Bissell v. Mata

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

TIFFANY BISSELL, §

§

Plaintiff, §

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v. § CASE NO. 6:21-CV-00924-ADA-DTG

§

ELAINE MATA, et al., §

§

Defendants. §

§

REPORT AND RECOMMENDATION GRANTING DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT (ECF NO. 57) AND DENYING PLAINTIFF’S (ECF NO. 58)

TO: THE HONORABLE ALAN D ALBRIGHT,

UNITED STATES DISTRICT JUDGE

This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. §

636(b)(1)(C), Fed. R. Civ. P. 72(b), and Rules 1(d) and 4(b) of Appendix C of the Local Rules

of the United States District Court for the Western District of Texas, Local Rules for the

Assignment of Duties to United States Magistrate Judges. Before the Court are Defendants

Elaine Mata, Danielle Claridge, Brittany Henway, and Felisha Rodriguez’s Motion for Summary

Judgment (ECF No. 57), Plaintiff Tiffany Bissell’s Motion for Summary Judgment (ECF No.

58), and the defendants’ Motion to Exclude Angela M. Jourdain’s Testimony (ECF No. 62).

After carefully considering the briefs and the applicable law, the Court RECOMMENDS

that the defendants’ Motion for Summary Judgment be GRANTED, the plaintiff’s Motion for

Summary Judgment be DENIED, and the defendants’ Motion to Exclude be DENIED-AS-

MOOT.

I. BACKGROUND

This case involves the temporary removal of Plaintiff Tiffany Bissell’s children by four

Texas Department of Family and Protective Services employees. The plaintiff is the biological

mother of two minor children—M.D. and J.N. ECF No. 51 ¶¶ 13–16. The plaintiff is married to

John Dumdie and is the stepmother of C.D., Mr. Dumdie’s daughter. Id. The defendants are

employees of the Texas Department of Family and Protective Services. Id. ¶¶ 5–8. On March 5,

2019, the Texas Department of Family and Protective Services investigated an altercation

between the plaintiff and C.D. Id. ¶ 13. The plaintiff asserts that C.D. assaulted her, forcing the

plaintiff to take defensive action to protect herself. Id. As a result of the investigation, the

plaintiff was required to participate in “family services.” Id. Less than two months later, the

Texas Department of Family and Child Services removed C.D. from the plaintiff’s home because

the plaintiff refused to assume parental responsibility. Id. ¶ 14. While removal of C.D. is not at

issue in this case, it provides the background about how the plaintiff became involved with the

defendants.

On September 3, 2019, after Defendant Elaine Mata conducted a home visit, Defendant

Mata filed a report alleging that the plaintiff was neglectfully supervising M.D. Id. ¶¶ 23–25.

Defendant Mata was concerned that the plaintiff’s violent behavior posed a danger to M.D. ECF

No. 60 (Investigation Report, DFPS-00001–00012). Defendant Mata explained that the plaintiff

was the aggressor in a domestic violence dispute involving Mr. Dumdie, even though Defendant

Mata was aware Mr. Dumdie had recanted his reports of the plaintiff’s violence against him. Id.

Defendant Mata also explained in her report that the plaintiff had a history of aggression and

physical altercations with C.D. Id.

Defendant Danielle Claridge investigated the neglectful supervision report against the

plaintiff. ECF No. 51 ¶ 27. Defendant Claridge received records from the Coryell County

Sheriff’s Office. Those records showed that Mr. Dumdie made and later recanted reports about

the plaintiff’s violence corroborating Defendant Mata’s concerns of domestic violence. ECF No.

60 (Investigation Report, DFPS-00009–00011). Defendant Claridge filed an affidavit for

removal of J.N. and M.D. Id. (Affidavit, DFPS-00060–00076). On September 10, 2019, Judge

Mabray of the Coryell County Court signed an order to remove J.N. and M.D. from the

plaintiff’s home after reviewing Defendant Claridge’s affidavit. Id. (Investigation Report, DFPS-

00023). Following the court order, J.D. and M.D. were temporarily removed from the plaintiff’s

home. ECF No. 51 ¶ 67. The allegation of neglectful supervision was ultimately dismissed

because the allegation was unable to be determined. Id. (Investigation Report, DFPS-00002).

