IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LISA HILL, §

PLAINTIFF, §

 §

V. § CASE NO. 3:22-CV-915-N-BK

 §

CHARLIE HUMPHREY, ET AL. §

 Defendants. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636(b) and Special Order 3, this pro se case was referred to the 

undersigned United States magistrate judge for pretrial management, including the issuance of 

findings and a recommended disposition where appropriate. The Court granted Plaintiff Lisa 

Hill (“Hill”) leave to proceed in forma pauperis (“IFP”) and withheld service of process pending 

judicial screening. As explained below, Hill’s claims should be DISMISSED WITH 

PREJUDICE under 28 U.S.C. § 1915(e)(2).

I. BACKGROUND

Hill’s allegations, the documents attached to her amended complaint1, and the public 

record in her misdemeanor proceedings reflect that she was arrested by a Dallas police officer on

January 11, 2021, for assault causing bodily injury/family violence. See Doc. 10 at 10, 19-20; 

1 Hill has filed a complaint and an amended complaint. Because “[a]n amended complaint 

supersedes the original complaint and renders it of no legal effect unless the amended complaint 

specifically refers to and adopts or incorporates by reference the earlier pleading[,]” Hill’s 

amended complaint is the operative pleading in this matter. King v. Dogan, 31 F.3d 344, 346 

(5th Cir. 1994) (citation omitted). Nevertheless, the Court has also considered the allegations in 

Hill’s original complaint for screening purposes. 

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State v. Hill, M2151413 (Dallas Cnty. Crim. Court No. 11). The State subsequently dismissed 

the charges against her. See Doc. 15 at 2. 

While her criminal case was pending, Hill filed this action against her criminal defense 

attorneys, Charlie Humphrey and Tracy Hale; Diana Heard, a jailer at the facility where Hill was 

incarcerated following her arrest and who was also a tenant at the apartment complex where the 

events leadings to Hill’s arrest occurred; and Latosha Carmack and her son, George Carmack,

who accused Hill of the conduct for which she was ultimately arrested. See Doc. 1 at 2, 3, 7; 

Doc. 10 at 2, 3, 9. More specifically, Hill alleges that Latosha and George Carmack made a false 

police report against her and “pressed charges on false allegations.” Doc. 1 at 10; Doc. 10 at 3, 

9. Hill describes the events that led up to Latosha Carmack calling the police, which occurred at 

the Carmack’s apartment complex, and alleges that a Dallas Police Officer put her into 

handcuffs, “roughed [her] up,” and took her to jail.2 See Doc. 1 at 10, 11; Doc. 10 at 10, 11. 

Hill makes no allegations concerning Hale, the public defender appointed to represent 

her, but she does claim that Humphrey, her private attorney, entered into “some type of 

agreement” with Heard regarding her bail. Doc. 3 at 7; Doc. 10 at 7. Hill also maintains that,

after Humphrey “bonded [her] out,” he failed to investigate her case and forced her, through 

duress, to agree to take an anger management course. Doc. 10 at 9; Doc. 1 at 8. Hill further 

contends that, instead of working to prove her “innocence,” Humphrey wanted to take the 

“unjust way out by plea bargain....” Doc. 10 at 9.

2 Hill did not name the arresting officer as a defendant in this suit. Instead, she brought a 

separate suit against him that this Court previously dismissed. See Lisa Hill v. State of Texas and 

Dallas Police Dept., No. 3:21-cv-3169-B-BN (N.D. Tex. 2021). 

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As for Heard, Hill “came to the conclusion” that she was attracted to Hill in some way.

Doc. 10 at 7. Hill says that, at one point, after she rejected Heard, Heard pulled a gun on Hill 

and “followed” Hill’s vehicle in traffic, “waving her gun out the window” at Hill, Hill’s

daughter, and Hill’s male friend. Doc. 10 at 8. Hill also claims that Heard interfered with a 

witness’s attempt to get an exculpatory affidavit—in which the witness described how Latosha 

Carmack fabricated evidence against Hill—notarized. See Doc. 10 at 12, 17 (copy of affidavit at 

issue). 

II. APPLICABLE LAW

Because the Court granted Hill’s request to proceed IFP, her complaint is subject to 

screening under 28 U.S.C. § 1915(e). Under 28 U.S.C. § 1915(e), a court may summarily 

dismiss a complaint filed in forma pauperis if it concludes the action is: (1) frivolous or 

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

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

A complaint is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. 

