Potts v. Crosby Independent School District

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT October 18, 2006

Charles R. Fulbruge III
Clerk
No. 05-20615
Summary Calendar

PATRICIA POTTS,

Plaintiff-Appellant,

versus

CROSBY INDEPENDENT SCHOOL DISTRICT; OFFICE OF THE
ATTORNEY GENERAL OF TEXAS; HARRIS COUNTY SHERIFF;
CITY OF BAYTOWN POLICE DEPARTMENT; RELIANT ENERGY;
BAKER DOWNS APT; CROSBY STATE BANK; HELEN MARIE
LEONARD; MERCY EZEH; TEK INVESTMENTS INC;
DELL COMPUTERS INC; VINCENT WILLIAM; TEXAS
REHABILITATION COMMISSION; TEXAS DEPARTMENT
OF FAMILY AND PROTECTIVE SERVICES;
CITY OF BAYTOWN,

Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of Texas
(4:04-CV-2852)

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Patricia Potts appeals pro se. Inter alia, she challenges the

dismissal with prejudice of her claims against: the City of

Baytown, Baytown Police Department, Dell Computers, Inc., Reliant

*
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this opinion should not be published and is not precedent except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.
Energy, and Crosby State Bank for failure to state a claim pursuant

to Federal Rule of Civil Procedure 12(b)(6); Crosby Independent

School District (CISD) for lack of subject matter jurisdiction

pursuant to Rule 12(b)(1) and failure to state a claim pursuant to

Rule 12(b)(6); and the Harris County Sheriff’s Department because,

as a non sui juris division of Harris County, it lacks the capacity

to be sued.

Along this line, the Office of the Texas Attorney General

(OAG) and Texas Department of Family and Protective Services’

(TDFPS) seek summary affirmance of the district court’s dismissal

of Potts’ claims against them.

Finally, at issue is an order barring any new actions by Potts

absent judicial approval.

Potts sued these parties for various vague and seemingly

unrelated claims including discrimination, conspiracy, harassment,

retaliation, slander, and violation of her equal-protection rights.

In her second amended complaint, Potts alleged, inter alia: (1) the

City of Baytown, its police department, and TDFPS violated her

civil rights by conspiring with her mother, her ex-husband, Baker

Downs Apartments, and Harris County to terminate her parental

rights; (2) the City and police department violated her civil

rights by failing to protect her from, and refusing to investigate,

harassment claims; (3) CISD engaged in employment discrimination by

“firing her from her job as a school bus driver with no

explanation”; (4) Dell Computers and Crosby State Bank caused her

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to incur insufficient funds charges and conspired against her; (5)

Reliant Energy discriminated against her by failing to invoice her

for 11 months and then sending five bills at once for an apartment

she never inhabited; and (6) the Harris County Sheriff’s Department

failed to investigate a burglary of her apartment, disregarded

pleas to investigate her harassment, and slandered her by placing

theft charges on her record, causing her to lose two jobs; and (7)

the OAG violated her civil rights by directing her ex-husband to

mail child-support payments to the Harris County Child Support

Division and failed to modify her child-support amount in spite of

her requests. On 28 June 2005, the district court granted these

defendants’ motions to dismiss and dismissed this action with

prejudice.

Briefs of pro se litigants are liberally construed. Price v.

Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988).

Nevertheless, such litigants must brief issues to preserve them.

Id. (finding inadequate fleeting error claims that provide no

analysis or authority) (citing FED. R. APP. P. 28(a)); see also In

re Tex. Mortgage Servs. Corp., 761 F.2d 1068, 1073 (5th Cir.

1985)(holding abandoned appellant’s unbriefed claims; collecting

cases). “We will not raise and discuss legal issues that [an

appellant] has failed to assert.” Brinkman v. Dallas County Deputy

Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). In practical

effect, a cursory “recitation of familiar rules governing our

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review of summary judgments, without even the slightest

identification of any error in [the district court’s] legal

analysis or [] application” is as if the appellant makes no appeal

at all. Id.

Potts asserts the district court erred in dismissing her

claims and in barring new claims because it “determin[ed] that

[her] claims were not legitimate, simply because of allegations

that [she] suffers from a mental illness or ‘Delusional Disorder’”.

Claiming “a complete lack of evidence to support the conclusions

that [her] claims were a ‘delusion’ and ‘frivolous’”, she demands

this court review the record for this purpose. She cites no

authority, save one inapposite reference to Federal Rule of Civil

Procedure 35 (authorizing a district court to order a medical

examination when a party’s mental condition is in issue).

Potts fails to make “even the slightest identification of any

error in [the district court’s] legal analysis”. Brinkman, 813

F.2d at 748. Specifically, the court granted City of Baytown,

Baytown Police Department, Dell Computers, Crosby State Bank, and

Reliant Energy’s 12(b)(6) motions because Potts made no cognizable

claims under 42 U.S.C. §§ 1983 or 1985(3). Potts v. Crosby Ind.

Sch. Dist., No. Civ.A. H-04-2852, 2005 WL 1527657 at *4-5, 8-9

(S.D. Tex. 28 June 2005) (Police Department is not a separate legal

entity and thus cannot be sued (citing Darby v. Pasadena Police

Dept., 939 F.2d 311, 314 (5th Cir. 1991)); City cannot be held

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liable because plaintiff failed to demonstrate injury resulting

from decision by a final policy maker (citing Pembaur v. City of

Cincinnati, 475 U.S. 469, 483 (1986))). Similarly, Potts’ § 1983

claims against Dell Computers, Crosby State Bank, and Reliant

Energy were dismissed as conclusory, id. at *4-5 (citing S.

Christian Leadership Conf. v. Supreme Court of La., 252 F.3d 781,

786 (5th Cir.)(“legal conclusions masquerading as factual

conclusions” insufficient to survive 12(b)(6) motion), cert.

denied, 534 U.S. 995 (2001)); and because these parties are not

state actors and did not act under color of state law, id. at *4

(citing Am. Mfg. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50

(1999)). Her § 1985(3) claim failed because, even liberally

construed, it met none of the requisite elements. Id. at *5

(citing Horaist v. Doctor’s Hosp. of Opelousas, 255 F.3d 261, 270

(5th Cir. 2001)).

The district court granted CISD’s 12(b)(1) and 12(b)(6)

motions because Potts’ alleged “no set of facts ... entitl[ing] her

to relief”; therefore, she failed to meet the legal requirements of

her claims against CISD. Id. at *5-8 (citing Teague v. City of

Flower Mound, Tex., 179 F.3d 377, 380 (5th Cir. 1999) (setting

forth elements to employee First Amendment retaliation claims

against an employer); and Connick v. Myers, 461 U.S. 138, 146

(1983) (no scrutiny required of reasons for discharge if employee’s

speech does not address a matter of public concern)). The court

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held that Harris County Sheriff’s Department, as a non sui juris

division of Harris County, lacks the capacity to be sued. Id. at

*7-8 (citing Darby, 939 F.2d at 313). Finally, it held Potts’

claims against OAG and TDFPS barred by the Eleventh Amendment. Id.

at *3 (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66

(1989) (Eleventh Amendment bars suits against state agencies by

state’s citizens unless the state waives sovereign immunity or

Congress, pursuant to section five of the Fourteenth Amendment,

intentionally abrogates that immunity)).

In any event, Potts has not sufficiently challenged the

district court’s rulings to require review by this court.

AFFIRMED

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