Sloan v. McGrady et al

Filing 7

ORDER adopting 3 REPORT AND RECOMMENDATION re 2 MOTION for leave to proceed in forma pauperis/affidavit of indigency filed by Marius D. Sloan. The Motion for leave to proceed in forma pauperis/affidavit of indigency is denied and the case is dismissed. The Clerk of the Court is directed to close this case. Signed by Senior Judge Patricia C. Fawsett on 1/30/2012. (LAM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
MARIUS D. SLOAN
Plaintiff,
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Case No. 6:11-cv-2000-Orl-19GJK

J. THOMAS MCGRADY, CHARLES A.
DAVIS, JR., CRAIG C. VILLANTI, JR.,
PATRICIA J. KELLY, RICKY POLSTON,
JORGE LABARGA, R. FRED LEWIS,
CHARLES T. CANADY, and JAMES E.C.
PERRY,

Defendants.
_____________________________________

ORDER
This case comes before the Court on the following:
1.

Declaration of Indigency/Motion for leave to proceed in forma pauperis by Plaintiff
Marius D. Sloan (Doc. No. 2, filed Dec. 16, 2011);

2.

The Report and Recommendation of United States Magistrate Judge Gregory J. Kelly on
the Declaration of Indigency/Motion for leave to proceed in forma pauperis (Doc. No. 3,
filed Dec. 12, 2011); and

3.

Objection to the Report and Recommendation of United States Magistrate Judge Gregory
J. Kelly by Plaintiff Marius D. Sloan (Doc. No. 5, filed Jan. 4, 2012.)
Background

On December 16, 2011, Plaintiff Marius D. Sloan (“Plaintiff”) filed a Complaint against the Chief
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Judge of Florida’s Sixth Circuit Court, Thomas McGrady (“Judge McGrady”), judges of Florida’s Second
District Court of Appeal Charles A. Davis Jr., Craig C. Villanti Jr., and Patricia J. Kelly, and justices of
the Florida Supreme Court Ricky Polston, Jorge Labarga, R. Fred Lewis, Charles T. Canady, and James
E.C. Perry (collectively “Defendants”). (Doc. No. 1.) Plaintiff, proceeding pro se, brings suit against each
individual judge or justice in their “official capacity” and alleges that Defendants “directly conspired to
infringe injustice upon him in which [sic] violated his protected rights guaranteed by the United States
Constitution.” (Doc. No. 1 at 1.) Specifically, Plaintiff alleges the following: (1) the sentence imposed
by Judge McGrady violates the Double Jeopardy Clause under the Fifth Amendment of the United States
Constitution; (2) in entering a judgment for fines and costs, Judge McGrady deprived Plaintiff of life and
liberty under the Fourteenth Amendment; (3) the Second District Court of Appeal “entered into a
conspiracy with Judge McGrady” as it delayed in deciding Plaintiff’s appeal within the requisite 180 days
and, therefore, violated the Fourteenth Amendment;1 (4) “[i]n furtherance of the alleged conspiracy, the
Second District Court [of Appeal] committed libel by rendering a false opinion in Sloan v. State, 10 So.
3d 686 (Fla. Dist. Ct. App. 2009);” (5) the Florida Supreme Court also delayed in responding to Plaintiff’s
appeal in violation of Florida Rule of Judicial Administration 2.250(2) and the Fourteenth Amendment;
and (6) the state courts conspired against Plaintiff “due to a racial and class-based invidiously
discriminatory animus to deprive him of Due Process of the law and life and liberty.” (Doc. No. 1 ¶¶ 7075.)
Plaintiff also filed a Declaration of Indigency/Motion for leave to proceed in forma pauperis

