     Case: 09-20126    Document: 00511022513         Page: 1     Date Filed: 02/08/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                         February 8, 2010

                                      No. 09-20126                    Charles R. Fulbruge III
                                                                              Clerk

PAUL ALEXANDER BURNS,

                                                  Plaintiff-Appellant,
v.

HONORABLE K. MICHAEL MAYES, et al.,

                                                  Defendants-Appellees.




                   Appeals from the United States District Court
                       for the Southern District of Texas;
                             U.S.D.C. No. 4:07-cv-3814


Before GARWOOD, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Paul Alexander Burns (“Burns”) appeals the district
court’s 12(b)(6) dismissal of his action asserting claims under 42 U.S.C. § 1983
and various state torts against K. Michael Mayes (“Judge Mayes”), a Texas judge
for the 410th District, and Montgomery County (“the County”), as barred by
judicial immunity and by Monell’s limitation on municipal liability, respectively.
Burns sought damages as well as declaratory and injunctive relief.

        On appeal, Burns assigns to the district court’s ruling sixteen points of

        *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th
Cir. R. 47.5.4.
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error, which may be roughly classified as falling within three categories: (1)
challenges to the district court’s judicial immunity determination, its Monell
determination, and its refusal to grant discovery before deciding same; (2)
claimed violations of due process and other constitutional rights – including a
claim under the Americans With Disabilities Act (“ADA”) – arising from Burns’s
conditions of detention, the failure of the documents that set out the conditions
of probation to give notice that these conditions may proscribe any contact with
his family, the failure to give notice of the precise concentration of creatinine
that constitutes a “diluted” urine sample, and the failure to hold a hearing in
which the urinalyses and Burns’s conditions of confinement could be challenged;
and (3) challenges to the district court’s failure to grant declaratory or injunctive
relief.1
       As we conclude that all of Judge Mayes’s actions were taken in his role as
the judge presiding over Burns’s guilty plea and subsequent probation for the
state jail offense of cocaine possession,2 and that these acts were not taken
pursuant to any policy or pattern of conduct attributable to the County, we
AFFIRM.
                           I.     Facts & Proceedings
       We accept as true those well-pleaded facts contained in the complaint, and
draw every reasonable inference in favor of the plaintiff.3 When, as here, the


       1
        Some claims defy easy classification, including "[i]s SAP's [the
drug-treatment protocol that specified the conditions of Burns’s continued
community supervision] science sound?" In addition, Burns challenges the
district court's refusal to entertain his state tort claims.
       2
           Tex. Penal Code § 481.115(b)(possession of a controlled substance).

       3
       Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008)
(internal marks and citations omitted).

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plaintiff’s chronology of events contains several significant lacunae, we “rely on
‘documents incorporated into the complaint by reference, and matters of which
a court may take judicial notice,’” 4 such as the record of the proceedings in
Burns’s case before the 410th Judicial District Court of Montgomery County,
Texas.
      In March 2005, a law enforcement officer stopped Burns for speeding, an
incident that ultimately lead to the discovery of cocaine in Burns’s possession.
He was charged with the state jail offense of possession of a controlled
substance, 5 and his case was assigned to Judge Mayes of the 410th Judicial
District Court of Montgomery County.6 In February of the following year, Burns
pleaded guilty, received deferred adjudication, and agreed to three years of
community supervision (a term we shall use interchangeably with ‘probation’)
in lieu of incarceration.7      In connection therewith, Burns signed and
thumbprinted a document titled “Conditions of Community Supervision,” which
stated that a participant may be arrested and detained if he violates the terms
of his community supervision.        One such provision prohibited him from
consuming alcohol or narcotics, and another required periodic submission to


      4
        Davis v. Bayless, 70 F.3d 367, 372 n.3 (5th Cir. 1995) (“Federal courts
are permitted to refer to matters of public record when deciding a 12(b)(6)
motion to dismiss.”) citing Cinel v. Connick, 15 F.3d 1338, 1343 n. 6 (5th Cir.
1994). Accord Bauer v. Texas, 341 F.3d 352, 362 n.8 (5th Cir. 2003) (taking
judicial notice of public court records not in dispute); Kinnett Dairies, Inc. v.
Farrow, 580 F.2d 1260, 1277 n.33 (5th Cir. 1978) (permitting judicial notice of
a court’s own records or those of the inferior courts).
      5
          Tex. Pen. Code § 481.115(b) (possession of a controlled substance).

