Bauer v. State of Texas ( 2003 )

  •                                                       United States Court of Appeals
                                                                   Fifth Circuit
                                                                 F I L E D
                         REVISED AUGUST 18, 2003                  July 30, 2003
                                                            Charles R. Fulbruge III
                  IN THE UNITED STATES COURT OF APPEALS             Clerk
                          FOR THE FIFTH CIRCUIT
                              No. 02-20412
         RUTH BAUER,
              Appeal from the United States District Court
                    for the Southern District of Texas
    Before GARWOOD and HIGGINBOTHAM, Circuit Judges, and FELDMAN,
    District Judge.*
    GARWOOD, Circuit Judge:
         District Judge of the Eastern District of Louisiana,
    sitting by designation.
         Plaintiff Ruth Bauer (Bauer) appeals the district court's
    dismissal pursuant to FED R. CIV. P. 12(b)(6) of her complaint
    against “the Presiding Judge of Probate Court No. 3 of Harris
    County, Texas,” Judge Rory Olsen, “in his official capacity only”,
    seeking a declaratory judgment under 42 U.S.C. § 1983 “that Section
    875 of the Texas Probate Code is unconstitutional.”    We affirm.
                     Factual and Procedural Background
         Bauer, the beneficiary of an approximately half-billion dollar
    trust, has been the subject of four guardianship proceedings before
    Judge Rory Olsen (Olsen), the presiding judge of Probate Court No.
    3 of Harris County, some of which form the basis of this lawsuit.
         Bauer's complaint states that while she was seriously ill in
    August of 2000, Olsen appointed her son, Douglas Bauer, temporary
    guardian of her person and estate pursuant to TEX. PROB. CODE §
    875, attorney Darlene Payne Smith (Smith) of the law firm Crain,
    Caton & James, P.C. (Crain-Caton) guardian ad litem under       TEX.
    PROB. CODE § 683, and Jim Wyckoff attorney ad litem.   On December
    7, 2000, Douglas Bauer and Smith filed a motion to terminate the
    guardianship proceeding, and on December 13, 2000, Olsen granted
    the motion and entered an order terminating the guardianship.
         Bauer's complaint further alleges that on December 22, 2000,
    she became disturbed and distressed and took a trip to relieve her
    stress.   On December 27, 2000, in a second guardianship proceeding
    initiated in Olsen's court by Douglas Bauer, Olsen again appointed
    Douglas Bauer temporary guardian.    Olsen scheduled a hearing on
    January 4, 2001, to determine whether Douglas Bauer should continue
    to serve as his mother's temporary guardian.     On January 5, 2001,
    Olsen terminated the temporary guardianship because Douglas Bauer's
    lawyers had failed to serve notice of the hearing, as required by
    the state law authorizing creation of a temporary guardianship.
    TEX. PROB. CODE § 875(e).    On January 11, 2001, Olsen, after an
    evidentiary hearing attended by Bauer’s attorney, appointed Smith
    guardian ad litem under TEX. PROB. CODE § 683(a) (see note 4, infra)
    to investigate whether a guardian should be appointed for Bauer.
    Bauer alleges the evidence showed she did not need a guardian.
         Bauer alleges that in late March or early April 2001, she
    developed pneumonia and voluntarily entered the hospital on or
    about April 4, 2001. Olsen asserts that the pneumonia caused Bauer
    to suffer hallucinations and that she has a medical history of
    alcoholic cirrhosis.   Bauer avers that she was released in good
    condition on April 22, 2001.   In the interim, on April 11, 2001,
    Smith, in her capacity as guardian ad litem for Bauer, filed a
    third application for the appointment of a temporary guardian for
    Bauer.   Bauer alleges that, without notice or an opportunity to be
    heard, Olsen entered an order dated April 11, 2001, appointing
    lawyer Judy Lennox temporary guardian for her.    On April 17, 2001,
    Bauer alleges that Smith, who remained guardian ad litem for Bauer,
    filed with Olsen an application for the appointment of a permanent
          On May 14, 2001, before action was taken on the permanent
    guardianship application, Bauer filed a motion to recuse Olsen,
    which was heard by Judge Guy Herman, Travis County Presiding
    Probate Judge Court #1.               Herman did not rule on the motion, and
    instead remanded the case for random assignment because he found
    the April 11, 2001, temporary guardianship application was a new
    and separate proceeding.               The case was then reassigned to Judge
    Mike Wood,       the presiding judge of Probate Court No. 2 of Harris
          On May 29, 2001, Bauer filed this suit (No. H-01-1781) under
    42 U.S.C. § 1983 against Olsen “in his official capacity only” as
    the presiding judge of Probate Court No. 3 of Harris County and
    against “the State of Texas” seeking “a declaratory judgment that
    section 875 of the Texas Probate Code is unconstitutional.”                           Bauer
    alleged that section 875, which pertains to the appointment of
    temporary guardians for incapacitated persons, violates her due
    process and equal protection rights because the standard of proof
    for    appointment         of     a    temporary         guardian        does   not   meet
    constitutional requirements.1
          On June 20, 2001, Olsen moved to dismiss the suit against him
    pursuant to Fed R. Civ. P. 12(b)(1) and 12(b)(6), asserting that
    section 1983 relief against him was unavailable because he applied
           The provisions of § 875 are set out in the Appendix to this opinion.
    the challenged statute in his adjudicatory capacity.
