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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

FRANCISCO R. RAMOS,

 Plaintiff,

vs.

TEXAS DEPARTMENT OF FAMILY 

AND PROTECTIVE SERVICES, 

OFFICIAL CAPACITY; KIMBERLY 

COFFEE, OFFICIAL CAPACITY, 

CASEWORKER, TEXAS 

DEPARTMENT OF FAMILY AND 

PROTECTIVE SERVICES; SHELLY 

DOUGLOSCH, INDIVIDUAL 

CAPACITY, SUPERVISOR, TEXAS 

DEPARTMENT OF FAMILY AND 

PROTECTIVE SERVICES; AND JIMMIE 

D. MITCHELL, OFFICIAL CAPACITY, 

CASEWORKER, TEXAS 

DEPARTMENT OF FAMILY AND 

PROTECTIVE SERVICES;

 Defendants.

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SA-20-CV-00232-FB

REPORT AND RECOMMENDATION AND ORDER

OF UNITED STATES MAGISTRATE JUDGE

To the Honorable United States District Judge Fred Biery:

This Report and Recommendation concerns this Court’s review of the pleadings pursuant 

to 28 U.S.C. § 1915(e). All pretrial matters in this case have been referred to the undersigned for 

disposition pursuant to Rules CV-72 and 1(c) of Appendix C of the Local Rules of the United 

States District Court for the Western District of Texas. The undersigned has authority to enter 

this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, it is 

recommended that Plaintiff’s Complaint be dismissed because Plaintiff has failed to allege 

sufficient facts to establish this Court’s subject matter jurisdiction or to state a claim upon which 

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relief may be granted. The Court will also deny Plaintiff’s third Motion to Appoint Counsel 

[#6]. 

I. Procedural Background

Plaintiff filed this lawsuit pro se on February 26, 2020, seeking to proceed in forma 

pauperis (“IFP”) in this action. On March 5, 2020, the Court granted Plaintiff’s motion to 

proceed IFP but ordered that Plaintiff file a more definite statement to clarify some identified 

deficiencies in his proposed Complaint [#4]. The Court ordered that Plaintiff’s Complaint be 

filed but that service be withheld pending the Court’s review of the more definite statement. 

Plaintiff timely filed his More Definite Statement on April 2, 2020 [#8]. Plaintiff has also filed a 

Motion to Appoint Counsel [#9]. This is Plaintiff’s third motion to appoint counsel. The Court 

has previously denied two similar motions filed by Plaintiff [#4, #7]. For the reasons that follow, 

the Court will deny Plaintiff’s third motion to appoint counsel and recommend that the District 

Court dismiss Plaintiff’s Complaint under Section 1915(e). 

II. Appointment of Counsel

As the Court has previously explained to Plaintiff, there is no right to appointment of 

counsel in a civil case. Akasike v. Fitzpatrick, 26 F.3d 510, 512 (5th Cir. 1994); Cupit v. Jones, 

835 F.2d 82, 86 (5th Cir. 1987). Appointment of counsel in a civil case is considered a privilege, 

not a constitutional right, and should be allowed only in exceptional circumstances. Lopez v. 

Reyes, 692 F.2d 15, 17 (5th Cir. 1982) (citation omitted); see Cupit, 835 F.2d at 86. In 

evaluating whether the appointment of counsel is proper under § 1915(e), the district court 

considers the type and complexity of the case, among other factors. See Castro Romero v. 

Becken, 256 F.3d 349, 354 (5th Cir. 2001). While the Court is sympathetic with the difficulties 

Plaintiff may face in presenting his case to this Court as a non-lawyer, Plaintiff has not provided 

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the Court with some of the basic facts about this lawsuit, which were specifically requested in 

the Court’s Order for a More Definite Statement, so that the Court can evaluate whether this case 

is of the type and complexity that would warrant appointment of counsel. As such, Plaintiff has 

not demonstrated that exceptional circumstances are present in his case or that, based on the 

record, appointment of counsel is appropriate under the applicable legal standard under 28 

U.S.C. § 1915(e). The Court will deny the motion. 

III. Review of the Pleadings

Pursuant to 28 U.S.C. § 1915(e), the Court is empowered to screen any civil complaint 

filed by a party proceeding IFP to determine whether the claims presented are (1) frivolous or 

malicious; (2) fail to state a claim on which relief may be granted; or (3) seek monetary relief 

against a defendant who is immune from such relief.1 See 28 U.S.C. § 1915(e)(2)(B). Plaintiff’s 

Complaint names the Department of Family and Protective Services (“DFPS”) and various 

employees of DFPS in their individual or official capacities. Plaintiff alleges Defendants 

violated his constitutional rights to due process and equal protection pursuant to 42 U.S.C. § 

1983 and alleges a cause of action under the Americans with Disabilities Act. Plaintiff claims 

that Defendants “acted in their official capacity to threaten [him] and steal [his] son” by coercing 

him to agree to a possessory conservatorship during a mediation prior to a DFPS court 

determination in July 2019. (Compl. [#5] at 4.) Plaintiff explains that he was told that his 

criminal history from 15 years ago would be used against him and his parental rights would be 

terminated if he did not sign the order giving him possessory conservatorship over his son. (Id. 

