# Gwyn v. Judge Kellas-Burton

> District Court, S.D. Texas · August 26, 2024

URL: https://www.frixlaw.com/law-library/cases/10677932

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** August 26, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10677932

## Opinion text

UNITED STATES DISTRICT COURT August 26, 2024
SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
HOUSTON DIVISION

DEMETRICE INEZ GWYN, §
Plaintiff, §
§
VS. § CIVIL ACTION NO. 4:24-CV-02863
§
JUDGE KELLAS-BURTON, et al., §
Defendants. §

MEMORANDUM OPINION AND ORDER
Pending before the Court are two motions for injunctive relief (Dkts. 2, 3) filed by
Plaintiff Demetrice Inez Gwyn (“Gwyn”). After careful consideration of Gwyn’s written
submissions and the other filings in the case, the motions (Dkts. 2, 3) are DENIED.
FACTUAL BACKGROUND
Gwyn, pro se, filed this suit against Judge Kellas-Burton in his official capacity,
Winchester Juvenile Court, the State of Virginia, and Governor Glenn Youngkin in his
official capacity, alleging violations of the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA), the Fourteenth Amendment’s Due Process clause, and the
Full Faith and Credit Clause of the U.S. Constitution. (Dkt. 1 at 3–4). Apart from a request
for “reasonable attorney’s fees and costs,” the Complaint seeks “injunctive and declaratory
relief” solely. (Dkt. 1 at 1). Gwyn moves the Court for a temporary restraining order to
“prevent the removal” of Gwyn’s minor child from Texas “until this Court can hear
[Gwyn’s] Motion for Preliminary Injunction.” (Dkt. 3 at 1). She also seeks a preliminary
injunction “enjoining Defendants from exercising jurisdiction over the custody matter
1 / 10
involving [Gwyn’s] minor child . . . and requiring the immediate transfer of jurisdiction to
Texas, [the child’s] home state under the Uniform Child Custody Jurisdiction and
Enforcement Act.” (Dkt. 2 at 1).

LEGAL STANDARD
In the Fifth Circuit, the following well-established framework generally governs the
determination of whether to grant a temporary restraining order or preliminary injunction.
To be entitled to either, the movant must satisfy each of the following equitable factors: (1)
a substantial likelihood of success on the merits; (2) a substantial threat of irreparable

injury; (3) the threatened injury to the movant outweighs the threatened harm to the party
sought to be enjoined; and (4) granting the injunctive relief will not disserve the public
interest. Because a preliminary injunction is an extraordinary remedy, it should not be
granted unless the movant has clearly carried the burden of persuasion on all four
requirements. Failure to sufficiently establish any one of the four factors requires this Court

to deny the movant's request for a preliminary injunction. City of Dallas v. Delta Air Lines,
Inc., 847 F.3d 279, 285 (5th Cir. 2017). As the Fifth Circuit has repeatedly cautioned, “a
preliminary injunction is an extraordinary remedy which should not be granted unless the
party seeking it has ‘clearly carried the burden of persuasion on all four requirements.’”
PCI Transp., Inc. v. Fort Worth & W. R.R. Co., 418 F.3d 535, 545 (5th Cir. 2005).

The requirements for obtaining a preliminary injunction are stringent in all cases,
but “[m]andatory preliminary relief, which goes well beyond simply maintaining the status
quo pendente lite, is particularly disfavored, and should not be issued unless the facts and

2 / 10
law clearly favor the moving party.” Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir.
1976); see also Justin Industries, Inc. v. Choctaw Securities, L.P., 920 F.2d 262, 268 n. 7
(5th Cir. 1990) (“And because Sutherland is seeking a mandatory injunction, it bears the

burden of showing a clear entitlement to the relief under the facts and the law.”); Exhibitors
Poster Exchange, Inc. v. National Screen Service Corp., 441 F2d 560, 561 (5th Cir.
1971) (“[W]hen a plaintiff applies for a mandatory preliminary injunction, such relief
should not be granted except in rare instances in which the facts and law are clearly in favor
of the moving party.”) (quotation marks omitted); Roark v. Individuals of Federal Bureau

