Schwarzer v. Shanklin et al
Filing
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MEMORANDUM OPINION AND ORDER. ORDERED that Defendants' motions to dismiss (Dkt. ## 9 , 10 ) are GRANTED, and the claims against them are DISMISSED with prejudice. All motions not previously ruled upon are DENIED. Signed by District Judge Amos L. Mazzant, III on 3/13/2019. (daj, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
MARK CLIFF SCHWARZER, #1433741,
Plaintiff,
v.
BRODY SHANKLIN, et al.,
Defendants.
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Civil Action No. 4:18cv434
MEMORANDUM OPINION AND ORDER
Pro se Plaintiff Mark Cliff Schwarzer filed a civil rights complaint pursuant to 42 U.S.C.
§1983. He claims Defendants violated his constitutional rights throughout the prosecution of his
criminal proceedings in Denton County, Texas. Plaintiff brings suit against Defendants in their
official and individual capacities and seeks prospective relief and any fees associated with the
lawsuit. This Memorandum Opinion and Order concerns Defendants Judge Shanklin’s and
Justice Keller’s motion to dismiss (Dkt. #9), as well as Defendants Adelstein, French, and
Johnson’s motion to dismiss (Dkt. #10).
BACKGROUND
Plaintiff brings suit against Judge Brody Shanklin, District Court Judge for the 211th
Judicial District Court in Denton County, Texas, and Justice Sharon Keller, justice of the Texas
Court of Criminal Appeals. He also brings suit against Denton County Clerk, Sherri Adelstein,
and Denton County Criminal District Attorney, Paul Johnson. Also included in the lawsuit is
Robert French, (now retired) Court Reporter for the 211th Judicial District Court in Denton
County, Texas.
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Plaintiff’s lawsuit arises from Plaintiff’s conviction of two counts of aggravated sexual
assault on April 13, 2007. The Second Court of Appeals affirmed Plaintiff’s conviction on June
12, 2008, and the Texas Court of Criminal Appeals denied his state habeas corpus application
without written order on July 12, 2017.
Plaintiff asserts he was coercively interrogated by a detective in 2006, who then
misrepresented his statements to a judge, which ultimately resulted in Plaintiff’s arrest. Plaintiff
contends that the grand jury’s indictment against him was based on perjured testimony. A
criminal trial was held in April, 2007, in which the State introduced a video of Plaintiff during
interrogation. The presiding judge at that time, L. Dee Shipman, ruled that Plaintiff’s
interrogation statements were voluntary. During closing arguments, the prosecutor stated
Plaintiff had confessed. Plaintiff asked defense counsel to object, but counsel told him that
objections were not allowed during closing arguments. A jury found Plaintiff guilty of
aggravated sexual assault.
After the appellate court affirmed Plaintiff’s conviction, he filed a state petition for writ
of habeas corpus. Plaintiff complained that the State made improper arguments, and Judge Brody
Shanklin, Judge Shipman’s successor, did not hold an evidentiary hearing. The record of the case
was transferred to the Texas Court of Criminal Appeals, but Plaintiff contends the record was
incomplete. He filed six motions, complaining he was not receiving sufficient process. Plaintiff
filed a motion to recuse Judge Shanklin, which was denied. Plaintiff also filed discovery motions
to which the district attorney responded, noting that “a governmental body is not required to
produce such [information] to an incarcerated individual,” citing to Section 552.028 of the Texas
Government Code. Plaintiff asserts that the exclusion cited applies to a request for information
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under the Freedom of Information Act – not a request made through the judicial system. He
states that the District Court ignored the motion and provided no response. Plaintiff also
complains that Judge Shanklin ordered to start the collection of court fees from Plaintiff before
Plaintiff completed his term of confinement.
Based on these assertions, Plaintiff brings claims against Defendants, contending that
their actions and inactions violated his due process rights. Plaintiff seeks “prospective
injunctions” from this Court to stop further violations of Plaintiff’s constitutional rights. Plaintiff
asks the Court to do the following:
1.
Order Judge Shanklin to recuse himself from all proceedings;
2.
Order Judge Shanklin (or his replacement) to grant Plaintiff’s motion for
discovery;
3.
