EVANS MICKENS v. CIRCUIT COURT SECOND JUDICIAL CIRCUIT

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

GLORIA EVANS MICKENS, et al.,

Plaintiffs,

v. Case No. 4:25-cv-102-AW/MJF

CIRCUIT COURT SECOND

JUDICIAL CIRCUIT, et al.,

Defendants.

/

FIRST REPORT AND RECOMMENDATION

In this civil action, the three Plaintiffs assert claims based on: (1)

the death of Bobby Evans; (2) the probate proceeding for the Estate of

Bobby Evans; and (3) a wrongful death suit brought in a Florida court.

Plaintiffs are suing twenty defendants, including two Florida courts and

three Florida judges. These five Defendants filed motions to dismiss.

Docs. 16, 17, 21. Plaintiffs oppose the motions. Docs. 27, 28, 29. Regarding

these five Defendants, Plaintiffs fail to state a claim on which relief can

be granted. The District Court, therefore, should grant the five

Defendants’ motions to dismiss.

I. BACKGROUND

A. The Undersigned Ordered Plaintiffs to Correct Deficiencies

On March 5, 2025, Plaintiffs commenced this civil action with a

complaint that was a quintessential “shotgun pleading.” Doc. 1. Because

Plaintiffs’ initial complaint suffered from obvious deficiencies, the

undersigned struck the complaint and ordered Plaintiffs to file an

amended complaint. Doc. 4. The undersigned provided Plaintiffs with

specific instructions to ensure that Plaintiffs corrected the many

deficiencies of their initial complaint, all to no avail. Id. at 9–10.

B. Plaintiffs’ Amended Complaint

On March 24, 2025, Plaintiffs filed their amended complaint. Doc.

6. Plaintiffs assert claims against twenty Defendants, including:

(1) the Florida Second Judicial Circuit;

(2) Florida Circuit Court Judge David Frank in both his individual

and official capacities;1

(3) Florida Circuit Court Judge Frank Allman in both his individual

and official capacities;

1 Although Judge David Frank shares the undersigned’s surname, the

undersigned is not related to this Defendant.

(4) the Florida First District Court of Appeal; and

(5) Florida First District Court of Appeal Judge Timothy D.

Osterhaus in both his individual and official capacities.

Plaintiffs assert claims under 42 U.S.C. §§ 1981, 1983, and 1985;

Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e et

seq.; and 18 U.S.C. §§ 241 and 242. Doc. 6 at 7, 11–15.

Plaintiffs allege that in November 2021, Bobby Evans was struck

by a vehicle, which resulted in his death. Doc. 6 at 7. Presumably

Plaintiffs have some relation to Bobby Evans, but they never specify this

in their amended complaint.

In January 2022—in probate Case Number 21000506CPA, in the

Second Judicial Circuit in and for Gadsden County, Florida—Judge

David Frank appointed Plaintiff Otis Evans to be the personal

representative of the estate of Bobby Evans. Id. at 8. During the

pendency of the probate proceeding, Judge Frank entered an order of

discharge. Id. at 10.

On July 23, 2023, Plaintiffs filed a lawsuit—Case Number

23000601CA—in the Second Judicial Circuit in and for Gadsden County.

Judge Frank was the assigned Judge, and in November 2023, Judge

Frank granted a motion to dismiss the case. Id. at 9–10.

Plaintiffs do not specify any actions taken by Judges Allman and

Osterhaus, other than conclusory allegations of “conspiracy” and “fraud.”

II. STANDARD

Motions to dismiss for failure to state a claim are governed by Rule

12(b)(6) of the Federal Rules of Civil Procedure. To survive a motion to

dismiss, “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) (quotation and citation omitted). A claim

is plausible on its face where “the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. (citation omitted). Additionally, the

court may dismiss a claim when the allegations indicate that an

affirmative defense—such as a defendant’s immunity from suit—bars

recovery. Sibley v. Lando, 437 F.3d 1067, 1070 n.2 (11th Cir. 2005).

