Licona

Souther District of Texas

ENTERED

IN THE UNITED STATES DISTRICT COURT November 07, 2026

FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

JOHN LICONA, JR., §

Plaintiff,

VS. § CIVIL ACTION NO. 4:23-cv-1978

MICHELLE ROY, et al., :

Defendants. :

ORDER

Pending before this Court are numerous motions filed by both Plaintiff John Licona, Jr.

(“Plaintiff”) and the several defendants in this case. After reviewing each motion, any responses

and replies, the record, and any evidence presented, this Court orders the following:

1. Plaintiff’s Motion for Summary Judgment and Partial Summary Judgment (Doc. No. 66)

is DENIED.

2. Plaintiff’s Motion for Summary Judgment (Doc. No. 68) is DENIED.

3. Plaintiff’s Motion for Extension of Time to File Response to Defendant’s [72] (Doc. No.

73) is DENIED as moot.

4. Defendant City of El Campo, Texas’ Motion to Dismiss Plaintiff’s Second Amended

Complaint (Doc. No. 81) is DENIED.

5. Defendant Officer Zeller’s, and Defendant Officer Gonzales’ Motion to Dismiss Plaintiff’s

Second Amended Complaint (Doc. No. 81) is DENIED as moot given that the Court is

hereby dismissing them because the claims alleged can proceed only against the City of El

Campo itself.

6. Defendant Wharton County, Texas’ Motion to Dismiss Plaintiff’s Second Amended

Complaint (Doc. No. 88) is GRANTED as to it.

7. Plaintiff's Motion for Leave to File Third Amended Complaint (Doc. No. 90) is DENIED.

8. Plaintiff’s Motion for Leave to File Excess Pages (Doc. No. 91) is DENIED as moot.

9. Plaintiff’s Motion for Temporary Restraining Order (Doc. No. 92) is DENIED.

10. Plaintiff’s Motion to Consolidate Cases (Doc. No. 93) is DENIED.

11. Plaintiff’s Motion to Strike [95] Wharton County’s Response to Motion (Doc. No. 97) is

DENIED.

12. Plaintiff's Motion to Sever Cases (Doc. No. 101) is DENIED.

I. Background

Plaintiff, proceeding pro se, has sued numerous officers, municipalities, and agencies of

municipalities under 42 U.S.C. § 1983 for alleged violations of his constitutional rights. (Doc. No.

43). Plaintiff lives outside of El Campo, Texas which is located within Wharton County. (Doc. No.

1 at 1). This lawsuit was initially filed in May 2023, and with each iteration of Plaintiff's complaint,

new claims and defendants have been added. (Doc. Nos. 1, 18, 43) (Plaintiff’s Original, First

Amended, and Second Amended Complaints). It is difficult to decipher many of the factual

allegations that underlie much of what exactly Plaintiff believes his local government has done.

What is not difficult to decipher, however, is that Plaintiff feels his local government has engaged

in “egregious violations of the laws.” (Doc. No. 43 at 1). As there are numerous defendants

involved in the pending motions, the Court will briefly summarize Plaintiff’s claims against each

of the defendants.

Defendant Michelle Roy (“Roy”) is a municipal judge in El Campo Municipal Court. (Doc.

No. 43 at 5). Plaintiff appeared before Roy after he was charged with two counts of theft. (Doc.

No. 1 at 4). At some point, Roy allegedly issued an arrest warrant for Plaintiff, and Plaintiff spent

a few days in jail. (/d. at 5). In this case, Plaintiff alleges that Roy violated his constitutional rights

in numerous ways and that she “weaponiz[ed] her position against Plaintiff.” (Doc. No. 43 at 5).

Next, Plaintiff has sued the El Campo Police Department (“ECPD”), ECPD Officer

Kourtney Gonzales (“Officer Gonzales”), ECPD Officer J.A. Zeller (“Officer Zeller’), and the

City of El Campo (“El Campo”). Plaintiff first accuses Officer Gonzales of “physically forc[ing]

Plaintiff off his property without due process,” violating Plaintiff’s Miranda rights, and violating

his Fourth Amendment rights. (Doc. No. 43 at 9-13). Officer Gonzales allegedly entered Plaintiff's

private property and proceeded to the back of the property where Plaintiff was seated in his car.

(Doc. No. 18 at 11). The officer then allegedly “swung open the driver’s side door” of Plaintiff's

car and “damaged the driver side door hinge.” (/d.). Next, Plaintiff alleges that Officer Gonzales

demanded identification and interrogated him to the point where he “felt as if he were being

coerced into answering a question he was not prepared to answer.” (/d. at 12). After this, Officer

Gonzales allegedly forced Plaintiff off his own property and issued him a criminal trespass

warning. (/d.).

As to Defendant Officer Zeller, Plaintiff alleges that, in a completely separate incident from

his interaction with Officer Gonzales, Officer Zeller pulled him over and arrested him for

possession of marijuana. (/d. at 15). Ultimately, Plaintiff maintains the substance he possessed was

not marijuana. (/d.). Regardless, Plaintiff believes that Officer Zeller wrongly arrested him and

“tampered with evidence.” (/d. at 16). Although, Plaintiff fails to provide clarity on what exactly

he means here and what evidence he believes Officer Zeller tampered.

