IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

 SAMUEL T. RUSSELL, § 

 § 

Plaintiff, § 

 § 

V. § No. 3:22-cv-1648-B-BN 

§ 

KEN PAXTON and MEGAN LAVOIE § 

WEAVER, § 

§ 

Defendants. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE 

Citing 42 U.S.C. §§ 1981 and 1983, Plaintiff Samuel T. Russell filed, on July 

29, 2022, a pro se lawsuit against two Texas officials, Attorney General Ken Paxton 

and Megan LaVoie Weaver, Administrative Director of the Texas Office of Court 

Administration, paying the $402 filing fee to do so. See Dkt. No. 3. 

And United States District Judge Jane J. Boyle referred Russell’s lawsuit to 

the undersigned United States magistrate judge for pretrial management under 28 

U.S.C. § 636(b). See Dkt. No. 4. 

By paying the filing fee, Russell assumed the responsibility to properly serve 

each defendant with a summons and a complaint in compliance with Federal Rule of 

Civil Procedure 4 by the 90th day after the filing of this action that was not a 

Saturday, Sunday, or legal holiday (which was October 27, 2022). See FED. R. CIV. P. 

4(m). 

Although Russell filed summons returns on November 4, 2022, see Dkt. Nos. 6, 

7, he moved for a “75-day continuance” on November 15, 2022, to allow Defendants 

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more time to respond to his complaint before he moves for default judgment, see Dkt. 

No. 8. 

The Court denied Russell’s motion on November 28, 2022: “The Court 

understands this motion as not requesting more time to properly serve Defendants 

under Rule 4(m) but as requesting, on behalf of Defendants, more time for them to 

respond to a complaint that Russell states has been properly served under Rule 4. 

Under this interpretation – and without determining whether Defendants have been 

properly served under Rule 4 – the Court DENIES the motion for continuance.” Dkt. 

No. 9 (citation omitted). 

Russell now moves for default judgment. See Dkt. No. 11. 

And the undersigned enters these findings of fact, conclusions of law, and 

recommendation that the Court deny the motion for default judgment and dismiss 

this lawsuit for lack of jurisdiction. These findings and conclusions provide Russell 

notice as to the jurisdictional deficiencies identified by the undersigned. And the 

ability to file objections to the undersigned’s recommendation that this case be 

dismissed for lack of jurisdiction (further explained below) offers Russell an 

opportunity to establish (if possible) that the Court does indeed have jurisdiction over 

his claims. 

Discussion 

When a defendant has “failed to plead or otherwise defend” an action, the Court 

may enter a default judgment if the plaintiff establishes the following prerequisites: 

(1) the defendant was served with the summons and complaint and default was 

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entered; (2) the defendant is not “a minor or incompetent person”; and (3) the 

defendant is not in the military. FED R. CIV. P. 55(b)(2); see also N.Y. Life Ins. Co. v. 

Brown, 84 F.3d 137, 141 (5th Cir. 1996) (defining “the terms regarding defaults”). 

Here, Russell has not requested entry of default, so the Clerk of Court has not 

entered default. His motion for default judgment should therefore be denied for this 

reason alone. 

But “a ‘party is not entitled to a default judgment as a matter of right, even 

where the defendant is technically in default.’ In fact, ‘[d]efault judgments are a 

drastic remedy, not favored by the Federal Rules and resorted to by courts only in 

extreme situations.’” Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001) (per curiam) 

(citations omitted); see, e.g., Escalante v. Lidge, 34 F.4th 486, 493 (5th Cir. 2022) 

(“[E]ven if a defendant defaults, a court may still deny default judgment if the 

plaintiff has failed to state a claim on which relief can be granted.” (citing Lewis, 236 

F.3d at 767-68)). 

And, before it may enter default judgment, “the district court has an 

affirmative duty to look into its jurisdiction both over the subject matter and the 

parties.” Sys. Pipe & Supply, Inc. v. M/V Viktor Kurnatovskiy, 242 F.3d 322, 324 (5th 

Cir. 2001) (quoting Williams v. Life Savings & Loan, 802 F.2d 1200, 1203 (10th Cir. 

1986)); see also Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583-84 (1999) (federal 

courts have independent duty to examine their own subject matter jurisdiction). 

