United States District Court, S.D. Texas, Houston Division
RYAN EDWARD SMITH, SR., R.E.S., BY NEXT FRIEND, D.A.S., BY NEXT FRIEND, D.D.S., BY NEXT FRIEND, Plaintiffs,
TEXAS DEPARTMENT OF CHILD PROTECTIVE SERVICES, et al., Defendants.
MEMORANDUM AND RECOMMENDATION
K. JOHNSON UNITED STATES MAGISTRATE JUDGE
before the court are the following motions: Defendant Trung
Tran's Motions to Dismiss (Docs. 4, 15, 50); Defendant
Chad Bradshaw's Motions to Dismiss (Docs. 5, 16, 51);
Defendants Annette Denton, Brandice Haller, Leigh Mizell,
Stephanie Sammons, and Texas Department of Family and
Protective Service's Motions to Dismiss (Docs. 18, 52);
Plaintiff's Motion for Default Judgments against Freeport
Police Department, Captain Raymond Garivey, Kristy Mercado,
Ernesto Rodriguez, Detective Jones, Officer Panigua,
Detective Sergeant Juanita Cardoza and Bill Helfand (Doc.
53); Defendant Brian Hrach's Motion to Dismiss (Doc. 67);
Defendants Kelly Gabler and Joseph Weinpel's Motion to
Dismiss (Doc. 69); Defendants Chad Bradshaw, Trung Tran and
Brian Hrach's Motion for Sanctions (Doc. 73); Defendant
Venette Westoven's Motion to Dismiss (Doc. 75); and
Defendants Macy Hubbard and Timothy Hubbard's Motion to
Dismiss (Doc. 82).
court has reviewed the motions, the responses and the live
pleading. For the reasons explained below, it is
RECOMMENDED that the motions to dismiss be
GRANTED, that Plaintiff's motion for
default judgments be DENIED, and that
Defendants Bradshaw, Tran and Hrach's motion for
sanctions be DENIED.
Factual Background 
December 2012, Plaintiff was charged with sexual abuse of his
minor nephew, Jesse Nava. After Nava testified that Plaintiff
never molested him, Plaintiff was acquitted. Defendant
Assistant District Attorney Brian Hrach (“ADA
Hrach”) prosecuted that charge on behalf of the State
has three children. The oldest, R.E.S., suffers from medical
issues that have required hospitalizations. These medical
issues prompted allegations of neglect by the Texas
Department of Family and Protective Services
(“TDFPS”) in 2014. It appears that at some
unidentified time in the past, R.E.S. was removed from the
custody of Plaintiff and his wife and was placed with foster
parents, Timothy and Macy Hubbard. The Hubbards and the
placement of this child do not appear to be related to the
following events that concern the removal of the two younger
children from Plaintiff's custody.
April 6, 2017, Leigh Mizell (“Mizell”), a
caseworker for TDFPS, obtained a court order of protection
from Judge Chad Bradshaw requiring the removal of
Plaintiff's two younger children from Plaintiff's
custody. Later that day, at approximately 4:30
p.m., Defendant Annette Denton (“Denton”),
another caseworker for TDFPS, and Mizell attempted to serve
Plaintiff with the court order of removal. The children
were not at home with Plaintiff at the time, and Plaintiff
refused to disclose the location of the children to Mizell
and Denton. The TDFPS employees called police
officers for assistance, and Plaintiff alleges that the
officers came to his door every thirty minutes throughout the
night demanding possession of the children. The two boys
were eventually found in the custody of Plaintiff's
mother and were placed in the care of foster parents,
Defendants Kelly Gabler and Joseph Weinpel. Plaintiff
complains that the children were kidnapped by employees of
TDFPS, who lied about having a court order authorizing them
to take the children.
