Opinion
EP-99-CA-410-DB
February 6, 2001
MEMORANDUM OPINION AND ORDER
On this day, the Court considered Defendant Roberto Alvarado's "Motion to Dismiss," filed in the above-captioned cause on October 23, 2000. Plaintiff Fernando Chacon filed a Response on October 24, 2000. Thereafter, on November 1, 2000, Defendant filed a Reply to Plaintiffs Response.
After due consideration, the Court is of the opinion that the instant motion should be granted for the reasons that follow.
Because a January 8, 2001, trial setting in this cause was fast approaching, the Court telephonically informed the Parties of its ruling on the instant motion. The trial was cancelled.
BACKGROUND
The facts of this cause are well-detailed in the Court's October 31, 2000, Memorandum Opinion and Order resolving the defendants' separate motions for summary judgment. The Housing Authority of the City of El Paso ("Housing Authority") maintains various housing "complexes" around El Paso, Texas, to provide affordable housing to low income individuals and families. Defendant Roberto Alvarado ("Alvarado") was the Executive Director of the Housing Authority from April 1993 to February 2000.Through his Third Amended Complaint, Plaintiff alleges that he is a lawyer licenced to practice in the State of Texas and practicing in El Paso, Texas. Plaintiff alleges that he predominantly serves the poor, as well as Housing Authority residents. Plaintiff alleges that in 1998, he attended two separate meetings of the "Machuca Complex" Resident Council and/or President's Council — one in June and another in December. Plaintiff alleges that Alvarado used his position as Executive Director of the Housing Authority to remove Plaintiff from those meetings. Plaintiff alleges that he was there as legal counsel for certain residents and/or an organization known as "El Congresso." Plaintiff further alleges that Alvarado convinced certain of Plaintiffs clients to sever their attorney/client relationship with Plaintiff Finally, Plaintiff alleges that Alvarado convinced a Machuca Complex resident to file a complaint against Plaintiff with the Texas State Bar.
Plaintiff commenced the instant lawsuit in the 41st Judicial District Court of El Paso County, Texas, on November 8, 1999. After Defendants removed the action to this Court, they moved to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff responded with a "First Amended Complaint," filed January 27, 2000. Later, Plaintiff filed a "Second Amended Complaint" on March 2, 2000, setting forth the following claims: (1) deprivation of rights under color of state law, pursuant to 42 U.S.C. § 1983; (2) conspiracy to interfere with Plaintiffs civil rights, pursuant to 42 U.S.C. § 1985 (2); (3) conspiracy to tortiously interfere with Plaintiffs contractual relationships; (4) tortious interference with Plaintiffs contractual relationships; and (5) slander per se.
Defendants filed separate summary judgment motions. Then Plaintiff filed a "Third Amended Complaint" on September 7, 2000, wherein Plaintiff abandoned all claims except for a claim pursuant to § 1983. By Memorandum Opinion and Order entered October 31, 2000, the Court granted the Housing Authority's summary judgment motion and denied Alvarado's motion.
Alvarado's sole basis for summary judgment at that time was that he was entitled to qualified immunity.
The Court further ordered that Plaintiffs claims against Alvarado in his official capacity be dismissed. There seems to be some confusion as to that point. In the instant motion, Alvarado notes that "only claims against him in his official capacity are properly filed under 42 U.S.C. § 1983." Later, in his Reply, however, Alvarado slates that "the only remaining claims against Defendant Robert Alvarado are against him in his individual capacity." Plaintiff makes no mention of it. Because the Court determined that the Housing Authority did not authorize Alvarado to act in the manner alleged, it follows that Alvarado could not have been acting as an official of the Housing Authority. Hence, Alvarado must have acted on his own — i.e., as an individual. See Turner v. Houma Mun. Fire Police Civil Serv., 229 F.3d 478, 484 (5th Cir. 2000) (noting that "an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity" (quoting Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985)); see also id. at 482-86 (discussing differences between officers sued in official capacity and those sued in individual capacity).
STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss an action for "failure to state a claim upon which relief can be granted." Under that rule, the Court must decide whether the facts alleged, if true, would entitle the plaintiff to some legal remedy. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). In general, a court should not dismiss a claim under Rule 12 (b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 45-46, 78 S.Ct. at 102.The Court must limit its inquiry to facts stated in Plaintiffs Complaint and the documents either attached to or incorporated in the Complaint. See Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1017 (5th Cir. 1996). Further, the Court must accept as true all material allegations in the complaint, as well as any reasonable inference to be drawn from them, see Kaiser Aluminum Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982), and must review those facts in a light most favorable to the plaintiff. See Piotrowski v. City of Houston, 51 F.3d 512, 514 (5th Cir. 1995); Garrett v. Commonwealth Mortgage Corp. of Am., 938 F.2d 591, 593 (5th Cir. 1991). The Court also may "consider matters of which [it] may take judicial notice," Lovelace, 78 F.3d at 1017-18, and matters of public record. See 5A CHARLES A. WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357 (2d ed. 1990).
DISCUSSION
Plaintiff claims that Alvarado deprived him of a property right and/or liberty interest under color of state law in violation of the Fourteenth Amendment to the United States Constitution. See U.S. CONST. amend. XIV, § 1 ("No State shall . . . deprive any person of life, liberty, or property without due process of law; . . ."). Plaintiff claims that 42 U.S.C. § 1983 makes Alvarado liable for damages for such deprivation.
As pertinent here, § 1983 provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .42 U.S.C.A. § 1983 (West Supp. 2000). "To state a claim under § 1983, a plaintiff must (1) allege a violation of a right secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law." Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000) (citing Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994)). Thus, a Plaintiff "asserting a due process violation., must first identify a life, liberty or property interest protected by the Fourteenth Amendment and then identify a state action that resulted in a deprivation of that interest." Blackburn v. Marshall, City of 42 F.3d 925, 935 (5th Cir. 1995).
Here, although inartfully framed Plaintiff puts forward, at best, two alleged property/liberty interests: (1) a property right in his business as a lawyer and (2) a liberty interest in freedom of association, as set forth in the First Amendment. Further, Plaintiff makes three distinct factual allegations which he claims deprived him of those constitutionally protected rights: that Alvarado prevented him from counseling his "clients" — members of the "El Congresso" organization — by having Plaintiff removed from the two 1998 meetings; that Alvarado convinced a certain client to end her relationship with Plaintiff as her attorney; and that Alvarado convinced a Machuca resident to file a grievance against Plaintiff with the Texas State Bar. As a result, Plaintiff alleges, "the number of Housing Authority's tenants that have consulted Plaintiff for advise [ sic] or assistance has appreciably declined" and his "status as a lawyer [has] been significantly altered."
Alvarado first contends that Plaintiff cannot establish a property or liberty interest with respect to the business of being a lawyer and, further, Plaintiff cannot show that Alvarado deprived Plaintiff of any such right. Alvarado further contends that Plaintiff has not stated a claim regarding the First Amendment right to free association and, in any event, cannot show any deprivation of that right. The Court agrees in toto.
A. Plaintiff's Alleged Right to Practice Law
Plaintiff has contended throughout this litigation that he has both a property right and liberty interest in the practice of his profession as a lawyer, as set forth in Cruz v. Beto, 603 F.2d 1178 (5th Cir. 1979). In Cruz, the Fifth Circuit upheld a district court's finding, pursuant to § 1983, that a prison-warden's arbitrary barring of an attorney from communicating with her prisoner-clients "contravened her first and fourteenth amendment rights to practice her profession." Cruz, 603 F.2d at 1181. The district court found that the warden had placed certain restrictions only on the plaintiffs visits to the prison and expressly as some type of retribution for having filed various legal proceedings against the prison and/or collaterally attacking prisoners' sentences. See id. at 1180. At first, the warden barred the plaintiff from meeting with her clients altogether. See id. Then, the warden changed his policy to allow the plaintiff to meet with her clients, but those clients were immediately thereafter housed under unusually harsh living conditions. See id. Further, the clients were told repeatedly that they would receive better treatment if they were to abandon that attorney-client relationship. See id. at 1180-81. Several such prisoners did end their relationship with the plaintiff and, as a result, attained improved conditions as prisoners. See id. at 1181. Also, the plaintiff was not allowed to meet with nonclient prisoners so that she could not take on any new clients there. See id. at 1180. In essence, the plaintiff in Cruz was wholly deprived of her legal practice at that prison. See id. at 1185. Based on those fads, and without discussing the existence of an appropriate property or liberty interest, the Fifth Circuit found "no clear error in the district court's finding that . . . [s]uch actions were taken in violation of [the plaintiffs] constitutional rights." Id. at 1186.
