UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

SHEILA OWENS COLLINS, M.D.,

Plaintiff

v.

TEXAS DEPARTMENT OF FAMILY 

AND PROTECTIVE SERVICES; 

MS. JAIMIE MASTERS, EXECUTIVE 

DIRECTOR OF ADULT PROTECTIVE

in both her OFFICIAL AND 

INDIVIDUAL CAPACITIES and

MS. LYDIA BIAS, SUPERVISOR, 

INDIVIDUALLY; and AISHA ROSS,

Defendants

§

§

§

§

§

§

§

§

§

§

§

§

§

§

 

 Case No. 1:20-CV-367-LY

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE LEE YEAKEL

UNITED STATES DISTRICT JUDGE

Before the Court are Defendant Texas Department of Family and Protective Services’ 

Amended Motion to Dismiss, filed October 12, 2020 (Dkt. 20); Defendant Aisha Ross’ Motion to 

Dismiss, filed October 13, 2020 (Dkt. 21); Defendant Jamie Masters’ Motion to Dismiss, filed 

December 21, 2020 (Dkt. 30); Plaintiff’s Opposed Late Motion to for Leave of Court to File

Plaintiff’s Second Amended Complaint, filed January 19, 2021 (Dkt. 35); and the associated 

response and reply briefs. The District Court referred the motions and related filings to the 

undersigned Magistrate Judge for Report and Recommendation, pursuant to 28 U.S.C. § 

636(b)(1)(B), Federal Rule of Civil Procedure 72, and Rule 1(d) of Appendix C of the Local Rules 

of the United States District Court for the Western District of Texas.

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I. Background

In September 2017, the Texas Adult Protective Services (“APS”), a division of the Texas 

Department of Family and Protective Services (“TDFPS”), began an investigation of Plaintiff 

Sheila Owens Collins, M.D., after it received a complaint that Plaintiff was financially exploiting 

her elderly mother. After the initial investigation, TDFPS issued a finding that there was reason to 

believe that Plaintiff engaged in financial exploitation of her mother. Plaintiff requested review of 

the decision with the Houston office of APS, and the finding that Plaintiff engaged in financial 

exploitation of her mother was changed to “unable to determine” on October 24, 2018. 

Plaintiff alleges that her niece, Aisha Ross, falsely filed the complaint of abuse with TDFPS in 

an effort to gain control of her elderly mother’s finances. Plaintiff further alleges that TDFPS and 

the agency defendants violated her constitutional rights in its investigation and findings. In 

addition, Plaintiff complains that she must report the findings to state medical boards and other 

governmental agencies. 

On April 7, 2020, Plaintiff filed this civil rights suit under 42 U.S.C. § 1983 against TDFPS;

Jamie Masters, the Executive Director of TDFPS; Lydia Bias, the supervisor of the Houston office 

of APS; and Ross (collectively, “Defendants”). In her First Amended Complaint, Plaintiff alleges

(1) First and Fourteenth Amendment claims against TDFPS and the individual agency defendants; 

(2) business disparagement, tortious interference with a contract, and intentional infliction of 

emotional distress against Ross; and (3) a civil conspiracy claim under 42 U.S.C. § 1985 against 

all individual defendants.1 Plaintiff seeks monetary damages, declaratory and injunctive relief, and 

attorney’s fees and costs.

1 Dkt. 15. The District Court dismissed Defendants’ original motions to dismiss as moot after granting

Plaintiff leave to file her First Amended Complaint. Dkt. 14. 

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In response, Defendants TDFPS, Masters, and Ross all have filed Motions to Dismiss. Plaintiff

opposes the Motions and seeks leave to file a second amended complaint. On January 5, 2021, the 

undersigned granted TDFPS’ Motion to Stay Discovery until the District Court rules on 

Defendants’ Motions to Dismiss. Dkt. 34. The Court makes the following recommendations on 

the pending motions. 

II. Legal Standards

TDFPS and Masters move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), 

asserting that they are immune from Plaintiff’s claims. In the alternative, Masters moves to dismiss 

for failure to state a claim pursuant to Rule 12(b)(6). Ross also seeks dismissal under Rule 12(b)(6).

A. Rule 12(b)(1)

Federal district courts are courts of limited jurisdiction and may exercise only such jurisdiction 

as is expressly conferred by the Constitution and federal statutes. Kokkonen v. Guardian Life Ins. 

