Simes v. Arkansas Judicial Discipline and Disability Commission et al

Filing 49

MEMORANDUM AND ORDER denying as moot pltf's motion for an extension of time to reply 23 ; the STAY IS LIFTED in this matter; defts' motion to dismiss 43 is granted; this case and all claims are hereby dismissed; judgment will be entered accordingly. Signed by Judge Joseph F. Bataillon on 9/27/12. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

L.T. SIMES, II,
PLAINTIFF
VS.

CASE NO. 4:10CV01047 JFB

ARKANSAS JUDICIAL DISCIPLINE
AND DISABILITY COMMISSION, ET AL.

DEFENDANTS

MEMORANDUM AND ORDER
This matter is before the court on defendants’ motion to dismiss the plaintiff’s first
amended complaint, Filing No. 43. This is a civil rights action under 42 U.S.C. § 1983.
The plaintiff, Arkansas State Circuit Court Judge L.T. Simes, alleges the defendants
violated his First Amendment rights and his Fourteenth Amendment rights to due
process and equal protection.
defamation.

He also asserts a supplemental state law claim for

Judge Simes seeks declaratory and injunctive relief, as well as

compensatory and punitive damages and attorneys’ fees. See Filing No. 40, Amended
Complaint. Venue is proper under 28 U.S.C. § 1391. This court has jurisdiction under
28 U.S.C. § 1331 and 28 U.S.C. § 1343(a).
INTRODUCTION
Judge Simes, the plaintiff, is an African-American Arkansas state court judge.
He was 60 years old at the time this lawsuit was filed and is the first African-American
judge elected in his county. He assumed the bench in 1997 and the voters reelected
him in 2000, 2004 and 2010.

The Arkansas Discipline & Disability Commission (hereinafter “Commission”),
created by Amendment 66 of the Constitution of the State of Arkansas, has nine
Commissioners: three are judges appointed by Supreme Court of Arkansas; three are
licensed attorneys in good standing, one is appointed by state attorney general, one is
appointed by the president of the Arkansas senate, one is appointed by the speaker of
the house for Arkansas; and three are appointed by the governor. Ark. Code Ann.
§§ 16-10-402(a)(1)-(3). Judge Simes sues the Commission as an entity.
Defendant David Stewart is the executive director of the Commission. Defendant
John Everett is an attorney Commissioner and is vice chair of the Commission.
Defendants William Story and Chris E. Williams are judges and members of the
Commission. H. William Allen is also an attorney Commissioner. Defendant Reginald
Duane Hamman is a public member of the Commission. All of the Commissioners are
sued in both their individual and official capacities.
BACKGROUND AND PROCEDURAL HISTORY
This action involves two recent disciplinary complaints against Judge Simes. 1
The facts are set out in the Arkansas Supreme court’s opinions on those complaints and
need not be fully repeated here.

See Judicial Discipline and Disability Comm’n v.

Simes, 354 S.W.3d 72, 73 (Ark. 2009) and Arkansas Judicial Discipline and Disability
Comm’n v. Simes, — S.W.3d —, 2011 Ark. 193, 2011 WL 1681672 (2011) (“the Weaver

1

Several other judicial complaints have been filed against Judge Simes that are only marginally
relevant to this case. In one, the Arkansas Supreme Court sanctioned Judge Simes for appearing in a
robed photograph on the cover of a CD he produced. He received an “informal adjustment” by the
Commission for this offense. The second sanction involved a letter of admonishment dated May 23,
2006, for making personal solicitations for campaign contributions during his 2004 election. Another
involved a previously dismissed case that the Commission revived as a new case. The Commission
ultimately dismissed that complaint. In another instance, Judge Simes was reprimanded for failure to
timely dispose of a motion where he waited two months to enter an order in an election case.
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case”). Briefly, in 2009, following a disciplinary hearing, the Commission recommended
to the Arkansas Supreme Court that it should permanently remove Judge Simes from
the bench. Simes, 354 S.W.3d at 73 (“the Chandler case”). The Arkansas Supreme
Court, however, declined to follow the Commission’s recommendation of permanent
removal from the bench and instead elected to suspend Judge Simes for the remainder
of his existing term rather than to remove him from the bench permanently. Id. at 85;
Amended Complaint, Filing No. 40, ¶ 31.

The Commission later addressed an

additional judicial complaint against Judge Simes. See Simes, — S.W.3d —, 2011 Ark.
193, 2011 WL 1681672; Filing No. 40, ¶¶ 43-52. After a disciplinary hearing in that
case, the Commission again recommended to the Arkansas Supreme Court that it
should permanently remove Judge Simes from the bench. Filing No. 40, ¶ 52. Upon
review, the Arkansas Supreme Court accepted some of the Commission’s findings,
modified others, and rejected some of its findings. Ultimately, the Arkansas Supreme
Court rejected the Commission’s recommendation of removal and instead ordered that
Judge Simes be reprimanded. Id., 2011 Ark. 193, 2011 WL 1681672 at *25.
Judge Simes filed his original federal court complaint in this matter while the
Weaver case was pending with the Commission. Filing No. 1. He sought a temporary
restraining order to prevent the Commission from going forward with a scheduled
hearing in the matter. Filing No. 2. The defendants moved to dismiss the complaint
and opposed the temporary restraining order. Filing Nos. 16-18. This court denied the
motion for temporary restraining order and later denied the motion to dismiss. Filing No.
21. The action was stayed while the state judicial discipline process moved forward,

3

under the Younger abstention doctrine. Younger v. Harris, 401 U.S. 37 (1971). Filing
No. 26.
After the Arkansas Supreme Court issued its ruling in the Weaver case, this court
lifted the stay on these proceedings and allowed the plaintiff to file an amended
complaint.

