Filed: Oct. 18, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT October 18, 2006 Charles R. Fulbruge III Clerk No. 05-20615 Summary Calendar PATRICIA POTTS, Plaintiff-Appellant, versus CROSBY INDEPENDENT SCHOOL DISTRICT; OFFICE OF THE ATTORNEY GENERAL OF TEXAS; HARRIS COUNTY SHERIFF; CITY OF BAYTOWN POLICE DEPARTMENT; RELIANT ENERGY; BAKER DOWNS APT; CROSBY STATE BANK; HELEN MARIE LEONARD; MERCY EZEH; TEK INVESTMENTS INC; DELL COMPUTERS INC; VINCENT WILLIAM; T
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT October 18, 2006 Charles R. Fulbruge III Clerk No. 05-20615 Summary Calendar PATRICIA POTTS, Plaintiff-Appellant, versus CROSBY INDEPENDENT SCHOOL DISTRICT; OFFICE OF THE ATTORNEY GENERAL OF TEXAS; HARRIS COUNTY SHERIFF; CITY OF BAYTOWN POLICE DEPARTMENT; RELIANT ENERGY; BAKER DOWNS APT; CROSBY STATE BANK; HELEN MARIE LEONARD; MERCY EZEH; TEK INVESTMENTS INC; DELL COMPUTERS INC; VINCENT WILLIAM; TE..
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT October 18, 2006
Charles R. Fulbruge III
Clerk
No. 05-20615
Summary Calendar
PATRICIA POTTS,
Plaintiff-Appellant,
versus
CROSBY INDEPENDENT SCHOOL DISTRICT; OFFICE OF THE
ATTORNEY GENERAL OF TEXAS; HARRIS COUNTY SHERIFF;
CITY OF BAYTOWN POLICE DEPARTMENT; RELIANT ENERGY;
BAKER DOWNS APT; CROSBY STATE BANK; HELEN MARIE
LEONARD; MERCY EZEH; TEK INVESTMENTS INC;
DELL COMPUTERS INC; VINCENT WILLIAM; TEXAS
REHABILITATION COMMISSION; TEXAS DEPARTMENT
OF FAMILY AND PROTECTIVE SERVICES;
CITY OF BAYTOWN,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
(4:04-CV-2852)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Patricia Potts appeals pro se. Inter alia, she challenges the
dismissal with prejudice of her claims against: the City of
Baytown, Baytown Police Department, Dell Computers, Inc., Reliant
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Energy, and Crosby State Bank for failure to state a claim pursuant
to Federal Rule of Civil Procedure 12(b)(6); Crosby Independent
School District (CISD) for lack of subject matter jurisdiction
pursuant to Rule 12(b)(1) and failure to state a claim pursuant to
Rule 12(b)(6); and the Harris County Sheriff’s Department because,
as a non sui juris division of Harris County, it lacks the capacity
to be sued.
Along this line, the Office of the Texas Attorney General
(OAG) and Texas Department of Family and Protective Services’
(TDFPS) seek summary affirmance of the district court’s dismissal
of Potts’ claims against them.
Finally, at issue is an order barring any new actions by Potts
absent judicial approval.
Potts sued these parties for various vague and seemingly
unrelated claims including discrimination, conspiracy, harassment,
retaliation, slander, and violation of her equal-protection rights.
In her second amended complaint, Potts alleged, inter alia: (1) the
City of Baytown, its police department, and TDFPS violated her
civil rights by conspiring with her mother, her ex-husband, Baker
Downs Apartments, and Harris County to terminate her parental
rights; (2) the City and police department violated her civil
rights by failing to protect her from, and refusing to investigate,
harassment claims; (3) CISD engaged in employment discrimination by
“firing her from her job as a school bus driver with no
explanation”; (4) Dell Computers and Crosby State Bank caused her
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to incur insufficient funds charges and conspired against her; (5)
Reliant Energy discriminated against her by failing to invoice her
for 11 months and then sending five bills at once for an apartment
she never inhabited; and (6) the Harris County Sheriff’s Department
failed to investigate a burglary of her apartment, disregarded
pleas to investigate her harassment, and slandered her by placing
theft charges on her record, causing her to lose two jobs; and (7)
the OAG violated her civil rights by directing her ex-husband to
mail child-support payments to the Harris County Child Support
Division and failed to modify her child-support amount in spite of
her requests. On 28 June 2005, the district court granted these
defendants’ motions to dismiss and dismissed this action with
prejudice.
