# White v. The State of Texas

> District Court, N.D. Texas · November 21, 2023

URL: https://www.frixlaw.com/law-library/cases/10671364

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** November 21, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

JACOB WHITE,

Plaintiff,

v. No. 4:23-cv-00925-P

THE STATE OF TEXAS, ET AL.,

Defendants.
ORDER ACCEPTING THE FINDINGS, CONCLUSIONS,
AND RECOMMENDATION OF THE UNITED STATES
MAGISTRATE JUDGE

The United States Magistrate Judge entered findings, conclusions,
and a recommendation for this case on October 25, 2023. See ECF No.
61. Plaintiff Jacob White filed objections to the FCR on October 31. See
ECF No. 63. The Court thus conducted a de novo review of the FCR and
related briefing. Having done so, the Court ADOPTS the reasoning of
the magistrate judge, ACCEPTS the FCR as the findings and
conclusions of the Court, and ORDERS as follows:
The Grapevine Defendants’ Motion to Dismiss Pursuant to Texas
Civil Practice and Remedies Code § 101.106 (ECF No. 41) is GRANTED.
The Grapevine Defendants’ Motion to Dismiss Pursuant to Federal
Rule of Civil Procedure 12(b)(6) (ECF No. 38) is GRANTED in part.
Texas’s Motion to Dismiss Pursuant to Federal Rule of Civil
Procedure 12(b)(1) is GRANTED in part, with the Court declining to
exercise supplemental jurisdiction over the sole remaining claim against
the State (Count 97 of the Complaint).
BACKGROUND
On September 7, 2023, Jacob White filed a ninety-one-page
Complaint asserting 108 different claims against the State of Texas, the
City of Grapevine, and a small army of individual defendants. By Order
dated October 10, 2023, the Court adopted an earlier FCR and dismissed
White’s claims against Defendant Brandt, a state-court official White
sued in his individual and official capacities. The Court now turns to the
remaining defendants’ motions to dismiss.
While the Complaint “paint[s] an incomplete and somewhat
confusing picture” regarding what specifically White contends each
defendant did, the Complaint’s factual allegations are detailed
extensively in previous FCRs and the Court’s prior order of acceptance
related to former-Defendant Brandt’s motion to dismiss. The skinny of
White’s allegations is this: after a series of run-ins with public
employees at a library/rec center in Grapevine, the City obtained a peace
bond against White. White cries foul and asserts sweeping allegations
of substantive and procedural impropriety vis-à-vis the peace bond
hearing and its subsequent enforcement. As White sees things, a
secretive cabal of municipal employees and state officials conspired to
deprive him of his fundamental right of “locomotion” to and from the
Grapevine library. When White protested, the relevant city employees—
all of whom were allegedly in cahoots with the mayor, city attorney, and
city council—conspired to silence him by posting trespass warnings and
otherwise retaliating against him.
For their part, Defendants say they were simply reacting to White’s
badgering of municipal employees in a manner clearly authorized by
law. The Court need not address Defendants’ substantive arguments,
however, because White’s pleadings do not establish a single plausible
cause of action for which this Court has jurisdiction. White’s lawsuit
alleges a staggering array of torts and civil-liberty violations, as well as
a constitutional challenge against the Texas Penal Code’s provisions
regarding peace bonds. The Complaint is difficult to decipher at times,
in large part because the allegations against individually-named
defendants frequently overlap with allegations against the City of
Grapevine and the State of Texas. As shown below, Texas’s Motion
provides an excellent bird’s-eye synopsis of White’s allegations:
Claims 1-37: all seemingly relate to a “Library Trespass Warning,” and
are further subdivided as follows:
a. Claims 1-17: 42 U.S.C. § 1983. Id. at 11-18.
b. Claims 18-19: 14th Amendment violation. Jd. at 18-19.
c. Claims 20-29: Texas Constitutional Violation. Jd. at 19-25.
d. Claims 30-35: Texas Tort Common Law. Id. at 25-27.
e. Claims 36-37: Texas Tort. Id. at 27—28.