Co. of Am., 511 U.S. 375, 377 (1994). A federal court has subject matter jurisdiction over civil 

cases “arising under the Constitution, laws, or treaties of the United States,” and over civil cases 

in which the amount in controversy exceeds $75,000, exclusive of interest and costs, and in which 

diversity of citizenship exists between the parties. 28 U.S.C. §§ 1331, 1332.

Federal Rule of Civil Procedure 12(b)(1) allows a party to assert lack of subject matter 

jurisdiction as a defense to suit. A federal court properly dismisses a case for lack of subject matter 

jurisdiction when it lacks the statutory or constitutional power to adjudicate the case. Home 

Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). “The burden 

of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.” Ramming v. 

United States, 281 F.3d 158, 161 (5th Cir. 2001). “Ultimately, a motion to dismiss for lack of 

subject matter jurisdiction should be granted only if it appears certain that the plaintiff cannot 

prove any set of facts in support of his claim that would entitle plaintiff to relief.” Id. In ruling on 

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a Rule 12(b)(1) motion, the court may consider (1) the complaint alone; (2) the complaint plus 

undisputed facts evidenced in the record; or (3) the complaint, undisputed facts, and the court's 

resolution of disputed facts. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008).

“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 any attack on the merits.” 

Ramming, 281 F.3d at 161.

B. Rule 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss an action for failure 

to state a claim on which relief can be granted. In deciding a Rule 12(b)(6) motion to dismiss for 

failure to state a claim, the court “accepts all well-pleaded facts as true, viewing them in the light 

most favorable to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 

2007) (internal quotation marks omitted). The Supreme Court has explained that a complaint must 

contain sufficient factual matter “to state a claim to relief that is plausible on its face.” Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 

(2007)). “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.” 

Ashcroft, 556 U.S. at 678. 

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does 

not need detailed factual allegations, a plaintiff’s obligation to provide 

the grounds of his entitlement to relief requires more than labels and 

conclusions, and a formulaic recitation of the elements of a cause of 

action will not do. Factual 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, 550 U.S. at 555 (cleaned up). 

When considering a motion to dismiss for failure to state a claim, courts do not look beyond 

the face of the pleadings or refer to extrinsic evidence. See Spivey v. Robertson, 197 F.3d 772, 774 

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(5th Cir. 1999). The court’s review is limited to the complaint, any documents attached to the 

complaint, and any documents attached to the motion to dismiss that are central to the claim and 

referenced by the complaint. Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 

387 (5th Cir. 2010).

III. Analysis 

A. TDFPS’ Motion to Dismiss

Section 1983 provides a private cause of action against those who, under color of law, deprive 

a citizen of the United States of “any rights, privileges, or immunities secured by the Constitution 

and laws.” 42 U.S.C. § 1983. “Section 1983 is not itself a source of substantive rights, but merely 

provides a method for vindicating federal rights elsewhere conferred.” Albright v. Oliver, 510 U.S. 

266, 271 (1994) (quotations omitted). To state a claim under § 1983, a plaintiff must “(1) allege a 

violation of a right 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.” Moore v. 

Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000). 

Plaintiff alleges that TDFPS violated her First and Fourteenth Amendment rights in connection 

with its investigation and subsequent findings of abuse, neglect, and exploitation of Plaintiff’s 

mother. TDFPS argues that Plaintiff’s constitutional claims under § 1983 are barred by sovereign 

immunity. The Court agrees. 

“Sovereign immunity2is the privilege of the sovereign not to be sued without its consent.” Va. 

Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 253 (2011). Under the doctrine of sovereign 

2 The Eleventh Amendment makes explicit reference to the States’ immunity from suits “commenced or 

prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any 

Foreign State.” U.S. CONST. amend. XI. As a result, courts often refer to sovereign immunity as “Eleventh 

Amendment immunity.” However, as the Supreme Court has explained, “[t]he phrase is convenient 

shorthand but something of a misnomer, for the sovereign immunity of the States neither derives from, nor 

is limited by, the terms of the Eleventh Amendment.” Alden v. Maine, 527 U.S. 706, 713 (1999).

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immunity, federal courts “may not entertain a private person’s suit against a State,” unless the 

State has waived its sovereign immunity or Congress has abrogated it by legislation. Id. at 253-54. 

