Mischler v. Clary
MEMORANDUM OPINION & ORDER: Defendants' motion to dismiss 42 will be GRANTED, plaintiffs motion to strike 49 will be DENIED, and this case will be DISMISSED. An appropriate order will be entered. Signed by Judge Thomas W. Phillips on 7/11/2016.(CBD)cc: COR, Mischler via US Mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
AMY JERRINE MISCHLER,
SUSAN STOKLEY CLARY, et al.,
This civil action is pending before the Court on defendants’ motion to dismiss
[Doc. 42] and plaintiff’s motion to strike [Doc. 49]. Plaintiff has filed an objection, a
supporting memorandum, and exhibits in response to the motion to dismiss [Doc. 51] and
the defendants have replied [Doc. 52]. Plaintiff has also filed a notice of objection [Doc.
57] to issues raised in the defendants’ reply that were not found in her response. The
defendants have responded to the plaintiff’s motion to strike [Doc. 50].
pending motions are ripe for determination.
For the reasons set forth herein, the plaintiff’s motion to strike [Doc. 49] will be
DENIED and defendant’s motion to dismiss [Doc. 42] will be GRANTED.
Plaintiff Amy Mischler filed this case on May 13, 2013 [Doc. 1], initially only
asserting claims against defendant Susan Stokley Clary in her official capacity as the
Kentucky Supreme Court Clerk. The original complaint was never served on defendant
Clary. On November 15, 2013, plaintiff filed a first amended complaint [Doc. 12] which
asserted additional claims and added Kentucky Supreme Court Chief Justice John
Minton, the Kentucky Supreme Court, and Larrin Thompson, former law clerk to
Kentucky Supreme Court Justice Will T. Scott, as defendants. This complaint was not
served on the defendants. On December 20, 2013, then-presiding District Judge Thapar
consolidated this case with another civil action pending in this Court, case number 7:13cv-8, Mischler v. Stevens, et al., [Doc. 19]. Still, defendants Clary, Larrin Thompson,
and the Kentucky Supreme Court were never served with process and therefore did not
appear in the consolidated action.
On April 8, 2014, the undersigned entered a memorandum opinion and order in
the consolidated case granting various motions to dismiss and dismissing all of the
defendants except for Jonah Stevens, Clary, Larrin Thompson, and the Kentucky
Supreme Court [Case No. 7:13-cv-8, Docs. 118, 119]. That decision was affirmed by the
Sixth Circuit Court of Appeals on September 9, 2015 [Case No. 7:13-cv-8, Doc. 147].
The undersigned then severed cases 7:13-cv-8, with defendant Jonah Stevens the sole
remaining defendant in that case, and 3:13-cv-26, with defendants Clary, Larrin
Thompson, and the Kentucky Supreme Court as the remaining, unserved defendants in
this case [Doc. 23]. After failing to comply with this Court’s directive to file a complete,
amended and restated complaint against only these remaining defendants, the Court
directed this case to proceed on the previously filed First Amended Complaint [Doc. 28].
The defendants have been served and now move to dismiss the First Amended Complaint
in its entirety.
Much has been written by this Court and others on the long-running legal battles
of the plaintiff against her ex-husband, Jonah Stevens, concerning custody of their two
children, and the manner in which the Kentucky judicial system has handled those
battles. It will not be repeated here. The instant case has its genesis in plaintiff’s
attempts to challenge the decisions of the Pike County Circuit Court in 2002, which
denied cross domestic violence petitions, and in 2006, which granted temporary custody
of the two children to Mr. Stevens. In 2009, Mr. Stevens was awarded permanent and
full custody. Notably, Ms. Mischler did not directly appeal any of those decisions.
The instant case challenges the manner in which the Kentucky Supreme Court has
handled Ms. Mischler’s various writ petitions which attempted to collaterally attack the
domestic relations orders. The First Amended Complaint challenges the way in which
the Kentucky Supreme Court Clerk’s office handled her petitions, when pleadings are
stamp-filed, who is permitted to work on her cases, whether the Kentucky Supreme
Court’s administrative orders should be available online, and the lack of a published list
of duties for the Kentucky Supreme Court Clerk. Plaintiff seeks damages, injunctive and
declaratory relief pursuant to 42 U.S.C. § 1983 [Doc. 12 at ¶ 1].
Standard of Review
In deciding a Rule 12(b)(6) motion to dismiss, a court must construe the complaint
in the light most favorable to the plaintiff, accept all factual allegations as true, draw all
reasonable inferences in favor of the plaintiff, and determine whether the complaint
contains “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007); Directv, Inc. v. Treesh, 487 F.3d 471, 476
(6th Cir. 2007) (citation omitted). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
“Determining whether a complaint states a plausible claim for relief will
[ultimately] . . . be a context-specific task that requires th[is Court] to draw on its judicial
experience and common sense.” Id. at 679.
