McKenzie v. McKenzie

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
KELLI MARIE MCKENZIE, 	§
§
Plaintiff, 	§
§
v. 	§ 	Civil Action No. 4:26-cv-00125-O-BP
§
LEWIS BROOKS MCKENZIE, 	§
§
Defendant. 	§
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Pro se Plaintiff Lewis McKenzie removed the present case on February 5, 2026 from the
233rd Judicial District Court of Tarrant County, Texas. ECF No. 1. The same day, he moved for
leave to proceed in forma pauperis under 28 U.S.C. § 1915. ECF No. 2. After considering the
Complaint and applicable legal authorities, the undersigned recommends that Chief United States
District Judge Reed O’Connor REMAND the case to the state court from whence it was removed.
I. 	BACKGROUND
McKenzie for the fourth time attempts to challenge his Tarrant County family law case in
this Court. See Civil Action Nos. 4:21-cv-00926-O, 4:23-cv-00371-O, and 4:25-cv-01322-O. In
this case, as in Civil Action Nos. 4:23-cv-00371-O and 4:25-cv-01322-O, he purports to remove
the family law case from state court and sues Defendants alleging federal law violations concerning
ongoing state court litigation over the custody of his minor child and child support payments. ECF
No. 1. According to a copy of the docket sheet in that case, which McKenzie attached as Exhibit
A to his Complaint, the original petition for divorce was filed on November 5, 2018. Id. at 26.
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McKenzie’s Complaint makes sweeping allegations of impropriety involving the alleged
unconstitutionality of the state court child custody system. Id. at 1. McKenzie alleges the state
court system is unconstitutional and therefore any resulting judgments must be void. Id. at 2. He
seeks an award of $1.6 billion to the federal government as a relator, and his corresponding qui
tam share. Id. at 1. He also seeks to enjoin the state of Texas from further violations of “all natural
parents’ rights to due process.” Id. at 21.
II. 	LEGAL STANDARDS
A. 	Title 28 U.S.C. § 1915
Because McKenzie is proceeding in forma pauperis, his Complaint is subject to sua sponte
dismissal if it is “frivolous or malicious” or “fails to state a claim on which relief may be granted.”
28 U.S.C. § 1915(e)(2)(B)(I)-(ii). A complaint is frivolous if it “lacks an arguable basis either in
law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989); Brewster v. Dretke, 587 F.3d 764,
767 (5th Cir. 2009). A complaint lacks an arguable basis in law when it is “based on an indisputably
meritless legal theory.” Neitzke, 490 U.S. at 326-27; Berry v. Brady, 192 F.3d 504, 507 (5th Cir.
1999). To state a claim on which relief may be granted, a complaint must plead “enough facts to
state a claim to relief that is plausible on its face” with sufficient specificity “to raise a right to
relief above the speculative level[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
A pro se plaintiff’s pleadings are liberally construed. Estelle v. Gamble, 429 U.S. 97, 106
(1976). A “pro se complaint, however inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Id. However, if the court determines that the plaintiff
has pleaded his best case, a district court does not err in dismissing a pro se complaint with
prejudice. Jones v. Greninger, 188 F.3d 322, 326-27 (5th Cir. 1999) (citing Jacquez v. Procunier,
801 F.2d 789, 792 (5th Cir. 1986); Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998)).
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B. 	Removal and Remand
Not every case can be removed to federal court. The governing provision of the federal
removal statute authorizes a defendant to remove “any civil action brought in a [s]tate court of
which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). The
Court must have subject matter jurisdiction over the case or controversy removed. See 28 U.S.C.
§ 1441(a); Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). The
removing party bears the burden of showing that federal jurisdiction exists, and that removal was
proper. Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988). To determine whether
jurisdiction is present for removal, the Court must consider the claims in the state court petition as
they existed at the time of removal. Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264
(5th Cir. 1995).
“If at any time before final judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). When removal is defective for lack
of subject matter jurisdiction, the Court must remand the action regardless of whether the parties
have moved the Court to do so. Wis. Dep’t of Corrs. v. Schacht, 524 U.S. 381, 392 (1998); see
also Int’l Primate Protection League v. Adm’s of the Tulane Educ. Fund, 500 U.S. 72, 89 (1991)
(holding that the literal words of § 1447(c) do not provide courts with discretion to dismiss, rather
than remand, upon finding a lack of subject matter jurisdiction).
