Morrison v. Lipscomb

• Decision Date: 08 June 1989
• Docket Number: No. 87-1616,87-1616
• Citation: 877 F.2d 463
• Parties: Curtis W. MORRISON, Plaintiff-Appellant, v. Judge Willie LIPSCOMB and Judge Harold Ryan, Defendants, Judge Adam Shakoor and Does I Thru V, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 463

877 F.2d 463

Curtis W. MORRISON, Plaintiff-Appellant, v. Judge Willie LIPSCOMB and Judge Harold Ryan, Defendants Judge Adam Shakoor and Does I Thru V, Defendants-Appellees.

No. 87-1616.

United States Court of Appeals Sixth Circuit.

Argued Nov. 10, 1988.

Decided June 8, 1989.

Curtis W. Morrison, Detroit, Mich., pro se.

Vincent J. Leone, Asst. Atty. Gen., Tort Defense Div., Michael McDaniel (argued), Lansing, Mich., for defendants-appellees.

Before ENGEL, Chief Judge, and WELLFORD and BOGGS, Circuit Judges.

BOGGS, Circuit Judge.

Curtis W. Morrison appeals the district court's dismissal of his action under 42 U.S.C. Sec. 1983. Morrison sued three Michigan state court judges (Judges Lipscomb, Ryan, and Shakoor) and five unknown persons for various alleged deprivations of his constitutional rights. The district court dismissed all of Morrison's claims. Another panel of this court, acting pursuant to Rule 9 of this Court, summarily affirmed the dismissal of the claims against Lipscomb and Ryan because of absolute judicial immunity; it found, however, that the dismissal of the claim against Shakoor could not be summarily affirmed. The case was then referred to this panel for oral argument. We affirm the lower court's dismissal of the claim against Shakoor, but on different grounds than that given by the court below. We also reverse the district court's denial of Morrison's motion to amend his complaint and that court's grant of attorney's fees and costs to the defendants.

I

This case concerns various attempts of Morrison, a landlord, to retrieve some of his rental properties from allegedly delinquent tenants. In 1986, Morrison sued in state court to recover from a tenant certain real property he owned. In October 1986, the case was tried in front of Judge Lipscomb. The court held against Morrison, and the case was dismissed.

Morrison then initiated another action in state court to recover real property. On November 24, 1986, Judge Ryan held a hearing on the matter and gave judgment to the plaintiff, holding that he had a right to possession of the property. After Morrison refused the judge's suggestion that he voluntarily give the tenants two weeks to move out rather than the minimum ten days required by law, Judge Ryan ordered that Morrison not be given a writ of restitution for fourteen days. ¹

In the meantime, on November 7, 1986, Judge Adam Shakoor, purportedly acting in his capacity as Chief Judge of the 36th District Court, declared a moratorium on the issuance of writs of restitution. Though the record does not contain a copy of the order, the parties agree that this moratorium was to be in effect from December 15, 1986 through January 2, 1987, in observance of the holiday season. This moratorium was apparently a traditional practice.

Morrison alleges that he filed a petition for the writ of restitution on December 9, 1986, after the fourteen-day stay ordered by Judge Ryan expired. However, he alleges that the office of the clerk of the court, citing the moratorium ordered by the court, refused to process the petition, although the moratorium was not scheduled to commence until December 15. Morrison then filed this suit, alleging that Lipscomb and Ryan had deprived him of his property without due process and that the Shakoor moratorium violated "the separation of church and state." Morrison later sought to amend his complaint to add the clerk of the court, John Paul, as a defendant. (The clerk was identified in the original complaint as Doe I.) Morrison alleges that the clerk, by not processing his writ, violated his rights to equal protection and due process under the fourteenth amendment of the Constitution.

The district court held, and this court has affirmed, that Judges Lipscomb and Ryan are immune to suit because they were acting in a judicial capacity. The court also dismissed the suit against Shakoor. The court stated:

[The moratorium] probably cannot be seen as a judicial act. However, even though it is not such an act, the complaint will be dismissed with respect to this defendant. The complaint does not state a claim of constitutional dimension. There is a state process for the relief the plaintiff seeks here, and federal courts cannot provide a forum for this complaint against the state district court's activities.

