Opinion
NO. 01-2180
July 29, 2002
REPORT AND RECOMMENDATION
On August 8, 2001, the defendant, Steven Scheckman filed a Motion to Dismiss (Rec. Doc. No. 3) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure alleging that the plaintiff, Richard Lay, failed to state a claim for which relief can be granted. On October 9, 2001, the defendant, Louisiana Judiciary Commission filed a Motion to Dismiss (Rec. Doc. No. 28) pursuant to Fed.R.Civ.P. 12(b)(1) seeking dismissal of the plaintiff's claims for lack of jurisdiction to hear his claims against the Louisiana Judiciary Commission.
In addition to these dispositive motions, there are five other motions pending before the Court: the plaintiffs Motion to Strike with Sanctions (Rec. Doc. No. 9); Lay's Motion for Summary Judgment and Amended Motion for Summary Judgment (Rec. Doc. Nos. 21 and 37); Lay's Motion for Sanctions (Rec. Doc. No. 43); Lay's Motion for Sanctions (Rec. Doc. No. 46); and Lays' Motion for Summary Judgment (Rec. Doc. No. 64). These Motions were referred to the United States Magistrate Judge to conduct a hearing, including an Evidentiary Hearing, if necessary and to submit proposed findings and recommendations for disposition pursuant to Title 28 U.S.C. § 636(b)(1)(A)(B) and (C) and Uniform Local Rule 73.
I. Procedural History
On May 20, 2002, the undersigned United States Magistrate Judge sua sponte recalled her previous Report and Recommendation (Rec. Doc. No. 50) in order to reconsider the defendants' Motion to Dismiss in light of the United States Supreme Court's opinion in Lapides v. Board of Regents of the Univ. of Ga., 122 S.Ct. 1640, 1646 (2002). In Lapides, the Supreme Court held that the State waives its Eleventh Amendment Immunity when it elects to remove a civil rights action to federal court.
On June 13, 2002, Lay filed another Motion for Summary Judgment (Rec. Doc. No. 64) seeking reconsideration of that portion of the now-recalled Report and Recommendation in which it was recommended that the claims against Sheckman, which were barred by the Eleventh Amendment, be remanded. The Motion for Summary Judgment is moot in light of the recall and the recommendations herein.
The Court has also determined that the Motions to Dismiss can be resolved without oral argument. Nevertheless, to further determine the nature of the plaintiffs claims, the Court held a hearing pursuant to Spears v. McCotter and its progeny, on September 17, 2001. The plaintiff, Richard Lay ("Lay"), pro se, and counsel for the defendants, Steven Scheckman and Louisiana Judiciary Commission, participated in the conference.
766 F.2d 179 (5th Cir. 1985).
The purpose of the Spears Hearing is to ascertain what it is the prisoner alleges to have occurred and the legal basis for the claims. Spears, 766 F.2d at 180. The information elicited at the Hearing is in the nature of an amended complaint or a more definite statement under Fed.R.Civ.P. 12(e). Wilson v. Barientos, 926 F.2d 480, 482 (5th Cir. 1991). The plaintiff was sworn prior to testifying.
II. Factual Summary A. The Original Complaint
Lay is incarcerated in the Louisiana State Penitentiary in Angola, Louisiana. He filed this pro se complaint in the Orleans Parish Civil District Court against Steven Scheckman ("Scheckman"), Special Counsel to the Louisiana Judiciary Commission, alleging federal civil rights violations and state law negligence claims. The defendant Scheckman removed the case to this Court on July 18, 2001.
Rec. Doc. No. 1, Attached Complaint, p. 3.
Id.
Judge Beer issued an order in Civil Action No. 00-2022M (Rec. Doc. No. 33) restricting Lay from filing orders in this Court. The Court finds that the claim in this Court is not a violation of that Order. The defendant removed this matter from state court to this Court.
Lay contends that Scheckman breached his obligation to pursue an investigation of Lay's complaints of judicial misconduct against Ad Hoc Judge James E. Kuhn. Lay also alleges that Judge Kuhn, the Judge's law clerk, and Lay's appointed criminal attorney, Frank Sloan, deliberately deprived him of his constitutional right to appeal his criminal conviction by falsely alleging that Lay had waived his right to appeal. Lay further contends that Scheckman's failure to investigate these allegations has denied him equal protection of the law. Lay seeks monetary damages of $50,000 against Scheckman, an order declaring that Judge Kuhn engaged in judicial misconduct, and an investigation into Judge Kuhn's conduct.
Rec. Doc. No. 1. The Court has not been provided with a copy of Lay's complaint to the Judiciary Commission.
B. First Amended Complaint
On August 27, 2001, Lay filed a First Amended Complaint. Lay alleges that during a hearing on his Motion to Recuse in the 22nd Judicial District Court in St. Tammany Parish, Judge Kuhn falsely testified that Lay's request for appeal was untimely. Lay contends that this evidences Judge Kuhn's continued judicial misconduct and supports his conclusion that Scheckman's decision not to investigate Judge Kuhn was arbitrary.
Rec. Doc. No. 6.
C. Second Amended Complaint
On September 12, 2001, Lay filed a Second Amended Complaint in which he added Scheckman's employer, the Louisiana Judiciary Commission, and its unidentified insurer as defendants. Lay did not allege any additional facts in support of his claims in this Second Amended Complaint.