Exactly how Cruz applies to the events Plaintiff alleges is something Plaintiff does little to clarify. Apparently, Plaintiff claims that the fact that Plaintiff was removed from the 1998 Machuca Complex meetings is akin to the Cruz plaintiff being barred from meeting with her clients at the prison. In other words, Plaintiff claims that Alvarado precluded Plaintiff from practicing law at that Housing Authority complex.
In short, Cruz does nothing for Plaintiff. Even if a right to practice law exists in theory, Cruz is factually inapplicable. In Cruz, the plaintiff represented prisoners who were treated unfairly because of that representation — thereby causing some to abandon the plaintiff to obtain better conditions. Here, Plaintiff allegedly represented members of the El Congresso organization present at a pair of Housing Authority meetings. Although Plaintiff claims he was prevented from advising his "clients" at the 1998 meetings, any such interference could not be wholesale, as in Cruz. Plaintiff was not prevented from meeting and communicating with those clients at any other time. The Machuca housing complex, as far as the Court knows, is not surrounded by several rows of barbed-wire fencing (like at prisons) to keep Plaintiff from meeting with his clients. Alvarado was not running a prison and there is no fact alleged from which to infer that he prevented Plaintiff from communicating with his clients in the same manner and spirit as the warden had in Cruz. At bottom, Cruz was about a lawyer whose practice was effectively eliminated in that particular venue. In other words, the plaintiff was deprived of her right to practice law at the prison. There is simply no reasonable construction of the facts Plaintiff alleges to make his claim anything similar to what took place in Cruz. Therefore, Plaintiff cannot show under these facts that he was deprived of any "right to practice law."
Turning to Plaintiffs claims that Alvarado convinced a client to fire Plaintiff and that a Housing Authority tenant filed a claim against him, Plaintiff states that such actions affected his "status as a lawyer" and that "the number of Housing Authority's tenants that have consulted Plaintiff for advise [ sic] or assistance has appreciably declined." In other words, Plaintiffs beef is that he has been stigmatized by Alvarado's acts. Cruz, having no bearing on reputation as a lawyer, therefore, does not apply at all. Instead, Defendant argues that those remaining claims fall under the standard set forth in Blackburn v. Marshall, City of 42 F.3d 925 (5th Cir. 1995).
In Blackburn, the Fifth Circuit upheld dismissal of a § 1983 due process claim where the plaintiff alleged only that the defendant's statements about the plaintiff damaged his reputation. Id. at 935-36. The court pointed out that "[i]n Paul v. Davis, 424 U.S. 693, 710-11, 96 S.Ct. 1155, 1165, 47 L.Ed.2d 405 (1976), the Supreme Court held that the infliction of a stigma on a person's reputation by a state official, without more, does not infringe upon a protected liberty interest." Id. at 935. In the end, noting that "[w]e have applied the holding of Paul by requiring a section 1983 plaintiff to show stigma plus infringement of some other interest," Id. at 935-36 (emphasis added), the court found that the plaintiffs claim did not meet that standard. See id. at 936; see also Vander Zee v. Reno, 73 F.3d 1365, 1369 (5th Cir. 1996) ("[W]e have consistently required plaintiffs alleging that the defamatory statements of a government official operated to deprive them of a protected liberty interest to satisfy what has sometimes been referred to as the "stigma plus infringement' test.").
The Court finds that Blackburn, though somewhat applicable, is not dispositive here because Plaintiff merely claims that Alvarado took certain steps which allegedly interfered with his practice of law and, consequently, affected his future practice. He does not allege that Alvarado defamed him in any way, although the alleged injury is the same in general — harm to reputation and diminished future employability. For further support, then, Defendant points to two relevant opinions from the Seventh and Tenth Circuits, Goulding v. Feinglass, 811 F.2d 1099 (7th Cir. 1987) and Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262 (10th Cir. 1989).
Curiously, in his Response to the instant motion, Plaintiff states that "[w]hile Blackburn may be dispositive of Chacon's claim under the Fourteenth Amendment, Blackburn is not dispositive of Chacon's First Amendment Claim" — his right to freely associate, which the Court addresses shortly. Arguably, Plaintiff has abandoned his alleged Fourteenth Amendment deprivation claims.