Based on this conduct, the plaintiff sued Defendants Elaine Mata, Danielle Claridge,

Brittany Henway, and Felisha Rodriguez under 42 U.S.C. § 1983 for violating her Fourteenth

Amendment right to family integrity, substantive due process, and procedural due process. ECF

No. 51.

II. LEGAL STANDARD

Both the plaintiff and the defendants move for summary judgment arguing that they are

entitled to judgment as a matter of law because there is no genuine dispute as to any material

fact. The familiar standard for summary judgment applies to both motions. A court must grant

summary judgment when “the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also

Meadaa v. K.A.P. Enters., LLC, 756 F.3d 875, 880 (5th Cir. 2014). If the plaintiff is the movant,

the plaintiff “must establish beyond peradventure all of the essential elements of the claim to

warrant judgment in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)

(emphasis in original). Substantive law determines which facts are material. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine “if the evidence is such that a

reasonable jury could return a verdict for the non-moving party.” Id.

The moving party bears the initial burden of demonstrating the absence of a genuine issue

of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets

this burden, the nonmoving party must come forward with specific facts that establish a genuine

issue for trial. Distribuidora Mari Jose, S.A. de C.V. v. Transmaritime, Inc., 738 F.3d 703, 706

(5th Cir. 2013) (quoting Allen v. Rapides Par. Sch. Bd., 204 F.3d 619, 621 (5th Cir. 2000)).

“Where the record taken as a whole could not lead a rational trier of fact to find for the non-

moving party, there is no genuine issue for trial.” Hillman v. Loga, 697 F.3d 299, 302 (5th Cir.

2012).

III. ANALYSIS

The plaintiff moves for summary judgment on her claims, asserting that the undisputed

facts conclusively establish every element of her claims. Conversely, the defendants move for

summary judgment in their favor on all claims because the defendants assert that they are

entitled to qualified immunity. Qualified immunity alters the usual summary judgment burden of

proof—once a defendant raises the defense, the burden shifts to the plaintiff to demonstrate that

the defendant is not entitled to qualified immunity. Batyukova v. Doege, 994 F.3d 717, 724 (5th

Cir. 2021). Qualified immunity “protects all but the plainly incompetent and those who

knowingly violate the law.” Ashcroft v. Al-Kidd, 563 U.S. 731, 743 (2011) (citing Malley v.

Briggs, 475 U.S. 335, 341 (1986)).

To survive the defendants’ motion for summary judgment, the plaintiff must establish

that the defendants are not entitled to qualified immunity. This requires the plaintiff to satisfy a

two-part test. See id. at 735 (noting that courts have discretion to decide which of the two parts to

analyze first when deciding whether a plaintiff has overcome the defense of qualified immunity).

First, the plaintiff must establish that the facts when taken in a light most favorable to her show

that the defendants’ conduct violated a federal constitutional or statutory right. Id. Second, the

plaintiff must establish that the defendants’ conduct was objectively unreasonable considering

the clearly established law at the time of incident. Id.

A. Qualified immunity protects the defendants from the plaintiff’s right to family

integrity claim because the right is not clearly established under the facts of this

case.

The plaintiff alleges that the defendants violated a recognized constitutional right known

as the right to family integrity. ECF No. 51 at 25. In 1972, the Supreme Court recognized that the

right to family integrity is a substantive right guaranteed by the due process clause of the

Fourteenth Amendment. Morris v. Dearborne, 181 F.3d 657, 671 (5th Cir. 1999) (citing Stanley

v. Illinois, 405 U.S. 645 (1972)). This right, however, is not absolute—it is offset by the right of

the state to take temporary custody of children to guarantee their safety. Id. at 669

(acknowledging that the relationship between parent and child is afforded constitutional

protection only in “appropriate cases” (citing Stanley, 405 U.S. at 656 (noting that neglectful

parents may be separated from their children)). The right cannot be absolute because child-

protective workers, like the defendants, often “must make on-the-spot decisions about whether to

remove a child from a dangerous environment or whether, on the other hand, to make the

judgment call that the child is in no danger and should remain with his family.” Roe v. Tex. Dep’t

of Protective & Regulatory Servs., 299 F.3d 395, 410–11 (5th Cir. 2002).

