Thomas v. State (294 F. Supp. 3d 576, 2018)

IRMA CARRILLO RAMIREZ, UNITED STATES MAGISTRATE JUDGE

By Special Order 3-251 , this pro se case has been automatically referred for full case management, including the determination of non-dispositive motions and issuance of findings of fact and recommendations on dispositive motions. Before the Court are the following:

(1) Defendant Danny Griffith's Motion to Dismiss the First Amended Complaint [ F.R.C.P. 12(b)(6) ] , filed March 23, 2017 (doc. 38);

(2) Defendant Marc Pieroni's Motion to Dismiss Pursuant to Federal Rules of Civil Procedure, Rules 12(b) 1( ) and (6) , filed April 13, 2017 (doc. 56);

(3) Plaintiff's Motion to Disqualify Opposing Counsel for Marc Pieron[i] , filed April 27, 2017 (doc. 64);

(4) 413th District Court Judge William Bosworth, 66th Judicial District Court Judge F.B. McGregor, 18th District Court Judge John Neill, 249th District Court Judge Dennis Wayne Bridewell, and the State of Texas' Motions to Dismiss on the Basis of Official, Qualified, Eleventh Amendment and Judicial Immunity and Absence of Standing , filed May 3, 2017 (doc. 69);

(5) Defendants Johnson County, Texas, Bob Alford, Ken Bartlett, Ronald McBroom, Dale Hanna, and Martin Strahan's Motion to Dismiss Plaintiff's Second Amended Complaint and Brief in Support Thereof , filed June 2, 2017 (doc. 80); and

(6) Defendant Greg Gorman's Third Motion to Dismiss Pursuant to Federal Rules of Civil Procedure, Rules 12(b)(1) and (6) , filed June 2, 2017 (doc. 81).

Based on the relevant filings and applicable law, the motions to dismiss should be GRANTED , the plaintiff's remaining claims should be DISMISSEDsua sponte for failure to state a claim, and her motion to disqualify should be DENIED as moot .

I. BACKGROUND

Bonnie Allen Thomas (Plaintiff) initially filed this civil rights action under 42 U.S.C. §§ 1983 and 1985 on February 6, 2017. (See doc. 3.) She sues the State of Texas (State), Johnson County, Texas (County), former Sheriff Bob Alford (Sheriff), Deputy Sheriff Ken Bartlett (Deputy), alleged confidential informant Daniel Wade Griffith (CI), 413th District Court Judge William Bosworth (Judge Bosworth), 18th District Court Judge John E. Neill (Judge Neill), Municipal Court Judge Ronald McBroom (Judge McBroom), Johnson County District Attorney Dale Hannah (DA), Assistant District Attorney Martin Strahan (ADA), 66th District Court Judge F.B. McGregor (Judge McGregor), 249th District Court Judge Dennis Wayne Bridewell (Judge Bridewell), Marc Pieroni (Ex-husband), his attorney Greg Gorman (Attorney), and John Does 1-5 and Jane Does 1-5 (collectively Defendants). (doc. 79 at 1.) She claims that she "has been the target of an ongoing conspiracy of ... County officials to persecute and oppress her, and deny her justice in any court in ... County, on any matter, civil or criminal," in retaliation for a wrongful death action she and her siblings filed against County and Sheriff, among others, in 2013. (Id. at 1.)

A. Child Custody Proceedings

Plaintiff and her Ex-husband are the parents of three minor children of whom she was initially awarded primary custody. (Id. at 6.) Ex-husband filed a motion for sole custody of the three children, and in June 2015, sought "emergency relief" based on allegations that Plaintiff had confiscated their son's cell phone and "was beating" him. (Id. ) Plaintiff claims that despite the responding police officer's conclusion that there had been no spanking, Judge Bridewell "immediately removed all three children from [her] custody" and placed them with Ex-husband "without proper notice and without opportunity to be heard." (Id. ) He also ordered drug tests, social studies and psychological evaluations for both parents. (Id. at 7.) At a subsequent hearing, Judge Bridewell "refused to reverse his temporary order awarding custody" to Ex-husband, whom Plaintiff contends tested positive for drugs, is "an active illegal drug user," and has been investigated by CPS for choking their oldest son. (Id. at 7-8.) Judge Bridewell denied her motion to transfer venue but granted her request to recuse himself, and Judge Neill was then assigned to the case. (Id. at 8.)

Plaintiff sought an emergency hearing from Judge Neill, who refused to schedule one, and after discovering that he was out of town, she sought one from Judge Bosworth, who denied her request. (Id. ) Judge Neill held a hearing on August 28, 2015, after which he only modified the temporary child custody orders to allow Plaintiff visitation. (Id. ) At a second hearing on September 2, 2015, he allegedly verbally ordered the attorneys for the parties to file affidavits stating that their clients had turned over all firearms to their attorneys, but the order was never reduced to writing. (Id. ) Plaintiff turned over the only firearm she owned at the time to her attorney. (Id. ) Judge Neill also allegedly refused to schedule a hearing on Plaintiff's "writ of habeas corpus return of child under the family code to dissolve the temporary orders granted without due process, and return the children." (Id. at 9 (emphasis original).)

Plaintiff also contends that Defendants inflicted serious financial harm on her by forcing her into eight hearings on Judge Bridewell's temporary orders between June and October 2015. (Id. )

B. Criminal Proceedings

To keep costs down and help her attorney, Plaintiff did extensive factual and legal research. (Id. ) On October 21, 2015, she went to the Guinn Justice Center in Cleburne, Texas, to do legal research. (Id. ) She "forgot she had a small .22 caliber 'purse gun' in her purse" when she went through security. (Id. ) Security officers discovered the gun, and she left to put it in her car. (Id. ) She was arrested while walking to her car and charged with "carrying a gun into a prohibited area, and evading arrest." (Id. at 9-10.) Sheriff ordered her vehicle searched and impounded. (Id. at 10.) Plaintiff claims Judge McBroom refused to set a bond for her, ostensibly because he was involved with other defendants to entrap her, and she was held under the control of Sheriff and another wrongful death defendant in the same jail where her father had been confined. (Id. ) Contrary to a policy that detainees not be held in booking for more than 24 hours, she was kept in booking for six days, and placed in solitary confinement and not allowed to shower for four days. (Id. at 10-11.)

After a second bond hearing before Judge Neill, Plaintiff's husband saw ADA and Attorney outside of the courtroom having an animated conversation about Plaintiff. (Id. at 11.) Attorney was trying to convince ADA that Plaintiff was "mentally unstable" and should be denied bond. (Id. ) Plaintiff's attorney confronted Attorney about his actions and they got into a heated argument. (Id. ) ADA argued that Plaintiff should be held without bond until a psychological evaluation had been performed, one was ordered by Judge Neill, and he refused to set bond until it was completed. (Id. )

On her tenth day of confinement, Judge Neill set bond for Plaintiff and "required as a condition of bond that [she] be confined to her home, and ... wear a GPS locator." (Id. at 14.) He also ordered as a condition of her bond that she not have contact with her children. (Id. ) Judge Neill subsequently denied her "writ of habeas corpus to amend bond conditions and remove the GPS locator." (Id. at 15 (emphasis original).) Plaintiff appealed the denial of her writ to the Tenth Court of Appeals of Texas, and that court modified her bond conditions to remove the home confinement requirement. (Id. at 15-16.)

