The opinion
Southern District of Texas
ENTERED
September 02, 2025
IN THE UNITED STATES DISTRICT COURT Nathan Ochsner, Clerk
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
HLEVICTOR A. HOSKINS, JR., §
§
Plaintiff, §
§
§ Civil Action No. H-25-2434
§
HARRIS COUNTY PRECINCT 5, § □
CONSTABLE TED HEAP, AND § .
DEPUTY JEFFERY WEISNER, §
§
Defendants. §
ORDER
Pending before the Court is Defendant Deputy Jeffery Weisner’s Motion to
Dismiss (Document No. 12). Having considered the Defendant’s motion,
submissions, and applicable law, the Court determines that the Defendant’s motion
should be granted.
I. BACKGROUND
This is a matter involving alleged due process violations arising under 42
U.S.C. § 1983. Pro se Plaintiff Hlevictor A. Hoskins, Jr. (“Plaintiff’) brings suit
against Defendants Harris County Precinct 5, Constable Ted Heap, and Deputy
Jeffery Weisner (“Weisner”) (collectively, “Defendants”). Plaintiff alleges that
Defendants deprived him of “his property interest in a judgment without due process
of law” ! by failing to perform their duties when levying a writ of execution obtained
by the Plaintiff.
Based on the foregoing, on May 27, 2025, Plaintiff filed suit pro se in this
Court asserting claims under 42 U.S.C. § 1983 against the Defendants in this matter
for “violations of due process,” “monell liability,’ and “supervisor liability.”? On
July 17, 2025, Weisner filed a motion to dismiss for failure to state a claim upon
which relief can be granted and for lack of subject matter jurisdiction.
Il. STANDARD OF REVIEW
Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). Under Rule 8(a)(2), a pleading 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). Although “the pleading standard Rule 8 announces
does not require ‘detailed factual allegations,’ . . . it demands more than . . . ‘labels
and conclusions.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Ail.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “[A] formulaic recitation of the
elements of a cause of action will not do.” Jd. (quoting Twombly, 550 U.S. at 555).
In deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim, “ItJhe
! Plaintiff's Complaint, Document No. 1, § 1.
2 Plaintiff's Complaint, Document No. 1, {§ 27-34.
‘court accepts all well-pleaded facts as true, viewing them in the light most favorable
to the plaintiff.’” In re Katrina Canal Breeches Litig., 495 F.3d 191, 205 (Sth Cir.
2007) (quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464,
467 (5th Cir. 2004)). To survive the motion, a plaintiff must plead “enough facts to
state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
“Conversely, ‘when the allegations in a complaint, however true, could not raise a
claim of entitlement to relief, this basic deficiency should . . . be exposed at the point
of minimum expenditure of time and money by the parties and the court.’” Cuvillier
v. Taylor, 503 F.3d 397, 401 (Sth Cir. 2007) (quoting Twombly, 550 U.S. at 558).
I. LAW & ANALYSIS
Defendant Weisner moves to dismiss Plaintiff's complaint, contending that
Plaintiff fails to state a claim upon which relief can be granted. Plaintiff did not
_ respond to Weisner’s motion to dismiss, failing to rebut or offer evidence to counter
Weisner’s contentions. Pursuant to Local Rule 7.4, failure to respond is taken as a
representation of no opposition. S.D. Tex. Local R. 7.4. Regardless of Plaintiff's
failure to respond to Weisner’s motion to dismiss, the Court will consider the merits
of Plaintiff's claim against Weisner.
Plaintiff alleges that Weisner deprived him of “his property interest in a
judgment without due process of law.”? Weisner contends that Plaintiffs complaint
should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) because it
fails to overcome Weisner’s presumption of qualified immunity and fails to plead
sufficient to support a claim for relief under § 1983. Plaintiff offers no rebuttal.
When government officials are sued for a constitutional violation under
Section 1983, they may assert the affirmative defense of qualified immunity. Porter
v. Ascension Parish Sch. Bd., 393 F.3d 608, 612 (Sth Cir. 2004). “Qualified
immunity protects government officials performing discretionary functions from
[civil] liability ‘unless their conduct violates clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Glenn v.
