Covert v. Hacking

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

WILLIAM COVERT,

Plaintiff,

v. Case No. 6:25-cv-1071-CEM-NWH

ARIELLE C. HACKING, DEREK

BROWN, THOMAS HIGBEE,

MATTHEW BELL, and GREGORY

ORME,

Defendants.

REPORT AND RECOMMENDATIONS

This cause comes before the Court on the Motion to Proceed in forma pauperis,

Motion to Expedite Ruling, and Motion to Consolidate filed by Plaintiff. (Docs. 2, 12,

16). For the reasons stated below, the undersigned will respectfully recommend that

the Court dismiss this action as frivolous and for failure to state a claim pursuant to 28

U.S.C. § 1915(e) and deny all pending motions accordingly.

BACKGROUND

This lawsuit concerns a Utah defamation case against Defendant Arielle C.

Hacking (“Ms. Hacking”) that Plaintiff lost, resulting in a judgment against Plaintiff

for Ms. Hacking’s attorney’s fees. (Doc. 8 at 3, 5–6). The Utah Supreme Court

ultimately rejected Plaintiff’s direct appeal. (Id. at 3). Defendants Thomas Higbee,

Matthew Bell, and Gregory Orme are all Utah state court judges, and Defendant

Derek Brown is the Attorney General of Utah. (Id. at 4–5). This Court previously

explained to Plaintiff the various flaws of his Complaint, (see Doc. 7), and Plaintiff

filed an Amended Complaint soon thereafter, (see Doc. 8).

STANDARD

An individual may proceed in forma pauperis if they declare in an affidavit that

they are unable to pay or give security for court fees. 28 U.S.C. § 1915(a)(1). However,

before a court may allow a plaintiff to proceed in forma pauperis, the court must review

the complaint to determine if the complaint is frivolous or malicious, fails to state a

claim for which relief can be granted, or seeks monetary relief against a defendant who

is immune. 28 U.S.C. § 1915(e)(2)(B) (hereinafter referred to as “Section 1915”). A

court must dismiss a complaint or grant leave to amend the complaint sua sponte if the

complaint is deficient under Section 1915(e). Id.

A complaint initiating a civil action must contain a “short and plain statement

of grounds for the court’s jurisdiction[;] a short and plain statement of the claim

showing that the pleader is entitled to relief; and a demand for the relief sought . . . .”

Fed. R. Civ. P. 8(a). “A complaint ‘is frivolous where it lacks an arguable basis either

in law or in fact.’” Jackson v. Farmers Ins. Group/Fire Ins. Exch., 391 F. App’x 854, 856

(11th Cir. 2010). If an affirmative defense would defeat the complaint, then the court

may dismiss it under Section 1915. Clark v. Ga. Pardons & Paroles Bd., 915 F.2d 636,

639 (11th Cir. 1990). While courts liberally construe documents filed pro se for

purposes of Section 1915, Erickson v. Pardus, 551 U.S. 89, 94 (2007), “[i]ndigence does

not create a constitutional right to the expenditure of public funds and the valuable

time of the courts in order to prosecute an action which is totally without merit,”

Phillips v. Mashburn, 746 F.2d 782, 785 (11th Cir. 1984). However, a court may not

dismiss a complaint filed in forma pauperis on the basis of failure to state a claim, 28

U.S.C. § 1915(e)(2)(B)(ii), without giving the plaintiff an opportunity to amend the

complaint under Federal Rule of Civil Procedure 15. Troville v. Venz, 303 F.3d 1256,

1260 n.5 (11th Cir. 2002).

DISCUSSION

Plaintiff’s Amended Complaint differs from the original in that Plaintiff has

named a new Defendant, Judge Gregory Orme, and has trimmed away much of the

original Complaint’s unnecessary legal argumentation. (See Doc. 8; cf. Doc. 1). The

Amended Complaint provides significantly more clarity as to the nature of Plaintiff’s

claims, which all arise out of the Utah state court judgment. (See id.). Plaintiff alleges

that he has “exhausted state remedies and was denied a rehearing by the Utah Court

of Appeals and [his] writ [of] certiorari [was denied] by the Utah Supreme Court.” (Id.

at 3).

