     Case: 17-20533      Document: 00514499006         Page: 1    Date Filed: 06/04/2018




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

                                                                                  FILED
                                                                                June 4, 2018
                                      No. 17-20533
                                                                               Lyle W. Cayce
                                                                                    Clerk
GARY MACHETTA, in the Interest of I.M. Machetta and K.R. Machetta,

               Plaintiff - Appellant

v.

THE HONORABLE CONRAD L. MOREN, 310th District Court Associate
Judge; THE HONORABLE LISA A. MILLARD, 310th District Court Judge,

               Defendants - Appellees



                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:16-CV-2377


Before HIGGINBOTHAM, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       Gary Machetta is a party to ongoing child custody proceedings with his
ex-wife in Texas state court.            Unsatisfied with the outcome of those
proceedings, Machetta filed a complaint in federal district court against the
Texas state judges presiding over his case. Machetta seeks injunctive and
declaratory relief for alleged violations of his First, Fourth, and Fourteenth
Amendment rights.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-20533     Document: 00514499006     Page: 2   Date Filed: 06/04/2018



                                  No. 17-20533
      The district court dismissed the case because no case or controversy
exists between “a judge who adjudicates claims under a statute and a litigant
who attacks the constitutionality of the statute.” Bauer v. Texas, 341 F.3d 352,
361 (5th Cir. 2003). Without a case or controversy there is no standing, and
without standing, no subject matter jurisdiction. See Ruiz v. Estelle, 161 F.3d
814, 829 (5th Cir. 1998) (“Article III, § 2 limits federal courts’ jurisdiction to
‘cases’ and ‘controversies.’”).   A judge acting purely in her “adjudicative
capacity” is not a proper party to a lawsuit challenging a state law because the
judge, unlike the legislature or state attorney general, has no personal interest
in defending the law. Bauer, 341 F.3d at 359. In other words, the judge is not
a cause of the statute being enacted or enforced. The federal district court
correctly determined that Judge Millard and Judge Moren “were acting solely
in their adjudicative capacities”; they were not legislative or executive actors.
While Machetta vehemently argues that he is not “challenging a state statute,”
the substance of his claim is an attack on the “best interest of the child”
standard Texas uses in resolving custody disputes. TEX. FAM. CODE § 153.002.
The judges are not proper defendants for a challenge to Texas family law
statutes.
      Machetta argues that Pulliam v. Allen, 466 U.S. 522 (1984), allows state
judges to be sued personally under section 1983. But Congress abrogated
Pulliam in 1996 when it amended section 1983. See 42 U.S.C. § 1983: Federal
Courts Improvement Act of 1996, Pub. L. No. 104-317, 110 Stat. 3847; Haas v.
Wisconsin, 109 F. App’x 107, 114 (7th Cir. 2004) (“[The 1996] amendment was
intended to overrule the Supreme Court’s decision in [Pulliam].”).           The
amendment modifies the cause of action against government actors who violate
constitutional rights by adding an exception that “in any action brought
against a judicial officer for an act or omission taken in such officer’s judicial
capacity, injunctive relief shall not be granted unless a declaratory decree was
                                        2
     Case: 17-20533       Document: 00514499006         Page: 3    Date Filed: 06/04/2018



                                      No. 17-20533
violated or declaratory relief was unavailable.” 42 U.S.C. § 1983. Machetta
does not allege either of those exceptions. Azubuko v. Royal, 443 F.3d 302, 304
(3d Cir. 2006); Mentero v. Travis, 171 F.3d 757, 761 (2d Cir. 1999) (both
dismissing claims against judges under the 1996 amendment when the
plaintiff alleged neither the violation of a declaratory decree nor that
declaratory relief was unavailable). So section 1983 does not provide a basis
for Machetta to seek injunctive relief. To the extent that Machetta seeks
declaratory relief—and assuming we could discern what that declaration
would be—we agree with the district court’s Younger abstention analysis. See
Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 72 (2013). State court, which is
an adequate forum for raising the constitutional claims Machetta asserts, is
the proper forum for this family law dispute. Middlesex Cty. Ethics Comm. v.
Garden State Bar Ass’n, 457 U.S. 423, 431 (1982) (“Minimal respect for the
state processes, of course, precludes any presumption that the state courts will
not safeguard federal constitutional rights.”). 1
       We also affirm the district court’s award of attorney fees to the
defendants. A court may award reasonable attorneys’ fees to the prevailing
party in a section 1983 action. See 42 U.S.C. § 1988. Defendants may be
awarded attorneys’ fees if the plaintiff’s suit is “frivolous.” See Fox v. Vice, 563
U.S. 826, 829 (2011). The Magistrate Judge’s Report and Recommendation
adequately lays out the reasons why Machetta’s lawsuit meets that standard.
The magistrate’s analysis of the reasonableness of the assessed fee was also




       1 The trial court did not abuse its discretion when it denied Machetta’s motion to
supplement or amend his complaint. A district court does not abuse its discretion by refusing
to grant a plaintiff leave to amend his pleadings when such amendment would be futile.
Wiggins v. Louisiana State Univ.-Health Care Servs. Div., 710 F. App’x 625, 627 (5th Cir.
2017) (finding no abuse of discretion when court denied leave to amend to pro se plaintiff
based on futility). Machetta’s motion to amend did not identify how it would remedy the
numerous procedural defects recognized by this court and the trial court.
                                             3
    Case: 17-20533    Document: 00514499006       Page: 4   Date Filed: 06/04/2018



                                 No. 17-20533
sound. The district court adopted the magistrate’s recommendation, and this
court sees no reason to disturb those findings.
                                     ***
      AFFIRMED.




                                       4
