French v. Rowland et al

Filing 26

MEMORANDUM AND OPINION. Kyle French's claims against Judge Curvey, Judge Stalder, Caroline Marie Black, and Rebecca Elizabeth Rowland are dismissed because amendment would be futile 12 , 14 , 15 , 17 . The pending motions for a preliminary injunction 7 , emergency injunctive relief 11 , and for a stay pending the resolution of the motions to dismiss 22 , 23 are denied as moot. (Signed by Judge Lee H Rosenthal) Parties notified. (gmh4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
KYLE JAMES FRENCH,
Plaintiff,
v.
REBECCA ELIZABETH ROWLAND, et
al.,
Defendant.

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November 22, 2024
Nathan Ochsner, Clerk

CIVIL ACTION NO. H-24-03095

MEMORANDUM AND OPINION
Kyle French sues for alleged violations of his First Amendment, due process, and equal
protection rights. He claims that the defendants, Rebecca Elizabeth Rowland, Caroline Marie
Black, current Harris County judge Dianne Curvey, and former Harris County judge Barbara
Stalder, conspired to deprive him of his parental rights and have him incarcerated. He seeks
declaratory and injunctive relief, $90,000 in compensatory and punitive damages against Judge
Curvey, and an additional $90,000 in “statutory damages” under § 1983 against all the defendants.
(Id.).
Rowland, Black, Judge Curvey, and Judge Stalder all move to dismiss French’s claims, for
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and for lack of standing
under Rule 12(b)(1). (Docket Entry Nos. 10, 14, 15, and 17). Based on the pleadings, motions,
the record, and the applicable law, the motions are granted. The reasons are explained below.
I.

Background
French’s complaint contains a slew of allegations of constitutional violations against Judge

Curvey, Judge Stalder, Black, and Rowland relating to state court child custody proceedings

between Black and French. The court construes the motion as seeking redress under 42 U.S.C. §
1983, which provides litigants with the right to sue state and local government employees and
others acting “under color of state law” for civil rights violations. French alleges that on January
22, 2022, Judge Stalder issued a protective order against him. (Docket Entry No. 1 at 1). He
alleges that Black, an individual with whom he shares a child, “used the Protective Order to sway
the outcome of an underlying custody case” against him. (Id. at 2). He asserts that Black did so
to obtain child support and interfere with his “constitutionally protected parental rights.” (Id.). He
also claims that Judge Stalder instructed Rowland, an attorney, to file a motion for enforcement of
the protective order against him on September 21, 2022. (Id.). French argues that because of
Judge Stalder and Rowland’s “collusion,” he was incarcerated. (Id.). It appears that he was
incarcerated for violating the protective order.
French alleges that “despite the expiration of the plenary power to amend the protective
order,” Judge Curvey amended the protective order against him on February 23, 2023, without
affording him due process. (Id.). He alleges that the amendments restrict his freedom of speech
and “holds him to the discretionary power of the court.” (Id.).
French further alleges that on October 21, 2023, Judge Curvey engaged in “ex parte”
communications with him on his personal Facebook page, which showed her “personal
discrimination toward [his] moral integrity.” (Id.). He alleges that a few days later, on October
24, 2023, Judge Curvey had him illegally detained after an incident that involved a cake he gave
to court staff. (Id.).
French alleges that in December 2023, Black had Rowland file a motion to enforce the
protective order against him. (Id. at 2-3). Judge Curvey heard the motion. French alleges that
“many unlawful actions of the Court occurred” during this hearing, which resulted in his
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incarceration. (Id. at 3). French also claims that in April 2024, new charges were filed against
him in Fort Bend County for violating the protective order, which he characterizes as a “further
violation of his rights.” (Id.).
French seeks numerous forms of relief: (1) a declaratory judgment that the original and
amended protective orders violated the First Amendment; (2) a declaratory judgment that Judge
Stalder and Rowland “colluded to prosecute and wrongfully incarcerate[]” him; (3) a declaratory
judgment that the enforcement of the “void” contempt order violated French’s rights; (4) a
declaratory judgment that Black and Rowland “forum shopped” to unlawfully “affect” the child
custody case pending in Liberty County, Texas; (5) a letter to be sent to the Texas Bar Association
recommending sanctions and the removal of Rowland’s bar license; (6) a letter to be sent to the
State Commission on Judicial Conduct with complaints against Judge Curvey, including that she
refused to recuse herself even though “the conditions dictated such a response”; (7) an order that
Judge Curvey make a written public apology for her “official oppression” against French; (8) a
stay of the proceedings against French in Fort Bend County for violating the protective order
pending the outcome of this federal suit; (9) an order designating Rowland as a “vexatious litigant”
in all matters relating to French, his family, and his “immediate affiliates”; (10) an order stating
that any debts French owes to Rowland be dismissed, and “all monies previously paid to her be
returned”; (11) an order vacating the state court protective order issued by Judge Stalder and
amended by Judge Curvey; (12) and an order that Black be “remanded as Vexatious Litigant to
prevent future forum shopping for favorable judgments to negatively impact the plaintiff in any
manner, including child support.” (Docket Entry No. 1 at 3-4).
Judge Curvey and Judge Stalder were Presiding Judges of the 280th District Court of Harris
County during the period relevant to French’s claims. They each filed motions to dismiss,
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asserting Eleventh Amendment and judicial immunities. (Docket Entry Nos. 14, 15). Black and
Rowland filed motions to dismiss under Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1).
(Docket Entry Nos. 10, 17). French has not responded to any of the four motions to dismiss.
II.

