Opinion
No. 3:01-CV-0376-M
February 11, 2002
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b) and an Order of Reference, dated July 16, 2001, this case was referred to the United States Magistrate Judge for pretrial management.
FINDINGS AND CONCLUSIONS
The Court has before it for consideration the July 18, 2001 Motion to Dismiss and for Judgment on the Pleadings of Defendants John Cottle; Wayne Hellen; Robert Strickland; Lee Smith; Ricky White; Kevin W. Wood; Timothy Ray; and Bruce Gatlin.
In an Order and Notice entered July 16, 2001, the District Court stated that any summons for an individual listed only in the caption of a Complaint, but not in the body of that Complaint, will not be valid. In the original complaint, filed February 26, 2001, Plaintiffs sued twenty-five defendants in four causes of action. In a first amended complaint, filed March 6, 2001, Plaintiffs added thirty-seven defendants and a fifth cause of action, specifically incorporating by reference the first four causes of action in the original complaint. In a second amended complaint, filed July 6, 2001, Plaintiffs added forty-three more defendants and attached some exhibits. The July 6 Amended Complaint did not incorporate by reference any of the previous complaints. Moreover, it consists of pages one through 3, a second page 3, page 4, page 4a, and pages 9a through 9r. On October 31, 2001, the District Court noted the deficiencies in the July 6, 2001 complaint and ordered Plaintiffs to file a complete amended complaint. Plaintiffs declined to file a complete amended complaint. Rather, they have elected to stand on their July 6, 2001 amended complaint. Despite the liberal interpretation afforded pro se plaintiffs, a plaintiff retains the burden of proof to show that federal jurisdiction has properly been invoked. See Hooks v. Army and Air Force Exchange Serv., 944 F. Supp. 503, 506 (N.D. Tex. 1996). An amended complaint supersedes an original complaint and renders it of no legal effect unless the amended complaint specifically refers to and adopts or incorporates by reference the earlier pleading. King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994).
The Court has warned Plaintiffs that merely listing a party's name is insufficient to invoke the Court's jurisdiction over that party. Plaintiffs have been given every opportunity to comply with federal procedure, but they have declined to do so. Accordingly, the Court should dismiss the following parties whose names Plaintiffs list in the July 6, 2001 amended complaint and against whom Plaintiffs make no allegations: John Cottle; Wayne Hellen; Robert Strickland; Lee Smith; Ricky White; Kevin W. Wood; Timothy Ray; and Bruce Gatlin. Additionally, these defendants have moved for dismissal and judgment on the pleadings based upon qualified immunity, the statute of limitations, collateral estoppel/res judicata, lack of personal jurisdiction based upon insufficiency of service of process, and lack of personal involvement. Defendants claim their being named in the suit is pure harassment, and they seek Rule 11 Sanctions against Plaintiffs.
Standard of Review
A motion to dismiss for failure to state a claim under FED. R. CIV. P. 12(b)(6) is viewed with disfavor and is rarely granted. Lowrey v. Texas AM Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997). A district court cannot dismiss a complaint, or any part of it, for failure to state a claim upon which relief can be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In ruling on such a motion, the court cannot look beyond the face of the pleadings. Baker, 75 F.3d at 196; Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999), cert. denied, 530 U.S. 1229 (2000). A plaintiff, however, must plead specific facts, not mere conclusory allegations, to avoid dismissal. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992). Dismissal is warranted if a plaintiff has (1) been given the opportunity to amend her complaint, (2) made specific and detailed allegations constituting her best case, and (3) still fails to state a claim. See Jacquez v. Procunier, 801 F.2d 789, 792-93 (5th Cir. 1986) (recognizing that dismissal is required if a plaintiff has had fair opportunity to make his case, but has failed); Morrison v. City of Baton Rouge, 761 F.2d 242, 246 (5th Cir. 1985) (assuming that the specific allegations of the amended complaint constitute the plaintiffs' best case).
Analysis
Plaintiffs merely name the defendants in their July 6, 2001 complaint and state no facts in support of their claims against them. Plaintiffs have failed to rebut Defendants' contentions that (1) they are entitled to qualified immunity and (2) any claims Plaintiffs might have against them are barred by the two-year statute of limitations. Plaintiffs only contact with these defendants occurred in June of 1998 and this action was filed February 26, 2001. Additionally, Plaintiffs have failed to rebut Defendants claim that Plaintiffs sued them in the Eastern District of Texas, Marshall Division, in Hatch et al., v. Hellen, et al., No. 2: 00-CV-94-DF (E.D. Tex. July 9, 2001) and that their complaint was dismissed with prejudice. The judgment in that case bars Plaintiffs' claims with respect to all issues litigated in the first proceeding and all issues that could have been litigated. Lubrizol v. Exxon, 871 F.2d 1279 (5th Cir. 1989). Accordingly, Plaintiffs' claims against Defendants are barred by collateral estoppel or res judicata. Moreover, for the reasons stated in Defendants' motion, Plaintiffs have failed to properly serve the moving defendants and have failed to obtain in personam jurisdiction over them. Additionally, Plaintiffs have failed to allege that Defendants were personally involved in any violation of their civil rights. Supervisory officials cannot be held vicariously liable for a subordinates' actions under § 1983. See Monell v. Dep't. of Soc. Servs., 436 U.S. 658, 691-95, 98 S.Ct. 2018, 2036-38 (1978); Bigford v. Taylor, 834 F.2d 1213, 1220 (5th Cir.), cert. denied, 488 U.S. 851 (1988); Thibodeaux v. Arceneaux, 768 F.2d 737, 739 (5th Cir. 1985) ( per curiam). Supervisory officials may be held liable only if they (1) affirmatively participate in acts that cause constitutional deprivation, or (2) implement unconstitutional policies that causally result in plaintiffs injury. See Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987); see also Grandstaff v. City of Borger, 767 F.2d 161, 169-70 (5th Cir. 1985), cert. denied, 480 U.S. 916 (1987). Plaintiffs have failed to allege Defendants personal participation in any civil rights violations.
RECOMMENDATION
The Court recommends that the motion to dismiss of John Cottle, Wayne Hellen, Robert Strickland, Lee Smith, Ricky White, Kevin W. Wood, Timothy Ray, and Bruce Gatlin, filed July 18, 2001, be granted and that John Cottle, Wayne Hellen, Robert Strickland, Lee Smith, Ricky White, Kevin W. Wood, Timothy Ray, and Bruce Gatlin be dismissed with prejudice for lack of in personam jurisdiction, as barred by collateral estoppel or res judicata, and as barred by the statute of limitations.