Mickens v. 10th Judicial Circuit et al

Filing 24

ORDER ATTACHED granting [9, 10, 13, & 16] Motions to Dismiss. The clerk is directed to terminate all pending motions/deadlines and to CLOSE the file. Signed by Judge Richard A. Lazzara on 10/29/2010. (CCB)

Mickens v. 10th Judicial Circuit et al

Doc. 24

UNITED STATES DISTRICT COURT M I D D L E DISTRICT OF FLORIDA T A M P A DIVISION

R O N N IE MICKENS and GLORIA J. MICKENS, P la in tif f s , v. C A S E NO: 8:10-cv-2083-T-26EAJ

C IR C U IT COURT TENTH JUDICIAL CIRCUIT, et al., D e f e n d a n ts. /

ORDER B e f o re the Court are several motions to dismiss the complaint filed by the pro se P la in tif f s , Ronnie and Gloria Mickens: (1) Defendant Polk County State Attorney's M o tio n to Dismiss (Dkt. 9); Defendant Polk County Property Appraiser's Motion to D is m iss and supporting memorandum (Dkts. 16 & 17); Defendants Stewart Title G u a ra n ty Company and Stewart Title of Polk County's Motion to Dismiss (Dkt. 13); and D e f e n d a n ts Allen Damron Construction Co., Allen Damron and Debra Damron's Motion to Dismiss (Dkt. 10). Plaintiffs filed two responses in opposition. (Dkts. 20 & 23). After c a re f u l consideration of the Complaint (Dkt. 1), the Second Amended Complaint in this C o u rt's prior case of Mickens v. Tenth Judicial Circuit, et al., 8:05-cv-1115-T-26EAJ, a n d the applicable law, the Court concludes that the motions should be granted and the

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Complaint dismissed with prejudice, even as to unserved Defendants Tenth Judicial C irc u it Court, Second District Court of Appeal, and Polk County Sheriff's Office. BACKGROUND T h e Plaintiffs brought an almost identical action in this Court five years ago in M ic k e n s v. Tenth Judicial Circuit, et al., 8:05-cv-1115-T-26EAJ. The facts of this case a n d the state court procedural history of this case are set forth both in an order in this C o u rt's prior case dated September 19, 2005,1 and in the opinion of the Eleventh Circuit C o u rt of Appeals affirming this Court's prior order on appeal in Mickens v. Tenth J u d ic ia l Circuit, 181 Fed.Appx. 865 (11th Cir. 2006) (unpublished opinion). The Eleventh C irc u it held that the Rooker-Feldman2 doctrine barred the Plaintiffs' claims against S te w a rt Title Guaranty Company (Stewart Title Guaranty), Stewart Title Company of P o lk County, Florida (Stewart Title), and Allen Damron Construction Company (Damron C o n s tru c tio n ), Allen Damron, Debra Damron, Elaine Canady, and Edith F. Rewis, the soc a lle d non-governmental defendants. The Eleventh Circuit held that the state-court ju d g m e n ts were rendered at the time the district court proceedings commenced, that the P la in tif f s failed to identify extrinsic fraud, and that the claims of all three state cases and th e federal case were inextricably intertwined, thereby making the Rooker-Feldman

1

See docket 46 in Case no. 8:05-cv-1115-T-26EAJ.

Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), a n d District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L .E d .2 d 206 (1983). -2-

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doctrine applicable. As to the Polk County defendants, the Eleventh Circuit held that the P la in tif f s did not and could not allege: (1) a conspiracy to interfere with civil rights p u rs u a n t to 42 U.S.C. § 1985; (2) a denial of either procedural due process or substantive d u e process under 42 U.S.C. § 1983; (3) a denial of equal protection under 42 U.S.C. § 1 9 8 3 ; or (4) Title VII race discrimination. T o the extent this complaint, together with Plaintiffs' affidavit attached to the c o m p la in t, seeks redress against state court rulings and judgments entered after the prior f e d e ra l court case and therefore not covered by that prior order, this Court finds that the R o o k e r-F e ld m a n doctrine would again operate as a bar to this case. According to P la in tif f s ' affidavit, the Second District Court of Appeal per curiam affirmed a trial court ru lin g on July 7, 2010.3 The affidavit contains no numbers other than the case numbers a lre a d y considered in the prior federal case, which are Case Numbers 1997CA-455, 1 9 9 8 C A -1 1 5 2 , and 1998CA-2977. C O M P A R I S O N OF THE FEDERAL LAWSUITS S im ila r Counts A count-by-count comparison of the complaint in the prior district court case with th e complaint in this case reveals significant overlap. First, the exact same parties that w e re sued in the prior federal case are sued again in this case. Second, most of the counts o f the complaint in this case are verbatim or almost verbatim to the operative complaint in