2; Claims 38-72: all seemingly relate to a “Rec Center Trespass Warning,”
and are further subdivided as follows:
a. Claims 38-53: 42 U.S.C. § 1983. Id. at 28-35.
b. Claims 54-55: 14th Amendment violation. Jd. at 35-36.
c. Claims 56-65: Texas Constitutional Violation. Jd. at 36—42.
d. Claims 66-72: Texas Tort / Common Law. Id. at 42—44.
3. Claims 73-1000: all seemingly relate to a “Texas Peace Bond,” and are
further subdivided as follows:
a. Claims 73-82: 42 U.S.C. § 1983. Id at 44—48.
b. Claims 83-90: 14th Amendment violation. Id. at 49-52.
c. Claim 91: 8th Amendment Violation. Id. at 52-53.
d. Claims 92-93: Texas Tort. Id. at 53-54.
e. Claim 94-97: Texas Constitutional Violation. Jd. at 54—55.
f. Claims 98-100: Texas Tort. Id. at 56.
4. Claims 101-102: all seemingly relate to “Property Rights,” and are further
subdivided as follows:
a. Claim 101: 42 U.S.C. § 1983. Id. at 57.
b. Claim 102: Texas Tort. Id.
5. Claims 103-108: are categorized as “Other Claims,” and are further
subdivided as follows:
a. Claim 103: 42 U.S.C. § 1985. Id. at 58.
b. Claim 104: Respondeat Superior. Id.
c. Claim 105: Negligent Hiring, Supervision, and Training. Jd.
at 58-59.
d. Claim 106: 42 U.S.C. § 1983. Id. at 59-60.
e. Claim 107: Indemnification. Jd. at 60.
f. Claim 108: Common Law Fraud. Jd. at 60-61.

See ECF No. 46 at 2.
As noted above, the Court dismissed White’s claims against
Defendant Brandt (who issued the peace bond) because you can’t sue
state judicial officials just because they make decisions you don’t like.
What remains of White’s claims is a bizarre amalgam of allegations for
which White seeks $20 million, along with the following requests for
declaratory relief:
1. The removal of trespass warnings against him.
2. The removal of Grapevine’s peace bond against him.
3. A declaratory finding that the peace bond was unconstitutional.
4. A declaratory finding that Tex. Penal Code Ann. § 30.05 is
unconstitutional.

5. A declaratory finding that “the entire chapter 7 of the Texas Code
of Criminal Procedure” is unconstitutional.
6. A declaratory finding that Grapevine’s city attorney abused legal
process.
7. An injunction against various defendants to keep them from
violating White’s civil rights in the future.
8. An injunction against the State of Texas to keep the State from
violating White’s civil rights in the future.
Given the large number of defendants in this action, the Court uses
“Texas” to refer to the state, “Grapevine” to refer to the city as a
municipality, and “Grapevine Defendants” to refer to the city in
conjunction with the individual defendants, all of whom worked for or
are otherwise connected to Grapevine’s municipal government.1
LEGAL STANDARDS
A. Rule 12(b)(6)
The Court must dismiss a complaint if it doesn’t “state a claim upon
which relief can be granted.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
545 (2007). This makes sense: plaintiffs go to court to seek some form of
relief; if the court can’t provide the relief sought, the case must be
dismissed. To state a viable claim, the complaint must contain “a short
and plain statement of the claim showing that the pleader is entitled to
relief.” FED. R. CIV. P. 8(a). The Court accepts all non-conclusory
allegations as true and views them in the light most favorable to the
plaintiff. Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir.
2008). This is especially true for pro se plaintiffs like White, as “pro se
complaints are held to less stringent standards than formal pleadings
drafted by lawyers.” Miller v. Stanmore, 636 F.2d 986, 988 (5th Cir.
1981). Still, the plaintiff must plead “enough facts to state a claim to
relief that is plausible on its face.” Twombly, 550 U.S. at 570.

1These include Bruno Rumbelow, Jennifer Hibbs, Chris Smith, Leigh
Kapsos, Chad Hetterley, Grace Burckhard, Kevin Manning, Mike Hamlin,
William Tate, Paul Slechta, Sharron Rogers, Leon Leal, Darlene Freed, Chris
Coy, Duff O’Dell, and Matthew Boyle. See ECF No. 61 at 1.
