Bulfinch

UNITED STATES DISTRICT COURT June 23, 2026

Nathan Ochsner, Clerk

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

Timothy Winton Bulfinch and §

Betty Jo Mathis, §

Plaintiffs, §

§

v. § Civil Action H-25-3457

§

Montgomery County, Texas, §

et al., §

Defendants. §

MEMORANDUM AND RECOMMENDATION

This case has been referred to the undersigned magistrate

judge pursuant to 28 U.S.C. § 636(b)(1). ECF No. 6. Pending before

the court are Defendants Montgomery County and the

Montgomery County Sheriff’s Motion to Dismiss, ECF No. 46;

Defendants Mary Phillips and Deputy Ulises Garcia’s Motion to

Dismiss, ECF No. 55; and Plaintiff Timothy Bulfinch’s Motion for

Leave to File a Sur-Reply, ECF No. 63. The court recommends that

Defendants Montgomery County and the Montgomery County

Sheriff’s Motion to Dismiss, ECF No. 46, be GRANTED and that

Defendants Mary Phillips and Deputy Ulises Garcia’s Motion to

Dismiss, ECF No. 55, be DENIED as MOOT. Bulfinch’s Motion

for Leave to File a Sur-Reply, ECF No. 63, is DENIED as MOOT.

1. Background

Timothy Bulfinch and Betty Jo Mathis (Plaintiffs) were

involved in a domestic dispute with each other in June 2025. In

their Third Amended Complaint, Plaintiffs bring claims under

42 U.S.C. § 1983 alleging that several of their constitutional rights

were violated following the dispute. Plaintiffs allege claims against

Montgomery County, the Montgomery County Sheriff in his

official capacity, Deputy Ulises Garcia, and the Victim Assistance

Coordinator for the Ninth District Court in the Montgomery

County District Attorney’s Office (the Victim Coordinator) Mary

Phillips. ECF No. 42 at 3.

Plaintiffs allege that Bulfinch called 911 “regarding an

incident involving Betty Jo Mathis” on June 4, 2025. ECF No. 42

at 4. After officers arrived, Bulfinch was detained.1 Plaintiffs

allege that “[t]he articulated basis for probable cause centered on

allegations that Bulfinch wiped his blood on Ms. Mathis and

knocked [sic] doors in the house[.]” Id. at 6. Bulfinch informed

Garcia, one of the responding officers, that “[Bulfinch’s] phone

contained [an] exculpatory video showing the end of the

altercation.” Id. at 4. Garcia refused to watch the video. Id.

Bulfinch alleges that there was no probable cause to arrest him.

At some point while the officers were investigating the

events leading to the 911 call, Mathis offered to show Garcia a

specific video on her phone. ECF No. 42 at 4–5. According to

Plaintiffs, “Garcia became frustrated when Ms. Mathis would not

show him every video on her phone; . . . Garcia nevertheless placed

his fingers on Ms. Mathis’s phone and manually scrolled to the clip

he wanted to see.” Id. at 5. Plaintiffs allege that Garcia unlawfully

searched Mathis’s cell phone by navigating to additional videos

that exceeded the scope of Mathis’s consent. Id. at 15–17.

It appears that Mathis was subsequently arrested and

charged with a crime in state court related to the events of June 4,

2025. Bulfinch says he is the “recognized victim” in Mathis’s case.

ECF No. 42 at 1–2, 20–21.

Plaintiffs allege that Bulfinch was denied access to Mathis’s

state court criminal proceedings on four separate occasions based

on a “gatekeeping regime that vested discretionary admission

1 It appears that Bulfinch had a stab wound, and one officer asked why Bulfinch was

handcuffed when he was injured. ECF No. 42 at 5.

authority in courthouse security/bailiffs subject to permissions or

vetoes communicated by DA-office personnel.” ECF No. 42 at 12–

14, 21–22. On June 13, 2025, Phillips, the Victim Coordinator, told

Bulfinch that “although court is open, admission of the public is up

to the bailiffs (including when the courtroom is full or for

unspecified ‘other circumstances’); if admitted, [Bulfinch] may not

engage defendants.” Id. at 11.

