Cate v. Oldham, No. 82-5392

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore KRAVITCH, HENDERSON and ANDERSON; KRAVITCH
Citation707 F.2d 1176
PartiesKenneth R. CATE, Esquire, and Maher, Overchuck, Langa & Cate, a Florida Association, Plaintiffs-Appellants, v. Gordon G. OLDHAM, Jr., and State of Florida, Defendants-Appellees.
Docket NumberNo. 82-5392
Decision Date02 June 1983

Page 1176

707 F.2d 1176
Kenneth R. CATE, Esquire, and Maher, Overchuck, Langa &
Cate, a Florida Association, Plaintiffs-Appellants,
v.
Gordon G. OLDHAM, Jr., and State of Florida, Defendants-Appellees.
No. 82-5392.
United States Court of Appeals,
Eleventh Circuit.
June 2, 1983.

Page 1179

W.L. Kirk, Jr., Rumberger, Kirk, Caldwell & Cabaniss, Dennis J. Wall, Orlando, Fla., for plaintiffs-appellants.

David R. Best, Asst. Atty. Gen., Kimberly A. Ashby, James E. Slater, Carl D. Motes, Orlando, Fla., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before KRAVITCH, HENDERSON and ANDERSON, Circuit Judges.

KRAVITCH, Circuit Judge:

Petitioners-appellants, Kenneth Cate, individually, and the law firm Maher, Overchuck, Langa and Cate, P.A. (collectively referred to as "Cate"), brought this action under 42 U.S.C. Sec. 1983 asking the federal court to enjoin an ongoing civil action for malicious prosecution in the state courts of Florida and seeking declaratory relief that the maintenance of the state action violates their constitutional rights. The State of Florida and Florida State Attorney Gordon G. Oldham, Jr. are plaintiffs in the state malicious prosecution against Cate and are the defendants-appellees in this federal proceeding. The district court dismissed the Sec. 1983 action as to the State of Florida and denied injunctive relief against Oldham. Cate appeals the denial of injunctive relief as to both defendants.

Factual Background

Mary Jean Bradham was beaten to death by her estranged husband Ernest Bradham. On various occasions prior to her death she had reported to the police having been beaten by Bradham and he had been arrested for battery. The administrator of the deceased's

Page 1180

estate instituted a wrongful death action alleging that the State of Florida and State Attorney Oldham negligently failed successfully to prosecute Ernest Bradham for the reported batteries and that such negligence was the direct and proximate cause of the death. Petitioner-appellant Cate represented the estate in that action. The state court awarded summary judgment on behalf of the State and Oldham. That judgment was affirmed on appeal; however, the award of attorney's fees to the defendants was reversed on the ground that the action was not frivolous. Russell v. State of Florida, 417 So.2d 1119 (Fla. 5th DCA 1982).

Subsequently, the State of Florida and Oldham, individually and in his capacity as State Attorney, filed common law actions for malicious prosecution in the state courts naming petitioners-appellants as defendants. Appellant filed a motion to dismiss alleging the State, and state officials who have been sued in their official capacities, may not, consistently with the First Amendment, be plaintiffs in malicious prosecution actions against persons who have exercised their First Amendment right to petition the government by bringing legal actions against the State and state officials. Alternatively, he argued that there was no state statutory authority for the State and the State Attorney to be plaintiffs in malicious prosecution actions. The motion to dismiss was denied and the state court of appeals denied petition for writ of certiorari for interlocutory review and suggestion for certification to the Supreme Court of Florida.

This action pursuant to Sec. 1983 was filed in federal district court simultaneously with the petition for writ of certiorari to the state appellate court. The district court dismissed the action against the State of Florida, concluding that the State cannot be a "person" under Sec. 1983 and therefore was not properly named a defendant. After ruling that abstention under the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) was inappropriate on the facts of this case, the court below denied injunctive relief against continued prosecution of the malicious prosecution action by Oldham, finding that Cate had shown neither a substantial likelihood of success on the merits nor the presence of irreparable injury.

We affirm the dismissal of the Sec. 1983 action against the State of Florida, but for a reason different than that relied upon by the district court. We grant preliminary injunctive relief against Oldham's continuance of the malicious prosecution action pending a response to the questions of state law we today certify to the Supreme Court of Florida and our decision in light of the answers to be received.

