Payne v. Bexar County District Court et al

Filing 2

ORDER TO SHOW CAUSE as to Don A. Payne. Show Cause Response due by 10/4/2010. Signed by Judge Nancy Stein Nowak. (ga)

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Payne v. Bexar County District Court et al Doc. 2 U N IT E D STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF TEXAS S A N ANTONIO DIVISION D O N A. PAYNE, P la in tif f , v. B E X A R COUNTY DISTRICT COURT H O U SE , BEXAR COUNTY DISTRICT, C L E R K , JUDGE PETER SAKAI, in his official capacity; J U D G E JANET LITTLEJOHN, in her official capacity; R O D O L FO ORTA and ALANA PEARSALL, D e f e n d a n ts . C IV IL ACTION NO. S A -1 0 -C V -0 7 4 0 XR S H O W CAUSE ORDER T h e matter before the court is plaintiff Don A. Payne's request to proceed in forma pauperis (IFP ).1 In considering a motion to proceed IFP, the court must consider the merits of the plaintiff's claim s .2 Payne styled his complaint as a civil rights lawsuit under 42 U.S.C. 1983 and co m p lain ed about his state-court divorce proceedings. In his proposed amended complaint, Payne asserted that his "case is not about the divorce, marital issues or custody, but it is about the `p ersisten tly corrupt process' in the District court and violations of the U.S. Constitution."3 As defend ants, Payne named the Bexar County District Courthouse, the Bexar County District Clerk, Ju d ge Peter Sakai, Judge Janet Littlejohn, attorney Rodolfo Orta, and attorney Alana Persall. In 1 Docket entry # 1. See Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir. 1991) ("A district court may dismiss an in fo rm a pauperis proceeding as frivolous under 28 U.S.C. 1915(d) whenever it appears that the claim 's realistic chance of ultimate success is slight or the claim has no arguable basis in law or f a c t ." ) . 3 2 Proposed amended complaint, 33. co n sid erin g Payne's allegations, I observed that the allegations fail to state a claim under section 1 9 8 3 . This order directs Payne to show cause why his case should not be dismissed for failing to state a claim upon which relief may be granted. C laim s against Judge Sakai and Judge Littlejohn. In the proposed complaint, Payne co m p lain s about the denial of his application for a bill of review in Cause No. 2005-CI-17750, 2 8 5 th Judicial District, Bexar County, Texas. In Cause No. 2005-CI-17750, state-court Judge Lori M assey entered in a final decree of divorce, ending Payne's marriage to former wife Wilma. Payne so u gh t to set aside the divorce decree by petitioning for a bill of review in Cause No. 2008-CI07 78 8.4 In his petition, Payne claimed a lack of notice of divorce proceedings, asserted the denial o f due process, accused his divorce attorney of neglecting his case, and charged his former wife's atto rn ey with fraud. Judge Sakai denied the petition for bill of review. Payne attributed no allegatio n s to Judge Littlejohn, but indicated in Cause No. SA-10-CV-664 that Judge Littlejohn ab so lve d him of his child-support arrearages in Cause No. 2005-CI-17750. Payne seeks monetary d am a ges from Judge Sakai and Judge Littlejohn, and unspecified injunctive relief. To the extent P ayn e seeks monetary damages, "[j]udges are immune from damage claims arising out of acts p erfo rm e d in the exercise of their judicial functions, even when the judge is accused of acting m aliciou sly."5 To the extent Payne seeks injunctive relief, "federal courts have no authority to d irect state courts or their judicial officers in the performance of their duties."6 Payne's allegations The bill of review is attached to the report and recommendation filed in Cause No. SA-10-CV664. Mitchell v. McBryde, 944 F.2d 229, 230 (5th Cir. 1991). See Adams v. McIlhany, 764 F.2d 294, 2 9 7 (5th Cir. 1985) (`Absolute judicial immunity extends to all judicial acts which are not p erform ed in the clear absence of all jurisdiction."). Anderson v. Law Firm of Shorty, Dooley & Hall, No. 10-30032, 2010 WL 3448106, 1 (5th Cir. A u g. 26, 2010). See Johnson v. Bigelow, 239 Fed. App'x, 865, 865 (5th Cir. 2007) "[T]he federal 6 5 4 2 again st Judges Sakai and Littlejohn fail to state a claim. C laim s against Orta and Pearsall. The allegations in Payne's proposed amended complaint as to Orta and Pearsall mirror the allegations in Payne's petition for a bill of review. "To state a claim under 1983, a plaintiff must allege the violation of a right secured by the Constitution and law s of the United States, and must show that the alleged deprivation was committed by a person actin g under color of state law."7 "[T]he under-color-of-state-law element of [section] 1983 ex clu d es from its reach `merely private conduct, no matter how discriminatory or wrongful.'"8 P ayn e's allegations against Orta and Pearsall fail to state a claim under section 1983 because Orta an d Pearsall are not state actors. Orta was Payne's divorce attorney. Pearsall was Wilma's attorney. As such, Orta and Pearsall acted as private actors, not state actors. Section 1983 does not provide a m ean s to sue private actors like Orta and Pearsall. P ayn e's allegations against the Bexar County District Clerk. Payne's allegations against the B e x ar County District Clerk (Clerk) fail to state a claim because Payne failed to attribute any allegatio n to the Clerk. Thus, no basis exists for suing the Clerk under section 1983. P ayn e's allegations against the Bexar County Court House. Payne's allegations against the B e x ar County Court House fail to state a claim because the courthouse lacks the capacity to be su ed . C o u rt's order. Because Payne's allegations fail to state a claim, I direct Payne to show cause and explain why this case should not be dismissed. I ORDER Payne to respond to this order courts have no authority to direct state courts or their judicial officers in the performance of their d u t ie s . " ) . 7 West v. Atkins, 487 U.S. 42, 48 (1988). Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999). 8 3 in writing not later than October 4, 2010. If Payne fails to respond to this order by October 4, 2 0 1 0, I will deny the pending motions and recommend to the district judge that this case be dism issed for failure to comply with a court order and for failure to prosecute.9 S IG N E D on September 21, 2010. _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ N A N C Y STEIN NOWAK U N IT E D STATES MAGISTRATE JUDGE See Fed. R. Civ. P. 41(b) (permitting the defendant to move for dismissal on grounds the p laintiff failed to prosecute his case); Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241, 247 (5th Cir. 1980) (explaining that "a federal district court possesses the inherent authority to dismiss an action for want of prosecution"). 9 4

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