Spence v. Burns et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JAMES CLIFFORD SPENCE, JR., §
#00712697, §
§
Plaintiff, §
§
v. § No. 3:25-cv-219-N-BT
§
ROBERT D. BURNS, III, et al., §
§
Defendants. §
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
James Clifford Spence, Jr., a prisoner at the TDCJ Le Blanc Unit in
Beaumont, Texas, filed this pro se civil rights action asserting claims against Chief
Justice Robert D. Burns III of the Texas Fifth District Court of Appeals, the Texas
Department of Criminal Justice, Wanda Diane Esner, Jimmy Joe Esner, Sr., and
Betty Ann Cadenhead Spence. As explained below, the District Judge should
dismiss his lawsuit because the Court lacks subject matter jurisdiction over his
claims.
Background
Spence is serving a 60-year sentence for aggravated sexual assault of a child
under 14 years of age.1
1 See Cause No. F-9322837-KJ in the Criminal District Court No. 3 of Dallas
County, Texas; see also TDCJ Inmate Information Details, available
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Liberally construed, Spence alleges that Chief Justice Robert D. Burns III of
the Texas Fifth District Court of Appeals (i) engaged in vindictive prosecution; (ii)
tampered with the presiding district judge, court-appointed defense counsel, the
“probation dept.,” and the Social Security Administration; (iii) denied Spence
parole; (iv) altered a victim statement; and (v) as a result of this conduct, put
Spence’s life in danger. See Compl. at 3–5. Spence, therefore, asserts claims against
Chief Justice Burns for vindictive prosecution, “slavery-fraudulent adoption,”
attempted murder, altering legal documents, prosecutorial misconduct, mail
fraud, moral turpitude, abuse of authority, abuse of power, and abuse of discretion.
Id. at 3.
Spence asserts similar claims against the Texas Department of Criminal
Justice (TDCJ). He states that the TDCJ prohibited him from communicating with
his family members and otherwise violated his rights under the First, Eighth, and
Fourteenth Amendments to the United States Constitution. Id. at 3.
Spence also asserts claims against Wanda Diane Esner, Jimmy Joe Esner,
Sr., and Betty Ann Cadenhead Spence (the “Individual Defendants”). He insists
that Ms. Esner manipulated Ms. Spence into instigating an investigation by Texas
at https://inmate.tdcj.texas.gov/InmateSearch/viewDetail.action?sid=01589626
(last visited Jan. 21, 2026). Spence did not appeal his conviction or sentence. And
while he did file a habeas petition under 28 U.S.C. § 2254, the habeas court
dismissed his petition as barred by the statute of limitations. Spence v. Dir., TDCJ-
CID, 2025 WL 746703, at *1 (N.D. Tex. Jan. 16, 2025), rec. adopted, 2025 WL
746139 (N.D. Tex. Mar. 7, 2025).
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Child Protective Services (CPS) and putting Spence’s daughter up for adoption. Id.
at 4. Ms. Esner then “demanded” that Spence be charged with Aggravated Assault
in the first degree. Id. Meanwhile, Mr. Esner’s only apparent connection to the
challenged conduct is supporting the actions of Ms. Esner. See id. at 3, 5.
Spence seeks a re-trial in his underlying criminal proceedings and expresses
a desire for Chief Justice Burns to “suffer the consequences of his responsibilities
for unofficial felonies.” Id. at 4.
Spence filed a Motion for Writ of Audita Querela (ECF No. 18). In this
motion, he complains that the TDCJ and Chief Justice Burns have forbidden Texas
inmates from obtaining literature from Iran—thereby coercing Spence to practice
Christianity. See Mot. Audita Querela at 2. Spence also states that he cannot
correspond with prosecutors and that the TDCJ Le Blanc Unit is censoring his
mail. Id. Spence insists that the law library at the TDCJ Le Blanc Unit is outdated
and that he has been denied an electronic tablet. Spence asks that the Court
“relinquish control of this case to federal criminal investigators.” Id. at 3 (cleaned
up).
Spence also filed an application for preliminary injunctive relief and
application for federal asylum (ECF No. 19). He states that Defendants stole
“another inmate’s history and criminal record in order to vilify [Spence] and
prejudice the Court.” Mot. Prelim. Inj. At 1. Spence repeats claims related to his
inability to communicate with his family, tampering with his mail, a lackluster law
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library, CPS, and Chief Justice Burns. Id. at 1–2. He requests an injunction
requiring the TDCJ to provide him an electronic tablet and two sets of earbuds. Id.
at 3.
