Diogu II v. George

UNITED STATES DISTRICT COURT May 02, 2025

Nathan Ochsner, Clerk

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

Diogu Kalu Diogu II, LLM., et al. §

Plaintiffs, §

§

v. § Civil Action 4:24-cv-3590

§

Honorable KP George, Charles §

G. Norvell, James A. Eleckel, §

John D. Melancon, John/Jane §

Does 1-20, §

Defendants. §

MEMORANDUM AND RECOMMENDATION

This case has been referred to the undersigned magistrate

judge pursuant to 28 U.S.C. 636(b)(1). Pending before the court are

Defendant Charles G. Norvell’s (Norvell) Motion to Dismiss, ECF

No. 20; Diogu Kalu Diogu II’s (Diogu) Request for Entry of Default

against Defendants Honorable KP George, James A. Eleckel, John

D. Melancon, and John/Jane Does 1-10, ECF No. 29; Defendants

James A. Eleckel and John D. Melancon’s Motion to Dismiss, ECF

No. 31; Defendant Honorable KP George’s Motion to Dismiss, ECF

No. 33; Diogu’s Motion for Leave to File A Second Amended

Complaint, ECF No. 34; and Diogu’s Motion to Disqualify

Defendants’ Attorneys, ECF No. 35.

The undersigned recommends that Norvell’s Motion to

Dismiss, ECF No. 20, be GRANTED and that Diogu’s claims

against Norvell be DISMISSED with prejudice; that Eleckel and

Melancon’s Motion to Dismiss, ECF No. 31, be GRANTED and

that Diogu’s claims against Eleckel and Melancon be DISMISSED

without prejudice; that KP George and Fort Bend County’s Motion

to Dismiss, ECF No. 33, be GRANTED and that Diogu’s claims

against KP George and Fort Bend County be DISMISSED with

prejudice.

The request for entry of default, ECF No. 29 is DENIED.

The Clerk is ORDERED to refrain from entering default against

any defendant in this case. Diogu’s Motion for Leave to File a

Second Amended Complaint, ECF No. 34, and Diogu’s Motion to

Disqualify Defendant’s Attorneys, ECF No. 35, are DENIED.

1. Background

A. Factual Background

Diogu filed this suit against Defendants to complain about

two incidents that allegedly occurred on July 2, 2024.

First, Diogu alleges that while driving toward a stop sign, he

was accosted by Fort Bend County law enforcement officers. ECF

No. 17 at 2. Defendants John D. Melancon, James A. Eleckel, and

unknown Defendants John Does 1-10, are Fort Bend County

Precinct 1 Deputy Constables and were among those alleged to

have stopped Diogu. Id. at 5. Diogu alleges that, though he

followed all the deputies’ commands, they nonetheless assaulted

and handcuffed him. Id. Diogu alleges that he informed the

deputies that he suffered from chronic sciatica and asked them to

handcuff him from the front rather than the back to avoid

exacerbating his condition. The deputies allegedly ignored Diogu’s

request and handcuffed him while his hands were placed behind

his back. Id. at 2-3. Diogu states that, because of the way he was

handcuffed, he began to bleed profusely from his elbow and wrist

and suffered extensive injuries that left him in “persistent

debilitating pain,” which prevented him from engaging in basic

household chores. Id. at 3, 14. Diogu alleges that he informed

Defendant Melancon of the pain he suffered but he was ignored

until Defendant “Deputy Doe” asked Defendant Melancon to

loosen the handcuffs. Id. at 13.

Second, Diogu alleges that, after the deputies arrested him,

they went to his property and forced his children, sister, and

nephew out of the house and to the street without a court order.

Id. at 15. Diogu states that his property was free and clear of any

mortgage note or deed and therefore could not be seized. Id. Diogu

alleges that the defendants conspired with Southwest

International Trucks, a private company, to seize and destroy the

personal property contained within his house. Id. at 17. Diogu

alleges that deputies confiscated or destroyed NASA memorabilia,

cash, and other items, worth more than $500,000,000. Id. at 16.

Diogu believes that any property that officers failed to confiscate

themselves was likely destroyed by Hurricane Beryl or stolen by

bystanders when the deputies dumped his personal property

outside. Id. at 18. Diogu also alleges that deputies took his two

Great Pyrenees puppies to the Fort Bend Animal Shelter for

slaughter. Id. Diogu alleges that the “Constable” (Norvell) has for

weeks kept a 24-hour watch over the residence, using floodlights

at night, and a guard, to prevent Diogu and his children from

entering the property. Id. at 18.

B. Procedural Posture

On September 24, 2024, Diogu sued Defendants for their

involvement in the two incidents. ECF No. 1. That same day, Diogu

amended his complaint to properly name the Plaintiffs. ECF No. 3.

