IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-20445

DAVID L. LANCASTER, 

 Plaintiff - Appellant,

v.

HARRIS COUNTY; KIM OGG, Harris County District Attorney; CHRIS 

DANIELS, Harris County District Clerk; UNKNOWN DEPUTIES, Harris 

County; UNKNOWN EMPLOYEES, Harris County Deputy District Clerks; 

ELIZABETH BARRON, Assistant District Attorney; KATHERYN 

SKAGERBERG, Assistant District Attorney; JAMES H. COX, II, Deputy; 

KEVIN TAYLOR, Deputy; UNKNOWN JUDGE, 247th District Court; JUDY 

WARNE, Judge, 257th District Court; JOHN SCHMUDE, Judge, 247th 

District Court; BARBARA LANCASTER; SHERMAN EAGLETON, Constable, 

Precinct 3 of Harris County, 

 Defendants - Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:18-CV-1936

Before SMITH, HO, and OLDHAM, Circuit Judges.

PER CURIAM:*

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 10, 2020

Lyle W. Cayce

Clerk

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This is a case about abuse—of a woman and of the legal system. PlaintiffAppellant David Lancaster contends that he is innocent of the former and a 

victim of the latter. The district court dismissed his complaint with prejudice. 

We affirm, albeit for slightly different reasons from those given by the district 

court.

I.

A.

In 2009, Lancaster lived with his then-wife, Barbara. In May of that 

year, Barbara complained to the Harris County Sheriff’s Department that 

Lancaster assaulted her. The complaint led to a criminal charge, which was 

dropped in June.

Barbara subsequently decided to leave Lancaster. Throughout June and 

July 2009, deputies from the Harris County Sheriff’s Office entered the 

Lancaster home with Barbara to collect her belongings. In Lancaster’s view, 

these were lawless “raid[s]” of the “family home.”

On August 25, with assistance from the Harris County District 

Attorney’s Office, Barbara received a temporary protective order against 

Lancaster from a state court. The court set a hearing for September 9. A deputy 

constable received notice of the application for a protective order on August 28, 

a Friday. The deputy attempted to serve Lancaster with the notice on 

September 1, 2, and 3, and succeeded in doing so on September 4.

On September 9, Lancaster did not show up at the hearing. In his 

absence, the court entered a two-year protective order. Before the order 

expired, the DA’s office charged Lancaster with two counts of criminal 

contempt for violating that order. Lancaster pleaded guilty.

In January 2013, Lancaster filed a bill of review of the 2009 protective 

order. “A bill of review is an equitable proceeding [available in Texas state 

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courts] to set aside a prior judgment that is no longer subject to challenge by a 

motion for new trial or direct appeal.” PNS Stores, Inc. v. Rivera, 379 S.W.3d 

267, 275 (Tex. 2012). Lancaster lost before the state trial court. The state 

appeals court disagreed, reversed, and partially remanded the case. After 

further proceedings, the trial court again ruled against Lancaster in 2017.

Lancaster chose to appeal again. In preparing for that appeal, he noticed 

that the online records of all protective orders before the trial court appeared 

to have vanished. This allegedly hampered his ability to expose a pattern of 

improper protective orders. Lancaster lost his second appeal.

B.

In June 2018, Lancaster brought a six-count civil-rights complaint in 

federal district court, seeking money damages. He sued:

(1)the Harris County Sheriff’s Office, its deputies, and his ex-wife for the 

2009 “raid” of his home (“Claim 1” or the “Raid Claim”); 

(2)the judge that issued the 2009 protective order, for favoring the DA’s 

position over his (“Claim 2” or the “Unfair-Judge Claim”); 

(3) Harris County, the Harris County DA’s Office, an assistant district 

attorney (“ADA”), the Harris County District Clerk’s Office, and Precinct 

3 of the Harris County Constable’s Office, along with one of its deputies,

for the untimely delivery of notice of the 2009 protective order hearing

(“Claim 3” or the “Late-Notice Claim”);

