UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 94-20552
LANA RYAN DAVIS and LORI DAVIS,
Plaintiffs-Appellants,
VERSUS
BOBBIE G. BAYLESS, BAYLESS & STOKES
and BURTA RHODES RABORN,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
November 22, 1995
BEFORE LAY1, DUHÉ and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Plaintiffs Lana and Lori Davis appeal from rule 12(b)(6) dismissal
of their complaint alleging claims for damages under federal and state
law and seeking preliminary injunctive relief. Review of rule 12(b)(6)
dismissal is de novo and dismissal should not be affirmed unless it
appears that plaintiffs can prove no set of facts in support of their
claims that would entitle them to relief. Blackburn v. City of
Marshall, 42 F.3d 925, 931 (5th Cir. 1995). For purposes of review,
plaintiffs' factual allegations must be accepted as true. Id.
1
Circuit Judge of the Eighth Circuit, sitting by
designation.
RELEVANT FACTS
Defendant Burta Rhodes Raborn is a court appointed receiver over
the non-exempt assets of Dr. Gerald Johnson and his estranged wife
June. Dr. Johnson is the judgment-debtor on an $11,360,000 malpractice
judgment entered by the 133rd Judicial District Court of Harris County,
Texas in 1982. Defendant Bobbie G. Bayless is counsel for Mr. and Mrs.
Earl Newsome, the judgment-creditors in the malpractice action.
Bayless & Stokes is the law firm in which Ms. Bayless is a partner.
Plaintiff Lana Ryan Davis is employed by and romantically involved with
Dr. Johnson. At all times relevant to this suit, Dr. Johnson, who is
separated from his wife, was staying with Lana Davis in her Houston
home. Plaintiff Lori Davis is Lana Davis' daughter. She shared the
residence with Lana Davis and Johnson.
Attempts to satisfy the Newsome judgment have been repeatedly
frustrated. For example, Raborn's receivership was abated in 1986 when
a settlement was reached, but had to be reinstated in May 1993 after
Johnson breached the settlement agreement. Satisfaction was also
interrupted by Johnson's bankruptcy. In denying Johnson a discharge,
the bankruptcy judge pointedly commented on Johnson's "nefarious
machinations" to avoid payment of the Newsome judgment, characterizing
Johnson's "fanciful account" of failed investments with "imaginary
friends" as being indicative of fraud, perjury and forgery.
On July 14, 1993, Bayless met Johnson at the Davis home to search
for assets that could be applied to the Newsome judgment. Johnson
consented to a limited search for his assets. The facts alleged by
Davis, which must be accepted as true, suggest that Johnson's consent
2
was invalid.2 During the search both Lana Davis and her daughter Lori
Davis returned home and were distressed to find Bayless in the home.
Davis alleges that Bayless rifled her underwear drawer, read her
personal mail and refused to leave. Davis also claims that Bayless
eventually left with several pair of Lana Davis' underwear. Defendants
Raborn, Bayless and Bayless & Stokes respond that Bayless' search of
Johnson's residence was an attempt to satisfy the Newsome judgment and
was authorized by the state court's order appointing Raborn receiver,
which allowed the receiver to take possession of Johnson's non-exempt
property and required Johnson to cooperate by providing access to
places where such property might be located.
In November 1993, pursuant to a turnover petition, the state court
authorized the receiver to take possession of the contents of storage
facilities held in the name of Dr. Johnson or other named persons
associated with him, including Lana Davis and her children. The
November order also instructed named storage facilities to turn over
documentation that would allow the receiver to determine whether
Johnson had an interest in the contents of the storage rooms at those
facilities. In December 1993, the court issued a supplemental order
specifically identifying a particular storage unit leased to Davis'
adult daughter, Carrie Goff. Pursuant to those orders Raborn and
Bayless thereafter searched the Goff storage unit and seized several
items of value, including $5,600 cash, several items of jewelry which
2
Davis alleges (1) that Bayless attempted to obtain her consent
by phone "through Johnson" and that she refused; (2) that Bayless then
coerced Johnson's consent to search by threatening to have Raborn (as
receiver) terminate Davis' employment with Johnson; (3) that Bayless'
search extended beyond the authorization given and continued after
consent was withdrawn; and (4) that Johnson lacked authority to
consent.
3
Davis claims belonged to her mother and grandmother, and an oil
painting. The Davises are not party to the state court receivership
action and received no notice that an order allowing search of their
property had been issued. Defendants acknowledge that the property is
being held by the receiver, but allege that it is clearly identifiable
as Johnson's from documents in the Johnson divorce proceeding. In an
order dated December 7, 1993, the state court also authorized Raborn or
her agent to take possession of the contents of safe deposit boxes held
by Johnson or other named individuals, including Davis and her
children. No search or seizure has been conducted pursuant to this
last order.
