Parris v. Parris
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE for 11 Motion to Remand filed by Hilda Parris, 12 Report and Recommendations. Plaintiffs Motion to Remand (Dkt. #11) is GRANTED. The Court REMANDS this action to the 211th Judicial District Court, Denton County, Texas. Signed by District Judge Amos L. Mazzant, III on 11/9/2017. (cm, )
United States District Court
EASTERN DISTRICT OF TEXAS
Civil Action No. 4:17-CV-504
(Judge Mazzant/Judge Nowak)
MEMORANDUM ADOPTING REPORT AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report 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 September 19, 2017, the report of the Magistrate Judge (Dkt. #12) was entered containing
proposed findings of fact and recommendations that Plaintiff Hilda Parris’s Motion to Remand
(Dkt. #11) be granted and this cause be remanded to the 211th Judicial District Court, Denton
County, Texas. Having received the report and recommendation of the Magistrate Judge, having
considered Defendant’s objections (Dkt. #19), and having conducted a de novo review, the Court
is of the opinion that the findings and conclusions of the Magistrate Judge are correct and adopts
the Magistrate Judge’s report as the findings and conclusions of the Court.
On July 29, 2014, Plaintiff Hilda Parris filed a divorce with children action in the 211th
Judicial District Court, Denton County, Texas (“State Court”) (Dkt. #1, Exhibit A).
October 29, 2015, the State Court entered a Final Decree of Divorce and an Order Withholding
from Earnings for Child Support (Dkt. #1, Exhibit A). On January 11, 2016, Defendant Jason
Parris filed a Motion to Enter a Qualified Domestic Relations Order (“QDRO”)
(Dkt. #1, Exhibit A). On March 3, 2016, the State Court canceled the hearing on the Motion to
Enter QDRO and ordered the file sent to Records Management for storage (Dkt. #1, Exhibit A).
Thereafter, on or about June 20, 2017, Defendant received a notice letter from the Office of the
Attorney General regarding his alleged nonpayment of child support (Dkt. #1, Exhibit B), as well
as a Notice of Levy (Dkt. #1, Exhibit C). On July 19, 2017, Defendant purported to remove the
divorce action and issue of support payments to the United States District Court for the Eastern
District of Texas, Sherman Division, asserting federal jurisdiction under “28 U.S.C. §§ 1443 and
1446(b), and 28 U.S.C. §§ 1331, 1343, and 1367” (Dkt. #1 at p. 1). Although Defendant labeled
himself as “Petitioner” in the caption of his Notice of Removal, the Court found that Defendant
sought removal of the State Court proceeding pursuant to 28 U.S.C. § 1443
(Dkts. #1 at p. 4; #12 at p. 2) (“this is a removal under 28 U.S.C. § 1443”).
On September 19, 2017, the Magistrate Judge entered a report and recommendation
(Dkt. #12) recommending that Plaintiff’s Motion to Remand be granted and this case be remanded
to the 211th Judicial District Court, Denton County, Texas. Defendant filed his “Objections to
Unauthorized Magistrate Report and Recommendations with Conditional Request for Findings of
Fact and Conclusions of Law” (Dkt. #19) on October 10, 2017.
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). In his fortyeight page Objections, Defendant lodges multiple complaints, many of which are repetitive.
As an initial matter, Defendant argues the report and recommendation “is NOT amongst
the available types of dispositive actions that federal magistrate judges may ever address without
the consent of the parties.” (Dkt. #19 at p. 2) (emphasis in original). But the Federal Magistrates
Act, 28 U.S.C. § 636, permits “a [full Article III] judge [to] designate a magistrate judge to hear
and determine any pretrial matter pending before the court, except [certain dispositive motions]”
and further permits a judge [to] designate a magistrate judge to . . . submit to a judge of the court
proposed findings of fact and recommendations for the disposition, by a judge of the court, of any
[of those excepted] motion[s] . . . .” 28 U.S.C. § 636(b)(1)(A)-(B). The Court’s Local Rules also
provide district judges wide latitude in referring matters and motions for a magistrate judge’s
review. E.D. Tex. Local Civil Rule 72(d). A magistrate judge may, therefore, recommend
disposition of a motion to remand to the district judge, who will then conduct a de novo review of
those portions of the recommendation to which parties raise specific, timely objection. 28 U.S.C.
§ 636(b)(1)(C). The Fifth Circuit has repeatedly recognized the statutory authority to designate a
magistrate judge to consider a motion to remand. Douglass v. United Servs. Auto. Ass’n, 79 F.3d
1415, 1417 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C.
§ 636(b)(1). Here, the Magistrate Judge recommended Plaintiff’s Motion to Remand be granted.
