Gentry v. Thompson
REPORT AND RECOMMENDATION: For the reasons stated above, the Magistrate Judge recommends that all claims be dismissed with prejudice for lack of jurisdiction. To the extent the court has jurisdiction the case should be dismissed with prejudice due to judicial immunity and the other reasons cite above. Signed by Magistrate Judge Joe Brown on 12/28/2016. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
JOHN ANTHONY GENTRY,
THE HONORABLE JUDGE
JOE H. THOMPSON,
THE HONORABLE ALETA A. TRAUGER
REPORT AND RECOMMENDATION1
recommends that the Defendant’s motion to dismiss (Docket Entry 11)
be granted and this case be dismissed as the court lacks jurisdiction
or dismissed with prejudice if the court has jurisdiction.
The Plaintiff filed his complaint against Circuit Court
Judge Joe H. Thompson on October 3, 2016, and paid the requisite
filing fee. Subsequently, he amended his complaint on October 19, 2016
(Docket Entry 6). The 38-page amended complaint is therefore the
operative complaint in this matter. Counsel for Defendant filed a
motion to dismiss for failure to state a claim on November 14, 2016
(Docket Entry 11) in lieu of an answer. The motion was supported by
a memorandum of law (Docket Entry 12). The Plaintiff filed a response
The Magistrate Judge has read the Plaintiff’s response and
would note as an initial matter the Plaintiff is correct that a
magistrate judge may only make a report and recommendation to the
district judge, who will then give such report a de novo review
That is exactly what was ordered in this case. See Docket Entry 3.
on November 28, 2016 (Docket Entry 17). There was no reply and the
matter is ready for a report and recommendation.
The Plaintiff’s amended complaint cites in considerable
detail his view of the proceedings in his divorce case before the
Defendant. He alleges that the Defendant violated Title 42 U.S.C. §
1983 by ruling against him without allowing him to be heard or to
present evidence and by being biased. He alleges that Defendant’s
actions violated his right of due process and were outside the
jurisdiction of the Defendant in his capacity as judge (Docket Entry
6, par. 13).
In his factual statement, the Plaintiff alleges a number of
violations he contends that occurred in a September 15, 2015, hearing
(page ID 55-66). On page ID 61 the Plaintiff refers to a July 1, 2016
hearing in two places. It appears that this is a typographical error
and he is actually referring to the July 1, 2015, hearing.
The Plaintiff next alleges violations that occurred during
what appears to be a final hearing in his divorce case on May 2 and
3, 2016 (page ID 66-68).
The Plaintiff then backtracks to a February 9, 2016, hearing
(page ID 68-80). In these pleadings the Plaintiff again complains that
the Defendant failed to read his pleadings or to allow him to argue
his motion. He further alleges that the court granted all of the
motions by his wife without allowing him to be heard. He further
Plaintiff’s motions and responses, he clearly did not. He contends in
that in this hearing the Defendant was biased against him and should
have disqualified himself.
It appears that the actual final hearing in the matter
occurred on May 3, 2016 (page ID 80-81). At this hearing he contends
that the Defendant showed his bias and his efforts to protect the wife
from criminal conduct by stating that if the Plaintiff thought his
wife was attempting to subordinate perjury he should take it up with
the district attorney. He contends that this violated his due process
right to be heard.
The Plaintiff then again backtracks to alleged violations
occurring at an October 27, 2015, hearing (page ID 81-84). The hearing
on that date appears to involve the discussion of the Plaintiff’s
motion to compel health insurance and life insurance information from
his wife and his motion for a Rule 9 interlocutory appeal. From the
transcript pages cited by the Plaintiff it appears that he filed a
notice of a hearing, which because of the court clerk’s error, was not
listed on the docket. Because of this the court did not hear the
motion that day. The Plaintiff contends that this demonstrates the
trial court’s previous decision to disregard his statements and
reinforces the Plaintiff’s contentions that the trial court was biased
and held animosity toward him by both refusing to hear him and by
denying him permission to take an interlocutory appeal.
Standard of Review
The Sixth Circuit has recently held that motions to dismiss
on the pleadings under Fed. R. Civ. P. 12(c) are reviewed de novo
Tucker v. Middleburg-Legacy Place, 539 F.3d 545, 549 (6th Cir. 2008).
The standard of review for a Rule 12(c) motion is the same as for a
motion under Rule 12(b)(6) for failure to state a claim upon which
relief can be granted. Ziegler v. IBP Hog Market, Inc., 249 F.3d 509,
511-12 (6th Cir. 2001) (citing Mixon v. Ohio, 193 F.3d 389, 399-400 (6th
“For purposes of a motion for judgment on the pleadings, all
well-pleaded material allegations of the pleadings of the opposing
party must be taken as true, and the motion may be granted only if the
moving party is nevertheless clearly entitled to judgment.” JP Morgan
Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007). However,
a legal conclusion couched as a factual allegation need not be
accepted as true on a motion to dismiss, nor are recitations of the
elements of a cause of action sufficient. Hensley Mfg. v. ProPride,
Inc., 579 F.3d 603, 609 (6th Cir. 2009).
