Weissbrod v. Broward County Board of Supervisors

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 21-CV-60170-RAR

AMY WEISSBROD,

Plaintiff,

v.

BROWARD COUNTY

BOARD OF SUPERVISORS, et al.,

Defendants.

________________________________/

ORDER DENYING EMERGENCY MOTION AND DISMISSING PRO SE COMPLAINT

THIS CAUSE comes before the Court upon Plaintiff Amy Weissbrod’s Emergency

Motion to Terminate Two Illegally Appointed Guardians and Dismiss the Non-Final Broward

ETG Proceeding with Prejudice as of June 1, 2020 [ECF No. 4] (“Emergency Motion”), filed on

January 27, 2021. The Court having carefully reviewed the Emergency Motion and the record,

and being otherwise fully advised, it is hereby

ORDERED AND ADJUDGED that Plaintiff’s Emergency Motion [ECF No. 4] is

DENIED and Plaintiff’s Complaint is DISMISSED for the reasons set forth herein.

ANALYSIS

Plaintiff filed her Complaint [ECF No. 1] on January 25, 2021, alleging several claims

under 28 U.S.C. § 455 and 42 U.S.C. §§ 1983, 1985, and 1988 against various parties involved in

a guardianship proceeding in Florida state court that determined the guardianship rights of

Plaintiff’s mother. The Complaint is difficult to follow, but it alleges generally that the judges,

county officials, and lawyers involved in the guardianship proceeding committed various

violations of her statutory and constitutional rights. Subsequently, on January 27, 2021, Plaintiff

filed the instant Emergency Motion seeking the dismissal of the guardianship proceeding with

prejudice retroactive to June 1, 2021, as well as the termination of her mother’s court-appointed

guardians. In other words, Plaintiff asks this Court to overturn the guardianship decision of a state

court.

Because the Emergency Motion seeks federal court review of a state court judgment, the

Rooker–Feldman doctrine precludes the exercise of federal jurisdiction. “The Rooker–Feldman

doctrine is a limitation on the jurisdiction of the inferior federal courts. This limitation is intended

to prevent the federal courts from hearing what are essentially appeals from state court decisions,

which may only be heard by the United States Supreme Court.” Target Media Partners v.

Specialty Mktg. Corp., 881 F.3d 1279, 1284 (11th Cir. 2018). Pursuant to the doctrine, federal

district courts “have no authority to review the final judgments of state courts.” Siegel v. LePore,

234 F.3d 1163, 1172 (11th Cir. 2000) (en banc). “Significantly, even if the state court judgment

was unconstitutional, Rooker-Feldman prevents a federal district court from correcting the error.”

Semexant v. HSBC Bank USA, No. 20-cv-60138, 2020 WL 3581480, at *1 (S.D. Fla. June 24,

2020) (citing D.C. Ct. of Appeals v. Feldman, 460 U.S. 462, 476-82 (1983)).

Multiple courts have thus held that the Rooker-Feldman doctrine bars claims alleging

injuries stemming from state court guardianship proceedings. See, e.g., Woodhull v. Fierle, 554

F. App’x 785, 786-87 (11th Cir. 2013); Mann v. Boatright, 477 F.3d 1140, 1147 (10th Cir. 2007);

Carr v. Spencer, 13 F. App’x 296, 297-98 (6th Cir. 2001); Sarhan v. Rothenberg, No. 07-CIV-

22818, 2008 WL 2474645, at *11-13 (S.D. Fla. June 17, 2008). So too here. Although Plaintiff

refers to the state court guardianship order as a “non-final interlocutory proceeding,” a review of

the docket of the Florida Fourth District Court of Appeal reveals that Plaintiff filed an appeal of

the state court’s decision and the state court decision was affirmed (and Plaintiff’s appeal deemed

frivolous) just before the Emergency Motion was filed here. See Order Denying Petition for Writ,

Amy R. Weissbrod Gurvey v. In re: Guardianship of Laura A. Weissbrod, Case No. 4D20-2176

(Fla. 4th DCA Jan. 27, 2021); see also Sarhan, 2008 WL 2474645, at *12 (taking judicial notice

of the docket of the Florida Third District Court of Appeal to determine that the state court order

at issue was final for purposes of the Rooker-Feldman doctrine). Thus, the guardianship decision

at issue was finally adjudicated by the Florida courts.

However, even if Plaintiff were correct that the guardianship decision at issue was a “non-

final interlocutory” order, this Court would still be powerless to grant the relief sought by Plaintiff.

