     Case: 19-41003      Document: 00515434155         Page: 1    Date Filed: 05/29/2020




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

                                    No. 19-41003                                FILED
                                  Summary Calendar                          May 29, 2020
                                                                           Lyle W. Cayce
                                                                                Clerk
WANDA L. BOWLING,

              Plaintiff - Appellant

v.

JUDGE JOHN ROACH, in his official and individual capacity,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:19-CV-144


Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       Appellant Wanda Bowling was involved in divorce proceedings in Texas’s
296th District Court of Collin County. Judge John Roach presided over the
enforcement of Bowling’s divorce decree. Bowling brought this pro se 42 U.S.C.
§ 1983 action against Judge Roach in his official and individual capacity. 1



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1Bowling brought this suit after a failed attempt to remove her state court divorce
proceedings to federal court. Dahlheimer v. Bowling, No. 4:19-CV-22-ALM-CAN, 2019 WL
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                                      No. 19-41003
Bowling asserted four counts in her amended complaint: (1) unlawful seizure
of property; (2) lack of due process; (3) conspiracy to interfere with civil rights
by threats and intimidation; and (4) abuse of process. Bowling alleged a wide-
ranging conspiracy among multiple judges to deprive her of notice, due process,
and property in the course of enforcing her divorce decree. 2 Bowling sought
injunctive relief, including “[a]n order placing Plaintiff in the position that she
would have been in had there been no violation of her rights,” along with
damages.
       Judge Roach moved to dismiss pursuant to Federal Rules of Civil
Procedure 12(b)(1) and (6). The district court referred the motion to dismiss to
a magistrate judge, who recommended granting the motion for various
reasons. Primarily, the magistrate judge recommended granting the motion
to dismiss because the claims against Judge Roach in his official capacity are
barred by the Eleventh Amendment and because the Younger abstention
doctrine bars claims against Judge Roach in his individual capacity.
Alternatively, the magistrate judge recommended dismissal of all claims under
Rule 12(b)(6) because Judge Roach is entitled to judicial immunity. Bowling
filed objections.     The district court adopted the recommendations of the
magistrate judge and granted the motion to dismiss. Bowling now appeals,
arguing that the district court erred by relying on Rules 12(b)(1) and (6) to
dismiss her claims. We conclude that Bowling’s arguments lack merit and
affirm the district court’s order dismissing Bowling’s claims.




948046, at *1 (E.D. Tex. Jan. 25, 2019), report and recommendation adopted sub nom.
Dahlheimer v. Bowling, No. 4:19-CV-22, 2019 WL 937313 (E.D. Tex. Feb. 26, 2019).
      2 Bowling sued the alleged co-conspirators in separate lawsuits. See, e.g., Bowling v.

McCraw, No. 4:18-CV-610-ALM-CAN, 2019 WL 2517834 (Mar. 7, 2019 E.D. Tex.), report and
recommendation adopted sub nom. Bowling v. Dahlheimer, No. 4:18-CV-610, 2019 WL
3712025 (Aug. 7, 2019).
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                                     No. 19-41003
                                            I.
      We review de novo dismissals under Rules 12(b)(1) and (6). 3 Bauer v.
Texas, 341 F.3d 352, 356–57 (5th Cir. 2003); Benton v. United States, 960 F.2d
19, 21 (5th Cir. 1992). Further, “[o]ur review of subject-matter jurisdiction is
plenary and de novo.” Google, Inc. v. Hood, 822 F.3d 212, 220 (5th Cir. 2016).
When a district court invokes an abstention doctrine, “we review [that ruling]
for abuse of discretion” but “review de novo whether the requirements of a
particular abstention doctrine are satisfied.” Id. (quoting Tex. Ass’n of Bus. v.
Earle, 388 F.3d 515, 518 (5th Cir. 2004)). We accept the factual allegations in
the complaint as true and resolve any ambiguities in the plaintiff’s favor.
Benton, 960 F.2d at 21.
       Because Bowling is proceeding pro se, we construe her pleadings
liberally. Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). However, pro se
litigants are not exempt from compliance with the relevant rules of procedure
and substantive law. Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981).


                                            II.
       As for Bowling’s claims against Judge Roach in his official capacity, the
district court held that Judge Roach is entitled to immunity under the
Eleventh Amendment.           We agree.      Absent an exception to or waiver of
sovereign immunity, “Texas judges are entitled to Eleventh Amendment
immunity for claims asserted against them in their official capacities as state
actors.” Davis v. Tarrant Cty., 565 F.3d 214, 228 (5th Cir. 2009); see also
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984).



