Calton v. U.S. Court of Appeals

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ALLEN FITZGERALD CALTON CIVIL ACTION

VERSUS NO. 22-3372

UNITED STATES COURT OF APPEALS SECTION: “G”

FOR THE FIFTH CIRCUIT et al.

ORDER AND REASONS

Before the Court are Plaintiff Allen Fitzgerald Calton’s (“Plaintiff”) objections to the

Report and Recommendation of the United States Magistrate Judge assigned to the case.1 Also

pending before the Court are Plaintiff’s Motion to Declare 5 U.S.C. §§ 702, 701 Unconstitutional2

and his Motion to Declare Federal Rule of Appellate Procedure 22 Unconstitutional.3 Plaintiff

filed this civil rights action against Supreme Court Justice Samuel Alito as Circuit Justice for the

Fifth Circuit, eighteen named Fifth Circuit Judges, and eleven John or Jane Doe Fifth Circuit

Judges.4 The Magistrate Judge recommended that the claims be dismissed because judges enjoy

absolute judicial immunity for all judicial acts.5 Considering the pleadings, the Report and

Recommendation, Plaintiff’s objections, the record, and the applicable law, the Court overrules

Plaintiff’s objections, adopts the Report and Recommendation, dismisses the official capacity

claims for lack of jurisdiction under the doctrine of sovereign immunity, dismisses the individual

1 Rec. Docs. 6, 8, 12.

2 Rec. Doc. 10.

3 Rec. Doc. 13.

4 Rec. Doc. 1.

5 Rec. Doc. 3.

capacity claims with prejudice under the doctrine of judicial immunity, and denies the pending

motions.

I. Background

Plaintiff is an inmate incarcerated in the John B. Connally Unit in Kenedy, Texas.6 He filed

this civil rights action against Supreme Court Justice Samuel Alito as Circuit Justice for the Fifth

Circuit, eighteen named Fifth Circuit Judges, and eleven John or Jane Doe Fifth Circuit Judges.7

Plaintiff alleges that the named defendants failed to review his 2021 federal habeas corpus

application.8 Instead, a panel of judges construed his petition as a request to file a second or

successive habeas petition under 28 U.S.C. § 2254 and denied him relief.9 Thereafter, Plaintiff

alleges that he began to forward his habeas petition to individual Circuit Judges “demanding that

an individual circuit judge exercise his or her original habeas jurisdiction over the petition.”10

Plaintiff claims that Justice Alito and the Fifth Circuit Judges have collectively adopted a

policy, practice, or custom to disallow any one circuit judge from exercising original jurisdiction

over a case and transfer a habeas proceeding to another court.11 Plaintiff argues that the judges

have deprived him of a “safety valve” or “safety hatch” proceeding.12 Plaintiff asserts that this is

a violation of his right to access to the courts, his right to a federal forum to hear his claims, and

6 See Rec. Doc. 1.

7 Id. at 1–3.

8 Id. at 30.

9 Id. at 31.

10 Id. at 32.

11 Id. at 35–36.

12 Id. at 36.

his right to be free from cruel and unusual punishment, and his right to due process and equal

protection.13

The Magistrate Judge recommended that the claims against the United States Fifth Circuit

Court of Appeals itself, as a federal entity or agency, be dismissed under the doctrine of sovereign

immunity.14 With respect to the individual capacity claims against the federal justice and judges,

the Magistrate Judge recommended that the claims be dismissed because judges enjoy absolute

judicial immunity for all judicial acts except those undertaken with a “clear absence of all

jurisdiction.”15

Thereafter, Plaintiff filed both an Amended Complaint and a Second Amended Complaint,

which reiterate the claims raised in the original Complaint.16

II. Objections to Report and Recommendation

Plaintiff objects to the Report and Recommendation.17 Plaintiff argues that the Magistrate

Judge erroneously assumed that Justice Alito and the Fifth Circuit Judges were sued in their

individual capacity.18 Instead, Plaintiff asserts Justice Alito and the Fifth Circuit Judges are sued

in both their individual and official capacities.19 Plaintiff also contends that sovereign immunity

has been waived by 5 U.S.C. § 702.20

13 Id.

14 Rec. Doc. 3 at 5 (citing Hooker v. Supreme Court United States, No. 04-3454, 2005 WL 8173979, at 3

(E.D. La. May 27, 2005)).