           On July 16, 2001, Bauer voluntarily dismissed the State of
           On July 20, 2001, Bauer filed a separate section 1983 action
    against Smith and Crain-Caton in the district court below, and on
    August 7, 2001, she filed a First Amended Complaint in that suit.
    On September 21, 2001, the district court ordered that action (No.
    H-01-2456) consolidated into Bauer's suit against Olsen (No. H-01-
    1781).      On October 29, 2001, Bauer sought leave to file in the thus
    consolidated action a Second Amended Complaint against Smith,
    Crain-Caton, and Olsen.
           On        November   30,    2001,      all    pending       state     guardianship
    proceedings affecting Bauer were dismissed by Judge Wood, Smith was
    discharged as guardian ad litem, and Judge Wood entered an order to
    pay Smith from Bauer's estate appointee fees and expenses totaling
           On December 3, 2001, Bauer moved to dismiss without prejudice
    her suit (No. H-01-2456) against Smith and Crain-Caton, reciting
    that       the    case   had   been    settled      “pursuant      to    a   confidential
    settlement agreement” dated November 26, 2001, with Smith and
    Crain-Caton, and submitted a proposed agreed order of dismissal,
    which the district court signed December 21, 2001.2                           On December
            The order dismisses without prejudice “Civil Action No. H-01-2456 against Defendants
    [Smith and Crain-Caton] . . . provided that the Court retains jurisdiction for the purpose of
    enforcing the above described Settlement Agreement of the Parties, in its discretion upon the
    20,     2001,    Bauer      moved     for     leave     to    file    her     “First      Amended
    Complaint” against Olsen.3                  This proposed complaint named as the
    sole defendant “Rory R. Olsen in his official capacity as the
    presiding judge of Probate Court No. 3 of Harris County, Texas,”
    states that “Plaintiff seeks prospectively a declaratory judgment
    that certain provisions of the Texas Probate Code pertaining to
    guardianships are unconstitutional under the Constitution of the
    United States” and requests “a declaratory judgment that the above
    described guardianship provisions of the Texas Probate Code are
    unconstitutional.”             This tendered pleading not only complained of
    Probate Code § 875, but also added a complaint as Probate Code §
    683.4       No other provision of the Probate Code was alleged to be
    filing of an appropriate motion.”
             The settlement and subsequent December 2001 dismissal of all Bauer’s claims against
    Smith and Crain-Caton (cause No. H-01-2456), left only her claims against Olsen in cause No. H-
    01-1781, and in effect rendered moot her October 29, 2001, motion (in the consolidated case) to
    file a “Second Amended Complaint” against Smith, Crain-Caton and Olsen. By order of February
    5, 2002, the district court denied (“without prejudice to re-urging after the court has ruled on all
    outstanding motions”) Bauer’s October 29, 2001, motion for leave to file Second Amended
    Complaint against Smith, Crain-Caton and Olsen in the consolidated action.
             Section 683 provides as follows:
            “§ 683. Court’s Initiation of Guardianship Proceedings
                    (a) If a court has probable cause to believe that a person domiciled or
            found in the county in which the court is located is an incapacitated person, and
            the person does not have a guardian in this state, the court shall appoint a guardian
            ad litem or court investigator to investigate and file an application for the
            appointment of a guardian of the person or estate, or both, of the person believed
            to be incapacitated.
         On February 22, 2002, the district court granted Olsen's
    motion to dismiss under Rule 12(b)(6), not reaching the Rule
    12(b)(1) motion to dismiss.                The court concluded that Bauer had
    failed to allege an essential element of a section 1983 claim,
    namely that the defendant’s complained of actions were taken under
    color of state law.            The court observed that action by a state
    judge solely in his adjudicatory capacity does not constitute state
    action and that the “complaint fails to state that, other than his
    alleged bias, Olsen acted outside his adjudicatory capacity in
    making rulings against Bauer under § 875.”
