Malone v. O'Toole

Filing 25

ORDER overruling objections and adopting 21 Report and Recommendation. Deft's 14 Motion to Dismiss is granted. Pltf's 15 Motion to Strike, or in the alternative, to convert to a Motion for Summary Judgment is denied. Signed by Judge Ron Clark on 9/28/17. (tkd, )

**NOT FOR PRINTED PUBLICATION**
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
EDWARD MALONE,
Plaintiff,
v.
DAVID O'TOOLE, IN HIS CAPACITY
AS CLERK OF THE UNITED STATES
DISTRICT
COURT
FOR
THE
EASTERN DISTRICT OF TEXAS AND
IN HIS PERSONAL CAPACITY;

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CIVIL ACTION NO. 6:16-CV-01264-RC
JUDGE CLARK

Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
The above entitled and numbered civil action was referred to United States Magistrate
Judge John D. Love pursuant to 28 U.S.C. § 636(b)(3). On July 12, 2016, the Magistrate Judge
issued a Report and Recommendation containing his proposed findings and recommending that
Defendant’s Motion to Dismiss (Dkt. No. 14) be granted and Plaintiff’s Motion to Strike or in
the alternative to Convert to a Motion for Summary Judgment (Dkt. No. 15) be denied. (Doc.
No. 21.) Plaintiff objected to the recommendation (Doc. No. 23) and Defendant responded.
(Doc. No. 24.) Having conducted a de novo review of Plaintiff’s written objections, the Court
concludes that the findings and conclusions of the Magistrate Judge are correct and the
objections are without merit. 28 U.S.C. § 636(b)(1).
Plaintiff specifically objects that the Court has subject matter jurisdiction because the
order revoking his license was not a final court order and there was no way for him to file an
appeal according to our Local Rules. Defendant argues that the Eastern District of Texas is

allowed to create local rules pursuant to 28 U.S.C. § 2071, and the Local Rules authorized the
Clerk to issue the order of disbarment. As noted in the Report and Recommendation, the Local
Rules of the Eastern District of Texas authorize the Clerk to issue an order disbarring or
suspending a member from practice in the Eastern District of Texas. Local R. AT-2(b)(2). By
Rule, this is a final decision that is subject to appeal to the Fifth Circuit. In re Bailey, 450 F.3d
71, 72–73 (1st Cir. 2006) (“[A] district court's decision disbarring an attorney from practice is a
final judgment as it ends the litigation on the merits and leaves nothing for the court to do but
execute the judgment.” (internal quotation omitted)); In re Calvo, 88 F.3d 962 (11th Cir. 1996)
(finding jurisdiction at the appellate level after the district court declined to conduct a hearing but
disbarred the plaintiff based on the review of his state license disbarment). The objection is
OVERRULED.
Plaintiff argues that a letter he submitted to the Court on August 5, 2016 should be
considered a pending post-judgment motion thereby tolling the deadline for filing an appeal.
(Doc. No. 23). The Court agrees with the Magistrate Judge that the Plaintiff’s letter did not
comply with the requirements of a motion set forth in the local rules.

Local R. CV-10.

Therefore, consideration of this letter as a post-judgment motion is not warranted. Moreover,
whether Plaintiff’s letter should have been docketed as a motion is not pertinent to the Court’s
lack of subject matter jurisdiction discussed below. The objection is OVERRULED.
Plaintiff further argues that there is subject matter jurisdiction to award “prospective
relief against future unconstitutional summary reciprocal revocations of law licenses in the
Eastern District of Texas.”

(Doc. No. 23.)

However, Plaintiff does not request wholly

prospective relief. Plaintiff, in effect, asked the Court to issue a writ of mandamus vacating the
Clerk’s order of August 3, 2016 revoking his admission to practice and to restore his admission

to the bar of this Court. (Doc. No. 12.) This is not only prospective relief but also retrospective
relief. See Julian v. City of Houston, Tex., 314 F.3d 721, 729 (5th Cir. 2002) (noting back pay is
retrospective relief because “[i]ts purpose is to restore the plaintiff to the position he would have
been in absent the discrimination.”); Moore v. City of Asheville, 396 F.3d 385 (4th Cir 2005)
(finding plaintiff requested retrospective relief because he wanted to “annul the effects of the
prior state administrative proceedings” and requested monetary damages). Because Plaintiff’s
request to vacate the Clerk’s prior order is retrospective relief, the Court lacks subject matter
jurisdiction over this case due to sovereign immunity. Plaintiff’s objection is OVERRULED.
Plaintiff maintains there is subject matter jurisdiction because the Court is allowed to
hear all cases with a “federal ingredient” under Article III. (Doc. No. 23) Defendant argues that
the Court cannot exercise jurisdiction because the Clerk was acting in his official capacity and
there was no express waiver of sovereign immunity. (Doc. No. 24.) Plaintiff has failed to show
a basis for subject matter jurisdiction. He is suing Defendant because of an order issued in his
role as Clerk of the Court. Edwards v. Municipal, 254 F.3d 70 (5th Cir. 2001). If a federal
employee working in an official capacity is sued, it is a suit against the United States. Danos v.
Jones, 652 F.3d 577, 581 (5th Cir. 2011). The United States has sovereign immunity and cannot
be sued without its express consent. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct.
1349, 63 L.Ed.2d 607 (1980). By suing Defendant in his official capacity, Plaintiff has imputed
sovereign immunity to Defendant, and Plaintiff has not shown that sovereign immunity was
waived. Plaintiff’s objection is OVERRULED.
Therefore, the Court ADOPTS the Report and Recommendation of the United States
Magistrate Judge (Doc. No. 21) as the findings and conclusions of this Court.

Plaintiff’s

objections (Doc. No. 23) are OVERRULED. Defendant’s Motion to Dismiss (Doc. No. 14) is

GRANTED and Plaintiff’s Motion to Strike or in the Alternative to Convert to a Motion for
Summary Judgment (Doc. No. 15) is DENIED.
So ORDERED and SIGNED this 28 day of September, 2017.

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Ron Clark, United States District Judge