Bosman v. Child Assessment Center

Southern District of Texas

ENTERED

: April 04, 2025

UNITED STATES DISTRICT COURT Nathan Ochsner, Clerk

SOUTHERN DISTRICT OF TEXAS □

HOUSTON DIVISION □

CAREL DIRK BOSMAN, §

(SPN # 03152017), §

§

Plaintiff, §

□ § . □

vs. § CIVIL ACTION NO. H-25-606

§

CHILD ASSESSMENT CENTER, et §

al., §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

While he was a pretrial detainee, plaintiff Carel Dirk Bosman filed a civil

rights action under 42 U.S.C. § 1983 against the Children’s Assessment Center

(CAC); CAC employees Lala Elepavo, Angela Malbrough, and Sarah Ball; and his

children’s mother, Melissa Bosman.! (Dkt. 1). His action is dismissed with

prejudice for the reasons explained below.

I. BACKGROUND

Bosman was detained in the Harris County Jail while waiting trial on felony

charges of super aggravated sexual assault of a child under the age of six. See Search

‘Bosman has since been convicted of super aggravated sexual assault of a child

under the age of six. See Search Our Records, www.hcdistrictclerk.com (visited Mar. 31,

2025).

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Our Records, www.hedistrictclerk.com (visited Mar. 31, 2025). □

In this complaint, which is one of at least eight Bosman has filed against

various entities eleine to his criminal prosecution, Bosman alleges that the CAC

and three of its employees were negligent and engaged in professional malpractice .

during the course of the criminal proceedings. (Dkt. 1). He also alleges that the ~

mother of his children is guilty of malicious prosecution, peered perjury, witness

tampering, and parental interference. (Jd. at 3). Specifically, he alleges that Melissa

Bosman, added and abetted by-the CAC and its employees, maliciously prosecuted

him and engaged in perjury and witness tampering. (Jd. at 4). He contends that

these actions resulted in the alienation of his children as part of a custody dispute.

(Id.).

As relief Bosman asks the Court to impose disciplinary sanctions against each

of the defendants and award him money damages against them. (d.). This Court

has no authority to initiate disciplinary proceedings against any of the defendants.

Therefore, the Court will consider only Bosman’s claims for money damages.

I. LEGAL PRINCIPLES

. A. Actions Under 42 U.S.C, § 1983.

Bosman brings his action under 42 U.S.C. § 1983. “Section 1983 does not

create any substantive rights, but instead was designed to arerice a remedy for

violations of statutory and constitutional rights.” Lafleur v. Texas Dep’t of Health,

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126 F.3d 758, 759 (Sth Cir. 1997) (per curiam); see also Baker v. McCollan, 443

U.S. 137, 144 n.3 (1979). To state a valid claim under § 1983, the plaintiff must

(1) allege a violation of rights secured by the Constitution or laws of the United

States, and (2) demonstrate that the alleged deprivation was committed by a person

acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Gomez

v Galman, 18 F.4th 769, 775 (5th Cir. 2021) (per curiam). The first element

recognizes that “state tort claims are not actionable under federal law; a plaintiff

under [§] 1983 must show deprivation of a federal right.” Nesmith v. Taylor, 715

F.2d 194, 195 (Sth Cir. 1983). (per curiam). The second element, which requires

action “under color of state law,” means that generally only state actors—not private

parties—can be liable for violations of civil rights. See Frazier v. Bd. of Tr. of Nw.

Miss. Reg’l Med. Ctr., 765 F.2d 1278, 1283 (Sth Cir. 1985).

B. The Prison Litigation Reform Act □

The PLRA, which governs Bosman’s action, requires the Court to examine

the legal and factual basis of a prisoner’s complaint and dismiss the case if it

determines that the complaint “(1) is frivolous, malicious, or fails to state a claim

upon which relief may be granted, or (2) seeks monetary relief from a defendant who

_ is immune from such relief.” 28 U.S.C. § 1915A(b).

A complaint is frivolous “if it lacks an arguable basis in law or fact.” Geiger

v. Jowers, 404 F.3d 371, 373 (Sth Cir. 2005) (per curiam) (citing Denton v.

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Hernandez, 504 U.S. 25, 31-32 (1992)). “A complaint lacks an arguable basis in

law if it is based on an indisputably meritless legal theory, such as if the complaint

alleges the violation of a legal interest which clearly does not exist.” Siglar v.

Hightower, 112 F.3d 191, 193 (Sth Cir. 1997) (citing Neitzke v. Williams, 490 U.S.

319, 327 (1989)). “A complaint lacks an arguable basis in fact if, after providing the

plaintiff the opportunity to present additional facts when necessary, the facts alleged

are clearly baseless.” Rogers v. Boatright, 709 F.3d 403, 407 (Sth Cir. 2013)

(cleaned up). A complaint fails to state a claim upon which relief can be granted if

it does not contain “sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Jd. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)).

In reviewing the complaint, the Court must construe all allegations “liberally

in favor of the plaintiff,” “take[] all facts pleaded in the complaint as true,” and

consider whether “with every doubt resolved on [the plaintiffs] behalf, the

complaint states any valid claim for relief.” Harrington v. State Farm Fire & Cas.

Co., 563 F.3d 141, 147 (Sth Cir. 2009) (cleaned up). If it does not, the complaint

must be dismissed, even before service on the defendants. See In re Jacobs, 213

F.3d 289, 290 (Sth Cir. 2000) (per curiam); Green v. McKaskle, 788 F.2d 1116, 1119

(5th Cir. 1986).