Dismissal pursuant to Fed. R. Civ. P. 12(b)(1) is proper when a federal court lacks
subject matter jurisdiction. When subject matter jurisdiction is challenged, the party
asserting jurisdiction bears the burden of establishing jurisdiction to survive a motion to
dismiss. Moir v. Greater Cleveland Reg’l Transit Auth., 895 F.2d 266, 269 (6th Cir.
Under Rule 12(b)(1), a motion to dismiss “may either attack the claim of
jurisdiction on its face or it can attack the factual basis of jurisdiction.” Golden v. Gorno
Bros., Inc., 410 F.3d 879, 881 (6th Cir. 2005). A facial attack on the subject matter
jurisdiction alleged in a complaint challenges the sufficiency of the pleading. Ohio Nat’l
Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). In reviewing a facial
attack, the court takes the plaintiff’s allegations in the complaint as true, similar to a Rule
12(b)(6) motion to dismiss. Id. A party making a factual attack on subject matter
jurisdiction challenges the actual existence of the court’s jurisdiction – a defect that may
exist even though the complaint contains the formal allegations necessary to invoke
jurisdiction. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th
With a factual attack, no presumption of truthfulness applies to the
allegations and the court is free to weigh the evidence and satisfy itself as to the existence
of its power to hear the case. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994).
Plaintiff’s Motion to Strike
Plaintiff filed a motion to strike [Doc. 49] the defendants’ motion to dismiss,
arguing that the motion to dismiss is longer than her complaint, that it is full of
extraneous material, and that it is really a motion for summary judgment. Defendants
have responded in opposition to the motion to strike [Doc. 50], arguing that their
supporting memorandum complies with the page limitations in LR7.1(d), that the length
of their brief was necessary to respond to the lengthy First Amended Complaint, and that
references to public records from plaintiff’s prior cases are necessary to understanding
the factual allegations and defenses. Moreover, defendants point out that the Court may
consider public records in support of a motion to dismiss without converting the motion
to a motion for summary judgment and that Fed. R. Civ. P. 12(d) specifically
contemplates the conversion of a motion to dismiss to a motion for summary judgment
when matters outside the pleadings are considered.
Fed. R. Civ. P. 12(f) provides that the Court “may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
Fed. R. Civ. P. 7(a) defines a “pleading” as:
an answer to a complaint;
an answer to a counterclaim designated as a counterclaim;
an answer to a crossclaim;
a third-party complaint;
an answer to a third-party complaint; and
if the court orders one, a reply to an answer.
Fed. R. Civ. P. 7(a). The rule notes that “[o]nly these pleadings are allowed.” Id. Thus,
Defendants’ motion is not a “pleading” subject to Rule 12(f). See Rouse v. Caruso, No.
06-CV-10961-DT, 2007 WL 209920, at *2 (E.D. Mich. Jan. 24, 2007) (“neither
defendants’ motions nor responses to motions constitute ‘pleadings’ subject to Rule
12(f)”); Guthrie v. Ball, No. 1:11-cv-333-SKL, 2014 WL 5089849, at *4 (E.D. Tenn.
Oct. 9, 2014) (J. Lee). Plaintiff’s motion to strike a motion to dismiss is therefore not one
permitted by Rule 12(f). Moreover, plaintiff’s arguments are more appropriately directed
to the merits of defendant’s motion, which will be addressed infra.
plaintiff’s motion to strike [Doc. 49] will be DENIED.
Constitutionality of KRS 21A.030
Count I of the First Amended Complaint alleges that Ky. Rev. Stat. Ann. §§
21A.030(1) and (3) violate the United States and Kentucky Constitutions because they do
not specifically describe the Kentucky Supreme Court Clerk’s duties as to filing,
stamping, and processing pleadings, that they are void for vagueness, and violate due
process and equal protection [Doc. 12 at ¶¶ 115—126]. In short, plaintiff claims that the
lack of a more specific job description for the Kentucky Supreme Court Clerk, one that
defines how pleadings should be stamp filed, is a violation of her due process and equal
protection rights. This claim is without merit.
Ky. Rev. Stat. Ann. § 21A.030(1) provides that “[t]he clerk of the Supreme Court
shall be appointed by the court to serve at its pleasure. The annual salary of the clerk
shall be fixed by the General Assembly.” Section 21A.030(3) provides that “[t]he clerk
shall perform such duties as the Supreme Court may assign, and shall be bonded to the
Commonwealth, for faithful performance of duty, in such manner and in such amount as
the Supreme Court shall determine.”