The Magistrate Judge acted within the bounds of statutory authority in issuing such report and
recommendation, and the Court now properly reviews those portions of the Magistrate Judge’s
report and recommendation to which Defendant raises specific objections. 1
Defendant also makes the following arguments in his objections:
• “The State of Texas must surpass pre-deprivation ‘serious parental unfitness’ due process
hurdles, and that by clear and convincing evidence, before it may then, and only then,
remove the custodial rights of any parent to his or her own natural child” (Dkt. #19 at p. 7).
As a summary of this argument, Defendant asserts “the State of Texas family court system
is wildly unconstitutional, perpetrating routine, daily frauds upon basic constitutional and
due process rights of at least one-half of all the natural parents involved within domestic
relations cases over child custody betwixt two competing parents, and it is incumbent on
this Court to strike down the same facially repugnant mess.” (Dkt. #19 at pp. 11—12).
• “State family court judges are barred from any involvement in Title IV-D child support
matters of their own given respective counties due to the pecuniary conflicts of interests to
such county officers within the Title IV-D system” (Dkt. #19 at p. 12). Defendant requests
Defendant argues the report and recommendation “was technically meritless” because Plaintiff’s attorney has yet to
file a written appearance (Dkt. #19 at p. 1). But, pursuant to Local Rule CV-11, the attorney signing a party’s first
filing as lead attorney is considered to have made an appearance. Thus, Defendant’s objection on this ground is
the Court “strike down the same facially repugnant mess by declaring an appropriate
injunction against the State of Texas, its family court system leaders, and/or the
corresponding judicial officers, forbidding such further conflicts of interest and/or other
entanglements, and making the same permanent.” (Dkt. #19 at pp. 14—15).
• “Causes of action over federal torts are well established as perfectly proper federal subject
matter jurisdiction even if regarding state domestic relations cases” (Dkt. #19 at p. 15).
According to Defendant, he is within his rights to bring a federal court tort action for civil
damages “over the original several years of interference with the parenting time I was
supposed to have equally with my offspring, because such federal tort actions have been
very well established for decades” (Dkt. #19 at p. 18) (emphasis in original). Defendant
argues “[a]ny frivolous attempt by any officer or party herein to willfully, intentionally and
knowingly defraud this District Court into avoiding jurisdiction over federal tort claims
brought by this Petitioner (let alone over the removal action and direct facial challenge to
state statutes itself), simply because the issues are intertwined with a state domestic
relations case, are abhorrently not in compliance with well-established federal
jurisprudence . . . .” (Dkt. #19 at p. 18).
• “Removal under 28 U.S.C. § 1443 is timely filed within thirty days of the aggrieved
litigant first ascertaining the existence of his or her right to remove” (Dkt. #19 at p. 19).
• “Civil rights removal via Section 1443 is quite different from all other removal types in
substantive and procedural respects” (Dkt. #19 at p. 20). According to Defendant, “[w]hile
all ‘fresh’ removals filed under § 1441 and that kin should retain the same ‘fresh’ case
styling pattern as in that brand new state court case, § 1443 removals are not triggered
unless and until a given state court – maybe months or years later, or never—violates a
litigant’s federal rights, triggering the adversarial nature of the case styling reverse,
because of then later invoking this statutory enforcement action of right, via petitioning
under § 1443 for due relief . . . as petitioner and . . . all adverse parties therein are called
the respondents . . . .” (Dkt. #19 at p. 21) (emphasis in original).
• “Racial litmus tests may not be used by federal courts to arbitrarily deny otherwise equal
access rights to federal court jurisdiction over equal rights issues” (Dkt. #19 at p. 23).
According to Defendant, “‘[c]ivil rights are not limited under federal law to simply and
solely ‘racial’ issues.” (Dkt. #19 at p. 23) (emphasis in original).
• “Federal courts may not entertain abstention doctrines to deny clear and unambiguous
statutory language that expressly authorizes state case intervention” (Dkt. #19 at p. 40).
The Court now considers Defendant’s substantive objections to the report and
recommendation and conducts a de novo review of the Magistrate Judge’s findings and
conclusions. As noted above, Defendant removed this case pursuant to the civil rights removal
statute, 28 U.S.C. § 1443, which authorizes the removal of a civil rights action pending in state
court, even if the action would not otherwise be removable under the federal court’s original
jurisdiction. Section 1443 allows removal of any pending civil actions:
(1) Against any person who is denied or cannot enforce in the courts of such State
a right under any law providing for the equal civil rights of the citizens of the United
States, or of all persons within the jurisdiction thereof;
(2) For any act under color of authority derived from any law providing for equal
rights, or for refusing to do any act on the ground that it would be inconsistent with
28 U.S.C. § 1443.
The second subsection of § 1443 “confers a privilege of removal only upon federal officers
or agents and those authorized to act with or for them in affirmatively executing duties under any
federal law providing for equal civil rights.” City of Greenwood, Miss. v. Peacock, 384 U.S. 808,
824 (1966). As noted by the Magistrate Judge, Defendant has not alleged he is a federal officer or
agent; therefore, any right to removal he may have must fall under the first subsection of § 1443.
