Windsor v. Huber et al
ORDER granting 16 Motion to Dismiss Paul Howard, Jr. The request for leave to amend is denied on the grounds of futility. Signed by Judge Thomas W. Thrash, Jr on 9/21/11. (dr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
WILLIAM M. WINDSOR,
CIVIL ACTION FILE
CHRISTOPHER HUBER, et al.,
This is a pro se civil action against the Clerk of this Court, various judges of
this Court and the Eleventh Circuit Court of Appeals, and others. It is before the
Court on the Defendant Paul Howard’s Motion to Dismiss [Doc. 16]. For the reasons
set forth below, the Court GRANTS the Defendant’s motion.
The Plaintiff, William Windsor, has sued judges in the Northern District of
Georgia, the Eleventh Circuit Court of Appeals, and others, including Fulton County
District Attorney Paul Howard [See Doc. 1]. The Plaintiff claims that the Defendants
violated the Georgia RICO statute, O.C.G.A. § 16-4-1 et seq. Windsor alleges that
he “presented criminal charges against 11 federal judges in Fulton County to the
Fulton County District Attorney, Mr. Howard, and [Howard] did nothing and has
aided the racketeering enterprise.” (Compl. ¶ 95.) That is the only allegation
specifically applicable to Howard.
On July 15, 2011, the Defendants removed the action to this Court. On July 28,
2011, the Plaintiff filed a Motion for Leave to Conduct Discovery [Doc. 13] and a
Motion to Vacate the Notice of Removal [Doc. 15]. On August 29, 2011, the Court
denied both motions [Doc. 33]. Howard has filed a Motion to Dismiss [Doc. 16]. The
Defendant contends that he is entitled to official and prosecutorial immunity. See FED.
R. CIV. P. 12(b)(6). Further, Howard argues that Windsor has failed to properly state
a claim for conspiracy. See id.
II. Failure to State a Claim Standard
A complaint should be dismissed under Rule 12(b)(6) only where it appears that
the facts alleged fail to state a “plausible” claim for relief. Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009); Fed. R. Civ. P. 12(b)(6). A complaint may survive a motion
to dismiss for failure to state a claim, however, even if it is “improbable” that a
plaintiff would be able to prove those facts; even if the possibility of recovery is
extremely “remote and unlikely.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556
(2007) (citations and quotations omitted). In ruling on a motion to dismiss, the court
must accept factual allegations as true and construe them in the light most favorable
to the plaintiff. See Quality Foods de Centro America, S.A. v. Latin American
Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir. 1983). Generally,
notice pleading is all that is required for a valid complaint. See Lombard’s, Inc. v.
Prince Mfg., Inc., 753 F.2d 974, 975 (11th Cir. 1985), cert. denied, 474 U.S. 1082
(1986). Under notice pleading, the plaintiff need only give the defendant fair notice
of the plaintiff’s claim and the grounds upon which it rests. See Erickson v. Pardus,
551 U.S. 89, 93 (2007) (citing Twombly, 550 U.S. at 555).
Howard argues that he is entitled to prosecutorial immunity. Under the Georgia
Constitution, “[d]istrict attorneys shall enjoy immunity from private suit for actions
arising from the performance of their duties.” GA. CONST. art. VI, § 8, para. 1(e).
“The rationale behind this immunity is that prosecutors, like judges, should be free to
make decisions properly within the purview of their official duties without being
influenced by the shadow of liability. Therefore, a district attorney is protected by the
same immunity in civil cases that is applicable to judges, provided that his acts are
within the scope of his jurisdiction. The determining factor appears to be whether the
act or omission is intimately associated with the judicial phase of the criminal
process.” Mosier v. State Board of Pardons & Paroles, 213 Ga. App. 545, 546 (1994)
(quoting Robbins v. Lanier, 198 Ga. App. 592, 593 (1991)). “[T]here is no question
that a prosecutor's decision to file formal criminal charges against an individual is an
act intimately associated with the judicial phase of the criminal process.” Robbins v.
Lanier, 198 Ga. App. 592 (1991).
