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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CARI D. SEARCY, )

)

Plaintiff, )

) Case No. 1:15-cv

vs. ))

HON. DON DAVIS, individually and )

in his official capacity as Probate )

Judge for Mobile County, Alabama, )

)

Defendant. )

DEFENDANT’S REPLY TO PLAINTIFF’S

OPPOSITION TO MOTION TO DISMISS

COMES NOW defendant Don Davis, Judge of Probate of Mob

Alabama (“Judge Davis”), and submits the following reply to the

opposition to the defendant’s motion to dismiss, respectfully showing

Davis is entitled to dismissal of all claims.

I. Reply To Plaintiff’s Contentions of Fact.

Plaintiff Cari Searcy’s introduction to her response in opposition to

to dismiss makes several erroneous contentions of fact. First, the plaint

Case 1:15-cv-00104-CG-N Document 25 Filed 03/11/15 Page 1

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(Doc. 16, p. 2). The plaintiff similarly states elsewhere “the Supreme C

United States has effectively ruled that Alabama’s bans on same-sex m

recognition of out-of-state same-sex marriages ended on February 9, 201

contends also that the Eleventh Circuit Court upheld this Court’s ruling t

as well. (Doc. 16, p. 3). Neither the Eleventh Circuit Court of Appe

United States Supreme Court has issued a ruling affirming this Court’s d

provisions of the Alabama Constitution and state statutes banning same-s

are unconstitutional. While the U.S. Supreme Court’s decision in the

marriage-rights case currently pending before it may effectively uphold

by this Court, the Supreme Court and the Eleventh Circuit have at thi

denied motions to stay this Court’s order, which clearly is not equiv

affirmance on the merits. Until the Supreme Court rules on the merits, th

no affirmance of this Court’s order enjoining enforcement of Alabama

marriage laws.

The plaintiff also states erroneously that Judge Davis is refusing

adoption sought by the plaintiff, or even to set it for a final, disposition


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Resources (DHR) filed in the Mobile County Probate Court a notice

clearances had been completed and no further investigation was required.

filed under seal). Furthermore, the plaintiff still has not submitted the requ

“Report of Adoption” form, which she must file before there can

disposition. In the regular course of business, as soon as the plaintiff file1

form, her petition will be set on the next available docket, which curre

have been April 17, 2015 had the plaintiff filed the completed form prom

Davis has therefore neither refused to set a final, dispositional hear

plaintiff’s petition nor refused to grant the plaintiff’s petition.

Finally, the plaintiff contends that Judge Davis is infringing on th

constitutional rights and directly violating the injunction imposed upon

Court. (Doc. 16, p. 4). Neither contention is true. The plaintiff’s petit

eligible for a final hearing until DHR filed its notice on March 6, 2015,

has not submitted all required documents for a dispositional hearing.

County Probate Court has neither refused to schedule a final hearing nor

h bil C b C ’ d d i i h fi l1


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plaintiff’s petition. The plaintiff has suffered no constitutional violation

Probate Court in any way violated the injunction issued by this Court.

II. Sufficiency Of The Plaintiff’s Complaint.

The plaintiff argues that her Complaint meets the pleading requ

Rule 12(b)(6) F. R. Civ. P., by alleging sufficient facts which, if proved,

a recognized claim upon which relief could be granted. (Doc. 16, p. 5, e

contends that dismissal is not appropriate. Regardless of the sufficiency

pleaded, the claims against Judge Davis are nevertheless due to be dismis

those claims are not ripe for adjudication and no actual case or controv

between the parties.

As Judge Davis showed in his motion to dismiss and supporting b

the plaintiff’s alleged injury is based upon some anticipated future occur

contingent on a number of factors, the claim is merely speculative and

adjudication. See Texas v. United States, 523 U.S. 296, 300-01 (1998).

not ripe for adjudication where they rest upon “contingent future events t

occur as anticipated, or indeed may not occur at all.” Thomas v. Uni

Agric. Prods. Co., 473 U.S. 568, 580-81 (1985). The plaintiff’s claims he


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a hearing, the petition will be denied for a discriminatory reason. Neith

events has occurred. As stated, the plaintiff did not provide proof of serv

and DHR did not file its notice until March 6, 2015, clearing the plainti

for a final, dispositional hearing, and the plaintiff has not yet submitte

documents that the probate court requires for every adoption. If the plain

all of the required documents promptly, the final hearing could be set as s

17, 2015 and the speculative harm underlying the plaintiff’s claims will

at all. No final hearing would be set for an adoption petition filed by an o

couple prior to receipt of DHR’s notice and all other required documents

regardless of the sufficiency of the factual allegations in the Complaint, th

claims still are due to be dismissed because she has suffered no injury and

actual controversy between the parties.

