Green Tide LLC v. The City of Cleburne Texas et al

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
GREEN TIDE, LLC D/B/A GT,
SKILL MACHINES,
Plaintiff,
v.
THE CITY OF CLEBURNE,
TEXAS, ROBERT SEVERANCE,
Individually, and ASHLEY D.
DIERKER, Individually,
Defendants.
§
§
§
§
§
§
§
§
§
§
§
§
§
Civil Action No. 3:26-CV-01005-X
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants City of Cleburne, Robert Severance, and Ashley
Dierker’s (collectively, the “Defendants”) motion for judgment on the pleadings.
(Doc. 18). After reviewing the motion, briefing, and applicable law, the Court
GRANTS Defendants’ motion for judgment on the pleadings.
I. Background
This case concerns alleged skill-game machines owned and operated by Green
Tide in Cleburne, Texas. The City of Cleburne discovered Green Tide’s machines and
determined they were gambling devices prohibited by Chapter 47 of the Texas Penal
Code and Cleburne city ordinance OR01-2026-04 (the Ordinance). On February 19,
2026, Cleburne Chief of Police Robert Severance notified Green Tide it needed to
remove its machines from its Cleburne locations by April 1, 2026. The notice
Case 3:26-cv-01005-X Document 26 Filed 10/14/26 Page 1 of 5 PageID <pageID>

2
threatened “civil penalties, injunctive relief, and/or criminal prosecution”1 if Green
Tide failed to remove the machines by the deadline.
In response to the letter, Green Tide contacted City Attorney Ashley Dierker
requesting an opportunity to be heard regarding the legality of the machines. Dierker
reiterated that Green Tide’s machines violated Texas law and did not respond to
Green Tide’s hearing request. No hearing or enforcement has since occurred.
II. Legal Standard
Federal Rule of Civil Procedure 8 requires a pleading to state “a short and plain
statement of the claim showing that the pleader is entitled to relief.”2 The pleading
standard does not require detailed factual allegations, but “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not
suffice.”3 “A motion for judgment on the pleadings under Rule 12(c) is subject to the
same standard as a motion to dismiss under Rule 12(b)(6).”4 For a complaint to
survive a motion to dismiss under Rule 12(b)(6), it “must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.”5 A
claim is facially plausible “when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.”6
1 Doc. 1 at 4.
2 FED. R. CIV. P. 8(a)(2).
3 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
4 Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008) (cleaned up).
5 Iqbal, 556 U.S. at 678 (cleaned up).
6 Id. (cleaned up).
Case 3:26-cv-01005-X Document 26 Filed 10/14/26 Page 2 of 5 PageID <pageID>

3
For purposes of a motion to dismiss, courts must accept all well-pled facts as
true and construe the complaint in the light most favorable to the plaintiff.7 “In other
words, a motion to dismiss an action for failure to state a claim admits the facts
alleged in the complaint, but challenges plaintiff’s rights to relief based upon those
facts.”8
III. Analysis
Defendants assert that Green Tide has failed to allege sufficient facts to
(1) establish a procedural due process violation, (2) state a Monell claim against the
City of Cleburne, or (3) overcome qualified immunity for Chief of Police Severance
and City Attorney Dierker, and attorney immunity for Dierker.9 The Court agrees
that Green Tide failed to establish a procedural due process violation.
The existence of a constitutional violation is a “threshold” requirement in any
section 1983 claim.10 Mere threats of enforcement are not constitutional violations.11
Constitutional violations occur upon a final deprivation of a Fourteenth Amendment
interest.12
7 See Muhammad v. Dallas Cnty. Cmty. Supervision & Corrs. Dep’t, 479 F.3d 377, 379 (5th Cir.
2007).
8 Ramming v. United States, 281 F.3d 158, 161–62 (5th Cir. 2001) (cleaned up).
9 See Doc. 1 at 3.
10 See Peterson v. City of Ft. Wor., 588 F.3d 838, 844 (5th Cir. 2009). Green Tide failed to plead
the threshold issue of a constitutional violation, so the Court need not reach Green Tide’s municipal
and individual liability claims.
11 Lamar v. Steele, 698 F.2d 1286, 1286 (5th Cir. 1983) (“Threats alone are not enough. A
section 1983 claim only accrues when the threats or threatening conduct result in a constitutional
deprivation.”).
12 Hampton Co. Nat’l Sur., LLC v. Tunica Cnty., Miss., 543 F.3d 221, 224 (5th Cir. 2008)
(“When a property interest is taken, some form of hearing is required before a final deprivation of the
interest.” (cleaned up)).
Case 3:26-cv-01005-X Document 26 Filed 10/14/26 Page 3 of 5 PageID <pageID>

4
The Due Process Clause protects persons “from the mistaken or unjustified
deprivation of life, liberty, or property.”13 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.”14 “The root requirement of the Due Process Clause” is “that an individual
be given an opportunity for a hearing before he is deprived of any significant property
interest.”15 “If the right to notice and a hearing is to serve its full purpose . . . it must
be granted at a time when the deprivation can still be prevented.”16
Green Tide alleges that Defendants violated its procedural due process rights
by ignoring its request for a hearing.17 But Defendants’ decision to ignore Green
Tide’s hearing request is not a procedural due process violation because Defendants
have not deprived Green Tide of any property interest it has in the machines.18
So far, Defendants have merely threatened enforcement.19 Green Tide alleges
that it has a property interest in the machines that it owns and that Defendants
threatened that property interest by issuing a notice that Green Tide might face “civil
penalties, injunctive relief, and/or criminal prosecution” if it failed to comply.20 But
13 Carey v. Piphus, 435 U.S. 247, 259 (1978).
14 Blackburn v. City of Marshall, 42 F.3d 925, 935 (5th Cir. 1995).
15 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (emphasis in original).
16 Fuentes v. Shevin, 407 U.S. 67, 81 (1972).
17 Doc. 1 at 4.
18 The Court need not reach the issue of whether Green Tide has a property interest in the
alleged skill-based machines because Green Tide has not alleged a constitutional violation regardless.
19 See Lamar, 698 F.2d at 1286 (“Threats alone are not enough. A section 1983 claim only
accrues when the threats or threatening conduct result in a constitutional deprivation.”).
20 See Docs. 1 at 4, 6–7; 21 at 3 (describing Defendants’ actions as threats).
Case 3:26-cv-01005-X Document 26 Filed 10/14/26 Page 4 of 5 PageID <pageID>

5
even assuming Green Tide has a valid property interest, no final deprivation of that
interest has occurred that would constitute a due process violation.21 So any action
the Court takes now would be premature to the extent Green Tide has a valid
property interest.
Accordingly, because Defendants have not enforced the notice or deprived
Green Tide of its machines, Green Tide has not alleged a constitutional violation.22
So the Court GRANTS Defendants’ motion for judgment on the pleadings.
IV. Conclusion
For the foregoing reasons, the Court GRANTS the motion for judgment on the
pleadings. Accordingly, this case is dismissed in its entirety. Cha-ching!
IT IS SO ORDERED this 14th day of October, 2026.
____________________________________
BRANTLEY STARR
UNITED STATES DISTRICT JUDGE
21 Cf. Bowlby v. City of Aberdeen, Miss., 681 F.3d 215, 226 (5th Cir. 2012) (holding a plaintiff
suffered a due process violation where a city revoked a plaintiff’s business license without a hearing).
22 Cf. Bowlby, 681 F.3d at 226 (holding a plaintiff suffered a due process violation where a city
revoked a plaintiff’s business license without a hearing).
Case 3:26-cv-01005-X Document 26 Filed 10/14/26 Page 5 of 5 PageID <pageID>