      6
          The State of Texas v. Paul Alexander Burns, Cause No. 05-06-05814-
CR.
      7
          Tex. Code Crim. Proc. 42.12.

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monthly urinalyses to verify conformity therewith. Among the conditions was
included the warning that a diluted urine sample “will be presumed” to be a
violation, with the consequence that community supervision “may” be revoked.
      In the ensuing year, two urinalyses revealed that Burns had violated the
terms of his probation. An early test – almost immediately after his period of
probation began – indicated that Burns had taken an undisclosed narcotic pain
medication (barred under the terms of his probation). Another test – just over
a year later – revealed that Burns had ingested alcohol.        Burns was not
sanctioned following the first violation, but after the second violation he was
immediately arrested and jailed for one week.8      When Burns was released,
Judge Mayes ordered him to complete a 30-day drug and alcohol treatment
program, and a 60-day aftercare program, which Burns did successfully. As a
condition precedent to the continuation of Burns’s deferred adjudication and
probation, however, Judge Mayes modified the term of Burns’s community
supervision by a court order that extended it for one year and required – in
addition to the prior conditions – that Burns participate in a lengthy substance-
abuse recovery program, “Stability Achievement Progress” (the “SAP Program”).
Judge Mayes had developed 9 the SAP Program for the 410th District Court as




      8
         Burns does not challenge the fact or conditions of his detention on
this occasion.
      9
        In his complaint, Burns concedes that the SAP Program is the
invention of Judge Mayes, citing Judge Mayes’s own explanation of the
program from his website for the fact that “I [Judge Mayes] created a Drug
and Alcohol Program in the 410th District Court. It is called the SAP
Program. Our SAP Program was based in part on the form of the ‘original’
Drug Court in our County, but more so on what I observed about drug and
alcohol defendants in court for 6 years as a presiding judge.”

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part of its drug-court protocol.10 Burns signed and thumbprinted a copy of this
order.
         One of the conditions of the SAP Program – identical to Burns’s original
conditions of probation – stipulated that a diluted urine sample would be
presumed to be a violation. The SAP Program also specified, however, that a
diluted urine sample would result in immediate jail sanctions. Although this
proviso for immediate jail sanctions did not appear in Burns’s original terms of
probation, he had been immediately jailed when a second urine sample tested
positive for alcohol.
         In July 2007, Burns submitted a urine sample that came back as “diluted.”
This was the first such result in more than a year of urinalyses. Consequently,
Judge Mayes had Burns arrested and jailed, and ordered him to refrain from
contact with family or friends during that incarceration, although visits with his
attorney were permitted.11 Burns’s complaint alleges that he was never given
notice that visits with or phone calls from friends and family might be prohibited
as part of his detention. He also alleges that he was never given notice of the
precise standard – measured in a milligrams per deciliter of creatinine in the
urine – that would constitute a “diluted” sample, and that he suffers from
naturally occurring low creatinine in his urine.12


         10
        Tex. Health & Safety Code § 469.001(a)(1) (governing the creation
and administration of drug courts). The SAP Program is the basis for Judge
Mayes’s drug court program.
         11
        Although not included in Judge Mayes’s order, the instruction that
Burns not have visitors or phone calls was communicated in an instant
message conversation, and a copy was appended to Burns’s complaint.
         12
        Burns apparently claims that periodically low levels of creatinine in
his urine constitute a disability that should have been accommodated under

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      Later that month, Burns’s attorney filed a writ of habeas corpus with the
court, and Judge Mayes immediately scheduled a hearing for early August.
Shortly thereafter, Judge Mayes learned from jail staff that Burns’s family had
visited him at the jail. Judge Mayes sent a probation officer to inform Burns
personally that he could not have visitors or make or receive phone calls, but
Burns nevertheless continued to telephone his family in the ensuing days. On
the day before the scheduled habeas hearing, Burns’s attorney requested a bond
hearing, and a date for it was set for early September. Late in August, however,
Judge Mayes amended Burns’s conditions of community supervision again,13 and
released Burns from jail the following day.
      That November, Burns filed this suit against Judge Mayes and the
County. In May of the following year, the state filed a motion to adjudicate
Burns’s guilt and revoke his community supervision. The following month, a
visiting judge, Judge James Keeshan, accepted Burns’s plea bargain, in which
he pleaded “true” to various violations of his community supervision, but did not
plead “true” to submitting diluted urine samples. Burns was sentenced to 365-
days in jail, with credit for time served while detained during his community
supervision.   He has since completed his sentence and is no longer subject to



