Opinion
CIVIL ACTION NO. 1:07-CV-0845-ODE, CIVIL RIGHTS 42 U.S.C. § 1983.
November 16, 2007
ORDER AND OPINION
Plaintiffs Marjorie Hicks, Eddie Hicks, Jr., and Sylvernous Richard Osagu, II, have filed the instant civil action against fifty-six Defendants. This matter is before the Court on several motions to dismiss the instant action [Docs. 27, 28, 30-1, 32, 40, and 42], a motion for an award of attorneys fees and expenses pursuant to O.C.G.A. § 9-15-15 [Doc. 30-2], and several motions to stay the instant action until the Court rules on the motions to dismiss [Docs. 43, 44, 46, and 47].
I. Motions to Dismiss
The instant case involves a custody dispute over the removal of Marjorie Hicks' minor children. Plaintiffs sue the following fifty-six Defendants, who are grouped as follows:
(1) the Department of Human Resources, Richmond County Department of Family and Children Services ("DFCS"), Mrs. Brown, Tonya Miller, Pamela Faison, J. Caraballo, Diane Barrett, Tameko Craig, Pam Humphries, Marshall Crawford, John Harris, Lisa Tinadel, Penny Alderman, Mettie Berry, Myra Josey, O. Moore, Annette Echols, Gloria Choice, Baretta Jackson, Bobby Anderson, Kenneth Joe, William Hillis, Rosalyn Panton, Zigga Wiggins, Lareen Randall, Brook Shadox, Mary Dean Hardy, Kathy Harrenton, Steve Love, Commissioner B. J. Walker, William Hernden, Dealvah Simms, Andre Chambers, and Christopher Terry (collectively referred to hereinafter as the "State Defendants");
(2) Juvenile Court for the County of Richmond, the Honorable Herbert Kernaghan, Jr. (Former Juvenile Court Judge in Augusta-Richmond County, Georgia), Julian Allen, Gary A. Glover, Ms. Lilian, Mr. Glen, Ms. Martha, Office of the Child Advocate for the Protection of Children, Shawn B. Hammond, Sherry Barnes, The Family Center, LLC, Dr. E.J. Holt, Dr. L.E. Mike Daniels, The Psychology Spirituality Center, Dr. Cynthia Butler, and Stanley Wales (collectively referred to hereinafter as the "City of Augusta Defendants"); and
(3) The Child Enrichment Center, Rolando Hudson, Ernestine, Baker, Ed Reid, Monique Bradham, and Sander White (collectively referred to hereinafter as the "CEC Defendants").
Judge Kernaghan died on November 13, 2006. [Doc. 29, Suggestion of Death].
[Docs. 1 and 3].
In seeking declaratory and monetary relief, Plaintiffs allege the following facts in the instant complaint:
(1) on November 2, 2004, DFCS and various employees of the State and Richmond County improperly removed Ms. Hicks' minor children from her custody;
(2) the removal of Ms. Hicks children was based upon a warrant taken out by her seventeen-year-old daughter, Fatima Maria Frasher, alleging that Ms. Hicks had attacked and threatened to kill Fatima Frasher;
(3) before and after the warrant was issued, Ms. Hicks' mother, Evelyn J. Frasher, "made several repeated phone calls to DFCS alleging that [Ms. Hicks] was depriving her daughter";
(4) DFCS and/or its affiliates committed the following acts after taking the minor children into custody: (a) denied Ms. Hicks the opportunity to communicate with her children; (b) denied certain services to Ms. Hicks; (c) deprived Ms. Hicks the right to client-agent confidentiality; (d) failed to interview Ms. Hicks' neighbors (with one exception), friends, family, school officials, and those individuals who frequently visit Ms. Hicks' home; (e) failed to provide Ms. Hicks with a notice or statement as to why her children were taken into custody; (f) failed to provide Ms. Hicks with a "copy of the 72-hour petition that was filed in court on" November 3, 2004; (g) failed to provide Ms. Hicks with a copy of her rights when they removed her children from school; (h) used no "reasonable efforts to preserve and reunify [Ms. Hicks'] family before putting her children in foster care; (i) used neither reasonable efforts to prevent the necessity for removal nor made it possible for the children to return home in a timely fashion; (j) effectively kidnaped the children and deprived them of an education; (k) refused medical attention and a drug screening for one child, Sylvernus; (1) blocked attempts by Advantage Counseling Center ("ACC") employees to protect Ms. Hicks' constitutional and civil rights; and (m) denied Ms. Hicks and ACC access to the DFCS's case records;
