IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MICHAEL DARNELL JONES,

 Plaintiff, 

§

§

§

v. § No. 3:22-cv-1875-C (BT)

 §

ESTHER GORMAN, 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 Esther Gorman; the Code Enforcement Department of Cedar Hill, Texas; 

the Cedar Hill Police Department; and Stacey Graves, the director of neighborhood 

services for Cedar Hill, as defendants. See ECF No. 15; ECF No. 18 at 19. The 

amended complaint contains no specific factual allegations.1 Instead, it charges all 

defendants broadly with “race discrimination.” ECF No. 15 at 4. 

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 

incorporates by reference the earlier pleading.” King v. Dogan, 31 F.3d 344, 346 

Case 3:22-cv-01875-C-BT Document 19 Filed 03/21/23 Page 1 of 9 PageID 132
2

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

claims. ECF No. 18. In his responses to the MJQ, Jones refers the Court to the 

state-court docket sheet in his recently-dismissed case Michael Jones v. Esther 

Gorman and Gene Gorman, Cause No. DC-22-07597 (68th Judicial Dist. Ct., 

Dallas Cnty.), in which he sought a restraining order against Esther and Gene 

Gorman for stalking him, harassing him, coming onto his property without 

permission, and acting as a nuisance.2

When asked in the MJQ 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, and 

he seeks recourse under Section 1983. ECF No. 18 at 3.

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 

(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 

(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 

analysis. 

2 He makes similar allegations against these same defendants in another, currentlypending federal case. See Michael Darnell Jones v. Code Enforcement Business, et 

al., 22-cv-1907-X-BT (N.D. Tex.). 

Case 3:22-cv-01875-C-BT Document 19 Filed 03/21/23 Page 2 of 9 PageID 133
3

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)).

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 claim under Section 1983, a plaintiff must establish two elements: 

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

Case 3:22-cv-01875-C-BT Document 19 Filed 03/21/23 Page 3 of 9 PageID 134
4

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. Jones’s claims against the Cedar Hill Code Enforcement Department and the 

Cedar Hill Police Department should be dismissed because they are nonjural 

entities.

Jones sues the Cedar Hill Code Enforcement Department and the Cedar Hill 

Police Department. 

“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). “[U]nless the ‘true 

political entity’ has explicitly ‘[granted] the servient agency with jural authority,’ it 

may not sue or be sued.” Id. (quoting Darby, 939 F.2d at 313). “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 does not allege that the Cedar Hill Code Enforcement 

Department or the Cedar Hill Police Department has the power to sue or be sued; 

Case 3:22-cv-01875-C-BT Document 19 Filed 03/21/23 Page 4 of 9 PageID 135
5

therefore, his claims against these defendants should be dismissed. 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) (finding that the City of 

Princeton Code Enforcement Department was a nonjural entity); 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). 

B. Esther Gorman is not a state actor, and the allegations against her are 

insufficient to state a claim. 

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 any facts showing that Esther Gorman is a state actor. 

There is no indication from Jones’s pleadings that Esther Gorman has any 

government connection. She appears to simply be Jones’s neighbor.3

Even if Gorman was a state actor, 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 

3

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

Gorman.

Case 3:22-cv-01875-C-BT Document 19 Filed 03/21/23 Page 5 of 9 PageID 136
6

F.3d 271, 274 n.4 (5th Cir. 1993)); see also 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). 

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). 

Finally, the allegations that Gorman (or any other defendant) engaged in 

racial discrimination and/or violated the First Amendment are too conclusory to 

Case 3:22-cv-01875-C-BT Document 19 Filed 03/21/23 Page 6 of 9 PageID 137
7

state a claim. 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). 

In short, Jones fails to state a Section 1983 claim against Esther Gorman. 

C. Jones fails to state a Section 1983 claim against Graves.

As for Graves, while she—as the Director of Neighborhood Services for Cedar 

Hill—appears to be a state actor, Jones does not allege that she was involved in the 

alleged trespass of his property or the stalking, harassment, or nuisance-related 

conduct. It is well-established 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)).

And, at any rate, as explained above, the conduct that Jones is complaining 

about—harassment, stalking, and trespass—does not support a Section 1983

action, and his allegations of race discrimination and a First Amendment violation 

are conclusory. Thus, Jones fails to state a Section 1983 claim against Graves even 

assuming that she is a state actor.

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. 

Case 3:22-cv-01875-C-BT Document 19 Filed 03/21/23 Page 7 of 9 PageID 138
8

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 

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. 

Case 3:22-cv-01875-C-BT Document 19 Filed 03/21/23 Page 8 of 9 PageID 139
9

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).

Case 3:22-cv-01875-C-BT Document 19 Filed 03/21/23 Page 9 of 9 PageID 140