AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE.
Pending before the Court are Defendants John Roach, Sr. and Christopher
As alleged by Plaintiff Suzanne H. Wooten, on March 4, 2008, Plaintiff defeated incumbent Judge Charles Sandoval in the Republican primary election for the 380th District Court Judge in Collin County, Texas by a landslide. The next day, Judge Sandoval approached the Collin County District Attorney's Office (the "CCDAO") to complain about Plaintiff, asserting that she cheated during the election and he wanted the CCDAO to find a crime against her. After this meeting, the CCDAO
The theory of the criminal investigation and prosecution against Plaintiff was that a married couple, David Frederick Cary and Stacy Stine Cary ("the Carys") gave itemized monetary contributions to Plaintiff, through the Carys consultant who also happened to be Plaintiff's media consultant, James Stephen Spencer. The Carys and Spencer were co-defendants in the criminal prosecution. Plaintiff and the Carys were all tried separately, and convicted by three different juries. Specifically, Plaintiff's jury found her guilty of six counts of bribery, one count of engaging in organized criminal activity, one count of money laundering, and one count of tampering with a governmental record. After these three trials, Spencer took a plea deal. The Carys appealed their convictions. The Dallas Court of Appeals affirmed Stacy Cary's conviction but several months later a different panel determined David Cary should be acquitted on all counts. Both cases were then appealed to the Texas Court of Criminal Appeals. On December 14, 2016, the Texas Court of Criminal Appeals determined that the Carys should be acquitted on all counts, as the allegations against the Carys were not actually a crime pursuant to the relevant statutes. Stacy Cary v. State, 507 S.W.3d 750 (2016); David Cary v. State, 507 S.W.3d 761 (2016).
Based on these holdings, on May 10, 2017, Plaintiff filed her First Amended Application for 11.072 Writ of Habeas Corpus Declaring Actual Innocence as a Matter of Law with the 366th Judicial District in Collin County, Texas. On May 24, 2017, the 366th Judicial District in Collin County granted the requested relief "finding the evidence presented legally insufficient because the allegations, even if true, were not crimes under Texas law." (Dkt. #3 at p. 1). The 366th Judicial District in Collin County further determined that because the evidence was legally insufficient to convict
Based on this set of facts, Plaintiff filed suit on May 23, 2018 (Dkt. #1). On May 29, 2018, Plaintiff amended her complaint (Dkt. #10) suing the CCDAO Defendants, the AG Defendants, and the County for violation of her due process rights, violation of the fourth amendment, conspiracy to deprive constitutional rights, and malicious prosecution, among other causes of action and theories of liability. On July 30, 2018, the CCDAO Defendants (Dkt. #17), the County (Dkt. #18), and the AG Defendants (Dkt. #20) filed their motions to dismiss Plaintiff's amended complaint asserting, among other things, immunity. On September 10, 2018, Plaintiff filed a response to the CCDAO Defendants' motion (Dkt. #29), the AG Defendants' motion (Dkt. #30), and the County's motion (Dkt. #31). On September 24, 2018, the CCDAO Defendants (Dkt. #32), the AG Defendants (Dkt. #35), and the County (Dkt. #33) filed a reply. Finally, on October 1, 2018, Plaintiff filed a sur-reply to the AG Defendants' reply (Dkt. #36) and the County's reply (Dkt. #37). Plaintiff did not file a sur-reply to the CCDAO Defendants' reply.
The Federal Rules of Civil Procedure require that each claim in a complaint include a "short and plain statement ... showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). Each claim must include enough factual allegations "to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
A Rule 12(b)(6) motion allows a party to move for dismissal of an action when the complaint fails to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When considering a motion to dismiss under Rule 12(b)(6), the Court must accept as true all well-pleaded facts in the plaintiff's complaint and view those facts in the light most favorable to the plaintiff. Bowlby v. City of Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012). The Court may consider "the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint." Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). The Court must then determine whether the complaint states a claim for relief that is plausible on its face. "`A claim has facial plausibility when the plaintiff pleads factual content that allows the [C]ourt to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). "But where the well-pleaded facts do not permit the [C]ourt to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not `show[n]'—`that the pleader is entitled to relief.'" Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (quoting FED. R. CIV. P. 8(a)(2)).