Adoptions are not automatically granted or always allowed. T

careful deliberation and extremely important decisions, because adoption

rest of the minor’s life. Further, an adoption by the petitioner here legally

the parental rights of the minor’s father, including any obligation of t

support the child in the event the mother becomes incapacitated, and als


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III. Judge Davis Is Entitled To Dismissal Of The Claims Against

On Qualified Immunity.

The plaintiff claims, without explanation or any citation of authority

Davis is not entitled to qualified immunity. The Eleventh Circuit Court e

Denno ex rel. Denno v. School Bd., 218 F.3d 1267 (11 Cir. Fla. 2000):th

Qualified immunity shields government officials from both sui

liability if their conduct violates no clearly established right of wh

reasonable person would have known. See Santamorena v. Ge

Military College, 147 F.3d 1337, 1339-40 (11 Cir.1998)(cth

Williams v. Alabama State Univ., 102 F.3d 1179, 1182 (11 Cir.19th

Elaborating on the qualified immunity standard, we have held:

For qualified immunity to be surrendered, preexisting law

must dictate, that is, truly compel, (not just suggest or

allow or raise a question about), the conclusion for every

like-situated, reasonable government agent that what

defendant is doing violates federal law in the

circumstances.

Lassiter v. Alabama A&M Univ., 28 F.3d 1146, 1150 (11 Cir.199th

banc).

Denno v. School Bd., 218 F.3d at 1269-1270. The 11 Circuit Courtth

recently in Gomez v. United States, 2015 U.S. App. LEXIS 2124 (11 Cth

2015):

The “threshold inquiry” in determining whether qualified immun


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Even if the plaintiff alleges facts that would establish a violation

constitutional right, qualified immunity will shield the defendant suit unless the right was clearly established at the time of the all

violation. The relevant, dispositive inquiry in determining whet

right is clearly established is whether it would be clear to a reason

officer that his conduct was unlawful in the situation he confront

We need not employ a rigid two-step procedure, but rather may exeour discretion to decide which of the two prongs of the qua

immunity analysis should be addressed first in light of the circumsta

in the particular case at hand.

Id. at 7-8. (Quotations marks and citations omitted.)

In this case, the answer to the clearly-established-law inquiry

apparent. Few, if any, issues of law currently are as uncertain in th

country as that of the marriage and associated rights of same-sex couples.

rulings from this Court and the Alabama Supreme Court, and from state

courts in other jurisdictions, as well as the imminent ruling by the U.

Court on the rights of same-sex couples, have created much confusion abo

applicable law requires. Nevertheless, the plaintiff insists:

Searcy has alleged the violations of her constitutional rights b

Defendant. These rights have been clearly established by this Cour

further supported by Orders of the 11 Circuit and the Supreme th

of the United States.


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States Supreme Court, the United States Court of Appeals for the Eleve

and the highest court of the pertinent state . . . can clearly establish th

Marsh v. Butler County, 268 F.3d 1014, 1032 n.10 (11 Cir. 2001) (th

McClish v. Nugent , 483 F.3d 1231, 1237 (11 Cir. Fla. 2007). The decth

Court cannot establish the law clearly for qualified immunity purposes,

the Eleventh Circuit Court nor the U.S. Supreme Court has addressed w

is a constitutional right to recognition of same-sex marriage. The fact t

Supreme Court will consider during its current term the constitutional rig

sex couples shows conclusively that the law on the issue is not clearly es

the federal courts. In fact, the only court that has addressed the iss

authority to establish the law clearly in Alabama for qualified immunity

the Alabama Supreme Court – on March 3, 2015 explicitly ordered Alaba

judges to enforce the state’s laws prohibiting recognition of same-sex m

March 10, 2015, the Alabama Supreme Court issued an 11-page Order

Davis must comply with the earlier order to enforce the state’s laws. Beca

on the issue is not clearly established, Judge Davis is entitled to qualifie

even if the plaintiff were able to show a violation of her constitutional r


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argues “the Supreme Court of the United States has effectively ruled that

