# Miller v. Dunn

> District Court, N.D. Texas · November 5, 2020

URL: https://www.frixlaw.com/law-library/cases/10449491

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** November 5, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

BRADLEY B. MILLER, §
§
Plaintiff, §
§
V. § No. 3:20-cv-759-E
§
VIRGINIA TALLEY DUNN, ET AL., §
§
Defendants. §

MEMORANDUM OPINION AND ORDER
Overruling Plaintiff Bradley B. Miller’s objections, the Court accepted the
magistrate judge’s findings, conclusions, and recommendation and entered judgment
dismissing this case for lack of subject matter jurisdiction on September 17, 2020.
See Dkt. Nos. 10, 11, 12, & 13; Miller v. Dunn, No. 3:20-cv-759-E-BN, 2020 WL
5608474 (N.D. Tex. Aug. 31, 2020), rec. accepted, 2020 WL 5602843 (N.D. Tex. Sept.
17, 2020).
Prior to entry of the findings, conclusions, and recommendation, Mr. Miller
responded to the Court’s show cause order on subject matter jurisdiction, explaining
in sum that neither Rooker Feldman nor Younger can apply “because [he] is not
challenging a legitimate state court judgment”:
This Court’s Order of April 9, 2020 suggests that Miller’s Complaint
might be precluded by established abstention doctrines. However, Miller
is not complaining of a legitimate state court ruling, nor is he seeking a
modification of any legitimate state court ruling. As Miller has described
in great detail, both supra and in his Complaint, he is complaining of
two spurious “orders” that were issued without jurisdiction—and which
were thus not part of any state court proceeding. Because Defendants
Plumlee and Diaz were acting without jurisdiction, their signing of the
fraudulent “orders” of November 17, 2016 and June 7, 2018 were
entirely nonjudicial. Plumlee and Diaz had as much authority to issue
these fraudulent “orders” as a Walmart greeter, a gas station attendant,
or a local drug dealer. Thus these documents are not instruments of any
legitimate court.
Therefore, Miller’s suit is not precluded by the Rooker-Feldman
doctrine because he is not challenging a state court decision. Rather, he
is challenging two fraudulent instruments issued by criminals—who
were pretending to be state court judges—in violation of both state and
federal law, and in violation of the United States Constitution.
Likewise, the Younger doctrine does not apply to Miller’s suit
because it would not interfere in any pending state court proceeding.
The fraudulent “orders” issued without jurisdiction by Defendants
Plumlee and Diaz were not part of any state court proceeding, pending
or not. They were the illicit products of a criminal conspiracy that took
place outside the scope of any official authority and thus outside of any
state court case. Miller is not asking for a federal intrusion into a state
court case; rather he is asking this federal Court to address criminal acts
committed outside the scope of any legitimate state court proceedings—
acts which have resulted in severe deprivations of his constitutional
rights. Thus a stay under Younger is not proper.
Further, as Miller has demonstrated in his Texas Supreme Court
appeal (case no. 16-0487), and his subsequent United States Supreme
Court appeal (case no. 16-9012)—both of which were denied hearing—
there is no effective possibility of redress for state-court constitutional
violations within the American court system. Such appeals are routinely
and shamefully ignored by higher state courts, and by the United States
Supreme Court. Judges like Defendants Plumlee and Diaz routinely and
intentionally violate the constitutional rights of citizens because they
know they can get away with it. In this case, however, Defendants
Plumlee and Diaz have acted without jurisdiction, well in excess of their
authority, and they are therefore deprived of immunity. To dismiss this
case would send a chilling message that judges who engage in crimes
will never face accountability for their actions, whether those actions are
protected by immunity or not. A criminal in a black robe is still a
criminal; and Due Process requires that all criminals should be held
responsible for their crimes. Therefore, this federal civil suit should
proceed.

