Heston Emergency Housing, LP et al v. Texas Department of Housing and Community Affairs et al
Filing
44
MEMORANDUM AND ORDER on 32 MOTION to Dismiss 27 Amended Complaint/Counterclaim/Crossclaim etc. (Signed by Judge Ewing Werlein, Jr) Parties notified.(kcarr, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
HESTON EMERGENCY HOUSING, L.P., §
and NAJI AL-FOUZAN,
§
§
Plaintiffs,
§
§
v.
§
§
TEXAS DEPARTMENT OF HOUSING
§
AND COMMUNITY AFFAIRS, MICHAEL §
GERBER, MARTIN RIVERA, JR.,
§
MARISA CALLAN and TIMOTHY
§
IRVINE,
§
§
Defendants.
§
CIVIL ACTION NO. H-11-1121
MEMORANDUM AND ORDER
Pending
is
Defendants
Texas
Department
of
Housing
and
Community Affairs’s (“TDHCA”), Michael Gerber’s (“Gerber”), Martin
Rivera, Jr.’s (“Rivera”), Marisa Callan’s (“Callan”), and Timothy
Irvine’s (“Irvine,” collectively “Defendants”)1 Motion to Dismiss
Plaintiffs’ [First] Amended Complaint (Document No. 32).2 Based on
1
Defendants Gerber, Rivera, Callan, and Irvine will be
referred to collectively as the “Individual Defendants.” According
to Plaintiffs’ complaint, the Individual Defendants were employees
of the TDHCA. Plaintiffs state that Gerber was Executive Director
of the TDHCA, Rivera was Contract Administration Coordinator,
Callan was Project Director for the Texas Alternative Housing Pilot
Program, and Irvine was Chief of Staff of the TDHCA. Document
No. 27 at 2-3.
2
Plaintiffs repled their case after being served with
Defendants’ Motion to Dismiss (Document No. 12), which pointed out
most of the same defects that Defendants urge once again in the
present motion. Defendants’ first Motion to Dismiss (Document No.
12), which was addressed to Plaintiffs’ original complaint, is
therefore DENIED as moot.
the motion, response, and applicable law, the Court concludes that
the motion should be granted.
I.
Background
The events giving rise to this complaint took place in the
aftermath of the 2005 hurricane season, as efforts were made at the
national and state level to address housing concerns of people on
the Gulf Coast affected by the storms.3
Plaintiff Heston Emergency
Housing, L.P. (“Heston”) is in the business of producing emergency
housing units; Plaintiff Naji Al-Fouzan (“Al-Fouzan,” collectively
“Plaintiffs”) is the limited partner in Heston.4
According to
Plaintiffs’ complaint, the TDHCA received federal funding--from
money the United States Congress appropriated for an Alternative
Housing Pilot Program (“AHPP”)--to provide emergency housing to
those affected by the hurricanes and contracted with Heston to
provide those houses.5
Plaintiffs allege that Congress--and Congresswoman Sheila
Jackson
Lee
(“Representative
Lee”),
in
particular--began
investigate TDHCA’s handling of the federal funding.6
3
Document No. 27 at 3.
4
Id. at 2, 4.
5
Id. at 3-4.
6
Id. at 6.
2
to
In the
course of that investigation, Plaintiffs allege that they were told
on more than one occasion that they were not to make any comments
to Representative Lee.
This admonition was allegedly made by
Defendant Gerber and also by one or more of the other Individual
Defendants. Plaintiffs allege, as one illustration, that Defendant
Gerber “specifically told Al-Fouzan he and Heston would suffer were
Gerber to hear, learn, or believe that Rep. Lee (or her staff) had,
in substance, communication of any type with Al-Fouzan or Heston
staff not allowed, authorized, or approved by TDHCA.”7
Plaintiffs
also allege that the Individual Defendants developed the belief
that Heston had provided information to Representative Lee and
retaliated against Heston based on that belief. In retaliation for
the speech Plaintiffs were believed to have made, the Individual
Defendants made statements in a TDHCA board meeting “to place
HESTON and AL-FOUZAN in a false light,” required Heston to undergo
multiple audits, falsely reported on multiple occasions (and to
third
parties)
that
Heston
had
not
fulfilled
its
contract
obligations, and terminated the contract between Heston and TDHCA
on the basis that Heston was in default.8
Plaintiffs bring claims against the Individual Defendants
under 42 U.S.C. § 1983 for (1) “retaliation against on [sic] the
right
of
free
speech,”
7
“violation
Id. at 9.
