Soulsby v. Ludwig et al
MEMORANDUM OPINION. Signed by District Judge Elizabeth K. Dillon on 8/17/17. (kld)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
RODNEY SOULSBY, II,
VICTOR LUDWIG, et al,
Civil Action No. 5:17-cv-0054
By: Elizabeth K. Dillon
United States District Judge
On June 1, 2017, plaintiff Rodney Soulsby, II (Soulsby) filed a pro se complaint naming
two parties as defendants: Ashlyn D. Soulsby (Ashlyn), his ex-wife, and Victor Ludwig, an
Augusta County, Virginia judge. Soulsby’s complaint, brought pursuant to 42 U.S.C. § 1983,
alleges that his right to due process was violated when Judge Ludwig signed an order of adoption
awarding Soulsby parental rights over a minor child without his consent. He claims that Ashlyn,
who was then his wife, submitted a signature on adoption paperwork that was somehow forged
or fraudulent. He complains that Judge Ludwig did not ensure that the adoption paperwork was
properly signed by Soulsby, witnessed, or notarized. He thus alleges that the petition for
adoption was sought and approved without his permission and that he has now been required to
pay child support for this adopted child.
A. Pending Motions
Pending before the court are two motions—a motion to dismiss by defendant Ashlyn
Soulsby (Dkt. No. 9) and a motion to amend the complaint by Soulsby. Ashlyn argues that the
case should be dismissed on at least three different grounds. First, she contends that plaintiff
lacks standing. Second, she argues that Soulsby has failed to state a 42 U.S.C. § 1983 claim
against her. Third, she asserts that Soulsby’s challenge to the adoption order is barred by the
applicable statute of limitations. (Dkt. No. 9 at 1.)
Apparently responding to the motion to dismiss, Soulsby filed a motion to amend his
complaint in which he asks that the court remove Ashlyn Soulsby as a defendant. (Dkt. No. 14.)
Under Federal Rule 15(a)(1), a party is permitted to amend its pleading “once as a matter of
course within . . . 21 days after service of a responsive pleading or 21 days after service of a
motion under Rule 12(b), (3), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1). The court
concludes that Soulsby’s motion to amend was filed within 21 days after service of a motion
under Rule 12(b),1 and thus that Soulsby has the right to amend “as a matter of course.” Id.
Accordingly, Soulsby’s motion to amend (Dkt. No. 14) will be granted. Pursuant to the
amendment, Ashlyn Soulsby will be dismissed without prejudice and terminated as a defendant
in this case. Ashlyn Soulsby’s motion to dismiss (Dkt. No. 9) will be denied as moot.
B. § 1983 Claim Against Judge Ludwig
The court also has the obligation to determine whether the remaining claim against Judge
Ludwig should be permitted to proceed. See Eriline Co. S.A. v. Johnson, 440 F.3d 648 (4th Cir.
2006) (recognizing that, with regard to in forma pauperis complaints, district courts have a duty
to screen initial filings, and so can consider certain defenses sua sponte). Specifically, pursuant
to 28 U.S.C. § 1915(e)(2)(B), a court shall “at any time” dismiss an in forma pauperis complaint
if it “fails to state a claim on which relief may be granted” or “seeks monetary relief against a
The motion to dismiss was filed on July 10, 2017, and the original certificate of service stated that
defense counsel served Soulsby by filing the document and allowing the CM/ECF system to send notification to
him. But Soulsby—a non-attorney pro se litigant—is ineligible to receive electronic notices through the CM/ECF
system. Accordingly, the clerk mailed Soulsby a copy of the motion to dismiss on July 10, 2017, along with a notice
informing him he had to file any response by August 3, 2017. (Dkt. No. 12.) Defense counsel subsequently filed a
corrected certificate of service stating that the motion to dismiss was mailed to Soulsby on July 13, 2017. (Dkt. No.
13.) Using either the clerk’s notice as the date of service or the July 13, 2017 date he was served by defense
counsel, Soulsby’s motion to amend was filed within “21 days after service” of the Rule 12(b) motion. See Fed. R.
Civ. P. 6(d) (giving an additional three days to act when service is made by mail).
defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(ii)–(iii). In evaluating
Soulsby’s pro se complaint, the court must construe the complaint liberally, holding it to “less
stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89,
94 (2007) (citation omitted). Nonetheless, “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim of relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A review of the face of Soulsby’s complaint shows that his claim against Judge Ludwig
suffers from at least two flaws that require its dismissal. First of all, it appears from the face of
the complaint that Soulsby’s claim is barred by the applicable statute of limitations. See Eriline
Co. S.A., 440 F.3d at 656–57 (explaining that a district court can raise a statute of limitations
defense sua sponte in evaluating complaints filed in forma pauperis if the defense appears on the
face of the complaint); Nasim v. Warden, Md. House of Correction, 64 F.3d 951, 953–54 (4th
Cir. 1995) (affirming sua sponte dismissal of claim on limitations grounds because the face of
the complaint plainly revealed the existence of the defense).
A § 1983 action brought in a Virginia federal court is governed by the two-year state
statute of limitations for personal injuries. A Soc’y Without a Name v. Virginia, 655 F.3d 342,
348 (4th Cir. 2011) (“With regard to the § 1983 . . . claims, the statute-of-limitations period . . . is
two years.”). Federal law determines when the statute beings to run, and the latest event it could
run from here is Soulsby’s discovery of the adoption order. Id. (“A civil rights claim accrues
when the plaintiff “knows or has reason to know of the injury which is the basis of the action.”)