Williams, 490 U.S. 319, 325 (1989). A complaint lacks an arguable basis in law when it is 

premised “on an indisputably meritless legal theory,” Id. at 327, and fails to state a claim upon 

which relief can be granted if it does not plead “enough facts to state a claim to relief that is 

plausible on its face,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

In performing this analysis, the Court, in addition to considering the pleadings, can 

consider attachments to it, as well as matters of which a court may take judicial notice, such as 

matters of public record. See, e.g., Hicks v. Parker, 349 F. App’x 869, 870 (5th Cir. 2009) (per 

curiam) (noting that the court can consider “matters of public record, as well as documents 

attached to the complaint” when deciding a motion to dismiss under Federal Rule of Civil 

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Procedure 12(b)(6)) (citing Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir. 1994); Lovelace v. 

Software Spectrum, Inc., 78 F.3d 1015, 1017 (5th Cir. 1996)).

The Court must always liberally construe pleadings filed by pro se litigants. See 

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (pro se pleadings “must be held to less stringent 

standards than formal pleadings drafted by lawyers”); Cf. FED. R. CIV. P. 8(e) (“Pleadings must 

be construed so as to do justice.”). However, a pro se litigant’s “‘mere conclusory allegations on 

a critical issue are insufficient...’” Brown v. Tarrant Cnty., Tex., 985 F.3d 489, 494 (5th Cir. 

2021) (quoting Carlucci v. Chappa, 884 F.3d 534, 538 (5th Cir. 2018); United States v. Woods, 

870 F.2d 285, 288 n.3 (5th Cir. 1989) (per curiam)). Even under the most liberal construction,

Hill’s complaint should be dismissed.

III. ANALYSIS

A. Failure to Establish Private Actor Defendants Acted Under Color of Law

While Hill purports to bring her suit under 42 U.S.C. § 1983 (Doc. 10 at 3, 4), for that 

statute to apply, the defendant must have acted under color of state law. See Cornish v. Corr. 

Servs. Corp., 402 F.3d 545, 549 (5th Cir. 2005) (“‘Mere private conduct, no matter how 

discriminatory or wrongful’ is excluded from § 1983’s reach.”) (quoted case omitted)); see also, 

Priester v. Lowndes Cnty., 354 F.3d 414, 420-21 (5th Cir. 2004) (“To state a claim under section 

1983, a plaintiff must: (1) allege a violation of rights secured by the Constitution of the United 

States or laws of the United States; and (2) demonstrate that the alleged deprivation was 

committed by a person acting under color of state law.”) (citation omitted). And there is no 

indication from Hill’s pleadings that either Latosha or George Carmack is a state actor or in any 

way acted under color of state law. Instead, based on Hill’s pleasdings, Latosha and George 

Carmack appear to be private citizens unconnected with state authority. Nor are Humphrey and 

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Hale, Hill’s retained criminal defense attorney and public defender respectively, state actors. 

See, e.g., Mills v. Criminal Dist. Court No. 3, 837 F.2d 677, 679 (5th Cir. 1988) (private 

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

subject to suit under section 1983); see also Hudson v. Hughes, 98 F.3d 868, 873 (5th Cir. 1996). 

This is true even though Hill vaguely alleges that Humphrey entered into an agreement of 

some kind with Heard—a jailer and potential state actor—“on the bond.” Doc. 10 at 7. 

Although a conspiracy between state actors and private individuals to violate constitutional rights 

will support liability under Section 1983, Chaney v. Races and Aces, 590 F. App’x 327, 329 (5th 

Cir. 2014) (per curiam); Tebo v. Tebo, 550 F.3d 492, 496 (5th Cir. 2008); Ballard v. Wall, 413 

F.3d 510, 518 (5th Cir. 2005), Hill’s pleadings lack the credible factual allegations to support a 

conspiracy claim. Specifically, facts must be alleged suggesting that there was an agreement 

between the private and public defendants to commit an illegal act as well as an actual 

deprivation of constitutional rights. Cinel, 15 F.3d at 1343. Hill’s vague assertion that 

Humphrey and Heard came to an agreement “on the bond,” does not establish that there was an

agreement to commit an illegal act or that there was any constitutional deprivation resulting from 

the agreement. Therefore, to the extent Hill attempts to meet the under-color-of-state-law

requirement by showing a conspiracy, her allegations are insufficient. 