On June 16, 2025, a bailiff told Bulfinch that “he could not

be in the courtroom, and escorted him to the gallery, stating [that

Bulfinch] needed permission to enter[.]” Id. at 12. On June 30,

2025, a bailiff told Bulfinch that he could enter the courtroom if

Mary Phillips approved. Id. at 12–13. Phillips did not allow

Bulfinch into the courtroom, stated that she had too many other

victims to handle that day, and stated that Bulfinch “supports the

defendant.” Id. On July 14, 2025, Bulfinch was not permitted to

enter the courtroom and was told that someone would notify him

if he was needed in court. Id. at 13. On July 24, 2025, Bulfinch

informed the Judge’s secretary that he intended to attend court

that day. Id. at 13–14. The bailiff thereafter denied Bulfinch access

to the courtroom. Id.

Plaintiffs also allege that Bulfinch observed approximately

thirty officers near his home soon after he filed many motions in

Mathis’s state court criminal case. ECF No. 42 at 9–10. According

to Bulfinch, two marked Sheriff’s Office K-9 units positioned their

vehicles to partially block the road leading to Bulfinch’s home. Id.

Plaintiffs allege that the police presence was retaliation for

Bulfinch’s filings and involvement in Mathis’s case. Id. at 8–10.

The Third Amended Complaint alleges that Garcia violated

Plaintiffs’ Fourth Amendment rights by unlawfully searching

Mathis’s cell phone and by arresting Bulfinch without probable

cause. ECF No. 42 at 15–19. Bulfinch also alleges that Phillips

violated his First Amendment right to access state court criminal

proceedings and that she retaliated against him by excluding him

from the courtroom when he attempted to attend hearings in

Mathis’s criminal case. Id. at 20–23. Bulfinch also asserts a § 1983

Monell2 claim against Montgomery County and the Montgomery

County Sheriff. Id. at 23–25.

2. Legal Standard

Rule 12(b)(6) authorizes the court to dismiss a complaint for

“failure to state a claim upon which relief can be granted.”

Fed. R. Civ. P. 12(b)(6). Generally, the court is constrained to the

“four corners of the complaint” to determine whether the plaintiff

has stated a claim. Morgan v. Swanson, 659 F.3d 359, 401 (5th Cir.

2011).

Under Rule 12(b)(6), the court determines whether the

plaintiff’s complaint contains “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.” Calogero v. Shows, Cali & Walsh, L.L.P.,

970 F.3d 576, 580 (5th Cir. 2020) (quoting Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009)).

Courts accept “all well-pleaded facts as true” and “view[]

them in the light most favorable to the plaintiff.” Allen v. Walmart

Stores, L.L.C., 907 F.3d 170, 177 (5th Cir. 2018) (quoting Jones v.

Greninger, 188 F.3d 322, 324 (5th Cir. 1999)). “A plaintiff need only

plausibly allege facts going to the ultimate elements of the claim

to survive a motion to dismiss.” Cicalese v. Univ. of Tex. Med.

Branch, 924 F.3d 762, 768 (5th Cir. 2019). Only statements of fact

are to be taken as true. “Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not

2 Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658 (1978).

suffice.” Iqbal, 556 U.S. at 678. Conclusory allegations are

“disentitled . . . to the presumption of truth.” Id. at 681.

The court liberally construes pro se pleadings. Erickson v.

Pardus, 551 U.S. 89, 94 (2007). When a plaintiff’s complaint fails

to state a claim, the court should generally give the plaintiff a

chance to amend the complaint under Rule 15(a) before dismissing

the action with prejudice, unless doing so would be futile. See Great

Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305,

329 (5th Cir. 2002); see also Ayers v. Johnson, 247 F. App’x 534,

535 (5th Cir. 2007) (“[A] district court acts within its discretion

when dismissing a motion to amend that is frivolous or futile.”).

