Rupe v. The City of Jacksboro, Texas

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

SHERRY J. RUPE, ET AL.,

Plaintiffs,

v. No. 4:23-cv-00998-P

THE CITY OF JACKSBORO, TEXAS,

ET AL.,

Defendants.

ORDER ACCEPTING THE FINDINGS, CONCLUSIONS,

AND RECOMMENDATION OF THE UNITED

STATES MAGISTRATE JUDGE

The United States Magistrate Judge issued findings, conclusions,

and a recommendation (“FCR”) for this case on May 1, 2024. See ECF

No. 47. Plaintiffs objected (ECF No. 48), so the Court conducted a de

novo review. Having done so, the Court ACCEPTS the Magistrate

Judge’s recommendation and OVERRULES Plaintiffs’ objections.

Accordingly, the Court DISMISSES this lawsuit for the reasons below.

BACKGROUND

Like many homeowning couples, Johnny and Sherry Rupe have a

long honey-do list. Johnny tried to shorten his list last September when

he cut down a large limb on the Rupe’s property. The limb, like fallen

arboreal appendages before it, obeyed Newton’s law. It fell on a low-

hanging power line servicing the Rupe’s residence. Chaos ensued.

Fortunately, neither the Rupes nor their residence were damaged when

the downed line emitted huge arcs of electricity. Unfortunately, the

damaged line stopped powering the Rupe’s home, including an all-

important air conditioning unit. Mr. Rupe then did what most folks with

the requisite know-how might do: he “repaired the damage and

requested [electricity provider] Oncor return service to their residence.”

One can imagine Mr. Rupe’s surprise to find out Oncor could not

return electricity to the property, owing to a contract the company

maintains with the City of Jacksboro. With Oncor’s hands tied, Johnny

and Sherry were forced to spend a sweltering weekend without

electricity in their home. To make matters worse, Jacksboro then

informed Mr. Rupe that his DIY electric work was illegal—as Jacksboro

ordinances prohibit electric work by unlicensed persons within city

limits. The Rupes sued the City of Jacksboro and its City Manager last

October, seeking damages allegedly arising from the incident.

As the Rupes see things, it’s self-evident that a homeowner has the

right to make repairs on his or her own property. Accordingly, the Rupes

filed a pro se complaint, which the Court construes as alleging the

following causes of action: (1) elderly abuse in violation of Texas Human

Resources Code § 102.003(b)(2) and 42 U.S.C. § 3058i; (2) violations of

the Eighth Amendment’s prohibition of cruel and unusual punishment;

(3) various violations of the Ninth and Tenth Amendments; (4) fraud,

blackmail, and extortion; (5) municipal liability against Jacksboro

regarding impermissibly vague ordinances; (6) violations of the Rupes’

right to contract; (7) due process violations under the Fifth and

Fourteenth Amendments; and (8) violations of Texas House Bill (“H.B.”)

2127, effective as of September 1, 2023. Defendants moved to dismiss

the Rupe’s lawsuit earlier this year. The Magistrate Judge made

findings regarding Defendants’ motion in May, which are now ripe for

review. Having reviewed the pleadings, record, and FCR de novo, the

Court adopts the FCR as the findings and conclusions of the Court.

LEGAL STANDARD

A federal-court complaint must contain “a short and plain statement

of the claim” that shows “the pleader is entitled to relief.” FED. R. CIV. P.

8. If it doesn’t, the Court may dismiss the complaint under Rule 12. See

FED. R. CIV. P. 12(b)(6). Complaints fail to state a claim on which relief

can be granted if they “lack[ ] an arguable basis either in law or in fact.”

Neitzke v. Williams, 490 U.S. 319, 325 (1989). An arguable basis in fact

means the complaint has “enough facts to state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(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. Iqbal, 556

U.S. 662, 663 (2009) (citing Twombly, 550 U.S. at 556). A case lacks an

arguable basis in law if it’s “based on an indisputably meritless legal

theory.” Neitzke, 490 U.S. at 327; Berry v. Brady, 192 F.3d 504, 507 (5th

Cir. 1999).