Legal Standards and Analysis
I. The Court lacks subject matter jurisdiction over Spence’s claims.
A federal court “is duty-bound to examine its subject-matter jurisdiction sua
sponte.” Burciaga v. Deutsche Bank Nat’l Tr. Co., 871 F.3d 380, 384 n.4 (5th Cir.
2017). A court does not have to—and in fact, should not—wait for a Rule
12(b)(1) motion to determine whether subject matter jurisdiction exists. On the
contrary, “[i]f the court determines at any time that it lacks subject matter
jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3); see
also Ins. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702
(1982) (explaining that while under Rule 12(h) defenses for lack of personal
jurisdiction are waived if untimely, even an appellate court may review subject
matter jurisdiction sua sponte).
a. Judicial immunity bars Spence’s claims against Chief
Justice Burns, and he fails to plausibly allege official
capacity liability.
“A judge generally has absolute immunity from suits for damages.” Davis v.
Tarrant Cnty., Texas, 565 F.3d 214, 221 (5th Cir. 2009) (citing Mireles v. Waco,
502 U.S. 9, 9–10 (1991)). “Judicial immunity is an immunity from suit, not just the
ultimate assessment of damages.” Id. (citing Mireles, 502 U.S. at 11) (citing, in
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turn, Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). There are only two
circumstances under which this immunity can be overcome. “First, a judge is not
immune from liability for nonjudicial actions, i.e., actions not taken in the judge’s
judicial capacity.” Mireles, 502 U.S. at 11 (citations omitted). “Second, a judge is
not immune for actions, though judicial in nature, taken in the complete absence
of all jurisdiction.” Id. at 12 (citations omitted). Allegations of bad faith or malice
cannot overcome judicial immunity. Id.
Spence accuses Chief Justice Burns of malicious conduct exceeding his
judicial capacity and of acting without jurisdiction. But nothing in the record
supports these conclusory allegations. Rather, it appears Spence is merely
challenging judicial acts that he did not agree with. Thus, Chief Justice Burns is
immune from Spence’s claims against him in his individual capacity. See Stacker
v. Givens-Davis, 2024 WL 4427818, at *6 (N.D. Tex. Sept. 10, 2024), rec. adopted,
2024 WL 4428988 (N.D. Tex. Oct. 4, 2024) (rejecting conclusory allegation that a
state judge acted without jurisdiction and dismissing claims against Texas state
judge based on judicial immunity).
And to the extent that Spence sues Chief Justice Burns in his official
capacity, “Texas judges are entitled to Eleventh Amendment immunity for claims
asserted against them in their official capacities as state actors.” Davis, 565 F.3d at
228 (citing Warnock v. Pecos Cnty., 88 F.3d 341, 343 (5th Cir. 1996); Holloway v.
Walker, 765 F.2d 517, 519 (5th Cir. 1985)).
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b. Spence fails to allege that the Individual Defendants acted
under color of state law.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that a
defendant acted “under color” of state law. 42 U.S.C. § 1983. Only “state actors”
may be sued for federal civil rights violations. Private parties become “state actors”
only when their conduct is “fairly attributable to the State.” Lugar v. Edmondson
Oil Co., 457 U.S. 922, 937 (1982); see also Filarsky v. Delia, 566 U.S. 377, 383
(2012) (“Anyone whose conduct is ‘fairly attributable to the State’ can be sued as
a state actor under § 1983.”) (citing Lugar, 457 U.S. at 937). The phrase “fairly
attributable to the State” means (1) “the deprivation must be caused by the exercise
of some right or privilege created by the State or by a rule of conduct imposed by
the state or by a person for whom the State is responsible”; and (2) “the party
charged with the deprivation must be a person who may fairly be said to be a state
actor.” Lugar, 457 U.S. at 937.
Spence does not allege that the Individual Defendants engaged in any
conduct that could be attributable to the State. Therefore, the Individual
Defendants are not state actors, and Spence’s claims against them should be
dismissed for lack of subject matter jurisdiction. See Meitzler v. Reyes, 2024 WL
5058530, at *3 (S.D. Tex. Nov. 8, 2024), rec. adopted, 2024 WL 5063672 (S.D.
Tex. Dec. 10, 2024) (citing Hudson v. Hughes, 98 F.3d 868, 873 (5th Cir. 1996))
(“Private citizens and businesses are not state actors within the meaning
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of § 1983.”); Lavergne v. Sanford, 570 F. App’x 385, 386 (5th Cir. 2014) (“There is
no federal jurisdiction under 42 U.S.C. § 1983 against non-state actors.”).
c. The TDCJ is immune from suit under § 1983.