Rec. Doc. No. 14.
D. Third Amended Complaint
Lay filed a Third Amended Complaint on October 10, 2001. In this complaint, Lay alleges that Scheckman and the assistant attorney general representing Scheckman in this litigation inappropriately removed this case from State court. Lay further alleges that the removal was done to allow the defendants an opportunity to raise defenses which could not have been raised in State court. He contends that Scheckman and his counsel should be held liable for any undue ramifications that result from the removal.
Rec. Doc. No. 38.
E. The Spears Hearing
Lay testified at the Spears Hearing that Scheckman made the decision not to investigate his complaints against Judge Kuhn. Lay argued that La. S.Ct. Rule XXIII §§ 2(a) and 3, assign that function to the Judiciary Commission and that Scheckman did not have the authority or discretion to decide not to investigate his complaints. Lay also testified that he filed several complaints against Judge Kuhn between 1998 and 2000, and each time, his complaints were rejected as being outside of the jurisdiction of the Judiciary Commission.
La. S.Ct. Rule XXIII provides in pertinent part as follows: Section 1. Under authority of Section 25 of Article V of the Constitution creating the judiciary commission and authorizing this court to adopt rules pertinent thereto, the following shall be applicable to all complaints, investigations, hearings, and proceedings before the judiciary commission.
Section 2. In this rule, unless context or subject matter otherwise requires:
(a) "Commission" means the judiciary commission; . . .
(f) "Shall" is mandatory and "may" is permissive; . . .
Section 3.
(a) The Commission, upon receiving a complaint, not obviously unfounded or frivolous, alleging facts indicating that a judge is guilty of willful misconduct relating to his official duty, or willful and persistent failure to perform his duty, or persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, or conduct while in office which would constitute a felony, or that he has a disability that seriously interferes with the performance of his duties and said disability is or is likely to become permanent, shall make a preliminary investigation to determine whether a hearing should be held on the question of the discipline of the judge. The Commission may make such preliminary investigation on its own motion. . . .
Lay testified that, the specific complaint forming the basis of this suit arose on June 2, 1998, when Judge Kuhn was supposed to conduct an evidentiary hearing on his motion for new trial. At the hearing, his appointed counsel, Frank Sloan, made an oral motion to withdraw because he claimed that there were no non-frivolous issues to be raised on appeal. Lay testified that Judge Kuhn granted the motion to withdraw without requiring Sloan to file an appellate brief. Lay claims that as a result, he was foreclosed from his appeal rights. Lay further stated that he subsequently tried to perfect an appeal with the assistance of the Louisiana Appellate Project but Judge Kuhn would not release the record to the appeal court.
Lay contends that he reported this violation of his appellate rights to the Judiciary Commission. He later received a letter from Scheckman advising him that the matter was not within the jurisdiction of the Judiciary Commission. Lay thereafter filed this suit for declaratory relief and monetary damages as a result of Scheckman's refusal to investigate the claim against Judge Kuhn.
II. Standard of Review — Motions to Dismiss
The defendants have submitted two motions for consideration by the Court. The first is a Rule 12(b)(6) motion addressing the issues of Eleventh Amendment Immunity, whether Scheckman is a person under § 1983 and whether he is entitled to absolute prosecutorial immunity. The second is a Rule 12(b)(1) motion addressing this Court's jurisdiction to hear claims against the Louisiana Judiciary Commission.
The same standard is applied for a Motion to Dismiss brought under Fed.R.Civ.P. 12(b)(1) for lack of jurisdiction and for a Motion to Dismiss brought under Fed.R.Civ.P. 12(b)(6) for failure to state a claim for which relief can be granted. Benton v. United States, 960 F.2d 19, 21 (5th Cir. 1992). Under this standard, a complaint shall be dismissed if it appears that the plaintiff can prove no set of facts which would entitle him to relief. Id.; see also Home Builders Assoc. of Ms., Inc. v. City of Madison, Ms., 143 F.3d 1006, 1010 (5th Cir. 1998); Home Capital Collateral, Inc. v. FDIC, 96 F.3d 760, 764 (5th Cir. 1996). The Court must accept as true all well-pleaded factual allegations in the complaint and view them in the light most favorable to the non-moving party, in this case, the plaintiff. See Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996); American Waste Pollution Control Co. v. Browning-Ferris, Inc., 949 F.2d 1384, 1386 (5th Cir. 1991).
III. Motions to Dismiss
The Judiciary Commission and Scheckman seek dismissal of Lay's state and federal claims pursuant to Fed.R.Civ.P. 12(b)(1) for lack of jurisdiction and Fed.R.Civ.P. 12(b)(6) for failure to state a claim for which relief can be granted. The Commission contends that Lay's claims against it are barred by Absolute Sovereign Immunity under the Eleventh Amendment to the United States Constitution. Both the Judiciary Commission and Scheckman contend that they are not "persons" for purposes of suit under § 1983. Additionally, Scheckman contends that as Special Counsel to the Judiciary Commission, he is entitled to absolute prosecutorial immunity from the state and federal claims.
Rec. Doc. No. 28.
Lay has not opposed the Judiciary Commission's motion. The issue raised by the Commission's motion is whether the Louisiana Judiciary Commission is an agency of the State such that suit against it is a suit against the State of Louisiana, entitling it to Eleventh Amendment Sovereign Immunity.