         On February 26, 2002, the court denied without explanation
    Bauer's December 20, 2001, motion for leave to file a First Amended
                (b) To establish probable cause under this section, the court may require:
                 (1) an information letter about the person believed to be incapacitated that
         is submitted by an interested person and satisfies the requirements of Section 683A
         of this code; or
                 (2) a written letter or certificate from a physician who has examined the
         person believed to be incapacitated that satisfies the requirements of Section
         687(a) of this code, except that the letter must be dated not earlier than the 120th
         day before the date of the filing of an application under Subsection (a) of this
         section and be based on an examination the physician performed not earlier than
         the 120th day before that date.
                 (c) A court that creates a guardianship for a ward under this chapter may
         authorize compensation of a guardian ad litem who files an application under
         Subsection (a) of this section from available funds of the ward’s estate. If after
         examining the ward’s assets the court determines the ward is unable to pay for
         services provided by the guardian ad litem, the court may authorize compensation
         from the county treasury.”
          Bauer timely appeals.
          Dismissals pursuant to Rule 12(b)(6) are appropriate where “it
    appears beyond doubt that the plaintiff can provide no set of facts
    in support of his claim which would entitle him to relief.”         Conley
    v. Gibson, 
    78 S. Ct. 99
    , 102 (1957).        In making this determination,
    the   court   accepts   as   true   all   allegations   contained   in   the
    plaintiff’s complaint and all reasonable inferences are to be drawn
    in favor of the plaintiff’s claims. Kaiser Aluminum & Chem. Sales
    Inc. v. Avondale Shipyards, Inc., 
    677 F.2d 1045
    , 1050 (5th Cir.
    1982).   Review of a Rule 12(b)(6) dismissal is de novo. Davis v.
    70 F.3d 367
    , 371 (5th Cir. 1995).
          Judges enjoy absolute immunity from liability for judicial or
    adjudicatory acts.      Forrester v. White, 
    108 S. Ct. 538
    , 565 (1988).
    Absolute judicial immunity, however, does not bar prospective
    relief against a judicial officer.          Pulliam v. Allen, 
    104 S. Ct. 1970
    , 1981 (1984).
          Section 1983 provides a private right of action against
    parties acting “under color of any statute, ordinance, regulation,
    custom, or usage, of any State” to redress the deprivation of
    rights secured by the United States Constitution or federal law.
    City of St. Louis v. Praprotnik, 
    108 S. Ct. 915
    , 923 (1988).
    Section 1983 is not itself a source of substantive rights; it
    merely provides a method for vindicating already conferred federal
    rights. Albright v. Oliver, 
    114 S. Ct. 807
    , 811 (1994).   To prevail
    on a section 1983 claim, the plaintiff must show that: 1) the
    offending conduct was committed by a person acting under color of
    state law; and 2) the conduct deprived the plaintiff of rights
    secured by the Constitution or federal law.   Parrat v. Taylor, 
    101 S. Ct. 1908
    , 1909 (1981).
         First, we consider whether Bauer has standing to challenge the
    constitutionality of these Texas's guardianship statutes through a
    suit against Olsen.    Although Olsen has not raised the issue of
    standing, we may consider it sua sponte.   See Lang v. French, 
    154 F.3d 217
    , 222 n.28 (5th Cir. 1998).   The three elements of Article
    III standing are:   1) injury, 2) causation, and 3) redressability.
    Okpalobi v. Foster, 
    244 F.3d 405
    , 425 (5th Cir. 2001).   Moreover,
    as we recently stated in McClure v. Ashcroft, ___ F.3d ___ (No. 02-
    30357, 5th Cir. June 20, 2003, slip op. 3461):
         “‘Beyond the constitutional requirements, the federal
         judiciary has also adhered to a set of prudential
         principles that bear on the question of standing.’
         Valley Forge Christian College [v. Americans United], 454
         U.S. [464] at 475, 
    102 S. Ct. 752
     [(1982)]. ‘Prudential
         standing limitations help courts identify proper
         questions of judicial adjudication, and further define
         the judiciary’s role in the separation of powers.’ Ruiz
         v. Estelle, 
    161 F.3d 814
    , 829 n.22 (1998).” Id. at 3465.
         There are no guardianship proceedings at this time.     Bauer
    alleges she has standing because of the “loss of personal and
    financial rights and liberties...caused by Olsen” and argues a
    declaratory judgment is warranted because Olsen’s “past pattern of
    conduct demonstrates a threat that he will continue to apply
    unconstitutional   guardianship     statutes      against       Bauer   unless
    declaratory relief is obtained.”         Bauer seeks declaratory rather
    than injunctive relief because of section 1983’s provision, added
    in 1996, that injunctive relief against a judicial officer for an
    act or omission in his judicial capacity shall not be granted
    unless a declaratory decree was violated or declaratory relief was
    unavailable.   Tesmer v. Granholm, 
    114 F. Supp. 2d 603
    , 605 (E.D.
