Culter v. Kitchens et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
WILEY W. CUTLER, 	§
§
Plaintiff, 	§
§
v. 	§ 	Civil Action No. 4:25-cv-00753-O-BP
§
TY KITCHENS, et al., 	§
§
Defendants. 	§
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Before the Court are the Motion to Dismiss for Lack of Subject Matter Jurisdiction and
Failure to State a Claim and appendix that Defendants Ty Kitchens and Brian Daugherty filed on
August 11, 2025 (ECF Nos. 11, 12), the response that plaintiff Wiley W. Cutler filed on August
27, 2025 (ECF No. 17), and the reply that Kitchens and Daugherty filed on August 28, 2025 (ECF
No. 18). Additionally before the Court is the Motion to Dismiss that Defendant Jesus “Jay” Chapa
filed on August 21, 2025 (ECF No. 15). After reviewing the pleadings and applicable legal
authorities, the undersigned RECOMMENDS that Chief United States District Judge Reed
O’Connor DISMISS the case as MOOT, as it does not present a judiciable case or controversy
under Article III of the United States Constitution.
I. 	BACKGROUND
On July 14, 2025, Wiley Cutler made his first filing in this case. ECF No. 1. But that
document was not a complaint. See id. Instead, what Cutler filed was a motion for a temporary
restraining order (“TRO”) seeking to “bar[] the City of Fort Worth[,] Texas, Code Compliance
Department, from denying Plaintiff’s due process rights under the Constitution.” Id. at 1. His
motion named three defendants: (1) “Ty Kitchens, Interim Superintendent for the Code
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Compliance Department with The City of Fort Worth, Tx,” (2) “Brian Daughterty, Code
Compliance Director,” and (3) “Jesus ‘Jay’ Chapa, City Manager, City of Fort Worth, Tx.” Id.
According to Cutler, in December 2024, an employee of the City’s Code Compliance
Department “illegally c[a]me across [Cutler’s] property line” and “engage[d] in” unspecified
“deceptive practices.” Id. at 2. Cutler further alleges that Code Compliance employees “were
recruited for a special operation to target [him and his partner] and [their] neighbors with
harassment and abuse.” Id. at 1. On July 2, 2025, a Code Compliance employee delivered a letter
from Code Compliance Department Interim Superintendent Ty Kitchens to Cutler’s partner
notifying Cutler that his property had been declared a nuisance in violation of the Code of the City
of Fort Worth for an “unlawful accumulation” of household items, scrap, and other detritus. Id.;
id. at 11. That letter explained that were the problem not abated within ten days, the City would
abate the nuisance itself. Id. at 11.
At some point after December 2024, the State of Texas sued Cutler in the Municipal Court
of Fort Worth regarding this code violation. That case had a trial date set for August 6, 2025. On
July 14, Cutler petitioned this Court for a TRO seeking to “enforce the terms of” the July 2 letter
and prevent the Defendants he named in his federal suit from entering his property “until such time
as any necessary appeals are filed at the conclusion of the trial in Municipal Court number 5.” Id.
at 1-2. However, as circumstances turned out, there never was to be an appeal. On August 6, 2025,
the municipal judge granted the State’s motions to dismiss both causes it had brought against
Cutler. ECF No. 12 at 2-3; see also Brown v. Waybourn, 764 F. Supp. 3d 466, 470-71 (N.D. Tex.
2025) (citing Papasan v. Allain, 478 U.S. 265, 268 n.1 (1986)) (“The court may also take judicial
notice of matters of public record.”). Defendants now move to dismiss Cutler’s claims as moot.
See ECF Nos. 11-12, 15, 18.
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II. 	LEGAL STANDARD
“[T]o invoke the jurisdiction of a federal court, a litigant must have suffered, or be
threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable
judicial decision.” Chafin v. Chafin, 568 U.S. 165, 171–72 (2013). The “actual controversy must
exist not only at the time the complaint is filed, but through all stages of the litigation.” Already,
LLC v. Nike, Inc., 568 U.S. 85, 90–91 (2013) (internal quotation marks omitted).