Order Judge Shanklin (or his replacement) to grant Plaintiff’s motion for an
evidentiary hearing;
4.
Order Judge Shanklin (or his replacement) to re-review every ground raised in
Plaintiff’s state habeas corpus application;
5.
Order Judge Shanklin (or his replacement) to stop the collection of court fees;
6.
Order Clerk Adelstein to correctly process documents and respond timely to
Plaintiff’s requests;
7.
Order Clerk Adelstein to forward all documents concerning Plaintiff’s case to the
Texas Court of Criminal Appeals at the appropriate time;
8.
Order Justice Keller (or her alternate) to re-open Plaintiff’s state habeas corpus
application, and re-review it;
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9.
Order Justice Keller (or her alternate) to grant the motion for oral arguments;
10.
Order Court Reporter French to provide the “unadulterated reporter minutes” and
pay for a certified court reporter outside of Denton County to transcribe the
proceedings;
11.
Order Court Reporter French to divulge which sections of the Statement of Facts
were changed, and his reasoning for changing it;
12.
Order District Attorney Johnson to provide all the material requested in Plaintiff’s
motion for discovery within thirty days, in particular, transcripts from the Grand
Jury and any documents from the District Attorney’s office containing any
inference to a confession of the crimes;
13.
Order District Attorney Johnson and those in his office to stop slandering
Plaintiff;
14.
Order Defendants to reset the process concerning the state writ of habeas corpus;
15.
Order the costs of Plaintiff’s suit to be paid; and
16.
Any additional relief deemed just, proper, and equitable.
Defendants Judge Shanklin and Justice Keller filed a motion to dismiss because
Plaintiff’s case lacks standing, Plaintiff’s claims are barred by the Rooker-Feldman doctrine,
Plaintiff’s claims are barred by the Younger abstention doctrine, and Plaintiff’s claims against
the judicial defendants in their official capacities are barred by Eleventh Amendment immunity.
Defendants Adelstein, French, and Johnson filed a motion to dismiss based on Heck v.
Humphrey, the lack of personal involvement of Defendants in Plaintiff’s conviction, and
Eleventh Amendment immunity. Plaintiff filed a response to the motions to dismiss.
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STANDARDS - RULES 12(b)(1) and ELEVENTH AMENDMENT
This Court has an initial and continuing independent obligation under Fed. R. Civ. P.
12(b)(1) to review and dismiss cases in which it lacks subject-matter jurisdiction, even in the
absence of a challenge from any party. Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). Rule
12(b)(1) allows a court to dismiss the case whenever it appears the court lacks jurisdiction of the
subject matter. In fact, “[i]f the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). It is well established
that dismissals for lack of subject-matter jurisdiction may be ordered sua sponte. Arbaugh, 546
U.S. at 506.
Federal courts are courts of limited jurisdiction; without jurisdiction, they lack the power
to adjudicate claims. In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 668 F.3d 281, 286
(5th Cir. 2012) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).
Under Federal Rule of Civil Procedure 12(b)(1), a claim is “properly dismissed for lack of
subject-matter jurisdiction when the court lacks the statutory or constitutional power to
adjudicate” the claim. In re FEMA Trailer, 668 F.3d at 286. A court should consider whether it
has subject-matter jurisdiction pursuant to Rule 12(b)(1) before addressing any claims on the
merits. Id. A motion under Rule 12(b)(1) of the Federal Rules of Civil Procedure should be
granted only if it appears beyond doubt that the plaintiff cannot prove a plausible set of facts in
support of its claim. Lane v. Haliburton, 529 F.3d 548, 557 (5th Cir. 2008) (citing Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 556-57 (2007)). A district court may dismiss for lack of subjectmatter jurisdiction based on (1) the complaint alone; (2) the complaint supplemented by
undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the
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court’s resolution of disputed facts. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981) (en
banc). The party asserting federal jurisdiction continually carries the burden of proof to show it
exists. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam).
