Opinion
No. 3:02-CV-0673-M
September 11, 2002
CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE UPON RECOMMITMENT
Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the United States District Court for the Northern District of Texas, Plaintiff's objections to the Findings, Conclusions and Recommendation of this Court entered May 2, 2002 ("Findings") have been noted by the District Court. The District Court recommitted this case to the United States Magistrate Judge for consideration of those objections. After considering Plaintiff's objections, the Court concludes that its Findings are correct and that the District Court should overrule Plaintiff's objections.
Plaintiff's Objection that Process Has Been Issued and that the District Court Would Be Obstructing Justice by Failing to Require Defendant to Answer on the MeritsOn April 1, 2002, Plaintiff filed suit against Katherine A. Thomas, Individually, and in her Official Capacity as Executive Director of the Board of Nursing Examiners for the State of Texas. The Court granted Plaintiff permission to proceed in forma pauperis. Proceedings in forma pauperis are governed by 28 U.S.C. § 1915(e)(2)(B), the pertinent terms of which provide:
Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . (B) the action or appeal — (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.
Accordingly, cases in which the plaintiff is proceeding in forma pauperis are subject to judicial screening before process may be issued. For this reason, in an order permitting Plaintiff to proceed in forma pauperis, Judge Boyle ordered that no process shall issue except upon further order of the Court. On April 19, 2002, Plaintiff requested the clerk to issue a summons and served Defendant before the judicial screening process had been completed. Accordingly, Plaintiff's objection that "process has been issued in the case contrary to a statement in this Court's Findings, Conclusions and Recommendation of May 2, 2002," is premised upon her own disobedience of Judge Boyle's April 19, 2002, order and is not a valid ground for objection. Plaintiff has presented no compelling reason for the Court to exempt her from the judicial screening process. Dismissal before an answer is filed is not an obstruction of justice, as Plaintiff contends. Rather, various federal statutes and the Federal Rules of Civil Procedure permit and often require summary dismissal. Plaintiff's objection in this regard is meritless.
In the Court's judicial screening process for cases proceeding in forma pauperis, if the Court determines that the defendant should be served, the Court will order the Clerk to issue summons and the United States Marshal to serve the summons, along with a copy of the complaint and any other pertinent pleadings. In this case, when the case was transferred to this United States Magistrate Judge, the Court did not know that the summons had been issued in contravention of Judge Boyle's order of April 12, 2002.
Plaintiff's Objection that this Case is Neither Frivolous nor Malicious and Contains Claims upon which Relief May be Granted
Initially, this Court reviewed Plaintiff's Complaint and the companion case of Brown v. the Texas Board of Examiners, No. 3:01-CV-2315-M (N.D. Tex. March 20, 2002) (dismissed for lack of subject matter jurisdiction). This Court concluded that this case could not survive the summary dismissal stage of the judicial screening process because it was frivolous or malicious within the meaning of 28 U.S.C. § 1915(e)(2)(B). (Findings at 3.) This Court explained that the present case — which arises out of identical facts and circumstances — is duplicative of the original case that the District Court dismissed for lack of subject matter jurisdiction. The present case was filed just ten days after the original case's dismissal.
Plaintiff appealed the dismissal by filing three separate notices of appeal, and those appeals are pending before the Fifth Circuit Court of Appeals. Brown v. Texas Board of Nursing Examiners, Nos. 02-1074, 01-1075, 02-1076 (5th Cir.)(pending).
In the dismissal order in Plaintiff's original case against the Texas Board of Nurse Examiners, the District Court described the factual predicate as follows:
Plaintiff is a registered nurse who formerly operated a home health care agency in De Soto, Texas. In June 1999, the Texas Board of Nursing Examiners ("Board") filed formal charges against her, alleging various violations of the Texas Nursing Practices Act. On June 16, 1999, Brown was notified of these charges by letter, and was directed to answer the allegations within twenty days and schedule an informal conference with an investigator by July 2, 1999. Brown allegedly did not receive this letter until July 2, 1999, and requested an informal conference shortly thereafter. This conference was scheduled for November 14, 1999, but Brown failed to attend.
On December 9, 1999, a hearing was held before an Administrative Law Judge ("ALJ" of the State Office of Administrative Hearings. Brown, again, failed to appear and the ALJ recommended, in a Proposal for Decision, that a default judgment be entered against her, revoking her nursing license. Brown objected to this recommendation, claiming that she never received notice of the administrative hearing and that she believed this matter had been closed and resolved. The ALJ rejected the objections as untimely.
In March 2000, the Board notified Brown, by certified mail, that the Proposal for Decision would be considered by the full Board at its April 2000 meeting. Although Brown received the notification seven days before the meeting, she failed to appear. The Board adopted the Proposal for Decision and revoked Brown's registered nurse license.
