United States District Court, W.D. Texas, Austin Division
REPORT AND RECOMMENDATION OF THE UNITED STATES
W. AUSTIN UNITED STATES MAGISTRATE JUDGE
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE
the Court are Defendant Federal Bureau of Investigation's
Motion to Dismiss (Dkt. No. 5); Plaintiff's Response to
Defendant FBI's Motion to Dismiss (Dkt. No. 13);
Plaintiff's Motion to Remand (Dkt. No. 11);
Defendant's Response in Opposition to Plaintiff's
Motion to Remand (Dkt. No. 12); Plaintiff's Motion for
Leave to Proceed In Forma Pauperis (Dkt. No. 17); and
Plaintiff's Motion to Stay Case (Dkt. No. 19). The
District Court referred the above motions to the undersigned
Magistrate Judge for report and recommendation pursuant to 28
U.S.C. § 636(b)(1)(A), Fed.R.Civ.P. 72, and Rule 1(c) of
Appendix C of the Local Rules.
Caroline Morgan brings this action against the Texas
Department of Insurance (TDI), Office of Injured Employee
Counsel (OIEC), and Federal Bureau of Investigation (FBI).
Morgan originally filed this suit in Travis County to stay
proceedings for two workers' compensation claims while
Morgan's two cases before the Fifth Circuit are
pending. The workers' compensation claims
supposedly request relief for a work fall, which caused a
spinal fracture. Dkt. No. 2-3 at 6.
to Morgan, the two pending workers' compensation claims
are handled by TDI and OIEC. Dkt. No. 2-3 at 2. However,
Morgan alleges that the FBI's unconstitutional
actions-which are addressed in the two cases before the Fifth
Circuit, and include allegations such as accessing her veins,
infiltrating her medical records, and withholding
records-affect the outcome of the state proceedings. Dkt. No.
2-3 at 6-7. See also Morgan v. FBI, No.
A-15-CV-1255-LY, 2016 WL 7443397, *1 (W.D. Tex. May 24,
2016); Morgan v. Unknown FBI Agents, Dkt. No. 5, No.
A-16-CV-495-SS, *4 (W.D. Tex. May 3, 2016). She therefore
requests a stay of the workers' compensation proceedings
until the federal appeals have been decided. Though Morgan
included the FBI as a defendant to this claim, the FBI plays
no role in the state proceedings. Moreover, Morgan does not
appear to request any relief from the FBI regarding this
claim. Thus, this claim appears to solely apply to TDI and
this, in her state court petition Morgan additionally
requests a permanent injunction against the FBI. Dkt. No.
2-9. Morgan claims that the FBI: tampered with her mail on
multiple occasions (Dkt. No. 2-9 at 3); slashed her bike tire
causing her to crash (Id.); drugged her on two
occasions (Id. at 5); colluded with the local police
force to prevent her from making a report against the FBI
(Id.); and generally covered up all of its actions
through collusion with a number of state and local entities
(Id. at 9-10). She argues that the FBI violated her
Eighth Amendment right to be free from cruel and unusual
punishment, and requests the court to enjoin the FBI from
continuing these actions.
removed the case pursuant to 28 U.S.C. § 1442(a), and
immediately moved for dismissal of the claims against it. The
FBI argues that this Court does not have jurisdiction over
Morgan's claims, or in the alternative, that she has
failed to state a claim upon which relief may be granted.
Morgan objected to both the removal and motion to dismiss,
arguing that removal was improper and the case should be
remanded to the state court. She does not challenge the
arguments made by the FBI in its motion to dismiss, and only
argues that the removal was improper. Dkt. No. 13. Neither
TDI nor OIEC have filed any motions in this Court, so the
motion to stay proceedings is not at issue here.
Rule of Civil Procedure 12(b)(1) allows a party to assert
lack of subject-matter jurisdiction as a defense to suit.
Federal district courts are courts of limited jurisdiction,
and may only exercise such jurisdiction as is expressly
conferred by the Constitution and federal statutes.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). A federal court properly dismisses a case
for lack of subject matter jurisdiction when it lacks the
statutory or constitutional power to adjudicate the case.
Home Builders Assn. of Miss., Inc. v. City of
Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). “The
burden of proof for a Rule 12(b)(1) motion to dismiss is on
the party asserting jurisdiction.” Ramming v.
United States, 281 F.3d 158, 161 (5th Cir. 2001),
cert. denied, 536 U.S. 960 (2002).
“Accordingly, the plaintiff constantly bears the burden
of proof that jurisdiction does in fact exist.”
Id. In ruling on a Rule 12(b)(1) motion, the court
may consider any one of the following: (1) the complaint
alone; (2) the complaint plus undisputed facts evidenced in
the record; or (3) the complaint, undisputed facts, and the
court's resolution of disputed facts. Lane v.
Halliburton, 529 F.3d 548, 557 (5th Cir. 2008).
moves to dismiss Morgan's claims on the basis of the
doctrine of derivative jurisdiction. This doctrine states
that “when a case is removed from state to federal
court, the jurisdiction of the federal court is derived from
the state court's jurisdiction.” Lopez v.
Sentrillon Corp., 749 F.3d 347, 350 (5th Cir. 2014);
see also Colonial Cty. Mutual Ins. Co. v. United
States, No. SA-15-CV-917, 2015 WL 7454698, *2 (W.D. Tex.
Nov. 23, 2015); Schlorff v. Dig. Eng'g & Imaging,
Inc., No. 16-11016, 2016 WL 6276882, *2 (E.D. La. Oct.
27, 2016). In Lopez, the court found that
because the United States had not waived sovereign immunity
in state court for claims under the Federal Tort Claims Act,
removal to federal court did not cure the state court's
lack of subject matter jurisdiction. Id. at 351.
Thus, even if the federal court would have had original
jurisdiction over the claims, the district court's
subject matter jurisdiction after removal is limited to that
of the state court's. Id. at 350. While the
doctrine of derivative jurisdiction no longer applies to
removal under 28 U.S.C. § 1441, the Fifth Circuit found
that it still applies to removal under Section 1442.
Id. Here, the FBI removed this case pursuant to
Section 1442(a), which allows for removal for any claims
against a federal official or agency. 28 U.S.C. §
1442(a). Thus, this Court does not have jurisdiction over any
claims that could not be brought against the FBI in state
state court petition, Morgan requests injunctive relief
against the FBI for a number of alleged actions. However,
Morgan has failed to identify where the United States has
waived its sovereign immunity from suit for the relief she
seeks in state court. See F.D.I.C. v. Meyer, 510
U.S. 471, 475 (1994) (“Absent a waiver, sovereign
immunity shields the Federal Government and its agencies from
suit.”); cf. Lopez, 749 F.3d at 351 (finding
that even though the United States waived its sovereign
immunity under the Federal Tort Claims Act, it granted
exclusive jurisdiction to federal courts). Accordingly, the
state court was without jurisdiction to hear Morgan's
claims against the FBI. Under the derivative jurisdiction
doctrine, therefore, this Court does not have jurisdiction
over the removed claims.
even were this Court to find it has subject matter
jurisdiction, Morgan fails to state a claim upon which relief
may be granted. A complaint lacks an arguable basis in fact
and is factually frivolous when the allegations are fanciful,
fantastic, and delusional or when they “rise to the
level of the irrational or the wholly incredible.”
Denton v. Hernandez, 504 U.S. 25, 32-33 (1992);
see Flores v. United States Attorney General, 434 F.
App'x 387, 388 (5th Cir. 2011) (finding that pro se
plaintiff's fanciful and delusional claims should be
dismissed as frivolous where plaintiff alleged that certain
members of the federal government ...