Bowling v. Dahlheimer ( 2022 )

Case: 20-40642 Document: 00516227127 Page: 1 Date Filed: 03/07/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-40642 March 7, 2022
Lyle W. Cayce
Clerk
Wanda L. Bowling,
Plaintiff—Appellant,
versus
Lester John Dahlheimer, Jr., Estate; Lester John
Dahlheimer, Sr., Estate; Paulette Mueller, in her Official and
Individual Capacity; Judge Piper McCraw, in her Official and
Individual Capacity; Greg Willis, in his Official and Individual Capacity;
Craig A. Penfold, in his Official and Individual Capacity; Judge
David Evans, in his Official and Individual Capacity; Rhonda
Childress-Herres, in her Official and Individual Capacity; Clerk of
the Court, 5th District Court of Appeals,
Defendants—Appellees.
Appeal from the United States United States District Court
for the Eastern District of Texas
USDC No. 4:18-CV-610
Case: 20-40642 Document: 00516227127 Page: 2 Date Filed: 03/07/2022
No. 20-40642
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
Wanda L. Bowling filed a civil rights complaint against her former
spouse, Lester John Dahlheimer, Jr. (Dahlheimer); Elizabeth Dahlheimer,
Executrix of the Estate of Lester John Dahlheimer, Sr. (Dahlheimer, Sr.);
Dahlheimer’s divorce counsel, Paulette Mueller; state judge Piper McCraw;
district attorney Greg Willis; state appellate judge David Evans; the state
Fifth District Court of Appeals Clerk of the Court (Clerk of Court); and
court-appointed receivers, Craig A. Penfold and Rhonda Childress-Herres.
Bowling asserted that Dahlheimer misappropriated her assets and that the
remaining defendants unlawfully participated in the divorce itself or in
subsequent related proceedings. The defendants’ motions to dismiss under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) were granted, and the
lawsuit was dismissed. Bowling has appealed.
Judicial Bias
As a preliminary matter, Bowling complains that Magistrate Judge
Nowack was unfairly biased. Bowling complains that Magistrate Judge
Nowack and Judge McGraw serve together on the Collin County Women
Lawyers Association, and that many of Magistrate Judge Nowack’s
recommendations were unfavorable to her. Under 28 U.S.C. § 455, a judge
is required to recuse herself from any proceeding in which her impartiality
might reasonably be questioned. But a judge’s adverse rulings are not enough
to show bias. The defendant must come forward with additional evidence of
such a high degree of antagonism as to make fair judgment impossible. See
Liteky v. United States, 510 U.S. 540, 555 (1994). Nor does Bowling cite any
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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case, or give any reason, why Magistrate Judge Nowack’s professional
relationship with Judge McGraw made her unable to act impartially in this
case. Therefore, these judges’ failure to recuse themselves was not an abuse
of discretion. See United States v. Mizell, 88 F.3d 288, 299 (5th Cir. 1996).
Motions for Reconsideration
Bowling contends that the district court erred in applying Federal
Rule of Civil Procedure 54(b) rather than Rule 60 in disposing of her Motions
for Relief from Judgment or Order. Rule 54(b) provides, inter alia, that “any
order or other decision, however designated, that adjudicates fewer than all
the claims or the rights and liabilities of fewer than all the parties does not
end the action as to any of the claims or parties and may be revised at any
time before the entry of a judgment adjudicating all the claims and all the
parties’ rights and liabilities.” Fed. R. Civ. P. 54(b). Under this rule, “the
trial court is free to reconsider and reverse its decision for any reason it deems
sufficient, even in the absence of new evidence or an intervening change in
or clarification of the substantive law.” Austin v. Kroger Texas, L.P., 864 F.3d
326, 336 (5th Cir. 2017) (internal quotation marks and citation omitted).
Because the district court had not entered a final judgment, the court
correctly applied the more lenient standard in Rule 54(b) in ruling on
Bowling’s motions for reconsideration. See McClendon v. United States, 892
F.3d 775, 781 (5th Cir. 2018).
Amendment of Complaint
The district court struck Bowling’s first amended complaint,
concluding that it was untimely and was filed without the consent of the
defendants and without seeking leave of court. Bowling contends that she was
permitted to amend her complaint once as a matter of right under Federal
Rule of Civil Procedure 15(a)(1)(B) because the amended complaint was filed
within 21 days of the filing of Dahlheimer, Sr.’s motion to dismiss. But the
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21-day period to file an amended complaint as of right begins after the first
defendant files a responsive pleading. See Fed. R. Civ. P. 15 advisory
committee’s note to 2009 amendment; Barksdale v. King, 699 F.2d 744, 747
(5th Cir. 1983); Williams v. Bd. of Regents of Univ. Sys. of Georgia, 477 F.3d
1282, 1292 (11th Cir. 2007); Villery v. District of Columbia, 277 F.R.D. 218,
219 (D.D.C. 2011); Rubinstein v. Keshet Inter Vivos Tr., No. 17-61019-CIV,
2017 WL 7792570, at *3 (S.D. Fla. Oct. 18, 2017); Williams v. Black Entm’t
Television, Inc., No. 13-CV-1459, 2014 WL 585419, at *3–4 (E.D.N.Y. Feb.