“The Rooker–Feldman doctrine . . . does not require a final judgment before giving preclusive

effect to a state court order. Rooker–Feldman also precludes federal courts from reviewing non-

final and interlocutory state judgments.” Bosdorf v. Beach, 79 F. Supp. 2d 1337, 1340 (S.D. Fla.

1999) (internal citation omitted); see also Parker Law Firm v. Travelers Indem. Co., --- F.3d ----,

2021 WL 96189, at *3 (8th Cir. 2021) (“This court, like other circuits, has concluded that Rooker-

Feldman applies to state court judgments that are not yet final.”); Pieper v. Am. Arb. Ass’n, Inc.,

336 F.3d 458, 462 (6th Cir. 2003) (“We . . . join with the majority of circuits that have concluded

that the Rooker–Feldman doctrine does apply to interlocutory orders and to orders of lower state

courts.”).

“The crucial question in determining the applicability of Rooker–Feldman is whether the

relief requested of the federal court would effectively reverse or void the state court’s ruling.”

Bosdorf, 79 F. Supp. 2d at 1339. That is precisely what Plaintiff asks this Court to do in her

Emergency Motion: reverse or void the guardianship decisions of the Florida state court.

Therefore, pursuant to the Rooker-Feldman doctrine, this Court lacks subject matter jurisdiction

over Plaintiff’s Emergency Motion, and it must be denied.

Plaintiff’s Complaint—which is similarly centered on alleged wrongdoing in the state court

guardianship proceeding—must also be dismissed. Under normal circumstances, district courts

are prohibited from dismissing a complaint sua sponte before the defendants have responded and

without notice to the plaintiff. Davken, Inc. v. City of Daytona Beach Shores, 159 F. App’x 970,

973 (11th Cir. 2005) (citing Jefferson Fourteenth Assocs. v. Wometco de Puerto Rico, Inc., 695

F.2d 524 (11th Cir. 1983)). However, “[t]here is an exception to [the] general rule against

dismissal without notice if the complaint is patently frivolous.” Tazoe v. Airbus S.A.S., 631 F.3d

1321, 1336 (11th Cir. 2011); see also Cuyler v. Aurora Loan Serv., LLC, No. 12–11824–DD, 2012

WL 10488184, at *2 (11th Cir. 2012) (unpublished) (“a district court has the inherent authority to

dismiss a patently frivolous complaint”). Dismissing these kinds of suits “spontaneously . . .

save[s] everyone time and legal expense.” Hoskins v. Poelstra, 320 F.3d 761, 763 (7th Cir. 2003).

A complaint is frivolous “where it lacks an arguable basis either in law or in fact.” Neitzke v.

Williams, 490 U.S. 319, 325 (1989). As the Court explained in Guthrie v. US Gov’t,

Most instances in which the court’s power to dismiss a complaint sua sponte

occur in the context of in forma pauperis actions pursuant to 28 U.S.C. §

1915(e)(2), as that statute specifically grants district courts the power to

dismiss “frivolous or malicious” suits on their own initiative. Nonetheless,

the Eleventh Circuit has affirmed dismissal of frivolous cases even where,

as here, the plaintiff paid the filing fee. See Wilkerson v. Georgia, 618 F.

App’x 610, 611 (11th Cir. 2015). The Court in Wilkerson also strongly

suggested that, if directly confronted with the question, the Eleventh Circuit

would confirm the district court’s power in this regard. Id. at 611, n.1

(citing Jefferson, 695 F.2d at 526 n.3). Other circuits have expressly

decided so. See, e.g., Fitzgerald v. First E. Seventh St. Tenants Corp., 221

F.3d 362, 362 (2d Cir. 2000); Hoskins, 320 F.3d at 763; Smith v. Kagan,

616 F. App’x 90 (4th Cir. 2015); Williams v. Madden, 9 F. App’x 996, 997,

n.1 (10th Cir. 2001). The Supreme Court has noted in dicta that, even

without § 1915, “there is little doubt [district courts] would have power to

[dismiss frivolous suits].” Mallard v. U.S. Dist. Court for S. Dist. of Iowa,

490 U.S. 296, 307–08 (1989).

No. 17–CIV-80390, 2017 WL 5479877, at *2 n.2 (S.D. Fla. Mar. 31, 2017).

