Snow v. King et al

Filing 39

MEMORANDUM OPINION AND ORDER GRANTING 13 MOTION to Dismiss; Plaintiff's 16 MOTION for Partial Summary Judgment is hereby TERMINATED as MOOT for reasons stated herein. Signed by Judge Virginia Emerson Hopkins on 2/1/2018. (JLC)

FILED
2018 Feb-01 AM 09:19
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
HENRY SNOW,
Plaintiff,
v.
THOMAS A. KING, individually and
officially as municipal court judge for
the City of Gadsden, GARY
TUCKER, individually and officially
as prosecutor for the City of Gadsden,
and the CITY OF GADSDEN,
Defendants.

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) Case No.: 4:17-CV-1048-VEH
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MEMORANDUM OPINION AND ORDER
The Plaintiff, Henry Snow, has sued Thomas A. King, individually, and in his
official capacity as the municipal court judge for the City of Gadsden, Alabama (the
“City”), for violation of 42 U.S.C. § 1983 (Counts One, Two, Three, Four, and Five)
and various state law claims (Counts Six, Seven, Eight, and Nine).1 All Counts arise

1

The Amended Complaint is also filed against the City, and Gary Tucker and Kristi
Owens, individually, and in their official capacities a prosecutors for the City. Finally, the
Plaintiff sues Brian Greer individually, and in his official capacity as the nuisance enforcement
officer for the City. The instant motions do not concern these Defendants. Count Ten appears to
set out only a claim for prospective declaratory and injunctive relief and not an actual cause of
action. (Doc. 9 at 19). These other Defendants have filed briefs referencing the Plaintiff’s Motion
for Partial Summary Judgment. (Docs. 24, 27). Because that motion is directed only towards
Judge King, and because the Court finds that motion to be moot, it will not address the
arguments of these other Defendants.

out of the City’s prosecution of the Plaintiff for violation of the City’s “Nuisance
Abatement Ordinance.”
The case comes before the Court on Defendant King’s Motion to Dismiss (doc.
13), and the Plaintiff’s Motion for Partial Summary Judgment (doc. 16). For the
reasons stated herein, the Motion To Dismiss will be GRANTED, and the Motion for
Summary Judgment will be TERMED as MOOT.
I.

THE MOTION TO DISMISS (DOC. 13)
A.

Standard

In Defendant King’s motion, filed pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, he claims that the Amended Complaint fails to state a claim
upon which relief may be granted. Generally, the Federal Rules of Civil Procedure
require only that the complaint provide “a short and plain statement of the claim
showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a). However, to
survive a motion to dismiss brought under Rule 12(b)(6), a complaint must “state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007) (“Twombly”).
A claim has facial plausibility “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly,
2

550 U.S. at 556) (“Iqbal”). That is, the complaint must include enough facts “to raise
a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation and
footnote omitted). Pleadings that contain nothing more than “a formulaic recitation
of the elements of a cause of action” do not meet Rule 8 standards, nor do pleadings
suffice that are based merely upon “labels or conclusions” or “naked assertion[s]”
without supporting factual allegations. Id. at 555, 557 (citation omitted).
Once a claim has been stated adequately, however, “it may be supported by
showing any set of facts consistent with the allegations in the complaint.” Id. at 563
(citation omitted). Further, when ruling on a motion to dismiss, a court must “take the
factual allegations in the complaint as true and construe them in the light most
favorable to the plaintiff.” Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir.
2008) (citing Glover v. Liggett Group, Inc., 459 F.3d 1304, 1308 (11th Cir. 2006)).
B.

Allegations in the Amended Complaint

The Amended Complaint states as follows:
9.
The City of Gadsden has a Nuisance Abatement Ordinance that
governs its efforts to regulate junk cars.
10. Section 86-1(2)(c) of the statute excepts and removes registered
antique wagons from regulation.
11. At the time of his junk car conviction, the plaintiff’s vintage
Impala wagon (“wagon”) was a registered antique wagon and, therefore,
exempt from regulation by the ordinance.
3

12. The initial notice regarding the plaintiff’s wagon was issued on
8/19/15 by defendant Greer without probable cause as it failed to specify
the vehicle or specific nuisance violation.
13. The plaintiff tried to appeal this notice to no avail as the nuisance
enforcement officer failed to afford the plaintiff the right to appeal the
same and failed to provide info regarding the manner to appeal said
finding.
14. The plaintiff was issued a defective citation by the nuisance
enforcement officer on January 27, 2016[,] regarding an unidentified
wagon and an initial court appearance was set for 3/3/16. The citation
failed to state the facts that were the basis for the violation and was
otherwise vague and unconstitutional.
15. At all times relevant hereto, the wagon was covered and/or parked
in a way that defendants could not have been able to ascertain whether
the wagon did or did not have a valid tag.
16. On 3/3/17 and prior to any conviction or trial on the merits, the
Judge ordered the plaintiff to get rid of the wagon and then generally
re-set the case for May 12, 2016. After court on the same day,
enforcement Officer Brian Green apologetically advised the plaintiff
that all he needed to do was secure an antique registration and that such
registration would void this prosecution.
17. On the same day, the plaintiff registered the wagon as an antique
wagon.
18. The plaintiff returned to court on 5/12/16, objected to the charge
and produced his antique car registration. In retaliation for the plaintiff’s
speech and presentation of the registration at the court setting, which
otherwise warranted dismissal of charges and full exoneration, the Judge
and prosecutor commenced an unnoticed and unscheduled “trial” and
convicted the plaintiff of the junk car charges including a fine of
$250.00 and court costs of $47.00.
4

