Gilliard v. Rogers et al
Filing
15
ORDER granting 7 Motion to dismiss for lack of jurisdiction. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 2/24/2016. (DRW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
WILLIAM MICHAEL GILLIARD,
Plaintiff,
v.
Case No. 8:15-cv-2638-T-33EAJ
VICTORIA L. ROGERS, Hardee
County Clerk of Circuit Court
and Comptroller, et al.,
Defendants.
_____________________________/
ORDER
This matter comes before the Court upon consideration of
Defendants Victoria L. Rogers, Hardee County Clerk of Circuit
Court and Comptroller, and John W.H. Burton P.A.’s Motion to
Dismiss (Doc. # 7). Plaintiff William Michael Gilliard filed
a response in opposition. (Doc. # 9). For the reasons stated
herein, the Court grants the Motion.
I.
Background
Gilliard alleges that on May 30, 2014, he sent a document
entitled “Affirmation of Status and Oath of Allegiance,”
along with a money order in excess of the required recording
fee,
to
Rogers,
who
is
the
Clerk
of
Circuit
Court
and
Comptroller for Hardee County. (Doc. # 1 at ¶ 13). Gilliard’s
purpose of sending the document was to have the “Affirmation
1
of Status and Oath of Allegiance” recorded in the public
record. (Id.). Thereafter, Gilliard received a letter from
Rogers stating that the “Affirmation of Status and Oath of
Allegiance” would not be recorded in the public record. (Id.
at ¶ 14). Gilliard sent a follow-up letter on June 19, 2014.
(Id. at 16). Subsequent thereto, Gilliard received a letter
from Burton, counsel for Rogers as Clerk of Circuit Court for
Hardee
County.
Burton’s
letter
explained
why
Gilliard’s
documents were not recorded. (Id. at 16-17).
Gilliard again attempted to file documents in the public
record with the Clerk of Circuit Court for Hardee County;
this time, Gilliard went in person to the Clerk of Circuit
Court for Hardee County’s office on October 20, 2015. (Id. at
¶
18).
Gilliard
attempted
to
record
two
documents,
one
entitled “Irrevocable Covenant Power of Attorney-In-Fact” and
the other entitled “Private Deed.” (Id.). The Clerk of Circuit
Court for Hardee County refused to record either document.
(Id. at ¶ 21). A week later, Burton sent another letter to
Gilliard. (Id. at ¶ 24). Burton’s second letter stated that
the “Irrevocable Covenant Power of Attorney-In-Fact” and
“Private Deed” were not recorded because they were copies and
pointed out other deficiencies in those documents. (Id. at
52).
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Gilliard filed suit on November 10, 2015. (Id.) The
Complaint is not organized by count; however, the wherefore
clause shows that Gilliard alleges Rogers and Burton violated
(1) 42 U.S.C. § 1981, (2) 42 U.S.C. § 1983, (3) the Due
Process Clause of the Fourteenth Amendment to the United
States Constitution, (4) Article I, Section 2 of the Florida
Constitution,
(5)
Article
I,
Constitution,
(6)
Article
I,
Section
Section
9
of
the
Florida
21
of
the
Florida
Constitution, and (7) Section 28.222, Florida Statutes. (Id.
at 7). The Complaint demands injunctive relief, though it
does not specify the form thereof, and damages in excess of
$15,000,000. (Id. at ¶ 6).
Rogers and Burton moved to dismiss the Complaint on
December 9, 2015, arguing that suit is barred by the Eleventh
Amendment and the Complaint fails to state a claim. (Doc. #
7 at 1). Gilliard filed a response on December 23, 2015. (Doc.
# 9). Gilliard’s response addresses a document dated December
21, 2015, that he submitted to the Clerk of Circuit Court for
Hardee County, which means that the document referenced in
the response occurred after Gilliard filed his Complaint.
Gilliard has not moved to amend his Complaint. The response
does not otherwise respond to Rogers and Burton’s Motion.
3
This
action
was
subsequently
reassigned
from
the
Honorable James D. Whittemore, United States District Judge,
to the undersigned on February 17, 2016. (Doc. # 12). The
Motion is ripe for this Court’s review.
II.
Legal Standard
On a motion to dismiss, this Court accepts as true all
the allegations in the complaint and construes them in the
light most favorable to the plaintiff. Jackson v. Bellsouth
Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further,
this
Court
favors
the
plaintiff
with
all
reasonable
inferences from the allegations in the complaint. Stephens v.
Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th
Cir. 1990) (stating “[o]n a motion to dismiss, the facts
stated
in
[the]
complaint
and
all
reasonable
inferences
therefrom are taken as true”). However:
[w]hile 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. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations omitted). Courts are not “bound to accept as true
a legal conclusion couched as a factual allegation.” Papasan
4
v. Allain, 478 U.S. 265, 286 (1986). Furthermore, “[t]he scope
of
review
must
be
limited
to
the
four
corners
of
the
complaint.” St. George v. Pinellas Cty., 285 F.3d 1334, 1337
(11th Cir. 2002).
III. Analysis
The Eleventh Amendment states, “[t]he Judicial power of
the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of
the United States by Citizens of another State, or by Citizens
or Subjects of any Foreign State.” U.S. Const. amend. XI.
