Allen v. Howard et al
Filing
26
ORDER & REASONS: granting 16 Defendant Judge Ann Keller's Motion to Dismiss; ORDERED that Plaintiff's 42 U.S.C. 1983 claim against Defendant Judge Ann Keller in her official capacity is DISMISSED WITHOUT PREJUDICE. FURTHER ORDERED that Plaintiff's 42 U.S.C. 1983 claim against Defendant Judge Ann Keller in her individual capacity is DISMISSED WITH PREJUDICE. Signed by Judge Carl Barbier on 4/3/14. (sek)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BRIAN M. ALLEN
CIVIL ACTION
VERSUS
NO: 13-233
VALERY HOWARD, ET AL
SECTION: "J" (5)
ORDER & REASONS
Before
the
Court
is
Defendant
Judge
Ann
Keller
("Judge
Keller")'s Motion to Dismiss (Rec. Doc. 16) and Plaintiff Brian
M.
Allen
("Allen")'s
opposition
thereto.
(Rec.
Doc.
25)
Defendant's motion was set for hearing on March 26, 2014, on the
briefs. Having considered the motion and memoranda of counsel,
the
record,
and
the
applicable
law,
the
Court
finds
that
Defendant's motion should be GRANTED for the reasons set forth
more fully below.
FACTS AND PROCEDURAL BACKGROUND
This matter arises out of Plaintiff's qui tam action under
the False Claims Act, 31 U.S.C. §§ 3729-3722 and his 42 U.S.C. §
1983 claim against Judge Keller in her individual and official
capacity
based
on
violations
of
Plaintiff's
Sixth,
Seventh,
Thirteenth, and Fourteenth Amendment rights.1 Plaintiff alleges
that
Valery
paternity,
Howard
and
("Howard")
thereafter,
made
Defendants
a
false
conspired
statement
to
take
of
his
property without due process or equal protection of the law by
signing a judgment ordering him to pay child support for a child
that is not biologically his based on the false paternity claim.
Plaintiff further alleges that Judge Keller violated his Sixth
Amendment right to counsel when she incarcerated him pursuant to
Louisiana Revised Statute § 14:72 and/or § 14:74 without giving
him right to counsel.
Finally, Plaintiff alleges that his right
to privacy was violated when he was forced to submit to DNA
testing and when he was incarcerated.
As a result of these allegations, Plaintiff filed a pro se
complaint against Howard, Judge Keller, the State of Louisiana
through the Department of Children and Family Support, Child
Support Enforcement, and the Jefferson Parish District Attorney.
(Rec. Doc. 1) Because Plaintiff asserted a qui tam action, the
United States had the option to intervene in the action; however,
on October 21, 2013, the United States notified the Court and the
Plaintiff
that
it
declined
to
intervene.
(Rec.
Doc.
6)
Thereafter, Plaintiff engaged the services of an attorney, and
1
Plaintiff brings various other claims that will not be discussed in
connection with the instant motion.
his current attorney enrolled as counsel of record on February
26, 2014. Judge Keller filed the instant motion to dismiss March
11, 2014, and Plaintiff filed an opposition on March 26, 2014.
PARTIES' ARGUMENTS
Judge Keller seeks dismissal of Plaintiff's § 1983 claim
against her in both her official and individual capacity. Judge
Keller avers that Plaintiff's official capacity claim is merely a
claim against the State, and that this Court lacks subject matter
jurisdiction
to
hear
the
claim
because
sovereign
immunity
deprives the Court of its ability to here claims against States.
Further, Judge Keller argues that the individual capacity claim
must be dismissed for failure to state a claim because judges are
afforded
absolute
judicial
immunity
when
performing
normal
judicial functions. Finally, Judge Keller contends that, under
Heck v. Humphrey, 512 U.S. 477(1994), Plaintiff is barred from
asserting a § 1983 claim seeking damages based on a conviction
that
has
executive
not
been
order,
or
reversed
on
otherwise
direct
appeal,
expunged
declared
invalid
in
a
by
state
collateral proceeding of federal habeas corpus proceeding.
In
his
opposition
to
the
instant
motion,
Plaintiff
recognizes that he brought both a § 1983 claim based on various
constitutional
violations
against
Judge
Keller
and
a
qui
tam action under the False Claims Act, and that Judge Keller only
seeks
dismissal
following
of
arguments
the
§
1983
in
defense
claim.
of
Plaintiff
Judge
asserts
Keller's
motion
the
to
dismiss:
1.
This Court has jurisdiction to hear both the qui tam and §
1983 action concurrently, which is not an issue presented in
Defendant's motion to dismiss.
2.
The Court has jurisdiction over the § 1983 claims because
the United States is a real party to the suit, which is an
implicit waiver of immunity.
3.
Because Plaintiff alleges a violation of the Fourteenth
Amendment, the Court may abrogate the State's sovereign
immunity defense pursuant to § 5 of the Fourteenth
Amendment.
4.