Because of this tension, the Fifth Circuit has held that the right to family integrity is not

always clearly established. Dearborne, 181 F.3d at 671 (providing qualified immunity, rather

than, absolute immunity to child protective services workers); see also Hall v. Dixon, No. H-09-

2611, 2010 WL 3909515, at *22 (S.D. Tex. Sept. 30, 2010) (noting that Fifth Circuit precedent

rejects the plaintiff’s assertion that the right to family integrity is always clearly established).

This is why cases alleging government interference with the right to family integrity must be

placed “along a continuum between the state’s clear interest in protecting children and a family’s

clear interest in privacy.” Dearborne, 181 F.3d at 671. A defendant is entitled to qualified

immunity when the facts of a case place it “in the center of the continuum where the two

interests overlap and create a tension.” Id. When a case falls in the center of the continuum, the

right to family integrity is “nebulous.” Id.

The defendants are entitled to qualified immunity because the Court finds that the facts of

this case place it at the center of the continuum where the right to family integrity is not clearly

defined. The Fifth Circuit’s precedent in a string of cases involving child protective services

workers guides the Court’s analysis here. As explained above, the right to family integrity is a

legally recognized substantive due process right, but whether the contours of that right are

clearly established depends on a fact intensive review of each case. As the Fifth Circuit has

explained, a plaintiff’s ability to defeat qualified immunity for a family integrity claim hinges on

“the degree of fit between the facts of this case” and the Fifth Circuit’s prior opinions. Romero v.

Brown, 937 F.3d 514, 520 (5th Cir. 2019) (citations omitted). As explained below, that fit is

lacking in this case.

We begin this analysis with Hodorowski v. Ray. In that case, the plaintiffs sued Texas

Department of Human Services officials for taking their children without a court order. 844 F.2d

1210, 1214 (5th Cir. 1988). The children were removed after the officials received a report that

their father reportedly chased the children around the yard with a chain. Id. at 1217. The

defendant child protective workers observed bruising on the children, which were consistent with

the allegations in the report. Id. The Fifth Circuit held that the child protective workers were

entitled to qualified immunity because the right to family integrity was not clearly established

under those facts. Id. at 1217.

Several years later, the Fifth Circuit applied the Hodorowski analysis to another case—

Doe v. Louisiana. In Doe, the plaintiff sued Louisiana child protective workers, claiming various

violations of the plaintiff’s Fourteenth Amendment right to family integrity. Doe v. Louisiana, 2

F.3d 1412, 1415 (5th Cir. 1993), cert denied, 510 U.S. 1164 (1994). Much like Ms. Bissell, the

plaintiff in Doe alleged that the defendants withheld and ignored exculpatory evidence and made

misrepresentations to the mother and two judges. Id. at 1415 (majority opinion). The Doe case

was particularly egregious. The complaint alleged “nightmarish” conduct by two child protective

workers during four-month “witch hunt.” Id. at 1421. (King, J., concurring). The two workers

allegedly suppressed reports indicating that no sexual abused occurred, misrepresented the nature

of the finding in those reports, secretly obtained a court order awarding custody of Doe’s son to

his mother, and provided false information to the District Attorney’s office to have the children

removed from their grandparents’ temporary custody. Id. Despite these allegations, the Fifth

Circuit held as a matter of law that the child protective workers did not violate a clearly

established constitutional right at the time of their conduct. Id. at 1418 (majority opinion)

(dismissing the plaintiff’s right to family integrity claims for failure to state a claim).

Similarly in Kiser v. Garrett, the Fifth Circuit held that the child protective workers were

protected by qualified immunity because the right to family integrity was not clearly established

under the facts of that case. 67 F.3d 1166, 1167 (5th Cir. 1995). In Kiser, like this case and the

Doe case, the children were temporarily removed from their home and later returned to their

parents. Id. at 1169. The Kisers alleged that the defendants withheld exculpatory evidence, gave

false testimony in state court, and continued an investigation after they had knowledge that the

parent could not have caused the injury that started the investigation. Id. at 1169–71. The Kiser

court concluded that, “although a substantive due process right to family integrity has been

recognized, the contours of that right are not well-defined, and continue to be nebulous,

especially in the context of a state’s taking temporary custody of a child during an investigation

of possible parent abuse.” Id. at 1173.