(5) DFCS and several other defendants had knowledge that the employees of the Child Enrichment Center were physically and emotionally abusing Sylvernus and depriving him of his education;
(6) in connection with a January 13, 2005, court hearing on the matter involving custody of the children, DFCS and its affiliates withheld evidence and relied on falsified evidence to bolster their case;
(7) DFCS attorneys, Gary Glover, and Ms. Hicks' attorneys, Shawn Hammond and Sherry Barnes, "committed acts of malpractice because they were knowledgeable of the deprivation of the Plaintiffs' constitutional and civil rights and willfully refused to protect Plaintiffs' rights";
(8) Dr. Holt and Dr. Cynthia Butler "committed malpractice, because they were knowledgeable of the Plaintiffs' constitutional and civil rights and refused to use their powers to protect their rights as well as falsified their medical records in order to help DFCS build a case against [Ms. Hicks]";
(8) at the January 13, 2005, hearing, Defendants Tinadel and Miller admitted that they never investigated the complaints of abuse; and
(9) Judge Kernaghan committed judicial misconduct by willfully affirming the removal of the children with knowledge of the deprivation of Plaintiffs' constitutional and civil rights without due process of law.
[Doc. 1]. In claiming that Defendants' conduct violates Plaintiffs' constitutional rights under the First, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments, Plaintiffs seek recovery pursuant to 42 U.S.C. §§ 1981, 1983, 1985, 1986, and 1988. [Id. at ¶¶ 36-43]. Plaintiffs also appear to sue certain Defendants for alleged violations of state law. [Id. at ¶¶ 20-21, 36].
The State Defendants, the City of Augusta Defendants, and the CEC Defendants have each filed motions to dismiss the instant complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). [Docs. 27, 28, 30-1, and 42]. In addition, Defendants Sherry Barnes and Dr. E.J. Holt have filed separate motions to dismiss the instant complaint. [Docs. 32 and 40]. These Defendants seek dismissal of the instant complaint with prejudice for the following reasons:
One of the State Defendants, Christopher Terry, filed a separate motion to dismiss. [Doc. 28]. In his motion, however, Mr. Terry adopted "the Motion to Dismiss and Brief in support filed by the other `state Defendants.'" [Doc. 28, Brief at 1].
(1) this Court lacks subject matter jurisdiction over Plaintiff's claims pursuant to the Rooker-Feldman doctrine;
(2) Plaintiffs have failed to state an actionable claim under § 1983, including a claim premised on an equal protection violation;
(3) Plaintiffs' claims under § 1983 and for professional negligence or malpractice are barred by the applicable two-year statute of limitations;
(4) Plaintiffs have failed to state a cause of action for conspiracy;
(5) Plaintiffs have failed to state a cause of action under §§ 1981, 1986, and 1988;
(6) Plaintiffs federal and state claims for damages brought against the state entities are entitled to Eleventh Amendment immunity;
(7) Plaintiffs fail to state a cause of action under the Georgia Constitution and state law;
(8) Plaintiffs claims for damages against Judge Kernaghan and Julian Allen are barred by the doctrine of judicial immunity; and
(9) Plaintiffs have failed to state a claim for professional negligence or malpractice against Dr. Holt.
