IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MICHAEL DARNELL JONES,

 Plaintiff, 

§

§

§

v. § No. 3:22-cv-1907-X (BT)

 §

CODE ENFORCEMENT BUSINESS, 

et al., 

 Defendants.

§

§

§

FINDINGS, CONCLUSIONS, AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

Plaintiff Michael Darnell Jones, proceeding pro se, filed this civil action 

under 42 U.S.C. § 1983 and paid the filing fee. For the following reasons, however, 

the Court should dismiss his case under Federal Rule of Civil Procedure 12(b)(6)

for failure to state a claim upon which relief can be granted. 

Background

In response to a deficiency order noting that his original complaint failed to 

comply with Federal Rule of Civil Procedure 8, Jones filed an amended complaint 

listing the Code Enforcement Department of the City of Cedar Hill, Texas; Stacey 

Graves, the director of neighborhood services for Cedar Hill; the MacFarlane Law 

Firm, a law firm allegedly representing Cedar Hill; and Esther Gorman as 

defendants. ECF No. 12, ECF No. 14.

1

 The amended complaint contains no factual 

allegations. ECF No. 14.

1

 “An amended complaint supersedes the original complaint and renders it of no 

legal effect unless the amended complaint specifically refers to or adopts or 

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Jones responded to a Magistrate Judge Questionnaire (MJQ) to clarify his 

claims. ECF No. 18. Jones claims that, in June 2019, Esther and Gene Gorman2

committed a trespass by coming onto his driveway and yelling at him about his 

vehicle, which was in the back of his driveway. ECF No. 18 at 2. Jones told them to 

get off his property. ECF No. 18 at 2. He claims that the next day, Esther and Gene 

Gorman “throw his wife off my property [sic],” and stalked, harassed, complained, 

and were a nuisance to “race couples.” ECF No. 18 at 2. He claims that Esther 

Gorman was often in front of his yard “pointing.” ECF No. 18 at 2.

3

 He further 

complains that Esther Gorman altered her appearance, presumably after he called 

the police about her activities. ECF No. 18 at 2.

He alleges that Stacey Graves—who, according to materials attached to the 

MJQ response, works as a director of neighborhood services for Cedar Hill—lives 

down the street from him and has a husband who is a constable and drives a taxincorporates by reference the earlier pleading.” King v. Dogan, 31 F.3d 344, 346 

(5th Cir. 1994). Thus, Jones’s amended complaint is the operative pleading. But, 

in the interest of justice, the Court also considered his original complaint in its 

12(b)(6) analysis.

2

 It is unclear whether Jones is suing Gene Gorman, Ron MacFarlane (a member 

of the MacFarlane firm and the alleged city attorney for Cedar Hill), and the Cedar 

Hill Police Department, each of whom is referenced in his questionnaire response 

but not in the amended complaint. See ECF No. 14, ECF No. 18.

3Jones also brought a suit, which has since been dismissed, against the Gormans 

for this same conduct in state court. See Michael Jones v. Esther Gorman and Gene 

Gorman, Cause No. DC-22-07597 (68th Judicial Dist. Ct., Dallas Cnty. Dec. 9, 

2022). And he filed another federal action that is nearly identical to this case that 

is currently pending. See Michael Darnell Jones v. Esther Gorman, et al., 22-cv1875-C-BT (N.D. Tex.)

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payer-funded vehicle to work. ECF No. 18 at 3. He questions whether that is “good 

government.” ECF No. 18 at 3. 

As for the MacFarlane Law Firm, Jones alleges that it represented the Cedar 

Hill Code Enforcement Department and Stacey Graves. ECF No. 14 at 2. He alleges 

that Ron MacFarlane is the city attorney for Cedar Hill. ECF No. 18 at 3. 

When asked to explain how each defendant’s actions violated the law and 

what, specifically, each defendant did, Jones replied, “character assassination, 

racial, civil rights contempt and disrespect, characterizing.” ECF No. 18 at 2-3. He 

claims that defendants’ actions violated the First Amendment. 