To round out the El Campo-related defendants, Plaintiff has sued ECPD and the City of El

Campo. Plaintiff primarily wants to hold these entities liable for their alleged failure to properly

train and oversee those ECPD officers Plaintiff feels have violated his rights. (/d. at 18-21).

Plaintiff has also sued Wharton County, Texas, the county in which he resides. See (id. at

24-26). Similar to his claims against ECPD and the City of El Campo, Plaintiff accuses Wharton

County of failing to provide adequate training and oversight to the Wharton County Sherriff’s

Office deputies. (/d.).

These are the remaining defendants in this lawsuit.! Plaintiff has filed multiple motions for

summary judgment and moved for leave to file a Third Amended Complaint. Multiple defendants

have also filed motions to dismiss. All motions are now ripe for ruling.

Il. Legal Standards

A. Federal Rule of Civil Procedure 12(b)(5)

Federal Rule of Civil Procedure 12(b)(5) permits a named defendant to challenge proper

service of the summons and complaint in a case. Fed. R. Civ. P. 12(b)(5). The party making service

has the burden of demonstrating its validity when an objection to service is made. Carimi v. Royal

Carribean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992). A district court has broad

discretion to dismiss an action pursuant to Rule 12(b)(5) for insufficient service of process.

Kreimerman vy. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 645 (Sth Cir. 1994). Pro se litigants are

not exempt from the service-of-process requirements. Kersh v. Derozier, 851 F.2d 1509, 1512

(5th Cir. 1988). Under Rule 4(m), when a plaintiff fails to properly serve a defendant, the Court

has two choices—either dismiss the action without prejudice or direct that service be effected

within a specified time. Thompson v. Brown, 91 F.3d 20, 21 (Sth Cir. 1996). “The next portion of

the rule qualifies the district court's choices, making an extension of time mandatory when the

' Plaintiff also sued Tim Drapela, Wharton County’s Justice of the Peace Precinct 4, April Reed, an Assistant

Community Supervision Officer in the Wharton County Probation Department, Wharton County Sheriff’s Deputy

Corporal Tyler Mican, and the Wharton County Sheriff’s Office. Plaintiff has voluntarily dismissed his claims against

all four of those defendants. (Doc. Nos. 19, 36, 77).

plaintiff shows good cause.” Jd. Nevertheless, even if good cause is lacking, the court may extend

time for service in its discretion. Id.

B. Federal Rule of Civil Procedure 12(b)(6)

A defendant may file a motion to dismiss a complaint for “failure to state a claim upon

which relief may be granted.” Fed. R. Civ. P. 12(b)(6). Similarly, a plaintiff may file a Rule 12(b)(6)

motion to dismiss a counterclaim. See Kansas v. Nebraska, 527 U.S. 1020 (1999). To defeat a

motion to dismiss under Rule 12(b)(6), a plaintiff must 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). “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.” Ashcroft v. Iqbal, 556

U.S. 662, 663 (2009) (citing Twombly, 550 U.S. at 556). “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.” Jd. (quoting Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are

‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and

plausibility of entitlement to relief.’” Jd. (quoting Twombly, 550 U.S. at 557).

In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the

complaint as true and view them in the light most favorable to the plaintiff. Sonnier v. State Farm

Mut. Auto. Ins. Co., 509 F.3d 673, 675 (Sth Cir. 2007). The Court is not bound to accept factual

assumptions or legal conclusions as true, and only a complaint that states a plausible claim for

relief survives a motion to dismiss. Jgbal, 556 U.S. at 678-79. When there are well-pleaded factual

allegations, the court assumes their veracity and then determines whether they plausibly give rise

to an entitlement to relief. Jd.

C. Summary Judgment

Summary judgment is warranted “if 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). “The movant bears the burden of identifying those portions of the record it believes

demonstrate the absence of a genuine issue of material fact.” Triple Tee Golf, Inc. v. Nike, Inc., 485

F.3d 253, 261 (5th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)).

Once a movant submits a properly supported motion, the burden shifts to the non-movant

to show that the court should not grant the motion. Celotex, 477 U.S. at 321-25. The non-movant

then must provide specific facts showing that there is a genuine dispute. Jd. at 324; Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A dispute about a material fact

is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Anderson yv. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must draw all

reasonable inferences in the light most favorable to the nonmoving party in deciding a summary

judgment motion. /d. at 255. The key question on summary judgment is whether there is evidence

raising an issue of material fact upon which a hypothetical, reasonable factfinder could find in

favor of the nonmoving party. /d. at 248. It is the responsibility of the parties to specifically point

the Court to the pertinent evidence, and its location, in the record that the party thinks are relevant.

Malacara v. Garber, 353 F.3d 393, 405 (Sth Cir. 2003). It is not the duty of the Court to search the

record for evidence that might establish an issue of material fact. Jd.