19. The plaintiff filed a timely appeal. Pursuant to this appeal,
defendant Owens caused a new citation to be generated that was
deficient and otherwise unlawful as said vehicle was exempt at the time
of said citation and said citation failed to adequately allege with
specificity the nuisance charge. Defendant Tucker participated in its
creation and prosecuted said appeal in spite of said deficiency. The
prosecutors later nol prossed and otherwise dismissed the charges
pursuant to the City of Gadsden’s policy of dismissing charges against
defendants who produce valid antique car or other registration. This
policy was in effect prior to the plaintiff’s conviction but was selectively
ignored.
20. The City of Gadsden cedes an unreasonable amount of authority
to the Judge and prosecutor. The Judge and prosecutor routinely
conspire to ignore city policy and violate the civil rights of defendants.
Hence, said conduct is rendered the official policy of the City.
21. White, insider neighbors of the plaintiff [sic] have maintained
junk cars for decades without citation. As such, the defendants are
motivated by unlawful prejudice to selectively not enforce the junk car
ordinance against certain residents because of their race and/or political
affiliation.
22. At all times relevant hereto, the prosecutor had evidence that the
charges against the plaintiff were due to be dismissed but failed to nol
pross the action or take measures necessary to avoid the unlawful junk
car conviction of the plaintiff.
(Doc. 9 at 7-10, ¶¶9-22).
C.

Analysis

In his response to the Motion To Dismiss, the Plaintiff states that he “waives
any request for money damages and/or injunctive relief . . . against defendant King,”

5

and “seeks declaratory relief only.” (Doc. 16 at 12). Only the following declaratory
relief is set out in the Amended Complaint:
That this Court enter a declaratory judgment finding that the defendants
wrongfully convicted and/or failed to set aside the conviction of the
plaintiff and that the Court engages in a pattern and practice of such
conduct in violation of the Due Process, Takings Clauses of the 14th and
5th Amendments, 42 U.S.C. 1983, 1st and 6th Amendments, the
Alabama Constitutional corresponding provisions and state common law
and statutes.
(Doc. 9 at 22). Although not specifically labeled as a request for declaratory relief,
the Amended Complaint also asks this Court to “[f]ind [the nuisance] ordinance
unconstitutional to the extent it does not require a description of said alleged
inoperable vehicle and nuisance.” (Doc. 9 at 22). Keeping in mind the exact nature
of the relief requested, the Court now moves into a discussion of Judge King’s
liability.
1.

Judicial Immunity

This Fifth Circuit has said that confusion comes when “[c]ourts discuss
immunity defenses without clearly articulating to whom and in which capacity those
defenses apply.” Turner v. Houma Mun. Fire & Police Civil Serv. Bd., 229 F.3d 478,
485 (5th Cir. 2000); see also, VanHorn v. Oelschlager, 502 F.3d 775, 779 (8th Cir.
2007) (citing and agreeing with the proposition stated in Turner). This Court agrees.
Judicial immunity, to the extent that it applies in this case, is a defense to claims
6

brought against Judge King in his individual capacity. Sibley v. Lando, 437 F.3d
1067, 1074 (11th Cir. 2005) (“Finally, to the extent Sibley sought to amend his
complaint to clarify that he wished to sue Judges Schwartz and Goderich in their
individual capacities, such an amendment would also be futile, as both judges were
entitled to judicial immunity from suit in their individual capacities.”); see also,
Andrews v. Hens-Greco, 641 F. App'x 176, 180 (3d Cir. 2016) (“We therefore hold
that Judge Hens–Greco is entitled to absolute judicial immunity from Andrews's
individual capacity claim for money damages.”); Davis v. Tarrant Cty., Tex., 565 F.3d
214, 228 (5th Cir. 2009) (“[The] claims against the defendant judges in their
individual capacities are barred by the doctrine of judicial immunity.”); Aron v.
Becker, 48 F. Supp. 3d 347, 363 (N.D.N.Y. 2014) (McAvoy, J.) (dismissing on the
basis of judicial immunity “all claims brought against Judge Becker in his individual
capacity”); Mills v. City of Shreveport, 58 F. Supp. 3d 677, 687 (W.D. La. 2014)
(Hicks, J.) (“[A]bsolute immunity is not available to individual defendants sued in
their official capacity. Absolute immunity only applies to claims against individual
defendants with respect to their individual capacity.”) (citation omitted); McCulley
v. Chatigny, 390 F. Supp. 2d 126, 128 (D. Conn. 2005) (Kravitz, J.) (claims against
judges in their individual capacities dismissed on the grounds of absolute judicial
immunity).
7

