     Case: 17-40882      Document: 00514501367         Page: 1    Date Filed: 06/05/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                      No. 17-40882                              FILED
                                                                             June 5, 2018

ROGER LIVERMAN; AARON LIVERMAN,
                                                                           Lyle W. Cayce
                                                                                Clerk

              Plaintiffs - Appellants

v.

DENTON COUNTY, TEXAS, CRIMINAL DISTRICT ATTORNEY; PAUL
JOHNSON, individually, "employee" of Denton County, Texas, Denton
County Criminal District Attorney; LARA TOMLIN, individually, "employee"
of Denton County, Texas, Denton County Criminal District Attorney; RICK
DANIEL, individually, "employee" of Denton County, Texas, Denton County
Criminal District Attorney; LINDSEY SHEGUIT, individually, "employee" of
Denton County, Texas, Denton County Criminal District Attorney;
KATHERYN PAYNE HALL,

              Defendants - Appellees



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:16-CV-801


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM:*




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                         No. 17-40882
       Pro      se   Plaintiffs-Appellants       Roger     and     Aaron     Liverman       (“the
Livermans”) filed this § 1983 claim against the Denton County Criminal
District Attorney, a group of employees of the Denton County District Attorney
Office, 1 (together, the “District Attorney Defendants”) and Katheryn Payne
Hall, (“Defendant Hall”) a relative of the Livermans. 2 The Livermans allege
that the District Attorney Defendants failed to “play by the rules,” violated the
Livermans’ Due Process rights, engaged in malicious prosecution, and violated
Texas Disciplinary Rules. The Livermans allege that Defendant Hall engaged
in malicious prosecution by providing false information to the District
Attorney.
       The magistrate judge concluded that the Livermans’ first claim—
whether the District Attorney Defendants had to “play by the rules”—was not
legally cognizable. 3 The magistrate judge next determined that the Livermans’
§ 1983 and malicious prosecution claims were barred by Eleventh Amendment
and prosecutorial immunity. 4 The magistrate judge lastly explained that the
Livermans’ final claim—that the District Attorney Defendants violated the
Texas Disciplinary Rules—is based on state law, so the court lacked
jurisdiction over that claim. Addressing the § 1983 and malicious prosecution
claims against Defendant Hall, the court observed that because Defendant


       1The Livermans filed suit against the following District Attorney employees: District
Attorney Paul Johnson and Assistant District Attorneys Lara Tomlin, Rick Daniel, and
Lindsey Sheguit.
       2   Defendant Hall is Roger Liverman’s daughter and Aaron Liverman’s sister.
       3The magistrate judge also found that the Livermans had failed to properly serve the
Defendants but that any attempt to cure this deficiency was futile as the Livermans’ claims
were barred for other reasons.
       4  See Buckley v. Fitzsimmons, 509 U.S. 259, 272 (1993) (“Acts undertaken by a
prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur
in the course of his role as an advocate for the State, are entitled to the protections of absolute
immunity.”). The court continued to explain that even if Plaintiffs’ claims were not barred by
these immunity doctrines, they would also be barred by qualified immunity.
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                                         No. 17-40882
Hall is not a state actor, she cannot be held liable under § 1983. The magistrate
judge also held the court did not have subject matter jurisdiction over any state
law claims against Defendant Hall.
       The district court adopted the magistrate judge’s recommendation and
dismissed the Livermans’ claims. They timely appealed. We affirm.
       We review a district court’s grant of a motion to dismiss de novo. 5 “We
accept all well-pleaded facts as true and view [them] in the light most favorable
to the [non-movant]. 6 “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” 7 “[I]mmunity determinations, like other
questions of subject matter jurisdiction,” are reviewed de novo. 8
       Having reviewed the briefs, the record, and the district court’s opinion,
we conclude that the claims against the District Attorney Defendants are
barred by Eleventh Amendment and prosecutorial immunity. 9 We also
conclude that the Livermans have failed to plead a valid § 1983 claim against
Defendant Hall. 10 In addition, because the federal claims against the
Defendants are without merit, the district court lacked subject matter
jurisdiction over the Livermans’ state law claims. 11


       5   Whitley v. Hanna, 726 F.3d 631, 637 (5th Cir. 2013).
       6   Id.
       7Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
       8   See United States v. Tex. Tech Univ., 171 F.3d 279, 288 (5th Cir. 1999).
       9See Esteves v. Brock, 106 F.3d 674 (5th Cir.), cert. denied, 522 U.S. 828 (1997);
Buckley v. Fitzsimmons, 509 U.S. 259, 272 (1993).
       10 See Morris v. Dillard Dep’t Stores, Inc., 277 F.3d 743, 747 (5th Cir. 2001); Ballard
v. Wall, 413 F.3d 510, 518 (5th Cir. 2005).
       11See Brookshire Bros. Holding, Inc. v. Dayco Products, Inc., 554 F.3d 595, 602 (5th
Cir. 2009) (“The general rule is that a court should decline to exercise jurisdiction over
remaining state-law claims when all federal-law claims are eliminated before trial.”).
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                                 No. 17-40882
      We are satisfied that the district court was correct in dismissing all of
the Livermans’ claims. We therefore affirm that court’s judgment for
essentially the same reasons that it provided in its opinion.
AFFIRMED.




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