Legal Standards

It is well-established that a district court may dismiss a complaint on its own 

motion under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim 

upon which relief may be granted. See Carroll v. Fort James Corp., 470 F.3d 1171, 

1177 (5th Cir. 2006) (citing Shawnee Int’l., N.V. v. Hondo Drilling Co., 742 F.2d 

234, 236 (5th Cir. 1984)). The procedure for dismissing a complaint sua sponte

must be fair. Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (quoting 5A 

Wright & Miller, FED. PRACTICE AND PROCEDURE § 1357, at 301 (2d ed. 1990)). This 

requires notice of the intent to dismiss and an opportunity to respond. Id. at n.5. 

“The fourteen-day time frame for filing objections to a recommended dismissal 

provides Plaintiff with notice and an opportunity to respond.” Fantroy v. First. 

Fin. Bank, N.A., 2012 WL 6764551, at *7 (N.D. Tex. Dec. 10, 2012) (citing Ratliff 

v. Coker, 2008 WL 4500321, at *3 n.1 (E.D. Tex. Sept. 26, 2008)).

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To state a claim upon which relief may be granted under Rule 12(b)(6), a 

plaintiff must “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), and must plead 

those facts with enough specificity “to raise a right to relief above the speculative 

level[.]” Id. at 555. “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 v. Iqbal, 556 U.S. 662, 678 (2009). 

And, “[a]lthough pleadings filed pro se are generally held to less stringent 

standards than those drafted by lawyers, pro se litigants must still reasonably 

comply with procedural rules.” Miller v. Lowe’s Home Ctrs. Inc., 184 F. App’x 386, 

389 (5th Cir. 2006) (per curiam) (citing Grant v. Cuellar, 59 F.3d 523, 524-25 (5th 

Cir. 1995)). 

Analysis

To state a Section 1983 claim, a plaintiff must establish two elements: (1) a 

constitutional violation; and (2) that the defendants were acting under color of 

state law when they committed the violation. Whitley v. Hanna, 726 F.3d 631, 638 

(5th Cir. 2013). For the following reasons, Jones fails to state a plausible Section 

1983 claim. 

A. The Cedar Hill Code Enforcement Department is a nonjural entity that is not 

subject to suit.

Jones sues the Cedar Hill Code Enforcement Department. But the Code 

Enforcement Department is a nonjural entity, and, therefore, it cannot be sued. 

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See, e.g., Smith v. City of Princeton, Texas, 2017 WL 9285515, at *5 (E.D. Tex. Oct. 

31, 2017), rec. accepted 2018 WL 316470 (E.D. Tex. Jan. 8, 2018).

“The capacity of an entity t0 be sued is ‘determined by the law of the state in 

which the district court is held.’” Hutchinson v. Box, 2010 WL 5830499, at *1 (E.D. 

Tex. Aug. 20, 2010), rec. accepted 2011 WL 839864 (E.D. Tex. Feb. 17, 2011). To 

sue a city department in Texas, the city department “must enjoy a separate legal 

existence;” it must be a “separate and distinct corporate entity.” Darby v. 

Pasadena Police Dep’t., 939 F.2d 311, 313 (5th Cir. 1991). Thus, unless the “true 

political entity” has explicitly “[granted] the servient agency with jural authority,” 

it may not sue or be sued. Id. “A plaintiff has the burden of showing that a county 

[or city] department has the capacity to be sued. However, if a plaintiff fails to 

allege or demonstrate that such defendant is a separate legal entity having jural 

authority, then claims against the entity should be dismissed as frivolous and for 

failing to state a claim.” Hutchinson, 2010 WL 5830499, at *1 (internal citations 

and quotation marks omitted).