8
(2)
Id. at 10-12.
3
of
Fifth
Amendment,”
(3) “violation of Fifth Amendment Right to Equal Protection of the
Laws,” and (4) “violation of 42 U.S.C. § 1983 by deprivation of due
process.”9
All
claims
are
alleged
Defendants; none against the TDHCA.
against
the
Individual
Defendants move to dismiss
Plaintiffs’ complaint pursuant to Rule 12(b)(6) and to dismiss
Plaintiff Al-Fouzan’s free speech retaliation claim pursuant to
Rule 12(b)(1).
II.
A.
Discussion
Legal Standards
Under Rule 12(b)(1), a party can seek dismissal of an action
for lack of subject matter jurisdiction.
FED . R. CIV . P. 12(b)(1).
The burden of establishing subject matter jurisdiction is on the
party seeking to invoke it.
158, 161 (5th Cir. 2001).
matter
jurisdiction
“factual” attacks.
come
Ramming v. United States, 281 F.3d
Rule 12(b)(1) challenges to subject
in
two
forms:
“facial”
attacks
and
See Paterson v. Weinberger, 644 F.2d 521, 523
(5th Cir. 1981); Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th
Cir. 1990).
A facial attack, which consists of a Rule 12(b)(1)
motion unaccompanied by supporting evidence, challenges the court’s
jurisdiction based solely on the pleadings.
523.
Paterson, 644 F.2d at
When presented with a facial challenge to subject matter
9
Id. at 12-16.
4
jurisdiction, the Court examines whether the allegations in the
pleadings are sufficient to invoke the court’s subject matter
jurisdiction, assuming the allegations to be true. Id.; Simmang v.
Tex. Bd. of Law Examiners, 346 F. Supp. 2d 874, 880 (W.D. Tex.
2004).
When a Rule 12(b)(1) motion is filed in conjunction with
other Rule 12 motions, the Court should consider the Rule 12(b)(1)
jurisdictional attack before addressing the attack on the merits.
Ramming, 281 F.3d at 161; see also Simmang, 346 F. Supp. 2d at 880.
Rule 12(b)(6) provides for dismissal of an action for “failure
to state a claim upon which relief can be granted.”
12(b)(6).
FED . R. CIV . P.
When a district court reviews the sufficiency of a
complaint before it receives any evidence either by affidavit or
admission, its task is inevitably a limited one.
See Scheuer v.
Rhodes, 94 S. Ct. 1683, 1686 (1974), abrogated on other grounds by
Harlow v. Fitzgerald, 102 S. Ct. 2727 (1982).
The issue is not
whether the plaintiff ultimately will prevail, but whether the
plaintiff is entitled to offer evidence to support the claims. Id.
In considering a motion to dismiss under Rule 12(b)(6), the
district court must construe the allegations in the complaint
favorably to the pleader and must accept as true all well-pleaded
facts in the complaint.
See Lowrey v. Tex. A&M Univ. Sys.,
117 F.3d 242, 247 (5th Cir. 1997).
To survive dismissal, a
complaint must plead “enough facts to state a claim to relief that
is plausible on its face.”
Bell Atl. Corp. v. Twombly, 127 S. Ct.
5
1955, 1974 (2007).
“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable
inference
misconduct alleged.”
(2009).
While
a
that
the
defendant
is
liable
for
the
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
complaint
“does
not
need
detailed
factual
allegations . . . [the] allegations must be enough to raise a right
to relief above the speculative level, on the assumption that all
the allegations in the complaint are true (even if doubtful in
fact).”
Twombly, 127 S. Ct. at 1964-65 (citations and internal
footnote omitted).
B.
Standing of Plaintiff Al-Fouzan
Defendants argue that this Court does not have subject matter
jurisdiction over Plaintiff Al-Fouzan’s free speech retaliation
claim.
They assert that the only injury alleged in the complaint
was the termination of the contract between Heston and the TDHCA,
and any damages to Heston as a result of the termination of that
contract are not personal to Al-Fouzan and cannot be used to give
him standing.10 Plaintiffs do not controvert this argument.
Because standing is a threshold issue in determining whether
the Court has subject matter jurisdiction, it must be considered
before addressing the claims, even if not raised by the parties.
Juidice v. Vail, 97 S. Ct. 1211, 1215 (1977).
