# Bulfinch

> District Court, S.D. Texas · June 23, 2026

URL: https://www.frixlaw.com/law-library/cases/11412573

## Case

- **Full name:** Timothy Winton Bulfinch and Betty Jo Mathis v. Montgomery County, Texas, et al.
- **Court:** District Court, S.D. Texas
- **Decided:** June 23, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11412573. Public record. Not legal advice.