Overall v. Watson et al

Filing 27

MEMORANDUM OPINION - For the reasons discussed above, this court will GRANT Defendant Jeremy McIntires motion and will DISMISS WITH PREJUDICE the facial challenges of Counts Three and Seven against Mr. McIntire as barred by the Eleventh Amendment. Signed by Chief Judge Karon O Bowdre on 2/4/2019. (KEK)

FILED
2019 Feb-04 PM 02:21
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
MARK OVERALL,
Plaintiff,
v.
JEREMY McINTIRE,
Defendant.

)
)
)
)
)
)
)
)
)

Case No. 4:17-CV-2063- KOB

MEMORANDUM OPINION
Plaintiff Mark Overall, a suspended attorney proceeding pro se, filed suit against the
Alabama State Bar and several of its officers, raising claims of violation of his substantive and
procedural due process rights, among other things. (Doc. 1). In a prior ruling, this court
dismissed or entered judgment against Mr. Overall on every claim except the facial constitutional
challenges of Counts Three and Seven as to Defendant Jeremy McIntire. (Doc. 21). In its
Memorandum Opinion, this court explained these claims survived “because Defendants’ motion
for partial summary judgment [did] not address the part of Count Three . . . or the part of Count
Seven challenging the facial constitutionality of [Rule 28(b), (c), or (i)].” (Doc. 20 at 6).
This matter now comes before the court on “Defendant Jeremy McIntire’s Response to
Petitioner’s Motion for Final Ruling on Constitutionality.” (Doc. 25). This court construed
Defendant’s response as a motion for summary judgment on the only two remaining counts of
Mr. Overall’s complaint and notified Plaintiff of its intent to do so. (Doc. 26). Plaintiff failed to
respond. So for the reasons stated below, this court will GRANT Defendant’s motion and will
DISMISS WITH PREJUDICE Counts Three and Seven as to Mr. McIntire because the Eleventh
Amendment provides Mr. McIntire immunity from suit in this case.

I. Factual Background
The court fully incorporates the Background section of its prior Memorandum Opinion in
this case. (Doc. 20 at 2–6).
In that Memorandum Opinion and its accompanying Order, this court dismissed or
entered summary judgment against Plaintiff as to every claim except two—Counts Three and
Seven—as to Jeremy McIntire, which sought the prospective relief of enjoining continued
enforcement of facially unconstitutional disciplinary procedures. Specifically, the court declined
to enter judgment on the facial challenges of Mr. Overall’s third and seventh counts as to Mr.
McIntire because Mr. McIntire failed to address them in his motion for summary judgment.
A little over a month after this court entered judgment against Plaintiff on all claims but
Counts Three and Seven, Plaintiff filed a “Motion for Final Ruling on Constitutionality,” which
asked this court to rule whether subsections (b), (c), and (i) of Alabama Rule of Disciplinary
Procedure 28 are constitutional. (Doc. 22). Construing Mr. Overall’s motion as a motion for
summary judgment, this court set a briefing schedule for both Defendant’s response and
Plaintiff’s reply, if necessary. (Doc. 24). Defendant filed his response, (doc. 25), and Plaintiff
Overall never filed any reply.
Defendant’s response raises Eleventh Amendment immunity defenses to each of Mr.
Overall’s claims but does not move that this court enter judgment on Mr. McIntire’s behalf
pursuant to those arguments. Determining that Defendant’s Eleventh Amendment defenses, if
successful, would bar Mr. Overall’s claim, this court construed Defendant’s response as a motion
for summary judgment and presented Mr. Overall a final opportunity to respond. (Doc. 26). Mr.
Overall failed to timely respond, and indeed has still not responded at all, so this court now
considers Defendant’s motion without any response from Plaintiff.

II. Discussion
Defendant Jeremy McIntire, assistant general counsel for the Office of General Counsel
for the Alabama State Bar, argues that the Eleventh Amendment provides him immunity from
Mr. Overall’s challenges to the facial constitutionality of three subsections of Alabama Rule of
Disciplinary Procedure 28. This court agrees and will GRANT Defendant’s motion and
DISMISSES WITH PREJUDICE the only remaining count of Plaintiff’s complaint against the
only remaining defendant in this case.
The Eleventh Amendment protects “agents and instrumentalities of the State” from
lawsuits against them in their official capacities. Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir.
2003) (en banc). Mr. McIntire is assistant general counsel for the Office of General Counsel for
the Alabama State Bar. (Doc. 1 at 2; Doc. 12-1 at 1). As such, he performs “the investigation and
prosecution of attorney disciplinary matters.” (Doc. 12-1 at 1); Ala. R. Disc. P. 6 (setting out the
duties of the General Counsel, including assistants to the General Counsel). Because the
Alabama State Bar is an arm of the State and Mr. McIntire is its agent, he is a state official whom
the Eleventh Amendment, if applicable, would protect. See Nichols v. Alabama State Bar, 815
F.3d 726, 732 (11th Cir. 2016) (“After considering the four factors, we agree with the district
court’s conclusion that the Alabama State Bar is an arm of the state of Alabama and thus enjoys
Eleventh Amendment immunity . . . .”).
But the Ex parte Young doctrine creates an exception to the Eleventh Amendment
immunity for state officials. Under the Ex parte Young doctrine, “official-capacity suits against
state officials are permissible . . . when the plaintiff seeks ‘prospective equitable relief to end
continuing violations of federal law.” Lane v. Central Ala. Comm. Coll., 772 F.3d 1349, 1351
(11th Cir. 2014) (citations altered) (emphases in original) (quoting Summit Med. Assocs., P.C. v.

