Appendix — Duncan v. Cobb

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 92-2501

Non-Argument Calendar

D. C. Docket No. 92-139-CIV-ORL-19

CARL J. DUNCAN,

Plaintiff-Appellant,

versus

WARREN H. COBB, Judge,

Fifth District Court of Appeals;

JACQUELINE R. GRIFFIN, Judge,

Fifth District Court of Appeais;

CHARLES M. HARRIS, Judge

Fifth District Court of Appeals;

EARLE W. PETERSON, JR., Judge,

Fifth District Court of Appeals;

WINIFRED J. SHARP, Judge,

Fifth District Court of Appeals,

Defendants-Appellees.

Appeal from the United States District Court

for the Middle District of Florida

(April 2, 1993)

Before TJOFLAT, Chief Judge, FAY and BLACK, Circuit Judges.

PER CURIAM: AFFIRMED. See 11th Cir. Rule 36-1.

13

"Costs taxed against plaintiff-appellant."

Judgment Entered: April 2, 1993

For the Court: Miguel J. Cortez, Clerk

By: /s/

Karleen McNabb

Deputy Clerk

ISSUED AS MANDATE: May 19, 1993

### HH # # F

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

CARL J. DUNCAN,

Plaintiff,

v. CASE NO. 92-139-CIV-ORL-19

WARRREN H. COBB, et al.

Defendants.

ORDER

This cause was considered upon the following matter:

Defendants’ Motion to Dismiss and Memorandum of Law (Doc.

No. 5, filed March 9, 1992); Plaintiff's Memorandum of Law in

Opposition to Defendants’ Motion to Dismiss, and Plaintiff’s

Affidavit in Opposition to Defendant’s Motion to Disiniss (Doc.

No. 6 and 7, filed March 11, 1992).

14

Plaintiff brings a Civil Rights Action under 42 U.S.C. §§ 1983

and 1985 against Defendants, all judges of the District Court of

Appeal, Fifth District of Florida. Plaintiff seeks injunctive relief

mandating Defendants to reverse and vacate the Final Judgment

Dissolving Marriage in Duncan vy, Duncan, Case No. 89-12080-FD-

D, Eighteenth Judicial Circuit, Brevard County. Defendants move

to dismiss based on judicial immunity and lack of subject matter

jurisdiction.

Plaintiff correctly maintains that judicial immunity does not bar

injunctive relief against judicial officers acting in their judicial

capacity. Wahl v. McIver, 773 F.2d 1169, 1172 (11th Cir. 1985)

(citing Pulliam y. Allen, 466 U.S. 522 (1984). However, under the

circumstances of this case, this Court lacks jurisdiction over

Plaintiff's action.

"The jurisdiction possessed by district courts is strictly original."

Hollins v. Wessel, 819 F.2d 1073, 1074 (11th Cir. 1987) (citing

Rooker y. Fidelity Trust Co., 263 U.S. 413, 416 (1923)).' Further,

review of final judgments of a state court in judicial proceedings

is reserved to the Supreme Court of the United States pursuant to

28 U.S.C. § 1257. Id. (citing District of Columbia Court of

Appeals v. Feldman, 460 U.S. 462, 476 (1983)). Opportunity to

raise federal claims is given to plaintiffs through the appeals

process in the siate proceedings. Id.

Plaintiff has appealed his case to the Florida Fifth District Court

of Appeal. Duncan v. Duncan, 590 So.2d 427 (Fla. Sth DCA

1991); Duncan y. Duncan, 571 So.2d 482 (Fla. Sth DCA 1990).

Both cases were appeals from the circuit court of Brevard County

that were affirmed without opinion. Plaintiff also petitioned the

Florida Supreme Court for writ of mandamus which was denied

' Hollins v. Wessel, 819 F.2d 1073 (11th Cir. 1987), held that

plaintiff's civil rights action against a state court judge who

presided over a mortgage foreclosure action in state court during

the period in which plaintiff was incarcerated was properly

dismissed by the district court for lack of subject matter jurisdic-

tion.