3. Analysis

Section 1983 provides redress for those who have been

injured or deprived of their rights under color of state law.

42 U.S.C. § 1983; Moody v. Farrell, 868 F.3d 348, 351 (5th Cir.

2017). The court turns to the parties’ motions.

A. Montgomery County and the Montgomery County

Sheriff

Bulfinch asserts a claim against Montgomery County and

the Montgomery County Sheriff in his official capacity.3 ECF

No. 42 at 7, 23–25. It appears that the parties agree that only

Bulfinch, not Mathis, brings claims against the County. See ECF

No. 53 at 3.

Municipalities can be sued directly under § 1983, but Monell

establishes that “the unconstitutional conduct must be directly

attributable to the municipality through some sort of official action

or imprimatur; isolated unconstitutional actions by municipal

3 “A suit against the Sheriff in his official capacity is a suit against the County.”

Bennett v. Pippin, 74 F.3d 578, 584 (5th Cir. 1996). As such, the court refers to the

County and the Sheriff together as “the County.”

employees will almost never trigger liability.” Webb v. Town of

Saint Joseph, 925 F.3d 209, 214 (5th Cir. 2019).

To assert a Monell claim under § 1983, a plaintiff must allege

(1) an official policy or custom; (2) the policymaker of that policy or

custom; and (3) a constitutional violation that the policy or custom

was the “moving force” behind. Moore v. LaSalle Mgmt. Co.,

41 F.4th 493, 509 (5th Cir. 2022); Quiroz v. Hernandez, 167 F.4th

254, 266 (5th Cir. 2025). There are three ways to establish the first

element: (1) written policy statements, ordinances, or regulations;

(2) a widespread practice that is so common and well-settled as to

constitute a custom; or (3) in rare circumstances, a single decision

may constitute municipal policy when the official possessing final

policymaking authority performed the specific act that forms the

basis of the § 1983 claim. Webb, 925 F.3d at 214–15.

Bulfinch alleges a policy, practice, or custom claim that is

based on the county’s alleged violation of the First Amendment.

ECF No. 42 at 23–24. Bulfinch argues that the County unlawfully

burdened his right to petition the government and barred access

to criminal proceedings. Id. Bulfinch also appears to argue that the

County retaliated against him for various protected activities. Id.

at 9.

Bulfinch does not identify any written policy statements,

ordinances, or regulations affecting the exercise of his rights.

Bulfinch also does not allege that an official with final policy

making authority performed the acts that form the basis of his

claims. Thus, the court considers whether Bulfinch has sufficiently

alleged a widespread practice or pattern to support his claims

against the County.

To show that a practice is so common and widespread as to

practically have the force of law, a plaintiff must do more than

describe the incident that gave rise to his injury. Johnson v. Harris

Cnty., 83 F.4th 941, 946 (5th Cir. 2023). To be actionable, a pattern

“must have occurred for so long or so frequently that the course of

conduct warrants the attribution to the governing body of

knowledge that the objectionable conduct is the expected, accepted

practice of city employees.” Davidson v. City of Stafford, 848 F.3d

384, 396 (5th Cir. 2017), as rev’d (Mar. 31, 2017) (quoting Peterson

v. City of Fort Worth, 588 F.3d 838, 850 (5th Cir. 2009)). A pattern

requires similarity, specificity, and sufficiently numerous prior

incidents. Id. A plaintiff must show a pattern of abuse that

transcends an error made in a single case. Peterson, 588 F.3d

at 850–51. “A plaintiff’s description of the challenged practice

‘cannot be conclusory; it must contain specific facts.’” Johnson, 83

F.4th at 946 (quoting Pena v. City of Rio Grande City, 879 F.3d

613, 621–22 (5th Cir. 2018)).

