MEMORANDUM OPINION AND ORDER–Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

PATRICIA L. HOPE, §

§

Plaintiff, §

§

vs. § CIVIL ACTION NO. 3:05-CV-01308-R

§

JUDGE JOSEPH COX, INDIVIDUALLY §

AND IN HIS CAPACITY AS THE JUDGE §

OF THE 160TH DALLAS §

COUNTY DISTRICT COURT §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

Before this court is Judge Joseph Cox’s Motion for Judgment on the Pleadings and to

Dismiss (filed Aug. 9, 2005). For the reasons discussed below, the court is of the opinion that the

motion should be GRANTED. 

I. BACKGROUND

In 2003, after extensive proceedings involving the custody of her daughter, Plaintiff Patricia

L. Hope (“Hope” or “Plaintiff”) filed a petition pro se alleging a conspiracy to cover up the alleged

abuse of her child’s father. The defendants named in her petition included an array of state and

private actors in Travis County, including the Justices of the Texas Supreme Court, the

Salesmanship Club of Dallas, and the Republican Party, among others. Venue was transferred from

Travis County, Texas to Dallas County, Texas, on March 23, 2004, whereupon Defendant Judge

Joseph Cox (“Judge Cox” or “Defendant”) became presiding Judge. Plaintiff subsequently amended

her petition, naming Judge Cox as an additional defendant. Pursuant to Tex. Civ. Prac. & Rem. Code

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION

FILED

August 26, 2005

CLERK, U.S. DISTRICT COURT

 

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MEMORANDUM OPINION AND ORDER–Page 2

§30.017, Judge Cox severed the suit against him into a new action and removed the severed claim

to this court on June 28, 2005. 

Plaintiff’s claims against Judge Cox stem from a May 16, 2005 hearing on Plaintiff’s

Amended Motion to Disqualify Counsel over which Judge Cox presided. Plaintiff alleges that Judge

Cox denied her due process and abused his discretion by denying her sufficient time to present all

testimony and evidence on her motion, engaging in a conspiracy to “falsify[] the court transcript,”

and declining to grant her requests for additional time and to call additional witnesses. Plaintiff’s

Petition, ¶¶ 174-177. Plaintiff also asserts that Judge Cox disregarded Rule 3.08 of the Texas

Disciplinary Rules of Professional Conduct. Plaintiff’s Petition, ¶ 178. 

II. ANALYSIS

Defendant moves to dismiss the claims against him pursuant to Rule 12© of the Federal

Rules of Civil Procedure and Texas Civil Practice and Remedies Code §30.017©. Defendant argues

that absolute judicial immunity prevents Plaintiff from stating a claim under which relief can be

granted, and that her claims should be dismissed because they were not made under oath, are based

solely on Defendant’s rulings, and are not pled properly. See Defendant’s Motion at 1-2. Because

this Court finds that Defendant enjoys absolute judicial immunity, the motion is GRANTED.

A. Standard of Review

The court will grant judgment under Rule 12© when the material facts are not in dispute and

a judgment on the merits can be attained by reference to the pleadings and to any facts of which the

court may take judicial notice. Herbert Abstract v. Touchstone Props., Ltd., 914 F.2d 74, 76 (5th

 

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MEMORANDUM OPINION AND ORDER–Page 3

Cir. 1990). A ruling on a motion for judgment on the pleadings pursuant to Rule 12© is reviewed

under the same standard as a motion to dismiss under Rule12(b)(6) for failure to state a claim.

GATX Leasing Corp. v. National Union Fire Ins. Co., 64 F.3d 1112, 1114 (7th Cir. 1995); see also

St. Paul Ins. Co. of Bellaire, Tex. v. AFIA Worldwide Ins. Co., 937 F.2d 274, 279 (5th Cir. 1991).

In deciding a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the complaints

as true and view them in the light most favorable to the plaintiff. Lowrey v. Texas A&M Univ. Sys.,

117 F.3d 242, 247 (5th Cir. 1997); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). A plaintiff,

however, must plead specific facts, not mere conclusory allegations, to avoid dismissal. Guidry v.

Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992). That is, the court may dismiss a claim under

Rule 12© where “the plaintiff would not be entitled to relief under any set of facts or any possible

theory that he could prove consistent with the allegations in the complaint.” Jones v. Greninger, 188

F.3d 322, 324 (5th Cir. 1999); see also Moawad v. Childs, 673 F.2d 850, 851 (5th Cir. 1982) (“A

pro se complaint should not be dismissed unless it appears that the plaintiff can prove no set of facts

which would entitle him to relief.”).

B. Absolute Judicial Immunity 

Members of the judiciary are immune from suits arising out of the exercise of their official

duties. Pierson v. Ray, 386 U.S. 547, 553-54 (1967); Brewer v. Blackwell, 692 F.2d 387, 396 (5th

Cir. 1982) (citing Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 734 (1980)).