      3 Judge Roach argues that certain district court rulings should be reviewed for plain
error because Bowling did not properly object to the magistrate judge’s report and
recommendation. Because the standard of review is not determinative, and Bowling’s
pleadings are entitled to liberal construction, we review each issue de novo.
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                                     No. 19-41003
       Bowling argues that the Ex Parte Young doctrine—which permits suit
against state officials in their official capacities so long as it seeks prospective
relief to redress an ongoing violation of federal law—applies here. Ex parte
Young, 209 U.S. 123, 167–68 (1908); Air Evac EMS, Inc. v. Tex., Dep’t of Ins.,
Div. of Workers’ Comp., 851 F.3d 507, 515–16 (5th Cir. 2017). In order to apply
Ex Parte Young, the “court need only conduct a ‘straightforward inquiry into
whether [the] complaint alleges an ongoing violation of federal law and seeks
relief properly characterized as prospective.’” Verizon Md., Inc. v. Pub. Serv.
Comm’n of Md., 535 U.S. 635, 645 (2002) (quoting Idaho v. Coeur d’Alene Tribe
of Idaho, 521 U.S. 261, 296 (1997) (O’Connor, J., concurring in part and
concurring in judgement)); see also Warnock v. Pecos Cty., 88 F.3d 341, 343 (5th
Cir. 1996).
       Ex Parte Young does not apply here.               Though Bowling does seek
prospective injunctive relief, 4 she does not allege “an ongoing violation of
federal law.” Verizon Md., Inc., 535 U.S. at 645. Bowling does not identify any
federal statute or provision of the United States Constitution that Judge Roach
is currently violating. Therefore, Bowling has not alleged facts that would
allow this court to infer any ongoing violation of federal law.
      For these reasons, Bowling’s claims against Judge Roach in his official
capacity are barred by the Eleventh Amendment.


                                           III.
      As for Bowling’s claims against Judge Roach in his individual capacity,
the district court held that the Younger abstention doctrine bars this court
from considering those claims. See Younger v. Harris, 401 U.S. 37 (1971);



      4Specifically, Bowling seeks “[a]n Injunctive order permanently enjoining/restraining
Judge Roach from further acts of discrimination or retaliation.”
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                                  No. 19-41003
Middlesex Cty. Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423
(1982). We agree, to the extent Bowling’s claims seek injunctive relief.
      Younger “applies to suits for injunctive and declaratory relief.” Google,
822 F.3d at 222. “Younger established that federal courts should not enjoin
pending state criminal prosecutions unless the plaintiff shows ‘bad faith,
harassment, or any other unusual circumstances that would call for equitable
reliefs,’ such as a ‘flagrantly and patently’ unconstitutional state statute.” Id.
(quoting Younger, 401 U.S at 53–54). “Younger has been expanded beyond the
criminal context” and also applies to “pending civil proceedings involving
certain orders . . . uniquely in furtherance of the state court’s ability to perform
their judicial functions.” Id. (quoting Sprint Commc’ns, Inc. v. Jacobs, 571 U.S.
69, 78 (2013)); see also Middlesex Cty., 457 U.S. at 432 (applying Younger “to
non-criminal judicial proceedings when important state interests are
involved”). Where Younger applies, federal courts must abstain if “there is ‘(1)
an ongoing state judicial proceeding, which (2) implicates important state
interests, and (3) . . . provides an adequate opportunity to raise federal
challenges.’” Id. (quoting Sprint Commc’ns, Inc., 571 U.S. at 81). Notably,
“requests for monetary damages do not fall within the purview of the Younger
abstention doctrine.” Allen v. La. State Bd. of Dentistry, 835 F.2d 100, 104 (5th
Cir. 1988).
      The first prong of Younger is satisfied here because there is “an ongoing
state judicial proceeding.” Google, 822 F.3d at 222 (citation omitted). “The
initial frame of reference for abstention purposes is the time that the federal
complaint is filed. If a state action is pending at this time, the federal action
must be dismissed.” DeSpain v. Johnston, 731 F.2d 1171, 1178 (5th Cir. 1984).
“In the most basic sense, a state proceeding is pending when it is begun before
the federal proceeding is initiated and the state court appeals are not
exhausted at the time of the federal filing.” Id. At the time Bowling filed her
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                                  No. 19-41003
federal complaint, Judge Roach had scheduled a hearing regarding the sale of
certain property outlined in her divorce decree. And not long before this suit
was filed, Judge Roach was issuing orders directed at Bowling, including an
order to appear. Clearly, at the time Bowling filed suit, the state action seeking
enforcement of her divorce decree had begun but was not yet complete.
Therefore, at the time of suit, there was “an ongoing state judicial proceeding.”
Google, 922 F.3d at 222 (citation omitted).
      The second prong of Younger is satisfied because the ongoing state
judicial proceeding “implicates important state interests.”         Id. (citation
omitted). “Family relations are a traditional area of state concern.” Moore v.
Sims, 442 U.S. 415, 435 (1979). Likewise, the division of marital assets in the
course of enforcing a divorce decree falls within the ambit of important state
interest. See Estate of Merkel v. Pollard, 354 F. App’x 88, 94 (5th Cir. 2009)
(“[T]he importance of Texas’ interest in its own domestic-relations law is
obvious.”); Jasper v. Hardin Cty. Sheriff’s Dep’t, No. 1:11-CV-408, 2012 WL
4480713, at *9–10 (E.D. Tex. Sept. 5, 2012), report and recommendation
adopted, No. 1:11-CV-408, 2012 WL 4472261 (Sept. 26, 2012). Indeed, the
Texas Family Code contains clear instructions for Texas judges enforcing
property division in divorce decrees, signaling Texas’s strong interest in the
matter. See, e.g., Tex. Fam. Code §§ 9.001, 9.002; cf. Estate of Merkel, 354 F.
App’x at 95 (finding it relevant to the Burford abstention doctrine that Texas
had “created ‘a special state forum for judicial review’ of divorce actions”
(quoting Tex. Gov. Code Ann. § 24.601).
      The third prong of Younger is satisfied because the state judicial
proceeding “provides an adequate opportunity to raise federal challenges.”
Google, 822 F.3d at 222 (citation omitted). “[A]bstention is appropriate unless
state law clearly bars the interposition of the constitutional claims.” Moore,
442 U.S. at 425–26. Where “a litigant has not attempted to present his federal
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                                       No. 19-41003
claims in related state-court proceedings,” we “assume that state court
procedures will afford an adequate remedy, in the absence of unambiguous
authority to the contrary.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987).
Bowling has not alleged any defect in the state court proceedings or in Texas
law that “clearly bars” her ability to raise her constitutional claims. 5
Therefore, we assume that the divorce decree enforcement proceedings below,
and the proceedings that led to the original divorce decree, provided “an
adequate opportunity” to raise federal challenges. Google, 822 F.3d at 222
(citation omitted).
       For these reasons, the district court correctly abstained from
adjudicating Bowling’s equitable claims against Judge Roach in his individual
capacity under Younger.


