Mitchell v. Davis et al

Filing 22

ORDER granting 16 Motion to Dismiss Jimm Larry Hendren With Prejudice and REMANDING CASE TO STATE COURT. ORDER denying as moot 6 Motion to Strike ; denying as moot 18 Motion to Remand. Signed by Honorable Timothy L. Brooks on June 30, 2014. (src)

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

JAMES B. MITCHELL
v.

PLAINTIFF
Case No. 5:14-CV-05075

ERWIN LEE DAVIS and
JIMM LARRY HENDREN

DEFENDANTS

OPINION AND ORDER

Before the Court are Separate Defendant Judge Jimm Larry Hendren’s Motion to
Dismiss the First Amended Complaint against him (Doc. 16) (hereafter “Complaint”) and
Plaintiff James B. Mitchell’s Response (Doc. 19); Judge Hendren’s Motion to Strike
Plaintiff’s Second Request for Discovery (Doc. 6); and Mitchell’s Motion to Remand (Doc.
18), Judge Hendren’s Response (Doc. 20), and Mitchell’s Reply (Doc. 21).
Mitchell filed this suit against the Honorable Jimm Larry Hendren, United States
District Judge for the Western District of Arkansas, and his former attorney, Erwin Lee
Davis. For the reasons stated herein, the Motion to Dismiss (Doc. 16) is GRANTED and
Judge Hendren is dismissed with prejudice. Upon Judge Hendren’s dismissal this Court
will lack subject matter jurisdiction, and therefore any and all remaining claims will be
REMANDED to State Court. Considering these rulings, Judge Hendren’s Motion to Strike
Plaintiff’s Second Request for Discovery (Doc. 6) and Mitchell’s separate Motion to
Remand (Doc. 18) are deemed MOOT, and therefore DENIED.

I. Factual Background
This lawsuit arises out of Plaintiff James B. Mitchell’s claims against his former
criminal defense attorney, Erwin Davis, and against the judge who presided over Mitchell’s
criminal case, the Honorable Jimm Larry Hendren. See Case No. 5:10-CR-50067-001.
Davis represented Mitchell through his arraignment. Subsequently, Davis sought and was
granted leave to withdraw from the representation, and new counsel entered an
appearance. Davis was not involved in Mitchell’s decision to plead guilty to charges of
conspiracy to promote prostitution and money laundering, and did not represent Mitchell
during the sentencing hearing that took place on June 6, 2011, in which Mitchell was
committed to a term of imprisonment of 126 months.
Shortly after Mitchell was sentenced, he filed a § 2255 Petition requesting that the
Court vacate his sentence. While that Petition was pending, Mitchell, acting pro se, filed
a civil complaint against Davis in the Circuit Court of Washington County, Arkansas, on
October 9, 2013, alleging various claims of misconduct related to Davis’s representation
of him in the criminal proceeding. Then, on January 17, 2014, Mitchell amended his statecourt complaint to add Judge Hendren as a defendant.
In a letter to Judge Hendren dated January 28, 2014, Mitchell revealed that his true
motivation for adding him as a defendant in the state-court case was to coerce him into
ruling favorably on Mitchell’s § 2255 Petition. The letter read, “If you wish to avoid
answering the complaint and or answering my discovery requests, quit delaying ruling
on my § 2255 petition you’re still presiding over (filed in June of 2012), and grant the
relief we all know I am long overdue for, and I would be amenable to dismissing you

