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Morrow v. State

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

March 25, 2018

TANYA MORROW
v.
STATE OF TEXAS, ET AL.

          Judge, Nowak

          MEMORANDUM ADOPTING IN PART REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE

         Came on for consideration the report of the United States Magistrate Judge in this action, this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636. On October 10, 2017, the report of the Magistrate Judge (Dkt. #61) was entered containing proposed findings of fact and recommendations that Defendants Bruce McFarling's and Jonathan Bailey's Motion to Dismiss (Dkt. #39) be granted in part and denied in part, Defendant David D. Garcia's Second Motion to Dismiss be denied as moot (Dkt. #41), and Defendant Denton County's Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim (Dkt. #40), and Defendants Andrew J. Passons, Lewis and Passons, PC, and John R. Morrow, Jr.'s Motion to Dismiss for Plaintiff's Failure to State Claim and/or Motion to Abstain (Dkt. #44) each be granted. Having received the report and recommendation of the Magistrate Judge, having considered Plaintiff Tanya Morrow's (“Morrow”) timely filed objections (Dkt. #66), the State of Texas and Judges Bruce McFarling and Johnathan Bailey's Response to Plaintiff's Objections to Magistrate's Report and Recommendation (Dkt. #67), and having conducted a de novo review, the Court is of the opinion that the Magistrate Judge's report (Dkt. #61) should be adopted in part as detailed herein. Additionally, the Court finds that Plaintiff's “Verified Motion for Appointment of Counsel for Minor Plaintiffs” (Dkt. #47) should be denied.

         BACKGROUND

         The underlying facts are set out in further detail by the Magistrate Judge and need not be repeated here in their entirety. Accordingly, the Court sets forth only those facts pertinent to the filed objections.

         Plaintiff Tanya Morrow and Defendant John R. Morrow, Jr., divorced “with an easily and quickly Agreed Order approved by Defendants [Judge Bruce] McFarling and [Attorney Andrew] Passons as to primary child custody permanently with [Plaintiff]” (Dkt. #24 at p. 17). Plaintiff avers that the divorce and custody issues were “easily and quickly” resolved because “Defendant John [Morrow] was never allowed to ever have any primary custody of minor children under Texas laws” (Dkt. #24 at p. 17) (emphasis in original). In June 2016, Plaintiff's ex-husband, John Morrow, Jr., allegedly orchestrated Plaintiff's arrest for a traffic violation, and pursued a “$100, 000 bond for a mere traffic violation … to keep [Plaintiff] falsely incarcerated for at least a short period of time without any reasonable possibility to even post bond” (Dkt. #24 at p. 17) (emphasis in original). Judge David Garcia presided over Plaintiff's criminal proceedings. Simultaneous with Plaintiff's arrest, Attorney Passons and Judge McFarling enacted “a clearly fraudulent, wholly trumped-up ‘order, '” wherein “total primary child custody [was given] to John Morrow, Jr” (Dkt. #24 at pp. 17, 18) (emphasis in original). Attorney Passons, Judge McFarling, and Judge Johnathan Bailey, who “replac[ed] [Judge] McFarling later in the state court [custody] case, ” then “illegally conspired to further their criminal acts with then manifest ‘gag' orders against First Amendment rights, to attempt criminal cover-up” (Dkt. #24 at p. 18).

         Thereafter, Plaintiff Tanya Morrow filed this suit against Judges McFarling, Bailey, and Garcia for their alleged violations of Plaintiff's federal and state constitutional rights (Dkt. #1 at p. 3). On November 16, 2015, Judges McFarling and Bailey filed their initial Motion to Dismiss, asserting that judicial immunity, qualified immunity, and the Eleventh Amendment barred Plaintiff's claims against them (Dkt. #8 at pp. 4-7). On November 24, 2015, Judge Garcia filed a Motion to Dismiss, also asserting that judicial immunity, qualified immunity, and official immunity bar Plaintiff's claims against him (Dkt. #11 at p. 3).

