Paup v. State Of Texas et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS. The Court ADOPTS the Magistrate Judge's Recommendation. Larra Ann Green, John Ric Freeman, The Honorable Carter W. Tarrance, Donna Bennett, Retired Judge George Martinez, the State of Texas, Attorney Ge neral Kenneth Paxton, and Dr. Julian Davis's Motions to Dismiss are GRANTED; Plaintiff's federal claims against them are DISMISSED with prejudice; and Plaintiff's state law claims against them are DISMISSED without prejudice. The Court also ADOPTS the Magistrate Judge's Recommendation that Plaintiff's federal claims against Visiting Judge John Marshall are DISMISSED with prejudice, sua sponte, and that Plaintiff's state law claims against Visiting Judge John Marshall are DISMISSED without prejudice, sua sponte. Signed by Judge Robert W. Schroeder, III on 03/27/17. (mll, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
DAVID CRAIG PAUP,
STATE OF TEXAS, et al.,
CASE NO. 6:16-CV-417-RWS-KNM
ORDER ADOPTING REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
The Report and Recommendation of the Magistrate Judge, which contains her
recommendation regarding Larra Ann Green, John ‘Ric’ Freeman, The Honorable Carter W.
Tarrance, Donna Bennett, Retired Judge George Martinez, the State of Texas, Attorney General
Kenneth Paxton, and Dr. Julian Davis’s (“Defendants”) Motions to Dismiss under Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6), has been presented for consideration. Docket No. 47
(“Report”). The Report recommends that: Defendants’ Motions to Dismiss be granted; Plaintiff’s
federal claims against Defendants be dismissed with prejudice; and Plaintiff’s state law claims
against Defendants be dismissed without prejudice. Docket Nos. 13–15, 17, 21 and 22. The Report
also recommends that Plaintiff’s federal claims against Visiting Judge John Marshall be dismissed
with prejudice, sua sponte, and that Plaintiff’s state law claims against him be dismissed without
prejudice, sua sponte.
David Craig Paup (“Plaintiff” or Paup”) filed a “Demand for Jury Trial/Request for Pretrial
Conference.” Docket No. 50. Paup also filed an “Objection/Amended Demand for a Jury
Trial/Request [and for a] Pretrial Conference” (collectively, “objections” or “written objections”).
Docket No. 51. The Court treats both of these documents as Plaintiff’s written objections to the
Report. The Defendants did not file a Response to Plaintiff’s objections. Having made a de novo
review of the written objections filed by Plaintiff to the Report, the Court concludes that the
findings and conclusions of the Magistrate Judge are correct and the objections are without merit.
For the reasons below, Plaintiff’s objections are OVERRULED.
Plaintiff’s Objections to the Report
Plaintiff first objects that:
[(1)] [t]his case should not be dismissed with two defendants seeking relief
under FRCP 12(b)(1) and 12(b)(6). Further, the Court should not seek
dismissal of Rooker-Feldman due in part of excessive fraudulent tactics.
Nor should the Court seek dismissal under res judicata [sic] in future
proceedings. Courts such as the United States Court of Appeals for the
Sixth Circuit and others have determined that Rooker-Feldman does not
prevent the lower federal courts from reviewing state-court judgments that
were allegedly procured through fraud. [(2)] Further, the United States
Fourth Circuit Court did not hold that either it or the district court lacked
jurisdiction of such matters under “diversity of citizenship.” [(3)] Fraud
language is exist[ing] and found throughout all filings by the Plaintiff. The
listed defendants recklessly, with pretense failed to provide the following
without all consents for Magistrate judge to make any swift just ruling are
listed as follows numerous excerpts listed as follows and I request to compel
objection to the scrutiny of all the defendants [sic] . . . . Also all State Court
Orders were achieved by fraud, malice, and/or mistake by the defendants.
Irreparable economic, social, fundamental damages should at face be
recoverable by the United States Federal Court Order.
Docket No. 51 at 2–3.