The Legal Standards
A. Rule 12(b)(1)
Rule 12(b)(1) governs challenges to a federal court’s subject-matter jurisdiction.” FED. R.

CIV. P. 12(b)(1). “Under Rule 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 Formaldehyde Prods. Liab. Litig., 668 F.3d 281, 286 (5th Cir. 2012) (quotation
omitted). Courts may dismiss for lack of subject-matter jurisdiction based on: “(1) the complaint
alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the
complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Pickett
v. Tex. Tech Univ. Health Scis. Ctr., 37 F.4th 1013, 1019 (5th Cir. 2022) (quoting Williamson v.
Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). The plaintiff bears the burden of demonstrating that
subject-matter jurisdiction exists. See Ramming v. United States, 281 F.3d 158, 161 (5th Cir.
2001). When examining a factual challenge to subject-matter jurisdiction under Rule 12(b)(1),
which does not implicate the merits of a plaintiff's cause of action, the district court has substantial
authority “to weigh the evidence and satisfy itself as to the existence of its power to hear the case.”
Garcia v. Copenhaver, Bell & Assocs., M.D.'s P.A., 104 F.3d 1256, 1261 (11th Cir. 1997) (citation
omitted).
B. Rule 12(b)(6)
Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which relief can be
granted.” FED. R. CIV. P. 12(b)(6). Rule 12(b)(6) must be read in conjunction with Rule 8(a),
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which requires “a short and plain statement of the claim showing that the pleader is entitled to
relief.” FED. R. CIV. P. 8(a)(2). “[A] complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Rule 8 “does not require
‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).
“[W]hen the allegations in a complaint, however true, could not raise a claim of entitlement to
relief, this basic deficiency should be exposed at the point of minimum expenditure of time and
money by the parties and the court.” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (quoting
Twombly, 550 U.S. at 558).
“The pleadings of pro se litigants are held to a more lenient standard than those of attorneys
and are construed liberally to prevent a loss of rights that might result from inartful expression.”
Whitfield v. Am. Express Nat'l Bank, 2024 WL 1543236, at *2 (W.D. Tex. Apr. 9, 2024) (citing
Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)). “However, pro se plaintiffs
are required to plead factual allegations that rise above a speculative level, and courts should not
create causes of action where none exist.” Id. (citing Chhim v. University of Texas at Austin, 836
F.3d 467, 469 (5th Cir. 2016)).
III.