All of the counts in the Amended Complaint, to the extent they are directed
towards Judge King, and whether based upon state law or federal law, grow out of
Judge King’s actions as a municipal judge presiding over the Plaintiff’s criminal case.
In that regard, it is well settled in Alabama that municipal court judges are entitled to
the defense of absolute judicial immunity and are not subject to monetary liability for
actions committed within their jurisdiction. Ex parte City of Greensboro, 948 So. 2d
540, 542 (Ala. 2006) (applying judicial immunity to municipal court clerk and writing
that “[j]udges acting in an official judicial capacity are entitled to absolute judicial
immunity under Alabama law”). This immunity has been specifically extended to §
1983 actions. Stump v. Sparkman, 435 U.S. 349, 356 (1978); citing Pierson v. Ray,
386 U.S. 547 (1967). Additionally, the Eleventh Circuit has recognized that this
immunity applies to municipal court judges acting within the scope of their
jurisdiction. Harris v. Deveaux, 780 F.2d 911(11th Cir. 1986); Ray v. Judicial Corr.
Servs., Inc., No. 2:12-CV-02819-RDP, 2014 WL 5090723, at *3 (N.D. Ala. Oct. 9,
2014) (Proctor, J.) (applying principles of judicial immunity to municipal court
judge). The Plaintiff does not dispute that judicial immunity applies to his state law
and federal law claims.2 Instead, as to his claims made pursuant to section 1983, he

2

To be clear, the Court holds that it does. In determining whether judicial immunity
applies, the first question to be answered is whether or not the Judge dealt with the plaintiff in a
judicial capacity. Harris, supra, at 914. In this instance, the Plaintiff’s complaint contains no
8

argues that judicial immunity does not bar claims for prospective declaratory relief.
In order to address this issue, it is best to set out briefly the history of judicial
immunity in the context of a section 1983 claim. The following excerpt from Judge
Proctor’s opinion in Ray v. Judicial Corr. Servs., Inc., No. 2:12-CV-02819-RDP,
2014 WL 5090723, at *3–4 (N.D. Ala. Oct. 9, 2014) (Proctor, J.) does so nicely:
[In] Pulliam v. Allen, 466 U.S. 522 (1984), [the Supreme Court] held
that judicial immunity does not bar prospective injunctive relief against
judicial officers for acts or omissions taken in a judicial capacity.
Congress, however, responded to Pulliam by amending 42 U.S.C. §
1983 in an attempt to abrogate Pulliam’s holding regarding the scope of
judicial immunity. After the Federal Courts Improvement Act of 1996
(“FCIA”) amendments, § 1983 now reads in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State ... subjects, or
causes to be subjected, any citizen of the United States ...
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress,
except that in any action brought against a judicial officer
for an act or omission taken in such officer's judicial
capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was
unavailable.
language which shows that Judge King was dealing with the Plaintiff in any capacity other than
as a municipal judge presiding over a case involving criminal charges. Therefore, the question
then becomes whether Judge King acted “in clear absence of all jurisdiction.” Id. This test is
satisfied only if the Judge “completely lack[ed] subject matter jurisdiction.” Id. at 916. In that
regard, the Plaintiff’s complaint presents no facts which show that Judge King acted in the clear
absence of all jurisdiction. Judge King is therefore entitled to absolute judicial immunity with
respect to the actions alleged by the Plaintiff in the Amended Complaint.
9

42 U.S.C. § 1983 (emphasis added)3; see also Pub.L. No. 104–317, §
309(c), 110 Stat. 3847 (codified at 42 U.S.C. § 1983).
It cannot be seriously disputed that, after the FCIA, judicial
immunity typically bars claims for prospective injunctive relief against
judicial officials acting in their judicial capacity. Only when a
declaratory decree is violated or declaratory relief is unavailable would
plaintiffs have an end-run around judicial immunity—and neither is true
here. This abrogation of Pulliam has been widely recognized. See
Guerin v. Higgins, 8 F. App'x 31, 32 (2d Cir.2001); Haas v. Wisconsin,
109 F. App'x 107, 114 (7th Cir.2004); Bolin v. Story, 225 F.3d 1234,
1242 (11th Cir.2000) (per curiam) (discussing amendment's purpose and
effect); Kuhn v. Thompson, 304 F.Supp.2d 1313, 1335 (M.D.Ala.2004);
Nollet v. Justices of Trial Court of Com. of Mass., 83 F.Supp.2d 204,
210 (D.Mass.), aff'd, 248 F.3d 1127 (1 st Cir.2000); Kampfer v. Scullin,
989 F.Supp. 194, 201–02 (N.D.N.Y.1997); see also Esensoy v.
McMillan, No. 06–12580, 2007 WL 257342, at *1 n. 5 (11th Cir. Jan.
31, 2007).
***
Notwithstanding § 1983's clarity regarding injunctive relief, that
statute fails to address the availability of prospective declaratory relief
to defeat judicial immunity.
***
The Eleventh Circuit has provided some guidance. Our circuit has
taught us that, in Pulliam,
the Supreme Court concluded that judicial immunity is not
a bar to demands for injunctive relief against state judges.
Congress abrogated Pulliam, however, by passing the
[FCIA], which amended § 1983 to provide that “in any
3