Sovereign immunity acts as a jurisdictional bar and applies “regardless of the nature of the relief 

sought.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984).

It is well-established that sovereign immunity applies not only to actions where a state itself is 

the named defendant, but also to actions against state agencies and state instrumentalities. Regents 

of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997). “[A] suit against an arm or instrumentality 

of the State is treated as one against the State itself.” Lewis v. Clarke, 137 S. Ct. 1285, 1293 (2017).

Similarly, where a lawsuit is brought against an employee in his or her official capacity, the suit 

may be barred by sovereign immunity. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985).

Here, “TDFPS is undisputedly a state entity that has not waived its immunity.” Thomas v. Tex.

Dep’t of Fam. & Prot. Servs., 427 F. App’x 309, 312 (5th Cir. 2011) (citing Stem v. Ahearn, 908 

F.2d 1, 3 (5th Cir. 1990)). Congress has not abrogated state sovereign immunity under § 1983. 

Spec’s Fam. Partners, Ltd. v. Nettles, 972 F.3d 671, 681 (5th Cir. 2020). Accordingly, TDFPS is 

entitled to sovereign immunity as to Plaintiff’s claims under § 1983. See id.

Relying on Ex Parte Young, 209 U.S. 123 (1908), Plaintiff argues that sovereign immunity 

does not protect TDFPS in this case because she seeks equitable relief in addition to monetary 

relief. Although the Ex Parte Young doctrine creates an exception to sovereign immunity

concerning suits for prospective relief against individual state actors, Ex Parte Young “has no 

application in suits against States and their agencies, which are barred regardless of the relief 

sought.” P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993).

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Accordingly, Plaintiff cannot rely on the Ex Parte Young exception and her claims against TDFPS 

must be dismissed for lack of jurisdiction under Rule 12(b)(1).

3

B. Jamie Masters’ Motion to Dismiss

Plaintiff alleges that Jamie Masters, Executive Director of TDFPS, also violated her First and 

Fourteenth Amendment rights in connection with the investigation and subsequent findings of 

abuse, neglect, and exploitation of Plaintiff’s mother. In addition, Plaintiff alleges that Masters

was involved in a civil conspiracy with the other individual defendants to deprive Plaintiff of her 

civil rights under 42 U.S.C. § 1985.

Masters argues that Plaintiff’s claims should be dismissed based on sovereign immunity, the 

Younger abstention doctrine, limitations, qualified immunity, and failure to state a claim. Plaintiff 

did not respond to any of these arguments. Instead, she filed a Motion for Leave to file a second 

amended complaint. Plaintiff’s Motion for Leave and proposed second amended complaint, 

however, also fail to substantively respond to any of Masters’ arguments for dismissal.4 The Court 

could grant the Motion to Dismiss as unopposed under Local Rule CV-7(e)(2), but addresses the 

merits of Masters’ arguments.

Sovereign immunity bars suits against state officials in their official capacity when “the state 

is the real, substantial party in interest.” Pennhurst, 465 U.S. at 101. “The state is the real party in 

interest if the decision rendered in a case would operate against the sovereign, expending itself on 

the public treasury, interfering with public administration, or compelling the state to act or to 

refrain from acting.” Id. Because state sovereign immunity has not been abrogated by § 1983, 

3 Because the Court finds that TDFPS is protected by sovereign immunity, the Court need not address 

TDFPS’ alternative arguments in support of its Motion to Dismiss. 

4 Plaintiff has dropped her civil conspiracy and equal protection claims from her proposed second amended 

complaint. See Dkt. 35 at 2. 

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Plaintiff cannot bring a damages claim against Masters in her official capacity. Nettles, 972 F.3d 

at 681. Thus, Plaintiff’s claim seeking monetary damages against Masters is barred by sovereign 

immunity.

Plaintiff also seeks injunctive relief against Masters. The Supreme Court’s holding in Ex parte 

Young serves as a limited exception to sovereign immunity and provides that a suit against a state 

officer in his or her official capacity can survive dismissal only where the suit alleges a continuing 

violation of federal law and seeks prospective injunctive relief. 209 U.S. at 155-56; see also 

Warnock v. Pecos Cnty., 88 F.3d 341, 343 (5th Cir. 1996). The Ex parte Young exception is narrow; 

it “applies only to prospective relief” and “does not permit judgments against state officers 

declaring that they violated federal law in the past.” P.R. Aqueduct, 506 U.S. at 146. Determining 

whether the exception applies involves “a straightforward inquiry into whether [the] complaint 

alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” 

Stewart, 563 U.S. at 255 (internal quotation marks omitted).