Spence attempts to asserts civil rights claims against the TDCJ itself. But the
TDCJ is not subject to suit under § 1983. Baughn v. Sanders, 2021 WL 6880687,
at *3 (E.D. Tex. Dec. 8, 2021), rec. adopted, 2022 WL 407375 (E.D. Tex. Feb. 9,
2022). Under the Eleventh Amendment, the TDCJ, as a state agency, is
absolutely immune from suit under § 1983. Cox v. Texas, 354 F. App’x 901, 903
(5th Cir. 2009).
So, the District Judge should dismiss Spence’s claims against the TDCJ.
d. The Court lacks jurisdiction under the Rooker-Feldman
doctrine.
Under the Rooker-Feldman doctrine, federal courts lack subject matter
jurisdiction in “cases brought by state court losers complaining of injuries caused
by state court judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of those
judgments.” Exxon Mobile Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284
(2005). In Weekly v. Morrow, 204 F.3d 613 (5th Cir. 2000), the Fifth Circuit held
that under the Rooker-Feldman doctrine:
[F]ederal district courts, as courts of original jurisdiction, lack
appellate jurisdiction to review, modify, or nullify final orders of 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.
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Thereafter, recourse at the federal level is limited solely to an
application for a writ of certiorari to the United States Supreme Court.
Weekly, 204 F.3d at 615 (internal quotation marks and footnotes
omitted); see Spencer v. Wilson, 2020 WL 822096, at *4 (S.D. Tex. Feb. 18,
2020) (“If a federal plaintiff’s alleged injury arises from an ‘allegedly erroneous
decision by a state court, and seeks relief from a state court judgment based on that
decision,’ then Rooker-Feldman bars the federal court’s jurisdiction.”); see
also Truong v. Bank of Am., N.A., 717 F.3d 377, 382 (5th Cir. 2013) (“Reduced to
its essence, the Rooker-Feldman doctrine holds that inferior federal courts do not
have the power to modify or reverse state court judgments except when authorized
by Congress.”) (quoting Union Planters Bank Nat’l Ass’n v. Salih, 369 F.3d 457,
462 (5th Cir. 2004) (internal quotation marks and citation omitted)).
There are four elements to the Rooker-Feldman doctrine: (1) a state-court
loser; (2) alleging harm caused by a state-court judgment; (3) that was rendered
before the district court proceedings began; and (4) the federal suit requests review
and reversal of the state-court judgment. Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280, 284 (2005). The Rooker-Feldman doctrine applies to state
court losers in criminal cases as well as civil cases. See Holmes v. King Cnty.
Sheriff, 2021 WL 4860791, at *2 (W.D. Wash. Oct. 19, 2021) (recognizing “[t]o the
extent plaintiff is seeking review of the state court’s judgments and determinations
in an underlying criminal case, the Court lacks subject matter jurisdiction under
the Rooker-Feldman doctrine”); Husain v. Missouri, 2018 WL 4562906, at *3
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(E.D. Mo. Sept. 24, 2018) (applying the Rooker-Feldman doctrine to a state
criminal case); Armolt v. Kerekstes, 2015 WL 5343081, at *5 (M.D. Pa. Sept. 14,
2015) (recognizing the Rooker-Feldman doctrine prevents federal judges from
considering lawsuits brought by “state-court losers” that require a federal court to
re-examine the outcome of a state criminal case); Washam v. Stengel, 2013 WL
6328276, at *8 (M.D. Pa. Dec. 5, 2013) (stating the Rooker-Feldman doctrine
prevents federal judges from considering lawsuits brought by “state-court losers”
that require a federal court to re-examine the outcome of a state criminal
case); Linge v. Georgia, 2013 WL 12106941, at *2 (N.D. Ga. May 6, 2013) (applying
the Rooker-Feldman doctrine to a state criminal case).
Spence was convicted of aggravated sexual assault of a child under 14 and
was sentenced to 60 years’ incarceration. He now asks that the Court grant him a
re-trial. But he is not entitled to review of a state court’s criminal judgment in this
Court due to the Rooker-Feldman doctrine. Accordingly, Spence’s claims should
be dismissed.
II. Alternatively, the District Judge should deny Spence’s Motion for
Writ of Audita Querela (ECF No. 18) and Application for
Preliminary Injunction / Application for Federal Asylum (ECF
No. 19).
a. The writ of audita querela is not available to Spence.