PROCEDURAL HISTORY
The Davises filed this action in February 1994. Their amended
complaint alleges that Raborn, Bayless and Bayless & Stokes conspired
under color of state law to deprive them of protected liberty and
property interests without due process of law. The complaint alleges
violations of Article 1 § 10 and the First, Fourth and Fourteenth
Amendments to the United States Constitution, and statutory violations
under 42 U.S.C. §§ 1983 and 1985. The Davises also sought preliminary
injunctive relief to enjoin the defendants from seizing or disposing of
property belonging to the Davises during the pendency of the suit.
Finally, the complaint states a number of pendant state law claims,
including invasion of privacy, conversion, civil conspiracy,
intentional infliction of emotional distress, abuse of process,
trespass and violation of Article 1 § 19 of the Texas Constitution,
which guarantees due process of law.
4
Defendants filed a 12(b)(6) motion, arguing that they were
entitled to absolute judicial immunity from the Davises' claims. With
that motion, defendants filed a request that the court take judicial
notice of the state court orders authorizing the receiver's actions.
The Davises responded and submitted the affidavits of Dr. Johnson and
Lana Davis. Taking judicial notice of the state court orders, the
district court granted defendants' motion.3
THE DISTRICT COURT'S DISPOSITION
The district court's brief order purports to dismiss the entire
complaint, but expressly decides only two issues: (1) that a court
appointed receiver is entitled to share in the appointing judge's
absolute judicial immunity and (2) that alleged misappropriation of
property or funds by a receiver does not state a constitutional claim
for deprivation of due process when state law affords adequate post-
deprivation remedies. On its face, the order appears to address only
Raborn's liability for federal law claims. We have assumed for
purposes of review that the district court intended to extend these
principles to the other defendants and to the Davises' state law
claims.
JUDICIAL IMMUNITY
Court appointed receivers act as arms of the court and are
entitled to share the appointing judge's absolute immunity provided
3
Although not raised by the parties, we note that the district
court did not err by dismissing pursuant to rule 12(b)(6) rather than
treating the motion as one for summary judgment. Federal courts are
permitted to refer to matters of public record when deciding a 12(b)(6)
motion to dismiss. Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir.
1994). Further, the presence of affidavits in the record that were not
relied upon by the district court does not convert the motion to
dismiss into one for summary judgment. Ware v. Associated Milk
Producers, Inc., 614 F.2d 413, 415 (5th Cir. 1980).
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that the challenged actions are taken in good faith and within the
scope of the authority granted to the receiver. New Alaska Dev. Corp.
v. Guetschow, 869 F.2d 1298, 1303 (9th Cir. 1989); Property Management
& Investments, Inc. v. Lewis, 752 F. 2d 599, 602-03 (11th Cir. 1985);
T & W Investment Co. v. Kurtz, 588 F.2d 801, 802 (10th Cir. 1978);
Kermit Contr. v. Banco Credito Y Ahorro Ponceno, 547 F.2d 1, 3 (1st
Cir. 1976); Bradford Audio Corp. v. Pious, 392 F.2d 67, 72 (2d Cir.
1968); see also Boullion v. McClanahan, 639 F.2d 213 (5th Cir. 1981)
(recognizing derived judicial immunity for bankruptcy trustees who act
under the supervision of and subject to the orders of the bankruptcy
court). Because a receiver's immunity is derivative of the appointing
judge's judicial immunity, it must depend, in part, upon whether the
state court was acting within its judicial discretion.
Jurisdiction of the State Court to Enter the Receivership Orders
Judges are afforded absolute immunity when they (1) perform a
normal judicial function; unless they are (2) acting in the clear
absence of all jurisdiction. Stump v. Sparkman, 98 S. Ct. 1099, 1105-
06 (1978). For purposes of immunity, the judge's jurisdiction is
construed broadly and a judge is not deprived of immunity "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.'" Id. at 1105.
Because "`some of the most difficult and embarrassing questions which
a judicial officer is called upon to consider and determine relate to
his jurisdiction,'" the proper inquiry is not whether the judge
actually had jurisdiction, or even whether the court exceeded its
jurisdictional authority, but whether the challenged actions were
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obviously taken outside the scope of the judge's power. Id. at 1105
(quoting Bradley v. Fisher, 13 Wall. 335, 352 (1872)).