Three days later, on September 27, 2024, Diogu amended his

complaint a third time. ECF No. 6. Diogu then filed a document

titled “Second Amended Complaint,” the operative pleading, on

October 7, 2024. ECF No. 17.1

In the Second Amended Complaint, Diogu seeks to bring

eight claims against Defendants. First, Diogu brings claims under

1 What Diogu refers to as the “Second Amended Complaint” is really his third

amendment. The court uses the title Diogu gave the document to avoid confusion.

42 U.S.C. 1983 for the following: excessive force in handcuffing in

violation of the Fourth Amendment (Count 1); malicious

prosecution and violation of substantive due process in violation of

the Fourteenth Amendment (Count 2); unlawful search, seizure,

and excessive force in violation of the Fourth Amendment

(Count 3); conspiracy to violate civil rights (Count 4); a Monell

claim against Fort Bend County for an unconstitutional policy,

custom, or practice (Count 5); and a failure to train, supervise,

discipline, or correct claim against Defendant Deputies and Fort

Bend County (Count 6). Diogu also requests injunctive relief

(Count 7) and declaratory relief (Count 8). Id. at 29. Diogu

requests, as damages, an amount exceeding $500,000,000. Id.

Diogu also requests punitive damages. Id. at 30.

On October 15, 2024, Norvell filed a motion to dismiss the

Second Amended Complaint, arguing that he is shielded by

qualified immunity and that there is no colorable Monell claim

against him because he is not a final policy maker. ECF No. 20.

Diogu responds that Norvell is a final policy maker for Fort Bend

County Precinct 1 and that Norvell’s recitation of the law is

incorrect. ECF No. 25.

On November 19, 2024, Diogu requested entry of default

against Defendants Eleckel, KP George, John/Jane Does 1-10, and

Melancon for failure to answer or otherwise defend. ECF No. 29.

On November 26, 2024, Defendants Eleckel and Melancon filed a

motion to dismiss Diogu’s complaint for insufficient service of

process under Federal Rule of Civil Procedure 12(b)(4) and (5).

ECF No. 31. On December 3, 2024, KP George filed a motion to

dismiss Diogu’s complaint for insufficient service of process in

violation of Federal Rules of Civil Procedure 12(b)(4)–(5) and for

failure to state a claim in violation of Federal Rule of Civil

Procedure 12(b)(6). ECF No. 33.

On November 26, 2024, Diogu and Southwest International

Trucks agreed that the latter should be dismissed. ECF No. 30.

Southwest International was dismissed the same day. ECF No. 32.

On December 17, 2024, Diogu filed two motions—one for

leave to file an amended complaint and another to disqualify

Defendants’ lawyers. ECF No. 34; ECF No. 35. In his proposed

amended complaint, Diogu seeks to add several state law claims,

including false arrest, abuse of process, malicious prosecution,

intentional infliction of emotional distress, trespass, theft and

conversion, intrusion on seclusion, assault, battery, civil

conspiracy to violate Texas law, false imprisonment, and

unreasonable search and seizure. ECF No. 34-2. Diogu also

proposes to add several federal law claims, including false arrest,

malicious prosecution, fabricated evidence, and retaliation. Id. In

his motion to disqualify Defendants’ attorneys, Diogu argues that

their presence in this case presents irreconcilable conflicts of

interest. ECF No. 35. Defendants have jointly responded to each

motion and urge the court not to grant either request. ECF No. 39.

2. Motions to Dismiss

A. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) authorizes the court

to dismiss a complaint for “failure to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). Generally, the court

is constrained to the “four corners of the complaint” to determine

whether the plaintiff has stated a claim. Morgan v. Swanson, 659

F.3d 359, 401 (5th Cir. 2011); see also Loofbourrow v. Comm’r, 208

F. Supp. 2d 698, 708 (S.D. Tex. 2002) (“[T]he court may not look

beyond the four corners of the plaintiff’s pleadings.”).

“The court accepts all well-pleaded facts as true, viewing

them in the light most favorable to the plaintiff,” and “drawing all

reasonable inferences in that party’s favor.” In re Katrina Canal

Breaches Litig., 495 F.3d 191, 205–06 (5th Cir. 2007). The pleading

rules “do not countenance dismissal of a complaint for imperfect

statement of the legal theory supporting the claim asserted.”

Johnson v. City of Shelby, Miss., 574 U.S. 10, 11 (2014); see

Skinner v. Switzer, 562 U.S. 521, 530 (2011) (“[A] complaint need

not pin plaintiff’s claim for relief to a precise legal theory.”).

