     Case: 18-11088      Document: 00514897221         Page: 1    Date Filed: 04/01/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit


                                      No. 18-11088
                                                                                  FILED
                                                                               April 1, 2019
                                                                             Lyle W. Cayce
WILLIAM HENRY STARRETT, JR.,                                                      Clerk

              Plaintiff - Appellant

v.

CITY OF RICHARDSON, TEXAS,

              Defendant - Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:18-CV-191


Before KING, SMITH, and WILLETT, Circuit Judges.
PER CURIAM:*
       William Henry Starrett, Jr. filed suit against the City of Richardson,
Texas, alleging that the City failed to investigate his claims of harassment.
The district court granted the City’s motion to dismiss. We AFFIRM.
                                             I.
       William Henry Starrett, Jr. brought this action against the City of
Richardson, Texas, under state and federal law. He alleges that in 2015, he
became aware that the United States Department of Defense and its


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 18-11088
contractor, Lockheed Martin Corporation, “remotely involved [Starrett] in
training, operations, research, and development employing technologies that
combine tracking, surveillance, communications, and weapons systems
without his knowledge or consent.” Starrett alleges that these actions
constitute “harassment and business services theft.”
       Starrett reported the harassment and theft to the Richardson Police
Department, emailing them a lengthy report detailing his allegations. Starrett
alleges that his report has been mostly ignored.
       Separately, a member of Starrett’s family called to report Starrett’s
behavior to the police. Starrett complains that these calls “have been logged
with    incorrectly   detailed   health       assumptions,”   including   erroneous
information about his mental health. Furthermore, Starrett alleges that the
family member received follow-up calls from the police department, while
Starrett received none. Starrett avers that the harassing behavior is ongoing
and the police department’s failure to investigate and address the harassment
has caused him “to endure pain, suffering, injury, risk, and monumental
personal and professional loss.”
       Starrett brought suit against the City of Richardson asserting, inter alia,
violations of his rights under the United States Constitution pursuant to
42 U.S.C. § 1983, violations of his rights under the Texas Constitution, state-
law tort claims, and a federal claim for conspiracy to interfere with civil rights
under 42 U.S.C. § 1985. The district court, adopting the magistrate judge’s
report and recommendations and overruling Starrett’s objections, dismissed
his complaint for failure to state a claim under Federal Rule of Civil Procedure




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12(b)(6). The district court also denied Starrett’s request to amend his
pleadings. Starrett appeals the dismissal. 1
                                             II.
       “We review the dismissal of a complaint under Rule 12(b)(6) de novo.”
Firefighters’ Ret. Sys. v. EisnerAmper, L.L.P., 898 F.3d 553, 557 (5th Cir. 2018).
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.”
Id. (internal quotations omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). “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.” Iqbal, 556 U.S. at 678. But we
“are not bound to accept as true a legal conclusion couched as a factual
allegation.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Papasan v. Allain, 478 U.S. 265, 286 (1986)).
                                            III.
       For the following reasons, we affirm the district court’s dismissal of
Starrett’s complaint. We address each of Starrett’s challenges to the district
court’s order in turn.
       Starrett first challenges the dismissal of his 42 U.S.C. § 1983 claims
against the City. He argues that the district court erred by finding that his
allegations against the City were based on respondeat superior. He contends
that the district court ignored the City’s “liability and vicarious or secondary



