UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

DAVID ROY HUTCHINGS,

Plaintiff

v.

COUNTY OF LLANO, TEXAS, LLANO 

CENTRAL APPRAISAL DISTRICT, 

LLANO INDEPENDENT SCHOOL 

DISTRICT, LLANO COUNTY TAX

ASSESSOR/COLLECTOR, LLANO

COUNTY EMERGENCY SERVICES, 

424TH JUDICIAL DISTRICT, LLANO 

COUNTY SHERIFF’S OFFICE, JUDGE 

EVAN STUBBS, RONALD 

CUNNINGHAM, BILL BLACKBURN, 

SCOTT DUDLEY, KRIS 

FOGELBERGE, MAC EDWARDS, 

GILBERT BENNETT,

AND JOYCE GILLOW,

Defendants

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Case No. 1:20-CV-308-LY-SH

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE LEE YEAKEL

 UNITED STATES DISTRICT JUDGE

Before this Court are: Defendants Llano Central Appraisal District and Scott Dudley’s Motion 

to Dismiss Plaintiff’s Original Complaint (Dkt. 9) and Motion to Set Hearing on Defendants’ 

Motion to Dismiss (Dkt. 10);1Judicial Defendants’ Motion to Dismiss (Dkt. 12); Llano County 

Defendants’ Motion to Dismiss Plaintiff’s Original Complaint (Dkt. 13); Motion to Dismiss by 

Defendants Llano Independent School District and Mac Edwards (Dkt. 14); and the parties’ 

various response and reply briefs. On April 28, 2020, the District Court referred to the undersigned 

Magistrate Judge all pending and future discovery motions and other nondispositive motions for 

1 Because a hearing is unnecessary in this case, the Court DENIES the Motion to Set Hearing on 

Defendants’ Motion to Dismiss (Dkt. 10).

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resolution, and all pending and future dispositive motions for Report and Recommendation,

pursuant to 28 U.S.C. § 636(b)(1), Federal Rule of Civil Procedure 72, and Rule 1 of Appendix C 

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

I. Background

On March 23, 2020, Plaintiff David Roy Hutchings, proceeding pro se, filed this lawsuit 

against the County of Llano, Texas, Llano Central Appraisal District, Llano Independent School 

District, Llano County Tax Assessor/Collector, Llano County Emergency Services and Llano 

County Sheriff’s Office,2the 424th District Court of Llano County, Judge Evan Stubbs, Ronald 

Cunningham, Bill Blackburn, Scott Dudley, Kris Fogelberg, Mac Edwards, Gilbert Bennett, and 

Joyce Gillow (collectively, “Defendants”). Plaintiff alleges that the Defendants illegally assessed 

and collected property taxes on his real property in Llano County, Texas, and that his property was 

sold illegally through a state court judicial proceeding. Plaintiff claims that the Defendants had no 

right to collect taxes on his property because “the Right to own property is a substantive Right” 

which “cannot be taxed.” Dkt. 1 ¶¶ 56, 58. Plaintiff further claims that the Defendants “operated a 

criminal enterprise under color of law” with the purpose of “the taking of Claimant’s property in 

order to enrich themselves or the enterprise.” Dkt. 1 ¶¶ 2-4. 

Plaintiff’s Complaint alleges a plethora of claims against the Defendants, including claims 

under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 and 1962 

(“RICO”); 42 U.S.C. §§ 1983, 1985, and 1986; the Eighth Amendment to the United States 

Constitution; the Texas Theft Liability Act; and the Texas Deceptive Trade Practices Act, as well 

as fraud, conversion, and a claim for the intentional infliction of emotional distress. Plaintiff seeks 

2 Defendants contend that Plaintiff has incorrectly referred to Emergency Management as “Emergency 

Services, and the Sheriff’s Office.” Dkt. No. 13 at 1.

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$5 million in damages, punitive damages, the return of his property, the expungement of all of his 

court records, and attorney’s fees and costs. 

All of the Defendants now seek dismissal of Plaintiff’s Complaint under Federal Rules of Civil 

Procedure 12(b)(1) and/or 12(b)(6). The Court makes the following recommendations.

II. Legal Standards

A. Rule 12(b)(1)

Federal district courts are courts of limited jurisdiction and may exercise only such jurisdiction 

as is expressly conferred by the Constitution and federal statutes. Kokkonen v. Guardian Life Ins. 

Co. of Am., 511 U.S. 375, 377 (1994). A federal court has subject matter jurisdiction over civil 

cases “arising under the Constitution, laws, or treaties of the United States,” and over civil cases 

in which the amount in controversy exceeds $75,000, exclusive of interest and costs, and in which 

diversity of citizenship exists between the parties. 28 U.S.C. §§ 1331, 1332. 

