Case: Willey v. Ewing

3:18-cv-00081 | U.S. District Court for the Southern District of Texas

Filed Date: March 19, 2018

Closed Date: April 22, 2019

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Case Summary

On March 19, 2018, a criminal defense attorney in Galveston, Texas, filed this lawsuit in the U.S. District Court for the Southern District of Texas. He sued a Galveston County Court judge under 42 U.S.C. § 1983. The plaintiff, represented by the Civil Rights Corps, requested declaratory and injunctive relief together with attorney's fees. He claimed that the defendant judge had retaliated against him for speaking out against abusive practices in the Galveston County criminal justice system in …

According to Muting Gideon's Trumpet: The Crisis in Indigent Criminal Defense in Texas, indigent defendants in Texas struggle to obtain competent representation. Judges frequently appoint defense lawyers based on their reputations for moving cases along quickly, personal friendship, or political support. In the early 21st Century, the state adopted the Texas Fair Defense Act (TFDA) to standardize how courts appoint lawyers for indigent defendants. Under TFDA, judges appoint the lawyer whose name appears at the top of a rotating list.

The plaintiff provided criminal defense services to indigent defendants in Galveston, Texas. The defendant judge appointed him to represent several indigent defendants under TFDA. In one case, the plaintiff hired a third party investigator to interview witnesses. In others, he challenged the constitutionality of jailing defendants who could not afford bail. Later, the plaintiff complained to the Texas Indigent Defense Commission about several abusive practices in the Galveston criminal justice system.

The relationship between the plaintiff and the defendant judge quickly broke down. The complaint alleged that the defendant judge refused to authorize the plaintiff to spend funds he requested for additional investigators. The judge also cut back on the plaintiff's compensation, citing the plaintiff's "excessive out of court hours." Eventually, the defendant judge removed the plaintiff from all but one of his cases and, with one exception, stopped assigning him to new cases.

In response, the plaintiff filed this lawsuit against the defendant judge for retaliation in violation of the plaintiff's First Amendment rights. The defendant judge promptly moved to dismiss the case. First, he argued that the plaintiff lacked standing to bring a claim on behalf of indigent defendants. Second, he argued that the complaint was too vague and speculatory to state a claim for retaliation.

On December 17, 2018, Magistrate Judge Andrew M. Edison issued a report and recommendation granting in part and denying in part the defendant judge's motion to dismiss. Judge Edison rejected the defendant judge's argument that the plaintiff lacked standing as "predicated on an inaccurate summation" of the complaint, which alleged harm to the plaintiff rather than the plaintiff's clients. He also found that the plaintiff had properly pleaded the elements of a First Amendment retaliation claim: (1) an adverse employment action; (2) speech involving a matter of public concern; (3) the public interest in disclosure outweighed the defendant's interest in efficiency; and (4) the speech was a substantial factor in the adverse employment action.

Nevertheless, Judge Edison recommended that the plaintiff's claims for injunctive relief and attorney's fees be dismissed under Davis v. Tarrant. In Davis, the Fifth Circuit held that appointing an attorney under TFDA is a judicial act, so judges enjoy broad immunity from suits brought under § 1983 for violations of TFDA. District Judge George C. Hanks, Jr. signed an order adopting the Magistrate's recommendations on January 24, 2019.

The plaintiff pressed on with his claim for declaratory relief. On April 4, 2019, the parties notified the court of third party mediation and soon reached a settlement. The settlement provided that:

Both parties would follow the TFDA and Galveston County Indigent Defense Plan;
The plaintiff's obligations would be contingent on his continued acceptance of appointments; and
The defendant judge would not admit any wrongdoing.

Judge Hanks entered an order directing the parties to agree to the terms of the settlement agreement on April 22, 2019. The case is now closed.