14, 2014). Because Bowling filed her amended complaint outside of this
window, she could not amend as of right and needed leave of court to file an
amended complaint. For the reasons discussed below, the district court did
not abuse its discretion in striking her first amendment complaint because
various doctrines prevented Bowling from stating a claim against any of the
defendants. See Aldridge v. Mississippi Dep’t of Corr., 990 F.3d 868, 878 (5th
Cir. 2021) (noting that district courts may deny leave to amend if amendment
would be futile); Fed. R. Civ. P. 15(2).
Dismissal under Rule 12(b)(1) and (b)(6)
We review a district court’s dismissal under Rules 12(b)(1) and (b)(6)
de novo, and jurisdictional challenges should be resolved prior to reaching
the merits. See In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.
2007); Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). Under
Rule 12(b)(1), a party may move to dismiss a complaint on the ground that
the district court lacks subject matter jurisdiction. Fed. R. Civ. P.
12(b)(1). “The district court must dismiss [an] action if it finds that it lacks
subject matter jurisdiction.” Randall D. Wolcott, M.D., P.A. v. Sebelius, 635
F.3d 757, 762 (5th Cir. 2011) (citing Fed. R. Civ. P. 12(h)(3)).
Under Rule 12(b)(6), a party may move to dismiss a complaint for
failure to state a claim upon which relief can be granted. Fed. R. Civ. P.
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12(b)(6). A plaintiff fails to state a claim upon which relief can be granted
when the claim does not contain “enough facts to state a claim to relief that
is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). When reviewing a dismissal for failure to state a claim, “[w]e accept
all well-pleaded facts as true and view those facts in the light most favorable
to the plaintiff.” Whitley v. Hanna, 726 F.3d 631, 637 (5th Cir. 2013). We will
“not accept as true conclusory allegations, unwarranted factual inferences,
or legal conclusions.” Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010)
(internal quotation marks and citation omitted).
The district court determined that the official-capacity claims against
Judge McCraw, Judge Evans, the Clerk of Court, and Willis were barred by
sovereign immunity. Bowling’s contention that these defendants are not
state actors is meritless. See Esteves v. Brock, 106 F.3d 674, 677–78 & n.8 (5th
Cir. 1997); Holloway v. Walker, 765 F.2d 517, 525 & n.7 (5th Cir. 1985); see
also Tex. Gov’t Code §§ 22.206, 24.642. Although Bowling correctly
asserts that the Eleventh Amendment does not bar suits for injunctive or
declaratory relief, see Raj v. Louisiana State Univ., 714 F.3d 322, 328 (5th Cir.
2013), she has identified nothing in the record showing an ongoing violation
of federal law by these parties that could support an injunction. You can’t
enjoin the past. You can only receive damages for harm done in the past. And
the Eleventh Amendment bars such a suit for damages against state actors.
The district court determined that Bowling’s claims against Judge
McCraw, Judge Evans, the Clerk of Court, Mueller, Dahlheimer, Penfold,
Childress-Herres, and Dahlheimer, Sr., were barred under the Rooker-
Feldman1 doctrine. The Rooker-Feldman doctrine bars federal courts from
1
See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker
v. Fidelity Trust Co., 263 U.S. 413 (1923).
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hearing challenges to state-court judgments See Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280, 284 (2005); see also Truong v. Bank of Am.,
N.A., 717 F.3d 377, 384 (5th Cir. 2013). Put simply, litigants can’t appeal
unfavorable state court rulings to federal court, unless Congress specifically
authorizes such review. See Truong, 717 F.3d at 382. That is what Bowling
asked the district court to do. The district court did not err in denying that
request—and indeed it would have erred if it did otherwise. See id. at 381–83.
The district court also determined that Judges McCraw and Evans
were entitled to judicial immunity and that Penfold was entitled to derivative
judicial immunity. Bowling has not shown that Judge McCraw’s and Judge
Evans’s actions were nonjudicial in nature or taken in the clear absence of all
jurisdiction. See Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994). Further,
court-appointed receivers such as Penfold “act as arms of the court and are
entitled to share the appointing judge’s absolute immunity provided that the
challenged actions are taken in good faith and within the scope of the
authority granted to the receiver.” Davis v. Bayless, 70 F.3d 367, 373 (5th Cir.
1995); see also Boullion v. McClanahan, 639 F.2d 213 (5th Cir. 1981)
(recognizing derivative judicial immunity for bankruptcy trustees who act
under the supervision of and subject to the orders of the bankruptcy court).
Bowling has not shown that the district court erred in dismissing her claims
against Judges McCraw and Evans.
Prosecutors also enjoy absolute immunity from suit for actions
performed within the scope of their prosecutorial duties. Imbler v. Pachtman,
424 U.S. 409, 420–24, 431 (1976). Contrary to Bowling’s assertions on
appeal, she has not alleged or shown that Willis’s actions were investigatory
in nature, and she has failed to allege personal involvement by Willis in a
constitutional violation. See Buckley v. Fitzsimmons, 509 U.S. 259, 273–74
(1993); Bigford v. Taylor, 834 F.2d 1213, 1220 (5th Cir. 1988). The district
court did not err in granting immunity to Willis.
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Finally, the district court determined that the claims against
Dahlheimer were barred by the doctrine of res judicata, that Bowling’s
complaint failed to state a claim against Penfold, Childress-Herres, or
Dahlheimer, Sr., and that the claims against Willis were time barred. We have
reviewed the briefings and the record and see no error in these holdings. See
Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993).
The district court’s judgment is AFFIRMED.
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