    Mich. 2000).   When the question is whether a federal court should
    enjoin a pending state-court proceeding, "even irreparable injury
    is insufficient unless it is 'both great and immediate.'" Younger
    v. Harris, 
    91 S. Ct. 746
    , 751 (1971).
         A plaintiff can meet the standing requirements when suit is
    brought under the Declaratory Judgment Act, 28 U.S.C. § 2201-2202,
    by establishing "actual present harm or a significant possibility
    of future harm," Peoples Rights Org. v. City of Columbus, 
    152 F.3d 522
    , 527 (6th Cir. 1998), “even though the injury-in-fact has not
    yet been completed.” Nat'l Rifle Ass'n of Am. v. Magaw, 
    132 F.3d 272
    , 280 (6th Cir. 1997).    An actual controversy must be extant at
    all stages of review, not merely at the time the complaint is
    filed. SEC v. Medical Comm. for Human Rights, 
    92 S. Ct. 577
    United States v. Munsingwear, Inc., 
    71 S. Ct. 104
     (1950).                   The
    “actual   controversy”   required   under    28   U.S.C.    §    2201(a)   "is
    identical to the meaning of 'case or controversy' for the purposes
    of Article III." Lawson v. Callahan, 
    111 F.3d 403
    , 405 (5th Cir.
          In order to demonstrate that a case or controversy exists to
    meet the Article III standing requirement when a plaintiff is
    seeking injunctive or declaratory relief, a plaintiff must allege
    facts from which it appears there is a substantial likelihood that
    he will suffer injury in the future.   City of Los Angeles v. Lyons,
    103 S. Ct. 1660
    , 1665 (1983); Cone Corp. v. Florida Dep't of
    921 F.2d 1190
    , 1205 (11th Cir. 1991).   Based on the facts
    alleged, there must be a substantial and continuing controversy
    between two adverse parties.   Emory v. Peeler, 
    756 F.2d 1547
    , 1551-
    52 (11th Cir. 1985).   The plaintiff must allege facts from which
    the continuation of the dispute may be reasonably inferred. Id.
    Additionally, the continuing controversy may not be conjectural,
    hypothetical, or contingent; it must be real and immediate, and
    create a definite, rather than speculative threat of future injury.
          “‘Past exposure to illegal conduct does not in itself show a
    present case or controversy regarding injunctive relief . . . if
    unaccompanied by any continuing, present adverse effects.’" Lyons,
    103 S.Ct. at 1665 (quoting O'Shea v. Littleton, 
    94 S. Ct. 669
    (1974)).   To obtain equitable relief for past wrongs, a plaintiff
    must demonstrate either continuing harm or a real and immediate
    threat of repeated injury in the future.                 Similar reasoning has
    been applied to suits for declaratory judgments.                        Ashcroft v.
    97 S. Ct. 1739
     (1977); Golden v. Zwickler, 
    89 S. Ct. 956
         Given that Bauer acknowledges there are currently no state
    guardianship proceedings relating to her, that there have been no
    such proceedings since November 2001, and that this matter was
    transferred from Judge Olsen to Judge Wood, there does not exist a
    “substantial likelihood” and a “real and immediate” threat that
    Bauer will face injury from Olsen in the future.                      This court has
    often held that plaintiffs lack standing to seek prospective relief
    against   judges     where   the   likelihood      of    future       encounters     is
    speculative. Adams v. McIlhany, 
    764 F.2d 294
    , 299 (5th Cir. 1985);
    Society of Separationists, Inc. v. Herman, 
    959 F.2d 1283
     (5th Cir.
    1992).     Furthermore,       there    is    the    danger           that   excessive
    superintending of state judicial functions "would constitute a form
    of monitoring of the operation of state court functions that is
    antipathetic   to    established      principles        of   comity."       O'Shea   v.