       1  In his brief on appeal, Starrett also challenges the magistrate judge’s
recommendation that the district court dismiss the suit for improper service pursuant to
Federal Rule of Civil Procedure 12(b)(5). The district court did not adopt this
recommendation, however, instead adopting the magistrate judge’s recommendation that the
complaint be dismissed for failure to state a claim. The district court then denied the City’s
motion to quash service as moot. Because we agree that the complaint is properly dismissed
under Rule 12(b)(6), we find no need to address Starrett’s argument that he properly served
the City.
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                                  No. 18-11088
liability to acts, omissions, and mistakes of agents or other jurisdictions
coordinating with or acting upon reports made or created by [the City].”
      “It is well established that a city is not liable under § 1983 on the theory
of respondeat superior.” Valle v. City of Houston, 613 F.3d 536, 541 (5th Cir.
2010). But a city may be held liable for acts “directly attributable to it ‘through
some official action or imprimatur.’” Id. (quoting Piotrowski v. City of Houston,
237 F.3d 567, 578 (5th Cir. 2001)). Thus, to state a § 1983 claim against the
City for violations of his constitutional rights, Starrett must allege facts
showing that the City had an “official policy”; that the policy was “promulgated
by the municipal policymaker”; and that the policy was “the moving force
behind the violation of a constitutional right.” Salazar-Limon v. City of
Houston, 826 F.3d 272, 277 (5th Cir. 2016) (quoting Peterson v. City of Fort
Worth, 588 F.3d 838, 847 (5th Cir. 2009)).
      Starrett complains that the City violated his rights to due process and
equal protection because the City refused to investigate and prevent his alleged
harassment. But he does not point to an official policy motivating the City’s
refusal. And even if he did, he has not alleged a constitutional violation. There
is no federal constitutional right to compel an investigation. See Oliver v.
Collins, 914 F.2d 56, 60 (5th Cir. 1990) (holding that there is no constitutional
right to have someone criminally prosecuted). Nor has Starrett alleged that he
has been treated differently from other similarly situated individuals.
Rountree v. Dyson, 892 F.3d 681, 685 (5th Cir.), cert. denied, 139 S. Ct. 595
(2018). Therefore, the district court appropriately dismissed Starrett’s § 1983
claims.
      Starrett next argues that his complaint sufficiently alleged that the City
had entered into a conspiracy and, therefore, dismissal of his § 1985 claim was
in error. Starrett fails to plead this claim with sufficient factual support. See
Twombly, 550 U.S. at 570. Although he cites § 1985 in his complaint, it is only
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                                  No. 18-11088
in passing. In his brief on appeal, Starrett explains that the police department
maintained deficient records of his report that Department of Justice
investigators visited his home and made certain threats. Even if Starrett had
pleaded these facts, they still do not allege that the City engaged in a
conspiracy. Therefore, the district court did not err in denying Starrett’s
claims.
      Next, Starrett contends that the district court erred in finding that he
failed to notify the City of his state tort claims. The Texas Torts Claims Act
requires a plaintiff seeking to recover in tort against a “governmental unit” to
provide the defendant with notice of his or her tort claim within six months of
the incident giving rise to the claim. Tex. Civ. Prac. & Rem. Code Ann.
§ 101.101(a); see also § 101.001(3)(B) (defining “governmental unit” to include
cities). The district court found that the incident giving rise to Starrett’s claim
occurred in November 2015, when Starrett’s family member contacted the
police department with “incorrect and illegally maintained information.”
Starrett protests that he did not have knowledge of the City’s incorrect call logs
until October 18, 2017, and that he provided appropriate notice to the City in
December 2017. In making this argument, Starrett attempts to invoke the
discovery rule, a rule Texas appellate courts have declined to apply to
§ 101.101’s notice provision. See Timmons v. Univ. Med. Ctr., 331 S.W.3d 840,
848 (Tex. App.—Amarillo 2011, no pet.) (collecting cases). Therefore, Starrett
did not provide timely notice of his tort claims to the City.
      In the alternative, Starrett challenges the district court’s finding that
the City is immune from tort liability, noting that the Texas Torts Claims Act
specifically states that a municipality will be liable for “police and fire
protection and control.” Tex. Civ. Prac. & Rem. Code Ann. § 101.0215(a)(1). But
the Texas legislature must still waive immunity from suit before Starrett can
pursue a claim against the City. See Smit v. SXSW Holdings, Inc., 903 F.3d
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522, 530 (5th Cir. 2018). The Act waives governmental immunity for personal
injury “so caused by a condition or use of tangible personal or real property.”
Tex. Civ. Prac. & Rem. Code. Ann. § 101.021(2). To the extent Starrett claims
that the City’s unkempt records have caused him personal injury, this
argument is without merit. In interpreting the Act, we have held that
information within records is not “tangible” within the meaning of the Act.
Campbell v. City of San Antonio, 43 F.3d 973, 979 (5th Cir. 1995) (citing Univ.
of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175 (Tex. 1994)).
Therefore, the district court properly dismissed Starrett’s tort claims.
      Finally, Starrett challenges the district court’s dismissal of his request
for declaratory and injunctive relief. In his complaint, Starrett sought a
declaration that the police department should investigate the crimes he
reported; an injunction directing the City to restrict the availability of records
related to Starrett that he claims are incorrect; and an injunction directing the
police department to correct their records pertaining to Starrett. Declaratory
judgments and injunctions are merely remedies, not causes of action. Reyes v.
N. Tex. Tollway Auth., (NTTA), 861 F.3d 558, 565 n.9 (5th Cir. 2017); Sid
Richardson Carbon & Gasoline Co. v. Interenergy Res., Ltd., 99 F.3d 746, 752
n.3 (5th Cir. 1996). Because Starrett’s complaint fails to state a claim upon
which relief could be granted, he cannot sustain his requests for declaratory
and injunctive relief.
      For these reasons, the district court appropriately dismissed Starrett’s
complaint.
                                       IV.
      In the alternative, Starrett argues that the district court should have
afforded him leave to amend his complaint rather than dismissing it with
prejudice. We review a district court’s denial of leave to amend for abuse of
discretion. Legate v. Livingston, 822 F.3d 207, 211 (5th Cir. 2016). Although
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                                  No. 18-11088
Federal Rule of Civil Procedure 15(a) requires the trial court to grant leave to
amend “freely . . . when justice so requires,” we have also recognized that “a
district court need not grant a futile motion to amend.” Legate, 822 F.3d at 211.
“Futility is determined under Rule 12(b)(6) standards, meaning an amendment
is considered futile if it would fail to state a claim upon which relief could be
granted.” Id.
      Even if the district court had allowed Starrett to amend his complaint,
amendment would have been futile. Starrett does not describe what
amendments he would make to his complaint in his brief before this court,
although he told the district court that he wished to “join individual Defendant
employee parties in their official capacity.” Starrett’s vague reference to
unidentified “individual Defendants” is insufficient to demonstrate that he
could cure the defects in his complaint. Therefore, we affirm the district court’s
denial of leave to amend.
                                       V.
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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