Opinion
7:01-CV-096-R.
December 18, 2001.
ORDER
Came on to be considered the papers, pleadings and motions filed in this action and the Court finds and Orders as follows:
Plaintiff claims that Defendants have conspired to deprive her of guardianship over her ex-husband, Jessie Odell Scott. Complaint ¶ V; Plaintiff's Request for Protective Injunction for Jessie Odell Scott. She also claims that she was wrongfully accused of injuring Jessie, falsely arrested by Defendants, unlawfully denied the right to visit Jesse in the nursing home, denied information concerning his medical status and denied the right to obtain proper medical care for him. See Complaint ¶ V; Plaintiff's Request for Protective Injunction for Jessie Odell Scott. Plaintiff seeks guardianship over Jessie Scott and his estate, the right to visit him, the right to direct his medical care and 55 million dollars in monetary damages. Id.
Defendants refer to Mr. Scott as Jessie W. Scott. There is no dispute that he is the same individual referred to by Plaintiff.
The Court has previously determined that Plaintiff is not a licensed attorney and cannot represent her ex-husband, Jessie Scott, in this litigation. She is not his legal guardian and, therefore, does not have standing to seek relief on his behalf. On August 10, 2001, Plaintiff's request for injunctive relief on behalf of Jessie Scott was denied. However, due to the detailed factual nature of her pleading and because Ms. Scott is proceeding pro se, the Court found it appropriate to liberally construe the request as a supplement to her original complaint. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596 (1972) (finding that pro se litigants are held "to less stringent standards than formal pleadings drafted by lawyers.").
Defendants Susan Crume, Janet Perry and Mack Painter are employees of the Monterey Care Center which is also named as a Defendant in this action. See Defendants `Motion to Dismiss, filed on July 10, 2001. These Defendants seek dismissal of the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. Id. Defendants Kim Desha and Barbara Lane are employees of the Denver Manor Nursing Home, another Defendant in this case. Complaint ¶ IV.B. These Defendants also seek dismissal of the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. Defendants' Motion to Dismiss, filed on July 26, 2001.
A threshold issue in this case is whether this Court has jurisdiction to entertain Plaintiff's complaint. "[S]ubject-matter jurisdiction is not waivable, and the federal courts are under a continuing duty to inquire into the basis of jurisdiction in the district court." Warren v. U.S., 874 F.2d 280, 281-82 (5th Cir. 1989) (citing Smith v. Booth, 823 F.2d 94, 96 (5th Cir. 1987)). "The District Court is vested with authority to inquire at any time whether the conditions to the exercise of its jurisdiction have been met." Broussard v. U.S., 989 F.2d 171, 176 (5th Cir. 1993) (quoting McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785 (1936)).
Plaintiff has failed to state a claim arising under federal law. To the extent that she seeks redress under the Civil Rights Act, she has failed to state a cognizable claim against Defendants Crume, J. Perry, Painter, Desha, Lane, Monterey Care Center or Denver Manor Nursing Home. Title 42, United States Code, Section 1983 affords redress only for conduct committed by a person acting under color of state law and does not ordinarily involve conduct of private citizens or corporations such as these Defendants. Thibodeaux v. Bordelon, 740 F.2d 329 (5th Cir. 1984). Plaintiff has failed to set forth any allegations which would indicate that these Defendants acted under color of state law. See Complaint ¶ V; Plaintiff's Request for Protective Injunction for Jessie Odell Scott, Plaintiff's Briefs in Reply to Defendants' Motions to Dismiss, filed on July 13, 2001 and July 25, 2001.