Judge McGregor presided over Plaintiff's criminal trial for carrying a gun into a prohibited area. (Id. at 25.) She alleges that Judge McGregor refused to grant her motions to transfer venue and motions in limine, and that he allowed prejudicial photographs to be taken of her. (Id. ) She claims that Judge McGregor allowed an unfair trial against her in order to secure a conviction. (Id. at 25-26.) She describes one occasion during the trial in which Judge Neill was permitted to testify regarding the oral "gun-turn-over order" he issued in her child custody case, and she alleges he "used his position and influence to secure a conviction for [her]." (Id. at 26.) She also claims that Judge McGregor allowed testimony during the sentencing phase from Deputy regarding an alleged entrapment scheme. (Id. ) Plaintiff "hopes for appellate remedy, but such may be years of financial drain and p[h]ysical and emotional drain." (Id. )

C. Entrapment Conspiracy

Plaintiff alleges that Defendants' actions are all part of a conspiracy against her to deprive her of justice in County, and that part of the conspiracy entailed entrapping her into agreeing to hire a "hitman" to murder Ex-husband. (Id. at 1-2, 11-12, 17.) She claims that her bond was denied during the criminal prosecution in order to hold her "in solitary confinement to break down her mental functioning until a secretly wired (audio and video) confidential informant[,CI,] would approach her to try and convince her to authorize the murder of her ex-husband." (Id. at 10.)

CI, allegedly acting as an agent for the other defendants, visited Plaintiff on her third day in solitary confinement and asked her questions about the charges against her in an "illegal custodial interrogation" that provided valuable information about her defense. (Id. at 12-13.) CI moved the "conversation in the direction of a murder-for-hire scheme." (Id. at 13.) CI stated that "he had his own 'crew' who would kill [Ex-husband]" and "offered several options as to how he could kill [Ex-husband], including ways that it could be made to look like an accident." (Id. ) CI allegedly informed her that Ex-husband's murder would lead to the "hassle-free return of her children" and that she could pay him out of the money she recovered from Ex-husband's life insurance policy. (Id. ) She claims that she "would not take the bait" and "firmly declined to authorize [CI] to murder [Ex-husband]." (Id. at 2, 13.) CI allegedly handwrote a narrative report regarding his "inside-the-jail attempt to entrap [her]" in which he stated that she "enthusiastically assented to the murder-for-hire scheme." (Id. at 20-21.)

CI went with Deputy to visit Plaintiff at her home following her release on bond and allegedly tried to convince her to hire Deputy, who CI presented as a "hitman", to murder Ex-husband. (Id. at 17.) Deputy typed a narrative report regarding this third attempt to convince Plaintiff to enter into the murder-for-hire scheme. (Id. at 20-21.) She contends that the report, although "written to do maximum [damage] to her reputation", admitted that she refused to authorize Ex-husband's murder. (Id. ) Even though she refused the offer, two months later, her attorney informed her that she was being " 'investigated' for a murder-for-hire scheme." (Id. at 17-18.) Plaintiff further asserts that Defendants "tried to bootstrap the entrapment scheme" into her wrongful death and child custody cases. (Id. at 19.) She describes two child custody hearings in front of Judge McGregor in which the two narrative reports and testimony regarding the alleged entrapment scheme were used to her disadvantage, resulting in orders for child support and supervised visitation against her. (Id. at 21-23.)

Plaintiff asserts claims under § 1983 for violation of her constitutional rights under the First, Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, under § 1985 for conspiracy to violate her rights, and under state law for invasion of privacy, defamation, libel, false imprisonment, and intentional infliction of emotional distress. (See id . at 13, 25-26, 28-40.) She also seeks injunctive relief against the judges in their official capacities in the form of an order directing the "state trial court[s] to transfer venue to a county in which Plaintiff can receive a fair trial" in her civil and criminal cases, as well as compensatory and punitive damages against all Defendants. (Id. at 35-36, 40-41.)

All Defendants have moved to dismiss all claims against them under Rule 12(b)(1) for lack of subject-matter jurisdiction and/or Rule 12(b)(6) for failure to state a claim. (docs. 38; 56; 69; 80; 81.) The motions are now ripe for determination.

II. 12(b)(1)

All Defendants, except CI, move for dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction. (docs. 57 at 1-4; 69 at 2, 31-35, 45-46; 80 at 2, 30; 82 at 1-2, 16-19.)

A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges a federal court's subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). "Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (citations omitted). They "must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum." Howery v. Allstate Ins. Co. , 243 F.3d 912, 916 (5th Cir. 2001).

A Rule 12(b)(1) motion "may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment." Arbaugh v. Y & H Corp. , 546 U.S. 500, 506, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). A court must dismiss the action if it determines that it lacks jurisdiction over the subject matter. Fed. R. Civ. P. 12(h)(3) ; Stockman v. Fed. Election Comm'n , 138 F.3d 144, 151 (5th Cir. 1998). "When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits." Ramming v. United States , 281 F.3d 158, 161 (5th Cir. 2001) (per curiam). A dismissal under Rule 12(b)(1)"is not a determination of the merits," and it "does not prevent the plaintiff from pursuing a claim in a court that does have proper jurisdiction." Id. Accordingly, considering Rule 12(b)(1) motions first "prevents a court without jurisdiction from prematurely dismissing a case with prejudice." Id.

A district court may dismiss for lack of subject-matter jurisdiction based on (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Williamson v. Tucker , 645 F.2d 404, 413 (5th Cir. 1981) (en banc). A motion to dismiss based on the complaint alone presents a "facial attack" that requires the court to merely decide whether the allegations in the complaint, which are presumed to be true, sufficiently state a basis for subject-matter jurisdiction. See Paterson v. Weinberger , 644 F.2d 521, 523 (5th Cir. 1981). If sufficient, those allegations alone provide jurisdiction. Id. Facial attacks are usually made early in the proceedings. Id. "A facial attack requires the court merely to decide if the plaintiff has correctly alleged a basis for subject matter jurisdiction" by examining the allegations in the complaint, which are presumed to be true. Rodriguez v. Tex. Comm'n on the Arts , 992 F.Supp. 876, 878 (N.D. Tex. 1998) (citations omitted).

