Shipula v. Tex. Dep't of Family Protective Serv.

ALEXANDRA SHIPULA, Individually and ALEXANDRA SHIPULA A/N/F of D.S., Minor Children, Plaintiffs,

v.TEXAS DEPARTMENT OF FAMILY PROTECTIVE SERVICES, et al., Defendants.

CIVIL ACTION H-10-3688

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

Dated: May 17, 2011

OPINION AND ORDER OF DISMISSAL

Pending before the Court in the above referenced case, inter alia challenging, as a violation of pro se Plaintiff Alexandra Choppily's rights to familial association with her minor children, D.S. and E.S., under both the Federal and Texas Constitutions and the Texas Family Code, Defendants' actions and rulings in a state court action brought by pro se Plaintiff's husband, Defendant Steve Choppily, and alleging unconstitutional interference with her custodial rights as a parent, are the following motions:

1. Defendants State of Texas, Texas Department of Family and Protective Services ("TDFPS" or "the Department"), and CPS Defendants'¹ motion to dismiss (instrument #8);2. Defendants the State of Texas,² Texas Department of Family Protective Services,³ Rebecca Cunio,⁴ Orlando Velez, Chrystal Reid-Sophus, Ieshia Webb,⁵ Deanna Lowery-Green,⁶ Tara Grace,⁷ Leisha Fisher, Brian Bartko,⁸ Scott Dixon,⁹ Jose Martinez, Katie Olse,¹⁰ John Landis, Tonnis Hilliard,¹¹ Diana Sutton,¹² Vanessa Gistand,¹³ IvyChambers,¹⁴ Ann Heiligenstein,¹⁵ Judge Joseph Ann Ottis,¹⁶ and Senator Jane Nelson's amended opposed motion to stay discovery (#13);

3. Defendant Judge Ottis's motion to dismiss (#9);

4. Defendant Senator Jane Nelson's¹⁷ motion to dismiss (#10);

5. Defendant Robin D. McKinney's¹⁸ motion to dismiss (#14);

6. Defendant Tom Wallace's¹⁹ motion to dismiss (#16);7. Defendant Joseph P. Cannon's²⁰ motion to dismiss (#17);

8. Defendant Theresa Burbank's²¹ motion to dismiss (#22);

9. Defendant Theresa Burbank's motion for mor definite statement (#23);

10. Defendant Victor Love's²² motion to dismiss (#24);

11. Defendant Victor Love's amended motion for more definite statement (#26);

12. Defendant Amy Ngo Lacy's²³ motion to dismiss under Rule 12(b)(1) and 12(b)(6)(#27);

13. Defendant Leeann Hill's²⁴ motion to dismiss (#48);14. Defendant Elizabeth Payte's²⁵ motion to dismiss (#49);

15. Defendant Wanda Smith's²⁶ motion to dismiss (#50) and motion for more definite statement (#51);

16. Pro se Plaintiff Alexandra Shipula's motion to dismiss the motions to dismiss filed by the CPS Defendants, Judge John Ottis, State of Texas and TDFPS (#78);

17. Defendants Scharlene Overstreet's²⁷ and David K. Walker's²⁸ motion to dismiss pursuant to Fed. R. Civ. P.12(b)(1) and (6)(#80);

18. Federal Defendants'²⁹ motion to dismiss (#102);

19. Defendant Steven Shipula's³⁰ motion to dismiss (#118); and

20. Plaintiff's motion for summary judgment (#96).

While the complaint is rambling, disjointed, and unclear, the Court tries to summarize its key allegations.

I. Plaintiff's Allegations

In her "Complaint for Emergency Declaratory Judgment and Emergency Injunctive Relief" (#1), Plaintiff states that "her causes of action are: the unconstitutional interference by the seizure, deprivation and detainment by the STATE of Texas Department of Family Protective Services (TDFPS) and individual actors acting in their official capacity to Plaintiff's minor children, D.S. 7 years old, and E.S. 4 years old, from their natural mother." Id. at p. 5. She also claims "denial ofPlaintiff's right to substantive, and procedural Due Process in the CPS East Texas Cluster Court in Montgomery County, Texas, and a Jury Trial and now continuing in the Montgomery County Court Number 3, Judge Patrice McDonald. [sic]" Moreover in the alleged violations of her constitutional right to her children and her "liberty interest in familial association," id. at p.6, she sues numerous individuals and entities:

Many causes of action, both civil and criminal, exist by actions of State employees and individuals acting as Agents for the Texas Department of Family Protective Services (DFPS), in their official and individual capacities, as well as Attorney's for DFPS, Court-appointed Ad-Liteum, Judges, and CASA, Attorney for the mother, and others. These causes of action include: fraud on the Court, conspiracy/collusion, fraud by commission, fraud by omission, 42 USC 1983 Denial of Rights Under Color of Law, 5th Amendment, right to due process of law, ineffective assistance of counsel, obstruction of justice, abuse of discretion, and intentional infliction of emotional distress, as well as breach of fiduciary duty against the above-named defendant and seeks monetary (compensatory and punitive damages),³¹ emergency injunctive and declaratory relief, and a restraining order on further acts from the Courts or the State to interfere with my custodial rights to my children. [sic]

Id. at pp. 6-7. Plaintiff further states that jurisdiction for her claim for damages against the State of Texas arises under the Texas Tort Claims Act. Id. at p. 12. She also requests a federal and Congressional investigation into her complaints. She seeks twomillion dollars in damages, punitive damages, and declaratory and injunctive relief. #1 at pp. 62, 69-71.

Plaintiff states that she and Steve Shipula were married on April 7, 2001 and divorced on April 30, 2008, although they stopped living together around March 2006. Plaintiff was designated Primary Managing Conservator with no geographical restrictions in the mediated divorce settlement. She claims that the children had minimal contact with Steve Shipula from March 2006, and she maintains that she took good care of the children.

Plaintiff alleges that DS and ES, ages seven and four years, respectively, were seized and placed into foster care by CPS on March 26, 2009 pursuant to an Emergency Order of Protection sought by the Texas Department of Family Protective Services and CPS Caseworker Ieshia Webb and signed by Judge John Phillips, and she has had no contact with them since. That emergency order was continued by Judge Jo Ottis after the case was transferred to Montgomery County for a show cause hearing on May 18, 2009. A status hearing was held in East Texas CPS Cluster Court on June 22, 2009. Plaintiff was denied access to her children, despite completing every request made by CPS and attending every single supervised visit for the next eighteen months. Although Plaintiff had offered her stepsister as a relative placement when the children were removed, CPS did not do a home study. Furthermore Plaintiff states that pursuant to an order signed by Judge Ottis onAugust 18, 2009, on August 21, 2009 the children were placed in their father's home after on eighteen-month investigation following the children's report that the father had sexual contact with both in February 2008. She sought modification of the custody order for months thereafter and complains of mistreatment and continued re-settings of hearings involving numerous individuals in a conspiracy to deprive her of joint custody rights. She claims that they ignored or refused to investigate allegations of sexual contact in the father's home and manufactured false accusations and evidence of abuse or neglect and accusations about her mental health. She has been denied access to her children since March 26, 2009.

II. Standards of Review

A. Federal Rule of Civil Procedure 12(b)(1)

"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." Randall D. Wolcott, MD, PA v. Sebelius, __ F.3d __, No. 10-10290, 2011 WL 870724, *4 (5th Cir. Mar. 15, 2011), citing Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). Fed. R. Civ. P. 12(h)(3).

Rule 12(b)(1) allows a party to move for dismissal of an action for lack of subject matter jurisdiction. Federal courts are courts of limited jurisdiction; absent jurisdiction conferred by statute or the Constitution, they lack the power to adjudicateclaims. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). Federal courts have subject matter jurisdiction where there is diversity of citizenship between the parties and the amount in controversy exceeds $75,000, exclusive of interest and costs, or where there is a question of federal law involved. 28 U.S.C. §§ 1332 and 1331. Subject matter jurisdiction cannot be established by waiver or consent. Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir.), cert, denied, 534 U.S. 993 (2001). If subject matter jurisdiction is lacking, the court must dismiss the suit. Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998).

The party asserting that subject matter exists, here Plaintiff, must bear the burden of proof for a 12(b)(1) motion. Ramming, 281 F.3d at 161.

In reviewing a motion under 12(b)(1) the court may consider (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced 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). All uncontroverted allegations in the complaint must be accepted as true. Id. at 412. Unlike review under Rule 12(b)(6), under Rule 12(b)(1) the court may consider disputed facts as well as undisputed facts in the record. Id.

A motion to dismiss for lack of subject matter jurisdictionunder Rule 12(b)(1) is characterized as either a "facial" attack, i.e., the allegations in the complaint are insufficient to invoke federal jurisdiction, or as a "factual" attack, i.e., the facts in the complaint supporting subject matter jurisdiction are questioned. In re Blue Water Endeavors, LLC, Bankr. No. 08-10466, Adv. No. 10-1015, 2011 WL 52525, *3 (E.D. Tex. Jan. 6, 2011), citing Rodriguez v. Texas Comm'n of Arts, 992 F. Supp. 876, 878-79 (N.D. Tex. 1998), aff'd, 199 F.3d 199 (5th Cir. 2000). A facial attack happens when a defendant files a Rule 12(b)(1) motion without accompanying evidence. Paterson v....