Opinion
CIVIL 6:22-cv-1083-ADA-DTG
02-28-2024
VINCIN CAMPISE, Plaintiff, v. JUDGE BRYAN F. RUSS, COURT COORDINATOR CARRIE VERZENSKI, DISTRICT CLERK BARBARA AXTELL, CHRISTOPHER SMITHERMAN, HECTOR DAVILA, BB&T TRUST BANK, and DAVID CLEM, Defendants.
TO: THE HONORABLE ALAN D ALBRIGHT, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
DEREK T. GILLILAND UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. § 636(b)(1)(C), Fed.R.Civ.P. 72(b), and Rules 1(f) and 4(b) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Before the Court is ECF No. 25: Motion to Dismiss by Defendant Judge Bryan F. Russ, the Presiding Judge of the 82nd Judicial District Court of Robertson County, Texas (“Defendant Judge Russ”);. ECF No. 26: Motion to Dismiss by Defendants Barbara Axtell, the elected District Clerk for Robertson County, Texas. Defendant Carri Verzinski (allegedly misnamed as Carrie Verzenski) is the Deputy District Clerk for civil cases (collectively, “the Robertson County District Clerk Defendants”); and ECF No. 35: Motion to Dismiss by Defendants Hector Davila, Truist Bank, and David Clem (together, “Bank Defendants”). After careful consideration of the briefs, arguments of counsel, and the applicable law, the Court RECOMMENDS that the Motions be GRANTED.
I. FACTUAL BACKGROUND
This is a suit brought by Plaintiff Mr. Vincin Campise for alleged civil rights violations under 42 U.S.C. § 1983. Plaintiff is a pro se litigant residing in Texas. ECF No. 1-2 (civil cover sheet to complaint stating Plaintiff resides in Robertson County, Texas). Plaintiff brought suit in Texas state court for broad allegations of fraud, identity theft, credit-reporting violations, deceptive trade practices, and conspiracy, against employees of Truist Bank in Bryan, Texas. Plaintiff alleges that hearings and proceedings for the banking fraud case in the 82nd District Court, Robertson County, Texas, Trial Court No. 22-04-21435-CV, Hon. Bryan F. Russ, Jr., Judge, taking place in May to June 2022, were a “MOCKERY OF JUSTICE” in which “PLAINTIFFS CONSTITUTIONAL RIGHTS WERE VIOLATED IN USE OF ENTRAPMENT USING JUDICIAL AUTHORITY.” ECF No. 1 at 2-3 (capitalization in original). Plaintiffs makes the following allegations about named Defendants: Defendant Carri Verzenski: “with held pertinent information 5/12/2022 of official notice of a Scheduled court date”; Defendant Barbara Axtell: “Collected unwarranted subpoena fees”; and as to David Clem, Hector Davila, Judge Russ, Christopher Smitherman, and Truist Bank:
Christopher Smitherman As attorney for Defendant Hector Davila BB&T Truist Bank Jointly engaged involvement with Defendant Bryan Russ Judge using Judicial Authority Using pertinent evidence with conflict of interest, with perpetrator Defendant David Clem to a drama performance for entrapment 5/23/2022 82nd Judicial District Robertson County Franklin texas aiding and abetting Defendant Hector Davila from prosecution for Stolen Identity and Bank Fraud.ECF No. 19 at 1-2. Plaintiff's complaint amounts to a screed that is mostly incoherent.
It is public record that on June 27, 2022, the 82nd District Court, Robertson County, transferred the action to the 361st District Court, Brazos County. Plaintiff appealed the transfer order, but his appeal was dismissed by the Texas Tenth Court of Appeals as an improper appeal of an non-appealable, interlocutory, order. Campise v. Davilla, No. 10-22-00241-CV, 2022 WL 3974363, at *1 (Tex. App. Waco Aug. 31, 2022, no pet.). The transferee court, the 361st District Court, Brazos County, granted summary judgment in favor of the defendants, dismissed the case, and was affirmed on appeal. Campise v. Davila, No. 10-23-00025-CV, 2023 WL 2916688, at *1 (Tex. App. Waco Apr. 12, 2023, no pet.).Plaintiffs adds in his complaint that due to his experience, he “CAN NOT UNDERGO STATE PROCEDURES,” and he is left:
Plaintiff brought another suit in the U.S. District Court for the Western District of Texas against the same bank employees that were sued by Mr. Campise and secured summary judgment against him, in state court: Hector Davilla, Victor Mireles, Alonzo Robles, and Roberto Rico. Campise v. Davilla et al., 6:22-cv-00695-ADA-DTG.