On May 15, 2000, Brown filed for judicial review in state district court. On April 25, 2001, District Judge Catharina Haynes dismissed the case, holding that the court lacked jurisdiction over Brown's claims because she did not timely file a motion for rehearing with the Board.
In July 2001, Brown appealed Judge Haynes' Order of Dismissal. On October 23, 2001, in a per curiam decision, the Dallas Court of Appeals dismissed Brown's appeal for want of prosecution. On October 19, 2001, while her appeal was pending, Brown filed a petition for writ of mandamus in the Dallas Court of Appeals, seeking a writ of mandamus to prevent the district court from dismissing her suit. On October 23, 2001, the Dallas Court of Appeals declined to issue the writ, holding that Brown was not entitled to the relief sought. On November 19, and December 5, 2001, Brown filed motions for rehearing of both decisions of the Court of Appeals. Both motions were denied. She did not appeal to the Texas Supreme Court.
Brown was charged with three violations of the Nursing Practice Act: (1) operating a branch facility in Houston, Texas, without a branch license from the Texas Department of Health; (2) refusing to allow a Texas Department of Health surveyor access to records; and (3) failing to respond to an administrative subpoena issued by the Board.
Under the Texas Administrative Code, objections to a proposal for decision must be filed within 15 days after the date of service of the proposal for decision. Brown was served with the proposal for decision by certified mail on February 7, 2000, but claims she did not receive it until February 23, 2000. Her objections, filed March 9, 2000, were considered untimely.
(Mem. Op. and Ord. at 1-3.) In the original case, Plaintiff sought dismissal of the board action, retroactive reinstatement of her nursing license, and costs. The District Court determined that although Plaintiff claimed she was bringing suit pursuant to 42 U.S.C. § 1983 for violation of her constitutional rights to due process and equal protection of the law, she was actually seeking review, modification, and nullification of a final order of a State Court. The District Court concluded that the Rooker-Feldman doctrine deprived the federal district court of subject matter jurisdiction. (Mem. Op. at 4.)
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 479 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).
The present suit contains the same allegations as the original suit and arises from the same circumstances. Again, Plaintiff purports to be bringing claims pursuant to 42 U.S.C. § 1983 for due process and equal protection violations. The only differences in the two suits are that in the present case, Plaintiff has sued the Executive Director of the Texas Board of Nursing Examiners, rather than the Board itself, and in addition to the relief sought in her initial lawsuit, she seeks actual and punitive damages.
It is well settled that complaints filed in forma pauperis may be dismissed as malicious when they seek to relitigate claims premised upon substantially the same facts arising from a common series of events upon which the plaintiff has relied in a previous lawsuit. Parker v. Fort Worth Police Dep't, 980 F.2d 1023, 1026 (5th Cir. 1993) (holding plaintiff proceeding pro se and in forma pauperis could not relitigate allegations raised in previous § 1983 action and complaint should be dismissed with prejudice as malicious pursuant to 28 U.S.C. § 1915(e)(2)(B)(1)); Pittman v. Moore, 980 F.2d 994, 994-95 (5th Cir. 1993) (prisoner's in forma pauperis civil rights action was "malicious" and subject to dismissal where it duplicated allegations in pending action in another district court); Wilson v. Lynaugh, 878 F.2d 846, 850 (5th Cir. 1989)( in forma pauperis complaint may be dismissed as frivolous if it seeks to relitigate claims which have been unsuccessfully litigated by the plaintiff).
In Bailey v. Johnson, 846 F.2d 1019, (5th Cir. 1988), a pro se plaintiff had sued a prison doctor for violation of his civil rights under 42 U.S.C. § 1983. The plaintiff, a prisoner, had previously brought a civil rights action under 42 U.S.C. § 1983 against several directors, administrative officials, and medical doctors, alleging improper and inadequate medical treatment. The district court had dismissed the earlier suit as frivolous. The district court summarily dismissed the second suit as duplicative. The plaintiff did not deny that the second suit duplicated the allegations in his earlier suit; he merely argued that the district court lacked authority to summarily dismiss a complaint that stated a cause of action. The Fifth Circuit Court of Appeals held that the district court did not abuse its discretion in dismissing the second action as duplicative of the prior litigation under 28 U.S.C. § 1915(d) and affirmed the district court's decision. Bailey, 846 F.2d at 1021.