Hil. Analysis

A. Plaintiff’s Opposed Motion for Leave to File Third Amended Original Complaint

(Doc. No. 90)

Plaintiff moved for leave to file his Third Amended Complaint, (Doc. No. 90), and Wharton

County responded. (Doc. No. 95). Plaintiff then filed his Motion to Strike Wharton County’s

Response, (Doc. No. 97), and Wharton County responded to the Motion to Strike, (Doc. No. 99).

Plaintiff’s Second Amended Complaint is a civil rights action asserting multiple theories of

liability under U.S.C. 42 § 1983. (Doc. No. 43). Plaintiff now seeks to file a Third Amended

Complaint, insisting that “more infractions by current and new Defendant(s) have occurred.” (Doc.

No. 90 at 3).

Wharton County asks this Court to deny Plaintiff’s request to file a Third Amended

Complaint for three reasons: (1) Plaintiff seeks to improperly join unrelated parties and claims; (2)

Plaintiff’s new claims are governed by the Texas Tax Code, so this Court has no jurisdiction

because Plaintiff has failed to first exercise his administrative remedies; and (3) Plaintiff's new

claims are frivolous, and the parties he seeks to join are protected by governmental immunity.

(Doc. No. 95 at 1).

Federal Rule of Civil Procedure 15 governs amending and supplementing pleadings. Fed.

R. Civ. P. 15. Rule 15 determines when a party may amend its pleadings as a matter of course. □□□

When the deadline for amendment has passed, however, “a party may amend its pleading only

with the opposing party’s written consent or the court’s leave.” /d. 15(a)(2). The trial court has

discretion on whether to grant leave to amend the pleadings pursuant to Rule 15(a) and should do

so freely “when justice so requires.” Jd. Nevertheless, leave to amend “is by no means automatic.”

Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (Sth Cir. 1993). When considering whether to grant

leave under Rule 15(a)(2), courts assess “undue delay, bad faith or dilatory motive on the part of

the movant, repeated failures to cure deficiencies by amendments previously allowed, undue

prejudice to the other party by virtue of the allowance of the amendment, [and] futility of the

amendment.” Whitmire v. Victus Ltd., 212 F.3d 885, 889 (Sth Cir. 2000).

The Court agrees with Wharton County that Plaintiff improperly seeks to add unrelated

parties and claims to this lawsuit, which is not permitted under the Federal Rules of Civil

Procedure. Plaintiff’s Second Amended Complaint, though disjointed itself, was largely centered

around Plaintiff’s interaction with the criminal justice system and individual interactions with El

Campo police officers. In contrast, his Third Amended Complaint seeks to add four new defendants

and new, unrelated claims against Wharton County. (Doc. No. 90 at 3-5). Specifically, Plaintiff

wants to now sue the Chief Executive Officer of Wharton County, the Wharton County Appraisal

District Chief Appraiser, Wharton County Tax Assessor, and another ECPD Officer. (/d. at 5). The

issue at the center of his Third Complaint appears to relate to his dissatisfaction with how property

taxes have been administered in Wharton County. See (id.).

These new defendants would be improperly joined under Rule 20(2) because Plaintiff's

claims against them do not “aris[e] out of the same transaction, occurrence, or series of

transactions” and do not share a common question of law or fact. Jd. Additionally, the numerous

other defendants in this case would be unduly prejudiced if deadlines were delayed due to the

addition of new defendants and claims. This case has been ongoing for over two years, Plaintiff

has already amended his complaint twice before, and this request to file a Third Amended

Complaint comes over a year after he filed his Second Amended Complaint. In this context, it is

appropriate to deny Plaintiff’s Motion for Leave to file an additional complaint. In re Conley, 176

F. App’x 452, 453 (Sth Cir. 2006) (citing Mayeaux v. La. Health Serv. & Indem. Co., 376 F.3d 420,

427-28 (5th Cir. 2004)) (“Here, the motion to amend the complaint adding new defendants was

made five months after the complaint was filed, requested to plead different theories against

different parties, and was thus properly denied.”).

Plaintiff cannot treat this lawsuit as a catch-all for every grievance he has against any local

governmental unit regardless of the topic. For the foregoing reasons, Plaintiff’s Motion for Leave

to File Third Amended Original Complaint, (Doc. No. 90), is DENIED, and Plaintiff’s Motion to

Strike Wharton County’s Response, (Doc. No. 97), is DENIED. Plaintiff’s Motion for Leave to

File Excess Pages, (Doc. No. 91) is DENIED as moot. This case should proceed on Plaintiff’s

Second Amended Complaint.

B. Plaintiff’s Motion for Temporary Restraining Order (Doc. No. 92)

Related to his desire to add new parties and claims to the case, Plaintiff filed his Motion

for a Temporary Restraining Order asking this Court to enjoin Defendants from enforcing multiple

provisions of the Texas Property Tax Code. (Doc. No. 92 at 1-2). The actions Plaintiff wishes to

enjoin are related to the new claims and defendants he seeks to add in his Motion for Leave to

Amend. Since that motion was denied for the reasons stated above, Plaintiff’s Motion for a

Temporary Restraining Order is DENIED.

