Opinion
No. 3:01-CV-0376-M
February 8, 2001
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
Defendant Greg Lowry, in a motion filed August 1, 2001, seeks a more definite statement and such other relief to which he may be entitled. In their July 6, 2001 complaint which the District Court has construed as Plaintiffs' final complete complaint stating their best case, Plaintiffs allege as follows:
Gregory A. Lowry, at all times relevant hereto was an attorney in the law firm of LOCKE, LIDDELL, AND SAPP LLP, Dallas, Texas, who conspired with the United States Attorney Paul E. Coggins and the United States Trustee William T. Neary, whom Coggins appoints to his position, to use suppressed evidence from Criminal Case No. 398-CR-332X, subsequent to the order of the Honorable Judge Joe Kendall, suppressing all usage of the illegally obtained evidence from illegal searches and seizures dated June 3, 1998 in Mt. Pleasant, Texas, and on September 30, 1998, in Little Rock, Arkansas, and as a third party civilian and civilian entity, therefore acted under color of law.
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).
Standard of Review
In addition to a more definite statement, Lowry has requested the relief to which he may be entitled, which, in this case, is dismissal. 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 her 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 considering dismissal, 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). 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 Plaintiff's conclusory allegations of conspiracy
Mere conclusory allegations of conspiracy cannot, absent reference to material facts, survive a motion to dismiss. Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir. 1982), quoting Slotnick v. Staviskey, 560 F.2d 31, 33 (1st Cir. 1977). The jurisdiction of federal courts is limited. Owen Equipment and Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Nowhere in the text of the complaint does the plaintiff describe how or when Lowry met with the alleged co-conspirators, where they met, or what agreement they reached with respect to harming Plaintiffs. Instead, Plaintiffs sets forth mere conclusory allegations of conspiracy. As such, the plaintiffs claims are subject to dismissal by the Court. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992). Plaintiffs have made only conclusory allegations of conspiracy against Lowry, and Lowry should be dismissed from this action.
RECOMMENDATION
The Court recommends that Greg Lowry's Motion filed August 1, 2001 be granted to the extent Lowry seeks relief other than a more definite statement. Plaintiffs have been given the opportunity to state more definite claims against Lowry and have chosen to stand on their July 6, 2001 complaint. Accordingly, because that complaint fails to state a claim against Lowry, he should be dismissed.