If the defendant supports the motion with evidence, however, then the attack is "factual" and "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Williamson , 645 F.2d at 413. A factual attack may occur at any stage of the proceedings. Menchaca v. Chrysler Credit Corp. , 613 F.2d 507, 511 (5th Cir. 1980). Regardless of the nature of attack, the party asserting federal jurisdiction continually carries the burden of proof to show it exists. Ramming , 281 F.3d at 161.

Here, because Defendants rely on Plaintiff's amended complaints, they present a facial attack that does not require the Court to resolve matters outside the pleadings. See Bridgewater v. Double Diamond-Delaware, Inc. , No. 3:09-CV-1758-B, 2010 WL 1875617, at *5 (N.D. Tex. May 10, 2010) ; Lester v. Lester , No. 3:06-CV-1357-BH, 2009 WL 3573530, at *4 (N.D. Tex. Oct. 29, 2009).

A. Eleventh Amendment Immunity

State moves to dismiss Plaintiff's claims against it and the judges in their official capacities based on Eleventh Amendment immunity. (doc. 69 at 37, 53-54.)

1. State

The Eleventh Amendment states that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." "This withdrawal of jurisdiction effectively confers an immunity from suit." P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc. , 506 U.S. 139, 144, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993). Therefore, "an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State." Edelman v. Jordan , 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). This immunity applies to both federal and state law claims brought in federal court. See Raj v. La. State Univ. , 714 F.3d 322, 328-29 (5th Cir. 2013) (determining that sovereign immunity bars both federal and state law claims brought in federal court); Roberson v. McShan , No. 05-20055, 2005 WL 2673516, at *1 (5th Cir. Oct. 20, 2005) (per curiam) (finding that Eleventh Amendment immunity divests federal courts of jurisdiction to hear federal and state law claims).

Although Congress has the power to abrogate that immunity through the Fourteenth Amendment, Kimel v. Fla. Bd. of Regents , 528 U.S. 62, 72-76, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000), and the State may waive its immunity by consenting to suit, AT & T Commc'ns v. BellSouth Telecomms. Inc. , 238 F.3d 636, 643 (5th Cir. 2001), the State has not waived its immunity by consenting to suit, nor has Congress abrogated the Eleventh Amendment immunity by enacting 42 U.S.C. § 1983 or 42 U.S.C. § 1985. See Will v. Mich. Dep't of State Police , 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) ; Hines v. Miss. Dep't of Corr. , No. 00-60143, 2000 WL 1741624, at *3 (5th Cir. Nov. 14, 2000) (per curiam). Additionally, "Congress did not abrogate Eleventh Amendment immunity by granting federal courts supplemental jurisdiction over state law claims in 28 U.S.C. § 1367(a). Roberson , 2005 WL 2673516, at *1 (citing Raygor v. Regents of Univ. of Minn. , 534 U.S. 533, 541-42, 122 S.Ct. 999, 152 L.Ed.2d 27 (2002) ).

Here, Plaintiff invokes the Texas Tort Claims Act (TTCA) as a waiver of the State's sovereign immunity. (doc. 79 at 30.) see Tex. Civ. Prac. & Rem. Code Ann. § 101.025(a). State argues that the TTCA does not provide a waiver of immunity for intentional tort claims. (doc. 69 at 24 n.19.) The only state law tort claims Plaintiff asserts against State are for false imprisonment and intentional infliction of emotional distress against. (doc. 79 at 37-38.)

The TTCA "provides a limited waiver of sovereign and governmental immunity for certain tort claims, 'allowing suits to be brought against governmental units only in certain, narrowly defined circumstances.' " Dorward v. Ramirez , No. 3:09-CV-0018-D, 2009 WL 2777880, at *13 (N.D. Tex. Aug. 28, 2009) (quoting Tex. Dep't of Crim. J. v. Miller , 51 S.W.3d 583, 587 (Tex. 2001) ). This "waiver of immunity constitutes the 'only ... avenue for common-law recovery against the government' on a tort theory." Id. (quoting Mission Consol. Indep. Sch. Dist. v. Garcia , 253 S.W.3d 653, 659 (Tex. 2008) ). The TTCA's limited waiver of sovereign and governmental immunity for certain tort claims expressly does not apply to claims "arising out of assault, battery, false imprisonment, or any other intentional tort ," however. Tex. Civ. Prac. & Rem. Code Ann. § 101.057(2) (emphasis added); see also Dorward , 2009 WL 2777880, at *13 (citing Tex. Dep't of Crim. J. , 51 S.W.3d at 587 ); Swiat v. City of Fort Worth , No. 4:10-CV-354-A, 2011 WL 2559637, at *5 (N.D. Tex. June 28, 2011) (considering the scope of § 101.057(2) ); Jackson v. Sheriff of Ellis Cty. , 154 F.Supp.2d 917, 921 (N.D. Tex. 2001) (stating that intentional infliction of emotional distress is an intentional tort). The TTCA does not waive the State's immunity for Plaintiff's intentional tort claims for false imprisonment and intentional infliction of emotional distress.

Eleventh Amendment immunity bars Plaintiff's federal and state law claims against State, and they should be dismissed without prejudice. See Shah , 54 F.Supp.3d at 690.

2. Judges in their Official Capacities

Plaintiff specifies that she is suing the judges in their official capacities for injunctive relief. (doc. 79 at 35.) She claims that "there is no immunity from [i]njunctive [r]elief" for claims brought under 42 U.S.C. § 1983. (Id. at 19, 36.) They argue that Plaintiff "does not set out the elements of the exception to Eleventh Amendment immunity" for claims for injunctive relief. (doc. 69 at 44.)

An official capacity claim is merely another way of pleading an action against the entity of which the individual defendant is an agent. See Kentucky v. Graham , 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). Plaintiff's suit against the state judges in their official capacities is a suit against the State. See Florance v. Buchmeyer , 500 F.Supp.2d 618, 638-39 (N.D. Tex. 2007) ; see also Elie v. Ashford , No. 3:16-CV-2032-L-BH, 2016 WL 4276009, at *2 (N.D. Tex. July 14, 2016), adopted by 2016 WL 4268930 (N.D. Tex. Aug. 15, 2016).

Although Plaintiff's official capacity claims against the judges would normally be barred by Eleventh Amendment immunity, the Supreme Court has created an exception for suits for injunctive or declaratory relief against individual state officials. Raj , 714 F.3d at 328 (citing Ex parte Young , 209 U.S. 123, 155-56, 28 S.Ct. 441, 52 L.Ed. 714 (1908) ); see also Nelson v. Univ. of Tex. at Dallas , 535 F.3d 318, 321-22 (5th Cir. 2008) ("Pursuant to the Ex Parte Young exception, the Eleventh Amendment is not a bar to suits for prospective relief against a state employee acting in his official capacity."). Under this exception, "claims against state officials for prospective injunctive relief under § 1983... are not barred by sovereign immunity." Kobaisy v. Univ. of Miss. , 624 Fed.Appx. 195, 198 (5th Cir. 2015) (citing Nelson , 535 F.3d at 324 ); see May v. N. Tex. State Hosp. , 351 Fed.Appx. 879, 880 (5th Cir. 2009) (citing Aguilar v. Tex. Dep't of Crim. Justice , 160 F.3d 1052, 1054 (5th Cir. 1998) (stating that the Ex Parte Young exception "applies to suits that allege a violation of federal law that are 'brought against individual persons in their official capacities as agents of the state, and the relief sought must be declaratory or injunctive in nature and prospective in effect.' ").