C. Defendants City of El Campo, Texas, Officer Zeller, and Officer Gonzalez’s

12(b)(5) Motion to Dismiss (Doc. No. 81).

Defendants City of El Campo, Officer Zeller, and Officer Gonzalez ask this Court to

dismiss Plaintiff’s Complaint against them for insufficient service of process under Federal Rule

of Civil Procedure 12(b)(5). These Defendants claim that “Plaintiff has failed to serve Officer

Zeller or Officer Gonzales with any complaint in this matter. In addition, Plaintiff has failed to

serve the City of El Campo with his Second Amended Complaint.” (Doc. No. 81 at 5).

In his response, Plaintiff first argues that he did not sue “[Officer Gonzales and Officer

Zeller] in their individual capacity but rather in their official capacity.”* (Doc. No. 83 at 3)

? Plaintiff has maintained throughout his pleadings that he has sued every Defendant “in their official capacity and not

their individual capacity.” (Doc. No. 83 at 4). “Plaintiff seeks to recover from the city treasury.” (/d.). In his response

to Defendant City of El Campo’s Motion to Dismiss Plaintiff’s First Amended Complaint, Plaintiff stated that “[t]he

(emphasis added). Based upon that, he claims service on the City of El Campo would be sufficient

to serve both officers. (/d. at 3-4). Second, Plaintiff claims that he properly served the City of El

Campo by having his father, who is not a party to this lawsuit, hand deliver the summons and

complaint to El Campo’s “official servicing agent,” the City’s Secretary. (Doc. No. 83 at 7).

This Court need not decide the issue of service as to the officers. As a preliminary matter,

Plaintiff clearly states in his response that he is suing Officer Zeller and Officer Gonzales in their

official capacities, not their individual capacities. (/d. at 3-4). “A claim against a municipal official

in his or her official capacity is tantamount to a suit against the municipal entity.” Bustillos v. El

Paso Cnty. Hosp. Dist., 226 F. Supp. 3d 778, 789 (W.D. Tex. 2016), aff'd, 891 F.3d 214 (Sth Cir.

2018) (citing Monell v. Dep't of Soc. Servs. of N.Y.C., 436 U.S. 658, 690 (1978)). “Thus, when a

plaintiff asserts claims against both the municipal entity and a municipal official in his or her

official capacity, the Court can dismiss the official capacity claim as ‘redundant’ to the municipal-

entity claim.” Jd. (quoting Sanders-Burns v. City of Plano, 594 F.3d 366, 373 (Sth Cir. 2010)).

Courts can consider this issue sua sponte and dismiss improper parties. Mariscal v. Ochoa, No.

CIV.A L-09-91, 2010 WL 466710, at *3 (S.D. Tex. Feb. 9, 2010) (sua sponte dismissing plaintiff's

redundant and duplicative § 1983 claims); see Castro Romero v. Becken, 256 F.3d 349, 355 (Sth

Cir. 2001) (affirming the trial court's dismissal of allegations against municipal officials in their

official capacities as duplicative of the allegations against the governmental entity).

In addition, the Court notes that the El Campo Police Department is not a suable entity

separate and apart from the City of El Campo. Montoya v. Taylor, 44 F.3d 1005, 1005 n.1 (Sth Cir.

1995) (citing Darby v. Pasadena Police Dept, 939 F.2d 311, 313 (Sth Cir.1991)). The capacity of

an entity to sue or be sued shall be determined “by the law of the state in which the district court

officers are sued in their capacity as officers working for the city of El Campof,] Texas in the policing department of

the city .. . not as individual citizens with no government title or government officer position.” (Doc. No. 32 at 2).

10

is held.” Fed. R. Civ. P. 17(b)(3). In this case, El Campo is a home rule municipality. The Texas

Local Government Code grants all authority to organize a police force to the City itself, see Tex.

Local Gov't Code § 341.003, and the Charter of the City of El Campo reserved to the municipality

itself the power to “sue and to be sued.” Home Rule Charter, City of El Campo, Texas, art. 2, §

2.01.5 The Charter nowhere grants the police department the power to sue or be sued.

Here, Plaintiff has sued the City of El Campo, El Campo Police Department, and El Campo

Police Department Officers Zeller and Gonzales. (Doc. No 43 at 8-9, 13, 18). Since Plaintiff's

claims against both officers were clearly brought against them in their official capacity, those

claims are duplicative of the claim brought against the City of El Campo. El Campo Police

Department is also not a suable entity. As such, this Court DISMISSES Officer Zeller, Officer

Gonzales, and the El Campo Police Department from this case. Each claim against these

defendants is effectively a claim against the City of El Campo and should proceed as such.

