Du Bois v. Warne

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 8, 2009
No. 08-20682 Charles R. Fulbruge III
Summary Calendar Clerk
JACQUELINE C DU BOIS, Individually and for and on behalf of her minor
son AEW,
Plaintiff-Appellant
v.
JUDY L WARNE, Individually and in her Official capacity as Judge of the
257th District Court, Harris County TX, ALLYSON NASS BRUPBACHER,
Individually and in her Official capacity as Amicus for AEW appointed by the
257th District Court, Harris County TX; RONIQUE J BASTINE, Individually
and in her Official capacity as an Officer of the Court of the 257th District
Court, Harris County TX
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:08-CV-1336
Before REAVLEY, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Jacqueline Du Bois appeals from the district court’s dismissal of her
complaint raising claims under 42 U.S.C. §§ 1983 and 1985 and the denial of her
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-20682
motion for injunctive relief. Du Bois alleged that in an underlying state family
court matter the state judge and two attorneys conspired to conduct, and to
deprive her of proper notice of, state court proceedings. The conspiracy allegedly
resulted in adverse judicial orders concerning visitation and attorneys fees to be
paid by Du Bois to the amicus counsel. We AFFIRM the district court’s
judgment.
To avoid dismissal for failure to state a claim upon which relief can be
granted, a plaintiff must plead “‘enough facts to state a claim to relief that is
plausible on its face.’” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205
(5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct.
1955, 1974 (2007)). “Factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).” Bell Atl. Corp., 550 U.S. at 555,
127 S. Ct. at 1965 (quotation marks, citations, and footnote omitted).
Du Bois’s individual capacity claims against Defendant Warne, the state
district judge who presided over the disputed proceedings and entered the
contested orders, are barred by absolute immunity because Du Bois has alleged
no actions by Warne that were nonjudicial in nature. See Boyd v. Biggers, 31
F.3d 279, 284–85 (5th Cir. 1994). Immunity applies regardless whether the
judge’s actions were erroneous, malicious, or in excess of her authority. Mays v.
Sudderth, 97 F.3d 107, 111 (5th Cir. 1996). A judge’s immunity is overcome only
for actions not taken in the judge’s judicial capacity or for action taken in
complete absence of all jurisdiction. Boyd, 31 F.3d at 284. Du Bois asserts that
Warne lacked all jurisdiction in this case because the state court lacked personal
jurisdiction over her because she is a resident of Kansas. This amounts to
nothing more than arguing that the judge’s actions were improper.
To the extent Du Bois named Warne as a defendant in her official capacity,
the claims are barred by the Eleventh Amendment. See Davis v. Tarrant
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No. 08-20682
County, Tex., __ F.3d __, 2009 WL 931169, at *11 (5th Cir. Apr. 8, 2009) (“Texas
judges are entitled to Eleventh Amendment immunity for claims asserted
against them in their official capacities as state actors.”). The district court
properly dismissed the claims against Warne.
Du Bois argues that Defendant Bastine’s motion to dismiss was untimely
because it was filed after Bastine filed her answer. This argument is without
merit. Bastine sought not only dismissal for failure to state a claim but also, in
the alternative, for summary judgment. See F ED. R. C IV. P. 56; see also Jones v.
Greninger, 188 F.3d 322, 324 (5th Cir. 1999) (district court may treat an
untimely Rule 12(b)(6) motion as a Rule 12(c) motion for judgment on the
pleadings based on a failure to state a claim).
Du Bois argues that she has repeatedly stated numerous claims upon
which relief may be granted in both her original complaint and in her
subsequent pleadings. However, her complaint is premised on the alleged
deprivation of rights during the state court proceedings and raises nothing
beyond her subjective belief that the defendants sought to violate her rights.
Although Du Bois couches her claims in terms of a conspiracy, her conclusory
charges are unsupported by specific factual allegations and are insufficient to
state a constitutional violation under § 1983. See Mills v. Criminal District
Court No. 3, 837 F.2d 677, 679 (5th Cir. 1988). Du Bois alleges no factual basis
tending to show that Defendants Bastine and Brupbacher conspired with Judge
Warne. See Hale v. Harney, 786 F.2d 688, 690 (5th Cir. 1986). Similarly,
Du Bois alleges no basis for her allegation that she or her son has suffered race-
based discrimination, and she failed to state an equal protection violation under
§ 1985. See Lynch v. Cannatella, 810 F.2d 1363, 1369–70 (5th Cir. 1987)
(“Plaintiffs who assert conspiracy claims under civil rights statutes must plead
the operative facts upon which their claim is based. Bald allegations that a
conspiracy existed are insufficient.” (emphasis added)).
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No. 08-20682
Although Du Bois denies that she seeks review of any state court
proceedings, her claims are intertwined with alleged procedural errors in the
state court, including alleged lack of personal jurisdiction and insufficient notice,
errors which are improperly addressed in a federal district court. See Hale, 786
F.2d at 691. The same reasoning applies to her claims for injunctive relief.
Although immunity would not bar claims for prospective injunctive relief,
Du Bois’s claims here are intertwined with and necessarily implicate review of
state court orders the propriety of which must be pursued in the state appellate
system rather than on federal review. See id. The district court properly
dismissed Du Bois’s complaint.
AFFIRMED.
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