10
Document No. 32 at 6.
6
“Article III
standing, at its ‘irreducible constitutional minimum’, requires
Plaintiffs to demonstrate: they have suffered an ‘injury in fact’;
the injury is ‘fairly traceable’ to the defendant's actions; and
the
injury
decision.’”
will
‘likely
.
.
.
be
redressed
by
a
favorable
Public Citizen, Inc. v. Bomer, 274 F.3d 212, 217 (5th
Cir. 2001) (quoting Lujan v. Defenders of Wildlife, 112 S. Ct.
2130, 2136 (1992)).
a
legally
protected
“‘[A]n injury in fact [is] an invasion of
interest
which
is
(a)
concrete
and
particularized, and (b) actual or imminent, not conjectural or
hypothetical.”
claim.
Id.11
A plaintiff must prove standing for every
DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854, 1867
(2006).
In their count alleging free speech retaliation, Plaintiffs
assert that “HESTON suffered damages in the form of loss of the
benefits of the AHPP Grant Contract, damage to its reputation, and
a concomitant loss of other government business . . . .”12
In a
corporation or partnership, a partner, employee, shareholder, or
11
Defendants base their challenge to Al-Fouzan’s standing on
the constitutional standing requirements and do not make a
prudential limitations argument. See, e.g., Ensley v. Cody Res.,
Inc., 171 F.3d 315, 319 (5th Cir. 1999) (describing the difference
between constitutional and prudential standing).
12
Document No. 27 at 14. Although Plaintiffs state at the
beginning of their complaint that Heston and Al-Fouzan are jointly
referred to as Heston “for ease of reference,” they refer to the
Al-Fouzan by name throughout the complaint and the reference to
Heston in this case seems to refer to Heston and not Al-Fouzan.
Id. at 2.
7
officer does not have standing to sue on his own behalf when the
only alleged injury was to the partnership or corporation and not
to himself personally.
Cates v. Int’l Tel. & Tel. Corp., 756 F.2d
1161, 1181 (5th Cir. 1985); Duran v. City of Corpus Christi, 240 F.
App’x 639, 641-42 (5th Cir. 2007) (unpublished op.); Garzes v.
Lopez, 281 F. App’x 323, 325-26 (5th Cir. 2008) (unpublished op.);
Pagan v. Calderon, 448 F.3d 16, 26 (1st Cir. 2006); but see Ensley,
171
F.3d
at
319-20
(finding
that
a
shareholder’s
injury
of
diminution in value of shares was sufficient to state an injury in
fact to satisfy constitutional justiciability requirement).
In considering the application of this principle to free
speech retaliation, the Fifth Circuit has twice concluded that it
did not matter whether the individual bringing the suit made the
constitutionally protected speech if the only alleged injury was to
the company and not to himself.
Duran, 240 F. App’x at 642-43
(citing Pagan, 448 F.3d at 28-30); Garzes, 281 F. App’x at 325-26
(applying Duran to similar facts).
Because Plaintiffs neither identify any damages individually
attributable
to
Al-Fouzan
nor
challenge
Defendants’
standing
argument, Plaintiff Al-Fouzan has not met his burden to prove that
he has standing to bring the free speech retaliation claim.
8
C.
42 U.S.C. § 1983
Plaintiffs seek relief against the Individual Defendants under
42 U.S.C. § 1983 for alleged violations of their constitutional
rights.
Section 1983 does not create substantive rights, but
rather is merely a procedural rule that provides a private cause of
action for redressing a violation of federal law or “vindicating
federal rights elsewhere conferred.”
Albright v. Oliver, 114 S.
Ct. 807, 811 (1994) (quoting Baker v. McCollan, 99 S. Ct. 2689,
2694
n.
3
(1979)).
“Thus,
an
underlying
constitutional
or
statutory violation is a predicate to liability under § 1983.”
Johnston v. Harris Cty. Flood Control Dist., 869 F.2d 1565, 1574
(5th Cir. 1989).
To state a viable claim under § 1983, “a
plaintiff must (1) allege a violation of rights secured by the
Constitution or laws of the United States and (2) demonstrate that
the alleged deprivation was committed by a person acting under
color of state law.”
Leffall v. Dallas Indep. Sch. Dist., 28 F.3d
521, 525 (5th Cir. 1994).
claims
with
specific
A § 1983 plaintiff must support his
facts
demonstrating
a
constitutional
deprivation and may not simply rely on conclusory allegations.
Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995).
9
D.
Claims13
1.
Free Speech Retaliation
In Count I of the First Amended Complaint, Plaintiffs allege
a violation of their First Amendment free speech rights based on
retaliation by the Individual Defendants.14
Nowhere in Plaintiffs’
complaint do they allege that they made any protected speech.
Plaintiffs instead contend that one or more of the Defendants
believed that they had spoken to Representative Lee and/or to
others and retaliated against Plaintiffs based on that belief.15
The Individual Defendants allegedly retaliated against Plaintiffs
by falsely representing that Plaintiffs were “delinquent in their
13
Defendants argue that the TDHCA should be dismissed from the
suit because Plaintiffs do not name the TDHCA in any of their
claims and therefore have not stated a claim upon which relief can
be granted against that Defendant. Furthermore, Defendants assert
that the TDHCA is a political subdivision of the State of Texas
and, as such, is not subject to suit under § 1983.
Plaintiffs
concede the point and assert that their claims are only against the
Individual Defendants and not the State of Texas. Document No. 39
at 1. Therefore, TDHCA is DISMISSED on Plaintiffs’ acknowledgment
that it was improvidently named as a Defendant.
14
Document No. 27 at 12-14.
15
For example, Plaintiffs state that “the Headquarters Staff
defendants began to believe that persons affiliated with HESTON,
including but not limited to plaintiff AL-FOUZAN had spoken to Rep.
Lee and others about TDHCA” and “The Headquarters Staff defendants
retaliated against HESTON and AL-FOUZAN based on these beliefs . .
. .” Id. at ¶¶ 71-72; see also id. at ¶¶ 31, 34, 49, 50, 52-54.
10
contractual
performance
and
in
terminating
the
AHPP
Grant
Contract.”16
To recover on a First Amendment retaliation claim, Plaintiffs
must show that: (1) they suffered an adverse employment action;
(2) their speech involved a matter of public concern; (3) their
interest in commenting on matters of public concern outweighs the
public employer’s interest in efficiency; and (4) the speech
motivated the adverse employment action.
F.3d 282, 286-87 (5th Cir. 2009).
DePree v. Saunders, 588
In other words, “[t]o prevail,
[plaintiff] must show that she engaged in protected conduct and
that it was a motivating factor in her discharge.”
Beattie v.
Madison Cty. Sch. Dist., 254 F.3d 595, 601 (5th Cir. 2001).
An
independent contractor can bring a First Amendment retaliation
claim, just as a public employee could.
Board of Cty. Comm’rs v.
Umbehr, 116 S. Ct. 2342, 2346 (1996); O’Hare Truck Service, Inc. v.
City of Northlake, 116 S. Ct. 2353, 2359 (1996).
In Jones v. Collins, the Fifth Circuit considered a free
speech retaliation claim brought by a Plaintiff who denied making
the speech that was the basis of the retaliatory conduct.
1048 (5th Cir. 1998).
132 F.3d
The Court stated that, “Assuming for the
sake of argument that Jones’s expression as perceived by Collins
would have been subject to constitutional protection . . . ,
retaliation based on this perception, in the absence of any actual
16
Id. at 13.
11
expression by Jones that is subject to First Amendment protection,
does not constitute a constitutional violation.”
Id. at 1053; see
also Barkoo v. Melby, 901 F.2d 613 (7th Cir. 1990); Fogarty v.
Boles, 121 F.3d 886 (3rd Cir. 1997).
Plaintiffs are correct that
in Jones the plaintiff denied making speech, while here Plaintiffs
neither admit nor deny making speech.
However, as Plaintiffs’
numerous citations on what constitutes constitutionally protected
speech on a matter of public concern indicate, it is essential to
know what is the alleged content or subject matter of the speech in
order
to
analyze
Constitution.
whether
that
speech
is
protected
by
the
With no allegation specifying what was the claimed
protective speech that was made, Plaintiffs’ allegation of free
speech retaliation fails to state a claim upon which relief can be
granted.
2.
Fifth Amendment and 42 U.S.C. § 1983 Due Process Claims
Plaintiffs’ Counts II and IV each vaguely assert a denial of
due process: Count II cites the Fifth Amendment of the United
States
Constitution,
and
Count
IV
boils
down
to
its
title,
“Violation of 42 U.S.C. § 1983 by deprivation of due process by the
headquarters
staff
defendants
in
their
personal
capacity.”17
Defendants point out, and Plaintiffs concede, that it is the
Fourteenth Amendment, rather than the Fifth, that would apply to
17
Document No. 27 at 14, 14-17.