(4) Harris County, the Harris County DA’s Office, and some ADAs, for 

bringing the protective order application on behalf of Barbara 

Lancaster—an improper taking of sides by the state, apparently (“Claim 

4” or the “Government-Taking-Sides Claim”);

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(5)the trial court judge that found against him in the bill of review 

proceedings, for refusing to vacate the 2009 protective order (“Claim 5” 

or the “Second Unfair-Judge Claim”); and

(6) Harris County, the Harris County District Clerk’s Office, and certain

Clerk’s Office employees, for a conspiracy to cover up civil-rights 

violations by deleting online records (“Claim 6” or the “Online-Records 

Claim”).

The defendants moved to dismiss. The district court dismissed the 

complaint with prejudice on three grounds: claim preclusion; expiration of the 

two-year limitation period for bringing the claims; and, as to Claims 2 and 5

(the Unfair-Judge and Second Unfair-Judge Claims), judicial immunity. 

II.

We agree with the district court’s judgment but not all of its reasons. The 

court believed that claim preclusion applied because every claim could have 

been brought in the 2013 bill of review. We’re not so sure about that.

A bill of review is a tool for overturning a judgment after the deadline for 

a direct appeal has passed. See PNS Stores, 379 S.W.3d at 275. A successful 

bill merely results in the setting aside of the challenged judgment. See Baker 

v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979). It is not at all clear that a 

plaintiff may add defendants to a bill-of-review proceeding if they were not 

defendants in the original, challenged action. Nor does it seem that money 

damages, like those sought by Lancaster now, are available to a bill-of-review 

complainant. So we do not agree with the district court’s conclusion that 

Lancaster ought to have raised his civil-rights challenges in the course of the 

bill-of-review proceedings. See Snow Ingredients, Inc. v. SnoWizard, Inc., 833 

F.3d 512, 521 (5th Cir. 2016) (“Claim preclusion bars the litigation of claims 

that have been or should have been raised in an earlier suit.”). In any event, 

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Claims 5 and 6 relate to events that occurred after Lancaster filed his bill of 

review in 2013, so it is incorrect to say that they should have been raised back 

then.

We nonetheless affirm the dismissal, mindful that we may do so “on any 

grounds supported by the record.” Palmer v. Waxahachie Indep. Sch. Dist., 579 

F.3d 502, 506 (5th Cir. 2009) (quotation omitted).

A.

We begin with Claim 1, the Raid Claim. This incident took place over the 

course of two months in 2009. Assuming, as the parties do, that the relevant 

limitation period is two years, this claim became time-barred in 2011.

Lancaster invokes the rule of Heck v. Humphrey, 512 U.S. 477 (1994). 

Heck defers accrual of certain claims related to a criminal prosecution until 

termination of the prosecution in the criminal defendant’s favor. Id. at 489–90. 

Lancaster contends that, by virtue of the Heck doctrine, the limitation period 

only began to run once his bill-of-review proceedings came to an end. We 

disagree. 

At the time the sheriff’s deputies entered his home, the criminal charges 

against Lancaster had been dismissed, and there was no protective order in 

place. So even if Heck can be stretched to cover civil protective orders, it does 

not apply here because the Raid Claim is entirely unrelated to the 2009 

protective order. See Smith v. Hood, 900 F.3d 180, 185 (5th Cir. 2018) (noting 

that Heck does not apply when the “claim is temporally and conceptually 

distinct from the related conviction” and that “[t]his circuit has thus far applied 

the Heck doctrine only to claims that implicate criminal convictions or 

sentences” (quotation omitted)).

Lancaster also asserts that the continuing-tort doctrine, the discovery 

rule, and fraudulent concealment delay the accrual date or toll the limitation 

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period. We need not spend much time on those arguments. Under Lancaster’s

theories, the Raid Claim is only timely if the so-called raid continued until June 

2016, two years before he commenced his federal lawsuit, or if the raid was 

undiscoverable until that time. But it wasn’t. The raid of the Lancaster home 

was an isolated incident in 2009, of which Lancaster was aware at the time.