15

,

without opinion. Duncan v. Cowart, 584 So.2d 997 (1991).

In Hollins, the Eleventh Circuit dismissed a civil rights action

because the federal district court lacked subject matter jurisdiction.

Hollins, 819 F.2d at 1074. Like the instant case, the underlying

action in the Hollins §1983 action was a review of a state court

proceeding. While the Hollins decision does not reflect the

grounds which the plaintiff asserted in his appeal in the Florida

district court of appeal prior to asserting his civil rights claim in the

federal district court, the Eleventh Circuit nevertheless determined

that the claim asserted in the federal court should have been made

in the state appellate proceeding.

Therefore, on the authority of Hollins, this Court lacks subject

matter jurisdiction in this case. Defendants’ Motion to Dismiss

(Doc. No. 5) is GRANTED, and Plaintiff's claim is dismissed.

DONE AND ORDERED at Orlando, Florida, this 21st day of

April, 1992.

/s/

PATRICIA C. FAWSETT

UNITED STATES DISTRICT

JUDGE

Copies to:

All Counsel of Record.

### HH # # F#

UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF FLORIDA

Civil Action

File Number 92-139-CIV-ORL-19

CARL J. DUNCAN,

16

Plaintiff,

Vv.

WARREN H. COBB, et al.,

Defendants.

/

PLAINTIFF’S MOTION FOR REHEARING

Plaintiff moves the Court pursuant to

*” * ” *

(Text omitted as unnecessary.

Purpose is to introduce following

endorsed order.)

Denied 5-1-92

/s/ Patricia C. Fawsett

###HHH # #

IN THE CIRCUIT COURT IN AND

FOR BREVARD COUNTY, FLORIDA

CASE NO. 89-12080-FD-D

RITA KAY DUNCAN,

Petitioner,

17

VS.

CARL J. DUNCAN,

Respondent.

/

ORDER

All of the pending Motions by and between the Petitioner and the

Respondent together with the Motions separately filed by Petition-

er’s attorney, having come on for consideration before the under-

signed Judge on May 23, 1990, with GEOFFREY GREY

STRANGE, ESQUIRE and Respondent, CARL J. DUNCAN, both

being present by telephone, and the court having examined the

record in this cause and having determined that an Appeal has been

filed, and having further advised the parties of the limited jurisdic-

tion of this Court during the pendency of the appeal, and the Court

having heard the arguments of the respective parties and being

otherwise fully advised, it is

ORDERED AND ADJUDGED as follows:

1. The Court will allow GEOFFREY GREY STRANGE,

ESQUIRE, to withdraw as counsel of record for the Petitioner upon

mailing to the undersigned Judge for filing with this case a written

consent by Petitioner to such withdrawal.

2. Petitioner’s attomey, having announced that Respondent has

paid him the fees required under the Final Judgment, has with-

drawn the Motion for Contempt and eliminated the necessity of the

hearing thereon.

3. The Motion by Petitioner’s attorney to tax additional fees and

costs against the Respondent because of the Respondent’s post-

judgment motions and the like should be, and the same is, hereby

denied.

4. Respondent’s Motion for fees and expenses post-judgment is

likewise denied.

5. All of the other Motions and requests for relief pending at

this time should be, and the same are, hereby each denied.

18

DONE AND ORDERED in Chambers at Rockledge, Brevard

County, Florida, the 23rd day of May, 1990.

/s/

EDWARD M. JACKSON

Circuit Judge

Copies furnished to:

Geoffrey Grey Strange, Esquire

1250 Eau Gallie Blvd., Suite G

Melboure, Florida 32935

Carl Duncan

459 Inkwood Lane

Tallahassee, Florida 32310

Rita Kay Scott

c/o Winner Validation

250 Merriott Drive

Tallahassee, Florida 32399-4027

/s/

Hilder W. Bailey

Judicial Assistant

## ## HH # #

IN THE CIRCUIT COURT IN AND

FOR BREVARD COUNTY, FLORIDA

CASE NO. 89-12080-FD-D

19

RITA KAY DUNCAN,

mn/k/a RITA KAY SCOTT,

Petitioner,

VS.

