Suit against Gregg County is dismissed

Ken Miller watches as his attorney Andrew Korn represents himself, Gari Bellis and Lester Glover during a case pertaining to multiple lawsuits filed against the city of East Mountain, on Monday March 13, 2017, in the court room at the Upshur County Courthouse in Gilmer. (Michael Cavazos/News-Journal Photo)

A judge has ruled Gregg County did not withhold public records from a former East Mountain resident.

A visiting judge ruled this week against Ken Miller, who earlier this year filed a civil lawsuit against Gregg County, claiming the county was withholding cellphone records relevant to a separate lawsuit he filed against the city of East Mountain.

Miller continues to be involved in other lawsuits against East Mountain, including a federal case.

Judge Joe Clayton, who was designated to hear the case in Gregg County Court At Law No. 2, said in his ruling that "Gregg County has provided all the responsive documents that exists or have shown that no such documents exist."

Miller and two other men each filed lawsuits in Upshur County in the fall against East Mountain, primarily arguing the city was withholding public records that he had requested through formal public record requests and that, by law, had to be released. Despite the state attorney general's office telling the city it had to release some records, the city did not, leading to the lawsuits.

A visiting judge in Upshur County ruled in Miller's favor — and collectively, Gari Bellis' and Lester Glover's favor — this spring, compelling the city to release the records.

That initial series of lawsuits led to the resignation of then-police chief Betty Charlson (then known as Betty Davis) and mayor and prompted a May turnover on the East Mountain City Council.

Charlson now is employed as a part-time officer for the New Summerfield Police Department, according to her service history provided from the Texas Commission On Law Enforcement. Charlson began working May 12 in New Summerfield.

In April, Miller filed a lawsuit against Gregg County, seeking at much as $100,000, as well as a writ of mandamus from a judge that would require the county to release public information that Miller claimed had been withheld despite a formal public records request.

In the Gregg County filing, Miller and his attorney, Andy Korn, said the county withheld cellphone records that would show a relationship between Charlson and deputies and lieutenants within the Gregg County Sheriff's Office that resulted in Charlson receiving special treatment from the sheriff's office, such as a failure to act on criminal complaints filed against her.

In addition to finding that Gregg County did not withhold records, Clayton also denied Miller's request for a writ of mandamus and his claims for injunctive relief. He also denied Gregg County's request for attorney fees and costs to be paid.

While the Gregg County case is settled, a federal lawsuit remains.

In the federal lawsuit filed in the Eastern District of Texas, Miller said he has been assaulted, falsely arrested and jailed, maliciously prosecuted, had his property destroyed and stolen, been defamed, terrorized and threatened by elected officials and peace officers for years. The civil rights lawsuit names East Mountain, Upshur County, Gregg County, Charlson, Terry Davis (Charlson's ex-husband) and former East Mountain Mayor Neal Coulter as defendants.

The lawsuit, filed in June, details how Miller has been treated by city and county officials for the past few years after he first filed a lawsuit against East Mountain in which he sought water access on his property.

The crux of Miller's lawsuit details a 2015 incident in which Terry Davis stopped him as he was driving, and Charlson arrived at the scene. Miller feared Terry Davis would harm him and, according to the lawsuit, Charlson ordered a stun gun to be used on Miller. That day, Miller was arrested. He was told he was being arrested on three felony charges of unlawfully carrying a weapon, interfering with public duties, fleeing a police officer and violating promise to appear, the lawsuit states. Miller also was booked into the Upshur County Jail.

On Sept. 24, 2015, Upshur County District Attorney Billy Byrd transferred Miller's three felony charges to Gregg County where — according to the lawsuit — District Attorney Carl Dorrough prepared a plea recommendation for Miller the same day. Miller refused all plea agreements and charges later were dismissed, according to the lawsuit.

Recent filings in that case show on Aug. 23, Judge Roy Payne granted a motion for attorneys Peter Smith and Victoria Thomas, both from the law firm of Nichols, Jackson, Dillard, Hager and Smith, to withdraw as legal counsel for Charlson, Davis and Coulter.

According to the filing, Darrell Noga and Christopher Klement, of the law firm Cantey Hanger, will be substituted as their attorneys.

On Aug. 24, Klement requested an extension to file a response to Miller's complaint. It was the third such request for an extension for the defendants. They now have until Sept 13 to file a response to the complaint.

Gregg County attorney Robert Davis already has filed a response on behalf of the county. In the county's response to Miller's lawsuit, the county denies Miller's allegations.

Robert Davis also in July filed a motion to dismiss the case.

Robert Davis and Korn, who continues to represent Miller, have argued in back and forth filings related to the motion to dismiss about constitutional violations. Robert Davis argues that Miller's claim fails to show that any policy of Gregg County's resulted in a constitutional violation.

"Instead, (Miller) seeks to hold Gregg County liable based on the actions of District Attorney Carl Dorrough," the Gregg County attorney wrote.

Korn responded by arguing that legal precedent shows no policy "need be shown 'where a final policymaker abuses the powers vested in his position to the detriment of a citizen.' " Korn also clarified that Miller's claims against Gregg County are not just against Dorrough but also against Sheriff Maxey Cerliano.

"Gregg County is liable to (Miller) for the actions of either of these two county officials," Korn wrote.

The lawsuit states Dorrough told Miller's then-attorney, Ryan Hill, that he was going to personally handle prosecution in Miller's case. The lawsuit argues that Miller was to be subjected to a sham trial.

In a response to Korn's filing, Robert Davis said Dorrough was not acting as "a final policymaker for Gregg County in his prosecution of (Miller), but as an advocate for the state, prosecuting violations of criminal law."

Robert Davis also argues there is nothing in Miller's lawsuit to show that Cerliano subjected Miller to a "sham trial."

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