Mothershed v. Oklahoma Supreme Court Justices et al

Filing 7

ORDER denying 2 Motion for Leave to Proceed in forma pauperis; denying as moot 4 Motion for Order; denying as moot 6 Motion for Preliminary Injunction;. Signed by Honorable Timothy D. DeGiusti on 6/27/2018. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
GEORGE L. MOTHERSHED,
Plaintiff,
v.
STATE OF OKLAHOMA, ex rel.
Justices of the Oklahoma Supreme
Court and Judges of the Court of Civil
Appeals of the State of Oklahoma,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

Case No. CIV-18-596-D

ORDER
Before the Court is Plaintiff George L. Mothershed’s Affidavit and Petition to
Proceed Pro Se [Doc. No. 3]. Plaintiff, who is an attorney, is subject to filing restrictions
previously imposed in Mothershed v. State of Oklahoma ex rel. Oklahoma Bar Association,
Case No. CIV-13-435-C (W.D. Okla. Dec. 20, 2013), aff’d, No. 14-6044 (10th Cir. July 1,
2014) (hereafter “Order”). His filing is designed to satisfy the requirements of the Order
to bring a new action without counsel. With the filing, Plaintiff has also filed a Complaint
for Declaratory and Injunctive Relief [Doc. No. 1] and three motions.
Upon consideration, the Court finds that Plaintiff has not shown he should be
permitted to proceed pro se on the claims asserted in his proposed Complaint. Plaintiff
intends to sue the justices of the Oklahoma Supreme Court and certain judges of the
Oklahoma Court of Civil Appeals under 42 U.S.C. § 1983. Plaintiff claims his federal
constitutional rights were violated in a state court appeal where he, as the appellant, was

not permitted to file an appellate brief because the appeal was decided under the accelerated
procedure provided by Rule 1.36 of the Oklahoma Supreme Court Rules.

See Apache

Corp. v. Mothershed, Case No. 115,367 (Okla. Civ. App. Jan. 20, 2017), cert. denied,
Order (Okla. Sept. 25, 2017), cert. denied, 138 S. Ct. 675 (Jan 8, 2018). Plaintiff would
seek an order “enjoining the Defendants . . . from enforcing the Oklahoma appellate courts’
Okla. Sup. Ct. R. 1.36(g) summary appeals provisions [that] prohibit the lawful filing of
[an] appellate merits brief” and a declaratory judgment “that the state court legislated rule,
Okla. Sup. Ct. R. 1.36(g) summary appeals, is null and void” and “that all appellate
proceedings conducted under Okla. Sup. Ct. R. 1.36(g) summary appeals, including the
Oklahoma Supreme Court, Apache Corp. v. George L. Mothershed, et al., Case No. No.
[sic] SD-115367 are null and void.” See Compl. [Doc. No. 1] at 33-34.
Although Plaintiff certifies that the legal theories and arguments he raises in this
action are not frivolous, the Court disagrees. Plaintiff asserts that, because he presents his
§ 1983 claim as an attack on an unconstitutional court rule and not merely the decision in
his case, his claim does not run afoul of the Rooker-Feldman doctrine. 1 See Compl. ¶ 4.
However, Plaintiff ignores other legal impediments to his suit, some of which are
jurisdictional. Plaintiff proposes to sue state court judges who as individuals enjoy absolute
immunity from suit and as state officials enjoy sovereign immunity under the Eleventh
Amendment. Although the Eleventh Amendment does not bar an official-capacity suit that
seeks only prospective relief under Ex parte Young, 209 U.S. 123 (1908), such relief is not

1

See Rooker v. Fid. Trust Co., 263 U.S. 413, 416 (1923); D.C. Court of Appeals v.
Feldman, 460 U.S. 462, 486-87 (1983).
2

available against judges under Section 1983. As amended in 1996, Section 1983 expressly
provides that “in any action brought against a judicial officer for an act or omission taken
in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory
decree was violated or declaratory relief was unavailable.” 42 U.S.C. § 1983. 2
Further, Plaintiff does not establish his standing to pursue the injunctive and
declaratory relief he intends to seek. Plaintiff “must demonstrate a continuing injury to
establish standing for prospective relief.” Jordan v. Sosa, 654 F.3d 1012, 1019 (10th Cir.
2011). Like prospective injunctive relief, “[a] declaratory judgment is meant to define the
legal rights and obligations of the parties in anticipation of some future conduct, not simply
to proclaim liability for a past act.” Ysais v. New Mexico, 373 F. App’x 863, 866 (10th Cir.
2010 (citing Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1266 (10th
Cir. 2004) (McConnell, J., concurring) (“[A] declaratory judgment action involving past
conduct that will not recur is not justiciable.”)). Plaintiff alleges no facts that would show
he may be subjected to Rule 1.36(g) in the future. Therefore, Plaintiff fails to establish his
standing to seek declaratory or injunctive relief concerning the constitutionality of
Rule 1.36(g).
IT IS THEREFORE ORDERED that Plaintiff’s Petition to Proceed Pro Se [Doc.
No. 3] is DENIED and the Complaint for Declaratory and Injunctive Relief [Doc. No. 1],
which was provisionally filed by the Clerk, is DISMISSED without prejudice.

2

Plaintiff obviously knows of the judicial immunity provided by § 1983 due to prior
unsuccessful attempts to sue judges who have presided over his cases. See, e.g., Mothershed v.
Thomson, No. CV-04-2266-PHX-JAT, 2006 WL 381679 (D. Ariz. Feb. 16, 2006), aff’d, 235 F.
App’x 682 (9th Cir. 2007).
3

IT IS FURTHER ORDERED that Plaintiff’s Motion to Proceed In Forma Pauperis
[Doc. No. 2], Plaintiff’s Application for an Order to Defendants to Show Cause Why His
Pending Motion for Injunction and Declaratory Relief Should Not Be Granted [Doc.
No. 4], and Plaintiff’s Motion for Preliminary Injunction and Declaratory Relief [Doc.
No. 6] are DENIED as moot.
IT IS SO ORDERED this 27th day of June, 2018.

4