bans on same-sex marriage and recognition of out-of-state same-sex marr

on February 9, 2015” and “the 11 Circuit upheld [this Court’s] Ordeth

Supreme Court of the United States.” (Doc. 16, p. 3. Emphasis ad

argument, as noted, rests on the appellate courts’ refusal to stay t

judgment. Again, the plaintiff widely misses the mark and ignores

According to the U.S. Supreme Court, “‘clearly established Federal law

the holdings, as opposed to the dicta, of [the Supreme Court’s] decisio

time of the relevant . . . decision.’ Williams v. Taylor , 529 U.S. 362, 412

1495, 1523, 146 L. Ed. 2d 389 (2000).” Everett v. Sec'y, Fla. Dep't of

U.S. App. LEXIS 3027, 60 (11 Cir. Feb. 27, 2015). (Ellipsis added. Othth

in Everett .) For qualified immunity purposes, the law cannot be clearly

merely by implication from the 11 Circuit’s or Supreme Court’s denial th

for a stay, or even by dictum in an opinion. Only a ruling on the merits

Where the law is not clearly established, this Court need not even consi

the factual allegations, if true, would show a constitutional violation. Go

2015 U.S. App. LEXIS 2124 at 8. As shown previously, however, no vio


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Interlocutory Order was qualified and stated that no final hearing would

after the U.S. Supreme Court rules on the underlying issue of same-se

rights. But the mere fact the interlocutory order was qualified has not d2

plaintiff of any right. Because her petition was not even eligible to be se

hearing until DHR filed its notice on March 6, 2015, and because the plain

not submitted all required documents for a dispositional hearing, she has b

no differently from opposite-sex couples who petition for adoption. Had

submitted the required documents, her petition could be scheduled for a d

hearing on the court’s earliest available docket, just like every other adopti

She therefore has not suffered any deprivation of her constitutional or stat

and Judge Davis is entitled to dismissal of all claims based on qualified

IV. Judge Davis Is Entitled To Eleventh Amendment Immunity As

Performing A State Function.

The Office of the Probate Judge of Mobile County, Alabama i

created by the Alabama Constitution:

There shall be a probate court in each county which shall have ge

jurisdiction of orphans’ business, and of adoptions, and with pow


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grant letters testamentary, and of administration, and of guardians

and shall have such further jurisdiction as may be provided by law

Alabama Const ., Art. VI, Sec. 144. As Judge of Probate, Judge Davis i

of the state’s unified judicial system:

Except as otherwise provided by this Constitution, the judicial pow

the state shall be vested exclusively in a unified judicial system wshall consist of a supreme court, a court of criminal appeals, a co

civil appeals, a trial court of general jurisdiction known as the c

court, a trial court of limited jurisdiction known as the district co

probate court and such municipal courts as may be provided by l

Alabama Const ., Art. VI, Sec. 139. (Emphasis added). The probate judg

County, unlike some other counties in Alabama, is required to be an at

plaintiff’s response to the motion to dismiss cited two cases in which pro

in counties other than Mobile were held to have functioned as county of

than state officials in supervising personnel employed by those probate

defendants were found not to be entitled to Eleventh Amendment immun

supervisory functions. (Doc. 16, pp. 17, 20). Both of those cases, how

lawsuits by employees that included claims under 42 U.S.C. §1983 arisin

employment. The critical distinction in this case is that the claims ag

Davis relate to his actions as a state judicial officer discharging a p


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relate to the decisions of a state judicial officer in discharging a function

Judge Davis is entitled to Eleventh Amendment immunity.

V. The Court Lacks Jurisdiction Over Claims Rendered Moot By I

Events.