    94 S. Ct. 669
    , 679 (1974).            Because there is no ongoing
    injury to Bauer and any threat of future injury is neither imminent
    or likely, there is not a live case or controversy for this court
    to   resolve   and    a   declaratory       judgment         would    therefore      be
    inappropriate.      Even assuming, arguendo, that the requirements of
    Article III standing in this respect are minimally met, prudential
    standing       considerations             similarly       dictate       the    impropriety          of
    declaratory relief for those reasons.5
           We also reject Bauer's appeal on the related ground that, due
    to a lack of adversity between her and Olsen as to the facial
    constitutionality             of    the    statutes       she    challenges         as    facially
    invalid, there is no case or controversy under Article III and
    Olsen is not a proper party under section 1983.                                     The case or
    controversy requirement of Article III of the Constitution requires
    a plaintiff to show that he and the defendants have adverse legal
    interests. Aetna Life Ins. Co. v. Haworth, 
    57 S. Ct. 461
    The requirement of a justiciable controversy is not satisfied where
    a judge acts in his adjudicatory capacity.                           Mendez v. Heller, 
    530 F.2d 457
    , 458 (2d Cir. 1976); Klein v. University of Kansas Medical
    975 F. Supp. 1408
    , 1413 (D. Kan. 1997).                           Similarly, a section
    1983 due process claim is not actionable against a state judge
    acting purely in his adjudicative capacity because he is not a
    proper       party       in     a     section          1983     action        challenging         the
    constitutionality of a state statute.                         Nollet v. Justices of Trial
             It is relevant in this connection that the relief Bauer seeks is merely a declaration that §
    875 (and § 683 in her proposed amended complaint) is facially unconstitutional, while the
    substance of what she complains of is that Olsen violated her rights in that (according to her
    allegations) he was biased against her and acted in the proceedings involving her from improper,
    ulterior motives and conspired with Smith and Crain-Caton to harm her and help them, wrongs
    which are essentially independent of the claimed facial defects in the two challenged Texas
    Probate Code sections. Moreover, no declaratory (or other) relief is sought in respect to such
    wrongs and, for example, no declaratory relief is sought which would declare Olsen precluded
    from sitting in any case involving Bauer.
    Court of Comm. of Mass., 
    83 F. Supp. 2d 204
    , 2111 (D. Mass. 2000,
    aff'd by Nollet v. Justices of the Trial Court, 
    248 F.3d 1127
    Cir. 2000, unpublished)).
         In Chancery Clerk of Chickasaw County v. Wallace, 
    646 F.2d 151
    (5th Cir. 1981), this court held that a plaintiff challenging the
    state’s commitment procedures for the mentally ill must substitute
    state bureaucrats for judges and chancery clerks as defendants,
    noting “because of the judicial nature of their responsibility, the
    chancery clerks and judges do not have a sufficiently ‘personal
    stake in the outcome of the controversy as to assure that concrete
    adverseness which sharpens the presentation of issues on which the
    court   so   largely   depends     for   illumination   of   difficult
    constitutional questions.’"      Id. at 160 (citing Baker v. Carr, 
    82 S. Ct. 691
     (1962); Mendez v. Heller, 
    530 F.2d 457
     (2d Cir. 1976)
    (state court judges and clerks joined as defendants in a suit
    challenging New York's durational residency requirement for divorce
    found to lack the requisite interest in defending the allegedly
    unconstitutional statutes)).     The Chickasaw court concluded there
    was no adversity between the plaintiffs and the originally named
    judicial defendants, as the defendants were not the real parties in
    interest.    Prudential standing concerns and the circumstances
    outlined in note 5, supra, likewise point in the same direction.
         Bauer attempts to distinguish Chickasaw and other such cases,
    arguing this situation is different because Texas's guardianship
    statutes give Olsen the ability to enforce, not merely adjudicate
    the law.      Bauer relies on Supreme Court of Virginia v. Consumers
    Union of U.S., Inc., 
    100 S. Ct. 1967
     (1980), in which it was held
    that the Chief Justice of the Virginia Supreme Court was a proper
    party under section 1983 because the Court acted in an enforcement,
    rather than an adjudicatory capacity, in initiating proceedings
    against      attorneys       for    violating       state     regulations        on    legal
    advertising.6         Therefore, whether Olsen is a proper party under
    section 1983 and whether there is a case or controversy depends on
    whether Olsen likewise acted outside of his adjudicatory capacity.
           In our analysis of all these issues, we assume arguendo that
    Bauer's Motion to Amend to add her allegations that section 683 is
    unconstitutional should have been granted.
           Section 683 (quoted in note 4, supra) does not provide the
    guardian ad litem with the authority to exercise any dominion over
    the putative ward.           Instead, the guardian ad litem has merely the
    same authority as a court investigator, which is to investigate and
    report back to the judge whether the evidence warrants appointment
    of a guardian for the putative ward.                       While section 683 gives
    judges the power to initiate the appointment of a guardian ad
    litem, deprivations of the ward's liberty can only result from the
    appointment of a guardian or of a temporary guardian under section
            The Court noted it did not decide whether the Supreme Court of Virginia was “a ‘person’
    suable under § 1983.” Id., 100 S.Ct. at 1977 n.16.
    875, which Bauer does not allege Olsen initiated.                    To succeed, a
    claim under section 1983 must show a deprivation of a liberty
    interest      protected   by     the    Fourteenth      Amendment.        Moore   v.
    Mississippi Valley State University, 
    871 F.2d 545
     (5th Cir. 1989).