15 Id. (quoting Stump v. Sparkman, 435 U.S. 349, 356-57, 362 (1978)).

16 Rec. Docs. 7, 9.

17 Rec. Docs. 6, 8, 12.

18 Rec. Docs. 6 at 11.

19 Id. at 11–12.

20 Rec. Doc. 6 at 13; Rec. Doc. 8 at 8; Rec. Doc. 12 at 3.

Next, Plaintiff argues that the named defendants are not entitled to judicial immunity for

declaratory relief.21 Plaintiff also asserts that the district court has authority to issue a writ of

mandamus compelling the named defendants to comply with the Constitution.22 Finally, Plaintiff

argues that he has no other adequate remedy at law and will continue suffering irreparable injury

if equitable relief is not granted.23

Additionally, Plaintiff moves the Court to declare 5 U.S.C. §§ 702, 701 unconstitutional as

applied.24 Plaintiff argues that Section 702 is unconstitutional to the extent it applies to federal

agencies and not the Fifth Circuit Court of Appeals.25 Plaintiff also moves the Court to declare

Federal Rule of Appellate Procedure 22 unconstitutional as applied.26 Plaintiff argues that

Appellate Rule 22 is unconstitutional to the extent it prohibits a habeas petitioner from even filing

a petition with a Circuit Judge.27

III. Standard of Review

A. Review of the Magistrate Judge’s Report and Recommendation

When designated by a district court to do so, a United States Magistrate Judge may consider

prisoner petitions challenging the conditions of confinement and recommend a disposition to the

district court judge in accordance with the Magistrate Judge’s findings of fact and determinations

21 Rec. Doc. 6 at 15.

22 Rec. Doc. 6 at 24; Rec. Doc. 8 at 1; Rec. Doc. 12 at 7.

23 Rec. Doc. 6 at 30; Rec. Doc. 8 at 13; Rec. Doc. 12 at 9.

24 Rec. Doc. 10.

25 Id. at 2.

26 Rec. Doc. 13.

27 Id. at 3.

of law.28 A district judge “may accept, reject or modify the recommended disposition” of a

Magistrate Judge on a dispositive matter.29 The district judge must “determine de novo any part of

the [Report and Recommendation] that has been properly objected to.”30 However, a district

court’s review is limited to plain error of parts of the report not properly objected to.31

B. Standard for Frivolousness

A district court has broad discretion in determining the frivolous nature of a prisoner’s

complaint.32 A complaint is frivolous if it lacks an arguable basis in law or fact.33 A claim has no

arguable basis in law if “it is based on indisputable meritless legal theory.”34 It lacks a basis in

facts if “the facts alleged are clearly baseless.”35 If a court finds a prisoner’s claims are frivolous,

the court must dismiss the claims sua sponte.36

IV. Law and Analysis

The Magistrate Judge’s recommended that the claims against the United States Fifth

Circuit Court of Appeals itself be dismissed under the doctrine of sovereign immunity.37 The

Magistrate Judge treated Plaintiff’s claims against Justice Alito and the Fifth Circuit Judges as

28 28 U.S.C. § 636(b)(1)(B).

29 Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. §636(b)(1).

30 Fed. R. Civ. P. 72(b)(3).

31 See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996).

32 See Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998) (citations omitted).

33 Id.

34 Id.

35 Id.

36 See 28 U.S.C. § 1915A; 42 U.S.C. §1997e(c).

37 Rec. Doc. 3 at 4–5.

individual capacity claims, and did not consider any official capacity claims against them.38 In

opposition, Plaintiff argues that the Magistrate Judge erroneously assumed that Justice Alito and

the Circuit Judges were sued in their individual capacities.39 Instead, Plaintiff asserts Justice Alito

and the Circuit Judges are sued in both their individual and official capacities.40 Plaintiff also

contends that sovereign immunity should not apply to the Fifth Circuit, Justice Alito, or the Circuit

Judges because it has been waived by 5 U.S.C. § 702.41

A suit against a federal official in his or her official capacity, or a suit against the federal

agency itself, is construed as a suit against the United States of America.42 Sovereign immunity

extends to federal courts43 and federal judges acting in their official capacities.44 “In order to hale

the federal government into a court proceeding, a plaintiff must show that there has been a valid

waiver of sovereign immunity.”45 “‘A waiver of the Federal Government’s sovereign immunity

must be unequivocally expressed in statutory text . . . and will not be implied.’”46

38 Id. at 5.

39 Rec. Docs. 6 at 11.

40 Id. at 11–12.

41 Rec. Doc. 6 at 13; Rec. Doc. 8 at 8; Rec. Doc. 12 at 3.

42 Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 71 (2001); Hafer v. Melo, 502 U.S. 21, 25 (1991).

