Deters v. Davis
| Decision Date | 14 January 2011 |
| Docket Number | Civil Action No. 3: 11-02-DCR |
| Parties | ERIC C. DETERS, Plaintiff, v. BRUCE K. DAVIS, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Kentucky |
This matter is pending for consideration of Plaintiff Eric C. Deters' Motion for a Preliminary Injunction. [Record No. 6] On January 14, 2011, the Court held a hearing on the matter and heard argument from each party. Being sufficiently advised, and for the following reasons, the Court will deny Deters' motion.
Plaintiff Deters is in the midst of a disciplinary proceeding before the Kentucky Bar Association. While such proceedings are typically conducted privately, Deters has chosen to bring the nature and subject of his disciplinary problems public through the filing of his Complaint. He has not requested that any part of the record be placed under seal.
Deters is currently under charge for six different violations. [Record No. 1, ex. 5, p. 1] Four other disciplinary investigations against Deters are currently pending: two awaitingaction from the Kentucky Courts and two awaiting submission to the Inquiry Commission. [Record No. 1, ex. 25, p. 4]
Frank Doheny, Jr. served as the trial commissioner for Deters' disciplinary proceedings. On June 21 and 22, Commissioner Doheny held a hearing on the matter. The Bar Counsel presented evidence of the infractions and Deters was permitted to present his own evidence. During the proceedings, two pieces of information came to light which Deters now claims are a basis for the recusal of the trial commissioner.
First, information was provided that Linda Ash, a law partner of Commissioner Doheny, took over representation of a client after the client had fired Deters and filed a bar complaint against him. [Record No. 1, p. 8] Ash completed the matter and charged the clients a fee of $25,000. [Id.] Deters claims that Commissioner Doheny is now biased as a result of his indirect receipt of a portion of that fee from clients who are now acting as witnesses in the bar disciplinary hearing. [Id.]
Ms. Ash did not represent the clients at the hearing or in the bar matter. [Record No. 1, ex. 6, p. 20] At the disciplinary hearing, when Ms. Ash's name came up as the counsel that took over the case after Deters was fired, Commissioner Doheny disclosed that Ash was a partner in his firm and asked the parties whether it presented a problem to either of them. [See Record No. 1, ex. 6, p. 18] Mr. Deters responded: [Record No. 1, ex. 6, p. 18-19] When pressed, Deters stated again "It's okay, it's alright, "and "I'm not worried about it." [Record No. 1, ex. 6, p. 19] However, Deters now argues that the conflict is blatantly obvious and that it is the equivalent of the Judge's law partner representing the plaintiffs in a matter before him. [Record No. 1, p. 8] Deters argues the conflict constitutes real bias and creates an appearance of impropriety. [Id.]
Second, during the disciplinary hearing Commissioner Doheny indicated that he had spoken with one of the witnesses (Ruth Baxter) on a prior occasion. [Record No. 1, ex. 5, p. 8] When Baxter was called to testify, Commissioner Doheny greeted her as follows:
Good morning Mrs. Baxter, I'm Frank Doheny. I'm the hearing officer on this case and you and I have, at least, talked on the phone in the past. I don't know if we've ever actually met or not. But in any event, would you please raise your right hand.
[Record No. 1, ex. 5, p. 8] Deters alleges that this comment revealed an apparent conflict for the trial commissioner. Deters also asserts that a number of other comments Commissioner Doheny made during the proceeding were adverse to his position and revealed bias and conflict of interest. [See Record No. 1, ex. 5, pp. 1-20]
On November 11, 2010, Deters submitted a motion for recusal. [Id.] In his motion, he argued the above points and asked that Commissioner Doheny recuse himself from the proceeding. [Id.] Bar Counsel submitted a response on November 15, 2010 [Record No. 1, ex. 6, pp. 1-5] and Deters submitted a reply [Record No. 1, ex. 6, pp. 7-13]. On December 3, 2010, Commissioner Doheny issued his ruling denying Deters' motion. [Record No. 1, ex. 6, pp. 15-23] Commissioner Doheny found the motion "flimsy at best, " but nevertheless provided full justification for his decision against recusal. [Id.]