A complaint must contain a “short and plain statement of

the claim showing that the pleader is entitled to relief.” Fed. R.

Civ. P. 8(a)(2). To survive a Rule 12(b)(6) motion to dismiss, the

plaintiff must also plead “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).

Only statements of fact are to be taken as true. “Threadbare

recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

Conclusory allegations are “disentitled . . . to the presumption of

truth.” Iqbal, 566 U.S. at 681. Thus, the court, in reviewing the

plaintiff’s complaint, may neither “accept conclusory allegations”

nor “strain to find inferences favorable to the plaintiffs.”

Southland Sec. Corp. v. INSpire Ins. Sols., Inc., 365 F.3d 353, 361

(5th Cir. 2004). While “pro se complaints are held to less stringent

standards than formal pleadings drafted by lawyers,” conclusory

allegations will not suffice to prevent a motion to dismiss

regardless of whether the plaintiff is proceeding pro se or is

represented by counsel. Taylor v. Books A Million, Inc., 296 F.3d

376, 378 (5th Cir. 2002).

B. Analysis

i. ECF No. 20: Constable Norvell’s Motion to

Dismiss

Norvell moves for dismissal of the individual and official

capacity claims against him. He argues that the individual

capacity claims fail because qualified immunity shields him from

any liability. ECF No. 20 at 13. He also argues that the official

capacity claims against him fail because Diogu does not state

plausible Monell, failure to train, or failure to discipline claims

against him. Norvell additionally argues that Diogu’s official

capacity claims against him are redundant, that the Fort Bend

County Constable Precinct One cannot be sued, and that punitive

damages are unavailable against him. Diogu responds that Norvell

is a final policymaker for Ford Bend County Precinct 1, and that

Norvell can be sued in his individual and official capacities. ECF

No. 25 at 4-5.

The individual capacity claims against Norvell should be

dismissed. A supervisory official may be held liable under § 1983

only if he personally participated in the acts that caused the

constitutional deprivation, or if he implements unconstitutional

policies that causally result in the constitutional injury. Porter v.

Epps, 659 F.3d 440, 446 (5th Cir. 2011). Diogu did not allege any

facts establishing that Norvell was personally involved in his

arrest or the seizure of his property. The only factual allegation

that could possibly be interpreted to relate to Norvell’s personal

involvement is that “the Constable kept 24 hour-watch over the

Resident [sic], employed floodlights at night, and person [sic]

guard for weeks.” ECF No. 17 at 18. This allegation does not

pertain to the arrest of Diogu or the seizure of the property. Diogu

does not explain how Norvell violated his constitutional rights by

instituting surveillance on a residence. It is also not at all clear

that such surveillance was ordered by Norvell or that Norvell was

involved in the surveillance personally. It is entirely implausible

that Norvell, the Constable himself, was standing a 24-hour watch

and operating floodlights.

Further, Diogu includes a conclusory allegation that Norvell

was “at all times material herein a policymaker and supervisor and

acting under color of law with the course and scope of his

employment and office as the Fort Bend County Constables

Precinct 1.” ECF No. 17 at 7. These allegations are not sufficient

to establish that Norvell was personally involved in the

complained-of incidents. Nor does it establish with any specificity

what Norvell did to order or implement policies resulting in any

constitutional violation. As such, the individual capacity claims

against Norvell should be dismissed.

The official capacity claims against Norvell should also be

dismissed because they are duplicative. The Supreme Court has

established that “an official-capacity suit is, in all respects other

than name, to be treated as a suit against the entity. It is not a suit

against the official personally, for the real party in interest is the

entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985); see also

Moss v. Harris Cty., No. CV H-14-2180, 2016 WL 9049981, *2 (S.D.

Tex. Jan. 13, 2016). Federal district courts in Texas have

“uniformly held official-capacity claims should be dismissed as

duplicative and redundant where the government entity for which

the individual serves is also named as a defendant.” League of

United Latin American Citizens v. Texas, 2015 WL 3464082, *2

(W.D. Tex. May 29, 2015). That is, the official capacity claims

against Norvell are really claims against the county.

Diogu has named Fort Bend County Judge KP George as a

defendant in his official capacity. ECF No. 17 at 7. Those claims,

in turn, are actually claims against the county. As such, the official

capacity claims against Norvell ought to be dismissed because they

are duplicative of the claims against KP George.

To the extent that Diogu asserts claims against Norvell’s

office—the Fort Bend County Constable Precinct 1—those should

also be dismissed. Federal Rule of Civil Procedure 17(b)(3)

provides that the law of the state in which a federal court sits

determines a party’s ability to sue and be sued. Fed. R. Civ. P.