A. The Commission and Scheckman in His Official Capacity 1. Eleventh Amendment Immunity
A state is protected from being sued by its citizens in federal court unless it has waived its immunity or Congress has abrogated the state's immunity. Moor v. County of Alameda, 411 U.S. 693 (1973); Edelman v. Jordan, 415 U.S. 651 (1974). It is settled that Louisiana has not waived its Eleventh Amendment Immunity from being sued on any claim in federal court whether under federal or state law. See e.g., Usry v. Louisiana Dept. of Highways, 459 F. Supp. 56, 63 (E.D. La. 1978); see also La. Const. Art. XII § 10. Furthermore, the United States Supreme Court has held that Congress did not intend to abrogate the states' immunity to suit in § 1983 actions. Quern v. Jordan, 440 U.S. 332 (1979).
Although the Eleventh Amendment is written in terms of a state's immunity, it applies equally to suits brought against state agencies and state officials in their official capacities. See Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989). However, under § 1983, if the requested relief is prospective, state officials may be sued in their official capacity. Alabama v. Pugh, 438 U.S. 781 (1978); Edelman, 415 U.S. at 651; Shinholster v. Graham, 527 F. Supp. 1318 (N.D. Fla. 1981). Furthermore, a suit under § 1983 against state officials in their individual capacity is not barred by the Eleventh Amendment, but the state official is entitled to the defense of qualified immunity. Faraca v. Clements, 506 F.2d 956 (5th Cir. 1975); see also Ruiz v. Estelle, 679 F.2d 1115, 1137 (5th Cir.) vacated in part, 688 F.2d 266 (5th Cir. 1982)).
To be considered a "state agency" an agency must be the alter ego of the state; that is, the claim against the agency is, in effect, a claim against the state. Dept. of Health Rehab. Serv. v. Davis, 616 F.2d 828 (5th Cir. 1980). In deciding whether an agency is the alter ego of the state, the court "must examine the particular entity in question and its powers and characteristics as created by state law." Laje v. R.E. Thomason Gen'l Hosp., 665 F.2d 724, 727 (5th Cir. 1982). In Hudson v. City of New Orleans, 174 F.3d 677, 681 (5th Cir.), cert. denied, 528 U.S. 1004 (1999), the Court restated the factors to be looked at in determining the immunity issue. The Court, by looking to the state's constitutional, statutory, and decisional law, must determine the status of the agency in question through a balancing of several factors. The six factors are as follows:
1) Whether the state statutes and case law view the agency as an arm of the state;
2) The source of the entity's funding;
3) The entity's degree of local autonomy;
4) Whether the entity is concerned primarily with local as opposed to statewide problems;
5) Whether the entity has the authority to sue and be sued in its own name; and
6) Whether the entity has the right to hold and use property.Hudson, 174 F.3d at 681.
A defendant need not possess each of the above attributes to benefit from the Eleventh Amendment. Id., at 681-82. Nor are these factors necessarily equal to one another since the second factor is the most important consideration. Delahoussaye v. City of New Iberia, 937 F.2d 144, 147-48 (5th Cir. 1991) (the primary goal of the Eleventh Amendment is to protect state treasuries). The Court must therefore resolve whether the Louisiana Judiciary Commission is an arm of the State of Louisiana for purposes of the Eleventh Amendment.
The first factor the Court must consider is how the state, through its constitution, laws, judicial opinions, attorney general's opinions, and other official statements, perceives the entity. See Pendergrass v. Greater New Orleans Expressway Commission, 144 F.3d 342, 344-345 (5th Cir. 1998). If the state characterizes the Commission as an arm of the state, this factor is counted in favor of Eleventh Amendment Immunity. Id.
The Louisiana Judiciary Commission is a constitutionally created disciplinary body vested with the initial responsibility of investigating judicial misconduct and when justified may make appropriate recommendations to the Louisiana Supreme Court for disciplinary action. Babineaux v. Judiciary Commission, 341 So.2d 396 (La. 1976). The Louisiana Supreme Court, a state public entity, must then pass upon these recommendations. See La. Const. Art. V, § 25 (1974); La. Rev. Stat. Ann. § 9:2798.1. The Louisiana Judiciary Commission is a part of the Judicial Branch of Louisiana's government. Babineaux, 341 So.2d at 396. It is, therefore, an arm of the state.
The Courts, including the Supreme Court, are integral parts of the greater entity identified as the Judicial Branch of Louisiana's state government. La. Const. Arts. II, V; see Roberts v. Sewerage and Water Bd. of New Orleans, 634 So.2d 341, 346-47 (La. 1994). In addition, La. Rev. Stat. Ann. § 9:2798.1 provides in pertinent part:
A. As used in this Section, "public entity" means and includes the state and any of its branches, departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, and employees of such political subdivisions. . . .
The second factor the Court must consider under Hudson is the source of funding for the Louisiana Judiciary Commission. See Clark v. Tarrant County, Tx., 798 F.2d 736, 744-45 (5th Cir. 1986). In assessing this factor the Court makes an inquiry into the state's liability in the event there is a judgment against the defendant, and second, the state's liability for the defendant's general debts and obligations. Hudson v. City of New Orleans, 174 F.3d 677 (5th Cir.), cert. denied, 528 U.S. 1004 (1999); Voisin's Oyster House, Inc. v. Guidry, 799 F.2d 183, 185-186 (5th Cir. 1986).
