IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

DAVID BAUMGARTNER, §

 §

Plaintiff, §

 §

v. § Civil Action No. 7:22-cv-00081-O-BP

 §

MARSHALL THOMAS, et al., §

 §

Defendants. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Before the Court are Defendants’ Motion to Dismiss and Brief in Support (ECF No. 8)

filed December 13, 2022; Plaintiff’s Response (ECF No. 11); Plaintiff’s Motion for Leave to File 

Second Amended Complaint (ECF No. 9) filed January 3, 2023; Defendants’ Response (ECF No. 

12) filed January 24, 2023; and Plaintiff’s Response (ECF No. 15) filed February 14, 2023. After 

considering the pleadings and the applicable legal authorities, the undersigned RECOMMENDS

that United States District Judge Reed O’Connor GRANT Defendants’ Motion (ECF No. 8) and 

DISMISS Plaintiff’s claims under federal law with prejudice and DISMISS without prejudice

his claims asserting violations of Texas law. Further, the Court should DENY Plaintiff’s Motion 

for Leave to File Second Amended Complaint (ECF No. 9) because Baumgartner has pleaded his 

best case and further amendment would be futile.

I. BACKGROUND 

In his amended complaint, David Baumgartner (“Baumgartner”) alleges that Marshall 

Thomas, Sheriff of Montague County, Texas; Brandon Fischer, Montague County Deputy Sheriff; 

Casey Polhemus, District Attorney for Montague County; and Kasey Hamilton, Administrative 

Assistant to the Sheriff of Montague County (“Defendants”) denied him his Fourth, Fifth, and 

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Thirteenth Amendment rights by “compelling him to lifetime bondage and involuntary servitude 

to both the Montague County Sheriff’s Office and the Texas Department of Public Safety.” ECF 

No. 5 at 6. Baumgartner is a convicted and registered sex offender and therefore must verify his 

sex offender registry information at least once every ninety days. ECF No. 8 at 2; Tex. Code. Crim. 

Proc. Art. 62.058 (West 2023). The “bondage and involuntary servitude” claim in Baumgartner’s 

amended complaint refers to this requirement. ECF No. 5 at 3-4, 6-8.

Baumgartner filed his complaint on August 16, 2022 (ECF No. 1) and his amended 

complaint on October 12, 2022 (ECF No. 5). He sues Defendants in their official and individual 

capacities. ECF No. 5 at 2. Defendants filed a Motion to Dismiss for failure to state a claim for 

which relief can be granted. ECF No. 8. Besides responding to Defendant’s Motion (ECF No. 11), 

Baumgartner also filed a Motion for Leave to Amend his Complaint (ECF No. 9) a second time. 

Both Motions are ripe for review. 

II. LEGAL STANDARDS

A. Rule 12(b)(6) 

Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a party to move for dismissal 

of a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). 

The Rules require that a pleading stating a claim for relief contain “a short and plain statement of 

the claim showing that the pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a). A complaint must 

include sufficient factual allegations “to raise a right to relief above the speculative level.” Bell 

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering a Rule 12(b)(6) motion, courts 

must “take all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff 

. . . and ask whether the pleadings contain ‘enough facts to state a claim to relief that is plausible 

on its face.’” Yumilicious Franchise, L.L.C. v. Barrie, 819 F.3d 170, 174 (5th Cir. 2016) (citing 

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Twombly, 550 U.S. at 547). “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) (citing Twombly, 550 U.S. at 

557). 

When dealing with a pro se party, courts are to liberally construe the pleadings, taking all 

well-pleaded allegations as true. Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir. 1993). “[A] pro se

complaint, however inartfully pleaded, must be held to less stringent standards than formal 

pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. 

Gamble, 429 U.S. 97, 106 (1976)). But “even a liberally-construed pro se . . . complaint must set 

forth facts giving rise to a claim on which relief may be granted.” Levitt v. Univ. of Texas at El 

Paso, 847 F.2d 221, 224 (5th Cir. 1988) (citing Bounds v. Smith, 430 U.S. 817, 825 (1977)). Thus, 

a court inquires “whether within the universe of theoretically provable facts there exists a set which 

can support a cause of action under [the] complaint.” Covington v. Cole, 528 F.2d 1365, 1370 (5th 

Cir. 1976).