17(b)(3). Under Texas law, constables, sheriffs, and police

departments cannot be sued unless the county grants the agency

“jural authority.” Darby v. Pasadena Police Dep’t, 939 F.2d 311,

313 (5th Cir. 1991). Diogu has provided no evidence or argument

that Fort Bend County has granted the Fort Bend County

Constable Precinct 1 jural authority, and those claims should

therefore be dismissed. See, e.g., Ramos v. Lucio, No. CV B-08-122,

2008 WL 11503546, *2 (S.D. Tex. Sept. 24, 2008) (“Plaintiffs have

not alleged facts showing that Defendant Precinct 6 Constable’s

Office has been established as a separate legal entity . . .

Consequently, Precinct 6 Constable’s Office should be dismissed

for lack of jural capacity.”).

Because Diogu does not provide factual allegations

establishing that Norvell was personally involved in the arrest and

seizure of the property, the undersigned recommends that the

individual capacity claims against Norvell be DISMISSED with

prejudice. Because the official capacity claims against Norvell are

duplicative of the claims against KP George and Fort Bend County,

the undersigned recommends that the official capacity claims

against Norvell be DISMISSED with prejudice. To the extent that

Diogu brings claims against Fort Bend County Constable

Precinct 1, the undersigned recommends that those claims be

DISMISSED with prejudice because that entity has not been

conferred with jural authority.

ii. ECF Nos. 29 and 31: Diogu’s Request for Entry of

Default and Defendants’ James A. Eleckel and

John D. Melancon’s Motion to Dismiss Pursuant

to Federal Rule of Civil Procedure 12(b)(4) and

12(b)(5).

Diogu requests entry of default against Defendants KP

George, Eleckel, Melancon, and John/Jane Doe 1-10 for failure to

answer or defend. ECF No. 29. Eleckel and Melancon move to

dismiss Diogu’s claims against them for insufficient service under

Federal Rule of Civil Procedure 12(b)(4) and (5). ECF No. 31. Diogu

has not responded to that motion.

Diogu attaches to his request for entry of default a

declaration explaining how he served process on the Defendants.

ECF No. 29 at 3. He states that on September 29, 2024, copies of

the summons and his original complaint were personally served on

the Defendants as required under Texas Rule of Civil Procedure

106(a)(2). Id. at 4. He states that on or about October 11, 2024, the

attorneys for Defendants KP George, Norvell, Eleckel, and

Melancon, acknowledged receipt of the summons and complaint.

Id. He added that the Defendants stated that they would appear

to file a motion to dismiss the claims against them. Id. Eleckel and

Melancon do not contest these allegations but add that Diogu’s

attempted service is invalid under Texas law because it was not

served by the Clerk of the Court. ECF No. 31 at 3.

Federal Rule of Civil Procedure 55(a) allows entry of default

against a party who has failed to plead or otherwise defend. Fed.

R. Civ. P. 55(a). But under Rule 12(a)(1)(A)(i), the defendant’s time

to answer is triggered by service of the summons and complaint.

Id. at 12(a)(1)(A)(i). Federal Rule of Civil Procedure 12(b) allows a

party to assert by motion a defense of insufficient process or

insufficient service of process. Id. at 12(b)(4)—(5). Federal Rule of

Civil Procedure 4(e) provides that “an individual . . . may be served

in a judicial district of the United States by (1) following state law

for serving summons in an action brought in courts of general

jurisdiction in the state where the district court is located or where

service is made[.]” Id. at 4(e). A district court has broad discretion

to dismiss an action for insufficient service of process. Perez v. City

of New Orleans, 173 F. Supp. 3d 337, 345 (E.D. La. 2016) (citing

Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 645 (5th

Cir. 1994)).

Texas Rule of Civil Procedure 106(a)(2), which Diogu cites,

provides that a citation must be “served by mailing to the

defendant by registered or certified mail, return receipt requested,

a copy of the citation and of the petition.” Tex. R. Civ. P. 106(a)(2).

But the Texas Rules of Civil Procedure also provides that “service

by registered or certified mail . . . must, if requested, be made by

the clerk of the court in which the case is pending.” Tex. R. Civ. P.

103. This rule also prohibits a person who is a party to a suit, or

interested in a suit’s outcome, from serving process. Id.

Additionally, Texas Rule of Civil Procedure 107(c) provides that

“when the citation was served by registered or certified mail as

authorized by Rule 106 the return by the officer or authorized

person must also contain the return receipt with the addressee’s

signature.” Tex. R. Civ. P. 107(c).

