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Smith v. Texas Department of Child Protective Services

United States District Court, S.D. Texas, Houston Division

July 11, 2019




         Pending 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).

         The 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.

         I. Case Background

         A. Factual Background [1]

         In December 2012, Plaintiff was charged with sexual abuse of his minor nephew, Jesse Nava.[2] After Nava testified that Plaintiff never molested him, Plaintiff was acquitted.[3] Defendant Assistant District Attorney Brian Hrach (“ADA Hrach”) prosecuted that charge on behalf of the State of Texas.[4]

         Plaintiff has three children. The oldest, R.E.S., suffers from medical issues that have required hospitalizations.[5] These medical issues prompted allegations of neglect by the Texas Department of Family and Protective Services (“TDFPS”) in 2014.[6] 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.[7] 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.[8]

         On 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.[9] 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.[10] 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.[11] 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.[12] 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.[13] Plaintiff complains that the children were kidnapped by employees of TDFPS, who lied about having a court order authorizing them to take the children.[14]

         On 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.[15]Defendant Assistant District Attorney Trung Tran (“ADA Tran”) represented the TDFPS.[16]

         In a 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.[17]

         The jury trial on the termination of Plaintiff's parental rights was held on September 17-21, 2018.[18] Defendant Sammons testified on behalf of TDFPS, and Defendant ADA Tran represented TDFPS.[19] Plaintiff's wife was represented by Defendants Shannon Tigner and T.J. Roberts.[20] Plaintiff was represented by Defendant Ed Rose, Jr.[21] Defendant Michelle Stover was present as the attorney and guardian ad litem for the two younger children.[22]Based on the testimony presented, the jury answered questions that resulted in the termination of Plaintiff's parental rights for his two younger boys.[23]

         In a post-trial order dated October 15, 2018, the court appointed TDFPS as the Permanent Managing Conservator for both younger children.[24] Plaintiff's wife was made the possessory conservator for the children.[25] She was enjoined from disclosing any information concerning the two children to Plaintiff.[26]

         Plaintiff appealed the court's judgment to the Texas Court of Appeals for the First District on January 29, 2019.[27] On May 10, 2019, the appeal was dismissed as untimely.[28]

         B. Procedural Background

         Plaintiff 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.[29] Plaintiff speculated that they did this because “they still believe that I had sexually molested my nephew . . . .”[30] Plaintiff sought recovery of his attorney's fees.[31] In a handwritten summons, Plaintiff purported to address service of process to Denton, Mizell, Sammons, ADA Tran, and Judge Chad Bradshaw (“Judge Bradshaw”).[32] On October 24, 2018, Defendants ADA Tran and Judge Bradshaw filed motions to dismiss.[33]

         On 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.[34] 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.[35] 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.[36]

         In the 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.[37]

         After service of this complaint, more motions to dismiss were filed by ADA Tran, [38] Judge Bradshaw, [39] and the TDFPS Defendants.[40]

         On November 23, 2018, Plaintiff responded to these motions to dismiss[41] and, on December 3, 2018, filed his Second Amended Complaint.[42] 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.[43] 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.[44]

         II. Dismissal Standards

         Pursuant 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 (5thCir.2001)).

         The 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., Inc., 402 F.3d 489, 494 (5th Cir. 2005)(quoting Montez v. Dep't of Navy, 392 F.3d 147, 149 (5th Cir. 2004)).

         Rule 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)).

         A 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, 678 (2009).

         Plausibility 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.

         III. Analysis

         There 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.

         A. Rooker-Feldman Doctrine

         A 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.

         Even 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.

         Plaintiff's 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.[45] Plaintiff also seeks to enjoin all defendants from “ultra vires” acts.[46]

         Merely 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.

         As it 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 matter jurisdiction.

         B. Eleventh Amendment Immunity/State Sovereign Immunity

         As an alternative ground for dismissal, the TDFPS Defendants[47]argue that they are entitled to sovereign immunity and Eleventh Amendment immunity. State sovereign immunity pursuant to the Eleventh Amendment[48] “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)).

         State 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).

         The 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.[49] Those claims must be dismissed for want of jurisdiction.

         To the 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.

         Qualified 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.

         With 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[50] and by suppressing the “emergency removal sheet” and replacing it with the court order of removal.[51] Plaintiff also alleges that the individual defendants submitted “implicit and explicit false and fraudulent ...

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