877 F.2d 463 (6th Cir. 1989), 87-1616, Morrison v. Lipscomb

Docket Nº:87-1616.
Citation:877 F.2d 463
Party Name:Curtis W. MORRISON, Plaintiff-Appellant, v. Judge Willie LIPSCOMB and Judge Harold Ryan, Defendants, Judge Adam Shakoor and Does I Thru V, Defendants-Appellees.
Case Date:June 08, 1989
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 463

877 F.2d 463 (6th Cir. 1989)

Curtis W. MORRISON, Plaintiff-Appellant,


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

June 8, 1989

Argued Nov. 10, 1988.

Page 464

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.


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

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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.


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...

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