Hixson et al v. McCallen

Filing 16

OPINION AND ORDER GRANTING 6 MOTION to Dismiss for Lack of Jurisdiction by Defendant Robert J McCallen. This case is DISMISSED WITHOUT PREJUDICE. Clerk DIRECTED to treat this civil action as TERMINATED. Signed by Judge Philip P Simon on 6/14/17. (Copy mailed to pro se party).(cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JANET PICHON HIXON and
RICHARD HIXSON,
Plaintiffs,
v.
ROBERT J. MCCALLEN, individually
and in his official capacity as Justice of
the Superior Court of Wabash County,
Defendant.

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CAUSE NO. 3:17-CV-6-PPS-MGG

OPINION AND ORDER
Janet Pichon Hixson and Richard Hixson brought this action, pro se, challenging
various child custody determinations made by a state court judge. They’ve sued the
judge in both his individual and official capacities. The judge in question, Judge Robert
J. McCallen of the Wabash County, Indiana Superior Court, now seeks dismissal of the
case. Because I do not have jurisdiction over these claims, Judge McCallen’s motion
will be granted and the case dismissed for a lack of jurisdiction.
Background
For purposes of this motion, I take the facts as alleged in the Complaint as being
true. Janet and Richard Hixson brought this action seeking injunctive relief from
various orders issued by the Judge McCallen. [DE 1.] Plaintiffs seek to restore child
visitation rights between Mrs. Hixson and her two children, Lamoine, age 16, and