The Raid Claim became time-barred in 2011. The district court was correct to 

dismiss it.

B.

Next we consider Claims 2 and 5, the Unfair-Judge Claim and the 

Second Unfair-Judge Claim. Both claims stem from actions performed by 

judges in their judicial capacity. “[G]enerally, a judge is immune from a suit 

for money damages.” Mireles v. Waco, 502 U.S. 9, 9 (1991) (per curiam). 

Judicial immunity does not apply, however, if the challenged “action[] [is] not 

taken in the judge’s judicial capacity.” Id. at 11. Lancaster argues that this

exception applies because the judges had no discretion but to rule in his favor. 

That’s not how this immunity works: “If judicial immunity means anything, it 

means that a judge will not be deprived of immunity because the action he took 

was in error or was in excess of his authority.” Id. at 12–13 (quotation omitted). 

The judges’ decisions to rule against Lancaster may or may not have been 

correct as a matter of Texas law—but they were judicial decisions. Judicial 

immunity applies.

C.

Claims 3 and 6, the Late-Notice and the Online-Records Claims, cannot 

overcome the same three hurdles: qualified immunity, failure to name proper 

parties, and failure to plead municipal liability.

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1.

First, qualified immunity protects the individual defendants named in 

these claims—employees of the Harris County DA’s Office, District Clerk’s 

Office, and Constable’s Office. 

Qualified immunity shields public officials from suit unless “the right the 

official is alleged to have violated [was] ‘clearly established’” at the time of the 

alleged violation. Anderson v. Creighton, 483 U.S. 635, 640 (1987). “A clearly 

established right is one that is sufficiently clear that every reasonable official 

would have understood that what he is doing violates that right.” Mullenix v. 

Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (quotation omitted). To show that 

a right is clearly established, a plaintiff need not provide “a case directly on 

point, but existing precedent must have placed the statutory or constitutional 

question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). 

According to Lancaster, Claim 3 concerns a violation of his “clearly 

established fundamental entitlement to notice of application for [a] protective 

order where the 7 day delay represents more than 1/3 [of] the allowed time for 

the hearing to be held within 20 days.” But Lancaster has not pointed to any 

precedent that places beyond debate the right to such specific notice. As for 

Claim 6, the Online-Records claim, the briefing is devoid of a case even hinting 

at the right to access state-court-protective-order records online. 

Because Lancaster has failed to show that his rights were clearly 

established at the time they were allegedly violated, we need not consider 

whether these rights in fact exist. See Pearson v. Callahan, 555 U.S. 223, 236–

37 (2009) (permitting a court to determine that a right is not clearly established 

without deciding whether that right exists at all). Qualified immunity applies.

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2.

Failure to name a proper party puts an end to the claims against the 

Harris County subdivisions named in Claims 3 and 6—the DA’s Office, the 

District Clerk’s Office, and Precinct 3 of the Constable’s Office. 

An entity’s capacity to be sued is determined “by the law of the state 

where the court is located.” FED. R. CIV. P. 17(b)(3). Lancaster has directed us 

to no Texas law permitting Harris County entities (including the DA’s Office, 

the District Clerk’s Office, and precincts of the Constable’s Office) to sue or be 

sued separately from Harris County. These offices therefore have no place in 

this lawsuit. See Darby v. Pasadena Police Dep’t, 939 F.2d 311, 313 (5th Cir. 

1991); Potts v. Crosby Indep. Sch. Dist., 210 F. App’x 342, 344–45 (5th Cir. 

2006) (per curiam) (affirming the district court’s holding that the “Harris 

County Sheriff’s Department, as a non sui juris division of Harris County, 

lacks the capacity to be sued”).

3.

As for the allegations against Harris County, they are insufficient to get 

past a Rule 12(b)(6) motion. In order to survive Harris County’s motion to 

dismiss, a plaintiff must “plead facts that plausibly establish: a policymaker; 

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

the policy or custom.” Ratliff v. Aransas Cty., 948 F.3d 281, 285 (5th Cir. 2020) 

(quotation omitted). Lancaster’s barebones allegations about the county’s 

involvement contain none of these facts, only conclusory allegations. Harris 

County was properly dismissed. No defendants to Claims 3 and 6 remain.

