Thompson v. Aland

• Decision Date: 14 July 1986
• Docket Number: Civ. A. No. CA3-83-1713-D.
• Citation: 639 F. Supp. 724
• Parties: Wordy Jack THOMPSON, Jr., Plaintiff, v. Linda ALAND, Defendant.
• Court: U.S. District Court — Northern District of Texas

639 F. Supp. 724

Wordy Jack THOMPSON, Jr., Plaintiff, v. Linda ALAND, Defendant.

Civ. A. No. CA3-83-1713-D.

United States District Court, N.D. Texas Dallas Division.

July 14, 1986.

Herbert Green, Jr. of Herbert Green, Jr., P.C., Dallas, Tex., for plaintiff.

F. Franklin Honea of Payne & Vendig, Dallas, Tex., for defendant.

MEMORANDUM OPINION AND ORDER

FITZWATER, District Judge.

Plaintiff, Wordy Jack Thompson, Jr. ("Thompson"), a Texas attorney, was held in contempt and jailed by a Texas state court for violating the court's temporary orders issued incident to a divorce action between Thompson and his then-wife. Thereafter he filed this civil action against the state judge who issued the contempt order and against his wife's attorney. This court (Hill, J.) has previously dismissed the claims against the state judge on the ground of absolute judicial immunity. The attorney has now moved pursuant to Rule 12(b)(6)¹ to dismiss the allegations that remain as to her and has moved for Rule 11 sanctions.

The first question presented is whether Thompson's remaining allegations against the attorney state claims upon which relief can be granted pursuant to 42 U.S.C. §§ 1981, 1982, 1983, "1984," and 1985. To dispose of the issue the court must determine whether the attorney is a state actor and whether Thompson presents a claim for class-based or racial discrimination. The second question presented is whether Rule 11 sanctions should be imposed. To dispose of this issue the court must determine whether Thompson's counsel's reliance upon 42 U.S.C. § "1984," a statute repealed 35 years before this case was filed, and his reliance upon statutes intended to provide a remedy for racial and class-based discrimination, when no allegations of such discrimination are made, mandate the imposition of sanctions. The court concludes that this action should be dismissed and that Rule 11 sanctions should be imposed.

I. Factual Background

According to his complaint, on June 23, 1983 Thompson was served with a motion for contempt filed by his then-wife in their pending divorce action and signed by her attorney, Linda Aland ("Aland"). The motion alleged that plaintiff had violated several provisions of the district court's temporary orders of January 18, 1983 and May 27, 1983. In the motion, plaintiff's wife prayed for the following relief:

that the Respondent plaintiff be held in contempt of this Court for disobedience of the Temporary Orders requiring him to (1) make payment of the monies due to Lakehill School as tuition and for disobedience of the Temporary Orders II requiring him to (1) make a $2,000.00 interim attorney's fee payment to Movant's counsel by June 1, 1983; (2) communicating and harassing Petitioner by telephone at home and at work; and (3) failing to produce required documents. For such acts of contempt, Movant prays that punishment be fixed at a fine of not more than $500.00 or confinement in the County Jail of Dallas County, Texas until Respondent has complied with said Temporary Orders and Temporary Orders II. Movant further prays for payment of reasonable attorney's fees to Movant's counsel and for costs incurred herein. (Motion for Contempt, at 4).

The motion for contempt was heard by Judge Charles O. Betts,² a visiting judge sitting by designation. By order of July 22, 1983, after the hearing was concluded, plaintiff was held in contempt by Judge Betts and remanded to the custody of the court bailiff. Thereafter, plaintiff filed an application for a writ of habeas corpus with the Texas court of appeals, which granted the writ on September 8, 1983.

On October 7, 1983, Thompson filed this suit alleging, among other things, that the actions of Judge Betts and Aland violated his constitutional rights. Jurisdiction was predicated on 28 U.S.C. §§ 1331, 1332, and 1343. Thompson alleges generally that the action "rises sic under 42 U.S.C. Sections 1981, 1982, 1983, 1984, and 1985." (Complaint ¶ IV, at 2). The only specific allegations against Aland are: (1) that she conspired with Judge Betts to deprive plaintiff of his civil rights, due process, and equal protection of the law by imprisoning him for debt (Id. ¶ XIV, at 6); and (2) that she denied his rights under the Fifth and Fourteenth Amendments pursuant to the conspiracy (Id. at ¶ XV). No pendent state claims appear to be stated against her. In response Aland filed a Rule 12(b)(6) motion to dismiss for failure to state a claim and a motion for sanctions under Rule 11.³ The court now considers the questions presented by her motions.