Although the judges assert that Plaintiff has not sufficiently pleaded the Ex Parte Young exception, they also specifically recognize that the exception applies "when (1) the suit is against a state official and (2)

the plaintiff seeks only prospective injunctive relief (3) in order to end a 'continuing violation of federal law.' " (doc. 69 at 44-45.) Plaintiff seeks injunctive relief under § 1983 against them in their official capacities in order to "transfer venue to a county in which [she] can receive a fair trial" in her child custody and criminal cases. (doc. 79 at 35-36.) She asserts that she "has not, and will never, receive a fair and impartial hearing from the judicial officers of ... County" in violation of her constitutional rights. (Id. at 35.) Accordingly, her claim fits within the exception. (See doc. 69 at 44-45); see also May , 351 Fed.Appx. at 880 (citing Aguilar , 160 F.3d at 1054 ); Nelson , 535 F.3d at 321-22.

Because Plaintiff is seeking prospective injunctive relief against the judges in their official capacities under § 1983, Eleventh Amendment immunity does not bar this claim. See Griffin v. American Zurich Ins. Co. , No. 3:14-CV-2470-P, 2016 WL 3361528, at *3 (N.D. Tex. Feb. 24, 2016) (applying Ex parte Young to deny dismissal of § 1983 claims for prospective injunctive relief against state officials in their official capacities).

B. Younger Abstention Doctrine

Defendants move to dismiss for lack of subject matter jurisdiction based on the Younger abstention doctrine. (docs. 57 at 2-3; 69 at 2, 32-34; 80 at 2, 30; 82 at 16-17.)

Under the Younger abstention doctrine, "federal courts must[ ]refrain from considering requests for injunctive relief based upon constitutional challenges to state criminal proceedings pending at the time the federal action is instituted." Tex. Ass'n of Bus. v. Earle , 388 F.3d 515, 518 (5th Cir. 2004) (citing cases); Wightman-Cervantes v. Tex. , No. 3:03-CV-3025-D, 2004 WL 2512208, at *2 (N.D. Tex. Nov. 5, 2004) (citing Younger , 401 U.S. at 54, 91 S.Ct. 746 ). The Younger abstention doctrine does not apply to claims for monetary relief. See Saloom v. Tex. Dept. of Family and Child Protective Servs. , 578 Fed.Appx. 426, 429 (5th Cir. 2014) (stating that "requests for monetary damages do not fall within the purview of the Younger abstention doctrine"). "While it was once thought that Younger applied only to state criminal or 'quasi-criminal' proceedings, the [Supreme] Court has now made it clear that '[t]he policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved.' " Women's Cmty. Health Ctr. of Beaumont, Inc. v. Tex. Health Facilities Comm'n , 685 F.2d 974, 978-79 (5th Cir. 1982) (quoting Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass'n , 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) ). Three conditions must be met for the doctrine to apply: "(1) the dispute must involve an 'ongoing state judicial proceeding;' (2) an important state interest in the subject matter of the proceeding must be implicated; and (3) the state proceeding must afford an adequate opportunity to raise constitutional challenges." Wightman-Cervantes , 2004 WL 2512208, at *2 (citing Wightman v. Tex. Supreme Court , 84 F.3d 188, 189 (5th Cir. 1996) ).

1. Ongoing State Judicial Proceeding

To determine if a "dispute involves an 'ongoing state judicial proceeding,' the point of reference is the date suit was filed." Wightman-Cervantes v. Tex. , No. 3:03-CV-3025-D, 2005 WL 770598, at *3 (N.D. Tex. Apr. 6, 2005) (quoting DeSpain v. Johnston , 731 F.2d 1171, 1178 (5th Cir. 1984) ). "Additionally, '[t]he state interest that is triggered by the institution of the state proceeding continues through the completion of the state appeals process,' and, as a result, 'the Younger doctrine requires that federal courts abstain when a state proceeding is pending and the state appellate procedure has not been exhausted.' " Id. at *3.

As noted, Plaintiff is seeking injunctive relief to transfer her child custody and criminal cases to a different county. (doc. 79 at 35-36.) She filed her original complaint on February 6, 2017, and her most current complaint alleges that her criminal proceedings and/or appeals were ongoing in March of 2017. (See docs. 3; 79 at 25-26, 35-36.) She also appears to allege that her child custody proceedings are ongoing, claiming that she "has not, and will never, receive a fair and impartial hearing from the judicial officers of [County] on her family law matters." (doc. 79 at 35-36.) The first condition is met.

2. Important State Interest

Family law and child custody matters implicate important state interests. See Shipula v. Tex. Dep't of Family Protective Servs. , No. H-10-3688, 2011 WL 1882521, at *9 (S.D. Tex. May 17, 2011) (citing Moore v. Sims , 442 U.S. 415, 434, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) ) ("family and child custody are important state interests as a matter of law"). The criminal proceedings also implicate an important state interest because "[t]he state has a strong interest in enforcing its criminal laws." Wightman-Cervantes , 2005 WL 770598, at *4 (quoting DeSpain , 731 F.2d at 1176 ). The second condition is also met.

3. Opportunity to Raise Constitutional Challenges

As for the third condition, federal courts "should assume that state court procedures will afford an adequate remedy, in the absence of unambiguous authority to the contrary." Pennzoil Co. v. Texaco, Inc. , 481 U.S. 1, 15, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987). To overcome this assumption, "the federal plaintiff must show that he had no opportunity to litigate the federal issue in state court." Wightman-Cervantes v. Texas , 2005 WL 770598, at *4 (quoting DeSpain , 731 F.2d at 1178 ).

Here, Plaintiff "has not alleged any facts showing that she was barred from raising her constitutional concerns in the state court proceedings." Shipula , 2011 WL 1882521, at *9. The fact that she has been unsuccessful in transferring venue in her child custody case and in her criminal prosecution for carrying a gun into a prohibited area does not mean that she has not had "an adequate opportunity to raise [her] constitutional challenges." Beasley v. Krafcisin , No. 3:13-CV-4972-M-BF, 2014 WL 4651996, at *2 (N.D. Tex. Sept. 17, 2014). To the extent she believes she will not receive a fair trial in County, she has an adequate remedy at law because she may raise her constitutional concerns on direct appeal. See Childress v. Watkins , No. 5:14-CV-748-DAE, 2014 WL 4274311, at *3 (W.D. Tex. Aug. 28, 2014) (finding that "state proceedings, which include the appeal process, are adequate to redress any alleged constitutional deprivation"). Because Plaintiff has failed to show that she "had no opportunity to litigate the federal issue in state court," and she has an adequate remedy at law, the third condition is met.

