Hagerty v. Succession of Clement

• Decision Date: 17 December 1984
• Docket Number: No. 84-3353,84-3353
• Parties: John M. HAGERTY, Plaintiff-Appellant, v. SUCCESSION OF Laura McCloskey CLEMENT, et al., Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 217

749 F.2d 217

John M. HAGERTY, Plaintiff-Appellant, v. SUCCESSION OF Laura McCloskey CLEMENT, et al., Defendants-Appellees.

No. 84-3353

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Dec. 17, 1984.

James O. Manning, Metairie, La., for plaintiff-appellant.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Edward D. Wegmann, William J. Guste, Jr., Atty. Gen., Patricia Nalley Bowers, Lisa F. Keegan, New Orleans, La., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before WILLIAMS, JOLLY and HILL, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

The appellant brought this section 1983 action alleging a denial of his right to due process by a state trial judge and other defendants for refusing to grant him a continuance in his state court suit contesting his aunt's will. We affirm the district court's dismissal, and because his appeal is so clearly frivolous, we assess double costs and attorneys' fees against the appellant and his attorney.

I.

The appellant, John M. Hagerty, a nephew and closest living relative of Laura McCloskey Clement, brought suit to contest the probate of Clement's will. Clement died on April 5, 1978 at the age of ninety-six, and her will was probated the following day. Hagerty's intervention was filed in proper person and in forma pauperis on July 14, 1978, while he was incarcerated in a federal correctional institution. Hagerty sought to overturn the will on the grounds of fraud and lack of testamentary capacity.

After Hagerty was paroled he obtained an attorney who amended the pleadings and further alleged formal defects in the probated will. Trial was set for May 14, 1979, in the Orleans Parish Civil District Court in Louisiana. Hagerty's attorney, however, requested and was granted a continuance on May 3, 1979. Trial was reset for June 26, 1979, but a second continuance was requested by Hagerty's attorney and granted on June 21, 1979. On motion of the executor of Clement's estate, Thomas C. Keller, the case was again set for trial, this time on January 29, 1980. Hagerty's attorney, however, withdrew from representation because of continued differences between himself and Hagerty. Hagerty obtained new counsel and on January 21, 1980, eight days before trial, Hagerty's new attorneys requested and received a third continuance. Trial was reset for May 12, 1980, but on May 8, Hagerty's new attorneys withdrew, citing differences with Hagerty that they could not resolve. The following day Hagerty appeared before the trial court and requested a fourth continuance. Hagerty contended that no witnesses had been subpoenaed by his prior attorneys and that he had insufficient time to obtain other counsel for trial or to serve process upon witnesses. The trial court refused to grant a fourth continuance.

On the day of trial, Hagerty appeared before Judge Melvin J. Duran, objected to the proceedings going forward and then stood mute. Keller's attorney offered to present prima facie evidence of the validity of Clement's will, but Judge Duran instead promptly entered judgment dismissing Hagerty's suit with prejudice. Hagerty then appealed to the Louisiana Fourth Circuit Court of Appeals. He argued that the trial court abused its discretion in refusing to grant the fourth continuance. The appellate court, finding that the three prior continuances had caused a three-year delay in the implementation of Clement's will, affirmed the trial court and held that it did not abuse its discretion in failing to grant the fourth continuance. After the Louisiana Supreme Court unanimously denied Hagerty's petition for a writ of certiorari or review, Hagerty brought an action under 42 U.S.C. Sec. 1983 in the United States District Court for the Eastern District of Louisiana.

In his federal action, Hagerty contended that the state trial court, by refusing his request for a continuance, deprived him "of his constitutional right of due process ... by forcing him to go through a litigation without assistance of counsel and without witnesses." He requested the federal district court to order the Orleans Parish Civil District Court to reinstate his Petition of Intervention, or alternatively, to award damages. Hagerty named as defendants in his action the Succession of Laura McCloskey Clement (Succession), Thomas C. Keller, the executor of the estate, Melvin J. Duran, the state trial judge who dismissed the action, and Dan Foley, Clerk of the Orleans Parish Civil District Court.

The appellees moved for dismissal of the action for lack of subject matter jurisdiction and failure to state a claim. The federal district court granted the motions of the appellees and dismissed the suit on May 2, 1984. On May 3, 1984, new counsel was enrolled of record for Hagerty. By and through his new attorney, Hagerty filed a timely notice of appeal on May 9, 1984, which is now before this court.