I. The State of Florida as Defendant

The Eleventh Amendment

Absent waiver of such immunity, the Eleventh Amendment to the United States Constitution prohibits suits in federal court against a state by citizens of another state. 1 It has long been interpreted also to preclude suits against a state by citizens of that state. Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1350-51, 39 L.Ed.2d 662 (1974); Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 342 (1890).

The Eleventh Amendment does not bar all claims against officers of the state, however; it does not prohibit an action against a state official who has acted outside the scope of his statutory authority or, even if within his authority, pursuant to authority that is unconstitutional. Florida Dept. of State v. Treasure Salvors, Inc., --- U.S. ----, ----, 102 S.Ct. 3304, 3316, 73 L.Ed.2d 1057, 1071 (1982). Interpretation of the Eleventh Amendment has led to maintenance of the "legal fiction" that suits against state officers, even when the suit is directed to the officers' actions in their official capacities and actions approved by

Page 1181

the upper eschelons of state executive decisionmakers, are not against the state and, therefore, are not barred by the Eleventh Amendment. 2 Id. at ----, 102 S.Ct. at 3314, 73 L.Ed.2d at 1068; Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).

Because "the Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar," Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662 (1974), the initial determination of whether a suit is one against a state official or the state itself is crucial.

In attempting to decide whether suits nominally against state officials are in truth suits against the state and therefore outside the jurisdiction of the federal courts, the Supreme Court has distinguished between cases in which monetary damages as opposed to prospective, injunctive relief is sought. Quern v. Jordan, 440 U.S. 332, 346-48, 99 S.Ct. 1139, 1147-49, 59 L.Ed.2d 358 (1979); Edelman v. Jordan, 415 U.S. at 663, 667-68, 94 S.Ct. at 1355, 1357-58. See also Scheuer v. Rhodes, 416 U.S. 232, 237-38, 94 S.Ct. 1683, 1686-87, 40 L.Ed.2d 90 (1974); Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945). Where the damages sought clearly would come from the public treasury and not from the named individual defendant, it is impossible to maintain the fiction that the suit is not against the state. Edelman v. Jordan, 415 U.S. 663-66, 94 S.Ct. 1355-57; Ford Motor Co. v. Department of Treasury, 323 U.S. at 464, 65 S.Ct. at 350.

Appellant argues that because the only remedy sought in this case is prospective, injunctive relief as opposed to money damages, the State of Florida may be a Sec. 1983 defendant in federal court. Whether or not a state may be a Sec. 1983 defendant when Eleventh Amendment immunity has been waived or otherwise abrogated is a question involving interpretation of Sec. 1983 which we do not decide. 3 Appellant fails to

Page 1182

perceive, however, that when the state is the named party defendant the prospective injunctive relief/monetary damages distinction provides no basis for concluding Eleventh Amendment immunity does not apply. As the Supreme Court explained in Cory v. White, 457 U.S. 85, 90, 102 S.Ct. 2325, 2329, 72 L.Ed.2d 694, 699 (1982) (footnote omitted): "Edelman did not hold, however, that the Eleventh Amendment never applies unless a judgment for money payable from the state treasury is sought. It would be a novel proposition indeed that the Eleventh Amendment does not bar a suit to enjoin the state itself simply because no money judgment is sought."

Thus, because appellant directly named the State of Florida in this Sec. 1983 action and the State is cloaked in Eleventh Amendment immunity, the federal court has no jurisdiction over this facet of the action. Although Eleventh Amendment immunity may be waived in some circumstances, there is no basis for finding waiver in this case. 4 Accordingly, we affirm the

Page 1183

dismissal of the action against the State of Florida, but on Eleventh Amendment, not statutory, grounds.

II. Oldham as Defendant

This leaves the Sec. 1983 request for injunctive relief against State Attorney Oldham.

Younger Abstention

The district court properly concluded that abstention under the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) was inappropriate. In Younger the Supreme Court held that in the interest of federalism federal courts should abstain from enjoining ongoing state criminal proceedings absent a showing of bad faith prosecution, harassment, or extraordinary instances of irreparable harm, id. at 44, 53-54, 91 S.Ct. at 750, 754-755; see also Henry v. First National Bank of Clarksdale, 595 F.2d 291, 300 (5th Cir.1979), 5 cert. denied sub nom. Claiborne Hardware Co. v. Henry, 444 U.S. 1074, 100 S.Ct. 1020, 62 L.Ed.2d 756 (1980); reversing, in Younger situations, the principle of abstaining only in extraordinary circumstances. See Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976); Propper v. Clark, 337 U.S. 472, 492, 69 S.Ct. 1333, 1344, 93 L.Ed. 1480 (1949); Scheinberg v. Smith, 659 F.2d 476, 480 (5th Cir. Unit B 1981). 6

Application of the Younger doctrine to ongoing state civil proceedings has been limited to those civil...