    The invocation of section 683 simply to use a court investigator or
    a   guardian    ad   litem     to   gather     information    involves     no   such
    deprivation of liberty and, therefore, is not actionable under
    section 1983 and the Fourteenth Amendment.                   Thus, we need not
    determine whether Olsen acted within his adjudicatory capacity in
    appointing a guardian ad litem under section 683.                     Instead, in
    considering whether Olsen acted within his adjudicative capacity,
    we only consider his appointment of temporary guardians under
    section 875 because it is a temporary guardian, in contrast to a
    section 683 guardian ad litem, that may be empowered to exercise
    authority over the ward, thereby affecting the ward's liberty
          Texas    Probate    Code      §   875(a)    requires    that    a   court   be
    “presented with substantial evidence” establishing probable cause
    that a temporary guardian is necessary before appointing one.
    Section 875(c) requires that an application for the appointment of
    a temporary guardian be filed no later than the end of the next
    business   day    after   the       appointment    of   a   temporary     guardian.
    Section 875(d) further mandates that the court appoint an attorney
    for the proposed ward if he has not already retained independent
    counsel.      Finally, notice to the ward and a hearing are required
    under sections 875(e) and (f), respectively.
          It has been held that, in acting pursuant to a statute
    allowing a county judge to involuntarily commit a minor to a
    substance-abuse treatment facility on the petition of parent or
    legal   guardian,     a   judge     was     within      his     adjudicatory    role.
    Listenbee v. Reynolds, 
    201 F.3d 194
     (3d Cir. 2000).                    As such, the
    court in Listenbee found that the judge was not a proper party in
    a   section    1983   challenge    to     the       statute's   constitutionality.
    Similarly, the Ninth Circuit has held that a judge appointing a
    temporary guardian pursuant to an Oregon statute allowing a judge
    to appoint a temporary guardian without notice or a hearing, acts
    in his adjudicatory capacity and therefore is not a proper party in
    a   section    1983   suit     contesting       the    constitutionality       of   the
    statute.      Grant v. Johnson, 
    15 F.3d 146
     (9th Cir. 1994).                        By
    comparison, judicial determinations pursuant to section 875 are
    even more clearly within a judge's adjudicatory capacity, as this
    statute requires notice and a hearing, among other safeguards and
          Supreme    Court    of    Virginia       is    distinguishable    principally
    because, unlike the disciplinary proceeding against the attorney
    initiated by the Virginia Supreme Court, Olsen did not initiate a
    temporary guardianship over Bauer.                  Instead, he issued an order
    creating a temporary guardianship after evidence was presented to
    him and he found sufficient cause.           Although Olsen did initiate the
    appointment     of   the   guardian    ad    litem   under   section        683,    who
    petitioned after conducting an investigation for the creation of a
    temporary   guardianship,      the     guardian      ad   litem   was       under   no
    obligation to request a temporary guardianship.
         Other cases cited by Bauer are similarly distinguishable.                      In
    Sparks v. Duval Ranch Company, Inc., 
    604 F.2d 976
     (5th Cir. 1979),
    the judge was allegedly bribed to conspire with the defendants
    against   the    plaintiffs.          Bribery   is    not    within     a    judge's
    adjudicatory capacity, and indeed is contrary to it.                    Ciudadanos
    Unidos de San Juan v. Hidalgo County Grand Jury Comm'rs, 
    622 F.2d 807
     (5th Cir. 1980) involved a challenge by minorities excluded
    from consideration for grand jury service to grand jury selection
    procedures and, thus, is similarly distinguishable from the case
    sub judice.      Another case cited by Bauer, Familias Unidas v.
    619 F.2d 391
    , 396 (5th Cir. 1980), is inapposite because
    the defendant judge was the County Judge of Medina County, an
    executive as well as a judicial officer, and was sued for actions
    taken in his executive capacity.
         Therefore, because determinations made under section 875 are
    within a judge's adjudicatory capacity, there is no adversity
    between Bauer and Olsen as to whether section 875 is facially
    unconstitutional.      As such, there is no case or controversy under
    Article III and Olsen is not a proper party under section 1983.
