Bowling v. Dahlheimer

          Nowak, Judge

          MEMORANDUM ADOPTING REPORTS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE

         Came on for consideration the following Reports 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 March 7, 2019, the Report of the Magistrate Judge (Dkt. #89) was entered containing proposed findings of fact and recommendations that Defendant Judge Piper McCraw's Motion to Dismiss be granted. On March 8, 2019, the Reports of the Magistrate Judge (Dkts. #92; #93) were entered containing proposed findings of fact and recommendations that the Motions to Dismiss filed by Defendants Justice David Evans and the Clerk of the Court each be granted. Lastly, on April 2, 2019, the Report of the Magistrate Judge (Dkt. #103) was entered containing proposed findings of fact and recommendations that Defendant District Attorney Greg Willis's (“DA Willis”) Motion to Dismiss be granted. Having received the Reports and Recommendations of the Magistrate Judge, having considered Plaintiff's objections (Dkts. #96; #97; #98; #109), and having conducted a de novo review, the Court is of the opinion that the Magistrate Judge's Reports should be adopted.

         RELEVANT BACKGROUND

         The facts are set out in further detail by the Magistrate Judge and need not be repeated here in their entirety.^[1] On August 23, 2018, Plaintiff filed suit in the Northern District of Texas, against her former spouse Lester John Dahlheimer, Jr. (“Dahlheimer”); the estate of her former father-in-law Lester John Dahlheimer, Sr. (“Dahlheimer, Sr.”); Dahlheimer's divorce counsel Paulette Mueller; Judge Piper McCraw; District Attorney Greg Willis; Justice David Evans; the Fifth District Court of Appeals Clerk of the Court; and Court-Appointed Receivers Craig A. Penfold and Rhonda Childress-Herres (Dkt. #2). Plaintiff's claims against these Defendants all relate to or otherwise stem from her underlying divorce proceeding filed in 2015. Specifically, Plaintiff alleges that her former spouse misappropriated Plaintiff's assets throughout their marriage and divorce proceeding, and that the remaining Defendants unlawfully participated, in one manner or another, in either the divorce proceeding or the subsequent enforcement proceedings. Plaintiff's live Complaint asserts the Defendants “violat[ed] Plaintiff's constitutional rights [by] their participation in conspiracy to unlawfully seize property, misc. assets, forgery, fraud, cover up of unlawful conduct, tampering with evidence, FURTHER using threat tactics to bully Plaintiff into quiet submission” (Dkt. #2 at p. 1) (emphasis in original).

         On March 7, 2019, and March 8, 2019, respectively, the Magistrate Judge recommended that Judge McCraw and Justice Evans's Motion to Dismiss be granted because Plaintiff's claims against these judges: (1) in their official capacity are barred by sovereign immunity; (2) are barred by Rooker-Feldman; and (3) are barred by absolute judicial immunity (Dkts. #89, #92). Also on March 8, 2019, the Magistrate Judge recommended that the Clerk of the Court's Motion to Dismiss be granted because Plaintiff's claims against the Clerk: (1) are against a non-jural entity, incapable of being sued; (2) in her official capacity are barred by sovereign immunity; (3) are barred by Rooker-Feldman; and (4) fail to state a violation of Plaintiff's constitutional rights under § 1983 (Dkt. #93). Plaintiff filed her Objections to these three Reports on March 21, 2019 (Dkts. #96; #97; #98). Thereafter, on April 2, 2019, the Magistrate Judge further recommended that DA Willis's Motion to Dismiss be granted because Plaintiff's claims against DA Willis: (1) in his official capacity are barred by sovereign immunity; (2) are barred by absolute prosecutorial immunity; and (3) fail to allege any personal involvement of DA Willis, necessary to state a claim under § 1983 (Dkt. #103). Plaintiff filed objections to this Report on April 16, 2019 (Dkt. #109).