The test for determining whether an enactment is void for vagueness is whether
the provision gives a person of ordinary intelligence a reasonable opportunity to know
what is prohibited. Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972). The
Supreme Court has noted that “[t]he degree of vagueness that the Constitution tolerates—
as well as the relative importance of fair notice and fair enforcement—depends in part on
the nature of the enactment ...” and the Court has “expressed greater tolerance of
enactments with civil rather than criminal penalties because the consequences of
imprecision are qualitatively less severe.”
Village of Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 498—99 (1982). Neither of the Kentucky statutes
at issue prohibit or regulate anything; they provide some of the general outlines of the
position of the Clerk of the Kentucky Supreme Court. Plaintiff cites no authority, nor has
the Court found any, to support her claim that the failure of the Kentucky legislature to
more specifically describe the job duties of the Kentucky Supreme Court Clerk is
somehow detrimental to her. Moreover, as defendants point out, Kentucky CR 76.40(2) 1
defines “timely filing” in the Kentucky Court of Appeals and the Kentucky Supreme
Court and there is no requirement for such specificity to be duplicated in the Kentucky
statutes. Finally, plaintiff’s equal protection claim fails as a matter of law because she
has not pled that she is a member of a protected class and that she was treated disparately
as a result of her membership in the class. Jones v. Union Cty., 296 F.3d 417, 426 (6th
Cir. 2002). Count I will be dismissed.
Claims Against the Kentucky Supreme Court
As best as can be discerned, only Count II of the First Amended Complaint
contains claims against the Kentucky Supreme Court [Doc. 12 at ¶¶ 127—130]. Plaintiff
complains that the Kentucky Supreme Court publishes some, but not all, of its
Ky. CR 76.40(2) states: “To be timely filed, a document must be received by the Clerk of the
Supreme Court of the Clerk of the Court of Appeals within the time specified for filing, except
that any document shall be deemed timely filed if it has been transmitted by United States
registered (not certified) or express mail, or by other recognized mail carriers, with the date the
transmitting agency received said document from the sender noted by the transmitting agency on
the outside of the container used for transmitting, within the time allowed for filing.”
administrative orders online and they are therefore difficult to search [Id. at ¶ 128].
Plaintiff complains that senior judges were assigned to several of her prior cases but she
was unaware of an administrative order governing the assignment of senior judges [Id. at
¶ 129]. Thus, plaintiff claims she was denied due process and equal protection because
of secret rules not available to litigants which govern how their cases are administered
[Id. at ¶ 130].
Among its many defenses, the defendants argue that the Kentucky Supreme Court,
as an arm of the State of Kentucky, is entitled to Eleventh Amendment immunity from
suit [Doc. 42-1 at pp. 23—24]. Plaintiff’s response seems to be that, because she has
asserted a due process and equal protection claim, Eleventh Amendment immunity does
not apply and further does not bar her claims for injunctive or declaratory relief [Doc. 511 at pp. 45—47]. She is mistaken.
It is well settled that the Eleventh Amendment bars suit against a state or one of its
agencies in federal court without its consent, waiver, or by act of Congress to abrogate
that immunity. See Han v. Louisiana, 134 U.S.1 (1890); Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 99 (1984); Salt Lick Bancorp v. F.D.I.C., 187 F. App’x 428,
442—43 (6th Cir. 2006). This immunity applies to agencies and/or subdivisions of a
state that are an “arm of the state.” Ernst v. Rising, 427 F.3d 351, 358—59 (6th Cir.
2005). The Kentucky Supreme Court is “unquestionably an arm of the state for purposes
of the Eleventh Amendment, and is thus immune from suit under the Eleventh
Anglin v. Kentucky Supreme Court, No. 3:13-33-GFVT, 2013 WL
6253159, at *2 (E.D. Ky. Dec. 3, 2013). It is also well settled that § 1983 does not
abrograte that immunity. Kentucky v. Graham, 473 U.S. 159, 169 n.17 (1985) (citing
Quern v. Jordan, 440 U.S. 332, 341 (1979) (§1983 does not “override the traditional
sovereign immunity of the States”)); Howlett by and through Howlett v. Rose, 496 U.S.