II.

Hagerty raises two issues on appeal: whether the state trial court denied him due process of law, and whether the federal district court erred in dismissing his claim. Since resolution of the second issue is dispositive of this appeal, it is not necessary to reach the first point of contention. We hold that the federal district court did not err in dismissing Hagerty's claim. The basis for our decision is that the district court had no subject matter jurisdiction over this section 1983 action, and that Hagerty failed to state a claim upon which relief could be granted. We further find that this appeal is frivolous, and, assess double costs and attorney's fees against Hagerty and his attorney.

III.

A.

The federal district court dismissed Hagerty's action under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. We hold that the court was correct in dismissing the action under Rule 12(b)(1). Hagerty presented his constitutional due process claims to the Louisiana Court of Appeals and the Louisiana Supreme Court, but those courts rejected his arguments. The record clearly reflects that Hagerty then used his section 1983 action to attack the validity of the state trial court's dismissal of his suit contesting the probate of his aunt's will. He did so notwithstanding the well settled rule that a plaintiff may not seek a reversal of a state court judgment simply by casting his complaint in the form of a civil rights action. Sawyer v. Overton, 595 F.2d 252, 252 (5th Cir.1979); see also Williams v. Tooke, 108 F.2d 758, 759 (5th Cir.), cert. denied, 311 U.S. 655, 61 S.Ct. 8, 85 L.Ed. 419 (1940). The constitutional claims presented by Hagerty to the federal district court, if not identical, were "inextricably intertwined with the state court's denial" of relief; therefore the district court could not have properly reviewed the state court decision. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 483 n. 16, 103 S.Ct. 1303, 1315 n. 16, 75 L.Ed.2d 206 (1983); Howell v. State Bar of Texas, 710 F.2d 1075, 1076-77 (5th Cir.1983). To the extent that there was any constitutional error in the Louisiana state courts' decision, sole recourse for Hagerty was to the United States Supreme Court, not to federal district court. See Kimball v. The Florida Bar, 632 F.2d 1283, 1284 (5th Cir.1980); Sawyer v. Overton, 595 F.2d at 252; accord Wood v. Orange County, 715 F.2d 1543, 1546 (11th Cir.1983).

Hagerty raised his constitutional claims in state court but the Louisiana state courts rejected them. He could have appealed to the United States Supreme Court pursuant to 28 U.S.C. Sec. 1257(3), but he failed to do so. Hagerty instead sought review of those same claims in federal district court under section 1983, but Supreme Court and Fifth Circuit precedent clearly prohibits such review. The federal district court, therefore, correctly dismissed Hagerty's suit for lack of subject matter jurisdiction.

B.

We are further called upon to address Hagerty's contention that the federal district court erred in dismissing his action for failure to state a claim. His contention before the federal district court was that the state trial court denied his federal constitutional right to due process by refusing to grant a fourth continuance. Ordinarily we would not be inclined to give this issue any attention since the judgment in its entirety can be affirmed for lack of subject matter jurisdiction. However, to further demonstrate the frivolousness of the appeal, we will address Hagerty's contentions.

We begin by noting that Hagerty named Dan Foley, the Clerk of the Orleans Parish Civil District Court, as a defendant in his complaint, but failed to allege any act or omission on Foley's part that caused him injury. Furthermore, the nature of the alleged constitutional violation would seem to eliminate even the possibility that Foley could have been a party to the claimed offense. Section 1983 affords relief only for conduct committed by persons acting under color of state law. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155-56, 98 S.Ct. 1729, 1732-33, 56 L.Ed.2d 185 (1978); Thibodeaux v. Bordelon, 740 F.2d 329, 332 (5th Cir.1984). A person acts under color of state law only when he exercises power possessed by virtue of state law and made possible only because the wrongdoer is clothed with authority of state law. Id. at 333. Foley was without power or authority under state law to grant or deny continuances and therefore he could not have been responsible for the denial of Hagerty's request for continuance. In addition, Hagerty did not allege any sort of conspiracy involving Foley that was designed to deprive him of his constitutional rights. His allegations are wholly conclusory and are not accompanied by facts, which if proven would entitle him to relief. Id. at 332 n. 2; Augustine v. Doe, 740 F.2d 322, 325 n. 6 (5th Cir.1984). The federal district court properly dismissed the...