4. Bad Faith Exception

Although not expressly raised, Plaintiff's allegations of retaliation based for her prior lawsuit against County and Sheriff may be liberally construed as invoking the bad faith exception to the Younger abstention doctrine. (See doc. 79 at 28-29, 30, 39.)

"The Fifth Circuit has applied the bad faith exception in 'two major circumstances': first, when a state commences a prosecution or proceeding to retaliate for or to deter constitutionally protected conduct; and second, when the prosecution or proceeding is taken in bad faith or for the purpose to harass." All American Check Cashing, Inc. v. Corley , 191 F.Supp.3d 646, 660 (S.D. Miss. 2016) (citations omitted) (citing cases). If the exception applies, a federal court must abstain from entering an injunction "unless the movant pleads and proves bad faith, harassment, or other exceptional circumstances...." Wightman-Cervantes , 2004 WL 2512208, at *2 (citing Nobby Lobby, Inc. v. City of Dallas , 970 F.2d 82, 87 (5th Cir. 1992) ). The " 'bad faith' exception is narrow and should be granted parsimoniously." Hefner v. Alexander , 779 F.2d 277, 280 (5th Cir. 1985). The plaintiff "has the burden of showing that the exception applies." Wightman-Cervantes , 2005 WL 770598, at *5 (citing Stewart v. Dameron , 460 F.2d 278, 279 (5th Cir. 1972) ). The bad faith exception applies where:

(1) the plaintiff establishes that the conduct allegedly retaliated against or sought to be deterred was constitutionally protected, and that the state's bringing of the criminal prosecution was motivated, at least in part, by a purpose to retaliate for or to deter that conduct; and (2) the state fails to show by a preponderance of the evidence that it would have decided to prosecute even had the impermissible purpose not been considered.

Jordan v. Reis , 169 F.Supp.2d 664, 669 (S.D. Tex. 2001) (citing Wilson v. Thompson , 593 F.2d 1375, 1382-83 (5th Cir. 1979) ).

Here, Plaintiff has not alleged that either State or its employees initiated the child custody proceedings. (See doc. 79 at 6.) see also Machetta v. Moren , No. 4:16-CV-2377, 2017 WL 2805192, at *4 n.9 (S.D. Tex. Apr. 13, 2017) (noting that the bad faith exception applies "when state prosecutions were undertaken in bad faith or to harass"); All American Check Cashing, Inc. , 191 F.Supp.3d at 660-62 (stating that the bad faith exception applies where a state commences the action); Jordan , 169 F.Supp.2d at 668 ("This well carved out exception derives from the notion that a state does not have a legitimate interest in pursuing bad faith prosecutions"); see also Wightman-Cervantes , 2004 WL 2512208, at *2 ("federal court must abstain from enjoining ... a state criminal proceeding unless the movant ... proves bad faith, harassment, or other exceptional circumstances"). Rather, Plaintiff's children were removed from her only after Ex-husband filed a motion for "emergency relief." (doc. 79 at 6.) Plaintiff has not met her burden to show that the bad faith exception applies because she makes only conclusory and speculative allegations that part of the retaliation against her included a "conspiracy to take away her children for no reason, and with no evidence." (Id. at 1-2, 39.) see Wightman-Cervantes , 2005 WL 770598, at *5 (citing Stewart , 460 F.2d at 279 ) (recognizing the burden is on the plaintiff to establish that the bad faith exception applies).

Regarding her criminal case, Plaintiff asserts that DA and ADA filed a criminal action against her for carrying a gun into a prohibited area "at the urging of the Defendant judges" in retaliation for exercising her constitutional right to sue County for the wrongful death of her father, as evidenced by the "inexplicable judicial rulings against her." (doc. 79 at 24, 28-29.) She claims that Judge McGregor, who presided over the criminal case, refused to recuse, transfer venue, or grant her motion limine; allowed improper evidence and testimony; and issued an order prohibiting her from visiting the County courthouse where she does her legal research. (Id. at 24-27.)

Plaintiff's filing of the prior civil lawsuit against County for the allegedly wrongful death of her father was constitutionally protected conduct. See Wilson , 593 F.2d at 1387 ("It is by now well established that access to the courts is protected by the First Amendment right to petition for redress of grievances"). She has not, however, alleged sufficient facts to show that her subsequent prosecution was "instituted and conducted ... to retaliate for or to deter constitutionally protected conduct ...." All American Check Cashing, Inc. , 191 F.Supp.3d at 660 (emphasis in original); see also Fitzgerald v. Peek , 636 F.2d 943, 945 (5th Cir. 1981) (per curiam) (the bad faith exception applies "if the plaintiff establishes that the conduct allegedly retaliated against or sought to be deterred is constitutionally protected and that the state's bringing of the criminal prosecution is motivated at least in part by a purpose to retaliate against or deter that conduct"). Plaintiff offers only speculation that the judges' actions in her criminal prosecution were for the purpose of retaliating against her. See id. at 662 ; Wightman-Cervantes , 2004 WL 2512208, at *3-4 (declining to apply the bad faith exception where the plaintiff failed to plead facts in support of his conclusory allegations regarding the actions of a judge and prosecutor); compare Jordan , 169 F.Supp.2d at 669 (finding that the defendant was motivated to retaliate against the plaintiff's constitutionally protected right where (1) the defendant relied on testimony of two felony inmates to procure an indictment, and (2) the county attorneys offered to dismiss the plaintiff's criminal case if he would drop his civil case against the county and sheriff). Her complaint concedes that she carried a gun into a prohibited place, and her indictment and subsequent conviction weigh against a determination that she was prosecuted "with no hope of obtaining a valid conviction." See Jordan , 169 F.Supp.2d at 669 (finding that "whether the state prosecution was undertaken with no hope of obtaining a valid conviction" is relevant to determining if the bad faith exception applies). Accordingly, the allegations in Plaintiff's second amended complaint do not support application of the bad faith exception to permit her to seek injunctive relief in her criminal proceeding.

Plaintiff's claim for injunctive relief against the judges should be dismissed without prejudice for lack of subject matter jurisdiction under the Younger abstention doctrine.

C. Rooker - Feldman

Several Defendants also contend that subject matter jurisdiction is lacking based on the Rooker - Feldman doctrine because Plaintiff's federal "claims are 'enmeshed' and 'inextricably intertwined' with the underlying criminal and domestic relations" cases, which are exclusively state concerns. (docs. 69 at 45; 82 at 16, 18.) They assert that Plaintiff's only available "course of action is to present her alleged claims ... in the Texas criminal and child custody proceeding[s] ... and to appeal any adverse rulings" from those proceedings through "Texas appellate courts and ultimately the United States Supreme Court." (doc. 82 at 18.)