Here, Jones has not alleged that the Cedar Hill Code Enforcement 

Department has the power to sue or be sued; therefore, the Court should dismiss 

Jones’s claims against it.4

4

 This same reasoning applies to the extent that Jones sues the Cedar Hill Police 

Department. See Davis v. Cedar Hill Police Dep’t, 2018 WL 1633023, at *4 (N.D. 

Tex. Mar. 9, 2018), rec. accepted 2018 WL 1617858 (N.D. Tex. Apr. 4, 2018) (the 

Cedar Hill Police Department is a nonjural entity that cannot be sued). 

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B. The MacFarlane Law Firm and Esther Gorman are not state actors, so Jones 

fails to state a Section 1983 claim against them.

Only a state actor can be held liable under Section 1983. Lugar v. Edmonson 

Oil Co., 457 U.S. 922, 923 (1982). A party may be considered a state actor if it “has 

acted with or obtained significant aid from state officials,” or if its “conduct is 

otherwise chargeable to the State.” Id.

Jones fails to allege that either Esther Gorman or the MacFarlane Law 

Firm’s conduct should be chargeable to the state. There is no indication from 

Jones’s pleadings that Esther Gorman has any government connection, and there 

is no indication that the MacFarlane Law firm is anything other than a private law 

firm employed by Cedar Hill. Private lawyers, even those retained by 

municipalities or governmental agencies, are not state actors for purposes of 

Section 1983. See, e.g., Stannard v. North East Indep. Sch. Dist., 2009 WL 

10679978, at *4 (W.D. Tex. Oct. 30, 2009) (“A private law firm and one of its 

lawyers acting as legal advisors to public bodies are not state actors.”) (collecting 

cases). Thus, the Court should dismiss Jones’s claims against Esther Gorman and 

the MacFarlane Law Firm.5

5

 This same reasoning would apply to the extent that Jones is also suing Gene 

Gorman. To the extent that Jones is suing Ron MacFarlane in his capacity as a city 

attorney (in which case he would be a state actor), Jones fails to allege any facts 

showing that MacFarlane violated his constitutional rights or was involved in any 

of the conduct that he complains about, so any Section 1983 claims against him in 

that capacity would be meritless. 

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C. Jones’s Claims against Stacey Graves are meritless.

Finally, Jones’s claims against Stacey Graves—who, as a “director of 

neighborhood services” for Cedar Hill appears to be a state actor—are meritless.

Jones does not allege that Graves was involved in the alleged trespass of his 

property or the stalking, harassment, or nuisance-related conduct. It is wellestablished that “[p]ersonal involvement is an essential element of a civil rights 

cause of action” under Section 1983. Hinojosa v. Livingston, 807 F.3d 657, 668 

(5th Cir. 2015) (citing Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983)).

Further, these allegations fail to state a Section 1983 claim. Allegations of 

verbal abuse, harassment, and stalking do not present a constitutional issue. See, 

e.g., Hines v. Graham, 320 F.Supp.2d 511, 520 (N.D. Tex. 2004) (noting that 

claims of verbal abuse and harassment are not actionable under Section 1983) 

(citing Bender v. Brumley, 1 F.3d 271, 274 n.4 (5th Cir. 1993)); Williams v. Farmer, 

2013 WL 1156426, at *5 (N.D. Ill. Mar. 20, 2013) (“[A]llegations of stalking and 

harassment do not constitute a ‘seizure’ under the Fourth Amendment.”); 

Chavarin v. Westchester Public Library Bd. of Trustees, 2015 WL 5117859, at *3 

(N.D. Ill. Aug. 28, 2015) (“[R]egardless of whether Plaintiffs have (or can) allege 

that such actions were ‘under color of law,’ decisions within this Circuit and 

elsewhere consistently hold that allegations of stalking, harassment, offensive 

language, and even threats by a public official are legally insufficient to support an 

equal protection claim or other constitutional claim, as is necessary for relief under 

§ 1983.”) (collecting cases). 

