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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

JANE DOE AW,

Plaintiff

v.

BURLESON COUNTY,

Defendant

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Case No. 1:20-CV-126-SH

ORDER

Before the Court are Defendant’s Motion for Reconsideration of Court’s Order Denying 

Burleson County’s Motion for Summary Judgment and Motion to Dismiss Burleson County 

Pursuant to the Dismissal of Sutherland, in His Official Capacity, filed April 1, 2021 (Dkt. 83); 

Plaintiff’s Response to Burleson County’s Motion for Reconsideration and Motion to Dismiss, and 

Leave to File Response under Seal, filed April 23, 2021 (Dkt. 86); Defendant Burleson County’s 

Reply to Plaintiff’s Response to the Motion for Reconsideration and Motion to Dismiss, filed

April 30, 2021 (Dkt. 91); Plaintiff’s Opposed Supplement to Response to Motion to Reconsider 

Dismissal, filed May 3, 2021 (Dkt. 92); and Defendant Burleson County’s Reply to Plaintiff’s 

Opposed Supplement to Response to Motion to Reconsider, filed May 10, 2021 (Dkt. 93).

I. Background

Plaintiff Jane Doe AW, a former criminal clerk in the Burleson County Attorney’s Office, 

alleges that former Burleson County Judge Mike Sutherland used his power and authority as a 

judge to sexually assault her on multiple occasions. Plaintiff’s Declaration, Dkt. 49-1. Doe

contends that she did not report the assaults to the police or Burleson County officials because she 

was afraid that no action would be taken against Sutherland and she would lose her job. Id. at 3. 

Doe alleges that she was terminated from her job soon after she complained to Sutherland about 

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his abuse. Id. at 6. Sutherland subsequently resigned from his position as County Judge.

Defendant’s Answer, Dkt. 45 ¶ 56.

In her First Amended Complaint, Doe alleged (1) claims under 42 U.S.C. § 1983 against 

Sutherland in his individual capacity and Burleson County; (2) sexual assault against Sutherland; 

(3) vicarious liability against Funky Junky, a restaurant owned by Sutherland; and (4) intentional 

infliction of emotional distress against Sutherland and Funky Junky. Dkt. 12. Defendants moved 

to dismiss. Dkts. 17, 19. The District Court denied the motion as to Defendants Sutherland and 

Burleson County, but dismissed with prejudice all of Doe’s claims against Funky Junky for failure 

to state a claim under Federal Rule of Civil Procedure 12(b)(6). Dkt. 42.

On November 6, 2020, Defendant Burleson County moved for summary judgment on Doe’s 

Section 1983 claim, asserting that she had no evidence of any policy or custom established by the 

County that violated her constitutional rights. Dkt. 47. After Burleson County filed its motion, Doe 

settled with Defendant Sutherland, and the District Court dismissed with prejudice the claims 

against Sutherland and Funky Junky. Dkt. 53. Doe and Sutherland did not provide a copy of the 

settlement agreement to Burleson County due to a confidentiality provision. Dkt. 83 at 3.

On February 12, 2021, the Magistrate Court issued a Report and Recommendation to deny 

summary judgment, finding that there was a factual dispute as to whether Sutherland, as 

policymaker for Burleson County, created an official custom or policy sanctioned by the county 

by sexually harassing female employees. Dkt. 55. The District Court adopted the Report and 

Recommendation and denied summary judgment on March 3, 2021. Dkt. 57. On March 26, 2021, 

the parties consented to trial before a United States Magistrate Judge. Dkt. 79. Accordingly, this 

case was reassigned to the undersigned for all proceedings. Dkt. 81. 

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Burleson County now moves for reconsideration of the Court’s order denying summary 

judgment, arguing that the language of the settlement agreement between Doe and Sutherland 

resolved Doe’s remaining claim against Burleson County.

II. Legal Standards

A. Reconsideration

The Federal Rules of Civil Procedure do not expressly recognize a motion for reconsideration. 

Cressionnie v. Hample, 184 F. App’x 366, 369 (5th Cir. 2006). Rule 54(b), however, provides that

an order adjudicating fewer than all claims among all parties “may be revised at any time” before 

entry of a final judgment. Under Rule 54, a district court has the inherent procedural power to 

reconsider and reverse its decision for any reason it deems sufficient. McClendon v. United States, 

892 F.3d 775, 781 (5th Cir. 2018). An order denying summary judgment is interlocutory, so the 

trial court is free to reconsider its decision, even in the absence of new evidence or an intervening 

change in the law. Baisden v. I’m Ready Prods., Inc., 693 F.3d 491, 506 (5th Cir. 2012).

B. Summary Judgment

Summary judgment shall be rendered when the pleadings, the discovery and disclosure 

materials, and any affidavits on file show that there is no genuine dispute as to any material fact 

and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex 

Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 

2007). Once the moving party has met its initial burden to demonstrate the absence of a genuine 

issue of material fact, the party opposing the motion must come forward with competent summary 

judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co. v. Zenith 

Radio Corp., 475 U.S. 574, 586 (1986). If the nonmoving party fails to make a showing sufficient 

to establish the existence of an element essential to its case and on which it will bear the burden of 

proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.