Analysis
A. French’s Claims against Black
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The court construes French’s motion to allege that Black violated French’s civil rights by
filing a protective order and a subsequent motion to enforce it. (Docket Entry No. 1 at 2-3). French
fails to state any plausible claim for relief against Black. French may not “sue [a] private citizen
not acting under color of state law for a federal civil rights violation.” Miller v. Allison, 2020 WL
13754904, at *1 (E.D. Tex. June 5, 2020); see also, Hagerty v. Succession of Clement, 749 F.2d
217, 221 (5th Cir. 1984) (“Section 1983 does not reach purely private conduct.”). His motion is
devoid of any allegations that Black acted under state law. French’s claims against Black under §
1983 are dismissed under Rule 12(b)(6).
B. French’s Claims Against Rowland
French alleges that Rowland violated his civil rights by representing Black. French alleges
that Rowland “abus[ed] the court to sway child custody matter” and “colluded” with Judge Stalder,
who purportedly told him to file the protective order on behalf of Black against him. (Docket
Entry No. 1 at 1-2). These allegations do not support an inference that Rowland acted under color
of state law, as needed to state a claim for civil rights violations. See Dennis v. Sparks, 449 U.S.
24, 28 (1980) (“[M]erely resorting to the courts and being on the winning side of a lawsuit does
not make a [private] party a joint actor with the judge”); Lara v. Shannon, 2014 WL 5297782, at
*4 (N.D. Tex. Oct. 15, 2014), aff’d, 602 F. App’x 1007 (5th Cir. 2015) (“Private attorneys who
conspire with state actors may face liability under § 1983 …. [h]owever, to state a conspiracy
claim under § 1983 requires [the] plaintiff to set forth specific facts that tend to show an agreement
among the defendants to commit an illegal act”) (quoting reference omitted). French’s claims
against Rowland, a private citizen not acting under color of state law, fail for the same reasons his
claims against Black failed. French’s claims against Rowland under § 1983 are dismissed under
Rule 12(b)(6).
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C. Claims against Judge Curvey
Judge Curvey is currently a Presiding Judge of the 280th District Court of Harris County.
(Docket Entry No. 14 at 1). French’s complaint alleges that Judge Curvey modified an unlawful
protective order entered against him, engaged in discriminatory ex parte communications with
him, and had him detained after he brought the court staff a cake that may (or may not) have
contained fecal matter. (Docket Entry No. 1 at 2). The complaint names Judge Curvey as a
defendant in both her individual and official capacities. (Id. at 1). Judge Curvey argues that
French’s claims are barred by the Eleventh Amendment, judicial immunity, and the abstention
doctrine, and that he fails to state a claim upon which relief can be granted. (Id. at 2).
The court agrees. French’s claims for monetary damages against Judge Curvey are barred
by judicial immunity. “[J]udicial officers are entitled to absolute immunity from claims for
damages arising out of acts performed in the exercise of their judicial discretion.” Boyd v. Biggers,
31 F.3d 279, 284 (5th Cir. 1994). This immunity applies even when, as French alleges here, the
judge allegedly acted with malice or in bad faith. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991).
The only exception is if the plaintiff alleges that the judge’s actions were nonjudicial in nature, or
if the judge acted in the complete absence of jurisdiction. Id. French’s complaint is devoid of,
and precludes, such allegations. Judicial immunity is a complete bar to French’s claims for
monetary relief against Judge Curvey.
Any claims for injunctive relief that French asserts against Judge Curvey for acts taken in
her judicial capacity under § 1983 are also barred. See, e.g., Whole Woman’s Health v. Jackson,
13 F.4th 434 (5th Cir. 2021) (“Since 1996, Section 1983 precludes injunction actions against
judicial officers acting in their judicial capacity.”). To the extent that French asks the court to
enter an order compelling Judge Curvey, or other state court judges, to take a particular action, it
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cannot do so, “because federal courts lack the power to direct state court judges in the performance
of their duties.” Mills v. Tidwell, 2023 WL 11780958, at *2 (E.D. Tex. Sept. 26, 2023), report and
recommendation adopted, 2024 WL 2750009 (E.D. Tex. May 29, 2024) (citing LaBranche v.
Becnel, 559 Fed. Appx. 290, 290 (5th Cir. 2014)). And under the Rooker-Feldman doctrine, this
court cannot review French’s complaints of injuries caused by state court judgments entered
against him by Judge Curvey or other state court judges. See Morris v. Wells Fargo Bank, 2017
WL 499922, *957-58 (5th Cir. 2017) (“[B]ecause [the plaintiff] is complaining of injuries caused
by a state-court judgment, the district court lacked subject matter jurisdiction under the RookerFeldman doctrine”) (alterations adopted) (quoting references omitted).
“The federal civil rights laws do not provide a vehicle to attack state court judgments nor
to sanction the conduct of state court judges for actions taken within the scope of their judicial
authority.” Bogney v. Jones, 904 F.2d 272, 274 (5th Cir. 1990). Each of French’s claims against
Judge Curvey must be dismissed, either for lack of jurisdiction or for failure to state a claim upon
which relief can be granted under Rules 12(b)(1) and 12(b)(6).
D. Claims against Judge Stalder
Judge Stalder was the Presiding Judge of the 280th District Court of Harris County during
the period relevant to French’s claims. (Docket Entry No. 15 at 1). French alleges that Judge
Stalder conspired with Rowland to deprive him of his constitutional rights by instructing Rowland
to file a motion for enforcement of judgment against him. These allegations arise from Judge
Stalder’s performance of judicial duties. The claims against Judge Stalder are barred for the same
reason as the claims against Judge Curvey.
E. Other Claims