Judge Proctor’s opinion added the emphasis.
10

action brought against a judicial officer for an act or
omission taken in such officer's judicial capacity,
injunctive relief shall not be granted unless a declaratory
decree was violated or declaratory relief was unavailable.”
Because Appellant specifically requests declarative relief,
judicial immunity protects the Defendants only from
Appellant's request for injunctive relief. But § 1983 does
not explicitly bar Appellant's request for declarative relief.
Esensoy, 2007 WL 257342, at *1 n.5 (11th Cir. Jan. 31, 2007) (emphasis
added). On the one hand, Esensoy supports Plaintiffs' argument. In that
decision, the Eleventh Circuit seems to have permitted an exemption
from judicial immunity where plaintiffs requested declaratory[] and not
merely[] injunctive relief against a judge. On the other hand, Esensoy is
an unpublished opinion and even it acknowledges that Congress
abrogated Pulliam, at least in part, by passing the FCIA. Moreover, the
guidance as to Pulliam’s validity is also dicta—and, to be sure, dicta
buried in a footnote. Id. at 2.
There is really no question that in passing the FCIA, Congress
was responding to Pulliam. The Pulliam decision only exempted
prospective injunctive relief from the application of judicial immunity.
See 466 U.S. at 527–28. Addressing the issue in Esensoy, the Eleventh
Circuit noted that “ § 1983 does not explicitly bar Appellant's request for
declarative relief.” 2007 WL 257342, at *1 n. 5. But one might argue
Congress did not feel the need to explicitly bar claims for declaratory
relief because no such exemption from judicial immunity had ever
previously been recognized.
Ray, 2014 WL 5090723, at *3–4 (footnotes omitted); see also, Yellen v. Hara, No.
CIV. 15-00300 JMS, 2015 WL 4877805, at *5 (D. Haw. Aug. 13, 2015) (citing Ray
and Ensensoy, in dicta, for the proposition that “limited and non-binding authority
indicates that Pulliam might still apply for actions seeking ‘prospective declaratory

11

relief.’”); but see, Guerin v. Higgins, 8 F. App'x 31, 32 (2d Cir. 2001) (rejecting “[the]
plaintiff's contention that he is entitled to declaratory relief based on Pulliam . . .
given that the Pulliam holding with respect to such relief has been effectively
overruled by Congress.”); Adams v. Cody, No. CV 16-12075, 2016 WL 6585753, at
*3 (E.D. La. Aug. 24, 2016) (Knowles, M.J.), report and recommendation adopted,
No. CV 16-12075, 2016 WL 6581634 (E.D. La. Nov. 7, 2016) (citing Guerin); Deters
v. Davis, No. CIV.A. 3:11-02-DCR, 2011 WL 2417055, at *6 (E.D. Ky. June 13,
2011) (Reeves, J.) (quoting Guerin’s rejection of declaratory relief which was based
on Pulliam).
In support of his position that there is an exception to judicial immunity for
section 1983 actions seeking prospective declaratory relief against a judge, the
Plaintiff cites only the portion of Judge Proctor’s opinion in Ray which quotes the
aforementioned dicta, buried in a footnote, of the unpublished Ensensoy opinion.
(Doc. 16 at 13).4 However, in Bolin v. Story, 225 F.3d 1234, 1242 (11th Cir. 2000),
a suit brought against a federal judge pursuant to Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d

4

The Plaintiff also cites the Sixth Circuit’s unpublished opinion in Ward v. City of
Norwalk, 640 Fed. Appx. 462 (6th Cir. 2016) and this Court’s opinion in 3D-LIQ, LLC. V. Wade,
1:16-CV-1358-VEH (N.D. Ala. Feb, 24, 2017). Both opinions dealt with declaratory relief as an
exception to Eleventh Amendment immunity.
12