The Davises argue that defendants Raborn and Bayless are not
entitled to immunity because the state court exceeded its authority by
ordering the search and seizure of the Davises' property when the
Davises were not party to the Newsome litigation. The Davises cite
several Texas cases which collectively stand for the proposition that
receivers cannot take custody of property in the possession of
strangers to the suit. Ex parte Harvill, 415 S.W.2d 174 (Tex. 1967);
Ex parte Britton, 92 S.W.2d 224 (Tex. 1936); Ex parte Renfro, 273 S.W.
813 (Tex. 1925). Harvill, Britton and Renfro all involve contempt
proceedings brought by the receiver against third parties and are
expressly inapplicable to situations in which the third party is an
agent of the debtor or is conspiring with the debtor to avoid the debt.
Harvill, 415 S.W.2d at 177; Britton, 92 S.W.2d at 227; Renfro, 273
S.W. 814. More importantly, those cases predate the Texas Turnover
Statute, TEX. CIV. PRAC. & REM. CODE ANN. § 31.002 (Vernon 1986 & Supp.
1991) (formerly TEX, CIV. REV. STAT. ANN. art. 3827a (Vernon Supp. 1980)).
Under the Texas Turnover Statute, courts may authorize the
receiver to take control of property that is in the possession of the
debtor or is subject to his control. Beaumont Bank, N.A. v. Buller,
806 S.W.2d 223, 227 (Tex. 1991). Texas state courts of general
jurisdiction can issue and enforce turnover orders against third
parties when necessary to obtain non-exempt property of the judgment
creditor. See TEX. CIV. PRAC. & REM. CODE ANN. § 31.002; Beaumont Bank,
806 S.W.2d 223, 227 (Tex. 1991); Norsul Oil & Mining Ltd. v. Commercial
Equip. Leasing Co., 703 S.W.2d 345 (Tex. App.--San Antonio 1985, no
7
writ). When, as occasionally happens, the enforcement of a turnover
order yields to the receivership property in which a third party has an
adverse claim, the aggrieved third party may seek recourse in either
the receivership court or any other Texas court of proper jurisdiction
and venue. E.g., Campbell v. Wood, 811 S.W.2d 753 (Tex. App.--Houston
[1st Dist.] 1991, no writ).
The state court did not expressly authorize Raborn to search the
Davis home. That search and alleged seizure apparently was conducted
under the general order allowing Raborn to take possession of Johnson's
property. The state court did not act in the clear absence of all
jurisdiction by issuing the general order. Although the state court
orders authorizing search of the storage units and safe deposit boxes
do not expressly limit the property subject to seizure to that
belonging to Johnson, we are convinced that in light of the above
principles, the state court was not acting in the "clear absence of all
jurisdiction."
Raborn's Immunity as Receiver
Next the Davises argue that Raborn is not entitled to derivative
judicial immunity because she was acting beyond the scope of her
authority as receiver of Johnson's assets. Under Texas law, court
appointed receivers may administer the property and "perform other acts
in regard to the property as authorized by the court." TEX. CIV. PRAC &
REM. CODE ANN. § 64.031 (West 1986). Because court orders expressly
authorized Raborn to enter the storage unit, she was acting within the
scope of her authority as to that search. See Boullion v. McClanahan,
639 F.2d 213, 214 (5th Cir. 1981) (because trustee, "as an arm of the
[c]ourt, sought and obtained court approval of his actions, he is
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entitled to derived immunity"). The search of the Davis home, where
Johnson was temporarily resident, is supported by the state court's
general order appointing Raborn, which authorized her to take
possession of Johnson's non-exempt assets and required Johnson to
cooperate with the receiver's efforts, on pain of contempt. Further,
it is clear that Raborn was not personally present during the search at
Davis' home, and there is no allegation that Raborn instructed Bayless
to seize Lana Davis' underwear or any other property belonging to the
Davises. Additionally, there is no allegation that Raborn has
converted any property for her personal use or that the property has
not been accounted for in the receivership.
We are troubled by the fact that Raborn may have allowed Bayless,
the attorney for the judgment-creditors, to carry out certain functions
assigned by court order to the receiver. Texas law apparently
disfavors, but does not prohibit, such reliance by a receiver on
counsel for one of the parties to the receivership proceeding. See
Kitchens v. Gassaway, 128 S.W. 679 (Civ. App. 1910, no writ); see also
63 TEX. JUR. 3d Receivers § 97 at 171-72 (1989). Nonetheless, we
conclude that that relationship alone is insufficient to abrogate
Raborn's immunity. See Boullion, 639 F.2d 213, 214 (5th Cir. 1981)
(trustee entitled to derivative immunity on claims involving negligent
selection of an appraiser). The pleadings clearly demonstrate Raborn's
entitlement to immunity on the face of the pleadings and she is immune
from suit for damages on the Davises' federal law claims. Raborn's
entitlement to immunity from suit on Davises' state law claims is a
matter of state, not federal, law and requires the same result as to
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the Davises' state law claims. Byrd v. Woodruff, 891 S.W.2d 689 (Tex.