Although the Amended Complaint corrects many of the errors from the

original, it does not escape the Rooker-Feldman doctrine’s sweep. As this Court

previously explained, (Doc. 7 at 4–5), lower federal courts have no role in the review of

state court judgments, and no exception to that doctrine could apply here.1 See Linge v.

1 Plaintiff alleges that Defendants engaged in various forms of misconduct, conspiracy, and

mischief. However, even if Defendants committed a fraud against Plaintiff or against the Utah courts,

the Eleventh Circuit recognizes no “fraud exception” to the Rooker-Feldman doctrine. Valentine v. BAC

State of Ga. Inc., 569 F. App’x 895, 895 (11th Cir. 2014) (discussing the Rooker-Feldman

doctrine); Brown v. R.J. Reynolds Tobacco Co., 611 F.3d 1324, 1330 (11th Cir. 2010)

(“The Rooker–Feldman doctrine is jurisdictional.”). Once Plaintiff’s direct appeals were

exhausted, his next option is to seek a writ of certiorari from the only court with

(limited) authority over state supreme courts—the Supreme Court of the United States.

See Williams v. Kaiser, 323 U.S. 471 (1945) (discussing the relationship of state supreme

courts to the federal Supreme Court). This Court, a federal district court, simply lacks

appellate jurisdiction over state court judgments. As such, the Rooker-Feldman doctrine

bars Plaintiff’s claims, and the undersigned will recommend that the Court dismiss this

action.

Jurisdiction is not Plaintiff’s only problem in this case. Judicial immunity, as

discussed by this Court’s prior order, (Doc. 7 at 8–9), would bar Plaintiff’s claims

against Defendant Judges Thomas Higbee, Matthew Bell, and Gregory Orme, as the

Amended Complaint does not allege that any of these parties acted outside their

capacities as judges or acted in the complete absence of jurisdiction. See Carroll v. Gross,

984 F.2d 392, 393 (11th Cir. 1993) (discussing judicial immunity). Simply put, a judge

cannot be held personally liable for performing their judicial duties. The appellate

Home Loans Servicing, L.P., 635 Fed. App’x 753, 757 (11th Cir. 2015) (“Such an exception could

effectively gut the doctrine by permitting litigants to challenge almost any state-court judgment in

federal district court merely by alleging that the other party lied during the state-court proceedings.”).

If fraud or other misconduct occurred, Plaintiff’s remedy is the same as if he had lost the case fair and

square: filing an appeal.

process, not collateral litigation on the other side of the country, is the proper way to

challenge a judge’s decisions.

Because of these issues, which relate to the core of Plaintiff’s claims and which

cannot be cured by further amendments to the Complaint, the undersigned will

recommend that the Court dismiss this action for failure to state a claim and for

frivolousness under Section 1915. As Plaintiff has already amended the Complaint,

the undersigned does not recommend that the Court grant Plaintiff leave to file second

Amended Complaint, as the issues described above cannot be cured by further

amendment.

RECOMMENDATION

Accordingly, the undersigned RESPECTFULLY RECOMMENDS that the

Court DISMISS this action pursuant to 28 U.S.C. § 1915(e) and DENY Plaintiff’s

Motion to Proceed in forma pauperis.

NOTICE TO PARTIES

The party has fourteen days from the date the party is served a copy of this

report to file written objections to this report’s proposed findings and

recommendations or to seek an extension of the fourteen-day deadline to file written

objections. 28 U.S.C. § 636(b)(1)(C). A party’s failure to file written objections waives

that party’s right to challenge on appeal any unobjected-to factual finding or legal

conclusion the district judge adopts from the Report and Recommendation. See 11th

Cir. R. 3-1; 28 U.S.C. § 636(b)(1).

RECOMMENDED in Orlando, Florida, on September 4, 2025.

NATHAN W. HILL

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

Unrepresented Party

Lo