In addition to those Court of Appeals cases, Alvarado also draws the Court's attention to DePaoli v. Carlton, 878 F. Supp. 1351 (ED. Cal. 1995); Ippolito v. State of Florida, 824 F. Supp. 1562 (M.D. Fla. 1993); Rogers v. Berger, r 682 F. Supp. 302 (WD. Va. 1988). Those cases, too, support dismissal.
In Goulding, the Seventh Circuit held that a tax lawyer did not have a protected property interest in his "business as a lawyer" such that his allegations that he was harassed and defamed while being investigated by the Internal Revenue Service (along with certain clients) could not amount to a claim under § 1983. See Goulding, 811 F.2d at 1102-03. The plaintiff contended that the defendants' conduct rendered his law practice valueless — an alleged property interest — and damaged his reputation as a lawyer — an alleged liberty interest. See id. Noting that the plaintiffs right to practice law was not altogether eliminated, the Goulding court found that, absent a complete removal of that right or significant alteration, the lawyer could not show that he had been deprived of a property right. See id. at 1102 n. 9 (citing Paul, 424 U.S. 693, 96 S.Ct. 1155). The court found similarly with respect to the alleged liberty interest, noting that "`a liberty interest is not implicated merely by a reduction in an individual's attractiveness to potential employers.' There is no legal barrier to [the plaintiff] pursuing his practice of law." Id. at 1103 (quoting Perry v. FBI 781 F.2d 1294, 1302 (7th Cir. 1986)) (brackets removed).
Similarly, in Phelps, the Tenth Circuit upheld dismissal of a § 1983 claim of an attorney who alleged that he had been defamed by a newspaper, which allegedly had worked in concert with a state assistant attorney general to defame the plaintiff because of the type of clients he (the plaintiff) represented. There, the court noted that the plaintiff merely alleged "speculative future harm to prospective relationships as a result of the generalized damage to his reputation." Phelps, 886 F.2d at 1268. The court further noted that the "plaintiffs status as a lawyer and his existing legal rights must be significantly altered before a claim arises." Id. at 1269. Noting that the plaintiff had not been foreclosed from practicing law altogether, the court concluded that "[S]ection 1983 was not meant to federalize tort law." Id.
Whether Plaintiffs claim can be characterized as a defamation or otherwise, he cannot state a § 1983 claim. First, Plaintiff claims that his business as a defender of the Housing Authority's residents has suffered, he lost a client and he suffered disciplinary proceedings. In essence, Plaintiff claims that he is not as attractive a lawyer as he was before Alvarado took action against him. Under Goulding and Phelps, Plaintiff has no claim because he cannot show that there is some legal barrier to him pursing his practice. Indeed, Plaintiff affirmatively alleges that he is a member in good standing of the Texas Bar, and he continues to practice law before this Court — Plaintiff appeared before the Court recently in a criminal matter — and, presumably, all Texas courts. All told, the Court is of the opinion that Plaintiff has no protected liberty interest, such that the alleged harm — damage to Plaintiffs business as a lawyer from a lost client and a State Bar proceeding — did not deprive Plaintiff of any such interest. Consequently, the Court is further of the opinion that Plaintiff cannot state a cause of action under § 1983 based on the Fourteenth Amendment.
B. Plaintiffs Alleged First Amendment Right to Freedom of Association
That leaves Plaintiffs alleged First Amendment liberty interest. First, although the Cruz court concluded that the warden's conduct violated the plantiffs First Amendment as well as Fourteenth Amendment rights to practice her profession, that court never discussed how such conduct was related to the First Amendment. In like manner, Plaintiff claims that Alvarado's conduct infringed his right of association under the First Amendment. See U.S. CONST. amend I ("Congress shall make no law respecting . . . the right of the people peaceably to assemble; . . ."). In that vein, Plaintiff argues that he enjoys a right to freely associate with his clients as their attorney.