Here, Russell’s complaint appears to be a collateral attack on a decision by 

Texas authorities to place his daughter in foster care. See Dkt. No. 3 at 7-8 (under 

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the section of the complaint titled “Statement of Facts,” alleging, among other things, 

that “Plaintiff’s daughter was seized from her school”; “The pocket court ruled to seize 

Plaintiff’s daughter from school and place her in foster care”; “When Plaintiff arrived 

for the Hearing, the decision was made to keep Plaintiff’s daughter in foster care until 

Plaintiff submitted to a series of tests and classes”; “Plaintiff successful completion of 

all pocket court requirements (including all tests and classes) proving the Pocket 

Court erred in previous decision”; “The Pocket Court concurred with its Texas AGs’ 

official by returning Plaintiff’s daughter to his house and rendering an ‘Order of 

Nonsuit’ on January 27, 2020”; “Plaintiff’s child was abducted even though there was 

no legal basis supporting this illegitimate seizure upheld by the Texas CC and 

initiated by the Texas AG’s office”; “Plaintiff did not know whether or not his child 

had been kidnapped, as no papers were presented to him by neither the Pocket Texas 

CCs, Texas AGs, nor the Texas facility (school) his daughter was abducted from”). 

And, although Russell has sued Attorney General Paxton and Ms. Weaver, he 

fails to allege their personal involvement in the facts underlying this lawsuit. See id.

Russell has therefore sued the defendants in their official capacities as state officials. 

See Robinson v. Hunt Cnty., Tex., 921 F.3d 440, 446 (5th Cir. 2019) (“To determine 

whether a defendant is being sued in his or her official or individual capacity, [a court 

should] examine ‘[t]he allegations in the complaint’” “and ‘[t]he course of 

proceedings.’” (quoting Parker v. Graves, 479 F.2d 335, 336 (5th Cir. 1973) (per 

curiam), then Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985))). 

So Russell’s lawsuit “is ‘no different from a suit against’ the State of Texas.” 

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Morris v. Livingston, 739 F.3d 740, 745-46 (5th Cir. 2014) (quoting Will v. Mich. Dep’t 

of State Police, 491 U.S. 58, 71 (1989)). 

And, because Russell has not shown that an applicable exception applies to his 

claims, made under Sections 1983 and 1981, such as waiver or the exception allowed 

by Ex parte Young, 209 U.S. 123 (1908), the Court lacks subject matter jurisdiction 

over his claims. See Stramaski v. Lawley, 44 F.4th 318, 321-22 (5th Cir. 2022) 

(“Absent waiver, the immunity of a state from suit as signified by, but not fully 

expressed in, the Eleventh Amendment is a jurisdictional barrier.” (citing Corn v. 

Miss. Dep’t of Pub. Safety, 954 F.3d 268, 374, 276 (5th Cir. 2020))); see also NiGen 

Biotech, L.L.C. v. Paxton, 804 F.3d 389, 393-94 (5th Cir. 2015) (“‘Federal courts are 

without jurisdiction over suits against a state, a state agency, or a state official in his 

official capacity unless that state has waived its sovereign immunity or Congress has 

clearly abrogated it.’ Texas has not consented by statute, and § 1983,” for example, 

“does not abrogate state sovereign immunity.” (quoting Moore v. La. Bd. of 

Elementary & Secondary Educ., 743 F.3d 959, 963 (5th Cir. 2014), then citing Quern 

v. Jordan, 440 U.S. 332, 340 (1979))); Sessions v. Rusk State Hosp., 648 F.2d 1066, 

1069 (5th Cir. Unit A June 1981) (“[42 U.S.C.] § 1981 contains no congressional 

waiver of the state’s eleventh amendment immunity.”). 

Recommendation

The court should deny Plaintiff Samuel T. Russell’s motion for default 

judgment [Dkt. No. 11] and dismiss this lawsuit for lack of jurisdiction. 

A copy of these findings, conclusions, and recommendation shall be served on 

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all parties in the manner provided by law. Any party who objects to any part of these 

findings, conclusions, and recommendation must file specific written objections 

within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). In order to be specific, an objection must identify the specific finding or 

recommendation to which objection is made, state the basis for the objection, and 

specify the place in the magistrate judge’s findings, conclusions, and recommendation 

where the disputed determination is found. An objection that merely incorporates by 

reference or refers to the briefing before the magistrate judge is not specific. Failure 

to file specific written objections will bar the aggrieved party from appealing the 

factual findings and legal conclusions of the magistrate judge that are accepted or 

adopted by the district court, except upon grounds of plain error. See Douglass v. 

United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996). 

DATED: December 5, 2022 

 _________________________________________ 

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE 

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