In Iqbal, the Supreme Court established a two-step approach for assessing the sufficiency of a complaint in the context of a Rule 12(b)(6) motion. First, the Court should identify and disregard conclusory allegations, for they are "not entitled to the assumption of truth." Iqbal, 556 U.S. at 664, 129 S.Ct. 1937. Second, the Court "consider[s] the factual allegations in [the complaint] to determine if they plausibly suggest an entitlement to relief." Id. "This standard `simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary claims or elements.'" Morgan v. Hubert,
Thus, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Id. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).
All Defendants in this case move to dismiss Plaintiff's claims based on a variety of theories. The Court addresses Defendants arguments in turn, either individually or grouped together when applicable.
The CCDAO Defendants and the AG Defendants both move to dismiss Plaintiff's claims asserting that they are entitled to absolute immunity.
The Supreme Court of the United States established that prosecutors are "immune for a civil suit for damages under § 1983." Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). However, prosecutors are not entitled to immunity simply based on their title, instead courts are to look to the "`functional nature of the activities' of which the plaintiff complains." McGruder v. Necaise, 733 F.2d 1146, 1148 (5th Cir. 1984) (citations omitted); accord Imbler, 424 U.S. at 431, 96 S.Ct. 984, Kalina v. Fletcher, 522 U.S. 118, 126, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997). It is the prosecutor's burden to establish that the "functional nature of the activities" are protected by prosecutorial immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 274, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993).
Prosecutors are immune "insofar as that conduct is `intimately associated with the judicial phase of the criminal process.'" Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991) (citations omitted). This does not mean that only actions made during trial are protected; the courts have recognized that "`the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom.'" Id. (citations omitted). The Fifth Circuit determined that prosecutorial immunity extends to "investigating ... a criminal prosecution." Cook v. Hous. Post, 616 F.2d 791, 793 (5th Cir. 1980) (citing Henzel v. Gerstein, 608 F.2d 654 (5th Cir. 1979); Conner v. Pickett, 552 F.2d 585 (5th Cir. 1976)). However,
Buckley, 509 U.S. at 273, 113 S.Ct. 2606 (citations omitted). As such, the Supreme Court of the United States held that "[a] prosecutor's administrative duties and those investigatory functions that do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings are not entitled to absolute immunity." Id. Based on this holding, a district court within the Fifth Circuit, has held that "[a] prosecutor has no absolute immunity for legal advice given to the police, nor for administrative duties or investigatory functions that do not relate to
The CCDAO Defendants claim that their limited and early involvement in the process of Plaintiff's ultimate prosecution and conviction, is protected by prosecutorial immunity. The CCDAO Defendants allege that their involvement is limited to appearing in front of the grand jury and actions in preparation to be in front of the grand jury. According to the CCDAO Defendants, these functions are intimately associated with the judicial phase, such that these actions are guaranteed prosecutorial immunity. Plaintiff counters that while presenting information before the grand jury and preparation of such can be protected by immunity, the CCDAO Defendants' actions here are not. According to Plaintiff, the CCDAO Defendants' conduct surrounding the grand jury were purely investigative, as opposed to prosecutorial in nature, and were done without probable cause.