43 Trackwell v. U.S. Gov’t, 472 F.3d 1242, 1245 (10th Cir. 2007) (finding that the Supreme Court is entitled

to sovereign immunity).

44 Smith v. Scalia, 44 F. Supp. 3d 28, 38 (D.D.C. 2014), aff’d, No. 14-5180, 2015 WL 13710107 (D.C. Cir.

Jan. 14, 2015) (“Moreover, to the extent that Smith has sued the judges in their official capacity, these defendants are

part of the United States government for the purposes of sovereign immunity, as well.”).

45 Wagstaff v. U.S. Dep’t of Educ., 509 F.3d 661, 664 (5th Cir. 2007) (quoting Lewis v. Hunt, 492 F.3d 565,

570 (5th Cir. 2007)).

46 Id.

Plaintiff argues that 5 U.S.C. § 702 waives sovereign immunity.47 By the clear terms of the

statute, this argument is incorrect. Under Section 702, “[a] person suffering legal wrong because

of agency action . . . is entitled to judicial review thereof.”48 However, the courts of the United

States are excluded from the definition of an “agency.”49 Therefore, Section 702 does not waive

sovereign immunity for the courts of the United States.50 Accordingly, the Court dismisses any

claim against the United States Fifth Circuit Court of Appeals, Justice Alito, and the Fifth Circuit

Judges brought in their official capacities for lack of jurisdiction.51

With respect to his claims against Justice Alito and the Fifth Circuit Judges in their

individual capacities, the Magistrate Judge recommended that these claims be dismissed with

prejudice under the doctrine of judicial immunity.52 In objection, Plaintiff argues that they are not

entitled to judicial immunity for claims seeking declaratory relief.53 This argument is unavailing.

Judges enjoy absolute judicial immunity from suits for damages for all judicial acts except those

undertaken with a “clear absence of all jurisdiction.”54 In Pulliam v. Allen, a divided Supreme

Court held that judicial immunity did not protect a state judge from claims for injunctive relief in

47 Rec. Doc. 6 at 13; Rec. Doc. 8 at 8; Rec. Doc. 12 at 3.

48 5 U.S.C. § 702 (emphasis added).

49 5 U.S.C. § 701(b)(1)(B).

50 Plaintiff makes a last-ditch effort to argue that Section 702 is unconstitutional as applied. This argument is

unavailing as it ignores the clear separation of powers between the branches of government.

51 The Report and Recommendation mentions dismissal with prejudice. However, a dismissal based on

sovereign immunity is a dismissal for lack of jurisdiction. See Joiner v. United States, 955 F.3d 399, 403 (5th Cir.

2020) (“Sovereign immunity implicates a federal court’s subject matter jurisdiction.”).

52 Rec. Doc. 3 at 5–7.

53 Rec. Doc. 6 at 15.

54 Stump v. Sparkman, 435 U.S. 349, 356-57, 362 (1978).

a § 1983 action.55 However, appellate courts addressing this issue have held that Pulliam does not

apply to federal judges, and therefore, the doctrine of absolute judicial immunity serves to protect

federal judges from declaratory and injunctive relief.56 Those courts have reasoned that allowing

injunctive or declaratory relief against federal judges “would be to permit a ‘horizontal appeal’

from one district court to another or even ‘reverse review’ of a ruling of the court of appeals by a

district court.”57

Plaintiff alleges that the named defendants failed to review his 2021 federal habeas corpus

application.58 Instead, a panel of judges construed his petition as a request to file a second or

successive habeas petition under 28 U.S.C. § 2254 and denied him relief.59 Plaintiff’s claims

undoubtedly relate to judicial acts, and the Fifth Circuit panel did not act in the “clear absence of

all jurisdiction.”60 Therefore, Plaintiff has not pled any facts to overcome the doctrine of judicial

immunity.

