Opinion
5-22-CV-01277-JKP-RBF
04-11-2023
KIERA MATHIS, MINOR OFFSPRINGS; Plaintiff, v. BEXAR COUNTY, JUDGE RICHARD GARCIA, ARLENE HERRERA, Defendants.
Honorable Jason Pulliam United States District Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
RICHARD B. FARRER UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation concerns Plaintiff Kiera Mathis's pro se Application to Proceed in District Court Without Prepaying Fees or Costs and Amended Complaint. See Dkt. Nos. 1, 11. The Application and related matters were automatically referred for disposition, pursuant to 28 U.S.C. § 636(b) and the October 8, 2019, Standing Order regarding Court Docket Management of Cases Involving Applications to Proceed in Forma Pauperis for the San Antonio Division of the Western District of Texas. Authority to enter this Order and recommendation stems from 28 U.S.C. § 636(b)(1). For the reasons stated below, Mathis's Amended Complaint, Dkt. No. 11, should be DISMISSED as frivolous, pursuant to 28 U.S.C. § 1915(e).
Factual and Procedural Background
Mathis alleges multiple constitutional violations stemming from a 2019 investigation by the Texas Department of Family and Protective Services. See Dkt. Nos. 3, 5, 7, 11. In June or July of 2019, Department caseworker Arlene Herrera sought emergency temporary custody of Mathis's children due to allegations of neglect. Judge Richard Garcia authorized emergency removal after an ex parte hearing on August 27, 2019. Judge Garcia found, in pertinent part, that:
there is an immediate danger to the physical health or safety of the children or the children have been the victims of neglect or sexual abuse or trafficking under §§ 20.A.02 or 20.A.03, Penal Code, on one or more occasions and that continuation in the home of KIERA MATHIS, JAMAL NEWTON, MARK SHELTON JR or CECIL WRIGHT JR would be contrary to the children's welfare ....Dkt. No. 7 at 8. Mathis's children were temporarily removed from her custody by Herrera two days later. Judge Garcia then held a hearing with Mathis in attendance on September 16, 2019. When the Department was unable to substantiate the neglect allegations, Mathis's children were returned to her custody. Mathis later filed suit against the Department in both state and federal court, alleging violations of her constitutional rights. Both cases were ultimately dismissed.
Mathis filed the instant application to proceed in forma pauperis (“IFP”) on November 21, 2022. See Dkt. No. 1. Mathis's proposed complaint asserted various constitutional violations under 42 U.S.C. § 1983 against Bexar County, Judge Garcia, and Herrera, as well as violations of several federal statutes, all stemming from the events of 2019. See Dkt. No. 7. The Court subsequently ordered Mathis to show cause why her complaint should not be dismissed as time-barred, frivolous, and duplicative of her earlier litigation efforts. See Dkt. No. 6.
In response, Mathis filed an Amended Complaint, narrowing and clarifying her claims against each Defendant. See Dkt. No. 11. While Mathis has dropped her non-viable claims asserting violations of the False Claims Act and Parental Rights and Responsibilities Act of 1995, she adds a claim for common-law fraud against Judge Garcia. Mathis reasserts her § 1983 constitutional violations against all Defendants and includes a section on Monell municipal liability. Mathis does not otherwise address or attempt to distinguish this action from her earlier lawsuits.
Section 1915(e) Analysis
The Court previously set forth the law governing the process of screening IFP complaints pursuant to 28 U.S.C. § 1915(e). See Dkt. No. 6 at 3. An action is “frivolous” where there is no arguable legal or factual basis for the claims. Neitzke v. Williams, 490 U.S. 319, 325 (1989). And an IFP action is “malicious” where “it is virtually identical to and based on the same series of events as a claim previously brought by the plaintiff.” Shakouri v. Davis, 923 F.3d 407, 410 (5th Cir. 2019); see McGee v. Acevedo, 849 Fed. App'x 133, 134 (5th Cir. 2021) (affirming dismissal as malicious where claims were “essentially identical to an earlier action that was dismissed with prejudice”). Courts may also raise sua sponte and dismiss IFP actions for “affirmative defenses that are apparent from the record.” Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990).
A. Judge Garcia Has Absolute Immunity from Mathis's Claims.
As previously noted in the Court's Order to Show Cause, Dkt. No. 6, judges performing duties in their judicial capacity are immune from suit. “Absolute judicial immunity extends to all judicial acts that are not performed in the clear absence of all jurisdiction.” Malina v. Gonzales, 994 F.2d 1121, 1124 (5th Cir. 1993). Mathis alleges that Judge Garcia violated her constitutional rights by granting an ex parte request for emergency removal of her children. See Dkt. No. 11 at 3-7. Mathis also alleges that Judge Garcia committed fraud by issuing certain factual findings. See id. at 6-7. But both allegations concern judicial acts, and there is no indication that Judge Garcia was clearly acting outside his jurisdiction. Judge Garcia has absolute judicial immunity and the claims against him here are subject to dismissal under 28 U.S.C. § 1915(e)(2)(B)(iii).