Pryor, 180 F.3d 1326, 1336 (11th Cir. 1999); see also Ex parte Young, 209 U.S. 123 (1908). The
Supreme Court has explained that “[i]n making an officer of the state a party defendant in a suit
to enjoin the enforcement of an act alleged to be unconstitutional, it is plain that such officer
must have some connection with the enforcement of the act, or else it is merely making him a
party as a representative of the state, and thereby attempting to make the state a party.” Ex parte
Young, 209 U.S. at 157. Accordingly, the Ex parte Young doctrine does not remove a defendant’s
immunity “where the officer who is charged has no authority to enforce the challenged statute.”
Summit Med. Assocs., 180 F.3d at 1341–42.
In Counts Three and Seven, Mr. Overall seeks prospective relief to end alleged
continuing violations of federal law. (See Doc. 1 at 9–10, 15–16). So the court must determine
whether Mr. McIntire has “some connection with the enforcement of” the rules challenged in
Counts Three and Seven—in other words, whether he has some connection with the enforcement
of Rule28(b), (c), and (i)—so that the Ex parte Young doctrine would permit Mr. Overall’s
claims against Mr. McIntire to proceed.
A. Rule 28(b)
Count Three of Mr. Overall’s complaint challenges the facial constitutionality of the
timing of reinstatement proceedings as governed by Alabama Rule of Disciplinary Procedure
28(b). Rule 28(b) provides:
A lawyer who has been suspended for more than ninety (90) days may not apply
for reinstatement until the period of suspension has terminated. A lawyer who has
been disbarred by consent or after hearing, or who has surrendered his or her
license, may not apply for reinstatement until the expiration of at least five (5)
years from the effective date of the disbarment or surrender of license. A lawyer
on disability inactive status may apply for reinstatement pursuant to Rule 27(g) of
these Rules.

Rule 28(b) neither requires nor permits any action by or on behalf of the General
Counsel. The rule operates automatically to prevent a petition for reinstatement until the period
of suspension has terminated. So the Ex parte Young doctrine does not remove Mr. McIntire’s
immunity from suit on that count.
B. Rule 28(c)
Count Three of the complaint also challenges the facial constitutionality of the timing of
reinstatement proceedings as governed by Alabama Rule of Disciplinary Procedure 28(c). In
relevant part, Rule 28(c) provides:
Petitions for reinstatement shall be filed with the Disciplinary Clerk of the
Alabama State Bar and served upon the General Counsel and shall be in the form
and contain the material specified in Appendix "A" to these Rules. A petition that
does not substantially comply with the form specified in Appendix "A" or that
does not contain the information and documents specified in Appendix "A" or that
does not contain satisfactory proof of compliance with the provisions of Rule 26
of these Rules shall constitute prima facie evidence that the petitioner has not met
the burden of proof required for reinstatement under this rule, and the petition
shall be summarily denied. Upon receipt by the Disciplinary Board of a petition
that substantially complies with Appendix "A," a Disciplinary Hearing Officer
shall promptly set the petition for a hearing.
While Rule 28(c) specifically mentions the General Counsel, it does not
contemplate or require the General Counsel or the General Counsel’s office to have any
involvement in the timing of a petitioner’s reinstatement hearing. Instead, Rule 28(c)
obligates suspended attorneys to serve upon the General Counsel their petitions for
reinstatement but then tasks the Disciplinary Hearing Officer to “promptly set the petition
for a hearing.” So the Ex parte Young doctrine also fails to remove Mr. McIntire’s
immunity from suit on that count.

C. Rule 28(i)
Finally, Count Seven of Mr. Overall’s complaint challenges the facial constitutionality of
the reapplication process as governed by Alabama Rule of Disciplinary Procedure 28(i). Rule
28(i) provides:
No petition for reinstatement under this rule shall be filed within one year
following an adverse order of the Disciplinary Board, which has become final, on
a petition for reinstatement filed by or on behalf of the same person.
Rule 28(i) does not require any action by or on behalf of the General Counsel. The rule
simply prohibits suspended attorneys from petitioning for reinstatement within one year of a
prior adverse decision by the Disciplinary Board. The Ex parte Young doctrine does not remove
Mr. McIntire’s immunity from suit on that count.
III. Conclusion
For the reasons discussed above, this court will GRANT Defendant Jeremy McIntire’s
motion and will DISMISS WITH PREJUDICE the facial challenges of Counts Three and Seven
against Mr. McIntire as barred by the Eleventh Amendment.
DONE and ORDERED this 4th day of February, 2019.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE