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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

WACO DIVISION

ADRIAN GILLIARD,

 Plaintiff,

v.

COURTNEY LUMME, et. al.,

 Defendants.

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 C.A. NO. 6:20-CV-00278-ADA-JCM

REPORT AND RECOMMENDATION OF

THE UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE ALAN D ALBRIGHT,

UNITED STATES DISTRICT JUDGE

This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. 

§ 636(b)(1)(C), Fed. R. Civ. P. 72(b), and Rules 1(f) and 4(b) of Appendix C of the Local Rules 

of the United States District Court for the Western District of Texas, Local Rules for the 

Assignment of Duties to United States Magistrate Judges. Before the Court are Defendants 

Fuller, Sims, and Skinner’s Motions to Dismiss in Their Official Capacities (“FSS Mot. to 

Dismiss Official Capacity,” ECF No. 10) and in Their Individual Capacities (“FSS Mot. to 

Dismiss Individual Capacity,” ECF No. 11), Defendant Wallrath’s Motion to Dismiss (“Wallrath 

Mot. to Dismiss,” ECF No. 12), Defendants Lumme and Downs’s Motion to Dismiss (“LD Mot. 

to Dismiss,” ECF No. 18), Defendants Gatlin, Spence, and Baker’s Motion to Dismiss (“GSB 

Mot. to Dismiss,” ECF No. 28), and the responses and replies thereto. Also before the Court is

Plaintiff’s Motion to Amend Complaint (“Pl.’s Mot. to Amend,” ECF No. 17). 

For the following reasons, the Court RECOMMENDS that Plaintiff’s Motion to Amend 

Complaint be DENIED and that Plaintiff’s Complaint be DISMISSED WITHOUT 

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PREJUDICE for lack of subject matter jurisdiction. Additionally, the Court RECOMMENDS 

that any remaining Motions pending in this matter be DENIED AS MOOT. 

I. BACKGROUND

In a winding, thirty-one page complaint, Plaintiff Adrian Gilliard, proceeding pro se, 

seeks redress for alleged violations of law surrounding the Texas Department of Family 

Protective Services (“TxDFPS”) taking Plaintiff’s children into custody. See generally Pl.’s 

Compl. It appears that Plaintiff seeks redress under a number of statutes, including the 

Americans with Disabilities Act (“ADA”) and 28 U.S.C. § 1983. See Civil Cover Sheet, ECF 

No. 1-1. 

Plaintiff’s Complaint largely centers on his dissatisfaction with the state-court 

proceedings that terminated his parental rights and the subsequent appeals process. See generally 

Pl.’s Compl. Plaintiff seeks a variety of relief, including, among other requests, the revocation of 

“all licenses and certifications” held by the Defendants named in the case, termination of 

Defendants’ employment from TxDFPS, $3,000 for the loss of a 2002 Toyota Corolla, $1,000 

for an electric bill, and a “federal and Congressional investigation” based on Plaintiff’s 

Complaint. Id. at 28-30.

II. LEGAL STANDARD

Federal courts are courts of limited jurisdiction, possessing only the power authorized by 

the Constitution and statute. Xitronix Corp. v. KLA-Tencor Corp., 916 F.3d 429, 435 (5th Cir. 

2019). Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party to 

challenge the subject matter jurisdiction of the district court to hear a case. Fed. R. Civ. P. 

12(b)(1). Lack of subject matter jurisdiction may be found in any one of three instances: (1) the 

complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or 

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(3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. 

Barrera–Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996). 

III. DISCUSSION

A. Plaintiff’s Complaint fails to invoke the Court’s limited subject matter jurisdiction.

Each of the Motions to Dismiss before the Court argues that, under Rule 12(b)(1),

Plaintiff fails to invoke the Court’s limited subject matter jurisdiction. See FSS Mot. to Dismiss 

Official Capacity at 3; FSS Mot. to Dismiss Individual Capacity at 3; Wallrath Mot. to Dismiss 

at 2; LD Mot. to Dismiss at 7; GSB Mot. to Dismiss at 7. While the Motions vary on the reasons 

provided for dismissal under 12(b)(1), at least two Motions invoke the Rooker-Feldman doctrine. 

See LD Mot. to Dismiss at 9; GSB Mot. to Dismiss at 9. Because the application of the doctrine 

disposes of all parties and claims in this matter, the Court will solely address this argument. 

The Rooker–Feldman doctrine acts to deprive a federal district court of subject matter 

jurisdiction to review a final state court decision arising out of a judicial proceeding unless a 

federal statute specifically authorizes such review. District of Columbia Court of Appeals v. 

