Davis v. Logan

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ROBERT DAVIS, §

§

Plaintiff, §

§

v. § Civil Action No. 4:24-cv-00015-O-BP

§

BRANDON LOGAN, et al., §

§

Defendants. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Before the Court are the three Motions to Strike filed by Plaintiff Robert Davis (“Davis”),

ECF Nos. 22, 23, and 24, and his “Roell Notice,” ECF No. 26; Defendants’ Response to the

Motions, ECF No. 31; and Defendants’ Motion for Judgment on the Pleadings and Brief in Support

and Renewed Motion for Judgment on the Pleadings, ECF Nos. 34 and 36. Although the Court

ordered Davis to file a response to the Defendants’ Motion for Judgment on the Pleadings (ECF

No. 35), he did not do so. After considering the pleadings and applicable legal authorities, the

undersigned RECOMMENDS that United States District Judge Reed O’Connor DENY Davis’

three Motions to Strike (ECF Nos. 22, 23, 24), GRANT in PART Defendants’ Motion for

Judgment on the Pleadings (ECF No. 34) as to Davis’ claim for deliberate indifference to serious

medical needs and harassment, STAY Davis’ claims arising from his arrest until the underlying

state criminal charges resolve, and DISMISS WITHOUT PREJUDICE Davis’ challenges to the

constitutionality of the Texas Penal Code and the Texas Health and Safety Code, for deprivation

of his right to access the state court, and his claims under the Texas Open Records Act.

I. BACKGROUND

In his amended complaint, Davis asserts wide-ranging claims against Wise County, Texas

(“the County”), County Sheriff Lane Akin (“Akin”), Jail Administrator Daniel Armstrong

(“Armstrong”), Captain Wes Wallace (“Wallace”), Deputies Brandon Logan (“Logan”) and

William Snyder (“Snyder”), and a County jailer whose name is unknown currently (“the Jailer”),

ECF No. 1. Taken together, Davis seeks over $3 million in damages from the Defendants. Id.

The case arose on January 5, 2023, when sheriff’s deputies responded to a welfare check

at Davis’ home concerning his adult son, Shannon. ECF No. 6 at 16. In his initial conversation

with Logan, Davis became upset and “vented his frustration” by “shaking the handrail” and

“slamming the door frame on his front door with his fist.” Id. at 18-19. Following this interaction,

deputies arrested Davis and later charged him with “interference” and resisting arrest. Id. at 45.

Davis spent one night in jail, was released on bond, and returned home the next day. ECF No. 34

at 5.

Davis alleges that Logan and Snyder used excessive force against him during the

“warrantless arrest.” ECF No. 6 at 17. He claims that the County, Akin, and Wallace are liable for

“failure of proper training,” and Akin, Wallace, Snyder, and Logan are liable for “failure of

intervention to prevent or mitigate the unnecessarily forceful arrest.” Id. He also asserts that the

County, Akin, Wallace, Snyder, and Logan conspired “to violate [his] rights regarding excessive

force in the arrest.” Id.

Second, Davis claims that Armstrong and the Jailer denied him “proper medical treatment

during custody for the injuries sustained during the arrest and caused by the incident.” Id. He also

claims that Akin and Armstrong failed to intervene “to prevent denial of proper medical

treatment.” Id. at 18. Finally, he asserts that the County, Akin, Armstrong, and the Jailer conspired

“to violate [his] rights regarding denial of proper medical treatment.” Id.

Third, Davis claims that the Jailer and Armstrong harassed him by “actual incarceration”

and “assignment of incarceration” in “[a] ‘padded’(‘danger’/’dangerous’) cell” and “via meal

presentation without utensil(s).” Id. Fourth, Davis alleges that Logan and Snyder assaulted and

battered him and that Logan intentionally inflicted emotional distress in “threatening to shoot

Shannon, an eye-witness to the unnecessarily forceful arrest.” Id. at 18-19.

Fifth, Davis alleges that the Jailer and Armstrong denied him “access to the state court at

the magistration phase” and that the County, Akin, and Wallace failed to provide “proper training

regarding access to the state court system.” Id. Davis also claims that the County, Akin, Wallace,

Armstrong, and the Jailer for conspired “to violate rights regarding denial of access to the state

court at the magistration phase.” Id.

Sixth, Davis claims that the County and Akin violated the Texas Open Records Act by not

responding to his requests and giving “[s]omething like seven or eight non-responses.” Id.

Finally, Davis challenges certain Texas statutes. He asserts that Penal Code §§ 38.15(a)(1)

and (a)(7) are unconstitutional “as applied” to this case. Id. at 20. His lengthy challenge is

somewhat unclear but appears to question the legitimacy of his arrest and subsequent criminal

charges. Davis also challenges certain provisions of the Health and Safety Code relating to mental

health. Id. at 12. These claims address the mental health episodes and concerns of his son, Shannon.

