McAlester v. Brown, 72-2480 Summary Calendar.

• Citation: 469 F.2d 1280
• Decision Date: 05 December 1972
• Docket Number: No. 72-2480 Summary Calendar.,72-2480 Summary Calendar.
• Parties: James Oliver McALESTER et ux., Plaintiffs-Appellants, v. David H. BROWN, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

469 F.2d 1280 (1972)

James Oliver McALESTER et ux., Plaintiffs-Appellants, v. David H. BROWN, Defendant-Appellee.

No. 72-2480 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

December 5, 1972.

Eric Weisberg, Denison, Tex., for plaintiffs-appellants.

Joe A. Keith, Sherman, Tex., Charles H. Gullett, Denison, Tex., Ralph Elliott, Sherman, Tex., for defendant-appellee.

Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.

GOLDBERG, Circuit Judge:

This is an appeal from the granting of a motion to dismiss an action brought by plaintiffs-appellants, James Oliver McAlester and Ollie Mae McAlester, against defendant-appellee, Texas District Judge David H. Brown. The dispositive issue is whether on the instant allegations a suit brought under 42 U.S.C. § 1983 is barred by the doctrine of judicial immunity as enunciated in Pierson v. Ray, 1967, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288. The court below dismissed the action when it ruled (1) that at the time the operative facts occurred, Judge Brown was acting "within his judicial jurisdiction," and (2) that immunity thus attached. We are in complete agreement with both rulings and we affirm.

Although appellee sharply disputes several of appellants' allegations, the parties are in basic agreement regarding the central facts. It is hornbook law, however, that our function when reviewing the dismissal of a complaint on little more than the pleadings is to determine whether the allegations of the plaintiff, if taken as true, will support an action. Accordingly, we treat this appeal as resting on the facts pleaded by appellants.¹

Appellants allege that on the morning of August 31, 1970, they went to the Grayson County Courthouse in Sherman, Texas. They understood that their son was to stand trial on criminal charges that morning before appellee, who was Judge of the 59th District Court for Grayson and Collin Counties, Texas, and they intended to bring their son fresh clothing to wear to court. Their original complaint alleges that

"While at the Courthouse they went to the office of Judge Brown to learn when the trial would start. However, when Mr. Brown learned why they had come to his office, he lost his temper and told the McAlesters to get out or he would have them thrown in jail. The old couple became confused and frightened and didn\'t move quickly enough for Mr. Brown, so, Mr. Brown left to get a deputy sheriff.

"As the McAlesters left Mr. Brown\'s office and were preparing to depart the Defendant returned with a deputy sheriff, and ordered the deputy to arrest Mr. McAlester and carry him to jail, which the deputy did. There he was mugged and finger-printed and locked in a cell where he was kept until approximately 4:00 P. M. that evening, when he was finally released under orders of the Defendant."

Although Mr. McAlester was incarcerated for most of the day on August 31, 1970, a formal order adjudging him in contempt of court, nunc pro tunc, was not entered until October 20, 1971. At that time Judge Brown formally assessed as punishment for the contempt the time spent in jail by Mr. McAlester on August 31, 1970.

The central thesis of appellants' complaint is that only a minor misunderstanding occurred during their conversation with appellee, whereupon appellee overreacted and improperly exercised an autocratic, elephant-gun power to relieve his personal, non-judicial annoyance with a mosquito-sized problem. Appellants insist that they are without fault, that Mr. McAlester took no part whatsoever in the conversation, that any lack of haste in departing the judge's chambers was caused by old age and Mr. McAlester's deafness, and that the entire blame for the heat generated by the misunderstanding is attributable to Judge Brown's allegedly disagreeable disposition, testy character, and volatile temper.²

Based on the above version of the facts, appellants first brought a false imprisonment action in Texas state court. Appellants voluntarily dismissed that suit and filed the instant action in the United States District Court for the Eastern District of Texas. The federal suit primarily sought to recover damages for the "intentional deprivation of the Plaintiff's Constitutional right, as guaranteed by the Fourteenth Amendment, not to be deprived of liberty without due process of law." Additionally, appellants alleged pendent jurisdiction to hear the Texas common-law false imprisonment claim. See Hurn v. Oursler, 1933, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148.

Appellants recognize that Pierson v. Ray, supra, places a formidable roadblock in their path, and they seek to find a passable detour around it by making factual distinctions. In essence, appellants attempt to characterize the judge's behavior in their own case as falling without the broad borders of the immune area — acts committed within a judge's judicial jurisdiction. We are unable to accept that distinction and we hold that Judge Brown's action here fell squarely within the sheltered zone. We recognize that at the time of the altercation Judge Brown was not in his judge's robes, he was not in the courtroom itself, and he may well have violated state and/or federal procedural requirements regarding contempt citations. Nevertheless, we discern in this case four factors that, when taken together, compel the conclusion that Judge Brown was acting "in his judicial jurisdiction": (1) the precise act complained of, use of the contempt power, is a normal judicial function; (2) the events involved occurred in the judge's chambers; (3) the controversy centered around a case then pending before the judge; and (4) the confrontation arose directly and immediately out of a visit to the judge in his official capacity.

We do not mean to imply that we approve or condone a judge's use of his office to satisfy personal grievances, if that is what in fact occurred here. Nor do we suggest that our holding would be the same if this were a habeas corpus action. Rather, in this civil action we can only repeat the following language from the Supreme Court's opinion in Pierson v. Ray:

"Few

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