The County argues that Bulfinch did not allege an official

policy or persistent widespread practice. ECF No. 46 at 8. In

response, Bulfinch argues that he “need not identify the precise

written policy or training directive responsible for the violation.

Discovery is the mechanism through which such policies are

uncovered.” ECF No. 53 at 9.

Bulfinch has not met his burden. Bulfinch alleges that an

unnamed bailiff (or multiple unnamed bailiffs) and the Victim

Coordinator violated his right of public access on four occasions.

Bulfinch alleges that courthouse bailiffs operate under the

Sheriff’s authority and that the Sheriff “maintained and enforced

a discretionary gatekeeping practice that lacked neutral, objective,

and narrowly tailored criteria[.]” ECF No. 42 at 22. Even if such

acts constitute a violation of his First Amendment rights,4

Bulfinch does not allege any facts to show that his experience rises

to the level of a practice that is so common and widespread as to

4 The court does not decide whether the alleged exclusions amount to constitutional

violations.

practically have the force of law. See Peterson, 588 F.3d at 851–52

(finding that, even where a plaintiff identified at least four

incidents where a police force violated multiple individual’s

constitutional rights, the incidents do not show that the

municipality maintained an official policy of condoning those

violations).

Bulfinch has done no more than describe the incidents that

gave rise to his injury. Bulfinch did not allege any facts showing

that his denial of entry into the courtroom is the expected, accepted

practice of county employees, nor did he allege that any other

individuals were denied access to the courtroom. Cf. Davidson, 848

F.3d at 396. Bulfinch also did not allege that the conduct occurred

for so long or so frequently that the course of conduct warrants

attribution to the County. Bulfinch’s allegations relate only to his

own experiences in this case. Bulfinch’s conclusory assertions that

such acts constitute a gatekeeping practice or scheme are

speculative and insufficient. Bulfinch has not alleged an official

policy or custom necessary to state his Monell liability claim.

To the extent that Bulfinch also alleges a claim against the

County for alleged retaliatory conduct, Bulfinch has not alleged an

official policy, nor has he alleged a constitutional violation behind

which the policy or custom was the “moving force.” Bulfinch’s bare

allegations that a large police presence near his home was

retaliatory do not plausibly allege an official policy or practice that

can be attributed to the County. Bulfinch does not allege that the

police interacted with him in any way and there is nothing to show

that the officers were there because of him. Bulfinch merely

speculates that the police were in his neighborhood because of him.

The County’s Motion to Dismiss should be GRANTED, and

Bulfinch’s claims against Montgomery County and the

Montgomery County Sheriff should be DISMISSED.

Bulfinch does not seek leave to amend the complaint as to

the County. In any event, the court has already granted Plaintiffs

leave to amend their claims against the County. ECF No 41

(granting Plaintiffs leave to file their Third Amended Complaint).

Plaintiffs have had many opportunities to state their case against

the County and granting further leave to amend as to the County

would be futile. It appears that there are no facts Plaintiffs can

allege to establish Monell liability. As such, leave to amend the

claims against the County is DENIED.

B. Garcia and Phillips

Garcia and Phillips argue that the claims against them

should be dismissed because they are entitled to qualified

immunity. ECF No. 55. In response, Plaintiffs request leave to

amend and state that they can clarify facts related to “the sequence

of denied access; the off-docket or special-hearing notice issue; . . .

Garcia’s refusal to review Plaintiff's identified video; . . . and the

surrounding facts showing why the blood allegation was

ambiguous rather than conclusive probable cause.” ECF No. 58

at 23.

“Dismissing an action after giving the plaintiff only one

opportunity to state his case is ordinarily unjustified.” Davoodi v.