“The writ of audita querela permits a defendant to obtain relief against a
judgment because of some legal defense arising after the judgment.” United States
v. Banda, 1 F.3d 354, 356 (5th Cir.1993); see also United States v. Miller, 599 F.3d
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484, 489 (5th Cir.2010) (“[A] writ of audita querela is used to challenge a
judgment that was correct at the time it was rendered but which is made infirm by
matters that arose after its rendition.”). However, the writ is available only “where
there is a legal objection to a judgment which has arisen subsequent to that
judgment.” Miller, 599 F.3d at 489. “Purely equitable grounds for relief do not
justify the issuance of a writ of audita querela.” Id.
Additionally, “the writ is only available where the legal objection raised
cannot be brought pursuant to any other post-conviction remedy.” Id. This
includes when redress is available under § 2254. See Patron v. Thaler, 360 F. App’x
588, at *1 (5th Cir. 2010) (district court correctly dismissed petition for writ
of audita querela because redress was available under § 2254). That a petition or
motion would be dismissed as successive does not render relief unavailable. United
States v. Johnson, 350 F. App’x 872, 873 (5th Cir. 2009) (the fact a movant that
cannot meet the requirements for bringing a successive § 2255 motion, does not
render the § 2255 remedy unavailable); Tolliver v. Dobre, 211 F.3d 876, 878 (5th
Cir. 2000) (prior unsuccessful habeas application, or the inability to meet
AEDPA’s second or successive requirements, does not make habeas inadequate or
ineffective).
Here, redress is available to Spence under § 2254—even though the habeas
court dismissed his § 2254 as time-barred. While such a petition would be untimely
and successive, “case law makes it clear that simply because [a petitioner] may not
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ultimately prevail, does not allow him to circumvent” filing a habeas application.
Lopez v. United States, 2018 WL 9371563, at *2 (E.D. Tex. June 7, 2018), rec.
adopted, 2019 WL 3842823 (E.D. Tex. Aug. 14, 2019). Nor does Spence assert a
legal objection to a judgment that has arisen after the conviction.
Thus, the District Judge should deny Spence’s motion for writ of audita
querela (ECF No. 18).
b. Spence is not entitled to a preliminary injunction or
“federal asylum.”
Spence’s allegations in his application for preliminary injunction and
application for federal asylum are nonsensical. To remedy these various perceived
slights, he requests an electronic tablet and two pairs of earbuds. But “no court has
found that prisoners have a constitutional right to possess personal computers, or
items that are similar to personal computers.” Duenes v. Wainwright, 2017 WL
6210904, at *3 (W.D. Tex. Dec. 7, 2017) (quoting Robinson v. Joya, 2010 WL
1779885, at *3 (E.D. Cal. 2010)).
Moreover, “only ‘aliens’ can apply for asylum.” United States v. Vasquez-
Hernandez, 924 F.3d 164, 169 (5th Cir. 2019). Spence has provided nothing to
suggest that he is not a United States citizen. But even if he could, aliens who have
been convicted of an aggravated felony “may not apply for or be granted asylum.”
Phetsengdara v. I.N.S., 15 F.3d 1079 (5th Cir. 1994) (citing 8 U.S.C. §
1158(d); Martins v. INS, 972 F.2d 657, 659 (5th Cir.1992)). And the Fifth Circuit
has held that sexual assault of a child qualifies as an aggravated felony.
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For these reasons, the District Judge should dismiss Spence’s application for
preliminary injunction / application for federal asylum if it is not inclined to
dismiss this action for lack of subject matter jurisdiction.
Recommendation
The District Judge should dismiss this action for lack of subject matter
jurisdiction. Additionally, the dismissal should count as a qualifying dismissal
under 28 U.S.C. § 1915 and constitute a “strike” for purposes of the Prisoner
Litigation Reform Act’s three-strikes bar to proceeding in forma pauperis. See In
re Jacobs, 213 F.3d 289 (5th Cir. 2000).
SO RECOMMENDED.
January 26, 2026.
____________________________
REBECCA RUTHERFORD
UNITED STATES MAGISTRATE JUDGE
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INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation will be served on all parties in the
manner provided by law. Any party who objects to any part of this report and
recommendation must file specific written objections within 14 days after being
served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). To be specific,
an objection must identify the specific finding or recommendation to which
objection is made, state the basis for the objection, and specify the place in the
magistrate judge’s report and recommendation where the disputed determination
is found. An objection that merely incorporates by reference or refers to the
briefing before the magistrate judge is not specific. Failure to file specific written
objections will bar the aggrieved party from appealing the factual findings and legal
conclusions of the magistrate judge that are accepted or adopted by the district
court, except upon grounds of plain error. See Douglass v. United Services Auto.
Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).
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