The Rooker-Feldman Doctrine Bars this Court
From Reviewing the Plaintiff’s Claim for Relief
The Defendant’s first argument is that this Court lacks
jurisdiction under the Rooker-Feldman Doctrine, which stands for the
proposition that lower federal courts do not have jurisdiction to
review a case litigated and decided in state court. Only the United
States Supreme Court has jurisdiction to correct state court judgment.
Rooker v. Fidelity Trust Company, 263 U.S. 413, 415-16 (1923);
District of Columbia v. Feldman, 460 U.S. 462, 476 (1983). As the
Sixth Circuit has noted in looking to the Rooker-Feldman Doctrine a
three-part inquiry may be used. First, the court determines whether
the federal claim is “inextricably intertwined with the claim asserted
in the prior state court proceedings;” second, whether the federal
claim is a general challenge to the constitutionality of the state law
applied in the state action; and thirdly, whether the complaint deals
unconstitutionally, applied to Plaintiff’s particular case. Hutchinson
v. Lauderdale County, 326 F.3d 747, 755-56 (6th Cir. 2013). In this
case as the Defendant correctly points out, the actions the Plaintiff
complains of all took place in a divorce case in state court and the
Plaintiff’s request for relief would challenge the correctness of the
decisions in that case.
The Plaintiff in his prayer for relief (page ID 84, par. 3)
specifically asks for
all judgments issued and rendered by the
defendant in the Circuit Court for Sumner County, Case No. 2:014-CV393, with the exception of the single order declaring the parties’
divorce be made null and void. There cannot be a clearer statement
that the Plaintiff is attempting to invalidate the state court
proceedings, with the one exception of the divorce itself. This court
therefore lacks jurisdiction to review the Plaintiff’s constitutional
claims under the Rooker-Feldman Doctrine. If the Plaintiff believed
that his rights were violated during the divorce proceedings his
remedy would be appeals through the state appellate court, and if
necessary, a petition for certiorari to the United States Supreme
The Magistrate Judge has considered the Plaintiff’s argument
that the Rooker-Feldman Doctrine does not apply and has read the case
he cites--Kircher v. City of Ypsilanti, 458 F.Supp.2d 439 (D.C. E.D.
(Mich.) 2006)2. However, for the reasons
cited above, the Plaintiff
is attacking the state court proceedings and the decision of a federal
district court cannot supplant a ruling of either the Sixth Circuit
or the Supreme Court. To hold otherwise would allow any party in a
state court proceeding who loses on a motion to come to federal court
to have the federal district court review the matter even though the
state court proceeding is not final. Such a ruling would result in
Judge Thompson is Entitled to
Absolute Judicial Immunity
opposition, the Defendant has correctly stated the law on this issue.
As the Supreme Court stated in Mireles v. Waco, 502 U.S. 9 (1991)3
judicial immunity is an immunity from suit, not just from ultimate
assessment of damages, and judicial immunity is not overcome by
allegations of bad faith or malice, the existence which ordinarily
would cannot be resolved without engaging in discovery and eventually
trial. Immunity applies even when the judge is accused of acting
maliciously or corruptly and allegations of malice are insufficient
to overcome qualified immunity. Mireles at 10. In the Mireles case it
was alleged that the judge had ordered police officers to bring an
attorney into court and to use excessive force. The direction to use
excessive force would not be a function normally performed by a judge,
This case while not applying Rooker-Feldman squarely holds the
Judge was entitled to absolute immunity for his actions.
The Defendant incorrectly cites this case at page ID 96 of his
memorandum as 205 U.S.
however, the Court noted if only the particular act in question were
to be scrutinized, then any mistake of a judge in excess of his
authority would become a nonjudicial act because an improper or
erroneous act cannot be said to be normally performed by a judge. If
judicial immunity means anything, it means that a judge will not be
deprived of immunity because the action he took was in error or were
in excess of his authority. The Court went on to note that the
relevant inquiry is the nature and function of the act, not the act
itself, and that the court would look to the particular act’s relation
to a general function normally performed by a judge--in this case, the
function of directing police officers to bring counsel in a pending
case before the court. Mireles at 11-12.
Applying this standard to the present case, it is clear that
all of the rulings the Defendant made were in the performance of his
presiding over the Plaintiff’s divorce action. To hold
otherwise would make every alleged incorrect decision by a state trial
judge a federal constitutional violation.
