Barnes v. Tex. Ethics Comm'n, A-13-CA-916 LY
| Decision Date | 18 May 2015 |
| Docket Number | A-13-CA-916 LY |
| Court | U.S. District Court — Western District of Texas |
| Parties | MIKE BARNES v. TEXAS ETHICS COMMISSION AND NATALIA LUNA ASHLEY AND DAVID A. REISMAN, IN THEIR INDIVIDUAL CAPACITY |
Before the Court are: Defendant Texas Ethics Commission's Motion to Dismiss Plaintiff's Third Amended Complaint Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (Dkt. No. 32); Defendant Natalia Ashley and David Reisman's Motion to Dismiss Plaintiff's Third Amended Complaint (Dkt. No. 39); Plaintiff's Consolidated Response (Dkt. No. 43); and Defendants' Reply in Support of their Motions to Dismiss (Dkt. No. 44). The District Court referred the above-motion to the undersigned Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. §636(b) and Rule 1(c) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Having reviewed the parties' filings, the entire case file, and the applicable law, the Court enters the following Report and Recommendation.
In the Spring of 2011, Plaintiff Mike Barnes ("Barnes") ran for a Blanco Independent School District ("Blanco ISD") school board position and lost. Barnes alleges that during the school board campaign, three Blanco ISD school employees either emailed, printed flyers or fund-raised during school hours and/or using school resources in violation of the Texas Election Code and the Texas Education Code. Almost two years later, on March 1, 2013, Barnes sent letters to the Texas Ethics Commission ("Commission"),2 the Texas Education Agency, and the Secretary of State, to inquire about how to make a formal complaint regarding the three school employee's alleged violations of state law.
On March 15, 2013, the Commission responded to Barnes's letter inquiry advising him that its enforcement jurisdiction extended only to possible violations of the Texas Election Code. The Commission also explained how to make a complaint using the required sworn complaint and affidavit forms and noted the applicable limitations period of two years for the alleged violations. On April 10, 2013, Barnes then sent three sworn complaints and affidavits to the Commission against the three Blanco ISD employees. However, the Commission issued Notices of Noncompliance for each of these complaints and again advised Barnes how to file a complying complaint. Barnes sent several more letters/complaints to the Commission urging reconsideration of his three complaints, but the Commission declined to reconsider whether to investigate his complaints.
In response to the Commission's failure to investigate his complaints, Barnes filed this lawsuit under 42 U.S.C. § 1983 against the Commission alleging that "[t]he practice of the Texas Ethics Commission to make it difficult if not impossible to file a complaint and have it investigated is a violation of Barnes['] rights, pursuant to both the United States and Texas Constitutions." Dkt. No. 5 at ¶53.
On February 10, 2014, the Commission filed a Motion to Dismiss arguing that Barnes' First Amended Complaint should be dismissed for lack of subject matter jurisdiction and failure to state any claims for which relief can be granted. The undersigned recommended that the District Court grant the Motion to Dismiss for lack of subject matter jurisdiction based on the doctrine of sovereign immunity. Dkt. No. 14. On September 18, 2014, the District Court adopted the Report and Recommendation, but granted Barnes leave to file a Second Amended Complaint. Dkt. No. 16. On October 29, 2014, Barnes filed a Motion for Leave to file a Third Amended Complaint, which the District Court granted on November 5, 2014. Dkt. No. 27. The Third Amended Complaint is therefore the "live" pleading in the case.
In addition to naming the Commission as a defendant, Barnes' Third Amended Complaint also names as defendants Natalia Luna Ashley, Executive Director of the Commission, and David A. Reisman, former Executive Director of the Commission. Barnes alleges that the Defendants (1) violated his right to redress his grievances before a government entity in violation of the First and Fourteenth Amendments to the Unites States Constitution, and (2) "failed to assure the complaint process affords a citizen the ability to have their right to file a complaint and have it investigated without unnecessary barriers," in violation of the Open Courts and Due Course of Law provisions of the Texas Constitution, Article I, Sections 13 and 19. Dkt. No. 28 at ¶78. Barnes further alleges that "Defendant Reisman, as Executive Director of the Texas Ethics Commission, in his IndividualCapacity, has set into place a pattern and practice of purposefully putting up barriers to citizens, when attempting to effectuate their legal right to file a complaint about an election," and that "Defendant Ashley continues to maintain such violations of constitutional, statutory and regulatory law." Dkt. No. 28 at ¶ 67. In addition to seeking monetary damages, attorney's fees and costs, Barnes also seeks a declaration that Reisman is a responsible party and that "the laws, rules and practices of the Texas Ethics Commission violate substantive and procedural law." He also asks that the Court order Defendant Ashley and the Commission to investigate his complaints and "change their policies and practices in place that impeded the investigation of complaints about elections but rather, has policies and practices in place, that foster such investigations." Dkt. No. 28 at p. 17-18.
The Commission and the Individual Defendants have each filed Motions to Dismiss arguing that Barnes' Third Amended Complaint should be dismissed for lack of subject matter jurisdiction and for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).
Federal Rule of Civil Procedure 12(b)(1) allows a party to assert lack of subject-matter jurisdiction as a defense to suit. Federal district courts are courts of limited jurisdiction, and may only exercise such jurisdiction as is expressly conferred by the Constitution and federal statutes. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A federal court properly dismisses a case for lack of subject matter jurisdiction when it lacks the statutory or constitutional power to adjudicate the case. Home Builders Assn. of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). "The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001), cert. denied, 536 U.S. 960 (2002). "Accordingly, the plaintiff constantly bears the burden of proof thatjurisdiction does in fact exist." Id. In ruling on a Rule 12(b)(1) motion, the court may consider any one of the following: (1) the complaint alone; (2) the complaint plus undisputed facts evidenced in the record; or (3) the complaint, undisputed facts, and the court's resolution of disputed facts. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008).
Rule 12(b)(6) allows for dismissal of an action "for failure to state a claim upon which relief can be granted." While a complaint attacked by a Rule 12(b)(6) motion does not need detailed factual allegations in order to avoid dismissal, the plaintiff's factual allegations "must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also, Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). A plaintiff's obligation "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. The Supreme Court recently expounded on the Twombly standard, explaining that a complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. In evaluating a motion to dismiss, the Court must construe the complaint liberally and accept all of the plaintiff's factual allegations in the complaint as true. See In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2009).
Although this Court construes the briefs of pro se litigants liberally, a pro se litigant must still comply with the court rules of procedural and substantive law. Bird v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981). See also, Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) () (internal quotation marks and citations omitted), cert. denied, 537 U.S. 1200 (2003).
Courts must consider a Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits. Ramming, 281 F.3d at 161. Considering Rule 12(b)(1) motions first "prevents a court without jurisdiction from prematurely dismissing a case with prejudice." Id.
The Commission argues that Barnes' lawsuit must be dismissed for lack of subject matter jurisdiction because it is barred by Eleventh Amendment/sovereign immunity.3 The Court agrees.
The Eleventh Amendment states:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
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