Ashford v. Hendrix

• Decision Date: 30 July 2020
• Docket Number: 8:20-CV-36
• Parties: TIMOTHY L. ASHFORD, and TIMOTHY L. ASHFORD, PC LLO, Plaintiffs, v. MARCENA HENDRIX, in her official capacity and her individual capacity; STATE OF NEBRASKA, DOUGLAS COUNTY, JOHN DOES, 1-1000, and JANE DOES, 1-1000, Defendants.
• Court: U.S. District Court — District of Nebraska

TIMOTHY L. ASHFORD, and TIMOTHY L. ASHFORD, PC LLO, Plaintiffs, v. MARCENA HENDRIX, in her official capacity and her individual capacity;STATE OF NEBRASKA, DOUGLAS COUNTY,JOHN DOES, 1-1000, and JANE DOES, 1-1000, Defendants.

8:20-CV-36

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

July 30, 2020

MEMORANDUM AND ORDER

I. INTRODUCTION

Timothy L. Ashford and Timothy L. Ashford, PC LLO brought this action seeking damages for numerous alleged constitutional violations. See Filing 1. This matter is now before the Court on defendants Marcena Hendrix's and the State of Nebraska's ("the State's") Motion to Dismiss Ashford's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Filing 19. Hendrix and the State (collectively "Defendants") move to dismiss or stay based on sovereign immunity, judicial immunity, qualified immunity, and abstention. Filing 19; Filing 21. For the reasons stated below, the Court grants Defendants' motion and dismisses all claims against them based on sovereign and judicial immunity and failure to state claims.

II. BACKGROUND

Ashford is a Nebraska resident and has been a licensed attorney for over twenty-six years. Filing 1 at 3. His co-plaintiff is his law firm. Filing 1 at 3. The present case arose out of Ashford's representation of an individual in a guardianship case in Douglas County Probate Court. Filing 1 at 8. In that case, he submitted requests for attorneys' fees to Hendrix, a Douglas County Court Judge. Filing 1 at 3, 9. Hendrix ultimately reduced Ashford's requested attorney's fees. Filing 1 at 9-10. She also filed a bar complaint against him with Nebraska's Office for Counsel for Discipline. Filing 1 at 21. As a result, Ashford filed this action seeking damages for a plethora of claimed constitutional and statutory violations. See Filing 1 at 18-34 (enumerating seven causes of action¹ including violating the Constitution, "JUDICIAL IMMUNITY DOES NOT APPLY," "DEFENDANT HENDRIX SEEKS TO RAILROAD THE PLAINTIFF," and "DEFENDANT HENDRIX PLAYED THE SHELL GAME THREE CARD MONTY AND COMMITTING MAIL FRAUD" and seeking general, special, and punitive damages plus costs and fees).

Turning to the procedural history of this case, the Court notes Ashford has previously filed unsuccessful suits pertaining to his underlying claims. In particular, Ashford filed suit in the District Court of Douglas County, Nebraska, against the Office for Counsel for Discipline, and that case was subsequently dismissed based on immunity in August of 2019. See Filing 16-5. Prior to dismissal of that suit, Ashford filed a separate suit in this Court which the Honorable John M. Gerrard sua sponte dismissed on abstention grounds, and which ruling the Eighth Circuit Court of Appeals subsequently affirmed. Ashford v. Office for Counsel for Discipline, No. 8:19-CV-243, 2019 WL 2371662 (D. Neb. June 5, 2019), aff'd, 805 F. App'x 446 (8th Cir. 2020). Prior to the Eighth Circuit's affirmance, Ashford again filed suit in the District Court of Douglas County, Nebraska, seeking damages for the same causes of action he now raises based on identical facts. Compare Filing 20-2, with Filing 1.

On January 21, 2020, Ashford filed this action seeking a litigious fourth bite of the bar-complaint-apple. Filing 1. He brings the action for damages pursuant to the Nebraska's Political Subdivisions Tort Claims Act ("PSTCA"), Neb. Rev. Stat. § 13-901, et seq.; the Nebraska StateTort Claims Act ("STCA"), Neb. Rev. Stat. § 81-8,209 et seq.; 42 U.S.C. § 1981; 42 U.S.C. § 1983; Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq.; and the United States and Nebraska Constitutions. Filing 1 at 1. Hendrix and the State then filed the present motion.

III. ANALYSIS

A. Standard of Review

1. Lack of Subject-Matter Jurisdiction under Federal Rule of Civil Procedure 12(b)(1)

"Rule 12(b)(1) . . . governs challenges to subject matter jurisdiction." Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990). "In order to properly dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the complaint must be successfully challenged on its face or on the factual truthfulness of its averments." Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993). "In a facial challenge to jurisdiction, the court presumes all of the factual allegations concerning jurisdiction to be true and will grant the motion only if the plaintiff fails to allege an element necessary for subject matter jurisdiction." Young Am. Corp. v. Affiliated Comput. Servs. (ACS), Inc., 424 F.3d 840, 843-44 (8th Cir. 2005) (citing Titus, 4 F.3d at 593). In a factual challenge to jurisdiction, "the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Osborn, 918 F.2d at 730.