On March 9, 2015, Judge Davis entered an Amended Interlocutory

plaintiff’s adoption proceedings. (See Exhibit B, Amended Interlocutory

under seal.) Following amendment, the current Interlocutory Order doe

in any material way from interlocutory orders issued in other step-pare

cases. Also later on March 9, 2015, Judge Davis entered an order recus

from all further proceedings in the plaintiff’s adoption case, bas

requirements of Canon (3)(c)(1), Alabama Canons of Judicial Ethics, a

the case to the Chief Justice of the Alabama Supreme Court for reassignme

to §12-1-14, Ala. Code. (See Exhibit C, Order of Recusal, filed under

plaintiff’s claims against Judge Davis are now moot because following th

Interlocutory Order entered on March 9, 2015, the issues raised in the Co

no longer “live” and the plaintiff is not entitled to any relief sought. Furt

recused himself from the plaintiff’s adoption case, Judge Davis no


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moot by reason of intervening events. When effective relief cannot be g

because of later events, the [case] must be dismissed as moot. See, e

Products, Inc. v. Messick , 700 F.2d 635, 636 (11 Cir. 1983). A case isth

the issues are no longer ‘live’ or when the parties have no ‘legally

interest’ in the outcome of the litigation. Murphy v. Hunt , 455 U.S. 478,

Ct. 1181, 1183, 71 L. Ed. 2d 353 (1982).” Westmoreland v. National Tr

Bd., 833 F.2d 1461, 1462-1463 (11 Cir. 1987).th

The plaintiff filed this case “as a challenge to the Probate Cour

County, Alabama’s refusal to grant an unqualified adoption to the Plain

1, p. 1). The intervening entry of the Amended Interlocutory Order ther

the plaintiff’s claims. The Amended Interlocutory Order also notified

that she has not yet filed all prerequisites required for a final dispo

presently has no valid claim for failure to grant the adoption petition be

not yet entitled to a final hearing or dispositional order. The plaintiff’

relief are therefore now moot.

The plaintiff’s prayer for relief asked this Court to enjoin Judge

enforcing “the Alabama Sanctity Laws” (Doc. 1, p. 6, ¶ (a)), which thi


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that this Court command Judge Davis “to grant the adoption sought in

[sic] without any further delay.” ( Id ., ¶ (b)). Because the plaintiff has not

all statutory requirements for a final, dispositional hearing, the adoption c

granted immediately. Again, no further relief can be granted. Th3

Interlocutory Order also moots the plaintiff’s requests for this Court: t

“qualified” Interlocutory Order (Doc. 1, p. 6, ¶ (c)); to order Judge Davis

discriminatory practices directed towards the Plaintiff and her family” (D

¶ (f)); and to order Judge Davis to vacate the Interlocutory Order to the4

“qualified.” (Doc. 1, p. 7, ¶ (h)). This Court therefore lacks further juris

the plaintiff’s claims.

The plaintiff’s Complaint also seeks damages. But, as discussed e

this brief, she has not suffered any injury or damage. Because the plain

provide proof of service of the adoption petition on DHR, no dispositio

could be scheduled until DHR filed its report on March 6, 2015. Conse

plaintiff’s petition has not been delayed or treated differently than any oth


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petition. All claims against Judge Davis, in both official and individua

are due to be dismissed.

VI. The Plaintiff Ignores The Responsibility Of The Probate

Consider First And Foremost The Welfare Of The Child.

The plaintiff contends the Alabama Sanctity Laws are the only im

to this adoption. To the contrary, regardless of the identities of the

parents, the probate court cannot ignore its responsibility to consider the b

and well-being of the child first and foremost. Throughout this case and o

litigation, Judge Davis has expressed no personal opinion on the issues

marriage rights or adoption or parenting by same-sex couples. In his

service as Judge of Probate of Mobile County, Judge Davis has made m

decisions based on the best interests of children who have come before h

the citizens of Mobile County have acknowledged his integrity and exp

confidence in Judge Davis’ wisdom and fairness by re-electing him to

terms as their probate judge. (See e.g. Exhibit 8-3, Exhibit C to defenda

to Dismiss, letter to Judge Davis from plaintiff’s counsel David Kenn

suggestion that Judge Davis’ actions in this case have been motivated or



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County. Judge Davis has been placed in an unfortunate and untenable p