April 20, 2017, a post-removal adversary hearing was held
before Judge Randal Hufstetler, presiding judge of the
300thJudicial District Court of Brazoria County,
to determine whether the emergency order of removal should be
terminated or extended.Defendant Assistant District Attorney
Trung Tran (“ADA Tran”) represented the
post-hearing order dated May 2, 2017, the order of removal
was partially amended. The court ordered that Plaintiff's
wife could have supervised visits with the two younger
children but that Plaintiff be denied any visitation rights
pending the final trial on TDFPS's petition to terminate
Plaintiff's parental rights.
jury trial on the termination of Plaintiff's parental
rights was held on September 17-21, 2018. Defendant
Sammons testified on behalf of TDFPS, and Defendant ADA Tran
represented TDFPS. Plaintiff's wife was represented by
Defendants Shannon Tigner and T.J. Roberts. Plaintiff was
represented by Defendant Ed Rose, Jr. Defendant
Michelle Stover was present as the attorney and guardian ad
litem for the two younger children.Based on the testimony
presented, the jury answered questions that resulted in the
termination of Plaintiff's parental rights for his two
post-trial order dated October 15, 2018, the court appointed
TDFPS as the Permanent Managing Conservator for both younger
children. Plaintiff's wife was made the
possessory conservator for the children. She was
enjoined from disclosing any information concerning the two
children to Plaintiff.
appealed the court's judgment to the Texas Court of
Appeals for the First District on January 29,
2019. On May 10, 2019, the appeal was
dismissed as untimely.
filed this action on September 25, 2018, against TDFPS, and
its employees Sammons, Denton, Brandice Haller
(“Haller”) and Mizell, alleging that they
violated his right to a fair trial and wrongfully removed his
children from his custody without a court
order. Plaintiff speculated that they did this
because “they still believe that I had sexually
molested my nephew . . . .” Plaintiff sought recovery
of his attorney's fees. In a handwritten summons,
Plaintiff purported to address service of process to Denton,
Mizell, Sammons, ADA Tran, and Judge Chad Bradshaw
(“Judge Bradshaw”). On October 24, 2018,
Defendants ADA Tran and Judge Bradshaw filed motions to
October 29, 2018, Plaintiff filed an amended complaint
against TDFPS, its employees, Denton, Mizell, and Sammons,
Judge Bradshaw, Michelle Stover, Shannon Tigner, T.J.
Roberts, Edward Rose Jr., Judge K. Randal Hufstetler, Shane
Kersh, and Tiffany Butler, alleging that they kidnapped his
two younger children. Plaintiff complained that these
individuals violated his civil rights when they coached his
wife to testify against him and when he was wrongfully
accused of molesting his nephew in 2012. In addition
to the recitation of the events surrounding the loss of
custody of his two younger children, Plaintiff also recounted
the circumstances under which he and his wife were wrongfully
accused of medically neglecting of their oldest child in 2014
and lost custody of him.
amended complaint, Plaintiff alleged that Defendants denied
him access to classes, gave false testimony in court, misled
the judge and jury, attempted to break up his marriage, and
failed to disclose Brady material.
service of this complaint, more motions to dismiss were filed
by ADA Tran,  Judge Bradshaw,  and the TDFPS
November 23, 2018, Plaintiff responded to these motions to
dismiss and, on December 3, 2018, filed his
Second Amended Complaint. The Second Amended Complaint
made similar allegations as the prior complaints and added
allegations against the foster parents of all three children,
several police officers who assisted TDFPS in removing the
children from Plaintiff's mother's custody in April
2017, and the court-appointed psychologist, Venette Westoven,
Ph.D (“Dr. Westoven”), among
others. The Second Amended Complaint alleged
that the foster parents and TDFPS workers kidnapped the
children and terminated his parental rights in retaliation
for his complaints of their wrongful conduct in removing the
children from his custody.
to Rule 12(b)(1), dismissal of an action is appropriate
whenever the court lacks subject matter jurisdiction.