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Florida Rule of Judicial Administration 2.250(2) governs time standards for the Florida
Supreme Court and District Courts of Appeal. Rule 2.250(2) states the District Courts of Appeal
and the Florida Supreme Court should render a decision “within 180 days of either oral argument
or the submission of the case to the court panel for a decision without oral argument . . . .”
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pursuant to 28 U.S.C. § 1915 (the “Motion”). (Doc. No. 2, filed Dec. 16, 2011.) The matter was referred
to Magistrate Judge Gregory J. Kelly for review and issuance of a Report and Recommendation.
On December 21, 2011, Magistrate Judge Kelly issued a Report and Recommendation that the
Motion be denied and the case be dismissed as frivolous in accordance with Title 28, section 1915, of the
United States Code because Plaintiff’s claims are barred by absolute judicial immunity (“the Report and
Recommendation”). (Doc. No. 3.) On January 4, 2012, Plaintiff filed his objections to the Report and
Recommendation. (Doc. No. 5.)
Standard of Review
When a motion is delegated to a magistrate judge under Title 28, Section 636(b), of the United
States Code, the magistrate judge is required to submit a report to the district court and parties. 28 U.S.C.
§ 636(b). If a party makes a proper objection to the magistrate judge’s report and recommendation, the
district court must conduct a de novo review of the portions of the report to which the objection is made.
Fed. R. Civ. P. 72(b)(3); Macort v. Prem, Inc., 208 Fed. App’x 781, 783-84 (11th Cir. 2006) (quoting
Heath v. Jones, 863 F.2d 815, 822 (11th Cir. 1989)). “It is critical that the objection be sufficiently
specific and not a general objection to the report.” Macort, 208 Fed. App’x at 784 (citing Goney v. Clark,
749 F.2d 5, 7 (3d Cir. 1984)). The District Court may accept, reject, or modify in whole or in part, the
findings or recommendations made by the magistrate judge. Fed. R. Civ. P. 72(b)(3); Macort, 208 Fed.
App’x at 784 (quoting Heath, 863 F.2d at 822). When conducting its de novo review, “the district court’s
consideration of the factual issues [must] be independent and based upon the record before the court.”
Macort, 208 Fed. App’x at 784 (quoting LoConte v. Dugger, 847 F.2d 745, 750 (11th Cir. 1988)).
Pursuant to Title 28, Section 1915, of the United States Code, federal district courts are required
to conduct an initial screening of civil complaints filed in forma pauperis. 28 U.S.C. § 1915. A motion

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to proceed in forma pauperis enables the plaintiff to pursue his or her action without prepayment of fees
or costs. Id. The pauper’s affidavit, however, should not be a “broad highway into federal courts.”
Phillips v. Mashburn, 746 F.2d 782, 785 (11th Cir. 1984) (internal citation omitted). Indigence does not
create a constitutional right to expend public funds and the valuable time of the courts in order to prosecute
an unmeritorious action. Id. The district court is authorized to “dismiss the case if the court determines
that . . . the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §
1915(e)(2)(B). A lawsuit is considered frivolous if the plaintiff’s realistic chances of ultimate success are
slight. Clark v. Ga. Pardons & Paroles Bd., 915 F.2d 636, 639 (11th Cir. 1990). Legal theories are
frivolous when they are “indisputably meritless.” Neitzke v. Williams, 490 U.S. 319, 329 (1989); Battle
v. Cent. State Hosp., 898 F.2d 126, 129 (11th Cir. 1990).
The United States Supreme Court has explained that a federal district court’s authority to dismiss
a case under Title 28, Section 1915, of the United States Code is “designed largely to discourage the filing
of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do
not initiate because of the costs of bringing suit and because of the threat of sanctions for bringing
vexatious suits under Federal Rule of Civil Procedure 11.” Neitzke, 490 U.S. at 327. The court continued,
“[t]o this end, the statute accords judges not only the authority to dismiss a claim based on an indisputably
meritless legal theory, but also the unusual power to pierce the veil of the complaint’s factual allegations
and dismiss those claims whose factual contentions are clearly baseless.” Id. Examples of such claims
include “claims against which it is clear that the defendants are immune from suit,” “claims of
infringement of a legal interest which clearly does not exist,” and “claims describing fantastic or delusional
scenarios.” Id. at 327-28.