Deters attempted to file affidavits requesting Commissioner Doheny's recusal to the Disciplinary Clerk of the Kentucky Bar Association [Record No. 1, p. 10] and the Clerk of the Kentucky Supreme Court [Id., p. 12]. Both declined to file the affidavit citing specific rules of procedure that govern the timing and filing of motions. [Id., pp, 10, 12] On December 27, 2010, Deters sent an affidavit directly to the Chief Justice of the Supreme Court. [Id., p. 12] The Chief Justice signed a "Filing of Unauthorized Pleadings" and the affidavit was returned to Deters. [Id., pp. 12, 13] There is no indication or evidence suggesting that either Defendant Susan Greenwell, Disciplinary Clerk for the Kentucky Bar Association, Defendant Susan Stokley Clary, Clerk of the Supreme Court of Kentucky, or Chief Justice John D. Minton, Jr. of the Supreme Court of Kentucky acted outside the rules in declining to accept Deters' materials for filing.
On January 6, 2011, Deters filed a complaint in this Court. [Record No. 1] In his complaint, he first outlines the history of his case and requests that the Court review Commissioner Doheny's decision denying recusal. [Id.] He then alleges a claim under 42 U.S.C. § 1983 asserting that the ongoing proceeding violates his rights under the First and Fourteenth Amendments to the United States Constitution. [Id., p. 13-14] Deters also requests injunctive relief under Rule 65 of the Federal Rules of Civil Procedure. [Id., p. 22] He contends that the recusal issue "must be heard" and that he is entitled to either a preliminary injunction or restraining order to prevent Commissioner Doheny from issuing his recommendation in the case. [Id., p. 13-14] On January 12, 2011, Deters filed a separate motion for a preliminary injunction. [Record No. 6]
"A preliminary injunction is an extraordinary remedy which should be granted only if the movant carries his or her burden of proving that the circumstances clearly demand it." Overstreet v. Lexington-Fayette Urban County Gov't, 305 F.3d 566, 573 (6th Cir. 2002). In deciding whether the circumstances demand a preliminary injunction, the Court must "weigh carefully the interests on both sides." Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975). The Sixth Circuit has developed a well-settled, four-factor test to direct the Court's inquiry. See, e.g., Int'l Longshoremen's Ass'n v. Norfolk Southern Corp., 927 F.2d 900, 903 (6th Cir. 1991), cert. denied, 112 S. Ct. 63 (1991). The Court should consider: (1) whether there is a strong or substantial likelihood of success on the merits; (2) whether an injunction is necessary to prevent irreparable harm to the plaintiff; (3) whether granting the injunction will cause harm to others, including the defendant; and (4) whether the public interest favors granting the injunction. Id.
There is no rigid formality required in applying these factors and they need not be given equal weight, they are meant to guide the Court in exercising its discretion. In re Eagle-Pitcher Indus., Inc., 963 F.2d 855, 859 (6th Cir. 1992). However, of all the factors, courts generally consider the plaintiffs likelihood of success on the merits to be most important. Lancor v. Lebanon Housing Authority, 760 F.2d 361, 362 (1st Cir. 1985); Systematic Recycling, LLC v. City of Detroit, 685 F. Supp. 2d 663, 671 (E.D. Mich. 2010).
The plaintiff bears the burden of proving that an injunction is proper. See Overstreet, 305 F.3d at 573.
In the present case, the first — and most important — question is whether Deters is likely to ultimately succeed with the claims that have been asserted. To satisfy his burden on this element, Deters must show he has "a strong or substantial likelihood of success on the merits." Mason County Med. Ass'n v. Knebel, 563 F.2d 256, 261 (6th Cir. 1977). This is a much more stringent standard than applied in the Kentucky courts. See Norsworthy v. Ky. Bd. ofMed. Licensure, No. 2008-0918, 2009 Ky. LEXIS 94, at *11 (May 21, 2009) . Under state law, a party seeking injunctive relief need only show the existence of a "substantial question" and a "possibility" of success. Id. However, in this Court, Deters must demonstrate that he has a strong likelihood of succeeding on the merits of his case. Mason County Med. Ass'n, 563 F.2d at 261; see also Taylor Novelty, Inc. v. Taylor, 816 F.2d 682 (6th Cir. 1987) (). Having reviewed the pleadings, the Court concludes that Deters' complaint shows very little likelihood of success on the merits; and that conclusion is charitable to Deters.
Deters' complaint essentially alleges four different issues. First, he asserts that Commissioner Doheny's recusal decision was improper and, therefore, the issue "must be heard" before the proceeding should be permitted to continue. In other words, he seeks review of Commissioner Doheny's decision. However, this Court lacks...
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