As a functionary of the Louisiana Supreme Court, the budgetary demands of the Judiciary Commission are met through annual allocations from the State's General Fund. 2001 La. Acts 668. Furthermore, the Attorney General of Louisiana has held that the legal expenses incurred by a judge before the Judiciary Commission for the successful defense of allegations arising in the course of his official duties may be reimbursed from the Judicial Expense Fund. La. Att'y. Gen. Op. No. 01-149.
Additionally, La. Rev. Stat. Ann. § 13.5108.1 sets forth the public policy of the state to hold harmless and indemnify its state officers for any federal civil rights damage or cost award assessed in their official capacity. Therefore, the Louisiana Judiciary Commission is fiscally connected with the state's financial resources. As such, this factor counts in favor of Eleventh Amendment Immunity.
The third factor focuses on the degree of local autonomy the entity at issues enjoys. Hudson, 174 F.3d at 677. By statutory definition, the duties of the Judiciary Commission are to receive, screen and investigate complaints against judicial officers across the state. La. Const. Art. V § 25 (1974); Jud. Comm. La. Rule IV-IX. It is not an autonomous entity since it can only recommend disciplinary action against a judge. The Commission's recommendations must be considered, reviewed and adopted by the Louisiana Supreme Court. Id. This factor also tilts the scales towards Eleventh Amendment Immunity.
The next factor focuses on whether the entity is concerned with primarily local, as opposed to state-wide concerns. Hudson, at 677. The Judiciary Commission as the disciplinary arm of the Louisiana Supreme Court has the authority to institute investigations of judicial misconduct complaints and make recommendations to the Court regarding the removal or disciplining of judges of this state. La. Const. Art. V § 25. Its focus is therefore statewide. This factor further tilts the scales in favor of a finding of Eleventh Amendment Immunity.
The fifth factor is whether the Judiciary Commission has the capacity to sue and be sued. The defendants in the instant action contend that there are no disciplinary actions in which the Judiciary Commission is named as the petitioner or respondent, thereby suggesting that it is not a suable entity. However, the Court concludes otherwise.
First, by its statutory duties, the Judiciary Commission is empowered to file disciplinary proceedings against judicial officers in the Louisiana Supreme Court. The Court has located several non-disciplinary civil cases in which the Judiciary Commission was the named respondent: In the matter of Application of United States for Order Authorizing Judiciary Commission of Louisiana to Release Certain Records to the Grand Jury, 936 F. Supp. 357 (E.D. La. 1996); Morial v. Judiciary Commission of La., 438 F. Supp. 599 (E.D. La.), rev'd on other grounds, 565 F.2d 295 (5th Cir. 1977), cert. denied, 435 U.S. 1013 (1978); and Babineaux v. Judiciary Commission of La., 341 So.2d 396 (La. 1976).
In Morial, a sitting state appellate judge, Ernest N. "Dutch" Morial, sought to enter the race for mayor of New Orleans. He filed suit in federal court against the Judiciary Commission for injunctive and declaratory relief regarding the requirement that he resign from office before becoming a candidate for a non-judicial elective office. The federal district judge held that the statute and canon were overly broad and purported to regulate conduct and qualifications that could not be constitutionally regulated. The Court enjoined the Judiciary Commission from requiring Judge Morial's resignation and declared the judicial canon unconstitutional. See Morial, 438 F. Supp. at 599.
Because of the prospective relief, the Eleventh Amendment was apparently not an issue. The Court's opinion also does not address the issue of the Judiciary Commission's capacity to be sued. See Morial, 438 F. Supp. at 599.
In Babineaux, ten Louisiana judges filed suit in a state district court against the Judiciary Commission seeking a declaratory judgment that another canon of the Louisianan Code of Judicial Conduct was unconstitutional. The Judiciary Commission filed an application with the Louisiana Supreme Court notifying the court that the constitutionality of a judicial canon prohibiting judges from sitting on the board of a financial institution was at issue. The Supreme Court accepted jurisdiction to consider the issue. The Court held that the canon was constitutional and did not violate due process, nor did it infringe on the judges' right to freedom of association. Babineaux, 341 So.2d at 396.
The Commission's capacity to sue and be sued was not questioned in either of these cases. See Morial, 438 F. Supp. at 599; Babineaux, 341 So.2d at 396.
Accordingly, the Judicial Commission appears to have the capacity to sue, and in turn to be sued. This factor tilts the scale against the finding of Eleventh Amendment Immunity.
The Court is aware that the Judiciary Commission is the disciplinary arm of the Louisiana Supreme Court and that the federal courts do not generally recognize state courts as juridical entities. Mumford v. Basinski, 105 F.3d 264, 267 (6th Cir. 1997); Harris v. Champion, 51 F.3d 901, 905 (10th Cir. 1995); Clark v. Clark, 984 F.2d 272 (8th Cir. 1993); Ward v. Morris, 895 F. Supp. 116, 117 (N.D. Miss. 1995); Mony v. Louisiana State Bar Ass'n, 414 F. Supp. 180, 182 (E.D. La. 1976). Nevertheless, by virtue of its distinct function, the Judiciary Commission is distinct from the Louisiana Supreme Court in that regard. See Roberts v. Sewerage and Water Board of New Orleans, 634 So.2d 341. 346-47 (La. 1994) (an entity's juridical status is based on its ability to function separately from other governmental entities).