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from this lawsuit?” (Doc. 18-1, p. 2) (emphasis in original). On February 28, 2014,
Mitchell’s state court action was removed to this Court. 1
The claim made against Judge Hendren relates to Davis’s initial representation of
Mitchell in his criminal case. Mitchell contends that Judge Hendren violated his right to
assistance of counsel by allegedly conducting an ex parte telephone conversation with
Davis out of Mitchell’s presence and without Mitchell’s knowledge. Mitchell asserts that
during that conversation, Judge Hendren improperly gave legal advice to Davis causing
him to withdraw as counsel because of an apparent conflict of interest. Further, Mitchell
complains that Judge Hendren violated his rights in not conducting a “disqualification/
waiver” hearing to provide Mitchell the opportunity to waive any alleged conflict of interest
between he and Davis.
Judge Hendren maintains that any allegation that he spoke to Davis “ex parte” or
failed to hold a hearing prior to Davis’s withdrawal are judicial acts entitled to immunity from
suit. He also contends that Mitchell’s lawsuit should be dismissed as frivolous, as it was
brought for the purpose of harassment and in an attempt to influence a favorable ruling on
an unrelated petition.
II. Legal Standard
In ruling on a Rule 12(b)(6) motion to dismiss, the court “accept[s] as true all of the
factual allegations contained in the complaint, and review[s] the complaint to determine
whether its allegations show that the pleader is entitled to relief.” Schaaf v. Residential

1

Mitchell wrote a follow-up letter to Judge Hendren the same date this matter was
removed, again offering to dismiss Judge Hendren from the instant lawsuit “with prejudice,”
provided that his § 2255 Petition were granted. (Doc. 11, p. 58).
3

Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008). All reasonable inferences from the
complaint must be drawn in favor of the nonmoving party. Crumpley–Patterson v. Trinity
Lutheran Hosp., 388 F.3d 588, 590 (8th Cir.2004). A complaint need only contain “ ‘a
short and plain statement of the claim showing that the pleader is entitled to relief.’ ” Id.
(quoting Fed. R. Civ. P. 8(a)). “While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the
‘grounds' of his ‘entitlement] to relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citations omitted). Stated differently, the plaintiff must
“raise a right to relief above a speculative level.” Schaaf, 517 F.3d at 549. The Court will
liberally construe a pro se plaintiff's complaint; however, the plaintiff must allege sufficient
facts to support his or her claims. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir.2004).
III. Discussion
Separate Defendant Judge Hendren argues that he is entitled to dismissal from the
present suit because the claim made against him is barred by judicial immunity. In
addition, Judge Hendren asserts that the Complaint is frivolous and brought in an effort to
harass.

Mitchell contends that an alleged ex parte communication between Judge

Hendren and Davis2, constituted “legal advice” by Judge Hendren. Mitchell argues that
the “legal advice” was given in Judge Hendren’s individual capacity and was not a “judicial
act,” and therefore Judge Hendren is not protected by judicial immunity. (Doc. 19 at p. 4).

2

In his Response Mitchell states that he doesn’t know whether any such conversation
actually occurred. (Doc. 19 at p. 1-3).
4

Judges are immune “from suit, not just from the ultimate assessment of damages.”
Mireles v. Waco, 502 U.S. 9, 11 (1991)(internal citation omitted). The scope of a judge's
jurisdiction is broadly construed when relating to judicial immunity. Stump v. Sparkman,
435 U.S. 349, 356 (1978). Even if judges act in error, with malice, or outside of their
authority, they are subject to liability only when acting in the clear absence of all
jurisdiction. Id.
Judicial immunity is overcome in only two circumstances. First, a judge is not
immune from liability for nonjudicial actions, which are actions not taken in the judge's
judicial capacity. Mireles, 502 U.S. at 11 (internal citations omitted). The “informal and ex
parte nature of a proceeding has not been thought to imply that an act otherwise within a
judge’s lawful jurisdiction was deprived of its judicial character.” Forrester v. White, 484
U.S. 219, 227 (1988) (internal citation omitted). Second, judges are not immune for
actions, though judicial in nature, taken in the complete absence of jurisdiction. Mireles,
502 U.S. at 12. A clear absence of jurisdiction exists when “a court of limited jurisdiction
attempts to adjudicate a case outside of its jurisdiction, such as when a probate court
conducts a criminal trial.” Duty v. City of Springdale, Ark., 42 F.3d 460, 462-63 (8th Cir.
1994)(citing Mann v. Conlin, 22 F.3d 100, 104 (6th Cir. 1994) (internal quotation omitted)),
cert. denied, 513 U.S. 870 (1994).
Applying the Rule 12(b)(6) legal standard, and thus accepting the allegations as
true, Mitchell does not state facts which bring his Complaint within either of these two
narrow exceptions. Contrary to Mitchell’s argument, discerning and communicating with an
attorney about a potential conflict of interest is an important and sometimes essential