CARL J. DUNCAN,

Respondent.

/

ORDER OF DISMISSAL

Various motions by the Respondent, CARL J. DUNCAN, having

come on for consideration before the undersigned Judge on March

27, 1991 and the Court having reviewed the record in this cause

and having heard the presentations by the Petitioner and Respon-

dent, and being otherwise fully advised in the premises, finds that

the Court does not have any subject matter jurisdiction over matters

presented by the Respondent.

The premises considered, it is

ORDERED AND ADJUDGED as follows:

1. The Court dismisses the post-judgment matters presented by

the Respondent for lack of subject matter jurisdiction, without

prejudice to the Respondent presenting these matters to another

Court.

2. The Final Judgment has been entered in this cause and the

same affirmed by the District Court of Appeal for the Fifth District,

thereby depriving the Court of jurisdiction as to the matters

asserted by the Respondent.

DONE AND ORDERED in Chambers at Rockledge, Brevard

County, Florida, this 29th day of March, 1991.

/s/

EDWARD M. JACKSON

20

Copies furnished to:

Cari J. Duncan

459 Inkwood Lane

Tallahassee, Florida 32310

Rita Kay Scott

3004 Momingside Drive

Tallahassee, Florida 32301

Geoffrey Strange, Esquire

1250 Eau Gallie Blvd., Suite G

Melboume, florida 32935

/s/

Hilder W. Bailey

Judicial Assistant

Date: 4-1-91

Circuit Judge

##H#H# HHH #

UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF FLORIDA

CARL J. DUNCAN,

Plaintiff,

Civil Action

File No. 92-139-CIV-ORL-19

21

WARREN H. COBB,

JACQUELINE R. GRIFFIN,

CHARLES M. HARRIS,

EARLE W. PETERSON, JR..,

and WINIFRED J. SHARP,

Defendants.

MOTION TO DISMISS

DEFENDANTS, WARREN H. COBB, JACQUELINE R.

GRIFFIN, CHARLES M. HARRIS, EARLE W. PETERSON, JR.

and WINIFRED J. SHARP, by undersigned counsel, respectfully

move this court to enter an order dismissing this cause on the

following grounds:

1. These defendants, all judges of the District Court of Appeal,

Fifth District of Florida, are sued for alleged acts or omissions

arising solely from their judicial offices. Thus, these defendants

are entitled to the protection of the doctrine of absolute judicial

immunity.

2. This court lacks subject matter jurisdiction.

3. This action is barred by the provisions of the Eleventh

Amendment to the Constitution of the United States.

In compliance with Local Rule 3.01(a), defendants submit the

following legal memorandum in support of this motion:

MEMORANDUM OF LAW

1. JUDICIAL IMMUNITY

It is well-settled principle of law, derived from the common law

of England, that judges are immune from civil liability for acts

performed in the course of their official functions. Bradley v.

Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1872); Meredith v.

Van Oosterhout, 286 F.2d 216 (8th Cir. 1960), cert. denied, 365

22

U.S. 835, 81 S.Ct. 749, 5 L.Ed.2d 745. In Pierson v. Ray, 386

U.S. 465, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), the United States

Supreme Court has since reaffirmed and elucidated the doctrine of

judicial immunity, expressly holding that the Civil Rights Act of

1871, now 42 U.S.C. § 1983, under which this cause was brought,

did not abolish judicial immunity. In Pierson, the Court reasoned

as followed:

Few doctrines were more solidly established at

common law than the immunity of judges from lia-

bility for damages for acts committed within their

judicial jurisdiction, as this Court recognized when

it adopted the doctrine, in Bradley v. Fisher, 13

Wall 335, 20 L.Ed 646 (1872). This immunity

applies even when the judge is accused of acting

maliciously and corruptly, and it is not for the

protection or benefit of a malicious or corrupt

judge, but for the benefit of the public, whose

interest it is that the judges should be at liberty to

exercise their functions with independence and

without fear of consequences... . It is a judge’s

duty to decide all cases within his jurisdiction that

are brought before him, including controversial

cases that arouse the most intense feelings in the

litigants. His errors may be corrected on appeal,

but he should not have to fear that unsatisfied

litigants may hound him with litigation charging

malice or corruption. Imposing such a burden on

judges would contribute not to principled and

fearless decision-making but to intimidation.