At the pleadings stage, the Court accepts all well-pleaded facts as

true and views them in the light most favorable to the plaintiff. Sonnier

v. State Farm Mut. Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir. 2007). This

is even truer for pro se litigants like the Rupes. See Erickson v. Pardus,

551 U.S. 89, 94 (2007). That’s because “a pro se complaint, however

inartfully pleaded, must be held to less stringent standards than formal

pleadings drafted by lawyers.” Estelle v. Gamble, 429 U.S. 97, 106 (1976)

(cleaned up). But the Court’s interpretive leniency doesn’t apply to legal

conclusions, which the Court will not presume to be true. Iqbal, 556 U.S.

at 678–79.

ANALYSIS OF FCR & OBJECTIONS

The Magistrate Judge applied correct legal frameworks to the Rupes’

claims and the Court wholly adopts the FCR’s analysis herein. See ECF

No. 47. As a preliminary matter, the Rupes lack a cognizable claim

against Defendant Smith, Jacksboro’s City Manager. Review of the

pleadings suggest the Rupes only sue Smith in his personal capacity.

See ECF No. 38. To the extent the Rupes intended to sue Smith in his

official capacity vis-à-vis the allegations in the Complaint, those claims

would be duplicative of the Rupes’ claims against the city itself. See ECF

No. 47 at 6. Accordingly, any such claims would properly be dismissed.

Id.; see also Castro Romero v. Becken, 256 F.3d 349, 355 (5th Cir. 2001)

(“The district court was . . . correct in dismissing the allegations against

all of the municipal officers and two of the employees of the Corps of

Engineers in their official capacities, as these allegations are duplicate

claims against the respective governmental entities themselves.”).

Further, the FCR correctly concluded that Smith is entitled to qualified

immunity. See ECF No. 47 at 25–28. The Rupes do not object to the

FCR’s qualified-immunity analysis under Pearson v. Callahan, 555 U.S.

223, 231 (2009). Accordingly, the Court ADOPTS the FCR’s qualified-

immunity analysis and DISMISSES the Rupes’ claims against Smith.

The Court now turns to their claims against the City of Jacksboro.

1. The Rupes’ Elder Abuse Claims Should be Dismissed.

As noted, the Rupes assert claims for elder abuse under 42 U.S.C.

§ 3058i and Texas Human Resources Code § 102.003(b)(2). See ECF No.

1. The FCR concluded the Rupes’ claims under 42 U.S.C. § 3058i should

be dismissed because the Older Americans Act does not create a private

cause of action. See ECF No. 47 at 6–7 (collecting cases). Likewise, the

FCR concluded the Rupes have no cognizable claim under Texas Human

Resources Code § 102.003(b)(2) because the relevant statute applies to

individuals or entities “providing convalescent and nursing home

services, home health services, or alternate care services.” See ECF No.

47 at 8 (citing TEX. HUM. RES. CODE ANN. § 102.001(4)). Both conclusions

are correct. The Rupes did not contest the FCR’s application of law to

the fact of their case for these claims, so the Court ADOPTS the FCR’s

analysis and DISMISSES the Rupes’ elder abuse claims.

2. The Rupes’ Eighth, Ninth, and Tenth Amendment Claim Should

be Dismissed.

The Rupes further suggest Jacksboro violated several constitutional

rights in responding to the incident at the Rupes’ property. See ECF No.

38. As the FCR correctly noted, the Rupes’ Ninth and Tenth Amendment

claims should be dismissed because those Amendments don’t confer

substantive rights or create a private cause of action. See ECF No. 47 at

8–9. Turning to the only constitutional claim that does, the Rupes say

Jacksboro violated their Eighth Amendments rights by “failing to allow

access to utilities until arbitrary conditions are met by the citizens in

times of an emergency without any immediate remedy.” ECF No. 38 at

8. But the FCR rightly noted that the Eighth Amendment’s prohibition

against cruel and unusual punishment applies to individuals in the

State’s custody. See ECF No. 47 at 8 (collecting cases); see generally

Lynch v. Cannatella, 810 F.2d 1363, 1375 (5th Cir. 1987). The Rupes

concede that they weren’t locked up during their ordeal, so the Court

ADOPTS the FCR’s analysis and DISMISSES the Rupes’ claims under

the Eighth, Ninth, and Tenth Amendments.

