Case 3:12-cv Document 30 Filed in TXSD on 05/08/12 Page 1 of 5

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1 Case 3:12-cv Document 30 Filed in TXSD on 05/08/12 Page 1 of 5 THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION VOTING FOR AMERICA, INC. BRAD RICHEY AND PENELOPE MCFADDEN Plaintiffs Vs. No. 12-CV HOPE ANDRADE AND CHERYL E. JOHNSON Defendants DEFENDANT JOHNSON S REPLY FOR PLAINTIFFS RESPONSE TO HER MOTION TO DISMISS TO THE HONORABLE COURT: Defendant Johnson presents this reply to the response filed by the plaintiffs in response to her motion to dismiss. The purpose of this reply is to call to the attention of this Court that: a) the plaintiffs have misstated the method of analysis a court should utilize when presented with a Rule 12(b)(1) motion which presents a factual challenge to the pleading; b) to point out that under the plaintiffs attribution of enforcement responsibilities between Andrade and Johnson, that Johnson cannot be liable under 42 USC as a matter of law; and c) to reiterate the lack of any action on the part of Johnson which has harmed any defendant. a) Evidence may be considered in connection with a Rule 12(b)(1) motion. Johnson had filed a motion to dismiss for lack of jurisdiction under Fed.R. Civ.P Rule 12(B)(1) with evidentiary support. Citing Williamson v. Tucker, 645 F.2d 404, (5th Cir. 1981) the plaintiff states that in evaluating the defendants motions under Rule 12(b)(1) the court must consider the allegations in the plaintiff s complaint as true and should not look to 1

2 Case 3:12-cv Document 30 Filed in TXSD on 05/08/12 Page 2 of 5 facts outside the complaint. Plaintiff s Response pg 3. While this may be true in facial attacks to jurisdiction, it is not correct for the factual attack Johnson has filed. Motions to dismiss for lack of subject matter jurisdiction fall into two general categories: facial attacks and factual attacks. A facial attack is a challenge to the sufficiency of the pleading itself. On such a motion, the court must take the material allegations of the petition as true and construed in the light most favorable to the nonmoving party. See Scheuer v. Rhodes, 416 U.S. 232, , 94 S.Ct. 1683, , 40 L.Ed.2d 90 (1974). A factual attack, on the other hand, is not a challenge to the sufficiency of the pleading's allegations, but a challenge to the factual existence of subject matter jurisdiction. On such a motion, no presumptive truthfulness applies to the factual allegations, see Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990), and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. U.S v. Ritchie, 15 F3d. 592, 598 (6th Cir. 1994). While the court generally may not consider materials outside the pleadings on a Rule 12(b)(6) motion, it may consider such materials on a Rule 12(b)(1) motion, and unlike Rule 12(b)(6), the attachment of exhibits to a Rule 12(b)(1) motion does not convert it to a Rule 56 motion. Gonzalez v. U.S. 284 F.3d 281, 288 (1 st Cir. 2002). Johnson included factual exhibits with her Rule 12(b)(1) motion, and those items may be properly considered by the Court. b). The plaintiff concedes Johnson has no liability under Albeit perhaps inadvertently, it appears the plaintiff conceded that Johnson has no liability under 42 USC 1983 when it observed at page 9 of its response that the requirements of causation and redressability are similarly met with respect to Defendant Johnson, who serves under the Secretary of State and implements the challenged provisions on a local level. Merely implementing a state policy on a local level does not meet the test for local liability under 42 2

3 Case 3:12-cv Document 30 Filed in TXSD on 05/08/12 Page 3 of 5 USC The plaintiffs reliance on Okpalobi v. Foster, 244 F.3d 405 (5 th Cir. 2001), construing the court s ability to enjoin the actions of state officials under Ex Parte Young notwithstanding Eleventh Amendment immunity, is inapposite and does not establish liability against Johnson under 42 USC Johnson is not a state official, she is the voter registrar of Galveston County. As noted in her brief in support, this suit against Johnson is her official capacity is in fact a suit against Galveston County since an official-capacity claim is, in all respects other than name, to be treated as a suit against the [government] entity, Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), Stern v. Hinds County, Miss., 2011 WL (5 th Cir. 2011). To hold a local government, such as Galveston County, liable for an official's conduct, a plaintiff must first establish that the official (1) had final policymaking authority concerning the action alleged to have caused the particular constitutional or statutory violation at issue and (2) was the policymaker for the local governing body for the purposes of the particular act. McMillian v. Monroe County Alabama, 520 U.S. 781, 785, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997). Weiner v. San Diego County 210 F.3d 1025, 1028 (9 th Cir.2000). And as the plaintiffs point out at page 8 & 9 of their response, since Tex. Election Code commands registrars, like Johnson, to adhere to the rules prescribed by the secretary of state, and since Andrade has the power to interpret Texas Laws to comply with the NVRA and trigger the prosecution of individuals who fail to obey the federal requirements, Johnson did not have final policymaking authority concerning the action alleged to have caused the particular constitutional or statutory violation, McMillian. supra at 781, and thus cannot be subjected to liability under 42 USC

4 Case 3:12-cv Document 30 Filed in TXSD on 05/08/12 Page 4 of 5 c) There has been no showing of injury caused by Johnson. As shown in the evidence attached to her Rule 12(b)(1) motion, neither Richey nor McFadden have suffered any harm by Johnson. The production of McFadden s VDR credentials belie her claim she has been thwarted in her efforts to become a VDR. As to the requirement that voters have been required to show photo ID s to vote, that it outside the purview of Johnson s responsibility as voter registrar, as pointed out in her motion to dismiss. And while the plaintiff have produced a nearly 50 page litany of outrages caused by Defendant Andrade under the NVRA and other statutes, that response has been nearly silent as to Defendant Johnson. That silence is with good reason; the plaintiffs have not asserted that there is jurisdiction to bring her into this case and neither have they shown she has caused any injury. Accordingly, defendant Johnson should be dismissed from this case. WHEREFORE, premises considered, the defendant Cheryl Johnson again prays this Court dismiss her entirely from this case and that she go hence without day. Respectfully submitted, /s Donald S. Glywasky /s Donald S. Glywasky SBN Fed. ID No County Legal Department County Courthouse 5 th Floor 722 Moody Galveston, Texas (409) (409) (fax) Attorney in charge for Cheryl Johnson County Tax Assessor Collector and Voter Registrar 4

5 Case 3:12-cv Document 30 Filed in TXSD on 05/08/12 Page 5 of 5 Certificate of Service I certify opposing counsel are known user of the Court s electronic filing system and a copy of this document will be made upon him through that system on the day of filing. /s Donald S. Glywasky /s 5