         PLAINTIFF'S 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). Through her filings, Plaintiff has asserted nine (9) objections to the Magistrate Judge's recommendations (Dkts. #89; #92; #93; #103): (1) the Report incorrectly found that Judge McCraw, Justice Evans, the Clerk of the Court, and DA Willis are entitled to sovereign immunity (Dkts. #96 at pp. 6-7; #97 at p. 7; #98 at p. 2; #109 at pp. 4, 7); (2) Rooker-Feldman does not bar Plaintiff's claims against Judge McCraw, Justice Evans, and the Clerk of the Court because “there was extrinsic fraud” (Dkts. #96 at pp. 5, 8-9; #97 at p. 9; #98 at p. 4); (3) Judge McCraw and Justice Evans are not entitled to absolute judicial immunity because both individuals stepped outside of their judicial roles (Dkts. #96 at pp. 10-13; #97 at pp. 3, 7); (4) Plaintiff sufficiently stated a § 1983 claim against the agency of the Clerk of the Court, not Lisa Matz, because “the clerk [] refused to correct the record, ” thereby “violat[ing] Plaintiff's due process constitutional right” (Dkt. #98 at p. 3); (5) DA Willis is not entitled to prosecutorial immunity (Dkt. #109 at pp. 5-7); (6) Plaintiff has sufficiently pleaded a malicious prosecution claim against DA Willis (Dkt. #109 at pp. 9-10); (7) Plaintiff's claims against DA Willis are not time-barred because Plaintiff previously “presented her claims in her second Motion to Recuse Judge McCraw (7/5/2016), her Appellant Brief (4/2017) and other motions” (Dkt. #109 at p. 10); (8) the Report incorrectly recommended dismissal of Plaintiff's conspiracy claim because “[c]onspiracy isn't a claim that can be proven by a pleading” (Dkt. #109 at p. 10); and (9) Plaintiff's allegations support a finding of punitive damages against DA Willis (Dkt. #109 at pp. 2-3). The Court now considers these objections.^[2]

         Sovereign Immunity

         Defendants Judge McCraw, Justice Evans, the Clerk of the Court, and DA Willis all asserted sovereign immunity as a bar to Plaintiff's claims against them in their official capacities. The Reports found that each were entitled to sovereign immunity, resulting in dismissal of any claims against them in their official (but not individual) capacities (Dkts. #89 at pp. 10-11; #92 at pp. 9-10; #93 at p. 13; #103 at p. 9).

         As to Judge McCraw, Plaintiff objects that “Judge Nowak elevates Judge McCraw to have sovereignty only God possesses” (Dkt. #96 at p. 6), and asserts that an exception to sovereign immunity are claims brought under the Fourteenth Amendment, which “provide[s] for private suits against States or state official which are constitutionally impermissible in other contexts” (Dkt. #96 at p. 8). Plaintiff is mistaken that raising a claim under the Fourteenth Amendment waives Judge McCraw's sovereign immunity; sovereign immunity is waived and an individual may sue the state where a state consents or “Congress abrogates the state's sovereign immunity pursuant to [section 5 of] the Fourteenth Amendment.” Sias v. Jacobs, 6:17CV413, 2017 WL 8229544, at *3 (E.D. Tex. Dec. 11, 2017), report and recommendation adopted, 6:17CV413, 2018 WL 1335424 (E.D. Tex. Mar. 14, 2018), appeal dismissed, 18-40280, 2018 WL 4677432 (5th Cir. Apr. 20, 2018) (citing Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999)). There is no such Congressional abrogation before the Court.

         Moreover, as to Justice Evans, the Clerk of the Court, and DA Willis, Plaintiff objects that “[t]he Eleventh Amendment limits official capacity claims against certain state officials (not all) to prospective injunctive relief, it does not affect damage claims against those officials in their individual capacity” (Dkts. #97 at p. 7; #98 at p. 2; #109 at p. 7). This statement is consistent with the findings of the Reports; the Magistrate Judge found only Plaintiff's claims against Defendants in their official capacities were barred by sovereign immunity and continued on to discuss Plaintiff's remaining claims against Defendants in their individual capacities. In her objections to the Report addressing her claims against DA Willis, Plaintiff also alleges that sovereign immunity “relates to The Texas Tort Claims Act[, ] which has nothing to do with Plaintiff's Complaint” and “Judge Nowak mistranslates Ramming v. U.S. [sic] as applied to proving ‘facts' when it is nothing of the sort” (Dkt. #109 at p. 4). These statements are nonsensical. Plaintiff's first objection is overruled.