Here, Plaintiff seeks a declaration that Masters’ past conduct violated her constitutional rights 

and asks the Court to “issue a finding requiring APS to change the designation from unable to 

determine that abuse occurred to a designation abuse was ruled out.” Dkt. 15 ¶ 71. The injunctive 

relief she seeks focuses on past behavior but does not allege an “ongoing violation of federal law.” 

See Stewart, 563 U.S. at 255. Plaintiff therefore has not alleged a claim that falls within the Ex

parte Young exception, and her claims for injunctive and declaratory relief are barred by sovereign 

immunity. See Nettles, 972 F.3d at 681 (holding that Ex parte Young exception did not apply to 

liquor store chain operator’s § 1983 claim seeking declaration that TABC officials violated its 

rights and injunction prohibiting defendants from repeating acts that allegedly violated its rights, 

since operator focused on past behavior and did not allege ongoing violation of federal law).

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Masters also is immune from Plaintiff’s state constitutional claims. Ex parte Young allows only 

federal claims against state officials for prospective relief; it cannot be used to “instruct[ ] state 

officials on how to conform their conduct to state law.” Pennhurst, 465 U.S. at 106; Corn v. Miss. 

Dep’t of Pub. Safety, 954 F.3d 268, 275 (5th Cir.), cert. denied, — S. Ct. — , 2020 WL 6385842 

(Nov. 2, 2020) (mem.) (“[S]tate officials cannot be sued for violations of state law in federal court, 

even under the Ex Parte Young exception.”). Accordingly, Plaintiff’s state constitutional claims 

also should be dismissed.5

Based on the foregoing, the Court recommends that all of Plaintiff’s claims against Masters 

should be dismissed for lack of subject matter jurisdiction. 

C. Aisha Ross’ Motion to Dismiss

Plaintiff alleges that Ross was involved in a civil conspiracy with the other individual 

defendants to deprive Plaintiff of her civil rights under 42 U.S.C. § 1985. In addition, Plaintiff 

asserts state law claims of business disparagement, tortious interference with an existing contract, 

and intentional infliction of emotional distress. 

1. Civil Conspiracy

Plaintiff’s civil conspiracy claim under § 1985 fails because that statute applies only to 

allegations of race-based animus against federal officials. See Lockett v. New Orleans City, 607 

F.3d 992, 1002 (5th Cir. 2010) (stating that “the conspiracy must also have a racially based 

animus”); Benningfield v. City of Houston, 157 F.3d 369, 378 (5th Cir.1998) (“The Plaintiffs are 

5 Under Younger v. Harris, 401 U.S. 37 (1971), federal courts must refrain from considering requests for 

injunctive or declaratory relief based on constitutional challenges to ongoing state civil proceedings. See 

Bowling v. Roach, 816 F. App'x 901, 904 (5th Cir. 2020) (“Where Younger applies, federal courts must 

abstain if there is (1) an ongoing state judicial proceeding, which (2) implicates important state interests, 

and (3) provides an adequate opportunity to raise federal challenges.” (quoting Sprint Commc’ns, Inc. v. 

Jacobs, 571 U.S. 69, 81 (2013)). Thus, any of Plaintiff’s claims for injunctive or declaratory relief with 

regard to ongoing litigation in the state court are precluded by the Younger abstention doctrine.

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not federal officials and, therefore, their allegations fail to state a claim under § 1985(1).”). In her

response, Plaintiff “agrees that there is no plausible claim under Section 1985.” Dkt. 26 at 4. Thus, 

Plaintiff’s § 1985 claim should be dismissed.

To the extent that Plaintiff also pursues a civil conspiracy claim under § 1983, this claim cannot 

succeed. To state a cause of action pursuant to § 1983, the plaintiff must allege that defendants 

acted “under color of state law,” and that the defendants deprived the plaintiff of their 

constitutional rights. West v. Atkins, 487 U.S. 42, 48 (1988). For a private citizen such as Ross to 

be held liable under section 1983, the plaintiff must allege that the citizen conspired with or acted 

in concert with state actors. Priester v. Lowndes Cnty., 354 F.3d 414, 420 (5th Cir. 2004). To state 

an actionable conspiracy claim under § 1983, a plaintiff must allege: (1) an agreement between the 

private and public defendants to commit an illegal act, and (2) a deprivation of constitutional rights. 