III. DISCUSSION

Defendants assert multiple arguments in support of dismissal.

Because Plaintiffs’ claims must be dismissed based on the grounds set

forth below, the undersigned does not address each argument raised by

Defendants.

A. Official-Capacity Claims

1. Claims Under 42 U.S.C. §§ 1981, 1983, and 1985

For two independent reasons, the District Court must dismiss

Plaintiffs’ claims—asserted pursuant to 42 U.S.C. §§ 1981, 1983, and

1985—against the Circuit Court, First District Court of Appeal, and

against Judges Frank, Allman, and Osterhaus in their official capacities.

(a). Defendants are not “Persons”

“[A] state, a state agency, and a state official sued in his official

capacity are not ‘persons’ within the meaning of § 1983.” Edwards v.

Wallace Cmty. Coll., 49 F.3d 1517, 1524 (11th Cir. 1995); see Will v. Mich.

Dep’t of State Police, 491 U.S. 58, 71 (1989). Here, Plaintiffs request only

compensatory and punitive damages. Doc. 6 at 11. Because the Circuit

Court, First District Court of Appeal, and Judges Frank, Allman, and

Osterhaus—in their official capacities—are not “persons” within the

meaning of section 1983, Plaintiffs are not entitled to recover damages

from them, and the District Court must dismiss these claims.

(b). Sovereign Immunity

The Eleventh Amendment recognizes that States may assert

sovereign immunity to bar suits by an individual against a State, its

agencies, and its employees in their official capacities,2 unless Congress

has abrogated the State’s sovereign immunity or the State has consented

to the lawsuit. See Hans v. Louisiana, 134 U.S. 1, 16–18 (1890); Manders

v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003) (en banc). Congress has not

abrogated the States’ sovereign immunity in actions for damages under

section 1983, and Florida has not waived its immunity. Will, 491 U.S. at

67–68. Thus, Florida’s sovereign immunity bars Plaintiffs’ claims against

these Defendants. See Simmons v. Conger 86 F.3d 1080, 1085 (11th Cir.

1996) (dismissing official capacity claim against state judge on Eleventh

Amendment grounds); Higdon v. Tusan, 746 F. App’x 805, 809–10 (11th

Cir. 2018) (same); see Uberoi v. Supreme Ct. of Fla., 819 F.3d 1311, 1313

2 Official-capacity suits “‘generally represent only another way of

pleading an action against an entity of which an officer is an agent.’”

Kentucky v. Graham, 473 U.S. 159, 165–66 (1985) (quoting Monell v. New

York City Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)).

(11th Cir. 2016) (Florida Supreme Court enjoyed Eleventh Amendment

sovereign immunity).3

Because Defendants enjoy sovereign immunity as recognized by the

Eleventh Amendment, Plaintiffs have failed to state official-capacity

claims under §§ 1981, 1983, and 1985 upon which relief can be granted.

2. Claim Under Title VII of the Civil Rights Act of 1964

Plaintiffs list Title VII of the Civil Rights Act of 1964 among the

statutes that Defendants allegedly violated. Doc. 6 at 11. Title VII

governs the conduct of employers, employment agencies, and labor

organizations—as those terms are defined in Title VII. 42 U.S.C. § 2000e-

2. But Plaintiffs never allege that Defendants are or were employers,

employment agencies, or labor organizations with respect to Plaintiffs.

Plaintiffs’ mere allegation that “Defendants Courts and Judges in the

person of Judge David Frank purportedly discharged Plaintiffs Otis

Evans as a personal representative,” does not suffice to allege that the

3 Ex parte Young provides a narrow exception to sovereign immunity in

cases where a party is seeking prospective relief against state officials for

ongoing violations of federal law. 209 U.S. 123 (1908). Plaintiffs did not

request prospective relief. Doc. 6 at 11. Nor do Plaintiffs allege an ongoing

and continuous violation of federal law. Instead, they seek to adjudicate

the legality of past conduct. Thus, Ex parte Young is inapplicable.