This case is similar to the facts of Doe and Kiser. Ms. Bissell alleged that the defendants

temporarily took J.N. and M.D. based on knowingly false allegations of domestic violence and

neglect. ECF No. 51 ¶ 59. She further alleges that Defendant Mata knowingly provided false

evidence to the state court judge to take J.N. and M.D. and deceive the state court. Id. ¶ 59.

Defendants Mata and Claridge, with the approval of Hemingway and Rodriguez, allegedly

prepared a request for a removal order that included false statements to successfully obtain

temporary removal of the plaintiff’s children. Id. ¶ 71.

Following the Fifth Circuit’s guidance in Hodorowski, Doe, and Kiser, the Court finds

that the right to family integrity invoked by the plaintiff is not clearly established under these

facts and that the defendants are entitled to qualified immunity. The plaintiff has not directed the

Court to any controlling authority that would undermine this conclusion. See Jennings v. Abbott,

538 F. Supp. 3d 682, 695 (N.D. Tex. 2021) (noting that the Fifth Circuit has not found a clearly

established violation of the right to family integrity in any case against a child welfare worker

(collecting cases)). The plaintiff only cites case law stating that the general right to family

integrity has been established by the Supreme Court. ECF No. 66 at 21 (quoting Hodorowski,

844 F.2d at 1216; citing Troxel v. Granville, 530 U.S. 57, 66 (2000)).

Because the right invoked by the plaintiff is not clearly established, the plaintiff fails to

defeat qualified immunity at the first part of the test, and the Court will not consider whether the

defendants’ conduct was objectively reasonable. The undersigned therefore RECOMMENDS

that the District Court GRANT the defendant’s motion for summary judgment on the plaintiff’s

§ 1983 claim for the violation and deprivation of her Fourteenth Amendment right to family

integrity. Because the defendants are entitled to qualified immunity and the plaintiff has not

overcome this protection, the undersigned further RECOMMENDS that the Court DENY the

plaintiff’s motion for summary judgment on the same claim.

B. Qualified immunity protects the defendants from the plaintiff’s substantive due

process claims.

The plaintiff failed to raise a genuine issue about whether the defendants violated the

plaintiff’s clearly established substantive due process rights. It is unclear from the plaintiff’s live

complaint and briefing which specific substantive rights the defendants allegedly violated. The

only substantive Fourteenth Amendment right that the plaintiff identifies is the right to family

integrity, which as discussed above is not clearly defined under these facts. ECF No. 51 at 25.

Additionally, the complaint separates the right to family integrity from the plaintiff’s substantive

due process claims. See id. at 25, 27–30 (“Count 1-Violation and Deprivation of The right to

family Integrity Under the Fourteenth Amendment” and “Count 3-Violation of SUBSTANTIVE

DUE PROCESS Under the Fourteenth Amendment”). The plaintiff asserts that “clear violations

of substantive due process” occur when the removal of the child is for a period of months or

years citing Dearbone and Romero in support. Id. ¶ 69.

Dearborne is distinguishable because it involved a substantive due process claim for the

violations of a child’s right to bodily integrity and procedural due process, not a child welfare

investigator or the temporary removal of the child. 181 F.3d at 666–67, 671. Ms. Dearborne was

a teacher who guided a cognitively disabled child’s hand, using a facilitative communicator

machine, to produce false allegations that her dad was sexually abusing her. Id. at 663. The

evidence revealed that Ms. Dearborne created the allegations and there was no credible evidence

of sexual assault. Id. at 664. The Fifth Circuit explained that unlike child welfare investigators,

Ms. Dearborne’s primary duty was to teach the child, not to elicit possible instances of abuse.

Dearborne, 181 F.3d at 671. Explicitly noting the differences between teachers and child

protective workers, the court held that the claims fell “within the well-established constitutional

right to family integrity and to be free of arbitrary, oppressive governmental action.” Id.