Plaintiff alleges that after she defeated the incumbent, the incumbent approached the CCDAO alleging Plaintiff cheated in the election and urging the CCDAO to find a crime. Subsequently, the CCDAO launched its investigation into Plaintiff and her campaign. The CCDAO conducted this investigation on its own without the help of law enforcement. To further its investigation, the CCDAO, through Defendant Milner,
Based on these allegations, the CCDAO Defendants conduct is along the lines of the conduct described in Buckley. The
The AG Defendants argue that they are entitled to prosecutorial immunity. First, Defendant Abbott contends that, as a supervisor, he is entitled to the same immunity of those that he is supervising. Defendant White contends that because the OAG did not intervene in the case until after the investigatory phase, he is entitled to prosecutorial immunity. Accordingly, the AG Defendants maintain that they only functioned in a capacity that was intimately associated with the judicial phase of the case against Plaintiff. Plaintiff counters that Defendant Abbott affirmatively argued that he falls outside the scope of prosecutorial immunity and that Plaintiff has sufficiently pleaded, for purposes of a motion to dismiss, that Defendant White was part of the investigation against Plaintiff.
As an initial matter, Defendant Abbott is correct that, as a supervisor of the assistant attorney generals, he is immune to the extent that, in this case, Defendant White, is immune. Van de Kamp v. Goldstein, 555 U.S. 335, 347, 129 S.Ct. 855, 172 L.Ed.2d 706 (2009) (emphasis in original) (explaining that not protecting the supervisor would "create practical anomalies. A trial prosecutor would remain immune ... but her supervisor might be liable for negligent training or supervision.... [Thereby creating a situation where] a plaintiff could restyle a complaint charging a trial failure so that it becomes a complaint charging failure of training or supervision [essentially] eviscerate[ing] Imbler."). As such, to determine the immunity of Defendant Abbott, the Court must look to the immunity of Defendant White.
The Court finds, based on the allegations against White, that, at this stage, some of his actions are protected by prosecutorial immunity and some of his actions are not. The Court addresses the allegations against Defendant White in turn.
The AG Defendants maintain that when Defendant White became involved in Plaintiff's case it was "well after the investigation was commenced by the CCDAO" and that at that point Plaintiff was already a clearly identified suspect and the CCDAO already had probable cause, comparing the case to Ramirez. However, Defendant White was involved in the case much earlier than the point when he was appointed to the Attorney Pro Team. After Plaintiff defeated the incumbent on March 4, 2008, the CCDAO almost immediately began an investigation into her campaign. The first known grand jury subpoena was issued in September 2008. Three months later, Defendant Milner, on behalf of the CCDAO, requested the assistance of the OAG specifically requesting Defendant White for his "expertise" in election violations. Defendant White confirmed to the FBI that he started assisting on Plaintiff's case in December 2008, prior to Plaintiff taking the bench.
Moreover, the facts of this case are distinguishable from Ramirez. The Northern District of Texas in Ramirez held that a prosecutor's actions in attending and allegedly directing a line-up were "continuing to develop the State's case against identified suspects, not attempting to identify new suspects. Plaintiffs had already been indicted for the murder of Cruz, and by this time [the prosecutors] had the majority of their witnesses and evidence in place for trial." Ramirez v. Abreo, No. 5:09-cv-190-C,
In this case, and at this stage, there are no allegations, that between December 2008 and, at the earliest, July 22, 2010, anything occurred that was tangentially related to the judicial phase of Plaintiff's prosecution. Thus, Defendant White's involvement beginning in December 2008 plausibly suggests that he was involved in the investigation
Plaintiff alleges that the district judge presiding over the Spring 2010 Grand Jury declined to extend the grand jury's six-month term on June 24, 2010. Despite this ruling, Plaintiff claims that on June 28, 2010, Defendant White reached out to Plaintiff's counsel requesting she appear at an added grand jury session, which Plaintiff was not aware had not been approved. At that time, Plaintiff's counsel and Plaintiff offered to meet with Defendant White, and others, on June 29, 2010. The June 29, 2010 meeting was very short and Defendant White had no questions for Plaintiff at that time. Plaintiff alleges that she perceived the meeting was an attempt to intimidate her. Subsequently, Plaintiff learned of the ruling that the extension had been denied; accordingly, on June 29, 2010, Plaintiff's counsel filed a Motion to Quash the Illegally Re-Assembled Grand Jury. On June 30, 2010, the district court held a hearing on the motion, with Plaintiff's counsel and Defendant White appearing at the hearing. The motion to quash was granted.