The Court now turns to Defendant City of El Campo’s argument that it was not properly

served with Plaintiff's Second Amended Complaint. (Doc. No. 81 at 5). Service on a local

government is governed by Federal Rule of Civil Procedure 4(j). Fed. R. Civ. P. 4G). Under Rule

4(j)(2), titled “State or Local Government,” a state, municipal corporation, or any other state-level

governmental organization may be served in two ways: (1) by delivering a copy of the summons

and the complaint to the “chief executive officer” of the governmental unit; or (2) by serving a

copy of the summons and complaint by that state’s law for serving a summons or like process on

such defendant. Jd. 4(j)(2). El Campo is a municipality in Texas, so the Texas service of process

rules apply to the second option prescribed in Rule 4(j)(2). Texas law provides that “[in] a suit

against an incorporated city . . . , citation may be served on the mayor, clerk, secretary, or treasurer.”

3 The City of El Campo’s Home Rule Charter, including this specific section, is available at

https://ecode360.com/3963369 1.

11

Tex. Civ. Prac. & Rem. Code § 17.024(b). Additionally, the Federal Rules prescribe that the

summons must be served by someone who is not a party to the case. Fed. R. Civ. P. 4(c)(2).

Complying with Federal Rule 4(c)(2), Plaintiff employed his father, who is not a party to

this case, to effectuate service on the City of El Campo of Plaintiff’s First Amended Complaint.

(Doc. No. 83 at 5). Before his father served the summons and complaint, Plaintiff contacted Kaylee

Koudela, the City of El Campo Secretary, via email, and asked who the City’s servicing agent was.

(Doc. No. 83 at 13). Koudela informed Plaintiff that “[t]he Servicing Agent of the City of El Campo

is the City Manager or City Secretary.” (/d.).

After service was complete, Plaintiff filed the Proof of Service forms executed by

Plaintiff’s father showing he “served the summons on Servicing Agent: Kaylee Koudela, who is

designated by law to accept service of process on behalf of City of El] Campo, Texas USA on

1/19/2024.” (Doc. No. 35 at 1, 3). Plaintiff’s father signed the form declaring “under penalty of

perjury that this information [was] true.” (/d. at 3). This satisfied Rule 4(1)’s proof of service

requirement. Fed. R. Civ. P. 4(l). Kaylee Koudela holds the office of the City of El Campo’s City

Secretary.* Under Texas law, executing service on an incorporated city’s secretary is a sufficient

way to effectuate service on the incorporated city. Tex. Civ. Prac. & Rem. Code § 17.024(b).

Since Plaintiff properly served his First Amended Complaint and summons under Rule 4,

“every pleading subsequent to the original complaint” is governed by Federal Rule of Civil

Procedure 5. Fed. R. Civ. P. 5(a)(1)(B). An “amended complaint” is considered a “pleading,

motion, or other paper, not a summons.” Johnson v. Crown Enters., Inc., 398 F.3d 339, 344 (Sth

Cir. 2005) (citing Fed. R. Civ. P. 5(a)). It follows that, Rule 5 applies to Plaintiff’s service of his

4 City Secretary, CITY OF EL CAMPO, TEXAS,

https://www.cityofelcampo.org/departments/city_administration/city_secretary.php (last visited Nov. 3, 2025)

(indicating Kaylee Koudela holds the position of “City Secretary/Public Information Officer/Records Management

12

Second Amended Complaint on Defendant City of El Campo, not Rule 4. Arigna Tech. Lid. v.

Bayerische Motoren Werke AG, 697 F. Supp. 3d 635, 643 (E.D. Tex. 2023).

Under Rule 5, when a party is represented by an attorney, like the City of El Campo is in

this case, service should be made on the attorney unless the Court orders service on the party itself.

Fed. R. Civ. P. 5(b)(1). Rule 5 specifies that sending a document to a registered user by filing it

with the court’s electronic-filing system is sufficient to serve that document. /d. 5(b)(2)(£). Further,

the Southern District of Texas Local Rules note that, “[t]he notice of electronic filing that is

automatically generated by the Court's electronic filing system constitutes service of the document

on those registered as filing users of the system.” S.D. Tex. L.R. 5.1. Plaintiff sufficiently served

his Second Amended Complaint on City of El Campo under Rule 5 when he filed it in the District’s

e-filing system and El Campo’s counsel received the notice of electronic filing. See Notice of

Electronic Filing Accompanying Doc. No. 43 (indicating that notice “has been electronically

mailed to: Casey Terrence Cullen ccullen@cullenlawfirm.com,” Counsel for City of El Campo in

this matter).

In their motion, Defendants focus on Plaintiff’s attempted service of his First Amended

Complaint by ground mail. (Doc. No. 81 at 6 (citing Doc. No. 27)). These Defendants also

addressed this issue in their first Motion to Dismiss Plaintiff’s First Amended Complaint. (Doc.

No. 30). Since then, Plaintiff re-issued summons as to El Campo, Officer Gonzales, and Officer

Zeller. Plaintiff also filed his amended affidavit showing summons was delivered by a process

server to E] Campo’s City Secretary. (Doc. No. 35). Defendants do not address this amended

affidavit, nor do they address Plaintiff’s updated method of service in their Motion to Dismiss.