2. Failure to State a Claim Under Federal Rule of Civil Procedure 12(b)(6)

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). To satisfy this requirement, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Corrado v. Life Inv'rs Ins. Co. of Am., 804 F.3d 915, 917 (8th Cir. 2015) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant isliable for the misconduct alleged." Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)).

In analyzing a motion to dismiss, the Court must "accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the nonmoving party, but [is] not bound to accept as true '[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements' or legal conclusions couched as factual allegations." McDonough v. Anoka Cty., 799 F.3d 931, 945 (8th Cir. 2015) (citations omitted) (quoting Iqbal, 556 U.S. at 678). "When considering a Rule 12(b)(6) motion, the court generally must ignore materials outside the pleadings, but it may consider some materials that are part of the public record or do not contradict the complaint, as well as materials that are necessarily embraced by the pleadings." Ashford v. Douglas Cty., 880 F.3d 990, 992 (8th Cir. 2018) (quoting Smithrud v. City of St. Paul, 746 F.3d 391, 395 (8th Cir. 2014)).

B. Discussion

While the Complaint cites an amalgamation of statutes throughout, lists assorted causes of action (with some not alleging claims but arguing against immunity), and discusses a variety of facts, it does provide a succinct statement of its legal bases:

Defendants are sued pursuant to the U.S. Constitution of the United States and the Nebraska Constitution, Neb. Rev. Stat. § 25-219, Neb. Rev. Stat. § Neb. Rev. Stat. §13-901 and § 81-8,213 and 28 U.S.C. § 2201, damages under 42 USC § 1981, 42 USC § 1983, Title VII and the US Constitution and the Nebraska Constitution.

Filing 1 at 4; see also Filing 1 at 1 (listing same bases for damages); Filing 1 at 18-32 (listing seven causes of action for damages).

While Ashford's causes of action are unclear, the Court will examine all of the following bases for recovery for the sake of thoroughness: (1) Nebraska's Political Subdivisions Tort Claims Act ("PSTCA"), Neb. Rev. Stat. § 13-901, et seq.; (2) the Nebraska State Tort Claims Act("STCA"), Neb. Rev. Stat. § 81-8,209 et seq.; (3) 42 U.S.C. § 1981; (4) 42 U.S.C. § 1983;² (5) Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq.; and (6) the Nebraska Constitution. Defendants move to dismiss all claims against them. Filing 19.

As an initial matter, the Court notes Defendants seek dismissal under both Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Filing 19 at 1; Filing 21 at 1-3. However, they do not specify which portion of their motion is pursuant to an alleged lack of subject-matter jurisdiction under Rule 12(b)(1) and which is for an alleged failure to state a claim under Rule 12(b)(6). As the Court reads Defendants' motion and briefing, their argument relating to the official-capacity claims for damages are based on the assertion that Defendants are protected by Eleventh Amendment immunity. See Filing 21 at 6-7.

Sovereign immunity is a jurisdictional question, and thus the Court construes this portion of Defendants' motion to be made under Rule 12(b)(1). See Jones v. United States, 255 F.3d 507, 511 (8th Cir. 2001) ("It is axiomatic that because sovereign immunity implicates our subject matter jurisdiction, the issue may not be waived, and the government may raise it at any stage." (citing Arneson v. Callahan, 128 F.3d 1243, 1245 n.3 (8th Cir. 1997); Preferred Risk Mut. Ins. Co. v. United States, 86 F.3d 789, 793 (8th Cir. 1996))). "[F]ederal courts may not entertain a private person's suit against a State" because of the Eleventh Amendment's grant of sovereign immunity to states. Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 254, 131 S. Ct. 1632, 179 L. Ed. 2d 675 (2011). "Congress can, however, abrogate this immunity or a state can waive it." Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 (8th Cir. 1999) (citing Atascadero State Hosp.v. Scanlon, 473 U.S. 234, 238, 105 S. Ct. 3142, 87 L. Ed. 2d 171 (1985)). "A federal court must examine each claim in a case to see if the court's jurisdiction over that claim is barred by the Eleventh Amendment." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984). Thus, the Court will examine the Complaint in an attempt to discern what claims Ashford alleges and address Defendants' Rule 12(b)(1) arguments.³

The Court reads the remainder of Defendants' motion as asserting arguments under Rule 12(b)(6). The Court will examine any failure to state a claim only after it analyzes sovereign immunity...