1 Under 28 U.S.C. § 1915(e), a court may at any time dismiss a case if it determines that 

the case filed by the IFP plaintiff is frivolous or fails to state a claim but is not required to screen 

non-prisoner cases at the outset. In contrast, when an IFP case is filed by a prisoner, the court is 

required to screen a complaint prior to docketing or as soon as possible. See 28 U.S.C. § 

1915A(a). 

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at 4.) Plaintiff felt that he had no choice but to assent to the custody agreement if he wanted to 

continue to see his son. (Id.) Plaintiff explains that he complied with all of DFPS’s 

requirements, such as completing parenting classes, a violence intervention program, and taking 

drug tests that all came back negative for illegal substances. (Id.) Plaintiff seeks full custody of 

his son and $50,000,000 in emotional pain and suffering through this lawsuit. (Id. at 5.) 

In its Order for a More Definite Statement, the Court asked Plaintiff to answer specific 

questions to clarify his allegations and provide the Court with additional facts surrounding the 

custody dispute underlying this lawsuit. (Order [#7].) These questions included whether there 

was a state-court lawsuit and the nature of the lawsuit, whether there was a final custody order 

and the details of the order, who allegedly coerced him into signing the agreement, why Plaintiff 

believes his criminal history would not be relevant to the custody determination in this case, and 

what each of the named Defendants specifically did to harm Plaintiff. 

Plaintiff’s More Definite Statement [#8] does not address these questions. However, it

does briefly explain why DFPS began investigating the alleged neglect of Plaintiff‘s son in the

first instance. Plaintiff explains that on April 4, 2018, DFPS received a referral alleging neglect

of his three-month-old son due to the impairment of Ms. Pence (the boy’s mother) from alcohol

abuse and Plaintiff’s knowledge of the abuse and failure to protect the child from danger. 

Plaintiff maintains that Ms. Pence was not under the influence of alcohol but was on bedrest, and

there was no evidence of these allegations to support the removal of the child from the home and

his parents.

There are still deficiencies in Plaintiff’s pleadings that have not been resolved by

Plaintiff’s More Definite Statement. First, nowhere in Plaintiff’s Complaint or More Definite

Statement does Plaintiff explain any facts that would give rise to a claim under the Americans

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with Disabilities Act, an act protecting individuals with disabilities from discrimination in

employment and public accommodations. See 42 U.S.C. § 12101, et seq. Plaintiff does not

allege he has a disability or suffered discrimination because of a disability. Plaintiff has failed to

state a claim under the Americans with Disabilities Act.

Secondly, one of the named Defendants in this lawsuit is DFPS. DFPS, as a state agency,

enjoys sovereign immunity from suit. “Sovereign immunity is a pre-constitutional guarantee that

states cannot be subject to suits by their own citizens without their consent.” Solis v. Texas, 488

Fed. App’x 837, 839 (5th Cir. 2012) (citing U.S. Const. amend. XI; Alden v. Maine, 527 U.S.

706, 712–13 (1999). The Eleventh Amendment of the United States Constitution has been

interpreted to reflect the fundamental principle of sovereign immunity and to preclude suits

against a state government by citizens of that state unless the state has waived its immunity or

Congress has abrogated that immunity. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000). 

This protection extends to state agencies and state departments and applies regardless of the

relief sought. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Texas has

not waived its immunity from suit as to DFPS, meaning it has not made an exception from the

State of Texas’s general Eleventh Amendment immunity to allow suits against DFPS in federal

court. See Valdez v. Tex. Dep’t of Family & Protective Servs., No. 5:14-1056-RCL, 2015 WL

4395404, at *2 (W.D. Tex. July 15, 2015). Plaintiff therefore cannot sue DFPS, a state agency,

for violations of due process and equal protection under Section 1983. See, e.g., Wauson v. Tex.

Dep’t of Family & Protective Servs., No. A-08-CA-051-SS, 2008 WL 11419033, at *2 (W.D.

Tex. July 28, 2008) (applying immunity doctrine to bar claims constitutional claims against

DPS). DFPS is also not a “person” subject to suit under Section 1983. See Will v. Mich. Dep’t

of State Police, 491 U.S. 58 (1989). 

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Plaintiff also names a number of individual DFPS case workers in his Complaint in their

official capacities. State officials may be sued in their official capacities for injunctive or

declaratory relief under Section 1983, but not for monetary damages. Ex Parte Young, 209 U.S.