Filing No. 39.

The amended complaint, Filing No. 40, omitted several

defendants, and the remaining defendants move to dismiss.
In his amended complaint, Judge Simes alleges that he has had to operate in a
racially hostile environment since the beginning of his judicial career. In his first claim,
he alleges he was targeted for removal by the Commission and subjected to bad faith,
defective, and biased proceedings before the Commission. Id. at ¶ 69, p. 21. He also
alleges that he was treated differently than white judges in the Commission’s
investigations and prosecutions of complaints. Id. He alleges that the Commission has
removed two black judges and tried to remove Judge Simes twice, but that no white
judge has ever been removed. He alleges that in 2008 he was informed that his picture
was posted on an appliance in the Commission’s office and he states that he found a
cartoon of a stick figure whose head was decapitated by a buzz-saw in the record in
one of the proceedings. Id. at 16. He alleges that the Commission’s investigation of his
complaints was markedly different from those of white judges in Arkansas. Id. at 17-18.
He outlines several examples of differential treatment in the complaint. See id. He
further alleges that the sanctions imposed upon him were more severe than those
levied on similarly situated white judges. Id. at 19. Also, he alleges he was denied due
process in connection with the complaints. Id. at 21.

4

Judge Simes’s second claim is directed at defendant executive director David
Stewart.

Id. at 22.

He alleges that director Stewart made false and defamatory

statements against him and violated the rules and regulations of the Commission by
publicly announcing that Simes had been accused of ordering a newspaper reporter not
to write a story, of improperly pressuring the mayor, and of attempting to prevent people
from talking to the Commission.

In the First Amended Complaint, he asserts his

second claim under state law, but in his brief he states the claim is premised on 42
U.S.C. § 1983.
The defendants move to dismiss: (1) all claims for money damages against the
Commission and the Commissioners in their official capacities based on the Eleventh
Amendment; (2) all claims against the Commissioners in their individual capacities; and
(3) all claims against executive director Stewart on the ground of absolute prosecutorial
immunity. Defendants also argue that there is no justiciable case or controversy with
respect to Claim 1 and that Judge Simes fails to state a claim for relief with respect to
Claim 2. Defendants further argue the court should decline to exercise supplemental
jurisdiction over the plaintiff’s state law claims. In their brief, the defendants allude to
absolute judicial immunity.
LAW
A. Standard of Review—Motion to Dismiss
Under the Federal Rules, a complaint must contain “a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
rules require a “‘showing,’ rather than a blanket assertion, of entitlement to relief.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556 n.3. (2007) (quoting Fed. R. Civ. P.

5

8(a)(2)). “Specific facts are not necessary; the statement need only ‘give the defendant
fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555). In order to survive
a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the plaintiff’s obligation to provide
the grounds for his entitlement to relief necessitates that the complaint contain “more
than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Twombly, 550 U.S. at 555.
The factual allegations of a complaint are assumed true and construed in favor of
the plaintiff, “even if it strikes a savvy judge that actual proof of those facts is improbable
and ‘that a recovery is very remote and unlikely.’” Id. (quoting Scheuer v. Rhodes, 416
U.S. 232, 236 (1974)). “On the assumption that all the allegations in the complaint are
true (even if doubtful in fact),” the allegations in the complaint must “raise a right to relief
above the speculative level.”

Twombly, 550 U.S. at 555-56.

In other words, the

complaint must plead “enough facts to state a claim for relief that is plausible on its
face.” Id. at 547
Twombly is based on the principles that (1) the tenet that a court must accept as
true all of the allegations contained in a complaint is inapplicable to legal conclusions,
and (2) only a complaint that states a plausible claim for relief survives a motion to
dismiss. Id. at 678. Determining whether a complaint states a plausible claim for relief
is “a context-specific task” that requires the court “to draw on its judicial experience and
common sense.” Id. at 663-64. Accordingly, under Twombly, a court considering a
motion to dismiss may begin by identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of truth.

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Id.

