Holloway v. Montgomery Cnty.

• Decision Date: 28 January 2021
• Docket Number: No. 3:21-cv-179-K-BN,3:21-cv-179-K-BN
• Parties: TAMMY ALLISON HOLLOWAY, Plaintiff, v. MONTGOMERY COUNTY, MARYLAND, ET AL., Defendants.
• Court: U.S. District Court — Northern District of Texas

TAMMY ALLISON HOLLOWAY, Plaintiff, v. MONTGOMERY COUNTY, MARYLAND, ET AL., Defendants.

No. 3:21-cv-179-K-BN

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

January 28, 2021

Entered Conditionally Under Seal, Ex Parte

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

Plaintiff Tammy Allison Holloway, an attorney resident in Dallas, Texas, brings this pro se action against Montgomery County, Maryland; the Administrative Judge and the Clerk for the County's Circuit Court; the Maryland Labor Secretary; and the Fair Practices Officer at the Maryland Judicial Center, alleging that all defendants have violated her rights protected by the Americans with Disabilities Act (the ADA), that the County has violated her rights protected by the Fourteenth Amendment, and that three of the individual defendants have participated in a conspiracy actionable under 42 U.S.C. § 1983. See Dkt. No. 1.

Holloway's claims stem from actions taken in the course of a family court proceeding pending in Montgomery County. See id., ¶¶ 11-73. She requests declaratory relief and damages. See id. at 14-15. And she has filed ex parte an Emergency Motion for a Temporary Restraining Order and Preliminary Injunction [Dkt. No. 2], requesting that this Court enjoin the Maryland state court proceeding (the TRO Motion).

United States District Judge Ed Kinkeade has referred Holloway's pro se case to the undersigned United States magistrate judge for pretrial management under 28 U.S.C. § 636(b).

The undersigned enters these findings of fact, conclusions of law, and recommendation that the Court should deny the TRO Motion, unseal this motion and these findings, conclusions, and recommendation, and dismiss this action without prejudice under 28 U.S.C. § 1406(a).

Legal Standards and Analysis

I. Preliminary Injunctive Relief

As "[a] TRO is simply a highly accelerated and temporary form of preliminary injunctive relief," "[t]o obtain a temporary restraining order, an applicant must show entitlement to a preliminary injunction." Horner v. Am. Airlines, Inc., No. 3:17-cv-665-D, 2017 WL 978100, at *1 (N.D. Tex. Mar. 13, 2017) (citations and internal quotation marks omitted). But granting a preliminary injunction "is an extraordinary remedy which requires the movant to unequivocally show the need for its issuance." Valley v. Rapides Par. Sch. Bd., 118 F.3d 1047, 1050 (5th Cir. 1997) (citing Allied Mktg. Grp., Inc. v. C.D.L. Mktg., Inc., 878 F.2d 806, 809 (5th Cir. 1989)).

Holloway must therefore unequivocally "show (1) a substantial likelihood that [she] will prevail on the merits, (2) a substantial threat that [she] will suffer irreparable injury if the injunction is not granted, (3) [her] threatened injury outweighs the threatened harm to the party whom he seeks to enjoin, and (4) granting the preliminary injunction will not disserve the public interest." Bluefield WaterAss'n, Inc. v. City of Starkville, Miss., 577 F.3d 250, 252-53 (5th Cir. 2009) (internal quotation marks omitted); accord Canal Auth. of State of Fla. v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974).

To begin, Holloway requests entry of a TRO ex parte and includes with her TRO Motion the following Certificate of Notification Efforts:

Pursuant to Rule 65(b)(1)(B)'s requirement that its "attorney certif[y] in writing any efforts made to give notice and the reasons why it should not be required" Fed. R. Civ. P. 65(b)(1)(B), Plaintiff attempted to contact [Defendant] Tiffany Robinson[, the Maryland Labor Secretary,] by telephone ... on January 27, 2021, to no avail. She called the Clerk's Office.... However, Plaintiff is also an attorney licensed both in Maryland and Texas, and is cautious as to not violate Texas Code of Judicial Conduct Canon 3(B)(8), which states do not confer with the trial judge regarding the motion in an original proceeding in which the trial judge is the respondent. Here, [Defendant] Montgomery County is the municipality that controls the Circuit Court for Montgomery County in which [Defendant] Judge Greenberg is the Administrative Judge. As the Administrative Judge, he oversees all judges in the Court, including the Clerk's Office. The ongoing proceeding is the underlying matter before this court as well as the actions of the Circuit Court for Montgomery County depriving Plaintiff of the Federal rights that initiated the underlying motions in the underlying ongoing state proceedings before this court. As Plaintiff is a resident of Texas, and is bringing this Complaint before this Texas Court, she cites only to the Texas Code of Judicial Conduct.