(quotation marks and citation omitted).
The adoption order was signed in July 2013, and Soulsby’s complaint explicitly states
that he learned about the order in March 2015. (Compl. 8, Dkt. No. 3) He did not file this
action, however, until July 2017, more than two years later. Accordingly, any claim challenging
the propriety of the July 2013 order must be dismissed as time-barred.2
Secondly, and as an independent ground for dismissal, the claim against Judge Ludwig is
barred by the doctrine of judicial immunity. See Wachtler v. Cnty. of Herkimer, 35 F.3d 77, 82
(2d Cir. 1994) (affirming district court’s sua sponte dismissal of § 1983 claims against a state
judge based on the doctrine of judicial immunity); Rice v. Bennett, No. 08-cv-1015, 2008 WL
5484115, at *2 (D. Md. June 2, 2008) (dismissing sua sponte claim against defendant entitled to
judicial immunity). Judicial immunity confers on judicial officers absolute immunity from suits
for monetary relief and any claim for injunctive relief under 42 U.S.C. § 1983. Lepelletier v.
Tran, 633 F. App’x 126, 127 (4th Cir. 2016) (per curiam) (holding that the plaintiff’s “claims
seeking injunctive relief against a sitting state court judge for actions taken in his judicial
capacity . . . were barred by the plain language of 42 U.S.C. § 1983”); Malave v. Abrams, 547 F.
App’x 346, 347 (4th Cir. 2013) (acknowledging prior authority that judicial immunity did not
apply to claims for injunctive relief, but noting that Section 1983 was amended in 1996 to
provide that “injunctive relief [against a judicial officer] shall not be granted unless a declaratory
decree was violated or declaratory relief was unavailable”); see also King v. Myers, 973 F.2d
354, 356 (4th Cir. 1992) (describing judicial immunity under federal law). Although he seeks
“declaratory relief” invalidating the order of adoption, as well as injunctive relief and damages
(Compl. 9), Soulsby has not alleged that a declaratory decree was violated or that such relief was
unavailable. See Murphy v. Ross, No. 3:14-CV-870, 2015 WL 1787351, at *3 (E.D. Va. Apr. 15,
It appears that Soulsby also may be challenging the order that he pay child support, which was issued in
January 2016. Even if a claim based on that order is not time-barred, it still cannot succeed against Judge Ludwig
due to judicial immunity, as discussed next. Furthermore, as noted in the court’s recent memorandum opinion in a
related case in which Soulsby sought to challenge his child support obligations, this court has no jurisdiction to
“grant divorces, determine alimony or support obligations, or determine child custody rights.” Wasserman v.
Wasserman, 671 F.2d 832 (4th Cir. 1982). See Soulsby v. Soulsby, No. 5:17-cv-56 (W.D. Va. June 12, 2017) (Mem.
Op. Dismissing Case at 3).
2015) (explaining, in the context of Section 1983 claim, the meaning of declaratory decrees or
declaratory relief being unavailable). Thus, if Judge Ludwig has judicial immunity, it bars the
claim against him here.
There are two possible exceptions to judicial immunity. Specifically, it does not shield a
judge for (1) non-judicial acts; or (2) acts taken in the clear absence of all jurisdiction. Mireles v.
Waco, 502 U.S. 9, 11–12 (1991). Neither exception applies here, though. As to the first, an act
is a judicial one if it is “normally performed by a judge” and “the parties dealt with the judge in
his or her judicial capacity.” King, 973 F.2d at 357 (citing Stump v. Sparkman, 435 U.S. 349,
357 (1978)). Soulsby challenges only actions by Judge Ludwig that were judicial acts—the
signing of orders in a judicial proceeding in which Soulsby was a party—so the exception for
non-judicial acts clearly does not apply.
Soulsby does not allege an absence of jurisdiction, either. Instead, Soulsby alleges that
Judge Ludwig (1) failed to ensure the petition for adoption was properly signed, witnessed, and
notarized; and (2) failed to correct his error even after acknowledging it, and ordered Soulsby to
pay child support anyway. But neither of these allegations render judicial immunity
inapplicable. Notably, judicial jurisdiction is “construed broadly,” and a judge will not lose
immunity merely “because the action he took was in error, was done maliciously, or was in
excess of his authority.” Stump, 435 U.S. at 356. As the Fourth Circuit has explained, “the
absolute immunity extended to a judge performing a judicial action is not in any way diminished
even if his or her ‘exercise of authority is flawed by the commission of grave procedural errors.”’
King, 973 F.2d at 357 (quoting Stump, 435 U.S. at 359). “The errors do not render the act any
less judicial, nor permit a determination that the court acted in the absence of all jurisdiction.”
Id.; see Mireles, 502 U.S. at 12 (concluding that a judge’s alleged direction to the police to bring
an attorney in the pending case before him and to use excessive force in doing so was a “judicial
act,” despite it being in excess of his authority). Even if, as Soulsby alleges, Judge Ludwig erred
in performing his duties, he is still entitled to absolute immunity in this case.
For the foregoing reasons, Soulsby’s claim against Judge Ludwig will be dismissed.
As discussed herein, Soulsby’s motion to amend will be granted, and Ashlyn Soulsby
will be terminated as a defendant. Ashlyn Soulsby’s motion to dismiss will be denied as moot,
and the claim against Judge Ludwig will be dismissed. An appropriate order will be entered.
Entered: August 17, 2017.
/s/ Elizabeth K. Dillon
Elizabeth K. Dillon
United States District Judge
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