Although legal

conclusions “can provide the framework of a complaint, they must be supported by
factual allegations.” Id. When there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief. Id. “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) (stating
that the plausibility standard does not require a probability, but asks for more than a
sheer possibility that a defendant has acted unlawfully.).
Thus, the court must find “enough factual matter (taken as true) to suggest” that
“discovery will reveal evidence” of the elements of the claim. Twombly, 550 U.S. at 558,
556; Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347 (2005) (explaining that something
beyond a faint hope that the discovery process might lead eventually to some plausible
cause of action must be alleged). When the allegations in a complaint, however true,
could not raise a claim of entitlement to relief, the complaint should be dismissed for
failure to set a claim under Fed. R. Civ. P. 12(b)(6). Twombly, 550 U.S. at 558; Iqbal,
556 U.S. at 679 (stating that “where the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged—but it has
not ‘show[n]’—‘that the pleader is entitled to relief.’”).
B. Justiciability
“The exercise of judicial power under Art. III of the Constitution depends on the
existence of a case or controversy.” Preiser v. Newkirk, 422 U.S. 395, 401 (1975);
Ringo v. Lombardi, 677 F.3d 793, 796 (8th Cir. 2012). “The express limitation of the
Declaratory Judgment Act to cases ‘of actual controversy’ is explicit recognition of this

7

principle.” Golden v. Zwickler, 394 U.S. 103, 110 (1969). “[A]n actual controversy must
be extant at all stages of review, not merely at the time the complaint is filed.” Preiser,
422 U.S. at 401. “[A] federal court has neither the power to render advisory opinions
nor ‘to decide questions that cannot affect the rights of litigants in the case before
them.’” Preiser, 422 U.S. at 401 (quoting North Carolina v. Rice, 404 U.S. 244, 246
(1971) (per curiam)). “To be cognizable in a federal court, a suit must be definite and
concrete, touching the legal relations of parties having adverse legal interests. It must
be a real and substantial controversy admitting of specific relief through a decree of a
conclusive character, as distinguished from an opinion advising what the law would be
upon a hypothetical state of facts.” Ringo v. Lombardi, 677 F.3d 793, 796 (8th Cir.
2012).

“The question in each case is whether the facts alleged, under all the

circumstances, show that there is a substantial controversy, between parties having
adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a
declaratory judgment.”

Id.

“Because the test to determine the existence of a

“substantial controversy” is imprecise, the decision of whether such controversy exists is
made upon the facts on a case-by-case basis.” Id. (citation omitted).
“A case becomes moot if it can be said with assurance that there is no
reasonable expectation that the violation will recur or if interim relief or events have
completely and irrevocably eradicated the effects of the alleged violation.” Kennedy
Building Assoc. v. Viacom, Inc., 375 F.3d 731, 745 (8th Cir. 2004) (citing County of Los
Angeles v. Davis, 440 U.S. 625, 631(1979)).
There is a limited exception to mootness for claims that are capable of repetition,
yet evading review. “To come within this narrow exception, the following two elements

8

must exist: (1) there must be a reasonable expectation that the same complaining party
will be subjected to the same action again, and (2) the challenged action must be of a
duration too short to be fully litigated before becoming moot.” Iowa Prot. & Advocacy
Servs. v. Tanager, Inc., 427 F.3d 541, 544 (8th Cir. 2005)).
C. Eleventh Amendment Immunity
Under the Eleventh Amendment, states and arms of the state possess sovereign
immunity from suits. Alden v. Maine, 527 U.S. 706, 713 (1999); Dodd v. Jones, 623
F.3d 563, 569 (8th Cir. 2010); see Monroe v. Ark. State Univ., 495 F.3d 591, 594 (8th
Cir. 2007) (holding that, as an agency of the State of Arkansas, the Eleventh
Amendment barred all of the plaintiff’s 42 U.S.C. § 1983 claims against Arkansas State
University, regardless of the nature of the relief sought). It is clear that in the absence
of consent, a suit in which the state or one of its agencies or departments is named as
the defendant is proscribed by the Eleventh Amendment. Pennhurst State School &
Hosp. v. Halderman, 465 U.S. 89, 100 (1984). This jurisdictional bar applies to the state
or its agencies regardless of the nature of the relief sought.

Id. at 100; see also

Monroe, 495 F.3d at 594 (noting that although state officials may be sued in their official
capacities for prospective injunctive relief without violating the Eleventh Amendment
under the doctrine set forth in Ex Parte Young, 209 U.S. 123 (1908), the same doctrine
does not extend to states or state agencies). There is no dispute that the Commission
is a state entity. See Commission on Judicial Discipline & Disability v. Digby, 303 Ark.
24, 792 S.W.2d 594 (1990). Similar state entities have been found immune from suit
under the Eleventh Amendment. See Lawrence v. Chabot, 182 Fed. App’x 442 (6th Cir.
2006) (holding that the State Bar and Board of Examiners were immune from suit under

9

the Eleventh Amendment); Caffey V. Alabama Supreme Court, 469 Fed. App’x 748,
2012 WL 918799 (11th Cir. 2012) (state bar immune from suit under Eleventh
Amendment); McKeown v. New York State Comm’n on Judicial Conduct, 377 Fed.
App’x 121, 2010 WL 1977825 (2d Cir. 2010) (state grievance and judicial conduct
committees immune under Eleventh Amendment); Capogrosso v. The Supreme Court
of New Jersey, 588 F.3d 180, 185 (3d Cir. 2009) (judicial conduct committee immune
under Eleventh Amendment).
Similarly, the Commissioners are immune from suit for money damages in their
official capacities since a suit against a public employee in his or her official capacity is
a suit against the agency itself. Edelman v. Jordan, 415 U.S. 651, 663 (1974) (Eleventh
Amendment immunity extends to actions against state officials sued in their official
capacities); Dodd, 623 F.3d at 569 (treating a suit against a highway patrol officer in his
official capacity as a claim against the highway patrol); Caffey, 469 Fed. App’x at 751
(official capacity defendants immune from suit for monetary damages). Kentucky v.
Graham, 473 U.S. at 159, 167 (1985) (“[t]he only immunities that can be claimed in an
official-capacity action are forms of sovereign immunity that the entity, qua entity, may
possess, such as the Eleventh Amendment”).
However, Eleventh Amendment immunity does not extend to individual state
officers sued in their individual capacities. Capogrosso, 588 F.3d at 185. Also, state
officials may still be sued for prospective injunctive relief without violating the Eleventh
Amendment. Heartland Acad. Cmty. Church v. Waddle, 427 F.3d 525, 530 (8th Cir.
2005).