Federal Rule of Civil Procedure 12(b)(1) allows a party to assert lack of subject matter 

jurisdiction as a defense to suit. A federal court properly dismisses a case for lack of subject matter 

jurisdiction when it lacks the statutory or constitutional power to adjudicate the case. Home 

Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). “The burden 

of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.” Ramming v. 

United States, 281 F.3d 158, 161 (5th Cir. 2001). “Ultimately, a motion to dismiss for lack of 

subject matter jurisdiction should be granted only if it appears certain that the plaintiff cannot 

prove any set of facts in support of his claim that would entitle plaintiff to relief.” Id. In ruling on 

a Rule 12(b)(1) motion, the court may consider (1) the complaint alone; (2) the complaint plus 

undisputed facts evidenced in the record; or (3) the complaint, undisputed facts, and the court’s 

resolution of disputed facts. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008). 

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B. Rule 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss an action for failure 

to state a claim on which relief can be granted. In deciding a Rule 12(b)(6) motion to dismiss for 

failure to state a claim, the court “accepts all well-pleaded facts as true, viewing them in the light 

most favorable to the [nonmovant].” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 

(5th Cir. 2007) (internal quotation marks omitted). The Supreme Court has explained that a 

complaint must contain sufficient factual matter “to state a claim to relief that is plausible on its 

face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 

U.S. 544, 570 (2007)). “A claim has facial plausibility when the [nonmovant] pleads factual 

content that allows the court to draw the reasonable inference that the [movant] is liable for the 

misconduct alleged.” Ashcroft, 556 U.S. at 678. 

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does 

not need detailed factual allegations, a plaintiff’s obligation to provide 

the grounds of his entitlement to relief requires more than labels and 

conclusions, and a formulaic recitation of the elements of a cause of 

action will not do. Factual allegations must be enough to raise a right 

to relief above the speculative level, on the assumption that all the 

allegations in the complaint are true (even if doubtful in fact).

Twombly, 550 U.S. at 555 (cleaned up). The court’s review is limited to the complaint, any 

documents attached to the complaint, and any documents attached to the motion to dismiss that 

are central to the claim and referenced by the complaint. Lone Star Fund V (U.S.), L.P. v. Barclays 

Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010).

III. Analysis

As noted, Defendants seek dismissal of Plaintiff’s Complaint under Federal Rules of Civil 

Procedure 12(b)(1) and/or 12(b)(6). Specifically, Defendants Llano Central Appraisal District and 

Scott Dudley argue that Plaintiff’s Complaint should be dismissed based on the Tax Injunction 

Act. Dkt. 9. The Judicial Defendants move to dismiss Plaintiffs’ Complaint on the bases of judicial 

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immunity, qualified immunity, lack of subject matter jurisdiction, the Rooker-Feldman doctrine, 

and failure to state a claim on which relief can be granted. Dkt. 12. The Llano County Defendants 

move to dismiss on the bases of the Tax Injunction Act, sovereign immunity, and failure to state a 

claim. Dkt. 13. The Llano Independent School District and Mac Edwards argue that Plaintiff’s

case should be dismissed based on the Tax Injunction Act, sovereign immunity, qualified 

immunity, and failure to state a claim. Dkt. 14. 

The Court addresses Defendants’ jurisdictional arguments first. See Ramming, 281 F.3d at 161 

(“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.”).

A. Judicial Immunity

As stated above, Plaintiff alleges that Defendants illegally assessed and collected property 

taxes on his property in Llano County, and that his property was sold illegally through a state court 

judicial proceeding in the 424th District Court of Llano County, Texas. In addition to the numerous 

other defendants, Plaintiff has named as defendants Llano County District Court Judge Evan 

Stubbs, the judge who presided over Plaintiff’s state court proceedings at issue in this case, and 

the 424th District Court (collectively, the “Judicial Defendants”). 

It is settled law that a judge enjoys absolute immunity from liability for damages for judicial 

acts performed within his or her jurisdiction.

Few doctrines were more solidly established at common law than 

the immunity of judges from liability for damages for acts 

committed within their judicial jurisdiction. . . . This immunity 

applies even when the judge is accused of acting maliciously and 

corruptly, and it is not for the protection or benefit of a malicious or 

corrupt judge, but for the benefit of the public, whose interest it is 

that the judges should be at liberty to exercise their functions with 

independence and without fear of consequences.

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Pierson v. Ray, 386 U.S. 547, 553-54 (1967) (internal quotations and citations omitted). The 

doctrine of absolute judicial immunity protects judges not only from liability, but also from suit. 