619 (1971), the Eleventh Circuit, in dicta, wrote that “even assuming arguendo that
Pulliam does apply to federal judges, the 1996 amendment to § 1983 would limit the
relief available to plaintiffs to declaratory relief.” At least one court, in an opinion
which was affirmed by the Eleventh Circuit, has used that reasoning as a basis for not
using judicial immunity to dismiss such claims in section 1983 cases. See, Wells v.
Miller, No. 15-CV-80412, 2015 WL 12953099, at *2 (S.D. Fla. June 30, 2015),
report and recommendation adopted, No. 15-80412-CIV, 2015 WL 12953100 (S.D.
Fla. Nov. 13, 2015), aff'd, 652 F. App'x 874 (11th Cir. 2016); see also, Andrews v.
Hens-Greco, 641 F. App'x 176, 180 (3d Cir. 2016) (“Neither absolute judicial
immunity nor the Eleventh Amendment bar claims seeking prospective injunctive or
declaratory relief against a state official.”).
At the end of the day, section 1983 does not specifically prohibit prospective
declaratory relief against municipal court judges. Further, the statute was amended
only to in response to the Pulliam opinion, which did not address declaratory relief.
Finally, although not binding, everything the Eleventh Circuit has said on this issue
supports the availability of such relief in spite of judicial immunity principles.
Accordingly, and in consideration of all of the above, the Court agrees with those
opinions which hold that prospective declaratory relief is an exception to judicial
immunity in cases brought against municipal court judges pursuant to 42 U.S.C. §
13

1983.5
That being said, the Plaintiff’s request for “a declarat[ion] that [Judge King]
wrongfully convicted and/or failed to set aside the conviction of the plaintiff” is
retrospective in nature, and therefore barred by judicial immunity. See, Andrews, 641
F. App'x at 180; Moore v. City of New York, No. 12-CV-4206 RRM LB, 2012 WL
3704679, at *2 (E.D.N.Y. Aug. 27, 2012) (Mauskopf, J.) (“Judicial immunity . . . bars
plaintiff's claims for retrospective declaratory relief.”). However, the Plaintiff’s
requests for declarations that “the Court engages in a pattern and practice of such
conduct in violation of the Due Process, Takings Clauses of the 14th and 5th
Amendments, 42 U.S.C. 1983, 1st and 6th Amendments, the Alabama Constitutional
corresponding provisions and state common law and statutes,” and that “[the
nuisance] ordinance [is] unconstitutional to the extent it does not require a description
of said alleged inoperable vehicle and nuisance” are prospective in nature and are not
barred by judicial immunity.
2.

Eleventh Amendment Immunity

Judge King also argues that, to the extent he is sued in his official capacity, the
Eleventh Amendment bars the claims against him. The Eleventh Circuit has recently

5

Again, the Plaintiff has made no argument that such relief is available to him on his
state law claims.
14

stated:
The Eleventh Amendment prohibits federal courts from exercising
subject matter jurisdiction over a lawsuit against a state. Abusaid v.
Hillsborough Cty. Bd. of Cty. Comm'rs, 405 F.3d 1298, 1302–03 (11th
Cir. 2005). The Amendment applies even when a state is not expressly
named as a party, if for all practical purposes the action is against the
state. Kaimowitz v. The Florida Bar, 996 F.2d 1151, 1155 (11th Cir.
1993). Eleventh Amendment immunity extends to state agencies and
other “arms of the state.” Id. It also extends to individual defendants
acting as agents, officials, or officers of the state or an arm of that state.
Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003). . . .
Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908),
provides an exception to the Eleventh Amendment for “suits against
state officers seeking prospective equitable relief to end continuing
violations of federal law.” Florida Ass'n of Rehab. Facilities, Inc. v.
State of Fla. Dep't of Health & Rehab. Servs., 225 F.3d 1208, 1219
(11th Cir. 2000) (citation omitted). Ex parte Young’s doctrine is only
available when the plaintiff seeks prospective injunctive relief. Id. It
does not apply, however, when a federal law has been violated at one
time or over a period of time in the past. Id. A plaintiff may not use the
doctrine to adjudicate the legality of past conduct. Summit Med. Assocs.,
P.C. v. Pryor, 180 F.3d 1326, 1337 (11th Cir. 1999).
Omanwa v. Catoosa Cty., Georgia, No. 17-11041, 2017 WL 4535856, at *2–3 (11th
Cir. Oct. 11, 2017).
No party has cited, and this Court has not found, an Eleventh Circuit case
which has held that an Alabama municipal court judge is entitled to Eleventh
Amendment immunity. Accordingly, the Court must make that determination,
mindful of the fact that courts in the Eleventh Circuit

15

use[] four factors to determine whether an entity is [a state agent] in
carrying out a particular function: (1) how state law defines the entity;
(2) what degree of control the State maintains over the entity; (3) where
the entity derives its funds; and (4) who is responsible for judgments
against the entity.
Ross v. Jefferson Cty. Dep't of Health, 701 F.3d 655, 659–60 (11th Cir. 2012)
(internal quotations and citations omitted). Judge King does not set out these factors,
although his argument does touch upon them.
The court agrees with Judge King that, in Alabama, a municipal court is treated
as an arm of the state judicial system. See, ALA. CONST. 1901, § 139 (“Except as
otherwise provided by this Constitution, the judicial power of the state shall be vested
exclusively in a unified judicial system which shall consist of a supreme court, a court
of criminal appeals, a court of civil appeals, a trial court of general jurisdiction known
as the circuit court, a trial court of limited jurisdiction known as the district court, a
probate court and such municipal courts as may be provided by law.”); Smedley v.
City of Ozark, No. 1:11CV954-MHT, 2012 WL 512586, at *3 (M.D. Ala. Feb. 1,
2012), report and recommendation adopted, No. 1:11CV954-MHT, 2012 WL
512581 (M.D. Ala. Feb. 16, 2012) (Coody, J.) (quoting section 139 of the Alabama
Constitution for the conclusion that municipal court judges are “state judicial
officer[s].”); Ray, 2017 WL 660842, at *19 (“Municipal Court's judge acts as a state
policymaker when establishing or applying such judicial customs or policies.”).
16