Feldman, 460 U.S. 462, 486 (1983) (federal courts lack jurisdiction “over challenges to state 

court decisions ... arising out of judicial proceedings even if those challenges allege that the state 

court's action was unconstitutional”); Rooker v. Fid. Trust Co., 263 U.S. 413, 414–16 (1923) 

(federal district courts do not have appellate jurisdiction to reverse or modify judgment of state 

court).

This jurisdictional bar is not limited to actions in federal court that explicitly seek review 

of a state court decision, but also extends to those “in which the constitutional claims presented 

...are inextricably intertwined with the state court's grant or denial of relief.” Evans v. Williamson 

Cty. Gov't, Tex., No. A-15-CV-436-SS, 2015 WL 4621449, at *4 (W.D. Tex. May 28, 2015), 

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report and recommendation adopted, No. A-15-CA-436-SS, 2015 WL 4624708 (W.D. Tex. July 

31, 2015) (quoting Hale v. Harney, 786 F.2d 688, 691 (5th Cir. 1986)). A claim is “inextricably 

intertwined” with a state court judgment if, in order to find in the plaintiff's favor, the federal 

court would have to conclude that the state court wrongly decided the issues before it or would 

otherwise have to void the judgment. Id. Thus, the Fifth Circuit has long held that a plaintiff 

cannot circumvent the Rooker–Feldman doctrine merely by recasting a complaint in the form of 

a federal civil rights action. Id. (citing Richard v. Hoechst Celanese Chem. Group, Inc., 355 F.3d 

345, 352 (5th Cir.2003)) (additional citations omitted). 

Despite the sheer breadth of Plaintiff’s Complaint, each of his claims are inextricably 

intertwined with the state-court termination proceedings. Plaintiff acknowledges that he was 

unsuccessful at the state trial court proceeding. See Pl.’s Compl. at 28. Plaintiff was also 

unsuccessful during his subsequent appeal of the trial court decision. See Interest of C.G., No. 

10-19-00306-CV, 2019 WL 6464977 (Tex. App.—Waco Nov. 27, 2019), review denied (Jan. 24, 

2020), review denied (Apr. 3, 2020). Plaintiff primarily takes issue with the outcome of the statecourt termination proceedings, seeking the reversal of those decisions and damages therefrom. 

See generally Pl.’s Compl. Even Plaintiff’s stranger claims (i.e. seeking recompense for pawned 

jewelry, reimbursement for an electric bill, and reimbursement for a 2002 Toyota Corolla) 

constitute a collateral attack on these state-court decisions.1

Plaintiff’s invocation of various federal statutes does not remedy this jurisdictional 

shortcoming. Federal courts routinely apply the Rooker-Feldman doctrine in the context of 

1 Plaintiff’s reimbursement claims are extremely difficult to understand, but it is clear that these grievances are 

related to the state-court proceedings. For instance, Plaintiff provides: “Leslie Walrath aligned herself with

(TxDFPS) in not stating to court the children's wishes to return home but continued to ask judge Sam Bournias to 

not allow Becky Morgan give rides to Adrian Gilliard and Michelle Gilliard the places we needed. She was aware 

that our car was repossessed because of (TxDFPS) related i was disable and needed Becky morgan help with daily 

needs but also for my services, Wallrath always seemed to put obstacles in our paths, making comments that were 

very unprofessional. [sic]” Pl.’s Compl. at 26. Given Plaintiff’s reference to the state-court trial judge, it is apparent 

that Plaintiff’s dissatisfaction lies with state-court proceedings. 

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challenges to state-court termination proceedings. See, e.g., Krasniqi v. Enoch, 24 F.3d 237 (5th 

Cir. 1994); Smith v. Texas Dep't of Child Protective Servs., No. CV H-18-3470, 2019 WL 

3472867, at *5 (S.D. Tex. July 11, 2019), report and recommendation adopted, No. CV H-18-

3470, 2019 WL 3457677 (S.D. Tex. July 30, 2019).

Plaintiff’s response to the invocation of the Rooker-Feldman doctrine, in part, appears to 

be a copy-and-pasted passage from a 2008 treatise. See Pl.’s Resp. to LD Mot. to Dismiss at 17.2

It is unclear, however, what aspect of this treatise is applicable to the issue at bar. Plaintiff also 

avers that he is asking the Court to examine “constitutional rights violations that maybe 

happened within state court case, not to review the case.” Pl.’s Resp. to GSB Mot. to Dismiss at 

12. As noted, Plaintiff’s attempts to recast his Complaint as a federal civil rights action does not 

circumvent the doctrine. See Richard, 355 F.3d at 352. Further, the finding of constitutional right 

violations that happened within the state-court proceedings would necessarily void the judgment. 

The Rooker-Feldman doctrine expressly forbids this kind of review. See Evans, 2015 WL 

4621449, at *4.

