Gore v. Yeargan et al

Filing 8

ORDER ADOPTING REPORT AND RECOMMENDATIONS 6 ; denying 2 Motion for Service and dismissing this matter with prejudice. Signed by Honorable Susan O. Hickey on August 8, 2017. (mll)

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

DEREK GORE

V.

PLAINTIFF

CASE NO. 4:17-CV-04044

CHARLES A. YEARGAN, Circuit
Judge; and TOM COOPER, Circuit Judge

DEFENDANTS

ORDER
Before the Court is the Report and Recommendation filed July 7, 2017, by the Honorable
Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas. ECF No. 6.
Plaintiff has filed timely objections. ECF No. 7.
In the present action, Plaintiff states that he “brings this suit pursuant to Title 42 U.S. Code
§ 1983 for violations of certain protections guaranteed to him by the First, Fifth, Eighth, Ninth and
Fourteenth Amendments of the federal Constitution, by the defendants under color of law in their
capacity as judges in the Circuit Court of Little River County, Arkansas.” ECF No. 1, p. 1. Plaintiff
seeks “injunctive relief commanding the defendants to issue monetary losses and to change the
process in which persons are ordered out of their homes on false allegations”; declaratory relief;
and “costs of litigations.” ECF No. 1, p. 3. Plaintiff’s claims arise out of a domestic relations matter
wherein Defendants issued protective orders against Plaintiff and in favor of Plaintiff’s wife in
2009 and 2010, respectively. ECF No. 1, pp. 1-2. Judge Bryant recommends that Plaintiff’s Motion
for Service (ECF No. 2) be denied and that this matter be dismissed because (1) both Defendants
are immune from suit and (2) this matter falls under the domestic relations exception to federal
court jurisdiction.

As for the issue of whether Defendants are immune from suit, the Court finds that both
Defendants are entitled to judicial immunity. “A judge is immune from suit, including suits
brought under section 1983 to recover for alleged deprivation of civil rights, in all but two narrow
sets of circumstances.” Schottel v. Young, 687 F.3d 370, 373 (8th Cir. 2012) (citing Mireles v.
Waco, 502 U.S. 9, 11-12, (1991)). “First, a judge is not immune from liability for nonjudicial
actions, i.e., actions not taken in the judge’s judicial capacity. Second, a judge is not immune for
actions, though judicial in nature, taken in the complete absence of all jurisdiction.” Id. (quoting
Mireles, 502 U.S. at 11-12).
In regard to the first exception, Plaintiff explicitly states that Defendants acted “in their
capacity as judges in the Circuit Court of Little River County, Arkansas.” As such, it appears that
the first exception does not apply because it is undisputed that Defendants acted in their official
judicial capacities. Turning to the second exception, Plaintiff makes no allegations and the record
does not suggest that Defendants acted “in the absence of jurisdiction.” Further, the Arkansas Code
specifically vests jurisdiction over issues of domestic violence with the county circuit courts. ARK.
CODE ANN. § 9-15-101 (“The equitable nature of this remedy requires the legislature to place
proceedings contemplated by this chapter under the jurisdiction of the circuit courts.”).
Accordingly, the Court finds that Defendants did not act without jurisdiction and, therefore, the
second exception is inapplicable. Thus, it appears that Defendants are entitled to judicial immunity.
Moving on to the issue of whether the present matter falls within the domestic relations
exception to federal jurisdiction, the Court finds that it does. “The domestic relations exception
. . . divests the federal courts of jurisdiction over any action for which the subject is a divorce,
allowance of alimony, or child custody.” Khan v. Khan, 21 F.3d 859, 861 (8th Cir. 1994). Further,
“when a cause of action closely relates to but does not precisely fit into the contours of an action

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for divorce, alimony or child custody, federal courts generally will abstain from exercising
jurisdiction.” Id. Although the present action concerns protective orders and therefore does not
deal directly with divorce, alimony, or child custody, the Court finds that the subject matter of the
present controversy is so closely related to those actions that it would be inappropriate to exercise
jurisdiction.
Accordingly, upon de novo review the Court adopts Judge Bryant’s Report and
Recommendation in toto. Thus, Plaintiff’s Motion for Service (ECF No. 2) is hereby DENIED
and this matter is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED, this 8th day of August, 2017.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge

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