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Overall v. Watson

United States District Court, N.D. Alabama, Middle Division

July 19, 2018

MARK OVERALL, Plaintiff,
v.
W.N. WATSON, et al. Defendants.

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE.

         Plaintiff Mark Overall, a suspended attorney proceeding pro se, filed suit against the Alabama State Bar and several of its current and former officers, raising claims of race discrimination, deprivation of the right to work, and violation of his substantive and procedural due process rights. (Doc. 1). Mr. Overall consented to a temporary suspension of his law license, and after the suspension period had run, he filed several petitions to reinstate his license. The Alabama State Bar denied his petitions, and eventually summarily suspended his license for failure to pay costs related to his first two petitions for reinstatement. Mr. Overall filed this 42 U.S.C. § 1983 lawsuit, alleging various constitutional violations related to his suspension proceedings.

         Mr. Overall filed this suit against (1) the Alabama State Bar; (2) W.N. Watson, the Chairman of the Alabama State Bar's Disciplinary Commission; (3) Jeremy McIntire, the Assistant General Counsel of the Alabama State Bar; and (4) Billy Bedsole, a former disciplinary officer of the Alabama State Bar. (Id. at 2). Mr. Overall voluntarily dismissed the fifth defendant, Alicia Bennett. (Docs. 7, 8).

         Defendants moved to dismiss a number of counts, attaching evidence to their motion. (Doc. 10). As a result, the court converted the motion to dismiss to a motion for summary judgment and gave Mr. Overall the opportunity to file evidence and respond in opposition. (Docs. 10, 13). As the court will explain at more length below, Defendants appear to believe their motion addresses the entire complaint, but because they present no argument or evidence about several of Mr. Overall's claims, the court construes the motion to be one for partial summary judgment. Briefing is now complete. As set out below, the court will grant the motion as to all claims it addresses.

         I. BACKGROUND

         Although the court converted Defendants' motion to dismiss into a motion for summary judgment, the parties do not dispute any of the facts. (See, e.g., Docs. 11, 15). The undisputed facts are that in 2010, Mr. Overall was admitted to practice law in Alabama, but in May 2013, he entered a plea agreement in which he agreed to plead guilty to several reports of misconduct. (Doc. 12-2 at 1-5). He and the Alabama State Bar agreed that the Bar would suspend his license for 91 days, but that it would hold the suspension in abeyance and place Mr. Overall on probation for two years. (Id. at 4, 7, 10).

         In August 2013, with Mr. Overall's consent, the Alabama State Bar's Disciplinary Commission revoked his probation and suspended his license for 91 days based on additional violations of the Alabama Rules of Professional Conduct. (Id. at 128-30, 141-42). Once the suspension period had run, Mr. Overall filed three petitions for reinstatement. (Doc. 12-3 at 1-2; Doc. 12-5 at 1-4; Doc. 12-6 at 1-3).

         The Alabama State Bar's Disciplinary Board denied Mr. Overall's first two petitions. (Doc. 12-3 at 16; Doc. 12-5 at 23-27). While his third petition for reinstatement was pending, the Alabama State Bar's Disciplinary Commission summarily suspended Mr. Overall's license for failure to pay costs related to his first and second petitions for reinstatement. (Doc. 12-6 at 33-34). As a result, the Disciplinary Board dismissed Mr. Overall's third petition for reinstatement, finding that he was not eligible for reinstatement because his license had been summarily suspended. (Id. at 45). The Commission will dissolve the suspension and consider reinstatement only if Mr. Overall pays the unpaid costs. (Doc. 12-1 at 4). Mr. Overall filed an appeal from the denial of his first petition for reinstatement, which the Alabama Supreme Court affirmed. (Doc. 12-3 at 73; Doc. 12-4 at 82). He did not appeal the denial of his second petition or the dismissal of his third petition. (Doc. 12-1 at 3-4).

         In addition to his petitions for reinstatement, Mr. Overall also filed three petitions requesting permission to seek employment in the legal profession. (Doc. 12-8 at 1-2, 4-5, 12- 13). The Disciplinary Commission denied all three petitions. (Id. at 3, 11, 15).

         The court WILL GRANT Defendants' motion for partial summary judgment. (Doc. 10). For the sake of clarity, the court will address any jurisdictional bars applicable to each claim. Then, once the court has winnowed out the claims over which it lacks jurisdiction, the court will address both jurisdictional and merits-based arguments relevant to the defendants, grouped as follows: (1) the Alabama State Bar; (2) Mr. Watson and Mr. Bedsole; and (3) Mr. McIntire.

         Mr. Overall asserts the following claims:

Count 1: Defendants have engaged in a pattern or practice of racial discrimination “to intentionally limit, exclude, and remove black lawyers, ” in violation of equal protection;
Count 2: The penalty of suspension for failing to pay costs, set out in Rules 8(e) and 28(e) of the Alabama Rules of Disciplinary Procedure, deprives attorneys of the right to work for lack of financial resources, in violations of equal protection and due process, both facially and as applied to him;
Count 3: The timing of the procedures in a reinstatement petition, set out in Rule 28(b) and (c), violates substantive and procedural due process, both facially and as applied to him;
Count 4 The burden of proof at Mr. Overall's reinstatement hearing, set out in Rule 28(c), violated his substantive and procedural due process rights;
Count 5: Defendants' submission of Mr. Overall's previous record at his reinstatement hearings violated his substantive and due process rights;
Count 6 Defendants' method of ruling on Mr. Overall's reinstatement petitions, as set out in Rule 28(g), violated his substantive and procedural due process rights;
Count 7: Rule 28(i), which prohibits attorneys from petitioning for reinstatement for a year after a final adverse of the Disciplinary Board, violates substantive and procedural due process, both facially and as applied to him;
Count 8: Rule 26(h)(1) and (2), which prevents disbarred and suspended lawyers from working in the legal profession, violates substantive and procedural due process, both facially and as applied to him; and
Count 9 Defendants' denial of Mr. Overall's right to work violates his equal protection and due process rights.

(Doc. 1 at 5-18).

         Mr. Overall names all four defendants-the Alabama State Bar, Mr. Watson, Mr. Bedsole, and Mr. McIntire-in each count. He requests the same relief for each count: (1) an order declaring Defendants' actions and the Alabama Rule of Disciplinary Procedure at issue to be unconstitutional; (2) an injunction ordering Defendants to cease the unconstitutional violations; and (3) “[a]ny further relief that is just and proper.” (Id.).

         First, the court WILL DISMISS WITHOUT PREJUDICE Count One in its entirety for lack of standing. The court WILL DISMISS WITHOUT PREJUDICE the parts of Counts Two and Three raising as-applied challenges to Mr. Overall's own disciplinary proceedings, because the Rooker-Feldman[1] doctrine bars those claims. The court WILL DISMISS WITHOUT PREJUDICE Counts Four, Five, and Six in their entirety because the Rooker-Feldman doctrine bars those counts. The court WILL DISMISS WITHOUT PREJUDICE the part of Count Eight raising a facial challenge to Rule26(h)(1) because Mr. Overall lacks standing to bring that part of that claim, and WILL DISMISS WITHOUT PREJUDICE the part of Count Eight that asserts an as-applied challenge to Mr. Overall's own disciplinary proceedings as barred by the Rooker-Feldman doctrine. The court WILL DISMISS WITHOUT PREJUDICE Count Nine in its entirety as barred by the Rooker-Feldman doctrine.

         The court has jurisdiction over parts of Counts Two, Three, Seven, and Eight. Specifically, the court has jurisdiction over the facial challenges raised in Counts Two and Three; the facial and as-applied challenges raised in Count Seven; and the part of Count Eight that raises a facial challenge to Rule 26(h)(2). As a result, the court will address the merits of only those claims that Defendants challenge.

         Next, the court must address the three groups of defendants: (1) the Alabama State Bar, (2) Mr. Watson and Mr. Bedsole, and (3) Mr. McIntire. The court lacks jurisdiction over the Alabama State Bar because it is an arm of the State entitled to Eleventh Amendment immunity, so the court WILL DISMISS WITHOUT PREJUDICE the Alabama State Bar as a defendant.

         Defendants put forth no jurisdictional bars applicable to Mr. Watson and Mr. Bedsole, and the court concludes that it has jurisdiction over them. Nevertheless, the court WILL GRANT Defendant's motion for summary judgment and WILL ENTER SUMMARY JUDGMENT in favor of Mr. Watson and Mr. Bedsole and against Mr. Overall as to all claims over which the court has jurisdiction because Mr. Watson and Mr. Bedsole no longer held office when Mr. Overall filed this suit, so they cannot afford Mr. Overall the prospective relief he seeks in this lawsuit.

         Finally, the court finds that the Eleventh Amendment protects Mr. McIntire from (1) the part of Count Two challenging the facial constitutionality of Rule 28(e), and (2) Count Eight. So the court WILL DISMISS WITHOUT PREJUDICE those parts of Counts Two and Eight. But the Eleventh Amendment does not bar the remaining claims against Mr. McIntire (i.e., the facial challenge to Rule 8(e) raised in Count Two; the facial challenge to Rule 28(b) and (c) raised in Count Three; and the facial and as-applied challenges to Rule 28(i), raised in Count Seven). The court WILL GRANT Defendants' motion for summary judgment and WILL ENTER SUMMARY JUDGMENT in Mr. McIntire's favor and against Mr. Overall on the facial challenge raised in Count Two because Rule 8(e) is facially constitutional. The court WILL GRANT Defendants' motion for summary judgment and WILL ENTER SUMMARY JUDGMENT in Mr. McIntire's favor and against Mr. Overall on the as-applied challenge raised in Count Seven because Mr. McIntire has not demonstrated that Defendants provided him inadequate process.

         But, because Defendants' motion for partial summary judgment does not address the part of Count Three challenging the facial constitutionality of Rule 28(b) and (c) or the part of Count Seven challenging the facial constitutionality of Rule 28(i), the court will not address whether Mr. McIntire is entitled to summary judgment as to those claims. In short, the court will either dismiss or grant summary judgment in favor of defendants on all claims except the claims against Mr. McIntire in Count Three, challenging the facial constitutionality of Rule 28(b) and (c); and Count Seven, challenging the facial constitutionality of Rule 28(i).

         II. DISCUSSION

         Before the court can address Defendants' motion for partial summary judgment, the court must clarify the scope of Mr. Overall's complaint and of Defendants' motion.

         1. Mr. Overall's Complaint

         Typically, the court liberally construes pleadings by pro se parties. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). But because Mr. Overall is an attorney- albeit one whose license the Alabama State Bar has suspended-the court cannot afford him the same liberal construction. See Olivares v. Martin, 555 F.2d 1192, 1194 n.1 (5th Cir. 1977)[2](“We cannot accord [the plaintiff] the advantage of the liberal construction of his complaint normally given pro se litigants, because he is a licensed attorney.”) (citation omitted); see also Santos v. Soc. Sec. Admin., Comm'r, ___ Fed.Appx. ___, 2018 WL 1830908 (11th Cir. Apr. 17, 2018) (“Though pro se litigants are normally afforded liberal construction, we do not typically do so for former attorneys . . . .”).

         Defendants' motion for partial summary judgment construes Mr. Overall's complaint to request declaratory orders, injunctive relief, and monetary damages. (See Doc. 11 at 20). The court declines to so liberally construe the complaint. Mr. Overall does not request monetary damages; the only forms of relief he expressly seeks are (1) orders declaring unconstitutional certain rules and practices, and (2) injunctive relief preventing Defendants from continuing their allegedly unconstitutional actions. (Doc. 1 at 5-18). His passing references to “[a]ny further relief that is just and proper” are insufficient to assert a request for monetary damages. So, if Mr. Overall intended to seek monetary damages, his complaint failed to do so.