         On March 23, 2017, the Court denied the pending motions to dismiss as moot, and ordered Plaintiff to file an Amended Complaint on or before April 24, 2017 (Dkt. #20). After the Court granted Plaintiff an extension (Dkt. #22), Plaintiff filed her Amended Complaint[1] on May 24, 2017 (Dkt. #24). In her Amended Complaint, Plaintiff purportedly adds five defendants: (1) Denton County; (2) the State of Texas; (3) Attorney Passons; (4) Lewis and Passons, P.C.; and (5) John R. Morrow, Jr. (Dkt. #24). Plaintiff alleges that her “fundamental rights to the constitutionally-guaranteed retention of [her] natural child custody rights (and of all attendant rights thereto), were defrauded knowingly, willfully, and intentionally by the legal professionals criminally conspiring within the instant state court case complained of, to-wit: the state court judges (Defendants McFarling and Bailey), and Defendants Passons and Lewis & Passons as the family law attorney and firm familiar to and within Defendant Denton County, all of them acting fraudulently against law and the federal Constitution, as sanctioned by Defendant State of Texas” (Dkt. #24 at pp. 18- 19). Plaintiff alleges that Denton County “routinely and regularly provided and does currently provide various material, equipment, facility, supplies, financial and other material participation types of support to the individually named Defendants” (Dkt. #24 at p. 14). Plaintiff further alleges that Defendant Morrow coordinated her fraudulent arrest and detention, and subsequently enabled the state court's deprivation of Plaintiff's custodial rights (Dkt. #24 at p. 17). Plaintiff claims these actions violated her First, Fourth, Fifth, and Fourteenth Amendment rights under the U.S. Constitution, and her rights under the Texas Constitution (Dkt. #24 at pp. 19-20). Notably, in addition to filing her Amended Complaint on May 24, 2017, Plaintiff also voluntarily dismissed Judge Garcia from this case (Dkt. #29).

         On June 15, 2017, Judges Bailey and McFarling filed their Motion to Dismiss Amended Complaint on the Basis of Judicial, Qualified, Eleventh Amendment and Sovereign Immunity (Dkt. #39), Judge Garcia filed his (Second) Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim (Dkt. #41), and Denton County filed its Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim (Dkt. #40). On June 17, 2017, Andrew J. Passons, Lewis and Passons, PC, and John R. Morrow, Jr., filed their Motion to Dismiss for Plaintiff's Failure to State Claim and/or Motion to Abstain (Dkt. #44). On July 11, 2017, the Court ordered Plaintiff to respond to the Motions to Dismiss by July 25, 2017 (Dkt. #56). Plaintiff failed to do so.

         On October 10, 2017, the Magistrate Judge entered a report and recommendation (Dkt. #61), recommending: (1) that Defendants Bruce McFarling's and Jonathan Bailey's Motion to Dismiss be granted in part and denied in part; (2) Defendant David D. Garcia's Second Motion to Dismiss be denied as moot; (3) Defendant Denton County's Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim be granted; and (4) Defendants Andrew J. Passons, Lewis and Passons, PC, and John R. Morrow, Jr.'s Motion to Dismiss for Plaintiff's Failure to State Claim and/or Motion to Abstain be granted.

         On October 27, 2017, Plaintiff requested an extension of time to file her objections (Dkt. #62); the Court granted Plaintiff an extension and ordered her objections to be filed by November 13, 2017 (Dkt. #63). Plaintiff filed objections to the report on November 13, 2017 (Dkt. #66). The State of Texas and Judges Bailey and McFarling responded to Plaintiff's objections on November 16, 2017 (Dkt. #67).

         OBJECTIONS

         A party who files timely written objections to a magistrate judge's report and recommendation is entitled to a de novo review of those findings or recommendations to which the party specifically objects. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(2)-(3).

         In her objections, Plaintiff argues that the Magistrate Judge's findings are flawed because: (1) the Report and Recommendation fails to address any of the claims asserted by her two minor children, “JRM III and “JMLM” (Dkt. #66 at p. 3); (2) the Report and Recommendation does not address the State of Texas as a defendant in this case (Dkt. #66 at p. 3); (3) Eleventh Amendment immunity is inapplicable in this case because “42 USC § 2000d-7(a)(1) expressly waives and abrogates all defensive claims under Eleventh Amendment immunity theories herein” (Dkt. #66 at pp. 4-5) (emphasis in original); (4) sovereign and judicial immunity are unavailable in this case because Judges Bailey and McFarling engaged in criminal behavior (Dkt. #66 at pp. 6- 7); (5) Attorney Passons “is, by the express law of Texas, an officer of the courts” and therefore, he and his law firm, Lewis & Passons, are state actors under § 1983 (Dkt. #66 at p. 8); and (6) dismissal under Rule 41 is inappropriate because Plaintiff paid the filing fee and has updated the Court with her most current address (Dkt. #66 at p. 1).

         1. Claims Asserted on Behalf of Minor Children

         Plaintiff objects that the Magistrate Judge has neglected to address the claims Plaintiff asserted on behalf of her minor children, JRM III and JMLM (Dkt. #66 at p. 3). The Report and Recommendation does not address ...


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