Ashford et al v. Douglas County et al

Filing 61

MEMORANDUM OPINION on the defendant's Motion to Dismiss 54 . A separate order will be entered herein in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (MKR)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
TIMOTHY L. ASHFORD, TIMOTHY
L. ASHFORD, P.C.L.L.O.,

)
)
)
Plaintiffs,
)
)
v.
)
)
W. RUSSELL BOWIE, CRAIG
)
MCDERMOTT, THOMAS RILEY,
)
JAMES GLEASON, TIMOTHY BURNS, )
and DERICK VAUGHN,
)
Individually,
)
)
Defendants.
)
______________________________)

8:15CV8

MEMORANDUM OPINION

This matter is before the Court on the motion of
defendants, W. Russell Bowie, Craig McDermott, Thomas Riley,
James Gleason, Timothy Burns, and Derick Vaughn (collectively the
“defendants”) to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) (Filing No. 54).
briefed.

The matter has been fully

See Filing Nos. 55, 59, and 60.

After review of the

motion, the parties’ briefs, and the applicable law, the Court
finds as follows.
BACKGROUND
Plaintiffs filed suit on January 12, 2015 (Filing No.
1).

On September 1, 2015, the Court granted plaintiffs leave to

amend their complaint for a second time (Filing No. 32).

The

Second Amended Complaint (“SAC”) alleges violations of the
Nebraska Political Subdivisions Tort Claims Act, Neb. Rev. Stat.
§§ 13-901 to 13-928, civil rights violations under 42 U.S.C.
§§ 1981 and 1983, Title VII violations, as well as violations of
the Nebraska and United States Constitutions.

See generally

Filing No. 31.

Specifically plaintiffs allege defendants denial

of his application to be “placed on the list by the panel to
receive court appointment in murder cases” is racially based and
in violation of the law.

(Id. at 7).

On January 11, 2016, the Court denied plaintiffs’
request for an extension of time to serve some of the named
defendants and dismissed the SAC as to all defendants.

The Court

reasoned plaintiffs “failed to serve any of the defendants . . .
ha[d] not executed service to the defendants to which summons
had[d] been issued . . . [and] [s]ummons ha[d] not been issued
for three defendants.”

(Filing No. 36 at 2).

The Court also

found that plaintiffs “failed to show good cause for the failure
to timely serve.”

(Id.)

However, on May 9, 2016, the Court altered and amended
in part, the January 11, 2016, dismissal.

See Filing No. 52.

In

the Court’s May 9, 2016 order, the Court stated: “[a]s of January
11, 2016, the Court was not aware that any defendants were served
because plaintiffs failed to provide proof of service to the
Court as required by Rule 4.”

(Id. at 4).

The Court then

recognized that “[o]n January 15, 2016, the plaintiffs filed
returned executed summons for some of the named defendants.”
(Id. at 5).

The Court then amended the part of the January 11,

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2016 order that dismissed defendants McDermott, Vaughn, Gleason,
Riley, Burns, and Bowie.1

(Id.)

On May 19, 2016, the now reinstated defendants moved to
dismiss under Federal Rule of Civil Procedure 12(b)(6) claiming
the applicability of judicial and quasi-judicial immunity bars
plaintiffs’ claims.
LAW
A. Judicial Immunity
“[J]udicial immunity is an immunity from suit, not just
from ultimate assessment of damages.”

Mireles v. Waco, 502 U.S.

9, 11, 112 S. Ct. 286, 116 L. Ed. 2d 9 (1991) (citing Mitchell v.
Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L. Ed. 2d 411
(1985)).

The United States Supreme Court has determined that

judicial immunity “is overcome in only two sets of circumstances.
First, a judge is not immune from liability for nonjudicial
actions, i.e., actions not taken in the judge’s judicial capacity
. . . .

Second, a judge is not immune for actions though

judicial in nature, taken in the complete absence of all
jurisdiction.”

Mireless, 502 U.S. at 11 (citing Forrester v.

White, 484 U.S. 219, 227-29, 108 S. Ct. 538, 98 L. Ed. 2d 555
(1988); Stump v. Sparkman, 435 U.S. 349, 360, 356-57, 98 S. Ct.
1099, 55 L. Ed. 2d 331 (1978); Bradley v. Fisher, 80 U.S. 335,
351, 20 L. Ed. 646 (1872)).

1

The defendants are being sued only in their individual
capacities in accordance with the Court’s May 9, 2016, order due
to plaintiffs’ failure to serve the State of Nebraska and Douglas
County.
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In order to determine whether the act is judicial, the
United States Court of Appeals for the Eighth Circuit has
provided:

“[a]n act is a judicial act if it is one normally

performed by a judge and if the complaining party is dealing with
the judge in his judicial capacity.”

Schottel v. Young, 687 F.3d

370, 373 (8th Cir. 2012) (quoting Birch v. Mazander, 678 F.2d
754, 756 (8th Cir. 1982) (internal citations omitted)).
B. Quasi-Judicial Immunity
“When judicial immunity is extended to officials other
than judges, it is because their judgments are functionally
comparable to those of judges -- that is, because they, too,
exercise a discretionary judgment as a part of their function.”
Robinson v. Freeze, 15 F.3d 107, 108 (8th Cir. 1994) (quoting
Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 436, 113 S. Ct.
2167, 124 L. Ed. 2d 391 (1993) (internal citations and quotations
omitted)).

