United States District Court, N.D. Texas, Wichita Falls Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
RAY, JR., UNITED STATES MAGISTRATE JUDGE
the Court are Defendants the State of Texas, the 90th
Judicial District Court, Judge Stephen E. Bristow, and
Special District Judge Jerry Ray's Motion to Dismiss
Plaintiff's First Amended Petition (ECF No. 24), filed
January 22, 2018; Plaintiff Byron Earl Walker's Response
To Attorney General's Motion To Dismiss Filed 1/22/18
(ECF No. 29), filed January 31, 2018; Defendant Kerwin
Stephens's Motion to Dismiss for Failure to State a Claim
Pursuant to Rule 12(b)(6) (ECF No. 27) with Brief (ECF No.
28) and Appendix in Support (ECF No. 27-1), filed January 25,
2018; and Plaintiff Byron Earl Walker's Reply to Kerwin
Stephens Motion to Dismiss (ECF No. 30), filed January 31,
2018. United States District Judge Reed O'Connor referred
this case to the undersigned for pretrial management by Order
entered on December 18, 2017. ECF No. 2.
considering the pleadings and applicable law, the undersigned
RECOMMENDS that Judge O'Connor
GRANT Defendants the State of Texas, the
90th Judicial District Court Judge Stephen E. Bristow, and
Special District Judge Jerry Ray's Motion to Dismiss (ECF
No. 24), and DISMISS this action
with prejudice as to these Defendants. For
the reasons stated below, these Defendants' request for
sanctions is DENIED.
undersigned further RECOMMENDS that Judge
O'Connor GRANT Defendant Stephens's
Motion to Dismiss for Failure to State a Claim Pursuant to
Rule 12(b)(6) (ECF No. 27) and DISMISS this
action without prejudice as to him. If
Plaintiff files an amended complaint within the fourteen days
allotted for objections to this recommendation, however,
Defendant Stephens's Motion to Dismiss should be
DENIED as moot, and the action should be
allowed to proceed against Stephens on the amended complaint.
Plaintiff is permitted to file an amended complaint on or
before March 21, 2018.
Byron Earl Walker (“Walker”), pro se,
sued Defendants the State of Texas; the 90th Judicial
District Court; Young County, Texas; Judge Stephen Bristow
(“Judge Bristow”); Judge Jerry Ray (“Judge
Ray”); and Kerwin Stephens (“Stephens”) for
violations of the United States Constitution and the Texas
Constitution. ECF No. 7. On January 16, 2018, Walker
voluntarily dismissed Young County, Texas, from the case. ECF
following alleged facts are taken from Walker's
complaint. This case originates in a contentious divorce
proceeding between Walker and his former spouse, Sherri, in
the 90th Judicial District Court of Young and Stephens
County, Texas (“the divorce case”). ECF No. 7 at
3. For the first ten months of the divorce case, Judge
Stephen Crawford was the presiding judge. Id. at 3.
Walker alleges that Stephens, Sherri's attorney, hired an
attorney named Michelle Delotto to blackmail or coerce Judge
Crawford to resign because of an alleged affair. Id.
at 3-4. Walker alleges that this scheme allowed Stephens to
control the court because Stephens somehow selected Judge
Crawford's replacement, Judge Bristow, and caused Judge
Bristow to be seated on the bench. Id. at 4. Walker
seems to allege that Judge Bristow made rulings or took
actions in Stephens's favor and against Walker in the
divorce case, because Judge Bristow owed Stephens for
obtaining his position as judge. Id.
alleges a number of problems that arose throughout the
divorce case. His lawyer did not show up at the hearing to
enter the divorce judgment, leaving Walker without
representation. Id. At that hearing, Judge Bristow
ignored an affidavit presented by Walker's son saying
that Walker's ex-wife lied about the marital estate
owning cattle at the time of the divorce case. Id.
at 5. Judge Bristow refused to recuse himself, even though
Judge Monte Lewis, who heard a motion to recuse filed by
Walker and Walker's father, allegedly told Walker
“that we had done a super job and that we wouldn't
have to worry about Judge Bristow any more.”
Id. at 5. Walker asserts that his ex-wife refused to
sign the marital farm over to her children after the divorce.
Id. at 6.
retained a lawyer to sue his divorce attorney for negligence
in 2015 because of numerous mistakes during Walker's
divorce case. Id. Judge Ray heard the negligence
case and granted summary judgment to Walker's former
attorney, which Walker alleges was a violation of his
constitutional right to a trial by jury. Id. at 7.