Miller, 2020 WL 5608474, at *4–*5 (quoting Dkt. No. 9 at 25–27) (citations and
emphases omitted)).
In his findings, conclusions, and recommendation, the Magistrate Judge
addressed Mr. Miller’s argument as follows:
First, Rooker-Feldman is not an abstention doctrine—it instead
“deprives federal courts of subject matter jurisdiction over [a plaintiff’s]
case.” Bell v. Valdez, 207 F.3d 657 (table), 2000 WL 122411, at *1 (5th
Cir. Jan. 4, 2000) (per curiam). And Miller, through his response to the
Court’s show cause order, has made it apparent that, through these
proceedings, he seeks to collaterally attack state court judgments that
he contends are illegal because (he argues) they were entered without
jurisdiction. As such, the Court lacks subject matter jurisdiction over
Miller’s case under the Rooker-Feldman doctrine. See, e.g., id. at *1
(“The Rooker-Feldman doctrine has frequently been used to dismiss civil
rights complaints that, like [Miller’s], are in essence challenges to state
court divorce [proceedings].” (collecting cases)); see also Hill v.
Washburne, 953 F.3d 296, 306 (5th Cir. 2020) (Plaintiff “cites no legal
authority … suggesting that we or the district court have power to order
the probate court to reconsider its order. He similarly does not explain
how such an order from us or the district court would not be an
extrajurisdictional ‘collateral attack[ ] on’ the probate court’s
proceedings.” (quoting Bell, 2000 WL 122411, at *1)); Jordaan v. Hall,
275 F. Supp. 2d 778, 789 (N.D. Tex. 2003) (“[T]he complaint is nothing
more than a thinly veiled attempt to circumvent the state appellate
process and to collaterally attack—in the guise of a federal civil rights
action—the validity of a state court divorce decree and other related
orders.”); cf. Moore v. Whitman, 742 F. App’x 829, 832 (5th Cir. 2018)
(per curiam) (The “recourse for constitutional violations in the state-
court proceedings [is] to seek review from the United States Supreme
Court.” (footnote omitted)).

Miller, 2020 WL 5608474, at *4–*5.

On October 9, Mr. Miller moved the Court to reconsider its judgment
dismissing his case for lack of subject matter jurisdiction under Federal Rule of Civil
Procedure 59(e), “to correct plain errors.” See Dkt. No. 14. And, on October 15, he
noticed an appeal of the judgment, see Dkt. No. 15, moving, the next day, for leave to
appeal in forma pauperis (“IFP”), see Dkt. No. 16.
Mr. Miller’s Rule 59(e) motion, timely filed within 28 days of judgment,
“‘suspends the finality of the original judgment’ for purposes of an appeal.” Banister
v. Davis, 140 S. Ct. 1698, 1703 (2020) (quoting FCC v. League of Women Voters of

Cal., 468 U.S. 364, 373, n.10 (1984)). So, at this point, “there is no longer a final
judgment to appeal from,” and, “[o]nly the disposition of [the Rule 59(e)] motion
‘restores th[e] finality’ of the original judgment, thus starting the 30-day appeal
clock.” Id. (citations omitted). The Court’s “ruling on the Rule 59(e) motion merges
with the prior determination, so that the reviewing court takes up only one
judgment.” Id. (citation omitted).

Under Rule 59(e), amending a judgment is appropriate (1) where there
has been an intervening change in the controlling law; (2) where the
movant presents newly discovered evidence that was previously
unavailable; or (3) to correct a manifest error of law or fact. Schiller v.
Physicians Res. Grp. Inc., 342 F.3d 563, 567 (5th Cir. 2003). A motion
under Rule 59 cannot be used to raise arguments or claims “that could,
and should, have been made before the judgment issued.” Marseilles
Homeowners Condo. Ass’n v. Fidelity Nat. Ins. Co., 542 F.3d 1053, 1058
(5th Cir. 2008).
Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 182 (5th Cir. 2012) (per curiam)
(footnote omitted). Considering the second and third purposes for Rule 59(e), such
motions “‘must clearly establish either a manifest error of law or fact or must present
newly discovered evidence’” and “‘cannot be used to argue a case under a new legal
theory.’” Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990) (quoting FDIC
v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986)).
“While the district court has considerable discretion in deciding whether to
reopen a case under Rule 59(e), reconsideration of a judgment after its entry is an
extraordinary remedy that should be used sparingly. [Accordingly,] Rule 59(e)
generally favors the denial of motions to alter or amend a judgment.” Sterling v.
United States, No. 3:18-cv-526-D, 2020 WL 2425648, at *2 (N.D. Tex. May 12, 2020)