“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. Iqbal, 556
U.S. 662, 678 (2009). “Generally, a court ruling on a motion to dismiss
may rely on only the complaint and its proper attachments. A court is
permitted, however, to rely on documents incorporated into the
complaint by reference, and matters of which a court may take judicial
notice.” Dorsey, 540 F.3d at 338 (citations and internal quotation marks
omitted). “[R]egardless of whether the plaintiff is proceeding pro se or is
represented by counsel, conclusory allegations or legal conclusions
masquerading as factual conclusions will not suffice to [defeat] a motion
to dismiss.” Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir.
2002) (cleaned up).
B. Rule 12(b)(1)
“A case is properly dismissed for lack of subject matter jurisdiction
when the court lacks the statutory or constitutional power to adjudicate
the case.” Smith v. Reg’l Transit Auth., 756 F.3d 340, 347 (5th Cir.
2014). With limited exceptions, the Eleventh Amendment proscribes
private suits brought in federal court against a State, including its
agencies or departments. See Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984). Eleventh Amendment immunity
deprives the Court of subject-matter jurisdiction and may be raised via
a Rule 12(b)(1) motion. See id. at 98 (“[T]he principle of sovereign
immunity is a constitutional limitation on the federal judicial power
established in Art. III.”); see generally FED. R. CIV. P. 12(b)(1).
The Court may dismiss for lack of subject matter jurisdiction on any
one of the following: (1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or (3) the
complaint supplemented by undisputed facts plus the court’s resolution
of disputed facts related to the subject matter jurisdiction issue.
Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981); accord
Ramming v. U.S., 281 F.3d 158, 161 (5th Cir. 2001).
A 12(b)(1) motion that challenges jurisdiction based on the face of the
complaint is a “facial attack.” See Williamson, 645 F.2d at 412. “A facial
attack on the complaint requires the court merely to look and see if
plaintiff has sufficiently alleged a basis of subject matter jurisdiction,
and the allegations in his complaint are taken as true for the purposes
of the motion.” Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511
(5th Cir. 1980); see Williamson, 645 F.2d at 412 (when Rule 12(b)(1)
motion presents a facial attack, “the plaintiff is left with safeguards
similar to those retained” for Rule 12(b)(6) motions).
ANALYSIS
A. White’s claims under 28 U.S.C. § 1983 must be dismissed.
White sues Texas, Grapevine, and the Grapevine Defendants under
28 U.S.C. § 1983. For the Grapevine Defendants, White asserts § 1983
claims in both their official and individual capacities. See generally ECF
No. 1. The Court addresses each claim below.
1. Official-Capacity Claims Against the Grapevine Defendants.
As noted in the FCR and Defendants’ prior briefing, White’s claims
under 28 U.S.C. § 1983 against individual defendants in their official
capacity must be dismissed because “[s]uits against state officials in
their official capacity [] should be treated as suits against the State.”
Hafer v. Melo, 502 U.S. 21, 25 (1991). Plaintiffs may not use suits against
a state agent in his or her “official capacity” as Trojan horses for claims
against the underlying state entity. See generally Ashe v. Corley, 992
F.2d 540, 541 & n.1 (5th Cir. 1993). White acknowledges “Plaintiff is
suing in both individual capacity and official capacity” for the Grapevine
Defendants. ECF No. 63 at 27. Because White fails to meaningfully
distinguish the Complaint’s “official capacity” claims from the same
claims against the State, his official-capacity claims must be
DISMISSED with prejudice. See Corley, 992 F.2d at 541 & n.1; see
generally Kentucky v. Graham, 473 U.S. 159, 165–66 (1985) (explicating
the critical distinction between official-capacity and personal-capacity
claims under § 1983).
White’s objection to the FCR offers to “correct the complaint if the
court prefers” by “remov[ing] the checkbox’s [sic] and keep[ing] the city
and/or the state as defendants.” ECF No. 63 at 4. But as explained
below, White’s claims against Grapevine and Texas fail as a matter of
law, so the Court must decline this invitation.
2. Individual-Capacity Claims Against the Grapevine Defendants.
While White can’t sue the Grapevine Defendants in their official
capacities for the same allegations he asserts against Grapevine, he is
certainly allowed to sue the Grapevine Defendants if they individually
violated his civil liberties. See Monell v. Dep’t of Soc. Servs. of City of
N.Y., 436, U.S. 658, 690 (1978) (“Local governing bodies, therefore, can
be sued directly under § 1983 for monetary, declaratory, or injunctive
relief where, as here, the action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance, regulation, or
decision officially adopted and promulgated by the body’s officers.”).