Related Opinions:

2018 WL 7115180

2019 WL 313432

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Summary Authors

Timothy Leake (5/26/2019)

People

For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/6349187/parties/willey-v-ewing/

Judge(s)

Edison, Andrew M (Texas)

Hanks, George Carol Jr. (Texas)

Attorney for Plaintiff

Gerstein, Charles L. (District of Columbia)

Halperin, Eric I. (District of Columbia)

Attorney for Defendant

Lowenberg, Michael Jude (Texas)

Judge(s)

Edison, Andrew M (Texas)

Hanks, George Carol Jr. (Texas)

Attorney for Plaintiff

Gerstein, Charles L. (District of Columbia)

Halperin, Eric I. (District of Columbia)

Attorney for Defendant

Lowenberg, Michael Jude (Texas)

Attorney Contact Information via CourtListener

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Documents in the Clearinghouse

	Document
3:18-cv-00081	Docket [PACER]	April 22, 2019	April 22, 2019 Docket
1 3:18-cv-00081	Complaint	March 19, 2018	March 19, 2018 Complaint
26 3:18-cv-00081	Memorandum and Recommendation	Dec. 17, 2018	Dec. 17, 2018 Magistrate Report/Recommendation 2018 WL 7115180
31 3:18-cv-00081	Order Adopting Magistrate Judge's Memorandum and Recommendation	Jan. 24, 2019	Jan. 24, 2019 Order/Opinion 2019 WL 313432
35-1 3:18-cv-00081	Settlement Agreement	April 22, 2019	April 22, 2019 Settlement Agreement

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Resources

Title	Description		External URL Date / External URL
Galveston County, TX: Judicial Interference Civil Rights Corps	In Galveston, Texas, Civil Rights Corps is fighting to ensure the effective assistance of zealous defense counsel for indigent people charged with crimes. Our civil rights case in federal court alleg…	April 22, 2019	April 22, 2019 http://www.civilrightscorps.org/...
His Clients Weren’t Complaining. But the Judge Said This Lawyer Worked Too Hard. Richard A. Oppel Jr.		March 2018	March 29, 2018 https://www.nytimes.com/...
Securing Reasonable Caseloads: Ethics and Law in Public Defense Norman Lefstein	Chapter 1: The Failure to Implement the Right to Counsel Due to Excessive Caseloads A. The Constitutional Right to Counsel: Brief Overview B. Excessive Workloads: A Pervasive National P…	2011	Jan. 1, 2011 http://www.americanbar.org/...
Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel. National Right to Counsel Committee	[Edited, from the website:] [Notwithstanding the nominal right of indigent defendants to publicly provided counsel,] Today, in criminal and juvenile proceedings in state courts, somet…	April 14, 2009	April 14, 2009 http://www.constitutionproject.org/...
Muting Gideon’s Trumpet: The Crisis in Indigent Criminal Defense in Texas Prison Policy Initiative	The Gideon case, while a landmark, merely extended the reasoning of Powell v. Alabama, 287 U.S. 45 (1932), which had earlier ruled that the Constitution required legal counsel be appointed or otherwi…	Sept. 22, 2000	Sept. 22, 2000 https://static.prisonpolicy.org/...

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Docket

See docket on RECAP: https://www.courtlistener.com/docket/6349187/willey-v-ewing/

Last updated Oct. 21, 2025, 4:24 a.m.

