Reported / Citable
Background
Brandon Hicks sued private attorney Dagnee McKinney and Texas assistant attorney general Karen Rundlof over events connected to his 2016 divorce and later child-support proceedings. McKinney had represented Hicks’s former wife in the divorce. Hicks alleged that he lacked proper notice of the divorce hearing and that McKinney, Rundlof, and his former wife conspired to violate his rights.
Hicks asserted due-process claims under the Fourteenth Amendment and Article I, Section 19 of the Texas Constitution. He later filed an amended complaint naming only McKinney, thereby dropping his claims against Rundlof. McKinney moved to dismiss and sought to abate discovery while that motion remained unresolved; Hicks filed several discovery motions.
The Court’s Holding
Magistrate Judge Dena Hanovice Palermo granted Hicks’s motions for leave to amend and treated McKinney’s dismissal motion as directed at the amended complaint because its material allegations were unchanged. The judge recommended granting McKinney’s motion and dismissing Hicks’s claims against her with prejudice.
The judge concluded that Hicks had not plausibly alleged the state action required for either due-process claim. McKinney was a private attorney representing Hicks’s former wife, and Hicks alleged no specific facts showing an agreement between McKinney and a state actor to commit an unlawful act. His conclusory assertion that McKinney conspired with Rundlof was insufficient to make McKinney’s conduct fairly attributable to the state.
The judge also granted McKinney’s motion to abate, staying discovery related to the claims against her until final resolution of the dismissal motion, and denied Hicks’s discovery motions. The dismissal ruling was a report and recommendation subject to objections and adoption by the district judge, while the amendment and discovery rulings were orders.
Key Takeaways
- A private attorney does not act under color of state law merely by representing a party in court proceedings.
- A Section 1983 conspiracy theory requires specific facts supporting an agreement between private and public actors; a bare allegation of collusion is insufficient.
- Texas’s constitutional due-course-of-law protection likewise requires state action.
- The court may stay discovery when resolution of a dismissal motion could eliminate the need for discovery.
Why It Matters
The recommendation illustrates the pleading barrier facing constitutional claims against private lawyers. An adverse result in litigation, even when government attorneys or judges participated in the proceedings, does not by itself transform opposing counsel into a state actor.
It also underscores the procedural distinction between a magistrate judge’s dispositive recommendation and immediately effective pretrial orders: dismissal remained subject to district-judge review, but discovery was stayed in the meantime.