D.

Finally, Claim 4 fails to state a claim. The premise of the GovernmentTaking-Sides Claim is that, under Texas law, a prosecutor may file a protective 

order application on behalf of an individual but may not then represent that 

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individual in the subsequent proceedings. As Lancaster would have it, the DA’s 

representation of Barbara in the protective-order proceedings violated Texas 

law and, somehow, the U.S. Constitution as well. 

Not so. Texas law permits a local government attorney to be “the 

prosecuting attorney responsible for filing applications” for a protective order. 

TEX. FAM. CODE § 81.007(a). Nothing in this text limits the government 

attorney to only “filing applications.” Indeed, the same provision describes the 

government lawyer as a “prosecuting attorney” Ibid. (emphasis added). 

“Prosecute” means “[t]o commence and carry out a legal action.” Prosecute, 

BLACK’S LAW DICTIONARY (11th ed. 2019) (emphasis added; parentheses 

omitted). It would render the phrase “prosecuting attorney” meaningless if we 

read § 81.007(a) to permit a government attorney to file the application but not 

prosecute the case. And we are “general[ly] reluctan[t] to treat statutory terms 

as surplusage.” Bd. of Trs. of Leland Stanford Jr. Univ. v. Roche Molecular 

Sys., Inc., 563 U.S. 776, 788 (2011) (quotation omitted). Section 81.007(a) 

therefore must be read to authorize a government attorney to represent the 

party seeking a protective order throughout the proceedings. See, e.g., In re 

A.W.R., No. 10-09-00237-CV, 2010 WL 3272304, at *1 (Tex. App.—Waco Aug. 

11, 2010, no pet.) (“An applicant for a protective order may be represented by 

either a prosecuting attorney or a private attorney.”); Striedel v. Striedel, 15 

S.W.3d 163, 167 n.2 (Tex. App.—Corpus Christi 2000, no pet.) (noting that 

§ 81.007(a) is unique in Texas in that it provides the applicant with “statutorily 

guaranteed counsel”).

The constitutional violation asserted in Claim 4 is predicated on a 

violation of Texas law. But the DA’s office did not violate state law when it

represented Barbara Lancaster. So Claim 4 was properly dismissed along with

the others.

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III.

The district court denied Lancaster permission to amend his complaint. 

That was not an abuse of discretion. Nor was the court’s failure to recuse.

A.

Although leave to amend should be given “freely,” FED. R. CIV. P.

15(a)(2), “[d]enying a motion to amend is not an abuse of discretion if,” as here,

“allowing an amendment would be futile,” Marucci Sports, L.L.C. v. NCAA, 751 

F.3d 368, 378 (5th Cir. 2014). Lancaster cannot plead around the time-bar, 

qualified immunity, and judicial immunity problems that doom most of his 

claims.

Additionally, Lancaster has not filed a proposed amended complaint. Nor 

has he “state[d] any material facts he would have included in an amended 

complaint” that would overcome the deficiencies in his original complaint. 

Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009) (per curiam). Even 

considering the patience courts must afford pro se plaintiffs, see id. at 767–68, 

it was not an abuse of discretion to deny leave to amend. 

B.

Finally, recusal. Lancaster relegates this issue to three sentences in his 

opening brief. We can dispose of it in two. The complained-of comments made 

by the district court reflected its measured views of the merits of the case, not 

any animus toward the plaintiff; recusal was unnecessary. See Liteky v. United 

States, 510 U.S. 540, 555 (1994) (“[O]pinions formed by the judge on the basis 

of facts introduced . . . do not constitute a basis for a bias or partiality motion 

unless they display a deep-seated favoritism or antagonism that would make 

fair judgment impossible.”).

* * *

The judgment of the district court is AFFIRMED.

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