C. 	Younger Abstention
Federal courts have a “virtually unflagging obligation” to decide cases within their
jurisdiction. Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976).
“[T]he pendency of an action in [a] state court is no bar to proceedings concerning the same matter
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in the federal court having jurisdiction.” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 73 (2013)
(brackets in original).
However, under the abstention doctrine explained in Younger v. Harris, 401 U.S. 37 (1971)
and its progeny, courts recognize “certain instances in which the prospect of undue interference
with state proceedings counsels against federal relief.” Sprint, 571 U.S. at 72. Younger abstention
applies in three “exceptional” circumstances: “state criminal prosecutions, civil enforcement
proceedings, and civil proceedings involving certain orders that are uniquely in furtherance of the
state courts’ ability to perform their judicial functions.” Id. at 73 (internal quotation marks omitted)
(quoting New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 367-68 (2013)).
Federal courts have a duty to ensure abstention under Younger would not be proper for the cases
before them and may itself raise the issue. Lawrence v. McCarthy, 344 F.3d 467, 470 (5th Cir.
2003); Murphy v. Uncle Ben’s, Inc., 168 F.3d 734, 737 n.1 (5th Cir. 1999).
III. 	ANALYSIS
A. 	The Court does not have subject matter jurisdiction under 28 U.S.C § 1443.
Section 1443 provides that “civil actions or criminal prosecutions, commenced in a State
court may be removed by the defendant to the district court of the United States” for two types of
actions. 28. U.S.C. § 1443. First is an action “[a]gainst any person who is denied or cannot enforce
in the courts of such State a right under any law providing for the equal civil rights of citizens of
the United States, or of all persons within the jurisdiction thereof.” Id. Second is a claim “[f]or any
act under color of authority derived from any law providing for equal rights, or for refusing to do
any act on the ground that it would be inconsistent with such law.” Id.
McKenzie cannot remove his case under either type of action. He has not alleged facts to
show that he was denied or cannot enforce a right in state court, nor has he shown that he is a
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federal officer or agent authorized to remove the second type of action. Id. at § 1443; see City of
Greenwood, Miss. v. Peacock, 384 U.S. 808, 824 (1966) (holding that the second 1443 category
permits only federal officers or agents, or those authorized to act on their behalf, to remove a case
to federal court).
Under § 1443(1), a party must satisfy a two-pronged test to remove an action. State of Ga.
v. Rachel, 384 U.S. 780, 792-94 (1966). First, he must show that the rights allegedly denied to him
arise under a federal law that “provid[e] for specific civil rights stated in terms of racial equality.”
Id. at 792. Second, the party must assert that he was “denied or cannot enforce” the specific civil
right in state court. Id. at 794.
The first prong of the Rachel test requires a showing that the “civil rights [violations]
asserted arise under laws phrased specifically in terms of racial equality rather than in general
terms of equality for all citizens comprehensively.” Smith v. Winter, 717 F.2d 191, 194 (5th Cir.
1983). “[B]road [constitutional] claims do not satisfy the test, nor do claims arising under non-
racially oriented statutes such as 42 U.S.C. § 1983.” Id. Thus, the courts construe removal under
§ 1443 narrowly “to require strict satisfaction of both the ‘civil rights’ element and the
‘enforcement’ element intrinsic within it.” Id. McKenzie’s Notice of Removal generally discusses
the unconstitutionality of “child custody cases” and the deprivation of individuals’ “superior
natural parental rights to children.” See generally ECF No. 1. However, he does not assert any
racial discrimination claim in his Notice, other than a conclusory statement that white males are
generally treated unfavorably in the child custody system. Id. at 3.
Accordingly, McKenzie’s claims are broad and vague and do not assert violations of racial
equity with the specificity required to remove his case under § 1443. See Stanley v. Hayes, No.