Plaintiff’s Complaint is due to be dismissed sua sponte as frivolous for many reasons. First,

in her Complaint, Plaintiff seeks principally the same relief advanced in her Emergency Motion: a

voiding of the state court orders in the guardianship proceeding. See, e.g., Compl. at 31 (“The

Court must grant mandamus relief by writ of prohibition under 28 U.S.C. [§] 1651(a) . . . to dismiss

the case with prejudice retroactive to June 1, disqualify two judges from presiding without

jurisdiction and vacate all orders, terminate guardians and reverse sequestration orders.”); id. (“The

Court must restore Laura’s voting rights, driving privileges in FL and return all sequestered assets

and determine that no further orders may be entered in the lawsuit.”). As explained above, the

Court lacks subject matter jurisdiction over such claims for relief. “[A] pro se litigant in

[Plaintiff]’s position cannot obtain a do-over in federal court against the judges and interested

persons in a state court guardianship proceeding that has been finally adjudicated.” Sarhan, 2008

WL 2474645, at *12 (citation omitted).

Second, Plaintiff seeks the disqualification of the judges involved in the state court

guardianship proceeding under 28 U.S.C. § 455. Compl. at 8. Section 455(a) provides in relevant

part that “[a]ny justice, judge or magistrate of the United States shall disqualify himself in any

proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a)

(emphasis added). “As the statutory language makes clear, this provision applies solely to

members of the federal judiciary.” United States v. Int’l Broth. of Teamsters, 931 F. Supp. 1074,

1102 (S.D.N.Y. 1996) (emphasis added).

Third, to the extent Plaintiff seeks damages from the state court judges and the court staff,

such claims are barred by judicial immunity. The doctrine of judicial immunity protects judges

and their staff from damages for acts taken while they are acting in their judicial capacity. Bolin

v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000); Jallali v. Florida, 404 F. App’x 455, 456 (11th

Cir. 2010). Judicial immunity “applies even when the judge’s acts are in error, malicious, or were

in excess of his or her jurisdiction.” Bolin, 225 F.3d at 1239. The immunity fails to apply only

when a judge acts “in clear absence of all jurisdiction.” Id. Here, the allegations that form

Plaintiff’s Complaint relate directly to the guardianship proceeding pending before the Defendant

judges, whose order was summarily affirmed by the Florida Fourth District Court of Appeal. See

Drees v. Ferguson, 396 F. App’x 658, 658-59 (11th Cir. 2010) (finding that judicial immunity

applied because “the acts about which Plaintiff complained were related directly to the

adjudication of her custody case.”). Plaintiff has presented nothing to support the proposition that

the Defendant judges acted outside of their judicial authority or in clear absence of jurisdiction,

meaning judicial immunity is a clear bar to these claims and dismissal is proper. See Force v.

Kolhage, 198 F. App’x 827, 829 (11th Cir. 2006); Schneider v. Silver, No: 8:17–cv–219–T–

36MAP, 2017 WL 1856915, at *2 (M.D. Fla. May 9, 2017).

Finally, when an attorney appears pro se, the Court does not provide the attorney’s

pleadings with the liberal construction customarily reserved for other pro se litigants. See Drees,

396 F. App’x at 657 n.3. Here, Plaintiff is a lawyer, although a review of the New York State

Court System’s database shows that Plaintiff is currently suspended from practicing in New York.1

Nevertheless, because of Plaintiff’s legal training, “the Court need not give [her] the benefits of

liberal construction to which an untrained pro se litigant is entitled.” Razor v. Florida, No. 09–

23765–CV, 2011 WL 1584205, at *2 (S.D. Fla. Apr. 7, 2011) (declining to grant a suspended

attorney, appearing pro se, a liberal construction of his complaint), report and recommendation

adopted, 2011 WL 1584371 (S.D. Fla. Apr. 26, 2011); see also Cresci v. Gyess, Civ. No. 17-2342,

1 See Attorney Detail Report, NEW YORK STATE UNIFIED COURT SYSTEM,

https://iapps.courts.state.ny.us/attorneyservices/search?4&tab=attorney (last visited January 31, 2021).

Plaintiff was admitted to the New York Bar under the name “Amy R. Gurvey,” a name that also appears in

Plaintiff’s Emergency Motion.

2018 WL 4961466, at *1 n.1 (D. N.J. Oct. 15, 2018) (same); Church v. City of Cleveland, No.

1:10–CV–1399, 2010 WL 4883433 at *2 (N.D. Ohio Oct. 26, 2010) (same).

In addition, the Eleventh Circuit has recognized that a court may consider a plaintiff’s

history of filing unmeritorious litigation when determining whether a complaint is frivolous. See

Bilal v. Driver, 251 F.3d 1346, 1350 (11th Cir. 2001). In 2012, New York’s Appellate Division,

First Department, affirmed a determination by the Departmental Disciplinary Committee for the

First Department and found that Plaintiff should be suspended from the practice of law based on

her “pursuit of frivolous and vexatious litigation, as well as her misrepresentations to the court.”