123, 159–60 (1908). Plaintiff’s lawsuit seeks both full custody of his son and $50,000,000 in

emotional pain and suffering through this lawsuit. (Compl. [#5] at 5.) Plaintiff cannot sue these

individual officers in their official capacities for monetary damages. Ex Parte Young, 209 U.S at

159–60. Plaintiff has also failed to allege any specific actions taken by any individually named

Defendant to proceed against these Defendants in their individual capacities. Oliver v. Scott, 276

F.3d 736, 741 (5th Cir. 2002) (explaining that a plaintiff must allege specific facts to subject

individual defendants to liability for the constitutional deprivation at issue). 

As for Plaintiff’s request for injunctive relief in the form of the return of his son to his 

full custody, the Court is unable to determine that it has subject matter jurisdiction over these 

claims. Plaintiff’s more definite statement did not provide the Court with the requested 

information regarding the state-court custody order. However, the Court infers from Plaintiff’s 

allegations that his lawsuit is challenging a state court judgment resulting from state custody 

proceedings. It appears that the parties entered into a settlement agreement that was likely 

incorporated into a final custody order. 

Under the Rooker-Feldman doctrine, an individual may not file a civil rights suit in 

federal court to collaterally attack a state civil judgment. See Liedtke v. State Bar of Tex., 18 

F.3d 315, 317 (5th Cir. 1994) (citing Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District 

of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983)). The Rooker-Feldman doctrine 

establishes that a federal court lacks subject matter jurisdiction when issues in federal court are 

“inextricably intertwined” with a final state court judgment. Davis v. Bayless, 70 F.3d 367, 375 

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(5th Cir. 1995). The Supreme Court has cautioned that the doctrine is to be narrowly confined to 

“cases brought by state-court losers complaining of injuries caused by state-court judgments.” 

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). 

The Fifth Circuit has recognized that there are some circumstances in which a federal 

lawsuit would not be barred by Rooker-Feldman, such as where the alleged injuries were caused 

by the defendant’s actions rather than the state court judgment. Saloom v. Tex. Dep’t of Family 

& Child Protective Servs., 578 Fed. App’x 426, 428–29 (5th Cir. 2014) (finding lawsuit not 

jurisdictionally barred where plaintiff challenged initial seizure of her son and an allegedly 

unnecessary sexual assault performed upon him). There are some facts alleged by Plaintiff in 

this lawsuit that could be construed as causing injury separate and apart from any state-court 

custody determination or judgment. Plaintiff alleges he was coerced into agreeing to the 

possessory conservatorship, for example. Yet, Plaintiff does not identify who allegedly coerced 

him or what any individual Defendant named in this lawsuit did to violate his constitutional right

to due process and equal protection. 

The Court asked Plaintiff specific questions about the procedural background of the child 

custody order challenged in this lawsuit. Plaintiff’s More Definite Statement did not answer 

these questions. Plaintiff’s Complaint and More Definite Statement have not provided the Court 

with sufficient information to determine that this Court has subject matter jurisdiction over 

Plaintiff’s claims. Accordingly, the District Court should dismiss this case for failure to state a 

claim and for lack of subject matter jurisdiction under Section 1915(e). 

IV. Order and Recommendation

IT IS THEREFORE ORDERED that Plaintiff’s Motion to Appoint Counsel [#6] is

DENIED.

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Having considered Plaintiff’s Proposed Complaint under the standards set forth in 28 

U.S.C. §1915(e), the undersigned also recommends that Plaintiff’s claims be DISMISSED

pursuant to Section 1915(e). 

V. Instructions for Service and Notice of Right to Object/Appeal

The United States District Clerk shall serve a copy of this report and recommendation on 

all parties by either (1) electronic transmittal to all parties represented by attorneys registered as 

a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified 

mail, return receipt requested. Written objections to this report and recommendation must be 

filed within fourteen (14) days after being served with a copy of same, unless this time period is 

modified by the district court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The party shall file 

the objections with the clerk of the court, and serve the objections on all other parties. A party 

filing objections must specifically identify those findings, conclusions or recommendations to 

which objections are being made and the basis for such objections; the district court need not 

consider frivolous, conclusive or general objections. A party’s failure to file written objections 

to the proposed findings, conclusions and recommendations contained in this report shall bar the 

party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149–52 

(1985); Acuña v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to 

file timely written objections to the proposed findings, conclusions and recommendations 

contained in this report and recommendation shall bar the aggrieved party, except upon grounds 

of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal 

conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 

1428–29 (5th Cir. 1996) (en banc).

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conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 

1428–29 (5th Cir. 1996) (en banc).

SIGNED this 7th day of May, 2020.

ELIZABETH S. ("BETSY") CHESTNEY

UNITED STATES MAGISTRATE JUDGE

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