B. Mathis's § 1983 Claims Are Duplicative of Her Previous State and Federal Lawsuits and Remain Time-Barred.
This is not the first time Mathis has alleged constitutional violations in conjunction with the 2019 emergency removal of her children. Mathis previously sued the Department and its employee, Herrera, in federal court, while pursuing identical claims against the Department in state court. See Mathis v. Texas Dep't of Fam. & Protective Servs. (“Mathis I”), No. SA-21-CV-00898-XR, 2021 WL 4551194 (W.D. Tex. Oct. 5, 2021); Mathis v. Texas Dep't of Fam. & Protective Servs. (“Mathis II”), No. 04-22-00123-CV, 2022 WL 6815180 (Tex. App. Oct. 12, 2022). The district court dismissed Mathis's complaint as frivolous under 28 U.S.C. § 1915(e), as her § 1983 claims were clearly time-barred by Texas's two-year statute of limitations. See Mathis I, 2021 WL 4551194, at *2-3. The state court also dismissed Mathis's claims against the Department as barred by state sovereign immunity, and that decision was affirmed on appeal. See Mathis II, 2022 WL 6815180, at *4.
The claims asserted in Mathis's previous state and federal cases appear identical to those raised here, but for the addition of fraud allegations. Indeed, Mathis admits that she added those allegations to circumvent the previous dismissal via the “4 year statute of limitations” for fraud. See Dkt. 1-1 at 1. The Court, to no avail, ordered Mathis to explain why her claims should not be dismissed as nonetheless duplicative. See Dkt. No. 6. Mathis's Amended Complaint, asserting near-identical claims for the third time, is malicious as well as frivolous.
Moreover, Mathis's claims are still time-barred by Texas's two-year statute of limitations. Lawsuits brought under § 1983 borrow their limitations period from the statute governing personal injury actions in the forum state. See Redburn v. City of Victoria, 898 F.3d 486, 496 (5th Cir. 2018). In Texas, the applicable limitations period is two years. Id. (citing Tex. Civ. Prac. & Rem. Code § 16.003(a)). Every event Mathis complains of took place in 2019. See Dkt. No. 11 at 3. The most recent date listed in her Amended Complaint is May of 2020, see Id. at 8, although it is not immediately clear what constitutional violation allegedly occurred then. Regardless of whether she states a viable claim for something that happened in early 2020, because Mathis did not file her IFP Application until November 21, 2022, the § 1983 claims are time-barred. Only Mathis's fraud claims have a four-year limitations period. See Tex. Civ. Prac. & Rem. Code § 16.004(a)(4). But as explained below, Mathis's fraud claims are without merit.
C. Mathis Fails to Plead Any Fraud Claims with Particularity.
Parties asserting fraud in federal court must satisfy a heightened pleading standard. See Fed. R. Civ. P. 9(b). Courts will “apply Rule 9(b) to fraud complaints with ‘bite' and ‘without apology.'” U.S. ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 185 (5th Cir. 2009) (quotation omitted). At a minimum, the plaintiff must identify the “time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby.” Tel-Phonic Servs., Inc. v. TBS Int'l, Inc., 975 F.2d 1134, 1139 (5th Cir. 1992) (quotation omitted). Mathis explicitly asserts common-law fraud claims against Judge Garcia. See Dkt. No. 11 at 6-7. But as noted above, Judge Garcia enjoys absolute judicial immunity. And as explained in the Order to Show Cause, Dkt. No. 6, Mathis cannot assert fraud based on the disjunctive restatement of boilerplate, statutory text contained in Judge Garcia's factual findings. Although Mathis now appears to allege additional “false statements during court hearings,” Dkt. No. 11 at 6, she does not describe any such representations in her Amended Complaint.
And to the extent Mathis intends to assert fraud against other Defendants, she still does not satisfy Rule 9(b). Mathis vaguely alleges that “Herrera created false claims” in September of 2019, seemingly by misstating whether and when Mathis's minor child was medically examined. Id. at 5. Yet there is no further elaboration of what Herrera said and to whom, and whether any such statements occurred with the requisite intent to defraud. Nor is it obvious how such an apparent mistake could be considered a material misrepresentation. Even liberally construing her pro se pleadings, Mathis fails to plead fraud with particularity against any Defendant.
In light of the foregoing, and in particular the Court's recognition that these new fraud allegations are merely an effort to repackage and reassert claims already unsuccessfully brought in this and in previous litigation, leave for further amendment of the fraud claims is not warranted. See, e.g., Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009) (explaining that courts need not grant leave to amend “if the plaintiff has already pleaded his ‘best case'”); Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 872-73 (5th Cir. 2000) (holding that denial of leave to amend for futility is governed by “the same standard of legal sufficiency as applies under Rule 12(b)(6)”). The Court preemptively explained to Mathis the elements of common-law fraud and the Rule 9(b) heightened pleading standard. See Dkt. No. 6 at 7-9. Because Mathis has already amended her complaint in response to that guidance, the Court surmises that further amendment would be futile.
Conclusion and Recommendation
For the reasons discussed above, it is recommended that Mathis's Amended Complaint, Dkt. No. 11, be DISMISSED as frivolous and malicious.
Having considered and acted upon all matters for which this case was referred, it is ORDERED that this case is RETURNED to the District Court for all purposes.
Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy by certified mail, return receipt requested, to those not registered. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Objections, responses, and replies must comply with the same page limits as other filings, unless otherwise excused by the district court's standing orders. See Rule CV-7. The objecting party shall file the objections with the clerk of the court, and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to timely file written objections to the proposed findings, conclusions, and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
IT IS SO ORDERED.