Plaintiff argues, much as the plaintiff did in Bailey, that this case should not be dismissed because her complaint contains claims for which relief may be granted. (Pl's Resp. at ¶ II.) The Court's power of dismissal in cases in which the plaintiff is proceeding in forma pauperis is broader than in other civil cases under the Federal Rules of Civil Procedure. Bailey, 846 F.2d at 1021. The question before the Court is whether this case is duplicative of Plaintiff's original case. Plaintiff admits that the claims in this case are duplicative or the claims in her original case. (Pl's. Resp. at ¶ II.) Plaintiff argues this is necessary because her earlier case was dismissed before she could amend it to add additional defendants. (Pl's. Resp. at ¶ III.) Additionally, Plaintiff argues, without citation to any authority, that a case may not be dismissed as duplicative when the Court has made no final determination on the merits in the earlier case. In Bailey, 846 F.2d at 1021, — as in this case — the original case was not decided on the merits; rather it was dismissed at its nascent stage. Plaintiff's objections are meritless. The District Court should dismiss Plaintiff's complaint as malicious pursuant to 28 U.S.C. § 1915(e)(2)(B).
Plaintiff asserts the same claims in both cases. The District Court dismissed the first case for lack of subject matter jurisdiction. If the second case were to survive the judicial screening process, the Court would consider whether it has subject matter jurisdiction. The District Court would be unlikely to find the existence of subject matter jurisdiction with respect to the same claims simply because Plaintiff reasserted them against a different defendant.
Plaintiff's Objections With Respect To the Original Case
Plaintiff asserts that the District Court prematurely dismissed her original case. She claims the case should not have been dismissed without the defendant's being required to answer the complaint. She also claims she should have been allowed to amend her complaint in that case. These objections do not address this Court's Findings. Accordingly, they should be summarily overruled.
Plaintiff's Objections With Respect to State Agency Immunity and Subject Matter Jurisdiction
Plaintiff claims that in the original case the defendant claimed "immunity from prosecution" because the defendant was a state agency. Plaintiff claims that Defendant in this case, the Executive Director of the state agency, cannot claim immunity and that for this reason, the Court has subject matter jurisdiction. The Court will liberally construe this objection as a claim that the present suit is not duplicative of the original suit. Plaintiff supports her argument with a citation to Nix v. Norman, 879 F.2d 429 (8th Cir. 1989). In Nix, a former employee of the Arkansas Law Enforcement Training Academy brought an action for injunctive relief and damages against the state, the Arkansas Commission of Law Enforcement Standards and Training, and the director of the Academy, alleging that the director fired her from her job as secretary of the Academy because she expressed criticisms of the Academy to the governor, and that the stated reasons for her termination were false. Defendants moved to dismiss, based upon Eleventh Amendment immunity, and the trial court granted the motion. The plaintiff appealed, and the appellate court held that the plaintiff stated a First Amendment claim against the director under 42 U.S.C. § 1983 for relief in the form of an injunction clearing her employment record of any false allegations of improper behavior. In Nix, the trial court could have granted injunctive relief without interfering with a state court judgment. The dispute was between the state employer and its employee. Here, the District Court has determined in the original case that Plaintiff was attempting to effect an appellate challenge of state court judgments. Plaintiff argues that "[i]t is improper, malicious, and unethical for the Defendant to intentionally violate [her] constitutional right to equal protection under the law and then attempt to force the plaintiff to perfect a proper appeal in order to receive justice in this matter." Defendant did not make the law Plaintiff is attempting to circumvent. The Rooker-Feldman doctrine is rooted in the two decisions of the United States Supreme Court that have given the doctrine its name. See Feldman, 460 U.S. at 479; Rooker, 263 U.S. 413. The essence of the Rooker-Feldman doctrine is that the lower federal courts do not have the authority to review the judgments of the state courts even when a federal question is presented. Weekly v. Morrow, 204 F.3d 613, 615 (5th Cir. 2000) (holding federal courts lack jurisdiction to review, modify, or nullify final orders of state courts); Liedtke v. State Bar of Texas, 18 F.3d 315, 317 (5th Cir. 1994) (noting a plaintiff cannot circumvent the Rooker-Feldman doctrine by casting a complaint as a federal civil rights action). Litigants who believe that a state judicial proceeding has violated their constitutional rights must appeal that decision through their state courts and then to the United States Supreme Court. See 28 U.S.C. § 1257(a) (Final judgments . . . rendered by the highest court of a State . . . may be reviewed by the Supreme Court). Additionally, federal courts are precluded from considering claims that are inextricable intertwined with a state court judgment of reprimand. See Howell v. State Bar, 710 F.2d 1075, 1077 (5th Cir. 1983.) Whether Defendant may claim Eleventh Amendment immunity is not material to the District Court's determination that the Court lacked subject matter jurisdiction under the facts Plaintiff alleged. In the absence of subject matter jurisdiction, the District Court did not reach the defense of immunity. Accordingly, Plaintiff's objections that Defendant is not entitled to immunity and that Plaintiff should not be required to appeal the state decision through the state courts and then to the Supreme Court are without merit.
RECOMMENDATION
After considering Plaintiff's objections, this Court recommends that the District Court overruled Plaintiff's objections, accept its May 2, 2002, Findings, Conclusions, and Recommendation, and dismiss the case pursuant to 28 U.S.C. § 1915(e)(2)(B).