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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

DANNY JOHNSTON,

 Plaintiff and Counter-Defendant.

v.

PATRICIA ANN JOHNSTON,

 Defendant and Counter-Plaintiff.

v.

EAST TEXAS OIL FIELD 

CONSTRUCTION, LLC,

 Counter-Defendant.

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CASE NO. 6:23-CV-00413-JDK-KNM

REPORT AND RECOMMENDATION OF 

THE UNITED STATES MAGISTRATE JUDGE

This case is referred to the undersigned pursuant to 28 U.S.C. § 636(b). Doc. 15. Before 

the Court is Patricia Johnston’s Motion for Contempt and Sanctions Against Danny Johnston. Doc. 

14. The Court held a status conference on June 13, 2024. Doc. 55. Mr. Johnston, who is currently 

proceeding pro se, was present at the status conference. Doc. 55. Counsel for Ms. Johnston also 

attended. Doc. 55. At the status conference, the Court addressed the pending Motion for Contempt 

and Sanctions. Doc. 14. The Court advised Mr. Johnston that he should file a response to the extent 

he opposed the Motion. Mr. Johnston expressed interest in retaining counsel. Therefore, the Court 

stated that it would grant Mr. Johnston additional time to respond. After the status conference, the 

Court entered an order stating that Mr. Johnston had until June 25, 2024, to respond to the Motion. 

Doc. 54. Mr. Johnston filed a timely response. Doc. 60.

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Recognizing that a Magistrate Judge’s authority in civil contempt actions is limited under 

Section 636(e)(6)(B)(iii), the Court issues the following Report and Recommendation.

BACKGROUND

On June 27, 2023, Mr. Johnston filed this lawsuit in state court. See Doc. 1-2. Ms. Johnston

removed the case to this Court on August 17, 2023. Doc. 1. The parties submitted an agreed 

temporary injunction (Doc. 6), which the Court entered on August 29, 2023. Doc. 7. 

The Agreed Temporary Injunction prevented Mr. Johnston and anyone acting in concert 

with or on behalf of Mr. Johnston from interfering with Ms. Johnston’s contract to sell the real 

property and improvements located at 11340 F.M. 315, Palestine, Texas 75803 (the “Premises”) 

and the activities relating to the sale including, without limitation: “[d]irectly or indirectly 

interfering with or preventing, in any manner, any person or persons from entering upon, moving 

about, or entering any improvement on, the Premises for the purpose of surveying the Premises.” 

Doc. 7 at 1. 

Ms. Johnston contends that Mr. Johnston violated the Agreed Temporary Injunction by 

denying land surveyors access to the Premises on September 27, 2023. Ms. Johnston requests that 

the Court hold Mr. Johnston in contempt and order Mr. Johnston to pay her the sum of $3,685.69 

(at a minimum) as a sanction to “coerce [Mr. Johnston’s] compliance with the Court’s order and 

to compensate [Ms. Johnston] for her loss stemming from his disobedience.” Doc. 14 at 3.

LEGAL STANDARD

“[C]ourts have inherent power to enforce compliance with their lawful orders through civil 

contempt.” Spallone v. U.S., 493 U.S. 265, 276 (1990); In re Bradley, 588 F.3d 254, 265 (5th Cir. 

2009) (“[C]ivil contempt remains a creature of inherent power.”). Civil contempt services two 

purposes: “It can be used to enforce compliance with a court's order through coercion, or it can be 

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used to compensate a party who has suffered unnecessary injuries or costs because of 

contemptuous conduct.” Travelhost, Inc. v. Blandford, 68 F.3d 958, 961-62 (5th Cir. 1995). “A 

party commits contempt when he violates a definite and specific order of the court requiring him 

to perform or refrain from performing a particular act or acts with knowledge of the court's order.” 

Id.

“A movant in a civil contempt proceeding bears the burden of establishing by clear and 

convincing evidence 1) that a court order was in effect, 2) that the order required certain conduct 

by the respondent, and 3) that the respondent failed to comply with the court's order.” Martin v. 

Trinity Indus., Inc., 959 F.2d 45, 47 (5th Cir.1992). In the contempt context, “clear and convincing 

evidence” is “that weight of proof which produces in the mind of the trier of fact a firm belief or 

conviction as to truth of the allegations sought to be established, evidence so clear, direct, weighty 

and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the 

truth of the precise facts of the case.” Travelhost, Inc. v. Blandford, 68 F.3d 958, 961 (5th Cir.1995) 

(internal quotation marks omitted).

To determine compliance with an order, the court asks whether the respondent has done 

what was required; “[i]f he has not, the burden shifts to the respondent to rebut this conclusion, 

demonstrate an inability to comply, or present other relevant defenses.” FDIC v. LeGrand, 43 F.3d 

163, 170 (5th Cir. 1995). 

