Upton v. Abbott
REPORT AND RECOMMENDATIONS that the District Court DISMISS WITHOUT PREJUDICE FOR WANT OF JURISDICTION Upton's 1 Complaint. Signed by Judge Andrew W. Austin. (klw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
ROBERT E. UPTON #803710
REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
THE HONORABLE SAM SPARKS
UNITED STATES DISTRICT JUDGE
The Magistrate Judge submits this Report and Recommendation to the District Court
pursuant to 28 U.S.C. §636(b) and Rule 1(f) of Appendix C of the Local Court Rules of the United
States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to
United States Magistrates, as amended, effective December 1, 2002.
Before the Court is Plaintiff’s complaint. Plaintiff, proceeding pro se, has been granted leave
to proceed in forma pauperis.
STATEMENT OF THE CASE
At the time he filed his complaint pursuant to 42 U.S.C. § 1983, Plaintiff was confined in the
Dalhart Unit of the Texas Department of Criminal Justice - Correctional Institutions Division.
According to Plaintiff, the Attorney General continues to charge child support even though Plaintiff
is incarcerated and is charging interest on the amount owed. According to Plaintiff, he currently
owes $63,000 in back child support. He requests the amount be decreased to $39,000.00, the “actual
amount owed.” Plaintiff sues the Texas Attorney General.
DISCUSSION AND ANALYSIS
Plaintiff’s complaint should be dismissed for want of jurisdiction. It is well settled that, as
a jurisdictional matter, “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.” Hale v. Harney, 786
F.2d 688, 691 (5th Cir. 1986). The Rooker-Feldman doctrine provides that “federal district courts,
as courts of original jurisdiction, lack appellate jurisdiction to review, modify, or nullify final orders
of state courts.” Weekly v. Morrow, 204 F.3d 613, 615 (5th Cir. 2000). The doctrine applies to
“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 (2005). Plaintiff
appears to be challenging the state court’s judgment ordering child support payments. Plaintiff’s
action should be dismissed under Rooker-Feldman, as an improper collateral attack on a state court
Alternatively, Plaintiff’s complaint should be dismissed for failure to state a claim upon
which relief can be granted. Section 1983 provides, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.
“The first inquiry in any § 1983 suit, therefore, is whether the plaintiff has been deprived of a right
‘secured by the Constitution and the laws.’” Baker v. McCollan, 443 U.S. 137, 140 (1979); Green
v. State Bar of Texas, 27 F.3d 1083, 1087 (5th Cir. 1994). “By its terms, of course, the statute
creates no substantive rights; it merely provides remedies for deprivations of rights established
elsewhere.” Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985) (citing Baker, 443 U.S. at 140, 144
n.3). Plaintiff has not alleged a violation of his constitutional rights. He simply alleges child support
or interest on child support due should not accrue while he is incarcerated.
It is therefore recommended that Plaintiff’s complaint be dismissed without prejudice for
want of jurisdiction. Alternatively, Plaintiff’s complaint should be dismissed with prejudice for
failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e).
It is further recommended that Plaintiff be warned that if Plaintiff files more than three
actions or appeals while he is a prisoner which are dismissed as frivolous or malicious or for failure
to state a claim on which relief may be granted, then he will be prohibited from bringing any other
actions in forma pauperis unless he is in imminent danger of serious physical injury. See 28 U.S.C.
In the event this Report and Recommendation is accepted, adopted or approved, it is
recommended that the Court direct the Clerk to e-mail a copy of its order and judgment to the Pro
Se Clerk for the United States District Court for the Eastern District of Texas.
Within 14 days after receipt of the magistrate judge’s report, any party may serve and file
written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636
(b)(1)(C). Failure to file written objections to the proposed findings and recommendations contained
within this report within 14 days after service shall bar an aggrieved party from de novo review by
the district court of the proposed findings and recommendations and from appellate review of factual
findings accepted or adopted by the district court except on grounds of plain error or manifest
injustice. Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996)(en banc); Thomas
v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-277 (5th Cir. 1988).
To the extent that a party has not been served by the Clerk with this Report and
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is
ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
SIGNED this 29th day of September, 2014.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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