Plaintiff completed his Rule 4 service with his First Amended Complaint, and he served

his Second Amended Complaint under Rule 5 by serving it to counsel via the electronic filing

13

system. Accordingly, Plaintiff’s service of the Second Amended Complaint was proper and

Defendant City of El Campo’s Motion to Dismiss Plaintiff’s Second Amended Complaint (Doc.

No. 81) is DENIED.

D. Plaintiff’s Motion for Summary Judgment Against Michelle Roy (Doc. No. 66)

Plaintiff moved for summary judgment on his four claims against Roy which include:

“judicial misconduct, violation of the 8th amendment cruel and unusual punishment clauses and

violation(s) of a declaratory order or judgment and retaliation.” (Doc. No. 66 at 2). Roy argues in

response that she is protected by judicial immunity, and Plaintiff has failed to produce any

competent summary judgment evidence to show any of her conduct was outside of the normal

judicial function. (Doc. No. 67). This Court agrees with Defendant Roy.

A judge has absolute immunity from suits for damages. Mireles v. Waco, 502 U.S. 9, 9-10,

(1991). There are only two circumstances when judicial immunity may be overcome: a judge is

not immune from liability for nonjudicial actions, and a judge is not immune for actions, though

judicial in nature, that are taken in the complete absence of jurisdiction. Davis v. Tarrant Cnty.,

565 F.3d 214, 220 (5th Cir. 2009). The Fifth Circuit uses a four-factor test to determine if a judge’s

actions were judicial in nature and thus afforded immunity. Jd. Courts should consider whether the

act complained of: (1) is a normal judicial function, (2) occurred in a courtroom or adjunct space

like a judge’s chambers, (3) centers around a case pending before the court, and (4) arose directly

out of a visit to the judge in her official capacity. /d. “Allegations of bad faith or malice [against a

judge] are not sufficient to overcome judicial immunity.” /d.

Plaintiff challenges the actions of Roy, who presided over Plaintiff’s case in City of El

Campo Municipal Court. (Doc. No. 66 at 2-3). Plaintiff argues that Roy violated Plaintiff's rights

by manipulating his case’s docket sheet in bad faith. (/d. 4-6). Plaintiff also complains of two

14

arrest warrants Roy issued for Plaintiff’s arrest and suggests Roy was targeting him with some

kind of personal vendetta. at 6-7). Despite these allegations, Plaintiff concedes that

“Defendant [Michelle Roy], while in the capacity of her official position, has engaged in judicial

misconduct...” (/d. at 7) (emphasis added). Managing a case load and issuing arrest warrants are

normal judicial functions. These actions occurred in El Campo Municipal Court while Roy

presided over Plaintiff’s case in her official capacity. (/d. at 3-4). Therefore, at this stage the Court

cannot find that Judge Roy’s actions were non-judicial acts for which she is not immune from suit.

Davis, 565 F.3d at 220.°

As Plaintiff has failed to overcome Defendant Roy’s absolute defense to suit of judicial

immunity, Plaintiff’s Motion for Summary Judgment against Defendant Roy, (Doc. No. 66), is

DENIED.

E. Plaintiff’s Motion for Summary Judgment against Defendant Kourtney Gonzales,

El Campo Police Department, and City of El Campo (Doc. No. 68)°

Plaintiff moved for summary judgment on his claims against Defendants Officer Gonzales,

El Campo Police Department, and City of El Campo. (Doc. No. 68). Those defendants then

responded. (Doc. No. 72). Plaintiff, as the movant and the party with the burden of proof at trial,

must establish an absence of a genuine dispute of material fact on each of the elements of his

claims. Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (Sth Cir. 1986).

Plaintiff brings a § 1983 claim against the City of El Campo. In order to establish a prima

facie case under 42 U.S.C. § 1983, the plaintiff must allege both (1) a deprivation of a federal right

and (2) that the person who deprived the plaintiff of that right acted under color of state law. 42

5 Defendant Roy did not file a cross-motion for summary judgment.

6 The Court briefly addresses this motion despite the fact that it is dismissing Officer Gonzales and the E] Campo

Police Department because the City of El Campo remains a viable defendant.

15

U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988). Plaintiff does not make it clear in his motion

what federal rights he claims the City of El Campo deprived him of. Plaintiff appears to allege

Officer Gonzales violated his Miranda rights during her “criminal investigation,” and that his Fifth

Amendment right was violated when Officer Gonzales “violated the takings clause.” (Doc. No. 68

at 13-14).

As to Plaintiff’s first allegation against Officer Gonzales, the Supreme Court has held that

a violation of Miranda y. Arizona “does not necessarily constitute a violation of the Constitution,

and therefore such a violation does not constitute ‘the deprivation of [a] right . . . secured by the

Constitution.” Vega v. Tekoh, 597 U.S. 134, 150 (2022) (quoting 42 U.S.C. § 1983). This means

that plaintiffs cannot bring § 1983 claims for alleged violations of their Miranda rights, like

Plaintiff has here. See id. This claim necessarily fails.