356, 365 (1990) (“the State and arms of the State, which have traditionally enjoyed
Eleventh Amendment immunity, are not subject to suit under § 1983 in either federal or
Moreover, the Eleventh Amendment prohibits all suits, whether for injunctive,
declaratory, or monetary relief against the State. Thiokol v. Dep’t of Revenue, 987 F.2d
376, 381 (6th Cir. 1993). Plaintiff’s belated attempt to characterize her claims as arising
under the Declaratory Judgment Act, 28 U.S.C. §§ 2201—2202, which is not mentioned
in the First Amended Complaint, does not change this result. “The Declaratory Judgment
Act ... does not explicitly authorize suits against states and therefore cannot be used to
circumvent the Eleventh Amendment.” George-Khouri Family Ltd. P'ship v. Ohio Dep't
of Liquor Control, No. 04-3782, 2005 WL 1285677, at *2 (6th Cir. May 26, 2005)
(quoting United States v. South Carolina, 445 F. Supp. 1094, 1099 (D.S.C. 1977)); see
also Heydon v. MediaOne of Southeast Mich., Inc., 327 F.3d 466, 470 (6th Cir. 2003)
(“The Declaratory Judgment Act does not create an independent basis for federal subject
matter jurisdiction. The Act only provides courts with discretion to fashion a remedy.
Thus, before invoking the Act, the court must have jurisdiction already.”) (citations
omitted). Accordingly, the Kentucky Supreme Court is entitled to absolute immunity
from suit pursuant to the Eleventh Amendment.
In addition, the First Amended Complaint fails to state a claim upon which relief
against the Kentucky Supreme Court can be granted because the Kentucky Supreme
Court is not a person within the meaning of § 1983. Will v. Michigan Dep’t of State
Police, 491 U.S. 58, 64 (1989). All claims against the Kentucky Supreme Court will be
Claims Against Larrin Thompson
Counts V and VII appear to be the only claims against defendant Larrin
Thompson. Ms. Thompson is sued in her individual capacity as the now-former law
clerk to former Kentucky Supreme Court Justice Will T. Scott [Doc. 12 at ¶ 10]. Ms.
Thompson is the daughter of Pike County Family Court Judge Larry Thompson, who
recused from handling any of the domestic violence petitions of plaintiff and her exhusband and who was a defendant in the consolidated action in this court, case number
7:13-cv-8 [Id. at ¶ 80]. Ms. Thompson clerked for Justice Scott during the time one of
Ms. Mischler’s former cases, 2013-SC-30, 2 was pending in the Kentucky Supreme Court
[Id. at ¶ 81]. Because Judge Thompson was a defendant in case 2013-SC-30, plaintiff
alleges that Justice Scott had a conflict of interest regarding her case and he should have
immediately recused, but did not do so for approximately two months [Id. at ¶¶ 86—89].
Plaintiff alleges that Ms. Thompson was permitted to email, converse, and
communicate with the Kentucky Supreme Court Justices and their law clerks concerning
her father, a party in a pending case, thus “destroying the integrity of the Kentucky
The decision in this appeal is reported at Mischler v. Thompson, 436 S.W.3d 498 (Ky. 2014).
Supreme Court and violating Ms. Mischler’s right to impartial [sic] tribunal” [Doc. 12 at
¶ 133]. Plaintiff further complains that there was no public notice that Ms. Thompson
was clerking for Justice Scott or that “the appearance of impropriety of the entire
Kentucky Supreme Court was tainted” by these actions [Id. at ¶ 134]. Thus, plaintiff
alleges that Ms. Thompson, in association with Ms. Clary, denied her access to the courts
[Id. at ¶¶ 132—134] and committed the tort of outrage, causing plaintiff extreme and
severe emotional distress [Id. at ¶¶ 140—151].
All of the allegations against Ms. Thompson concern her duties as a judicial law
clerk and she is therefore entitled to absolute immunity from damages claims as to those
duties. See Young v. Boyle, 849 F.2d 610, 1988 WL 62397, at *2 (6th Cir. June 21, 1988)
(judicial immunity “extends to non-judges who perform judicial functions … and
specifically to a judge’s law clerks”); Oliva v. Heller, 839 F.2d 37, 40 (2d Cir. 1988)
(“for purposes of absolute judicial immunity, judges and their law clerks are as one”). In
response, plaintiff argues that, because Justice Scott recused from case 2013-SC-30, Ms.
Thompson was no longer acting in a law clerk capacity at the time she was allegedly
influencing the Kentucky Supreme Court Clerk’s office in mishandling plaintiff’s case
and therefore Ms. Thompson is not entitled to quasi-judicial immunity [Doc. 51-1 at pp.
32—33]. However, plaintiff cites no applicable authority in support of her argument and
ignores controlling authority that judicial immunity is lost only for nonjudicial actions or
when judicial actions are taken in the absence of subject matter jurisdiction. See Stern v.
