# Rupe v. The City of Jacksboro, Texas

> District Court, N.D. Texas · July 25, 2024

URL: https://www.frixlaw.com/law-library/cases/10672236

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** July 25, 2024
- **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

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10672236. Public record. Not legal advice.