Swindall V. Baker

Filing 15

REPORT AND RECOMMENDATIONS re 10 Motion to Proceed in forma pauperis filed by Michael P. Baker. The undersigned RECOMMENDS that the district judgeREMAND this action to state court, DENY AS MOOT all pending motions, and close this case. DENYING AS MOOT 10 MOTION to Proceed in forma pauperis filed by Michael P. Baker. Signed by Judge Andrew W. Austin. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
MICHAEL P. BAKER
V.
ERIKA C. SWINDALL

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A-16-CV-1155-RP

ORDER ON IN FORMA PAUPERIS STATUS AND
REPORT AND RECOMMENDATION ON THE MERITS OF THE CLAIMS
TO:

THE HONORABLE ROBERT PITMAN
UNITED STATES DISTRICT JUDGE
Before the Court is Plaintiff Michael P. Baker’s Application to Proceed In Forma Pauperis

and Financial Affidavit in Support (Dkt. No. 10); as well as the various documents he filed in
support of his removal of this case, styled In the Interest of [S.K.S.] a Child, No. D-1-FM-002632,
from the 126th Judicial District Court, Travis County. The District Court referred the motion to the
undersigned Magistrate Judge pursuant to a standing order of the Court and 28 U.S.C.
§ 636(b)(1)(A), Federal Rule of Civil Procedure 72, and Rule 1(c) of Appendix C to the Local Rules
of the United States District Court for the Western District of Texas.
I. APPLICATION TO PROCEED IN FORMA PAUPERIS
Baker’s financial affidavit indicates that until February 2016, he earned $13,000 per month
in wages, and that in the past twelve months he also received $5,760 in unemployment
compensation. Dkt. No. 10 at 2. The affidavit indicates that he has been unemployed since February
of 2016, and has a wife and several children. However, the documents from the removed state court
action, recently filed with the Court, show that on September 28, 2016, Erika Swindall filed a motion
for enforcement of child support orders for their daughter, arguing that Baker is in contempt of a
court order for failing to notify Swindall he had obtained employment. Dkt. No. 14-2 at 47 ¶ 10.

It thus appears that the Court has inadequate information to determine if Baker is entitled to proceed
in this Court as a pauper. The Court need not reach that issue, however, as it is clear from the face
of the pleadings filed by Baker that the Court lacks subject matter jurisdiction over this case, and that
it should be remanded to state court. Accordingly, the Court DENIES Plaintiff Michael P. Baker’s
Application to Proceed In Forma Pauperis (Dkt. No. 10) as MOOT.
II. JURISDICTION
When a case has been removed to federal court, the removal statute directs that “[i]f at any
time before final judgment it appears that the district court lacks subject matter jurisdiction, the case
shall be remanded.” 28 U.S.C. § 1447(c). “[F]ederal courts must address jurisdictional questions
whenever they are raised and must consider jurisdiction sua sponte if not raised by the parties.”
Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001). Though a court may not sua sponte
remand a case for procedural defects, the court must remand a case if it determines that it lacks
subject matter jurisdiction. Coleman v. Alcolac, Inc., 888 F. Supp. 1388, 1394 (S.D. Tex. 1995).
Prior to removal this case was pending in the 126th Judicial District Court for Travis County.
The case is a suit affecting the parent-child relationship of a child born April 30, 2015. On
September 22, 2016, the state court entered a document titled Order in Suit Affecting the ParentChild Relationship. Dkt. No. 14-2. It states that Baker acknowledged paternity of the child, it
adjudicates him the father, and requires him to pay the child’s mother, Erika Swindall, $2,736.00 in
back child support. Id. The order further requires that Baker inform Swindall if he obtains
employment, and once employed, orders Baker to hand over his first three paychecks toward the
arrearage balance. Id. at 20. Six days after the entry of the order, on September 28, 2016, Swindall
filed a motion seeking to enforce this order, in which she alleged, among other things, that Baker was
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in contempt for failing to pay support in accordance with the order and for failing to inform Swindall
that he had obtained employment. Id. at 47 ¶ 10. Swindall requested that Baker be held in contempt
of court, jailed, and fined. On September 29, 2016, Travis County District Judge Amy Clark
Meachum entered an order requiring Baker to appear in court on October 20, 2016, and respond to
Swindall’s motion. In a plain attempt to avoid that hearing, on October 17, 2017, Baker removed
the paternity case to this Court.
In addition to his notice of removal and request to proceed as a pauper, Baker filed six other
pleadings:
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Notice of Constitutional Questions to Federal Statute 28 USC 1443 (Dkt. No. 3)

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Memorandum of Law Clarifying Established Federal Jurisdiction (Dkt. No. 5)

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Notice of Pre-emptive Constitutional Challenge to the Unlawful Discrimination of
Separate Racial Classes via Georgia v. Rachel (Dkt. No. 6)

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Notice of Pending Amendment of Petition into Full Complaint (Dkt. No. 7)

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Notice of Special Pro Se Litigant Rights (Dkt. No. 8)

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Notice Distinguishing Between the Two Basic Types of Removal; and Motion for
Issuance of Preliminary Relief in the Alternatives (Dkt. No. 9)

