Carter v. City of Fort Worth

• Decision Date: 19 October 2020
• Docket Number: Civil Action No. 4:20-cv-00537-O-BP
• Parties: DARRYL CARTER, Plaintiff, v. CITY OF FORT WORTH, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

DARRYL CARTER, Plaintiff, v. CITY OF FORT WORTH, et al., Defendants.

Civil Action No. 4:20-cv-00537-O-BP

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION

October 19, 2020

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

Plaintiff, Darryl Carter ("Carter"), complains that the Defendants, City of Fort Worth ("City"), Officer Stevenson ("Stevenson"), and Officer Leon ("Leon"), violated his rights by "harassing" him on a public sidewalk after he emailed the Epoch Times and other media sources complaining of fraud, misconduct, and his forcible detention in the City. ECF No. 1. He proceeds pro se and in forma pauperis. This case was automatically referred to the undersigned pursuant to Special Order 3 on May 27, 2020. ECF No. 7.

Before the Court are Carter's Complaint (ECF No. 1) filed May 27, 2020; Motion for Temporary Restraining Order (ECF No. 4) filed May 27, 2020; Motion for Injunction and Brief/Memorandum in Support (ECF Nos. 10 and 11) filed on June 9, 2020; and Motion to Shorten Time (ECF No. 12) filed June 9, 2020. After considering the pleadings and applicable legal authorities, the Court concludes that Carter's Complaint should be dismissed because Carter fails to state a claim on which relief may be granted as to his First Amendment claim and because the Court is without subject matter jurisdiction over his Eighth and Fourteenth Amendment claims as he lacks standing. The undersigned therefore RECOMMENDS that United States District Judge Reed O'Connor DISMISS Carter's First Amendment claims and claims against the City of Fort Worth with prejudice, DISMISS his Eighth and Fourteenth Amendment claims without prejudice, DENY his Motions for Temporary Restraining Order and Injunction, and DENY as moot his Motion to Shorten Time.

I. Background

This case is Carter's second suit against the City in this Court. In February of this year, he sued the City among other defendants in a pro se Complaint for alleged violations of his First, Eighth, and Fourteenth Amendment rights. See Carter v. Dallas Police Dep't, No. 3:20-cv-00259-S-BT, ECF No. 1 at 1. There, United States District Judge Karen G. Scholer dismissed his case for failure to state a claim as well as lack of subject-matter jurisdiction, finding he was not authorized to sue the Dallas Police Department and the City. Carter, No. 3:20-cv-00259-S-BT, ECF No. 20.

In his pending Complaint, Carter alleges that the Defendants have violated his First, Eighth, and Fourteenth Amendment rights. ECF No. 1 at 7. He claims that as he was standing on the sidewalk across the street from the Omni Hotel and adjacent to the Fort Worth Convention Center, the Defendants "eavesdropped" on him through his internet connection and decided to harass and threaten him after he emailed "the Media." Id. at 4. Carter states that the Defendants harassed him because in his email, he complained of fraud, misconduct, and "being forcibly held in the City of Fort Worth, TX, since on or around March 8, 2020 when plaintiff began to be personally affected by the COVID-19 pandemic." ECF No. 1 at 4-5.

As in his previous suit against the City, Carter alleges that the COVID-19 pandemic is being used as a ploy to keep him "trapped and in place," forced to sleep in a homeless shelter without any financial or medical resources. Id. at 5. He contends that because of the email he sent, Stevenson, Leon, and an unidentified security officer violated his rights by informing him he couldbe charged with criminal trespass for refusing to leave the area after being asked by the security officer. Id. at 7, 9.

Carter seeks a declaration that Defendants' warnings and threats of arrest are illegal abuses of Texas Penal Code § 30.05 and an injunction enjoining the Defendants from any "further harassment, threat of arrest, or arrest with respect to [his] occupancy of the public sidewalk." Id. at 10. He also requests to recover his costs, including "equitable recovery of plaintiff's time" at the hourly rate of $195 per hour spent on this matter. Id. Carter also moves for a temporary restraining order enjoining the City and Defendants Leon and Stevenson from issuing criminal sanctions against him for occupying publicly designated sidewalks. ECF No. 4 and 4-1. He also seeks temporary injunctive relief enjoining those defendants from chilling his first amendment right to free speech, suppressing and interfering with his right of free movement, and from illegally using Texas Penal Code § 30.05 to harass, intimidate, and threaten him for exercising his constitutional rights. ECF No. 10 at 2.