Summit Med. Assoc., P.C. v. Pryor, 180 F.3d 1326, 1337 (11th Cir. 1999).

Defendants were employers of Otis Evans or the other two Plaintiffs. Doc.

6 at 10 (error in original). Plaintiffs, therefore, have failed to state a Title

VII claim on which relief can be granted.

B. Individual-Capacity Claims

1. Claims Under 18 U.S.C. §§ 241 and 242

Plaintiffs also attempt to assert claims under 18 U.S.C. §§ 241 and

242. Doc. 6 at 7. These provisions, however, “are criminal in nature and

provide no civil remedies.” Hanna v. Home Ins. Co., 281 F.2d 298, 303

(5th Cir. 1960). They do not create a private right of action. O’Berry v.

State Att’ys Office, 241 F. App’x 654, 657 (11th Cir. 2007) (holding that

there is no private right of action under 18 U.S.C. §§ 241 and 242); Hill

v. Didio, 191 F. App’x 13, 14–15 (2d Cir. 2006) (holding that there is no

private right of action under 18 U.S.C. §§ 241 and 242); Newcomb v. Ingle,

827 F.2d 675, 676 n.1 (10th Cir. 1987) (holding that 18 U.S.C. § 241 is a

criminal statute and does not provide for a private cause of action).

Plaintiffs, therefore, have failed to state a claim upon which relief can be

granted.

2. Claims Under 42 U.S.C. §§ 1981, 1983, 1985 Against the

Three Judges

Against Judges Frank, Allman, and Osterhaus, Plaintiffs attempt

to state individual-capacity claims pursuant to 42 U.S.C. §§ 1981,4 1983,

1985. As discussed below, Plaintiffs fail to state a claim: (1) against

Judges Allman and Osterhaus—because Plaintiffs do not allege any

specific acts by Judges Allman and Osterhaus; and (2) against Judge

Frank—because Judge Frank is entitled to absolute judicial immunity.

(a). Plaintiffs Fail to Allege Any Fact Regarding Judge

Allman and Judge Osterhaus

Regarding Judges Allman and Osterhaus, Plaintiffs broadly and

imprecisely allege:

Defendants Courts and Judges in the person of Judge David

Frank, without personal and subject matter jurisdiction

conspired and agreed with the other defendants to commit

fraud, fraud upon the court, conspiracy, treason against the

constitution by conducting a fake/false/fraudulent, vexatious

Probate Proceeding that was produced and predicated on

Defendants SCOTT, WALLACE AND COLEMAN’S

fraudulent POWER OF ATTORNEY Bl RELEASE-SINGLE

PERSON AGREEMENT AND SETTLEMENT STATEMENT

4 “Congress intended that the explicit remedial provisions of § 1983 be

controlling in the context of damages actions brought against state actors

alleging violation of the rights declared in § 1981.” Jett v. Dall. Indep.

Sch. Dist., 491 U.S. 701, 731 (1989); Butts v. Cnty. of Volusia, 222 F.3d

891, 892 (11th Cir. 2000).

that deprived Plaintiffs’ of life, liberty and property without

benefit of due process, equal protection, redress, freedom of

speech and representation.

Doc. 6 at 10 (errors in original).

Subsequent paragraphs of Plaintiffs’ amended complaint similarly

allege that “Defendants Courts and Judges in the person of Judge David

Frank” committed various other misdeeds. Plaintiffs never specify,

however, the acts or omissions of Judges Allman and Osterhaus, if any.

Indeed, Plaintiffs’ amended complaint contains no factual allegations

that specifically mention acts performed—or omissions—by Judges

Allman and Osterhaus.

Failure to Comply with Rule 8(a). By failing to articulate the

acts or omissions of Judges Allman and Osterhaus that purportedly

violated Plaintiffs’ rights, Plaintiffs violated Rule 8(a)(2) of the Federal

Rules of Civil Procedure insofar as Plaintiffs have not included “a short

and plain statement of the claim showing that the pleader is entitled to

relief.” Rule 8(a)(2) requires that a complaint “contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its

face.” Est. of Bass v. Regions Bank, Inc., 947 F.3d 1352, 1358 (11th Cir.