Plaintiff also argues that this Court has authority to issue a writ of mandamus compelling

the named defendants to comply with the Constitution.61 The All Writs Act, 28 U.S.C. § 1651,

provides that “[t]he Supreme Court and all courts established by Act of Congress may issue all

writs necessary and appropriate in aid of their respective jurisdictions and agreeable to the usages

and principles of law.” Pursuant to 28 U.S.C. § 1361, “[t]he district courts shall have original

55 466 U.S. 522 (1984).

56 Bolin v. Story, 225 F.3d 1234 (11th Cir. 2000); Mullis v. United States Bankr. Court for the Dist. of Nev.,

828 F.2d 1385 (9th Cir. 1987).

57 Bolin, 225 F.3d at 1240 ((citing Mullis, 828 F.2d at 1392–93).

58 Rec. Doc. 1.

59 Id.

60 Stump , 435 U.S. at 362.

61 Rec. Docs. 6, 8, 12.

jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United

States or any agency thereof to perform a duty owed to the plaintiff.” Section 1361 is a source of

jurisdiction for district courts to exercise writs of mandamus to employees of the Executive

Branch.62 Appellate judges are appointed under Article III, the Judicial Branch. Therefore, this

District Court does not have authority to issue a mandamus to the United States Court of Appeals

for the Fifth Circuit.63

V. Conclusion

For the reasons stated above,

IT IS HEREBY ORDERED that Plaintiff’s objections are OVERRULED;

IT IS FURTHER ORDERED that the Court ADOPTS the Report and Recommendation;

IT IS FURTHER ORDERED that Plaintiff’s Motion to Declare 5 U.S.C. §§ 702, 701

Unconstitutional64 and Motion to Declare Federal Rule of Appellate Procedure 22

Unconstitutional65 are DENIED;

IT IS FURTHER ORDERED that Plaintiff Allen Fitzgerald Calton’s claims against the

United States Fifth Circuit Court of Appeals and his official capacity claims against Supreme Court

Justice Samuel Alito, Judge Edith Jones, Judge Owen, Judge Willet, Judge Ho, Judge Smith, Judge

62 See, e.g., Trackwell v. United States Government, 472 F.3d 1242, 1247 (10th Cir. 2007); Liberation News

Service v. Eastland, 426 F.2d 1379, 1384 (2d Cir. 1970) (“[I]n enacting [ ] § 1361 . . . Congress was thinking solely

in terms of the executive branch.”) (Friendly, J.); King v. Russell, 963 F.2d 1301, 1304 (9th Cir. 1992) (applying the

rationale of Eastland to bar § 1361 action against bankruptcy court officers).

63 Finally, Plaintiff argues that Federal Rule of Appellate Procedure 22 is unconstitutional. Appellate Rule

22 sets forth rules governing habeas corpus cases. Plaintiff argues that Appellate Rule 22 is unconstitutional to the

extent it prohibits a habeas petitioner from even filing a petition with a Circuit Judge. The requirements for filing a

successive habeas petition are set forth in 28 U.S.C. § 2255(h). Section 2255(h) has been declared constitutional by

the United States Supreme Court. See Felker v. Turpin, 518 U.S. 651, 664 (1996).

64 Rec. Doc. 10.

65 Rec. Doc. 13.

Haynes, Judge Stewart, Judge Oldhan, Judge Davis, Judge Southwick, Judge Elrod, Judge Jolly,

Judge Garza, Judge Weiner, Judge Graves, Judge Higginbotham, Judge Dennis, and Judge King,

are DISMISSED for lack of jurisdiction.

IT IS FURTHER ORDERED that Plaintiff Allen Fitzgerald Calton’s individual capacity

claims against Supreme Court Justice Samuel Alito, Judge Edith Jones, Judge Owen, Judge Willet,

Judge Ho, Judge Smith, Judge Haynes, Judge Stewart, Judge Oldhan, Judge Davis, Judge

Southwick, Judge Elrod, Judge Jolly, Judge Garza, Judge Weiner, Judge Graves, Judge

Higginbotham, Judge Dennis, and Judge King, are DISMISSED WITH PREJUDICE pursuant

to 28 U.S.C. § 1915A as frivolous and otherwise for failure to state a claim for which relief can be

granted.

NEW ORLEANS, LOUISIANA, this 6th day of March, 2023.

NANNETTE JOLIVETTE BROWN

CHIEF JUDGE

UNITED STATES DISTRICT COURT

10