12
state actors and should be the basis for pleading a due process
claim.18
Furthermore, as discussed above, Section 1983 is not
itself a source of substantive rights but merely provides a method
for vindicating federal rights conferred elsewhere.
S. Ct. at 811.
Albright, 114
Plaintiffs’ Count IV is their second attempt to
plead some kind of a § 1983 claim for a violation of due process,
presumably premised on cancellation of the contract Heston had with
TDHCA, although Plaintiffs have pled no additional facts to support
such a claim.
The Supreme Court “consistently has held that some form of
hearing is required before an individual is finally deprived of a
property interest. . . . The fundamental requirement of due process
is the opportunity to be heard at a meaningful time and in a
meaningful manner.” Mathews v. Eldridge, 96 S. Ct. 893, 902 (1976)
(citations and quotation marks omitted).
Due process requires, at
a minimum, “that deprivation of life, liberty or property by
adjudication be preceded by notice and opportunity for hearing
appropriate to the nature of the case.” Mullane v. Central Hanover
Bank & Trust Co., 70 S. Ct. 652, 656-57 (1950); see also Cleveland
Bd. of Educ. v. Loudermill, 105 S. Ct. 1487,
1493 (1985) (“‘[T]he
root requirement’ of the Due Process Clause [is] ‘that an individual be given an opportunity for a hearing before he is deprived of
any
significant
18
property
interest.’”
(emphasis
in
Document No. 32 at 3; Document No. 39 at 10.
13
original))
(quoting
Boddie
v.
Connecticut,
91
S.
Ct.
780,
786
(1971));
Hatteras v. Sw. Bell Tel. Co., 774 F.2d 1341, 1343 (5th Cir. 1985)
(“Generally, a hearing must be made available before the state or
its agents deprive a citizen of her property.”). “[T]he timing and
nature
of
the
required
hearing
will
depend
accommodation of the competing interests involved.
on
appropriate
These include
the importance of the private interest and the length or finality
of the deprivation, the likelihood of government error, and the
magnitude of the government interest involved.” Hatteras, 774 F.2d
at 1343 (quoting Logan v. Zimmerman Brush Co., 102 S. Ct. 1148,
1157 (1982)); see also Mathews, 96 S. Ct. 893 (outlining balancing
approach for determining the “specific dictates of due process”).
In Count IV of Plaintiffs’ complaint--although not in Count
II--Plaintiffs state that the AHPP Grant Contract created a vested
property interest for Heston.19
Defendants do not contest that a
contract creates a property interest for Heston under Texas law.20
However, Plaintiffs do not allege what process, if any, was given
or available to Heston or what process should have been available
but was denied to Heston regarding the contract and its ultimate
termination.21 Plaintiffs allege that the “TDHCA Headquarters Staff
contrived to create and to perpetuate the knowingly false claim
19
Document No. 27 at 16.
20
Document No. 32 at 10.
21
Id. at 10-11.
14
that HESTON was not in compliance with contract requirements and
that HESTON refused to so comply.”22
They also claim that HESTON
was required “to undergo multiple, unnecessarily demanding audits,
in the apparent hope that some reason could be found to claim
HESTON was delinquent in its contractual performance, but HESTON
passed all such audits.”23
And finally, Plaintiffs assert that:
TDHCA headquarters’ staff through a wrongful manipulation
of public authority disciplined to a predetermined result
and without regard for lawful obligation to the contrary,
prevailed upon TDHCA to ultimately refuse to pay HESTON
for the work completed under the Contract, instead
terminating the Contract on the pretext that HESTON was
in default.24
As observed above, however, nowhere in Counts II or IV or elsewhere
in the pleading do Plaintiffs allege what, if any, process was
given or available to them, or what process should have been given
or made available but was denied to them, and they have therefore
failed to state a plausible claim for relief.
See Tamfu v.
Natarajan, Civ. A. No. SA-11-CA-758-FB, 2011 WL 6328697, at *8
(W.D. Tex. Dec. 15, 2011) (dismissing complaint alleging procedural
due process violations because plaintiff “‘failed to allege with
particularity what processes he was due . . . from the [defendant]
22
Document No. 27 at 11. Plaintiffs repeat this assertion,
in slightly different terms in paragraphs 59-61. Id.