March 2015, Walker allegedly sent text messages that said
either that the land would be sold after we were all dead or
gone or that “we would all be dead and gone because of
the stupidity of [his ex-wife's] lawyer[,
Stephens].” Id. at 6. Walker was arrested on
retaliation and obstruction charges on December 16, 2015.
Id. at 7. Walker connects his arrest to a letter
that he wrote to every attorney in Young and Stephens
Counties asking them to force Judge Bristow to authorize the
release of an alleged FBI report of an investigation into
Bristow and Stephen's actions. Id. Walker was
held on a $250, 000 bond, first in Tarrant County and then by
transfer in Graham, Texas. Id. His father arranged
to have him bonded out. Id. Walker alleges that he
did not have counsel appointed, and he informed the Young
County Bond Supervisor at least three times of this issue.
Ray was also the presiding judge in Walker's criminal
case. Id. at 8. Walker attempted to hire an
attorney, who was a friend of his appellate lawyer, to
present his side at the Grand Jury proceeding in his criminal
case. Id. at 7. However, Walker could not afford
that attorney, and he requested appointed counsel.
Id. The court denied Walker appointed counsel.
Id. Walker did not have counsel either before the
Grand Jury or at his January 2017 preliminary hearing.
Id. at 8. In late January, the court
appointed an attorney for Walker. Id.
alleges that his appointed attorney refused to investigate
the corrupt conduct of Judge Ray and Judge Bristow.
Id. His appointed attorney would not return calls
from Walker's sons or PTSD counselors. Id.
Walker was given four years deferred adjudication for
obstruction and retaliation, as well as sixty days to be
served on weekends and a fine of $1, 000. Id. Walker
refused to pay $1, 000 to the court, as he believed it was
corrupt, and instead wrote a $2, 000 check to a veterans'
counseling center. Id.
additionally alleges that, in June 2017, Judge Ray and
Stephens threatened Walker with jail time if he did not lift
the lis pendens on land that Walker had promised to his sons.
Id. Walker was told by his court-appointed attorney
that “it would be bad for my criminal case if I
didn't agree to sell the land.” Id. Walker
alleges that he was released, after forty-four days of
confinement, from the remainder of his jail sentence because
he told his court-appointed attorney that he was considering
filing a federal lawsuit. Id. Instead of additional
confinement, he was allowed to volunteer at Brooke Army
Medical Center. Id.
originally filed his Complaint on December 18, 2017. ECF No.
1. He filed an Amended Complaint on January 5, 2018, within
the twenty-one days for amending as a matter of course under
Federal Rule of Civil Procedure 15(a)(1). ECF No. 7. Walker
asks for $250, 000 from each party named in his suit.
Id. at 9. He also asks that the rulings of the
judges and the 90th District Court at issue in the instant
case be reversed and remanded. Id. Walker
additionally requests that the Court rule unconstitutional
the State of Texas's differentiation between extrinsic
and intrinsic fraud in litigation. Id. at 9-10. He
requests that the Court order that any damages awarded be
divided between Walker and his three children. Id.
State of Texas, the 90th Judicial District Court, Judge
Bristow, and Judge Ray (collectively, “the State
Defendants”) filed a Motion to Dismiss Walker's
Complaint on January 22, 2018. ECF No. 24. The State
Defendants argue that Walker's Complaint should be
dismissed on the grounds of judicial immunity, Eleventh
Amendment immunity, qualified immunity, lack of standing, bar
by Texas Civil Practice and Remedies Code 101.106(f), statute
of limitations, lack of particularized facts stated against
each defendant, and violation of Federal Rule of Civil
Procedure 11(b)(2). Id. They request that the Court
sanction Walker and order him to pay their attorney's
fees in the amount of $2000. Id. at 40. Walker filed
a Response to the State Defendants' Motion to Dismiss on
January 31, 2018. ECF No. 29. The State Defendants did not
file a reply to Walker's response.
filed a Motion to Dismiss on January 25, 2018. ECF No. 27. He
argues that Walker's Complaint should be dismissed on the
grounds of res judicata, statute of limitations, release, and
qualified immunity. Id. Stephens attached to his
Motion to Dismiss, inter alia, certified state court
records from the divorce case and Walker's order of
deferred adjudication from his 2017 conviction in his
criminal case. ECF No. 27-1. Walker filed a Response to
Stephens's Motion to Dismiss on January 31, 2018. ECF No.