Here, White’s claims fail for two reasons. First, the Grapevine
Defendants are immune from White’s personal-capacity claims because
the challenged actions were discretionary. See ECF No. 61 at 5–9.
Second, even if the Grapevine Defendants weren’t immune from White’s
lawsuit, White fails to plead sufficient facts to “allow[] the court to draw
the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.
To state a viable personal-capacity claim, White “must plead that
each Government-official defendant, through his own individual actions,
has violated the Constitution.” Id. at 663. He doesn’t. Indeed, even the
most meticulous review of White’s Complaint fails to unearth sufficient
facts, unique to each defendant, to support a legally cognizable claim
against the Grapevine Defendants in their individual capacities.
Because “the tenet that a court must accept a complaint’s allegations as
true is inapplicable to threadbare recitals of a cause of action’s elements,
supported by mere conclusory statements,” the Court conducted a
careful review of White’s allegations in a way that was “context specific”
and called for “experience and common sense.” See Iqbal, 556 U.S. at
663–64. Here, the Complaint’s allegations are almost exclusively
regurgitated elements of various causes of action, devoid of the “who,
what, when, why, and how” necessary to state a viable claim.2 In the

2See, e.g., ECF No. 1 at 13 (“The City Manager had the power to provide
due process or to remove the library trespass warning . . . and failed to do so.
He is liable in his official and individual capacity.”); 13 (“The Mayor and City
Council were requested to remove the library trespass warning or provide due
absence of non-conclusory allegations against the Grapevine Defendants
in their official capacities, see ECF No. 1 at 2–4, White’s claims must be
dismissed.
But even if White’s claims were legally cognizable based upon factual
assertions in the Complaint, the Court would still lack subject-matter
jurisdiction over White’s lawsuit because the Grapevine Defendants are
entitled to qualified immunity against White’s claims. The Court adopts
the FCR’s analysis on this point in its entirety. See ECF No. 61 at 5–9.
White’s objections to the FCR only meaningfully contest the magistrate
judge’s finding that the relevant actions were discretionary. See ECF
No. 63 at 14. The Court disagrees. As the FCR explained:
First, White argues that the Individual Defendants cannot
raise the defense of qualified immunity because they failed
to show that their actions were discretionary. (Pl.’s
Grapevine Resp. at 4). As discussed above, once a
defendant pleads a good-faith entitlement to qualified
immunity, “the burden shifts to the plaintiff.” Hathaway,
507 F.3d at 319. The Court finds that the Individual
Defendants plead and, thus, have properly raised qualified
immunity. Assuming, for argument’s sake, that the
Individual Defendants were required to do more to raise
qualified immunity, they did so. The Court finds, and
White raised no arguments to rebut, that all of the section
1983 claims against the Individual Defendants are for
actions they allegedly took as city employees. (See generally
Complaint). White does, however, argue that those actions
were not discretionary. (Pl.’s Grapevine Resp. at 4-5
(stating that “[c]learly it is not a discretionary action to
commit fraud, false imprisonment, violation of federal due
process, etc.”)). Merriam-Webster defines “discretionary”

process and failed to act . . . . They are liable in their official and individual
capacity.”); 14 (“The library director and the City of Grapevine did violate
Plaintiff’s Substantive due process rights by issuing criminal trespass
warnings for using only his fundamental rights.”); 14 (“The library trespass
warning violated Plaintiff’s Equal protection rights. Plaintiff brings this as a
class-of-one claim.”); 15 (“The Library Director acted after [Plaintiff’s
persistent emails to various city officials] by issuing a criminal trespass
warning. This is retaliation from City Management and the Library director .
. . [and] City Management and the Library Director are liable in both official
and individual capacities.”); 18 (“The library director issued a trespass warning
without just cause, which did violate plaintiff’s right of locomotion.”).
as an action “left to individual choice or judgment.”
Discretionary, The Merriam-Webster Dictionary (Revised
ed. 2022). Thus, a discretionary action is any action in
which the actor has a choice regarding if or how to carry it
out. For example, a Parks/Rec director has the discretion
to issue a trespass warning because he can choose to issue
the warning and he can choose not to issue the warning.