10

D. Judicial Immunity
The proponent of a claim to absolute immunity bears the burden of establishing
the justification for such immunity. Antoine v. Byers & Anderson, Inc., 508 U.S. 429,
432 (1993).

Typically, judges, prosecutors and witnesses enjoy absolute immunity.

Stein v. Disciplinary Bd. of the Supreme Court of New Mexico, 520 F.3d 1183, 1190
(10th Cir. 2008). But, such immunity is not always available to them. Id. Judges enjoy
absolute immunity from suit for money damages unless they act outside of their judicial
capacity or in the clear absence of jurisdiction. Mireles v. Waco, 502 U.S. 9, 11-12
(1991); Liles v. Reagan, 804 F.2d 493, 495 (8th Cir. 1986). The touchstone for the
doctrine’s applicability has been “performance of the function of resolving disputes
between parties, or of authoritatively adjudicating private rights.” Antoine, 508 U.S. at
435-36 (quoting Burns v. Reed, 500 U.S. 478, 500 (1991); see also Forrester v. White,
484 U.S. 219, 227 (1988) (“immunity is justified and defined by the functions it protects
and serves, not by the person to whom it attaches”) (emphasis in original). “Whether an
act by a judge is a ‘judicial’ one relate[s] to the nature of the act itself, i.e., whether it is a
function normally performed by a judge, and to the expectations of the parties, i.e.,
whether they dealt with the judge in his judicial capacity.” Stump v. Sparkman, 435 U.S.
349, 362 (1978).
Judicial immunity also extends to others who perform functions closely
associated with the judicial process. Cleavinger v. Saxner, 474 U.S. 193, 200 (1985);
Judges and officials who have duties that are functionally comparable to those of judges
are entitled to absolute immunity. Butz v. Economou, 438 U.S. at 478, 513 (1978);
VanHorn v. Oelschlager, 457 F.3d 844, 847 (8th Cir. 2006) (“VanHorn I”) (State Racing

11

Commission entitled to absolute, quasi-judicial immunity); Anton v. Getty, 78 F.3d 393,
395 (8th Cir. 1996) (finding parole commissioners, hearing examiners, and probation
officers protected by absolute immunity); Destek Group, Inc. v. New Hampshire Public
Utils. Comm’n, 318 F.3d 32, 41 (1st Cir. 2003) (“Absolute immunity is available to
certain ‘quasi judicial’ agency officials who, irrespective of their title, perform functions
essentially similar to those of judges . . . in a setting similar to that of a court”) (internal
quotation and citation omitted); Dunham v. Wadley, 195 F.3d 1007, 1010 (8th Cir. 1999)
(veterinary licensing board members who perform quasi-judicial functions are entitled to
absolute immunity); see also Snyder v. Nolen, 380 F.3d 279, 286-87 (7th Cir. 2004)
(noting that immunity is extended to non-judges in two circumstances: quasi-judicial
conduct, i.e., actions of non-judicial officers acting in a judicial capacity; and actions that
are more administrative in nature taken pursuant to the explicit direction of a judicial
officer). Absolute, quasi-judicial immunity only extends to claims against defendants
sued in their individual—not official-capacities. VanHorn v. Oelschlager, 502 F.3d 775,
779 (8th Cir. 2007) (“VanHorn II”).
To determine which persons are covered under quasi-judicial immunity, courts
employ a functional approach under which absolute immunity flows not from rank or title
or location within the government, but from the nature of the responsibilities of the
individual officer.

See Cleavinger v. Saxner, 474 U.S. 193, 201 (1985); Butz v.

Economou, 438 U.S. 478, 512-16 (1978); Howard v. Suskie, 26 F.3d 84, 86 (8th Cir.
1994) (noting crucial distinction between agency actions which begin or are part of a
judicial or quasi-judicial administrative process, and agency actions which are
independent of such a process).