3

See docket 1, Aff. at para. 21. -3-

the prior federal case. Counts I, II, III and IV of the present complaint seeking relief a g a in s t Stewart Title Guaranty, Stewart Title, and Canady for the notary's failure to v a lid a te the Plaintiffs' signatures on the quitclaim deed, malfeasance in the conduct of o f f ic ia l duties, false acknowledgment, and performance of prohibited activities are v e rb a tim to counts X, XI, XII and XIII of the complaint in the prior action. Count V of th e complaint in this case for equitable estoppel against Damron Construction, Stewart T itle Guaranty, Stewart Title and the individual defendants is verbatim to count XIV in th e prior action. C o u n t VI of the complaint at issue against Damron Construction, Stewart Title G u a ra n ty, Stewart Title and the individual defendants for "fraud" is similar to Count X V III of the complaint in the prior action. The fraud described addresses Canady's a c tio n in recording the quitclaim deed allegedly knowing that the land was actually o w n e d by the Plaintiffs, not Damron Construction, and refers to a conspiracy on the part o f the defendants to procure the quitclaim deed and encumber Plaintiffs' property, all a s s e rtio n s having been raised in the prior federal case and having formed the basis of the s ta te court cases. Counts VII, VIII, IX, and X in this action that assert cancellation of the q u itc la im deed, quieting title, ejectment, and breach of the construction contract are v e rb a tim to counts XXIII, XXIV, XXV, and XXVI of the complaint in the prior action. Counts XI, XII, and XIII in this case allege civil conspiracy, slander of title, and n e g lig e n c e against Stewart Title Guaranty, Stewart Title, Damron Construction, and the

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individual defendants, and are almost identical to counts XVII, XXII, and XIX in the p rio r action. Counts XV, XVI, and XVIII in this action for conversion, fraudulent c o n v e ya n c e of legal title, and intentional infliction of emotional distress are almost id e n tic a l to counts XX, XXI, and XV in the operative complaint of the prior case. C o u n t X V II for malicious prosecution against Stewart Title Guaranty and Damron Construction is almost identical to count VII in the prior case. M o s t of the remaining counts, specifically counts XIV, XIX, XX, XXI, XXII, X X III, XXV, and XXVII contain similar allegations to those found in the complaint of th e prior federal case, and will be examined further below. Counts XXIV and XXVI add o n e new fact that perhaps spawned this new action. As will be discussed later, this one n e w fact is insufficient to resurrect the old claims or to create new claims. A rg u a b ly New Counts The first count that does not appear verbatim in the prior case is count XIV a lle g in g negligence against the Sheriff, the Property Appraiser, the State Attorney, the T e n th Judicial Circuit Court, and the Second District Court of Appeal. Plaintiffs merely s e t forth similar allegations from the prior case in a collection under the heading n e g lig e n c e . These allegations are directed to the events that led to the notarizing of the q u itc la im deed outside the presence of the Plaintiffs. This exact factual scenario was p le a d e d in the prior federal and state cases. The Eleventh Circuit determined in the prior c a s e that any causes of action that were not but could have been asserted in the prior

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cases, both federal and state, are barred from being raised now under the Rooker-Feldman d o c trin e . There is nothing new in this count that would change the continued application o f Rooker-Feldman. C o u n ts XIX, titled "fraud upon the court" against all defendants, describes the s a m e facts from the complaint in the prior action-- that Judge Strickland of the Tenth J u d ic ia l Circuit initially ruled in Plaintiffs' favor, yet the judgment in that case was o v e rtu rn e d by the Second District Court of Appeal because the judgment was not s u p p o rte d by the record, and both parties, which includes the Plaintiffs, objected. See A lle n Damron Const. Co. v. Mickens, 725 So.2d 1174 (Fla.Dist.Ct.App. 1998). It is a p p a re n t that Plaintiffs' desire is that Judge Strickland's ruling had never been overturned b e c a u s e they have not received a favorable judgment since that time. These allegations a n d rulings are barred by the Rooker-Feldman doctrine at this point, as was clearly stated b y the Eleventh Circuit. Nothing has been alleged in the complaint to change the a p p lic a tio n of Rooker-Feldman to this count. C o u n t XX is a second conspiracy count with different allegations. Again, as in c o u n t XIX, Plaintiffs allege that the "state Defendants" conspired with the "non-state D e f e n d a n ts " to mischaracterize Judge Strickland's initial favorable ruling voiding the q u itc la im deed, which was overturned. This contention has been decided against P la in tif f s and is barred from being relitigated by the Rooker-Feldman doctrine.

