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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

ELSIE GUERRA,

 Plaintiff,

vs.

CITY OF PLEASANTON, 

INDIVIDUALLY; TRAVIS HALL JR., 

CURRENT MAYOR OF PLEASANTON, 

TEXAS; JOHNNY HUIZAR, CITY 

MANAGER OF PLEASANTON, TEXAS; 

ROBERT (BOBBY) MALDONADO, 

LEAD COUNCIL FOR THE CITY OF 

PLEASANTON, TEXAS; AND BEN 

SIFUENTES, WAS COUNCIL FOR THE 

PLAINTIFF;

 Defendants.

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SA-20-CV-00536-XR

REPORT AND RECOMMENDATION AND ORDER

OF UNITED STATES MAGISTRATE JUDGE

To the Honorable United States District Judge Xavier Rodriguez:

This Report and Recommendation and Order concerns Plaintiff’s pro se Application to 

Proceed in District Court without Prepaying Fees or Costs and proposed civil Complaint, filed 

April 30, 2020 [#1] and the undersigned’s review of the pleadings pursuant to 28 U.S.C § 

1915(e). The motion was automatically referred to the undersigned pursuant to Western District 

of Texas Local Rule CV-72 and Appendix C. The undersigned has authority to enter this 

recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and this order pursuant to 28 U.S.C. § 

636(b)(1)(A). For the reasons set forth below, the Court will grant the motion to proceed in 

forma pauperis, recommend Plaintiff’s claims against Defendant Ben Sifuentes be dismissed as 

frivolous pursuant to Section 1915(e), and order service of Plaintiff’s proposed Complaint upon 

the remaining Defendants.

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I. Motion to Proceed In Forma Pauperis

By her motion, Plaintiff seeks leave to proceed in forma pauperis (“IFP”) based on her 

inability to afford court fees and costs. Having considered the motion and documentation 

provided by Plaintiff, the Court will grant the motion to proceed IFP. 

All parties instituting any civil action, suit, or proceeding in a district court of the United 

States, except an application for a writ of habeas corpus, must pay a filing fee of $350, as well as 

an administrative fee.1 See 28 U.S.C. § 1914(a). Plaintiff’s motion to proceed IFP includes her 

income and asset information, which indicates that Plaintiff is employed on an “as needed” basis 

by the City of Poteet but only receives $20.00 per month for this employment. Plaintiff also 

receives $2,194.63 in monthly retirement income. Plaintiff lists monthly expense in the amount 

of $2,214.00 and claims to have no significant savings. The information demonstrates that 

Plaintiff does not have sufficient monthly resources available to pay the filing fee, and the Court 

will grant the motion to proceed IFP. 

II. Review of the Pleadings

Pursuant to 28 U.S.C. § 1915(e), this Court is empowered to screen any civil complaint 

filed by a party proceeding IFP to determine whether the claims presented are (1) frivolous or 

malicious; (2) fail to state a claim on which relief may be granted; or (3) seek monetary relief 

against a defendant who is immune from such relief.2 See 28 U.S.C. § 1915(e)(2)(B). A claim 

1 The administrative fee, which is currently $50, is waived for plaintiffs who are granted 

IFP status. See District Court Miscellaneous Fee Schedule, available at 

http://www.uscourts.gov/services-forms/fees/district-court-miscellaneous-fee-schedule.

2 Under 28 U.S.C. § 1915(e), a court may at any time dismiss a case if it determines that 

the case filed by the IFP plaintiff is frivolous or fails to state a claim but is not required to screen 

non-prisoner cases at the outset. In contrast, when an IFP case is filed by a prisoner, the court is 

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should be dismissed for failure to state a claim upon which relief may be granted where a 

plaintiff’s allegations fail to plead factual content that would allow a court to conclude that 

defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

The undersigned has reviewed Plaintiff’s proposed Complaint pursuant to Section 

1915(e) and has determined that she has stated at least one non-frivolous claim in this action that 

confers subject matter jurisdiction on this Court. However, the Court has also determined that 

Plaintiff’s claims against Defendant Ben Sifuentes should be dismissed as frivolous. 

Accordingly, the undersigned will only order service of Plaintiff’s proposed Complaint on the 

other named Defendants. 

Plaintiff’s proposed Complaint [#1-1] sues the City of Pleasanton, her former employer,

and several individuals who work for the City in their individual capacities—Travis Hall, Jr. 

(Mayor of Pleasanton), Johnny Huizar (City Manager of Pleasanton), and Robert “Bobby” 

Maldonado (Pleasanton’s attorney) (collectively “the City Defendants”). Plaintiff also sues Ben 

Sifuentes, the attorney who represented her in prior proceedings before the Equal Employment 

Opportunity Commission (“EEOC”). Plaintiff alleges that Defendants conspired to terminate her 

employment as a judge for the City of Pleasanton Municipal Court in retaliation for her attempt 

to expose Defendants’ “corrupt, criminal, and subversive activities” and her refusal to commit 

certain ordered illegal acts in her role as judge. (Compl. [#1-1] at 1.) According to the 

Complaint, Defendants established a quota to increase the collection of funds from the citizens of 

Pleasanton through fraudulent citations and illegal fines. (Id. at 2–3.) Plaintiff also contends that 

required to screen a complaint prior to docketing or as soon as possible. See 28 U.S.C. § 

1915A(a). 