The Rooker - Feldman doctrine divests federal district courts of jurisdiction over "cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the federal district court proceedings commenced and inviting district court review and rejection of those judgments." Exxon Mobil Corp. v. Saudi Basic Indus. , 544 U.S. 280, 281, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). "[F]ederal district courts, as courts of original jurisdiction, lack appellate jurisdiction to review, modify, or nullify final orders of state courts."See Weekly v. Morrow , 204 F.3d 613, 615 (5th Cir. 2000) (quoting Liedtke v. State Bar of Tex. , 18 F.3d 315, 317 (5th Cir. 1994) ). Under 28 U.S.C. § 1257, only the United States Supreme Court has exclusive jurisdiction to review final judgments or decrees entered by the highest court of a state. Accordingly, "a party losing in state court is barred from seeking what in substance would be appellate review of the state judgment in a United States district court, based on the losing party's claim that the state judgment itself violates the loser's federal rights." Johnson v. De Grandy , 512 U.S. 997, 1005-06, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994).

A "state court judgment is attacked for purposes of Rooker - Feldman 'when the [federal] claims are inextricably intertwined with a challenged state court judgment.' " Weaver v. Tex. Capital Bank, N.A. , 660 F.3d 900, 904 (5th Cir. 2011) (per curiam) (citations and internal quotation marks omitted). Rooker - Feldman "does not preclude federal jurisdiction over an 'independent claim,' even 'one that denies a legal conclusion that a state court has reached [,]' " however. Id. (quoting Exxon Mobil Corp , 544 U.S. at 293, 125 S.Ct. 1517 ); accord Avdeef v. Royal Bank of Scotland, P.L.C. , 616 Fed.Appx. 665, 673 (5th Cir. 2015) (per curiam). The doctrine "generally applies only where a plaintiff seeks relief that directly attacks the validity of an existing state court judgment." Weaver , 660 F.3d at 904 (emphasis added). Nonetheless, a party cannot escape Rooker - Feldman by "casting ... a complaint in the form of a civil rights action." Liedtke , 18 F.3d at 317 (citing cases).

Plaintiff sues under §§ 1983 and 1985 and state law, alleging that Defendants discriminated against her in her child custody case to confiscate her children, put her through many hearings to drain her finances, denied her bond, denied her right to counsel, placed her in solitary confinement, attempted to entrap her, invaded her privacy by producing false and defamatory documents against her regarding the entrapment scheme, and violated criminal statutes to leak the false and defamatory documents in retaliation against her for exercising her right to sue County and Sheriff. (doc. 79 at 28-30, 32-37, 39-40.) She does not seek review or rejection of the state courts' judgments in her civil or criminal proceedings. Rather, she challenges Defendants' alleged actions before and during those proceedings. (See doc. 79 at 6, 10-13, 17-18.) As for her allegations that Defendants produced and offered false and defamatory documents against her in state court, "claims that private parties misled the state court are not barred by the Rooker - Feldman doctrine." (Id. at 19, 21, 23, 26.) Saloom , 578 Fed.Appx. at 429. "Moreover, ... [Plaintiff] seeks damages for injuries caused by [Defendants]' actions, rather than by the state court judgment, which is demonstrated by her emphasis on [Defendants]' actions rather than the state court judgment." (doc. 79 at 41.) Saloom , 578 Fed.Appx. at 429. Plaintiff's "lawsuit is not barred simply because [Defendants'] actions allegedly led to the state court judgment[s]." Saloom , 578 Fed.Appx. at 429 (citing Truong v. Bank of Am., N.A. , 717 F.3d 377, 382-84 (5th Cir. 2013) ). Accordingly, her claims are not barred by the Rooker - Feldman doctrine.

Because Plaintiff has alleged various independent constitutional and state law claims for monetary damages that were not considered by the state courts, the Rooker - Feldman doctrine does not divest this Court of subject matter jurisdiction over them.

D. Domestic Relations Exception

Several Defendants move to dismiss Plaintiff's constitutional claims for lack of subject matter jurisdiction under the domestic relations exception. (docs. 57 at 2-4; 69 at 35; 82 at 16-18.)

"The domestic relations exception does not apply to the court's consideration of federal question jurisdiction." Smith v. Tisdale , No. 3:09-CV-1165-D, 2009 WL 3163541, at *4 n.6 (N.D. Tex. Sept. 30, 2009). Rather, it is an exception to diversity jurisdiction. See Goins v. Goins , 777 F.2d 1059, 1062-63 (5th Cir. 1985) (recognizing the domestic relations exception to federal diversity jurisdiction); Shipula v. Tex. Dep't of Fam. & Protective Servs. , No. H-10-3688, 2011 WL 1882521, at *16 n.50 (S.D. Tex. May 20, 2011) (citing Smith , 2009 WL 3163541, at *4 and n.6 ) (recognizing that the domestic relations exception is only applicable in diversity jurisdiction cases). The exception is inapplicable in this federal question case, and Defendants' motions to dismiss on this basis should be denied. See Shipula , 2011 WL 1882521, at *16 n.50.

III. 12(b)(6)

Defendants move to dismiss Plaintiff's claims under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. (See docs. 39 at 1; 57 at 1, 4; 69 at 2, 35-36; 80 at 11; 82 at 1-2, 19.)

Rule 12(b)(6) allows motions to dismiss for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Under the 12(b)(6) standard, a court cannot look beyond the face of the pleadings. Baker v. Putnal , 75 F.3d 190, 196 (5th Cir. 1996) ; see also Spivey v. Robertson , 197 F.3d 772, 774 (5th Cir. 1999), cert. denied , 530 U.S. 1229, 120 S.Ct. 2659, 147 L.Ed.2d 274 (2000). It is well-established that "pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers." Miller v. Stanmore , 636 F.2d 986, 988 (5th Cir. 1981). Nonetheless, regardless of whether the plaintiff is proceeding pro se or is represented by counsel, pleadings must show specific, well-pleaded facts, not mere conclusory allegations to avoid dismissal. Guidry v. Bank of LaPlace , 954 F.2d 278, 281 (5th Cir. 1992). The court must accept those well-pleaded facts as true and view them in the light most favorable to the plaintiff. Baker , 75 F.3d at 196. "[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the alleged] facts is improbable, and 'that a recovery is very remote and unlikely.' " Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). A plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do," however. Id. at 555, 127 S.Ct. 1955 ; accord Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (emphasizing that "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions"). The alleged facts must "raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. In short, a complaint fails to state a claim upon which relief may be granted when it fails to plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955.