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  • Chaplaincy of Full Gospel Churches v. England, No. 05-5143.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 7 Julio 2006
    ...v. McMillan, 866 F.2d 788, 795 (5th Cir. 1989); Romero Feliciano v. Torres Gaztambide, 836 F.2d 1, 4 (1st Cir.1987); Cate v. Oldham, 707 F.2d 1176, 1188 (11th Cir. 1983). The number of cases applying Elrod to alleged Establishment Clause violations is comparatively meager, see McCreary Cty.......
  • Jonathan Paul Boyd v. Steckel, Case No.: 2:10–cv–688–MEF.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • 12 Noviembre 2010
    ...Cir.1989) (“Preliminary injunctions are issued when drastic relief is necessary to preserve the status quo.”) (citing Cate v. Oldham, 707 F.2d 1176 (11th Cir.1983); Bannum, Inc. v. City of Fort Lauderdale, Fla., 657 F.Supp. 735 (S.D.Fla.1986)), cert. denied, Quality Prof'l Nursing, Inc. v. ......
  • Pittman v. Cole, No. Civ.A. 00-0865-CB-L.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • 17 Octubre 2000
    ...free speech, due to its intangible nature, cannot be redressed through monetary damages. See Cheffer, 6 F.3d 705; and, Cate v. Oldham, 707 F.2d 1176, 1189 (11th Page 1310 Here, the Plaintiffs are not only subject to self-censorship, but additionally risk disciplinary action for what might l......
  • Butler v. Alabama Judicial Inquiry Com'n, No. Civ.A. 00-D-976-N.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • 28 Julio 2000
    ...constitutes irreparable injury justifying the grant of a preliminary injunction [or a temporary restraining order].'" Cate v. Oldham, 707 F.2d 1176, 1188 (11th Cir. 1983) (quoting Deerfield Medical Center v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. Unit B 1981)); see also Elrod ......
  • Request a trial to view additional results
305 cases
  • Chaplaincy of Full Gospel Churches v. England, No. 05-5143.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 7 Julio 2006
    ...v. McMillan, 866 F.2d 788, 795 (5th Cir. 1989); Romero Feliciano v. Torres Gaztambide, 836 F.2d 1, 4 (1st Cir.1987); Cate v. Oldham, 707 F.2d 1176, 1188 (11th Cir. 1983). The number of cases applying Elrod to alleged Establishment Clause violations is comparatively meager, see McCreary Cty.......
  • Jonathan Paul Boyd v. Steckel, Case No.: 2:10–cv–688–MEF.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • 12 Noviembre 2010
    ...Cir.1989) (“Preliminary injunctions are issued when drastic relief is necessary to preserve the status quo.”) (citing Cate v. Oldham, 707 F.2d 1176 (11th Cir.1983); Bannum, Inc. v. City of Fort Lauderdale, Fla., 657 F.Supp. 735 (S.D.Fla.1986)), cert. denied, Quality Prof'l Nursing, Inc. v. ......
  • Pittman v. Cole, No. Civ.A. 00-0865-CB-L.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • 17 Octubre 2000
    ...free speech, due to its intangible nature, cannot be redressed through monetary damages. See Cheffer, 6 F.3d 705; and, Cate v. Oldham, 707 F.2d 1176, 1189 (11th Page 1310 Here, the Plaintiffs are not only subject to self-censorship, but additionally risk disciplinary action for what might l......
  • Butler v. Alabama Judicial Inquiry Com'n, No. Civ.A. 00-D-976-N.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • 28 Julio 2000
    ...constitutes irreparable injury justifying the grant of a preliminary injunction [or a temporary restraining order].'" Cate v. Oldham, 707 F.2d 1176, 1188 (11th Cir. 1983) (quoting Deerfield Medical Center v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. Unit B 1981)); see also Elrod ......
  • Request a trial to view additional results

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