Bazile v. Moore et al
MEMORANDUM AND ORDER (Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CHERRIE M. BAZILE,
ROY L. MOORE, et al.,
May 31, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. 4:17-01035
MEMORANDUM AND ORDER
Plaintiff Cherrie M. Bazile filed this case on April 3, 2017, seeking to regain
custody of one of her children. Complaint [Doc. # 1]. Plaintiff proceeds pro se and
in forma pauperis. See Order [Doc. # 7]. The time for service of process has not yet
expired. The docket does not yet reflect service of process by Plaintiff on any
Defendant and no Defendant has appeared. Preliminary review of the Complaint
reveals that the Court has no authority to rule on Plaintiff’s claims and the case must
LEGAL BASIS FOR REVIEW
The Court screens this case sua sponte to determine whether the Court may
exercise subject matter jurisdiction. 28 U.S.C. § 1915(e)(2)(B).1 A federal court has
Section 1915(e)(2)(B) requires dismissal of frivolous actions brought in forma
jurisdiction to determine its own jurisdiction. See Trinity Marine Prod., Inc. v. U.S.,
812 F.3d 481, 486 (5th Cir. 2016); Smith v. Reg’l Transit Auth., 756 F.3d 340, 347
(5th Cir. 2014). This Court has the “‘responsibility to consider the question of subject
matter jurisdiction sua sponte if it is not raised by the parties and to dismiss any action
if such jurisdiction is lacking.’” Crutchfield v. Sewerage & Water Bd. of New
Orleans, 829 F.3d 370, 375 (5th Cir. 2016) (quoting Giannakos v. M/V Bravo Trader,
762 F.2d 1295, 1297 (5th Cir. 1985)). See FED. R. CIV. P. 12(h)(3) (“If the court
determines at any time that it lacks subject-matter jurisdiction, the court must dismiss
Plaintiff’s Complaint refers to, and attaches some documentation from, family
law proceedings in the 245th Family Court of Harris County.2 Her Complaint names
five Defendants: (1) Judge Roy L. Moore, 245th Family Court of Harris County; (2)
pauperis whether or not the plaintiff is a prisoner. See Newsome v. EEOC, 301 F.3d
227, 231 (5th Cir. 2002); James v. Richardson, 344 F. App’x 982, 983 (5th Cir.
The Court takes judicial notice of the proceedings in Juan Ismael Lopez Salgado v.
Cherrie Bazile, Cause No. 2015-58188, in the 245th Family Court of Harris County,
Texas. Lopez Salgado filed the suit on September 30, 2015, and the case was tried
on the merits on April 4, 2016. The suit concluded on April 29, 2016, when the court
entered default judgment against Bazile. Plaintiff’s Complaint attaches documents
purporting to be from the Child Support Division of the Attorney General of Texas,
and indicating that Plaintiff’s account is in arrears for child and medical support
payments owed by Plaintiff since May 1, 2016. Complaint, at 24.
Judge James Cooper, 245th Family Court of Harris County; (3) Eraka Watson, an
attorney who previously represented Plaintiff in the custody dispute about which
Plaintiff currently complains; (4) Rebecca Rowland, an attorney who represented the
father of Plaintiff’s child in the same custody dispute; and (5) Julio Rodriguez, also
known as Juan Salgedo, the father of Plaintiff’s child and the plaintiff in the custody
Plaintiff alleges in her Complaint that her child, who is two years old, “has been
signed over to an illegal citizen” and that despite her notifications to Defendants, she
has been “ignored by everyone.” Complaint, at 8. She claims that Judge Moore told
her she would go to jail if she “went looking” for the child. She alleges that, when she
did not receive a court summons, Judge Cooper called her and told her that he would
send officers to take her to jail if she did not appear in court within two hours. She
maintains that Rowland, an attorney for the child’s father, told her that if she did not
transfer the child to his father, the police would take Plaintiff to jail for kidnapping.
She further alleges that Watson, her attorney, did not appear for court and took
Plaintiff’s money but never did any work on Plaintiff’s case. Id. at 8-9.
Complaint states, “I am not looking for money . . . I just want my son back.” Id. at
“‘Federal courts are courts of limited jurisdiction.’” Settlement Funding, L.L.C.
v. Rapid Settlements, Ltd., 851 F.3d 530, 537 (5th Cir. 2017) (quoting Howery v.
Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001)). This Court “‘must presume that
a suit lies outside this limited jurisdiction, and the burden of establishing federal
jurisdiction rests on the party seeking the federal forum.’” Id. (quoting Howery, 243
F.3d at 916). There are two types of federal jurisdiction: diversity jurisdiction and
federal question jurisdiction.
Diversity jurisdiction exists when the amount in controversy exceeds
$75,000.00, exclusive of interest and costs, and there is complete diversity of
citizenship between the parties. 28 U.S.C. § 1332; see Vantage Drilling Co. v. HsinChi Su, 741 F.3d 535, 537 (5th Cir. 2014). The statutory requirement for “complete
diversity” of citizenship means that a “federal court cannot exercise diversity
jurisdiction if one of the plaintiffs shares the same state citizenship as any one of the
defendants.” Stiftung v. Plains Marketing, L.P., 603 F3d. 295, 297 (5th Cir. 2010)
(citing Whalen v. Carter, 954 F.2d 1087, 1094 (5th Cir. 1992)). Plaintiff’s Complaint
does not establish diversity jurisdiction under 28 U.S.C. § 1332(a). Plaintiff provides
Texas addresses for herself and all Defendants, and her allegations suggest that both
she and each Defendant are Texas residents.3 Moreover, Plaintiff does not claim an
amount in controversy more than $75,000. Plaintiff’s Complaint does not adequately
allege a basis for diversity jurisdiction. See Howery, 243 F.3d at 919 (“Failure
adequately to allege the basis for diversity jurisdiction mandates dismissal.”).
