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Paup v. State

United States District Court, E.D. Texas, Tyler Division

March 27, 2017

DAVID CRAIG PAUP, Plaintiff,
v.
STATE OF TEXAS, et al., Defendants.

          ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          ROBERT W. SCHROEDER III UNITED STATES DISTRICT JUDGE

         The Report and Recommendation of the Magistrate Judge, which contains her recommendation regarding Larra Ann Green, John ‘Ric' Freeman, The Honorable Carter W. Tarrance, Donna Bennett, Retired Judge George Martinez, the State of Texas, Attorney General Kenneth Paxton, and Dr. Julian Davis's (“Defendants”) Motions to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), has been presented for consideration. Docket No. 47 (“Report”). The Report recommends that: Defendants' Motions to Dismiss be granted; Plaintiff's federal claims against Defendants be dismissed with prejudice; and Plaintiff's state law claims against Defendants be dismissed without prejudice. Docket Nos. 13-15, 17, 21 and 22. The Report also recommends that Plaintiff's federal claims against Visiting Judge John Marshall be dismissed with prejudice, sua sponte, and that Plaintiff's state law claims against him be dismissed without prejudice, sua sponte.

         David Craig Paup (“Plaintiff” or Paup”) filed a “Demand for Jury Trial/Request for Pretrial Conference.” Docket No. 50. Paup also filed an “Objection/Amended Demand for a Jury Trial/Request [and for a] Pretrial Conference” (collectively, “objections” or “written objections”). Docket No. 51. The Court treats both of these documents as Plaintiff's written objections to the Report. The Defendants did not file a Response to Plaintiff's objections. Having made a de novo review of the written objections filed by Plaintiff to the Report, the Court concludes that the findings and conclusions of the Magistrate Judge are correct and the objections are without merit. For the reasons below, Plaintiff's objections are OVERRULED.

          I. Plaintiff's Objections to the Report

          Plaintiff first objects that:

[(1)] [t]his case should not be dismissed with two defendants seeking relief under FRCP 12(b)(1) and 12(b)(6). Further, the Court should not seek dismissal of Rooker-Feldman due in part of excessive fraudulent tactics. Nor should the Court seek dismissal under res judicata [sic] in future proceedings. Courts such as the United States Court of Appeals for the Sixth Circuit and others have determined that Rooker-Feldman does not prevent the lower federal courts from reviewing state-court judgments that were allegedly procured through fraud. [(2)] Further, the United States Fourth Circuit Court did not hold that either it or the district court lacked jurisdiction of such matters under “diversity of citizenship.” [(3)] Fraud language is exist[ing] and found throughout all filings by the Plaintiff. The listed defendants recklessly, with pretense failed to provide the following without all consents for Magistrate judge to make any swift just ruling are listed as follows numerous excerpts listed as follows and I request to compel objection to the scrutiny of all the defendants [sic] . . . . Also all State Court Orders were achieved by fraud, malice, and/or mistake by the defendants. Irreparable economic, social, fundamental damages should at face be recoverable by the United States Federal Court Order.

Docket No. 51 at 2-3.

         As to Plaintiff's first point, he cites no authority for the proposition that the “Sixth Circuit and others have determined that Rooker-Feldman does not prevent the lower federal courts from reviewing state-court judgments that were allegedly procured through fraud.” See generally Docket No. 51. Indeed, the Report includes a thorough discussion and analysis of the Rooker-Feldman doctrine and its applicability to appeals from state court orders even when brought in the context of federal claims such as §§ 1983 and 1985. Report at 14. This Court finds that Plaintiff's claims in this lawsuit are inextricably intertwined with the final judgment issued by the 392nd District Court of Henderson County, and, as such, are barred by the Rooker-Feldman doctrine. Id.

         Second, Plaintiff argues that this Court has subject-matter jurisdiction over this Complaint through diversity of citizenship under 28 U.S.C. § 1332. However, diversity jurisdiction does not exist in this case because two of the Defendants, Green and Freeman, reside in the same state as Paup. Report at 15.

         Plaintiff's third objection is directed to the Report's conclusion that Plaintiff's fraud claims should be dismissed for failure to state a claim with particularity under Rule 9(b).[1] See generally Docket Nos. 50, 51. However, Plaintiff cites to no filing nor does he provide specific examples of the “fraud language” that he asserts is “found throughout all filings by the Plaintiff.”[2] Docket No. 51 at 2-3. Plaintiff's unsupported statements do not satisfy the particularity requirement of Rule 9(b).[3] Docket Nos. 50, 51.

         Plaintiff then objects that:

[t]his cause of action is further brought under the Removal of the State Court for federal question and also The Federal Tort Claims, United States Constitution, and Diversity of Citizenship and shows cause of fraud, tort, civil right denials, discrimination as well. . . .

Docket No. 51 at 3. Here again, Plaintiff objects to the recommendation that the entire case be dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction. The Court recognizes that some of Plaintiff's claims arise under the United States Constitution and the Civil Rights Act and, thus, might be appropriately heard in federal court under federal question jurisdiction pursuant to 28 U.S.C. § 1331. But Plaintiff's claims, including those arising under the United States Constitution and the Civil Rights Act, are inextricably intertwined with the underlying state-court judgment and are thus barred by the Rooker-Feldman doctrine. Report at 14.

         Plaintiff's reliance on the Federal Tort Claims Act to establish subject matter jurisdiction over his Complaint is similarly unavailing because the Federal Tort Claims Act allows persons injured by the negligence of federal employees acting within the scope of their employment to sue the federal government. 28 U.S.C. § 1346(b). Plaintiff does not ...


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