The final inquiry concerns whether the entity has the right to hold and use property. Hudson, 174 F.3d at 677. The mover contends that the absence of the power to tax costs, to appropriate or to hold judges in contempt is proof that the entity lacks the right to hold and use property.
The property used by the Commission is provided through the support of the judicial administrator's office. It is the judicial administrator's office that further provides payroll, the staff for the committee on judicial ethics and other fiscal services to the Judiciary Commission. La. H. Bill No. 2001-1783. While it may, however, use property made available to it through the judicial administrator's office, there is no indication that the Judiciary Commission has the authority to own or "hold" property.
The Court, therefore, finds that the scales are tipped in favor of the availability of the Eleventh Amendment immunity as to the federal and state law claim against the Judiciary Commission and also Scheckman, in his official capacity as Special Counsel to the Commission, as the requested relief is not prospective in nature. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 n. 10 (1989) (state official in official capacity, when sued for injunctive relief, would be a person under § 1983); see also American Bank and Trust Co. of Opelousas v. Dent, 982 F.2d 917, 921 (5th Cir. 1993) (official capacity actions for prospective relief are not treated as actions against the State) (quoting Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985)).
B. Waiver of Eleventh Amendment Immunity
The next issue for the Court's consideration is whether the State, through Scheckman, waived its Eleventh Amendment Immunity by removing the case to federal court and invoking the jurisdiction of this Court over the claims against him.
Although the Eleventh Amendment bars such suits, the Supreme Court has carved out exceptions. "First, Congress may authorize such a suit in the exercise of its power to enforce the Fourteenth Amendment — an Amendment enacted after the Eleventh Amendment and specifically designed to alter the federal-state balance." College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999). Second, a state may waive its immunity and consent to suit in federal court. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 239-40 (1985).
The Supreme Court squarely addressed this issue in Lapides v. Bd. of Regents of the Univ. of Ga., 122 S.Ct. 1640, 1646 (2002). There, the Supreme Court held that the state waives its Eleventh Amendment immunity by its affirmative litigation conduct of removing a claim to federal court. Id. Therefore, the state's removal of Scheckman's claim to federal court constitutes a waiver of the Eleventh Amendment immunity. This waiver extends to the claims against the Judiciary Commission who was the real party in interest in the suit against Scheckman in his official capacity. See Kentucky v. Graham, 473 U.S. 159, 165 (1985). Accordingly, the Motion to Dismiss the claims against the Judiciary Commission and Scheckman in his official capacity should be denied.
C. Scheckman in his Individual Capacity 1. The § 1983 Claim
Scheckman contends that he is entitled to Absolute Prosecutorial Immunity from suit under § 1983 and state tort law. Specifically, he contends that as Special Counsel to the Judiciary Commission he was acting as a prosecutor when he concluded that the complaint against Judge Kuhn did not contain allegations concerning ethical behavior.
Lay disagrees contending that Scheckman was not acting as a prosecutor when he concluded that there were no ethical issues raised by his complaint. He further alleges that Scheckman was acting without authority in rejecting his complaint.
The Supreme Court recognizes two kinds of immunity from a claim raised under § 1983: "qualified immunity" and "absolute immunity." Under qualified immunity, government officials are not subject to liability for the performance of their discretionary actions unless their conduct violates clearly established statutory or constitutional rights which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Absolute immunity denies a person whose federal rights have been violated by a government official, any type of remedy, regardless of the conduct. As such the Supreme Court has been "quite sparing" in recognizing absolute immunity. Forrester v. White, 484 U.S. 219, 224 (1988).
The Supreme Court has recognized that there are some officials whose duties require a full exemption from liability. Such officials include judges performing judicial acts within their jurisdiction, Bradley v. Fisher, 80 U.S. 335 (1871), and prosecutors in the performance of their official functions. Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976); Yaselli v. Goff, 275 U.S. 503 (1927). In Butz v. Economou, 438 U.S. 478, 512 (1978), the Court extended Imbler's absolute immunity to officials sued under § 1983 who act as both judges and prosecutors within a federal administrative agency.
In order to determine whether a government official is absolutely immune from suit, the proper focus should not be the identity of the party claiming the immunity, but rather, his "role in the context of the case." Mays v. Sudderth, 97 F.3d 107, 110 (5th Cir. 1996). In other words, immunity attaches to particular official functions, not to particular offices. Forrester v. White, 484 U.S. 219, 229 (1988); see also O'Neal v. Mississippi Bd. of Nursery, 113 F.3d 62 (5th Cir. 1997).
In the context of absolute prosecutorial immunity, immunity from suit extends only to those acts "intimately associated with the judicial phase of the criminal process" which include evaluating evidence and interviewing witnesses in preparation for trial. Burns v. Reed, 500 U.S. 478, 492 (1991) (emphasis added). Among the traditional functions of a prosecutor is the duty to decide which charges to bring and whether to conduct the suit in Court. See Kalina v. Fletcher, 522 U.S. 118, 125 (1997). Furthermore, this form of immunity is not available to prosecutors in their individual capacity if their actions were administrative or investigatory; rather, the prosecutor is entitled to only qualified immunity from liability. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993); see Hampton v. Chicago, 484 F.2d 602, 608, 609 (7th Cir. 1973).
