Chao v. City of Plano

Decision Date16 August 2022
Docket NumberCivil Action 4:21-CV-00312-ALM-CAN
PartiesJAMES T. CHAO, Plaintiff, v. CITY OF PLANO, TEXAS, ET AL., Defendants.
CourtU.S. District Court — Eastern District of Texas



Pending before the Court is Defendants' Motion to Dismiss Pursuant to FED. R. CIV. P. 12(b)(6) [Dkt. 24]. After reviewing the Motion, and all other relevant filings, the Court recommends Defendants' Motion to Dismiss be GRANTED, and Plaintiff's claims be DISMISSED WITH PREJUDICE as set forth herein.


On April 19, 2021, pro se Plaintiff James T. Chao (Plaintiff) filed the instant action against Defendants the City of Plano, Texas (“the City” or “Plano”), City Manager Mark Israelson (“Israelson”), Director of Neighborhood Services Lori Schwarz (“Schwarz”), Property Standards Manager Scott Lussier (“Lussier”), and Property Standards Specialist Kyle Watson (“Watson”) (collectively, Defendants) [Dkt. 1]. This case arises out of the 2016 Orders issued by the Plano Building Standards Commission that Plaintiff's residence is substandard, unsafe, and unfit for human occupancy and directing its demolition. The instant cause is the latest in a string of lawsuits filed by Plaintiff related to the Commission's findings regarding his residence.[1]

Plaintiff's Amended Complaint - the Live Pleading

The Court reviewed Plaintiff's original complaint upon filing and found it unclear what claims Plaintiff attempted to assert.[2] Plaintiff alleges the City of Plano “destroyed the foundation of my home at 4032 Leon Drive” in Plano, Texas, and requests compensation for such destruction “based on [a] newly issued case,” citing Knick v. Township of Scott, 139 S.Ct. 2162 (2019) [Dkt. 1 at 6]. Given the lack of clarity the Court ordered Plaintiff to file an amended complaint. Plaintiff was expressly directed to state the facts that are asserted as to each defendant and the factual basis for any takings claim, and to clarify whether and how Plaintiff's previous cases are related to the instant suit [Dkt. 4 at 2]. After three extensions [Dkts. 9; 12; 16], on August 25, 2021 Plaintiff filed an amended complaint - the live pleading [Dkt. 17].

The live pleading is largely illegible. Plaintiff pleads “this is a 5th Amendment Takings case” and that he “lost [his] home of over 40 years and became homeless” [Dkt. 17 at 5-6]. Plaintiff does not allege any specific act taken by any named defendant; rather he broadly alleges Defendants “effect[ed] a taking case on Jan 19, 2016 [Dkt. 17 at 6]; [did] not let [him] use [his] home”; “destroy[ed] all property and home,” and as a result, he suffered “stress” and possibly other physical injury (the detail provided is illegible) [Dkt. 17 at 4]; and that in taking these actions, Defendants acted “under the authority or color of state law at the time [his] claims occurred” challenged.” See Flores v. U.S. Att'y Gen., No. 1:14-CV-198, 2015 WL 1088782, at *3 (E.D. Tex. Mar. 4, 2015). “Taking judicial notice” of court records, both its own and that of state courts, “does not transform [a] motion [to dismiss] into one for summary judgment.” Motten v. Chase Home Fin., 831 F.Supp.2d 988, 993 (S.D. Tex. 2011) (citing Funk v. Stryker Corp., 631 F.3d 777, 780 (5th Cir. 2011)); see also Thomas v. Beaumont Indep. Sch. Dist., No. 1:15-CV-112, 2016 WL 922182, at *3 (E.D. Tex. Feb. 12, 2016) (holding a court may consider filings and procedural matters in the plaintiff's state court case when analyzing a motion to dismiss because the state court proceeding is a matter of public record), report and recommendation adopted, No. 1:15-CV-112, 2016 WL 899870 (E.D. Tex. Mar. 8, 2016).

[Dkt. 17 at 2-3]. For relief, Plaintiff seeks $450,000 in compensation from the City [Dkt. 17 at 7]. No claim for injunctive or other equitable relief is pleaded.

As referenced supra, this is not Plaintiff's first foray into court regarding the alleged “taking” of his property.

