Kirschner v. Tex. Dep't of Family & Protective Servs.

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SUSAN KIRSCHNER, ET AL., Plaintiffs, v. TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, ET AL., Defendants.

Civil Action No. 4:21-CV-00469-SDJ-CAN

United States District Court, E.D. Texas, Sherman Division

July 21, 2022

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHRISTINE A. NOWAK UNITED STATES MAGISTRATE JUDGE

Pending before the Court are Defendant Linda Risinger's Motion to Dismiss [Dkt. 8], Defendant Timothy Alexander's Motion to Dismiss [Dkt. 9], and Plaintiffs Susan Kirschner and Minor Child A.K.'s Motion for Leave to Amend Complaint [Dkt 20]. After reviewing the Motions [Dkts. 8; 9], Responses [Dkts. 12; 13], Replies [Dkts. 15; 18], and all other relevant filings, the Court recommends Defendant Risinger's Motion to Dismiss [Dkt. 8] and Defendant Alexander's Motion to Dismiss [Dkt. 9] each be GRANTED in part and DENIED in part, as set forth herein, and Plaintiff's Motion for Leave to Amend Complaint [Dkt. 20] be DENIED.

BACKGROUND

Relevant Factual and Procedural History

On June 18, 2021, Plaintiffs Susan Kirschner (“Kirschner”) and her Minor Child A.K. (together “Plaintiffs”) filed the instant action against Defendants Texas Department of Family and Protective Services (“DFPS”), Linda Risinger (“Risinger”), and Timothy Alexander (“Alexander”), alleging claims arising out of a state court proceeding initiated by Child Protective Services (“CPS”) [Dkt. 1].^[1] Plaintiffs' Original Complaint asserts claims for violations of the constitutional rights provided by the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment against all Defendants,^[2] as well as a state-law claim for breach of fiduciary duty against Defendants Risinger and Alexander [Dkt. 1 at 5-6].

Kirschner pleads that, in 2019, she was investigated by CPS after it received reports from a third party that she was planning to murder A.K. and commit acts of violence toward members of her community [Dkt. 1 at 2-3]. CPS is a division of the Texas Department of Family and Protective Services; DFPS has not appeared in this action. On June 5, 2019, CPS visited Kirschner and A.K. at their residence, allegedly seeking to enter the home without a warrant and to question A.K. and Kirshner [Dkt. 1 at 3]. Kirschner refused [Dkt. 1 at 3]. On June 9, 2019, A.K. was removed from Kirschner's custody when CPS returned with a sheriff [Dkt. 1 at 3]. Plaintiffs allege CPS provided Kirschner no information about the investigation and no other notice or hearing “other than notice of a preliminary hearing to take place 21 days from the date of taking her daughter out of the home” [Dkt. 1 at 3].

After the initial removal of A.K., Defendant Risinger represented Kirschner as her attorney at a state court preliminary hearing that determined Kirschner and A.K. should remain separated during CPS's investigation [Dkt. 1 at 3-4]. Kirschner alleges that, at this preliminary hearing, Risinger requested the state court terminate Kirschner's parental rights because Risinger was allegedly upset Kirchner would not sign a confession admitting to false allegations that she attempted to murder A.K. [Dkt. 1 at 4]. Kirschner was represented by Defendant Alexander at subsequent hearings in the underlying state court dispute [Dkt. 1 at 4]. Kirschner alleges Alexander lied to her about a deal with DFPS that would permit her to visit A.K., and then subsequent to such visit at the courthouse, Alexander told the court that Kirschner visited her daughter against his advice and without any agreement with DFPS [Dkt. 1 at 4]. Alexander allegedly also asked her to sign paperwork that was blank [Dkt. 1 at 4]. Kirschner was separated from her daughter A.K. for months before being reunited after CPS ultimately determined the allegations were untrue and concluded its investigation [Dkt. 1 at 5].

DEFENDANTS' MOTIONS TO DISMISS

Defendant Risinger [Dkt. 8] and Defendant Alexander [Dkt. 9] each filed Motions to Dismiss alleging similar theories for dismissal under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Specifically, under Rule 12(b)(1), Defendants urge the Court lacks subject matter jurisdiction to hear Plaintiffs' claims because they are barred by the Rooker-Feldman doctrine [Dkts. 8 at 6-9; 9 at 3-7].^[3] They also urge the Court lacks supplemental jurisdiction to hear Kirschner's state law breach of fiduciary duty claim. Under Rule 12(b)(6) Defendants urge Kirschner's constitutional and breach of fiduciary duty claims must be dismissed for failure to state a claim [Dkts. 8 at 9-13; 9 at 7-14].^[4]