Diogu has attached the summonses for each of the

Defendants he is requesting default judgment against: Eleckel,

Melancon, KP George, and Norvell. ECF No. 29 at 8-9. The

summonses do not include any indication that service was made

by the clerk of court or that service was made by certified mail. Id.

at 8-9. On the summonses for Eleckel and Melancon, there is no

signature from the clerk of court on either suggesting that the

clerk of court effected service of process. Id. Diogu does not state

in his declaration that the clerk of court effected service of process

for the Defendants. Id. at 3-5. Additionally, for each of the

Defendants that Diogu requests a default judgment against,

Diogu’s return of service does not contain a return receipt with the

Defendants’ addresses as is required by Texas Rule of Civil

Procedure 107(c).

Diogu has not demonstrated that Eleckel, Melancon, and KP

George have been properly served, so the clerk is ORDERED to

refrain from entry of default. Eleckel, Melancon, and KP George

have pointed out the service deficiencies and have argued that they

were prejudiced by the insufficient service, but Diogu has not

responded or otherwise cured any of the problems. For the reasons

provided, the undersigned recommends that that Eleckel and

Melancon’s Motion to Dismiss be GRANTED and that Diogu’s

claims against them be DISMISSED without prejudice.

iii. ECF No. 33: Honorable KP George and Fort Bend

County’s Motion to Dismiss Plaintiff’s Second

Amended Complaint Pursuant to Federal Rules of

Civil Procedure 12(b)(4), 12(b)(5) and 12(b)(6)

Defendant KP George and Fort Bend County move to

dismiss Diogu’s complaint against him for insufficient process and

service of process under Federal Rules of Civil Procedure 12(b)(4)

and 12(b)(5). ECF No. 33. They also move to dismiss the complaint

because Diogu failed to state a claim under Federal Rule of Civil

Procedure 12(b)(6). Id. KP George argues that he is shielded by

qualified immunity, that he was not personally involved in the

conduct, and that there are no plausible Monell, failure to train, or

failure to discipline claims. Id. at 13-24. KP George also argues

that the claims against him are duplicative of the claims against

Fort Bend County, that punitive damages are unavailable against

him, and that there can be no declaratory relief. Id. at 24-25. Diogu

has not responded.

As stated, Diogu’s service of process was insufficient as to

KP George. Diogu has provided no indication that the clerk of court

effectuated service by certified mail. Diogu has not cured any of

the problems with his service of process. The undersigned

recommends that KP George’s Motion to Dismiss based on Federal

Rule of Civil Procedure 12(b)(4) and 12(b)(5) be GRANTED.

Even if service of process as to KP George was sufficient,

Diogu has failed to state a claim upon which relief could be

granted. Specifically, Diogu has not alleged facts establishing that

KP George was personally involved in any of the alleged

unconstitutional conduct. Nor has he alleged facts to establish

plausible Monell, failure to train, or failure to discipline claims.

The individual capacity claims against KP George should be

dismissed. A supervisory official may be held liable under § 1983

only if he personally participated in the acts that caused the

constitutional deprivation, or if he implements unconstitutional

policies that causally result in the constitutional injury. Porter,

659 F.3d at 446. Diogu did not allege any facts establishing that

KP George was personally involved in his arrest or the seizure of

his property. Diogu only states that KP George was “at all times

material herein a policy maker and supervisor and acting under

color of law within the course and scope of his employment and

office as the Fort Bend County Judge[.]” ECF No. 17 at 7. These

allegations are conclusory and do not establish KP George’s

personal involvement in the conduct.

The Monell claims against KP George and Fort Bend County

should be dismissed. To state a plausible Monell claim, a plaintiff

must allege facts to support a finding that a) an official

policymaker with actual or constructive knowledge of the alleged

constitutional violation acted on behalf of the municipality, b) that

the alleged unconstitutional action constitutes a policy or custom,

and c) that there was a violation of constitutional rights whose

moving force was the policy or custom. Brown v. Tarrant County,

985 F.3d 489, 497 (5th Cir. 2021). Importantly, to survive a motion

to dismiss a Monell claim, a plaintiff must plead facts showing that

the defendant acted pursuant to a specific official policy

promulgated or ratified by the legally authorized policymaker.

Groden v. City of Dallas, Texas, 826 F.3d 280, 282 (5th Cir. 2016).

Diogu has not alleged any facts establishing that KP George

acted pursuant to a specific policy or even that Fort Bend County

had such a policy. Diogu only provides a conclusory allegation that

KP George was “at all times material herein a policymaker and

supervisor and acting under color of law within the course and

scope of his employment and office as the Fort Bend County

Judge[.]” ECF No. 17 at 7. Diogu does not even allege any facts

establishing the existence of a specific, official Fort Bend County

policy. While a “persistent, widespread practice of city officials or

employees . . . so common and well settled as to constitute a

custom” can satisfy the policy or custom requirement, see Webster

v. City of Hous., 735 F.2d 838, 841 (5th Cir. 1984), Diogu does not

allege facts connecting KP George to any persistent or widespread

practices of arresting persons or seizing their homes or allege facts

demonstrating that such a persistent and widespread practice

exists.

