Neisen v. Nueces County District Attorney's Office

UNITED STATES DISTRICT COURT August 27, 2025

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

CORPUS CHRISTI DIVISION

HEATHER NEISEN, §

§

Plaintiff, §

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VS. § CIVIL ACTION NO. 2:25-CV-00174

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NUECES COUNTY DISTRICT §

ATTORNEY'S OFFICE, et al., §

§

Defendants. §

MEMORANDUM AND RECOMMENDATION

Pending is Defendant’s Motion to Dismiss, Plaintiff’s Response and Defendant’s

Reply. (D.E. 5; D.E. 7 and D.E. 8). For the reasons stated below, the undersigned

RECOMMENDS the Motion be GRANTED and this case be DISMISSED. (D.E. 5).

Further, the undersigned also RECOMMENDS Plaintiff not be permitted to amend her

complaint.1

I. BACKGROUND

Plaintiff, a resident of Tennessee, is the mother of several minor children. Her ex-

husband, Matthew Rohmfeld, has legal and physical custody of the children in Texas

pursuant to a Tennessee state court child custody order. (Case No. 2:24-cv-185, D.E. 18,

1Plaintiff raises new claims in this case for the first time in her Response to the pending Motion to

Dismiss and therefore, the Court is not required to consider them. However, the undersigned has

addressed them in this M & R, treating her new claims as an amended pleading. Accordingly, the

undersigned recommends Plaintiff not be permitted to amend her claims again.

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D.E. 20 and D.E. 25). Plaintiff, proceeding pro se and in forma pauperis, has filed several

other cases before this Court against her ex-husband, Matthew Rohmfeld, and various

government officials and entities, including Nueces County, the City of Corpus Christi, the

Corpus Christi Police Department and the Texas Attorney General, raising claims

challenging the validity and terms of the Tennessee state custody and child support order;

alleging custodial interference and child abduction; alleging sabotage of her relationship

with her minor children; challenging a charge against her for custodial interference alleging

it was filed in retaliation for her reporting abuse and seeking assistance as well as for filing

a complaint against a Corpus Christi police officer; and alleging certain authorities have

failed to investigate and prosecute her ex-husband for alleged rapes or sexual assault,

interference with child custody or other reported crimes. (Case Nos. 2:24-cv-88; 2:24-cv-

149; 2:24-cv-185 and 2:25-cv-26). All of these cases were dismissed. In addition to the

instant case, which was removed to this Court on July 3, 2025, Plaintiff has also recently

filed another civil action in the Galveston Division of the Southern District of Texas

asserting she has a parenting plan issued by a Tennessee state court and two Galveston

police officers unlawfully removed her children from her custody during her legally

designated parenting time. (Case No. 3:25-cv-147). Plaintiff alleges claims in that case

for violations of the Fourth and Fourteenth Amendment, negligence, intentional infliction

of emotional distress, municipal liability, violation of Texas statutes and abuse of power

and malicious prosecution against the City of Galveston, two Galveston police officers and

an assistant district attorney.

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In this case, originally filed in state court on May 1, 2025, Plaintiff alleges her ex-

husband unlawfully retained their minor children from June 1 to 9, 2024 and November 29

to December 1, 2024, in violation of the Tennessee state court child custody order. (D.E.

1-1, Page 6). Plaintiff alleges this constitutes felony custodial interference and states

claims against the Nueces County District Attorney’s Office and the Corpus Christi Police

Department for “[t]heir failure to investigate, arrest or prosecute” her ex-husband asserting

this violates Texas Penal Code § 25.03, Due Process and Equal Protection under the 14th

Amendment and the Supremacy Clause. (D.E. 1-1, Page 6). Plaintiff requests a writ of

mandamus compelling Defendants to investigate, arrest and file felony charges against her

ex-husband and monetary damages totaling $500,000.00.2 (D.E. 1-1, Page 7). In her

Response to the pending Motion, Plaintiff recharacterizes her claim. Plaintiff asserts she

“has not filed suit to compel prosecution of a third party, but to seek redress for direct harm

caused by state actors” to herself for 1) “malicious and false felony prosecution based on

fabricated or insufficient evidence;”3 2) “Unequal enforcement of custodial interference

laws against her but not against the biological father; 3) Deliberate indifference to [her]

2Plaintiff has previously filed a case seeking mandamus or injunctive relief against Nueces County

and CCPD on these same grounds which was dismissed by this Court in June 2025 with a finding

that “this Court does not have the authority to mandate that state officials pursue a criminal

investigation or criminal charges.” (Case No. 2:25-cv-26, D.E. 12, Page 4 and D.E. 16). Further,

while it has previously been determined that Plaintiff was free to seek relief on her claims for

malicious prosecution, defamation, libel or slander in state court, Plaintiff’s state court complaint

contained federal law claims and therefore, the undersigned recommends this case was properly

removed. (D.E. 1-1, Pages 6 and 21 and Case No. 2:24-cv-88, D.E. 20, Pages 17-18 and D.E. 22,

Page 5).

