United States District Court, N.D. Texas, Fort Worth Division
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
O'CONNOR UNITED STATES DISTRICT JUDGE.
November 8, 2017, The United States Magistrate Judge issued
Findings, Conclusions, and a Recommendation (the
“FCR”) in this case. FCR, ECF No. 17. The FCR
recommended that this Court grant Defendant Ken Paxton's
Motion to Dismiss (ECF No. 15), filed August 29, 2017;
Defendant Thomas A. Wilder's Motion to Dismiss (ECF No.
20), filed September 5, 2017; and Defendant Jesus Nevarez,
Jr's Motion to Dismiss (ECF No. 25), filed September 19,
2017. Plaintiff filed objections (ECF No. 36), Defendant
Wilder filed objections (ECF No. 37), and Defendants Ken
Paxton and Jesus Nevarez, Jr. filed a response to
Plaintiff's objections (ECF No. 38).
Court has conducted a de novo review of those
portions of the FCR to which an objection was made. For the
following reasons, Plaintiff's objections are
Elizabeth Stewart (“Stewart”) brings this suit
against Defendants Jesus Nevarez, Jr.
(“Nevarez”), Thomas A. Wilder
(“Wilder”), and Ken Paxton (“Paxton”)
(collectively, “the Defendants”) for violations
of due process under the Fifth and Fourteenth Amendments.
Compl. 1, ECF No. 1. Plaintiff seeks damages resulting from
an alleged deprivation of the opportunity to be heard on her
attempt to modify her child custody and child support orders
in state court. Id.
is the mother of two children, H.S. III and A.S. Id.
at 3. Harry Stewart II, who is not a party to this case, is
the father of the children and Stewart's ex-husband.
Id. On August 25, 2014, Stewart filed in Tarrant
County District Court a Motion to Modify in Suit Affecting
the Parent-Child Relationship and Request for Temporary
Orders and for Temporary Restraining Order, for Protective
Order and Motion to Transfer (“the Modification
Suit”). Id. at 3; Br. Supp. Paxton Mot.
Dismiss 2, ECF No. 16. On September 26, 2014, Harry Stewart
II filed a counter-petition to the Modification Suit. Compl.
3, ECF No. 1. On January 16, 2015, Plaintiff Stewart filed
her Counter-Respondent's Original Answer. Id.
are all connected with the Modification Suit. Nevarez is
judge of the 231st District Court, a family court in Tarrant
County, Texas, who presided over the Modification Suit.
Id. at 2, 5. Wilder is the District Clerk of Tarrant
County, and sued by Plaintiff because he trains and manages
the Tarrant County district court deputy clerks. Id.
at 2. Paxton is the Attorney General of the State of Texas,
sued by Plaintiff because his office manages the Texas Child
Support Division. Id. at 3.
did not appeal the final order in the Modification Suit to
the state appellate court. Id., Ex. 2; Br. Supp.
Paxton Mot. Dismiss 11, ECF No. 16. Stewart currently has a
mandamus action “for declaratory relief of the void
order” pending in the Texas Supreme Court. Compl. 11,
ECF No. 1. She also has filed a complaint against Nevarez
with the Texas Judicial Commission. Id. Stewart
previously filed a § 2254 habeas claim, which a court in
this district dismissed for lack of jurisdiction. See
Stewart v. 231st Judicial Dist. Tex. AG,
Civil Action No. 4:16-cv-00999-A, 2016 U.S. Dist. LEXIS
150338 (N.D. Tex. 2016).
ANALYSIS OF OBJECTIONS
filed several objections to the Magistrate Judge's FCR.
This Court reviews each objection de novo. First,
Stewart objects to dismissal under the
Rooker-Feldman doctrine. Pl.'s Obj. 1, ECF No.
36. The Rooker-Feldman doctrine requires dismissal
of claims brought in federal court that should have been
appealed in state court. See Hale v. Harney, 786
F.2d 688, 691 (5th Cir. 1986); Chasez v. Powell,
1:07CV929 LGJMR, 2008 WL 591941, at *2 (S.D.Miss. Feb. 28,
2008) (citing Rooker v. Fid. Tr. Co., 263 U.S. 413,
415 (1923)). Plaintiff objects to its application here, but
the Rooker-Feldman doctrine specifically applies to
cases like this, where the claims are “inextricably
intertwined” with a state court decision. Davis v.