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Lyndzy, age 11. [DE 1 at 2.] They also ask me to enjoin a no-contact order issued
against Mr. Hixson, the children’s step-father. In the complaint, labeled “Emergency
Request for Injunctive Relief,” the Hixsons allege breach of their 1st, 4th, 9th, and 14th
Amendment rights, violation of their parental rights, and gross misconduct on the part
of Judge McCallen. [Id. at ¶¶70-75.]
The Hixsons tell me that they are residents of Charlotte, North Carolina; the
children currently live in Indiana with their father, Doyle Silvers, who is also Mrs.
Hixson’s ex-husband. [Id. at ¶¶5-6, 10.] Mrs. Hixson and her ex-husband have
apparently had a tumultuous relationship. The Indiana state court originally granted
Mrs. Hixson full custody of both children on August 7, 2009. [Id. at ¶8.] But during
Mrs. Hixon’s period of full custody, Doyle Silvers filed five child abuse complaints with
Child Protective Services of Mecklenburg County, North Carolina. [Id. at ¶9.] After
each investigation, CPS found no evidence of abuse and determined that the Hixsons’
home was a safe environment for the children. [Id.]
It is unclear from the complaint, but, at some point, the Wabash Superior Court
appointed a guardian ad litem (“GAL”) to represent the interests of the children. [Id. at
¶10.] Based on the GAL’s recommendation, Judge Goff, Judge of the Superior Court of
Wabash County, awarded Doyle Silvers, the children’s father, temporary custody on
September 14, 2014. [Id.] The children have lived with their father in Indiana ever
since. Mrs. Hixson claims that she has been unjustly denied visitation rights by the
GAL and the Department of Child Services (“DCS”), even though they are not named
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defendants in this suit. [Id. at 2.] The Hixsons further allege that Judge Goff issued a nocontact order in December 2014 against Mr. Hixson without holding a hearing. [Id. at
¶5.]
The chronology from that point on is a bit convoluted, but I will do my best to
summarize it: Judge McCallen was assigned as special judge to Mrs. Hixson’s custody
case in January 2015. [Id. at ¶17.] Mrs. Hixson claims that her son, Lamoine,
complained to her of physical and verbal abuse by his father during their Spring 2015
visitation in Indiana. [Id. at ¶18.] Although it is unclear exactly what circumstances
prompted the order, Judge McCallen ordered the children to be placed in a foster home
on April 13, 2015. [Id. at ¶20.] At a June 13, 2015 hearing, Judge McCallen ordered
restricted, supervised visitation between Mrs. Hixson and her children. [Id. at ¶¶26-27.]
Although Mrs. Hixson was initially allowed a 30-minute supervised phone call with her
children every two weeks, she has not had contact for three months. [Id. at ¶33.] The
Hixsons claim that these orders are unsubstantiated, violate their due process rights,
and “deprive[] Mrs. Hixson and her children the right to companionship.” [Id. at ¶¶15,
30, 37.]
The Hixsons then attended a permanent custody hearing in front of Judge
McCallen on November 17, 2016. [Id. at ¶43.] The GAL testified that she had no
evidence of violence in the Hixson home but that she “had a feeling that something was
not right.” [Id. at ¶43, 46.] Judge McCallen refused to consider evidence on Mr. Silvers’
psychological evaluation that indicated a risk of child abuse and neglect. [Id. at ¶56.]
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Accordingly, Judge McCallen awarded Mr. Silvers permanent custody, which he found
to be in the children’s best interests. [Id. at ¶61.] The Hixsons continue to have
restricted contact with the children. The Hixsons brought this suit against Judge
McCallen alleging that his decision is not supported by “definite and articulable
evidence,” thus violating their fundamental rights. [Id. ¶59-61, 71.] Plaintiffs also claim
that both children have been adversely psychologically affected by the separation from
their mother. [Id. ¶60.] They ask for relief against Judge McCallen’s orders and
restoration of immediate contact with their children. Judge McCallen now moves to
dismiss this action for lack of jurisdiction. [DE 6.]
Discussion
Because Plaintiffs are pro se, I must construe their complaint liberally and hold it
to “less stringent standards than formal pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007). However, the Hixsons remain responsible for proving
that the jurisdictional requirements have been met. Ctr. for Dermatology & Skin Cancer,
Ltd. v. Burwell, 770 F.3d 586, 588 (7th Cir. 2014). And, of course, I have the obligation to
police my own jurisdiction. If it is determined that this Court lacks jurisdiction, I must
dismiss the case under Federal Rule of Civil Procedure 12(b)(1). See Fed. R. Civ. P.
12(b)(1); Baker v. Kingsley, 387 F.3d 649, 656 (7th Cir. 2004).
Due to the nature of this action, both the Rooker-Feldman doctrine and the
domestic relations exception are independent jurisdictional bars. I will start with
Rooker-Feldman doctrine. The doctrine derives its name from Rooker v. Fidelity Trust Co.,
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236 U.S. 413 (1923) and Dist. of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462 (1983). At
its basic level, the doctrine bars lower federal courts from having subject-matter
jurisdiction over claims that seek review of state court judgments. Long v. Shorebank
Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999); Lance v. Dennis, 546 U.S. 459, 463 (2006). The
Rooker-Feldman doctrine “prevents lower federal courts from exercising jurisdiction over
cases brought by ‘state court losers’ challenging ‘state court judgments rendered before
the district court proceedings commenced.’” Lance, 546 U.S. 459, 460 (2006) (quoting
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005)).
The Rooker-Feldman doctrine applies in two circumstances, both of which are
applicable here. The first involves a situation like in Lance where a plaintiff loses in
state court and then asks a federal court to overturn that decision. The second
application is where the federal claims are “inextricably intertwined” with the state
court judgment. In this latter situation, the question is essentially whether the state
court loser is requesting a federal court to review the state court judgment. Brown v.
Bowman, 668 F.3d 437, 442 (7th Cir. 2012); Brokaw v. Weaver, 305 F.3d 660, 664 (7th Cir.
2002). The doctrine is not concerned with why the state court’s decision might be
wrong, but with which federal court has the authority to intervene. Iqbal v. Patel, 780
F.3d 728, 729 (7th Cir. 2015). It might be that the state judgment is clearly erroneous or
unconstitutional, but I still would not be able to review the plaintiff’s claims. See Holt v.
Lake County Bd. Of Comm’rs, 408 F.3d 335, 336 (7th Cir. 2005) (holding that plaintiff could
not avoid Rooker-Feldman by styling the injury arising from the state court judgment as a
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due process violation). To bring a claim in federal court, a plaintiff must first exhaust
her options in the state court appellate system and then appeal to the United States
Supreme Court. Bergquist v. Mann Bracken, LLP, 592 F.3d 816, 818 (7th Cir. 2010).
The Hixsons allege that Judge McCallen’s orders and custody decision caused
them irreparable harm. [DE 1 at ¶¶79-82.] They are explicitly seeking relief from the
state court judgment, but in doing they run headlong into the first application of RookerFeldman. Furthermore, at the very least, the Hixsons are asking me to review the state
court judgment. In other words, their claims here are inextricably intertwined with the
state court judgment. Because the Hixsons’ injuries arise from a state court decision,
Rooker-Feldman bars me from hearing these claims. The Hixsons must seek review of
Judge McCallen’s decisions through the Indiana state court system.
In addition, the domestic relations exception to federal jurisdiction also leaves
this Court without jurisdiction to review the Hixsons’ claims. Domestic relations
matters, such as divorce and child custody, are within the state’s traditional sphere of
power. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12-13 (2004). The doctrine
“precludes federal jurisdiction when a plaintiff seeks ‘one or more of the distinctive
forms of relief associated with the domestic relations jurisdiction: the granting of a
divorce or an annulment, an award of child custody, a decree of alimony or child
support.’” Dawaji v. Askar, 618 F. App’x 858, 860 (7th Cir. 2015) (quoting Friedlander v.
Friedlander, 149 F.3d 739, 740 (7th Cir. 1998)). The Supreme Court has long recognized
this exception to federal jurisdiction. Barber v. Barber, 62 U.S. 582 (1858); Ankenbrandt v.
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Richards, 504 U.S. 689, 694-95 (1992) (reaffirming the exception).
The Hixsons seek injunctive relief against child custody and visitation orders
issued by Judge McCallen. What they essentially are asking me to do is to intervene in
the custody case. I recognize that there are situations when the domestic relations
exception does not apply, such as when one parent files a tort action against the other
parent on behalf of the child, Ankenbrandt, 504 U.S. at 690, but this case arises out of a
custody dispute and falls squarely under the “core” category of domestic relations.
Therefore, these issues must be raised in state court. Id. at 716. As such, I do not have
jurisdiction to hear Plaintiffs’ claims.
As a final point, while I may ordinarily grant leave to pro se plaintiffs to file an
amended complaint to remedy errors that I have identified in their complaint, even if
the Hixsons attempted to amend their complaint in this action to bring claims not
barred by the two doctrines discussed above, Judge McCallen “is absolutely immune
from liability for his judicial acts even if his exercise of authority is flawed by the
commission of grave procedural errors.” Stump v. Sparkman, 435 U.S. 349, 359 (1978); see
also Dawson v. Newman, 419 F.3d 656, 660 (7th Cir. 2005). Therefore, any amended
complaint would be futile and is not allowed. See Hukic v. Aurora Loan Servs., 588 F.3d
420, 432 (7th Cir. 2009).
Conclusion
For the aforementioned reasons, Defendant Robert J. McCallen’s Motion to
Dismiss, DE 6, is GRANTED and this action is DISMISSED WITHOUT PREJUDICE
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and CLOSED and the clerk is DIRECTED to treat this civil action as terminated.
SO ORDERED.
ENTERED: June 14, 2017.
_s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT

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