The Court acknowledges that "interviewing witnesses who will appear before the grand jury" generally falls "within the Imbler shelter." Brown, 297 F.Supp.3d at 770. However, as identified earlier, not every grand jury proceeding is protected by the Imbler shelter. Accordingly, it naturally follows that interviewing a witness before a grand jury will not always fall within the Imbler shelter, particularly when the grand jury proceeding itself does not fall within the Imbler shelter. Here, at the motion to dismiss stage, it is at least plausible that this "grand jury
Plaintiff also alleges the following: (1) that Defendant White was appointed to the Attorney Pro Team on July 22, 2010, Imbler, 424 U.S. at 421, 96 S.Ct. 984, Quinn v. Roach, 326 F. App'x 280, 292 (5th Cir. 2009), Bellamy v. Harris Cty., No. H-16-02925, 2017 WL 2080157, at *2 (S.D. Tex. May 15, 2017); Liverman v. Denton Cty., No. 4:16cv801, 2017 WL 1088340, at *2 (E.D. Tex. Mar. 23, 2017); (2) that he provided evidence, although maybe scant, to the July 2011 Grand Jury to obtain a "re-indictment" or indictment against Plaintiff, Buckley, 509 U.S. at 273, 113 S.Ct. 2606, Cousin, 325 F.3d at 635, Brown, 297 F.Supp.3d at 770; (3) that he relayed an offer to dismiss the indictment if she agreed to resign and never run again, Humble v. Foreman, 563 F.2d 780, 781 (5th Cir. 1977), overruled on other grounds, Sparks v. Duval Cty. Ranch Co., 604 F.2d 976 (5th Cir. 1979), Bellamy, 2017 WL 2080157; (4) and Defendant White intentionally withheld, for a period of time, exculpatory evidence in the summer of 2011, Cousin, 325 F.3d at 635; Henzel, 608 F.2d at 657. These actions taken by Defendant White, regardless of the motive, fit squarely within the realm of prosecutorial immunity as identified by Imbler. Accordingly, the Court finds that these allegations taken by Defendant White are absolutely immune and should not be included going forward in this case.
Although these actions are all covered by prosecutorial immunity that "does not retroactively transform that [previous] work from the administrative [or investigative] into the prosecutorial." Buckley, 509 U.S. at 275-76, 113 S.Ct. 2606. Thus, this finding does not change the Court's previous holdings that certain actions taken by Defendant White were not protected by prosecutorial immunity for purposes of defeating a motion to dismiss.
The CCDAO Defendants and the AG Defendants both assert that even if they are not immune based on prosecutorial immunity, they are protected by qualified immunity. Plaintiff disagrees.
Public officials are immune from suit under 42 U.S.C. § 1983 unless they have "violated a statutory or constitutional right that was `clearly established' at the time of the challenged conduct." Plumhoff v. Rickard, 572 U.S. 765, 777, 134 S.Ct. 2012, 188 L.Ed.2d 1056 (2014). Qualified immunity is a two-prong inquiry upon which the Court, in its discretion, may resolve either prong first in light of the circumstances of the particular case at hand. Pearson v. Callahan, 555 U.S. 223, 236-37, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The two prongs are: (1) a statutory or constitutional right was violated on the
In her responses, Plaintiff requests leave to amend her complaint. Rule 15(a) of the Federal Rules of Civil Procedure provides that a party may amend its pleading once without seeking leave of court or the consent of the adverse party at any time before a responsive pleading is served. FED. R. CIV. P. 15(a). After a responsive pleading is served, "a party may amend only with the opposing party's written consent or the court's leave." Id. Rule 15(a) instructs the Court to "freely give leave when justice so requires." Id. The rule "evinces a bias in favor of granting leave to amend." Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 994 (5th Cir. 2005) (quoting Lyn-Lea Travel Corp. v. Am. Airlines, Inc., 283 F.3d 282, 286 (5th Cir. 2002)). The Court does not find that an amendment would be futile in this case. Due to the nature of qualified immunity, the Court finds allowing the Plaintiff to replead will assist the Court in deciding qualified immunity.