386 U.S. at 553-54

More recently, in Saunp v. Sparkman, 435 U.S. 349, 98 S.Ct

1099, 55 L.Ed.2d 331 (1978), reh. denied, 436 U.S. 951, 98 S.Ct.

2862, 56 L.Ed.2d 795, the Supreme Court reversed and remanded

a decision of the United States Court of Appeals for the Seventh

Circuit which held a judge of an Indiana court of general jurisdic-

tion was not immune from a § 1983 suit under the doctrine of

23

judicial immunity for granting a mother’s petition to have her

minor daughter sterilized. The Supreme Court held the judge

immune from liability for damages even if the judge’s approval of

the petition was in error, where, in view of the state court’s broad

general jurisdiction under state statutes, the judge had jurisdiction

to act on the petition and did not act in the clear absence of all

jurisdiction, there being no state statute or case law prohibiting the

court from considering petitions for sterilization presented by the

parents of minors. The Court further held that neither any

procedural errors the judge may have committed not the lack of a

special statute authorizing his approval of the sterilization petition

renders him liable in damages. There the Court said:

A judge will not be deprived of immunity because

the action he took was in error, was done mali-

ciously, or was in excess of his authority; rather,

he will be subject to liability only when he has

acted in the clear absence of all jurisdiction. 13

Wall, at 351, 20 L.Ed. 646.

435 U.S. at 356

A judge is absolutely immune from liability for his

judicial acts even if his exercise of authority is

flawed by the commission of grave procedural

errors. The Court made this point clear in Bradley,

13 Wall, at 357, 20 L.Ed. 646, where it stated:

[This erroneous manner in which [the court’s]

jurisdiction was exercised, however it may have

affected the validity of the act, did not make the

act any less a judicial act; nor did it render the

defendant liable to answer in damages for it at the

suit of the plaintiff, as though the court had pro-

ceeded without having any jurisdiction whatever...

455 U.S. at 359

The relevant cases demonstrate that the factors

determining whether an act by a judge is a ’judi-

cial’ one relate to the nature of the act itself, i.e.,

24

whether it is a function normally performed by a

judge, and to the expectations of the parties, i.e.,

whether they dealt with the judge in his judicial

Capacity.

435 U.S. at 362.

In Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d

895 (1978), and Chandler v. Judicial Council of the Tenth Circuit

of the United States, 398 U.S. 74 90 S.Ct. 1648, 26 L.Ed.2d 100

(1970), reh. denied, 399 U.S. 937, 90 S.Ct. 2248, 26 L.Ed.2d 809,

the Court acknowledged the importance of judicial immunity and

the need for total and absolute independence of judges in deciding

cases or in any phase of the decisional process.

Other examples of the application of the doctrine of judicial

immunity are Moses v. Parwatikar, 813 F.2d 891, 892-93 (8th Cir.

1987) (allegations that judge conspired with state officials was not

sufficient to defeat absolute immunity of judge); Eades v.

Sterlinske, 810 F.2d 723, 725-26 (7th Cir. 1987) (alleged acts of

judge in dictating false certificate and causing alteration of trial

transcript and docket sheet were entitled to absolute immunity);

Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) Gudicial

immunity is unaffected by the motives with which the judicial acts

are performed); Eitel v. Holland, 787 F.2d 995, 998 (Sth Cir. 1986)

("A judge is not liable in damages for her judicial acts, even those

done maliciously or corruptly, unless she acts in the clear absence

of all jurisdiction"); Holloway v. Walker, 765 F.2d 517 (Sth Cir.

