McCaffety v. Hanson

IN THE UNITED STATES DISTRICT COURT March 13, 2024

FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

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DON McCAFFETY, §

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Plaintiff, §

v. § CIVIL ACTION NO. H-23-4019

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KELSEY HANSON, et al., §

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Defendants. §

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MEMORANDUM AND ORDER

Don McCaffety, representing himself, challenges an eminent domain proceeding that is

pending in Texas state court. (Docket Entry No. 1). He alleges violations of his constitutional

rights and seeks $50.5 million in damages. (Id.). The defendants who are Assistant Attorneys

General, Kelsey Hanson and Clint Harbour, and the TxDot defendants, the Texas Department of

Transportation, Jodi Watkins, Bruce Bugg, Jr., and Marc Williams, moved to dismiss in November

2023. (Docket Entry Nos. 3, 4). McCaffety’s time to respond was extended well past the deadline

when, on February 9, 2024, the court allowed him to respond by March 8. (Docket Entry No. 7).

On March 8, 2024, McCaffety asked for an additional 60-day extension of time to respond because

he is not feeling well. (Docket Entry No. 9). Because McCaffety has had ample time to respond,

and because the grounds for dismissal are clearly right, any additional time for response would be

futile. The request for additional time is denied. (Docket Entry No. 9). The motions to dismiss

are granted. (Docket Entry Nos. 3, 4). The reasons are stated below.

I. The Standard for a Motion to Dismiss

Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which relief can be

granted.” FED. R. CIV. P. 12(b)(6). Rule 12(b)(6) must be read in conjunction 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). “[A] complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Rule 8 “does not require

‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Id. at 678 (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.” Id. (citing Twombly, 550 U.S.

at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more

than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S.

at 556).

“A complaint ‘does not need detailed factual allegations,’ but the facts alleged ‘must be

enough to raise a right to relief above the speculative level.’” Cicalese v. Univ. Tex. Med. Branch,

924 F.3d 762, 765 (5th Cir. 2019) (quoting Twombly, 550 U.S. at 555). “Conversely, when the

allegations in a complaint, however true, could not raise a claim of entitlement to relief, this basic

deficiency should be exposed at the point of minimum expenditure of time and money by the

parties and the court.” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (alterations omitted)

(quoting Twombly, 550 U.S. at 558).

A court reviewing a motion to dismiss under Rule 12(b)(6) may consider “(1) the facts set

forth in the complaint, (2) documents attached to the complaint, and (3) matters of which judicial

notice may be taken under Federal Rule of Evidence 201.” Inclusive Cmtys. Project, Inc. v.

Lincoln Prop. Co., 920 F.3d 890, 900 (5th Cir. 2019).

A motion to dismiss under Rule 12(b)(1) calls into question the district court’s subject-

matter jurisdiction. A movant may demonstrate a lack of jurisdiction from (1) the face of the

complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the

complaint supplemented by undisputed facts and the court’s resolution of disputed facts. Montez

v. Dep’t of Navy, 392 F.3d 147, 149 (5th Cir. 2004). The party invoking the court’s jurisdiction

carries the burden of demonstrating that jurisdiction exists. Ramming v. United States, 281 F.3d

158, 161 (5th Cir. 2001).

II. The Assistant Attorneys General’s Motion to Dismiss

Although McCaffety’s allegations are not always clear, there is no injury he alleges that is

fairly traceable to Assistant Attorneys General Hanson and Harbour. McCaffety alleges that

Hanson did not serve him with process in state court and did not agree to the new appraisal that

McCaffety wanted as part of his effort to challenge the eminent domain process. (Docket Entry

No. 1 at 3–4). McCaffety alleges that Harbour “failed to address” the objection, counter-suit, and

request for injunction that McCaffety filed in the state court proceedings. (Id. at 7). McCaffety

had full notice of the state court proceedings arising from the eminent domain administrative

phase, and filed a counterclaim in the state proceedings to challenge the appraisal and

condemnation. (Id.). McCaffety does not allege injuries that are fairly traceable to the conduct of

Hanson or Harbour, and his allegations do not state any plausible due process violations.

McCaffety’s official capacity claims against both Hanson and Harbour as employees of the

Office of the Attorney General are also barred by the Eleventh Amendment sovereign immunity.

See K.P. v. LeBlanc, 627 F.3d 115, 124 (5th Cir. 2010) (“The Eleventh Amendment bars suits by

private citizens against a state in federal court. The bar applies not only to the state itself, but also

protects state actors in their official capacities.”) (citation omitted); NiGen Biotech, L.L.C. v.

Paxton, 804 F.3d 389, 394 (5th Cir. 2015) (“Texas has not consented by statute, and § 1983 does

not abrogate state sovereign immunity.”) (citing Quern v. Jordan, 440 U.S. 332, 340 (1979)). And,

as prosecutors, Hanson and Harbour have immunity for their actions against McCaffety, which

they took in the course of their roles as advocates for the State. See Buckley v. Fitzsimmons, 509

U.S. 259, 272–73 (1992); Reed v. Gonzalez, 2001 WL 640788 at *4 (N.D. Tex. 2001) (“[E]ven

though the complained of action was a civil case, as long as the prosecutors were functioning as

an advocate for the State of Texas in initiating and pursuing the judicial proceedings, they are

entitled to absolute immunity.”).

As an additional reason to grant the motion to dismiss, this court cannot properly interfere

with the ongoing state court proceedings relating to the eminent domain condemnation

compensation. The issue of compensation in an eminent domain action is one that is properly

resolved in state court. McCaffety can raise his challenges to the exercise of eminent domain in

that court. This court will not interfere with the state’s legal proceeding.

III. The TxDot Defendants’ Motion to Dismiss

The reasons for dismissing the claims against the TxDot defendants are similar. First, the

official capacity claims against this state agency are barred by the Eleventh Amendment and by

state sovereign immunity. Second, the individual TxDot defendants have qualified immunity for

their actions on behalf of the agency. McCaffety does not allege any action by the agency or the

individual defendants that are either violations of his rights or not objectively reasonable. As the

TxDot defendants note, participating in an eminent domain proceeding is not a violation of due

process or objectively unreasonable. And the same reasons for declining to interfere with the

ongoing state proceedings, in which McCaffety has filed a counterclaim, apply to the TxDot

defendants as well as the Assistant Attorneys General.

IV. Conclusion

This suit is dismissed. An order of dismissal is separately entered.

SIGNED on March 13, 2024, at Houston, Texas.

LW Onto

Lee H. Rosenthal

United States District Judge