If there is evidence of a conspiracy between private individuals and state actors, then the individuals maybe deemed to have acted under color of state law for the purposes of § 1983. Tower v. Glover, 467 U.S. 914, 104 S.Ct. 2820 (1984); Polk County v. Dodson, 454 U.S. at 325, 102 S.Ct. at 453. Marilyn Scott offers no detailed, concrete operative facts upon which to base her claims that these Defendants were involved in a conspiracy with any state actors. See Young v. Biggers, 938 F.2d 565, 569 (5th Cir. 1991) (assertion of a conspiracy, without facts to support such allegations are insufficient to state a colorable claim under § 1983). Her conclusory allegations are insufficient to maintain a claim under § 1983. See Van Cleave v. United States, 854 F.2d 82, 84 (5th Cir. 1988); Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278,284 (5th Cir. 1993) (holding that "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss."). Accordingly, her complaint against these Defendants should be dismissed. See e.g., Krueger v. Reimer, 66 F.3d 75, 77 (5th Cir. 1995) (affirming the dismissal as frivolous a plaintiff's global allegations of a conspiracy between a state district judge and a prosecuting attorney); Pete v. Metcalfe, 8 F.3d 214, 216-17 (5th Cir. 1993) (affirming dismissal of § 1983 complaint against private defendants where the plaintiff failed to allege facts sufficient to demonstrate that the defendants were "willful participant[s] in joint action with the state or its agents"); Wilson v. Budney, 976 F.2d 957, 958 (5th Cir. 1992) (upholding dismissal of conclusory allegations of conspiracy as frivolous); Turner v. Upton County, 967 F.2d 181, 186 (5th Cir. 1990), (holding that global allegations of conspiracy, unsubstantiated with any supporting evidence, were insufficient to support an inference that a county official had conspired with a private party to plant evidence and maliciously prosecute the plaintiff), cert. denied, 498 U.S. 1069, 111 S.Ct. 688 (1991).
To the extent that Plaintiff seeks civil redress for her alleged injuries under state substantive law, the court is without jurisdiction to entertain her complaint. When a complaint presents no federal question, 28 U.S.C. § 1332 requires complete diversity of citizenship and $75,000 in controversy to invoke the jurisdiction of a federal court. From the face of Plaintiff's complaint, Defendants' motions and Plaintiff's responses thereto, it is apparent that she and the above-named Defendants are citizens of Texas. See Complaint ¶ IV.A B. Because there is no diversity of citizenship, Plaintiff's complaint against Defendants Susan Crume, Janet Perry, Mack Painter, Kim Desha, Barbara Lane, Monterey Care Center and Denver Manor Nursing Home, liberally construed as a diversity action, shall be dismissed for lack of jurisdiction.
Next, Plaintiff seeks to hold Debbie Bivins and her employer, the Texas Department of Protective and Regulatory Services (Adult Protective Services), liable for conspiring with other Defendants in an effort to violate her civil rights by, inter alia, obtaining legal guardianship of her ex-husband, Jessie Scott. See Complaint ¶ V; Plaintiff's Request for Protective Injunction for Jessie Odell Scott. These two Defendants seek dismissal of Plaintiff's complaint on grounds of insufficiency or service of process, a lack of standing on the part of Plaintiff, Eleventh Amendment immunity and under the Rooker-Feldman Doctrine which bars collateral attacks on state court judgments in federal court. See Defendants' Motion to Dismiss, filed on August 31, 2001.
It is well established that federal district courts lack jurisdiction to review state court decisions in particular cases arising out of judicial proceedings even if those challenges allege the state court's actions were unconstitutional. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462,476,103 S.Ct. 1303, 1311 (1983); Rooker v. Fidelity Trust Company, 263 U.S. 413, 416, 44 S.Ct. 149,150 (1923). A plaintiff may not attack a state court judgment by framing her complaint as a civil rights action pursuant to 42 U.S.C. § 1983. See Howell v. Supreme Court of Texas, 885 F.2d 308, 311-312 (5th Cir. 1989) (quoting Carbondell v. Louisiana Dept. of Health Humans Resources, 772 F.2d 185 (5th Cir. 1985)), cert. denied, 496 U.S. 936, 110 S.Ct. 3213 (1990). Review of these decisions is only available in the United States Supreme Court. Feldman, 103 S.Ct. at 1317; Howell, 805 F.2d at 311.
Although federal district courts lack jurisdiction to review state court decisions in particular cases, they do have jurisdiction over general attacks on the constitutionality of a rule or statute. Feldman, 103 S.Ct. at 1315-1317. Constitutional claims that are "inextricably intertwined" with a state court's denial of relief, however, are not general attacks and the district court may not review such claims. Id. at 1315 n. 16.
On May 30, 2001, Marilyn Scott appeared in a hearing regarding a motion in limine filed by the State wherein the State sought to prohibit her from contesting the creation of a guardianship for Jessie Scott. See Plaintiff's Motion (untitled) and Exhibits attached thereto, filed on August 30, 2001. The motion in limine was granted and it appears that the Texas Department of Protective and Regulatory Services was awarded temporary guardianship. On July 11, 2001, in the Matter of the Guardianship of Jessie W. Scott, Cause No. 4790-F, the county court awarded permanent guardianship of Jessie Scott to the Texas Department of Protective and Regulatory Services. See Defendants' Motion to Dismiss, Exhibit No. 2, filed on August 31, 2001.