Austin Indep. Sch. Dist., 755 F.3d 307, 310 (5th Cir. 2014) (quoting

Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986)). Here,

Plaintiffs have not yet amended their claims after naming Garcia

and Phillips as defendants. Plaintiffs state that they can provide

additional facts to support their claims. Plaintiffs’ response to the

Motion to Dismiss also goes beyond the facts they allege in their

complaint. See, e.g., ECF No. 58 at 4–5 (stating that Bulfinch

claimed he had been attacked). As such, Plaintiffs’ request to

amend their complaint is GRANTED in part.

Plaintiffs may amend their complaint to add or clarify

factual allegations against Garcia and Phillips. Plaintiffs may not

otherwise amend their complaint by adding new claims or parties.

Plaintiffs may not amend their complaint with respect to the

County or the Sheriff. The amended complaint must include all the

relevant facts at Plaintiffs’ disposal and should address all the

issues that Defendants have raised in their Motion to Dismiss. The

court will not consider additional facts outside the complaint that

are raised in response to a motion to dismiss. Any response to a

motion to dismiss shall include pinpoint citations to the facts set

forth in the amended complaint. The amended complaint shall

address all the deficiencies identified in Defendants’ Motion to

Dismiss, ECF No. 55. Further leave to amend to address

deficiencies already identified will be denied. The amended

complaint is due By July 2, 2026.

Once Plaintiffs have filed their Amended Complaint,

Defendants shall either answer or move to dismiss within the time

allotted by the Federal Rules of Civil Procedure.

Because the court has allowed Plaintiffs to amend their

complaint, Phillips and Garcia’s Motion to Dismiss, ECF No. 55,

should be DENIED as MOOT without prejudice to refiling.

However, should Plaintiffs fail to file their amended complaint by

the stated deadline, the court will reinstate Defendants’ Motion to

Dismiss, ECF No. 55, as a live motion and take it under

advisement.

Bulfinch’s Motion for Leave to File a Sur-reply, ECF No. 63,

is DENIED as MOOT.

The court also reminds the parties that “[i]f, on a motion

under Rule 12(b)(6) or 12(c), matters outside the pleadings are

presented to and not excluded by the court, the motion must be

treated as one for summary judgment under Rule 56.” Fed. R. Civ.

P. 12(d). When considering a motion to dismiss, the court must

limit itself to: (1) the facts in the complaint; (2) documents attached

to the complaint; and (3) matters of which the court may take

judicial notice. Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724,

735 (5th Cir. 2019). “The court may also consider documents

attached to either a motion to dismiss or an opposition to that

motion when the documents are referred to in the pleadings and

are central to a plaintiff’s claims.” Brand Coupon Network, L.L.C.

v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 2014).

If the parties ask the court to consider evidence attached to

a Motion to Dismiss, the parties shall include citations informing

the court (1) where the pleadings refer to the external documents

and (2) how the documents are central to the Plaintiffs’ claims.

Discovery is STAYED pending resolution of the qualified

immunity issue based on the anticipated amended complaint. To

be clear, the court still has the issue of qualified immunity under

advisement. Cf. Wertenbroch v. Hardeman, No. 25-40616, 2026 WL

1583938, at *2–3 (5th Cir. June 3, 2026).

4. Conclusion

The court recommends that Defendants Montgomery

County and the Montgomery County Sheriff’s Motion to Dismiss,

ECF No. 46, be GRANTED and that Defendants Mary Phillips

and Deputy Ulises Garcia’s Motion to Dismiss, ECF No. 55, be

DENIED as MOOT. Bulfinch’s Motion for Leave to File a Sur-

Reply, ECF No. 63, is DENIED as MOOT.

The parties have fourteen days from service of this

Memorandum and Recommendation to file written objections. 28

U.S.C. § 6386(b)(1); Fed. R. Civ. P. 72. Failure to timely file

objections will preclude appellate review of factual findings or legal

conclusions, except for plain error. See Thomas v. Arn, 474 U.S.

140, 147-49 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th

Cir. 1988).

Signed at Houston, Texas, on June 23, 2026.

Peter Bray 7

United States Magistrate Judge

12