3. The Rupes’ Fraud, Blackmail, and Extortion Claims Should be

Dismissed.

The FCR also rightly recommended dismissal of the Rupes’ claims

for fraud, blackmail, and extortion. See ECF No. 47 at 9. While fraud,

blackmail, and extortion represent the triumvirate of tort claims

brought against entities in similar circumstances, the Rupes fail to

establish the prima facie elements of any such tort. The Rupes allege

the City committed these torts by making them “buy[] a permit through

a licensed master electrician to have an inspection in order for the City

to contact Oncor to connect the power.” ECF No. 38 at 20. While there’s

room to debate that approach as a matter of policy, bad public policies

are a far cry from actionable fraud, blackmail, or extortion. See ECF No.

47 at 9–11. The Rupes do not object to a specific conclusion the FCR

made for these claims, so the Court ADOPTS the FCR’s

recommendation and DISMISSES the Rupes’ claims for fraud,

blackmail, and extortion.

4. The Rupes’ Due Process and § 1983 Claims Should be Dismissed.

Turning to the Rupes’ § 1983 claims against Jacksboro, a clarifying

remark is in order. The pleadings attempt to articulate municipal

liability claims against Jacksboro while separately alleging independent

Fifth and Fourteenth Amendment claims. But § 1983 is the statutory

vehicle to lodge constitutional grievances like those at issue here. See 42

U.S.C. § 1983 (creating cause of action against persons acting “under

color of any statute, ordinance, regulation, custom, or usage” for “the

deprivation of any rights, privileges, and immunities secured by the

Constitution and laws”). And the Rupes’ ostensibly independent due-

process claims rely upon a preliminary finding vis-à-vis the § 1983

claims. See ECF No. 38. The Court thus addresses these independently

pleaded claims in tandem.

At base, the Rupes assert due process claims under the Fifth and

Fourteenth Amendments based on their forced compliance with

impermissibly vague city ordinances. See id. The FCR is correct that the

Fifth Amendment, which applies only to federal governmental entities,

is not at play here. See ECF No. 47 at 19; see generally Morin v. Caire,

77 F.3d 116, 120 (5th Cir. 1996) (“[T]he Fifth Amendment applies only

to the actions of federal government, and not to the actions of a

municipal government as in the present case.”). But the Rupes have a

potential Fourteenth Amendment claim, as the Fourteenth Amendment

says no state shall “deprive a person of life, liberty, or property without

due process of law.” U.S. CONST., amend. XIV.

The Court departs from the FCR’s analysis on this granular point, as

the Magistrate Judge concluded “Plaintiffs have failed to allege a life,

liberty, or property interest to which the Fourteenth Amendment’s due

process protection applies.” ECF No. 47 at 21. True, “[t]o prevail on a

substantive due process claim, [the Rupes] must first establish that

[they] held a constitutionally protected [] right to which the Fourteenth

Amendment’s due process protection applies.” Simi Inv. Co., Inc. v.

Harris Cnty., Tex., 236 F.3d 240, 249–50 (5th Cir. 2000). But

“[v]agueness doctrine is an outgrowth . . . of the Due Process Clause.”

United States v. Williams, 553 U.S. 285, 304 (2008); see also Grayned v.

City of Rockford, 408 U.S. 104, 108 (1972) (“It is a basic principle of due

process that an enactment is void for vagueness if its prohibitions are

not clearly defined.”). Thus, the issue isn’t that the Rupes fail to allege

a protected interest—but that, as the FCR concluded, the contested

ordinances did not violate such interest. The Court now turns to the

viability of the Rupes’ underlying void-for-vagueness claim.