While it is possible that a court could subsequently find
that the issuance of a trespass warning was improper, it
was still a discretionary action. Accordingly, the Court
finds that the Individual Defendants have properly raised
qualified immunity.
ECF No. 61 at 7. White’s objection pushes back against the FCR, arguing
that “the Magistrate cites a non-legal dictionary (Merriam-Webster) for
the legal references instead of court rulings and precedent, which does
not bring high confidence.” ECF No. 63 at 14. But the Court agrees with
the FCR that the crux of White’s allegations centers on discretionary
functions. To the extent White has concerns over the use of Merriam-
Webster’s dictionary, the Court notes that the preeminent legal
dictionary defines “discretionary” in essentially identical terms. See
Discretionary, BLACK’S LAW DICTIONARY (11th ed. 2019) (“involving an
exercise of judgment and choice”).
Still, White objects that he “brings causes of action for abuse of
process, defamation, false imprisonment, fraud on the court, etc.,” none
of which the Grapevine Defendants had “discretion” to commit. See ECF
No. 63 at 14. But the Court doesn’t base its analysis upon legal labels in
the Complaint, but upon the facts underlying White’s claims. The FCR
explained this in substantial detail. See ECF No. 61 at 7. White is thus
incorrect when he says the FCR declared “any action a government
employee takes is discretionary.” ECF No. 63 at 14. The FCR never takes
that approach, but instead explains what precisely renders a state
official’s action “discretionary.”
The FCR also notes that “[i]n a last-ditch effort to save his Section
1983 claims, White argues that ‘declaratory and injunctive relief is
sought and qualified immunity is not a defense.’” ECF No. 61 at 9. But
the FCR collects cases in noting “his argument falls flat because Section
1983 does not permit injunctive relief against state officials sued in their
individual capacities.” Id. The Court agrees.
Because the Grapevine Defendants actions vis-à-vis the peace bond
and trespass warning were discretionary, White’s claims are precluded
as a matter of law—whether or not the Court agrees that the actions
were proper. See Anderson v. Creighton, 483 U.S. 635, 639 (1987).
Accordingly, White’s § 1983 claims against the Grapevine Defendants in
their official capacities are DISMISSED with prejudice.
3. Claims Against the City of Grapevine.
Leaving the individual Grapevine Defendants behind, White also
asserts a § 1983 claim against the City of Grapevine. The Court endorses
the FCR’s analysis on this point as well. See ECF No. 61 at 10–13.
“Municipal liability under Section 1983 requires proof of three
elements: a policymaker; an official policy; and a violation of
constitutional rights whose moving force is the policy or custom.” Self
v. Mansfield, 369 F. Supp. 3d 684, 700 (N.D. Tex. 2019) (quoting
Piotrowski v. Hous., 237 F.3d 567, 578 (5th Cir. 2001)). Plaintiffs must
establish all three elements to state a viable claim against the relevant
municipality. Id. And a municipality may be liable under § 1983 only if
the execution of one of its customs or policies deprives a plaintiff of his
constitutional rights. Monell, 436 U.S. at 691. “Official municipal policy
includes the decisions of a government’s lawmakers, the acts of its
policymaking officials, and practices so persistent and widespread as to
practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61
(2011). Further, “even a facially innocuous policy will support liability if
it was promulgated with deliberate indifference to the known or obvious
consequences that constitutional violations would result.” Piotrowski,
237 F.3d at 579 (citation omitted).
At the end of the day, as the FCR rightly noted, “[a] city cannot be
liable under Section 1983, however, merely because it employed a
tortfeasor.” ECF No. 61 at 11 (collecting cases). Rather, “[t]he ‘official
policy’ requirement . . . make[s] [it] clear that municipality liability is
limited to action for which the municipality is actually responsible . . .
that is, acts which the municipality has officially sanctioned or ordered.”
Pembaur v. Cincinnati, 475 U.S. 469, 479–80 (1986). Put differently,
the policy or custom must be “the moving force of the constitutional
violation.” Monell, 436 U.S. at 694. The Complaint wholly fails to
establish this required showing. Indeed, as White alleges:
The claims brought in this complaint have been brought to
the attention of the Mayor and City Council before the
complaint was filed. The Mayor and City Council then
ratified the decisions. Thus, we see that the policy makers
were involved and that the municipality is liable . . . . We
see there was a city policy (ratified by policy makers), there
was a violation of many civil rights, and the cause of these
violations was due to the policy makers from the city.