Id. Davis objects that peace officers are not “mental health professionals,” but they conduct

wellness checks and serve as first responders to calls involving mental health issues. Id.

II. LEGAL STANDARD

A. Motions to Strike under Rule 12(f)

A motion to strike allows a court to “strike from a pleading an insufficient defense or any

redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Regarding

motions to strike, “[t]he court may act: (1) on its own; or (2) on motion made by a party either

before responding to the pleading or, if a response is not allowed, within 21 days after being served

with the pleading.” Id. Generally, courts view motions to strike “with disfavor” and grant them

“only when the pleading to be stricken has no possible relation to the controversy.” Sec. and Exch.

Comm'n v. Faulkner, No. 3:16-cv-1735-D, 2019 WL 2515000, at *4 (N.D. Tex. June 18, 2019)

(citation omitted). “Rule 7(a) provides a list of permitted ‘pleadings’ that determines what

constitutes a pleading that is subject to being stricken under Rule 12(f).” Id. at *3. Those pleadings

include a complaint; third-party complaint; answer to a complaint, counterclaim, crossclaim, or

third-party complaint; and “if the court orders one, a reply to an answer.” Fed. R. Civ. P. 7(a).

B. Motion for Judgment on the Pleadings under Rule 12(c)

“A motion for judgment on the pleadings under Rule 12(c) is subject to the same standard

as a motion to dismiss under Rule 12(b)(6).” Robinson v. Midland Cnty., Tex., 80 F.4th 704, 709

(5th Cir. 2023). Rule 12(b)(6) permits dismissal of complaints that fail to state a claim upon which

relief can be granted. Fed. R. Civ. P. 12(b)(6). In considering a Rule 12(b)(6) motion, courts must

“take all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff ... and

ask whether the pleadings contain ‘enough facts to state a claim to relief that is plausible on its

face.’” Yumilicious Franchise, LLC v. Barrie, 819 F.3d 170, 174 (5th Cir. 2016) (citing Twombly,

550 U.S. at 570). “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).

C. Heck Doctrine

The preclusive doctrine outlined in Heck v. Humphrey, 512 U.S. 477 (1994) and its progeny

prohibits litigating cases where success on a claim would “necessarily require the plaintiff to prove

the unlawfulness of his conviction or confinement.” Id. at 486-87. Thus, Heck precludes a civil

action where “a judgment in favor of the plaintiff would necessarily imply the invalidity of his

conviction or sentence.” Hainze v. Richards, 207 F.3d 795, 798 (5th Cir. 2000); see Connors v.

Graves, 538 F.3d 373, 377 (5th Cir. 2008) (dismissing under Heck where claimant “could not

prevail . . . without undermining the validity of his criminal convictions”). This “favorable

termination rule” is an absolute bar to litigation “unless the plaintiff demonstrates that the

conviction or sentence has been reversed on direct appeal, expunged by executive order, declared

invalid by a state tribunal authorized to make such a determination, or called into question by a

federal court’s issuance of a writ of habeas corpus.” DeLeon v. City of Corpus Christi, 488 F.3d

649, 652 (5th Cir. 2007). “The Court should dismiss claims to which the Heck bar applies with

prejudice, subject to the plaintiff’s right to reassert those claims if any of the conditions under Heck

are met.” Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996) (per curiam).

However, “Heck does not extend to cases where a plaintiff files a civil rights action

challenging his arrest before any conviction.” Blakely v. Andrade, 360 F. Supp. 3d 453, 473–74

(N.D. Tex. 2019); citing Wallace v. Kato, 549 U.S. 384, 393–94 (2007); see also DeLeon, 488

F.3d at 655 (confirming that Wallace did not extend Heck's application to pending criminal

matters). Prior to a conviction “it is simply premature to determine whether or not [Plaintiff’s]

claims are barred under Heck.” Mackey v. Dickson, 47 F.3d 744, 746 (5th Cir. 1995). Thus,

it is within the power of the district court, and in accord with common practice, to stay the

civil action until the criminal case or likelihood of a criminal case is ended…. If the plaintiff

is ultimately convicted, and if the stayed civil suit would impugn that conviction, Heck will

require dismissal; otherwise, the civil action will proceed, absent some other bar to suit.

Wallace, 549 U.S. at 393-94.

D. Pro Se Plaintiffs

A pro se plaintiff’s pleadings are liberally construed. Estelle v. Gamble, 429 U.S. 97, 106

(1976). A pro se complaint, “‘however inartfully pleaded,’ must be held to ‘less stringent standards

than formal pleadings drafted by lawyers....’” Id. (quoting Haines v. Kerner, 404 U.S. 519, 520

(1972)). However, “even a liberally-construed pro se . . . complaint must set forth facts giving rise

to a claim on which relief may be granted.” Levitt v. Univ. of Tex. at El Paso, 847 F.2d 221, 224

(5th Cir. 1988) (citing Bounds v. Smith, 430 U.S. 817, 825-26 (1977)). Thus, a court inquires

“whether within the universe of theoretically provable facts there exists a set which can support a

cause of action under [the] complaint, indulgently read.” Covington v. Cole, 528 F.2d 1365, 1370

(5th Cir. 1976).