HERE IN TO SEEK RECOVERY FEDERAL COURT FOR HIS CIVIL RIGHTS ENTITLED HIM AS AN AMERICAN CITIZEN AND VICTIME OF CRIME, HIS IDENTITY WAS STOLEN, CREDIT ENDANGERED, LOSS OF NEW BUSINESS, BY BB&T TRUIST BANK WHO ESCAPED POSSIBLE PROSECUTION CASE 22-04-21435 AND BY USE OF JUDICIAL AUTHORITY AND ATTORNEY DEFENDANT, CHRISTOPHER SMITHERMAN IS RESPONSIBLE BY CONFLICT OF INTEREST.ECF No. 1 at 4 (capitalization in original).
Plaintiff brought this suit on October 14, 2022. ECF No. 1 (complaint). On February 21, 2023, Plaintiff filed a document with the Court styled on the Docket as an “Amended Complaint.” ECF No. 19. But the document appears to provide supplemental information to the original complaint's allegations. Id. at 1 (titled “Amendment to Original Petition (Allegations)”). The Court will evaluate Plaintiff's pleadings in both documents wholistically as Plaintiff's Complaint.
II. LEGAL STANDARD
“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3). A court's alleged lack of subject-matter jurisdiction generally may be raised at any time in the same civil action, either in the answer or in the form of a suggestion to the court before a final judgment. Kontrick v. Ryan, 540 U.S. 443, 455 (2004). A motion under Rule 12(b)(1) should not be granted unless the court determines that the plaintiff cannot prove a plausible set of facts in support of its claim. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-57 (2007)); see also Canales v. ALM Media, LLC, No. 12-cv-1036, 2013 WL 5719476, at *3 (W.D. Tex. Oct. 18, 2013), report and recommendation accepted and adopted, No. 12-cv-1036, 2013 WL 12126240, at *2 (W.D. Tex. Dec. 4, 2013). United States District Courts have original jurisdiction over civil actions concerning a federal question, that is, actions “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. In the absence of a federal question, subject matter jurisdiction over a complaint can be based on diversity, if and only if diversity of citizenship exists between the parties. Mullins v. Testamerica Inc., 300 Fed. App'x 259, 259 (5th Cir. 2008) (per curiam) (unpublished) (explaining a plaintiff's failure to allege the basis for diversity jurisdiction mandates dismissal.”) (quoting Stafford v. Mobil Oil Corp., 945 F.2d 803, 805 (5th Cir.1991)). Another requirement of a federal court's subject matter jurisdiction is the plaintiff's standing. “[B]efore a federal court can consider the merits of a legal claim, the person seeking to invoke jurisdiction must establish the requisite standing to sue.” Whitmore v. Arkansas, 495 U.S. 149, 154-55 (1990). Standing requires plaintiffs to demonstrate they have suffered an “injury in fact,” that is “fairly traceable” to the defendant's conduct, and that will “likely . . . be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
Federal Rule of Civil Procedure 12(b)(5) provides that a party may move to dismiss for insufficient service of process. A district court has “broad discretion to dismiss an action for ineffective service of process.” Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 645 (5th Cir. 1994). Under Federal Rule of Civil Procedure 4, service may be effected on an individual by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made” Fed.R.Civ.P. 4(e)(1). Alternatively, service may be effected on an individual by any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.Fed. R. Civ. P. 4(e)(2). In any event, for the purposes of subsection (e)(2), serving summonses through certified mail is not authorized. Ray v. HSBC Bank, USA, No. 19-cv-285, 2022 WL 1541585, at *5 (W.D. Tex. Mar. 23, 2022), report and recommendation adopted sub nom. Sepeda v. HSBC Bank, USA, No. 19-cv-285, 2022 WL 2762906 (W.D. Tex. Apr. 26, 2022). Under Texas law, service may be effected by certified or registered mail “by (1) any sheriff or constable or other person authorized by law or, (2) by any person authorized by law or by written order of the court who is not less than eighteen years of age,” but “No person who is a party to or interested in the outcome of a suit shall serve any process.” Tex.R.Civ.P. 103.