As to Plaintiff’s first point, he cites no authority for the proposition that the “Sixth Circuit
and others have determined that Rooker-Feldman does not prevent the lower federal courts from
reviewing state-court judgments that were allegedly procured through fraud.” See generally
Docket No. 51. Indeed, the Report includes a thorough discussion and analysis of the RookerFeldman doctrine and its applicability to appeals from state court orders even when brought in the
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context of federal claims such as §§ 1983 and 1985. Report at 14. This Court finds that Plaintiff’s
claims in this lawsuit are inextricably intertwined with the final judgment issued by the 392nd
District Court of Henderson County, and, as such, are barred by the Rooker-Feldman doctrine. Id.
Second, Plaintiff argues that this Court has subject-matter jurisdiction over this Complaint
through diversity of citizenship under 28 U.S.C. § 1332. However, diversity jurisdiction does not
exist in this case because two of the Defendants, Green and Freeman, reside in the same state as
Paup. Report at 15.
Plaintiff’s third objection is directed to the Report’s conclusion that Plaintiff’s fraud claims
should be dismissed for failure to state a claim with particularity under Rule 9(b). 1 See generally
Docket Nos. 50, 51. However, Plaintiff cites to no filing nor does he provide specific examples of
the “fraud language” that he asserts is “found throughout all filings by the Plaintiff.”2 Docket No.
51 at 2–3. Plaintiff’s unsupported statements do not satisfy the particularity requirement of Rule
9(b).3 Docket Nos. 50, 51.
Plaintiff then objects that:
[t]his cause of action is further brought under the Removal of the State Court
for federal question and also The Federal Tort Claims, United States
Constitution, and Diversity of Citizenship and shows cause of fraud, tort,
civil right denials, discrimination as well. . . .
Docket No. 51 at 3. Here again, Plaintiff objects to the recommendation that the entire case be
dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction. The Court recognizes that
In his pleadings, Plaintiff alleges fraud against Dr. Davis and Bennett. See generally Docket Nos. 1, 10. The
Magistrate Judge recommended dismissing these claims under Rule 12(b)(6) for failure to state a claim with
particularity under Rule 9(b). Report at 19, 22, 25. The Court presumes that Plaintiff’s objection is in reference to
the Magistrate Judge’s recommendation that Plaintiff’s fraud claims be dismissed as to both Defendants.
The Court presumes that Plaintiff intended to state, “Fraud language is exist[ing] and found throughout all filings by
the [Defendants]”, instead of “by the Plaintiff.” Docket No. 51 at 3.
The Report recommended dismissal of Plaintiff’s fraud claim against Dr. Davis because Plaintiff did not provide the
time and place of her allegedly fraudulent activities, and against Bennett because Plaintiff did not provide the time,
place, and contents of his allegedly false statements. Report at 22, 24.
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some of Plaintiff’s claims arise under the United States Constitution and the Civil Rights Act and,
thus, might be appropriately heard in federal court under federal question jurisdiction pursuant to
28 U.S.C. § 1331.
But Plaintiff’s claims, including those arising under the United States
Constitution and the Civil Rights Act, are inextricably intertwined with the underlying state-court
judgment and are thus barred by the Rooker-Feldman doctrine. Report at 14.
Plaintiff’s reliance on the Federal Tort Claims Act to establish subject matter jurisdiction
over his Complaint is similarly unavailing because the Federal Tort Claims Act allows persons
injured by the negligence of federal employees acting within the scope of their employment to sue
the federal government. 28 U.S.C. § 1346(b). Plaintiff does not allege facts in his filings to suggest
that any federal employee acted negligently towards him.4
Plaintiff next objects that “[t]he State of Texas, or Officials cannot or should not accuse a
lack of jurisdiction to hear this complaint against the state brought under federal law.” Docket No.
51 at 5 (citing Alden v. Maine, 119 S.Ct. 2240, (1999); Coll. Sav. Bank v. Florida Prepaid
Postsecondary Educ. Expense Bd., 119 S.Ct. 2219 (1999); Howlett v. Rose, 110 S.Ct. 2430
(1990)).5 Plaintiff’s reliance on all three cases is misplaced. In Alden v. Maine, the Supreme Court
Moreover, Plaintiff’s renewed argument that this Court has subject matter jurisdiction over his Complaint through
diversity of citizenship fails for the reasons described on page 3 of this Order.