Magistrate judges have limited power to address contempt. See 28 U.S.C § 636(e). Where, 

as here, the matter is referred to a magistrate judge under 29 U.S.C § 636(b), a certification process 

is used. Specifically,

the magistrate judge shall forthwith certify the facts to a district judge and may 

serve or cause to be served, upon any person whose behavior is brought into 

question under this paragraph, an order requiring such person to appear before a 

district judge upon a day certain to show cause why that person should not be 

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adjudged in contempt by reason of the facts so certified. The district judge shall 

thereupon hear the evidence as to the act or conduct complained of and, if it is such 

as to warrant punishment, punish such person in the same manner and to the same 

extent as for a contempt committed before a district judge.

28 U.S.C. § 636(e)(6). The magistrate judge may only certify to the district judge (or deny 

certification of) facts possibly constituting contempt. Castaneda v. Falcon, 166 F.3d 799, 801 (5th 

Cir. 1999).

CERTIFIED FACTUAL FINDINGS

The first two elements necessary for a civil contempt finding have been established. The 

Court’s August 29, 2023, order enjoined Mr. Johnston from “directly or indirectly” interfering 

with or preventing any person from entering the Premises for the purpose of surveying the 

Premises. Doc. 7 at 1. 

The remaining issue is element three—whether Mr. Johnston has failed to comply with the

Court’s order. Ms. Johnston puts forth the following evidence to support a finding of civil 

contempt:1

1. Ms. Johnston paid $880.69 for Canyon Land Surveying to conduct a survey of the

Premises. Doc. 14-1.

2. Ms. Johnston’s counsel informed Mr. Johnston’s then-retained counsel that the

survey would occur on September 27, 2023. Doc. 14-2. More specifically, one day

prior, Ms. Johnston’s counsel sent an email to Mr. Johnston’s counsel stating the

following: “[p]lease note that the buyers’ surveyor is going to the 11340 FM 315

property tomorrow to conduct the survey needed for the title work. Please pass this

1 At the June 13 status conference, counsel for Ms. Johnston stated Ms. Johnston does not request an evidentiary 

hearing and is “comfortable with the evidence that has been briefed.” See Doc. 55 Status Conference on June 13, 

2024. 

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information along to Mr. Johnston so that he can let them onto the property per the

agreed temporary injunction.” Doc. 14-2 at 4.

3. When the surveyors went to the Premises to conduct the survey, a metal gate with

a “no trespassing” sign blocked their access to the Premises. Doc. 14-3; 14-4. They

waited for someone to open the gate, but no one did. Doc. 14-3; 14-4. They

therefore left the Premises without being able to complete their survey as planned.

Doc. 14-3; 14-4.

In response to Ms. Johnston’s motion, Mr. Johnston states that he did not receive notice 

that a survey would take place on September 27, 2023. Doc. 60-1 at 1. He states that he was not 

on the property when the surveyors visited, did not deny access, and did not prevent the surveyors 

from conducting a survey. Doc. 60-1 at 1. He notes that at a later point, a survey was successfully 

conducted. Doc. 60-1 at 2. He was given notice of this survey, and the survey was completed as 

requested without issue. Doc. 60-1 at 2.

Here, Ms. Johnston has not produced evidence sufficient to produce “a firm belief or 

conviction as to the truth of the allegations sought to be established, [or] evidence so clear, direct 

and weighty and convincing as to enable [the undersigned] to come to a clear conviction, without 

hesitancy, of the truth of the precise facts of the case.” See Travelhost, 68 F.3d at 961. There is no 

evidence that counsel for Mr. Johnston received the email notifying him of the survey date. There 

is no evidence that—assuming Mr. Johnston’s counsel did know of the planned survey—he passed 

this information along to Mr. Johnston. In fact, Mr. Johnston states that he did not receive any 

notice of the September 27, 2023, survey and states he was not on the property at that date.

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RECOMMENDATION

Based on the evidentiary record, the undersigned does not find clear and convincing 

evidence that Mr. Johnston failed to comply with the Court’s August 29, 2023 order. The 

undersigned RECOMMENDS that Ms. Johnston’s Motion for Contempt and Sanctions (Doc. 14) 

be DENIED. 

Within fourteen (14) days after service of the magistrate judge's report, any party must 

serve and file specific written objections to the findings and recommendations of the magistrate 

judge. 28 U.S.C. § 636(b)(1)(C). 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 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 party from appealing the unobjectedto factual findings and legal conclusions of the magistrate judge that are accepted by the district 

court, except upon grounds of plain error, provided that the party has been served with notice that 

such consequences will result from a failure to object. See Douglass v. United Servs. Auto. Ass'n, 

79 F.3d 1415, 1417 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. 

§ 636(b)(1) (extending the time to file objections from ten to fourteen days).

So ORDERED and SIGNED this 8th day of July, 2024.

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