         Rooker-Feldman Doctrine

         The Reports further found that Plaintiff's claims against Judge McCraw, Justice Evans, and the Clerk of the Court are barred by the Rooker-Feldman doctrine to the extent that Plaintiff has asserted a collateral attack on the orders issued in Plaintiff's divorce proceeding. Plaintiff argues, in her second objection, that “[t]he Rooker-Feldman doctrine has become perverted” and is not intended for use in cases like the instant matter (Dkts. #96 at p. 8; #97 at p. 9; #98 at p. 4). The Reports specifically addressed this argument:

Plaintiff contends that “[t]he Rooker-Feldman doctrine has become perverted in that [t]he Rooker-Feldman doctrine was originally related to the Anti-Injunction Act. . . Somehow it was twisted, and is about to be abolished”. . . .Contrary to Plaintiff's assertions, “[c]ourts in this circuit have ‘consistently applied [and continue to apply] the Rooker-Feldman doctrine as a bar to federal jurisdiction over matters related to the family disputes of divorce and child support.'”

         (Dkts. #92 at p. 12; #93 at p. 15). Plaintiff does not raise any new authority or arguments in support of this contention; the Court agrees with the assessment of the Magistrate Judge, courts in this circuit have consistently applied Rooker-Feldman as a bar to federal jurisdiction over matters related to divorce.

         Plaintiff next argues Rooker-Feldman is inapplicable because the Reports failed to consider extrinsic fraud (Dkts. #96 at p. 8; #97 at p. 9; #98 at p. 4). In support of her contention, Plaintiff relies on a Ninth Circuit case, Kougasian v. TMSL, Inc.,359 F.3d 1136, 1141 (9th Cir. 2004) (Dkts. #96 at pp. 8-9; #97 at pp. 9-10; #98 at pp. 4-5). The Kougasian court held that “Rooker-Feldman ‘does not bar subject matter jurisdiction when a federal plaintiff alleges a cause of action for extrinsic fraud on a state court and seeks to set aside a state court judgment obtained by that fraud.'” Stabler v. Ryan, 949 F.Supp.2d 663, 666-67 (E.D. La. 2013). However, “Fifth Circuit precedent differs on this point”; “in Truong v. Bank of America, N.A.,717 F.3d 377 (5th Cir. 2013), the Fifth Circuit decided whether the Rooker-Feldman doctrine applied to a complaint alleging that the ‘unfair and deceptive' acts of two banks resulted in wrongful foreclosure on the plaintiff's mortgage loan.” Id. at 667; see also Houston v. Queen, 8 F.Supp.3d 815, 823-24 (W.D. La. 2014), aff'd sub nom. Houston v. Venneta Queen, 606 Fed.Appx. 725 (5th Cir. 2015) (“In the Fifth Circuit, the relevant inquiry is whether fraud allegations are independent for purposes of the Rooker-Feldman doctrine. . . .The Houston Brothers' decision to frame their fraud claim as a civil rights action for injuries arising from a state court's judgment does not confer this Court with the jurisdiction necessary to review and invalidate the Judgment of Possession.”) (citing Price v. Porter,351 Fed.Appx. 925, 926-27 (5th Cir. 2009)). “In determining whether Rooker-Feldman forbade the plaintiff from bringing the case, the Fifth Circuit explained: ‘[o]ne hallmark of the Rooker-Feldman inquiry is what the federal court is being asked to review and reject. A federal district court lacks jurisdiction over challenges to state court decisions in particular cases arising out of judicial proceedings.'” Stabler, 949 F.Supp.2d at 667 (quoting Truong, 717 F.3d at 382) (emphasis in original). “[T]he second ‘hallmark' is ‘the source of the federal plaintiff's alleged injury,' and specifically, whether the plaintiff asserts as a legal wrong ‘an ...