2020) (quotation marks omitted). Plaintiffs have not done that. For this

reason alone, Plaintiffs have failed to state a claim on which relief can be

granted.

Failure to Comply with Rule 9(b). In a claim alleging fraud, Rule

9(b) requires a complaint to state with particularity the circumstances

constituting fraud. Otto Candies, LLC v. Citigroup, Inc., No. 23-13152,

2025 WL 1337052, at *7 (11th Cir. May 8, 2025); Omnipol, A.S. v.

Multinational Defense Servs., LLC, 32 F.4th 1298, 1307 (11th Cir. 2022).

“Under Rule 9(b), claims of fraud must be plead with particularity, which

means identifying the who, what, when, where, and how of the fraud

alleged.” Omnipol, A.S., 32 F.4th at 1307 (citing Mizzaro v. Home Depot,

Inc., 544 F.3d 1230, 1237 (11th Cir. 2008)).

To meet this standard, a plaintiff must allege “(1) the precise

statements, documents, or misrepresentations made; (2) the time, place,

and person responsible for the statement; (3) the content and manner in

which these statements misled the Plaintiffs; and (4) what the

defendants gained by the alleged fraud.” Am. Dental Ass’n v. Cigna Corp.,

605 F.3d 1283, 1291 (11th Cir. 2010) (quotation omitted). This

particularity requirement serves important purposes by “alerting

defendants to the ‘precise misconduct with which they are charged’ and

protecting defendants ‘against spurious charges of immoral and

fraudulent behavior.’” Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202

(11th Cir. 2001) (quoting Durham v. Bus. Mgmt. Assocs., 847 F.2d 1505,

1511 (11th Cir. 1988)).

To the extent Plaintiffs are alleging that Judges Allman and

Osterhaus committed some type of fraud in violation of federal law,

Plaintiffs have utterly failed to comply with the pleading requirements

of Rule 9(b). See Doc. 6 at 10–11. For this reason, too, Plaintiffs have

failed to state a claim against Judges Allman and Osterhaus.

A Respondeat Superior Theory Fails. To the extent Plaintiffs

seek to state a claim against Judges Allman and Osterhaus under a

theory of respondeat superior for the actions of Judge Frank, they cannot

do so. Section 1983 “claims may not be brought against supervisory

officials on the basis of vicarious liability or respondeat superior.” Keating

v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010) (citing Belcher v. City

of Foley, 30 F.3d 1390, 1396 (11th Cir. 1994)); see also Hardin v. Hayes,

957 F.2d 845, 849 (11th Cir. 1992). “However, supervisors are liable

under § 1983 ‘either when the supervisor personally participates in the

alleged constitutional violation or when there is a causal connection

between the actions of the supervising official and the alleged

constitutional violation.’” Keating, 598 F.3d at 762 (quoting Gonzales v.

Reno, 325 F.3d 1228, 1234 (11th Cir. 2003)).

“A causal connection can be established by, inter alia, ‘facts which

support an inference that the supervisor directed the subordinates to act

unlawfully or knew that the subordinates would act unlawfully and failed

to stop them from doing so.’” Id. (quoting Gonzalez, 325 F.3d at 1235).

“The standard by which a supervisor is held liable in [his] individual

capacity for the actions of a subordinate is extremely rigorous.” Doe v.

School Bd. of Broward Cnty., Fla., 604 F.3d 1248, 1266 (11th Cir. 2010)

(emphasis added).

As noted above, Plaintiffs fail to allege any specific acts or omissions

on the part of Judges Allman and Osterhaus. Thus, they cannot rely on

a respondeat superior theory of liability. For this reason, too, Plaintiffs

have failed to state a claim against Judges Allman and Osterhaus.

(b). Absolute Judicial Immunity

Judge Frank argues that he is entitled to absolute judicial

immunity. Doc. 16 at 4–6.