Fed.R.Civ.P. 12(b)(1), 12(h)(3). The party asserting
jurisdiction bears the burden of proof to show that
jurisdiction does exist. Gilbert v. Donahoe, 751
F.3d 303, 307 (5th Cir. 2014)(citing Ramming
v. United States, 281 F.3d 158, 161
court may decide a motion to dismiss for lack of jurisdiction
on any of three bases: “(1) the complaint alone; (2)
the complaint supplemented by undisputed facts evidenced in
the record; or (3) the complaint supplemented by undisputed
facts plus the court's resolution of disputed
facts.” Ramming, 281 F.3d at 161 (citing
Barrera-Montenegro v. United States, 74 F.3d 657,
659 (5th Cir. 1996)). The court, in determining
whether it is properly vested with subject matter
jurisdiction, is “free to weigh the evidence and
resolve factual disputes in order to satisfy itself that it
has the power to hear the case.” Krim v.
pcOrder.com, Inc., 402 F.3d 489, 494 (5th
Cir. 2005)(quoting Montez v. Dep't of Navy, 392
F.3d 147, 149 (5th Cir. 2004)).
12(b)(6) allows dismissal of an action whenever the
complaint, on its face, fails to state a claim upon which
relief can be granted. The court should construe the
allegations in the complaint favorably to the pleader and
accept as true all well-pleaded facts. Harold H. Huggins
Realty, Inc. v. FNC, Inc., 634 F.3d 787, 803 n.44
(5th Cir. 2011)(quoting True v. Robles,
571 F.3d 412, 417 (5th Cir. 2009)).
complaint need not contain “detailed factual
allegations” but must include sufficient facts to
indicate the plausibility of the claims asserted, raising the
“right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007); see also Ashcroft v. Iqbal, 556 U.S. 662,
means that the factual content “allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
678. A plaintiff must provide “more than labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action.” Twombly, 550
U.S. at 555. In other words, the factual allegations must
allow for an inference of “more than a sheer
possibility that a defendant has acted unlawfully.”
Iqbal, 556 U.S. 678.
are numerous motions to dismiss pending before the court
urging multiple grounds for dismissal of this action. All
defendants urge dismissal under the Rooker-Feldman
doctrine. The TDFPS Defendants also argue that they are
protected by Eleventh Amendment immunity, sovereign immunity
and qualified immunity. Defendants ADA Tran, ADA Hrach, Judge
Bradshaw and Dr. Westoven argue their entitlement to absolute
immunity as an alternative ground for dismissal. Finally, the
foster parents argue that Plaintiff has failed to state a
claim against them under federal law.
federal district court does not have jurisdiction to
entertain collateral attacks on final judgments of a state
court. See District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462, 482 (1983); Rooker v. Fid.
Trust Co., 263 U.S. 413, 415 (1923); Liedtke v.
State Bar of Tex., 18 F.3d 315, 317, (5th
Cir.), cert. denied, 513 U.S. 906 (1994). State
courts provide the forum for challenging the correctness of
the judgment or the constitutionality of the proceedings.
Liedtke, 18 F.3d at 317.
constitutional claims, if they are “inextricably
intertwined” with the state court's decision, fall
outside the federal district court's jurisdiction.
Feldman, 460 U.S. at 482 n.16; Musselwhite v.
State Bar of Tex., 32 F.3d 942, 946 (5th Cir.
1994), cert. denied, 515 U.S. 1103 (1995); Reed
v. Terrell, 759 F.2d 472, 473-74 (5th Cir.),
cert. denied, 474 U.S. 946 (1985). A litigant may
not obtain review of a state court action by filing a
complaint in a federal court cast in the form of a civil
rights action. Liedtke, 18 F.3d at 318.
appeal of the state court judgment is now final and triggers
application of the Rooker-Feldman doctrine. A review
of Plaintiff's Second Amended Complaint and his requests
for relief reveal that the suit is “inextricably
intertwined” with the state court's unfavorable
order terminating his parental rights as he seeks recovery
for “loss of compensation and benefits, mental and
emotional distress, humiliation, loss of reputation, loss of
enjoyment of life and other pecuniary and non-pecuniary
losses, pain and suffering, pain and agony [and] emotional
pain” as a result of the termination of his parental
rights. Plaintiff also seeks to enjoin all
defendants from “ultra vires” acts.
framing the complaint in terms of a civil rights violation
does not vest this court with the jurisdictional authority to
entertain the action. Liedtke, 18 F.3d at 318.