the Americans With Disabilities Act of 1990, § 3(2)(C), 42 U.S.C. §
12102(2)(A)-(C) (defining a disability as “a physical or mental impairment
that substantially limits one or more of the major life activities of such
individual; a record of such an impairment; or being regarded as having such
an impairment.”). Although low creatinine is a symptom of several serious
illnesses and conditions, Burns does not allege that he suffers from any of
them.
      13
        Judge Mayes modified Burns’s probation to require that he wear an
ankle-bracelet monitoring system, presumably because, while in jail, Burns
had apparently told his wife that if he were released he would “run.”

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Judge Mayes’s supervision or the SAP Program.
        After filing his § 1983 suit in federal court, Burns amended his complaint
in December 2007. In separate motions under Fed. R. Civ. P. 12(b)(6) and
12(b)(1), Judge Mayes and the County timely moved to dismiss the case. In
March 2008, while these motions were pending, Burns moved to compel
depositions of Judge Mayes and County officials. The district court denied this
motion in a written opinion. Burns nevertheless sought production, which Judge
Mayes and the County moved to stay. In July 2008, the district court stayed all
deadlines in the case. The next week, Burns filed a motion to amend his
complaint yet again. In September 2008, the district court, in two separate
memoranda and orders, granted the defendants’ motions to dismiss, but gave
Burns the opportunity to re-plead his injunctive claims. Burns instead re-
asserted his original claims and added more, without supplementing the original
facts alleged. In February 2009, the district court dismissed all of Burns’s claims
against Judge Mayes and the County, and Burns timely filed a notice of appeal.


                                   II. Analysis
A.      Standard of Review
        We review a district court’s 12(b)(6) dismissal of a complaint de novo,14 and
we review a district court’s rulings on discovery for abuse of discretion.15
B.      Judicial Immunity & Monell Immunity
        As the Supreme Court recently instructed, “[t]o survive a motion to



        14
             Abraham v. Singh, 480 F.3d 351, 354 (5th Cir. 2007).

        15
          King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (per curiam)
(“‘Discovery matters are entrusted to the ‘sound discretion’ of the district
court . . . .’”) (quoting Richardson v. Henry, 902 F.2d 414, 417 (5th Cir. 1990)).

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dismiss, a complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” 16 In Ashcroft v. Iqbal, the
Court noted that, to assess whether the complaint alleges a sufficient factual
predicate to support a §1983 claim, courts may “begin by taking note of the
elements a plaintiff must plead” to state such claim.17
      Judges of all stripes enjoy absolute immunity from suits for damages when
the action complained of was taken in their judicial capacity, even if that action
“was in error, was done maliciously, or was in excess of [their] authority.” 18 It
is only for those nonjudicial actions or for actions that are taken “in the complete
absence of all jurisdiction” that judges do not enjoy such immunity.19
      For his complaint against Judge Mayes to survive, Burns had to allege
facts directed at:
      (I)    whether the precise act complained of is a normal judicial
      function;
      (ii)   whether the acts occurred in a courtroom or appropriate
      adjunct spaces    as the judge’s chambers;
      (iii) whether the controversy centered around a case pending
      before the court; and
      (iv) whether the acts arose directly out of a visit to the judge in his
      official    capacity.20


      16
         Gonzales v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting Ashcroft
v. Iqbal, 129 S.Ct. 1937, 1949 (2009)) (internal quotation marks omitted).
      17
           Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).

      18
        Stump v. Sparkman, 435 U.S. 349, 356, 98 S.Ct. 1099, 1104, 55 L.Ed.
2d 331 (1978) (re-stating that “the doctrine of judicial immunity was
applicable in suits under . . . 42 U.S.C. § 1983") (internal citations omitted).
      19
       Ballard v. Wall, 413 F.3d 510, 515 (5th Cir. 2005) (citing Mireles v.
Waco, 502 U.S. 9, 11-12, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991).
      20
           McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir. 1972).