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As for the trespassing allegations, while the Fifth Circuit does not appear to 

have addressed the issue, other courts have held that trespass to land is merely a 

common law tort without constitutional ramifications. Lugaila v. Midway 

Sewerage Authority, 2008 WL 5287318, at *2 (W.D. Pa. Dec. 18, 2008) (“Although 

the Supreme Court has not yet spoken to the issue, several courts have held that a 

trespass to land, in itself, is not a Fourteenth Amendment Due Process violation 

that may be remedied by § 1983. The Courts of Appeals for the Seventh, Eighth and 

Tenth Circuits have stated that a trespass by a state actor alone does not violate the 

Fourteenth Amendment because trespass to land is merely a common law tort.”) 

(citing Andree v. Ashland Cnty., 818 F.2d 1306, 1315 (7th Cir. 1987); Collier v. City 

of Springdale, 733 F.2d 1311, 1315 n.6 (8th Cir. 1984)) (further citations omitted). 

Jones also complains that Graves’s husband, a constable, drove a vehicle 

paid for with tax-payer money. But Jones does not allege that Graves was 

personally involved with that conduct or explain how that conduct violates the 

Constitution or federal laws. These allegations fail to state a claim against Graves.

Similarly, Jones’s allegations that Graves (or any other defendant) engaged 

in “character assassination, racial, civil rights contempt and disrespect, 

charactering [sic],” and violated the First Amendment are conclusory. ECF No. 18 

at 2-3. See, e.g., McFerrin v. Oates, 2016 WL 5109183, at *2 (E.D. Tex. Aug. 4, 

2016) (“Conclusory allegations and legal conclusions without factual support are 

insufficient to avoid dismissal of the complaint.”) (citing Bell Atlantic Corp., 550 

U.S. at 555). 

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In sum, Jones fails to state a claim against any defendant. Accordingly, the 

Court should sua sponte dismiss his case pursuant to Rule 12(b)(6) for failure to 

state a claim.

Leave to Amend

The Fifth Circuit is inclined to give pro se plaintiffs several opportunities to 

state a claim upon which relief can be granted. See Scott v. Brynes, No. 3:07-CV1975-D, 2008 WL 398314, at *1 (N.D. Tex. Feb. 13, 2008); Sims v. Tester, No. 

3:00-CV-0863-D, 2001 WL 627600, at *2 (N.D. Tex. Feb. 13, 2001). Courts 

therefore typically allow pro se plaintiffs an opportunity to amend their complaints 

when the action is to be dismissed pursuant to a court order. See Robinette v. 

Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 3:96-CV-2923-D, 2004 WL 

789870, at *2 (N.D. Tex. Apr. 12, 2004); Sims, 2001 WL 627600, at *2. “Granting 

leave to amend is not required, however, if the plaintiff has already pleaded his 

‘best case.’” Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009) (citation 

omitted). 

Here, Jones has filed two complaints and responded to an MJQ. “A verified 

questionnaire response allows a plaintiff to plead his or her best case and is a valid 

way for a pro se litigant to amend his complaint.” Merchant v. Garland Police 

Dep’t, 2022 WL 1158262, at *7 (N.D. Tex. Mar. 28, 2022), rec. accepted 2022 WL 

1158005 (N.D. Tex. Apr. 19, 2022) (citing Nixon v. Abbott, 589 F. App’x 279 (5th 

Cir. 2015) (per curiam)). Because Jones has filed two complaints and responded to 

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an MJQ, he has had ample opportunity to plead his best case and further leave to 

amend is not necessary or warranted. 

Recommendation

The Court should sua sponte dismiss Jones’s case under Federal Rule of Civil 

Procedure 12(b)(6) for failure to state a claim.

SO RECOMMENDED 

Signed March 21, 2023. 

_________________________________

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall 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). To be specific, 

an objection must identify the specific finding or recommendation to which 

objection is made, state the basis for the objection, and specify the place in the 

magistrate judge’s report and recommendation where 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 Servs. Auto. 

Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).

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