Mireles v. Waco, 502 U.S. 9, 11 (1991). Motive of the judicial officer is irrelevant when 

considering absolute immunity. See Mitchell v. McBryde, 944 F.2d 229, 230 (5th Cir. 1991) (“The 

judge is absolutely immune for all judicial acts not performed in clear absence of all jurisdiction, 

however erroneous the act and however evil the motive.”). Judges acting in their official capacity 

also enjoy absolute immunity from suits for injunctive relief because the Federal Courts 

Improvement Act of 1996 extended the doctrine of judicial immunity to injunctive relief and 

damages. Machetta v. Moren, 726 F. App’x 219, 220 (5th Cir. 2018).

Absolute judicial immunity is overcome only in two rather narrow sets of circumstances: First, 

a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge’s 

judicial capacity; and second, a judge is not immune for actions, although judicial in nature, taken 

in complete absence of all jurisdiction. Mireles, 502 U.S. at 11-12. “A judge’s acts are judicial in 

nature if they are ‘normally performed by a judge’ and the parties affected ‘dealt with the judge in 

his judicial capacity.’” Boyd v. Biggers, 31 F.3d 279, 285 (5th Cir. 1994) (quoting Mireles, 502 

U.S. at 12). “For purposes of immunity, the judge’s jurisdiction is construed broadly and a judge 

is not deprived of immunity ‘because the action he took was in error, was done maliciously, or 

was in excess of his authority; rather, he will be subject to liability only when he has acted in the 

‘clear absence of all jurisdiction.’” Davis v. Bayless, 70 F.3d 367, 373 (5th Cir. 1995) (quoting 

Stump v. Sparkman, 435 U.S. 349, 357-60 (1978)).

Judge Stubbs was clearly acting in his judicial capacity when he presided over the state court 

litigation regarding the assessment and failure to pay taxes on Plaintiff’s property. See Rizer v. Cty. 

of Bastrop, Texas, No. 18-CV-607-LY-ML, 2018 WL 7350680, at *4 (W.D. Tex. Dec. 14, 2018) 

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(holding that state court judge presiding over tax proceeding concerning real property was entitled 

to judicial immunity as to plaintiff’s claims under RICO, 42 U.S.C. § 1983, Texas Theft Liability 

Act, and claims for fraud, conversion, and intentional infliction of emotional distress), report and 

recommendation adopted, No. 1:18-CV-607-LY, 2019 WL 1313453 (W.D. Tex. Mar. 1, 2019). 

Plaintiff does not complain of any actions taken by Judge Stubbs that were nonjudicial in nature; 

nor does he show that Judge Stubbs was acting in the clear absence of all jurisdiction. Accordingly, 

Judge Stubbs is entitled to absolute judicial immunity and Plaintiff’s claims against Judge Stubbs 

must be dismissed.

Plaintiff’s claims against the 424th District Court also must be dismissed because the court is 

not a legal entity capable of being sued. See Rodgers v. 323rd Dist. Court Tarrant Cty. Texas, 797 

F. App’x 889 (5th Cir. 2020) (affirming district court’s holding that “the 323rd District Court was 

not a legal entity capable of being sued”); Rizer, 2018 WL 7350680, at *4 (holding that “the 335th 

Judicial District Court is not a legal entity that can be sued”); Banargent v. Texas Court of Criminal 

Appeals, No. A-10-CA-358-SS, 2010 WL 2430766, at *1 (W.D. Tex. June 15, 2010) (same).

Based on the foregoing, the Judicial Defendants’ Motion to Dismiss (Dkt. 12) should be 

granted.3

B. Tax Injunction Act

In addition to the Judicial Defendants, Plaintiff has named multiple Llano County departments 

and employees as Defendants. All of these Defendants have filed Motions to Dismiss, in part, on 

the basis that Plaintiff’s lawsuit is barred by the Tax Injunction Act, 28 U.S.C. § 1341 (“TIA”). 

Plaintiff’s lawsuit is barred by the TIA. 

3 Because the Court finds that Plaintiff’s claims are barred by judicial immunity and the district court is not 

a proper party, the Court need not address the Judicial Defendants’ alternative arguments.

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The TIA provides that: “The district courts shall not enjoin, suspend or restrain the assessment, 

levy or collection of any tax under State law where a plain, speedy and efficient remedy may be 

had in the courts of such State.” 28 U.S.C. § 1341. This statute reflects “the fundamental principle 

of comity between federal courts and state governments that is essential to ‘Our Federalism,’ 

particularly in the area of state taxation.” Fair Assessment in Real Estate Ass’n, Inc. v. McNary, 

454 U.S. 100, 103 (1981). The TIA bars federal district courts from granting declaratory as well 

as injunctive relief in cases challenging state tax systems. California v. Grace Brethren Church, 

457 U.S. 393, 408 (1982). Taxpayers also are barred by the principles of comity from asserting 

§ 1983 actions against the validity of state tax systems in federal court. McNary, 454 U.S. at 116.