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Analysis
Plaintiff makes the following objections to Magistrate Judge Kelly’s Report and Recommendation:
(1) “the Magistrate’s report overlooked the constitutionality of the Complaint and the violations thereofdisregarded to research Florida Statutes and Rules and Procedures;” (2) “the Magistrate’s report failed to
consider that U.S. Const. amend. XI pertains to suits brought under 42 U.S.C. 1983 to where ‘absolute
immunity’ is then enacted;” (3) “Plaintiff’s evidence bestows the burden of proof to the allegations therein
the Complaint;” and (4) “Plaintiff isn’t seeking monetary compensation for the acts within the alleged
conspiracy but only ratification therefor.” (Doc. No. 5 at 1-2.) None of Plaintiff’s objections, however,
are directed towards the specific findings in the Report and Recommendation.2 (See Doc. No. 5.
After reviewing the record, the Court agrees with Magistrate Judge Kelly that “absolute judicial
immunity operates as an ‘obvious bar’ to Plaintiff’s allegations.” (Doc. No. 3 at 5.) “Judges are entitled
to absolute judicial immunity from damages for those acts taken while they are acting in their judicial
capacity . . . .” Bolin v. Store, 225 F.3d 1234, 1239 (11th Cir. 2000) (quoting Stump v. Sparkman, 435 U.S.
349, 356-57 (1978); Simmons v. Conger, 89 F.3d 1080, 1084-85 (11th Cir. 1996)). Absolute judicial
immunity applies “even when the judge’s acts are in error, malicious, or were in excess of his or her
jurisdiction.” Id. Additionally, judicial immunity is absolute immunity not only from damages, but also
from suit itself. Mireles v. Waco, 502 U.S. 9, 11 (1991). The doctrine of absolute judicial immunity is
based on the principle that judges should “be free to act upon [their] own convictions, without
apprehension of personal consequences . . . .” Otworth v. The Fla. Bar, 71 F. Supp. 2d 1209, 1217-18

2

Plaintiff asserts that “‘absolute immunity’ that’s been entitled to the defendants is the same
as governmental immunity.” (Doc. No. 5 at 2.) Plaintiff further engages in an analysis of sovereign
immunity provided to the states under the Eleventh Amendment, but does not provide an argument
why absolute judicial immunity does not bar Plaintiff’s Complaint. (Id. at 2-3.)
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(M.D. Fla. 1999) (citing Stump, 435 U.S. at 355)).
Judicial immunity may be overcome in only two instances. “First, a judge is not immune from
liability for nonjudicial actions, i.e. actions not taken in the judge’s judicial capacity.” Mireles, 502 U.S.
at 11 (citing cases). To determine whether a judge acted within his or her judicial capacity, the court must
look to the nature of the act. Otworth, 71 F. Supp. 2d at 1218; Stump, 435 U.S. at 350 (“The factors
determining whether an act by a judge is ‘judicial’ relate to the nature of the act itself (whether it is a
function normally performed by a judge) and the expectation of the parties (whether they dealt with the
judge in his individual capacity) . . . .”). The Eleventh Circuit has considered the following four factors
when determining if a judge’s actions were made in his or her judicial capacity: (1) whether the “act
complained of constituted a normal judicial function;” (2) whether the “events occurred in the judge’s
chambers or in open court;” (3) whether the “controversy involved a case pending before the judge;” and
(4) whether the “confrontation arose immediately out of a visit to the judge in his judicial capacity.”
Sibley v. Lando, 437 F.3d 1067, 1070 (11th Cir. 2005) (citing Scott v. Hayes, 719 F.2d 1562, 1565 (11th
Cir. 1983)). In the present case, Plaintiff’s allegations against Defendants clearly reflect actions taken by
Defendants within their judicial capacities. See Martin v. Meigs, No. 09-0308-WS-N, 2009 WL 2473565,
at *1 (S.D. Ala. Aug. 11, 2009) (describing the resolution of a case pending before a judge and the
dismissal of a case by a judge as acts within a judge’s judicial capacity for purposes of judicial immunity).
The second instance under which judicial immunity may be overcome occurs when the judge’s
actions, though possibly judicial in nature, are done in the complete absence of jurisdiction. Mireles, 502
U.S. at 12 (citing cases). When determining whether a judge has jurisdiction over the matter, “a court
must construe jurisdiction broadly in favor of the defendant judge.” Otworth, 71 F. Supp. 2d at 1218.
Moreover, a judge may still be entitled to judicial immunity even when acting “in excess” of his or her