Whether the function of a person or entity is “a

12

‘classic’ adjudicatory function so as to entitle [them] to the protection of absolute
immunity as opposed to qualified immunity turns on a number of factors.” Brown v.
Griesenauer, 970 F.2d 431, 436 (8th Cir. 1992); Krueger v. Lyng, 4 F.3d 653, 656 (8th
Cir. 1993). Those factors are: “‘(a) the need to assure that the individual can perform
his [or her] functions without harassment or intimidation; (b) the presence of safeguards
that reduce the need for private damages actions as a means of controlling
unconstitutional conduct; (c) insulation from political influence; (d) the importance of
precedent; (e) the adversary nature of the process; and (f) the correctability of error on
appeal.’” Buser v. Raymond, 476 F.3d 565, 568 (8th Cir. 2007) (quoting Krueger, 4
F.3d at 656).
Weighing evidence, making factual determinations, determining sanctions, and
issuing written decisions are duties functionally comparable to the duties performed by
courts. See Dunham, 195 F.3d at 1011 (affording absolute quasi-judicial immunity to
veterinary examining board); Dixon v. Clem, 492 F.3d 665, 674 (6th Cir. 2007) (actions
as a hearing officer of state administrative tribunal clearly taken in a judicial capacity);
McKeown, 377 Fed. App’x 121 (those involved in preparing and adjudicating attorney
discipline proceedings are eligible for absolute immunity); Disraeli v. Rotunda, 489 F.3d
628, 635 (5th Cir. 2007) (state securities board members immune); Krueger, 4 F.3d at
653 (actions in appointing hearing examiner and adopting recommendations was
adjudicatory in nature; actions of committee members in firing employee were not);
VanHorn v. Oelschlager, 457 F.3d

at 847 (“[p]ersons who perform quasi-judicial

functions are [also] entitled to absolute immunity”); but see DiBlasio v. Novello, 344 F.3d

13

292, 296-302 (2d Cir. 2003) (summary suspension process too dissimilar to judicial
process to warrant absolute immunity).
As a general matter, the judicially created doctrine of judicial immunity does not
bar a claim for prospective declaratory or injunctive relief against a judicial officer acting
in his judicial capacity. Pulliam v. Allen, 466 U.S. 522, 542 (1984); Mireles v. Waco, 502
U.S. 9, 10 n.1 (1991) (per curiam). The 1996 amendment to § 1983, however, limits the
relief available to plaintiffs to declaratory relief. See Bolin v. Story, 225 F.3d 1234, 1242
(11th Cir. 2000) (per curiam); Haas v. Wisconsin, 109 Fed. App’x 107, *114, 2004 WL
1799360, **6 (7th Cir. 2004) (stating “in 1996, Congress enacted the Federal Courts
Improvement Act (“FCIA”), Pub.L. No. 104–317, 110 Stat. 3847 (1996), in which it
amended § 1983 to provide that “injunctive relief shall not be granted” in an action
brought against “a judicial officer for an act or omission taken in such officer’s judicial
capacity . . . unless a declaratory decree was violated or declaratory relief was
unavailable”); Lawrence v. Kuenhold, 271 Fed. App’x 763, 766 n.6 (10th Cir. 2008)
(noting that “the doctrine of judicial immunity now extends to suits against judges where
a plaintiff seeks not only monetary relief, but injunctive relief as well”); Roth v. King, 449
F.3d 1272, 1286 (D.C. Cir. 2006) (“42 U.S.C. § 1983, as amended in 1996 by the
[FCIA], explicitly immunizes judicial officers against suits for injunctive relief.”). Claims
for injunctive relief and attorney’s fees against other officials performing quasiadjudicative functions are likewise barred. See Montero v. Travis, 171 F.3d 757, 761
(2d Cir. 1999) (involving parole board). Prosecutors are not immune from claims for
injunctive relief, however. Bolin v. Story, 225 F.3d at 1242.

14

Judicial immunity is not a bar to declaratory relief. Lawrence, 271 Fed. App’x at
766 (“A declaratory judgment is meant to define the legal rights and obligations of the
parties in anticipation of some future conduct, not simply to proclaim liability for a past
act.”); see 42 U.S.C. § 1983 (placing no limitations on declaratory relief). However,
when a litigant seeks only a declaration of past liability, not a declaration of future rights,
a declaratory judgment serves no purpose and thus, is not available. See Lawrence,
271 Fed. App’x at 766.
Absolute immunity also extends to prosecutors performing prosecutorial
functions. Id. at 292-93; see Imbler v. Pachtman, 424 U.S. 409, 430–31 (1976) (holding
that prosecutors are entitled to absolute immunity from damages for acts or omissions
associated with the judicial process, in particular, those taken in initiating a prosecution
and in presenting the government’s case).

Similarly, absolute immunity extends to

others performing acts functionally comparable to a prosecutor’s. Thomason v. SCAN
Volunteer Servs., Inc., 85 F.3d 1365, 1373 (8th Cir. 1996) (affording absolute
prosecutorial immunity to employees of non-profit organization for initiating childprotective proceedings). However, “[i]f a prosecutor engages in activities ‘akin to those
of an administrative or investigative officer, rather than those of an advocate,’ the
prosecutor is no longer entitled to absolute immunity.” Disraeli, 489 F.3d 635 (quoting
Geter v. Fortenberry, 849 F.2d 1550, 1553 (5th Cir. 1988); Stein, 520 F.3d at 1190
(“prosecutorial immunity applies only to actions taken by a prosecutor in the role of
advocate”).2 Vesting a mix of functions in one person can obscure the line between
acts taken as a prosecutor and acts taken as an administrator. Stein, 520 F.3d at 11902

In Disraeli, the Fifth Circuit noted that “[a]s long as the prosecutor acts within his discretionary
authority, however, he is entitled to qualified immunity.” Id., 489 F.3d at 635. Defendants have not raised
the defense of qualified immunity.
15

91 (investigating and prosecuting disciplinary actions and maintaining records were
actions in role as an advocate; whereas, failing to serve copies, contacting court and
requesting hearings were not—characterizing the latter as duties “not of the type
generally assigned to prosecutors”).
DISCUSSION
Arkansas law clearly delineates the responsibilities of the Commission.