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C. Pro Se Pleadings

Bosman is proceeding pro se in this action. Pleadings filed by pro se litigants

are not held to the same stringent and rigorous standards as pleadings filed by

lawyers and instead must be liberally construed. See Haines v. Kerner, 404 US.

519, 520 (1972) (per curiam); Bledsue v. Johnson, 188 F.3d 250, 255 (Sth Cir. 1999).

even under a liberal construction, pro se plaintiffs “must properly plead

sufficient facts that, when liberally construed, state a plausible claim to relief, serve

defendants, obey discovery orders, present summary judgment evidence, file a □

notice of appeal, and brief arguments on appeal.” E.E.O.C. v. Simbaki, Ltd., 767

F.3d 475, 484 (Sth Cir. 2014) (footnotes omitted).

Il. DISCUSSION

A. Claims Against the CAC

Bosman names the CAC as a defendant in his action. The CAC is a private

foundation that partners with Harris County to provide counseling and other services

to children who have been sexually abused and their families. See The CAC, .

www.cachouston.org (visited Mar. 31, 2025). □

As explained above, § 1983 provides a cause of action only against state

actors. See West, 487 U.S. at 48. As a private foundation, the CAC qualifies as a

state actor only if it is performing a function that “is traditionally the exclusive

province of the state.” Rosborough v. Mgmt. Training Corp., 350 F.3d 459, 460 (Sth

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Cir. 2003) (per curiam). Under this standard, the functions must be both traditionally

and exclusively pevommental See Bass v. Parkwood Hosp., 180 F.3d 234, 241-42 |

(Sth Cir. 1999). Neither the government’s approval of nor acquiescence in the

conduct of a private party is sufficient to make the private entity liable under § 1983.

See, e.g., Blum v. Yaretsky, 457 U.S. 991, 1004-05 (1982); Manax v. McNamara,

842 F.2d 808, 813 (5th Cir. 1988).

Performing counseling services for victims of child sexual abuse and their □

families is nota function that is either traditionally or exclusively within the province ©

of the government. Cf Bass, | 80 F.3d at 242 (dismissing complaint against a private

hospital and its employees and noting that counseling actions taken in furtherance

of civil commitment could not be deemed state action for purposes of § 1983);

Gordon v. Neugebauer, 57 F. Supp. 3d 766 (N.D. Tex. 2014) (actions of a physician □

at a private mental health facility were not functions that were traditionally the

_ excusive province of the state). Accordingly, the CAC does not qualify as a state

actor, and it is not subject to suit under § 1983.

Bosman’s claims against the CAC, a nonstate actor, are dismissed with

prejudice as frivolous under 28 U.S.C. § 1915A(b)(1).

B. Claims Against the CAC Employees .

Bosman also sues three individual CAC eniployees, alleging that they are

liable to him for professional malpractice and negligence in their pending of his

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children and the services provided to them. These claims must be dismissed for two

reasons. First, as employees of a private foundation, these individuals are not state

actors for the reasons explained above. Second, Bosman does not allege claims

against these defendants that arise under the Constitution or federal law.

Claims for professional malpractice and negligence are state tort actions, not

federal constitutional violations. See, e.g., Aguocho-Ohakweh v. Harris Cnty. Hosp.

Dist., 731 F. App’x 312, 315 (5th Cir. 2018) (per curiam) (claims of professional

negligence and malpractice may not be recast as federal constitutional violations);

Combs v. City of Dallas, 289 F. App’x 684, 687 (Sth Cir. 2008) (per curiam) (same).

Bosman’s claims of negligence and professional nialpractice against employees of a

private foundation do not allege a violation of rights secured by the Constitution or

federal law, and the claims are therefore frivolous. .

Bosman’s claims for negligence and professional malpractice against

defendants Elepavo, Malbrough, and Ball are dismissed with prejudice under 28

U.S.C. § 1915A(b)(1) as legally frivolous and for failing to state a claim upon which

relief can be granted.

C. Claims Against Melissa Bosman

Like his claim peat the CAC, Bosman’s claims under § 1983 against

Melissa Bosman must be dismissed for lack of a state actor. Bosman alleges no facts

showing that Melissa Bosman—the mother of his enildrenans a state official, that

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she was acting under color of state law at any time, or that she conspired with state

actors to deprive him of his rights under federal law. He cannot use § 1983 to pursue

state-law claims against her in federal court.

Bosman’s claims against Melissa Bosman do not allege a cause of action

under § 1983. His claims against her are dismissed under 28 U.S.C. § 1915A(b)(1)

as frivolous and for failure to state a claim.

IV. CONCLUSION

Accordingly, the Court ORDERS as follows:

1. Bosman’s civil rights action, (Dkt. 1), is DISMISSED with prejudice as

frivolous and for failure to state a claim.

2. Any pending motions are DENIED as moot.

3. This dismissal will count as a “strike” for purposes of 28 U.S.C. § 1915(g).

The Clerk shall.send a copy of this Memorandum Opinion and Order to the

plaintiff. The Clerk shall also send a copy of this dismissal to the Three-Strikes List

- Manager at the following email: Three Strikes@txs.uscourts.gov,

SIGNED at Houston, Texas on Zz , 2025.

Pel Kot

Pinte

UNITED STATES DISTRICT JUDGE

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