Judge King also correctly notes that “[t]he chief justice of the supreme court
[is the] the administrative head of the judicial system.” ALA. CONST. SEC. § 149
(amend. No. 328). As noted previously, that system includes the municipal courts.
Furthermore, “[t]he supreme court shall make and promulgate rules governing the
administration of all courts and rules governing practice and procedure in all courts.”
ALA. CONST. SEC. § 150 (amend. No. 328). Again, “all courts” includes the municipal
courts. Accordingly, it is clear that the state maintains a high degree of, if not
exclusive control over, the municipal courts.
That having been said, Judge King makes no arguments as to the third and
fourth factors. Furthermore, and as the Plaintiff points out, it appears that the state
does not provide funding for the municipal courts or their judges and officers. See
ALA. CONST. SEC. § 149 (amend. 328) (“Adequate and reasonable appropriations
shall be made by the legislature for the entire unified judicial system, exclusive of
probate courts and municipal courts.”); Ala. Code §12-14-2(a), (b) (“The municipality
shall provide appropriate facilities and necessary supportive personnel for the
municipal court and may provide for probation services, clerks and municipal
employees designated as magistrates. . . . Municipalities shall furnish prosecutorial
services in municipal courts and in appeals from such judgments and orders.”); Ala.
Code § 12-14-33(a) (“The salary of the municipal judges shall be fixed from time to
17

time by the municipal governing body and paid by the municipality[.]”).
In the absence of argument and authority from Judge King on these last criteria,
the Court cannot say at this stage of the proceedings that Judge King is entitled to
Eleventh Amendment immunity. See, Kirkland v. DiLeo, 581 F. App'x 111, 117 (3d
Cir. 2014) (“We believe the . . . failure to address [a] factor, despite having the burden
to prove their entitlement to sovereign immunity, “tend[s] to suggest that the . . .
Municipal Court is not an arm of the State, but is more akin to a local entity or a
municipal subdivision for Eleventh Amendment purposes.”).6
3.

Neither the Declaratory Judgment Act, Nor the Alabama
Declaratory Judgment Statutes, Allow for the Type of Relief
Sought in This Case

This Court has noted that
[A plaintiff] cannot obtain declaratory or injunctive relief under § 1983
if he had an adequate remedy at law, including appellate review in the
state courts with respect to an allegedly improper judicial ruling. Id. at
1073–74; Bolin, 225 F.3d at 1242–43; also cf. Dupree v. City of Phenix
City, 2011 WL 6778799, at *3–4 (M.D.Ala. Oct. 20, 2011) (plaintiff
failed to state a § 1983 claim based on allegations that government
defendants unlawfully confiscated his property where state law provided
adequate post deprivation remedies); Fisher v. Bushway, 2007 WL
1106133, at *2–3 (M.D.Ga. Apr. 11, 2007) (same).
West v. Jones, No. 1:14-CV-02298-VEH, 2015 WL 2450538, at *5 (N.D. Ala. May

6

The Court is not bound by the decisions from other jurisdictions cited by Judge King on
this issue. (See doc. 13 at 6, n. 2). As noted above, the factors must be analyzed under Alabama
law, practice, and procedure.
18

22, 2015) (Hopkins, J.).7 The same rule applies in the Alabama system. See, Mitchell
v. Hammond, 252 Ala. 81, 83, 39 So. 2d 582, 583 (1949). (“[W]here there is an
established remedy adequate for the purposes of the case and available to the party,
relief by declaratory judgment should, as a rule, be denied.”); City of Graysville v.
Glenn, 46 So. 3d 925, 931 (Ala. 2010) (denying declaratory relief and quoting
Hammond for the proposition that “the question [whether the official acted upon no
evidence or improper evidence] should be determined by the usual method of direct
review”). In the instant case, the Plaintiff had an adequate remedy at law, an appeal
to the Circuit Court of his municipal court conviction, and used it, and the case
against him was dismissed with prejudice.8 To the extent that he is complaining of the

7

Also, this Court has noted that

[a plaintiff] cannot use § 1983 as a device to obtain collateral review of state court
judgments. See [Sibley v. Lando, 437 F.3d 1067, 1070–71 (11th Cir. 2005)]; Jones
v. Crosby, 137 F.3d 1279, 1280 (11th Cir.1998).
West, 2015 WL 2450538, at *5.
8

Indeed, the Plaintiff admits:

The judgment has been successfully appealed. Wholly clearing the plaintiff’s
name is the just and appropriate next step and doing everything possible to stop
the bleeding from the plaintiff’s character resulting from the sharp dagger of
inaction and indifference by the defendant judge. As such, the plaintiff is entitled
to have this court consider prospective declaratory relief about the
constitutionality of defendant King’s prospective conduct and in relation to said
judgment and the constitutionality of the underlying judgment itself.
(Doc. 16 at 11). The Plaintiff’s name was “cleared” by the successful appeal.
19

record of the conviction in the municipal court9, the Plaintiff can seek (but thus far
apparently has not sought) expungement pursuant to Ala. Code § 15-27-1(a)(1).10 The
availability of these remedies prevent him from receiving declaratory relief in this

9

The Plaintiff argues:

[T]he plaintiff complains, in essence, that even after a successful appeal and
dismissal of the charge, Judge King recognizes and intends to continue to enforce
the city court conviction as a valid finding of the plaintiff’s guilt. (Doc 13, Page 2
- Note 1; Doc. 9, Paragraph 29, 48-50)[.] In part, he will accomplish this by
allowing the judgment and costs to remain reflected on the record as a valid
conviction, refusing to fully acknowledge or accept the results on appeal and
dismissal of charges and otherwise asserting the conviction in this action as a
defense (i.e. a present act of enforcement). (Doc 13, Page 2 - Note 1; Doc. 9,
Paragraph 29, 48-50)[.]
(Doc. 16 at 13).
10

In document 31, the Plaintiff writes, in a footnote:

An expungement as a matter of law cannot be an adequate remedy as: A request to
expunge records of conviction is a request to “destroy or seal the records of the
fact of the defendant's conviction[.]” United States v. Crowell, 374 F.3d 790, 792
(9th Cir. 2004). Expungement does not vacate, set aside, or otherwise affect the
legality of the conviction. Id. “Accordingly, expungement, without more, does not
alter the legality of the previous conviction and does not signify that the defendant
was innocent of the crime to which he pleaded guilty.” Puente Arizona v. Arpaio,
CV-14-01356-PHX-DGC; see also see the expungement statute (Alabama Code §
15-27-1, et. seq; § 15-27-18; § 15-27-10; § 15-27-6, must disclose conviction to
financial institutions, utilities, etc.) which still allows certain law enforcement and
third party agencies to have access to the conviction record. Notably, the city
court record still shows that the plaintiff was arrested and found guilty. (Doc.
23-3, p. 3, 8)[.]
(Doc. 31 at 8, n. 3) (emphasis in original). An expungement is adequate to seal the records about
which the Plaintiff is concerned. His successful appeal altered the legality of the previous
conviction.
20

case.11
In addition, the Declaratory Judgment Act, 28 U.S.C. § 2201, “provides that
a declaratory judgment may only be issued in the case of an ‘actual controversy.”
Walden v. Centers for Disease Control & Prevention, 669 F.3d 1277, 1284 (11th Cir.
2012) (internal quotations and citations omitted). The Eleventh Circuit has stated that
“[i]n order to demonstrate that a case or controversy exists to meet the
Article III standing requirement when a plaintiff is seeking injunctive or
declaratory relief, a plaintiff must allege facts from which it appears
there is a substantial likelihood that he will suffer injury in the future.”
Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342, 1346 (11th
Cir.1999) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103
S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983)). “Injury in the past ... does not
support a finding of an Article III case or controversy when the only
relief sought is a declaratory judgment.” Id. at 1348.
Walden, 669 F.3d at 1284. There is no allegation in the Amended Complaint
suggesting that the Plaintiff is in danger of future prosecution.12 Accordingly, the

11

In his response to the Motion To Dismiss, which is combined with his Motion for
Partial Summary Judgment, the Plaintiff states that he has “sought and received all relief
available under state law, i.e. complete dismissal of charges,” yet still complains that the
municipal court “continue[s] to recognize . . . a valid conviction.” (Doc. 16 at 7). In this
document he does not discuss the fact that he could have the municipal court record expunged.
12

The Plaintiff argues that the Amended Complaint alleges the following threat of future
enforcement:
a.
the threat of future enforcement of the otherwise overturned judgment by
taking an official present and future position that for all intended purposes [sic] it
is still a valid conviction and the plaintiff’s guilt was properly adjudicated to
anyone who makes inquiry to the court (Doc 13, Page 2 - Note 1; Doc. 9,
Paragraph 29, 48-50)[.]
21

Amended Complaint fails to state a claim for a declaration that Judge King engages
in “a pattern and practice of such conduct in violation of the Due Process, Takings

