Confessore v. Hood

1

JOSEPH CONFESSORE, Plaintiff, v. ROBBIE HOOD, KATRINA JONES, ROD CARROLL, MISTY SONGE, CHRIS LEAVINS, AMANDA MEADOWS, AMANDA CARTER a/k/a “AMANDA SMITH,” JOHN KIMBROUGH, K. C. BRESHEARS, RONNIE BENNETT, BIANCA TRISTAN, WESLEY ROSS, and REBECCA SMITH a/k/a “UNKNOWN VICTIM'S ASSISTANCE COORDINATOR,” Defendants.

Civil Action No. 1:22-CV-302-MAC-CLS

United States District Court, E.D. Texas, Beaumont Division

December 14, 2022

REPORT AND RECOMMENDATION ON DEFENDANTS HOOD, JONES CARROLL AND SONGE'S MOTION TO DISMISS (DOC. #11) AND DEFENDANTS LEAVINS, CARTER, AND MEADOWS' MOTION TO DISMISS (DOC. #34)

CHRISTINE L STETSON, UNITED STATES MAGISTRATE JUDGE.

Pursuant to 28 U.S.C. § 636 and the Local Rules of Court for the Assignment of Duties to United States Magistrate Judges, the district court referred this proceeding to the undersigned United States magistrate judge to conduct all pretrial proceedings, to enter findings of fact and recommend disposition on case-dispositive matters, and to determine non-dispositive matters. 28 U.S.C. § 636(b)(1); E.D TEX. CIV. R. 72.

Pending before the court are Defendants Robbie Hood, Katrina Jones Rod Carroll, and Misty Songe's Motion to Dismiss (doc. #11) and Defendant Chris Leavins, Amanda Carter (a/k/a “Amanda Smith”), and Amanda Meadows' Motion to Dismiss (doc. #34). After review, the undersigned recommends granting the motions and dismissing all claims against Defendants Hood, Jones, Songe, Carroll, Leavins, Meadows, and Carter.

I. Procedural History and Plaintiff's Claims

On July 29, 2022, Plaintiff Joseph Confessore, proceeding pro se, filed his original complaint against Defendants Robbie Hood, Katrina Jones, Rod Carroll, Misty Songe, Chris Leavins, Amanda Meadows, and Amanda Carter (a/k/a “Amanda Smith”) in their individual and official capacities under case number 1:22-CV-302. (Doc. # 1.) On August 12, 2022, Plaintiff filed another complaint against Defendants John Kimbrough, K. C. Breshears, Ronnie Bennett, Bianca Tristan, Wesley Ross, and Rebecca Smith (a/k/a “Unknown Victim's Assistance Coordinator”) in their individual and official capacities under case number 1:22-CV-326. (Doc. #17.) Case number 1:22-CV-326 was consolidated into 1:22-CV-302 on August 17, 2022. (Doc. #5.) Plaintiff brings suit against all Defendants under 42 U.S.C. § 1983 alleging violations of Plaintiff's constitutional rights under the First and Fourth Amendments. Plaintiff also alleges violations based on criminal statutes 18 U.S.C. §§ 241 and 242 and 42 U.S.C. § 14141.

Plaintiff's various filings (docs. #1, 6, 13, 17, 27) are disorganized and lack significant factual details necessary to clarify the nature of his claims (including both the claims themselves and the exact events giving rise to them) and against whom each claim is brought. Plaintiff's claims appear to generally arise out of two sets of encounters with City of Vidor employees and officials. First, on or around May 4, 2022, and May 6, 2022, Plaintiff attempted to meet with Defendant John Kimbrough, District Attorney for Orange County, seeking unspecified “public services” relating to alleged threats and stalking from Arthur Monariti. (Doc. #17 at 4, 8.) Second, on or around July 28, 2022, Plaintiff attempted to meet with Defendant Robbie Hood, City Manager for the City of Vidor, to pay his trash bill. (Doc. #1 at 8-9 and Doc. #27 at ¶1.) On each occasion, Plaintiff video recorded parts of the interaction-which appear to have taken place in the lobbies of public buildings-and was asked to leave the premises, though Plaintiff was not forced to leave or arrested at any point. (Doc. #1, 17.) Plaintiff also attempted to contact Defendant Leavins by phone on or around July 29, 2022, but Plaintiff was unsuccessful and only communicated with Defendant Amanda Carter (a/k/a “Amanda Smith”). (Doc. #1 at 9.) The “May encounters” allegedly involve Defendants John Kimbrough, K.C. Breshears, Ronnie Bennett, Bianca Tristan, Wesley Ross, and Rebecca Smith (a/k/a “Unknown Victim's Assistance Coordinator”). (Doc. #17.) The “July encounters” allegedly involve Defendants Robbie Hood, Katrina Jones (a/k/a/ “Kristina Smith”), Rod Carroll, Misty Songe, Chris Leavins, Amanda Meadows, and Amanda Carter (a/k/a “Amanda Smith”). (Doc. #1.)

