Case: 19-50023      Document: 00515023086         Page: 1    Date Filed: 07/05/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                     United States Court of Appeals

                                    No. 19-50023
                                                                              Fifth Circuit

                                                                            FILED
                                  Summary Calendar                       July 5, 2019
                                                                       Lyle W. Cayce
WESLEY PERKINS,                                                             Clerk


              Plaintiff–Appellant,

v.

G. W. IVEY, Justice of the Peace, Bell County, Texas, Precinct 3, Place 2,
Officially and Individually; BELL COUNTY, TEXAS; CITY OF BELTON, a
municipal corporation; REYWENDY MORILLO, Officially and Individually;
WHITNEY BREWSTER, Executive Director, Texas Department of Motor
Vehicles, Officially and Individually,

              Defendants–Appellees.


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:17-CV-1173


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM:*
       On December 16, 2016, Belton police officer Reywendy Morillo pulled
over Wesley Perkins for lack of a license plate. Perkins presented no license or
registration. He instead gave Office Morillo several letters addressed to
Whitney Brewster, Executive Director of the Texas Department of Motor


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                            No. 19-50023
Vehicles, notifying her that his vehicle was not engaged in commercial
transportation, and thus was not subject to the requirements of the Texas
Transportation Code. Officer Morillo was unconvinced and arrested Perkins
for driving without a license or registration and for operating an untitled and
unregistered motor vehicle.
        Perkins, pro se, sued under 42 U.S.C. § 1983, alleging improper arrest
and civil conspiracy (among other things). The district court promptly referred
all pending and further motions in his case to a magistrate judge. All
defendants filed motions to dismiss for failure to state a claim. 1 The magistrate
judge       recommended         the    motions       be   granted.    Upon   receiving   this
recommendation, the district judge dismissed Perkins’s claims against all
defendants with prejudice.
        Perkins now appeals. He argues that dismissal was inappropriate
because: (1) The district court judge lacked authority to refer his case to the
magistrate judge; (2) the magistrate judge lacked authority to participate in
determination of his case; (3) the district and magistrate judges are both
disqualified from this case; and (4) the dismissal was an abuse of discretion.
        District court judges may designate magistrate judges to “submit . . .
proposed findings of fact and recommendations for the disposition” of any
motion to dismiss. 2 Thus Perkins’s first two arguments are directly foreclosed
by law. And because his disqualification argument is founded on the mistaken
belief that district judges may not delegate certain pretrial matters to
magistrate judges for review and recommendation, it fails as well.
        Finally, Perkins contends that both judges abused their discretion by
granting Appellees’ motion to dismiss. We review such matters de novo,



        1   See FED. R. CIV. P. 12(b)(6).
        2   28 U.S.C. § 636(b)(1)(B).
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                                      No. 19-50023
“accepting all well-pleaded facts as true and viewing those facts in the light
most favorable to the plaintiff.” 3 To survive, the plaintiff’s complaint must
state a claim to relief that is facially plausible and raises a right to relief above
the speculative level. 4
       The Supreme Court ruled long ago that states may regulate the
operation “of all motor vehicles” that drive within their borders, and “may
require the registration of such vehicles and the licensing of their drivers”
pursuant to their constitutionally protected police power. 5 Texas law is rather
straightforward: “The owner of a motor vehicle registered in this state . . . may
not operate or permit the operation of the vehicle on a public highway until the
owner applies for title and registration of the vehicle; or obtains a receipt
evidencing title for registration purposes . . . .” 6 Moreover, drivers “may not
operate a motor vehicle on a highway in this state unless the person holds a
driver’s license” and must “display the license on the demand of a . . . peace
officer.” 7 Perkins violated these laws according to their plain meaning. And his
counter-argument that he is not governed by the statutes is unconvincing. 8
       It is simply incorrect “that to be regulated under the Transportation
Code, one must assert ‘commercial consent,’” as Perkins maintains. 9 Perkins
rests his argument on Lozman v. City of Riviera Beach, in which the Supreme
Court ruled that transportation in a vessel may be shown for the purposes of 1
U.S.C. § 3 by the “conveyance (of things or persons) from one place to


       3  Hines v. Alldredge, 

, 200-01 (5th Cir. 2015).
       4  Bell Atlantic Corp v. Twombly, 

, 555, 570 (2007).
        5 Hendrick v. Maryland, 

, 622 (1915).
        6 TEX. TRANSP. CODE § 501.022(a).
        7 TEX. TRANSP. CODE §§ 521.021, 521.025.
        8 A “motor vehicle” is “[a] wheeled conveyance that does not run on rails and is self-

propelled, esp. one powered by an internal combustion engine, a battery or fuel-cell, or a
combination of these.” Vehicle, BLACK’S LAW DICTIONARY (11th ed. 2019). All functioning
cars, including the one Perkins was operating, fit this definition.
        9 Perkins v. Brewster, 

, at *2 (W.D. Tex. Feb. 9, 2018).

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another.” 10 Perkins contends that because he was not transporting passengers
or cargo, he was not operating a “vessel,” and thus he may not be arrested for
violations of law governing vehicles – a kind of “vessel.” But Lozman never once
speaks of anything resembling “commercial consent.” And its holding covers
vessels “capable of being used . . . as a means of transportation on water,” not
motor vehicles. 11 The latter are regulated by the Texas Transportation Code,
and the district court correctly applied the law.
      The judgment of the district court is AFFIRMED.




      10  

, 121 (2013) (quoting Transportation, OXFORD ENG. DICTIONARY (2nd
ed. 1989)).
       11 

(quoting 1 U.S.C. § 3).

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