E. Standing

“Federal courts are courts of limited jurisdiction” that “possess only that power authorized

by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian

Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted). Accordingly, “[a] case

is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or

constitutional power to adjudicate the case.” Home Builders Ass’n of Miss., Inc. v. City of Madison,

Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers Loc. 6 Pension Fund,

81 F.3d 1182, 1187 (2d Cir. 1996)). Any dismissal for lack of subject matter jurisdiction “should

be made without prejudice.” Mitchell v. Bailey, 982 F.3d 937, 944 (5th Cir. 2020).

“Lack of standing is a defect in subject matter jurisdiction.” Reyes v. N. Tex. Tollway Auth.,

830 F. Supp. 2d 194, 201 (N.D. Tex. 2011) (collecting cases). Thus, federal courts must raise the

issue sua sponte where necessary. Ford v. NYLCare Health Plans of Gulf Coast, Inc., 301 F.3d

329, 331-32 (5th Cir. 2002). The plaintiff bears the burden of establishing standing. La. State by

& through La. Dep't of Wildlife & Fisheries v. Nat'l Oceanic & Atmospheric Admin., 70 F.4th 872,

878 (5th Cir. 2023). To establish standing, a plaintiff must show (1) an actual or imminent, and

concrete and particularized injury-in-fact; (2) fairly traceable to the defendant’s conduct; (3) that

is redressable. Fla. Dep't of Ins., v. Chase Bank of Tex. Nat. Ass'n, 274 F.3d 924, 928-29 (5th Cir.

2001) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). “At the pleading stage,

general factual allegations of injury resulting from the defendant's conduct may suffice, for on a

motion to dismiss [courts] presume that general allegations embrace those specific facts that are

necessary to support the claim.” Lujan, 504 U.S. at 561-62.

F. Dismissal With or Without Prejudice

There exists a “well-established policy that the plaintiff be given every opportunity to state

a claim.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). As a result, courts generally

allow plaintiffs at least one opportunity to amend their pleadings. Great Plains Tr. Co. v. Morgan

Stanley Dean Witter & Co., 313 F.3d 305, 329-30 (2002). However, if the Court determines that a

plaintiff has pleaded his best case, it does not err in dismissing a pro se complaint with prejudice.

Jones v. Greninger, 188 F.3d 322, 326-27 (5th Cir. 1999) (citing Bazrowx v. Scott, 136 F.3d 1053,

1054 (5th Cir. 1998); Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986)). Likewise, a court

may dismiss a complaint with prejudice, thus foreclosing the plaintiff’s opportunity to amend,

whenever amendment of the pleadings would be futile. See Stem v. Gomez, 813 F.3d 205, 215-16

(5th Cir. 2016). Likewise, a court may dismiss an action with prejudice without affording plaintiff

the chance to amend where the court invited the plaintiff to respond to the motion to dismiss, but

she did not do so. Rodriguez v. United States, 66 F.3d 95, 97 (5th Cir. 1995).

III. ANALYSIS

A. Davis’ challenges to the undersigned’s pretrial management are unavailing.

Davis’ Motions to Strike, along with his “Roell Notice,” question the undersigned’s

authority as a magistrate judge under 28 U.S.C. § 636. Davis asks the Court to “strike (A) any and

all portions of §§ 636(a), (b), and (c), with a particular focus on (b)(1)(A) and (b)(1)(B), that in

any way purport to justify compelling consent to non-judicial decision-making…over Davis’

overt, ‘at filing,’ objection.” ECF No. 22 at 6. He moves the Court to “strike (B) the standing

orders (which striking is tantamount is a ‘withdrawal of referral’) and related Local Rules

purporting to justify referral ‘at filing’ of ‘civil cases.’” ECF No. 23 at 5. Finally, he urges the

Court to “strike (C) all purported decision-making filed into this judicial Record by the un-

consented-to arbiter, i.e., the ‘magistrate.’” ECF No. 24 at 5.

The Court should deny Davis’ Motions because they lack merit and are not procedurally

proper. Judge O’Connor preliminarily assigned this case to the undersigned under the Court’s

Special Order 3. ECF No. 2. That Order specifically assigns pro se civil cases in which Judge

O’Connor is the district judge to the magistrate judge that was preliminarily assigned. See Special

Order No. 3-251. The Order assigns such case to a magistrate judge “for decisions as to non-

dispositive matters and for findings and recommendations as to dispositive matters.” Id. The law

permits such a referral. See 28 U.S.C. § 636(b)(1). Despite Davis’ objections, such a referral does

not require the consent of the parties. See Newsome v. EEOC, 301 F.3d 227, 230 (5th Cir. 2002).