Because Hill fails to satisfy the under-color-of-state-law requirement in relation to 

Humphrey, Hale, Latosha Carmack, and George Carmack, her Section 1983 claims against those 

defendants should be dismissed with prejudice.

B. Failure to Allege Sufficient Facts to Support Claims Against Defendant Heard

Hill claims Heard was a jailer in the facility where Hill was imprisoned. Doc. 1 at 7. But

Hill also alleges that Heard lived in the same apartment complex where the events giving rise to 

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Hill’s arrest occurred. Doc. 1 at 7; 10 at 2, 3. It is not clear whether Hill is alleging that Heard’s 

alleged conduct—brandishing a weapon and “waving” it at Hill—was private in nature or 

whether it was connected to her official duties. “Private acts...are not considered to be done 

under color of state law merely because the actor is a public official.” Manax v. McNamara, 842 

F.2d 808, 812 (5th Cir. 1988) (internal quotation marks omitted); see also Brown v. Miller, 631 

F.2d 408, 411 (5th Cir. 1980) (“[T]he act of one who is a state officer, not taken by virtue of or 

clothed with his state authority, will not be considered as done under color of state law simply 

because the individual, although pursuing private aims, happens to be a state officer.”). 

“Whether an officer is acting under color of state law does not depend on his on-or off-duty 

status at the time of the alleged violation.” Bustos v. Martini Club Inc., 599 F.3d 458, 464 (5th 

Cir. 2010) (citing United States v. Tarpley, 945 F.2d 806, 809 (5th Cir. 1991)). The court must 

instead consider: “(1) whether the officer ‘misuse[d] or abuse[d] his official power,’ and (2) if 

‘there is a nexus between the victim, the improper conduct, and [the officer’s] performance of 

official duties.’” Id. (quoting Townsend v. Moya, 291 F.3d 859, 861 (5th Cir. 2002)). “If an 

officer pursues personal objectives without using his official power as a means to achieve his 

private aim, he has not acted under color of state law.” Id. (citation omitted).

Here, Hill fails to allege that Heard acted under color of state law or state facts from 

which it can be gleaned that there was a nexus between Heard’s complained of conduct and the 

performance of Heard’s official duties as a jailer. Indeed, the mishmash of allegations against 

Heard border on the nonsensical.

Even assuming arguendo that the color of law requirement is satisfied as to Heard, Hill’s 

allegations still fail to state a legally cognizable claim. Because Hill references the Fourth 

Amendment, the Court liberally construes her pleadings as asserting an excessive force claim. 

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See Doc. 10 at 3. To state a claim for excessive force, Hill must allege (1) an injury, which (2) 

resulted directly and only from the use of force that was clearly excessive to the need; and the 

excessiveness of which was (3) objectively unreasonable. Bazan ex rel. Bazon v. Hidalgo Cty., 

246 F.3d 481, 487 (5th Cir. 2001) (citation omitted). Applying those elements here, Hill has not 

plead plausible facts from which it can be inferred that Heard’s conduct was objectively 

unreasonable; indeed, she provides no explanation of the circumstances leading up to Heard 

allegedly brandishing a weapon. For that reason, any excessive force claim that Hill attempts to 

allege should be dismissed. See, e.g., Ahmadi v. Downey, Civil Action No. H-18-0211, 2021 

WL 1227918, at *6 (S.D. Tex. Mar. 31, 2021) (dismissing the plaintiff’s excessive force claim 

where the plaintiff provided “no facts surrounding the alleged use of force”). 

Hill also references the Fifth and Fourteenth Amendments in her pleadings. To the extent 

that she attempts to allege a substantive due process claim in connection with Heard’s conduct, 

the claim is meritless. The Due Process Clause of the Fourteenth Amendment provides that 

“[n]o State shall...deprive any person of life, liberty, or property, without due process of law.” 

“The substantive component prevents the government from engaging in conduct that ‘shocks the 

conscience’ or interferes with rights ‘implicit in the concept of ordered liberty,’ whereas the 

procedural component ensures that any government action surviving substantive due process 

scrutiny is implemented in a fair manner.” United States v. Salerno, 481 U.S. 739, 746 (1987)

(citations omitted). Conduct that courts have found to violate substantive due process include: 

the forced pumping of a suspect’s stomach, Rochin v. California, 342 U.S. 165, 172-73 (1952); 

forcing a citizen “to travel at speeds over 100 mph in their attempt to flee a terrorizing police 

officer,” Checki v. Webb, 785 F.2d 534 (5th Cir. 1986); and terrorizing a mother and her two 

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young children by screaming at them, trying to smash their windows with a nightstick, and firing 

at their tires during a routine traffic stop, Petta v. Rivera, 143 F.3d 895, 897-903 (5th Cir. 1998).