The Rupes make a compelling case that Jacksboro’s ordinances are

poorly drafted. See ECF No. 38. And this isn’t a geographically

constrained phenomenon: the modern surge in administrative

regulations across federal, state, and local governments has gifted the

governed with a daunting gauntlet of legal obligations. Nevertheless,

vagueness precedents don’t render an ordinance unconstitutional

because it’s relatively opaque. Rather, “[a] statute is unconstitutionally

vague if it does not give a person of ordinary intelligence a reasonable

opportunity to know what is prohibited.” Groome Res., Ltd. v. Parish of

Jefferson, 234 F.3d 192, 217 (5th Cir. 2000) (cleaned up). Thus, to prevail

on their claim, the Rupes must establish that the contested ordinances

are so vague an average Joe wouldn’t understand what they prohibit.

The FCR correctly analyzed the Rupes’ § 1983 claims under the

framework set forth in Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978)

and its progeny. With respect to the challenged ordinances, the Rupes

must establish an “official policy,” which is a law “that is officially

adopted and promulgated by the municipality’s lawmaking officers or by

an official to whom the lawmakers have delegated policy-making

authority.” Brown v. Bryan Cnty., Ok., 219 F.3d 450, 457 (5th Cir. 2000).

If they do, they must then connect that official policy to the

constitutional violation asserted. See id.

Here, the Rupes challenge Jacksboro’s ordinances governing who can

perform electric work in city limits without licensure. ECF No. 38.

Subject to certain exceptions, Texas law answers this question. See TEX.

OCC. CODE ANN. § 1305.151. One exception is for homeowners like Mr.

Rupe. See id. § 1305.003(a)(6) (exempting from the licensure

requirement “work not specifically regulated by a municipal ordinance

that is performed in or on a dwelling by a person who owns and resides

in the dwelling”). While Mr. Rupe performed the challenged work at his

home, the City argues such work was “specifically regulated by a

municipal ordinance.” Indeed, Mr. Rupe seemed to violate clear city

ordinances prohibiting unlicensed electric work on “electric wiring

hereafter installed in the city.” See generally CITY OF JACKSBORO

MUNICIPAL ORDINANCES, Ch. 4, § 4.03.004, 012.

But the Rupes point to a caveat in the municipal code that prohibits

such work “unless the [governed] person holds the appropriate license

and is not otherwise exempted under state law.” See CITY OF JACKSBORO

MUNICIPAL ORDINANCES, Ch. 4, § 4.03.012. As the Rupes see things,

Jacksboro “failed to acknowledge the Plaintiffs are exempted people

under Texas Occupations Code § 1305.003(a)(6) and City of Jacksboro

municipal ordinance § 4.03.012(a).” ECF No. 38 at 13. The Court agrees

with the FCR that Mr. Rupe was not exempted under the Texas

Occupations Code, as § 1305.003(a)(6) only applies where the work is

not “specifically regulated by a municipal ordinance.” See ECF No. 47 at

15. Nothing is ambiguous about that caveat, and Jacksboro “specifically

regulated” work on electric wires installed in the city. Thus, Mr. Rupe

finds no safe harbor in the Occupations Code.

Looking to the city ordinances themselves, while the draftsmanship

leaves much to be desired, the ordinances require licensure “unless the

[governed] person holds the appropriate license and is not otherwise

exempted under state law.” See CITY OF JACKSBORO MUNICIPAL

ORDINANCES, Ch. 4, § 4.03.012. So the Rupes were sent in a regulatory

circle: Texas law exempts homeowners like Mr. Rupe unless a

municipality specifically governs the topic. See TEX. OCC. CODE ANN. §

1305.003(a)(6). Jacksboro does, and its ordinances prohibit the work Mr.

Rupe performed unless Mr. Rupe was otherwise exempted by the

Occupations Code. See CITY OF JACKSBORO MUNICIPAL ORDINANCES, Ch.

4, § 4.03.012. But the Occupation Code doesn’t help Mr. Rupe, as the

relevant exemption only applies to “work not specifically regulated by a

municipal ordinance.” TEX. OCC. CODE ANN. § 1305.003(a)(6). Thus,

because Jacksboro specifically regulated the electric work Rupe

performed, § 1305.003(a)(6) does not apply.