Judge Keller cannot invoke judicial immunity in this matter
because the United States is a real party plaintiff to the
suit.
Each argument will be addressed more fully below.
LEGAL STANDARD
A. Dismissal for Lack of Subject Matter Jurisdiction
In deciding a motion to dismiss for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1), “the
district court is ‘free to weigh the evidence and resolve factual
disputes in order to satisfy itself that it has the power to hear
the case.’”
Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th
Cir. 2005).
The party asserting jurisdiction must carry the
burden of proof for a Rule 12(b)(1) motion to dismiss.
Randall
D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 762 (5th Cir.
2011).
The standard of review for a motion to dismiss under Rule
12(b)(1) is the same as that for a motion to dismiss pursuant to
Rule 12(b)(6), which is discussed below.
United States v. City
of New Orleans, No. 02-3618, 2003 WL 22208578, at *1 (E.D. La.
Sept. 19, 2003).
B. Dismissal for Failure to State a Claim
Under the Federal Rules of Civil Procedure, a complaint
must contain “a short and plain statement of the claim showing
that
the
pleader
8(a)(2).
is
entitled
to
relief.”
FED. R. CIV. P.
The complaint must “give the defendant fair notice of
what the claim is and the grounds upon which it rests.”
Pharm.,
Inc.
v.
Broudo,
544
U.S.
336,
346
(2005).
allegations “must be simple, concise, and direct.”
Dura
The
FED. R. CIV.
P. 8(d)(1).
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead enough facts to “state a claim to relief that is
Ashcroft v. Iqbal, 556 U.S. 662, 678
plausible on its face.”
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547
(2007)).
pleads
A
claim
facts
that
inference
that
alleged.”
Id.
the
is
facially
allow
the
defendant
plausible
court
is
to
liable
when
the
plaintiff
“draw
the
reasonable
for
the
misconduct
A court must accept all well-pleaded facts as
true and must draw all reasonable inferences in favor of the
plaintiff.
Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232-33
(5th Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.
1996).
The court is not, however, bound to accept as true legal
conclusions couched as factual allegations.
Iqbal, 556 U.S. at
678.
DISCUSSION
A. Subject Matter Jurisdiction over Official Capacity Claim/
Sovereign Immunity
The Eleventh Amendment has been interpreted by the Supreme
Court to bar suits by individuals against nonconsenting states."
Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363
(2001).
"Congress
may,
however,
abrogate
such
immunity
in
federal court if it makes its intention to abrogate unmistakably
clear in the language of the statute and acts pursuant to a
valid
exercise
of
its
power
under
§
5
of
the
Fourteenth
Amendment." Nevada Dep't of Human Res. v. Hibbs, 538 U.S. 721,
726 (2003). In
§ 1983 official capacity suits, "the action is
in essence one for the recovery of money from the state" itself
rather than the nominal defendant. Edelman v. Jordan, 415 U.S.
651, 663 (1974)(holding that the "state is the real, substantial
party
in
interest
and
is
entitled
to
invoke
its
sovereign
immunity from suit even though individual officials are nominal
defendants").
Therefore,
"the
principle
of
state-sovereign
immunity generally precludes actions against state officers in
their official capacities." McCarthy ex rel. Travis v. Hawkins,
381 F.3d 407, 412 (5th Cir. 2004).
Here, state courts are an "arm of the state"2 entitled to
sovereign
immunity.
Nat'l
Ass'n
for
Advancement
of
Colored
People v. State of Cal., 511 F. Supp. 1244, 1257 (E.D. Cal.
1981) aff'd sub nom. NAACP v. State of Cal., 711 F.2d 121 (9th
Cir. 1983)(collecting cases and noting that courts considering
this
question
have
"consistently
held
that
state
courts
are
“arms” of the state and that they are entitled, as such, to
share
in
the
protection
against
suit
afforded
by
sovereign
immunity.") Further, by asserting his §1983 claim against Judge
Keller
in
her
official
capacity
Plaintiff
essentially
seeks
recovery of money from the judiciary, thus the State, and claims
for money damages by a private citizen against the State are
barred under the doctrine of sovereign immunity. Kaminsky v.
Rosenblum, 929 F.2d 922, 925 (2d Cir. 1991) ("absent consent by
the state, a § 1983 action brought against a public officer in
his official capacity is barred by the Eleventh Amendment.")
Therefore, unless an exception applies, this Court lack subject
matter
jurisdiction
to
hear
this
claim
due
to
the
State's
sovereign immunity.