Id. The Fifth Circuit has held that “mere conclusory allegations of conspiracy cannot, absent 

reference to material facts, state a substantial claim of federal conspiracy under 42 U.S.C. § 1983.” 

Brinkmann v. Johnston, 793 F.2d 111, 113 (5th Cir. 1986); see also Priester, 354 F.3d at 420 

(“Allegations that are merely conclusory, without reference to specific facts, will not suffice” to 

establish a § 1983 conspiracy claim.”). “Bald allegations that a conspiracy existed are insufficient.” 

Lynch v. Cannatella, 810 F.2d 1363, 1370 (5th Cir. 1987).

In her First Amended Complaint, Plaintiff simply alleges that “the acts and omissions of the 

Individual Defendants rise to the level of a Civil Conspiracy violating Plaintiffs [sic] constitutional 

and statutory civil rights.” Dkt. 15 ¶ 85. Similarly, in her Response, Plaintiff makes the conclusory 

allegation that Ross and the agency defendants “conspired with each other to restrict Collins’ civil 

rights during the Department’s investigation and during the Guardianship Proceedings.” Dkt. 26 

¶ 11. Plaintiff does not allege an agreement between Ross and the agency defendants to commit 

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an illegal act; nor does she allege specific facts to show an agreement. See Priester, 354 F.3d at

420 (affirming dismissal of conspiracy claim under Rule 12(b)(6) where plaintiff failed to allege 

sufficient facts showing agreement between teammate and coaches to commit an illegal act). 

Accordingly, Plaintiff has failed to allege a plausible conspiracy claim against Ross. 

2. State Law Claims

Because the Court recommends that Plaintiff’s federal claims be dismissed, the Court should 

decline to exercise supplemental jurisdiction over Plaintiff’s remaining state law claims. District 

courts have original jurisdiction over all civil actions arising under the Constitution, laws, or 

treaties of the United States, and supplemental jurisdiction over all other claims so related that they 

form part of the same case or controversy. 28 U.S.C §§ 1331, 1367. A district court may decline 

to exercise supplemental jurisdiction if (1) the claim raises a novel or complex issue of state law;

(2) the claim substantially predominates over the claim or claims over which the district court has 

original jurisdiction; (3) the district court has dismissed all claims over which it has original 

jurisdiction; or (4) in exceptional circumstances, there are other compelling reasons for declining 

jurisdiction. 28 U.S.C § 1367(c). No single statutory factor is dispositive; whether to retain 

supplemental jurisdiction requires a balancing test. See Mendoza v. Murphy, 532 F.3d 342, 346 

(5th Cir. 2008). In addition to the statutory factors, courts also consider common law factors, 

including judicial economy, convenience, fairness, and comity. See id. at 347.

The district court has wide discretion to remand or dismiss state law claims when the federal 

claims to which they are pendent are dismissed. Robertson v. Neuromedical Ctr., 161 F.3d 292, 

296 (5th Cir. 1998). The Fifth Circuit generally favors dismissal when all federal claims against a 

defendant have been dismissed and only pendant state law claims remain. Parker & Parsley Petrol.

Co. v. Dresser Indus., 972 F.2d 580, 585 (5th Cir. 1992).

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The undersigned has recommended dismissal of Plaintiff’s federal claims against Ross.

Considering all of the above factors, the undersigned also recommends that the Court decline to 

exercise supplemental jurisdiction over Plaintiff’s state claims.

IV. Plaintiff’s Motion for Leave to Amend

Plaintiff seeks leave to file a second amended complaint to add more facts “as to how the Adult 

Protective Services violated her Procedural Due Process Rights by failing to satisfy such rules, 

standards of care and practices.” Dkt. 35 at 2. Courts should freely grant leave to amend when 

justice so requires. FED. R. CIV. P. 15(a)(2). Courts should deny leave to amend when amendment 

would cause undue delay or undue prejudice to the opposing party, or the amendment would be 

futile or in bad faith. Mayeaux v. La. Health Serv. & Indem. Co., 376 F.3d 420, 425 (5th Cir. 2004). 