Addressing Plaintiff’s second allegation, that Officer Gonzalez violated his Fifth

Amendment rights, Plaintiff fares no better. There are two general categories of Fifth Amendment

takings: per se and regulatory. Degan y. Bd. of Trs. of Dallas Police & Fire Pension Sys., 956 F.3d

813, 815 (Sth Cir. 2020). A per se taking occurs when a government invades real estate or otherwise

appropriates physical property. /d. Here, Plaintiff appears to allege a per se taking by the City of

El Campo. (Doc. No. 68 at 13).

Plaintiff contends that “[Officer] Kourtney Gonzales violated [Plaintiff's] Fifth

Amendment right to property by violating the takings clause. She simply took Plaintiff’s property

on her own volition...” (/d.). Critically missing here is any indication—let alone evidence—to

establish what property was invaded or appropriated. Attached to Plaintiff’s motion are El] Campo

Police Department dispatch reports, a criminal trespass warning issued to Plaintiff, and what

16

purports to be a deed in Plaintiff’s name. (Doc. No. 68-1). These documents fail to establish that

Plaintiff’s Fifth Amendment rights have somehow been violated.

Overall, Plaintiff has not established the absence of a genuine dispute of material fact for

each element of either of his claims. Plaintiff has failed to meet the required summary judgment

pleading standards under Rule 56, so his Motion for Summary Judgment against Defendants

Kourtney Gonzales, El Campo Police Department, and City of El Campo is DENIED.

F. Defendant Wharton County, Texas’s 12(b)(5) and 12(b)(6) Motion to Dismiss (Doc.

No. 88)

Wharton County moved to dismiss Plaintiff’s claims against it for failure to state a claim

under Rule 12(b)(6) and for failure to effectuate proper service under Rule 12(b)(5). (Doc. No. 88

at 9). Plaintiff brings his claims against Wharton County under 42 U.S.C. § 1983, and he primarily

accuses Wharton County of engaging in negligence and failing to provide adequate training to its

sheriff’s deputies, particularly training on the case law of Delaware v. Prouse. (Doc. No. 43 at 1,

24). Wharton County argues that Plaintiff has failed to sufficiently plead a claim of municipal

liability under Monell. (Doc. No. 88).

“A municipality, [or in this case a county], is almost never liable for an isolated

unconstitutional act on the part of an employee; it is liable only for acts directly attributable to it

through some official [policy].” Peterson v. City of Fort Worth, 588 F.3d 838, 847 (Sth Cir. 2009).

Municipal liability under § 1983 requires proof of three elements: (1) an official policy; (2) a

policymaker; and (3) a violation of constitutional rights whose “moving force” is the policy or

custom. Piotrowski v. City of Houston, 237 F.3d 567, 578 (Sth Cir. 2001) (citing Monell, 436 U.S.

at 694). In turn, there are three ways of establishing a municipal policy in order to prove liability

under Monell. First, a plaintiff can show written policy statements, ordinances, or regulations.

Webb v. Town of Saint Joseph, 925 F.3d 209, 214-15 (5th Cir. 2019). Second, a plaintiff can show

17

a widespread practice that is so common and well-settled as to constitute a custom that fairly

represents municipal policy. /d. at 2015. Third, a plaintiff can rely upon a single decision as a

municipal policy in rare circumstances when the official or entity possessing final policymaking

authority for the action performs the specific act that forms the basis of the § 1983 claim. /d. at

215.

Here, Plaintiff appears to allege that the underlying constitutional violation occurred when

Wharton County Sheriff’s Deputy Corporal Tyler Mican (“Mican’”) “pulled him over without cause

to randomly check Plaintiff’s registration and insurance.” (Doc. No. 43 at 22). After which, Mican

allegedly “used excessive force” when he “pointed a gun at Plaintiff’s head.” (/d.). Plaintiff

contends Wharton County is also liable because it “neglected to provide oversight and adequate

procedural training to its deputies,” which interfered with “Plaintiff's right to be free from a rogue

police force.” (/d.). The policy at issue here appears to be Wharton County’s alleged failure to train

its deputies. See (id.).

Plaintiff’s claim fails on the first element as he has failed to plead with particularity an

official policy of Wharton County’s that caused the alleged constitutional violation. First, Plaintiff

pleads no facts regarding Wharton County having a written policy or regulation that caused a

violation of Plaintiff’s rights. Plaintiff also fails to plead any pattern or practice by Wharton County

that would amount to a policy. To show a pattern or practice, a plaintiff is required to show

“sufficiently numerous prior incidents, as opposed to isolated instances.” Peterson, 588 F.3d at

851. Here, Plaintiff only alleges one isolated, prior incident that could potentially be viewed as

illustrating a pattern or practice. Plaintiff also fails to show he falls into the “rare circumstance” of

the third type of “official policy” under Monel/—that the official or entity possessing final

policymaking authority for the action performed the specific act that forms the basis of the § 1983

18

claim. In sum, beyond conclusory and colorful accusations of “corruption,” Plaintiff fails to

specifically allege facts sufficient to plead an “official policy” that would underly a claim of

municipal liability under Monell.