A claim may be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). When analyzing a Rule 12(b)(6) Motion, the Court must “accept[] all well-pleaded facts as true, view[ing] them in the light most favorable to the plaintiff, and draw[] all reasonable inferences in the plaintiff's favor.” Johnson v. BOKF Nat'l Ass'n, 15 F.4th 356, 361 (5th Cir. 2021). Accepting the facts as true, the facts must be sufficient such that the claim “is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include specific factual allegations in support of the claim. Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Id. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
As the Supreme Court has explained, a suit against a state official in his official capacity is a suit against the state. Hafer v. Melo, 502 U.S. 21, 25 (1991). And the Constitution does not allow suits against States. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73 (2000). The Eleventh Amendment bars damage suits against States, and there must be a waiver of sovereign immunity for a suit to proceed. Kentucky v. Graham, 473 U.S. 159, 160 (1985).
“The federal civil rights laws do not provide a vehicle to attack state court judgments nor to sanction the conduct of state court judges for actions taken within the scope of their judicial authority.” Hicks v. Bexar Cty., Texas, 973 F.Supp. 653, 667-72 (W.D. Tex. 1997) (quoting Bogney v. Jones, 904 F.2d 272, 274 (5th Cir.1990)). The doctrine of absolute judicial immunity protects judges not only from liability, but also from suit, so long as they do not act in a clear absence of all jurisdiction. Id.; Coltart v. Texas, No. 19-cv-464, 2020 WL 5416515, at *6 (W.D. Tex. Aug. 6, 2020).
III. DISCUSSION
The three Motions to Dismiss before the Court in this case present only partly overlapping bases to dismiss Plaintiffs complaint. The discussion of this Report & Recommendation is organized by the motions to dismiss.
A. Defendant Judge Russ's Motion to Dismiss (ECF No. 25)
1. Plaintiff lacks standing to bring claims against Judge Russ
Defendant Judge Russ argues that Plaintiff does not have standing to bring his claims. Because Plaintiff's claims against Defendant Judge Russ are solely based on his actions in state court proceedings in his adjudicatory capacity, Defendant Judge Russ argues there is no justiciable controversy. ECF No. 25 at 3. Defendant Judge Russ adds that because the ruling of his Plaintiff complains about was simply transferring the case to the Brazos County Court, there is no concrete injury (Defendant Judge Russ was not a judge who granted summary judgment for Defendants or affirmed the summary judgment). Finally, Defendant Judge Russ adds that given this case is not an appeal of the state court judgment, there is no way for this federal court to redress the alleged injury. Plaintiff's response falls flat to establish standing. ECF No. 27. Therefore, the Court agrees with Defendant Judge Russ that Plaintiff lacks standing.
2. Plaintiff's claims are Barred by Eleventh Amendment Immunity
Defendant Judge Russ argues that as a state official, Judge Russ in his official capacity is entitled to Texas' sovereign immunity under the Eleventh Amendment. If Plaintiff sued Defendant in his capacity as the Judge of the 82nd District Court, Robertson County, which is how he is identified in the Complaint Plaintiff has attempted to sue the state of Texas. Neither Plaintiff nor this Court have identified any basis for waiver of sovereign immunity by the State of Texas. Thus, sovereign immunity bars any claims against Defendant Judge Russ in his official capacity.
3. Plaintiff's claims are Barred by Judicial Immunity
Defendant Judge Russ argues that because Plaintiff's only complaint about Judge Russ involve his exercise of judicial functions, Plaintiff is simply complaining of judicial acts, and Defendant Judge Russ is therefore immune. Plaintiff offers nothing more than hand-waiving: stating without support that Defendant Judge Russ is “claiming Judicial immunity From actions describing conspiracy for personal gain,” and from “Abusing judicial Authority in the process of violation to all FOR Civil Procedures to obtain a fair, equitable and impartial trial.” ECF No. 27 at 2. In the Court's judgment, Plaintiff's allegations and conclusory statements do not overcome Defendant Judge Russ's judicial immunity.
