Burns v. Burns

• Court: District Court, E.D. Texas
• Decided: May 21, 2024
• Docket: 6:24-cv-00042
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS No. 6:24-cv-00042 Eric Dewayne Burns, Plaintiff, V. Fairy Jean Burns et al., Defendants.

ORDER Plaintiff Eric Dewayne Burns, proceeding pro se and im forma pauperis, filed this action concerning a probate case in state court. Doc. 1. The case was referred to United States Magistrate Judge K. Nicole Mitchell pursuant to a standing order. On March 19, 2024, the magistrate judge issued an amended re- port recommending that the claims against Fairy Jean Burns and John Berry be dismissed without prejudice for lack of subject-matter jurisdiction and that the claims against Judge Joel Baker, Judge Tay- lor Heaton, and Justice Greg Neeley be dismissed with prejudice for failure to state a claim upon which relief can be granted. Doc. 13. Plaintiff filed written objections. Doc. 16. The court reviews ob- jected-to portions of the magistrate judge’s report and recommenda- tion de novo. See Fed. R. Civ. P. 72; 28 U.S.C. § 636(b)(1). In his objections, plaintiff argues that this court has federal-ques- tion jurisdiction pursuant to 28 U.S.C. § 1331 because he asserts a claim pursuant to 18 U.S.C. § 242. Section 242 provides criminal penalties and does not provide a private cause of action. To the ex- tent plaintiff seeks relief against state court judges pursuant to 42 U.S.C. § 1983, he has not alleged facts that could overcome judicial immunity. See Butz v. Economou, 438 U.S. 478, 514 (1978). Plaintiffs allegations concern rulings by each judge that plaintiff claims applied the law improperly to the facts of his case. Plaintiff complains that Judge Baker failed to follow Texas Rules of Civil Procedure 109 and 109a. Doc. 16 at 3. As to Judge Heaton, plaintiff complains of

erroneously excluded evidence. /d. at 4-6. And he complains that Justice Neeley failed to correct these and other errors on appeal. Id. at 5. These actions are judicial in nature and are protected by abso- lute immunity. See Mitchell v. McBryde, 944 F.2d 229, 230 (5th Cir. 1991) (“Clearly, the judge was acting within his judicial capacity in his rulings ... . The fact that it is alleged that the judge acted pursu- ant to a conspiracy and committed grave procedural errors is not suf- ficient to avoid absolute judicial immunity.”). Plaintiff submits that Fairy Jean Burns and her attorney, John Berry, committed fraud in the probate proceeding. Plaintiff does not assert a claim against them pursuant to federal law. See Mills v. Crim- inal Dist. Ct. No. 3., 837 F.2d 677, 679 (5th Cir. 1988) (“private attor- neys... are not official state actors, and generally are not subject to suit under section 1983”). Plaintiff also has not shown a basis for di- versity jurisdiction pursuant to 28 U.S.C. § 1332, as he provides Texas addresses for these defendants. Plaintiff has not established federal subject-matter jurisdiction for the claims against these de- fendants. Having reviewed the magistrate judge’s report de novo, and be- ing satisfied that it contains no error, the court overrules plaintiff’s objections and accepts the report’s findings and recommendation. Pursuant to 28 U.S.C. § 1915(e)(2), the court dismisses the claims against Fairy Jean Burns and John Berry without prejudice for lack of subject-matter jurisdiction and dismisses the claims against Judge Joel Baker, Judge Taylor Heaton, and Justice Greg Neely with prej- udice for failure to state a claim upon which relief can be granted. Any motion not ruled on is denied as moot. So ordered by the court on May 21, 2024. —_fGoclobon United States District Judge

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