Without belaboring the point, in brief, Baker argues that his removal of the case to federal court is
proper because, in its treatment of him in the family court matter, the state court violated his civil
rights, violated his constitutional rights , abused its power, and did not afford him due process. Baker
complains that the child support award was unjust as it classified him as the “non-custodial parent,”
awarded “regular portions of my money to be paid to [Swindall],” Dkt. No 1 at 12, and “created a
legally fictitious civil debt of child support.” Id. at 15. Without repeating the many allegations of
all of these pleadings, in brief, Baker contends that because of constitutional rights were violated by

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the state court, he has the right to remove the paternity and child support proceedings to federal
court.1
Pro se complaints are liberally construed in favor of the plaintiff. Haines v. Kerner, 404 U.S.
519, 520-521 (1972). The court must “accept as true factual allegations in the complaint and all
reasonable inferences that can be drawn therefrom.” Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996).
However, a petitioner’s pro se status does not offer him “an impenetrable shield, for one acting pro
se has no license to harass others, clog the judicial machinery with meritless litigation, and abuse
already overloaded court dockets.” Farguson v. Mbank Houston N.A., 808 F.2d 358, 359 (5th Cir.
1986).
Even giving Baker the benefit of the doubt, this case is plainly subject to dismissal for lack
of jurisdiction. First, under the domestic relations exception to federal jurisdiction, federal courts
have traditionally refused to adjudicate cases involving marital status or child custody issues. Rykers
v. Alford, 832 F.2d 895, 899 (5th Cir. 1987). This well-settled and longstanding doctrine is based
on the principles that: (1) the state courts have greater expertise and interest in domestic matters;
(2) such disputes often require ongoing supervision, a task for which the federal courts are not suited;
(3) piecemeal adjudication of such disputes increases the chance of different court systems handing
down incompatible decrees; and (4) such cases serve no particular federal interest, while crowding
the federal court docket. Id. at 899-900. “If the federal court must determine which parent should

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Baker appears to have borrowed liberally from someone else’s work in his pleadings. For
example, in his primary brief (“Memorandum of Law Clarifying Established Federal Jurisdiction”),
he contends that he is “within his federal rights to bring a federal court tort action for civil damages
over the past several years’ worth of undue interference with the parent-child relationship rights he
was supposed to have with his son. . . .” Dkt. No. 5 at 6 (emphasis original). Given that this is not
a tort case, that the child at issue in the state court case is a female, and she was born in April of this
year, it is apparent that Baker is borrowing briefing from some source.
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receive custody, what rights the noncustodial parent should have, how much child support should
be paid and under what conditions, or whether a previous court’s determination on these matters
should be modified, then the court should dismiss the case.” Id. at 900.
Moreover, under the Rooker–Feldman doctrine the Court lacks jurisdiction over what is
plainly an attempt by Baker to attack an order entered against him in state court. As the Fifth Circuit
has explained:
The Supreme Court has definitively established, in what has become known as the
Rooker–Feldman doctrine, that federal district courts, as courts of original
jurisdiction, lack appellate jurisdiction to review, modify, or nullify final orders of
state courts. If a state court errs the judgment is not void, it is to be reviewed and
corrected by the appropriate state appellate court. Thereafter, recourse at the federal
level is limited solely to an application for writ of certiorari to the United States
Supreme Court.
Weekly v. Morrow, 204 F.3d 613, 615 (5th Cir. 2000) (internal quotations and footnotes omitted).
Federal courts frequently apply the doctrine to bar federal jurisdiction over family law matters such
as child support and divorce proceedings. See, e.g., Gorzelanczyk v. Baldassone, 29 F. App’x 402,
403–04 (7th Cir. 2002) (finding suit challenging contempt order enforcing child support order barred
by Rooker–Feldman); Laskowski v. Attorney Gen. of Tex., 2006 WL 2479101, at *2 (S.D. Tex. Aug.
25, 2006) (finding suit challenging child support arrearages barred by Rooker-Feldman). The general
principle of the Rooker-Feldman doctrine—that a federal court lacks power to hear “cases brought
by state-court losers complaining of injuries caused by state-court judgments rendered before the
district court proceedings commenced and invoking district court review and rejection of those
judgments”—is on all fours with the facts of this case. Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280, 284 (2005). Baker was ordered by a state court to make child support
payments, he failed to do so, and the state court ordered him to appear and explain that failure. He

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now desires to attack those orders in federal court on due process or other constitutional grounds.
The Rooker-Feldman doctrine forbids this Court from permitting such an attack.
III. ORDERS AND RECOMMENDATIONS
Based upon the foregoing, the undersigned RECOMMENDS that the district judge
REMAND this action to state court, DENY AS MOOT all pending motions, and close this case.
The Court further RECOMMENDS that the district judge WARN Baker that the continued pursuit
of groundless removal claims could result in an order requiring him to pay “just costs and any actual
expenses, including attorney fees, incurred as a result of the removal,” as permitted by 28 U.S.C.
§ 1447(c).
IT IS LASTLY ORDERED that this cause of action be REMOVED from the
undersigned’s docket and RETURNED to the docket of the Honorable Robert Pitman.
IV. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing objections
must specifically identify those findings or recommendations to which objections are being made.
The District Court need not consider frivolous, conclusive, or general objections. See Battle v.
United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150–53, 106 S. Ct. 466,

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472-74 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en
banc).
SIGNED this 3rd day of November, 2016.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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