On this point, Plaintiff additionally states:
[i]n my case and just [l]ooking at the Texas Family Code, in its disgusting form to
intentionally hurt families [sic], children and only generate revenue for the state and state
actors, [u]nder Alden v. Maine, state’s statutes may reveal authority to enforce federal
claims against the state in state court. The State of Texas, or [o]fficials cannot or should
not accuse [sic] a lack of jurisdiction to hear this complaint against the state brought under
federal law. This can be found and is referred in Howlett v. Rose, [in which] the Supreme
Court held that a state court cannot apply a state sovereign immunity defense to defeat
jurisdiction against a federal claim under Section 1983. Also I referenced above Alden v.
Maine, [t]he Court’s decision in Alden that the state cannot be sued in state court, even on
federal claims, without its consent, does not undermine the Court’s holding in Howlett,
because Alden was based on state sovereign immunity, not the authority of state courts to
refuse to hear federal claims. . . . Also with reference to this case, referring to the case [sic],
College Savings Bank v. Florida Prepaid Postsecondary Education Board, 527 U.S. 666,
676 (1999). The Supreme Court of the United States indicated that a state may choose to
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held that state sovereign immunity prevents a non-consenting state from being sued in state court
for violations of federal law. 119 S.Ct. at 2243. The Supreme Court noted that to allow Congress
to bring a non-consenting state into state court when Congress could not do so in federal court
would nullify the doctrine of sovereign immunity. Id. In Howlett, the Supreme Court determined
that the state-law defense of sovereign immunity was unavailable to a school board, noting that
because the school board was not an arm of the state, the defense would be unavailable if the action
had been brought in a federal forum. 110 S.Ct. at 2432. In College Savings Bank, the Supreme
Court held that Congress may not abrogate state-sovereign immunity in the Patent Remedy Act
through Section 5 of the Fourteenth Amendment of the Constitution. 119 S.Ct. at 2221. Plaintiff’s
reliance on Howlett and Alden is misplaced because both of those cases addressed the propriety of
asserting the sovereign-immunity defense in state court, and the instant case is in federal court.
Plaintiff’s reliance on College Savings Bank is similarly misplaced because, unlike that case, the
instant case does not involve the Patent Remedy Act.6
Plaintiff finally states that he:
[s]eeks monetary and declaratory judgment that . . . [the] Tex. Fam. Code 154.001 is
unconstitutional that provides [sic] trial court judge to deprive a parent of property
and children without appropriate 4th Amendment protections and creates a class of
parent subject to quasi-criminal and criminal sanctions. Further is an overreach in
the scope of fundamental rights impacted by the imposition of such duty. Further
fails to protect Plaintiff and children of fundamental rights [sic].
waive sovereign immunity in state but not in federal court for a given claim. If the United
States District Court in the Eastern District of Texas could refer this [sic].
Docket No. 51 at 5.
To this end, Plaintiff also states:
in federal court, a state or state official claiming immunity has a right to an interlocutory
appeal if the district court rejects the immunity defense. If an appeal is filed, proceedings
against the appealing defendants come to a halt, and the district court has discretion to
stay or limit proceedings against other defendants.
Docket No. 51 at 5 (citing Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139
(1993)). However, because the Report recommended dismissing the Complaint against the State of
Texas, Attorney General Paxton, and Judge Tarrance under the Eleventh Amendment doctrine of
sovereign immunity, this argument is irrelevant. Report at 1.
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Docket No. 51 at 4 (emphasis added).7
Here, it is unclear what portion of the Report Plaintiff is objecting to. In his Amended
Complaint, Plaintiff states that “[t]he Texas Family Code may actually violate the federal
[C]onstitution.” Docket No. 10 at 6. Furthermore, in his Response to the Defendants’ Motions to
Dismiss, Plaintiff briefly alludes to, without naming, the Ex parte Young exception to the Eleventh
Amendment doctrine of sovereign immunity.8 Docket No. 18 at 2. However, Plaintiff alleged no
supporting facts in either document and did not specify which Defendant he is accusing of violating
the federal Constitution. See generally id.
In his written objections, Plaintiff appears to reargue that the Ex parte Young exception
applies in this case. Docket No. 51 at 4. In his objections, Plaintiff supplies additional facts
suggesting that the “trial court judge” violated his “4th Amendment protections.” Docket No. 51
at 4. Based on Plaintiff’s reference to “trial court judge,” the Court assumes Plaintiff is objecting
to the Report’s recommendation that his claims against Judge Tarrance be dismissed under Rule
12(b)(1) pursuant to the Eleventh Amendment doctrine of sovereign immunity.