    Ordinarily, no case or controversy exists between a judge who
    adjudicates claims under a statute and a litigant who attacks the
    constitutionality of the statute.                In re Justices of The Supreme
    Court of Puerto Rico, 
    695 F.2d 17
    , 19 (1st Cir. 1982).                        Section
    1983 will not provide any avenue for relief against judges “acting
    purely in their adjudicative capacity, any more than, say, a
    typical state's libel law imposes liability on a postal carrier or
    telephone company for simply conveying a libelous message.” Id. at
    22.    The court in Puerto Rico offered several reasons for this
    holding.      First, "judges sit as arbiters without a personal or
    institutional        stake    on   either        side    of     the    constitutional
    controversy."        Id. at 21.     Second, "almost invariably, they have
    played no role in the statute's enactment."                   Id.    Third, "they have
    not initiated its enforcement."                 Id.   Finally, "they do not even
    have an institutional interest in following their prior decisions
    (if any) concerning its constitutionality if an authoritative
    contrary legal determination has subsequently been made." Id. All
    of these reasons apply with equal force in the case of sub judice,
    as    Olsen   did    not,    and   could    not       have,    initiated    temporary
    guardianship        proceedings    under        section       875.      Instead,   the
    requirements that the judge be presented with evidence, that an
    application be filed, notice be given, and a hearing be held, all
    of which were followed here, demonstrate that a judge acts in his
    adjudicatory capacity in appointing a temporary guardian.7
           Bauer also challenges the denial of her December 20, 2001,
    motion to amend.              However, as explained above, the therewith
    proposed amended complaint would have been subject to dismissal for
    the reasons previously stated, and the proposed amendment would
    hence have been futile.               Accordingly, Bauer’s contention in this
    regard presents no reversible error.                       Bauer’s October 29, 2001,
    motion to amend, which sought to file an amended complaint against
    Smith, Crain-Caton and Olsen was mooted by her subsequent dismissal
    of Smith and Crain-Caton (see note 3, supra).
           Our decision today does not foreclose Bauer or others from
    directly challenging the constitutionality of Texas's guardianship
    statutes, as it does not reach the question of whether these
    statutes are constitutional. Bauer did not seek to dissolve either
    temporary guardianship or the guardianship ad litem on the ground
              The original complaint names as defendants only “the State of Texas and the Presiding
    Judge of Probate Court No. 3 of Harris County, Texas” and alleges “[t]he Presiding Judge of
    Probate Court No. 3 of Harris County, Texas, may be served by serving the Honorable Rory R.
    Olsen, in his official capacity only.” The proposed amended complaint names as the only
    defendant “Rory R. Olsen in his official capacity as the presiding judge of Probate Court No. 3 of
    Harris County, Texas.” Olsen is never named as a defendant in his individual capacity. Assuming
    that the Probate Court No. 3 of Harris County is a state agency, a question might arise as to
    whether the suit is in effect one against a state agency and hence not within the Ex parte Young,
    209 U.S. 123
    28 S. Ct. 441
     (1908), prospective relief exception to the Eleventh Amendment.
    See, e.g., Southern Christian Leadership v. Supreme Court of Louisiana, 
    252 F.3d 781
    , 783 n.2
    (5th Cir. 2001); Landers Seed Company v. Champaign National Bank, 
    15 F.3d 729
    , 731-32 (7th
    Cir. 1994); Clark v. Clark, 
    984 F.2d 272
    , 273 (8th Cir. 1993); Voisin’s Oyster House v. Guidry,
    799 F.2d 183
    , 186, 187-88 (5th Cir. 1986). However, we will not address this question as Olsen
    has not raised any Eleventh Amendment issue before us and it has not been addressed by the
    district court.
    that the statutes authorizing their creation were unconstitutional.
    Instead, she has attempted to use a lawsuit against Olsen as a
    vehicle for         collaterally         challenging        the    constitutionality            of
    Texas's guardianship laws.
           For the foregoing reasons, the judgment of the district court
            With respect to several pending motions we carried with this case, this Court grants
    appellant's Motion to Take Judicial Notice of public court records and information that are not in
    dispute. Papasan v. Allain, 
    106 S. Ct. 2932
     (1986). We deny appellee's Motion for Expedited
    Appeal, which is moot. Finally, we deny Appellee's Motion for Damages and Costs Related to
    Frivolous Appeal because this appeal is plainly not wholly without merit. Atwood v. Union
    Carbide Corp., 
    847 F.2d 278
     (5th Cir. 1988).
    Section 875 of the Texas Probate Code provides as follows.
    § 875.   Temporary Guardian–Procedure
         (a) If a court is presented with substantial
    evidence that a person may be a minor or other
    incapacitated person, and the court has probable cause to
    believe that the person or person’s estate, or both,
    requires the immediate appointment of a guardian, the
    court shall appoint a temporary guardian with limited
    powers as the circumstances of the case require.
         (b) A person for whom a temporary guardian has been
    appointed may not be presumed to be incapacitated. The
    person retains all rights and powers that are not
    specifically granted to the person’s temporary guardian
    by court order.