conflicting orders from this Court and the Alabama Supreme Court,

refused to stay their conflicting directives. The Eleventh Circuit Cou

Supreme Court also refused requests to stay this Court’s order. Judg

strived diligently to comply with all orders from this Court and the Alabam

Court, to the fullest extent possible, but the Alabama Canons of Judicial

now necessitated his recusal from further proceedings in the plaintiff’s ado

To be clear, Judge Davis has taken no action in violation of this Cou

Regardless of the broader issues and the controversy that has surr

plaintiff’s petition, she still must demonstrate to the judge appointed to

final hearing that the welfare of the child is best served by approving th

petition. The law, as interpreted by this Court, only entitles the plaintiff t

no differently than any other petitioner. No amount of controversy or p

alter the primary responsibility of the Mobile County Probate Court to

welfare of the child the plaintiff seeks to adopt.

VII. The Plaintiff’s Claims Are Barred By Res Judicata.

As Judge Davis showed in his motion to dismiss and supportin



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dismissal with prejudice in the prior lawsuit between the parties was a fin

on the merits. The parties to the prior lawsuit, Cari Searcy and Judge

were the same as the parties in this case. The judgment of dismissal wi

entered by this Honorable Court in the previous case was an order rendere

of competent jurisdiction. The claims in this case merely restate

previously dismissed with prejudice by stipulation.

The plaintiff contends that the claims in this case differ from th

between the parties because “[t]his current lawsuit challenges Hon. D

refusal to grant final adoption,” and “[i]n qualifying his Interlocutory O

conditioning final adoption in this matter for an indefinite period of time

exhibited new and different behavior . . ..” (Doc. 16, p. 15). The plai

further, “Davis has further harmed the Plaintiff (and her family) since t

was decided by this Court, vis-a-vis his Qualified Interlocutory Order.” Id

in this brief, Judge Davis has not refused to grant a final adoption. T

merely has failed to take all necessary steps to advance her petition

dispositional hearing. The Amended Interlocutory Order removes any qu

and clears the plaintiff’s petition for a final hearing in the normal co



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subsequent occurrence, distinguishable from the claims in the prior

distinctions were eliminated by the Amended Interlocutory Order and the

suffered no damages nor injury in fact. Identical claims by the pl

dismissed with prejudice in the prior suit, and the plaintiff’s claims are

by res judicata.

VIII. The Plaintiff’s Claims Are Barred By The Rooker-Feldman

Which Deprives This Court Of Jurisdiction.

The Rooker-Feldman doctrine was enunciated by the United Stat

Court in two cases, Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and

Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). The Rook

doctrine holds that lower United States federal courts – i.e., federal court

the Supreme Court – should not sit in direct review of state court decis

Congress has specifically authorized such relief. In short, federal court

U.S. Supreme Court must not become a court of appeals for state court d

state court plaintiff has to find a state court remedy, or then obtain relief fr

Supreme Court.

“United States District Courts, therefore, have subject matter jurisd



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have jurisdiction, however, over challenges to state court decisions in part

arising out of judicial proceedings even if those challenges allege th

court’s action was unconstitutional. Review of those decisions may be

this Court.” Rooker , 263 U.S. at 486.

“ Rooker-Feldman also precludes federal courts from reviewing no

interlocutory state judgments.” Bosdorf v. Beach, 79 F. Supp. 2d 1337,

Fla. 1999). “It cannot be the meaning of Rooker-Feldman that, while

federal courts are barred from reviewing final decisions of state courts, t

to review interlocutory orders.” Campbell v. Greisberger , 80 F. 3d 703,

1996) ( Rooker-Feldman challenge to interlocutory order); see also

Shulman, 55 F. 3d 87 (2d Cir. 1995) ( Rooker-Feldman applies whether

“final or interlocutory in nature”); ( Rooker-Feldman is broader than

doctrines because it does not depend on final judgment); Goetzman v. Agr

91 F. 3d 1173, 1177 (8 Cir. 1996); Charchenko v. City of Stillwater , 47th

983 (8 Cir. 1995) (doctrine not dependent on final judgment).th

It is important to note that the Rooker-Feldman doctrine can be r

time because lack of subject-matter jurisdiction cannot be waived and a ju

g


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1144 (10 Cir. 2004) (“Because subject-matter jurisdiction is integral toth

to hear any case, it is permissible for the defendants to invoke the Rook

doctrine for the first time on appeal.”)