23
Id.
24
Id. at 12.
15
that he did not receive.’” (quoting Brown v. Texas A&M Univ., 804
F.2d 327, 334 (5th Cir. 1986))).
3.
Fifth Amendment Equal Protection Claim
Plaintiffs’ Count III conclusorily asserts a violation of the
Equal Protection Clause of the Fifth Amendment.
As with due
process,
vehicle
the
Fourteenth
Amendment
is
the
proper
bringing such a claim against state officials.
for
Plaintiffs allege
that Defendants violated the Equal Protection Clause by subjecting
them to different treatment from others similarly situated without
a legitimate basis.25
“To state a claim under the Equal Protection Clause, a § 1983
plaintiff
must
allege
that
a
state
actor
intentionally
discriminated against the plaintiff because of membership in a
protected class.”
Williams v. Bramer, 180 F.3d 699, 705 (5th Cir.
1999) (quoting Johnson v. Morel, 876 F.2d 477, 479 (1989)).
To
bring a “class of one” claim under the equal protection clause, a
plaintiff must allege that he has been “intentionally treated
differently from others similarly situated and that there is
no rational basis for the difference in treatment.”
Willowbrook v. Olech, 120 S. Ct. 1073, 1074 (2000).
Vill. of
“Because the
clause’s protection reaches only dissimilar treatment among similar
people, if the challenged government action does not appear to
25
Document No. 27 at 15.
16
classify or distinguish between two or more relevant persons or
groups, then the action does not deny equal protection of the laws.
Mahone v. Addicks Util. Dist. of Harris Cty., 836 F.2d 921, 932
(5th Cir. 1988).
Plaintiffs do not state any facts to show that they were
treated differently from others similarly situated, nor do they
even specify what treatment was discriminatory.
Perhaps they are
referring to the termination of Plaintiffs’ contract but even this
is not clear from the pleadings.
“Factual allegations must be
enough to raise a right to relief above the speculative level
. . . .”
Twombly, 127 S. Ct. at 1965.
Plaintiffs have wholly
failed to state a claim for a violation of the Equal Protection
Clause under the Fourteenth Amendment.
III.
Order
For the foregoing reasons, it is
ORDERED that Defendants’ 12(b)(1) Motion to Dismiss for lack
of standing Naji Al-Fouzan’s claim for free speech retaliation is
GRANTED, and Plaintiff Al-Fouzan’s free speech retaliation claim is
DISMISSED for lack of jurisdiction.
ORDERED
that
Defendants’
It is further
12(b)(6)
Motion
to
Dismiss
for
Failure to State a Claim (Document No. 32) is in all things GRANTED
with respect to Defendants Michael Gerber, Martin Rivera, Jr.,
Marisa Callan, and Timothy Irvine, and Plaintiffs’ claims are
17
DISMISSED with prejudice.
and
Community
Affairs
Defendant Texas Department of Housing
is
DISMISSED
as
a
party
that
was
improvidently named by Plaintiffs as a Defendant when Plaintiffs
insist they have no claim against TDHCA.26
The Clerk will enter this Order and provide a correct copy to
all parties.
SIGNED in Houston, Texas, on this 15th day of March, 2012.
____________________________________
EWING WERLEIN, JR.
UNITED STATES DISTRICT JUDGE
26
This is Plaintiffs’ second effort to present a complaint
upon which relief can be granted, and Plaintiffs made this second
effort after having had the benefit of Defendants’ initial Motion
to Dismiss, which pointed out many of the same inadequacies that
Plaintiffs reiterated in their second effort. Plaintiffs in their
Response to the present Motion to Dismiss do not represent that
they can materially or substantively improve their complaint if
given the chance to file a third complaint, nor have they presented
the Court with any proposed amendment. They do ask to amend merely
“to correct any minor errors (such as replacing ‘Fifth Amendment’
with ‘Fourteenth Amendment’).” Document No. 39 at 11. The Court
has examined Plaintiffs’ First Amended Complaint as if those
corrections already have been made. It would therefore be futile
to permit Plaintiffs to file yet another complaint and their
request further to amend is therefore DENIED. See, e.g., Goldstein
v. MCI WorldCom, 340 F.3d 238, 254 (5th Cir. 2003); McKinney v.
Irving Indep. Sch. Dist., 309 F.3d 308, 315 (5th Cir. 2002).
18
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