# Wayne M Fournerat Esquire v. Deguisti

> District Court, E.D. Oklahoma · February 14, 2025

URL: https://www.frixlaw.com/law-library/cases/10801558

## Case

- **Court:** District Court, E.D. Oklahoma
- **Decided:** February 14, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA

WAYNE M. FOURNERAT, )
)
Plaintiff, )
)
v. ) Case No. CIV-25-39-R
)
TIMOTHY DEGIUSTI and )
PATRICK KEANEY, )
)
Defendants. )

ORDER

This matter comes before the Court for review of the Report and Recommendation
[Doc. No. 15] issued by United States Magistrate Judge Chris M. Stephens pursuant to 28
U.S.C. § 636(b)(1). Judge Stephens recommends that Plaintiff’s Application to Proceed in
District Court Without Prepaying Fees or Costs [Doc. 4] be denied and that this action be
dismissed if Plaintiff does not pay the full filing fee within 21 days of an order adopting
the Report and Recommendation. Plaintiff did not file an objection and has therefore
waived further review of the issues. However, upon sua sponte review of Plaintiff’s
Complaint, the Court finds that the claims asserted against Defendant DeGiusti should be
dismissed and this action transferred to the United States District Court of the Eastern
District of Oklahoma.
District courts have the inherent power to manage their dockets. See United States
v. Schneider, 594 F.3d 1219, 1226 (10th Cir.2010) (citing Link v. Wabash R.R. Co., 370
U.S. 626, 630–31 (1962); United States v. Nicholson, 983 F.2d 983, 988 (10th Cir.1993)).
This power includes the ability to “dismiss a frivolous or malicious action ... even in the
absence of [a] statutory provision.” Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490
U.S. 296, 306–07 (1989) (quotation marks omitted). Further, “[a] district court may dismiss
a case sua sponte under Federal Rule Civil Procedure 12(b) when it is patently obvious that

the plaintiff could not prevail on the facts alleged.” Andrews v. Heaton, 483 F.3d 1070,
1074 n.2 (10th Cir. 2007) (quotation omitted).
In considering whether to dismiss a claim sua sponte for failure to state a claim, the
complaint’s well-pleaded factual allegations are accepted as true and viewed in the light
most favorable to the plaintiff. Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991).

Additionally, where, as here, a litigant is proceeding pro se, the “pleadings are to be
construed liberally.” Id. at 110 However, “[t]he broad reading of the plaintiff’s complaint
does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized
legal claim could be based.” Id.
Plaintiff alleges that his constitutional rights were violated when he was wrongfully

“disenfranchised” from the practice of law.1 His Complaint indicates that Judge DeGiusti,
the Chief Judge of the United States District Court for the Western District of Oklahoma,
sent Plaintiff a letter on November 24, 2021 indicating that his membership in the bar of
the Western District of Oklahoma was subject to termination because he was no longer a
member of the Oklahoma bar. The letter further indicated that if Plaintiff did not present

evidence showing that he met the requirements for admission, an order of disbarment

1 Plaintiff raised this same issue in a petition for a writ of mandamus, which was denied by
the Tenth Circuit. See In re Wayne M. Fournerat, Esq., No. 24-6249 (10th Cir. Jan. 3,
2025).
would issue. Plaintiff also alleges that Defendant Keaney, the Court Clerk of the Eastern
District of Oklahoma, “coerced” Plaintiff into abandoning his law practice by adding a
special condition that an attorney must have good standing with the state bar to practice in

the Eastern District. Based on these allegations, he asserts Bivens2 claims against Judge
DeGiusti and Mr. Keaney for conspiracy to deprive Plaintiff of his due process rights in
violation of the Fifth Amendment, conspiracy to deprive Plaintiff of his professional
license without just compensation in violation of the Fifth Amendment, and “detrimental
reliance.” However, for several reasons, Plaintiff’s allegations fail to state a claim against

Judge DeGiusti.
First, the claims against Judge DeGiusti are subject to dismissal because judges are
entitled to absolute judicial immunity for actions taken in their judicial capacity. Stump v.
Sparkman, 435 U.S. 349, 355-357 (1978). Judicial immunity is broad and “is not overcome
by allegations of bad faith or malice.” Mireles v. Waco, 502 U.S. 9, 11 (1991). Rather,

“[o]nly accusations that a judge was not acting in his judicial capacity or that he acted in
the complete absence of all jurisdiction can overcome absolute immunity.” Guttman v.
Khalsa, 446 F.3d 1027, 1034 (10th Cir. 2006). To determine whether an action was taken
in a judicial capacity, courts look to “the nature of the act itself, i. e., whether it is a function
normally performed by a judge, and to the expectations of the parties, i.e., whether they