In

relevant part the statute states:
(a) The Judicial Discipline and Disability Commission shall initiate or shall
receive information, conduct investigations and hearings, and make
recommendations to the Supreme Court concerning:
(1) Allegations of judicial misconduct;
Ark. Code Ann. § 16-10-404(a). Further, the law states: “Members of the Judicial
Discipline and Disability Commission, referees, commission counsel, and staff shall be
absolutely immune from suit for all conduct in the course of their official duties.” Ark.
Code Ann. Stat. § 16-10-406. “The word ‘judge’ in this subchapter means anyone,
whether or not a lawyer, who is an officer of the judicial system performing judicial
functions, including an officer such as a referee, special master, court commissioner, or
magistrate, whether full-time or part-time.”

Ark. Code. Ann. § 16-10-401.

“The

Supreme Court shall adopt rules with regard to all matters of Judicial Discipline and
Disability Commission operations and all disciplinary and disability proceedings and
promulgate rules of procedure.” Ark. Code. Ann. § 16-10-405.
The court finds the Commission and the Commissioners in their official capacities
are immune from any suit for damages under the doctrine of sovereign immunity. There
is no dispute that the Commission is a state entity. See Digby, 303 Ark. 24. Likewise,

16

the Commissioners in their official capacities are immune from suit for damages. See
Edelman, 415 U.S. at 651.
The court also determines that the Commissioners are entitled to quasi-judicial
immunity. The court finds that all the relevant factors weigh in favor of this finding.
Buser, 476 F.3d at 568 (setting forth the following factors). First, the Commissioners
must be able to make their decisions without fear of intimidation or harassment; second,
there is a clear path of judicial review through the Arkansas Supreme Court for alleged
unconstitutional conduct; third, the Commissioners must be free of political influence
while making these decisions; and fourth, as stated previously, there is a right of judicial
review. It is clear from the face of the amended complaint that the Commissioners
performed adjudicatory functions as outlined by the statute. The Eighth Circuit has
unequivocally held that just as judges are protected by absolute immunity, those
“[p]ersons who perform quasi-judicial functions are [also] entitled to absolute immunity.”
VanHorn, 457 F.3d at 847 (quoting Dunham, 195 F.3d at 1010). The Eighth Circuit
stated:
The Supreme Court has held that absolute immunity is appropriate when
an official’s functions are similar to those involved in the judicial process,
an official’s actions are likely to result in lawsuits for damages by
disappointed parties, and sufficient safeguards exist in the regulatory
framework to control unconstitutional conduct.
VanHorn, 457 F.3d at 847 (quoting Dunham, 195 F.3d 1010). Accordingly, the court
finds the Commissioners are entitled to both sovereign and quasi-judicial immunity in
this case; therefore, the plaintiff has no claim for money damages.
The court now turns to the issue of prosecutorial immunity. Judge Simes argues
that the allegations in his amended complaint show intentional targeting of Judge Simes

17

for removal of office, and he contends there is no prosecutorial immunity for these
actions. This allegation is directed at the executive director, David Stewart. The Eighth
Circuit Court of Appeals has afforded absolute prosecutorial immunity to individuals
other than criminal prosecutors who perform duties “functionally comparable to that of a
prosecutor.” Thomason v. SCAN Volunteer Servs., Inc., 85 F.3d 1365, 1373 (8th Cir.
1996). Arguably, although the court need not definitively decide, some of the actions of
the executive director in his official capacity mirror those of a person acting as a
prosecutor. He presents evidence, calls witnesses, investigates, and submits his case
to the Commission for review. He does some of those things that a prosecutor would
do in a trial setting. However, he does play an administrative role in this process also.
The court finds that the executive director is absolutely immune from suit for all his
official prosecutorial-like actions. Second, the court finds the Arkansas statute cloaks
him as a staff member with absolute immunity. Ark. Code Ann. § 16-10-406. Third, the
executive director is not an actual decision-maker.

It appears that only the nine

Commission members have a vote. Fourth, with regard to any personal allegations of
race discrimination, the right of review to the Arkansas Supreme Court, as discussed
below, has ameliorated any potential race discrimination claim, and there is no
allegation that Judge Simes is being subjected to any such conduct currently.
Accordingly, the court finds that executive director David Stewart is immune from a
federal claim for money damages for such prosecutorial acts.
The court wishes to comment on the allegations of race discrimination. The court
takes claims of racial discriminatory very seriously.

