Allaben v. Howanitz et al

Filing 18

ORDER granting 7 motion to dismiss; finding as moot 15 Motion to Compel and 17 Motion to void Order; dismissing case with prejudice; directing Clerk to close the file. Signed by Judge Timothy J. Corrigan on 11/24/2013.(SRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

DERK L. ALLABEN,
Plaintiff,
vs.

Case No. 3:13-cv-398-J-99TJC-JRK

ELIZABETH H. HOWANITZ, FREDERICK
R. BROCK and KRISTINA MILLER,
Defendants.

ORDER
Plaintiff Derk L. Allaben, proceeding pro se, filed this complaint against two attorneys
and an insurance adjuster who he claims conspired with two state court judges to violate
Allaben’s due process rights during the course of a legal malpractice case Allaben brought
against defendant Frederick Brock and Brock’s law firm, Gartner, Brock and Simon.
Defendant Elizabeth Howanitz represented Brock and his firm in that matter and defendant
Kristina Miller was the adjuster for Brock’s professional liability insurance carrier.
Defendants have moved to dismiss Allaben’s complaint for failure to state a claim,
contending that, as private individuals, they cannot be held liable under 42 U.S.C. § 1983,
which recognizes a cause of action against a party who deprives an individual of a federal
right while acting under color of state law. Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303
(11th Cir. 2001). In responding to the motion, Allaben argues that the facts here fall within
an exception to the general rule against holding private parties liable under § 1983.
However, “[o]nly in rare circumstances can a private party be viewed as a state actor for §

1983 purposes.” Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992).1 Plaintiff’s
complaint essentially alleges that the defendants had as an objective to successfully defend
his legal malpractice lawsuit and that, in furtherance of that objective, they conspired with
two state court judges to violate plaintiff’s civil rights. While plaintiff describes various actions
which he alleges are demonstrative of the state court judges’ participation in and knowledge
of the conspiracy, the allegations describe typical events that might occur in the course of
any state court lawsuit and which do not in any way support even an inkling that there was
an effort by any of those involved to deprive plaintiff of his civil rights. That plaintiff lost his
case when the court eventually granted defendants’ motion for summary judgment does not
make the defendants here co-conspirators with each other or the state court judges. As
explained in Harvey, “[u]se of the courts by private parties does not constitute an act under
color of state law.” Id. at 1133. Even under the liberal pleading standards of Rule 8, and
notwithstanding the generous leeway afforded to pro se parties, the Court finds plaintiff has
not stated a claim; further it appears that any amendment would be futile,2 and therefore
defendants’ motion to dismiss (Doc. 7) is hereby granted. This case is dismissed with

1

In Harvey, the Eleventh Circuit explained that if a judge had knowledge of a plan to
deprive a party of her civil rights, private parties who conspired with the judge by providing
false statements could be found liable under § 1983; however, the allegations in Harvey
failed to allege any knowledge by the judge of such a plan and the complaint was therefore
properly dismissed. Harvey, 949 F.2d at 1133.
2

Ordinarily, the Court might be inclined to permit leave to amend a complaint before
dismissing, but plaintiff’s current complaint contains a very complete recitation of the state
court process and the Court can think of no possible amendment that would turn these
events into a viable cause of action against these defendants under 42 U.S.C. § 1983.
2

prejudice. The Clerk shall close the file.3
DONE AND ORDERED at Jacksonville, Florida this 24th day of November, 2013.

s.
Copies:
counsel of record
pro se plaintiff

3

Because of the Court’s ruling, the Court need not take up plaintiff’s motion to compel or
motion to void the Court’s Order, Doc. 14 and those motions (Docs. 15 & 17) are therefore
moot. For plaintiff’s future reference, the Court always retains the ability to manage its own
docket and while not every case calls for the suspension of case management while another
motion is pending, where the motion, if granted, will likely dispose of the case, the Court will
often suspend those deadlines- even without the parties’ agreement.
3