1985) (judge immune from §1983 action alleging use of his judicial

office to gain control of oil company even though many of his

judicial acts were performed outside the courtroom); Brinkman v.

Johnston, 793 F.2d 111 (Sth Cir. 1986); Hale v. Harney, 786 F.2d

688 (Sth Cir. 1986) (judge entitled to absolute immunity despite

allegations that she was prejudiced against males and openly

discussed the litigation involving the plaintiff at cocktail parties and

functions; double costs and attomey fees awarded against plaintiff

on appeal); and Adams v. Mcilhany, 764 F.2d 294 (Sth Cir. 1985)

‘judge who held mother in contempt of court for letter she wrote

“im intimating that he had dealt with her son harshly because she

25

could not afford to pay bribe, entitled absolute immunity).

2. LACK OF SUBJECT MATTER JURISDICTION

From a reading of Plaintiff's Complaint, it appears that he is

seeking an order from this Court reviewing and reversing an action

of a Florida appellate Court. With due respect, this Court lacks

jurisdiction over that subject matter.

While the lower federal courts were given certain

powers in the 1789 [anti-injunction] Act, they were

not given any power to review directly cases from

state courts, and they have not been given such

powers since that time. Only the Supreme Court

was authorized to review on direct appeal the

decisions of state courts. Thus from the beginning

we have had in this country two essentially sepa-

rate legal systems. Each system proceeds indepen-

dently of the other with ultimate review in [The

Supreme] Court of the federal questions raised in

either system.

Atlantic Coastline R. Co. v. Brotherhood of Loc. Eng., 398 U.S.

281, 286, 90 S.Ct. 1739, 1743 (1970).

It is well settled that federal district courts are

without authority to review state court judgments

where the relief sought is in the nature of appellate

review. Rooker v. Fidelity Trust Co., 263 U.S. 413,

44 S. Ct. 149, 68 L.Ed. 362 (1923); Fortune v.

Mulherrin, 533 F.2d 21 (1st Cir.) cert. denied, 429

U.S. 864, 97 S.Ct. 170, 50 L.Ed.2d 143 (1967);

Atchley v. Greenhill, 373 F.Supp. 512 (S.D. Tex.

1974). Where a constitutional issue could have been

reviewed on direct appeal by the state appellate

courts, a litigant may not seek to reverse or modify

the state court judgment by bringing a constitutional

claim under 42 U.S.C. §1983 (1982). Sunn v. Dean,

597 F.Supp. 79, 80 (N.D. Ga. 1984).

Anderson v. State of Colorado, 793 F.2d 262, 263 (10th Cir. 1986).

26

While it is true that "a State Court Judgment which violates

settled legal principles may mun afoul of the guarantees of the due

process clause, especially [where] such a judgment has the effect

of taking property from a citizen ...," Reynolds v. State of Georgia,

640 F.2d 702, 705 (Sth Cir. Unit B 1981) (citations omitted), cert.

denied, 454 U.S. 865, 102 S.Ct. 326, 70 L.Ed.2d 165 (1981), it is

clear from the body and prayer of plaintiff's Complaint that he

seeks appellate review in this Court of state court actions. The

jurisdiction of a federal district court is original. The Constitution

grants no power to this Court to "revise and correct the proceedings

in a cause [originally brought in state court] ... .". Malbury v.

Madison, 5 U.S. (1 Cranch) 137, 175, 2 L.Ed. 60 (1803), cited in

Reynolds v. State of Georgia, supra at 707. Plaintiff's attempt to

ground his claim upon Section 1983 is likewise ineffective to vest

this Court with what is essentially appellate jurisdiction. Am.

Furniture Co. v. Intern Accommodation Supply, 721 F.2d 478, 482

(Sth Cir. 1981); Lampkin-Asam v. Supreme Court of Florida, 601

F.2d 760 (Sth Cir. 1979).