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      Not only has Burns failed in that regard, but he has utterly failed to
identify even a scintilla of evidence that Judge Mayes’s actions were taken in
anything but his capacity as the judge charged with adjudicating and overseeing
the terms of Burns’s probation as a defendant properly appearing in the court
that had jurisdiction over him and his case. Burns’s unsupported, conclusional
assertions that Judge Mayes acted in an “administrative” or “ultra vires”
capacity are therefore unavailing.21 In addition, the very fact that Burns has
served his time and is no longer chafing against the conditions of community
supervision imposed by Judge Mayes supports the district court’s dismissal of
his claims for declaratory and injunctive relief on grounds of mootness.22
      Similarly, for his suit against the County to survive, Burns must have
pleaded facts to support his contention that the SAP Program constituted “the
execution of an official policy or custom of the municipality"23 that caused the
constitutional injury that he claims. We have defined a “policy or custom” to be
either:
      1.    A policy statement, ordinance, regulation, or decision that is


      21
        Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (holding that
a pleading that offers merely “labels and conclusions . . . will not do.”).
      22
         Soc. of Separationists, Inc., v. Herman, 959 F.2d 1283, 1286 (5th Cir.
1994) (“This court and others have often held that plaintiffs lack standing to
seek prospective relief against judges because the likelihood of future
encounters is speculative.”). Accord, Schepp v. Fremont County, 900 F.2d
1448, 1452-53 (10th Cir. 1990) (dismissing § 1983 suit against state judge
who revoked plaintiff’s probation and holding no actual controversy existence
to warrant declaratory relief because of the extreme unlikelihood that
plaintiff would ever be subject to probation revocation proceedings before that
judge again).
      23
         Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56
L.Ed.2d 611 (1978).

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      officially adopted and promulgated by the municipality’s lawmaking
      officers or by an official to whom the lawmakers have delegated
      policy-making authority; or

      2.    A persistent, widespread practice of city officials or employees,
      which, although not authorized by officially adopted and
      promulgated policy, is so common and well settled as to constitute
      a custom that fairly represents municipal policy. Actual or
      constructive knowledge of such custom must be attributable to the
      governing body of the municipality or to an official to whom that
      body has delegated policy-making authority. 24


      As the district court correctly noted, “[a] local judge acting in his or her
judicial capacity is not considered a local government official whose actions are
attributable to the county.” 25 The overwhelming majority of the facts advanced
by Burns firmly establishes that the SAP Program was designed by Judge Mayes
in his capacity as a Texas state judge responsible for one of the state’s drug-court
programs.     Despite this truism, Burns nevertheless claims that the SAP
Program is a policy of the County because (1) County law enforcement officers
carried out Judge Mayes’s orders, (2) a description of the SAP Program appears
on a County website, and (3) a description of the SAP Program on Judge Mayes’s
website bears the copyrights of both Judge Mayes and the County. Setting aside
the fact that the County’s copyright appears to refer only to the web page
template that hosts Judge Mayes’s website, Burns elsewhere cites a description
of the SAP Program as one “created” by Judge Mayes “in the 410th District
Court.”    As a protocol of the 410th Judicial District applicable to criminal


      24
        Bennet v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en banc)
(per curiam).
      25
         Kruegre v. Remier, 66 F.3d 75, 77 (5th Cir. 1995) (per curiam)
(citations omitted).

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defendants appearing before a judge of the 410th Judicial District, the SAP
Program is clearly a state judicial policy, not a County policy. The fact that the
County’s law enforcement officers carried out Judge Mayes’s orders is of no
moment. For identical reasons, Burns has not adduced facts which suggest that
the SAP Program is a “persistent widespread practice” that may be properly
attributed to the County.
      Because it had dismissed Burns’s federal claims, the district court also
declined to hear Burns’s various state claims. This was well within the court’s
discretion because “[a] district court may decline to exercise supplemental
jurisdiction over state-law claims if the court has dismissed all claims over which
it ha[d] original jurisdiction.”26
      As the foregoing makes abundantly clear, Burns has not “plead[ed] the
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." 27 The rulings and orders of the
district court in this case are, in all respects,
      AFFIRMED.




      26
        Toney v. Shopmeyer, 146 F.3d 867 (5th Cir. 1998) (per curiam) citing
Noble v. White, 996 F.2d 797, 799 (5th Cir. 1993).
      27
           Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).

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