. Id. ¶ 54. Plaintiffs also assert that Attorney Ramsey's conduct violated the Texas Deceptive Trade Practices Act (DTPA). Id. ¶ 76.

The City of Terrell and Attorney Ramsey, the City of Kaufman, Kaufman County, and Attorney Brown filed separate motions to dismiss Plaintiffs' complaint on various grounds, including that Plaintiffs' claims are barred by limitations and that Plaintiffs failed to plead sufficient facts to state a plausible Monell claim against the City of Terrell or the City of Kaufman. Additionally, Attorney Ramsey argues that Plaintiffs' claims against her were previously litigated in state court and Plaintiffs are precluded from relitigating those claims now. Attorney Brown argues he is entitled to governmental immunity for Plaintiffs' claims arising out of his role in the assessment of taxes or, in the alternative, attorney immunity. Plaintiffs filed responses challenging the Moving Defendants' arguments. (ECF Nos. 131, 145, 132, 152). Defendants did not file any replies within the time allowed under the rules. Accordingly, the Court considers the motions without the benefit of a reply.

Legal Standards

When deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court “accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal quotation marks omitted). To survive a Rule 12(b)(6) motion a plaintiff's complaint must contain sufficient factual matter to state a claim for relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “To be plausible, the complaint's ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.'” In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 210 (5th Cir. 2010) (quoting Twombly, 550 U.S. at 555).

This pleading standard does not require “‘detailed factual allegations,'” but it does demand more than an unadorned accusation devoid of factual support. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). “[A] formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679. Where the facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has stopped short of showing that the plaintiff is plausibly entitled to relief. Id. at 678 (citing Twombly, 550 U.S. at 557).

“In determining whether a plaintiff's claims survive a Rule 12(b)(6) motion to dismiss, the factual information to which the court addresses its inquiry is limited to (1) the facts set forth in the complaint, (2) documents attached to the complaint, and (3) matters of which judicial notice may be taken under Federal Rule of Evidence 201.” Inclusive Cmtys. Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 900 (5th Cir. 2019) (citing Norris v. Hearst Tr., 500 F.3d 454, 461 n.9 (5th Cir. 2007); R2 Invs. LDC v. Phillips, 401 F.3d 638, 640 n.2 (5th Cir. 2005)). Therefore, “it is clearly proper in deciding a 12(b)(6) motion to take judicial notice of matters of public record.” Norris, 500 F.3d at 461 n.9 (citing Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir. 1994)); see also Fed.R.Evid. 201(b)(2) (permitting courts to judicially notice a fact that “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned”).

Statutes of limitations and res judicata are not expressly listed among the defenses that may be raised in a Rule 12(b) motion; rather, Rule 8(c) includes them as affirmative defenses. Fed.R.Civ.P. 8(c), 12(b); Bradford v. Law Firm of Gauthier, Houghtaling & Williams, L.L.P., 696 Fed.Appx. 691, 694 (5th Cir. 2017) (per curiam) (citing Fed.R.Civ.P. 8(c), 12(b)). But “when a successful affirmative defense appears on the face of the pleadings,” and matters the court may judicially notice, “dismissal under Rule 12(b)(6) may be appropriate.” Kansa Reins. Co. v. Cong. Mortg. Corp. of Tex., 20 F.3d 1362, 1366 (5th Cir. 1994) (citing Clark v. Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)); accord Hall v. Hodgkins, 305 Fed.Appx. 224, 227-28 (5th Cir. 2008) (per curiam) (“If, based on the facts pleaded and judicially noticed, a successful...