United States District Court, W.D. Texas, Austin Division
REPORT AND RECOMMENDATION OF THE UNITED STATES
W. AUSTIN, UNITED STATES MAGISTRATE JUDGE
HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE
the Court is Christina Michelle Cruise's Application to
Proceed In Forma Pauperis (Dkt. No. 2) and Financial
Affidavit in Support, along with her Complaint (Dkt. No. 1).
The District Court referred the above-motion to the
undersigned Magistrate Judge for a determination pursuant to
28 U.S.C. § 636(b) and Rule 1(c) of Appendix C of the
Local Court Rules.
APPLICATION TO PROCEED IN FORMA PAUPERIS
reviewing Cruise's Application to Proceed In Forma
Pauperis, the Court finds that she is indigent.
Accordingly, the Court HEREBY GRANTS Cruise
in forma pauperis status and ORDERS
her Complaint be filed without pre-payment of fees or costs
or giving security therefor pursuant to 28 U.S.C. §
1915(a)(1). This indigent status is granted subject to a
later determination that the action should be dismissed if
the allegation of poverty is untrue or the action is found
frivolous or malicious pursuant to 28 U.S.C. § 1915(e).
Cruise is further advised that although she has been granted
leave to proceed in forma pauperis, a Court may, in
its discretion, impose costs of court at the conclusion of
this lawsuit, as in other cases. Moore v. McDonald,
30 F.3d 616, 621 (5th Cir. 1994).
stated below, this Court has conducted a review of the claims
made in Cruise's Complaint and is recommending her claims
be dismissed under 28 U.S.C. § 1915(e). Therefore,
service upon the Defendants should be
withheld pending the District Court's review of
the recommendations made in this report. If the District
Court declines to adopt the recommendations, then service
should be issued at that time upon the Defendants.
Cruise has been granted leave to proceed in forma
pauperis, the Court is required by standing order to
review her Complaint under §1915(e)(2), which provides
in relevant part that “the court shall dismiss the case
at any time if the court determines that . . . the action or
appeal (I) is frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2).
complaints are liberally construed in favor of the plaintiff.
Haines v. Kerner, 404 U.S. 519, 520-21 (1972). The
court must “accept as true factual allegations in the
complaint and all reasonable inferences that can be drawn
therefrom.” Nami v. Fauver, 82 F.3d 63, 65 (3d
Cir. 1996); see also Watts v. Graves, 720 F.2d 1416,
1419 (5th Cir. 1983). In deciding whether a complaint states
a claim, “[t]he court's task is to determine
whether the plaintiff has stated a legally cognizable claim
that is plausible, not to evaluate the plaintiff's
likelihood of success.” Lone Star Fund V (U.S.),
L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir.
2010). “A claim has facial plausibility when the
[nonmovant] pleads factual content that allows the court to
draw the reasonable inference that the [movant] is liable for
the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). “The plausibility standard is
not akin to a ‘probability requirement,' but it
asks for more than a sheer possibility that a defendant has
acted unlawfully.” Id. However, the
petitioner's pro se status does not offer him “an
impenetrable shield, for one acting pro se has no license to
harass others, clog the judicial machinery with meritless
litigation, and abuse already overloaded court
dockets.” Farguson v. Mbank Houston N.A., 808
F.2d 358, 359 (5th Cir. 1986).
has filed a 77-page civil rights lawsuit against all nine
justices of the Texas Supreme Court. Cruise sues pursuant to
42 U.S.C. § 1983, complaining that the Justices violated
various of her Constitutional rights in promulgating,
implementing, and executing policies and practices supporting
the Texas Department of Protective and Family Services,
specifically related to the termination of her parental
rights and removal of Cruise's children from her custody
in December of 2014. Cruise's complaint against the
justices is that they denied her appeal of the termination of
her parental rights. She also alleges that in doing so, the
justices violated various federal criminal statutes.
Plaintiff's criminal claims cannot proceed because a
private party has no right to enforce federal criminal
statues. Bass Angler Sportsman Soc'y v. United States
Steel Corp., 324 F.Supp. 412, 415 (D. Ala.),
aff'd 447 F.2d 1304 (5th Cir. 1971). Therefore,
Plaintiff seeks relief that this Court cannot provide and the
claims she brings under various criminal statutes must be
it is also well settled law that a judge enjoys absolute
immunity from liability for judicial acts performed within
her jurisdiction. Pierson v. Ray, 386 U.S. 547
(1967). “Few doctrines were more solidly established at
common law than the immunity of judges from liability for
damages for acts committed within their judicial
jurisdiction.” Id. at 553-54.
This immunity applies even when the judge is accused of
acting maliciously and corruptly, and it is not for the
protection or benefit of a malicious or corrupt judge, but
for the benefit of the public, whose interest it is that the
judges should be at liberty to exercise their functions with
independence and without fear of consequences.
Id. at 554 (internal quotations and citations
omitted). The doctrine of absolute judicial immunity protects
judges not only from liability, but also from suit.
Mireless v. Waco, 502 U.S. 9, 11 (1991). The motive
of the judicial officer is irrelevant when considering
absolute immunity. See Mitchell v. McBryde, 944 F.2d
229, 230 (5th Cir. 1991).
judicial immunity is overcome in only two rather narrow sets
of circumstances: first, a judge is not immune from liability
for nonjudicial actions, i.e., actions not taken in the
judge's judicial capacity, and second, a judge is not
immune for actions, though judicial in nature, taken in
complete absence of all jurisdiction. Mireless, 502
U.S. at 11-12. “A judge's acts are judicial in
nature if they are ‘normally performed by a judge'
and the parties affected ‘dealt with the judge in his
judicial capacity.'” Boyd v. Biggers, 31
F.3d 279, 285 (5th Cir. 1994) (quoting Mireless, 502
U.S. at 12). In the case at bar, Cruise does not complain of
any actions taken by the Justices that were nonjudicial in