ECF No. 49 at 7. Further, White asserts that the city policy led to the
“violation of procedural due process, violation of substantive due
process, violation of free speech, violation of right of locomotion,
violation of freedom of association, equal protection violation, etc.” Id. at
6. But this conclusory statement can’t adequately substitute for factual
allegations. Moreover, the pleadings never identify what the relevant
city policy was. See ECF No. 61 at 12.
So all we know from the pleadings is that various officials within
Grapevine’s municipal government signed off on the peace bond and
trespass warnings that White contests; we don’t know what underlying
city policy allegedly deprived White of a civil liberty. The Complaint’s
silence on this point cannot be overcome. Nevertheless, construing
White’s pleadings “as liberally as possible,” the magistrate judge
concluded “that White is attempting to assert that it was Grapevine’s
city policy to usurp his rights by issuing trespass warnings without the
opportunity for a hearing.” Id. That’s about the best the Court can do
given the paucity of non-conclusory allegations in White’s Complaint.
See ECF No. 1. In this regard, White’s objections fail to indicate any
fault in the FCR’s reasoning, which the Court adopts:
White’s allegations fail to allege “even a facially innocuous
policy [that] was promulgated with deliberate indifference
to the ‘known or obvious consequences’ that constitutional
violations would result.” Piotrowski, 237 F.3d at 579
(internal citations omitted). As discussed above, White
complains that he was issued trespass warnings without a
hearing and, thus, in violation of his rights. A trespass
warning is a predicate to the issuance of a charge of
criminal trespass under section 30.05, and can be given by
the owner of the property or anyone acting on their behalf,
such as an attorney, police officer, neighbor, or employee.
See Texas Penal Code § 30.05. While only one warning is
required for a party to subsequently seek a charge of
criminal trespass, there is no limit to the number of
warnings that can be issued. Id. Because White has not
pled that he has been prosecuted for criminal trespass
under section 30.05, only that he has been given trespass
warnings, no hearing was required, and, thus, he cannot
show that the policy was promulgated with a deliberate
indifference that a constitutional violation would result.
See Smith v. Machorro, No. 3-07-cv-1547-BD, 2008 WL
656500, at *4 (N.D. Tex. Mar. 12, 2008) (finding that the
plaintiffs were never placed under arrest when they were
issued a criminal trespass warning, thus due process is not
triggered); see also Shaikh v. Allen City Council, No. 4:21-
CV-953-ALM-KPJ, 2023 WL 2518908, at *10 (E.D. Tex.
Feb. 8, 2023), rep. and recommendation adopted, No. 4:21-
CV-953-ALM-KPJ, 2023 WL 2503542 (E.D. Tex. Mar. 13,
2023) (citing Bhombal v. Irving Indep. Sch. Dist., No. 3:17-
cv-2583, 2018 WL 2127760, at *3 (N.D. Tex. May 9, 2018)).
Had White been prosecuted for criminal trespass and pled
that Grapevine had an official policy of violating due
process through the prosecution of offenders—not just
White himself—for criminal trespass without a hearing,
his claims possibly could have survived. However, based
on White’s pleadings, that is not the case here.
Because the Complaint identifies no policy or custom that was a “moving
force” behind any constitutional violation, White’s § 1983 claims against
Grapevine are DISMISSED with prejudice.
B. White’s tort claims must be dismissed.
Turning next to White’s tort claims, White alleges an array of
tortious conduct on the part of both the Grapevine Defendants and the
City as a whole. See, e.g., ECF No. 1 at 33–34 (“Defimation [sic] and
common law fraud”), 34 (“Intentional Inflection [sic] of emotional/mental
distress”), 42 (“false imprisonment”), 44 (“civil conspiracy”). For the most
part, White’s pleading regurgitate the elements of each cause of action
and rely upon conclusory assertions of fact instead of substantive
assertions of fact. See id. But the Court need not parse his 60+ tort
claims for each defendant because the claims independently fail as a
matter of law. The Court addresses his claims against the city first.