The failure to train, supervise, and discipline claims against

KP George and Fort Bend County likewise should be dismissed. To

state a plausible failure to train, supervise, or discipline claim, a

plaintiff must allege facts to support a finding that the supervisor

either failed to supervise, train, or discipline the subordinate

official; a causal link exists between the failure to train, supervise,

or discipline and the violation of the plaintiff’s rights; and that the

failure to train, supervise, or discipline amounts to deliberate

indifference. Mesa v. Prejean, 543 F.3d 264, 274 (5th Cir. 2008); see

also Deville v. Marcantel, 567 F.3d 156, 171 (5th Cir. 2009) (citing

Piotrowski v. City of Houston, 237 F.3d 567, 580 (5th Cir. 2001)). A

plaintiff cannot rely on conclusory allegations to support such

claims. Speck v. Wiginton, 606 F. App’x 733, 736 (5th Cir. 2015).

Diogu provides only conclusory allegations. Diogu states

that Fort Bend County “should be held accountable for its failure

to train and supervise [the officers] concerning a procedure as

routine and frequent as the arrest of a person with a medical

condition in non-exigent circumstances[.]” ECF No. 17 at 4. Diogu

goes on to state that the failure to train and supervise is “no

wonder, given the County’s track record of failing to discipline its

officers when they use excessive force against Black men[.]” Id.

Diogu also alleges that the County has failed to train, supervise,

and discipline officers as required by the United States and Texas

constitutions and that these failures amount to de facto policy. Id.

at 27. These allegations are conclusory, and Diogu does not point

to any facts suggesting that there are deficiencies with the

training, supervision, or discipline of Fort Bend County officers.

For the foregoing reasons, the undersigned recommends that

the individual capacity claims against KP George be DISMISSED

with prejudice. The undersigned recommends that the official

capacity claims against KP George and Fort Bend County be

DISMISSED with prejudice. The undersigned recommends that

the Monell, failure to train, failure to supervise, and failure to

discipline claims against KP George and Fort Bend County be

DISMISSED with prejudice.

iv. Sua Sponte Dismissal of Claims Against

John/Jane Doe Defendants

The undersigned has recommended that all claims against

all named defendants be dismissed. That leaves the claims against

unknown John or Jane Doe Defendants. The Fifth Circuit has held

that where “a defending party establishes that plaintiff has no

cause of action . . . this defense generally inures also to the benefit

of a defaulting defendant.” Lewis v. Lynn, 236 F.3d 766, 768 (5th

Cir. 2001) (citing United States v. Peerless Ins. Co., 374 F.2d 942,

945 (4th Cir. 1967)). The court has held that it would be

“incongruous” and “unfair” to allow some defendants to prevail

while not providing the same benefits to similarly situated

defendants. Id.

The unnamed John/Jane Defendants are similarly situated

to the named Defendants who have had the claims against them

dismissed. Diogu has not stated a cause of action against any of

the John/Jane Doe Defendants for the reasons described above

with respect to the named Defendants. Specifically, Diogu’s

allegations are conclusory and do not provide enough factual detail

to avoid dismissal under Federal Rule of Civil Procedure 12(b)(6).

The undersigned recommends that the claims against unnamed

John or Jane Doe Defendants be DISMISSED with prejudice.

3. Motion for Leave to Amend

A. Legal Standards

Under Federal Rule of Civil Procedure 15(a), courts “should

freely give leave [to amend] when justice so requires.” Fed. R. Civ.

P. 15(a)(2). “Though that’s a generous standard, ‘leave to amend

can be properly denied where there is a valid justification.’”

Robertson v. Intratek Comput., Inc., 976 F.3d 575, 584 (5th Cir.

2020) (quoting Carroll v. Fort James Corp., 470 F.3d 1171, 1175

(5th Cir. 2006)). Valid justifications include undue delay, bad faith,

dilatory motive, and whether the facts underlying the amended

complaint were known to the party when the original complaint

was filed. Id. (quoting Southmark Corp. v. Schulte Roth & Zabel

(In re Southmark Corp.), 88 F.3d 311, 316 (5th Cir. 1996)). Courts

may also consider a plaintiff’s repeated failure to cure deficiencies

by previous amendments, undue prejudice to the opposing party,

and futility of the proposed amendment. Wimm v. Jack Eckerd

Corp., 3 F.3d 137, 139 (5th Cir. 1993) (citing cases). An amended

complaint is futile if “the amended complaint would fail to state a

claim upon which relief could be granted.” Stripling v. Jordan

Prod. Co., 234 F.3d 863, 873 (5th Cir. 2000) (citing cases). The

analysis requires courts to apply “the same standard of legal

sufficiency as applies under Rule 12(b)(6).” Id. (quoting cases).