Mascio, 262 F.3d 600, 607 (6th Cir. 2001); Stump v. Sparkman, 435 U.S. 349, 356—57
(1978) (a judge will be deprived of immunity “only when he has acted in the clear
absence of all jurisdiction”); Da Vang v. Hoover, 478 F. App’x 326, 327 (7th Cir. 2012)
(same). Ms. Thompson was clearly performing judicial actions in her role as Justice
Scott’s law clerk and the Kentucky Supreme Court had subject matter jurisdiction over
plaintiff’s case. Accordingly, Ms. Thompson is entitled to immunity from suit and the
claims against her will be dismissed.
VIII. Claims Against Susan Stokley Clary
Most of the claims and much of plaintiff’s ire is directed at defendant Susan
Stokley Clary who is sued in her individual and official capacities as the Kentucky
Supreme Court Clerk [Doc. 12 at ¶ 8]. Plaintiff complains that a writ of mandamus and a
writ of prohibition delivered to the Kentucky Supreme Court on March 29, 2010, were
returned to her by Ms. Clary for failure to comply with Kentucky Rule of Civil Procedure
79.06 [Id. at ¶¶ 22—28]. Plaintiff complains about the way her brief in 2013-SC-30 was
handled by Ms. Clary’s office, primarily that it was inadvertently returned to her for her
admitted failure to sign the last page [Id. at ¶¶ 34—49]. Plaintiff complains about when
her submissions to the Kentucky Supreme Court were stamped as filed [Id. at ¶¶ 50—79].
Plaintiff complains that Ms. Clary “hid” two administrative orders from her and the
public by not posting them on the Kentucky Administrative Office of the Courts’ website,
that a “mystery person” is making decisions on plaintiff’s cases in the Kentucky Supreme
Court, and that Ms. Clary’s duties as the Kentucky Supreme Court Clerk are not
published [Id. at ¶¶ 92—114]. These allegations form the basis of plaintiff’s third
through seventh causes of action [Id. at ¶¶ 131—151].
As with the claims against Ms. Thompson, all of the claims against Ms. Clary
concern her duties as the Kentucky Supreme Court Clerk and she is entitled to absolute
immunity from damages claims as to those duties. Lyle v. Jackson, 49 F. App’x 492, 494
(6th Cir. 2001) (two court clerks who failed to provide plaintiff with copies of filings
were entitled to quasi-judicial immunity); Harris v. Suter, 3 F. App’x 365, 366 (6th Cir.
2001) (U.S. Supreme Court Clerk’s refusal to file a petition for certiorari for failure to
comply with the court rules was a quasi-judicial function entitling the clerk to absolute
immunity); Arwood v. Aldred, No. 6:15-CV-70-KKC, 2015 WL 2065760, at *5 (E.D. Ky.
May 4, 2015) (quasi-judicial immunity “extends to persons performing tasks which are so
integral or intertwined with the judicial process that the persons are considered an arm of
the judicial officer who is immune” such as court clerks). In response, plaintiff contends
that Ms. Clary’s actions were administrative rather than judicial and she is not entitled to
quasi-judicial immunity [Doc. 51-1 at pp. 33—35]. However, plaintiff’s reliance on
authority concerning members of an executive branch agency, Flying Dog Brewery,
LLLP v. Michigan Liquor Control Comm’n, 597 F. App’x 342 (6th Cir. 2015), is
misplaced. There can be no question that Ms. Clary, as the Kentucky Supreme Court
Clerk, is a member of the judicial branch and is entitled to quasi-judicial immunity in that
capacity. Accordingly, Ms. Clary is entitled to absolute immunity as to the individualcapacity claims against her.
In addition, the official capacity claims against Ms. Clary fail to state a claim upon
which relief can be granted. It is well settled that a suit against a state official in her
official capacity is a suit against the official’s office and is no different from a suit against
the State itself. Will, 491 U.S. at 71. Thus, in her official capacity, Ms. Clary is not a
“person” subject to suit under § 1983, Id., and those claims against her will be dismissed.
Statute of Limitations
It is well settled that § 1983 claims arising in Kentucky are subject to a one-year
statute of limitations. Collard v. Kentucky Bd. of Nursing, 896 F.2d 179, 182 (6th Cir.
1990). This case was filed on May 13, 2013; thus, any complained-of actions occurring
before May 13, 2012 are time-barred.
For all of the foregoing reasons, the defendants’ motion to dismiss [Doc. 42] will
be GRANTED, plaintiff’s motion to strike [Doc. 49] will be DENIED, and this case will
be DISMISSED. An appropriate order will be entered.
s/ Thomas W. Phillips
SENIOR UNITED STATES DISTRICT JUDGE
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