Bayless, 70 F.3d 367, 375 (5th Cir. 1995). The
underlying federalism concerns particularly apply to domestic
issues like child custody and child support, which were at
the heart of the original state court proceedings. The proper
procedure for Plaintiff is to appeal through the state
appellate court, and Plaintiff has not shown a reason why she
is unable to avail herself of this remedy. Therefore, the
Court overrules this objection.
Plaintiff objects to dismissal based on Younger
abstention doctrine. Pl.'s Obj. 4, ECF No. 36. Plaintiff
has currently a pending mandamus action before the Texas
Supreme Court concerning the Modification Suit. Compl. 11,
ECF No. 1. Under Younger, federal district courts
are to refrain from entertaining demands for injunctive or
declaratory relief premised on constitutional challenges to
state criminal or civil proceedings that are imminent or
ongoing at the time the federal suit is initiated.
Younger v. Harris, 401 U.S. 37, 52-53; Middlesex
Cnty. Ethics Comm. v. Garden State Bar Ass'n, 457
U.S. 423, 432 (1982) (extending the abstention doctrine to
cases seeking an injunction of state civil proceedings).
Younger applies in this context where: (1) the
dispute involves an ongoing state judicial proceeding; (2)
the state has an important interest in regulating the subject
matter of the claim; and (3) the state proceedings afford an
adequate opportunity to raise constitutional challenges.
Middlesex Cnty., 457 U.S. at 432 (citing
Younger, 401 U.S. at 52-53). Similarly, here: (1)
Stewart has a mandamus action concerning the Modification
suit pending before the Texas Supreme Court; (2) child
custody and child support are important state interests; and
(3) the mandamus action affords an adequate opportunity to
raise her claims. Cf. Id. Therefore, the
Younger doctrine applies and the Court will not
provide Plaintiff declaratory or injunctive relief. The Court
overrules this objection.
Plaintiff objects to dismissal based on (1) Eleventh
Amendment immunity; (2) qualified immunity; and (3) absolute
judicial immunity for Judge Nevarez. Qualified immunity is an
affirmative defense and the burden is shifted to Plaintiff to
plead facts to overcome it with a well-pleaded complaint.
Hanks v. Rogers, 853 F.3d 738, 744 (5th Cir. 2017).
Courts engage in a two-step analysis to determine if an
official can claims qualified immunity. Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985). First, there must be
a violation of statutory or constitutional rights, and
second, the court must determine whether “the
defendant's actions violated clearly established
statutory or constitutional rights of which a reasonable
person would have known.” Griggs v. Brewer,
841 F.3d 308, 312 (5th Cir. 2016).
Nevarez and Paxton assert qualified immunity and argue
Plaintiff has not met her burden to overcome this affirmative
defense. The Court agrees that Plaintiff has not asserted
facts that show actions by the defendant that violated
clearly established statutory or constitutional rights.
Plaintiff points to generalized accusations that Defendant
Nevarez denied her access to the courts and denied her
liberties, but she does not name precedents or procedures
that were violated. Compl. 4, 7, ECF No. 1. Plaintiff cites
Texas Family Code § 156.401 to claim that Defendant
Paxton violated the law by enforcing a child support order
based on a child support modification for which there was no
trial notice or record of testimony. Pl.'s Resp. To
Paxton Mot. Dismiss 5, ECF No. 28. But this section does not
apply to Stewart's argument, and indeed, the words
“notice, ” “trial, ” and
“record” do not even appear in the statute.
See Tex. Fam. Code Ann. §156.401. There is
nothing in the statute to suggest that enforcement by Paxton
or the Child Support Division of an improperly entered child
support order is a clear violation of the law. Even under the
relaxed standard for pro se plaintiffs, Estelle
v. Gamble, 429 U.S. 97, 106 (1976), such assertions are
not sufficient to rebut an affirmative defense of qualified
immunity. The Court overrules this objection.
Plaintiff objects to dismissal of her claims against Judge
Nevarez based on absolute judicial immunity. But she merely
reiterates conclusory statements that the Court has found
insufficient to overcome an assertion of qualified immunity.
Therefore, Plaintiff has not shown that Defendant Nevarez
acted beyond the scope of his jurisdiction, or acted in a way
that would forfeit absolute judicial immunity. Courts are to
construe jurisdiction broadly for purposes of judicial
immunity. Adams v. McIlhany, 764 F.2d 294, 299 (5th
Cir. 1985) (citing Stump, 435 U.S. at 356-57).
Plaintiff's allegations concerning Defendant Nevarez-that
he ignored requests for a protective order, did not sign
orders, left information out of orders, closed a case
improperly, and did not allow her to present evidence-all
fall under the category of judicial acts taken within