Even assuming that Plaintiff is correct that the Ex parte Young exception does not deprive
this Court of Rule 12(b)(1) subject matter jurisdiction over his claims against Judge Tarrance,
Plaintiff’s objections fail to address the Report’s alternative basis for dismissal under Rule 12(b)(6)
as to Judge Tarrance, based on the doctrine of judicial immunity. As analyzed in the Report, all of
Plaintiff’s claims against Judge Tarrance arise from actions taken in his judicial capacity, including
allowing hearings, issuing restraining orders, and denying motions. Report at 19–20.
Section 154.001 of the Texas Family Code enumerates the requirements for court-ordered child support.
The Ex parte Young exception to the Eleventh Amendment doctrine of sovereign immunity states that federal courts
have subject matter jurisdiction over suits that challenge the constitutionality of a state official’s actions in enforcing
the law. Ex parte Young, 209 U.S. 123 (1908).
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Plaintiff’ Remaining Assertions
Plaintiff also makes a category of statements in his written objections which do not directly
object to or address the Report. Plaintiff first provides quotations from cases. 9 Plaintiff then
reasserts arguments previously considered by the Magistrate Judge.10
Plaintiff contends that “the Report and Recommendation (Docket No. 47) [s]tates Judge
Tarrance and Judge Marshall not being listed as presiding over the case was made [in] error by the
court or by unknowing mistake .” Docket No. 51 at 2. Plaintiff’s generic statement that the Court
erred fails to address the Report’s bases for dismissal against Judge Tarrance and Judge Marshall.
See generally Report.
Plaintiff also alleges claims of discrimination, perjury, and sexual favors. Docket No. 50
at 1. To the extent Plaintiff raises these and any other brand new claims in his objections, they are
not properly before the Court. Stangel v. Sparkman, 2007 WL 2725382, at *1 (E.D. Tex. Sept. 18,
2007) (“It is noted that the plaintiff is trying to raise new claims in his objections, but issues raised
for the first time in objections to a Report and Recommendation are not properly before the Court.”)
(Davis, J.) (citing Cupit v. Whitley, 28 F.3d 552, 535 n. 5 (5th Cir. 1994); United States v.
Armstrong, 951 F.2d 626, 620 (5th Cir. 1992)).
For the aforementioned reasons and for the reasons stated in the Report, the Court
ADOPTS the Magistrate Judge’s Recommendation that: Larra Ann Green, John ‘Ric’ Freeman,
Specifically, Plaintiff cites to case law related to, for example, the First Amendment, Fourteenth Amendment, the
Supremacy Clause, a parent’s fundamental right to care for his or her children and to make child rearing decisions,
the responsibility of state and federal judges to protect persons from violations of federal constitutional rights,
malicious prosecution and abuse of process, professional liability, aiding and abetting a client’s breach of fiduciary
duty, malicious prosecution and abuse of process, and the Erie Doctrine. See generally Docket No. 50 and 51.
For instance, Plaintiff states “[t]he State of Texas, judges, all defendants tried to cover up fraud. From denial of
civil rights, conspiracy . . . mental child abuse and judicial abuse.” Docket No. 50 at 1. See also Docket No. 51 at 1
(“The listed defendants in this case either intentionally or falsely withheld facts, easier and quicker ways to prevent
toxic abuse and for covering the accused fraud and financial gains.”).
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The Honorable Carter W. Tarrance, Donna Bennett, Retired Judge George Martinez, the State of
Texas, Attorney General Kenneth Paxton, and Dr. Julian Davis’s Motions to Dismiss be
GRANTED; Plaintiff’s federal claims against them be DISMISSED with prejudice; and
Plaintiff’s state law claims against them be DISMISSED without prejudice. The Court also
ADOPTS the Magistrate Judge’s Recommendation that Plaintiff’s federal claims against Visiting
Judge John Marshall be DISMISSED with prejudice, sua sponte, and that Plaintiff’s state law
claims against Visiting Judge John Marshall be DISMISSED without prejudice, sua sponte.
SIGNED this 27th day of March, 2017.
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE
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