Under 28 U.S.C. § 1443(1), a defendant must satisfy a two-pronged test to remove an
action. Georgia v. Rachel, 384 U.S. 780 (1966). First, a defendant must prove the rights allegedly
denied to him arise under a federal law “providing for specific civil rights stated in terms of racial
equality.” Id. at 792. Second, a defendant must prove he has been “denied or cannot enforce” the
specific civil rights in state court. Id. at 794.
Defendant asserts the “‘racial inequality’ litmus test often used by federal courts to
arbitrarily deny equal rights and equal access to federal relief to white people via removal under
28 USC § 1443 is utter nonsense, easily slammed in several ways as flagrantly and recklessly
unconstitutional.” (Dkt. #19 at p. 7) (emphasis in original). Recently, the Fifth Circuit considered
a litigant’s appeal of the district court’s order remanding his criminal case to state court pursuant
to § 1443(1). Kruebbe v. Beevers, No. 16-30469, 692 F. App’x 173, 174 (5th Cir. 2017). In
deciding to remand Kruebbe’s criminal case, the district court found that the Supreme Court in
Rachel held “the phrase ‘any law providing for . . . equal civil rights’ must be construed to mean
any law providing for specific civil rights stated in terms of racial equality.” Id. at 175 (quoting
Rachel, 384 U.S. at 792). Kruebbe argued the district court erred in remanding his case because
the Supreme Court’s decision in Rachel was reversed by Chapman v. Houston Welfare Rights
Organization, 441 U.S. 600 (1979). Id. Considering this argument, the Fifth Circuit held that
Chapman involved the interpretation of a different statute, 28 U.S.C. § 1343, and therefore, did
not overturn Rachel. Id. at 175—76. “On the contrary, Chapman reiterated Rachel’s holding,
explaining that § 1443 ‘was enacted in the Civil Rights Act of 1866 under the authority of the
Thirteenth Amendment’ and was therefore ‘limited to racially based claims of inequality.’” Id. at
175 (quoting Chapman, 441 U.S. at 622) (“When the removal statute speaks of any law providing
for equal rights, it refers to those laws that are couched in terms of equality, such as the historic
and the recent equal rights statutes, as distinguished from laws, of which the due process clause
and 42 U.S.C. § 1983 are sufficient examples, that confer equal rights in the sense, vital to our way
of life, of bestowing them upon all.”) (internal quotations omitted). Ultimately, the Fifth Circuit
held that “[i]n requesting his case be removed to federal court, ‘Kruebbe did not allege that he was
denied or unable to enforce rights under any law providing for equal civil rights stated in terms of
racial equality. Therefore, § 1443(1) did not apply to his criminal prosecution.’” Id. at 175—76.
Given the Fifth Circuit’s recent precedent, the Magistrate Judge properly relied upon the Rachel
two-prong test and the Supreme Court’s holding that § 1443 is limited to racially based claims of
The Rachel test requires the following for removal under § 1443. First, it must appear the
right allegedly denied the removing defendant arises under a federal law “providing for specific
civil rights stated in terms of racial equality.” Id. at 175 (quoting Rachel, 384 U.S. 792); see also
Alabama v. Conley, 245 F.3d 1292, 1295 (11th Cir. 2001). As to this first prong, “broad assertions
under the Equal Protection Clause . . . are insufficient to support a valid claim for removal under
§ 1443(1)” because racial equality rights do not include rights of general application. See Conley,
245 F.2d at 1295–96. Second, it must appear, in accordance with the provisions of § 1443(1), that
the removing defendant is “denied or cannot enforce” the specified federal rights “in the courts of
(the) State.” Id. at 1298. This provision normally requires the denial be “manifest in a formal
expression of state law,” such as a state legislative or constitutional provision, rather than a denial
first made manifest in the trial of the case. Id. (citation and internal quotation omitted). Except in
the unusual case where “an equivalent basis [can] be shown for an equally firm prediction that the
defendant would be ‘denied or cannot enforce’ the specified federal rights in the state court,” it
was to be expected that the protection of federal constitutional or statutory rights could be effected
in the pending state proceedings, civil or criminal. Id. (quoting Rachel, 384 U.S. at 804). “Failure
to satisfy either prong of the two-pronged test is fatal to removal.” Evans v. State of Florida Dep’t
of Revenue Child Support Enf’t, No. 3:09CV467/MCR/EMT, 2010 WL 419399, at *3–4 (N.D.
