United States Court of Appeals

for the Fifth Circuit ____________

No. 24-20033

Summary Calendar

____________

Selena E. Mcdade; Kiarra A. Farwell; Spencer Farwell; 

Ciarra S. Farwell; D’Andrea A. Mcdade Farwell, 

Plaintiffs—Appellants,

versus

Fountains at Tidwell Limited; Issac Matthews; Hittig 

Management Corporation; Walter Barry Kahn; Joshua 

R. Flores; Bristalyn Daniels, 

Defendants—Appellees.

______________________________

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:23-CV-2118

______________________________

Before Davis, Ho, and Ramirez, Circuit Judges.

Per Curiam:*

Plaintiff-Appellant, Spencer Farwell, proceeding pro se and in forma 

pauperis, filed a civil rights complaint on behalf of himself, his wife, Selena 

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* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

May 20, 2024

Lyle W. Cayce

Clerk

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Mcdade, and children,1 against the owners and managers of their apartment 

complex (the “Landlord Defendants”), Joshua Flores, the Landlord 

Defendants’ private attorney in a prior state court proceeding (collectively,

“Landlord and Attorney Defendants”), and Bristalyn Daniels, a clerk at the

165th Judicial District Court of Harris County, Texas (“165th JDC”). 

Farwell’s operative complaint asserts a variety of claims against the above 

Defendants all stemming from a prior personal injury suit filed against the 

Landlord Defendants in the 165th JDC.

2 Specifically, Farwell asserts that the 

Landlord Defendants violated his family’s right to a “safe and healthy 

environment” by subjecting them “to a cruel and unusual living condition.” 

He further contends that in the state court proceedings, the Landlord 

Defendants’ attorney fabricated evidence and the state clerk removed 

exhibits from the record. He alleges these actions were part of a conspiracy 

to deprive him and his family of due process. 

The magistrate judge recommended the dismissal of Farwell’s 42 

U.S.C. § 1983 complaint under Federal Rule of Civil Procedure 12(b)(6). 

The magistrate judge concluded that Farwell failed to state a § 1983 claim 

against the Landlord and Attorney Defendants because they are not state 

actors and that his claims against Daniels were time-barred. The district 

_____________________

1 Kiarra A. Farwell, Spencer Farwell, Ciarra S. Farwell, and D’Andrea A. Mcdade 

Farwell.

2 Plaintiff-Appellant Selena Mcdade sued the Landlord Defendants alleging that 

mold in her apartment was making her sick. The trial court granted the Landlord 

Defendants’ motion for summary judgment, and Texas’s Fourteenth Court of Appeals 

affirmed the summary judgment award. McDade v. Fountains at Tidwell, Ltd., No. 14-21-

400-CV, 2022 WL 6602885 (Tex. App.—Houston [14th Dist.] Oct. 11, 2022, pet. denied). 

On appeal, the Landlord Defendants do not raise the argument that Farwell’s claims 

against them are barred by res judicata.

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court adopted the magistrate judge’s reports and recommendations over 

Farwell’s objections. Farwell filed a timely notice of appeal. 

“We review de novo the district court’s order on a motion to dismiss 

for failure to state a claim under Rule 12(b)(6).”3

 On appeal, Farwell does 

not challenge the district court’s dismissal of his claims against the Landlord 

and Attorney Defendants on the basis that they are not state actors for 

purposes of a § 1983 action. However, Farwell’s brief makes a passing 

allegation that Daniels, who is a state clerk, “enter[ed] into a conspiracy with 

the defendant” to violate Farwell’s due process rights. Although we 

generally do not consider private individuals state actors for purposes of 

§ 1983, “a private individual may act under color of law in certain 

circumstances, such as when a private person is involved in a conspiracy or 

participates in joint activity with state actors.”4 Even liberally construing 

Farwell’s assertion that Daniels conspired with an unnamed defendant, that 

conclusory allegation, unaccompanied by any reference to a factual allegation

showing such an agreement, is insufficient to plausibly assert that the 

Landlord and Attorney Defendants conspired with a state actor.

5

 The 

district court thus correctly dismissed Farwell’s § 1983 claims against the 

Landlord and Attorney Defendants.

As to Farwell’s claims against Daniels, Farwell maintains that she 

“tampered with evidence by removing records from the docket order.” But 

Farwell does not dispute that Daniels’s alleged conduct occurred more than 

two years before he filed the instant action and thus is barred by Texas’s two-

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3 In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).

4 Ballard v. Wall, 413 F.3d 510, 518 (5th Cir. 2005).

5 See Arsenaux v. Roberts, 726 F.2d 1022, 1023–24 (5th Cir. 1982).

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year limitations period applied to § 1983 claims.6 Although we liberally 

construe pro se briefs, “we also require that arguments must be briefed to be 

preserved.”7

 By failing to brief the issue of timeliness, Farwell has 

abandoned any challenge to the district court’s dismissal of his claims against 

Daniels.8 

For the first time on appeal, Farwell argues that because the court 

below did not understand his claims, it erred by not holding a hearing before 

dismissing his claims. As an initial matter, Farwell did not request a hearing 

before the district court. Instead, he was given the opportunity to present his 

case through numerous written submissions to the court. Moreover, the 

district court was not required to hold a hearing before dismissing his 

complaint under Rule 12(b)(6).9 Thus, the district court did not abuse its 

discretion by dismissing Farwell’s complaint without holding a hearing.10 

Finally, despite Farwell’s conclusory assertion to the contrary, the district 

court construed his filings, to the extent discernible, liberally under the 

proper standard applied to pro se briefs.

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6 See King-White v. Humble Indep. Sch. Dist., 803 F.3d 754, 759 (5th Cir. 2015) 

(recognizing “that Texas’s two-year statute of limitations for personal injury actions 

applies to § 1983 claims”); Tex. Civ. Prac. & Rem. Code § 16.003.

7 Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993) (internal quotation marks 

and citation omitted).

8 Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).

9 See Greene v. WCI Holdings Corp., 136 F.3d 313, 316 (2d Cir. 1998) (per curiam)

(“Every circuit to consider the issue has determined that the ‘hearing’ requirements of 

Rule 12 and Rule 56 do not mean that an oral hearing is necessary, but only require that a 

party be given the opportunity to present its views to the court.”).

10 See Sanders v. Agnew, 306 F. App’x 844, 849 (5th Cir. 2009) (per curiam) 

(unpublished) (holding that a magistrate judge did not abuse his discretion by denying the 

plaintiff’s motion for an oral hearing on a summary judgment motion).

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Based on the foregoing, the district court’s judgment is 

AFFIRMED.

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