3Plaintiff asserts the “charge [against her] was ultimately dismissed on May 5, 2023, for

insufficient evidence.” (D.E. 7, Page 1).

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civil rights, ADA-protected disabilities, and her trauma history;” 4) “Systemic denial of

access to the courts and protection under law.” (D.E. 7, Page 1). Also in her Response,

Plaintiff asserts her claims arise under 42 U.S.C. § 1983 as “[t]he Fifth Circuit has

repeatedly held that victims of discriminatory or retaliatory enforcement may bring claims

under 42 U.S.C. § 1983.” (D.E. 7, Page 2). Plaintiff asserts she has standing “to challenge

retaliatory prosecution and disability discrimination,” she has stated plausible claims for

wrongful prosecution and “disability-based denial of access to court, accommodations, and

police protections,” and prosecutorial immunity does not apply. (D.E. 7, Pages 2-3). For

the reasons stated below, the undersigned recommends Defendant’s Motion to Dismiss be

granted and Plaintiff’s case be dismissed.

II. RELEVANT LEGAL STANDARDS

A. FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss an action

for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In

deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim, “[t]he court accepts

all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” In

re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (citation omitted). To

survive the motion, a nonmovant must plead “enough facts to state a claim to relief that is

plausible on its face” and must plead those facts with enough specificity “to raise a right to

relief above the speculative level, on the assumption that all the allegations in the complaint

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are true (even if doubtful in fact).” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007)).

“The court’s task is to determine whether the plaintiff has stated a legally cognizable

claim that is plausible, not to evaluate the plaintiff’s likelihood of success.” Lone Star

Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010) (citing

Ashcroft v. Iqbal, 556 U.S. 662 (2009)). “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citation omitted).

“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more

than a sheer possibility that a defendant has acted unlawfully.” Id. (citation omitted).

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

conclusory statements, do not suffice. Id. (citation omitted). “While legal conclusions can

provide the framework of a complaint, they must be supported by factual allegations” to

be entitled to the assumption of truth. Id. at 679 (“When there are well-pleaded factual

allegations, a court should assume their veracity and then determine whether they plausibly

give rise to an entitlement to relief.”). Under Rule 8(a)(2), plaintiffs are not required to

include “detailed factual allegations,” but at the same time “more than an unadorned, the-

defendant-unlawfully-harmed-me accusation” is needed. Iqbal, 556 U.S. at 678. “To

survive a Rule 12(b)(6) motion to dismiss, the complaint ‘does not need detailed factual

allegations,’ but it must provide the plaintiff’s grounds for entitlement to relief – including

factual allegations that, when assumed to be true, ‘raise a right to relief above the

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speculative level.’” N. Cypress Med. Ctr. Operating Co., Ltd. v. Cigna Healthcare, 781

F.3d 182, 191 (5th Cir. 2015) (citing Twombly, 550 U.S. at 555).

B. 42 U.S.C. § 1983

Section 1983 provides a private right of action against parties acting “under color

of any statute, ordinance, regulation, custom, or usage, of any State” to redress the

deprivation of rights secured by the United States Constitution or federal law. City of St.

Louis v. Praprotnik, 485 U.S. 112, 121 (1988) (citing 42 U.S.C. § 1983). As such, to state

a claim under § 1983, a plaintiff must demonstrate: (1) a violation of the United States

Constitution or a federal law; (2) and that the violation was committed by a person acting

under color of state law. Gomez v. Toledo, 446 U.S. 635, 640 (1980). A person for these

purposes includes a local governing body or municipality if the action claimed to be

unconstitutional was implemented by a “policy statement, ordinance, regulation, or

decision officially adopted and promulgated by” that body’s officers. Monell v. Dep’t of

Soc. Serv., 436 U.S. 658, 659 (1978) (Local governments may also be sued for

constitutional deprivations pursuant to a custom even if that custom has not received formal

approval). However, a municipality cannot be held liable under § 1983 on a theory of

respondeat superior. Id. Rather, a municipality can be subjected to civil liability “only if

the alleged constitutional violations are ‘directly attributable to the municipality through

some sort of official action or imprimatur; isolated unconstitutional actions by municipal

employees will almost never trigger liability.’” Robinson v. Hunt Cty., Tex., 921 F.3d 440,

449 (5th Cir. 2019) (citing Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.