         Defendants also construe Mr. Overall's motion to name the individual defendants in their official and individual capacities. (Doc. 11 at 14-23). Again, the court declines to so liberally construe Mr. Overall's complaint. The complaint does not clearly state whether he seeks to hold the individual defendants liable in their official capacities, individual capacities, or both. (See Doc. 1 at 2). But because Mr. Overall seeks only declaratory and injunctive relief, the court does not construe his complaint to raise any claims against the individual defendants in their individual capacities. See Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991) (“When a plaintiff sues a municipal officer in the officer's individual capacity . . ., the plaintiff seeks money damages directly from the individual officer.”); Ingle v. Adkins, ___ So.3d ___, 2017 WL 5185288, at *2 (Ala. 2017) (“[A] suit for injunctive relief against a State official in his or her individual capacity would be meaningless. This is so, because State officials act for and represent the State only in their official capacities.”) (emphasis in original). Mr. Overall indicates that he named the individual defendants because their conduct “constitutes state action, ” not because they are personally liable for monetary damages. (See Doc. 1 at 2). Accordingly, the court reads Mr. Overall's complaint to raise only official-capacity claims.

         Finally, throughout his complaint, Mr. Overall uses the terms “per se” and “as applied” to describe the scope of his claims. (See Doc. 1 at 5-18). The court construes Mr. Overall's use of the term “per se” to mean a facial challenge seeking to invalidate the rule at issue. See United States v. Frandsen, 212 F.3d 1231, 1235 (11th Cir. 2000) (“A facial challenge, as distinguished from an as-applied challenge, seeks to invalidate a statute or regulation itself.”). The court construes Mr. Overall's use of the term “as applied” to mean a challenge to the manner in which Defendants applied the Alabama Rules of Disciplinary Procedure in his own disciplinary proceedings. (See, e.g., Doc. 1 at 5-18).

         As set out above, Count One raises a claim of racial discrimination. (Doc. 1 at 5-7). Counts Two, Three, Seven, and Eight raise facial and as-applied challenges to various Alabama Rules of Disciplinary Procedure. (Id. at 7-10, 15-17). And Counts Four, Five, Six, and Nine raise only as-applied challenges to certain Alabama Rules of Disciplinary Procedure. (Id. at 11- 15, 18).

         In summary, the court reads Mr. Overall's complaint to seek only declaratory and injunctive relief; to name the individual defendants only in their official capacities; to raise as-applied constitutional challenges to certain Alabama Rules of Disciplinary Procedure in Counts Two through Nine; and to also raise facial constitutional challenges to certain Alabama Rules of Disciplinary Procedure in Counts Two, Three, Seven, and Eight.

         2. Defendants' Motion for Summary Judgment

         Defendants' motion to dismiss, which the court converted into a motion for partial summary judgment, sought the dismissal of the complaint in part on jurisdictional grounds and in part on the merits. (See generally Doc. 11). Although Defendants sought dismissal of the entire complaint, the motion does not address several of Mr. Overall's claims. Specifically, the court has construed Count Three to raise a facial challenge to Alabama Rule of Disciplinary Procedure 28(b) and (c), and Count Seven to raise a facial challenge to Rule 28(i), but Defendants attack only the part of those claims making as-applied challenges to those rules. For that reason, the court construes Defendants' motion for summary judgment to be one for partial summary judgment. Because the motion does not address the facial challenges raised in Counts Three and Seven, those claims will survive Defendants' motion for summary judgment.

         3. Jurisdictional Bars to the Claims

         Defendants assert jurisdictional bars to different combinations of claims and defendants. (See Doc. 11). To simplify this memorandum opinion, the court will, first, address the jurisdictional bars applicable to each claim. Only after the court has winnowed out the claims over which it lacks jurisdiction will the court address any jurisdictional or merits-based arguments relating to the specific defendants. At that point, the court will group the defendants as follows: (1) the Alabama State Bar; (2) Mr. Watson and Mr. Bedsole; and (3) Mr. McIntire.

         a. Standing

         Defendants contend that Mr. Overall lacks standing to raise Count One and part of Count Two. (Doc. 11 at 23-24, 29-30). Count One alleges that Defendants have engaged in a pattern or practice of racial discrimination in violation of equal protection. (See Doc. 1 at 5-6). And Count Two attacks the constitutionality of the Alabama Rule of Disciplinary Procedure providing that a petitioner must pay the costs associated with a reinstatement proceeding. (Id. at 7-9).