First, Defendant argues that Plaintiff did not allege any First Amendment deprivation. The Court agrees. Although in his Third Amended Complaint, Plaintiff refers to the "right to peaceably assemble," he does so only within the context of explaining the general subject of the legal advice Plaintiff typically gives. Similarly, Plaintiff mentions the First Amendment generally in passing, for example, when setting forth the general import of Cruz. Thus, the Court finds that Plaintiff did not allege a First Amendment free association deprivation. Notwithstanding, because the Court must determine whether "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" Conley, 355 U.S. at 45-46, 78 S.Ct. at 102, the Court will entertain Plaintiffs free association claim.
Plaintiff mentions many things in passing in his Third Amended Complaint. For instance, Plaintiff states that by removing Plaintiff from the meetings, Alvarado deprived Plaintiff of his right to be free from unreasonable seizure of his person in violation of the Fourth Amendment. Clearly, Plaintiff has no such claim under these facts, and he does not argue otherwise here. Plaintiff further states that Alvarado wanted to "punish him for exereising his free speech rights" though, similarly, he does not press that claim here. The facts are what is important. See Conley, 355 U.S. at 45-46, 78 S.Ct. at 102.
The Constitution does not protect "a generalized right of social association." Wallace v. Texas Tech Univ., 80 F.3d 1042, 1051 (5th Cir. 1995) (quoting City of Dallas v. Stanglin, 490 U.S. 19, 25, 109 S.Ct. 1591, 1595, 104 L.Ed.2d 18 (1989)) (internal quotation marks removed). Rather, the Constitution protects only two types of recognized associational freedom:
First, the [Supreme] Court has held that the Constitution protects against unjustified government interference with an individual's choice to enter into and maintain certain intimate or private relationships. Second, the [Supreme] Court has upheld the freedom of individuals to associate for the purpose of engaging in protected speech or religious activities.Board of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 544, 107 S.Ct. 1940, 1945, 95 L.Ed.2d 474 (1987) (emphasis added); see also Wallace, 80 F.3d at 1051. The first type of associational freedom is "a fundamental element of personal liberty," while the second is "an indispensable means of preserving other individual liberties" — those the First Amendment protects, namely free speech and press, and the religious freedoms. See Roberts v. United States Jaycees, 468 U.S. 609, 618, 104 S.Ct. 3244, 3249, 82 L.Ed.2d 462 (1984). In other words, individuals have (1) a "freedom of intimate association and [(2) a] freedom of expressive association." Id. at 618, 104 S.Ct. at 3250.
Although the Supreme Court has never determined what constitutes intimate, "[t]he intimate relationships to which [the Supreme Court has] accorded constitutional protection include marriage; the begetting and bearing of children; child rearing and education; and cohabitation with relatives." Rotary Club, 481 U.S. at 545, 107 S.Ct. at 1945-46 (citations omitted). Here, because the first type of freedom requires an "intimate relationship," Plaintiff argues that the type of relationships he had with his clients were those "that presuppose deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs, but also distinctively personal aspects of ones [ sic] life." (Quoting Rotary Club, 481 U.S. at 545, 107 S.Ct. at 1946). The Court disagrees. Plaintiff repeatedly alleges that he was present at the June 1998 meeting "as legal counsel" at the request of two El Congresso members and to give legal advice at the December meeting. There simply is no basis for Plaintiff to equate his status as certain individuals' lawyer with the high level of intimacy such a claim demands. The word "intimacy" means "something of a personal or private nature." MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 613 (10th ed. 1997). Without a doubt, a lawyer's professional relationship with a client falls far from intimate, notwithstanding any personal relationship they may share. Moreover, the setting in which Plaintiff claims those intimate relations were interfered with was two meetings open to members of the Machuca Council and the Board of Presidents. Thus, neither the relationship nor the setting was "intimate." Perhaps the El Congresso members and Plaintiff were dear, dear friends. However, given the precise, limited nature of the intimacy the Supreme Court has required, the Court is of the opinion that Plaintiff cannot state such a § 1983 claim based on intimate association.
Indeed, with respect to the "association" taking place at the 1998 meetings, Plaintiffs Third Amended Complaint alleges the following:
22. PLAINTIFF was present at [the June 1998] meeting at the request of the Machuca/El Congresso Representatives Francisco Reyes and Christina Rivera and other individuals as legal counsel. 23. PLAINTIFF was also present to represent and guide individuals with whom he had an attorney-client relationship regarding any matters addressed at this meeting. Some of the individuals with whom PLAINTIFF had an attorney-client relationship were present at the meeting and others were not. . . . . 25. On December 15, 1998, residents of the Machuca complex, individually and as members of El Congresso, asked PLAINTIFF to provide them with his services in order to assure that their rights were not being violated [at that December 1998 meeting].
