# Diogu II v. George

> District Court, S.D. Texas · May 2, 2025

URL: https://www.frixlaw.com/law-library/cases/11063066

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** May 2, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11063066

## How later opinions describe it (automated extraction)

- 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”
- stating that a district court must consider a complaint in its entirety, including documents incorporated into the complaint by reference

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11063066. Public record. Not legal advice.