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Counts XXI, XXII, XXIII, and XXV allege the claims of violations of procedural d u e process, substantive due process, "due process--stigmatization," and freedom of s p e e c h , through harming their reputation by depriving them of their property based on ra c e , with slightly different facts than originally alleged in the prior federal case. These c o u n ts are brought against only the "state Defendants," which Plaintiffs deems the Polk C o u n ty Sheriff, the Polk County Property Appraiser, the Polk County State Attorney, the T e n th Judicial Circuit Court, and the Second District Court of Appeals. All three of these c o u n ts , as do counts XIX and XX, recite the same facts pertaining to Judge Strickland's in itia l ruling over twelve years ago. Plaintiffs have failed to allege a "constitutionallyin a d e q u a te process" or these Defendants' failure to provide adequate procedures to s u b s ta n tia te a claim of a violation of procedural due process. See Cotton v.Jackson, 216 F .3 d 1328, 1331 (11th Cir. 2000) (reiterating that state must have the opportunity to re m e d y its own procedural failings before being subjected to procedural due process v io la tio n ).4 As to any violation of a substantive due process right, there is no government a c to r's conduct that would "shock the conscience" and no fundamental right has been a rtic u la te d . See Tinker v. Beasley, 429 F.3d 1324, 1328-29 (11 th Cir. 2005) (holding that

See also Mickens v. Tenth Judicial Circuit, 181 Fed. Appx. 865 (11 th Cir. 2006) (u n p u b lish e d opinion) (citing Horton v. Board of Cty. Comm'rs of Flagler Cty., 202 F.3d 1 2 9 7 , 1300 (11th Cir. 2000), which is relied on in Cotton). -7-

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in non-custodial settings, the government actor's conduct must be arbitrary or "shock the c o n s c ie n c e " before qualifying as a substantive due process violation).5 C o u n ts XXIV and XXVI rely on one new fact that was perhaps not in existence at th e time of the filing of the prior federal or state cases: the comparators of Albert and N a n c y Pascell. Count XXIV attempts to allege a claim for violations of equal protection p u rs u a n t to 42 U.S.C. § 1983, which is somewhat different from the equal protection c la im alleged under count V of the complaint in the prior federal case. Count XXVI for v io la tio n s of Title VII racial discrimination, which is similar to count VIII of the c o m p la in t in the prior federal case, also relies on the existence of the comparators. According to the complaint, the Pascells are outside of the Plaintiffs' protected class, and th e y were treated differently than Plaintiffs. Buried deep in the Plaintiffs' affidavit a tta c h e d to their complaint in this case, Plaintiffs aver that Judge Curry of the Tenth J u d ic ia l Circuit ruled in favor of the Pascells on February 5, 2010, in Pascells v. Blanco, e t al., "on the same or identical issues that involved a fraudulent quitclaim deed and m o rtg a g e s."6 No other fact or allegation is contained in the numerous papers submitted b y Plaintiffs that show any relevance, much less commonality, between the Pascells' case a n d this case.

See also Mickens v. Tenth Judicial Circuit, 181 Fed. Appx. 865, (11 th Cir. 2006) (u n p u b lish e d opinion) (citing Tinker).
6

5

See docket 1, Aff. at para. 25. -8-

Finally, count XXVII alleges a RICO violation against all "non-state Defendants." This count appears to be a conglomerate of all of the fraud allegations, submitted under th e broad title of RICO. All of the fraud allegations were submitted in the complaint in th e prior federal case, and have been determined barred by the Rooker-Feldman doctrine. A N A L Y S IS A ll of the Defendants raise the Rooker-Feldman doctrine as a bar to this Court's c o n s id e ra tio n of this case. "The Rooker-Feldman doctrine places limits on the subjectm a tte r jurisdiction of federal district courts and courts of appeal over certain matters re la te d to previous state court litigation." Goodman v. Sipos, 259 F.3d 1327, 1332 (11 th C ir. 2001). The Supreme Court limits the doctrine to cases "of the kind from which the d o c trin e acquired its name: cases brought by state-court losers complaining of injuries c a u s e d by state-court judgments rendered before the district court proceedings c o m m e n c e d and inviting district court review and rejection of those judgments." Exxon M o b il Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 1521-22, 1 6 1 L.Ed.2d 454 (2005); see also Nicholson v. Shafe, 558 F.3d 1266, 1268 (11 th Cir. 2 0 0 9 ). In Nicholson, the Eleventh Circuit decided to no longer apply the four-part test in A m o s v. Glynn Cty. Bd. of Tax Assessors, 347 F.3d 1249, 1266 n. 11 (11 th Cir. 2003), a n d instead, to rely on the precise language of Exxon Mobil quoted above in determining w h e th e r the doctrine applies in any given case. After Exxon, "the relevant inquiry is w h e th e r the state court proceedings have ended" at the time the federal action is filed.