Similarly, with respect to the second type of associational freedom — expressive association — the Supreme Court has recognized that "[i]mpediments to the exercise of one's right to choose one's associates can violate" the First Amendment. Rotary Club, 481 U.S. at 548, 107 S.Ct. at 1947. As with the intimacy analysis, Plaintiff simply cannot circumvent the fact that his presence (and resulting removal) was all due to the fact Plaintiff repeatedly emphasizes, that he was at the meetings as a lawyer; he had a professional rather than personal relationship with his "clients." Hence, Plaintiffs removal could not have interfered with his ability to carry out his personal right to pray, speak or associate freely with members of El Congresso. Because Plaintiff repeatedly alleges that he was removed from the meetings in order to stop him from providing legal services to his clients, the Court is of the opinion that Plaintiff cannot show any deprivation of an expressive associational freedom. Hence, after due consideration, the Court is further of the opinion that Plaintiff cannot state a § 1983 claim based on the First Amendment right to freedom of association, regardless of whether any action Plaintiff alleges Alvarado took was done under color of State law.
In that respect, Alvarado further argues that Plaintiff has not alleged "state action" because the Court dismissed Plaintiffs claim against Alvarado in his official capacity. Having already found that Plaintiff cannot meet the first element of a § 1983 claim, Defendant's argument is wholly superfluous. Nonetheless, the Court disagrees. Though its October 31, 2000, Memorandum Opinion and Order, the Court merely dismissed any claim against Alvarado for which the Housing Authority would be financially responsible for any damages — i.e. in his official capacity. See, e.g., Monell v. Department of Soc. Svcs. of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978) ("[I]t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983."). The claim against Alvarado in his individual capacity may still import "state action" even though any damages finding would hit Alvarado's pocketbook, not the Housing Authority's. See Hafer v. Melo, 502 U.S. 21, 22, 112 S.Ct. 358, 360, 116L.Ed.2d301 (1991) (rejecting argument that suit against state officers alleging official acts precluded where officers not sued in official capacity); Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985) ("[A]n award of damages against an official in his personal capacity can be executed only against the official's personal assets. . . ."). Section 1983 makes actionable injurious conduct taken "under color of State law." 42 U.S.C.A. § 1983. Thus, "a defendant in a § 1983 suit acts under color of state law when he abuses the position given to him by the State." West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 2254, 101 L.Ed.2d 40 (1988). "`[S]tate employment is generally sufficient to render the defendant a state actor."' Id. (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 936, n. 18, 102 S.Ct. 2744, 2753, n. 18, 73 L.Ed.2d 482 (1982)). Hence, Alvarado's "state action" argument is inapposite.
Having considered the allegations Plaintiff makes in his Third Amended Complaint, the Court finds that Plaintiff cannot state a claim under 42 U.S.C. § 1983 for deprivation of constitutionally-protected rights. Upon that contingency, Plaintiff tersely asks the Court for leave to amend his Complaint again. Exactly how Plaintiff proposes either to find a new cause of action (supporting jurisdiction in this Court) or supplement his factual allegations, the Court cannot imagine. Plaintiff already has had four shots at the prize and, accordingly, the Court assumes that his present pleading — his Third Amended Complaint — represents "his best case." See Morrison v. City of Baton Rouge, 761 F.2d 242. 246 (5th Cir. 1985). Plaintiffs Third Amended Complaint was filed nearly ten months after he instituted this action, and, presumably, Plaintiff had plenty of time to conduct discovery and investigate the details of his claim. See id. at 245. Hence, after due consideration, the Court is of the opinion that Plaintiffs request for leave to amend should be denied and Alvarado's Motion to Dismiss granted.
Accordingly, IT IS HEREBY ORDERED that Defendant Roberto Alvarado's "Motion to Dismiss" is GRANTED.
IT IS FURTHER ORDERED that Plaintiff Fernando Chacon's claims against Defendant Robert Alvarado in His Individual Capacity are DISMISSED FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED.
IT IS FINALLY ORDERED that Plaintiffs request for leave to amend is DENIED.