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Walker v. State

United States District Court, N.D. Texas, Wichita Falls Division

March 7, 2018

BYRON EARL WALKER, Plaintiff,
v.
THE STATE OF TEXAS, et al., Defendants.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          HAL R RAY, JR., UNITED STATES MAGISTRATE JUDGE

         Before 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.

         After 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.

         The 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.

         BACKGROUND

         Plaintiff 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 No. 22.

         The 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.

         Walker 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.

         Walker 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.

         In 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. Id.

         Judge 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.

         Walker 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.

         Walker 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.

         Walker 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. at 10.

         The 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.

         Stephens 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.

         LEGAL STANDARD

         Rule 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).

         There 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 omitted)).

         A 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)).

         ANALYSIS

         Walker 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 pleadings.

         Title 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 ...


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