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judicial function. More to the point, a judge’s conversation with an attorney is not rendered
“non-judicial” merely because it was an “ex parte” communication.3 Forrester, 484 U.S. at
227.
Mitchell wrongly conflates the alleged “non-judicial” communication and Judge
Hendren’s subsequent granting of Davis’ Motion to Withdraw without a “disqualification/
waiver hearing” as constituting the denial of Mitchell’s Sixth Amendment right to counsel.
Mitchell’s non-sequitur argument fails, because, as alleged in the Complaint, Mitchell was
aware of and agreed to alternate counsel arranged by Davis, and he was—in
fact—represented by counsel at all times during the course of his criminal case.4
Mitchell’s assertion that Judge Hendren should have had a hearing on Davis’ Motion
is likewise without merit and does not establish an exception to judicial immunity. The
Government did not move to disqualify Davis. Rather, after learning of the Government’s
intentions, Davis voluntarily filed a Motion to Withdraw—but only after first consulting
Mitchell and making arrangements for alternate counsel to represent him. Davis’ Motion
to Withdraw was predicated on his own personal and/or ethical conflict.5 The Government
did not object to the Motion. Even though Davis was Mitchell’s preferred counsel, Mitchell

3

Mitchell has also misconstrued the term “ex parte.” Ex parte communications are
between the judge and one party to a case, usually without notice to or argument from the
adverse party. BLACK'S LAW DICTIONARY (9th ed. 2009). Because Davis represented
Mitchell, it was not an ex parte communication. Here, only the Government had standing
to object to any alleged ex parte communication between Davis and Judge Hendren.
4

First Amended Complaint (Doc. 3) at paragraphs 20-26.

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Mitchell alleges that Davis had previously represented and/or patronized one of the
“escorts” that the Government intended to call as a trial witness against Mitchell. Complaint
(Doc. 3) at paragraphs 10, 15-17.
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nevertheless agreed to be represented by alternate counsel—who was paid from Davis’
original retainer proceeds.

Under such circumstances, a hearing on the Motion to

Withdraw was not necessary, much less required.

More to the point, a decision on

whether to hold a hearing is a judicial function.
For these reasons, the Court finds that the actions alleged against Judge
Hendren—even if true—were judicial in nature, performed in an official capacity, and
possessed of proper jurisdiction.

Mitchell has failed to state any valid cause of action

against Judge Hendren whatsoever, much less facts constituting an exception to judicial
immunity from suit. Accordingly, the Court finds that the Complaint against Judge Hendren
should be dismissed with prejudice.
The Court further finds that Mitchell initiated this suit for an improper purpose—to
bribe and/or coerce Judge Hendren to favorably rule on Mitchell’s pending § 2255 Petition.
Therefore, even if Judge Hendren were not immune from suit, the Court would dismiss the
Complaint against him with prejudice pursuant to Federal Rule of Civil Procedure 11,
because the allegations are frivolous and filed for the sole purpose of harassment.
Finally, the Court finds that—upon Judge Hendren’s dismissal—its subject-matter
jurisdiction over this removed action will no longer exist. Therefore, the Court will remand
the remaining state-law claims against Davis.
As a consequence of these rulings, the Court need not consider the merits of Judge
Hendren’s Motion to Strike Plaintiff’s Second Request for Discovery (Doc. 6); nor Mitchell’s
Motion to Remand (Doc.18), and instead finds that the same should be DENIED as MOOT.

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