Plaintiff’s remedy was an appeal through the state court system and
a petition for certiorari to the United States Supreme Court, not a
1983 action in federal district court. The Defendant is entitled to
judicial immunity for all of the acts alleged as they were all taken
in his judicial capacity, even if the Plaintiff honestly believes that
the Defendant’s rulings were in error. See also, Johnson v. Turner,
125 F.3d 324, 333 (6th Cir. 1997).
The Magistrate Judge considered the Plaintiff’s arguments that
a judge is not absolute immune, and again for the reasons stated
above, the Magistrate Judge concludes that the Plaintiff’s argument
lacks merit. Everything the Defendant did was in a judicial capacity
in presiding over the Plaintiff’s divorce case. The fact that the
Plaintiff believes that the Defendant should have heard more arguments
and not ruled against him does not render a judge’s actions outside
his judicial authority.
Every judge will be thought at times by one side or the
other to have committed errors in his rulings. Errors in rulings do
happen as magistrate judges are at times overruled by district judges,
district judges are overruled by the court of appeal, and the supreme
court overrules circuit courts. The Supreme Court may at times
overrule it’s own decisions. The fact that a decision may be wrong
does not constitute constitutional error.
The Allegations Against Judge Thompson
are Barred by the Statute of Limitations
to the Extent that the Alleged Conduct
Occurred More than One Year Before the
Original Complaint was filed on October 3, 2016
The Defendant has again correctly cited the law. The statute
of limitations for actions brought under Section 1983 are governed by
the statute of limitations governing actions for personal injuries in
Tennessee. See Berndt v. State of Tennessee, 796 F.2d 879, 883 (6th
Therefore, regardless of a decision on any of the other
defendants’ contentions, the actions complained of prior to one year
before October 3, 2016, would be barred by the statute of limitations.
Although the Plaintiff alleges that he did not become aware
of the statute of limitations issue until after May 3, 2016, his
argument misses the point. He was aware that he disagreed with the
Defendant’s decisions at the time they were made. The fact that he
only later concluded they were a constitutional violation, rather than
the rules of conduct, does not extend the statute of limitations.
Everything the Defendant did was in open court. The fact that the
Plaintiff did not draw a conclusion that it was a constitutional
violation for a lengthy period of time does not save his complaint
from the statute of limitations. To hold otherwise would destroy the
concept of statutes of limitations. There is nothing in the record to
suggest a valid reason to toll the statute of limitations. Even if the
Plaintiff did not hear clearly he had the ability to secure a
transcript or ask for a recording of the hearing. The plaintiff had
access to the facts and he did not act on them in a timely fashion.
The Eleventh Amendment Bars any Claim
for Relief against Judge Thompson in
his Official Capacity
The Magistrate Judge agrees with the Defendant’s claim that
Eleventh Amendment bars suit against Judge Thompson in his
official capacity. 42 U.S.C. § 1983 applies to persons who act under
the color of law. State officials in their official capacities are not
persons for the purpose of Section 1983. Will v. Michigan Dept. of
State Police, 491 U.S. 58, 71 (1989).
The Plaintiff argues that Congress can abrogate the Eleventh
Amendment without the state’s consent. That is an accurate statement.
Unfortunately for the Plaintiff’s argument the Supreme Court has not
held that Congress has abrogated the Eleventh Amendment with respect
to official capacity claims under Section 1983 claims such as he has
alleged. The case the Plaintiff cites (Hutto v. Finney, 437 U.S. 678
(1978)) dealt with the award of attorneys’ fees to be paid out of the
applicable to the state by the Fourteenth Amendment. The court found
that the defendants had violated prisoners’ constitutional rights
under the Eighth Amendment. The Supreme Court noted costs
traditionally been awarded without regard to the state’s Eleventh
Amendment immunity going back to 1849.
While in a concurring opinion one Justice questioned the
limitations of the Eleventh Amendment, it is not the holding of the
majority, and until the Supreme Court rules otherwise, claims against
the Defendant in his official capacity are barred by the Eleventh
recommends that all claims be dismissed with prejudice for lack of
jurisdiction. To the extent the court has jurisdiction the case should
be dismissed with prejudice due to judicial immunity and the other
reasons cite above.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any party has 14 days from receipt of this Report and Recommendation
recommendation with the District Court. Any party opposing said
objections shall have 14 days from receipt of any objections filed in
this report and recommendation in which to file any responses to said
objections. Failure to file specific objections within 14 days of
receipt of this Report and Recommendation can constitute a waiver of
further appeal of this Report and Recommendation. Thomas v. Arn, 474
U.S. 140 106 S. Ct. 466, 88 L.Ed.2d 435 (1985), Reh’g denied, 474 U.S.
ENTER this 28th day of December, 2016.
Joe B. Brown
JOE B. BROWN
United States Magistrate Judge
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