3:18-cv-1300-L-BK, 2018 WL 6737680, at *2 (N.D. Tex. Oct. 15, 2018) (“broad assertions of
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constitutional violations do not satisfy Rachel’s first prong”); see also Dunn v. Miller, No. 3:18-
cv-967-B-BH, 2018 WL 2244703, at *5 (N.D. Tex. Apr. 27, 2018) (“conclusory and general
claims of race discrimination do not satisfy the first prong under § 1443(1)”), rec. adopted, 2018
WL 2230656 (N.D. Tex. May 16, 2018).
The second prong of the Rachel test requires McKenzie to show a state law or policy that
“prevents him from raising his federal claims or rights under the Constitution, as either defenses
or counterclaims,” in the state court proceedings. Louisiana v. Wells, 2015 WL 1276713, at *5
(M.D. La. Mar. 19, 2015), aff’d, 628 F. App’x. 260 (5th Cir. 2015). This provision normally
requires the “denial be manifest in a formal expression of state law,” such as a legislative or
constitutional provision, “rather than a denial first made manifest in the trial of the case.” Dunn,
2018 WL 2244703 at *5. Failure to satisfy this prong of the test is “fatal to removal.” Sanders v.
Wright, No. 5:17CV131-RWS-CMC, 2017 WL 3599536, at *7 (E.D. Tex. Aug. 22, 2017).
However, McKenzie has not identified any Texas law or policy in his Notice of Removal,
nor has he filed any pleadings subsequently showing that he would not be able to bring this claim
in state court. See generally ECF No. 1. Likewise, he has not pleaded facts to show that he is a
federal officer or agent that could pursue removal under § 1443(2). Thus, he has not demonstrated
that removal was proper under § 1443.
B. 	There is no other basis for the Court to exercise subject matter jurisdiction.
The Court does not have removal jurisdiction under any of the other statutes that McKenzie
cited in his Notice of Removal. Title 28 U.S.C. § 2403 concerns intervention in a federal case by
the United States or by one of the states and does not establish a separate ground for removal
jurisdiction. Additionally, there is no federal question jurisdiction under § 1331 in the present case.
Federal question jurisdiction exists only when a federal question is presented on the face of the
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plaintiff’s well-pleaded complaint. Aetna Health Inc. v. Davila, 542 U.S. 200, 207 (2004);
Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). The complaint must “establish[ ] either
that federal law creates the cause of action or that the plaintiff’s right to relief necessarily depends
on resolution of a substantial question of federal law.” Singh v. Duan Morris LLP, 538 F.3d 334,
337-38 (5th Cir. 2008).
McKenzie has not pleaded facts to show that the underlying case filed in the family law
court states a federal law cause of action that could form the basis for proper removal. He alleges
that the state court action contains various deprivations of fundamental rights guaranteed by the
federal Constitution and federal laws, and that the deprivations constitute violations of 42 U.S.C.
§ 1983. ECF No. 1 at 16. He further alleges that the state’s child support orders violate the Federal
Consumer Credit Protections Act, the False Claims Act, and the Racketeer Influenced and Corrupt
Organizations. ECF No. 1 at 4. McKenzie raises new claims involving constitutional questions
under 42 U.S.C. §§ 1981, 1983, 1985, 1986, 2000b-2, and the First, Fifth, Ninth, Tenth, and
Fourteenth Amendments. Id. at 4, 8, 22. He also mentions 28 U.S.C. § 1343 as a basis for removal
in his Notice of Removal. Id. at 4.
However, it is “not sufficient for the federal question to be raised in the answer or in the
petition for removal.” MSOF Corp. v. Exxon Corp., 295 F.3d 485, 490 (5th Cir. 2002), cert. denied,
537 U.S. 1046 (2002). “A case may not be removed to federal court on the basis of a federal
defense . . . even if the defense is anticipated in the plaintiff’s complaint.” Caterpillar, 482 U.S. at
393. Moreover, “federal jurisdiction [cannot] rest upon an actual or anticipated counterclaim”
because “a federal counterclaim, even when compulsory, does not establish ‘arising under’
jurisdiction.” Vaden v. Discover Bank, 556 U.S. 49, 60 (2009).
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McKenzie has not provided any state court pleadings or other documents identifying the
federal question that he has alleged in this removal action. See generally ECF No. 1. The only
documents presented to the Court are documents related to the child support issue. Id. McKenzie
references the “unconstitutional rights deprivations” of Texas court cases as the basis for his action
(Id. at 8-11) and prays this Court issue a declaratory judgment finding that the original state court
proceedings removed were void (Id. at 23). He also seeks civil damages of $10 million for “falsely
stolen monies” and for the “general torture and manifest abuse” he believes he suffered. Id. at 23.