The general statutes that establish original federal subject-matter

in the federal district courts do not extend to an “appeal” from a state-co

The plaintiff never asked Judge Davis for a hearing on the Interlocutory O

asked Judge Davis to reconsider his ruling, never presented case law to J

supporting her position, and has not appealed the Judge’s Interlocut

Therefore, the plaintiff has not exhausted the remedies of the Alabama

before attempting to invoke the jurisdiction of the Federal Court. As

Complaint is barred by the Rooker-Feldman doctrine and is due to be di

lack of subject-matter jurisdiction.

IX. Judge Davis Is Entitled To Absolute Judicial Immunity.

In his motion to dismiss, Judge Davis asserted his entitlement

judicial immunity, which the plaintiff has not responded to. In Sibley v.

F.3d 1067 (11 Cir. 2005), the Eleventh Circuit Court held that claims agth

trial judge and appellate court judges arising from their judicial dec


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those acts taken while they are acting in their judicial capacity u

they acted in the 'clear absence of all jurisdiction.'" Bolin v. Story

F.3d 1234, 1239 (11th Cir. 2000) (citations omitted). "This immapplies even when the judge's acts are in error, malicious, or we

excess of his or her jurisdiction." Id. Whether a judge's actions

made while acting in his judicial capacity depends on whether: (1

act complained of constituted a normal judicial function; (2) the e

occurred in the judge's chambers or in open court; (3) the contro

involved a case pending before the judge; and (4) the confront

arose immediately out of a visit to the judge in his judicial cap

Scott v. Hayes, 719 F.2d 1562, 1565 (11th Cir. 1983).

We reject, from the outset, the use of § 1983 as a device for colla

review of state court judgments.

Sibley v. Lando, 437 F.3d 1067, 1070 (11 Cir. 2005). Judge Davis’ acts th

here complains of constituted a normal judicial function and occurred in

of the Probate Court’s regular proceedings. The controversy involves a c

pending before Judge Davis, and it arose immediately out of proceed

Judge Davis in his judicial capacity. Judge Davis is therefore entitled

judicial immunity and to dismissal of all claims against him.

WHEREFORE, based on the foregoing grounds and authoriti

grounds and authorities stated in the defendant’s Motion to Dismiss and

brief, Judge Don Davis shows that he is entitled to dismissal of all claim


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s/ Clay R. Carr

Clay R. Carr (ASB-5650-C42C)

Mark S. Boardman (ASB-8572-BTeresa B. Petelos (ASB-8716-L6

BOARDMAN, CARR , BENNETT, W

HILL & GAMBLE, P.C.

400 Boardman Drive

Chelsea, Alabama 35043-8211

Telephone: (205) 678-8000

Facsimile: (205) 678-0000

/s/ Harry V. Satterwhite

Harry V. Satterwhite

J. Michael Druhan, Jr.SATTERWHITE, DRUHAN, GAILLA

TYLER , L.L.C.

1325 Dauphin Street

Mobile, Alabama 36604

Telephone: (251)432-8120

Facsimile: (251)405-0147

Along With: Lee L. Hale

HALE AND HUGHES

501 Church Street


Attorneys for Honorable Don D

Judge of Probate of Mobile Coun


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CERTIFICATE OF SERVICE

I hereby certify that on March 11, 2015, I electronically filed thwith the Clerk of Court using the AlaFile electronic filing system whic

notification of such filing to the following counsel of record. If any of th

are not registered with the AlaFile electronic filing system, I certify that

be served by mailing a copy of the same by United States Mail properl

and first class postage prepaid, to wit:

David G. Kennedy, Esq.

THE K ENNEDY LAW FIRM

P.O. Box 556


Christine Cassie Hernande

P.O. Box 66174


s/ Clay R. Carr

OF COUNSEL

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