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III. Analysis

In its previous motion, Burleson County contended that it was entitled to summary judgment 

on Doe’s Section 1983 claim because Sutherland was not a policymaker for the County and there 

was no evidence of a nexus between any county policy or practice and the violation of Doe’s 

constitutional rights. Dkt. 47 at 6-9. The Court found that Sutherland was a policymaker for 

Burleson County and that there was a factual dispute as to whether his actions created an official 

custom or policy sanctioned by the County, which precluded a grant of summary judgment. 

Dkt. 55 at 6-9.

Burleson County now asserts that the Court should grant summary judgment because Doe 

released her only claim against the County when she settled her official capacity claim against 

Sutherland. Dkt. 83 at 3-4. Doe argues that her claims against Burleson County have not been 

released because (1) Sutherland was not acting in his official capacity when serving as official 

policymaker for Burleson County, and (2) Sutherland was sued only in his individual capacity. 

Dkt. 86 at 2-4.

A. Doe Sued Sutherland in His Individual and Official Capacities

Official capacity suits are a way to plead an action against an entity of which an officer is an 

agent. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978). A plaintiff is not required to 

plead the capacity in which a person is sued except where required to show jurisdiction. Robinson 

v. Hunt Cnty., 921 F.3d 440, 446 (5th Cir. 2019). “This principle, however, does not give a plaintiff 

free rein to change her capacity allegations at any time in the litigation.” Id. To determine whether 

a defendant is being sued in his official capacity, the Court should examine the plaintiff’s 

allegations in her complaint and the course of proceedings. Kentucky v. Graham, 473 U.S. 159, 

167 n.14 (1985); Parker v. Graves, 479 F.2d 335, 336 (5th Cir. 1973).

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In her First Amended Complaint, Doe refers to Sutherland as “the Burleson County Judge” 

who was “acting under color of law” and as “final policymaker” for Burleson County. Dkt. 12 

¶¶ 1, 2, 4, 11, 76, 89, 97, 99, 101, 102, 104. Doe also has made statements in filings throughout

these proceedings confirming that she sued Sutherland in both his individual and official 

capacities. See, e.g., Response to Defendants’ Motion to Dismiss, Dkt. 24 ¶ 41 (stating that no 

limitations issue exists “as it relates to federal civil rights claims against Burleson County or 

Sutherland (both in his individual capacity and official capacity)”); Response to Defendant 

Burleson County’s Summary Judgment Motion, Dkt. 49 ¶ 59 (“Michael Sutherland . . . was acting 

in his official capacity as a county policymaker, when he sexually assaulted Jane Doe in his county 

office.”); id. ¶ 63 (“Sutherland was an official policymaker for the county, [who] had adopted a 

custom of sexually harassing the women employees at the County Attorney’s office, and he 

sexually assaulted Jane Doe.”). 

The complaint and the course of the proceedings thus show that Doe sued Sutherland in both 

his individual and official capacities. Because Doe’s only claim against Burleson County is a 

Monell claim arising from Sutherland’s status as policymaker for the County, they also show that 

Doe’s claim against Burleson County is her official capacity claim against Sutherland. Dkt. 12 

¶¶ 101-105.

B. The Settlement Agreement

The confidential settlement agreement between Doe and Sutherland releases all claims against 

“Mike Sutherland in his individual capacity and in all his capacities as Burleson County Judge.”

Dkt. 85 ¶ 1.1.2. This language necessarily includes Doe’s official capacity claim.

When Doe released her official capacity claim against Sutherland, she also released her claim

against Burleson County because the claims are one and the same. See Castro Romero v. Becken, 

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256 F.3d 349, 355 (5th Cir. 2001) (stating that official capacity claims “duplicate claims against 

the respective governmental entities themselves”); Guillory v. Beaumont Indep. Sch. Dist., 

No. 9:07-CV-163-TH, 2011 WL 1898939, at *2 (E.D. Tex. May 12, 2011) (finding that school 

district’s settlement agreement resolved official capacity claim against teacher because claim is 

treated as against the governmental entity itself). 

Having determined that Doe released and the District Court dismissed her only claim against 

Burleson County, there is no issue of fact left to be decided. Accordingly, the Court must enter 

summary judgment against Doe.

IV. Order

Defendant’s Motion for Reconsideration of Court’s Order Denying Burleson County’s Motion 

for Summary Judgment and Motion to Dismiss Burleson County Pursuant to the Dismissal of 

Sutherland, in His Official Capacity (Dkt. 83) is GRANTED.

IT IS FURTHER ORDERED that Defendant Burleson County’s Motion for Summary 

Judgment (Dkt. 47) is GRANTED and Plaintiff’s First Amended Complaint (Dkt. 12) is 

DISMISSED WITH PREJUDICE. The Court will enter final judgment in a separate order. 

IT IS FURTHER ORDERED that Defendant’s Motion in Limine (Dkt. 64) and Plaintiff Jane 

A.W. Doe’s Motion in Limine (Dkt. 71) are DISMISSED AS MOOT.

SIGNED on August 24, 2021.

SUSAN HIGHTOWER

UNITED STATES MAGISTRATE JUDGE

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