Myart v. Mach

JAMES W. MYART JR., Plaintiff, v. STEVEN P. MACH, DPS, CHAIRMAN;STEVEN C. MCCRAW, DIRECTOR,TEXAS DEPARTMENT OF PUBLIC SAFETY;RHONDA FLEMING, JACOB LAVENDER, TROOPER,DEPT. OF PUBLIC SAFETY; KENT COLEMAN,TROOPER, TEXAS DEPT. OF PUBLIC SAFETY;ROBERT DRIGGERS, TROOPER, TEXAS DEPT. OF PUBLIC SAFETY;PHILIP AYALA, TEXAS DEPARTMENT OF PUBLIC SAFETY,STATE OF TEXAS, CITY OF SAN ANTONIO, RON NIRENBERG,MAYOR, CITY OF SAN ANTONIO; WILLIAM P. MCMANUS,CHIEF OF SAN ANTONIO POLICE DEPARTMENT; AND ERIK WALSH, Defendants.

SA-19-CV-00507-OLG

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

October 28, 2019

REPORT AND RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE

To the Honorable Chief United States District Judge Orlando L. Garcia:

This Report and Recommendation concerns the two motions to dismiss pending in the above-styled case: (1) the Motion to Dismiss filed by Defendants Mach, McCraw, Fleming, Ayala, Driggers, Lavender, Coleman, Texas Department of Public Safety and the State of Texas [#7]; and (2) the Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by Defendants Mayor Ron Nirenberg, Chief William McManus, City Manager Erik Walsh, and the City of San Antonio [#8]. All dispositive pretrial matters in this case have been referred to the undersigned for recommendation pursuant to Western District of Texas Local Rule CV-72 and Appendix C [#4]. The undersigned has authority to enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, it is recommended that Defendants' motions to dismiss be GRANTED but that Plaintiff be given an opportunity to attempt to cure his pleading deficiencies by filing a More Definite Statement during the objection period. This case has also been referred for resolution of non-dispositive pretrial matters. Thus, in addition to issuing this report and recommendation on the dispositive motions, the undersigned addresses all other pending non-dispositive motions in this case pursuant to 28 U.S.C. § 636(b)(1)(A).

I. Procedural Background

Plaintiff James W. Myart, Jr., proceeding pro se, originally filed this action in the 224th Judicial District Court of Bexar County, Texas on May 6, 2019, against the Texas Department of Public Safety (hereinafter "DPS"); DPS Chair Steven P. Mack in his Official Capacity; TDPS Director Steven C. McCraw in his Official Capacity; DPS Inspector General Rhonda Fleming in her Official Capacity; DPS Troopers Jacob Lavender, Kent Coleman, Robert Diggers in their Official and Individual Capacities; DPS Commander Philip Ayala in his Official and Individual Capacity; and the State of Texas. (Orig. Pet. [#1-4] at 2-24.) By his Petition, Plaintiff alleges that Defendants subjected him to false arrest, racial profiling, and excessive force related to an incident on March 3, 2019, during which officers stopped Plaintiff for speeding and incorrectly suspected that he was driving under the influence when he was in fact having a diabetic episode. Defendants Mach, McGraw, and Fleming filed a Waiver of Citation on May 8, 2019 and accepted service of Plaintiff's Original Petition. (Waiver of Citation [#1-7] at 2-4.)

Plaintiff filed a First Amended Petition on May 9, 2019, which added the City of San Antonio, Mayor Ron Nirenberg (misnamed Ron Nurnberg), San Antonio Police Chief William McManus, and San Antonio City Manager Erik Walsh in their Official Capacities. (First Am.Pet. [#1-9] at 3-26.) Plaintiff's live pleading alleges both federal civil rights violations pursuant to 42 U.S.C. § 1983 (violation of his right to equal protection, his right to be free from unreasonable search and seizure, his right to be free from excessive force, and his right to be free from false arrest) and state law claims under the Texas Tort Claims Act (intentional infliction of emotional distress, false arrest, and malicious prosecution). Plaintiff seeks $1.5 million in compensatory and punitive damages.

Defendants Mach, McCraw, and Fleming removed Plaintiff's Amended Petition to this Court the following day on the basis of federal question jurisdiction [#1]. At the time of removal, no other Defendants had been served, and none had waived service. The City of San Antonio, Mayor Nirenberg, Chief McManus, and City Manager Walsh subsequently consented to removal [#2]. The motions to dismiss currently before the Court were filed shortly thereafter on May 28 and 30, 2019. The first motion was filed by the "State Defendants" (Mach, McCraw, Fleming, Ayala, Driggers, Lavender, Coleman, DPS, and the State of Texas) [#7] and the second by the "City Defendants" (Nirenberg, McManus, Walsh, and the City of San Antonio) [#8]. Plaintiff's responses to the motions were originally due on June 11, 2019 and June 13, 2019, respectively. Plaintiff promptly moved for an extension of time to file responses to the motions, which the Court granted on June 7, 2019, giving Plaintiff until July 15, 2019 to file his responses [#10]. The Court subsequently stayed this case pending the resolution of the threshold issues raised in Defendants' motions to dismiss [#14].

