3:25-cv-00219•Spence v. Burns et al
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1 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 Case 3:25-cv-00219-N-BT Document 20 Filed 01/26/26 Page 1 of 13 PageID <pageID>
2 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). Case 3:25-cv-00219-N-BT Document 20 Filed 01/26/26 Page 2 of 13 PageID <pageID>
3 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 Case 3:25-cv-00219-N-BT Document 20 Filed 01/26/26 Page 3 of 13 PageID <pageID>
4 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 Case 3:25-cv-00219-N-BT Document 20 Filed 01/26/26 Page 4 of 13 PageID <pageID>
5 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)). Case 3:25-cv-00219-N-BT Document 20 Filed 01/26/26 Page 5 of 13 PageID <pageID>
6 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 Case 3:25-cv-00219-N-BT Document 20 Filed 01/26/26 Page 6 of 13 PageID <pageID>
7 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. Case 3:25-cv-00219-N-BT Document 20 Filed 01/26/26 Page 7 of 13 PageID <pageID>
8 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 Case 3:25-cv-00219-N-BT Document 20 Filed 01/26/26 Page 8 of 13 PageID <pageID>
9 (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 Case 3:25-cv-00219-N-BT Document 20 Filed 01/26/26 Page 9 of 13 PageID <pageID>
10 484, 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 Case 3:25-cv-00219-N-BT Document 20 Filed 01/26/26 Page 10 of 13 PageID <pageID>
11 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. Case 3:25-cv-00219-N-BT Document 20 Filed 01/26/26 Page 11 of 13 PageID <pageID>
12 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 Case 3:25-cv-00219-N-BT Document 20 Filed 01/26/26 Page 12 of 13 PageID <pageID>
13 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). Case 3:25-cv-00219-N-BT Document 20 Filed 01/26/26 Page 13 of 13 PageID <pageID>
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