In support of his Motions, Davis cites and relies heavily on Roell v. Withrow, 538 U.S. 580

(2003). That case primarily considered whether a party’s conduct during litigation could be

deemed as consent to a magistrate judge’s jurisdiction to enter a dispositive order. Id. However,

the magistrate judge in Roell presided over the entire case, eventually entering a final judgment.

Id. Here, there is no suggestion that Davis has consented to the undersigned entering dispositive

orders. When the parties do not consent to a magistrate judge ruling on dispositive matters, the

magistrate judge “properly…enters a recommendation on a [dispositive matter] despite a [party’s]

failure to consent to” the magistrate judge. McFaul v. Valenzuela, 684 F.3d 564, 579 (5th Cir.

2012). “[T]he common practice of having magistrate judges submit proposed findings to district

judges is lawful.” Perkins v. Brewster, 843 F. App’x 637, 638 (5th Cir. 2021). The parties have

the right to appeal such findings and recommendations. 28 U.S.C. § 636(b)(1)(C). Thus, the

undersigned has authority to enter orders on non-dispositive matters in this case and to make

findings and recommendations to Judge O’Connor as to dispositive matters.

Moreover, even if the law permitted Davis’ challenge to the undersigned’s authority, a

motion to strike is not the appropriate procedural method to make that challenge under Rule 12(f).

Davis’ Motions do not reference any pleading listed in Rule 7(a), and provisions of the United

States Code are not pleadings against which a motion to strike may be brought. See Fed. R. Civ.

P. 7(a); see also Fed. R. Civ. P. 12(f). For this independent reason, Davis’ Motions are not proper.

Accordingly, Judge O’Connor should deny Davis’ Motions to Strike.

B. The Court should stay Davis’ claims arising from his arrest under the Heck

Doctrine until his criminal charges resolve.

Defendants move for judgment on the pleadings under Heck because Davis’ criminal

charges “have not been dismissed.” ECF No. at 34 at 6. Davis, however, asserts that those criminal

charges have been dismissed. ECF No. 6 at 49. The Court takes judicial notice that Davis was

indicted on state charges after the state judge granted a habeas corpus petition in March 2024, and

these criminal charges are still pending. Wise County All Courts/Sheriff’s Department Records,

https://jail.co.wise.tx.us/PublicAccess/Search.aspx?ID=100 (last accessed October 7, 2024); see

ECF No. 8 at Ex. 10; see also Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007) (holding

that courts may take judicial notice of matters of public record); see also Fed. R. Evid. R. 201.

Davis admits that he was arrested and charged on multiple counts including resisting arrest

and “interference.” ECF No. 6 at 20. Because Davis’ claims of excessive force, failure to train,

failure to intervene, and conspiracy in connection with his arrest concern “rulings that will likely

be made” in his pending criminal trial, Heck would bar his claims arising from his arrest if he is

convicted. Blakely, 360 F.Supp.3d at 474 (quoting Wallace, 549 U.S. at 393-94); see Whatley v.

Coffin, 496 F. App'x 414, 416 (5th Cir. 2012) (finding that Heck barred claims against the city,

chief of police, and police officers for excessive force where they would imply the invalidity of a

conviction for assault of a public servant). Thus, at this point, “it is simply premature to determine

whether” Heck bars Davis’ claims regarding his arrest, and the appropriate action is to stay such

proceedings, “until [Davis’] related pending criminal case[s] [are] resolved.” Blakely, 369 F. Supp.

3d at 475.

C. The Court should also stay Davis’ state law claims until his criminal charges

resolve and it is clear whether Heck bars his federal law claims.

Davis claims that Logan and Snyder assaulted and battered him and that Logan

intentionally inflicted emotional distress on him during the arrest. ECF No. 6 at 18-19. Davis

asserts that the Court has supplemental jurisdiction over these state law claims because they “arise

from the same facts as the federal question claims.” Id. at 16. Federal courts “have supplemental

jurisdiction over all other claims that are so related to claims in the action within [its] original

jurisdiction that they form part of the same case or controversy under Article III of the United

States Constitution.” 28 U.S.C. § 1367(a). This statute allows a court to decline to exercise

supplemental jurisdiction over a state law claim in certain circumstances, including when “the

district court has dismissed all claims over which it has original jurisdiction” or “in exceptional

circumstances” where “there are other compelling reasons for declining jurisdiction.” Id. at §

1367(c)(3)-(4). In determining whether to retain jurisdiction over the state law claims, the court

considers the provisions of § 1367(c) as well as issues of judicial economy, convenience, fairness,

and comity. Jones v. Adam's Mark Hotel, 840 F. Supp. 66, 69 (S.D. Tex. 1993).

