Lindke v. Tomlinson

• Decision Date: 12 April 2022
• Docket Number: 21-2612
• Citation: 31 F.4th 487
• Parties: Kevin LINDKE, Plaintiff-Appellant, v. John D. TOMLINSON and Mat King, in their official capacities, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

31 F.4th 487

Kevin LINDKE, Plaintiff-Appellant,

v.John D. TOMLINSON and Mat King, in their official capacities, Defendants-Appellees.

No. 21-2612

United States Court of Appeals, Sixth Circuit.

Argued: January 26, 2022

Decided and Filed: April 12, 2022

ARGUED: Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC, Hemlock, Michigan, for Appellant. Todd J. Shoudy, FLETCHER FEALKO SHOUDY & FRANCIS, PC, Port Huron, Michigan, for Appellees. ON BRIEF: Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC, Hemlock, Michigan, for Appellant. Todd J. Shoudy, FLETCHER FEALKO SHOUDY & FRANCIS, PC, Port Huron, Michigan, for Appellees.

Before: GRIFFIN, DONALD, and BUSH, Circuit Judges.

GRIFFIN, Circuit Judge.

Plaintiff Kevin Lindke and his ex-girlfriend, Ami Moeller, engaged in a contentious child custody dispute, during which Moeller obtained a domestic personal protection order (PPO) against Lindke. After she sued Lindke for violating that PPO, defendant Judge John Tomlinson, a Michigan probate court judge, agreed and ruled in her favor. Rather than appeal that determination in Michigan state court, Lindke sued Judge Tomlinson and county sheriff Mat King in federal court under 42 U.S.C. § 1983, seeking to enjoin enforcement of Michigan's domestic PPO statute. The district court dismissed the case, concluding that no subject-matter jurisdiction existed in the case against Judge Tomlinson and that Lindke failed to state a claim against Sheriff King. We agree and affirm.

I.

This case stems from a "bitter custody dispute" between Lindke and Moeller that led to Lindke's "personal Internet crusade" against Moeller. See TT v. KL , 334 Mich.App. 413, 965 N.W.2d 101, 104 (2020). The two are the parents of a minor child, whom we will refer to as OGL. In September 2015, Moeller filed a complaint in St. Clair County Circuit Court seeking to resolve custody and parenting time for OGL. During that litigation, Moeller sought and obtained a PPO against Lindke by alleging that Lindke beat her repeatedly, threatened her, and sent nude photos of her to her family, friends, and coworkers. Lindke violated that PPO twice, and, when it expired, Moeller sought a second PPO, which alleged that Lindke continued to harass her online. Judge Tomlinson granted the second PPO on March 31, 2016, barring Lindke from, among other things, "sending mail or other communications" to Moeller. Eventually, Moeller obtained sole legal and physical custody of OGL.

In March 2019, Moeller sued Lindke in state court, alleging that his "continued harassment ... on social media" violated the March 2016 PPO. Specifically, she alleged that Lindke was "attempting to communicate" with her on Facebook by "speaking directly to [her] and about [her]" and "tagging [her] in comments." Moeller also alleged that Lindke had posted old photos of her and an order from their custody case, which Lindke says was because Moeller had allowed OGL to have regular contact with a sex offender. Judge Tomlinson found that most of Lindke's online activity was constitutionally protected speech but that his act of "tagging" Moeller in a specific Facebook post violated the PPO.

Rather than appeal that decision to the Michigan Court of Appeals, Lindke sued Judge Tomlinson and Sheriff King in federal court. He contended that Michigan's domestic PPO statute, Mich. Comp. Laws § 600.2950, violated his First and Fourteenth Amendment rights and was, thus, unconstitutional. He requested that the court issue declaratory relief and enjoin Judge Tomlinson and Sheriff King from enforcing the statute against him.

This is not the first time Lindke has sued a state-court judge in federal court. He previously challenged another state-court judge's adjudication under Michigan's non-domestic PPO statute, Mich. Comp. Laws § 600.2950a, in federal court. See Lindke v. Lane , 523 F. Supp. 3d 940, 942 (E.D. Mich. 2021). After a thorough analysis, Lane concluded that the judge's role under the non-domestic PPO statute was to act "in an adjudicatory capacity when she construed and applied" the statute in the underlying action. Id . at 953. The judge's interests were not adverse to Lindke and thus his claims "present[ed] no justiciable Article III case or controversy," depriving the court of subject-matter jurisdiction. Id .