“If judges were personally liable for erroneous decisions, the

resulting avalanche of suits, most of them frivolous but vexatious, would

provide powerful incentives for judges to avoid rendering decisions likely

to provoke such suits. The resulting timidity would be hard to detect or

control, and it would manifestly detract from independent and impartial

adjudication.” Forrester v. White, 484 U.S. 219, 226–27 (1988).

Accordingly, the law provides judges with absolute immunity. Stump v.

Sparkman, 435 U.S. 349, 356–57 (1978).

“Judges are entitled to absolute judicial immunity from damages

for those acts taken while they are acting in their judicial capacity unless

they acted in the ‘clear absence of all jurisdiction.’” Bolin v. Story, 225

F.3d 1234, 1239 (11th Cir. 2000) (citations omitted). “A judge enjoys

immunity for judicial acts regardless of whether he made a mistake,

acted maliciously, or exceeded his authority.” McCullough v. Finley, 907

F.3d 1324, 1331 (11th Cir. 2018); Stevens v. Osuna, 877 F.3d 1293, 1301

(11th Cir. 2017).

Judge Frank Was Acting Within his Judicial Capacity.

“Whether a judge’s actions were made while acting in his judicial capacity

depends on whether: (1) the act complained of constituted a normal

judicial function; (2) the events occurred in the judge’s chambers or in

open court; (3) the controversy involved a case pending before the judge;

and (4) the confrontation arose immediately out of a visit to the judge in

his judicial capacity.” Sibley, 437 F.3d at 1070 (citing Scott v. Hayes, 719

F.2d 1562, 1565 (11th Cir. 1983)).

Here, Plaintiffs allege that during the probate proceeding and the

wrongful death suit, Judge Frank took the following actions:

 he appointed Otis Evans to be the personal representative to the

decedent Bobby Evan’s estate;

 he conducted a hearing;

 he concluded that Plaintiffs were abusive pro se litigants;

 he entered an order of discharge in the probate proceeding; and

 he entered an order granting a motion to dismiss the wrongful

death suit.

Doc. 6 at 8–10.

All of these actions are normal judicial functions, and Judge Frank

clearly performed them in his capacity as the presiding judge over the

state probate proceeding and wrongful death suit. Therefore, Judge

Frank was acting within his judicial capacity in taking all the actions

about which Plaintiffs complain.

Judge Frank Was Acting Within His Jurisdiction. A judge acts

in the “clear absence of all jurisdiction” when the matter on which he acts

is clearly outside of the subject matter jurisdiction of the court over which

he presides. See Dykes v. Hosemann, 776 F.2d 942, 948 (11th Cir. 1985).

The term “jurisdiction,” as it applies to judicial immunity, “means judicial

power to hear and determine a matter, not the manner, method or

corruptness of the exercise of that power.” McGlasker v. Calton, 397 F.

Supp. 525, 530 (M.D. Ala.), aff’d, 524 F.2d 1230 (5th Cir. 1975); Steel Co.

v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (jurisdiction is the

“power to adjudicate the case”). Judicial “immunity applies even when

the judge’s acts are in error, malicious, or were in excess of his

jurisdiction.” Sibley, 437 F.3d at 1070; Wilson v. Bush, 196 F. App’x 796,

799 (11th Cir. 2006) (“[Judicial] immunity applies even when the judge

is accused of acting . . . corruptly.”) (quoting Pierson v. Ray, 386 U.S. 547,

553–54 (1967)).

Under Florida law, subject matter jurisdiction is conferred on

Florida courts by the Florida constitution and applicable statutes.

Goodley v. Greene, No. 21-CIV-61284-RAR, 2021 WL 4244869, at *5 (S.D.

Fla. Sept. 17, 2021), aff’d, No. 21-13978, 2022 WL 4113101 (11th Cir.

Sept. 9, 2022). Under the Florida Constitution and Florida law, Florida

circuit courts have “exclusive original jurisdiction” over “proceedings

relating to the settlement of the estates of decedents and minors, the

granting of letters testamentary . . . and other jurisdiction usually

pertaining to courts of probate[.]” Fla. Stat. § 26.012(2)(b); Fla. Const. art.