Plaintiff filed this suit after an unfavorable jury verdict
was entered and argues that because he filed this lawsuit
before the state court judgment was final, he can evade the
Rooker-Feldman doctrine after his state court
judgment has become final. The court disagrees in light of
the extant dismissal of Plaintiff's appeal; Plaintiff is
the classic state court loser attempting to undo the effects
of an unfavorable final judgment. As there is a now a final
state court judgment, the court must give preclusive effect
to it. See 28 U.S.C. § 1738.
appears that the entirety of this action relates to a claim
of damages arising out of the loss of a state court action,
it must be DISMISSED for want of subject
Eleventh Amendment Immunity/State Sovereign
alternative ground for dismissal, the TDFPS
Defendantsargue that they are entitled to sovereign
immunity and Eleventh Amendment immunity. State sovereign
immunity pursuant to the Eleventh Amendment
“operates like a jurisdictional bar, depriving federal
courts of the power to adjudicate suits against a
state.” Union Pac. R.R. Co. v. La. Pub. Serv.
Comm'n, 662 F.3d 336, 340 (5thCir.
2011)(citing cases). However, Eleventh Amendment immunity is
waivable, and, thus, “enacts a sovereign immunity from
suit, rather than a nonwaivable limit on [federal]
subject-matter jurisdiction.” Id. (quoting
Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S.
261, 267 (1997)).
sovereign immunity bars suits for money damages brought in
federal court against a state by private citizens unless the
state specifically waives its immunity through unequivocal
consent to suit or Congress, in enacting a particular
statute, “clearly and validly abrogated the state's
sovereign immunity.” U.S. Oil Recovery Site
Potentially Responsible Parties Grp. v. R.R. Comm'n of
Tex. [hereinafter, U.S. Oil Recovery Site
PRPG], 898 F.3d 497, 501 (5th Cir.
2018)(quoting Perez v. Region 20 Educ. Serv. Ctr.,
307 F.3d 318, 326 (5th Cir. 2002)); see also
Will v. Mich. Dep't of State Police, 491 U.S. 58, 66
(1989). “State sovereign immunity protects not only
states from suit in federal court, but also ‘arms of
the state.'” U.S. Oil Recovery Site PRPG,
898 F.3d at 501 (citing Richardson v. S. Univ., 118
F.3d 450, 452-54 (5th Cir. 1997)). The
determination whether the TDFPS is entitled to sovereign
immunity is a question of law for the court to answer.
See U.S. v. Tex. Tech Univ., 171 F.3d 279, 288
(5th Cir. 1999).
TDFPS Defendants, a state agency and its employees sued in
their official capacities, are entitled to claim sovereign
immunity and Eleventh Amendment immunity related to
Plaintiff's claims for civil damages. Those claims
must be dismissed for want of jurisdiction.
extent that Plaintiff intended to sue the individual TDFPS
employees in their individual capacities for constitutional
violations pursuant to 42 U.S.C. § 1983, each TDFPS
employee has claimed qualified immunity for her actions.
immunity protects governmental employees performing
discretionary duties from the imposition of damages if their
actions could reasonably be thought to be “consistent
with the rights they are alleged to have violated.”
See Anderson v. Creighton, 483 U.S. 635, 639 (1987).
In determining whether a defendant is entitled to claim
qualified immunity for her actions, the court may consider
whether the facts show that any individual defendant's
conduct violated a constitutional right or whether the law
clearly established that the official's conduct was
unlawful. See Pearson v. Callahan, 555 U.S. 223,
243-44 (2009); Aucoin v. Haney, 306 F.3d 268, 272
(5th Cir. 2002). If Plaintiff can establish the
violation of a constitutional right, the court must determine
if the right was clearly established at the time of the
incident. Id. If the law was clearly established at
the time, the court must then consider whether the
defendant's conduct was objectively reasonable.
Aucoin, 306 F.3d at 171.
reference to the individual TDFPS employees, Plaintiff
generally alleges in his Second Amended Complaint that they
violated his and his children's Fourth and Fourteenth
Amendment rights by withholding Brady
material and by suppressing the “emergency
removal sheet” and replacing it with the court order of
removal. Plaintiff also alleges that the
individual defendants submitted “implicit and explicit
false and fraudulent ...