McPeters v. Edwards et al, No. 4:2010cv01103 - Document 77 (S.D. Tex. 2010)

Court Description: REPLY to Response to 56 MOTION to Dismiss 19 Amended Complaint/Counterclaim/Crossclaim etc. Under Rules 12(b)(6), 12(b)(1), and 9(b) MOTION to Dismiss 19 Amended Complaint/Counterclaim/Crossclaim etc. Under Rules 12(b)(6), 12(b)(1), and 9(b) MOTION to Dismiss 19 Amended Complaint/Counterclaim/Crossclaim etc. Under Rules 12(b)(6), 12(b)(1), and 9(b), filed by Frederick E Edwards. (Attachments: # 1 Appendix Bryant v. Watts, # 2 Proposed Order GRANTING Motion to Dismiss)(Miller, Allison) (Entered: 08/23/2010)

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McPeters v. Edwards et al Doc. 77 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION PAUL ALEXANDER MCPETERS, § § Plaintiff, § § VS. § § HONORABLE K. MICHAEL EDWARDS, § Individually and in an Official Capacity; § MONTGOMERY COUNTY, TEXAS; § and JOHN DOES, Individually and § in an Official Capacity, § § Defendants. § Civil Action No. 4:07–cv–03814 DEFENDANT THE HONORABLE FREDERICK E. EDWARDS’S REPLY TO PLAINTIFF KAREN MCPETERS’S RESPONSE TO JUDGE EDWARDS’S MOTION TO DISMISS Introduction 1. Defendant Honorable Frederick E. Edwards (“Judge Edwards”) asks the Court to grant his July 14, 2010 motion to dismiss the Second Amended Complaint (the “Complaint”) filed by plaintiff Karen McPeters (“McPeters”). See motion to dismiss, Docket No. 56.1 For all of the reasons asserted in Judge Edwards’s motion to dismiss, McPeters has wholly failed to state a claim against Judge Edwards upon which relief can be granted; she has failed to state her fraud-based claims with particularity; and this Court lacks jurisdiction over certain of McPeters’s 1 On August 13, 2010, along with her responses to the various motions to dismiss, McPeters filed a third amended complaint and a motion for leave to file the amended complaint. See Docket Nos. 70, 71. Judge Edwards is opposed to the motion for leave, and will file a response to McPeters’s motion on or before the due date for filing such a response. Dockets.Justia.com claims. Dismissal of this case against Judge Edwards is therefore appropriate and warranted under the Federal Rules. See FED. R. CIV. P. 9(b), 12(b)(1), (6). McPeters’s Suit Is Barred By The Doctrine Of Judicial Immunity. 2. Judge Edwards is entitled to judicial immunity for the entirety of his alleged actions about which McPeters complains, and McPeters’s rambling, often incoherent response does not demonstrate otherwise. See Docket No. 72. Again, Judge Edwards is entitled to judicial immunity for his alleged actions because: • the entirety of Judge Edwards’s acts and/or omissions made the basis of the Complaint––including issuing the 2003 order about which McPeters complains––are all normal judicial functions, see ; • the entirety of Judge Edwards’s acts and/or omissions made the basis of the Complaint occurred in a courtroom or appropriate adjunct spaces such as the judge’s chambers, and McPeters does not allege otherwise; • the entirety of Judge Edwards’s acts and/or omissions made the basis of the Complaint center around a case then pending before Judge Edwards, i.e., McPeters I and McPeters II, in the 9th District Court of Montgomery County, Texas; and • the entirety of Judge Edwards’s acts and/or omissions made the basis of the Complaint arose directly out of a visit to and/or McPeters’s dealings with Judge Edwards in his official capacity only. See Ballard v. Wall, 413 F.3d 510, 515 (5th Cir. 2005) (describing the factors a court should consider when determining whether judicial immunity applies). More specifically, mandating electronic filing is a “normal judicial function,” and not merely an administrative one, as McPeters contends, because it must be done by a judge; were that not the case, one would assume that all courts in Montgomery County would require e-filing. Yet they do not. See, e.g., –2– Second Amended Complaint, ¶ 58 (making unfounded accusations against the only other district court in Montgomery that requires e-filing through LNFAS). 3. Tellingly, McPeters fails to cite any persuasive authority in support of her contention that judicial immunity does not bar her claims. See Response, pp. 7–10. That is because neither of the cases cited by McPeters in which the doctrine of judicial immunity was found not to apply bears any similarity to this case; i.e., neither case involves the complaints of a litigant in the judge’s court. See, e.g., Forrester v. White, 484 U.S. 219, 227–29 (1988) (declining to apply judicial immunity when judge was functioning in the capacity of an employer); Turney v. O’Toole, 898 F.2d 1470, 1474 (10th Cir. 1990) (declining to apply quasijudicial immunity for state actors for certain complained-of actions when such actions fell outside the scope of a judge’s order.). Again—even if Judge Edwards’s actions were wrong, or malicious, or in excess of his authority, and they were not, he would still be entitled to immunity for those actions. See, e.g., Stump v. Sparkman, 435 U.S. 349, 356–57 (1978). Judge Edwards is entitled to dismissal of the entirety of McPeters’s claims against him because all of McPeters’s claims are barred by the judicial immunity doctrine. See id.; see also FED. R. CIV. P. 12(b)(6). McPeters Is Not Entitled To Injunctive Relief. 