B. 42 U.S.C. § 1983

Section 1983 does not provide any substantive rights, but instead “provides a method for 

vindicating already conferred rights.” Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 412 (5th

Cir. 2015). “Section 1983 provides a claim against anyone who under color of any statute, 

ordinance, regulation, custom, or usage, of any State violates another's constitutional 

rights.” Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013). “To state a section 1983 claim, ‘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 

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color of state law.’” James v. Tex. Collin Cty., 535 F.3d 365, 373 (5th Cir. 2008) (quoting Moore

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

C. Qualified Immunity 

“Qualified immunity shields government officials performing discretionary functions from 

liability unless their conduct violates clearly established statutory or constitutional rights of which 

a reasonable person would have known.” Gibson v. Rich, 44 F.3d 274, 277 (5th Cir. 1995) (citing 

Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994)). “[T]he immunity issue must be resolved at 

the earliest possible stage of the litigation since it entails an entitlement to immunity from suit and 

not merely a defense to liability.” Id. (citing Hunter v. Bryant, 502 U.S. 224, 226 (1991)). Qualified 

immunity can be decided at the Motion to Dismiss stage as it is the earliest possible stage in 

litigation. Carswell v. Camp, 37 F.4th 1062, 1068 (5th Cir. 2022)

To overcome the defense of qualified immunity, a plaintiff must show “(1) that the official 

violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the 

time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (citations omitted). 

“[A] good-faith assertion of qualified immunity alters the usual summary judgment burden of 

proof, shifting it to the plaintiff to show that the defense is not available.” Ratliff v. Aransas Cnty., 

948 F.3d 281, 287 (5th Cir. 2020). 

D. Municipal Liability 

“A municipality cannot be held liable solely because it employs a tortfeasor—or, in other 

words, a municipality cannot be held liable under § 1983 on a respondent superior theory.” Monell 

v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 691 (1978). Municipalities may be held liable 

under § 1983, but only where a custom, policy or practice is the moving force behind a 

constitutional violation. Hampton Co. Nat'l Sur., LLC v. Tunica Cty., 543 F.3d 221, 224 (5th Cir. 

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2008). Establishing “[m]unicipal liability under Section 1983 requires proof of three elements: a 

policymaker; an official policy; and a violation of constitutional rights whose ‘moving force’ is 

the policy or custom.” Fennell, 804 F.3d at 412 (quoting Monell, 436 U.S. at 694). 

III. ANALYSIS

A. Baumgartner has not pleaded sufficient facts to support his § 1983 claims.

Baumgartner alleges in his amended complaint that Defendants violated his Fourth 

Amendment rights by “unlawfully depriving Plaintiff the exercise and enjoyment of a right to be 

secure in his proper/correct person, papers, and effects.” ECF No. 5 at 7. Further, he states in 

conclusory fashion that his “unalienable constitutional rights secured him by the Constitution for 

the United States of America and Texas were deprived” in violation of the Fifth Amendment as a 

result of an arrest for an unspecified offense. Id. Specifically, he repeatedly states that 

[Defendants are] tying Plaintiff to lifetime bondage and involuntary 

servitude to the extraneous entities MONTAGUE COUNTY 

SHERIFF’S OFFICE and TEXAS DEPARTMENT OF PUBLIC 

SAFETLY by operating outside the scope of their Oath of Office to 

conspire, oppress, threaten, intimidate, and defraud Plaintiff of the 

exercise and enjoyment of liberty and other rights secured him by 

the Constitution for the United States of America and Texas, 

compelling him to a tie of duty under a particular code of the Texas 

Code of Criminal Procedure. 

Id. at 6, 7.

Liberally construed, the amended complaint asserts that Defendants violated 

Baumgartner’s rights because of the sex offender verification requirements applicable to him under

Article 62.058 of the Texas Code of Criminal Procedure. Id. at 7-8. It also alleges that “the jury 

got it wrong when they convicted him for the underlying crimes” requiring the sex offender 

verification. Id. at 3-7. Finally, Baumgartner likens these reporting requirements to “bondage and 

involuntary servitude” in violation of the Thirteenth Amendment. Id. at 7. Defendants respond that 

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Baumgartner has not alleged facts that would form the basis of any of the alleged violations. ECF 

No. 8 at 4-5. 