While the Court typically does not consider evidence outside the pleadings in a motion to dismiss, the Court may take judicial notice of orders filed in state court proceedings. Moreover, the fact that Jessie Scott is a ward of the State is undisputed.
In the case at bar, Plaintiff seeks redress against Debbie Bivins and the Texas Department of Protective and Regulatory Services for seeking and obtaining guardianship of Jessie. She also asks this Court to revoke the guardianship and award guardianship of Jesse to her. Thus, it is clear that Plaintiff has presented claims that are "inextricably intertwined" with those claims raised in the proceedings conducted before the Wichita County Court of Law Number Two. See id. To the extent, if any, that Marilyn Scott has standing to litigate the guardianship issue, her remedy is through the Texas state appellate courts and the United States Supreme Court, not the federal district court. Under the Rooker-Feldman Doctrine, Plaintiff is prohibited from challenging the state court decision in a federal district court under the guise of a § 1983 action. Accordingly, her complaint against Bivins and the Texas Department of Protective and Regulatory Services should be dismissed for lack of jurisdiction.
Moreover, Plaintiff's claims against Adult Protective Services are barred by Eleventh Amendment immunity, also known as sovereign immunity. Adult Protective Services is a program operated by the Texas Department of Protective and Regulatory Services, a state agency. Tex. Human Resources Code Ann. § 40.002(b) (Vernon Supp. 2001). In the absence of consent, Eleventh Amendment immunity bars federal lawsuits by a U.S. citizen against a state or against a state agency or department. Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89,100,104 S.Ct. 900, 908 (1984); Neuwirth v. Louisiana State Bd. of Dentistry, 845 F.2d 553, 555 (5th Cir. 1988); Voisin's Oyster House, Inc. v. Guidry, 799 F.2d 183, 186 (5th Cir. 1986). Sovereign immunity under the Eleventh Amendment is applicable unless the State has expressly waived such protection. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 3145 (1985).
A court will find waiver of Eleventh Amendment immunity only where waiver is stated "by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction." Edelman v. Jordan, 415 U.S. 651, 675, 94 S.Ct. 1347,1361 (1974) (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 464 (1909)).
It does not appear that the State of Texas has waived Eleventh Amendment immunity with regard to suits against the Texas Department of Protective and Regulatory Services and § 1983 does not override the Eleventh Amendment. Voisin's Oyster House, 799 F.2d at 186. Furthermore, a state agency is not considered a "person" acting under color of law for purposes of a civil rights action. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304,2312 (1989). Accordingly, the Texas Department of Protective and Regulatory Services is not amenable to suit under § 1983.
Plaintiff's claim against Debbie Bivins is also barred by immunity. Scott seeks to hold Bivins liable for testifying in a state court hearing on May 29, 2001. Complaint ¶ IV.B. Plaintiff claims that Bivins' testimony was hearsay. Id. Witnesses in judicial proceedings are absolutely immune from suit for damages under § 1983. Briscoe v. LaHue, 460 U.S. 325, 329-34, 103 S.Ct. 1108, 1113-15 (1983); Young v. Biggers, 938 F.2d 565, 569 (5th Cir. 1990). Additionally, Plaintiff offers no detailed, concrete operative facts upon which to base her claims that Bivins was involved in a conspiracy to violate her constitutional rights. Therefore, the claims against Bivins will be dismissed.
Next, Plaintiff seeks damages from Wichita County District Attorney Barry L. Macha and Assistant Wichita County District Attorney Rebecca Ruddy for not allowing her to testify before a grand jury, for not allowing "certain evidence" to be admitted at a hearing on May 29, 2000 and for "covering for police officers James Hodges and Raymond Perry." Complaint ¶ IV.B. Scott also describes Macha and Ruddy as part of the "UNHOLY TRINITY" that has subjected Jessie Scott to cruel and barbaric medical treatment and caused her to be humiliated and ostracized. Plaintiff's Request for Protective Injunction for Jessie Odell Scott p. 10.