of Prisons, Former and Current, 558 Fed. App'x 471, 472 (5th Cir. 2014).
“To show a likelihood of success, the plaintiff must present a prima facie case, but
need not prove that he is entitled to summary judgment.” Daniels Health Sciences, L.L.C.
v. Vascular Health Sciences, L.L.C., 710 F.3d 579, 582 (5th Cir. 2013). “To assess the
likelihood of success on the merits, [courts] look to standards provided by the substantive

law.” Janvey v. Alguire, 647 F.3d 585, 596 (5th Cir. 2011) (quotation marks omitted).
When the plaintiff has brought multiple causes of action, he need only present a prima facie
case on one of them. Kalsi Engineering, Inc. v. Davidson, No. 4:14-CV-1405, 2014 WL
12540550, at *2 & n.2 (S.D. Tex. Sept. 2, 2014); Texas v. U.S., 95 F. Supp. 3d 965, 981
(N.D. Tex. 2015); see also Butler v. Alabama Judicial Inquiry Commission, 111 F. Supp.

2d 1224, 1230 (N.D. Ala. 2000) (“Under the first requirement for obtaining a temporary
restraining order, the court does not have to find that Plaintiffs have a substantial likelihood
of success on every claim set forth in their Complaint.”).

3 / 10
ANALYSIS
As the movant, Gwyn has the burden in this case to show that the elements needed
for issuance of a temporary restraining order and preliminary injunction have been satisfied

here. After reviewing the filings, the Court finds that Gwyn has not carried his burden and
has not established her right to injunctive relief. Specifically, she has not shown that there
is a substantial likelihood that she will prevail on the merits of this case.
UCCJEA
As an initial matter, the UCCJEA is a state statute that does not provide a federal

right of action. Williford v. Ballard, No. CV 19-751-JWD-EWD, 2020 WL 6277303, at *2
(M.D. La. Aug. 24, 2020), report and recommendation adopted, No. CV 19-751-JWD-
EWD, 2020 WL 6276954 (M.D. La. Oct. 26, 2020) (“The UCCJEA does not create any
federal right of action, as it is a state procedural act.”); Bangle v. Bangle, No. 4:14-CV-
240-O, 2014 WL 12584311, at *1 (N.D. Tex. Apr. 22, 2014), report and recommendation

adopted, No. 4:14-CV-240-O, 2014 WL 12580469 (N.D. Tex. May 14, 2014) (same). The
Court will thus proceed with evaluating Gwyn’s federal law claims under the Fourteenth
Amendment and the Full Faith and Credit Clause.1

1 Construing Gwyn's allegations liberally, Gwyn asserts these claims pursuant to 42 U.S.C. § 1983.
See DeVillier v. Texas, 601 U.S. 285, 291 (2024) (“Constitutional rights do not typically come
with a built-in cause of action to allow for private enforcement in courts . . . Instead, constitutional
rights are generally . . . asserted offensively pursuant to an independent cause of action designed
for that purpose, see, e.g., 42 U.S.C. § 1983.” (citation omitted)).
4 / 10
Commonwealth of Virginia
The Supreme Court has held the Eleventh Amendment provides “an unconsenting
State [with immunity] from suits brought in federal courts by her own citizens as well as

by citizens of another state.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
100 (1984); see U.S. Const. amend. XI. “There are only two exceptions to this long-
standing rule.” Pace v. Bogalusa City Sch. Bd., 325 F.3d 609, 613 (5th Cir. 2003), aff'd,
403 F.3d 272 (5th Cir. 2005). The first is if Congress abrogates a state's sovereign immunity
to suit pursuant to its “power [under § 5] of the Fourteenth Amendment.” Coll. Sav. Bank

v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999). The second
is if a state decides to “waive its sovereign immunity by consenting to suit.” Id. Absent the
presence of either of these two circumstances, a plaintiff cannot sue a state—or any of its
agencies—in federal court. See Pennhurst State Sch. & Hosp., 465 U.S. at 100 (“[A] suit
in which the State or one of its agencies or departments is named as the defendant is

proscribed by the Eleventh Amendment.”). Eleventh Amendment immunity is a
“jurisdictional bar [that] applies regardless of the nature of the relief sought.” Pennhurst
State School & Hosp., 465 U.S. at 100–01.
Gwyn has sued the Commonwealth of Virginia under Section 1983. Section 1983
does not abrogate the states' Eleventh Amendment immunity. Quern v. Jordan, 440 U.S.