The court also denied Morrison's motion to amend in order to add the clerk of the court because the clerk was only following Shakoor's order. Lastly, the court awarded the defendants fees and costs pursuant to Rule 11 of the Federal Rules of Civil Procedure because Morrison filed his suit without making a "reasonable inquiry" as to the law. Morrison then appealed.

II

The threshold question in this action is whether Shakoor is entitled to judicial immunity. Morrison contends, and the district judge appeared to agree, that Shakoor was acting in an administrative, not a judicial, capacity when he issued the moratorium. The Supreme Court recently dealt with the subject of judicial immunity in Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988).

The Court in Forrester, which involved a state judge who allegedly demoted and discharged one of his employees on account of her sex, limited absolute judicial immunity to those acts which are truly judicial acts and are not simply administrative acts. Id., 108 S.Ct. at 544 (The cases "suggest an intelligible distinction between judicial acts and the administrative, legislative, or executive functions that judges may on occasion be assigned by law to perform."). This limitation is imposed even if the administrative function is essential to the legal system. For example, in Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U.S. 719, 731, 100 S.Ct.1967, 1974, 64 L.Ed.2d 641 (1980), the Court held that the Supreme Court of Virginia was acting in a legislative, not a judicial, capacity when it issued a Bar Code governing the actions of attorneys. The Court concluded: "Although it is clear that under Virginia law the issuance of the Bar Code was a proper function of the Virginia Court, propounding the Code was not an act of adjudication but one of rulemaking." Ibid. ²

The Court has thus attempted to give a flexible definition of what constitutes a judicial act. Clearly, the paradigmatic judicial act is the resolution of a dispute between parties who have invoked the jurisdiction of the court. Forrester, 108 S.Ct. at 544. After this easy case, though, the lines are not always clear. The Court has relied on a functional analysis to determine which acts are protected, meaning that one must determine whether the actions are truly judicial acts or "acts that simply happen to have been done by judges." Ibid. In the words of the Court, "immunity is justified and defined by the functions it protects and serves, not by the persons to whom it attaches." Ibid. (emphasis supplied). Thus, the reason for the decision in Forrester is clear. A judge is not taking a judicial act when he fires his personnel. He is acting as an employer who is also a judge.

This case presents a more difficult problem. Mich. Comp. Laws Sec. 600.8212 provides for the election, by the judges of the court, of a presiding judge of a judicial district. The statute also states that the presiding judge, in this case, Shakoor, "shall have full authority and control, subject to supervision of the supreme court, over all matters of administration." This authority is provided for in Mich. Comp. Laws Sec. 600.219 which gives the supreme court (and, through Sec. 600.8212, the presiding judge of the district court, as supervised by the supreme court) "the authority to issue any writs, directives, and mandates that it judges necessary and expedient to effectuate its determinations, and to take any action it deems proper to facilitate the proper administration of justice." ³

Assuming that Shakoor issued his moratorium under his authority to facilitate the proper administration of justice, the question becomes whether that was a judicial act. The defendants contend that the moratorium, while not an act of strict adjudication between parties, nevertheless is a judicial act in that no one but a judge could issue such an order. In other words, they argue that the order may not be an adjudication, but it governs how the adjudications will be pursued. The legislature, the defendants contend, does not issue specific technical rules on how to process requests for certain writs; it is the role of a court, and only a court, to fulfill this role. The nature of this act, the defendants conclude, unlike that of the firing of the employee in Forrester, is judicial, not simply administrative. See Sparks v. Character & Fitness Committee, 859 F.2d 428, 434 (6th Cir.1988) (Court upheld immunity for decisions concerning the admission of an applicant to the bar, stating: "Some functions performed by courts are so inherently related to the essential functioning of the courts as to be traditionally regarded as judicial acts.")

However, simply because rule making and administrative authority has been delegated to the judiciary does not mean that acts pursuant to that authority are judicial. This proposition is equally true if the authority has been traditionally given to the courts. Prescribing a code of civil procedure (or, in Supreme Court of Virginia, a bar code) may be done by the courts, but it could, without doubt, be done by the legislature. The legislature could also pass a statute prohibiting the issuance of writs of possession during the holiday season, just as they passed the statute governing the minimum number of days one must wait before issuing such a writ. Thus, under this analysis, while Shakoor may have had the authority to do what he did, that authority was not judicial authority. Rather, it was delegated administrative authority.

We hold that judicial immunity does not apply. Any time an action taken by a judge is not an...