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. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.' "

Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (citations omitted). When plaintiffs "have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed." Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ; accord Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

As noted, a court cannot look beyond the pleadings in deciding a 12(b)(6) motion. Spivey , 197 F.3d at 774 ; Baker , 75 F.3d at 196. When a party presents "matters outside the pleadings" with a Rule 12(b)(6) motion to dismiss, a court has "complete discretion" to either accept or exclude the evidence for purposes of determining the motion. Isquith ex rel. Isquith v. Middle S. Utils., Inc. , 847 F.2d 186, 196 n.3 (5th Cir. 1988) ; accord Gen. Retail Servs., Inc. v. Wireless Toyz Franchise, LLC , 255 Fed.Appx. 775, 783 (5th Cir. 2007). "If ... matters outside the pleading[s] are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56," and "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed. R. Civ. P. 12(d). For purposes of a Rule 12(b)(6) motion, "pleadings" include attachments to the complaint. In re Katrina Canal Breaches Litig. , 495 F.3d 191, 205 (5th Cir. 2007) ; Collins v. Morgan Stanley Dean Witter , 224 F.3d 496, 498 (5th Cir. 2000). Similarly, documents "attache[d] to a motion to dismiss are considered part of the pleadings, if they are referred to in the plaintiff's complaint and are central to her claim[s]." Collins , 224 F.3d at 499 (quotations omitted); accord Benchmark Elecs., Inc. v. J.M. Huber Corp. , 343 F.3d 719, 725 (5th Cir. 2003). It is also "clearly proper in deciding a 12(b)(6) motion to take judicial notice of matters of public record."

Norris v. Hearst Trust , 500 F.3d 454, 461 n.9 (5th Cir. 2007) ; Cinel v. Connick , 15 F.3d 1338, 1343 n.6 (5th Cir. 1994). Documents falling in these three categories may be properly considered without converting the motion to dismiss into a motion for summary judgment.

Several Defendants attached case law in support of their arguments. (See doc. 69 at 75-115.) These cases are not attached to Plaintiff's second amended complaint, and although they are not referred to in her complaint nor central to her claims, they may be judicially noticed because they are matters of public record, and their contents cannot reasonably be disputed. See Norris , 500 F.3d at 461 n.9 ; Matter of Manges , 29 F.3d 1034, 1042 (5th Cir. 1994) (taking judicial notice of "unimpeached certified copies of ... deeds and assignments"); see also Fed. R. Evid. 201(b)(2) (a court may take judicial notice of a fact when it "can be accurately and readily determined from sources whose accuracy cannot reasonably be disputed"). Accordingly, it is unnecessary to convert Defendants' motion to dismiss into a motion for summary judgment.

A. Absolute Immunity

The judges and prosecutors move to dismiss all claims against them based on absolute immunity.

1. Judicial Immunity

The judges contend that all claims against them should be dismissed based on the doctrine of judicial immunity. (docs. 69 at 18, 37-42; 80 at 20-21.)

The Supreme Court has recognized absolute immunity for judges acting in the performance of their judicial duties. See Nixon v. Fitzgerald , 457 U.S. 731, 745-46, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982). Judges are immune from suit for damages resulting from any judicial act. Mireles v. Waco , 502 U.S. 9, 11-12, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991). Allegations of bad faith or malice do not overcome judicial immunity. Id. at 11, 112 S.Ct. 286. A plaintiff can overcome the bar of judicial immunity only under two very limited circumstances. See Mireles , 502 U.S. at 11-12, 112 S.Ct. 286 ; see also Boyd v. Biggers , 31 F.3d 279, 284 (5th Cir. 1994). First, a judge is not immune from suit for actions that are not "judicial" in nature. See Mireles , 502 U.S. at 11, 112 S.Ct. 286. "[W]hether an act by a judge is a 'judicial' one relate[s] to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity." Davis v. Tarrant County, Tex. , 565 F.3d 214, 222 (5th Cir. 2009) (quoting Mireles , 502 U.S. at 12, 112 S.Ct. 286 ). "[T]he relevant inquiry is the 'nature' and 'function' of the act, not the 'act itself.' In other words, [a court should] look to the particular act's relation to a general function normally performed by a judge...." Id.

[The Fifth Circuit] has adopted a four-factor test for determining whether a judge's actions were judicial in nature: (1) whether the precise act complained of is a normal judicial function; (2) whether the acts occurred in the courtroom or appropriate adjunct spaces such as the judge's chambers; (3) whether the controversy centered around a case pending before the court; and (4) whether the acts arose directly out of a visit to the judge in his official capacity. These factors are broadly construed in favor of immunity.

Davis , 565 F.3d at 222-23 (citations omitted). "The absence of one or more factors will not prevent a determination that judicial immunity applies." Carter v. Carter , No. 3:13-CV-2939-D (BF), 2014 WL 803638, at *1 (N.D. Tex. Feb. 20, 2014) (citing Ballard v. Wall , 413 F.3d 510, 515 (5th Cir. 2005) ). Second, a judge is not immune from suit for actions that although judicial in nature, are taken in the complete absence of all jurisdiction. See Mireles , 502 U.S. at 12, 112 S.Ct. 286 ; see also Malina v. Gonzales , 994 F.2d 1121, 1124 (5th Cir. 1993).

"Texas courts employ the same judicial immunity analysis as the federal courts in this Circuit...." Durrance v. McFarling , No. 4:08-CV-289, 2009 WL 1577995, at *3 (E.D. Tex. June 4, 2009) (citing Hawkins v. Walvoord , 25 S.W.3d 882, 890 (Tex. App.-El Paso 2000, pet. denied) ); see Sharp v. Palmisano , No. 16-5429, 2013 WL 5969661, at *4 (E.D. La. Nov. 8, 2013) (citing Hawkins , 25 S.W.3d at 890 ) (recognizing that Texas' judicial immunity principles mirror the federal judicial immunity doctrine). Accordingly, to the extent the judges are immune from Plaintiff's federal claims, they are also immune from her state law claims.

a. Judge Bridewell

Judge Bridewell was involved in the early stages of Plaintiff's child custody case. (doc. 79 at 6-7.) After Ex-husband filed a motion for sole custody of the children, he allegedly removed all three children from her custody "without proper notice and without an opportunity to be heard;" ordered drug tests, social studies, and psychological evaluations for all parents; and refused to reverse his temporary child custody order. (Id. at 6-7.)