State law typically governs the enforcement of child support laws. Est. of Merkel v.
Pollard, 354 F. App’x 88, 92 (5th Cir. 2009) (“in general it is appropriate for the federal courts to
leave delicate issues of domestic relations to the state courts”); Congleton v. Holy Cross Child
Placement Agency, Inc., 919 F.2d 1077, 1078 (5th Cir. 1990) (holding that as a general rule, federal
courts refuse to hear suits to obtain child support and actions to enforce separation decrees still
subject to state court modification). Thus, because McKenzie has not shown that the underlying
child support proceeding in state family court presents a federally created cause of action or that
his right to relief is dependent on the resolution of a substantial question of federal law, the Court
does not have federal question jurisdiction over this case, regardless of the federal law references
mentioned in the removal Notice.
C. 	Even if the Court had removal jurisdiction, it should abstain from considering
McKenzie’s claims under Younger.
The Court should abstain from exercising subject matter jurisdiction over the ongoing state
case under the Younger doctrine. See Younger, 401 U.S. 37; Morse v. Fed. Nat’l Mortg. Ass’n, No.
4:18-cv-39-ALM-CAN, 2019 WL 1177989, at *5-7 (E.D. Tex. Feb. 12, 2019), rec. adopted, 2019
WL 1168530 (E.D. Tex. Mar. 13, 2019). Younger requires abstention where “(1) the federal
proceeding would interfere with an ‘ongoing state judicial proceeding’; (2) the state has an
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important interest in regulating the subject matter of the claim; and (3) the plaintiff has ‘an
adequate opportunity in the state proceedings to raise constitutional challenges.’” Bice v. La. Pub.
Def. Bd., 677 F.3d 712, 716 (5th Cir. 2012) (quoting Middlesex Cty. Ethics Comm. v. Garden State
Bar Ass’n, 457 U.S. 423, 432 (1982)) (analyzing two of the three elements in a 42 U.S.C. § 1983
case); Murphy, 168 F.3d at 737 n.1 (authorizing sua sponte abstention).
McKenzie was a party to a child custody case in state court, and the instant case seeks to
invalidate the state court judgment. See ECF No. 1 at 1. McKenzie argues that the state court child
custody system is unconstitutional and does not meet basic due process requirements. Id. at 2.
The Court should abstain from exercising its jurisdiction to consider McKenzie’s claims
regarding the ongoing state case because the claims meet all three conditions for Younger
abstention. Continuation of this case would interfere with the state court case because McKenzie
explicitly requests that the Court void the related state court child custody decision. Id. at 1.
Moreover, enforcing state court judgments involve important state interests. See Pennzoil Co. v.
Texaco, Inc., 481 U.S. 1, 2, (1987) (“This Court’s precedents[] repeatedly have recognized that the
States have important interests in administering certain aspects of their judicial systems. These
include enforcing the orders and judgments of the States’ courts.”) Finally, the remedies that are
available to appeal the decision in state court afford McKenzie an adequate opportunity to litigate
his claims. See Middlesex Cty., 457 U.S. at 435. As a result, the Court should abstain from
exercising its jurisdiction under Younger.
Even though McKenzie asks this Court to provide relief in seemingly unrelated issues such
as invalidating the state court child custody system, the effect of these actions would effectively
rule on the validity of ongoing state court cases. And the right to seek extraordinary relief and to
appeal adverse judgments within the state court system provides a sufficient opportunity to litigate
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his claims. On the facts presented here, and because McKenzie has not shown any reason that
abstention would be inappropriate, the Court should abstain from entertaining his claims under
Younger and dismiss the claims without prejudice. See Foster v. City of El Paso, 308 F. App’x
811, at *1 (5th Cir. 2009) (dismissal under Younger abstention is without prejudice).