         Determining a plaintiff's standing plays a significant role in determining the court's jurisdiction to hear a case. “Article III of the Constitution confines the reach of federal jurisdiction to ‘Cases' and ‘Controversies.'” Alabama-Tombigbee Rivers Coal. v. Norton, 338 F.3d 1244, 1252 (11th Cir. 2003) (quoting U.S. Const. art. III, § 2). To establish Article III standing, the plaintiff bears the burden of showing (1) an “injury in fact”; (2) a “causal connection between the injury and the conduct complained of”; and (3) “that the injury will be redressed by a favorable decision.” Bloedorn v. Grube, 631 F.3d 1218, 1228 (11th Cir. 2011) (quotation marks omitted)). The injury must be “‘concrete and particularized' and ‘actual or imminent.'” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1548 (2016) (quoting Lujan, 504 U.S. at 560 (1992)). And a plaintiff who, like Mr. Overall, seeks only declaratory or injunctive relief must establish “a real and immediate threat of future injury” by showing “a sufficient likelihood that he will be affected by the allegedly unlawful conduct in the future.” Koziara v. City of Casselberry, 392 F.3d 1302, 1305 (11th Cir. 2004) (quotation marks omitted).

         As Defendants point out, Count One does not challenge any specific Rule of Disciplinary Procedure; it challenges only Defendants' alleged pattern or practice of “limit[ing], exclud[ing], and remov[ing] black lawyers” from the Alabama Bar. (Doc. 1 at 5). And, in Count One, Mr. Overall seeks (1) an order declaring that Defendants have engaged in a pattern or practice of race discrimination, and (2) an injunction ordering Defendants to cease the unconstitutional conduct and “set up an organization free of racial bias and discriminatory practices.” (Doc. 1 at 5-7). As a result, to establish standing, Mr. Overall must show “a sufficient likelihood that he will be affected by the allegedly unlawful conduct in the future.” Koziara, 392 F.3d at 1305.

         The court finds that Mr. Overall lacks standing to raise Count One. Mr. Overall alleged in his complaint that the Alabama State Bar's denial of one of his petitions for reinstatement was the result of racial discrimination. (Doc. 1 at 6). The complaint does not address whether racial discrimination caused the denial of his second petition or the dismissal of this third petition, or whether the Disciplinary Board would deny or dismiss future petitions based on racial discrimination. (See generally Doc. 1). Nor does Mr. Overall allege or present evidence showing that he intends to seek reinstatement again. (See generally id.). The allegation that the Alabama State Bar denied one of his petitions based on racial discrimination fails to show a sufficient likelihood that Mr. Overall will be affected by the allegedly discriminatory conduct again, and therefore is insufficient to confer standing for a declaratory judgment and injunctive relief. See Koziara, 392 F.3d at 1305. The court WILL DISMISS Count One for lack of standing.

         Defendants also challenge Mr. Overall's standing to raise part of Count Two. (Doc. 11 at 29-30). The relevant part of Count Two challenges Alabama Rule of Disciplinary Procedure 28(e). Rule 28(e) provides that if a petitioner fails to pay the costs associated with the denial of his petition for reinstatement, he may not file another petition for reinstatement until he pays those costs. Ala. R. Disc. P. 26(e). Mr. Overall unsuccessfully petitioned for reinstatement and failed to pay the costs of his reinstatement proceedings, so Defendants dismissed his third petition for reinstatement. (Doc. 12-3; Doc. 12-5; Doc. 12-7 at 1, 34-35).

         Defendants contend that Mr. Overall lacks standing to challenge Rule 28(e) because if he pays the costs assessed against him, the rule will not be a barrier to his filing another petition for reinstatement. (Doc. 11 at 29). But Mr. Overall has not paid those costs, and has not indicated that he will pay those costs, so he has shown “a sufficient likelihood that he will be affected by the allegedly unlawful conduct in the future.” Koziara, 392 ...


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