Bauer v. Texas

Decision Date30 July 2003
Docket NumberNo. 02-20412.,02-20412.
Citation341 F.3d 352
PartiesRuth BAUER, Plaintiff-Appellant, v. The State of TEXAS; et al., Defendants, The Presiding Judge of Probate Court Number 3 of Harris County, Texas, Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

J. Ray Riley (argued), J. Ray Riley & Associates, Houston, TX, for Plaintiff-Appellant.

Kenneth R. Breitbeil (argued), Richard Gardner Wilson, McFall, Sherwood & Breitbeil, Houston, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before GARWOOD and HIGGINBOTHAM, Circuit Judges, and FELDMAN, District Judge.*

GARWOOD, Circuit Judge:

Plaintiff Ruth Bauer (Bauer) appeals the district court's dismissal pursuant to FED R. Civ. P. 12(b)(6) of her complaint against "the Presiding Judge of Probate Court No. 3 of Harris County, Texas," Judge Rory Olsen, "in his official capacity only", seeking a declaratory judgment under 42 U.S.C. § 1983 "that Section 875 of the Texas Probate Code is unconstitutional." We affirm.

Factual and Procedural Background

Bauer, the beneficiary of an approximately half-billion dollar trust, has been the subject of four guardianship proceedings before Judge Rory Olsen (Olsen), the presiding judge of Probate Court No. 3 of Harris County, some of which form the basis of this lawsuit. Bauer's complaint states that while she was seriously ill in August of 2000, Olsen appointed her son, Douglas Bauer, temporary guardian of her person and estate pursuant to TEX. PROB. CODE § 875, attorney Darlene Payne Smith (Smith) of the law firm Crain, Caton & James, P.C. (Crain-Caton) guardian ad litem under TEX. PROB. CODE § 683, and Jim Wyckoff attorney ad litem. On December 7, 2000, Douglas Bauer and Smith filed a motion to terminate the guardianship proceeding, and on December 13, 2000, Olsen granted the motion and entered an order terminating the guardianship.

Bauer's complaint further alleges that on December 22, 2000, she became disturbed and distressed and took a trip to relieve her stress. On December 27, 2000, in a second guardianship proceeding initiated in Olsen's court by Douglas Bauer, Olsen again appointed Douglas Bauer temporary guardian. Olsen scheduled a hearing on January 4, 2001, to determine whether Douglas Bauer should continue to serve as his mother's temporary guardian. On January 5, 2001, Olsen terminated the temporary guardianship because Douglas Bauer's lawyers had failed to serve notice of the hearing, as required by the state law authorizing creation of a temporary guardianship. TEX. PROB. CODE § 875(e). On January 11, 2001, Olsen, after an evidentiary hearing attended by Bauer's attorney, appointed Smith guardian ad litem under TEX. PROB.CODE § 683(a) (see note 4, infra) to investigate whether a guardian should be appointed for Bauer. Bauer alleges the evidence showed she did not need a guardian.

Bauer alleges that in late March or early April 2001, she developed pneumonia and voluntarily entered the hospital on or about April 4, 2001. Olsen asserts that the pneumonia caused Bauer to suffer hallucinations and that she has a medical history of alcoholic cirrhosis. Bauer avers that she was released in good condition on April 22, 2001. In the interim, on April 11, 2001, Smith, in her capacity as guardian ad litem for Bauer, filed a third application for the appointment of a temporary guardian for Bauer. Bauer alleges that, without notice or an opportunity to be heard, Olsen entered an order dated April 11, 2001, appointing lawyer Judy Lennox temporary guardian for her. On April 17, 2001 Bauer alleges that Smith, who remained guardian ad litem for Bauer, filed with Olsen an application for the appointment of a permanent guardian.

On May 14, 2001, before action was taken on the permanent guardianship application, Bauer filed a motion to recuse Olsen, which was heard by Judge Guy Herman, Travis County Presiding Probate Judge Court # 1. Herman did not rule on the motion, and instead remanded the case for random assignment because he found the April 11, 2001, temporary guardianship application was a new and separate proceeding. The case was then reassigned to Judge Mike Wood, the presiding judge of Probate Court No. 2 of Harris County.