4. Plaintiff fails to state a claim upon which relief may be granted
Defendant Judge Russ argues that Plaintiff's claims should be dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, as Plaintiff alleges no specific facts from which the Court could infer liability. At bottom, Defendant concludes that Plaintiff is simply complaining about Judge Russ entering an order and holding a hearing, which is quintessentially not something that can form the basis of a claim. The Court agrees with Defendant Judge Russ that even under the liberal standards of Rule 12(b)(6), Plaintiff has failed “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6).
5. Plaintiff's claims are barred by the Younger or Rooker-Feldman doctrines
Defendant makes additional arguments that this Court should abstain from hearing Plaintiff's claims under either the Younger or Rooker-Feldman doctrines, but not both. The Younger doctrine provides that when damages would be predicated on a pending state litigation, a civil rights lawsuit should be stayed until the state court litigation is resolved. ECF No. 25 at 6-7 (citing Younger v. Harris, 401 U.S. 37 (1971)). By contrast, if the state court proceedings are not “ongoing,” Defendant Judge Russ asserts that “the state court judgment will be final,” and the Rooker-Feldman doctrine directs that this Court lacks jurisdiction to entertain collateral attacks on a final state court judgment. Id. at 7 n.2. This Court declines to choose a position on the Younger or Rooker-Feldman question that Defendant Judge Russ has presented. This Court recommends granting Judge Russ's motion on all of the foregoing grounds, which provide more than a sufficient basis to do so. The Court declines to decide the question that Defendant Judge Russ has presented as to the current status of the state court proceedings.
B. The Robertson County District Clerk Defendants' Motion to Dismiss (ECF No. 26)
1. Defective Service Under Rule 12(b)(4) and (b)(5)
The Robertson County District Clerk Defendants argue that Plaintiff has not achieved proper service on any Defendant, as evidenced at least by not filing a return of proper service on the docket. ECF No. 26 at 2-3 (citing Fed.R.Civ.P. 12(b)(4) and (b)(5)). The Robertson County District Clerk Defendants argue that Plaintiff's service was defective in form for two reasons: first, the summons delivered to deputy clerk Carri Verzinski names “Carrie Verzenski.” ECF No. 26 at 4. Second, Plaintiff's service included only a summons and not a copy of Plaintiff's pleading. Id. The Robertson County District Clerk Defendants also argue that the manner of service was defective because it was sent by Plaintiff himself via U.S. Mail to the Robertson County District Clerk's Office, which fails under both Fed.R.Civ.P. 4(e)(2)'s requirement for service at a dwelling or usual abode, and Texas Rule of Civil Procedure 103's requirement to effect service with a person authorized to do so by law. ECF No. 26 at 4-5.
Plaintiff concedes the summonses were sent by U.S. Mail, and does not dispute this was done so by Plaintiff. ECF No. 37 at 1 (Plaintiff describing Certified U.S. Mail to the assistant bank manager at Truist bank); ECF No. 22 (Summonses sent from the U.S. District Clerk's Office to Plaintiff, so that Plaintiff may have each defendant served).
In the Court's judgment, service was defective. See Fed R. Civ. P 12(b)(5) (“insufficient process” is a defense). Plaintiff's choice to send the summonses via Certified Mail alone is not inconsistent with Texas rules and Federal Rule of Civil Procedure 4(e)(1), but doing so on his own makes service defective because he is not a “person authorized by law” to do so. Tex.R.Civ.P. 103. The Robertson County District Clerk Defendants do not cite authority that misspellings of names of summons must result in dismissal. Defendant does not allege that the misspellings resulted in failure of Defendants to receive the mailed documents, or confusion over who was actually named. The Court declines to reach the alternative argument about propriety of service in light of name spellings. The Court finds service was defective due to Plaintiff sending the summons himself via certified mail.
2. Failure To State a Claim Under Rule 12(b)(6)
The Robertson County District Clerk Defendants argue that Plaintiff has not pleaded a plausible claim against either Robertson County District Clerk Defendant. The core allegation Plaintiffs appears to make against Verzinski is that she withheld or did not provide him with notice of a hearing in his state case. But Plaintiff does not allege any facts to suggest that Verzinski deviated from her ordinary job functions in his case. Against Axtell, Plaintiff's complaint appears to be that she collected “unwarranted subpoena fees” from him. ECF No. 26 at 8. But Plaintiff does not identify how Axtell did not perform her ordinary district clerk's job in a way that harmed Plaintiff. If the Plaintiff's complaint is simply that Axtell did not counsel him on whether to subpoena a witness, that is not a failure that could give rise to a viable claim against the district clerk under Rule 12(b)(6).