City of Tyler, 242 F.3d 307, 312 (Sth Cir. 2001) (quoting Gibson v. Rich, 44 F.3d
274, 276 (Sth Cir. 1995)). The defense of qualified immunity provides ample room
for mistaken judgments on the government actors’ part and protects “all but the
plainly incompetent or those who knowingly violate the law.” Estate of Davis ex rel.
McCully v. City of N. Richland Hills, 406 F.3d 375, 380 (Sth Cir. 2005) (quoting
Malley v. Briggs, 475 U.S. 335, 341 (1986)). Qualified immunity is “immunity from
3 Plaintiff's Complaint, Document No. 1, ¥ 1.
suit rather than a mere defense to liability.” Pearson v. Callahan, 555 U.S. 223, 237
(2009) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).
Once qualified immunity is asserted, therefore, the burden shifts to the
plaintiff to demonstrate the defense does not apply. See McClendon v. City of
Columbia, 305 F.3d 314, 323 (Sth Cir. 2002). This burden requires the plaintiff to
allege sufficient facts showing that: (1) the defendants violated a clearly established
constitutional right; and (2) the defendants’ actions were objectively unreasonable
under the circumstances, Collins v. Ainsworth, 382 F.3d 529, 537 (Sth Cir. 2004).
This inquiry also requires a court to “ask whether the law so clearly and
unambiguously prohibited his conduct that every reasonable official would
understand that what he is doing violates the law.” Morgan v. Swanson, 696 F.3d
359, 370 (Sth Cir. 2011). “In other words, existing precedent must have placed the
statutory or constitutional question confronted by the official beyond debate.”
Plumhoff v. Rickard, 572 U.S. 765, 779 (2014) (quoting Ashcroft v. al-Kidd, 563
U.S. 731, 741 (2011)).
In the current case, Weisner contends that he is entitled to qualified immunity.
Weisner further contends, based on Fifth Circuit precedent, that “[a] court may not
second-guess an officer’s conduct using hindsight, but instead must consider only
the information available to the officers at the time.”* Weisner argues that Plaintiff
has failed to show that any constitutional deprivation was the result of Defendant
Wiesner’s conduct. Plaintiff offers no rebuttal.
Here, the Court has reviewed Plaintiffs complaint in detail. The Court
construes all pro se filings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
A thorough review of the record reveals that Plaintiff fails to sufficiently show that
their constitutional rights were violated or that Weisner’s actions were objectively
unreasonable. Thus, given the Fifth Circuit’s guidance that a plaintiff bears the
burden of alleging sufficient facts showing both a violation of a person’s right and
unreasonable action by the allegedly offending officer, the Court finds that
Plaintiff's claim fails to overcome Weisner’s presumption of qualified immunity.
Accordingly, the Court finds that Plaintiff fails to state a claim upon which relief can
be granted, and thus, his claim against Weisner should be dismissed.°
4 Defendant Deputy Jeffrey Wiesner’s Motion to Dismiss Plaintiff's Original
Complaint, Document No. 12 at 9 (citing Hill v. Carroll Cnty., 587 F.3d 230, 234 (Sth Cir.
2009).
> Considering the Court’s finding that Plaintiff's claim against Weisner fails to state
a claim upon which relief can be granted on the basis of qualified immunity, the Court
declines to consider other arguments related to: (1) subject matter jurisdiction; and (2)
inadequate pleadings.
IV. CONCLUSION
Based on the foregoing, the Court hereby
ORDERS that Defendant Deputy Jeffery Weisner’s Motion to Dismiss
(Document No. 12) is GRANTED. The Court further
ORDERS that Plaintiff Hlevictor A. Hoskins, Jr.’s claim against Deputy
Jeffery Weisner is DISMISSED.
SIGNED at Houston, Texas, on this Lay of August, 2025.
elk
DAVID HITTNER
United States District Judge