Plaintiff's claims against Judge Bridewell are based on actions that are "normally performed by a judge," and she specifically alleges that she was dealing "with the judge in his judicial capacity."See Liptak v. Banner , No. 3:01-CV-0953-M, 2002 WL 378440, at *2 (N.D. Tex. Mar. 7, 2002) (citing Mireles , 502 U.S. at 11-12, 112 S.Ct. 286 ). Because Judge Bridewell was acting in the performance of his judicial duties in committing the alleged acts, Plaintiff's federal and state law claims against him in his individual capacity are barred by judicial immunity.

b. Judge McBroom

Judge McBroom was involved in the early stages of the criminal case against Plaintiff for carrying a gun into a prohibited area. (doc. 79 at 10.) She claims that he refused to set her bond at the initial hearing following her arrest. (Id. ) This duty is "normally performed by a judge," and Plaintiff's allegations show that she was dealing with Judge McBroom in his judicial capacity. See Liptak , 2002 WL 378440, at *2 (citing Mireles , 502 U.S. at 11-12, 112 S.Ct. 286 ). She also claims that Judge McBroom was involved in the alleged conspiracy against her, but she makes no specific allegations regarding his involvement and does not allege that he acted outside the scope of his judicial duties or without jurisdiction. (See doc. 79. at 10, 12, 17.); see also Florance v. Buchmeyer , 500 F.Supp.2d 618, 636 (N.D. Tex. 2007). "The fact that it is alleged that the judge acted pursuant to a conspiracy ... is not sufficient to avoid absolute judicial immunity." Mitchell v. McBryde , 944 F.2d 229, 230 (5th Cir. 1991). Plaintiff's federal and state law claims against Judge McBroom in his individual capacity are barred by judicial immunity.

c. Judge McGregor

Plaintiff's claims against Judge McGregor arise from judicial actions taken during her child custody and criminal cases. (doc. 79 at 19-20, 25.) She complains of the following actions in her child custody case: (1) refusing to grant a continuance to allow her to retain counsel; (2) allowing a narrative report and testimony regarding the alleged entrapment scheme into evidence; (3) ordering her to make monthly payments to Ex-husband and pay for drug testing that she requested for Ex-husband and his girlfriend, (4) allowing testimony from a police officer regarding the items found in the search of her vehicle and from a psychologist who was to diagnose and analyze her; and (5) ordering that she have supervised visitation with her children and that she pay for each visit. (Id. at 20-23.) In her criminal case, Judge McGregor allegedly: (1) refused to grant her motions to transfer venue; (2) refused to recuse himself on her motion; (3) refused to grant her motions in limine; (4) allowed testimony from Judge Neill regarding the "gun-turn-over order" he entered; (5) allowed testimony from Deputy regarding the alleged entrapment scheme; and (6) prohibited her from visiting the courthouse where she conducts her research. (Id. at 25-27.)

Plaintiff's allegations against Judge McGregor arise from acts in his capacity as a judge that are "normal judicial functions" and which occurred in court during Plaintiff's pending cases. See Davis , 565 F.3d at 222-23. She makes no specific allegation that Judge McGregor acted outside the scope of his judicial duties or without jurisdiction. Plaintiff's federal and state law claims against Judge McGregor in his individual capacity are therefore barred by judicial immunity.

D. Judge Neill

Plaintiff's claims against Judge Neill arise out of her child custody and criminal cases. (See doc. 79 at 8-9, 11, 13-14.) She contends that in her child custody case, he: (1) refused to set an emergency hearing; (2) modified, instead of reversing, the temporary child custody orders; (3) verbally ordered that the parties turn over their guns to their attorneys; and (4) refused to schedule a hearing on her "writ of habeas corpus return of child " in violation of the Texas Code of Judicial Conduct. (Id. at 8-9.) In her criminal case, she alleges that he initially denied her bond but granted her one ten days later conditioned upon home confinement, a GPS tracker, and no contact with her children. (Id. at 11, 13-14.) She then petitioned for a writ of habeas corpus to amend the bond conditions, but Judge Neill "refused to modify his order", and she asserts he lacked subject matter jurisdiction to do so. (Id. at 15.)

Plaintiff does not allege that Judge Neill acted outside the scope of his judicial duties in conducting these actions. See Florance , 500 F.Supp.2d at 636. Holding hearings and setting bond are actions normally performed by judges in their judicial capacities and are therefore protected by judicial immunity. See Liptak , 2002 WL 378440, at *2 (citing Mireles , 502 U.S. at 11-12, 112 S.Ct. 286 ); see also Morrison v. Walker , 704 Fed.Appx. 369, 375 (5th Cir. 2017) (finding that holding a hearing is normal judicial function); Thompson v. Duke , 882 F.2d 1180, 1184 (7th Cir. 1989) (determining that scheduling a case for hearing is a judicial function); Chachere v. Houston Police Dept. , No. H-05-3187, 2006 WL 3391443, at *4 (S.D. Tex. Nov. 21, 2006) (finding that a judge is immune from liability for refusing to set bond). Plaintiff's claim that Judge Neill lacked subject matter jurisdiction to refuse to modify the bond order because he was punishing her without an adjudication of guilt is conclusory and speculative. He was acting in his judicial capacity in refusing to modify the order. "[J]udicial immunity is not overcome by allegations of bad faith or malice...." Mireles , 502 U.S. at 11, 112 S.Ct. 286. Judge Neill is entitled to judicial immunity from Plaintiff's federal and state law claims against him in his individual capacity based on actions taken in his capacity as a judge in her cases.

e. Judge Bosworth

Plaintiff claims that Judge Bosworth refused to set an emergency hearing in her child custody case, made a "court incident report" following her arrest that allegedly contained defamatory statements that she was "possibly sociopathic or psychopathic", and held her without bond for twelve days. (doc. 79 at 8, 30.) Refusing to set an emergency hearing and holding her without bond were within the scope of his judicial duties, and Plaintiff does not assert otherwise. Although she claims that the "court incident report" was an administrative document containing defamatory statements and was therefore not protected by judicial immunity, the report was made regarding Plaintiff's pending criminal case following her arrest for carrying a gun into a prohibited area. (Id. at 30.) Her statement that this act was "administrative does not make [it] so." Odeh v. Mitchell , No. 4:07-CV-0411-L, 2008 WL 4387082, at *3 (N.D. Tex. Sept. 25, 2008). The Fifth Circuit's four-factor test supports a finding that this action was judicial in nature. See Davis , 565 F.3d at 222-23 (stating the four-factor test). To the extent she claims these acts were conducted in furtherance of the alleged conspiracy against her, Judge Bosworth retains judicial immunity. See Mitchell , 944 F.2d at 230 (quoting Johnson v. Kegans , 870 F.2d 992, 995 (5th Cir.), cert. denied , 492 U.S. 921, 109 S.Ct. 3250, 106 L.Ed.2d 596 (1989) ) ("The judge is absolutely immune for all judicial acts 'not performed in clear absence of all jurisdiction, however erroneous the act and however evil the motive.' ").

She also alleges that Judge Bosworth engaged in a non-judicial act when he had a "private, after-business-hours meeting" in his chambers with his close friend, CI, and conspired to entrap her. (doc. 79 at 10, 12.) She claims that Sheriff testified that Judge Bosworth and CI met, and CI then "approached [Sheriff] to plan the entrapment scheme." (Id. at 12.) Conspiring to entrap an individual would not be a "normal judicial function." See Crowe v. Lucas , 595 F.2d 985, 990 (5th Cir. 1979) (finding that conspiring to deprive an individual of his civil rights is not a judicial act). According to the complaint, th