The plaintiff also cites Romero v. Brown, which held that the defendant social worker did

not violate the parents’ substantive due process right to family integrity when she had all seven

of their children removed from their home without a court order. 937 F.3d at 520. The Court

found that while the plaintiff’s substantive due process claims failed, the parents could plausibly

state a claim for procedural due process violations. Id. at 521.

The Court cannot determine which substantive due process rights, other than the right to

family integrity, that the plaintiff believes the defendants violated and the plaintiff’s cited cases

do not help identify a substantive due process right. The plaintiff suggests that the mere removal

of her children for a period of months constitutes a violation of her substantive due process

rights. See ECF No. 51 at 27–28 (“‘Cases since have found [*11] clear violations of substantive

due process only when the removal measured in months or years.’ Romero, 937 F.3d at 521”

(citing Romero, 937 F.3d at 918; Dearborne, 181 F.3d at 671; Wooley v. City of Baton Rouge,

211 F.3d 913, 918 (5th Cir. 2000))). That is not what the Fifth Circuit has held.

Wooley involved a lawsuit against two officers for the alleged violation of a caregiver’s

fourth amendment rights against unreasonable searches and seizures and her fourteenth

amendment right to family integrity. The caregiver was the child’s legal guardian at the request

of the child’s mother. Wooley v. City of Baton Rouge, 211 F.3d 913, 917 (5th Cir. 2000). The

child’s grandparents obtained a court order giving the grandparents temporary custody of the

child, but the order did not direct law enforcement officers to effectuate the transfer of custody.

Id. Despite that, two police officers knocked on the caregiver’s door and demanded that she give

the child over to the officers. Id. The officers told the caregiver that they were instructed to take

the child and denied the caregiver’s request to call her lawyer or the child’s mother. Id. at 917–

18. The Fifth Circuit affirmed the district court’s order granting the defendant officers qualified

immunity from the plaintiffs claim that she was deprived of the right to custody of the child

without due process of law. Id. at 924. The court found that the right to family integrity was not

clearly defined, but the plaintiff did enjoy a clearly established right to maintain her relationship

free from interference by state actors. Id. at 920, 924. The court explained that the suit was

against police officers who were not investigating the child’s welfare. Id. The court distinguished

Wooley from cases involving child-protective workers, noting that there was no indication in the

record that any threat to the child’s safety, nor were the officers investigating allegations that the

child was abused by the caregiver or his mother. Id. Because Wooley is distinguishable from the

facts of this case, Wooley does not establish that the plaintiff was entitled to maintain her

relationship free from inference by the defendants.

The Court finds that the plaintiff has not alleged nor provided any evidence that the

defendants violated a clearly defined substantive due process right of hers. Accordingly, the

defendants are entitled to qualified immunity from her § 1983 substantive due process claims.

The undersigned therefore RECOMMENDS that the District Court should GRANT the

defendants’ motion for summary judgment on the plaintiff’s § 1983 substantive due process

claims and DENY the plaintiff’s motion for summary judgment on the same claims.

C. The summary judgment evidence establishes that the plaintiff received adequate

due process.

The Court finds that the removal of the plaintiff’s children did not violate her clearly

defined procedural due process rights. Instead, the summary judgment evidence establishes that,

as a matter of law, the plaintiff received adequate due process.

1. The removal of J.N. and M.D. did not violate the plaintiff’s substantive due

process rights.

The plaintiff argues that the seizures of J.N. and M.D. violated her procedural due

process rights. Before a parent can be deprived of her fundamental liberty interest in the care,

custody, and management of her child, the parent is entitled to due process of law. See Romero,

937 F.3d at 521 (collecting cases establishing that the Constitution requires the state to follow

certain procedures before encroaching on fundamental parental rights). The plaintiff’s procedural

due process claim is based on her allegation that her Fourth Amendment rights were violated

when J.N. and M.D. were seized from her custody and care without due process of law. ECF No.

51 ¶ 61. This reasoning is fundamentally flawed for two reasons.

First, the plaintiff’s Fourth Amendment rights are not implicated here. Only children that

have been seized have standing to bring a Fourth Amendment claim. Romero, 937 F.3d at 523

(holding that there is no overlap between a child’s Fourth Amendment claim and a parent’s

Fourteenth Amendment due process claim (citing Gates v. Tex. Dep’t of Protective & Reg.