“A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of
Article III—when the issues presented are no longer ‘live’ or the parties lack a legally cognizable
interest in the outcome.” Id. at 91 (internal quotation marks omitted). Mootness is in this way a
jurisdictional inquiry. “If a dispute ceases mid-litigation, so does [the Court’s] jurisdiction.” U.S.
Navy SEALs 1-26 v. Biden, 72 F.4th 666, 672 (5th Cir. 2023) (citing U.S. CONST. art. III, § 2). The
Court must raise the issue of mootness sua sponte because “[a] moot case presents no Article III
case or controversy, and a court has no constitutional jurisdiction to resolve the issues it presents.”
Adair v. Dretke, 150 F. App’x. 329, 331 (5th Cir. 2005) A court dismissing for mootness should
do so without prejudice. Salcido v. Wilson, No. 21-11029, 2022 WL 1564188, at *1 (5th Cir. 2022).
III. 	ANALYSIS
In his motion, Cutler asks the Court to bar Defendants from violating his due process rights.
ECF No. 1. Specifically, Cutler seeks a TRO performing three goals: (1) enforcing the terms of
the July 2 letter (which merely explained what Cutler had to do to no longer be in violation of the
City Code, ECF No. 1 at 11), (2) denying Defendants access to his property until a hypothetical
appeal of the state case culminated, and (3) “reinstat[ing] the judicial guardrails the Defendant(s)
attempt[ed] to knock down and bypass, in their zeal to strong arm the Plaintiff[] into what can only
be described a vigilante type administrative policing.” See generally ECF No 1. What Cutler refers
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to in that third request is uncertain, though it appears he seeks a TRO restraining Defendants from
“denying [him] access to the judicial system.” Id. at 2.
But of course, Cutler had his day in court on August 6, 2025. And the State dropped the
claims it had against him on that same date. ECF No. 12 at 2-3. Accordingly, all the relief Cutler
seeks in his TRO motion concerns conditions that may or may not have existed prior to the
adjudication of his state case. See ECF No. 1 (“This Temporary Restraining Order is in the public
interest and preserves our constitutional rights to a fair and impartial jury trial.”). That state jury
case has now come and gone, and the Court can fashion no relief aimed at safeguarding Cutler’s
pre-trial rights or requests when the municipal court dismissed the case at issue. Resultantly, the
undersigned finds that the present case is MOOT.
Before concluding, the undersigned notes one other detail. On August 27, 2025, Cutler
filed a response to Defendants Kitchens and Daugherty’s Motion to Dismiss. ECF No. 17. This
document is at best confusing, but liberally construed, it might be said to newly allege due process
violations against Code Compliance officer Terrica Orr, certain unnamed Fort Worth police
officers, and certain unnamed Tarrant County prosecutors. See generally ECF No. 17. Generally,
allegations raised for the first time in a response to a motion to a dispositive motion are not properly
before the Court. Middaugh v. InterBank, 528 F. Supp. 3d 509, 537 (N.D. Tex. 2021). But the
Court may construe “new allegations and theories in responses to dispositive motions as motions
for leave to amend, thus providing the [C]ourt a path to consider the new allegations.” Id.
Here, the undersigned finds no basis to construe Cutler’s response as a motion for leave to
amend, much less analyze whether the Court should grant Cutler leave to amend his original
pleading. First, Cutler’s initial pleading was not a complaint and did not abide by the requirements
of Federal Rule of Civil Procedure 8. Second, even if Cutler’s response could be thought of as a
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motion for leave to amend a complaint, and even if it could be read to bring claims under 42 U.S.C.
§ 1983 or otherwise, the factual information Cutler includes in that filing does not even possibly
state a claim against the current named defendants. Instead, at best it alleges claims against various
other government officers across Fort Worth and Tarrant County, Texas—none of whom are
presently before the Court. To the extent Cutler or others have claims against those persons, they
are free to pursue those claims in a separate case in a proper forum.
IV. 	CONCLUSION
The relief Cutler requested in his first filing in this case is no longer possible. Accordingly,
the undersigned RECOMMENDS that Chief Judge Reed O’Connor DISMISS this case as
MOOT and without prejudice.
SIGNED on December 15, 2025.
______________________________________
Hal R. Ray, Jr.
UNITED STATES MAGISTRATE JUDGE
______________________________________
Hal R. Ray, Jr.
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