The AG Defendants additionally argue that they are immune from Plaintiff's claims against them based on official immunity. Plaintiff counters that the AG Defendants have not met their burden to show that they are entitled to official immunity.
The Court finds conclusively establishing official immunity at this stage in the litigation to be difficult based on the allegations of this case. At the very least, Plaintiff has alleged that the defendants in this case did not act in good faith. To the contrary, Plaintiff alleges that the defendants acted maliciously in this case, investigating and prosecuting her because she won an election by a landslide and because the CCDAO Defendants disagreed with her rulings in criminal cases. She has also alleged that the AG Defendants acted in concert with the CCDAO Defendants to achieve this goal. Accordingly, while the AG Defendants may have not been the defendants with the initial motive, they continued the malicious behavior of the CCDAO Defendants. As such, at this stage, the AG Defendants are not entitled to official immunity.
Plaintiff alleges that the County "had a policy of pursuing wrongful arrests and prosecutions without probable cause and without due process." (Dkt. #10 at p. 28). In relation to this policy, Plaintiff asserts the policy maker is the Collin County District Attorney, Defendant Roach. The County moves to dismiss this claim arguing that liability does not attach to the County based on this policy, because the County has no control over the arrests or prosecution of individuals in Collin County. The County further asserts that, even if the County could be liable, Plaintiff has not sufficiently alleged an actual policy caused her harm in this case.
When alleging a § 1983 claim, a plaintiff may not establish liability against a government entity through respondeat superior. Deville v. Marcantel, 567 F.3d 156, 170 (5th Cir. 2009) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)); Wright v. Denison Indep. Sch. Dist., No. 4:16-cv-615, 2017 WL 2262778, at *3 (E.D. Tex. May 24, 2017), memorandum adopting in part, No. 4:16-cv-615, Dkt. #36 (E.D. Tex. Apr. 19, 2017). Accordingly, plaintiffs must plead and prove that the government entity "itself causes the constitutional violation at issue." City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (citing Monell, 436 U.S. at 694-95, 98 S.Ct. 2018). To establish that the government entity
Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984). The Court first addresses whether Defendant Roach is a policy maker for the County and then whether there was actually an official policy in this case.
The County argues that the alleged policy of "pursuing wrongful arrests and prosecution without probable cause and without due process" is not a policy of the County because the Collin County District Attorney acts on behalf of the State and not on behalf of the County.
As previously identified, Plaintiff must state that the County enacted an official policy, which caused her harm in this case. "Such `policy' must derive from the government entity's recognized [policy maker].... This ensures plaintiffs do not saddle government entities with vicarious liability for the actions of its agents not in accord with policy." Wright, 2017 WL 2262778, at *3 (citing Rivera v. Hous. Indep. Sch. Dist., 349 F.3d 244, 247-48 (5th Cir. 2003); Jett v. Dall. Indep. Sch. Dist., 7 F.3d 1241, 1245 (5th Cir. 1993); Bd. of Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 403-04, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)). The Fifth Circuit has described that a district attorney has qualities of both a state official and a county official; explaining, that the district attorney's "office is a local entity, created by the State of Texas and deriving its powers from those of the State, but limited in exercise of those powers to the county, filled by its voters, and paid for with its funds." Crane v. State of Tex., 766 F.2d 193, 194-95 (5th Cir. 1985). As such, there are certain circumstances in which the district attorney is a policy maker for the State and circumstances when the district attorney is a policy maker for the county.