ECF Number	Description	Date	Link Date / Link
1	COMPLAINT against Jack Ewing (Filing fee $ 400 receipt number 0541-19759518) filed by Andrew Willey. (Attachments: # 1 Civil Cover Sheet)(Gerstein, Charles) (Entered: 03/19/2018) 1 Civil Cover Sheet View on PACER	March 19, 2018	March 19, 2018 RECAP
2	Request for Issuance of Summons as to Jack Ewing, filed.(Gerstein, Charles) (Entered: 03/19/2018)	March 19, 2018	March 19, 2018 PACER
	Summons Issued as to Jack Ewing. Issued summons delivered to plaintiff by First-class mail, filed.(agould, 3)	March 20, 2018	March 20, 2018 PACER
	Summons Issued/Not Issued	March 20, 2018	March 20, 2018 PACER
3	ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 7/31/2018 at 09:30 AM in 7th Floor Courtroom before Magistrate Judge Andrew M Edison(Signed by Judge George C Hanks, Jr) Parties notified.(dwilkerson, 3) (Entered: 04/06/2018)	April 6, 2018	April 6, 2018 PACER
4	CERTIFICATE OF INTERESTED PARTIES by Andrew Willey, filed.(Gerstein, Charles) (Entered: 04/09/2018)	April 9, 2018	April 9, 2018 PACER
5	WAIVER OF SERVICE Returned Executed as to Jack Ewing served on 3/23/2018, answer due 5/22/2018, filed.(Gerstein, Charles) (Entered: 04/16/2018)	April 16, 2018	April 16, 2018 PACER
6	MOTION to Dismiss 1 Complaint by Request of Pre-Motion Conference Letter by Jack Ewing, filed. Motion Docket Date 6/12/2018. (Lowenberg, Michael) . (Entered: 05/22/2018)	May 22, 2018	May 22, 2018 PACER
7	NOTICE of Setting re: 6 REQUEST for pre-motion conference. Parties notified. Telephone Conference set for 6/20/2018 at 10:15 AM by telephone before Judge George C Hanks Jr, filed. Please call the conference line at 409-763-7801 ten minutes prior to the scheduled hearing. Once you call the number, you will be connected to the meet-me-line; there will be silence so please hold until the Case Manager calls in to connect all parties. Everyone must be on a landline. No cell phones or speaker phones are permitted. If you have a volume control, please be sure that it is turned up. If more than one attorney/party is on the line, for clarity of the record, please state your name when responding to the Court.(agould, 3) (Entered: 05/25/2018)	May 25, 2018	May 25, 2018 PACER
8	RESPONSE to 6 REQUEST for pre-motion conference filed by Andrew Willey. (Attachments: # 1 Appendix De Luna v. Hidalgo County, Doc. 50)(Gerstein, Charles) (Entered: 05/25/2018) 1 Appendix De Luna v. Hidalgo County, Doc. 50 View on PACER	May 25, 2018	May 25, 2018 PACER
9	NOTICE of Resetting as to 7 Notice of Setting. Parties notified. Telephone Conference set for 6/20/2018 at 10:15 AM by telephone before Judge George C Hanks Jr, filed. This is to notify the parties of the new conference line call in information. (SusanGram, 3) (Entered: 06/06/2018)	June 6, 2018	June 6, 2018 PACER
10	MOTION for Eric Halperin to Appear Pro Hac Vice by Civil Rights Corps, filed. Motion Docket Date 7/5/2018. (Gerstein, Charles) (Entered: 06/13/2018)	June 13, 2018	June 13, 2018 PACER
11	ORDER granting 10 MOTION for Eric Halperin to Appear Pro Hac Vice, Attorney Eric Halperin for Andrew Willey added (Signed by Judge George C Hanks, Jr) Parties notified.(dperez, 3) (Entered: 06/15/2018)	June 13, 2018	June 13, 2018 PACER
12	NOTICE of Resetting as to 6 REQUEST for pre-motion conference. Parties notified. Telephone Conference set for 6/20/2018 at 12:30 PM by telephone before Judge George C Hanks Jr, filed. (SusanGram, 3) (Entered: 06/20/2018)	June 20, 2018	June 20, 2018 PACER