As noted, Plaintiff’s claims against the agency defendants are barred by sovereign immunity, 

and Plaintiff’s claims against Ross fail to state a plausible claim for relief. The additional facts 

alleged in Plaintiff’s proposed second amended complaint fail to cure these deficiencies. 

Accordingly, Plaintiff’s Motion for Leave should be denied. See Edmiston v. La. Small Bus. Dev. 

Ctr., 931 F.3d 403, 408 (5th Cir. 2019) (denying leave to amend where defendants were immune 

from suit); Rio Grande Royalty Co. v. Energy Transfer Partners, L.P., 620 F.3d 465, 468 (5th Cir. 

2010) (“The trial court acts within its discretion in denying leave to amend where the proposed 

amendment would be futile because it could not survive a motion to dismiss.”).

V. Defendant Lydia Bias 

Plaintiff has not served Defendant Lydia Bias. A district court cannot exercise personal 

jurisdiction over a party without proper service of process. Omni Cap. Int’l, Ltd. v. Rudolf Wolf & 

Co., 484 U.S. 97, 104 (1987). Federal Rule of Civil Procedure 4(m) permits dismissal of a suit if

a plaintiff fails to serve a defendant within 90 days of the filing of the complaint, but provides that,

“if the plaintiff shows good cause for the failure, the court must extend the time for service for an 

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appropriate period.” Proof of good cause “requires at least as much as would be required to show 

excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules 

usually does not suffice.” Thrasher v. City of Amarillo, 709 F.3d 509, 511 (5th Cir. 2013).

Plaintiff filed suit on April 7, 2020. The 90-day period in which to effect service on any 

unserved defendants has long since expired. Under Rule 4(m), district courts may sua sponte

dismiss an action without prejudice against unserved defendants or order that service be made 

within a specified time. FED. R. CIV. P. 4(m). If good cause exists for the failure, the district court 

must extend the time of service for an appropriate period. Id. A plaintiff bears the burden of 

showing valid service or good cause for failure to effect timely service. Thrasher, 709 F.3d at 511. 

Plaintiff has demonstrated neither service nor good cause for failing to serve Defendant Bias. 

Accordingly, the undersigned recommends that the District Court dismiss Plaintiff’s claims against 

Bias without prejudice under Rule 4(m) unless Plaintiff establishes good cause for failure to serve 

her. If Plaintiff wishes to pursue her claims against Bias, she must explain her failure to serve Bias

in any objections filed in response to this Report and Recommendation. Otherwise, Defendant Bias 

should be dismissed under Rule 4(m).

VI. Recommendation

Based on the foregoing, the undersigned RECOMMENDS that the District Court GRANT 

Defendants Texas Department of Family and Protective Services, Aisha Ross, and Jaime Masters’ 

Motions to Dismiss (Dkts. 20, 21 and 30) and DISMISS Texas Department of Family and 

Protective Services, Aisha Ross, and Jaime Masters from this case. The Court FURTHER

RECOMMENDS that the District Court DENY Plaintiff’s Opposed Late Motion for Leave to 

File Plaintiff’s Second Amended Complaint (Dkt. 35). The Court FURTHER RECOMMENDS

that the District Court DISMISS Plaintiff’s claims against Defendant Lydia Bias without prejudice 

under Rule 4(m) unless Plaintiff establishes good cause for failure to serve her.

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IT IS FURTHER ORDERED that this case be removed from the Magistrate Court’s docket 

and returned to the docket of the Honorable Lee Yeakel. 

VII. Warnings

The parties may file objections to this Report and Recommendation. A party filing objections 

must specifically identify those findings or recommendations to which objections are being made. 

The District Court need not consider frivolous, conclusive, or general objections. See Battle v. U.S. 

Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). A party’s failure to file written objections to 

the proposed findings and recommendations contained in this Report within fourteen (14) days 

after the party is served with a copy of the Report shall bar that party from de novo review by the 

District Court of the proposed findings and recommendations in the Report and, except on grounds 

of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings 

and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 

474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 

(5th Cir. 1996) (en banc).

SIGNED on February 9, 2021.

SUSAN HIGHTOWER

UNITED STATES MAGISTRATE JUDGE

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