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jurisdiction. Lloyd v. Foster, 298 Fed. App’x 836, 840 (11th Cir. 2008) (citing Stump, 435 U.S. at 356
n.7). For example,
if a probate judge, with jurisdiction over only wills and estates, should try a criminal case,
he would be acting in the clear absence of jurisdiction and would not be immune from
liability for his action; on the other hand, if a judge of a criminal court should convict a
defendant of a nonexistent crime, he would merely be acting in excess of his jurisdiction
and would be immune.
Id. (citing Stump, 435 U.S. at 356 n.7).
In the present case, Plaintiff alleges that Defendants conspired against him based on racial and
class-based animus and, acting in their official capacities, deprived him of Due Process of the law. (Doc.
No. 1 at 11.) However, Plaintiff offers no support for this claim. Moreover, the absolute judicial
immunity afforded to judges “applies when the judge is accused of conspiring to enter an unlawful order.”
Algieri v. Ditter, No. 6:08-cv-895-Orl-22KRS, 2008 WL 2824813, at *3 (M.D. Fla. July 21, 2008) (citing
Wilson v. Bush, 196 Fed. App’x 796, 799 (11th Cir. 2006)). For example, in Gottschalk v. Gottschalk, No.
10-11979, 2011 WL 2420020, at *7 (11th Cir. June 16, 2011), the court determined that the judge’s ruling
in the case could not be considered in determining whether the judge entered into a conspiracy under 42
U.S.C. § 1983 because the judge was protected by the doctrine of absolute judicial immunity for those
actions.
Furthermore, sentencing Plaintiff and entering a judgment for costs and fines against Plaintiff by
the Sixth Circuit Court Judge, issuing an opinion affirming the denial of Plaintiff’s motion to correct
illegal sentence by the Second District Court of Appeal Judges, and dismissing Plaintiff’s appeal by the
Florida Supreme Court Justices are all within the scope of the judicial duties of the judges and justices in
the respective courts. (See Doc. No. 5 at 6-7, 9, 10.) Because Defendants were acting within their judicial
capacities and not in the clear absence of jurisdiction, Magistrate Judge Kelly correctly concluded that

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absolute judicial immunity bars Plaintiff’s allegations. (Doc. No. 3 at 5.)
Additionally, the Court adopts Magistrate Judge Kelly’s recommendation to dismiss the case as
frivolous. (Id.) A district court “may dismiss a claim based on absolute judicial immunity if it represents
an ‘obvious bar’ based on the allegations in the complaint.” Williams v. Ala., 425 Fed. App’x 824, 826
(11th Cir. 2011) (citing Sibley, 437 F.3d 1067, 1070 n.2 (11th Cir. 2005)).
Conclusion
The Court OVERRULES Plaintiff’s objections to the Report and Recommendation. (Doc. No.
5, filed Jan. 4, 2012.) The Report and Recommendation of Magistrate Judge Kelly (Doc. No. 3, filed Dec.
16, 2011) is AFFIRMED, Plaintiff’s Motion to proceed in forma pauperis (Doc. No. 2, filed Dec. 16,
2011) is DENIED, and the case is DISMISSED as frivolous. The Clerk of the Court is directed to close
this case.
DONE and ORDERED in Chambers in Orlando, Florida on January

Copies furnished to:
Counsel of Record
Unrepresented Party
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30

, 2012.

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