Sibley v. Lando, No. 05-12678. Non-Argument Calendar.

• Decision Date: 29 November 2005
• Docket Number: No. 05-12678. Non-Argument Calendar.
• Citation: 437 F.3d 1067
• Parties: Montgomery Blair SIBLEY, Plaintiff-Appellant, v. Maxine Cohen LANDO, Alan R. Schwartz, Mario P. Goderich, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1067

437 F.3d 1067

Montgomery Blair SIBLEY, Plaintiff-Appellant, v. Maxine Cohen LANDO, Alan R. Schwartz, Mario P. Goderich, Defendants-Appellees.

No. 05-12678. Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

November 29, 2005.

COPYRIGHT MATERIAL OMITTED

Montgomery Blair Sibley, Rockville, MD, pro se.

Charles Melvin Fahlbusch, Ft. Lauderdale, FL, Joanne Elaine Sargent, Miami, FL, for Defendants-Appellees.

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

Before BIRCH, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

Montgomery Blair Sibley appeals the district court's dismissal of his state tort and federal civil rights claims against Judge Maxine Cohen Lando, Judge Alan R. Schwartz, and Judge Mario P. Goderich as well as the district court's denial of his motion to amend his complaint. The district court dismissed the claims because state and federal judicial immunity prevents the collateral review he seeks, and it denied the motion to amend because the change would not have created claims that could survive the judicial immunity defense. We AFFIRM.

I. BACKGROUND

In the underlying state court action, which we expressly do not review for the substance of its decision, Sibley was confined for failure to pay child support in the amount of $100,000. See Sibley v. Sibley, 833 So.2d 847 (Fla.Dist.Ct.App.2002). Continuing what has become a multi-headed leviathan of meritless litigation, Sibley sued his trial and appellate state court judges in federal court on state and federal causes of action for $10 million each.¹ The district court dismissed, because, given the defense of judicial immunity, Sibley failed to state a claim.

On appeal, Sibley argues that Judge Lando was not entitled to judicial immunity as to the state law claims of unlawful imprisonment, because she had lost jurisdiction over his case when he filed seven affidavits seeking her recusal, and her subsequent incarceration of him was, therefore, unlawful. Sibley asserts that, under Fla. Stat. § 38.10, a litigant need only file an affidavit stating that he fears he will not receive a fair trial in order to bar a judge from proceeding. He filed seven such motions and affidavits, which he argues barred Judge Lando from proceeding in his case and rendering a judicial immunity defense unavailable to her. In his eighth claim, Sibley reiterates that Judge Lando lost jurisdiction when she failed to rule on one of his motions to disqualify. Sibley contends that, because Judge Lando exceeded her jurisdiction, she is ineligible for judicial immunity from his § 1983 claims.

As to Judges Schwartz and Goderich, Sibley argues that these appellate judges acted in the complete absence of jurisdiction. Sibley also contends that Judges Schwartz and Goderich committed "non-judicial" acts outside the scope of their jurisdiction by (1) soliciting evidence during oral argument outside the record on appeal, and (2) "fabricating" evidence not contained in the record. Sibley argues that these actions violated Florida Rule of Appellate Procedure 9.200 and, thus, that the judges were not entitled to judicial immunity.

II. DISCUSSION

We review motions to dismiss for failure to state a claim de novo, and we accept the allegations in the complaint as true, construing them in a light most favorable to the plaintiff.² Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183, 1187 (11th Cir.2004) (citing Fed. R. Civ. Pro. 12(b)(6)). Motions to dismiss are only granted "when the movant demonstrates beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. "We review the denial of a motion to amend a complaint for an abuse of discretion standard." Green Leaf Nursery v. E.I. DuPont De Nemours & Co., 341 F.3d 1292, 1300 (11th Cir.2003).

A. Judicial Immunity Under Federal Law

"Judges are entitled to absolute judicial immunity from damages for those acts taken while they are acting in their judicial capacity unless they acted in the `clear absence of all jurisdiction.'" Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000) (citations omitted). "This immunity applies even when the judge's acts are in error, malicious, or were in excess of his or her jurisdiction." Id. Whether a judge's actions were made while acting in his judicial capacity depends on whether: (1) the act complained of constituted a normal judicial function; (2) the events occurred in the judge's chambers or in open court; (3) the controversy involved a case pending before the judge; and (4) the confrontation arose immediately out of a visit to the judge in his judicial capacity. Scott v. Hayes, 719 F.2d 1562, 1565 (11th Cir.1983).