II. Plaintiff's Section 1983 Claim

To decide whether Thompson states a claim against Aland under § 1983 the court must determine whether the allegations of Thompson's complaint and the inferences that are drawn therefrom, viewed in the light most favorable to Thompson,⁴ demonstrate the threshold requirement that Aland was acting under color of state law.

This is so because a § 1983 action is grounded upon two ineluctable elements: (1) that the conduct complained of was committed by a person acting under color of state law and (2) that the conduct deprived another person of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981). The Fourteenth Amendment of the Constitution provides in part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Because the Amendment proscribes state conduct, it can be violated only by conduct that may be fairly characterized as "state action." Similarly, § 1983 expressly provides a remedy only for deprivations of rights secured by the Constitution and laws of the United States when that deprivation takes place "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory." The § 1983 requirement of action under color of state law and the Fourteenth Amendment requirement of state action are virtually identical. If the challenged conduct constitutes state action, that conduct is also action under color of state law and will support a suit under § 1983. Lugar v. Edmondson Oil Company, Inc., 457 U.S. 922, 935, 102 S.Ct. 2744, 2752, 73 L.Ed.2d 482 (1982).

In United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941), the Court held that a person acts under color of state law only when exercising power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Since Classic, the Court has insisted that the conduct that causes the deprivation of a federal right be "fairly attributable" to the state. Lugar, 457 U.S. at 937, 102 S.Ct. at 2753. These cases reflect a bipartite approach to the question of "fair attribution," one part of which is that the party charged with the deprivation must be a person who may fairly be said to be a state actor. Id.

Lugar teaches that a party may be a state actor because she is a state official, because her conduct is otherwise chargeable to the state, or because she has acted together with or obtained significant aid from state officials. Id. Here, because Aland is not a state official, if she is to come within the state actor rubric, it must be because (1) her conduct is otherwise chargeable to the state or (2) she acted together with or obtained significant aid from state officials.

Conduct Chargeable to State

Aland's conduct is not chargeable to the state because her role, as a private attorney, is independent from whatever role the state plays. An attorney, whether retained or appointed in any proceeding, owes her only duty to her client and not to the public or the state. Polk County v. Dodson, 454 U.S. 312, 318, 102 S.Ct. 445, 449, 70 L.Ed.2d 509 (1981). Counsel's role is essentially a private function. Notwithstanding that an attorney is an "officer of the court," an attorney "serves the public, not by acting on behalf of the State or in concert with it, but rather by advancing `the undivided interests of his client.'" Id. at 318-19, 102 S.Ct. at 449-50; accord, United States ex rel Simmons v. Zibilich, 542 F.2d 259, 261 (5th Cir.1976). An attorney is obligated to exercise judgment independent from that of the State on behalf of her client. Polk County, 454 U.S. at 321, 102 S.Ct. at 451. Because a private attorney's role is independent from the role of the state, an attorney's conduct, by mere representation of her client, is not chargeable to the state. There is no state action where the state does no more than furnish the forum and has no interest in the outcome. Hill v. McClellan, 490 F.2d 859, 860 (5th Cir. 1974).

Prior to Polk County, the Fifth Circuit concluded that a private attorney who merely represents a client in a civil proceeding is not acting under color of state law. In Hill, the Fifth Circuit held that an attorney who merely represented the plaintiff's ex-wife in a divorce, child custody, and property settlement action in Texas was not acting under color of state law.

Lawyers who participate in the trial of private state court litigation are not state functionaries acting under color of state law within the meaning of the Federal Civil Rights Act; likewise, they are not liable under said Acts.

Id. Thereafter, the court held in Slavin v. Curry, 574 F.2d 1256 (5th Cir.1978), that a private, retained attorney does not act under color of law and cannot be held liable under the Civil Rights Act in the absence of an actionable conspiracy. 574 F.2d at 1265. The reasoning of Polk County bolsters the principles announced in Hill and Slavin. Aland's conduct in the instant case is not chargeable to the state.

Acted Together With or Obtained Significant Aid

...