“While the measure of what is conscience shocking is no calibrated yard stick,” there are 

certain guideposts. Sacramento County v. Lewis, 523 U.S. 833, 847 (1998). The level of 

culpability to shock the conscience is high. Id. at 848-49. “[L]iability for negligently inflicted 

harm is categorically beneath the threshold of constitutional due process. Id. at 849. “In cases 

such as ‘sudden pursuit[s]’ that require split-second decision-making, only intentional 

misconduct will shock the conscience.” Pineda v. West Texas Community Supervision, EP-19-

CV-57-KC, 2020 WL 466052, at *7 (W.D. Tex. Jan. 27, 2020) (citing Lewis, 523 U.S. at 851-

54). But “when actual deliberation is practical,” deliberate indifference to a risk of harm may be 

conscience shocking. Lewis, 523 U.S. at 851-54; see also M.D. ex rel. Stuckenberg v. Abbott, 

907 F.3d 237, 251 (5th Cir. 2018). And courts must also consider the countervailing 

governmental interests and considerations that might justify the challenged conduct. Id. at 849; 

Coleman v. Dretke, 395 F.3d 216, 224-25 (5th Cir. 2004). Conduct that does not serve any 

legitimate governmental objective is more likely to be unconstitutional. Pineda, 2020 WL 

466052, at *7 (citing Lewis, 523 U.S. at 845-46 (citation omitted). 

Hill’s conclusory, vague allegations do not satisfy the minimum pleading standards since 

she alleges no facts from which it can be gleaned that Heard’s behavior in brandishing a weapon 

and waving it or pointing it at Hill “shocks the conscience.” Therefore, to the extent that Hill 

seeks to assert a substantive due process claim, it is meritless and should be dismissed.3 

3 Hill also claims that Heard wrongly “intervened” in a witness’ attempt to get an exculpatory

affidavit notarized. Doc. 10 at 17. To the extent that Hill wishes to assert a claim based on these 

vague allegations, the claim lacks merit. Again, it is not clear whether Heard’s actions were 

purely private or whether she acted under color of state law. At any rate, Hill fails to tie these 

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IV. LEAVE TO AMEND

Ordinarily, a pro se plaintiff should be granted leave to amend her complaint prior to 

dismissal, but leave is not required when she has already pled her “best case.” Brewster v. 

Dretke, 587 F.3d 764, 767-68 (5th Cir. 2009). Here, Hill has already filed an amended 

complaint, as well as a “motion of discovery,” which the Court construed as a futile motion to 

amend. Accordingly, the Court concludes that Hill has stated her best case and justice does not 

require that the Court automatically grant Hill leave to amend her allegations. 

V. CONCLUSION

For the foregoing reasons, Hill’s claims should be DISMISSED WITH PREJUDICE

pursuant to 28 U.S.C. § 1915(e)(2)(B). 

SO RECOMMENDED on December 4, 2022. 

allegations to a constitutional deprivation. She does not allege that the witness’s inability to 

notarize the affidavit had any effect on a probable cause determination that led to Hill’s arrest or 

resulted in a lengthier incarceration than would have otherwise been the case. And, as noted, the 

charges against Hill were dropped, and Hill does not assert that the charges would never have 

been pursued if Heard had not “intervened.” 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation will be served on all parties in the manner provided by 

law. Any party who objects to any part of this report and recommendation must file specific 

written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED.

R. CIV. P. 72(b). An objection must identify the finding or recommendation to which objection is 

made, the basis for the objection, and the place in the magistrate judge’s report and 

recommendation the disputed determination is found. An objection that merely incorporates by 

reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific 

written objections will bar the aggrieved party from appealing the factual findings and legal 

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon 

grounds of plain error. See Douglass v. United Services Automobile Ass’n, 79 F.3d 1415, 1417 

(5th Cir. 1996), modified by statute, 28 U.S.C. § 636(b)(1) (extending the time to file objections 

to 14 days).

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