(citations, internal quotation marks, and original brackets omitted).
Mr. Miller urges the Court to amend the judgment under Rule 59(e) to correct
three “plain errors”: (1) he argues that 42 U.S.C. § 1983 allows the district court to
“collaterally review” a state court judgment; (2) he argues that the Rooker-Feldman
doctrine cannot apply here; and (3) he argues that the magistrate judge’s findings,
conclusions, and recommendation contain an incorrect characterization of the

procedural history leading up to this lawsuit. Dkt. No. 14.
First, as the magistrate judge explained, it is established law that Section 1983
is not a specific delegation to the federal courts that upsets how constitutional
determinations are reviewed in the state courts and allows a collateral attack on a
state court judgment where, like here, a plaintiff’s constitutional claims are
“inextricably intertwined” with the state court’s rulings against him. E.g., Reed v.
Terrell, 759 F.2d 472, 473-74 (5th Cir. 1985) (“[T]his Court’s review of the record in

the instant case reveals that the plaintiffs’ suit is ‘patently an attempt to collaterally
attack the validity of [the state court judgment].’ A review of the plaintiffs’ pleadings
and arguments in the instant case reveals that this suit is ‘inextricably intertwined’
with the state court’s awards against the plaintiffs. Thus, the district court did not
err in dismissing the instant suit for want of jurisdiction.” (quoting Almon v. Sandlin,
603 F.2d 503, 506 (5th Cir. 1979), then D.C. Ct. App. v. Feldman, 460 U.S. 462, 483
n.16 (1983); citation omitted)); see also Liedtke v. State Bar of Tex., 18 F.3d 315, 317
(5th Cir. 1994) (“Absent specific law otherwise providing, [the Rooker-Feldman]
doctrine directs that federal district courts lack jurisdiction to entertain collateral

attacks on state court judgments. Constitutional questions arising in state
proceedings are to be resolved by the state courts. If a state trial court errs the
judgment is not void, it is to be reviewed and corrected by the appropriate state
appellate court. Thereafter, recourse at the federal level is limited solely to an
application for a writ of certiorari to the United States Supreme Court. The casting
of a complaint in the form of a civil rights action cannot circumvent this rule, as

absent a specific delegation ‘federal district court[s], as court[s] of original
jurisdiction, lack[ ] appellate jurisdiction to review, modify, or nullify final order[s]
of state court[s].’” (quoting Kimball v. Fla. Bar, 632 F.2d 1283, 1284 (5th Cir. 1980);
collecting cases; footnotes omitted)).
And, to the extent that Mr. Miller relies on the ab initio exception to Rooker-
Feldman, see Dkt. No. 14 at 2,
which provides that a state-court judgment that is void for want of
subject-matter or personal jurisdiction, or that was obtained by fraud, is
subject to collateral attack in federal court[, n]either [the United States
Court of Appeals for the Fifth Circuit] nor the Supreme Court has
endorsed this exception as [Mr. Miller] advocate[s], and the cases that
do recognize this exception … indicate that it is presently limited to the
bankruptcy context.
Houston v. Venneta Queen, 606 F. App’x 725, 733 (5th Cir. 2016) (citing Schmitt v.
Schmitt, 324 F.3d 484, 487 (7th Cir. 2003) (“While a void ab initio Rooker-Feldman
exception might be appropriate in some bankruptcy cases (apparently the only
situation in which it has been applied) in order to protect the dominant federal role
in that specialized area of the law, it has no place here.”) (citation omitted); see also
Matter of Cleveland Imaging & Surgical Hosp., L.L.C., 690 F. App’x 283, 286 (5th Cir.

2017) (per curiam) (in a bankruptcy appeal, noting that “[t]his court has neither
endorsed nor rejected the ab initio exception” (citation omitted)).
Mr. Miller next argues that the Rooker-Feldman doctrine cannot apply here
because his state court case is still pending. Whether any state proceedings were
pending was a concern that the magistrate judge raised in the show cause order and
which Mr. Miller answered in his response, set out above, through which he clarified

