Perry v. Barnard

• Citation: 745 F. Supp. 1394
• Decision Date: 12 October 1990
• Docket Number: No. EV 88-24-C.,EV 88-24-C.
• Parties: Lloyd G. PERRY, Plaintiff, v. Linda K. BARNARD, et al., Defendants.
• Court: U.S. District Court — Southern District of Indiana

745 F. Supp. 1394

Lloyd G. PERRY, Plaintiff, v. Linda K. BARNARD, et al., Defendants.

No. EV 88-24-C.

United States District Court, S.D. Indiana, Evansville Division.

September 26, 1989.

Order October 12, 1990.

COPYRIGHT MATERIAL OMITTED

Lloyd G. Perry, Newburgh, Ind., pro se.

Ted Lockyear, Lockyear & Lockyear, Evansville, Ind., for Hart & Emison.

Robert Spear, Deputy Atty. Gen., Indianapolis, Ind., for all other defendants.

Order of Sanctions Against Plaintiff October 12, 1990.

TINDER, District Judge.

MEMORANDUM ENTRY ON THE FOLLOWING:

THE DENIAL OF PLAINTIFF'S "PETITION TO SETTLE BY STIPULATION," "PLAINTIFF'S EMERGENCY MOTION FOR SPEEDY HEARING AND TO ADVANCE THE CALENDAR," "PLAINTIFF'S MOTION TO RECONSIDER AND/OR PETITION FOR REHEARING" FILED DECEMBER 22, 1988, PLAINTIFF'S "MOTION TO RECONSIDER AND/OR PETITION FOR REHEARING" FILED APRIL 27, 1989, AND THE STATE DEFENDANTS' REQUEST FOR ATTORNEY'S FEES AND COSTS PURSUANT TO 42 U.S.C. § 1988 (1982);

THE GRANTING OF "PLAINTIFF'S MOTION TO AMEND BY SUBSTITUTION PLAINTIFF'S REPLY BRIEF PURSUANT TO ORDER OF MAY 11, 1989," THE MOTION TO DISMISS FILED BY DEFENDANTS HART AND EMISON, THE STATE DEFENDANTS' MOTION TO DISMISS, AND THE DEFENDANTS' REQUESTS FOR SANCTIONS;

THE OVERRULING OF "PLAINTIFF'S OBJECTION, IN PART, TO THE ORDER VACATING JUDGMENT, DATED MAY 11, 1989;" AND

THE ORDERING OF DEFENDANTS' ATTORNEYS TO SUBMIT ITEMIZED STATEMENT OF FEES AND COSTS AS BASES FOR IMPOSING SANCTIONS, AND AN INJUNCTION AGAINST THE PLAINTIFF

This matter comes before the court on plaintiff Lloyd G. Perry's pro se motion entitled "Plaintiff's Motion to Reconsider and/or Petition for Rehearing" (Motion to Reconsider I) filed on December 22, 1988.

I. Background

On December 14, 1988, this court issued an entry that explained the granting of the motion to dismiss filed by the members of the Commission on Judicial Qualifications and the Disciplinary Commission of the Supreme Court of Indiana and certain staff members.¹ The basis for the dismissal was that Perry lacked standing to bring this damages action pursuant to 42 U.S.C. § 1983 (1982) against these seventeen defendants. However, the entry also discussed other serious flaws that marked Perry's cause of action: the application of the eleventh amendment and judicial and prosecutorial immunity. With regard to the eleventh amendment, this court stated that the enactment of section 1983 did not abrogate the states' eleventh amendment immunity, Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979),² and Indiana has not waived its immunity. Ind. Code § 34-4-16.7-3 (1988); see also Sheets v. Indiana Dep't of Corrections, 656 F.Supp. 733 (S.D.Ind.1986). Thus, to the extent that Perry argued that the defendants were liable for damages due to their official capacities, the eleventh amendment bars the action.

In an entry dated April 19, 1989, this court denied plaintiff's Motion to Reconsider I; however, as plaintiff correctly points out in his second "Motion to Reconsider and/or Petition for Rehearing" (Motion to Reconsider II) filed April 27, 1989, I failed to address plaintiff's contention that the state's eleventh amendment immunity had been waived. While the basis of the dismissal was the lack of standing and not the application of the eleventh amendment, this aspect of plaintiff's motion to reconsider was the subject of the oral argument on May 11, 1989.

In presenting his oral argument to the court, however, Perry cited, for the first time, the case of Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980), which held, in part, that the Virginia Supreme Court and its members were immune from a section 1983 lawsuit when acting in their legislative capacity, but were proper defendants in a suit for declaratory or injunctive relief when acting in their enforcement capacities. Perry's citation of this case and his oral argument raised the question of whether he was seeking, in part, an injunction to require these defendants to act and a declaratory judgment that certain Indiana statutes, which address the practice of law, are unconstitutional. In keeping with the well-settled law that a pro se plaintiff's pleadings must be given a broad construction, see Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972); Wilson v. Civil Town of Clayton, 839 F.2d 375, 378 (7th Cir. 1988); Murphy v. Lane, 833 F.2d 106 (7th Cir.1987), this court decided that it should give additional consideration to any claim for injunctive or declaratory relief that Perry may be seeking. Accordingly, this court vacated the judgment on May 11, 1989, that was entered against Perry as to all of the defendants and took under advisement Perry's Motion to Reconsider I, as well as his Motion to Reconsider II.