C. The Bank Defendants' Motion to Dismiss (ECF No. 26)
1. The Court Lacks Subject Matter Jurisdiction Under Rule 12(b)(1)
The Bank Defendants argue that Plaintiff's claim should be dismissed as lacking subject matter jurisdiction because Plaintiff neither raises a federal question, nor has complete diversity in his case. ECF No. 35 at 3. Plaintiff's complaint and response briefing make passing reference to certain federal statutes and regulations. ECF No. 19 at 3 (citing 18 U.S.C. § 1503 - Influencing or injuring officer or juror generally (part of 18 U.S. Code Chapter 73 - Obstruction of Justice)); ECF No. 37 at 4 (referring to “C F R 26 35 492”). However, these citations either do not exist, or are to statutes that offer no private cause of action. Plaintiff does not dispute that any Defendants are Texas citizens. Indeed, the summons sent to all of the Defendants were all sent to addresses in Texas. ECF No. 22. Given this, the Court cannot conclude this case presents a federal question, or diversity jurisdiction.
2. Defective Service Under Rule 12(b)(4) and (b)(5)
The Bank Defendants argue that service was defective and therefore the action should be dismissed. The Bank Defendants argue that process against “Truist Bank” was defective because it named “BB&T Trust Bank” instead. Further, the Bank Defendants argue that Plaintiff attempting to send service through certified mail by himself is improper. For the reasons discussed above on the same issue for The Robertson County District Clerk Defendants' Motion to Dismiss, due to Plaintiff's choice to send the summonses via Certified Mail on his own, service is defective because he is not a “person authorized by law” to do so. Tex.R.Civ.P. 103; Fed R. Civ. P 12(b)(5) (“insufficient process” is a defense).
3. Failure To State a Claim Under Rule 12(b)(6)
The Bank Defendants argue that Plaintiff's case should be dismissed because Plaintiff's “threadbare allegations” offer no new information related to Defendants other than what was dismissed by the Texas trial court and affirmed by the Texas Court of Appeals. ECF No. 35 at 6. Defendant also adds generally that Plaintiff's allegations are unclear. Id. Plaintiff offers only a cursory response. The Court agrees with Defendants that even under the liberal standards of Rule 12(b)(6), Plaintiff has failed “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6).
D. Christopher Smitherman
Christopher Smitherman is named in the complaint but has not entered an appearance of any kind or filed a motion to dismiss. The Court understands from the complaint that Christopher Smitherman is alleged to be an attorney for Truist Bank. ECF No. 19 at 1. Plaintiff's failure to establish jurisdiction, proper service, or state a claim against any Defendant has been analyzed and explained above. In particular, the Court's analysis of ECF No. 35, the Bank Defendant's Motion to Dismiss, is relevant to the issues for counselor Smitherman, because one of the Bank Defendants is also counsel for the Truist Bank employees (Mr. Clem). In the Court's judgment, for the same reasons that the Court recommends the above Motions to Dismiss above be granted, it also recommends that Plaintiff's claims against Christopher Smitherman be DISMISSED.
IV. RECOMMENDATION
For the above reasons, it is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that ECF No. 25: Motion to Dismiss by Defendant Judge Russ be GRANTED.
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that ECF No. 26: Motion to Dismiss by the Robertson County District Clerk Defendants be GRANTED.
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that ECF No. 35: Motion to Dismiss by the Bank Defendants be GRANTED.
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that Plaintiff's claims against Christopher Smitherman be DISMISSED WITH PREJUDICE.
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the following outstanding motions be DENIED AS MOOT in light of the above dismissals: ECF No. 23 Motion for Consideration Declaratory Judgment by Vincin Campise; and ECF No. 24 Motion by Default Declaratory Judgment by Vincin Campise.
V. OBJECTIONS
The parties may wish to file objections to this Report and Recommendation. Parties filing objections must specifically identify those findings or recommendations to which they object. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. U.S. 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. See 28 U.S.C. § 636(b)(1)(C); Thomas v Arn, 474 U.S. 140, 15053 (1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc). Except upon grounds of plain error, failing to object shall further 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, 474 U.S. at 150-53; Douglass, 79 F.3d at 1415.