Judge Simes makes significant

allegations of intentional race discrimination against the defendants in their individual

18

capacities. Judge Simes claims that his request for declaratory injunctive relief against
future discrimination is not subject to dismissal by reason of sovereign immunity. The
court finds, however, that Judge Simes’s argument is not dispositive of the issue. The
allegations on the face of the complaint show there is no justiciable controversy with
respect to those claims.

Judge Simes filed his complaint and amended complaint

alleging intentional discrimination against the Commission and Commissioners. This
court concluded that Judge Simes had a justiciable claim but stayed the matter pending
a decision by the Arkansas Supreme Court. The Arkansas Supreme Court reviewed all
of the allegations set forth by Judge Simes.

He received full judicial review.

The

Arkansas Supreme Court made findings that both supported and disagreed with the
Commission. There is no claim that the Arkansas Supreme Court committed error or
racially discriminated against the plaintiff. Consequently, the court finds there is no
justiciable controversy currently before this court. “A case becomes moot if it can be
said with assurance that there is no reasonable expectation that the violation will recur
or if interim relief or events have completely and irrevocably eradicated the effects of the
alleged violation.” Kennedy Building Assoc. v. Viacom, Inc., 375 F.3d 731, 745 (8th Cir.
2004) (citing County of Los Angeles v. Davis, 440 U.S. 625, 631(1979)). In general, the
judicial power of this court extends only to actual cases and controversies.

United

States v. Melton, 666 F.3d 513, 515 n.3 (8th Cir. 2012). There is no remedy the court
could give Judge Simes now, and this court certainly could not order prospective relief
on an issue that might never arise. The United States Supreme Court has stated:
“[p]ast exposure to illegal conduct does not in itself show a present case or controversy

19

regarding injunctive relief . . . if unaccompanied by any continuing, present adverse
effects.” O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974).
The court finds that under the first cause of action, Judge Simes is basically
asking this court to issue an advisory opinion for potential filings against him in the
future. The court is in general prohibited from issuing such advisory opinions. See
KCCP Trust v. City of North Kansas City, 432 F.3d 897, 899 (8th Cir. 2005) (“Article III
limits the federal courts to deciding ‘Cases’ and ‘Controversies’ and thus prohibits us
from issuing advisory opinions.”). Likewise as stated in KCCP, a claim is not ripe if the
alleged injury “rests upon contingent future events that may not occur as anticipated, or
indeed may not occur at all.” Id. at 899; see also Care Committee v. Arneson, 638 F.3d
621, 631 (8th Cir. 2011). “Federal courts are not empowered to give opinions on moot
questions or declare rules of law which cannot affect the matter in issue in the case
before it.” Jefferson Co. v. Halverson (In re Paulson), 276 F.3d 389, 392 (8th Cir.2002);
United States v. Asset Based Resource Group, LLC, 612 F.3d 1017, 1019-20 (8th Cir.
2010). The “test for mootness . . . is whether the relief sought would, if granted, make a
difference to the legal interests of the parties[.]” Air Line Pilots Ass'n, Int'l v. UAL Corp.,
897 F.2d 1394, 1396 (7th Cir. 1990) (citing North Carolina v. Rice, 404 U.S. 244, 246
(1971)); see also Lang v. Social Sec. Admin, 612 F.3d 960, 966 (8th Cir. 2010).
“Questions of mootness are matters of subject matter jurisdiction[.]”

Charleston

Housing Auth. v. USDA, 419 F.3d 729, 739 (8th Cir.2005); see also Keup v. Hopkins,
596 F.3d 899, 904 (8th Cir. 2010). Judge Simes does not allege that he is currently
being subjected to any unconstitutional proceeding. All of his contentions concern past

20

behaviors with the Commission and members of the Commission. In this case, the
court cannot grant relief to Judge Simes, absent any current claim of injury.
In his second cause of action, Judge Simes asserts a claim for violation of his
rights under the “First and Fourteenth Amendments to the Constitution of the United
States, in conjunction with 42 U.S.C. § 1983 and State law as well.” Filing No. 40,
Amended Complaint, at 22.

He alleges the executive director made false and

defamatory statements to a news reporter about him. In particular, he asserts that
defendant Stewart “announced publicly that [Judge Simes] had been accused of
ordering a newspaper reporter not to write a story, of improperly pressuring a mayor of
Helena-West-Helena to reinstate a fired employee, and attempting to prevent people
from talking to the commission.” Id. He contends that the statements “were false,
defamatory, and unfairly stigmatized Plaintiff and violated the rules and regulations of
the Commission regarding the confidentiality of proceedings within the jurisdiction of the
agency.” Although the plaintiff characterizes his allegations as arising under the First
and Fourteenth Amendments to the Constitution, the court finds the allegation amounts
to nothing more than a state law defamation claim.3
Ordinarily, allegations of defamation, without more, do not state a claim for a
violation of constitutional rights. See Paul v. Davis, 424 U.S. 693, 706 (1976) (holding
that the Fourteenth Amendment is not a font of tort law). The arguable basis for such a
constitutional claim would either be that the allegedly defamatory statements amounted
to a deprivation of Judge Simes’s liberty interest in his reputation without due process of
law or violated the First Amendment because the harm to his reputation chilled his right
3

In his reply brief, the plaintiff argues that the claim is one for retaliation for exercise of his First
Amendment rights. The court is unable to glean such a claim from the pleadings.
21

to speech or political participation.