A complaint must contain a short and plain statement of the claim showing that the pleader 

is entitled to relief by including sufficient factual allegations “to raise a right to relief above the 

speculative level.” Fed. R. Civ. P. 8(a); Twombly, 550 U.S. at 555. Baumgartner has not stated any 

facts to show how any of Defendants’ actions violated his constitutional rights. See ECF Nos. 5, 

11. He has included no reference to dates, times, conversations, or any other facts in his amended 

complaint to demonstrate how the Montague County Sheriff, Deputy Sheriff, Administrative 

Assistant to the Sheriff, or the District Attorney have violated his civil rights through the 

administration and enforcement of the verification requirement. Id. He also has not cited to any 

legal authority supporting any claim. Id. He merely makes conclusory statements about his rights. 

Id. Therefore, he cannot establish the elements required to seek redress against the Defendants in 

either their official or individual capacities through a § 1983 claim. Piotrowski v. City of Houston, 

51 F.3d 512, 515 (5th Cir. 1995). 

1. Qualified Immunity

Additionally, and in the alternative, Defendants in their individual capacities allege that 

they are entitled to qualified immunity. ECF No. 8 at 6. They argue that Baumgartner has not 

sufficiently pleaded a constitutional violation or alleged conduct that was objectively unreasonable 

as a matter of law. Id. at 6-7. Because of these deficiencies, Defendants assert that Baumgartner 

could not defeat their right to qualified immunity. Id. Baumgartner did not brief qualified immunity 

for the purposes of his § 1983 claim, but did do so in response to his allegations of violations of 

the Texas Constitution, stating that “Defendants are not entitled to qualified immunity when rights 

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against one of the People of Texas are transgressed and that of a right be established before or at 

the time of the transgression.” ECF No. 11 at 9. 

When a Defendant raises the qualified immunity defense, a plaintiff’s complaint must 

“state with precision and specificity” the basis for the claim which necessarily includes why the 

defendant official cannot successfully maintain the defense of immunity. Anderson v. Pasadena 

Indep. School Dist., 184 F.3d 439, 443 (5th Cir. 1999). The Fifth Circuit continues to adhere to a 

“heightened pleading” standard in civil rights cases against government officials. See Schultea v. 

Wood, 47 F.3d 1427, 1433-34 (5th Cir. 1995) (en banc) (affirming the continuing validity of Elliot 

v. Perez, 751 F.2d 1472 (5th Cir. 1985))). Even had Baumgartner been able to offer information 

that a United States or Texas constitutional violation had occurred, he has not provided any facts 

or legal authority showing that Defendants’ conduct was not at the very least reasonably believed 

to be legal. See ECF Nos. 5, 11; Morgan v. Swanson, 659 F.3d 359, 370-71 (5th Cir. 2011). 

Because Baumgartner cannot meet his burden to overcome qualified immunity, his § 1983 claims 

against Defendants in their individual capacities should be dismissed. 

2. Municipal Liability 

Defendants also argue that because Baumgartner’s claims are against Defendants in their 

official capacities, in addition to their individual capacities, that his claims are “essentially against 

Defendants’ government employer, Montague County.” ECF No. 8 at 5-6. Defendants insist that 

Baumgartner has not pleaded facts to establish a § 1983 municipal liability claim. Id. at 6.

Before a plaintiff can sue a governmental entity under the theory of municipal liability for 

a policy or practice, there must be an actual violation of a plaintiff’s constitutional rights 

underlying the claim. Blackburn v. City of Marshall, 42 F.3d 925, 935 (5th Cir. 1995) (holding 

that a plaintiff must first identify a life, liberty, or property interest protected by the Fourteenth 

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Amendment and then identify a state action that resulted in a deprivation of that interest). Without 

an actual constitutional violation, any alleged custom or policy is irrelevant. See City of Los 

Angeles. v. Heller, 475 U.S. 796, 799 (1986). Baumgartner has not alleged facts to show a

constitutional violation here. Further, even if there had been a violation, a county may only be 

liable under § 1983 for conduct directly attributable to it through official action or grant of 

approval. Id. A plaintiff must show that the action was taken pursuant to an official policy causing 

constitutional harm. Bradyn S. v. Waxahachie Indep. Sch. Dist., 407 F. Supp. 3d 612, 617 n.2 (N.D. 

Tex. 2019). 

Baumgartner has made no such showing. He has not pleaded that there was a Sheriff’s 

Department or county policy, custom, or procedure that resulted in the deprivation of his rights. 

See Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984). He only restates his claim 

related to the sex offender registration verification imposed on him by state law. ECF Nos. 5, 11. 

Accordingly, Baumgartner has not stated a viable claim against Defendants in their official 

capacities. 

B. The Court should decline to exercise supplemental jurisdiction over 

Baumgartner’s claims that Defendants violated the Texas Constitution and 

Texas Penal Code.

Baumgartner alleges four claims under the Texas Constitution including violations of (a) 

Texas’s republican form (art. I, § 29) and powers of government (art I, § 2); (b) establishment of 

a religious test (art. I, § 4); and (c) violation of his freedom of worship (art. I § 6). ECF Nos. 5 at 

6-11, 8 at 8-10; Tex. Const. Baumgartner also claims that Defendants violated five provisions of 

the Texas Penal Code: Theft (§ 31.03), Aggravated Perjury (§ 37.03), Abuse of Official Capacity 

(§ 39.02), Official Oppression (§ 39.03), and Criminal Conspiracy (§ 15.02). ECF No. 5 at 10-11; 

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Tex. Pen. Code. All of these claims arise from the same claim that the Court should relieve him of 

requirements under Texas law that he verify his status as a sex offender. Id

Because the undersigned recommends that Judge O’Connor dismiss Baumgartner’s federal 

claims, the Court should decline to exercise supplemental jurisdiction over his state law claims. 

See 28 U.S.C. §§ 1367(c), 1331, 1332(a); Pennie v. Obama, 255 F. Supp. 3d 648, 672 n.5 (N.D. 

Tex. 2017). Judge O’Connor should dismiss Baumgartner’s state law claims without prejudice to 

allow him to refile in state court should he choose to do so. Bass v. Parkwood Hosp., 180 F.3d 

234, 246 (5th Cir. 1999).

C. Because Baumgartner has pleaded his best case and any amendments would 

be futile, Judge O’Connor should deny his Motion for Leave to File a Second 

Amended Complaint.

Generally, the Court should afford a pro se litigant an opportunity to amend his complaint 

before dismissing it. Brewster v. Dretke, 587 F.3d 764, 767–68 (5th Cir. 2009). However, this 

opportunity is unnecessary when a plaintiff has already pleaded his “best case.” Id. at 768. As 

noted above, Baumgartner previously filed an amended complaint (ECF No. 5), choosing to 

address the issues raised by Defendants in their Motion to Dismiss (ECF No. 8) through an 

amended pleading. However, that amended complaint still lacked any facts to support a claim 

against the Defendants. See ECF No. 8. Accordingly, the undersigned concludes that permitting 

him to amend his pleadings for a third try would be a futile gesture that the law does not 

require. See Jamieson v. Shaw, 772 F.2d 1205, 1209–11 (5th Cir. 1985) (It is within the district 

court's discretion to deny a motion to amend if it is futile.); see also Walker v. JPMorgan Chase,

N.A., No. 3:12-CV-4133-L, 2012 WL 6208418, at *4 (N.D. Tex. Dec. 13, 2012) (finding that any 

further amendments would be “ futile and unnecessarily delay the resolution of [the] action.”).

Accordingly, Baumgartner has alleged his best case, and no further opportunity to amend his 

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claims against Defendants is warranted. Thus, Judge O’Connor should deny his Motion for Leave 

to File Second Amended Complaint (ECF No. 9).

IV. CONCLUSION 

Because Baumgartner has not pleaded facts to show that Defendants violated his

constitutional rights or that they violated clearly established law, they are entitled to dismissal of 

his claims. Baumgartner already has amended his complaint and has pleaded his best case, though 

it is legally insufficient to state a claim. Accordingly, the undersigned RECOMMENDS that 

Judge O’Connor GRANT Defendants’ Motion (ECF No. 8) and DISMISS Plaintiff’s claims under 

federal law with prejudice and DISMISS without prejudice his claims asserting violations of 

Texas law. Further, the Court should DENY Plaintiff’s Motion for Leave to File Second Amended 

Complaint (ECF No. 9) because Baumgartner has pleaded his best case and further amendment 

would be futile.

A copy of these findings, conclusions, and recommendation shall be served on all parties 

in the manner provided by law. Any party who objects to any part of these findings, conclusions, 

and recommendation must file specific written objections within 14 days after being served with 

a copy. See 28 U.S.C. § 636(b)(1)(B) and Fed. R. Civ. P. 72(b)(1). In order 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 findings, conclusions, 

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 

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court, except upon grounds of plain error. See Douglass v. United Services Auto. Ass’n, 79 F.3d 

1415, 1417 (5th Cir. 1996) (en banc).

SIGNED on April 28, 2023.

 

____________________________________

 Hal R. Ray, Jr.

 UNITED STATES MAGISTRATE JUDGE

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