Moreover, Plaintiff fails to allege a constitutional violation that underlies his alleged

municipal liability claim. Plaintiff claims his rights under Delaware v. Prouse were violated when

a Wharton County sheriff deputy was driving behind him, ran his plates, and pulled him over for

expired registration. (Doc. No. 43 at 22). Delaware v. Prouse, 440 U.S. 648 (1979) holds that,

except in a situation where there is at least articulable and reasonable suspicion that a motorist is

unlicensed or a vehicle is not registered, stopping a vehicle solely to check the driver’s license and

registration is unreasonable under the Fourth Amendment. /d. at 663 (emphasis added). The Fifth

Circuit has further held that a “motorist has no privacy interest in [his] license plate number.”

Olabisiomotosho v. City of Houston, 185 F.3d 521, 529 (Sth Cir. 1999).

Contrary to Plaintiff’s assertions, the Wharton County deputy complied with Delaware v.

Prouse and did not violate Plaintiff’s rights when he allegedly ran Plaintiff’s license plate. Jd. After

which, the deputy had articulable and reasonable suspicion to pull Plaintiff over for having expired

registration. Jd. Therefore, Plaintiff has failed to sufficiently allege any violation of Delaware v.

Prouse—or any other constitutional violation—by Wharton County, which necessarily causes his

municipal liability claim to fail.

His colorful pleading makes it clear Plaintiff feels strongly that he was wronged by his

local government. (Doc. No. 43 at 23~—25). Nevertheless, Plaintiff, despite proceeding pro se, is

not exempt from complying with the Federal Rules of Civil Procedure just like all other litigants

in federal court. Plaintiff’s pleading against Wharton County has failed to provide fair notice of

what plaintiff’s claim is and the grounds upon which it rests. Fed. R. Civ. P. 8. As such, Wharton

19

County’s Motion to Dismiss is GRANTED and Plaintiff’s claims against Wharton County, Texas

are DISMISSED with prejudice.

G. Remaining Pending Motions

Plaintiff also filed a Motion to Consolidate this Case No. 4:23-cv-1978 with Case No. 4:24-

cv-4981. (Doc. No. 93). The 4981 case Plaintiff refers to was closed on June 12, 2025, when a

different court remanded the case to the 329th Judicial District Court of Wharton County, Texas

(4:24-cv-4981, Doc. No. 8). Based on this, the member case cannot be consolidated into this case,

and Plaintiff’s motion (Doc. No. 93) is DENIED as moot.

Plaintiff’s Motion to Sever Cases so that the Wharton County-related defendants and El

Campo-related defendants can proceed in separate lawsuits is DENIED. (Doc. No. 101). In

denying this motion, the Court notes two factors. First, it is dismissing Wharton County from this

case, so there is no need to sever those claims. Second, it is apparent from this motion that Plaintiff

recognizes that his claims against the City are different than his claims against the County which

reinforces this Court’s decision to deny the filing of the Third Amended Complaint.

IV. Conclusion

For the foregoing reasons, the Court ORDERS the following:

1. Plaintiff’s Motion for Summary Judgment and Partial Summary Judgment (Doc. No.

66) is DENIED.

2. Plaintiff’s Motion for Summary Judgment (Doc. No. 68) is DENIED.

3. Plaintiff's Motion for Extension of Time to File Response to Defendant’s [72] (Doc.

No. 73) is DENIED as moot.

4. Defendant City of El] Campo, Texas’ Motion to Dismiss Plaintiff's Second Amended

Complaint (Doc. No. 81) is DENIED.

20

5. Defendant Officer Zeller’s, and Defendant Officer Gonzales’ Motion to Dismiss

Plaintiff’s Second Amended Complaint (Doc. No. 81) is DENIED as moot given that

the Court is hereby dismissing them because the claims alleged can proceed only

against City of El Campo itself.

6. Defendant Wharton County, Texas’ Motion to Dismiss Plaintiff’s Second Amended

Complaint (Doc. No. 88) is GRANTED as to it.

7. Plaintiff’s Motion for Leave to File Third Amended Complaint (Doc. No. 90) is

DENIED.

8. Plaintiff's Motion for Leave to File Excess Pages (Doc. No. 91) is DENIED as moot.

9. Plaintiff's Motion for Temporary Restraining Order (Doc. No. 92) is DENIED.

10. Plaintiff’s Motion to Consolidate Cases (Doc. No. 93) is DENIED.

11. Plaintiff’s Motion to Strike [95] Wharton County’s Response to Motion (Doc. No. 97)

is DENIED.

12. Plaintiff’s Motion to Sever Cases (Doc. No. 101) is DENIED.

For the reasons stated above, Defendants El Campo Police Department, Officer Kourtney

Gonzales, and Officer J.A. Zeller are DISMISSED from this lawsuit. Plaintiff’s claims against

Wharton County, Texas are DISMISSED with prejudice.

Signed on this aay of November 2025.

□□□□□□□□□□□□□□□□□□□□□□□□

United States District Judge

21