1. Tort Claims Against the City of Grapevine.
State entities like the City of Grapevine enjoy sovereign immunity
from lawsuits unless such immunity has been waived. Relevant here,
the Texas Tort Claims Act (“TTCA”) provides a limited waiver of
immunity for certain tort actions against the State. See TEX. CIV. PRAC.
& REM. CODE ANN. § 101.023; Mission Consol. Indep. Sch. Dist. v. Garcia,
253 S.W.3d 653, 655 (Tex. 2008). But dismissal is warranted here for
one simple reason: White’s claims against Grapevine all sound in
intentional tort (a fact White doesn’t dispute). See ECF Nos. 1; 47 at 7
(“[c]learly plaintiff brings state claims . . . for intentional torts”). White’s
objections didn’t address this point, which kills his tort claims against
Grapevine. See ECF No. 63; see also Goodman v. Harris Cnty., 571 F.3d
388, 394 (5th Cir. 2009) (“[T]he TTCA does not apply to claims arising
out of an intentional tort.”) (collecting cases). The Court thus adopts the
FCR’s reasoning on this point (see ECF No. 61 at 15–16) and concludes
that White’s tort claims against Grapevine must be DISMISSED with
prejudice.
2. Tort Claims Against the Grapevine Defendants.
Turning next to White’s tort claims against the Grapevine
Defendants, the Complaint asserts twenty-two distinct tort claims
against the Grapevine Defendants based upon the same underlying
facts as his tort claims against Grapevine. See ECF No. 1. Applying the
TTCA once more, Texas law is clear that when a plaintiff sues a
governmental entity and its agents in tort, Section 101.106(e) mandates
dismissal of the claims against the constituent employees. See Univ. of
Tex. Health Science Ctr. at Hous. v. Rios, 542 S.W.3d 530, 537 (Tex.
2017); see generally Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e) (“If a
suit is filed under this chapter against both a governmental unit and
any of its employees, the employees shall immediately be dismissed on
the filing of a motion by the governmental unit.”). In doing so, the TTCA
requires plaintiffs like White to choose between suing a governmental
unit and suing an employee of that unit. See Bustos v. Martini Club,
Inc., 599 F.3d 458, 462 (5th Cir. 2010).
While White insists “[g]overnmental immunity is not relevant to the
state law claims [because] plaintiff does not bring those claims against
the city, only the individuals,” see ECF No. 47 at 7, this argument relies
on formal recitations in the pleadings (i.e., the defendants named for
each count), not the substantive facts underlying each claim (i.e., the
allegations in support of each count). The Court looks to the relevant
conduct, not the titles attached to causes of action in the Complaint. See
Goodman, 571 F.3d at 394 (“Also excluded from the TTCA are
allegations against a governmental unity arising out of the same
conduct that formed the basis of the intentional tort claims against its
employee.”). Because White’s intentional tort claims “arise out of the
same conduct” as his claims against the city, the Court finds White’s
objections unavailing.
Citing Baskin v. Parker, 602 F.2d 1205 (5th Cir. 1979), White
contends “the remedies sought from these state claims need not be
consistent with state law.” ECF No. 47 at 8. Put differently, even if the
TTCA bars White’s tort claims against the Grapevine Defendants, the
Court should nevertheless allow the claims to move forward because
Texas law doesn’t provide an adequate remedy for White’s alleged
injuries. See id. But Baskin was merely noting that state remedies may
often be brought concurrently with federal civil-rights claims “when the
federal remedies ‘are not adapted to the object, or are deficient in the
provisions necessary to furnish suitable remedies and punish offenses
against the law.’” Baskin, 602 F.2d at 1208 (citing 42 U.S.C. § 1988). The
Baskin Court went on to observe that:
Using the varying contours of local law to define the reach
of a federal statutory right of action would make the
availability of vicarious liability depend upon the location
and, in some states, the nature of the tort. These
incidental, irrelevant vagaries should not mold the
contours of this national constitutional tort. Adopting each
state’s law into § 1983 would create a Lex loci doctrine of
respondeat superior granted or withheld, on the basis of
state rather than federal policy.
Id. That case thus implicates, if anything, White’s § 1983 claims. But a
case involving search warrants obtained without probable cause can’t be
said to override the TCCA vis-à-vis White’s simple tort claims, and the
Court finds no precedent whatsoever interpreting Baskin as eliminating
the TCCA’s applicability. Because White’s claims are thus precluded by
law, White’s tort claims against the Grapevine Defendants must be
DISMISSED with prejudice.