Davis’ claims for assault and battery and intentional infliction of emotional distress arise

out of his arrest, the same event at issue in his federal question claims. Thus, the state law and

federal law claims arise out of a common nucleus of operative facts and form part of the same case

or controversy. Accordingly, the Court would have supplemental jurisdiction over Davis’ state law

claims if Heck did not bar his federal question claims surrounding his arrest. Because it is too early

to determine whether Heck bar his federal claims, the Court should not dismiss Davis’ assault and

battery and intentional infliction of emotion distress claims at this time. Where “[a]ll federal claims

are not [yet] subject to dismissal,” “the proceedings are subject to stay as to both the remaining

federal and state law claims.” Blakely, 360 F.Supp.3d at 491 n.34. Accordingly, the undersigned

recommends that Judge O’Connor stay these state law claims until Davis’ criminal charges resolve

and it is clear whether Heck bars his federal law claims.

D. Davis lacks standing to challenge the Texas Penal Code and Texas Health and

Safety Code.

1. Davis has not shown that his challenges to the Penal Code and Health

and Safety Code are redressable.

Davis challenges §§ 38.14(a)(1) and (a)(7) of the Penal Code, alleging that his arrest was

only made because those provisions unconstitutionally authorize “peace officers, who are not

‘physicians’ and who are not ‘non-physician mental health professionals’” to “gate-keep[] for

(emergency) mental health evaluations and diagnoses in the field.” ECF No. 6 at 25. Davis further

requests that “[m]ental health ‘welfare checks’ shall, from this day and forever more, be conducted

by qualified medical professionals.” Id. at 39.

While Davis has asserted an injury in fact due to his arrest, he has not sufficiently alleged

facts support the second and third standing requirements. To show the second requirement,

causation, a plaintiff’s injuries cannot be “self-inflicted.” Ass'n of Cmty. Orgs. for Reform Now v.

Fowler, 178 F.3d 350, 358 (5th Cir. 1999). Here, while Logan and Snyder arrived at Davis’ home

for to the wellness check under the authority of the alleged unconstitutional provisions of the Texas

Penal Code, they arrested Davis for allegedly resisting his own arrest. This had nothing to do with

the initial welfare check, but instead arose from Davis’ conduct once Logan and Snyder arrived.

Thus, Davis has not shown that the allegedly unconstitutional provisions caused his arrest, but

instead it appears that Davis caused his arrest.

Moreover, Davis has not sufficiently alleged the third element of standing, redressability,

by showing “a substantial likelihood that the requested relief will remedy the alleged injury-in-

fact.” El Paso Cnty. v. Trump, 982 F.3d 332, 341 (5th Cir. 2020) (citing Vt. Agency of Nat. Res. v.

U.S. ex rel. Stevens, 529 U.S. 765, 771 (2000)). Davis seeks to change the Penal Code to allow

only mental health professionals to conduct mental health related welfare checks. However, Davis

has not shown that this remedy would redress his injury. Even if the Court declared the challenged

provisions of the Texas Penal Code to be unconstitutional, this would not affect Davis’ arrest and

subsequent criminal charges. Because the relief Davis requests would not remedy his alleged

injury, he does not have standing to challenge the Penal Code as applied to his case.

Davis’ challenge of the Health and Safety Code is similarly deficient. Davis challenges the

Health and Safety Code both facially and applied because “peace officers” are the first responders

for calls involving a mental health issue. ECF No. 12. However, Davis does not allege a “concrete

and particularized” injury pertaining to the Health and Safety Code specifically. Lujan, 504 U.S.

at 560-61. Rather, this claim includes Davis’ lengthy criticism of the “present protocol” but does

not assert how these policies directly injure or affect him. ECF No. 6 at 12. Even if Davis meant

to allege that the Health and Safety Code was the moving force behind his arrest, again there is no

causation. Davis’ own actions led to his arrest, not the current mental health protocol. Additionally,

Davis has not shown that a ruling by the Court would redress any injuries he incurred. Thus, Davis

has not sufficiently shown that he has standing to challenge the Health and Safety Code.

Accordingly, Davis lacks standing to challenge the constitutionality of the Texas Penal

Code and the Texas Health and Safety Code, and the Court should dismiss those claims without

prejudice.

2. Even if Davis did have proper standing, he cannot challenge the Texas

Health and Safety Code on behalf of his son.

“In all courts of the United States the parties may plead and conduct their own cases

personally or by counsel.” 28 U.S.C. § 1654. However, a party “cannot be represented by a

nonlawyer,” because § 1654 “does not include the phrase, ‘or by a nonlawyer.’” Raskin ex rel. JD

v. Dall. Indep. Sch. Dist., 69 F.4th 280, 283 (5th Cir. 2023) (quoting Gonzales v. Wyatt, 157 F.3d

1016, 1021 (5th Cir. 1998)). The Court should dismiss any claims that a pro se plaintiff asserts

based on the claims of his children. Except for certain types of cases where a statute permits parents

to represent their children pro se, the law generally prohibits them from doing so. Raskin, 69 F.4th

at 286. It is plaintiff’s burden to “establish that under § 1654, federal or state law authorizes h[im]

to proceed pro se on behalf of h[is] children.” Id. at 287.