Immunity applies even to acts done maliciously or corruptly. Stump v. Sparkman, 435 U.S. 356, 357

(1978).

 

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MEMORANDUM OPINION AND ORDER–Page 4

“Absolute judicial immunity extends to all judicial acts which are not performed in the clear

absence of all jurisdiction.” Adams v. McIlhany, 764 F.2d 294, 297 (5th Cir. 1985) (citing Stump v.

Sparkman, 435 U.S. 349 (1978)), cert. denied, 474 U.S. 1101 (1986). Acts that are judicial in

nature are “(1) normal judicial functions that (2) occurred in the judge’s court or chambers and were

(3) centered around a case pending before the judge.” Id. at 998; see also Eitel v. Holland, 787 F.2d

995, 998 (5th Cir. 1986). The Fifth Circuit refined these characteristics into a four-part test, finding

that an act is judicial in nature when: “(1) the act complained of is a normal judicial function; (2)

the events occurred in the judge's court or chambers; (3) the controversy centered around a case then

pending before the judge, and (4) the confrontation arose directly and immediately out of a visit to

the judge in his judicial capacity.” Brewer v. Blackwell, 692 F.2d 387, 396-397 (5th Cir. 1982).

These factors are construed liberally in favor of immunity. Adams v. McIlhany, 764 F.2d 294, 297

(5th Cir. 1985)

Plaintiff’s claims against Judge Cox arise out of his performance of his judicial duties. First,

Plaintiff alleges that Judge Cox denied her sufficient time to present all testimony and evidence on

her motion and that he failed to grant her requests for additional time and to call additional

witnesses. These acts were all part of normal judicial function, that is, Defendant’s use of discretion

to manage his courtroom and proceed in the interest of judicial efficiency. Second, the alleged acts

all stem from one hearing which occurred in Judge Cox’s courtroom. Third, the controversy here

centered around a case, specifically Plaintiff’s child custody case, then pending before the judge.

Finally, the confrontation arose directly out of Plaintiff’s visit to the judge in his judicial capacity

as he presided over her motion. 

 

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MEMORANDUM OPINION AND ORDER–Page 5

Thus, Judge Cox’s actions were within his jurisdiction and he enjoys absolute immunity from

Plaintiff’s claims. Even with a liberal reading of the complaint, this court cannot identify a claim

upon which relief can be granted. Accordingly, these claims are dismissed under Rule 12©. 

When the dismissal of a pro se complaint is appropriate, it should generally be done without

prejudice to give the plaintiff an opportunity to file an amended complaint. Good v. Allaine, 823

F.2d 64, 67 (5th Cir. 1987) (citing Moawad v. Childs, 673 F.2d 850, 851 (5th Cir. 1982)). Although

this court perceives no viable claim that Plaintiff could file in an amended complaint, Good requires

that we dismiss without prejudice. Id.

C. Frivolous Claims

Defendant requests that this court determine whether Plaintiff’s claims are frivolous. In

forma pauperis petitions are frivolous under 28 U.S.C.A. §1915(d) if they lack either an arguable

basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); see also Booker v. Koonce, 2

F.3d 114, 115 (5th Cir. 1993). Because Plaintiff is proceeding pro se, the court construes her

allegations liberally, particularly in the context of dismissal. Macias v. Raul A. (Unknown),

Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994). Yet even liberally construing Plaintiff’s claims,

this court finds that they are still without arguable basis in law as they all stem from Judge Cox’s

judicial acts, which are insulated by absolute immunity. Plaintiff’s claims are therefore

dismissed as frivolous under §1915(d) .

 

D. Tex. Civ. Prac. & Rem. Code §30.017

 

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MEMORANDUM OPINION AND ORDER–Page 6

According to Tex. Civ. Prac. & Rem. Code §30.017, the court shall dismiss any claim

against a district court judge if it is 1) not made under oath or 2) based solely on the rulings made

by the judge in the pending case at issue. Tex. Civ. Prac. & Rem. Code §30.017(a)&©. Here,

Plaintiff did not make her claims against Judge Cox under oath, nor did she plead specific facts

supporting the elements of her claims against Judge Cox in addition to his rulings in the pending

case. Thus, this court must dismiss her claim under Tex. Civ. Prac. & Rem. Code §30.017.

III. CONCLUSION

Defendant is protected by the doctrine of absolute judicial immunity from any liability

for

the actions alleged by Plaintiff. Further, Plaintiff’s claims fail to meet the requirements set forth 

by Tex. Civ. Prac. & Rem. Code §30.017 for claims against a district court judge. Therefore, the

Defendant’s motion to dismiss Hope’s claims against him are GRANTED, and this case is

DISMISSED without prejudice. 

It is so ORDERED.

Signed: August 26, 2005.

_________________________________

JERRY BUCHMEYER

SENIOR U.S. DISTRICT JUDGE

NORTHERN DISTRICT OF TEXAS

 

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