The Eleventh Amendment bars suit in federal court against a state, or its agencies or
departments, regardless of the relief requested. Pennhurst State Sch. & Hosp. v. Alderman, 465
U.S. 89, 100 (1984). Eleventh Amendment immunity confers immunity from suit, not merely
from liability. Id. at 100-02. The U.S. Supreme Court expressly acknowledges the importance of
protecting government time and witnesses in the context of immunity from suit. Ashcroft v.
Iqbal, 556 U.S. 662, 685 (2009) (basic thrust of the immunity doctrine is to free officials from
the concerns of litigation).
Discussion
In this case, Plaintiff asks that the Court order State judges and State employees to do
certain things, which he labels as “prospective injunctions.” These requests concern matters
within the scope of Defendants’ employment as State employees. However, federal district
courts are courts of limited statutory jurisdiction. Dunn-McCampbell Royalty Interest, Inc. v.
Nat’l Park Serv., 112 F.3d 1283, 1286 (5th Cir. 1997). The only federal statute concerning the
federal district court’s authority to issue writs of mandamus is 28 U.S.C. § 1361. That statute
specifically provides that district courts have original jurisdiction of any action in mandamus to
compel an officer or employee of the United States “or any agency thereof to perform a duty
owed to the plaintiff.” Defendants, in this case, are State Judges, a State District Attorney, a
State Court Reporter, and a State Clerk of the Court. As such, Defendants constitute agents of
the State of Texas. The State of Texas is not a federal officer, agent, or employee and is not
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subject to the statutory mandamus authority of this Court. Federal courts have no jurisdiction to
direct State courts or their judicial agents in the performance of their duties. Lamar v. 118th
Judicial Dist. Court of Tex., 440 F.2d 383, 384 (5th Cir. 1971); Moye v. Clerk, Dekalb Cty. Sup.
Ct., 474 F.2d 1275, 1275-76 (5th Cir. 1973) (a federal district court is not authorized to direct
state officials in the performance of their duties); Jackson v. Caddo Corr. Ctr., 235 F.3d 1340
(5th Cir. 2000) (unpublished), cert. denied, 531 U.S. 1157 (2001) (federal district courts may not
issue writs of mandamus to compel state officials to act in a given way).
To establish standing, Plaintiff must show (1) an actual or imminent concrete and
particularized “injury-in-fact” that is (2) fairly traceable to the challenged action of the
defendant, and (3) is likely to be redressed by a favorable decision. Friends of the Earth, Inc. v.
Laidlaw Envt’l. Serv. (TOC), Inc., 528 U.S. 167, 180-81 (2000). It is Plaintiff’s burden to
establish all three elements. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). Since
Plaintiff’s request for relief is unavailable, Plaintiff cannot establish standing because he cannot
establish an injury likely to be redressed by a favorable decision. Friends of the Earth, 528 U.S.
at 180-81.
Consequently, this Court lacks jurisdiction to entertain Plaintiff’s requests for relief.
The Court additionally notes that Plaintiff has sued State actors in their official
capacities. The Supreme Court has made it clear that the Constitution does not provide for
federal jurisdiction over suits against nonconsenting states. Kimel v. Fla. Bd. of Regents, 528
U.S. 62, 73 (2000). Neither Congress nor the State of Texas has waived Eleventh Amendment
immunity regarding Section 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 66
(1989) (“Congress, in passing § 1983, had no intention to disturb the States’ Eleventh
Amendment immunity.”). Plaintiff essentially asserts that the judges’ prior judicial decisions and
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the actions and inactions of other State staff violated his due process rights, and is asking this
Court to issue orders to compel the State officials to do certain things. It is well settled that
states and their officials acting in their official capacities are not “persons” under section 1983,
and therefore, Eleventh Amendment immunity is not abrogated by that statute. Id. at 71.
In conclusion, Plaintiff fails to establish standing; thus, Defendants’ motions to dismiss
must be granted. Plaintiff also fails to show that Defendants are not immune from suit under the
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Eleventh Amendment.
It is therefore ORDERED that Defendants’ motions to dismiss (Dkt. ## 9, 10) are
GRANTED, and the claims against them are DISMISSED with prejudice. All motions not
previously ruled upon are DENIED.
SIGNED this 13th day of March, 2019.
___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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