There is no dispute that Scheckman was acting as Special Counsel to the Louisiana Judiciary Commission when he received Lay's complaint. Scheckman alleges that by virtue of his position, he was placed in a role similar to that of a prosecutor in the context of pursuing judges for ethical violations. To support his contention, Scheckman relies on Forman v. Ours, 804 F. Supp. 864 (E.D. La. 1992) in which the Court granted absolute prosecutorial immunity to an attorney employed as Assistant Counsel of the Louisiana State Bar Association ("LSBA") and its committee on Professional Responsibility.
Special Counsel is designated the following authority and duties by Jud. Comm. La. Rule XI(B)(1): (1) Special counsel shall have the authority and/or duty to:
(a) Receive and screen complaints, conduct preliminary investigations, recommend to the Commission, and upon authorization of the Commission conduct, full investigations, make recommendations to the Commission on the disposition of complaints after full investigation, file formal charges when directed to do so by the Commission, prosecute formal charges before the Commission (including oral argument, filing of briefs and the submission of proposed Findings of Fact, Conclusions of Law and Recommendations for Discipline), and file briefs and other appropriate pleadings for the Commission and orally argue the Commission's position to the Supreme Court.
In Forman, a former client submitted a complaint to the Disciplinary Counsel against Forman. Fred Ours, an attorney employed as deputy counsel for the LSBA disciplinary counsel, investigated the complaint and found that Forman had unreasonably overcharged the client and decided to publicly reprimand him. While the public reprimand was pending, Forman sued the client to recover a portion of the fees which had been the subject of the reprimand. As a result, the Disciplinary Board began a second investigation against Forman regarding the suit against his client. Forman thereafter filed a § 1983 suit seeking damages against the Disciplinary Committee and its counsel.
The District Court held that counsel for the disciplinary committee was entitled to absolute prosecutorial immunity. Id. at 868. In so doing, the Court noted that the disciplinary counsel investigated the complaint after the attorney sued his client for fees. Id. He also filed disciplinary charges against the attorney stemming from that investigation. The Court further noted that it was the act of investigating and prosecuting the second complaint that was the subject of the § 1983 claim that entitled the disciplinary counsel to absolute immunity. Id.
In contrast, Scheckman did not investigate or prosecute Lay's claims against Ad Hoc Judge James Kuhn. The evidence shows that on November 9, 2000, Scheckman wrote a letter to Lay in response to his written complaint against Judge Kuhn. As demonstrated by the letter, Scheckman concluded that the claims raised did not allege "actionable judicial misconduct within the parameters of the Judiciary Commission's jurisdiction." Scheckman therefore administratively concluded that Lay's claims were not ethical in nature, thereby preventing him from having the authority to investigate and prosecute the claims.
The Court was not provided with a copy of the complaint that Lay submitted to Scheckman for consideration. See Rec. Doc. No. 1. Attachment to Original Complaint.
Scheckman, therefore, is not entitled to absolute prosecutorial immunity under § 1983. See Buckley, 509 U.S. at 276; Forman, 804 F. Supp. at 866. Consequently, the Motion to Dismiss filed by the Scheckman in his individual capacity should be denied.
2. The State Law Claim
Citing Knapper v. Connick, 681 So.2d 944 (La. 1996), the defendant further contends that he is entitled to absolute prosecutorial immunity from being sued under La. Civ. Code Art. 2315 in his individual capacity. The plaintiff has not addressed the applicability of the doctrine of absolute prosecutorial immunity to the state law claim.
In Knapper, the Supreme Court addressed the question of whether, and under what circumstances, a prosecuting attorney should be afforded absolute immunity in a malicious prosecution claim arising out of prosecutorial misconduct in the course of a criminal proceeding. Id., at 944. Specifically, Knapper, involved the question of whether a prosecutor could be immune from failing to turn over exculpatory evidence in a subsequent malicious prosecution claim.
In addressing the issue, the Knapper Court extended the application of Imbler v. Pachtman, 424 U.S. 409 (1976) and held that, to the extent the prosecutor's actions are intimately associated with the judicial phase of the criminal process and occurs in the course of a prosecutor's role as an advocate for the state, the prosecutor is entitled to absolute immunity. The Court further noted that where the prosecutor acts in an investigatory, administrative, ministerial or other role that has no functional tie to the judicial process, he is not entitled to absolute immunity. Knapper, at 950.
Knapper was later considered by the state circuit court in Smith v. State of Louisiana through the Department of Administration, 694 So.2d 1184 (La.App. 1st Cir. 1997) in connection with the assertion of absolute immunity sought by the State Inspector General. In Smith, an accountant who had been acquitted on charges of forgery which stemmed from an investigation initiated by the State Inspector General, filed a malicious prosecution lawsuit against the Inspector. The Inspector General raised the issue of absolute immunity in a motion for summary judgment. See id.
In denying the request of the Inspector General, the court noted that the office of the Inspector General is created within a Division of Administration. The court observed that the office was established to examine, investigate and make recommendations with respect to the prevention and detection of waste, inefficiencies, mismanagement and abuse in all the state agencies, boards, commissions, authorities, task forces, departments and divisions of the executive branch of government. Id. at 1187. The court therefore held that the Inspector General fulfilled his role by directing the auditors of the Division of Administration and the act of doing so was not associated intimately with the judicial phase of the criminal process. The court also held that the role of Inspector General was not that of advocate for the state. Id.