(Doc. 31 at 11) (footnotes omitted). First, this is not an allegation of a threat of future
“enforcement.” It is a allegation that City officials will reveal to the public what is in their
records. As noted previously, the Plaintiff’s successful appeal nullifies this conviction, and
expungement would cure this problem. The Plaintiff also alleges:
b. the threat of future enforcement of defective citations and trials without
advance notice related to the same vehicle which the plaintiff still owns and which
is still subject to periodic regulatory enforcement (Doc 9, Paragraphs 62-69); (Doc
9, Paragraphs 16, 18, & 20); (Doc 13, Page 2 - Note 1; Doc. 9, Paragraph 14, 57,
64); see also TOPS vs. King, et. al., 4:15-cv-00315-VEH (Doc. 1, Paragraph 4,
15, 36, 109) and filed on 2/23/15; McGruder vs. City of Gadsden, et. al.,
4:16-cv-01439-VEH (Doc. 1-1, Paragraph 11) and filed on 9/1/16; see also TOPS
vs. King, et. al., 4:16-cv-1264-VEH filed on 8/3/16.
c. the threat of future enforcement of an unconstitutional junk car ordinance to the
extent it allows junk car prosecution of defective and vague citations. (Doc 6-2,
pp 15-16); (Exhibit 10, Nuisance Ordinance); (Doc 13, Page 2 - Note 1; Doc. 9,
Paragraph 14, 57, 64); (Doc 6-2, pp 15-16).
(Doc. 31 at 11-12). There are no allegations in the Amended Complaint which plausibly support
any inference that the Plaintiff is in danger of having this statute enforced against him again.
Indeed, part of his problem with his conviction is that “prior to any conviction or trial on the
merits,” the Plaintiff “registered the wagon as an antique wagon.” (Doc. 9 at 8, ¶¶16, 17). He
admits that, on appeal, the charges were dismissed with prejudice “pursuant to the City[’s] policy
of dismissing charges against defendants who produce valid antique car . . . registration[s].”
(Doc. 9 at 9, ¶19). These allegations undermine any assertion that he is in danger of further
prosecution.
The Court notes that in his initial brief the Plaintiff cited other plaintiffs’ complaints as
evidence of “continuing conduct.” (Doc. 16 at 14-16). First, the Plaintiff does not explain how
the fact that these cases were filed demonstrate that he is entitled to relief. There is no allegation
of a finding of wrongdoing in those cases. Regardless, assuming these lawsuits were successful
(there is no allegation in the Amended Complaint that they were), there are no facts pled that any
of the conduct about which the Plaintiff, or these other plaintiffs, complain is continuing.
Similarly, the Plaintiff also cites the fact that the ordinance under which he was prosecuted still
exists and that “the defendant judge apparently intends to continue to enforce defective
citations.” (Doc. 16 at 16-17). No facts are pled which plausibly demonstrate a continuing
prosecution of anyone under this statute, much less the Plaintiff.
22

Clauses of the 14th and 5th Amendments, 42 U.S.C. 1983, 1st and 6th Amendments,
the Alabama Constitutional corresponding provisions and state common law and
statutes,” and/or that the nuisance statute is unconstitutional.13
4.

Mootness

To the extent that the Plaintiff seeks a declaration from this Court that he was
“wrongfully convicted,” or that Judge King “failed to set aside his conviction,” his
claims are moot, since the case against him has already been dismissed. Under such
circumstances “dismissal is required because mootness is jurisdictional.” Al Najjar
v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir. 2001).14
D.

Conclusion to Motion To Dismiss

13

The Amended Complaint also states that it “invokes Alabama Code § 6-6-220
(Alabama Declaratory Judgment Act).” (Doc. 9 at 3). Although the federal Declaratory Judgment
Act is the proper procedural vehicle when seeking declaratory relief in federal court, the same
rules apply under the Alabama statutes. See, State ex rel. Baxley v. Johnson, 293 Ala. 69, 73, 300
So. 2d 106, 110 (1974) (internal citations omitted) (“There must be a bona fide existing
controversy of a justiciable character to confer upon the court jurisdiction to grant declaratory
relief under the declaratory judgment statutes, and if there was no justiciable controversy existing
when the suit was commenced the trial court had no jurisdiction.”); see also, Underwood v.
Alabama State Bd. of Educ., 39 So. 3d 120, 128 (Ala. 2009) (same).
14

Furthermore, the Plaintiff apparently expects the municipal court to do something it
cannot do. See, Walden v. ES Capital, LLC, 89 So. 3d 90, 107 (Ala. 2011) (“A lower court is
without power to modify, alter, amend, set aside or in any manner disturb or depart from the
judgment of the reviewing court as to any matter decided on appeal.... Under any other rule,
litigation would never cease, and finality and respect for orderly process of law would be
overcome by chaos and contempt.”) (internal quotations and citations omitted).

23

For the reasons stated above, Judge King’s Motion To Dismiss will be
GRANTED.
II.

THE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST
JUDGE KING (DOC. 16)
The Court’s decision granting Judge King’s Motion To Dismiss moots this

motion.
III.

CONCLUSION
For the reasons stated herein, Judge King’s Motion To Dismiss is GRANTED.

All claims against Judge King are DISMISSED with prejudice. The Plaintiff’s
Motion for Partial Summary Judgment is TERMINATED as MOOT.
DONE and ORDERED this 1st day of February, 2018.

VIRGINIA EMERSON HOPKINS
United States District Judge

24