13	Minute Entry for proceedings held before Judge George C Hanks, Jr. At the hearing, the following rulings were made as stated on the record. Telephone conference held on Defendants request for a pre-motion conference. (Dkt 6 . Defendants 12(b) motion is due Wednesday, July 11, 2018, at 5:00 PM.Plaintiffs response is due 21 days after the motion is filed. Defendants reply, if necessary, is due 7 days after response is filed. Appearances: Michael Jude Lowenberg, Eric Halperin, Charles Lewis Gerstein.(Digital # 12:28 pm - 12:42 pm)(ERO:Lorraine Trevino), filed.(ltrevino, 3) (Entered: 06/26/2018)	June 20, 2018	June 20, 2018 PACER
14	MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, MOTION to Dismiss ( Motion Docket Date 8/1/2018.) by Jack Ewing, filed. (Attachments: # 1 Exhibit Galveston County Indigent Defense Plan)(Lowenberg, Michael) (Entered: 07/11/2018) 1 Exhibit Galveston County Indigent Defense Plan View on PACER	July 11, 2018	July 11, 2018 RECAP
15	PROPOSED ORDER of Dismissal Pursuant to Rule 12 (b), filed.(Lowenberg, Michael) (Entered: 07/11/2018)	July 11, 2018	July 11, 2018 PACER
16	MOTION for Extension of Time Initial Pretrial Conference by Jack Ewing, filed. Motion Docket Date 8/10/2018. (Attachments: # 1 Proposed Order Proposed Order - Adjourn Initial Pretrial Conference)(Lowenberg, Michael) (Entered: 07/20/2018) 1 Proposed Order Proposed Order - Adjourn Initial Pretrial Conference View on PACER	July 20, 2018	July 20, 2018 PACER
17	JOINT DISCOVERY/CASE MANAGEMENT PLAN by Jack Ewing, filed.(Lowenberg, Michael) (Entered: 07/20/2018)	July 20, 2018	July 20, 2018 PACER
18	CERTIFICATE OF INTERESTED PARTIES by Jack Ewing, filed.(Lowenberg, Michael) (Entered: 07/20/2018)	July 20, 2018	July 20, 2018 PACER
19	ORDER denying 16 Motion for Extension of Time.(Signed by Judge George C Hanks, Jr) Parties notified.(agould, 3) (Entered: 07/26/2018)	July 26, 2018	July 26, 2018 PACER
20	SCHEDULING ORDER entered. ETT: 5 Days. Bench Trial. Amended Pleadings due by 10/11/2018. Joinder of Parties due by 8/17/2018. Pltf Expert Report due by 2/15/2019. Deft Expert Report due by 3/15/2019. Discovery due by 5/10/2019. Dispositive Motion Filing due by 5/24/2019. Non-Dispositive Motion Filing due by 6/21/2019. Joint Pretrial Order due by 8/26/2019. Docket Call set for 9/6/2019 at 09:30 AM in Sixth Floor Courtroom before Judge George C Hanks Jr. (Signed by Magistrate Judge Andrew M Edison) Parties notified. (wbostic, 4) (Entered: 07/31/2018)	July 31, 2018	July 31, 2018 PACER
21	RESPONSE in Opposition to 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM MOTION to Dismiss, filed by Andrew Willey. (Gerstein, Charles) (Entered: 07/31/2018)	July 31, 2018	July 31, 2018 PACER
	Minute entry for proceedings before Magistrate Judge Andrew M. Edison. Initial conference held on July 31, 2018. The court and parties conferred and the court set out a schedule for the case. The scheduling order will be entered separately. Appearances: Michael Jude Lowenberg, Eric Halperin and Charles Lewis Gerstein. (ERO:Yes), filed. (wbostic, 4)	July 31, 2018	July 31, 2018 PACER
22	REPLY to Response to 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM MOTION to Dismiss, filed by Jack Ewing. (Lowenberg, Michael) (Entered: 08/07/2018)	Aug. 7, 2018	Aug. 7, 2018 PACER
23	NOTICE of Referral of Motion to Magistrate Judge Andrew Edison re 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM MOTION to Dismiss, filed. (jegonzalez, 3) (Entered: 10/31/2018)	Oct. 31, 2018	Oct. 31, 2018 PACER
24	NOTICE of Setting as to 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM MOTION to Dismiss . Parties notified. Motion Hearing set for 11/29/2018 at 10:00 AM in 7th Floor Courtroom before Magistrate Judge Andrew M Edison, filed. (wbostic, 4) (Entered: 11/01/2018)	Nov. 1, 2018	Nov. 1, 2018 PACER