On September 12, 2022, Defendants Robbie Hood, Katrina Jones, Misty Songe, and Rod Carroll filed a Motion to Dismiss Plaintiff's claims against them under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. #11.) Plaintiff timely filed a response (doc. #27) on October 12, 2022, and Defendants timely filed a reply (doc. #29) on October 18, 2022. Defendants Chris Leavins, Amanda Meadows, and Amanda Carter filed a separate Motion to Dismiss on November 2, 2022. (Doc. #34.) Plaintiff did not submit a response. However, Defendants Hood, Jones, Songe, Carroll, Leavins, Meadows, and Carter were all named in the same complaint (doc. #1), and Plaintiffs claims against them arise from the July encounters. Thus, Plaintiff's response (doc. #27) to the first Motion to Dismiss (doc. #11) addresses the same claims challenged in the second Motion to Dismiss (doc. #34). As such, the undersigned will construe Plaintiff's response (doc. #27) as responsive to both the first and second Motions to Dismiss (docs. #11, 34).

II. Legal Standard

To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the complaint must contain sufficient facts, which accepted as true, “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atlantic 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.” Great Lakes Dredge & Dock Co. LLC v. Louisiana, 624 F.3d 201, 210 (5th Cir. 2010) (quoting Twombly, 550 U.S. at 555). “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.” Iqbal, 556 U.S. at 678.

Rule 12(b)(6) must be read in tandem with Rule 8(a), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2); see also Iqbal, 556 U.S. at 677-78; Twombly, 550 U.S. at 555. To decide whether the complaint states a valid claim for relief, the court accepts all well-pleaded facts as true and construes the complaint in the light most favorable to the plaintiff. Great Lakes Dredge, 624 F.3d at 210. However, the court does not accept as true “conclusory allegations, unwarranted factual inferences, or legal conclusions.” Id. (quoting Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007).) “While legal conclusions can provide the complaint's framework, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679. The inquiry focuses on the allegations in the pleadings and not on whether the plaintiff has sufficient evidence to succeed on the merits. Ackerson v. Bean Dredging, LLC, 589 F.3d 196, 209 (5th Cir. 2009).

Proceeding pro se, Plaintiff's pleadings are necessarily held to “less stringent standards than formal pleadings drafted by lawyers,” and are liberally construed by the court. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Perez v. United States, 312 F.3d 191, 194-95 (5th Cir. 2002).

III. Discussion

A. “Claims” Alleged under Criminal Statutes

In his form complaint (doc. #1 at 3), Plaintiff alleges violations of 18 U.S.C. §§ 241 and 242 and 42 § U.S.C. 14141. (Doc. #1 at 3.) These are criminal statutes and do not provide for private rights of action. Chaney v. Races & Aces, No 14-30299, 590 Fed. App'x 327, 330 (5th Cir. 2014); see also McCormick v. City of Dallas, No. 3:18-CV-689-B-BH, 2018 WL 2244700, at *2 (N.D. Tex. Apr. 30, 2018). 42 U.S.C. § 1983 only provides a remedy for violations of federal statutes if those statutes themselves create a private right of action. See Gonzaga Univ. v. Doe, 563 U.S. 273 (2002) (“[W]here the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit, whether under § 1983 or under an implied right of action.”). Therefore, these criminal statutes cannot be used as a predicate for Plaintiff's 42 U.S.C. § 1983 action. Accordingly, any “claims” Plaintiff alleges against Defendants Hood, Jones, Songe, Carroll, Leavins, Meadows, and Carter based on these criminal statutes should be dismissed.

B. First Amendment Claims against Defendants in their Individual Capacity

In his complaint, Plaintiff appears to allege that Defendants Hood, Jones, Songe, Carroll, Leavins, Meadows, and Carter violated his First Amendment rights by: (1) not allowing him to video record his interactions with them and asking him to leave the premises on July 28, 2022; and (2) withholding government services the following day allegedly as a result of his previous interactions with them. (Doc. #1 at 8-9). Construed broadly, Plaintiff is alleging a First Amendment “direct limitation” claim and a First Amendment retaliation claim. See Cripps v. State Dep't of Agric. & Forestry, 819 F.3d 221, 229 (5th Cir. 2016) (citation omitted) (“The First Amendment prohibits both direct limits on individual speech and adverse governmental action against an individual in retaliation for the exercise of protected speech activities.”).

Plaintiff's complaint (doc. #1) fails to state a First Amendment direct limitation claim. As Defendants note in their Motions to Dismiss (doc. #11 at 14-15 and doc. #34 at 9-10) Plaintiff's complaint does not allege that Defendants made him stop video recording or forced him to leave the premises. In fact, Plaintiff's complaint (doc. #1 at 8) and...