The Court finds this case most factually similar to Crane v. State of Texas. In
Here, the County is alleged to have a policy of "pursuing wrongful arrests and prosecution without probable cause and without due process." This policy would be outside of the district attorney's role as a prosecutor in one case and instead is the implementing of a policy that is contrary to state and federal law. Additionally, the CCDAO in this case was not attempting to uphold the laws of the State, as the allegations against Plaintiff were not a crime under the laws of the State. As such, because the policy is not about enforcing the laws of the State and instead runs afoul of the laws of the State and serves as a violation of the Constitution, based on the precedent before it, the Court finds that Defendant Roach, as the Collin County District Attorney, was acting as a policy maker on behalf of the County for purposes of the motion to dismiss.
The County additionally asserts that Plaintiff has not asserted a policy of the County that caused Plaintiff's harm. Plaintiff disagrees. A plaintiff has to "specifically identif[y]" the contested policy. Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001). Further, if that "policy [is] based on a pattern," the plaintiff must demonstrate the pattern "`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... employees.'" Davidson v. City of Stafford, 848 F.3d 384, 396 (5th Cir. 2017) (quoting Peterson v. City of Fort Worth, 588 F.3d 838, 850 (5th Cir. 2009)). After reviewing the
All Defendants argue that the majority of Plaintiff's claims do not require a favorable determination in order to proceed. Accordingly, the Defendants maintain the last possible accrual date, for a majority of her claims, is November 22, 2011, Plaintiff's conviction date. There is no debate that the case was filed on May 23, 2018. Thus, the Defendants argue that Plaintiff does not meet the two-year statute of limitations. Plaintiff counters that when the allegations are part of a broader malicious prosecution conspiracy, the causes of action accrue at the same time as the malicious prosecution. According to Plaintiff, malicious prosecution requires a favorable termination. As such, Plaintiff maintains all her causes of action are timely based on the date of accrual, May 24, 2017, the date her conviction was vacated and Plaintiff was acquitted.
The Court agrees with Plaintiff. All of Plaintiff's claims "are essentially part of a broader claim alleging a malicious prosecution conspiracy" and as such these claims "accrue[ ] at the same time as the cause of action for malicious prosecution." Casanova v. City of Brookshire, 119 F.Supp.2d. 639, 650 (S.D. Tex. 2000); accord Brandley v. Keeshan, 64 F.3d 196, 199 (5th Cir. 1995), Jacobs v. Port Neches Police Dep't, No. 1:94-cv-767, 1996 WL 363023, at *5 (E.D. Tex. 1996). Moreover, malicious prosecution does require a favorable termination. Brown, 243 F.3d at 189. Plaintiff's 11.072 Writ of Habeas Corpus Declaring Actual Innocence as a Matter of Law was granted on May 24, 2017. This case was filed less than a year after that on May 23, 2018. Thus, Plaintiff's claims are timely.
Both the CCDAO Defendants and the County argue that the Court should dismiss Plaintiff's claims for punitive damages against them. The Court addresses the arguments for each separately.
The CCDAO Defendants ask the Court to dismiss Plaintiff's claims for punitive damages asserting that a plaintiff has to establish a certain level of culpability against a government employee to receive punitive damages, noting it is harder to do when prosecutorial immunity is involved. The CCDAO Defendants state Plaintiff's punitive damage claim fails, without any argument or factual support. The Court does not find this issue to be fully briefed for the Court to consider. See United States v. Volksen, 766 F.2d 190, 193 (5th Cir. 1985); Ragland v. Dall. Cty. Cmty. Coll. Dist., No. 3:16-CV-722-L, 2017 WL 1196863, at *5 (N.D. Tex. Mar. 31, 2017); Kostic v. Tex. A & M Univ. at Commerce, 11 F.Supp.3d 699, 735 (N.D. Tex. 2014) (citing Petrie v. City of Grapevine, 904 F.Supp.2d 569, 585 (N.D. Tex. 2012)).
The County also argues that Plaintiff cannot recover punitive damages against it, citing City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981). Plaintiff does not respond to this argument. LOCAL RULE CV-7(d) ("A party's failure to oppose a motion in the manner prescribed herein creates a presumption that the party
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