	Minute entry for proceedings before Magistrate Judge Andrew M. Edison. Motion hearing held on November 29, 2018. The Court heard arguments on the Motion to Dismiss [Dkt. 14] and the motion is taken under advisement. Appearances: Eric Halperin and Charles Gerstein for the plaintiff Andrew Willey and Michael Lowenberg for the defendant Hon. Jack Ewing. (ERO:Yes), filed. (wbostic, 4)	Nov. 29, 2018	Nov. 29, 2018 PACER
25	AO 435 TRANSCRIPT REQUEST by Charles Gerstein for Transcript of Motion Hearing on 11/29/2018 Before Judge Edison. Ordinary (30 days) turnaround requested. Court Reporter/Transcriber: Trinity Transcription Services, filed. (Gerstein, Charles) ELECTRONICALLY FORWARDED TO TRINITY TRANSCRIPTION SERVICES 12/3/2018 (agould, 3). (Entered: 11/30/2018)	Nov. 30, 2018	Nov. 30, 2018 PACER
26	MEMORANDUM AND RECOMMENDATION entered. The Court RECOMMENDS that Defendant'sMotion to Dismiss [Dkt. 14] be GRANTED in part and DENIED in part. Specifically, Willey's claims for injunctive relief and attorney's fees under 42 U.S.C. § 1988 should be DISMISSED. The motion should be denied in all other respects. Objections to M&R due by 12/31/2018. (Signed by Magistrate Judge Andrew M Edison) Parties notified. (wbostic, 4)	Dec. 17, 2018	Dec. 17, 2018 RECAP
27	OBJECTIONS to 26 Memorandum and Recommendations, filed by Jack Ewing. (Lowenberg, Michael) (Entered: 12/31/2018)	Dec. 31, 2018	Dec. 31, 2018 PACER
28	TRANSCRIPT re: Motion Hearing held on November 29, 2018 before Magistrate Judge Andrew M Edison. Court Reporter/Transcriber Trinity Transcription Services. Ordering Party Charles L. Gerstein, Esq. Release of Transcript Restriction set for 4/2/2019., filed. (cbattaglia, ) (Entered: 01/02/2019)	Jan. 2, 2019	Jan. 2, 2019 PACER
29	RESPONSE to 27 Objections to Memorandum and Recommendations, filed by Andrew Willey. (Gerstein, Charles) (Entered: 01/14/2019)	Jan. 14, 2019	Jan. 14, 2019 PACER
30	REPLY to 26 Memorandum and Recommendations, Reply in Support of Objections, filed by Jack Ewing. (Lowenberg, Michael) (Entered: 01/22/2019)	Jan. 22, 2019	Jan. 22, 2019 PACER
31	ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 26 Memorandum and Recommendations GRANTING IN PART AND DENYING IN PART 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM MOTION to Dismiss (Signed by Judge George C Hanks, Jr) Parties notified.(dperez, 3)	Jan. 24, 2019	Jan. 24, 2019 RECAP
32	LETTER OF AGREEMENT re: Mediation with Magistrate by Jack Ewing, filed.(Lowenberg, Michael) (Entered: 04/04/2019)	April 4, 2019	April 4, 2019 PACER
33	ORDER granting 32 Letter of Agreement (Signed by Judge George C Hanks, Jr) Parties notified.(agould, 3) (Entered: 04/05/2019)	April 4, 2019	April 4, 2019 PACER
34	NOTICE of Setting. Parties notified. Mediation set for 4/9/2019 at 08:30 AM in 7th Floor Courtroom before Magistrate Judge Andrew M Edison, filed. (wbostic, 4) (Entered: 04/05/2019)	April 5, 2019	April 5, 2019 PACER
	Settlement Conference	April 9, 2019	April 9, 2019 PACER
	Minute Entry for proceedings held before Magistrate Judge Andrew M Edison. MEDIATION held on 4/9/2019, filed. (wbostic, 4)	April 9, 2019	April 9, 2019 PACER
35	Agreed MOTION for Entry of Judgment by Andrew Willey, filed. Motion Docket Date 5/13/2019. (Attachments: # 1 Exhibit 1 Settlement Agreement)(Gerstein, Charles) (Entered: 04/22/2019) 1 Exhibit 1 Settlement Agreement View on RECAP	April 22, 2019	April 22, 2019 PACER
36	AGREED FINAL JUDGMENT. Case terminated on April 22, 2019(Signed by Judge George C Hanks, Jr) Parties notified.(ltrevino, 3) (Entered: 04/22/2019)	April 22, 2019	April 22, 2019 RECAP