Plaintiff did not file his response to either motion by the July 15, 2019 deadline. Instead, on July 26, 2019, Plaintiff filed a motion requesting a 90-day stay of all deadlines in this case due to Plaintiff's medical issues, including his deadline to respond to Defendants' motions to dismiss. The Court held a status conference to address the requested stay on August 7, 2019.After hearing the arguments of Plaintiff at the conference, considering Plaintiff's substantial litigation activity in this and other cases leading up to the conference, and reviewing the medical evidence attached to Plaintiff's motion, the Court denied Plaintiff's request for a 90-day stay of the entire case, but stayed all discovery pending the resolution of Defendants' motions to dismiss [#19]. In the same Order, the undersigned ordered that any party seeking to file any document in this case must first seek leave of court. Plaintiff appealed this Order to the District Court and requested the removal of the undersigned from this case, alleging bias. The District Court affirmed the Order denying the 90-day stay and denied Plaintiff's request to remove the undersigned [#26].

Plaintiff filed a response to the State Defendants' motion to dismiss on September 13, 2019 [#31] and a general response to the pending motions to dismiss on October 2, 2019 [#38]. Although these responses were not timely filed, the Court has considered them in ruling on Defendants' motions. Plaintiff also moved for leave to file another 90-day stay of this case on September 25, 2019, which would further delay a ruling on Defendants' motions to dismiss [#35]. A few weeks later, Plaintiff filed a motion to lift the stay and proceed with this case [#49]. In the interim, Plaintiff has filed a number of other motions and appeals to the Fifth Circuit. The undersigned now considers each of these motions in turn.

II. Plaintiff's Motion for Leave to File a Motion for 90-Day Stay

and Motion to Lift Stay

Plaintiff asks the Court for leave to file another motion for a 90-day stay of this case due to his medical issues. Attached to the motion are over one hundred pages of medical evidence demonstrating that Plaintiff has been hospitalized numerous times in the past several months, has lost eyesight in his right eye, and suffers from end-stage renal disease. (Med. Records [#35-1].) Plaintiff also filed additional supplemental records in support of his motion. (Med. Records[#36-1].) In his motion, Plaintiff accuses the undersigned and the District Court of not caring about his medical condition or believing him to be lying to the Court about his illnesses. To the contrary, Plaintiff has sufficiently documented that he suffers from serious medical conditions, which have at times required his hospitalization. Nonetheless, the Court will deny leave to file a second request for a 90-day stay for the following reasons.

This case is currently at the preliminary stage in which the Court is asked to decide threshold issues raised in two motions to dismiss filed by Defendants. At the motion-to-dismiss stage the Court reviews only the plausibility of Plaintiff's pleadings and does not consider any evidence. Accordingly, there is no need for discovery or any other action by Plaintiff, aside from a response to the pending motions to dismiss or supplemental pleading clarifying Plaintiff's allegations to demonstrate that they give rise to valid causes of action under the law. Plaintiff has filed responses to Defendants' motions (albeit late ones). Discovery has been stayed pending the resolution of Defendants' motions. Other than supplementing his pleadings or filing objections, nothing else is required of Plaintiff at this time and a stay of the entire case is unnecessary.

Moreover, even if discovery and other aspects of the litigation were proceeding (and thus a stay would have a bigger impact), the Court would deny the motion. Plaintiff has filed dozens of pleadings, motions, and appeals in this case and other cases pending before this Court¹ since Defendants filed their motions to dismiss. He has demonstrated that, although his illness may be serious, he is capable of drafting hundreds of pages of court filings and actively pursuing multiple cases before this Court and others. Over the past six weeks since the District Courtaffirmed the denial of Plaintiff's request for a stay, in this case alone Plaintiff has filed over twenty motions, responses, pleadings, and appeals. These include two interlocutory appeals to the Fifth Circuit Court of Appeals [#28, #45];² five discovery motions [#27, #32, #34, #43, #47]; a motion to appeal a denial of leave to file a discovery motion to the District Court [#29]; a motion to proceed in forma pauperis on appeal before the Fifth Circuit [#30]; a motion to recuse the undersigned and Chief Judge Garcia from this case...