Servs., 537 F.3d 404, 427 (5th Cir. 2008)). The plaintiff acknowledges this, stating that her

“minor children’s constitutional right not to be seized under the Fourth (4th) Amendment” is

clearly established. ECF No. 58 at 18. The plaintiff, however, does not bring a Fourth

Amendment claim on behalf of M.D. or J.N.

Nevertheless, a parent who loses control of her child may assert a due process right, as

the plaintiff has done. Id. The Court will only consider the plaintiff’s procedural due process

rights. To the extent the plaintiff attempts to make out a Franks violation, the Court will not

consider such a claim because a Franks violation is a Fourth Amendment claim. See ECF No. 51

at 25 (citing Franks v. Delaware, 438 U.S. 154 (1978)).

Second, the summary judgment evidence establishes that the plaintiff received due

process. The plaintiff argues that she was entitled to “notice and a hearing before” J.N. and M.D.

were removed. ECF No. 51 ¶ 61 (emphasis in original). But it is “clearly established that a court

order or exigency is the predeprivation process that is due when social workers remove a child.”

Romero, 937 F.3d at 522 (citing Gates, 537 F.3d at 434; Wernecke v. Garcia, 591 F.3d 386, 391

n.7 (5th Cir. 2009)). When a child is removed due to exigency, a timely post-deprivation hearing

is required under the Due Process Clause. Id. at 522 n.2 (collecting cases where courts have

found no due process violations because exigent circumstances supported removal and hearing

was promptly held after the seizure). But here, the judge signed an order of removal two days

before J.N. and M.D. were removed from the plaintiff’s custody. ECF No. 51 ¶ 64.

The plaintiff was not entitled to notice and a hearing before J.N. and M.D. were

temporarily removed from her home. Because the court order was signed two days before J.N.

and M.D. were removed, the summary judgment evidence establishes that the plaintiff was given

adequate due process. The fact that Defendants Claridge and Mata allegedly lied at the post-

deprivation hearings does not establish that the plaintiff was deprived of her due process rights.

See Stem v. Ahearn, 908 F.2d 1, 6 (5th Cir. 1990) (holding that a social worker’s adverse judicial

testimony offered at a child-custody hearing does not implicate due process concerns, instead “it

constitutes witness testimony that is absolutely immune from section 1983 liability” (citing

Briscoe v. LaHue, 460 U.S. 325, 342–47 (1983)).

2. The removal of C.D. did not violate the plaintiff’s procedural due process

rights.

Finally, to the extent that the plaintiff attempts to argue that the removal of C.D. without

a court order violated her procedural due process rights, this argument fails because the plaintiff

has not established that she has standing to bring a procedural due process claim based on the

removal of C.D. See Franks v. Smith, 721 F.2d 153, 155 (5th Cir.1983) (holding that the

relationship between a child and his non-biological caregivers was “emotional only” and

insufficient to create a familial expectation that society and the Constitution recognize). The

plaintiff has not offered evidence that she has a legally recognized relationship with C.D. See

ECF No. 58-12 (Bissell Aff. at 1:26–2:2) (stating that the plaintiff has no legal relationship with

C.D.). Additionally, the plaintiff and her husband no longer communicate with C.D. because Mr.

Dumdie has no interest in continuing the parent-child relationship. ECF No. 51 ¶ 15. The Court

finds that there is no legal relationship between the plaintiff and C.D. that would allow the

plaintiff to base her procedural due process claims on the removal of C.D.

The Court finds that the summary judgment establishes that the plaintiff received

adequate due process. The undersigned therefore RECOMMENDS that the Court DENY the

plaintiff’s motion for summary judgment on her § 1983 procedural due process claims. The

plaintiff has not conclusively established that the defendants violated her procedural due process

rights. See Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (a plaintiff is entitled to

summary judgment on her claim when the plaintiff conclusively establishes all of the essential

elements of the claim to warrant judgment in his favor”). The undersigned further

RECOMMENDS that the defendants’ motion for summary judgment be GRANTED because

there is no genuine dispute that the plaintiff’s procedural due process rights were violated.