“The Eleventh Amendment protects a State from being sued in
federal court without the State’s consent.” Manders v. Lee,
388 F.3d 1304, 1308 (11th Cir. 2003) (en banc). The Supreme
Court has “extended the Amendment’s applicability to suits by
citizens against their own states.” Bd. of Trs. of Univ. of
Ala. v. Garrett, 531 U.S. 356, 363 (2001).
“It
is
also
well-settled
that
Eleventh
Amendment
immunity bars suits in federal court when the State itself is
sued and when an ‘arm of the State’ is sued.” Manders, 388
F.3d at 1308 (citing Mt. Healthy City Sch. Dist. Bd. of Educ.
v. Doyle, 429 U.S. 274, 280 (1977)). An arm of the State
includes agents and instrumentalities of the State. Id. As to
whether a defendant is an arm of the State, “[t]he pertinent
5
inquiry
is
not
into
the
nature
of
[its]
status
in
the
abstract, but its function or role in a particular context.”
Shands Teaching Hosp. & Clinics v. Beech St. Corp., 208 F.3d
1308,
1311
(11th
Cir.
2000).
In
determining
whether
a
defendant is an arm of the State, a court looks at “(1) how
state law defines the entity; (2) what degree of control the
State maintains over the entity; (3) where the entity derives
its funds; and (4) who is responsible for judgments against
the entity.” Zabriskie v. Court Admin., 172 Fed. Appx. 906,
908 (11th Cir. 2006) (quoting Manders, 338 F.3d at 1309).
“An assertion of Eleventh Amendment immunity essentially
challenges a court’s subject matter jurisdiction,” which
“must be resolved before a court may address the merits of
the underlying claims(s).” Seaborn v. State of Fla., Dep’t of
Corrections, 143 F.3d 1405, 1407 (11th Cir. 1998).
The Constitution of the State of Florida, Article V
addresses the judiciary and therein establishes the office of
clerk of circuit court for each county. Fla. Const. art. V,
§ 16. The clerks of circuit courts are constitutional officers
elected by the electors of the relevant county. Fla. Const.
art. V, § 16; Fla. Const. art. VIII, § 1. In addition, “under
Florida law[,] clerks of circuit courts are considered to be
a part of the ‘state courts system,’ which, as a component of
6
the judicial branch, is a state agency.” Blankenship v.
Childers, No. 3:12cv216/MW/EMT, 2013 WL 6536827, at *5 (N.D.
Fla. Nov. 14, 2013), adopted by Blankenship v. Childers, No.
3:12-cv-216-MW/EMT, 2013 WL 6536898, at *1 (N.D. Fla. Dec.
13, 2013).
Furthermore, remembering that a court is to analyze the
Defendants’ function in the particular context at issue,
Shands Teaching Hosp. & Clinics, 208 F.3d at 1311, the Court
notes that the context in this case is the recording of
documents in the public record. And, as to that function, the
State maintains near absolute control of the clerks of circuit
courts. Section 28.222, Florida Statutes, defines the duties
of clerks of circuit courts in their role as county recorder.
Section 28.222 prescribes how the clerks of circuit courts
should record documents and enumerates the types of documents
the clerks of circuit courts must record. Notably, Section
28.222(3) does not use precatory or permissive language;
rather, Section 28.222(3) dictates what the clerks of circuit
court must accept.
Neither party addresses how the clerks of circuit courts
are funded, whether it is through the State or the county.
Likewise, neither party addresses who would be responsible
for a judgment entered against a clerk of circuit court.
7
However, a review of the Constitution of the State of Florida
Article V, Section 14(b) demonstrates that clerks of circuit
courts are designed to be partially self-funded, deriving a
portion of their funds from filing fees, service charges, and
costs for performing court-related functions. Fla. Const.
amend V, § 14(b); see also Fla. Stat. § 28.24. Importantly,
Section 14 explicitly limits a county’s or municipality’s
duty to fund clerks of circuit courts. Fla. Const. amend V,
§ 14(c).
In sum, the Court determines that Rogers and Burton were
acting as an arm of the State and, therefore, Eleventh
Amendment immunity applies. See Zabriskie, 172 Fed. Appx. at
908
(implying
Eleventh
Amendment
immunity
can
apply
to
counsel of an arm of the State). In addition, Rogers and
Burton argue that the exception under Ex parte Young, 209
U.S. 123 (1908), does not apply because Gilliard seeks both
monetary and injunctive relief. Gilliard raises no argument
as to the applicability of Young. The Court agrees with Rogers
and Burton that the exception does not apply. See Summit Med.
Assocs., P.C. v. Pryor, 180 F.3d 1326, 1337 (11th Cir. 1999)
(stating, “the Eleventh Amendment bars suits against state
officials
in
federal
court
seeking
retrospective
or
compensatory relief, but does not generally prohibit suits
8
seeking only prospective injunctive or declaratory relief”)
(emphasis added).
Having determined that Gilliard’s action is barred by
the Eleventh Amendment, the Court dismisses the case for lack
of subject matter jurisdiction.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)
Defendants Victoria L. Rogers, Hardee County Clerk of
Circuit Court and Comptroller, and John W.H. Burton
P.A.’s Motion to Dismiss (Doc. # 7) is GRANTED.
(2)
This
case
is
dismissed
for
lack
of
subject
matter
jurisdiction. The Clerk is directed to terminate any
pending motions and, thereafter, close this case.
DONE and ORDERED in Chambers in Tampa, Florida, this
24th day of February, 2016.
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