Rule 12(b)(1) - Rooker-Feldman Doctrine Does Not Apply

“Subject-matter jurisdiction is essential for the federal judiciary to hear a case.” The Lamar Co., L.L.C. v. Mississippi Transp Comm'n, 976 F.3d 524, 528 (5th Cir. 2020). Because Rooker-Feldman is jurisdictional, it must be addressed first. Truong v. Bank of Am., N.A., 717 F.3d 377, 381-82 (5th Cir. 2013); see Doggins v. Green, No. 4:18-CV-00383-ALM-CAN, 2020 WL 6482981, at *3 (E.D. Tex. Aug. 17, 2020), report and recommendation adopted, No. 4:18-CV-383, 2020 WL 5587238 (E.D. Tex. Sept. 18, 2020) (same). Defendants Risinger and Alexander move to dismiss Plaintiffs' claims as barred by the Rooker-Feldman doctrine on the grounds that the injuries complained of are “inextricably intertwined” with state court orders that resulted in the separation of Kirschner and A.K., and the only damages Plaintiffs plead flow from issuance of the state court orders [Dkts. 8 at 8-9; 9 at 3-4]. In response, Plaintiffs argue Rooker-Feldman is inapplicable because they do not attack or seek review of any state court judgment and the alleged injuries and damages result from the misrepresentations and actions of Defendants DFPS, Risinger, and Alexander [Dkts. 12 at 6; 13 at 5-6].

Under the Rooker-Feldman doctrine, a federal district court lacks jurisdiction to consider “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). Rooker-Feldman has four elements: “(1) a state-court loser; (2) alleging harm caused by a state-court judgment; (3) that was rendered before the district court proceedings began; and (4) the federal suit requests review and reversal of the state-court judgment.” Burciaga v. Deutsche Bank Nat'l Tr. Co., 871 F.3d 380, 384 (5th Cir. 2017) (citation omitted). The doctrine applies to both final judgments and “claims that are ‘inextricably intertwined' with a state court decision.” Id. “One hallmark of the Rooker-Feldman inquiry is what the federal court is being asked to review and reject.” Truong, 717 F.3d at 382 (citing Exxon Mobil, 544 U.S. at 284). “The second hallmark of the Rooker-Feldman inquiry is the source of the federal plaintiff's alleged injury.” Id.

“The federalism interests underlying the Rooker-Feldman doctrine particularly apply to domestic issues like child custody and child support.” Johnson v. MDHS, No. 1:19-CV-829-HSO-JCG, 2020 WL 5415491, at *1 (S.D.Miss. Apr. 14, 2020), report and recommendation adopted, No. 1:19CV829-HSO-JCG, 2020 WL 2572535 (S.D.Miss. May 21, 2020). Nevertheless, the Rooker-Feldman doctrine is applied narrowly; it “does not bar a federal lawsuit simply because it challenges the state court's legal conclusions or alleges that the parties misled the state court.” Saloom v. Texas Dep't of Fam. & Child Protective Servs., 578 Fed.Appx. 426, 429 (5th Cir. 2014) (per curiam) (citing Truong, 717 F.3d at 383-84). Further to this point, a plaintiff's federal lawsuit “is not barred if the alleged injuries were caused by the defendants' actions rather than by the state court judgment, even if the defendants' actions led to the state court judgment.” Id. (citing Truong, 717 F.3d at 382-84); Mathis v. Texas Dep't of Fam. & Protective Servs., No. SA-21-CV-00898-XR, 2021 WL 4551194, at *2 (W.D. Tex. Oct. 5, 2021) (“Because the source of Plaintiff's claimed injuries is not any custody order issued by the state court but the conduct of Defendants leading up to the issuance of that order, her claims are not necessarily barred by Rooker-Feldman.”).

Relevant to the Court's consideration here is Saloom; there, the Fifth Circuit analyzed alleged civil rights violations arising out of the removal of a child from a mother's custody without a court order, with an ongoing custody proceeding resulting in temporary custody to the father.

578 Fed.Appx. at 427-28. The plaintiff challenged the actions taken by the various defendants before the state court entered any orders, such as the defendants' initial non-judicial seizure of her child, and the defendants' offering of perjured and incorrect testimony in state court. Id. at 429. The Fifth Circuit held the Rooker-Feldman doctrine did not bar the plaintiff's lawsuit challenging the initial non-judicial seizure of a minor child and other events associated with that seizure, explaining that although “the amended complaint is not a model of clarity, Saloom sought damages for injuries caused by the defendants' actions rather than by the state court judgment, which is demonstrated by her emphasis on the defendants' actions rather than the state court judgment.” Id. Likewise, in Bogard v. Falkenberg, the parent-plaintiffs alleged wrongdoing related to the seizure of their children by DFPS prior to the issuance of any custody orders. No. SA-21-CV-00021-FB, 2021 WL 1026060, at *5 (W.D. Tex. Mar. 16, 2021). The plaintiffs in that cause sued DFPS, various employees of DFPS, as well as several judges attorneys, and other individuals under § 1983 for money damages. The Bogard court, citing the similarity to the...