Defendant argues that the State's sovereign immunity is
2
"[A] federal court must examine the particular entity in question and
its powers and characteristics as created by state law to determine whether
the suit is in reality a suit against the state itself.” Delahoussaye v. City
of New Iberia, 937 F.2d 144, 147 (5th Cir. 1991).
abrogated pursuant to § 5 of the Fourteenth Amendment because he
seeks to enforce the substantive guarantees of equal protection
and due process. While it is true that Plaintiff does assert
some claims which could arguably be construed as seeking to
enforce one of his Fourteenth Amendment rights, the claims at
issue today are Plaintiff's § 1983 claims, and the United States
Supreme Court has expressly held "[t]hat Congress, in passing §
1983, had no intention to disturb the States' Eleventh Amendment
immunity." Will v. Michigan Dep't of State Police, 491 U.S. 58,
66 (1989)("Section 1983 provides a federal forum to remedy many
deprivations
of
civil
liberties,
but
it
does
not
provide
a
federal forum for litigants who seek a remedy against a State
for alleged deprivations of civil liberties."); Lapides v. Bd.
of Regents of Univ. Sys. of Georgia, 535 U.S. 613, 617 (2002)
("State is not a “person” against whom a § 1983 claim for money
damages might be asserted.") Therefore, sovereign immunity has
not been abrogated.
Defendant
also
argues
that
sovereign
immunity
has
been
waived because the United States is the real party in interest.
To waive immunity, the State must voluntarily join the suit;
thus this argument necessarily fails. Lapides, 535 U.S. at 619
("a State's voluntary appearance in federal court amounted to a
waiver of its Eleventh Amendment immunity.") (emphasis added).
Further, in support of this argument, Plaintiff cites to cases
involving qui tam actions under the False Claims Act, which have
no application to the instant motion to dismiss Plaintiff's §
1983 claims.3
Finally, Plaintiff invokes Ex Parte Young, 209 U.S. 123
(1908); however, that doctrine only applies when a plaintiff
seeks to "enjoin state officials to conform their future conduct
to the requirements of federal law." McCarthy ex rel. Travis v.
Hawkins, 381 F.3d 407, 412 (5th Cir. 2004) Such is not the case
here, as Plaintiff specifically seeks money damages.
Accordingly, the Court finds that Plaintiff's § 1983 claim
against Judge Keller in her official capacity must be dismissed
without prejudice for lack of subject matter jurisdiction. See,
Ecker v. United States, 358 F. App'x 551, 552-53 (5th Cir. 2009)
(sovereign
immunity
deprives
the
Court
of
subject
matter
jurisdiction).
B. Failure to State a Claim/ Absolute Judicial Immunity
"Absolute judicial immunity extends to all judicial acts
which
are
not
performed
in
the
clear
absence
of
all
jurisdiction." Adams v. McIlhany, 764 F.2d 294, 297 (5th Cir.
3
Even if the cases cited did apply, the Fifth Circuit has held that
"when the United States has not actively intervened in the action, [as is the
case here] the Eleventh Amendment bars qui tam plaintiffs from instituting
suits against the sovereign states in federal court." United States v. Texas
Tech Univ., 171 F.3d 279, 294 (5th Cir. 1999).
1985)(holding
that
issuing
an
order
to
show
cause
and
then
incarcerating a person for contempt was a judicial act entitled
to immunity in a § 1983 case.) The Fifth Circuit relies on four
factors to determine if an act is "judicial," and these factors
are:
(1) whether the precise act complained of is a normal
judicial function; (2) whether the acts occurred in the
courtroom or appropriate adjunct spaces such as the
judge's chambers; (3) whether the controversy centered
around a case pending before the court; and (4) whether
the acts arose directly out of a visit to the judge in
his official capacity.
Id. These factors "should always be considered in determining
whether an act is “judicial”; however, the test factors should
be broadly construed in favor of immunity." Id.
Here, it is clear that Judge Keller's act were "judicial."
Plaintiff
alleges
that
Judge
Keller
"failed
to
take
into
consideration the evidence which may disprove paternity" and
"had petitioner incarcerated." (Rec. Doc. 1, p. 11, ¶ 34) The
acts
of
clearly
weighing
normal
evidence
judicial
and
incarcerating
functions
that
individuals
centered
are
around
Plaintiff's case before Judge Keller. Further, though it is not
stated in the complaint, it can be assumed that these acts
occurred in the courtroom during a visit to Judge Keller in her
official
capacity.
Therefore,
the
complained-of
actions
are
clearly judicial in nature, and Judge Keller is entitled to
absolute judicial immunity.
Plaintiff's
only
response
to
Judge
Keller's
immunity
argument is that Judge Keller cannot invoke judicial immunity in
this matter because the United States is a real party plaintiff
to the suit. As was noted above, the argument fails. Therefore,
the Court finds that absolute judicial immunity shields Judge
Keller is from individual liability under § 1983.4
Accordingly,
IT
IS
ORDERED
that
Plaintiff's
42
U.S.C.
§
1983
claim
against Defendant Judge Ann Keller in her official capacity is
DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff's 42 U.S.C. § 1983
claim
against
Defendant
Judge
Ann
Keller
in
her
individual
capacity is DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 3rd day of April, 2014.
____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
4
As the Court has dismissed all § 1983 claims against Judge Keller,
Judge Keller's remaining argument concerning Heck v. Humphrey need not be
considered.
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