Briefs of pro se litigants are liberally construed. Price v.
Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988).
Nevertheless, such litigants must brief issues to preserve them.
Id. (finding inadequate fleeting error claims that provide no
analysis or authority) (citing FED. R. APP. P. 28(a)); see also In
re Tex. Mortgage Servs. Corp.,
761 F.2d 1068, 1073 (5th Cir.
1985)(holding abandoned appellant’s unbriefed claims; collecting
cases). “We will not raise and discuss legal issues that [an
appellant] has failed to assert.” Brinkman v. Dallas County Deputy
Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987). In practical
effect, a cursory “recitation of familiar rules governing our
3
review of summary judgments, without even the slightest
identification of any error in [the district court’s] legal
analysis or [] application” is as if the appellant makes no appeal
at all. Id.
Potts asserts the district court erred in dismissing her
claims and in barring new claims because it “determin[ed] that
[her] claims were not legitimate, simply because of allegations
that [she] suffers from a mental illness or ‘Delusional Disorder’”.
Claiming “a complete lack of evidence to support the conclusions
that [her] claims were a ‘delusion’ and ‘frivolous’”, she demands
this court review the record for this purpose. She cites no
authority, save one inapposite reference to Federal Rule of Civil
Procedure 35 (authorizing a district court to order a medical
examination when a party’s mental condition is in issue).
Potts fails to make “even the slightest identification of any
error in [the district court’s] legal analysis”. Brinkman, 813
F.2d at 748. Specifically, the court granted City of Baytown,
Baytown Police Department, Dell Computers, Crosby State Bank, and
Reliant Energy’s 12(b)(6) motions because Potts made no cognizable
claims under 42 U.S.C. §§ 1983 or 1985(3). Potts v. Crosby Ind.
Sch. Dist., No. Civ.A. H-04-2852,
2005 WL 1527657 at *4-5, 8-9
(S.D. Tex. 28 June 2005) (Police Department is not a separate legal
entity and thus cannot be sued (citing Darby v. Pasadena Police
Dept.,
939 F.2d 311, 314 (5th Cir. 1991)); City cannot be held
4
liable because plaintiff failed to demonstrate injury resulting
from decision by a final policy maker (citing Pembaur v. City of
Cincinnati, 475 U.S. 469, 483 (1986))). Similarly, Potts’ § 1983
claims against Dell Computers, Crosby State Bank, and Reliant
Energy were dismissed as conclusory,
id. at *4-5 (citing S.
Christian Leadership Conf. v. Supreme Court of La.,
252 F.3d 781,
786 (5th Cir.)(“legal conclusions masquerading as factual
conclusions” insufficient to survive 12(b)(6) motion), cert.
denied,
534 U.S. 995 (2001)); and because these parties are not
state actors and did not act under color of state law,
id. at *4
(citing Am. Mfg. Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 49-50
(1999)). Her § 1985(3) claim failed because, even liberally
construed, it met none of the requisite elements.
Id. at *5
(citing Horaist v. Doctor’s Hosp. of Opelousas,
255 F.3d 261, 270
(5th Cir. 2001)).
The district court granted CISD’s 12(b)(1) and 12(b)(6)
motions because Potts’ alleged “no set of facts ... entitl[ing] her
to relief”; therefore, she failed to meet the legal requirements of
her claims against CISD. Id. at *5-8 (citing Teague v. City of
Flower Mound, Tex.,
179 F.3d 377, 380 (5th Cir. 1999) (setting
forth elements to employee First Amendment retaliation claims
against an employer); and Connick v. Myers,
461 U.S. 138, 146
(1983) (no scrutiny required of reasons for discharge if employee’s
speech does not address a matter of public concern)). The court
5
held that Harris County Sheriff’s Department, as a non sui juris
division of Harris County, lacks the capacity to be sued. Id. at
*7-8 (citing
Darby, 939 F.2d at 313). Finally, it held Potts’
claims against OAG and TDFPS barred by the Eleventh Amendment.
Id.
at *3 (citing Will v. Mich. Dep’t of State Police,
491 U.S. 58, 66
(1989) (Eleventh Amendment bars suits against state agencies by
state’s citizens unless the state waives sovereign immunity or
Congress, pursuant to section five of the Fourteenth Amendment,
intentionally abrogates that immunity)).
In any event, Potts has not sufficiently challenged the
district court’s rulings to require review by this court.
AFFIRMED
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