On May 29, 2001, Bauer filed this suit (No. H-01-1781) under 42 U.S.C. § 1983 against Olsen "in his official capacity only" as the presiding judge of Probate Court No. 3 of Harris County and against "the State of Texas" seeking "a declaratory judgment that section 875 of the Texas Probate Code is unconstitutional." Bauer alleged that section 875, which pertains to the appointment of temporary guardians for incapacitated persons, violates her due process and equal protection rights because the standard of proof for appointment of a temporary guardian does not meet constitutional requirements.1

On June 20, 2001, Olsen moved to dismiss the suit against him pursuant to Fed R.Civ.P. 12(b)(1) and 12(b)(6), asserting that section 1983 relief against him was unavailable because he applied the challenged statute in his adjudicatory capacity.

On July 16, 2001, Bauer voluntarily dismissed the State of Texas.

On July 20, 2001, Bauer filed a separate section 1983 action against Smith and Crain-Caton in the district court below, and on August 7, 2001, she filed a First Amended Complaint in that suit. On September 21, 2001, the district court ordered that action (No. H-01-2456) consolidated into Bauer's suit against Olsen (No. H-01-1781). On October 29, 2001, Bauer sought leave to file in the thus consolidated action a Second Amended Complaint against Smith, Crain-Caton, and Olsen.

On November 30, 2001, all pending state guardianship proceedings affecting Bauer were dismissed by Judge Wood, Smith was discharged as guardian ad litem, and Judge Wood entered an order to pay Smith from Bauer's estate appointee fees and expenses totaling $200,000.

On December 3, 2001, Bauer moved to dismiss without prejudice her suit (No. H-01-2456) against Smith and Crain-Caton, reciting that the case had been settled "pursuant to a confidential settlement agreement" dated November 26, 2001, with Smith and Crain-Caton, and submitted a proposed agreed order of dismissal, which the district court signed December 21, 2001.2 On December 20, 2001, Bauer moved for leave to file her "First Amended Complaint" against Olsen.3 This proposed complaint named as the sole defendant "Rory R. Olsen in his official capacity as the presiding judge of Probate Court No. 3 of Harris County, Texas," states that "Plaintiff seeks prospectively a declaratory judgment that certain provisions of the Texas Probate Code pertaining to guardianships are unconstitutional under the Constitution of the United States" and requests "a declaratory judgment that the above described guardianship provisions of the Texas Probate Code are unconstitutional." This tendered pleading not only complained of Probate Code § 875, but also added a complaint as Probate Code § 683.4 No other provision of the Probate Code was alleged to be unconstitutional.

On February 22, 2002, the district court granted Olsen's motion to dismiss under Rule 12(b)(6), not reaching the Rule 12(b)(1) motion to dismiss. The court concluded that Bauer had failed to allege an essential element of a section 1983 claim, namely that the defendant's complained of actions were taken under color of state law. The court observed that action by a state judge solely in his adjudicatory capacity does not constitute state action and that the "complaint fails to state that, other than his alleged bias, Olsen acted outside his adjudicatory capacity in making rulings against Bauer under § 875."

On February 26, 2002, the court denied without explanation Bauer's December 20, 2001, motion for leave to file a First Amended Complaint.

Bauer timely appeals.


Dismissals pursuant to Rule 12(b)(6) are appropriate where "it appears beyond doubt that the plaintiff can provide no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). In making this determination, the court accepts as true all allegations contained in the plaintiff's complaint and all reasonable inferences are to be drawn in favor of the plaintiff's claims. Kaiser Aluminum & Chem. Sales Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir.1982). Review of a Rule 12(b)(6) dismissal is de novo. Davis v. Bayless, 70 F.3d 367, 371 (5th Cir.1995).

Judges enjoy absolute immunity from liability for judicial or adjudicatory acts. Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 545, 98 L.Ed.2d 555 (1988). Absolute judicial immunity, however, does not bar prospective relief against a judicial officer. Pulliam v. Allen, 466 U.S. 522, 104 S.Ct. 1970, 1981, 80 L.Ed.2d 565 (1984).

Section 1983 provides a private right of action against parties acting "under color of any statute, ordinance, regulation, custom, or usage, of any State" to redress the deprivation of rights secured by the United States Constitution or federal law. City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 923, 99 L.Ed.2d 107 (1988). Section 1983 is not itself a source of substantive rights; it merely provides a method for vindicating already conferred federal rights. Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 811, 127 L.Ed.2d 114 (1994). To prevail on a section 1983 claim, the plaintiff must show that: 1) the offending conduct was committed by a person acting under color of state law; and 2) the conduct deprived the plaintiff of rights secured by the Constitution or federal law. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 1909, 68 L.Ed.2d 420 (1981).

First, we consider whether Bauer has standing to challenge the constitutionality of these Texas's guardianship statutes through a suit against Olsen. Although Olsen has not raised the issue of standing, we may consider it sua...

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