Plaintiff's claims for monetary damages against Barry Macha and Rebecca Ruddy are barred by the doctrine of absolute immunity. A district attorney is absolutely immune in a civil rights suit for any action taken pursuant to his or her role as prosecutor in preparing for the initiation of judicial proceedings or for carrying a case through the judicial process. E.g., Kalina v. Fletcher, 522 U.S. 118, 118 S.Ct. 502, 506-509 (1997); Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S.Ct. 984, 995 (1976); Esteves v. Brock, 106 F.3d 674, 676 (5th Cir.), cert. denied, 522 U.S. 828, 118 S.Ct. 91 (1997); Young v. Biggers, 938 F.2d 565, 569 (5th Cir. 1991). The decision to file or not to file criminal charges falls within this category of acts that will not give rise to § 1983 liability. Chrissy F. Medley v. Mississippi Dep't of Public Welfare, 925 F.2d 844, 850 (5th Cir. 1991); Oliver v. Collins, 904 F.2d 278, 281 (5th Cir. 1990).
To the extent that Plaintiff seeks redress for Macha and Ruddy's involvement, if any, in seeking and obtaining State guardianship over Jessie Scott, these Defendants are entitled to absolute immunity. Moreover, as previously noted, Plaintiff has no standing to sue on behalf of Jessie Scott. It also appears that criminal charges were filed against Plaintiff for alleged injury to a disabled person. See Plaintiff's Notice to the Court filed on August 22, 2001. Plaintiff states that she was no-billed by the grand jury and that the charge was subsequently dismissed. See id. To the extent that Plaintiff seeks redress against Macha and Ruddy for their involvement in bringing criminal charges against her, as prosecutors acting in their official capacity, they are entitled to absolute immunity. Plaintiff's conclusory allegations of abuse of power and conspiracy are insufficient to maintain her claims against Macha and Ruddy. See Plaintiff's Reply to Defendants Macha and Ruddy's Answer; Plaintiff's Request for Protective Injunction for Jessie Odell Scott.
Finally, Plaintiff seeks redress against Wichita Falls Police Officers Raymond Perry and James Hodges. Marilyn Scott claims that, on March 9, 2001, the officers conspired with other Defendants, unlawfully arrested her, took her to jail and charged her with injuring a disabled person. Plaintiff's Request for Protective Injunction for Jessie Odell Scott p. 2. She claims that these were acts of retaliation by the officers because Scott filed a grievance against Monterey Nursing Home on February 27, 2001 and a complaint against Jessie Scott's physician, Dr. Richard Sanchez-Leal. Id. at p. 3. Defendants Perry and Hodges deny Scott's allegations of conspiracy and retaliation and claim they are entitled to qualified immunity. See Defendants' Answer, filed on July 13, 2001; Defendants' Brief in Opposition to Plaintiff's Motion for Summary Judgment, filed on October 22, 2001.
Plaintiff alleges and Defendants concede that Officer Raymond Perry is married to Defendant Janet Perry, an employee of Monterey Care Center.
Government officials are entitled to qualified immunity from suit when performing discretionary functions unless their conduct violated statutory or constitutional rights, clearly established at the time of the alleged incident, of which a reasonable person would have known. Gibson v. Rich, 44 F.3d 274, 277 (5th Cir. 1995). The question of qualified immunity should be resolved by the court at the earliest possible stage of litigation because it involves an entitlement to immunity from suit. Hunter v. Bryant, 502 U.S. 224, 226, 112 S.Ct. 534, 536 (1991); accord Gibson, 44 F.3d at 277. The court notes that Defendants Perry and Hodges have not filed a motion to dismiss or a motion for summary judgment. However, because they have raised the defense of qualified immunity, the Court will, by separate order, direct Plaintiff to reply to Defendants qualified immunity defense as required under Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995).
IT IS THEREFORE ORDERED that:
1. Plaintiff's complaint against Defendants Susan Crume, Janet Perry, Mack Painter, Monterey Care Center, Kim Desha, Barbara Lane and the Denver Manor Nursing Home are hereby DISMISSED pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted;
2. Plaintiff's complaint against the Texas Department of Protective and Regulatory Services (Adult Protective Services) is hereby DISMISSED as barred by the Rooker-Feldman Doctrine and barred by Eleventh Amendment immunity;
3. Plaintiff's complaint against Debbie Bivins is hereby DISMISSED as barred by the Rooker-Feldman Doctrine, on grounds of absolute immunity for a witness and pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted;
4. Plaintiff's complaint against Barry Macha and Rebecca Ruddy is hereby DISMISSED on grounds of absolute prosecutorial immunity;
5. Plaintiff's Motions for Default Judgment, filed on July 27, 2001 and on August 10, 2001 are hereby DENIED, and;
6. Plaintiff's Motion to Strike the Motion in Limine, filed on August 30, 2001, is hereby DENIED.
SO ORDERED.