Thus, the TIA bars the district court from asserting jurisdiction unless the State fails to supply a 

plain, speedy and efficient remedy for the taxpayer’s claim. Smith v. Travis Cty. Educ. Dist., 968 

F.2d 453, 456 (5th Cir. 1992). 

Plaintiff’s seeks to invalidate the property tax assessment on his property on federal 

constitutional and other grounds, and seeks a declaration that his property is not within the taxing 

authority of the Texas Tax Code.4 The Fifth Circuit has addressed the adequacy of Texas remedies 

under § 1341 for claims like Plaintiff’s, and have found them to be “plain, speedy and efficient.” 

See McQueen v. Bullock, 907 F.2d 1544, 1548 n.9 (5th Cir. 1990). Because Texas state courts 

provide a procedural vehicle for taxpayer’s federal constitutional claims, including a “full hearing 

and judicial determination, with ultimate review available in the United States Supreme Court,” 

Texas provides an adequate remedy for Plaintiff’s constitutional claims as well. Smith, 968 F.2d 

at 456. Accordingly, Plaintiff’s claims against Defendants are barred by the TIA. See id. (holding

that TIA barred district court from entertaining taxpayers’ constitutional claims against the 

4 Dkt. 1 at ¶ 72.

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collection of county ad valorem taxes); Rizer, 2018 WL 7350680 at *3 (dismissing plaintiff’s 

claims based on TIA).

C. Rooker-Feldman Doctrine

The undersigned further finds that this Court lacks subject matter jurisdiction over this lawsuit 

under the Rooker-Feldman doctrine.

5 This doctrine deprives federal courts of subject matter 

jurisdiction in “cases brought by state-court losers complaining of injuries caused by state-court 

judgments rendered before the district court proceedings commenced and inviting district court 

review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 

U.S. 280, 284 (2005).

A federal complainant cannot circumvent this jurisdictional 

limitation by asserting claims not raised in the state court 

proceedings or claims framed as original claims for relief. If the 

district court is confronted with issues that are “inextricably 

intertwined” with a state judgment, the court is “in essence being 

called upon to review the state-court decision,” and the originality 

of the district court’s jurisdiction precludes such a review.

United States v. Shepherd, 23 F.3d 923, 924 (5th Cir.1994) (quoting Feldman, 460 U.S. at 482 

n.16). Litigants may not obtain review of state court actions by filing complaints about those 

actions in lower federal courts cast in the form of civil rights suits. See Liedtke v. State Bar of Tex., 

18 F.3d 315, 317 (5th Cir. 1994). The only federal recourse for constitutional questions arising in 

state court proceedings is application for writ of certiorari to the United States Supreme Court. Id.

Because the Court finds that Plaintiff’s claims are inextricably intertwined with the state court 

judgment and proceedings regarding his taxes and property, this suit is barred by the RookerFeldman doctrine. See Santoro v. Cty. of Collin, Texas, No. 4:18-CV-660, 2019 WL 5692190, at 

*4 (E.D. Tex. Aug. 16, 2019) (finding that plaintiff’s claims challenging tax lien foreclosure on 

5 See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 

460 U.S. 462 (1983).

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his property were barred by Rooker-Feldman doctrine and noting that federal courts routinely 

apply the doctrine to challenges to state property tax assessments), report and recommendation 

adopted, No. 4:18-CV-660, 2019 WL 4686361 (E.D. Tex. Sept. 26, 2019); Rizer, 2018 WL 

7350680, at *3 (holding that court did not have jurisdiction to hear Plaintiff’s RICO and civil rights 

claims challenging county’s tax assessment and liens on his property).

Based on the foregoing, Defendants’ Motions to Dismiss should be granted.6

IV. Recommendation

The undersigned RECOMMENDS that the District Court GRANT Defendants Llano Central 

Appraisal District and Scott Dudley’s Motion to Dismiss Plaintiff’s Original Complaint (Dkt. 9), 

Judicial Defendants’ Motion to Dismiss (Dkt. 12), Llano County Defendants’ Motion to Dismiss 

Plaintiff’s Original Complaint (Dkt. 13), and Defendants Llano Independent School District and 

Mac Edwards’ Motion to Dismiss (Dkt. 14), and DISMISS this case with prejudice for lack of 

subject matter jurisdiction.

V. Warnings

The parties may file objections to this Report and Recommendation. A party filing objections 

must specifically identify those findings or recommendations to which objections are being made. 

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

United States 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 and, 

6 Because the Court has concluded that Plaintiffs’ lawsuit is barred by judicial immunity, the Tax Injunction 

Act, and the Rooker-Feldman doctrine, the Court need not address Defendants’ alternative arguments.

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except on grounds of plain error, shall 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); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass’n, 

79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

SIGNED on July 27, 2020.

SUSAN HIGHTOWER

UNITED STATES MAGISTRATE JUDGE

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