30. Stephens did not file a reply to Walker's response.
12(b)(6) of the Federal Rules of Civil Procedure permits a
party to move for dismissal of a complaint for failure to
state a claim upon which relief can be granted. The Rules
require that each complaint contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief . . . .” Fed.R.Civ.P. 8(a). A complaint must
include sufficient factual allegations “to raise a
right to relief above the speculative level.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In
considering a Rule 12(b)(6) motion, courts “take all
well-pleaded facts as true, viewing them in the light most
favorable to the plaintiff . . . and ask whether the
pleadings contain ‘enough facts to state a claim to
relief that is plausible on its face.'”
Yumilicious Franchise, L.L.C. v. Barrie, 819 F.3d
170, 174 (5th Cir. 2016) (citing Twombly, 550 U.S.
at 547). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Id. (citing Twombly, 550 U.S. at 555). A
court ruling on a Rule 12(b)(6) motion may rely on the
complaint, documents properly attached to the complaint or
incorporated into the complaint by reference, and matters of
which a court may take judicial notice. Randall D.
Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th
Cir. 2011). “The court may judicially notice a fact
that is not subject to reasonable dispute because it: (1) is
generally known within the trial court's territorial
jurisdiction; or (2) can be accurately and readily determined
from sources whose accuracy cannot reasonably be
questioned.” Fed.R.Evid. 201(b).
exists a “well-established policy that the plaintiff be
given every opportunity to state a claim.” Ramming
v. United States, 281 F.3d 158, 161 (5th Cir. 2001)
(citing Hitt v. City of Pasadena, 561 F.2d 606, 608
(5th Cir. 1977)). It is federal policy to decide cases on the
merits rather than technicalities, and thus when possible the
Fifth Circuit has recommended that suits be dismissed without
prejudice on Rule 12 motions. Great Plains Tr. Co.,
313 F.3d at 329; Hines v. Wainwright, 539 F.2d 433,
434 (5th Cir. 1976) (vacating and remanding a Rule 12(c)
dismissal with instructions to the district court to dismiss
without, instead of with, prejudice). As a result, courts
generally allow plaintiffs at least one opportunity to amend
following a Rule 12 dismissal on the pleadings. Great
Plains Tr. Co., 313 F.3d at 329; see In re Online
Travel Co. (OTC) Hotel Booking Antitrust Litig., 997
F.Supp.2d 526, 548-49 (N.D. Tex. 2014) (Boyle, J.)
(dismissing for failure to state a claim without prejudice,
as dismissing with prejudice would be “too harsh a
sanction”); Parker v. Allstate Ins. Co., No.
3:16-CV-00892-CWR-FKB, 2017 WL 4287912, at *1 (S.D.Miss.
Sept. 27, 2017) (“It is well-established that
plaintiffs who fail to meet their burden on a motion for
judgment on the pleadings and yet may still have a viable
avenue to recover should be granted leave to amend their
complaint and make their best case.” (citation
pro se plaintiff's pleadings are liberally
construed. Estelle v. Gamble, 429 U.S. 97, 106
(1976). A “pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Id.
However, if the court determines that plaintiff has pleaded
his or her best case, a district court does not err in
dismissing a pro se complaint with prejudice.
Jones v. Greninger, 188 F.3d 322, 326-27 (5th Cir.
1999) (citing Jacquez v. Procunier, 801 F.2d 789,
792 (5th Cir. 1986); Bazrowx v. Scott, 136 F.3d
1053, 1054 (5th Cir. 1998)).
does not clearly or separately state his claims, but, using
the liberal pleading standard applied to pro se
complaints, the undersigned has identified a number of
potential federal claims in his complaint. Walker asserts
claims under 18 U.S.C. § 241 and 42 U.S.C. § 1983
for violations of the United States Constitution.
Specifically, he asserts constitutional claims for corruption
in the divorce case against Stephens, Judge Bristow, and the
90th Judicial District Court; a violation of his right to a
trial by jury in his 2015 negligence case against Judge Ray;
and a violation of his right to representation by counsel at
a criminal proceeding against Judge Ray in the criminal case.
Walker additionally challenges the constitutionality of the
State of Texas's differentiation between extrinsic and
intrinsic fraud. He also states that his claims involve
violations of the Texas Constitution (ECF No. 7 at 2), but
his complaint mentions no specific provisions of the Texas
Constitution, and the undersigned is unable to identify any
factual allegations asserting such violations in his
42 U.S.C. § 1983 provides a cause of action against
“[e]very person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws . . . .” Walker's complaint,
broadly construed, asserts claims under § 1983 for
deprivations of his Fifth and Fourteenth Amendment rights to
due process against Judge Bristow and Stephens in the divorce