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2001)). “[M]unicipal liability under section 1983 requires proof of three elements: a

policymaker; an official policy; and a violation of constitutional rights whose ‘moving

force’ is the policy or custom.” Piotrowski, 237 F.3d at 578 (citing Monell, 436 U.S. at

694). These three principles “are necessary to distinguish individual violations perpetrated

by local government employees from those that can be fairly identified as actions of the

government itself.” Id. “While an unconstitutional official policy renders a municipality

culpable under § 1983, even a facially innocuous policy will support liability if it was

promulgated with deliberate indifference to the ‘known or obvious consequences’ that

constitutional violations would result. Id. (citation omitted); Balle v. Nueces Cty., 952 F.3d

552, 557-58 (5th Cir. 2017) (citations omitted). “Importantly, to adequately plead a policy

or custom, the specific policy must be identified; it may not be inferred ‘merely because

harm resulted from some interaction with a governmental entity.’” Kibbey, 2023 WL

2598666, at * 3 (citing Ratliff v. Aransas Cty., 948 F.3d 281, 285 (5th Cir. 2020) (To

adequately plead a custom or policy, plaintiffs must do more than describe an incident

giving rise to injury) (other citations omitted).

III. DISCUSSION

The majority of Plaintiff’s claims have been previously raised and dismissed by this

Court as discussed below. Some of Plaintiff’s claims were dismissed with prejudice and

are therefore barred by res judicata. However, as Plaintiff is proceeding pro se and her

factual allegations are conclusory and sparse, the undersigned has considered Plaintiff’s

claims in their entirety while also viewing them in relation to this Court’s prior decisions,

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construing her allegations liberally in her favor. Oliver v. Scott, 276 F.3d 736, 740 (5th

Cir. 2002).

It is clear from Plaintiff’s response that Plaintiff has now abandoned her claim for

failing to investigate and to prosecute her ex-husband as she specifically states she “has

not filed suit to compel prosecution of a third party.” (D.E. 7, Page 1). Even if Plaintiff

had not abandoned these claims, as this Court has previously ruled, “Plaintiff does not have

a constitutional right to have someone else prosecuted, so any failure to prosecute [her ex-

husband] does not amount to a violation of Plaintiff’s constitutional rights.” (Case No.

2:24-cv-88, D.E. 20, Page 9 and D.E. 22, Pages 2-3); Lefebure v. D’Aquilla, 15 F.4th 650,

652 (5th Cir. 2021) (Finding “a crime victim may not challenge a prosecutor’s failure to

investigate or prosecute her perpetrator.”) Further, Plaintiff’s request in a separate case for

mandamus or injunctive relief has similarly been denied with a finding that state officials

cannot be mandated by this Court to pursue criminal investigation or criminal charges

against her ex-husband. (Case No. 2:25-cv-26, D.E. 12, Page 4 and D.E. 16). Therefore,

the undersigned recommends Plaintiff has abandoned her claims for any alleged failure to

investigate and to prosecute her ex-husband and, alternatively, that she has again not stated

a plausible claim.

Similarly, Plaintiff previously raised a claim alleging she was falsely charged with

custodial interference in 2023. (Case No. 2:24-cv-88, D.E. 20, Pages 11-12). This Court

held “immunity shields the district attorney and any prosecutor who participated in the

bringing of a criminal case against Plaintiff.” (Case No. 2:24-cv-88, D.E. 22, Page 12 and

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D.E. 22, Pages 3-4). Further, this Court also previously dismissed Plaintiff’s § 1983

malicious prosecution claims under both the Fourth and Fourteenth Amendment. (Case

No. 2:24-cv-88, D.E. 20, Pages 13-14 and D.E. 22, Page 3). Additionally, this Court

determined “Plaintiff cannot bring a retaliation claim under § 1983 because she does not

allege specific retaliatory actions by supervisory officials.” (Case No. 2:24-cv-88, D.E.

20, Page 15 and D.E. 22, Page 3). Plaintiff’s § 1983 claims here should be dismissed again

for the reasons stated in the Court’s previous decision. Further, Plaintiff’s conclusory

references to the Americans with Disability Act do not change this Court’s prior dismissals.

Plaintiff has failed to plead with any specificity what her disability is and how she was

“excluded from participation in, or denied benefits of, services, programs, or activities on

account of [her] disability.” Williams v. Bowie Cty., 718 F. App’x 310, 311 (5th Cir. 2018).

Therefore, Plaintiff’s claims for purported violations of the ADA should also be dismissed.