In re Gurvey, 958 N.Y.S.2d 5, 7 (N.Y. App. Div. 1st Dep’t 2012); see also Gurvey v. Cowan,

Liebowitz, & Latman, P.C., No. 06 Civ. 1202, 2015 WL 5459655, at *9-10 (S.D.N.Y. July 24,

2015) (detailing Plaintiff’s “history of misconduct and frivolous litigation”), report and

recommendation adopted in relevant part, 2015 WL 5472893 (S.D.N.Y. Sept. 17, 2015). Indeed,

Plaintiff has previously asserted claims in federal court alleging injuries caused by a state court

judgment and had such claims sua sponte dismissed as frivolous because they were—like the

claims here—barred by the Rooker-Feldman doctrine. See Weissbrod v. Gonzalez, 576 F. App’x

18 (2d Cir. 2014).

After carefully reviewing the Complaint, the Court believes that it is consistent with

Plaintiff’s previous frivolous filings in other courts. Although the Complaint is scattered with

vague allegations that arguably could give rise to claims not barred by judicial immunity or the

Rooker-Feldman doctrine—such as claims for legal malpractice or unconstitutional policies under

Monell2—the Court is unable to discern the nature of those claims. Federal Rule of Civil Procedure

8(a)(2) requires that a pleading contain a “short and plain statement of the claim” showing that the

2 Monell v. Dep't of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

pleader is entitled to relief. FED. R. CIV. P. 8(a)(2). Thereunder, “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). “To state a plausible claim for relief, the plaintiff[] must plead ‘factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.’” Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1268 (11th Cir. 2009) (alteration added)

(quoting Iqbal, 556 U.S. at 678).

Despite Plaintiff being a trained attorney, her Complaint fails to meet the foregoing

standards. When not seeking relief clearly barred by Rooker-Feldman or judicial immunity,

Plaintiff alleges that she was wronged by her attorneys and county policymakers, but she does not

offer a concrete legal theory nor make clear what relief is being sought against which defendants

and why. For example, Plaintiff seeks “Monell damages against Broward [C]ounty policymakers

for promulgating unconstitutional protocols that allowed the repugnant atrocities against [her

mother]’s constitutional rights by court officers,” Compl. at 3, but nowhere in the Complaint does

Plaintiff state what those protocols are, why they are unconstitutional, or how she was harmed by

them. Rather than “a short and plain statement of the claim showing that the pleader is entitled to

relief,” FED. R. CIV. P. 8(a)(1)-(2), Plaintiff’s Complaint is a scattershot assortment of legal

conclusions and allegations that fail to evince any claims for relief that are plausible on their face.

See Membreno v. Fu Wei, No. 215CV06322ODWRAOX, 2015 WL 5567763, at *1 (C.D. Cal.

Sept. 22, 2015) (“A court may sua sponte dismiss a complaint for failure to comply with Rule 8

when ‘the complaint is so verbose, confused and redundant that its true substance, if any, is well

disguised.’”) (quoting Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969)). Apart

from those claims that are clearly barred, the Court simply cannot discern the nature of the

remainder of Plaintiff’s claims from the allegations in the Complaint, and thus Plaintiff's

Complaint must be dismissed.

CONCLUSION

For the reasons stated herein, it is hereby

ORDERED AND ADJUDGED that Plaintiff's Emergency Motion to Terminate Two

Illegally Appointed Guardians and Dismiss the Non-Final Broward ETG Proceeding with

Prejudice as of June 1, 2020 [ECF No. 4] is DENIED. In addition, Plaintiff's Complaint [ECF

No. 1] is DISMISSED.’ All pending motions are DENIED as moot. The Clerk is instructed to

CLOSE this case.

DONE AND ORDERED in Fort Lauderdale, Florida, this 31st day of January, 2021.

ln A. RUIZ II

UNITED STATES DISTRICT JUDGE

* Ordinarily, this Court would grant a pro se litigant at least one opportunity to amend her complaint before

dismissal. But here, the Court finds that an amendment would be futile because the Complaint is frivolous

and does not even approximate an actionable claim. See Cornelius v. Bank of Am., NA, 585 F. App’x 996,

1000 (11th Cir. 2014) (‘While a pro se litigant generally must be given at least one opportunity to amend

his complaint, a district judge need not allow an amendment where amendment would be futile.”); see also

Henry v. Fernandez-Rundle, 773 F. App’x 596, 597 (11th Cir. 2019) (affirming sua sponte dismissal

without leave to amend of a frivolous complaint). Accordingly, the Court dismisses Plaintiff's Complaint

as frivolous.

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