Download - 1:15-cv-0010 #25
-
8/9/2019 1:15-cv-0010 #25
1/30
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
-
8/9/2019 1:15-cv-0010 #25
2/30
(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
Case 1:15-cv-00104-CG-N Document 25 Filed 03/11/15 Page 2
-
8/9/2019 1:15-cv-0010 #25
3/30
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
Case 1:15-cv-00104-CG-N Document 25 Filed 03/11/15 Page 3
-
8/9/2019 1:15-cv-0010 #25
4/30
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
Case 1:15-cv-00104-CG-N Document 25 Filed 03/11/15 Page 4
-
8/9/2019 1:15-cv-0010 #25
5/30
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
Case 1:15-cv-00104-CG-N Document 25 Filed 03/11/15 Page 5
-
8/9/2019 1:15-cv-0010 #25
6/30
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
Case 1:15-cv-00104-CG-N Document 25 Filed 03/11/15 Page 6
-
8/9/2019 1:15-cv-0010 #25
7/30
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.
Case 1:15-cv-00104-CG-N Document 25 Filed 03/11/15 Page 7
-
8/9/2019 1:15-cv-0010 #25
8/30
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
Case 1:15-cv-00104-CG-N Document 25 Filed 03/11/15 Page 8
-
8/9/2019 1:15-cv-0010 #25
9/30
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
Case 1:15-cv-00104-CG-N Document 25 Filed 03/11/15 Page 9
-
8/9/2019 1:15-cv-0010 #25
10/30
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
Case 1:15-cv-00104-CG-N Document 25 Filed 03/11/15 Page 10
-
8/9/2019 1:15-cv-0010 #25
11/30
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
Case 1:15-cv-00104-CG-N Document 25 Filed 03/11/15 Page 11
-
8/9/2019 1:15-cv-0010 #25
12/30
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
Case 1:15-cv-00104-CG-N Document 25 Filed 03/11/15 Page 12
C 1 15 00104 CG N D 25 Fil d 03/11/15 P 13
-
8/9/2019 1:15-cv-0010 #25
13/30
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
Case 1:15-cv-00104-CG-N Document 25 Filed 03/11/15 Page 13
C 1 15 00104 CG N D t 25 Fil d 03/11/15 P 14
-
8/9/2019 1:15-cv-0010 #25
14/30
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
Case 1:15-cv-00104-CG-N Document 25 Filed 03/11/15 Page 14
Case 1:15 cv 00104 CG N Document 25 Filed 03/11/15 Page 15
-
8/9/2019 1:15-cv-0010 #25
15/30
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
Case 1:15-cv-00104-CG-N Document 25 Filed 03/11/15 Page 15
Case 1:15-cv-00104-CG-N Document 25 Filed 03/11/15 Page 16
-
8/9/2019 1:15-cv-0010 #25
16/30
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
Case 1:15-cv-00104-CG-N Document 25 Filed 03/11/15 Page 16
Case 1:15-cv-00104-CG-N Document 25 Filed 03/11/15 Page 17
-
8/9/2019 1:15-cv-0010 #25
17/30
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
Case 1:15 cv 00104 CG N Document 25 Filed 03/11/15 Page 17
Case 1:15-cv-00104-CG-N Document 25 Filed 03/11/15 Page 18
-
8/9/2019 1:15-cv-0010 #25
18/30
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
Case 1:15 cv 00104 CG N Document 25 Filed 03/11/15 Page 18
Case 1:15-cv-00104-CG-N Document 25 Filed 03/11/15 Page 19
-
8/9/2019 1:15-cv-0010 #25
19/30
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
Case 1:15-cv-00104-CG-N Document 25 Filed 03/11/15 Page 20
-
8/9/2019 1:15-cv-0010 #25
20/30
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
Case 1:15-cv-00104-CG-N Document 25 Filed 03/11/15 Page 21
-
8/9/2019 1:15-cv-0010 #25
21/30
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
Case 1:15-cv-00104-CG-N Document 25 Filed 03/11/15 Page 22
-
8/9/2019 1:15-cv-0010 #25
22/30
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
Mobile, Alabama 36602
Attorneys for Honorable Don D
Judge of Probate of Mobile Coun
Case 1:15-cv-00104-CG-N Document 25 Filed 03/11/15 Page 23
-
8/9/2019 1:15-cv-0010 #25
23/30
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
Mobile, Alabama 36601
Christine Cassie Hernande
P.O. Box 66174
Mobile, Alabama 36660
s/ Clay R. Carr
OF COUNSEL
Case 1:15-cv-00104-CG-N Document 25-1 Filed 03/11/15 Page 1 of 7
-
8/9/2019 1:15-cv-0010 #25
24/30
Case 1:15-cv-00104-CG-N Document 25-1 Filed 03/11/15 Page 2 of 7
-
8/9/2019 1:15-cv-0010 #25
25/30
Case 1:15-cv-00104-CG-N Document 25-1 Filed 03/11/15 Page 3 of 7
-
8/9/2019 1:15-cv-0010 #25
26/30
Case 1:15-cv-00104-CG-N Document 25-1 Filed 03/11/15 Page 4 of 7
-
8/9/2019 1:15-cv-0010 #25
27/30
Case 1:15-cv-00104-CG-N Document 25-1 Filed 03/11/15 Page 5 of 7
-
8/9/2019 1:15-cv-0010 #25
28/30
Case 1:15-cv-00104-CG-N Document 25-1 Filed 03/11/15 Page 6 of 7
-
8/9/2019 1:15-cv-0010 #25
29/30
Case 1:15-cv-00104-CG-N Document 25-1 Filed 03/11/15 Page 7 of 7
-
8/9/2019 1:15-cv-0010 #25
30/30