Here, the Plaintiff alleges that Howard “did nothing” when “Windsor presented
criminal charges against 11 federal judges.” (Compl. ¶ 95.) The Defendant’s decision
not to pursue criminal charges, however, is intimately associated with the judicial
phase of the criminal process. See id. (dismissing claims against prosecutor based on
decision to file criminal charges). Indeed, deciding whether or not to pursue criminal
charges is directly tied to Howard’s duties as a district attorney. See GA. CONST. art.
VI, § 8, para. 1(e). (“District attorneys shall enjoy immunity from private suit for
actions arising from the performance of their duties.”)
Windsor, however, argues that his “claims have absolutely nothing to do with
initiating a prosecution and presenting the State’s case.” (Pl.’s Resp. in Opp’n to
Def.’s Mot. to Dismiss, at 17.) Rather, the Plaintiff claims that Howard violated
RICO. To the extent that Windsor has abandoned his claim that Howard failed to
prosecute judges, the Complaint does not include any facts supporting a RICO claim
against Howard. Indeed, the bare allegation that Howard violated RICO does not
provide the Defendant sufficient notice of the grounds upon which Windsor’s claim
rests. See Erickson, 551 U.S. at 93 (citing Twombly, 550 U.S. at 555); Randall v.
Scott, 610 F.3d 701, 709-710 (11th Cir. 2010) (“A district court considering a motion
to dismiss shall begin by identifying conclusory allegations that are not entitled to an
assumption of truth-legal conclusions must be supported by factual allegations.”). For
these reasons, the Defendant is entitled to prosecutorial immunity.
Failure to State a Claim
To the extent the Plaintiff alleges that Howard engaged in a conspiracy to
violate RICO, the Complaint fails to state a claim upon which relief can be granted.1
To establish a conspiracy, the Plaintiff must “(1) prove the parties had a ‘meeting of
the minds’ or reached an understanding to violate the plaintiff's rights and (2) prove
an actionable wrong to support the conspiracy.” Thomas v. Kemp, No. CV 310-019,
2010 WL 4867537, at *5 (S.D. Ga. Sept. 14, 2010). “[T]he linchpin for conspiracy
is agreement, which presupposes communication.” Id. (quoting Bailey v. Board of
County Comm'rs of Alachua County, 956 F.2d 1112, 1122 (11th Cir. 1992)). “In
conspiracy cases, a defendant must be informed of the nature of the conspiracy which
is alleged. It is not enough to simply aver in the complaint that a conspiracy existed.”
Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984).
The Complaint alleges that Howard “aided the racketeering enterprise.”
(Compl. ¶ 95.) In his Response, however, Windsor states that he is not bringing a
conspiracy claim against Howard. Nevertheless, the Court will address this claim.
Here, Windsor does not allege any facts concerning the nature of the
conspiracy. He does not state when, where, or how the Defendants reached an
agreement to violate RICO. See Kemp, 2010 WL 4867537, at *5 (dismissing
conspiracy claim where “Plaintiff [did] not offer any specifics on when or how an
agreement between any of the Defendants may have been reached to violate Plaintiff's
rights.”). Indeed, the only allegation relating to Howard is that he “did nothing” in
response to Windsor’s information. (Compl. ¶ 95.) As discussed above, Howard is
entitled to prosecutorial immunity with respect to that claim. For these reasons, the
Plaintiff’s claims against Howard are dismissed.
In his response, Windsor argues that the Motion to Dismiss introduces matters
outside the pleadings.2 Thus, the Plaintiff contends, the Court should convert the
Defendant’s Motion to Dismiss into a motion for summary judgment and order
discovery. The Defendant’s motion, however, only addresses allegations in the
Complaint. For that reason, no discovery is necessary.
Windsor also argues that the Court should remand this case to the Superior
Court of Fulton County. The Court, however, denied Windsor’s Motion to Vacate
Notice of Removal on August 29, 2011 [Doc. 33].
For the reasons set forth above, the Defendant Paul Howard’s Motion to
Dismiss [Doc. 16] is GRANTED. The request for leave to amend is denied on the
grounds of futility.
SO ORDERED, this 21 day of September, 2011.
/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?