Extension of this quasi-judicial immunity turns on

“the nature of the function performed, not on the officer’s
title.”

Freeze, 15 F.3d at 109 (internal citation omitted).

DISCUSSION
The Court finds that defendants’ motion should be
granted.

Defendants Bowie, McDermott, Gleason, Burns, and Vaughn

are entitled to judicial immunity.

Defendant Riley is entitled

to quasi-judicial immunity.
Plaintiffs argue the defendants’ actions “in denying
[p]laintiff selection on the panel to represent indigent
defendants in court appointed murder trials are administrative
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rather than judicial or adjudicative in nature.”
at 6).

(Filing No. 59

Furthermore, plaintiffs contend the decisions by

defendants in denying plaintiff selection on the panel are
similar to “decisions to demote and discharge . . . [and] are
indistinguishable from those of an executive branch official
responsible for making . . . personnel decisions . . . .”
at 5).

(Id.

In an attempt to bolster their argument, plaintiffs rely

on the fact that Douglas County District Court Local Rule 4-17(2)
puts “two private attorneys who are experienced in criminal
defense work, and the Douglas County Public Defender” on the
Selection Committee.

Douglas County District Court Local Rule 4-

17(2); see also Filing No. 59 at 6 (stating “[t]he fact that
Public Defender Tom Riley serves on the panel makes this an
administrative function.”).
The Court disagrees with plaintiffs that defendants are
performing an administrative or executive function.

While the

Court notes the existence of a split of authority on the issue,
the Court agrees with the view that judicial immunity applies to
cases involving the selection of attorneys to be included on
lists for court appointments.

Compare Davis v. Tarrant Cnty.,

Tex., 565 F.3d 214, 228 (5th Cir. 2009) (affirming district
court’s dismissal of criminal defense attorney’s § 1983 action
after defendant-judges denied the attorney’s application to be
included on list of attorneys eligible for court-appointed felony
cases under the doctrine of judicial immunity), Roth v. King, 449
F.3d 1272, 1286-87 (D.C. Cir. 2006) (holding that defendants were
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acting in a “‘judicial capacity’ in selecting attorneys for
inclusion on the panels . . . [and were] immune from suits for
injunctive relief under § 1983.”), and Durrance v. McFarling, No.
4:08-cv-289, 2009 WL 1577995, at *3 (E.D. Tex. June, 4, 2009)
(collecting cases and providing that “[t]he few courts that have
considered lawsuits arising out of a judge’s role in maintaining
lists from which counsel may be appointed to represent indigent
criminal defendants have generally decided with relative ease
that those acts are judicial in nature.”), with Mitchell v.
Fishbein, 377 F.3d 157 (2d Cir. 2004) (reversing the lower
court’s dismissal of §§ 1981 and 1983 action and concluding that
quasi-judicial immunity was inapplicable to screening committee’s
decisions about individual attorneys allowed to be given courtappointed cases), and Richardson v. Koshiba, 693 F.2d 911, 914
(9th Cir. 1982) (determining that decisions “to nominate
individuals to fill judicial vacancies and to determine whether
to retain sitting judges when their terms expire” constituted
“executive” functions not entitling decision-making judges to
judicial immunity).
The United States Courts of Appeals for the D.C. and
Fifth Circuits’ rationales are premised on the fact that “[t]he
appointment of counsel for indigent defendants in criminal cases
is a normal judicial function.”
Roth, 449 F.3d at 1286-87.

Davis, 565 F.3d at 223; see also

The United States Court of Appeals

for the Fifth Circuit further explained, “the act of selecting
applicants for inclusion on a rotating list of attorneys eligible
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for court appointments is inextricably linked to and cannot be
separated from the act of appointing counsel in a particular
case, which is clearly a judicial act . . . protected by judicial
immunity.”

Davis, 565 F.3d at 226 (emphasis added).
The Court agrees with this reasoning and finds that the

judicial defendants are entitled to judicial immunity.

In

addition, the Court rejects plaintiffs’ contention that because
multiple judges as well as non-judges serve on the selection
committee, the Court should change its analysis and find that the
committee was performing an administrative or executive function.
The Court will thus grant defendants’ motion to dismiss as to
defendants Bowie, McDermott, Gleason, Burns, and Vaughn.
Furthermore, because the Court finds that the
defendants were engaged in a judicial, rather than administrative
or executive act, the Court likewise finds that defendant Riley
is entitled to quasi-judicial immunity and the action against him
should likewise be dismissed.

See Freeze, 15 F.3d at 109.

Accordingly, defendants’ motion to dismiss will be granted.
Plaintiffs’ complaint will be dismissed with prejudice as to all
defendants.

A separate order will be entered herein in

accordance with this memorandum opinion.
DATED this 8th day of August, 2016.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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