# Appendix — Duncan v. Cobb

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1104%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 860

## Text

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

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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

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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.

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1104%3A2. Public record. Not legal advice.