2 Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971) recognized a judicially-
implied private right of action for damages against federal officials that violate certain
constitutional rights. However, “[t]he Constitution does not ordinarily provide a private
right of action for constitutional violations by federal officials.” Big Cats of Serenity
Springs, Inc. v. Rhodes, 843 F.3d 853, 859 (10th Cir. 2016). The Court assumes, without
deciding, that a Bivens action may be implied in the circumstances alleged here.
dealt with the judge in his judicial capacity.” Stump, 435 U.S. at 362. Importantly, “an act
may be administrative or ministerial for some purposes and still be a ‘judicial’ act for
purposes of immunity from liability for damages.” Martinez v. Winner, 771 F.2d 424, 434

(10th Cir.1985), judgment vacated as moot, 800 F.2d 230 (1986).
Plaintiff’s claims against Judge DeGiusti are premised on the letter informing him
that his membership in the bar of the Western District of Oklahoma would be terminated
if he did not provide evidence that he met certain requirements. This was a judicial act, and
it was not performed in the clear absence of all jurisdiction. A “federal district court has a

right to establish its own standards for admission to practice[,]” Mattox v. Disciplinary
Panel of U.S. Dist. Ct. for Dist. of Colorado, 758 F.2d 1362, 1364 (10th Cir. 1985), and
the local rules for the Western District of Oklahoma authorize the court to disbar an
attorney that has been disbarred by the state supreme court. LCvR 83.6. Although sending
a letter of disbarment is not directly associated with an ongoing lawsuit, applying local

court rules regarding the admission and disbarment of attorneys is a normal judicial
function and one in which the involved attorney would expect to be dealing with the judge
in his judicial capacity. See Forrester v. White, 484 U.S. 219, 227 (1988) (“Similarly,
acting to disbar an attorney as a sanction for contempt of court, by invoking a power
‘possessed by all courts which have authority to admit attorneys to practice,’ does not

become less judicial by virtue of an allegation of malice or corruption of motive.”)
(quotation omitted); Stein v. Disciplinary Bd. of Supreme Ct. of NM, 520 F.3d 1183, 1195
(10th Cir. 2008) (“There can be no question that the state supreme court’s allegedly
unconstitutional acts—the issuance of the show-cause order and the remand to the
Disciplinary Board—were taken in a judicial capacity.”); Hoedel v. Kirk, 480 F. Supp. 3d
1218, 1227 (D. Kan. 2020) (“Even though making a complaint is not a common judicial or
quasi-judicial action, it certainly relates to a normal judicial function, including the

preservation of the integrity of the judicial system.”); Van Deelen v. Fairchild, No. CIV.A.
05-2017, 2005 WL 3263885, at *5 (D. Kan. Dec. 1, 2005) (“Absolute judicial immunity
extends beyond a judge’s actions in a particular case.”). Accordingly, the Court finds that
Judge DeGiusti is entitled to absolute immunity.
Further, even if Judge DeGiusti is not entitled to absolute judicial immunity, he is

entitled to qualified immunity. “Public officials enjoy qualified immunity in civil actions
that are brought against them in their individual capacities and that arise out of the
performance of their duties.” Rhodes, 843 F.3d at 864 (10th Cir. 2016) (quotation). To
overcome the presumption of qualified immunity, “a plaintiff must show that: (1) the public
official violated the plaintiff’s constitutional rights; and (2) these rights were clearly

established at the time of the alleged violation.” Id. Plaintiff’s claims fail at both steps.
Plaintiff alleges that disbarring him from the Western District of Oklahoma violated
his procedural due process rights and amounted to an unlawful taking without just
compensation in violation of the Fifth Amendment. However, even broadly construing his
claim, Plaintiff’s disbarment does not give rise to a viable claim under the Fifth

Amendment’s Takings Clause. See Casillas v. Beach, No. CIV.A08CV02327WYDCBS,
2010 WL 1348397, at *5 (D. Colo. Mar. 31, 2010) (“Licenses are traditionally treated as
not protected by the Takings Clause because they are created by the government, are
revokable, and are not transferable.”). As to the procedural due process claim, Plaintiff’s
allegations make clear that he was given notice and an opportunity to respond, which is all
the due process clause requires in these circumstances. See Comm. on the Conduct of Att'ys
v. Oliver, 510 F.3d 1219, 1223 (10th Cir. 2007) (“An attorney subject to sanctions is

