Ratliff v. Nix et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS for 19 Report and Recommendations of the United States Magistrate Judge. Ordered that 13 Motion to Dismiss filed by Randal L. McDonald, and 8 Motion to Dismiss filed by Roxie W. Cluck are GRANTED. The claims against Roxie W. Cluck and Randal L. McDonald are DISMISSED with prejudice. Signed by Judge Robert W. Schroeder, III on 2/16/2017. (gsg)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BETTY COZETTE NIX, et al.
CIVIL ACTION NO. 6:16cv1030
ORDER ADOPTING REPORT AND
RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
The Report and Recommendation of the Magistrate Judge, which contains her findings,
conclusions, and recommendation for the disposition of the motions to dismiss has been presented
The Report and Recommendation (ECF 19), filed on January 4, 2017,
recommends that Defendant Roxie W. Cluck’s Motion to Dismiss (ECF 8) and Defendant Judge
Randal L. McDonald’s Motion to Dismiss (ECF 13) be granted and that the claims against these
defendants be dismissed with prejudice.
Plaintiff filed written objections to the Report and
Recommendation on February 10, 2017.
Having made a de novo review of the written objections filed by Plaintiff in response to
the Report and Recommendation, the Court concludes that the findings and conclusions of the
Magistrate Judge are correct and the objections are without merit. Plaintiff’s objections re-urge
her claim that Ms. Cluck and Judge McDonald acted fraudulently in the handling of her father’s
estate in state court. The facts alleged by Plaintiff against Judge McDonald solely concern Judge
McDonald’s judicial actions in the case. As a result, he is entitled to absolute immunity. See
Monroe v. Pape, 365 U.S. 167, 184 (1961); accord, Brown v. Miller, 631 F.2d 408, 410–11 (5th
Cir. 1980). Moreover, Plaintiff has not alleged any facts showing that Ms. Cluck acted under of
color of state law. Plaintiff’s claim against Ms. Cluck pursuant to 42 U.S.C. § 1983 fails to state
a claim upon which relief may be granted. To the extent Plaintiff is now asserting a state law claim
of fraud against Ms. Cluck, Plaintiff has not alleged facts to support diversity jurisdiction pursuant
to 28 U.S.C. § 1332. It is therefore
ORDERED that the Report and Recommendation (ECF 19) is ADOPTED. Defendant
Roxie W. Cluck’s Motion to Dismiss (ECF 8) and Defendant Judge Randal L. McDonald’s Motion
to Dismiss (ECF 13) are GRANTED. The claims against Roxie W. Cluck and Randal L.
McDonald are DISMISSED with prejudice.
SIGNED this 16th day of February, 2017.
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE
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