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Defendants used their official positions with the City to “discriminate and retaliate against 

Plaintiff because of her age, sex and national origin” and prevent her lawful right to her 

retirement and other benefits. (Id. at 3.) 

Plaintiff’s proposed Complaint asserts 16 separate causes of action, some of which are 

federal claims under 42 U.S.C. § 1983 and some of which arise under Texas law, such as breach 

of contract and intentional infliction of emotional distress. Although Plaintiff does not 

specifically invoke Title VII or the Age Discrimination in Employment Act (ADEA) in her 

Complaint, she does allege facts regarding age, sex, and national origin discrimination related to 

her employment and termination. Plaintiff also alleges Defendants violated her rights to free 

speech and due process, engaged in a conspiracy to violate her civil rights and to terminate her 

employment through a sham process, and falsified documents submitted to the EEOC to hide the 

real reason for her termination. 

A. The claims against Sifuentes should be dismissed as frivolous.

Plaintiff’s causes of action are alleged against “all Defendants” in most instances. 

However, the only allegations involving specific acts taken by Sifuentes are based on Sifuentes’s

alleged failure to submit accurate and timely information to the EEOC. (Id. at 3.) Plaintiff 

claims this information could have changed the outcome of the EEOC’s investigation into her 

discrimination allegations against her employer. (Id.) Plaintiff asserts one cause of action 

against Sifuentes, a claim of negligence, which essentially alleges Sifuentes was ineffective and 

professionally negligent in his prior representation. (Id. at 5.) 

This claim should be dismissed as frivolous. Plaintiff’s claim is a claim of legal 

malpractice based on a theory of negligence under Texas law. See Cosgrove v. Grimes, 774 

S.W.2d 662, 664 (Tex. 1989). The Court does not have jurisdiction over this claim. Plaintiff has 

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not alleged any federal cause of action against Sifuentes, nor could she. Sifuentes was not her 

employer and could not be sued under Title VII or the ADEA. Neither is Sifuentes a state actor 

subject to suit under Section 1983, and there is no constitutional remedy for ineffective 

assistance of counsel under Section 1983. Hudson v. Hughes, 98 F.3d 868, 873 (5th Cir. 1996) 

(ineffective assistance of counsel claim not cognizable in Section 1983 lawsuit because retained 

counsel is not a state actor); Mills v. Crim. Dist. Ct. #3, 837 F.2d 677, 679 (5th Cir. 1988) 

(“[S]ection 1983 claims require that the conduct complained of be done under color of law, and 

private attorneys, even court-appointed attorneys, are not official state actors, and generally are 

not subject to suit under section 1983.”). There is also no Sixth Amendment right to the 

effective assistance of counsel in civil cases. See Sanchez v. U.S. Postal Serv., 785 F.2d 1236, 

1237 (5th Cir. 1986). 

Without a federal claim against Sifuentes, the only way for this Court to hear Plaintiff’s 

negligence claim is through supplemental jurisdiction over the state-law claim. This Court only 

has supplemental jurisdiction over claims “that are so related to claims in the action” over which 

the Court has original jurisdiction “that they form part of the same case or controversy under 

Article III of the United States Constitution.” 28 U.S.C. § 1367(a). Although the EEOC 

proceedings for which Sifuentes represented Plaintiff also arose out of her termination from 

employment, the quality of Sifuentes’s representation is not a part of the same case or 

controversy as this lawsuit, which targets the allegedly illegal acts of City of Pleasanton 

employees and Plaintiff’s allegedly wrongful termination by her employer. The undersigned will 

therefore recommend Plaintiff’s claims against Sifuentes be dismissed as frivolous and will not 

order service of her proposed Complaint upon this Defendant. 

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B. The City Defendants should be served because Plaintiff has pleaded at least one 

non-frivolous claim against them.

As for the remaining four Defendants, the undersigned finds that Plaintiff has stated at 

least one non-frivolous claim over which this Court has subject matter jurisdiction. Plaintiff 

alleges the City Defendants conspired to effectuate a sham termination process that violated her 

right to procedural due process in violation of 42 U.S.C. § 1983. Plaintiff may face significant 

hurdles in prevailing on this claim, as the City of Pleasanton is only liable under Section 1983 if 

Plaintiff establishes there is an official policy or custom underlying her constitutional violation. 

See Piotrowski v. City of Hous., 237 F.3d 567, 578 (5th Cir. 2001). And Plaintiff must ultimately 

prove that the individual Defendants are not entitled to the defense of qualified immunity, if they 

assert this defense. See Waganfeald v. Gusman, 674 F.3d 475, 483 (5th Cir. 2012). Nonetheless, 

the Court will permit Plaintiff’s proposed Complaint to be served on the City Defendants. 