entitled to receive reasonable notice of the allegations against him and an opportunity to
respond.”). Thus, Plaintiff has not alleged any violation of his constitutional rights, and
certainly not a clearly established constitutional right.3
Apart from these issues, Plaintiff’s allegations that Judge DeGiusti was involved in
a conspiracy to deprive Plaintiff of his constitutional rights are too conclusory to state a

claim. “To have an actionable Bivens conspiracy claim, [the plaintiff] must establish (1)
the existence of an express or implied agreement among the defendant officers to deprive
him of his constitutional rights, and (2) an actual deprivation of those rights resulting from
that agreement.” Ting v. United States, 927 F.2d 1504, 1512 (9th Cir. 1991). In addition to
his failure to allege an actual deprivation of a constitutional right, Plaintiff has not included

factual allegations showing that Defendants had an express or implied agreement or
otherwise acted in concert.

3 For similar reasons, Plaintiff’s common law “detrimental reliance” claim fails. This claim
is premised on Judge DeGiusti’s alleged breach of a duty to provide Plaintiff a hearing
before disbarring him. But as the Tenth Circuit recognized, “the local rules do not require
a hearing in these circumstances.” In re Wayne M. Fournerat, Esq., No. 24-6249 (10th Cir.
Jan. 3, 2025) (citing LCvR83.6(d)). Further, any reliance on maintaining his admission to
the bar in the Western District of Oklahoma would not have been reasonable in light of the
local court rule permitting disbarment when, as alleged here, the attorney has been
suspended or disbarred by the state supreme court. LCvR83.6(a).
Last, the Court notes that Plaintiff’s claims appear to be barred by the statute of
limitations.4 A Bivens action for constitutional violations committed by federal officials “is
subject to the statute of limitations of the general personal injury statute in the state where

the action arose.” Indus. Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963,
968 (10th Cir. 1994). “In Oklahoma, that statute of limitations is two years.” Wilkins v.
Fries, 216 F.3d 1089 (10th Cir. 2000) (unpublished) (citing Okla. Stat. tit. 12 § 95(3)).5
Federal law controls when a Bivens claim accrued and, under federal law, “[t]he statute of
limitations begins to run when the plaintiff knows or has reason to know of the existence

and cause of the injury which is the basis of his action.” Indus. Constructors, 15 F.3d at
969. Here, Plaintiff knew of the existence and cause of his alleged injuries when he
received the letter, which is dated November 24, 2021. However, Plaintiff did not file this
lawsuit until November 27, 2024, well after the two-year statute of limitations expired, and
his Complaint does not include any allegations plausibly suggesting a basis for tolling the

limitations period.

4 A court may dismiss a claim sua sponte on the basis of an affirmative defense, such as
the statute of limitations or venue, when the defense is “obvious from the face of the
complaint” and “[n]o further factual record [i]s required to be developed.” Yellen v.
Cooper, 828 F.2d 1471, 1476 (10th Cir. 1987). See also Trujillo v. Williams, 465 F.3d
1210, 1217 (10th Cir. 2006)

5 Plaintiff initiated this action in the United States District Court for the Northern District
of Texas and, after finding that venue was improper, the action was transferred to this
Court. To the extent Plaintiff might contend that Texas law supplies the applicable statute
of limitations, “the Texas statute of limitations for personal injury claims is two years.”
Garcia v. Int'l Elevator Co., 358 F.3d 777, 780 (10th Cir. 2004) (citing Tex. Civ. Prac. &
Rem. § 16.003(a)).
Because Judge DeGiusti is entitled to immunity, and there are no plausible claims
stated against him, venue in this district is improper. The proper venue for this action is
dictated by 28 U.S.C. § 1391(b), which provides that venue lies in the “judicial district in

which any defendant resides” or the “judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred.” The only remaining claims are those
asserted against Mr. Keaney. Plaintiff’s allegations indicate that Mr. Keaney is located in
the Eastern District of Oklahoma and that the events giving rise to the claims against Mr.
Keaney all occurred in that district. Accordingly, venue is proper in that district.

“A court may sua sponte cure jurisdictional and venue defects by transferring a suit
under the federal transfer statutes, 28 U.S.C. §§ 1406(a) and 1631, when it is in the interest
of justice.” Trujillo, 465 F.3d at 1222. Here, the Court finds it would be in the interest of
justice to transfer, rather than dismiss, the action.
Accordingly, the Report and Recommendation [Doc. No. 15] is denied as moot, all

claims against Judge DeGiusti are DISMISSED, and this action is TRANSFERRED to the
United States District Court for the Eastern District of Oklahoma.
IT IS SO ORDERED this 14th day of February, 2025.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10801558. Public record. Not legal advice.