IV. OTHER CLAIMS NOT ADDRESSED IN THIS MEMORANDUM

To ensure justice and access to the courts, courts interpret pleadings of pro se

litigants liberally. See United States v. Robinson, 78 F.3d 172, 174 (5th Cir. 1996) (citing

United States v. Santora, 711 F.2d 41, 42 (5th Cir. 1983)). Pro se actions will not be

dismissed based on technical pleading defects and should be construed to ensure such

claims are given fair and meaningful consideration despite the unrepresented litigant’s

unfamiliarity with the law. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); See also

Estelle v. Gamble, 429 U.S. 97, 106 (1976) (Pro se parties are normally accorded more

leniency in the construction of their pleadings).

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The undersigned has attempted to articulate and analyze Plaintiff’s claims in an

impartial manner consistent with providing appropriate leniency to pro se litigants while

at the same time requiring compliance with applicable pleading standards. To the extent

Plaintiff is attempting to raise a claim not specifically addressed by the undersigned in this

Memorandum and Recommendation, Plaintiff has failed to state such claim with sufficient

factual detail or clarity to allow the claim to be identified, understood, or analyzed by the

Court.

As stated previously, “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Again,

Plaintiff must allege sufficient facts in support of its legal conclusions that give rise to a

reasonable inference that Defendant is liable. Id.; Twombly, 550 U.S. at 556. Further, the

factual allegations must raise Plaintiff’s claim for relief above the level of mere

speculation. Twombly, 550 U.S. at 555. Plaintiff is advised that any claim not addressed

in this Memorandum and Recommendation is not currently before this Court because

Plaintiff has failed to allege sufficient facts or state such claims clearly.

Additionally, Defendant asserts in the Motion to Dismiss that this Court should

exercise supplemental jurisdiction over Plaintiff’s state law claims, without addressing

what state law claims actually remain. (D.E. 5, Page 6-7). Rather, Plaintiff states in her

Response that her claims “are grounded in violations of clearly established constitutional

rights and federal disability law.” (D.E. 7, Page 1). Therefore, the undersigned is unclear

if Plaintiff asserts any state law claims as she recharacterized her claims in her Response

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to Defendant’s Motion, which the undersigned treats as an amended complaint.

Accordingly, the undersigned recommends Plaintiff’s case be dismissed in its entirety.

V. AMENDMENT

“District courts have wide latitude to consider requests for leave to amend.” Travis

v. City of Grand Prairie, Tex., 654 F. App’x 161, 167 (5th Cir. 2016). Under Federal Rule

of Civil Procedure 15(a)(2), leave to amend should be freely given “when justice so

requires.” However, leave to amend may be denied for such reasons as “undue delay, bad

faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the opposing party…, [or] futility of

amendment…” Thomas v. Chevron U.S.A., Inc., 832 F.3d 586, 591 (5th Cir. 2016)

(citations omitted). As discussed above, Plaintiff has submitted these same arguments to

the Court in several cases, all of which have been dismissed. Further, the undersigned has

construed Plaintiff’s Response, which recharacterized her claims, as an amended pleading.

Accordingly, the undersigned recommends Plaintiff has pleaded her best case and the

record does not support allowing further amendment.

VI. RECOMMENDATION

For the reasons stated above, the undersigned RECOMMENDS the Motion be

GRANTED and this case be DISMISSED. (D.E. 5). Further, the undersigned also

RECOMMENDS Plaintiff not be permitted to amend her complaint.

Plaintiff is cautioned that if she continues to file frivolous previously adjudicated

claims or any frivolous lawsuits, she may face sanctions. Sanctions may include monetary

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sanctions and filing restrictions, such as prohibiting her from filing any civil actions in this

District without paying the required filing fee or obtaining prior authorization from a

district or magistrate judge.

Respectfully submitted on August 27, 2025.

C Jason & Libby Z

United States Magistrate Judge

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NOTICE TO PARTIES

The Clerk will file this Memorandum and Recommendation and transmit a copy to

each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of

the Memorandum and Recommendation, a party may file with the Clerk and serve on the

United States Magistrate Judge and all parties, written objections, pursuant to Fed. R. Civ.

P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District Court

for the Southern District of Texas.

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

recommendation in a magistrate judge’s report and recommendation within FOURTEEN

(14) DAYS after being served with a copy shall bar that party, except upon grounds of

plain error, from attacking on appeal the unobjected-to proposed factual findings and legal

conclusions accepted by the District Court. Douglass v. United Servs. Auto Ass’n, 79 F.3d

1415 (5th Cir. 1996) (en banc).

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