C. White claims against Texas must be dismissed.
Having addressed White’s claims against Grapevine and the
Grapevine Defendants, the Court next turns to White’s claims against
Texas. While the pleadings do no favors in determining what White’s
theories of liability are vis-à-vis the State, his claims can be bunched
into three categories: civil-rights claims under 28 U.S.C. § 1983, tort
claims under the TTCA, and constitutional challenges under the Texas
constitution. The Court groups the first two categories (civil-rights
claims and tort claims) because Texas is immune from suit with respect
to those claims. For White’s constitutional challenges, as explained
further below, the Court can liberally construe a viable claim, but
nevertheless declines to exercise supplemental jurisdiction over that
claim in the absence of an independently viable anchor claim to establish
this Court’s jurisdiction.
1. Texas is immune from White’s civil-rights and tort claims.
White alleges numerous civil-rights and tort claims against the State
of Texas. For these claims, the Court is persuaded by the arguments in
Texas’s Motion, see ECF No. 46, and incorporates its above analysis vis-
à-vis Grapevine and the Grapevine Defendants. There’s no need to
repeat much of that analysis here. For the § 1983 claims, the Court’s
position cannot be stated better than in Texas’s Motion: “Critically,
absent a state waiver or congressional override—which White makes no
effort to establish—a ‘State cannot be sued directly in its own name
regardless of the relief sought.’” See ECF No. 46 at 6 (quoting Graham,
473 U.S. at 167 n.14. As explained in the FCR and Texas’s Motion, White
cannot lean upon the Ex Parte Young doctrine to circumvent this
preclusion. See id. at 6–8. Accordingly, White’s civil-rights claims
against Texas must be DISMISSED with prejudice. Similarly,
because “[a] state does not waive Eleventh Amendment immunity in
federal courts merely by waiving sovereign immunity in its own courts,”
see Sherwinski v. Peterson, 98 F.3d 849, 851–52 (5th Cir. 1996), White’s
TTCA claims must also be DISMISSED with prejudice.
2. The Court declines to exercise supplemental jurisdiction over
White’s claims under the Texas Constitution.
Construing the pleadings liberally and interpreting them in White’s
favor, a sole category of claims survives dismissal due to insufficient
pleadings and/or want of jurisdiction: White’s state-constitutional
claims against Texas. While the contours of these claims aren’t clear,
the FCR is right that “it appears that White may be able to seek
equitable relief against Grapevine [and the State] for violations of the
Equal Protection Clause of the Texas Constitution.” ECF No. 61 at 18.
The Court accepts this invitation to abstain. See Brookshire Bros.
Holding, Inc. v. Dayco Prods., Inc., 554 F.3d 595, 602 (5th Cir. 2009)
(“The general rule is that a court should decline to exercise jurisdiction
over remaining state-law claims when all federal-law claims are
eliminated before trial.”). Accordingly, White’s claims under the Texas
Constitution are DISMISSED without prejudice.
Here, the Court notes that Texas’s state courts are more than capable
of handling White’s claim. While the Court is disinclined to exercise
supplemental jurisdiction over his constitutional challenges in the
absence of a live federal claim, White is not without recourse. On the
contrary, he can take his claims sounding in Texas’s state constitution
to Texas’s state courts. But without speaking to the merits of those
claims, this Court will not exercise supplemental jurisdiction over them
without a separate federal claim making such jurisdiction appropriate
and advisable.
CONCLUSION
For the above reasons, the Court DISMISSES White’s civil-rights
and tort claims, along with his corresponding requests for declaratory
and injunctive relief, with prejudice. But the Court declines to exercise
supplemental jurisdiction over White’s remaining plausible claims for
equitable relief under the Texas Constitution because those claims
would not be anchored to any other claim appropriate in this federal
forum. Accordingly, the Court DISMISSES White’s claims under the
Texas Constitution without prejudice. All outstanding motions filed
in this action (ECF Nos. 62, 64, 65, 69, and 71) are hereby DENIED as
moot.
SO ORDERED on this 21st day of November 2023.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10671364. Public record. Not legal advice.