Davis challenges the constitutionality of “the present Mental Health Code

protocol…facially and as applied” on behalf of his son, Shannon. ECF No. 6 at 12. Davis urges

reform of the Texas Health and Safety Code and the current protocol for handling mental health

situations, such as the many encounters with Davis’ son. Id. However, Davis pleads no facts to

show that he is a lawyer. Further, Davis has not met his burden of establishing “that under § 1654,

federal or state law authorizes [him to proceed pro se] on behalf of [his son].” Raskin, 69 F.4th at

287. Consequently, Judge O’Connor should dismiss all claims that Davis brings as next friend of

his child or that Davis asserts directly as his representative because Davis cannot proceed pro se in

this case on behalf of anyone other than himself.

E. Davis has not alleged sufficient facts to state a plausible claim for relief

regarding his brief incarceration.

1. Davis has not shown that he was denied proper medical treatment, nor

that the Jailer and Armstrong acted with deliberate indifference.

Davis alleges denial of medical treatment and harassment against the Jailer and Armstrong

for the conditions of his one-night stay in jail. ECF No. 6 at 63. He argues that the Jailer and

Armstrong violated his Eighth Amendment rights and acted with deliberate indifference towards

his needs. Id.

At the outset, the Court notes that

since pretrial detainees and convicted state prisoners are similarly restricted in their

ability to fend for themselves, the State owes a duty to both groups that effectively

confers upon them a set of constitutional rights that fall under the Court's rubric of

‘basic human needs.’ Pretrial detainees and convicted prisoners, however, look to

different constitutional provisions for their respective rights to basic needs such as

medical care and safety.

Hare v. City of Corinth, Miss., 74 F.3d 633, 639 (5th Cir. 1996). While the constitutional rights of

convicted prisoners arise from the Eighth Amendment, those of a pretrial detainee “flow from both

the procedural and substantive due process guarantees of the Fourteenth Amendment.” Id. During

his detention, Davis was a pretrial detainee. Although he asserts claims under the Eighth

Amendment, his claims arise out of the Fourteenth Amendment, and the Court will liberally

construe them as such.

Davis states that he had “very high blood pressure,” that he told this to the Jailer, and the

Jailer in turn told a nurse who gave him “Clonadine pills.” Id. at 63-64. Davis admits that these

pills did help to reduce his blood pressure, but he believes that he should have been sent to a

medical facility “for EKG studies.” Id. at 64. Davis also asserts that he had an ankle injury that the

Jailer photographed at Davis’ request, but Davis believes he should have received an ice pack and

had an X-ray taken. Id. at 66. Finally, Davis asserts that his kidneys were injured during the arrest

and believes that he should have had tests done, such as a “dye-based test[]” to “determine the

extent of injury to [his] internal organ.” Id. at 66-67. Davis argues that this conduct by the Jailer

amounts to denial of medical treatment, deliberate indifference, and intentional infliction of

emotional distress. Id. at 68.

However, as Defendants argue, “[d]eliberate indifference is an extremely high standard to

meet.” Domino v. Tex. Dep't of Crim. Just., 239 F.3d 752, 756 (5th Cir. 2001). A prison official

acts with deliberate indifference “only if he knows that inmates face a substantial risk of serious

bodily harm and he disregards that risk by failing to take reasonable measures to abate it.” Farmer

v. Brennan, 511 U.S. 825, 847 (1994). Further, as it applies to Davis’ claims, the Fifth Circuit has

held that “that a state jail official's constitutional liability to pretrial detainees for episodic acts or

omissions should be measured by a standard of subjective deliberate indifference as enunciated by

the Supreme Court in Farmer.” Hare, 74 F.3d at 643.

Davis has asserted no facts to show that either the Jailer or Armstrong knew that he faced

a substantial risk of serious bodily harm and failed to act reasonably to abate such risk. Further,

Davis received medical attention and care from both the Jailer and a nurse while in custody and

went home the next day. Davis’ assertions are not sufficient to show that the Jailer or Armstrong

meet the subjective deliberate indifference standard in Farmer.

Because Davis has not alleged a constitutional injury attributable to the Jailer and

Armstrong, he has stated a claim that Akin and Armstrong failed to intervene in the alleged denial

of medical treatment. The same can be said regarding Davis’ claims against the County, Akin,

Armstrong, and the Jailer for conspiracy regarding the denial of proper medical treatment. Since

Davis has not alleged any constitutional violation, there can be no conspiracy surrounding such a

violation.