Fla. Jan. 28, 2010), aff’d sub nom. Evans v. Echeverri, 433 F. App’x 878 (11th Cir. 2011) (citing
Williams v. State of Mississippi, 608 F.2d 1021, 1022 (5th Cir. 1979)).
The Court agrees with the Magistrate Judge that Defendant’s broad constitutional claims
do not satisfy the first prong of the Rachel test. See Alabama v. Huffaker, No. 08–680, 2009 WL
197806, at *2 (S.D. Ala. Jan. 26, 2009) (pro se defendant alleging denial of equal protection and
due process in a child support proceeding “failed to allege adequate grounds for removal pursuant
to § 1443(1), because he cannot satisfy the first prong of the test”). In Huffaker, the removing
party argued he was denied equal protection and due process of law in the state court civil action
and that his fundamental rights as a parent were impaired by a petition to modify the divorce decree
filed by his former wife in the state court action. Id. at *1—2. In remanding the case, the Huffaker
court explained that the “federal judiciary has traditionally abstained from deciding cases
concerning domestic relations. As a result, federal courts generally dismiss cases involving
divorce and alimony, child custody, visitation rights, establishment of paternity, child support, and
enforcement of separation or divorce decrees still subject to state court modification.” Id. at *5
(quoting Ingram v. Hayes, 866 F.2d 368, 369 (11th Cir. 1988)). According to the Huffaker court,
retaining jurisdiction on removal would require the court to address the prior orders of the state
court and address “divorce and alimony, child custody, . . . child support, and enforcement of
separation or divorce decrees still subject to state court modification.” Id.
In Evans v. State of Florida Department of Revenue Child Support Enforcement, the
removing defendant argued, as grounds for removal under § 1443, that the state statutes the Florida
Department of Revenue (“DOR”) proceeded upon in state court were unconstitutional. 2010 WL
419399, at *1. The court held Evans failed to satisfy the first prong of the removal test, stating as
Although the right to due process arises under the Fourteenth Amendment, that
constitutional right is not a specific civil right couched in terms of racial equality,
rather, it is a broad constitutional guarantee of general application. Likewise,
Evans’ equal protection claim, that the DOR is treating him differently than
similarly situated non-custodial parents, is not based upon racial inequality, but
upon the broad constitutional guarantee of equal protection. Therefore, Evans’
broad assertions that his due process and equal protection rights were violated do
not provide a basis for removal under Section 1443.
Id. at *4.
In the instant case, Defendant’s claims are not based upon racial inequality. Defendant
asserts alleged violations of his due process rights (lack of pre-deprivation due process actually)
and equal protection rights into this removed case. However, as found by the Magistrate Judge,
Defendant has not demonstrated his claims arise under a federal law “providing for specific civil
rights stated in terms of racial equality.” Thus, Defendant fails to satisfy the first prong of the
Defendant also fails the second prong of the test, namely that he has been “denied or cannot
enforce” the specific civil rights in state court. Rachel, 384 U.S. at 794. Defendant has not shown
any Texas law or policy “prevents him from raising his federal claims or rights under the
Constitution, as either defenses or counterclaims,” in the State Court proceeding. Louisiana v.
Wells, 2015 WL 1276713, at *5 (M.D. La. Mar. 19, 2015), aff'd, 628 Fed. Appx. 260 (5th Cir.
2015). Nor has Defendant shown “how his civil rights, as they pertain to racial equality, would be
denied in state court in the instant action that is in question.” Id. (citing Paris v. GMAC Mortgage
Corp., No. 06–01489, 2006 WL 3201312, at *2 (D. Colo. Nov. 1, 2006) (denying removal of
eviction proceeding under 28 U.S.C. § 1443)). Defendant has not demonstrated the State Court
proceeding, which is subject to appellate review by other Texas courts, “will inevitably result in a
violation of [Defendant’s] rights under the Constitution.” Id.
Having considered each of Defendant’s objections (Dkt. #19), and having conducted a
de novo review, the Court is of the opinion that the findings and conclusions of the Magistrate
Judge are correct and adopts the Magistrate Judge’s report (Dkt. #12) as the findings and
conclusions of the Court.
Accordingly, it is ORDERED that Plaintiff’s Motion to Remand (Dkt. #11) is
GRANTED. The Court REMANDS this action to the 211th Judicial District Court, Denton
IT IS SO ORDERED.
SIGNED this 9th day of November, 2017.
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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