Dkt. No. 2 at 5.

But Holloway's complaint is not verified. Nor has she provided an affidavit as required by Rule 65(b)(1)(A). So, even if the Court accepts her allegations as substantively sufficient, the undersigned finds that Holloway's TRO Motion does not meet Rule 65(b)(1)'s ex parte standards. See Breitling v. LNV Corp., No. 3:14-cv-3322-M, 2014 WL 5510857, at *1 (N.D. Tex. Oct. 28, 2014) (Rule 65(b)(1) "permits this Court to issue a temporary restraining order only if 'specific facts in an affidavit or averified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required'" (quoting FED. R. CIV. P. 65(b)(1); further observing that, "[p]ursuant to Local Rule 83.14, '[p]ro se parties must read and follow the local civil rules of this court and the Federal Rules of Civil Procedure'")).

While the undersigned finds that Holloway has not met the ex parte standards, these findings, conditions, and recommendation are conditionally entered under seal, ex parte to allow Holloway to object to this finding. But, if the Court accepts or adopts this finding, it should unseal both the TRO Motion and these findings, conclusions, and recommendation.

Holloway also has not shown that there is a substantial likelihood that she will prevail on the merits of her claims:

A. ADA Claim

First, in bringing her ADA claim, she alleges that she "is authorized under Title II of the ADA to bring this claim as it provides rights, remedies, and procedures only 'to any person alleging discrimination.'" Dkt. No. 1, ¶ 76 (quoting 42 U.S.C. § 12133). And she alleges, multiple times, that she previously requested "a reasonable accommodation" from the state court, which requests were denied. Id., ¶¶ 23, 28, 44, 48, 55, 73. But Holloway fails to allege facts to show - or from which the Court may infer - that she is a qualified individual with a disability within the meaning of the ADA.

Title II of the ADA "covers discrimination in the provision of public services." Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 671 (5th Cir. 2004) (citing 42 U.S.C. § 12131 et seq.). And it

states that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132; see also 28 C.F.R. § 35.130(a) ("No qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity").

Greer v. Richardson Indep. Sch. Dist., 472 F. App'x 287, 290-91 (5th Cir. 2012) (per curiam) (footnote omitted); cf. id. at 290 n.1 ("[b]ecause the language and standards are virtually identical for Title II of the ADA and Section 504 of the Rehabilitation Act, [ ] consider[ing the plaintiff's] claims under both statutes concurrently but [ ] refer[ring] only to the ADA for brevity" (citations omitted)).

But merely alleging that a defendant has violated the ADA is not enough to allege a plausible claim under the statute. Instead, to plausibly allege a claim under Title II of the ADA, a plaintiff must allege facts to show - or from which the Court may infer -

"(1) that he is a qualified individual within the meaning of the ADA; (2) that he is being excluded from participation in, or being denied benefits of, services, programs, or activities for which the public entity is responsible, or is otherwise being discriminated against by the public entity; and (3) that such exclusion, denial of benefits, or discrimination is by reason of his disability."

Windham v. Harris Cnty., Tex., 875 F.3d 229, 235 (5th Cir. 2017) (quoting Melton, 391 F.3d at 671-72); accord Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011).

If a plaintiff does not, the ADA claim should be dismissed. See, e.g., Nelson v.Collins, 765 F. App'x 75, 75-76 (5th Cir. 2019) (per curiam) (affirming dismissal of an ADA Title II claim where the plaintiff's "allegations [did] not set forth facts supporting a claim that he was discriminated against in any way because of his disability"); Mora v. Univ. of Tex. Sw. Med. Ctr., No. 3:09-cv-927-N, 2011 WL 13183237, at *4 (N.D. Tex. Feb. 10, 2011) ("Mora fails to allege sufficient facts that support a plausible claim that she is an individual with a disability. Although she offers the conclusory statements that she has an 'impairment' that 'substantially limits her major life activities,' she fails to identify any life activity that her alcoholism affects. Although Mora need not plead a prima facie case, she must provide grounds demonstrating an entitlement to relief that are more than labels and conclusions." (citations omitted)), aff'd, 469 F. App'x 295 (5th Cir. 2012) (per curiam).

And even if the Court accepts that Holloway has a qualifying disability - which itself is not plausible based on the current complaint - her allegations do not support a plausible claim of discrimination under Title II of the ADA by including facts that, for example, permit the Court to infer that...