As to Davis’ claim of intentional infliction of emotional distress, the Fifth Circuit has held

that to make such a claim under Texas law, “the plaintiff must also demonstrate that there is no

alternative cause of action available to address the alleged misconduct.” Stelly v. Duriso, 982 F.3d

403, 408 (5th Cir. 2020) (citing Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447

(Tex. 2004)). The court further held that “[intentional infliction of emotional distress] is a ‘gap-

filler’ tort reserved for ‘those rare instances in which a defendant intentionally inflicts severe

emotional distress in a manner so unusual that the victim has no other recognized theory of

redress.’” Stelly, 982 F.3d at 408 (quoting Zeltwanger, 144 S.W.3d at 447). Here, Davis claims

many other recognized theories of redress, including deliberate indifference. ECF No. 6 at 68.

Thus, intentional infliction of emotional distress is not legally available in the present case. Even

if it were, Davis has alleged no facts to support an assertion that any of the Defendants

“intentionally and recklessly engaged in extreme or outrageous conduct,” as Texas law requires to

recover for intentional infliction of emotional distress. Stelly, 982 F.3d at 408. Davis only has

claimed that he should have received certain medical care such as an ice pack or an x-ray but

asserts to no extreme or outrageous conduct. ECF No. 6 at 66.

Accordingly, Judge O’Connor should dismiss all of Davis’ claims asserting denial of

medical treatment.

2. Davis’ claims for harassment do not state a claim upon which relief can

be granted.

Davis also claims that Armstrong and the Jailer harassed him by placing him in a “padded

cell” and serving him a meal without providing eating utensils or a napkin. ECF No. 6. Davis

alleges that padded cells exist for “the custody of those deemed to be or to cause a genuine, material

threat of serious bodily injury to others or to themselves.” Id. at 76. However, Davis admits that

the Jailer explained that since Davis was a retired law enforcement officer, placement in a padded

cell was for his own safety. Id.

When a plaintiff alleges unconstitutional conditions of confinement, he must show that the

condition has no reasonable relationship to a legitimate governmental interest. See Duvall v. Dall.

Cnty., 631 F.3d 203, 207 (5th Cir. 2011). The Jailer offered a reasonable explanation for Davis’

placement in a separate cell, and Davis offered no facts to contradict this explanation of the need

to protect him.

Davis further alleges that he was placed in a “dangerous cell,” and served a meal without

eating utensils or a napkin. Id. However, he later admitted that he “was allowed to eat, with a

spoon, under supervision of a Deputy.” Id. Detainment “requires that the State provide for inmates’

basic human needs.” Shepherd v. Dall. Cnty., 591 F.3d 445, 453 (5th Cir. 2009). Basic human

needs generally include “food, clothing, shelter, medical care, and reasonable safety.” Hare, 74

F.3d at 639. Davis has not alleged sufficient facts to show that the Jailer and Armstrong deprived

him of any basic human needs. Jail staff served Davis a meal, and after request, provided him a

spoon with which to eat the meal. ECF No. 6 at 18. While a Deputy watched him eat, the jail’s

staff did not deprive him of any basic human needs.

Accordingly, Judge O’Connor should dismiss Davis’ claims arising from his assignment

and placement in a padded cell and his claims relating to his meal presentation.

F. Davis’ claim for denial of access to the state court fails to sufficiently state a

claim upon which relief can be granted.

Davis asserts that he was denied access to the state court “at the magistration phase,” by

the Jailer and Armstrong. ECF No. 6 at 85. Davis alleges that he had no access to his computer

and printer in custody, and that the Jailer denied Davis’ request for a pen and paper to “document

his request for the Examining Trial.” Id. However, while prisoners have a constitutional right of

access to the courts, Davis was only in custody from January 5 to January 6. Once he was released,

he had ample opportunity to use his own resources to access the state court. Further, Davis’ mere

assertion that “[the Jailer] never provided [the pen and paper],” is insufficient to show that he was

“denied the opportunity to present to the judiciary allegations concerning violations of

fundamental constitutional rights.” ECF No. 6 at 85; Wolff v. McDonnell, 418 U.S. 539, 579

(1974). Additionally, Davis does not state any facts to show that a one-day denial of a computer,

printer, paper, and a pen harmed him in any way.

Further, the Court should dismiss Davis’ claims for failure to train, failure to intervene, and

conspiracy relating to the denial of access to state court because there was no underlying

constitutional violation for which the defendants could be held liable. Because Davis has not

alleged a constitutional injury, he has not stated to state a claim that the County, Akin, and Wallace

were the “moving force behind [the]violation of his constitutional rights.” Bustos v. Martini Club

Inc., 599 F.3d 458, 467 (5th Cir. 2010). Likewise, he has not stated facts to show that the County,

Akin, Wallace, Armstrong, and the Jailer for conspired to deny him access to state court. Since

Davis has not alleged any constitutional violation, there can be no conspiracy surrounding such a

violation.