Additionally, insofar as Plaintiff is attempting to plead causes of action under Title VII

and/or the ADEA for employment discrimination, these claims would also confer federal subject 

matter jurisdiction on this Court. As noted above, Plaintiff pleads some facts regarding age, sex, 

and national origin discrimination but does not include a cause of action under Title VII or the 

ADEA. Plaintiff also attaches her EEOC Right to Sue letter to her proposed Complaint. 

Construing Plaintiff’s pleading liberally, the undersigned also finds that Plaintiff’s Title VII and 

ADEA claims gives this court subject matter jurisdiction and are nonfrivolous. 

As a final note, Plaintiff does not include any dates, specific or approximate, in her 

proposed pleading from which the Court can evaluate the timeliness of Plaintiff’s claims. 

However, her EEOC Right to Sue letter, which is dated January 31, 2020, gives Plaintiff the right 

to sue for her wrongful termination within 90 days of the issuance of the letter. (EEOC Right to 

Sue Letter [#1-1] at 11–14.) Plaintiff filed her motion to proceed IFP on April 30, 2020, making 

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her employment discrimination claims (if she is asserting any) timely. As to her claims under 

Section 1983, these claims are governed by a two-year statute of limitations, based on the 

relevant state’s limitations period for personal injury actions. Burns v. Harris Cty. Bail Bond 

Bd., 139 F.3d 513, 518 (5th Cir. 1998) (citing Tex. Civ. Prac. & Rem. Code § 16.003(a)). EEOC 

charges must be filed within 300 days of the alleged discrimination. 42 U.S.C. § 2000e-5(e)(1); 

Griffin v. City of Dallas, 26 F.3d 610, 612 (5th Cir. 1994) (explaining that filing period extends 

to 300 days in jurisdictions, like Texas, where state or local laws also prohibit discrimination, 

upon transmission of EEOC charge to Texas Commission on Human Rights (“TCHR”)). 

Accordingly, the Court also infers from the EEOC letter attached to Plaintiff’s motion that her 

termination likely occurred within the two-year statute of limitations governing her Section 1983 

claim. 

Finally, nothing in this recommendation and order prevents the State Defendants from 

moving for dismissal of any of Plaintiff’s myriad claims based on limitations or any other 

substantive issue. The undersigned acknowledges that there may be numerous other defects as to 

specific claims contained in Plaintiff’s proposed Complaint. This recommendation and order 

merely find that Plaintiff has established at least one non-frivolous claim warranting service of 

her proposed Complaint. 

III. Conclusion and Recommendation

Having reviewed Plaintiffs’ motion and proposed pleading under the standards set forth 

in Section 1915(e),

IT IS HEREBY ORDERED that Plaintiff’s pro se Application to Proceed in District 

Court without Prepaying Fees or Costs [#1] is GRANTED. 

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IT IS FURTHER ORDERED that Plaintiff’s Complaint [#1-1] shall be filed by the

Clerk without prepayment of fees, costs or the giving of security therefore, and the Clerk shall,

until further Order of this Court, waive the collection of any other fees or costs from Plaintiff. 

IT IS FURTHER ORDERED that, if not already accomplished, within ten (10) days of

the date of this Order, Plaintiff shall submit to the Clerk’s Office a fully completed United States

Marshal Service Form 285, including fully complete addresses, for Defendants the City of

Pleasanton, Travis Hall, Jr., Johnny Huizar, and Robert (Bobby) Maldonado, and the

United States Marshal’s Service shall serve these Defendants with a copy of the Complaint and a

copy of this order by certified mail, return receipt requested.

The undersigned also recommends that Plaintiff’s claims against Defendant Ben 

Sifuentes be DISMISSED as frivolous and that service shall not be issued as to this Defendant. 

IV. Instructions for Service and Notice of Right to Object/Appeal

The United States District Clerk shall serve a copy of this report and recommendation on 

all parties by either (1) electronic transmittal to all parties represented by attorneys registered as 

a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified 

mail, return receipt requested. Written objections to this report and recommendation must be 

filed within fourteen (14) days after being served with a copy of same, unless this time period is 

modified by the district court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The party shall file 

the objections with the Clerk of Court and serve the objections on all other parties. A party filing 

objections must specifically identify those findings, conclusions or recommendations to which 

objections are being made and the basis for such objections; the district court need not consider 

frivolous, conclusive or general objections. A party’s failure to file written objections to the 

proposed findings, conclusions and recommendations contained in this report shall bar the party 

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from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149–52 (1985); 

Acuña v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file 

timely written objections to the proposed findings, conclusions and recommendations contained 

in this report and recommendation shall bar the aggrieved party, except upon grounds of plain 

error, from attacking on appeal the un-objected-to proposed factual findings and legal 

conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 

1428–29 (5th Cir. 1996) (en banc).

SIGNED this 12th day of May, 2020.

ELIZABETH S. ("BETSY") CHESTNEY

UNITED STATES MAGISTRATE JUDGE

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