                                             IV.
       As for Bowling’s damages claims against Judge Roach, judicial immunity
shields the judge from those claims. “Judicial immunity is an immunity from
suit and not just from the ultimate assessment of damages.” Ballard v. Wall,
413 F.3d 510, 515 (5th Cir. 2005). Judicial immunity can be pierced in two
circumstances: (1) “a judge is not immune from liability for nonjudicial actions,
i.e., actions not taken in the judge’s judicial capacity”; and (2) “a judge is not
immune from actions, though judicial in nature, taken in the complete absence
of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11–12 (1991).
       Bowling argues that Judge Roach engaged in a “nonjudicial action[]”
when he allegedly instructed his court reporter to delay the release of


       5Bowling has not exhausted the state appellate process. Cf. Jasper, 2012 WL 4480713,
at *10 (noting the availability of a right to appeal the state court’s decision when assessing
whether the state court proceedings afforded an adequate opportunity for plaintiff to raise
constitutional challenges). Given this further avenue for relief, any argument that Bowling
cannot obtain relief from Judge Roach because of his alleged bias is unavailing.
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                                 No. 19-41003
transcripts in order to delay or thwart Bowling’s ability to appeal.
Communications Judge Roach had with his court reporter regarding courtroom
management and administration fall within his judicial capacity. Therefore,
Judge Roach’s judicial immunity withstands this attack.
      Bowling also argues that Judge Roach acted “in the complete absence of
all jurisdiction” when he ordered the entire proceeds of a property sale to be
awarded to her ex-husband (rather than half of the proceeds).           Bowling
contends that Judge Roach exceeded the bounds of the divorce decree and
thereby exceeded his jurisdiction.    Bowling’s arguments are unpersuasive.
“Where a court has some subject matter jurisdiction, there is sufficient
jurisdiction for immunity purposes.” Malina v. Gonzales, 994 F.2d 1121, 1125
(5th Cir. 1993). Here, the court made a finding that the disputed property was
within its jurisdiction. And Texas has given its courts the power to enforce
divorce decrees. See Tex. Fam. Code. §§ 9.001, 9.002; Pearson v. Fillingim, 332
S.W.3d 361, 363 (Tex. 2011). Even assuming that Judge Roach “‘acted in
excess of his authority,’ []he is still protected by judicial immunity.” Ballard,
413 F.3d at 517 (quoting Malina, 994 F.2d at 1125). That is because “a judge
is not deprived of immunity” merely “because the action he took was in error,
was done maliciously, or was in excess of his authority; rather, he will be
subject to liability only when he has acted in the clear absence of all
jurisdiction.”   Davis v. Bayless, 70 F.3d 367, 373 (5th Cir. 1995) (citation
omitted).
      For these reasons, Judge Roach is judicially immune to Bowling’s
damages claims and those claims are properly dismissed.


                                       V.
      Finally, although Bowling devotes significant portions of her briefing to
qualified immunity and the applicability of the Rooker-Feldman doctrine, the
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                                 No. 19-41003
district court’s dismissal order did not rest on either of those legal precepts.
Therefore, we need not address whether they apply.


                                      VI.
      We affirm.




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