For the reasons detailed in this and the preceding section, the Court finds that Scheckman is not entitled to absolute prosecutorial immunity. Therefore, the Motion seeking dismissal of the La. Civ. Code Art. 2315 claims filed against Scheckman in his individual capacity should be denied.
V. The Remaining Motions
Before the Court are four other motions filed by Richard Lay: 1) Lay's Motion to Strike with Sanctions (Rec. Doc. No. 9); 2) Lay's Motion for Summary Judgment and Amended Motion for Summary Judgment (Rec. Doc. Nos. 21 and 37); 3) Lay's Motion for Sanctions (Rec. Doc. No. 43); and 4) Lay's Motion for Sanctions (Rec. Doc. No. 46).
A. Motion to Strike with Sanctions (Rec. Doc. No. 9): Motion for Sanctions (Rec. Doc. No. 43); Motion for Sanctions (Rec. Doc. No. 46)
Lay has submitted three motions for sanctions seeking imposition of Rule 11 sanctions for (1) personal attacks in pleadings submitted to the Court (2) false representations in the context of whether he acted with authority when he rejected the plaintiffs complaint, and for (3) unprofessional statements contained in a letter dated October 11, 2001.
The defendants opposed two of the three motions on the basis that Lay has not complied with the requirements of Rule 11. They further contend that Lay is otherwise not entitled to have factually accurate pleadings stricken under Rule 12(f) of the Federal Rules of Civil Procedure.
Rule 11 imposes the following affirmative duties with which an attorney or litigant certifies he has complied by signing a pleading, motion or other document:
(1) the attorney has conducted a reasonable inquiry into the facts which support the document;
(2) the attorney has conducted a reasonable inquiry into the law such that the document embodies existing legal principles or a good faith argument "for extension, modification, or reversal of existing law;" and
(3) the motion is not interposed for purposes of delay, harassment, or increasing costs of litigation.See Fed.R.Civ.P. 11(b).
Section (c)(1)(A) of Rule 11 provides that the motion for sanctions under the rule shall be separately filed from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b) of the rule. It shall be served as provided in Rule 5, but shall not be filed with or presented to the Court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. Fed.R.Civ.P. 11(c)(1)(A).
If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees. Id.
The defendant does not complain that Lay did not comply with Rule 11(c)(1)(A) which requests a 21 day holding period subject to service upon the alleged offending party. The Court has not been provided with any evidence that Lay complied with the requirements of the rule. As such, the motions are premature and therefore should be denied.
B. Motion for Summary Judgment (Rec. Doc. No. 21 and Amended Motion for Summary Judgment (Rec. Doc. No. 37)
Lay contends that: (1) Scheckman, in his official capacity, had no authority to refuse his complaint against Judge Kuhn; and (2) his acts were in violation of Louisiana law because they resulted in the deprivation of due process and equal protection. In the Amended Motion for Summary Judgment, Lay presents a convoluted list of citations to cases and statutes couched as "Undisputed Facts" in an apparent effort, under the broadest of readings, to establish that Scheckman and the Judiciary Commission acted outside of statutory authority in rejecting his complaints against Judge Kuhn.
The defendants opposed the motion on the basis of the absolute immunity doctrines argued in their Motions to Dismiss. They also oppose the motion contending "it makes no sense" and fails to comply with the Local Rules of the Court or the Federal Rules of Civil Procedure. The defendants further contend that the Due Process clause can offer no protection to Lay in this situation since he has no property or liberty interest in the exercise of the powers of the Judiciary Commission.
Rec. Doc. No. 27, p. 2, ¶ 3.
1. Standard of Review — Motion for Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure provides that the Court may grant summary judgment when no genuine issue of material fact exists and the mover is entitled to judgment as a matter of law. See Fed.R.Civ.Proc. 56. In Celotex Corp. v. Carett, 477 U.S. 317 (1986), the United States Supreme Court indicated that the party seeking summary judgment must point out the absence of evidence showing a genuine issue of material fact.
"Material facts are those 'that might affect the outcome of the suit under the governing law.'" Morrissey v. Boston Five Cents Savings Bank, 54 F.3d 27, 31 (1st Cir. 1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "A dispute as to a material fact is genuine 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Id.
The party opposing summary judgment and who bears the burden of proof at trial must then "go beyond the pleadings and by [his] own affidavits, or by 'depositions, answers to interrogatories, and admissions on file, 'designate' specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324.
2. Lack of Authority to Refuse to Investigate
Lay contends that neither the Judicial Commission, nor Scheckman, in his official capacity, had the authority to refuse to investigate his complaint against Judge Kuhn. The defendants respond that the motion challenging their authority should be denied because they are absolutely immune from suit, including Scheckman in his official capacity. The Court, however, has determined that Eleventh Amendment immunity has been waived by the State and Lay can proceed against the Judiciary Commission and Scheckman in his official capacity.