II. LEGAL STANDARD

A. Screening under 28 U.S.C. § 1915(e)(2)(B)

Because Carter is proceeding in forma pauperis, the Court is authorized under 28 U.S.C. § 1915(e)(2)(B) to screen his case to determine whether it is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant that is immune from such a claim. Smilde v. Snow, 73 F. App'x 24, 25 (5th Cir. 2003). A complaint is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989); Brewster v. Dretke, 587 F.3d 764, 767 (5th Cir. 2009). A complaint lacks an arguable basis in law when it is "based on an indisputably meritless legal theory." Neitzke, 490 U.S. at 326-27; Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999). And to state a claim upon which relief may be granted,a complaint must plead "enough facts to state a claim to relief that is plausible on its face" with enough specificity "to raise a right to relief above the speculative level[.]" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pursuant to this provision, the Court may review a complaint and dismiss sua sponte those claims premised on meritless legal theories and those that clearly lack any basis in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke, 490 U.S. at 325. A § 1915(e) dismissal may be made at any time before or after service of process and before or after an answer is filed. Wells v. Louisiana State Att'y Gen., No. CV 10-376-B-M2, 2011 WL 13186240, at *6 (M.D. La. Apr. 14, 2011), subsequently dismissed sub nom. Wells v. State Att'y Gens. of Louisiana, 469 F. App'x 308 (5th Cir. 2012).

B. Rule 12(b)(1)

Rule 12(b)(1) permits dismissal for lack of subject matter jurisdiction. "Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). District courts "must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum." Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). A federal court has an independent duty, at any level of the proceedings, to determine whether it properly has subject-matter jurisdiction over a case. Ruhgras AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) ("[S]ubject-matter delineations must be policed by the courts on their own initiative even at the highest level."); McDonal v. Abbott Labs., 408 F.3d 177, 182 n.5 (5th Cir. 2005) ("[A] federal court may raise subject matter jurisdiction sua sponte.").

A federal court has subject-matter jurisdiction over civil cases "arising under the Constitution, laws, or treaties of the United States," and civil cases in which the amount incontroversy exceeds $75,000, exclusive of interest and costs, and diversity of citizenship exists between the parties. 28 U.S.C. §§ 1331, 1332. "[S]ubject-matter jurisdiction cannot be created by waiver or consent." Howery, 243 F.3d at 919. Absent jurisdiction conferred by statute or the Constitution, the federal district court does not have the power to adjudicate claims and must dismiss an action if subject-matter jurisdiction is lacking. Id.; Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998) (citing Veldhoen v. United States Coast Guard, 35 F.3d 222, 225 (5th Cir. 1994)). Dismissal for lack of subject matter jurisdiction "is not a determination of the merits and does not prevent the plaintiff from pursuing a claim in a court that does have proper jurisdiction." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citing Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977)).

C. Rule 12(b)(6)

Rule 12(b)(6) permits dismissal of a complaint for failure to state a claim upon which relief can be granted. The Rules require that each complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a). A complaint must include sufficient factual allegations "to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. In considering a Rule 12(b)(6) motion, courts "take all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff . . . and ask whether the pleadings contain 'enough facts to state a claim to relief that is plausible on its face.'" Yumilicious Franchise, L.L.C. v. Barrie, 819 F.3d 170, 174 (5th Cir. 2016) (citing Twombly, 550 U.S. at 547). "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." Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555).

In ruling on a motion to dismiss, a court may consider documents outside the complaint when they are: (1) attached to the motion to dismiss; (2) referenced in the complaint; and (3) central to the plaintiff's claims. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). Additionally, a court may take judicial notice of matters of public record without...