4. McPeters has not shown herself, either in her Complaint or in her response to Judge Edwards’s motion, entitled to injunctive relief under 42 U.S.C. § 1983. See, generally, Complaint, Docket No. 19; response to motion to dismiss, Docket No. 72. As described in Section E of Judge Edwards’s motion to dismiss, McPeters is not entitled to injunctive relief. See § E, Docket No. 56. And, even though judicial immunity does not necessarily bar claims for properly-asserted injunctive or declaratory relief, dismissal of McPeters’s claims is appropriate because “the federal courts have no authority to direct state courts or their judicial officers in the –3– performance of their duties.” Johnson v. Bigelow, 239 Fed. Appx. 865 (5th Cir. 2007), citing Moye v. Clerk, DeKalb County Superior Court, 474 F.2d 1275, 1276 (5th Cir. 1973). 5. McPeters’s contention that any motion seeking relief from the 2003 order would be denied is baseless as it is nothing but pure speculation. Further, McPeters, by failing to seek such relief and by continuing to paper file documents in blatant violation of the 2003 Order, has failed to avail herself of an “obvious, adequate legal remedy,” and therefore has shown herself not entitled to injunctive relief. See, e.g., Bryant v. Watts, 3 F.3d 437, 1993 WL 347037 (5th Cir. Aug. 13, 1993). Judge Edwards respectfully requests this Court to dismiss this case. See FED. R. CIV. P. 12(b)(1), (6). McPeters Response Otherwise Fails To Survive Judge Edwards’s Motion. 6. For all of the other reasons set forth in Judge Edwards’s motion to dismiss, McPeters has failed to state any claim against Judge Edwards upon which relief can be granted, including failing to properly allege a RICO cause of action. See §§ A, C, D, F–I, Docket No. 56.. Further, to the extent necessary, Judge Edwards hereby joins in, adopts, and incorporates by reference as if fully set forth herein the reply brief filed by defendants Montgomery County, Texas and Barbarar Gladden Adamick. See Docket No. 75. Judge Edwards respectfully requests this Court to dismiss McPeters’s baseless, harassing case against him. See FED. R. CIV. P. 12(b)(1), (6). –4– Conclusion 7. Judge Edwards requests the Court to grant his motion and to dismiss McPeters’s Second Amended Complaint against him under Rules 12(b)(6), 12(b)(1), and/or 9(b) of the Federal Rules of Civil Procedure. Judge Edwards also requests any other, further, or alternative relief to which he is legally or equitably entitled. Respectfully submitted, SHEPHERD, SCOTT, CLAWATER & HOUSTON, L.L.P. /s/Allison Standish Miller Billy Shepherd Texas Bar No. 18219700 Federal I.D. No. 10666 Email bshepherd@sschlaw.com Allison Standish Miller Texas Bar No. 24046440 Federal I.D. No. 602411 Email amiller@sschlaw.com 2777 Allen Parkway, 7th Floor Houston, Texas 77019 Telephone No. (713) 650–6600 Telecopier No. (713) 650–1720 COUNSEL FOR DEFENDANT HONORABLE FREDERICK E. EDWARDS –5– Certificate Of Service I hereby certify that on Monday, August 23, 2010, a true and correct copy of the foregoing instrument was forwarded via electronic delivery pursuant to local rules, to-wit: Robert L. Mays, Jr. Attorney at Law 8626 Tesoro Drive, Suite 820 San Antonio, Texas 78217 Telephone No. (210) 657–7772 Telecopier No. (210) 657–7780 Attorney for Plaintiff David K. Walker Montgomery County Attorney Sara Forlano Assistant County Attorney 207 W. Phillips, First Floor Conroe, Texas 77301 Telephone No. (936) 539–7828 Telecopier No. (713) 760–6920 Attorneys For Defendants Montgomery County, Texas and Barbara Gladden Adamick Miranda R. Tolar Locke Lord Bissell & Liddell LLP 600 Travis Street, Suite 2800 Houston, Texas 77002 Telephone No. (713) 226–1618 Telecopier No. (713)223–3717 Attorney-In-Charge for Defendant Reed Elsevier, Inc. John G. Parker J. Allen Maines Emily L. Shoemaker S. Tameka Phillips Paul, Hastings, Janofsky & Walker LLP 600 Peachtree Street, N.E., Suite 2400 Atlanta, Georgia 30308 Telephone No. (404) 815–2222 Telecopier No. (404) 685–5222 Of Counsel for Defendant Reed Elsevier, Inc. /s/Allison Standish Miller Allison Standish Miller –6–

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