App.--Dallas 1994, writ denied).
Bayless and Bayless & Stokes' Immunity
The Davises argue that any immunity afforded to Raborn does not
extend to Bayless or the law firm. Private individuals who conspire
with state officials are not entitled to share in the judges' immunity
from suit. Sparks v. Duval County Ranch Co., Inc., 604 F.2d 976 (5th
Cir. 1979) (the doctrine of judicial immunity for persons who conspire
with judges is without foundation in either reason or authority), cert.
denied, 100 S. Ct. 1336 (1980). Bayless contends, without citation,
that she is nonetheless entitled to immunity because she was acting as
an agent of and on behalf of the receiver, rather than as a co-
conspirator. On the basis of the pleadings, we find that proposition
highly improbable. Bayless' first duty was to her client, the
judgment-creditors, and to satisfaction of the Johnson judgment.
Indeed, her role as counsel for one of the parties to the receivership
proceeding would have prohibited the state court from appointing
Bayless as the receiver. TEX. CIV. PRAC. & REM. CODE ANN. § 64.021 (Vernon
1986). The Supreme Court has said that absolute immunity should be
extended no further than its justification warrants. Harlow v.
Fitzgerald, 102 S. Ct. 2727, 2734 (1982). Texas has likewise refused
to extend derivative judicial immunity any further than necessary.
Byrd v. Woodruff, 891 S.W.2d 689 (Tex. App.--Dallas 1994, no writ).
Bayless offers no factual support for her conclusory allegation
that she was acting as Raborn's agent, rather than in her capacity as
the judgment-creditors' attorney. Even assuming that Bayless was
Raborn's agent, the Davises allege that Bayless seized women's
10
underwear, which would clearly have exceeded the scope of the
receiver's authority to take possession of Dr. Johnson's property.
Because the pleadings indicate that Bayless may have exceeded the
authority afforded to the receiver, the district court's dismissal of
the Davises' damage claims against Bayless and Bayless & Stokes, if not
supported by any other ground, must be reversed.
PARRATT-HUDSON DOCTRINE: ADEQUATE STATE LAW REMEDIES
The district court also relied upon the availability of state law
remedies in its decision to dismiss the complaint. "Under the
Parratt/Hudson doctrine, a state actor's random and unauthorized
deprivation of a plaintiff's property does not result in a violation of
procedural due process rights if the state provides an adequate post-
deprivation remedy." Alexander v. Ieyoub, 62 F.3d 709, 712 (5th Cir.
1995); see Hudson v. Palmer, 104 S. Ct. 3194, 3202-05 (1984); Parratt
v. Taylor, 101 S. Ct. 1908, 1913-17 (1981), overruled on other grounds,
Daniels v. Williams, 106 S. Ct. 662 (1986). The doctrine rests on the
premise that because the state is unable to predict random and
unauthorized conduct, pre-deprivation remedies are infeasible. See
Zinerman v. Burch, 110 S. Ct. 975, 985-86 (1990). In such a case, the
provision of adequate state law post-deprivation remedies provides all
the due process that is required. Id.
Conduct is not random and unauthorized when the state has
expressly delegated the power and authority to effect the very
deprivation complained about. See Zinermon, 110 S. Ct. at 989. Thus,
at least as to the search of the storage facility and the order
authorizing search of safe deposit boxes, it cannot be said that the
defendants' conduct was random or unauthorized and pre-deprivation
11
provision of notice and hearing to the parties specifically named in
the state court's orders was feasible. As to the search of the storage
room, Parratt-Hudson does not bar the Davises' claims. Further, the
Parratt-Hudson doctrine can only be applied to negate an alleged
violation of procedural due process. Augustine v. Doe, 740 F.2d 322,
326-27 (5th Cir. 1984). The Davises' allege that the defendants
effected a warrantless entry into the Davis home and seized personal
property in ostensible satisfaction of Johnson's debt. We are
persuaded that those allegations are sufficient to state a substantive
due process claim under the Fourth Amendment. See Augustine, 740 F.2d
at 325 (warrantless entry for purpose of arrest and seizure of
plaintiff's dog amounted to substantive due process claim such that
Parratt-Hudson was inapplicable). The Parratt-Hudson doctrine does not
negate the Davises' claims for violation of due process in violation of
the Fourth and Fourteenth Amendments.