The Rooker-Feldman doctrine places limits on the subject matter jurisdiction of federal district courts and courts of appeal over certain matters related to previous state court litigation.Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327, 1332 (11th Cir. 2001). Under the Rooker-Feldman doctrine, federal courts other than the United States Supreme Court lack subject matter jurisdiction to review the final judgments of state courts.Feldman, 460 U.S. at 486; Rooker, 263 U.S. at 415-16. TheRooker-Feldman doctrine "extends not only to constitutional claims presented or adjudicated by a state court, but also to claims [not raised in the state court but] that are `inextricably intertwined' with a state court judgment." Siegel v. LePore, 234 F.3d 1163, 1172 (11th Cir. 2000). "A federal claim is inextricably intertwined with a state court judgment `if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it.'" Id. (quoting Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25 (1987) (Marshall, J., concurring)).
Georgia's two-year statute of limitations applies with respect to claims brought under § 1983. See Kelly v. Serna, 87 F.3d 1235, 1238 (11th Cir. 1996); Williams v. City of Atlanta, 794 F.2d 624, 625-26 (11th Cir. 1986). Likewise, the statute of limitations for a professional negligence or malpractice claim is two years. See O.C.G.A. § 9-3-71(a).
[See Docs. 27, 28, 30, 32, 40, and 42].
The record reflects that Plaintiffs have not responded to any of the motions to dismiss. Defendants' various motions to dismiss [Docs. 27, 28, 30-1, 32, 40, and 42], therefore, are deemed unopposed. See Local Rule 7.1B. Furthermore, upon careful review of Defendants's motions to dismiss, this Court finds that they are meritorious on the multiple grounds contained therein and are due to be granted.
II. Motion seeking an Award of Fees and Expenses
The City of Augusta Defendants seek an award of fees and expenses pursuant to O.C.G.A. § 9-15-15 with regard to claims asserted against Judge Kernaghan that arise out of the performance of his official duties. [Doc. 30-2, Brief at 14-16]. Section § 9-15-15(a) of the Georgia Code provides that:
[w]hen any civil action is brought against a judicial officer, other than an action for quo warranto, mandamus, or an action brought under Title 42, Section 1983 of the United States Code, and such action arises out of the performance of the judicial officer's official duties, the plaintiff shall be liable for all attorney's fees and expenses incurred in the defense of the action if the action is concluded in favor of the judicial officer, and the court finds that an attorney or party brought an action that lacked substantial justification or that the action, or any part of the action, was interposed for delay or harassment. As used in this Code section, "lacked substantial justification" means substantially frivolous, substantially groundless, or substantially vexatious. For purposes of this Code section, judicial officers shall include justices and judges of the appellate courts of Georgia and judges of the superior, state, probate, juvenile, magistrate, and municipal courts.
Section 9-15-15(a) specifically disallows an award of attorneys fees and expenses in connection with actions brought pursuant to § 1983. The instant action was docketed as a § 1983 action, and it appears that Plaintiffs' claims against Judge Kernaghan are premised in part upon grounds for relief arising under § 1983. Even if the City of Augusta Defendants could demonstrate that the instant action was not brought against Judge Kernaghan under § 1983, they have failed to provide an accounting of fees and expenses associated solely with the defense of Judge Kernaghan. Finally, after taking into account Plaintiffs' pro se status, this Court makes no finding that Plaintiffs lacked substantial justification to bring the instant action or that it was "interposed for delay or harassment." Accordingly, the City of Augusta Defendants' motion seeking an award of fees and expenses pursuant to O.C.G.A. § 9-15-15 [Doc. 32-2] is denied.
III. Conclusion
For the foregoing reasons, IT IS HEREBY ORDERED that Defendants' motions to dismiss the instant action [Docs. 27, 28, 30-1, 32, 40, and 42] are GRANTED and that the instant action is DISMISSED WITH PREJUDICE. The Clerk is DIRECTED to enter judgment in favor of Defendants and to CLOSE this case. IT IS FURTHER ORDERED that the City of Augusta Defendants' motion for an award of attorneys fees and expenses pursuant to O.C.G.A. § 9-15-15 [Doc. 30-2] is DENIED. IT IS FURTHER ORDERED that Defendants' various motions to stay the instant action until the Court rules on the motions to dismiss [Docs. 43, 44, 46, and 47] are DENIED as moot.