That standard has been set out above.

B. Analysis

At the outset, it should be emphasized that Diogu has

already filed four complaints with this court. He filed his original

complaint and an amended complaint on September 24, 2024. ECF

No. 1; ECF No. 3. Three days later, on September 27, 2024, he filed

a second amended complaint. ECF No. 6. Finally, Diogu filed his

third amended complaint on October 7, 2024. ECF No. 17. Diogu’s

current proposed amended complaint seeks to add as Defendants

the Fort Bend County Attorney’s Office and Firefighting’s Finest;

to add four federal law claims including First Amendment

retaliation, false arrest, malicious prosecution, and fabrication of

evidence; and twelve new state law claims. ECF No. 34-2. The

court will not grant Diogu leave to amend his complaint. Diogu has

had ample opportunity to add all relevant claims and correct the

deficiencies with his prior complaints, continues to rely on

conclusory allegations, and adds claims that the court should not

exercise jurisdiction over.

i. Federal Claims

The court will not grant Diogu leave to amend his complaint

to add the false arrest, malicious prosecution, and fabrication of

evidence claims because the facts underlying these federal claims

were known to Diogu when he filed his prior complaints.

Robertson, 976 F.3d at 584 (stating that a district court may

consider “whether the facts underlying the amended complaint

were known to the party when the original complaint was filed”).

In his proposed amended complaint, Diogu claims that he was

arrested without probable cause (False Arrest, Count 1); that the

Defendants fabricated the evidence that he made a terroristic

threat to a government officer (Fabricated Evidence, Count 4); and

that the Defendants pressed charges against him while knowing

they were baseless and lacked probable cause (Malicious

Prosecution, Count 5). ECF No. 34-1 at 23, 25-26.

The facts underlying these claims were known to Diogu

when he filed his original complaint. In his original complaint,

Diogu provided the factual basis for these claims when he alleged

that he was “detained . . . based on a warrant claiming that

Plaintiff made a Terrorist threat to a Governmental Agency. This

is not true[.]” ECF No. 1 at 12. Diogu even included in his original

complaint a substantive due process and malicious prosecution

claim and stated, in support, that he was arrested, jailed, and had

his property seized based upon a “fabricated complaint brought by

[prosecuting attorney] a person known in the legal community as

a racist, compulsive, and pathological liar and a fraud.” Id. at 21.

Diogu had alleged the facts that served as the basis for his

proposed federal claims in his original complaint. He should have

raised them in that prior filing.

Moreover, facts and documents referenced in the complaint

suggest that these claims are futile. See Funk v. Stryker Corp., 631

F.3d 777, 783 (5th Cir. 2011) (stating that a district court must

consider a complaint in its entirety, including documents

incorporated into the complaint by reference). For example, in his

second amended complaint, Diogu refers to the arrest warrant that

claimed he made a terroristic threat. ECF No. 17 at 12. But Diogu’s

false arrest claim would be futile because he was arrested

pursuant to a valid arrest warrant. ECF No. 39-1 at 40-57. See

Rykers v. Alford, 832, 898 (5th Cir. 1987) (“This court has

repeatedly held that a claim for false arrest or analogous torts is

subject to dismissal for failure to state a claim when the arrest is

made under a properly issued, facially valid warrant.”). Diogu does

not present facts to show that the warrant was invalid.

The court should also deny Diogu’s motion for leave to

amend his complaint to add the retaliation claim because doing so

would be futile. Diogu’s retaliation claim fails because he has not

alleged facts to demonstrate that his speech was curtailed in

response to engaging in constitutionally protected activity. See

Kennan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002) (holding that

to state a plausible retaliation claim, a plaintiff must allege facts

that they were engaged in constitutionally protected activity, that

the defendant’s actions curtailed their speech, and that

defendant’s actions were substantially motivated against the

plaintiff’s exercise of the constitutionally protected activity). Diogu

only includes conclusory allegations that Defendants’ actions were

intended to prevent him from engaging in protected speech and

that they chilled his speech. ECF No. 34-2 at 39. He provides no

additional information.