Accordingly, the Court should dismiss Davis’ claims of denial of access to the state court,

failure of training regarding such access, and conspiracy regarding such access for failure to state

a claim upon which relief can be granted.

G. The Texas Open Records Act is not actionable in this Court.

Davis claims that Akin and the County violated the Open Records Act in several instances.

ECF No. 6. He contends that he made multiple requests for information including body camera

footage and audio from his arrest, records regarding the present location of a weapon that sheriff’s

deputies seized from his son, and records “of the magistration process.” ECF No. 6 at 87-88. Davis

further alleges that the Sheriff’s Department responded to his request for body cam footage, stating

that the information is unavailable because it is still under investigation, the “JP court” has

responded that records of the magistration process are in the possession of the Sheriff’s

Department, and no records can be found regarding the weapon. Id.

Davis’ claims are not actionable in this Court, though a person who has requested

information from a public entity may file a suit for writ of mandamus in state court to compel the

governmental entity to make the requested information available. Perry v. Kaufman Cnty., No.

3:98-cv-2870L, 2000 WL 1372832, at *11 (N.D. Tex. Sept. 22, 2000); see also, Tex. Gov't Code

§ 552.321 (Vernon Supp. 2024). “Where the requestor fails to seek relief by filing a suit of writ of

mandamus in the appropriate state court, § 552.321, the claim is improper and subject to

dismissal.” Jackson v. Tex. S. Univ., No. CIV.A. H-11-4092, 2013 WL 593412, at *6 (S.D. Tex.

Feb. 14, 2013); see Moore v. Collins, 897 S.W.2d 496, 500 (Tex. App.—Houston [1st Dist.] 1995,

no writ) (noting that “when officials do not comply with these provisions of the Government code,

the requestor’s relief is limited to the statutory remedy of filing suit for a ‘writ of mandamus’ or

seeking declaratory relief.”); see also Jenkins v. Tarrant Cnty. Sheriff's Off., No. 4:21-CV-0910-

O, 2022 WL 426593, at *5 (N.D. Tex. Feb. 11, 2022), aff'd, No. 22-10244, 2023 WL 5665774

(5th Cir. Sept. 1, 2023) (noting that “Section 552.321(b) of the Act waives sovereign immunity in

state court only.”). Because Davis did not file a suit in the proper state court seeking a writ of

mandamus in accordance with the requirements of the Texas Government Code, his Texas Open

Records Act claims are not properly before the Court.

Accordingly, the undersigned recommends that Judge O’Connor dismiss Davis’ claims

against Akin and the County for Texas Open Records Act Violations without prejudice to Davis’

right to pursue those claims in an appropriate state court.

IV. CONCLUSION

While courts generally allow plaintiffs at least one opportunity to amend an insufficient

pleading, the undersigned finds that Judge O’Connor should dismiss Davis’ claims for deliberate

indifference to serious medical needs and harassment without granting him leave to amend. Great

Plains Tr. Co., 313 F.3d at 329. Davis has amended his pleading once already, resulting in an 89-

page amended complaint. ECF No. 6. Further, the Court ordered Davis to respond to Defendants’

Motion for Judgment on the Pleadings, but he did not do so. ECF No. 35. Accordingly, given the

extent of his amended pleading and failure to comply with the Court’s Order, the undersigned

concludes that Davis has pleaded his best case regarding his claims for deliberate indifference to

serious medical needs and harassment, and that any further amendment would be futile.

For these reasons, the undersigned RECOMMENDS that Judge O’Connor DENY Davis’

three Motions to Strike (ECF Nos. 22, 23, 24), GRANT in PART Defendants’ Motion for

Judgment on the Pleadings (ECF No. 34) as to Davis’ claim for deliberate indifference to serious

medical needs and harassment, STAY Davis’ claims arising from his arrest until the underlying

state criminal charges resolve, and DISMISS WITHOUT PREJUDICE Davis’ challenges to the

constitutionality of the Texas Penal Code and the Texas Health and Safety Code, for deprivation

of his right to access the state court, and for violation of the Texas Open Records Act.

A copy of these findings, conclusions, and recommendation shall be served on all parties

in the manner provided by law. Any party who objects to any part of these findings, conclusions,

and recommendation must file specific written objections within fourteen days after being served

with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). To be specific, an objection must

identify the particular finding or recommendation to which objection is made, state the basis for

the objection, and specify the place in the magistrate judge’s findings, conclusions, and

recommendation where the disputed determination is found. An objection that merely incorporates

by reference or refers to the briefing before the magistrate judge is not specific. Failure to file

specific written objections will bar the aggrieved party from appealing the factual findings and

legal conclusions of the magistrate judge that are accepted or adopted by the district court, except

upon grounds of plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (Sth

Cir. 1996) (en banc), modified by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the

time to file objections to 14 days).

SIGNED on October 7, 2024.

Hal R. Ray, Jr.

UNITED STATES MAGISTRATE JUDGE

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