that his theory is that “he is complaining of two spurious ‘orders’ that were issued
without jurisdiction—and which were thus not part of any state court proceeding.”
First, as a panel of the Fifth Circuit has noted,
[t]here is disagreement among the circuits as to whether all state
proceedings, including appeals, must have concluded before the federal
suit is initiated in order for Rooker-Feldman to apply. Indeed, this Court
has taken inconsistent positions on the matter: In Hale v. Harney, 786
F.2d 688, 691 (5th Cir. 1986), this Court applied Rooker-Feldman to bar
a federal suit despite the pendency of an appeal in state court; but in
Rowley v. Wilson, 200 F. App’x 274, 275 (5th Cir. 2006) (per curiam), this
Court declined to apply Rooker-Feldman because the case was on appeal
to a state appellate court, observing that “[Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280 (2005),] tells us when a state court
judgment is sufficiently final for operation of the Rooker-Feldman
doctrine: when ‘the state proceedings [have] ended.’”
Although Hale predated Exxon, the split in authority following
Exxon on the question of finality suggests that that case did not
“unequivocally” overrule Hale. See Technical Automation Servs. Corp. v.
Liberty Surplus Ins. Corp., 673 F.3d 399, 405 (5th Cir. 2012) (“[F]or a
Supreme Court decision to change our Circuit’s law, it ‘must be more
than merely illuminating with respect to the case before [the court]’ and
must ‘unequivocally’ overrule prior precedent.” (second alteration in
original)). Further, the portion of Exxon quoted in Rowley—an
unpublished opinion with limited precedential value under 5th Circuit
Rule 47.5.4—is found not in Exxon’s holding but in its description of the
Rooker and Feldman cases, see Exxon, 544 U.S. at 291. Exxon’s holding
refers only to “state-court judgments rendered before the district court
proceedings commenced.” Id. at 284. Accordingly, we appear to be bound
by Hale pursuant to this Circuit’s rule of orderliness. See Technical
Automation Servs. Corp., 673 F.3d at 405-07.
Houston, 606 F. App’x at 731-32; see also Burciaga v. Deutsche Bank Nat’l Tr. Co.,
871 F.3d 380, 384 n.5 (5th Cir. 2017) (“In a case pre-dating Illinois Central[ Railroad
Co. v. Guy, 682 F.3d 381 (5th Cir. 2012),] we found Rooker-Feldman to bar review of
a state court judgment when the state court appeal was pending at the time the
federal action was filed. Hale v. Harney, 786 F.2d 688, 689-91 (5th Cir. 1986).
Contrary to Illinois Central’s explication of the doctrine, Hale suggests that a state
court judgment need not be issued by a court of last resort for Rooker-Feldman to
apply. Because of this apparent tension in our case law, we do not rely on this aspect
of the doctrine to resolve the jurisdictional question before us now.”). So,
considering Hale, Mr. Miller has not established a manifest error of law that requires
the Court to amend its judgment.
Further, the procedural history applicable to Mr. Miller’s state proceedings
reflect that he has sought—and has been denied—appellate review at the highest
levels. He even said so in his show cause response: “[A]s Miller has demonstrated in
his Texas Supreme Court appeal (case no. 16-0487), and his subsequent United
States Supreme Court appeal (case no. 16-9012)—both of which were denied
hearing—there is no effective possibility of redress for state-court constitutional
violations within the American court system.”
Mr. Miller, moreover, has made it clear that “he is complaining of two spurious
‘orders’ that were issued without jurisdiction—and which were thus not part of any
state court proceeding,” thus, “[u]nder Hale, the alleged pendency of additional state-

court proceedings is immaterial to the application of Rooker-Feldman [because] the
federal suit seeks review and rejection of [two] discrete final state-court judgment[s].”
Houston, 606 F. App’x at 732 (citing Hale, 786 F.2d at 691).
Mr. Miller’s final argument is that the Court should amend its judgment
because he disagrees with how another federal district court characterized a state
appellate court ruling—set out in the findings, conclusions, and recommendation to

provide the applicable background of this lawsuit. Regardless whether the divorce
between Mr. Miller and his ex-wife was agreed or contested is not material to the
disposition of this lawsuit. So the judgment need not be corrected to correct a
manifest error of fact.
The Court therefore DENIES Plaintiff Bradley B. Miller’s Rule 59(e) motion
and his motion for leave to appeal IFP and, under 28 U.S.C. § 1915(a)(3),
CERTIFIES, for the reasons explained in the findings, conclusions, and

recommendation [Dkt. No. 10] and in this order, that his appeal is not taken in good
faith.
But the Court notifies Mr. Miller that he may challenge this finding under
Baugh v. Taylor, 117 F.3d 197 (5th Cir. 1997), by filing a separate motion to proceed
IFP on appeal with the Clerk of the Court, U.S. Court of Appeals for the Fifth Circuit,
within 30 days of this order.
SO ORDERED this 5th day of November, 2020.

_________________________________________
ADA BROWN
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10449491. Public record. Not legal advice.