This entry will first address Perry's objection to the vacation of judgment and then the issues regarding Perry's request for monetary relief and the issues regarding his request for injunctive and declaratory relief.³ Finally, this entry will address all other pending matters so that this court can enter final judgment.

II. Plaintiff's Objection to Vacation of Judgment

As this court noted in its Order Vacating Judgment dated May 11, 1989, the new issues to be addressed only affect the seventeen defendants other than defendants Russ Hart and Rabb Emison who were sued in connection with their conduct as Indiana State Bar Association presidents. On May 15, 1989, Perry filed "Plaintiff's Objection, in Part, to the Order Vacating Judgment, Dated May 11, 1989," in which he argued that Hart and Emison were proper defendants under the principles of Consumers Union because of their enforcement role. Perry wrote, "Consumers Union is clearly a showing that the State Bar of Virginia and Indiana State Bar Association and these defendants Hart and Emison have almost identical enforcement roles."

Neither the Virginia State Bar, nor its president, was a defendant in Consumers Union. Thus, even if the Virginia and Indiana State Bar Associations have similar roles in the attorney disciplinary scheme, the Court did not hold that the Virginia State Bar was subject to injunctive relief in a section 1983 suit. Furthermore, as this court stated in its Memorandum Entry on Motion to Dismiss by Defendants Hart and Emison dated November 17, 1988, even if plaintiff has standing to bring such an action, he has failed to show a sufficiently close nexus to establish the Indiana State Bar Association and Hart and Emison as state actors for purposes of section 1983. Thus, his suit against Hart and Emison for monetary, as well as injunctive and declaratory relief, fails. Accordingly, this court OVERRULES "Plaintiff's Objection, in Part, to the Order Vacating Judgment, Dated May 11, 1989" and will only consider the remaining issues as they affect the other seventeen defendants.

III. Request for Monetary Relief

Most of the issues related to Perry's claims for monetary relief have been fully briefed by the parties and addressed in previous entries by this court. Thus, this entry incorporates the Memorandum Entry on Motion to Dismiss by Defendants Hart and Emison dated November 17, 1988, and the Memorandum Entry on Motion to Dismiss dated December 14, 1988, which discussed the Motion to Dismiss filed by the other seventeen defendants. The only issue regarding his request for damages that this court needs to address is the plaintiff's contention that the state's eleventh amendment immunity has been waived.

Perry argues in his Motion to Reconsider II that Indiana has waived its eleventh amendment immunity. While it was not clear in his complaint, it is apparent from his argument that Perry is indeed suing the state through the actions of its officers in their official capacities.⁴ If the defendants were being sued in their individual capacities, the eleventh amendment would not bar the action, and thus, waiver would not be at issue. See Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Brunken v. Lance, 807 F.2d 1325, 1329 (7th Cir.1986) (If the section 1983 action is for monetary relief that would require damages to paid out of the state treasury to remedy past wrongs, the eleventh amendment bars such an action in the absence of a waiver by the state or a valid override by Congress.); cf. Meadows v. Indiana, 854 F.2d 1068, 1069 (7th Cir.1988) (quoting Kolar v. County of Sangamon, 756 F.2d 564, 568 (7th Cir.1985)) ("Where a complaint alleges that the conduct of a public official acting under color of state law gives rise to liability under Section 1983, we will ordinarily assume that he has been sued in his official capacity and only in that capacity.").

Perry cites three Indiana Supreme Court cases in support of his waiver argument. Two cases deal with the issue of whether a party was engaged in the illegal practice of law. See Hulbert v. Mybeck, 220 Ind. 530, 44 N.E.2d 830 (1942); Groninger v. Fletcher Trust Co., 220 Ind. 202, 41 N.E.2d 140 (1942). The third case is a disciplinary proceeding against an attorney. See In re Lee, 262 Ind. 439, 317 N.E.2d 444 (1974). Perry argues that since the Indiana state courts restrict the practice of law to licensed attorneys, evidenced by the cited cases, this state court regulation of attorneys implicitly waives the state's sovereign immunity. Plaintiff cites Parden v. Terminal Railway of Alabama State Docks Department, 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964) as support for his conclusion that once the state becomes involved in the regulation of attorneys, it waives its immunity regarding such matters.

However, Perry fails to acknowledge that Parden has been at least partially overruled by the United States Supreme Court in Welch v. Texas Department of Highways & Public Transportation, 483 U.S. 468, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987). A strongly divided court held, in pertinent part, that even assuming that Congress can abrogate...