The district court here found the analysis in Lane "instructive." Lindke v. Tomlinson , No. 20-cv-12857, 2021 WL 2434120, at *2 (E.D. Mich. June 15, 2021). Relying on Lane , the court dismissed Lindke's suit against Judge Tomlinson because "there is no Article III subject matter jurisdiction to hear this case." Id . And the district court noted that Lindke's complaint lacked specific allegations about how Sheriff King allegedly violated Lindke's constitutional rights, so Lindke failed to state a claim against Sheriff King under Fed. R. Civ. P. 12(b)(6). Id. at *3.

Lindke now appeals.

II.

Lindke first argues that we have subject-matter jurisdiction over his claims for declaratory relief against Judge Tomlinson because Judge Tomlinson is a proper party to this case. We disagree.

"We review de novo the district court's decision to dismiss this case for lack of subject matter jurisdiction under Rule 12(b)(1)." Cartwright v. Garner , 751 F.3d 752, 760 (6th Cir. 2014). To the extent that the district court made factual findings in making its determinations, we review those findings for clear error while reviewing the application of the law to those facts de novo . Id .¹

Federal law recognizes that litigants, in some circumstances, may obtain declaratory relief against judicial officers acting in their official capacity. 42 U.S.C. § 1983 states, in pertinent part:

Every person who, under color of any statute ... of any State, ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in ... [a] suit in equity ... except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.

(Emphasis added). While this language does not expressly authorize declaratory relief against judges, it is a "recognition of its availability or unavailability, depending on the circumstances, which the statute does not delineate." Brandon E. ex rel Listenbee v. Reynolds , 201 F.3d 194, 198 (3d Cir. 2000). Because of this, determining whether declaratory relief is available against a judge turns on "whether the judges in this case properly may be named as defendants to this § 1983 action." Id .

In this case, the issue is whether a live case or controversy exists under Article III. " Article III of the Constitution affords federal courts the power to resolve only ‘actual controversies arising between adverse litigants.’ " Whole Woman's Health v. Jackson , ––– U.S. ––––, 142 S. Ct. 522, 532, 211 L.Ed.2d 316 (2021) (quoting Muskrat v. United States , 219 U.S. 346, 361, 31 S.Ct. 250, 55 L.Ed. 246 (1911) ). "Where there is no real, substantial controversy between parties having adverse legal interests, there is no case or controversy in the constitutional sense." Ahmed v. Univ. of Toledo , 822 F.2d 26, 27 (6th Cir. 1987) (citation and quotation marks omitted).

The seminal case on this issue is In re Justices of Supreme Ct. of Puerto Rico , 695 F.2d 17 (1st Cir. 1982). In that case, a group of attorneys sued the Justices of the Puerto Rico Supreme Court in federal court over a dispute involving the Puerto Rico Bar Association Foundation. Id . at 18. The First Circuit held that the suit should be dismissed. The court first looked to the statutes at issue, which required attorneys in the bar association to pay dues and otherwise support the association financially. Id . at 19. The opinion, written by then-Judge Stephen G. Breyer, concluded that "the role of the Justices with respect to these statutes is adjudicative." Id . at 21. "In deciding cases based on such complaints, the Justices act as they would in any other case based upon a Commonwealth statute: they sit as adjudicators, finding facts and determining law in a neutral and impartial judicial fashion." Id . In such circumstances, ordinarily no "case or controversy" exists:

Judges sit as arbiters without a personal or institutional stake on either side of the constitutional controversy. They are sworn to uphold the Constitution of the United States. They will consider and decide a claim that a state or Commonwealth statute violates the federal Constitution without any interest beyond the merits of the case. Almost invariably, they have played no role in the statute's enactment, they have not initiated its enforcement, and they do not even have an institutional interest in following their prior decisions (if any) concerning its constitutionality if an authoritative contrary legal determination has subsequently been made (for example, by the United States Supreme Court).

Id . But the First Circuit declined to rest its conclusion directly on Article III, concluding instead that the plaintiffs had failed to state a claim under Rule 12(b)(6) because " § 1983 does not provide relief against judges acting purely in their adjudicative capacity, any more than, say, a typical state's libel law imposes liability on a postal carrier or telephone company for simply conveying a libelous message." Id . at 22–23.

According to In re Justices , the threshold consideration is whether the judge is acting, under the statute at issue, in an adjudicatory capacity or as an enforcer or administrator. A more recent case exploring this distinction is Allen v. DeBello , 861 F.3d 433 (3d Cir. 2017). Allen examined whether the plaintiffs could challenge a New Jersey custody statute by suing state-court judges who had applied that statute; in doing so, the court compared two cases that reached opposite results. Id . at...