First Federal Case

On January 19, 2016, Plaintiff filed his first federal lawsuit in the Eastern District of Texas related to the Commission's January 2016 Order that his residence was substandard, unsafe, and unfit for human occupancy. Chao v. City of Plano Dep't of Prop. Standard (“Chao I”), No. 4:16-CV-53, 2016 WL 3566743 (E.D. Tex. Jan. 27, 2016), report and recommendation adopted, No. 4:16-CV-53, 2016 WL 3542842 (E.D. Tex. June 29, 2016). There, Plaintiff sued many of the same Defendants as here, including Schwarz, Lussier, and Watson. On June 29, 2016, the Court dismissed for failure to exhaust, finding it lacked jurisdiction over the claims, as there was nothing in the record “to show that Plaintiff sought judicial review of the order in the state district court as required under the Texas Local Government Code. Id. at *2.

Second Federal Case

A few months later, on November 23, 2016, Plaintiff filed his second lawsuit in the Eastern District of Texas, this time against Defendant City of Plano, Building Standards Commission. Chao v. City of Plano, Bldg. Standards Comm'n (“Chao II”), No. 4:16-CV-00903-ALM-KPJ (E.D. Tex. dismissed Jan. 12, 2017). Plaintiff sought judicial review of the Commission's October 2016 Order to demolish his house, pleading a § 1983 claim for violation of his constitutional rights, and asserting that he was not allowed sufficient time to bring his home into compliance with applicable codes. See id. ECF No. 1. The Court found Chao II sought essentially the same relief as Chao I, specifically that in both cases Plaintiff took issue with the Commission's findings regarding his residence. Chao II was recommended for dismissal for lack of subject matter jurisdiction; however, before adoption by the District Judge, Plaintiff voluntarily dismissed the case. Id. ECF Nos. 4, 8.

State Court Case

On December 12, 2016, Plaintiff filed his third suit, an original petition in the 401st District Court for Collin County, Texas. Chao vs. Plano Bldg. Standard Comm'n, City of Plano (“Chao III”), No. 401-05450-2016 (401st Dist. Ct. Collin County, Tex. Apr. 5, 2017). On February 16, 2017, Plano Building Standards Commission, City of Plano filed a Plea to Jurisdiction. On April 5, 2017, the court, after hearing, granted the Plea to Jurisdiction. On April 28, 2017, Plaintiff filed a notice of appeal. The Fifth Court of Appeals dismissed Plaintiff's appeal for “fail[ure] to comply with the briefing requirements of our appellate rules after having been given numerous opportunities to do so.” Chao v. Plano Bldg. Standard Comm'n, No. 05-17-00450-CV, 2018 WL 3524672, at *2 (Tex. App.-Dallas July 23, 2018, pet. dism'd) (mem. op.). Plaintiff failed to timely file his petition to the Supreme Court of Texas, and the court denied his motion for rehearing on January 17, 2019. Chao v. Plano Bldg. Standard Comm'n, No. 18-1204 (Tex. Jan. 17, 2019). Defendants' Motion to Dismiss

On September 12, 2021, Defendants filed their Motion to Dismiss Pursuant to FED. R. CIV. P. 12(b)(6) [Dkt. 24]. The same day, Defendants filed a Motion to Stay Discovery and Rule 26 requirements pending consideration of their Motion to Dismiss considering the immunity grounds raised [Dkt. 25], which the Court granted [Dkt. 32]. On October 18, 2021, Plaintiff filed a response to Defendants' Motion [Dkt. 34] and a supplement on November 1, 2021 [Dkt. 40].[3]Defendants filed replies on October 19, 2021 [Dkt. 36] and November 8, 2021 [Dkt. 43].


A Rule 12(b)(6) motion to dismiss argues that the complaint fails to assert facts that give rise to legal liability of the defendant. See FED. R. CIV. P. 12(b)(6). 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 (2007). 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) (citation omitted). 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.' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “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. (citing Twombly, 550 U.S. at 556). “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.' Id. at 679 (alterations in original) (quoting FED. R. CIV. P. 8(a)(2)). [W]e do not accept as true conclusory allegations, unwarranted factual inferences, or legal conclusions.” Reynolds v. City of Commerce, 853 Fed.Appx. 978, 979 (5th Cir. 2021) (per curiam) (quoting Heinze v. Tesco Corp., 971 F.3d 475, 479 (5th Cir. 2020)).[4]


Defendants move for dismissal of Plaintiff's claims under Rule 12(b)(6) on the following grounds: (1) res judicata (2) statute of limitations; (3) failure to state a claim for violation of the Takings Clause; (4) failure to state a Monell claim; (5) qualified immunity; and (6) failure to state a claim due to lack of any personal involvement [Dkt. 24 at 4-5].[5]

Statute of Limitations

Limitations may permit dismissal under Rule 12(b)(6) “where it is evident from the plaintiff's pleadings that the action is barred.” Jones v. Alcoa, Inc., 339 F.3d 359 366 (5th Cir. 2003) (citing Taylor v. Books A Million Inc., ...

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