We reject, from the outset, the use of § 1983 as a device for collateral review of state court judgments.³ Cf. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 125 S.Ct. 1517, 1521-22, 161 L.Ed.2d 454 (2005). As § 1983 is applied to this case, therefore, we do not ask whether civil incarceration was appropriate. The inquiry is whether ordering civil incarceration is a judicial activity. Similarly, we do not review whether the substance of a question at oral argument was improper, but rather, whether questions in oral argument are judicial acts. Sibley had his opportunity to contest the propriety of these judges' merits decisions in the appellate process. See Sibley v. Sibley, 833 So.2d 847 (Fla.Dist.Ct.App.2002), review denied, 854 So.2d 660 (Fla.2003), cert. denied, 540 U.S. 1109, 124 S.Ct. 1074, 157 L.Ed.2d 895 (2004).

1. Federal Claims Against the State Trial Judge

With regard to Sibley's § 1983 claims against Judge Lando, the district court properly concluded that Judge Lando had judicial immunity from Sibley's claims, because, by issuing the writ of bodily attachment, Judge Lando was committing a judicial act. See Bolin, 225 F.3d at 1239; see also Pope v. Quattelbaum, 884 So.2d 301, 301 (Fla.App. Dist.Ct.2004) (discussing and applying Florida Family Law Rule of Procedure 12.615(e)'s writ of bodily attachment provision). The jurisdictional inquiry is a state law question and is discussed in section B of this opinion regarding state law immunity. Because we conclude in that section that there was no "clear absence of jurisdiction" and because Judge Lando was acting in her judicial capacity, the § 1983 claims against Judge Lando were properly dismissed.

2. Federal Claims Against the State Appellate Judges

Sibley challenges Judge Schwartz's question at oral argument regarding the source of funds used on appeal and the participation of both judges in an unfavorable decision, because the opinion used allegedly "fabricated" evidence. Sibley does not contest the jurisdiction of the appellate court to hear his case and only contends that the actions by the judges were neither judicial nor appellate in nature.⁴ Because asking questions at oral arguments and issuing a decision in the form of a written opinion are judicial actions and because the judges were not acting in the "clear absence of all jurisdiction," Judges Schwartz and Goderich are entitled to judicial immunity from Sibley's claims.⁵ Bolin, 225 F.3d at 1239.

B. Judicial Immunity Under State Law

Florida courts have adopted a doctrine of absolute judicial immunity and have equated it to the federal doctrine discussed previously in section A of this opinion.⁶ See Office of the State Attorney v. Parrotino, 628 So.2d 1097, 1099 (Fla. 1993). Thus, as in the federal system, judges are immune from suit for judicial acts "unless they clearly act without jurisdiction." Johnson v. Harris, 645 So.2d 96, 98 (Fla.Dist.Ct.App.1994); see also Berry v. State, 400 So.2d 80, 83 & n. 3 (Fla.Dist. Ct.App.1981) (citing cases). Sibley argues that his petition for recusal divested Judge Lando of jurisdiction.⁷

Sibley's contention would have merit only if the affidavit submitted to the court automatically deprived Judge Lando of jurisdiction.⁸ If the affidavit did not deprive her of jurisdiction, then Judge's Lando would be absolutely immune from suit for judicial acts. Because, as we concluded in the § 1983 discussion of this opinion, ordering civil incarceration is a judicial act, the only question is whether Judge Lando clearly acted without jurisdiction.

The state appellate court, whose rulings govern Judge Lando's court, stated that a trial judge is not automatically disqualified under Rule 2.160 even if she fails to rule on a disqualification motion within 30 days of filing. Tarrant v. Jacoboni, 780 So.2d 344, 344-45 (Fla.Dist.Ct.App.2001). Thus, at the time her ruling was made,⁹ Judge Lando was not automatically disqualified because she failed to rule on the motion for 30 days. We conclude, therefore, that Judge Lando did not act in an absence of jurisdiction.

Furthermore, after Sibley filed the first affidavit seeking Judge Lando's disqualification, Judge Lando retained, at a bare minimum, the jurisdiction to perform ministerial acts and, therefore, was not divested of all jurisdiction over the matter. See Fischer v. Knuck, 497 So.2d 240, 243 (Fla. 1986). Accordingly, when she issued the writ of bodily attachment, Judge Lando may have acted in the excess of her jurisdiction, but she did not act in the "clear absence of all jurisdiction." See Bolin, 225 F.3d at 1239. Thus, Judge Lando is entitled to judicial immunity as to these claims. Id.

Likewise, with respect to Sibley's eighth claim that Judge Lando's transfer from the Family Division resulted in her loss of jurisdiction over his case, her transfer from the Family Division and all of her rulings Sibley challenged in his complaint occurred prior to the Florida Supreme Court's decision in Tableau. Under the binding precedent regarding Fla. Stat. § 38.10 at the time, therefore, Judge Lando retained jurisdiction over Sibley's case. See Tarrant, 780 So.2d at 344-45. Thus, her issuance of a writ of bodily attachment was a judicial act, and she...