As a general matter, Diogu’s proposed amended complaint

suffers from the same deficiencies as his prior complaints. A

district court can decline leave to amend if a plaintiff has

previously amended their complaint. See Herrmann Holdings Ltd.

v Lucent Techs. Inc., 302 F.3d 552, 556 (5th Cir. 2002) (denying

plaintiff’s motion for leave to amend because they had already

twice amended their complaint). Diogu has amended his complaint

three times. ECF No. 3; ECF No. 6; ECF No. 17. Each of the prior

four attempts have been insufficient. Diogu has continually relied

on conclusory allegations to support his claims, and he does so

again in his proposed amended complaint. The instant motions to

dismiss placed Diogu on notice of the problems with his pleadings.

Given these repeated attempts to amend his complaint, and his

failure to cure the deficiencies, the court concludes that Diogu is

either unable or unwilling to amend his complaint in a way that

would state a plausible cause of action. Diogu’s motion for leave to

add new federal claims is DENIED.

ii. State Claims

Because leave to amend to add new federal claims is denied,

leave to amend to add new state law claims is also denied. This is

because the court should decline to exercise supplemental

jurisdiction over Diogu’s proposed state law claims given the

absence of any viable federal claims. Under 28 U.S.C. §1367(c), a

district court may decline to exercise supplemental jurisdiction

over a claim under 28 U.S.C. §1367(a) if the district court has

dismissed all claims over which it has original jurisdiction. 28

U.S.C. §1367(c)(3). The “general practice” in this circuit is to not

exercise supplemental jurisdiction over state law claims when the

federal claims have been dismissed. See Flood v. Educ. Credit

Mgmt. Corp., No. 5:18-CV-119, 2019 WL 13256133, at *4 (S.D. Tex.

July 9, 2019) (citing La Porte Cost. Co. v. Bayshore Nat. Bank of

La Porte, Texas, 805 F.2d 1254, 1257 (5th Cir. 1986). A district

court could depart from this general practice if the court’s

“involvement with the state-law claims has [] been substantial[.]”

Id.

The court’s involvement with this case, and therefore with

Diogu’s state law claims, has not been substantial enough to justify

departing from the general practice of declining to exercise

supplemental jurisdiction over state law claims. Diogu filed this

lawsuit in September 2024 and only moved to add these state law

claims in December 2024. ECF No. 1; ECF No. 34. The court has

not expended substantial judicial resources on these claims to

justify exercising supplemental jurisdiction over them. See, e.g.,

Parker & Parsley Petroleum Co v. Dresser Indus., 972 F.2d

580, 587 (5th Cir. 1992) (holding that the district court abused its

discretion by exercising supplemental jurisdiction over state law

claims after dismissing all federal claims where the case had only

been pending approximately nine months).

For the foregoing reasons, Diogu’s motion to amend is

DENIED.

4. Diogu’s Motion to Disqualify the Fort Bend County

Attorney’s Office, Bridgette Smith-Lawson, Rolf F.

Krueger, Kenneth S. Cannata, and Kevin Hedges.

Diogu moves for this court to disqualify Defendants’

attorneys who are all employed by the Fort Bend County

Attorney’s Office. ECF No. 35. Diogu argues that there are

irreconcilable conflicts of interest between the Fort Bend County

Attorney’s Office, Fort Bend County, and Fort Bend County

Precinct 1. Id. at 3. He also argues that the Fort Bend County

Attorney’s Office lawyers would improperly serve as both advocate

for the County and witnesses. Id

Because the undersigned recommends that the claims

against each Defendant be dismissed and that Diogu may not

amend his complaint to add additional federal and state claims,

Diogu’s motion to disqualify is DENIED as MOOT.

5. Conclusion

The undersigned recommends that Norvell’s Motion to

Dismiss, ECF No. 20, be GRANTED and that Diogu’s claims

against Norvell be DISMISSED with prejudice; that Eleckel and

Melancon’s Motion to Dismiss, ECF No. 31, be GRANTED, and

that Diogu’s claims against Eleckel and Melancon be DISMISSED

without prejudice; and that KP George and Fort Bend County’s

Motion to Dismiss, ECF No. 33, be GRANTED, and that Diogu’s

claims against KP George and Fort Bend County be DISMISSED

with prejudice.

The clerk is ORDERED to refrain from entry of default.

ECF No. 29. Diogu’s Motion for Leave to File a Second Amended

Complaint, ECF No. 34, and Diogu’s Motion to Disqualify

Defendant’s Attorneys, ECF No. 35, are DENIED.

The parties have fourteen days from service of this

Memorandum and Recommendation to file written objections. 28

U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72. Failure to timely file

objections will preclude appellate review of factual findings or legal

conclusions, except for plain error. See Thomas v. Arn, 474 U.S.

140, 147-49 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th

Cir. 1988).

Signed at Houston, Texas on May 2, 2025.

Peter Bray 7

United States Magistrate Judge

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