At this stage, the Court must draw all reasonable inferences in the

Rupes’ favor. Sonnier, 509 F.3d at 675. And while the Court sympathizes

with their plight, the challenged ordinances provide a person of

“ordinary intelligence” with “a reasonable opportunity to know what is

prohibited.” Groome, 234 F.3d at 217. To be sure, modern regulatory

schemes are increasingly unfriendly to the very laypersons they govern.

One could certainly critique a system that forces average Americans like

Mr. Rupe to consult cross-referenced regulations promulgated by both

municipal and state authorities. But as well discussed in the FCR, the

cross-referenced laws at issue here are not unconstitutionally vague. See

ECF No. 47 at 11–16. On this point, the Court OVERRULES the Rupes’

objection that “the Court did not address [the question of] who are the

people or is the person that ‘is not otherwise exempted under state law.’”

ECF No. 48 at 3. The FCR addressed this precise point, and as discussed

above, the referenced exemption is inapplicable to Mr. Rupe because the

Occupation Code punts authority to controlling municipal regulations.

Accordingly, the Court DISMISSES the Rupes’ due process and

municipal liability claims.

5. The Rupes’ Right-to-Contract Claim Should be Dismissed.

The Rupes further contend that Jacksboro violated their right to

contract “by forcing [them] into a contract with Oncor to obtain both a

permit and an inspection from The City.” ECF No. 38 at 8–9. On this,

the Court agrees with the Rupes that “[o]ne of the most important

concepts used during the ascendancy of economic due process was the

liberty of contract.” Id. However, as acknowledged in the FCR, the right

to contract has always been “subject to certain limitations which the

state may lawfully impose in the exercise of its police powers.” Holden

v. Hardy, 169 U.S. 366, 391 (1898). Relevant here, you don’t have a right

to contract in violation of valid municipal ordinances. See ECF No. 47 at

17–19 (collecting cases). And as noted above, Jacksboro’s ordinance

requiring licensure to perform electric work in the city is valid. The

Rupes don’t object to the FCR’s analysis vis-à-vis their right-to-contract

claim, but merely to the FCR’s underlying analysis regarding the

ordinance’s legality. See ECF No. 48 at 4–5. Accordingly, the Court

ADOPTS the FCR’s analysis on this point and DISMISSES the Rupes’

right-to-contract claim.

6. The Rupes’ Claim Under H.B. 2127 Should be Dismissed.

Turning to the Rupes’ final cause of action, the Rupes attempt to sue

Jacksboro under H.B. 2127—the recently enacted “Texas Regulatory

Consistency Act.” See ECF No. 38. However, as the FCR rightly noted,

the Rupes were required to give Jacksboro at least three months’

advance notice before suing under H.B. 2127. See ECF No. 47 at 24. They

didn’t, and their failure deprives this Court of jurisdiction over the

claim. See TEX. GOV’T CODE ANN. § 311.034 (“Statutory prerequisites to

suit, including the provision of notice, are jurisdictional requirements in

all suits against a governmental entity.”). As the Rupes do not contest

their failure to provide such notice, the Court ACCEPTS the FCR’s

analysis and DISMISSES the Rupes’ claim under H.B. 2127.

CONCLUSION

For the above reasons, the Court ACCEPTS the findings and

conclusions in the Magistrate Judge’s FCR and DISMISSES this

lawsuit. The Court agrees with the FCR that further amendments would

be futile given the Rupes’ current amendments and the legal infertility

of their proffered theories. See ECF No. 47 at 28–29. Accordingly,

excepting the Rupes’ claims under H.B. 2127, the Rupes’ claims in this

lawsuit are DISMISSED with prejudice. Their claims under H.B.

2127 are not per se meritless; the Rupes simply failed to provide advance

notice before suing. As such, the Rupes’ claims under H.B. 2127 are

DISMISSED without prejudice.

SO ORDERED on this 25th day of July 2024.

MARK T. PITTMAN

UNITED STATES DISTRICT JUDGE

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