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Nicholson, 558 F.3d at 1277. If the state court proceedings have ended and the case re p re se n ts a state-court loser looking to reverse a state court judgment, then RookerF e ld m a n doctrine applies to divest this Court of subject matter jurisdiction, and the case m u s t be dismissed. Goodman, 259 F.3d at 1332 n. 6. T h e case numbers cited in this complaint and attached affidavit are the same as th o s e considered in the prior federal case. Other than the case referenced, Pascells v. B la n c o , to which Plaintiffs were not parties, Plaintiffs cite to no new state court orders at is su e . Apart from the failure to describe how the Pascells are "comparators" and how an a c t five years after the prior federal action was filed can give rise to a comparator s itu a tio n , it is a judge who is accused of discrimination in issuing a ruling over which he h a d subject matter jurisdiction and therefore judicial immunity from suit, as is discussed b e lo w . In any event, the allegations of this complaint are directed to the same factual is su e s raised in the prior federal complaint and as such, any claims that could have but w e re not raised in that prior case can no longer be made. Hence, this Court finds that R o o k e r-F e ld m a n , once again, bars this Court from exercising jurisdiction over this case. O T H E R CONSIDERATIONS A p a rt from the Rooker-Feldman doctrine, the Polk County State Attorney's motion is well-taken in that the state attorney enjoys Eleventh Amendment immunity from suit in m a tte rs of discretion to prosecute. "A prosecutor's decision to bring charges against a p e rs o n , so long as the prosecutor is acting within the scope and territorial jurisdiction of

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his office, is immune from an action for damages under § 1983." Elder v. Athens-Clarke C n ty., 54 F.3d 694, 695 (11th Cir. 1995) (citing Imbler v. Pachtman, 424 U.S. 409, 96 S .C t. 984, 47 L.Ed.2d 128 (1976)). That his decision to prosecute or not to prosecute is a lle g e d as part of a conspiracy "does not in any manner dilute immunity." Elder, 54 F.3d a t 695; Rowe v. City of Ft. Lauderdale, 279 F.3d 1271, 1282-83 (11 th Cir. 2002). This p ro s e c u to ria l immunity is derived from judicial immunity. Elder, 54 F.3d at 695. Thus, w ith respect to the many judges of the Tenth Judicial Circuit and the Second District C o u rt of Appeal, judicial immunity protects them also from suit unless they acted w ith o u t jurisdiction. See Dykes v. Hosemann, 776 F.2d 942, 946 (11 th Cir. 1985) (en b a n c ) (holding that judges having subject matter jurisdiction of a case are immune from s u it, including § 1983 action).7 H a v in g concluded that the Rooker-Feldman doctrine applies to this case attacking th e same state court cases that were considered in the prior federal court case, this Court is without subject matter jurisdiction, even as to the unserved Defendants. It is therefore O R D E R E D AND ADJUDGED as follows: (1 ) D e f e n d a n t Polk County State Attorney's Motion to Dismiss (Dkt. 9) is GRANTED.

The Polk County Property Appraiser's motion is also well-taken. There are a b s o lu te ly no facts alleged in the complaint or the attached affidavit that implicate the P ro p e rty Appraiser. -11-

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(2)

D e f e n d a n t Polk County Property Appraiser's Motion to Dismiss (Dkt. 16) is GRANTED.

(3 )

D e f e n d a n ts Stewart Title Guaranty Company and Stewart Title of Polk C o u n ty's Motion to Dismiss (Dkt. 13) is GRANTED.

(4 )

D e f e n d a n ts Allen Damron Construction Co., Allen Damron and Debra D a m ro n 's Motion to Dismiss (Dkt. 10) is GRANTED.

(5 ) (6 )

This case is dismissed with prejudice. T h e clerk is directed to terminate all pending motions/deadlines and to C L O S E the file.

D O N E AND ORDERED at Tampa, Florida, on October 29, 2010.

s/Richard A. Lazzara RICHARD A. LAZZARA U N I T E D STATES DISTRICT JUDGE

COPIES FURNISHED TO:

C o u n s e l of Record P la in tif f s , pro se

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