See, e.g., id. at 709 (alteration of legal status,

combined with the injury resulting from the defamation, justifies the invocation of
procedural safeguards); Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298
(1989) (holding that a party can show a cognizable injury by showing that its First
Amendment rights have been chilled by harm to reputation or threat of criminal
prosecution). To show a chilling effect, however, a plaintiff must have sustained, or be
in “‘immediate danger of sustaining a direct injury as the result of the action.’” Laird v.
Tatum, 408 U.S. 1, 13 (1972) (quoting Ex parte Levitt, 302 U.S. 633, 634 (1937)).
“Allegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific
present objective harm or a threat of specific future harm.” Laird, 408 U.S. at 13-14.
Similarly, due process protections are triggered by defamatory statements only when
accompanied by a change in the legal status. Paul v. Davis, 424 U.S. at 706, 711-12.
A mere defamatory statement is not sufficient to establish a claim under 42 U.S.C.
§ 1983. Id. at 712. Liberty interests are implicated only where the government actor
levels accusations “that are so damaging as to make it difficult or impossible” to escape
the stigma of those charges. Winegar v. Des Moines Indep. Cmty. Sch. Dist., 20 F.3d
895, 899 (8th Cir. 1994) (involving allegations of unjustified child abuse); Stodghill v.
Wellston School Dist., 512 F.3d 472, 476 (8th Cir. 2008) (stating “[t]o establish
protected liberty interests, plaintiffs [are] required to establish that a [government]
official, in connection with discharging plaintiffs, publicly made allegedly untrue charges
against them that would stigmatize them so as to seriously damage their standings and
associations in their community, or foreclose their freedom to take advantage of other
employment opportunities”) (quotation omitted.)); see also Board of Regents v. Roth,

22

408 U.S. 564, 573-74 (1972). The requisite stigma has generally been found when a
government employer has accused an employee of dishonesty, immorality, criminality,
racism, and the like. See Stodgill, 512 F.3d at 476.
The court finds the allegations of the plaintiff’s amended complaint do not amount
to a constitutional claim.

He has not alleged a concrete injury to give rise to his

purported “chilling effect” claim. Although he argues that defendant Stewart made the
statements to deter and damage Judge Simes’s attempt to be reelected, Judge Simes
was in fact reelected. Further, the allegedly defamatory statements were not sufficiently
stigmatizing to implicate liberty interests. Also, as evidenced by his reelection, Judge
Simes did not suffer any injury to his reputation that seriously damaged his standing and
associations in his community, or foreclosed his freedom to take advantage of other
opportunities.

The Arkansas Supreme Court was apparently not influenced by the

executive director’s statements, rejected the Commission’s recommendation, and
declined to permanently remove Judge Simes from the bench.

The statements

allegedly made by the executive director to the local paper simply do not give rise to a
claim of constitutional dimension. Accordingly, the court finds that Judge Simes has not
stated a claim cognizable under federal law in connection with his defamatory statement
claim.
Regardless of how the claims are couched, the second cause of action is
focused on state law allegations of defamation. The court’s exercise of jurisdiction over
a state law claim after federal claims are dismissed is wholly discretionary. Crest Const.
II, Inc. v. Doe, 660 F.3d 346, 359 (8th Cir 2011). Assuming without deciding that Judge

23

Simes’s allegations state a claim for defamation under state law, 4 the court will not
exercise its discretion to assume supplemental jurisdiction over that claim. The court
finds it is appropriate for state courts to address the issue, if any claim exists.
For the reasons stated herein, the court concludes that this case is dismissed.
THEREFORE, IT IS ORDERED:
1. Plaintiff’s motion for an extension of time to reply, Filing No. 23, is denied as
moot.
2. The stay in this case is lifted.
3. Defendants’ motion to dismiss, Filing No. 43, is granted. This case and all
claims are hereby dismissed.
4.

A separate judgment will be entered in accordance with this Memorandum

and Order.
DATED this 27th day of September, 2012.
BY THE COURT:

s/ Joseph F. Bataillon
U.S. District Judge, District of Nebraska

4

Under Arkansas law, the following elements must be proven to support a claim of defamation,
whether it be by the spoken word (slander) or the written word (libel): (1) the defamatory nature of the
statement of fact; (2) that statement's identification of or reference to the plaintiff; (3) publication of the
statement by the defendant; (4) the defendant's fault in the publication; (5) the statement's falsity; and (6)
damages. Dodson, supra. A viable action for defamation turns on whether the communication or
publication tends or is reasonably calculated to cause harm to another's reputation. Lancaster v. Red
Robin Intern, Inc., 2011 WL 5562667 (Ark. App. 2011). A plaintiff in a defamation case must prove actual
damage to his reputation, but the showing of harm is slight. Id.; see also Roeben v. BG Excelsior Ltd.
P'ship, 344 S.W.3d 93 (Ark. App. 2009). A plaintiff must prove that defamatory statements have been
communicated to others and that the statements have detrimentally affected those relations. Roeben,
344 S.W.2d at 98. The law does not require proof of actual out-of-pocket expenses. Id.
24