Thus, the Court RECOMMENDS that Defendants Lumme and Downs’s Motion to 

Dismiss and Defendants Gatlin, Spence, and Baker’s Motion to Dismiss be GRANTED IN 

PART as to the Rooker-Feldman ground therein. The doctrine applies as to all parties and claims 

raised in Plaintiff’s Complaint, and Plaintiff’s Complaint should, therefore, be DISMISSED 

WITHOUT PREJUDICE for lack of subject matter jurisdiction. The Court RECOMMENDS 

that the remaining grounds in Defendants Lumme and Downs’s Motion to Dismiss and 

Defendants Gatlin, Spence, and Baker’s Motion to Dismiss be DENIED IN PART AS MOOT. 

Further, the Court RECOMMENDS that all remaining Motions to Dismiss be DENIED AS 

MOOT.

2 Martin A. Schwartz (2008). Section 1983 Litigation. Federal Judicial Center.

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B. Plaintiff’s Motion to Amend is futile and should be denied. 

Plaintiff also seeks to amend his Complaint. See Pl.’s Mot. to Amend. Plaintiff’s 

proposed Amended Complaint totals seventy-three pages. See id. Rule 15(a) requires a trial court 

to “freely give leave when justice so requires.” N. Cypress Med. Ctr. Operating Co., Ltd v. Aetna 

Life Ins. Co., 898 F.3d 461, 477 (5th Cir. 2018). A district court must provide a “‘substantial 

reason’ to deny a party’s request for leave to amend,” such as “undue delay, bad faith or dilatory 

motive on the part of the movant, repeated failures to cure deficiencies by amendments 

previously allowed, undue prejudice to the opposing party ..., and futility of the amendment.”

Brown v. Taylor, 911 F.3d 235, 246 (5th Cir. 2018) (citing N. Cypress Med. Ctr. Operating Co., 

Ltd., 898 F.3d at 477). 

Although a pro se litigant should generally be afforded an opportunity to amend his 

complaint before it is dismissed, denial is nonetheless justified when the proposed amendment 

would be futile. Mason v. Fremont Inv. & Loan, 671 F. App'x 880, 883 (5th Cir. 2016) (internal 

citations omitted). Here, Plaintiff’s proposed Amended Complaint suffers from the same 

jurisdictional defect previously identified in Section I (A), supra. Plaintiff’s proposed Amended 

Complaint is still comprised of claims that are inextricably intertwined with the state-court 

judgment in that this Court would have to conclude that the state court wrongly decided the 

issues before it or would otherwise have to void the judgment. See Evans, 2015 WL 4621449, at 

*4. The Court therefore RECOMMENDS that Plaintiff’s Motion to Amend be DENIED as 

futile.

IV. RECOMMENDATION

After thoroughly reviewing the record, the undersigned RECOMMENDS that 

Defendants Lumme and Downs’s Motion to Dismiss and Defendants Gatlin, Spence, and 

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Baker’s Motion to Dismiss be GRANTED IN PART as to the Rooker-Feldman ground therein.

As a result, the Court RECOMMENDS Plaintiff’s Complaint be DISMISSED WITHOUT 

PREJUDICE for lack of subject matter jurisdiction. The Court RECOMMENDS that the 

remaining grounds in Defendants Lumme and Downs’s Motion to Dismiss and Defendants 

Gatlin, Spence, and Baker’s Motion to Dismiss be DENIED IN PART AS MOOT. Further, the 

Court RECOMMENDS that all remaining Motions to Dismiss be DENIED AS MOOT.

The Court also RECOMMENDS that Plaintiff’s Motion to Amend be DENIED as 

futile. Finally, the Court RECOMMENDS that all remaining Motions in this matter be 

DENIED AS MOOT.

V. OBJECTIONS

The parties may wish to file objections to this Report and Recommendation. Parties filing 

objections must specifically identify those findings or recommendations to which they object. 

The District Court need not consider frivolous, conclusive, or general objections. See Battle v. 

U.S. Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).

A party’s failure to file written objections to the proposed findings and recommendations 

contained in this Report within fourteen (14) days after the party is served with a copy of the 

Report shall bar that party from de novo review by the District Court of the proposed findings 

and recommendations in the Report. See 28 U.S.C. § 636(b)(1)(C); Thomas v Arn, 474 U.S. 140, 

150–53 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc). 

Except upon grounds of plain error, failing to object shall further bar the party from appellate 

review of unobjected-to proposed factual findings and legal conclusions accepted by the District 

Court. See 28 U.S.C. § 636(b)(1)(C); Thomas, 474 U.S. at 150–53; Douglass, 79 F.3d at 1415.

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SIGNED this 1st day of March, 2021.

JEFFREY C. MANSKE

UNITED STATES MAGISTRATE JUDGE

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