D. 	The Court should remand the case without leave to amend.
There exists a “well-established policy that the plaintiff be given every opportunity to state
a claim.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citing Hitt v. City of
Pasadena, 561 F.2d 606, 608 (5th Cir. 1977)). It is federal policy to decide cases on the merits
rather than technicalities, and thus when possible, the Fifth Circuit has recommended that dismissal
of suits for failure to state a claim be without prejudice. See Great Plains Tr. Co. v. Morgan Stanley
Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002); Hines v. Wainwright, 539 F.2d 433, 434
(5th Cir. 1976) (vacating and remanding a Rule 12(c) dismissal with instructions to the district
court to dismiss without, instead of with, prejudice).
As a result, a district court must generally afford a pro se plaintiff an opportunity to amend
before dismissing for failure to state a claim. Gregory v. McKennon, 430 F. App’x 306, 308 (5th
Cir. 2011) (per curiam) (citing Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998). However,
where the Court determines that a pro se plaintiff has had the opportunity to state his best case, the
Court may dismiss his complaint with prejudice. See, e.g., id.; Brewster v. Dretke, 587 F.3d 764,
767-68 (5th Cir. 2009) (citing Bazrowx, 136 F.3d at 1054) (affirming the district court’s dismissal
with prejudice where the pro se plaintiff’s response to a questionnaire showed he had pleaded his
best case); Cobb v. Simmons, 373 F. App’x 469, 470 (5th Cir. 2010) (affirming dismissal with
prejudice 	where 	pro 	se 	plaintiff’s 	questionnaire 	and 	objections 	to 	magistrate 	judge’s
recommendation showed he had pleaded his best case); Hunter v. Wilson, 3:16-cv-1289-L-BN,
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2016 WL 9781808, at *2-4 (N.D. Tex. Sept. 16, 2016), rec. adopted, 3:16-cv-1289-L, 2017 WL
4539431 (N.D. Tex. Oct. 11, 2017).
As noted above, McKenzie’s filings contain sweeping allegations of lawlessness, but they
do not articulate a coherent legal claim capable of satisfying Rule 12(b)(6). See Fed. R. Civ. P.
12(b)(6). Because he appears pro se, McKenzie’s pleadings are entitled to more lenient scrutiny
than pleadings drafted by lawyers. Estelle, 429 U.S. at 106 (quoting Haines, 404 U.S. at 520). But
no amount of liberal construction could manufacture a viable legal claim from McKenzie’s
pleadings, which are “clearly baseless, a category encompassing allegations that are fanciful,
fantastic, and delusional.” Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (internal citations and
quotations omitted).
The undersigned finds that McKenzie has pleaded his best case. Because any further
amendment would not be likely to state a viable claim against Defendants, any further amendment
would be futile. And amendment also would be futile because the Court should abstain from
considering the case under Younger. See Taubenfeld v. Hotels.com, 385 F. Supp. 587, 592 (N.D.
Tex. 2004) (holding that amendment is futile when a claim is “not actionable as a matter of law”).
Thus, Chief Judge O’Connor should remand the case to the state family law court and not grant
McKenzie an opportunity to amend his Notice of Removal.
McKenzie has now filed four similar actions requesting relief involving his state court child
custody case, in which he alleges various constitutional and statutory violations without a legal
basis for the Court to exercise subject matter jurisdiction over his case. Chief Judge O’Connor
should admonish McKenzie for such duplicative and meritless actions and warn him that the Court
may impose monetary sanctions or other filings sanctions on him for future filing of vexatious
litigation that is abusive and harassing in nature.
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IV. 	CONCLUSION
After completing judicial screening under 28 U.S.C. § 1915(e)(2), the undersigned
recommends that Chief Judge O’Connor REMAND the case to the 233rd Judicial District Court
of Tarrant County, Texas, because the Court lacks subject matter jurisdiction.
A copy of these findings, conclusions, and recommendation shall be served on all parties
in the manner provided by law. Any party who objects to any part of these findings, conclusions,
and recommendation must file specific written objections within fourteen days after being served
with a copy. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b)(1). To be specific, an objection
must identify the specific finding or recommendation to which the objection is made, state the
basis for the objection, and specify the place in the magistrate judge’s findings, conclusions, 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) (en banc), modified by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the
time to file objections to 14 days).
SIGNED on February 27, 2026.
______________________________________
Hal R. Ray, Jr.
UNITED STATES MAGISTRATE JUDGE
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