V, § 20.

Although Plaintiffs assert that Judge Frank acted improperly and

corruptly by conspiring with the other Defendants to enter unlawful

orders, Plaintiffs do not allege facts which indicate that Judge Frank

acted in the absence of jurisdiction. Merely alleging that a judge acted

“corruptly” is not enough. See Wilson, 196 F. App’x at 799 (“The district

court properly found that judicial immunity shield[ed]” judges from suit

where the plaintiff’s claims were “based on allegations that the judges

acted corruptly” by conspiring and entering unlawful orders).

To be sure, Plaintiffs repeatedly allege that Judge Frank acted

“without jurisdiction.” Doc. 6 at 9. But courts are “not bound to accept as

true a legal conclusion couched as a factual allegation.” Papasan v.

Allain, 478 U.S. 265, 286 (1986). “[C]onclusory allegations, unwarranted

factual deductions or legal conclusions masquerading as facts will not

prevent dismissal.” Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185

(11th Cir. 2003). Thus, mere conclusory allegations that Judge Frank

lacked jurisdiction are insufficient.

Because Judge Frank is entitled to absolute judicial immunity,

Plaintiffs have failed to state a claim against him upon which relief can

be granted.

Judges Allman and Osterhaus. As discussed above, judges enjoy

immunity for actions taken in their official capacities and within their

jurisdictions. Bolin, 225 F.3d at 1239. Determining whether judicial

immunity applies to a judge’s actions, therefore, necessarily requires an

examination of the actions taken by a judge. As noted above—other than

vague and conclusory accusations of “conspiracy” and “fraud”—Plaintiffs

do not allege any actions that Judges Allman and Osterhaus took.

Accordingly, it would be nonsensical to ask whether—much less conclude

that—Judges Allman and Osterhaus acted within their judicial

capacities and within their jurisdiction when, according to the amended

complaint, Judges Allman and Osterhaus did not take any actions.

Nevertheless, to the extent that Plaintiffs suggest that Judges

Allman and Osterhaus adopted Judge Frank’s findings or failed to

overrule his findings and conclusions, Judges Allman and Osterhaus

would have been acting within their judicial capacities and within their

jurisdiction. Weissbrod v. Broward Cnty. Bd. of Supervisors, No. 21-

13277, 2022 WL 3371643, at *3 (11th Cir. Aug. 16, 2022). They, therefore,

also would be protected by absolute judicial immunity.

IV. CONCLUSION

For the reasons set forth above, the undersigned respectfully

RECOMMENDS that the District Court:

1. GRANT Judge David Frank’s, Judge Frank Allman’s, and

Judge Timothy D. Osterhaus’s motions to dismiss, Docs. 16, 17 & 21, and

DISMISS Plaintiffs’ claims against the Florida Second Judicial Circuit,

the First District Court of Appeals, Judge David Frank, Judge Frank

Allman, and Judge Timothy D. Osterhaus.

2. REMAND this matter back to the undersigned for further

proceedings.

At Pensacola, Florida on May 21, 2025.

/s/ Michael J. Frank

Michael J. Frank

United States Magistrate Judge

NOTICE TO THE PARTIES

The District Court referred this case to the

undersigned to address preliminary matters and to

make recommendations regarding dispositive matters.

See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b); Fed

R. Civ. P. 72(b). Objections to these proposed findings

and recommendations must be filed within fourteen

(14) days of the date of the report and recommendation.

Any different deadline that may appear on the

electronic docket is for the court’s internal use only

and does not control. An objecting party must serve a

copy of its objections upon all other parties. A party

who fails to object to the magistrate judge’s findings or

recommendations contained in a report and

recommendation waives the right to challenge on

appeal the district court’s order based on unobjected-

to factual and legal conclusions. See 11th Cir. Rule 3-1;

28 U.S.C. § 636.