ROOKER-FELDMAN DOCTRINE
The defendants' argument that dismissal must be affirmed on the
basis of Rooker-Feldman is also erroneous. When issues raised in a
federal court are "inextricably intertwined" with a state judgment and
the court is "in essence being called upon to review the state-court
decision," the court lacks subject matter jurisdiction to conduct such
a review. See e.g., United States v. Shepherd, 23 F.3d 923, 924 (5th
Cir. 1994); see also District of Columbia Court of Appeals v. Feldman,
103 S. Ct. 1303 (1983; Rooker v. Fidelity Trust, 44 S. Ct. 149 (1923).
However, our Circuit has not allowed the Rooker-Feldman doctrine to bar
an action in federal court when that same action would be allowed in
the state court of the rendering state. Gauthier v. Continental Diving
12
Serv. Inc., 831 F. 2d 559, 561 (5th Cir. 1987) (interpreting Rooker-
Feldman in a manner consistent with the requirements of the full faith
and credit requirement). Texas courts of general jurisdiction allow
challenges to orders authorizing receivers to take possession of
receivership property or property subject to the control of the
receiver. Campbell v. Wood, 811 S.W.2d 753 (Tex. App.--Houston [1st
Dist.] 1991, no writ). The Davises' could have raised their claims in
either the 133rd Judicial District Court or any other Texas court of
proper jurisdiction and venue. Id. Therefore, Rooker-Feldman is
inapplicable to the present case.
INJUNCTIVE RELIEF
While rule 12 does not require that the district court enter
findings of fact or conclusions of law when deciding a motion to
dismiss, we have required that the district court explain its reasons
in sufficient detail to allow this Court to determine whether the
district court correctly applied the proper legal rule. See e.g.,
Wildbur v. Arco Chemical Co., 974 F.2d 631, 644 (5th Cir. 1992). When
the district court's "reasoning is vague or simply left unsaid, there
is little opportunity for effective review." McIncrow v. Harris
County, 878 F.2d 835, 836 (5th Cir. 1990). "In such cases, we have not
hesitated to remand the case for an illumination of the court's
analysis through some formal or informal statement of reasons." Id.
In this case, we are unable to discern any basis for the district
court's dismissal of the Davises' claim for injunctive relief under §
1983. Dismissal as to that claim will therefore be reversed and
remanded to the district court. We note for the purposes of remand
that "judicial immunity is not a bar to prospective injunctive relief
13
against a judicial officer acting in her judicial capacity." Pulliam
v. Allen, 466 U.S. 522, 541-42 (1984); Crane v. Texas, 759 F.2d 412,
421 n.11 (5th Cir.) ("state court judges are not immune from federal
suits seeking equitable or declaratory relief"), modified in part on
other grounds, 766 F.2d 193 (5th Cir.), cert. denied, 474 U.S. 1020
(1985).
Finally, the Davises' claims that the defendants acted in
violation of Article 1 § 10 and the First Amendment are conclusory and
completely without factual support in the pleadings. Because Davis
failed to allege any factual basis for those claims, the district
court's dismissal of those claims will be affirmed. Blackburn v. City
of Marshall, 42 F.3d 925, 931 (5th Cir. 1995).
CONCLUSION
The pleadings establish that Raborn, as a court appointed
receiver, is entitled to derivative judicial immunity from the Davises'
federal and state law damage claims. Bayless and the law firm, Bayless
& Stokes, were not acting under the supervision of, and were not
accountable to, the court. Those defendants are therefore not entitled
to immunity from suit as to the Davises' federal and state law damage
claims. Dismissal as to the claims against defendants Bayless and the
law firm Bayless & Stokes is not otherwise justified on the basis of
the Hudson-Parratt or Rooker-Feldman doctrines. The district court's
order provides no meaningful basis for review of its dismissal of the
Davises' claim for preliminary injunctive relief under § 1983, which
would ordinarily survive a finding of judicial immunity.
The district court's dismissal of the Davises' claims based on
Article 1 § 10 and the First Amendment of the United States
14
Constitution is AFFIRMED as to defendants Raborn, Bayless and the law
firm, Bayless & Stokes. The district court's dismissal of all damage
claims based on state or federal law against the receiver Raborn is
AFFIRMED on the basis of derived judicial immunity. The district
court's dismissal of all damage claims against Bayless and the law
firm, Bayless & Stokes, is REVERSED and REMANDED for further
development consistent with this opinion. The district court's
apparent dismissal of the Davises' claim for injunctive relief is
REVERSED and REMANDED for further development consistent with this
opinion.
AFFIRMED in part, REVERSED in part and REMANDED to the district
court.
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