         (c) A sworn, written application for the appointment
    of a temporary guardian may be filed before the court
    appoints a temporary guardian. The application must be
    filed not later than the end of the next business day of
    the court after the date of appointment of the temporary
    guardian. The application must state:
         (1) the name and address of the person who is the
    subject of the guardianship proceeding;
         (2) the danger to the person or property alleged to
    be imminent;
         (3) the type of appointment and the particular
    protection and assistance being requested;
         (4) the facts and reasons supporting the allegations
    and requests;
         (5) the name, address, and qualification of the
    proposed temporary guardian;
         (6) the    name,   address,    and   interest   of   the
         (7) if applicable, that the proposed temporary
    guardian is a private professional guardian who has
    complied with the requirements of Section 697 of this
         (d) At the earliest of the filing of an application
    for temporary guardianship or the appointment of a
    temporary guardian, the court shall appoint an attorney
    to represent the proposed ward in all guardianship
    proceedings in which independent counsel has not been
    retained by or on behalf of the proposed ward.
         (e) On the filing of an application for temporary
    guardianship, the clerk shall issue notice that shall be
    served on the respondent, the respondent’s appointed
    attorney, and the proposed temporary guardian named in
    the application, if that person is not the applicant.
    The notice must describe the rights of the parties and
    the date, time, place, purpose, and possible consequences
    of a hearing on the application.         A copy of the
    application and, if applicable, a copy of the order
    appointing the temporary guardian must be attached to the
         (f)(1) A hearing shall be held not later than the
    10th day after the date of the filing of the application
    for temporary guardianship unless the hearing date is
    extended as provided by Subdivision (2) of this
    subsection.    At a hearing under this section, the
    respondent has the right to:
         (A) receive prior notice;
         (B) have representation by counsel;
         (C) be present;
         (D) present evidence and confront and cross-examine
    witnesses; and
         (E) a closed hearing if requested by the respondent
    or the respondent’s attorney.
         (2) Every temporary guardianship granted before a
    hearing on the application required by Subdivision (1) of
    this subsection expires on its own terms at the
    conclusion of the hearing unless the respondent or the
    respondent’s attorney consents that the order appointing
    the temporary guardian may be extended for a longer
    period not to exceed 60 days after the date of the filing
    of the application for temporary guardianship.
         (3) Every temporary guardianship granted before a
    hearing on the application required by Subdivision (1) of
    this subsection shall be set for hearing at the earliest
    possible date and takes precedence over all matters
    except older matters of the same character.
         (4) Every temporary guardianship granted before a
    hearing on the application required by Subdivision (1) of
    this subsection must include an order that sets a certain
    date for hearing on the application for temporary
         (5) On one day’s notice to the party who obtained a
    temporary   guardianship   before  a   hearing   on  the
    application required by Subdivision (1) of this
    subsection, the respondent or the respondent’s attorney
    may appear and move for the dissolution or modification
    of the temporary guardianship. If a motion is made for
    dissolution    or   modification   of    the   temporary
    guardianship, the court shall hear and determine the
    motion as expeditiously as the ends of justice require.
         (6) If the applicant is not the proposed temporary
    guardian, a temporary guardianship may not be granted
    before a hearing on the application required by
    Subdivision (1) of this subsection unless the proposed
    temporary guardian appears in court.
         (g) If at the conclusion of the hearing required by
    Subsection (f)(1) of this section the court determines
    that the applicant has established that there is
    substantial evidence that the person is a minor or other
    incapacitated person, that there is imminent danger that
    the physical health or safety of the respondent will be
    seriously impaired, or that the respondent’s estate will
    be seriously damaged or dissipated unless immediate
    action is taken, the court shall appoint a temporary
    guardian by written order. The court shall assign to the
    temporary guardian only those powers and duties that are
    necessary to protect the respondent against the imminent
    danger shown. The powers and duties must be described in
    the order of appointment.
         (h) Except as provided by Subsection (k) of this
    section, a temporary guardianship may not remain in
    effect for more than 60 days.
         (i) If the court appoints a temporary guardian after
    the hearing required by Subsection (f)(1) of this
    section, all court costs, including attorney’s fees, may
    be assessed as provided in Section 665A, 665B, or 669 of
    this code.
         (j) The court may not customarily or ordinarily
    appoint the Department of Protective and Regulatory
    Services as a temporary guardian under this section. The
    appointment of the department as a temporary guardian
    under this section should be made only as a last resort.
         (k) If an application for a temporary guardianship,
    for the conversion of a temporary guardianship to a
    permanent guardianship, or for a permanent guardianship
    is challenged or contested, the court, on the court’s own
    motion or on the motion of any interested party, may
    appoint a new temporary guardian without issuing
    additional citation if the court finds that the
    appointment is necessary to protect the proposed ward or
    the proposed ward’s estate.       A temporary guardian
    appointed under this subsection must qualify in the same
    form and manner required of a guardian under this code.
    The term of the temporary guardian expires at the
    conclusion of the hearing challenging or contesting the
    application or on the date a permanent guardian the court
    appoints for the proposed ward qualifies to serve as the
    ward’s guardian.