Lay has failed to provide any competent summary judgment evidence to support his contentions. Furthermore, as a general matter, the Judiciary Commission has the authority to institute investigations of judicial misconduct complaints and make recommendations to the Court regarding the removal or disciplining of judges of this state when those claims are not unfounded or frivolous. La. Const. Art. V § 25; Jud. Comm. La. Rule V. In connection with that authority, the Judicial Administrator of the Commission may forward any complaint to Special Counsel for screening to determine whether investigation or a hearing is necessary. Jud. Comm. La. Rule IV,
VI. Special Counsel is charged with the following statutory duties:
(1) Special counsel shall have the authority and/or duty to:
(a) Receive and screen complaints, conduct preliminary investigations, recommend to the Commission, and upon authorization of the Commission conduct, full investigations, make recommendations to the Commission on the disposition of complaints after full investigation, file formal charges when directed to do so by the Commission, prosecute formal charges before the Commission (including oral argument, filing of briefs and the submission of proposed Findings of Fact, Conclusions of Law and Recommendations for Discipline), and file briefs and other appropriate pleadings for the Commission and orally argue the Commission's position to the Supreme Court.See Jud. Comm. La. Rule XI(B)(1)(a).
Thus as a general matter, Special Counsel had the authority to screen and, thus, reject Lay's complaint. Lay's motion in that regard must be denied as a matter of law since he has presented no contrary evidence. Lay, however, also questions whether Special Counsel abused that authority under the Due Process and Equal Protection Clauses. The Court must address those issues separately.
3. Due Process
Lay alleges that Scheckman's actions violated Louisiana law and resulted in the deprivation of due process. Lay does not specify the basis of this allegation in his motion other than to assert that his complaint against Judge Kuhn should not have been rejected without investigation. He further contends that Scheckman acted in violation of Louisiana law in failing to bring disciplinary charges against Judge Kuhn without an investigation. In response to this particular claim, Scheckman argues that Lay has no constitutionally protected liberty interest in having charges brought against a judicial officer.
The Due Process Clause of the Fourteenth Amendment provides that the substantive rights of life, liberty, and property cannot be denied without constitutionally adequate procedures prior to the deprivation. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541 (1985). It contains both a procedural and substantive component. Id. In the instant case, Lay has not indicated whether he urges a procedural or substantive due process violation.
To prevail on a procedural due process claim, a plaintiff must prove (1) he was deprived of a protected property interest and (2) he was denied the process due him. Grimes v. Pearl River Valley Water Supply District, 930 F.2d 441, 444 (5th Cir. 1991) (finding also that the inability to bring a claim in a judicial forum may give rise to a Procedural Due Process inquiry) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982)); San Jacinto Sav. Loan v. Kacal, 928 F.2d 697, 700 (5th Cir. 1991). The substantive component of the Due Process Clause protects individual liberty against certain governmental actions regardless of the fairness of the procedures used to implement them. Robertson v. Piano City of Tex., 70 F.3d 21, 24 (5th Cir. 1995) (citing Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992)); see Rochin v. People of Cal., 342 U.S. 165, 172 (1952). Both liberty and property interests can only be created from two sources — the Due Process Clause itself and the laws of the States. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460 (1989).
Under the broadest reading, Lay has failed to present the Court with competent summary judgment evidence to support a claim under either procedural or substantive due process. Thus, Lay's conclusory allegations of a Due Process violation based on the facts before the Court at this time do not warrant summary judgment in favor of Lay.
4. Equal Protection
Lay also generally alleges that his Equal Protection Rights were violated by Scheckman and the Commission. He does not specify how his rights were violated nor the status which would entitle him to equal protection of the laws.
The heart of an Equal Protection claim is that similarly situated classes of persons are treated differently, and that this difference in treatment bears no rational relation to any legitimate state interest. Wolff v. McDonnell, 418 U.S. 539, 556 (1974); Lee v. Washington, 390 U.S. 333, 334 (1968); Timm v. Gunter, 917 F.2d 1093, 1103 (8th Cir. 1990). The Supreme Court has explained that "if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end." Romer v. Evans, 517 U.S. 620, 631 (1996).
Conclusory allegations, however, by themselves do not establish an Equal Protection violation without proof of invidious discriminatory intent. See Village of Arlington Heights v. Metropolitan Housing. Dev't Corp., 429 U.S. 252, 265 (1977). Moreover, when a suspect class is not implicated, the Court must determine whether the alleged discrimination is "'patently arbitrary and bears no rational relationship to a legitimate governmental interest.'" Vermouth v. Corrothers, 827 F.2d 599, 602 (9th Cir. 1987) (quoting Young v. United States Parole Comm'n, 682 F.2d 1105, 1109 (5th Cir. 1982)).
Here, Lay does not provide summary judgment evidence which would tend to establish that he is a member of a protected class or that the defendants' actions were the result of purposeful or invidious discrimination. Given these circumstances, the Court can not find that Lay is entitled to summary judgment on his claims. The Motion for Summary Judgment and the Amended Motion for Summary Judgment should be denied.
VI. RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that:
1. The Motion to Dismiss filed by the Louisiana Judiciary Commission (Rec. Doc. No. 28) be DENIED.
2. The Motion to Dismiss filed by Steven Scheckman (Rec. Doc. No. 3) be DENIED.
3. The Motion to Strike with Sanctions (Rec. Doc. No. 9) filed by Lay be DENIED.
4. The Motion for Summary Judgment (Rec. Doc. No. 21) and the Amended Motion for Summary Judgment (Rec. Doc. No. 37) filed by Lay be DENIED.
5. The Motion for Sanctions (Rec. Doc. No. 43) filed by Lay be DENIED.
6. The Motion for Sanctions (Rec. Doc. No. 46) filed by Lay be DENIED.
7. The Motion for Summary Judgment (Rec. Doc. No. 64) filed by Lay be DENIED as moot.
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within ten (10) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir. 1996).