332, 345 (1979); Aguilar v. Texas Dep't of Crim. Just., 160 F.3d 1052, 1054 (5th Cir. 1998)
(“The Eleventh Amendment bars claims against a state brought pursuant to 42 U.S.C. §
1983.”); Freedom From Religion Found., Inc. v. Mack, 4 F.4th 306, 311 (5th Cir. 2021)

5 / 10
(“Suits against the State under 42 U.S.C. § 1983 are doubly dismissible because the State
is not a “person” under that statute.”); see also Raj v. Louisiana State Univ., 714 F.3d 322,
328 (5th Cir. 2013). Moreover, there is no indication that the Commonwealth consented to

be sued by Gwyn. Gwyn has thus not shown a likelihood of success on her claims against
the Commonwealth.
Winchester Juvenile Court
The Winchester Juvenile Court2 is a Virginia state court and is therefore entitled to
Eleventh Amendment immunity as an instrumentality of the Commonwealth of Virginia.

“Federal courts have consistently recognized that state courts . . . are instrumentalities or
arms of the State entitled to Eleventh Amendment protection.” Anand v. Commonwealth,
No. 1:23-CV-87 (RDA/IDD), 2023 WL 7301995, at *7 (E.D. Va. Nov. 3, 2023) (finding
that a Virginia state court, as an instrumentality of the Commonwealth of Virginia, was
also immune from suit under the Eleventh Amendment); Marable v. Mecklenburg Cnty.

Cir. Ct., No. 1:23CV269 (RDA/LRV), 2023 WL 2674183, at *1 (E.D. Va. Mar. 6, 2023),
aff'd, No. 23-6299, 2023 WL 4839380 (4th Cir. July 28, 2023) (“[S]uit against a state court
is barred by the Eleventh Amendment, as that amendment prohibits suit against an arm of
the state as well as against the state itself.”)
In addition, it “‘is well settled that a state court is not a “person” subject to suit under

§ 1983.’” Vyas v. 26th Dist. Juv. & Domestic Rels. Ct. for City of Harrisonburg & Cnty. of

2 The court’s full name is Frederick/Winchester Juvenile and Domestic Relations District Court.
See Virginia’s Judicial System, https://www.vacourts.gov/courts/jdr/frederick~winchester/home.
html.
6 / 10
Rockingham, No. 7:23-CV-00189, 2023 WL 3570441, at *4 (W.D. Va. May 19, 2023)
(quoting Bradley v. Virginia, No. 7:19-CV-00253, 2019 WL 1460921, at *2 (W.D. Va.
April 2, 2019)), appeal dismissed, No. 23-6567, 2023 WL 8798108 (4th Cir. June 21,

2023); see Jasper v. Fugate, No. CIV.A. 7:07CV00556, 2007 WL 4246567, at *1 (W.D.
Va. Nov. 29, 2007) (explaining that even if petition was “construed as an action for
injunctive relief, pursuant to 42 U.S.C. § 1983, it would still be subject to dismissal”
because, inter alia, the Virginia state “court is not a ‘person’ amenable to suit under §
1983”).

Gwyn has thus not demonstrated a likelihood of success on her claims against the
court.
Governor Glenn Youngkin
Gwyn has also not shown a likelihood of success on her claims against the
Youngkin, the current governor of the Commonwealth of Virginia, including because she

has not established that she has standing to pursue claims against him.
“Generally, to have standing to sue under Article III, a plaintiff must allege: (i) an
injury-in-fact that is (ii) fairly traceable to the defendant's challenged action and (iii)
redressable by a favorable outcome.” City of Austin v. Paxton, 943 F.3d 993, 1002 (5th Cir.
2019). “’The party invoking federal jurisdiction bears the burden of establishing’

standing.” Clapper v. Amnesty Int'l USA, 568 U.S. 398, 411–12 (2013) (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992)).

