By David Yates
AUSTIN - A U.S. Magistrate issued a report recommending that Austin-based federal judge Lee Yeakel dismiss a pediatrician's lawsuit against Adult Protective Services, concerning her elderly mother who died under court-appointed guardianship.
Dr. Sheila Owens Collins sued the Texas Department of Family and Protective Services (TDFPS), her niece Aisha Ross, and Adult Protective Services (APS) Executive Director Jaimie Masters in the Texas Western District Court, accusing the state agency of violating the U.S. Constitution under 42 U.S.C. § 1985 and 42 U.S.C. § 1983.
“TDFPS argues that Plaintiff’s constitutional claims under § 1983 are barred by sovereign immunity,” wrote U.S. Magistrate Judge Susan Hightower in her Feb. 9 Report and Recommendation. “The Court agrees.”
While sovereign immunity requires the consent of a state agency before lodging legal action against it, Section 1983 of Title 42 of the U.S. Code was enacted to defend against racial abuse that allegedly occurred in states below the Mason-Dixon line after Black Americans were released from slavery in1865.
“Plaintiff alleges that Ross was involved in a civil conspiracy with the other individual defendants to deprive Plaintiff of her civil rights under 42 U.S.C. § 1985,” Hightower stated. “In addition, Plaintiff asserts state law claims of business disparagement, tortious interference with an existing contract, and intentional infliction of emotional distress. Plaintiff’s civil conspiracy claim under § 1985 fails because that statute applies only to allegations of race-based animus against federal officials.”
Hightower’s recommendations to the court further noted that the plaintiff disputes whether sovereign immunity applies because the plaintiff seeks equitable and monetary relief. However, Hightower asserted that claims against state agencies are barred regardless of the relief sought.
“Masters argues that Plaintiff’s claims should be dismissed based on sovereign immunity, the Younger abstention doctrine, limitations, qualified immunity, and failure to state a claim,” Hightower wrote. “Plaintiff did not respond to any of these arguments. Instead, she filed a Motion for Leave to file a second amended complaint. Plaintiff’s Motion for Leave and proposed second amended complaint, however, also fail to substantively respond to any of Masters’ arguments for dismissal.”
The plaintiff also named Lydia Bias, a supervisor in the APS Houston office, who was served the summons as recently as Jan. 30.
“Plaintiff filed suit on April 7, 2020,” Hightower reported. “The 90-day period in which to effect service on any unserved defendants has long since expired. If Plaintiff wishes to pursue her claims against Bias, she must explain her failure to serve Bias in any objections filed in response to this Report and Recommendation. Otherwise, Defendant Bias should be dismissed under Rule 4(m).”
U.S. District Judge Yeakel has yet to issue a final order in the matter.
The plaintiff is represented by Martin J. Cirkiel of Cirkiel &
Associates law firm.
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