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French also seeks other forms of relief not addressed above. Specifically, he asks the court
to send a letter to the Texas Bar Association recommending sanctions and the removal of
Rowland’s bar license based on her actions in state court proceedings. This court cannot do so.
See In re Lothian Oil, Inc., 531 F. App'x 428, 445 (5th Cir. 2013) (federal court’s “inherent power
to punish bad-faith conduct does not extend to actions in a separate state court proceeding”).
Nor can this court grant French’s request to review Judge Curvey’s purported failure to
recuse herself. See, e.g., Bobrowsky v. Yonkers Courthouse, 777 F. Supp. 2d 692, 714 (S.D.N.Y.
2011) (“a judge’s decision to recuse (or not to recuse) is . . . a judicial act” subject to judicial
immunity).
As to French’s request that the court designate Rowland and Black as vexatious litigants
and restrict their ability to take further actions in state court, the court sees no basis to do so.
“[R]esorting to the inherent power to sanction a vexatious litigant [is] appropriate where there [is]
repeated bad-faith conduct that [is] beyond the reach of the Federal Rules of Civil Procedure.”
Moses v. Cantu, 2023 WL 2527159, at *3 (E.D. Tex. Mar. 15, 2023) (citing Newby v. Enron Corp.,
302 F.3d 295, 301-02 (5th Cir. 2002)). Aside from a handful of conclusory allegations, French
provides no basis to conclude that Rowland or Black have repeatedly engaged in bad faith conduct
that warrants the sanctions he seeks.
Finally, French asks the court to issue injunctions ordering that any debts French owes to
Rowland be dismissed and “all monies previously paid be returned.” French’s allegations fail to
identify any factual basis or legal authority for such an order. This request is denied.
IV.

Conclusion
Kyle French’s claims against Judge Curvey, Judge Stalder, Caroline Marie Black, and

Rebecca Elizabeth Rowland are dismissed, with prejudice, because amendment would be futile.
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The pending motions for a preliminary injunction, (Docket Entry No. 7), emergency injunctive
relief, (Docket Entry No. 11), and for a stay pending the resolution of the motions to dismiss,
(Docket Entry No. 23), are denied as moot.

SIGNED on November 22, 2024, at Houston, Texas.

________________________________
Lee H. Rosenthal
United States District Judge

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