In addition, Plaintiff has not demonstrated that the Court has “federal question”
jurisdiction over her claims. Plaintiff does not assert any claims arising under the
United States Constitution, laws, or treaties of the United States. See 28 U.S.C.
§ 1331; Settlement Funding, 851 F.3d at 535 (“”Under the well-pleaded complaint
rule, a federal court does not have federal question jurisdiction unless a federal
question appears on the face of the plaintiff's well-pleaded complaint.’” (quoting Elam
v. Kan. City S. Ry. Co., 635 F.3d 796, 803 (5th Cir. 2011)).
Even construing Plaintiff’s Complaint liberally to assert that her federal civil
Although Plaintiff states in her Complaint, at 4, that she is a citizen of Louisiana, she
also states that her address is in Houston. Complaint, at 1. Moreover, she clearly has
resided in Houston since at least 2015, when the custody proceedings commenced.
For purposes of diversity jurisdiction, Plaintiff’s citizenship “‘has the same meaning
as domicile,’” and conveys “‘permanent residence in a particular state with the
intention of remaining.’” Veranda Assocs., L.P. v. Hooper, 496 F. App’s 455, 457
(5th Cir. 2012) (quoting Stine v. Moore, 213 F.2d 446, 448 (5th Cir. 1954)). “In
determining a litigant's domicile, the court must address a variety of factors,”
including “the places where the litigant exercises civil and political rights, pays taxes,
owns real and personal property, has driver's and other licenses, maintains bank
accounts, belongs to clubs and churches, has places of business or employment, and
maintains a home for his family.” Coury v. Prot, 85 F.3d 244, 251 (5th Cir. 1996).
Given Plaintiff’s Houston address and the fact that she has lived here since at least
2015, Plaintiff’s allegations do not adequately establish Louisiana citizenship.
rights were violated by the custody proceedings, Plaintiff may not challenge the
Family Court rulings and judgment in this Court. The Supreme Court has long held
that state courts must resolve constitutional questions that arise during their
proceedings. Dist. of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462 (1983);
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). If the state trial court errs in
deciding the constitutional issues, the judgment is not void, but the appropriate state
appellate court must correct it. Rooker, 263 U.S. at 416. The Rooker-Feldman
doctrine thus deprives federal courts of subject matter jurisdiction in “cases brought
by state-court losers complaining of injuries caused by state-court judgments rendered
before the district court proceedings commenced and inviting district court review and
rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544
U.S. 280, 284 (2005). Unsuccessful state court litigants “‘may not obtain review of
state court actions by filing complaints about those actions in lower federal courts cast
in the form of civil rights suits.’” Turner v. Cade, 354 F. App’x 108, 111 (5th Cir.
2009) (quoting Hale v. Harney, 786 F.2d 688, 690-91 (5th Cir. 1986)).
Additionally, to the extent Plaintiff brings claims that rely on Defendants’
conduct during the family court proceedings, Defendants are immune. “A judge
generally has absolute immunity from suits for damages.” Davis v. Tarrant County,
Texas, 565 F.3d 214, 221 (5th Cir. 2009) (citing Mireles v. Waco, 502 U.S. 9, 9-10
(1991)). Federal courts have no authority to issue injunctive relief directing state
courts or their judicial officers in the performance of their duties. See LaBranche v.
Becnel, 559 F. App’x 290 (5th Cir. 2014) (citing Holloway v. Walker, 765 F.2d 517,
525 (5th Cir. 1985); Moye v. Clerk, DeKalb Cnty. Superior Court, 474 F.2d 1275,
1276 (5th Cir. 1973)). Similarly, under Texas law, attorneys are immune from suit for
conduct during litigation in order to “safeguard the unfettered exercise of judgment
in the judicial system by protecting the person exercising it not only against liability
but also against incurring the costs of defending a lawsuit.” Troice v. Proskauer Rose,
L.L.P., 816 F.3d 341, 346 (5th Cir. 2016) (under Texas law, attorney immunity is an
immunity from suit, and not a defense to liability). See also Kinney v. Weaver, 367
F.3d 337, 352 & n.17 (5th Cir. 2004) (en banc) (“absolute immunity . . . protects
witnesses from civil liability arising from their testimony”).
For all the foregoing reasons, the Court holds that it lacks subject matter
jurisdiction under the doctrine of Rooker-Feldman and its progeny, as well as binding
authority regarding immunity from suit. Therefore it is hereby
ORDERED that this suit is DISMISSED without prejudice for lack of
subject matter jurisdiction.
SIGNED at Houston, Texas, this 31st day of May, 2017.
NAN Y F. ATLAS
STATES DISTRICT JUDGE
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