D. Exhibits A, B, and E are not competent summary judgment evidence.

The defendants object to five exhibits to the plaintiff’s motion for summary judgment—

Exhibits A, B and E, Ms. Bissell’s Declaration, and the Expert Report of Angela Jourdain. ECF

No. 67. Exhibit A is an email from a Texas Department of Family and Protective Services

employee, Shanna Schuelke, to a State Senator’s office regarding the investigation of the

domestic violence concerns against the plaintiff. ECF No. 58-1. Exhibit A contains hearsay.

Hearsay is a statement made outside the current trial or hearing that is offered for its truth. Fed.

R. Evid. 801(c). Hearsay is not admissible unless an exception applies. Fed. R. Evid. 802; see

also State Farm Fire & Cas. Co. v. Amazon.com, Inc., 525 F. Supp. 3d 753, 755 (N.D. Miss.

2021) (noting that the hearsay rule applies to summary judgment evidence with equal force

(citation omitted)). The plaintiff does not identify any applicable exception that applies to

Exhibit A. See ECF No. 69 (arguing only that the email is impeachment evidence). The Court

therefore SUSTAINS the defendants’ objection to Exhibit A.

Exhibits B and E are screenshots that purportedly establish the plaintiff’s location on

August 27, 2019, and August 29, 2019, respectively. ECF Nos. 58-3 & 58-5. The authenticity of

these screenshots has not been established. There is no way for the Court to determine that the

plaintiff was at the location indicated by the screenshots. Thus, the Court SUSTAINS the

defendants’ objection to Exhibits B and E.

The plaintiff’s sworn declaration states that she has personal knowledge of the facts and

that she is competent to testify to those facts. ECF No. 58-12. A declaration used to support a

motion for summary judgment “must be made on personal knowledge, set out facts that would be

admissible in evidence, and show that [. . .] the declarant is competent to testify on the matters

stated.” Fed. R. Civ. P. 56(c)(4). The plaintiff sets out enough factual support in her declaration

to show that she possesses personal knowledge. The Court therefore OVERRULES the

defendants’ objection to the Bissell Declaration.

The defendants assert that the Expert Report of Angela Jourdain is untimely, unreliable

and Ms. Jourdain is unqualified to offer expert testimony, citing to the defendants’ motion to

exclude. ECF No. 67 at 5. The defendants incorporate by reference their motion to exclude Ms.

Jourdain’s testimony and offer no independent argument establishing that the expert report is not

competent summary judgment evidence. The Court therefore OVERRULES the defendants’

objection to the expert report. The Court makes no ruling on the merits of the defendants’

Daubert motion—the Court holds only that the expert report is considered as part of the

summary judgment record.

IV. CONCLUSION

The undersigned RECOMMENDS that the defendants’ motion for summary judgment

(ECF No. 57) be GRANTED as to all of the plaintiff’s claims and the plaintiff’s cross-motion

for summary judgment (ECF No. 58) be DENIED in its entirety. In light of these

recommendations—seeing as there are no claims remaining—the undersigned further

RECOMMENDS that the defendant’s motion to exclude (ECF No. 62) be DENIED-AS-

MOOT.

V. OBJECTIONS

The parties may wish to file objections to this Report and Recommendation. Parties filing

objections must specifically identify those findings or recommendations to which they object.

The District Court need not consider frivolous, conclusive, or general objections. See Battle v.

U.S. Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).

A party’s failure to file written objections to the proposed findings and recommendations

contained in this Report within fourteen (14) days after the party is served with a copy of the

Report shall bar that party from de novo review by the District Court of the proposed findings

and recommendations in the Report. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140,

150-53 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415 (Sth Cir. 1996) (en banc).

Except upon grounds of plain error, failing to object shall further bar the party from appellate

review of unobjected-to proposed factual findings and legal conclusions accepted by the District

Court. See 28 U.S.C. § 636(b)(1)(C); Thomas, 474 U.S. at 150-53; Douglass, 79 F.3d at 1415.

SIGNED this 16th day of June, 2025.

DEREK-T. GILLILA

UNITED STATES MAGISTRATE JUDGE

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