7 / 10
Though Gwyn mentions Youngkin along with the other Defendants and states that
they “fail[ed] to transfer jurisdiction of the custody case involving her son to Texas,” she
attributes the specific conduct she complains about—that the Winchester Juvenile Court

has retained jurisdiction over custody matters involving her son and has refused to transfer
of jurisdiction to Texas—almost exclusively to the Winchester Juvenile Court’s actions.
(Dkt. 1 at 2, 8, 10, 18–19; Dkt. 2 at 2; Dkt. 3 at 2). For example, she alleges in documents
attached to the Complaint that “[t]he refusal of the Winchester Juvenile Court to transfer
jurisdiction violates the UCCJEA, the Due Process Clause of the Fourteenth Amendment,

and the Full Faith and Credit Clause of the U.S. Constitution.” (Dkt. 1 at 10). She has thus
not alleged her injury is fairly traceable to Youngkin. See, e.g., Does #1-7 v. Abbott, 345
F. Supp. 3d 763, 773 (N.D. Tex. 2018) (dismissing claims against Texas governor in his
official capacity where plaintiffs were “unable to show how their alleged injuries [we]re
fairly traceable to [the governor’s] specific conduct”), aff'd sub nom. Does 1-7 v. Abbott,

945 F.3d 307 (5th Cir. 2019).
Accordingly, Gwyn has not “presented a prima facie case” on her claims against
Youngkin. Vascular Health Sciences, L.L.C., 710 F.3d at 582.
Judge Kellas-Burton
Elizabeth Kellas Burton is a Virginia state court judge and therefore is entitled to

Eleventh Amendment immunity. Crawford v. Hughes, No. 3:20CV813, 2021 WL
2125031, at *7 (E.D. Va. May 25, 2021) (finding that Eleventh Amendment immunity
shielded Virginia state-court judge from § 1983 suit). “Generally, state sovereign immunity

8 / 10
precludes suits against state officials in their official capacities.” Texas Democratic Party
v. Abbott, 961 F.3d 389, 400 (5th Cir. 2020); see Kentucky v. Graham, 473 U.S. 159, 165
(1985) (Official-capacity suits “generally represent only another way of pleading an action

against an entity of which an officer is an agent”); Lytle v. Griffith, 240 F.3d 404, 408 (4th
Cir. 2001) (“State officers acting in their official capacity are also entitled to Eleventh
Amendment protection, because ‘a suit against a state official in his or her official capacity
is not a suit against the official but rather is a suit against the official's office.’” (quoting
Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989))); see also Quern v. Jordan,

440 U.S. 332, 345 (1979) (holding that Section 1983 does not abrogate the states’ Eleventh
Amendment immunity).
The Ex parte Young doctrine, however, provides a narrow exception to Eleventh
Amendment immunity when a plaintiff sues official capacity defendants for an allegedly
ongoing violation of federal law and seeks prospective, declaratory, or injunctive relief.

See Ex parte Young, 209 U.S. 123, 155–56 (1908); Whole Woman's Health v. Jackson, 595
U.S. 30, 39 (2021) (“[I]n Ex parte Young, this Court recognized a narrow exception
grounded in traditional equity practice—one that allows certain private parties to seek
judicial orders in federal court preventing state executive officials from enforcing state
laws that are contrary to federal law.”). But “this traditional exception does not normally

permit federal courts to issue injunctions against state-court judges or clerks.” Whole
Woman's Health, 595 U.S. at 39. That is because “an injunction against a state court would
be a violation of the whole scheme of our government.” Ex parte Young, 209 U.S. at 163.

9 / 10
Gwyn has not demonstrated how or why her claims fall outside the normal
prohibition on federal courts issuing injunctions against state-court judges. Accordingly,
she has failed to show a likelihood of success on her claims against Judge Kellas-Burton.
CONCLUSION
Gwyn has failed to establish a substantial likelihood of success on the merits of her
case. It is therefore ordered that Gwyn's motions for a temporary restraining order and
preliminary injunction (Dkts. 2, 3) are DENIED.
SIGNED at Houston, Texas on August 26, 2024.

UNITED STATES DISTRICT JUDGE

10/10

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10677932. Public record. Not legal advice.