The above-cited case law is grounded on notions of federalism

found in the United States Supreme Court’s jurisdiction to review

decisions of a state supreme court for alleged errors of federal law.

Wood v. Orange County, 715 F.2d 1543, 1545 (11th Cir. 1983),

citing Rooker v. Fidelity Trust Co., 203 U.S. 413, 415, 44 S.Ct

149, 150, 68 L.Ed. 362 (1923). In District of Columbia Court of

Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206

(1983), the Supreme Court reaffirmed Rooker’ s holding that federal

district courts are prohibited from considering federal issues raised

and inextricably intertwined in state court proceedings. The

Supreme Court in Feldman also held that review is prohibited even

to the United States Supreme Court where the plaintiff failed to

raise his federal claim in state court, if an opportunity to raise such

a claim existed. Here, Plaintiff does not allege that he raised any

federal constitutional claims in the state courts. Accordingly, his

present cause may properly be dismissed with prejudice, because

United States Court review is barred.

3. ELEVENTH AMENDMENT BAR.

Where a party asks a federal court to declare a state court

27

judgment null and void, we should consider this as praying for an

injunction enjoining its enforcement." Gresham Park Community

Organization v. Howell, 652 F.2d 1227 (Sth Cir. 1981) at 1236.

This Court, however, lacks power to issue such an injunction. The

Eleventh Amendment to the United States Constitution provides

that "(t]he Judicial power of the United States shall not be con-

strued to extend to any suit in law or equity, commenced or

prosecuted against one of the United States by Citizens of another

State ... .". Although "the Amendment by its terms does not bar

suits against a State by its own citizens, [the Supreme] Court has

consistently held that an unconsenting State is immune from suits

brought in federal courts by her own citizens as well as by citizens

of another State." Edelman v. Jordan, 415 U.S. 651, 662-63

(1974). Florida has not consented to this type of lawsuit. More-

over, it is settled law that "the Eleventh Amendment by its terms

clearly applies to a suit seeking an injunction,” and will bar an

injunction against that state whether or not the plaintiff seeks

money damages. Cory v. White, 102 S.Ct. 2325, 2329 (1982).

Thus, the Eleventh Amendment bars this Court from entertaining

a suit for the "injunction" that plaintiff seeks against the state courts

of Florida.

Respectfully submitted,

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

/s/

RIVERS BUFORD, JR.

Assistant Attomey General

Florida Bar No. 0010070

DEPARTMENT OF LEGAL AFFAIRS

Suite 1501 - The Capitol

Tallahassee, FL 32399-1050

(904) 488-1573

(FAX) (904) 488-4872

28

##H#H HHH #

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the

foregoing has ten furnished by U.S. Mail to CARL J. DUNCAN,

459 Inkwood Iane, Tallahassee, Florida, 32310 this 3rd day of

March, 1992.

/s/

RIVERS BUFFORD, JR.

<rivers>DuncarnMD

#### HH # #

Act of Dec. 2S 1979, Pub. L. 96-170, s. 2, 93 Stat. 1284, U.S.C.,

Title 28, s. 134%a):

"The district ourts shall have original jurisdiction of any civil

action authorize: by law to be commenced by any person:

"(1) [Bbcause of the deprivation of any right or privilege

of a citizen ofthe United States, by any act done in furtherance

of any conspincy mentioned in section 1985 of Title 42;

"(2) Torecover damages from any person who fails to

prevent or to ad in preventing any wrongs mentioned in section

1985 of Title -2 which he had knowledge were about to occur

and power to jrevent;

(3) To edress the deprivation, under color of any State

law, Statute, orlinance, regulation, custom or usage, of any right,

privilege or immunity secured by the Constitution of the United

29

States or by any Act of Congress providing for equal rights of

citizens or of all persons within the jurisdiction of the United

States;

"(4) [T]o secure equitable or other relief under any Act of

Congress providing for the protection of civil rights... ."

30