Overall v. McIntire

          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 officers, raising claims of violation of his substantive and procedural due process rights, among other things. (Doc. 1). In a prior ruling, this court dismissed or entered judgment against Mr. Overall on every claim except the facial constitutional challenges of Counts Three and Seven as to Defendant Jeremy McIntire. (Doc. 21). In its Memorandum Opinion, this court explained these claims survived “because Defendants' motion for partial summary judgment [did] not address the part of Count Three . . . or the part of Count Seven challenging the facial constitutionality of [Rule 28(b), (c), or (i)].” (Doc. 20 at 6).

         This matter now comes before the court on “Defendant Jeremy McIntire's Response to Petitioner's Motion for Final Ruling on Constitutionality.” (Doc. 25). This court construed Defendant's response as a motion for summary judgment on the only two remaining counts of Mr. Overall's complaint and notified Plaintiff of its intent to do so. (Doc. 26). Plaintiff failed to respond. So for the reasons stated below, this court will GRANT Defendant's motion and will DISMISS WITH PREJUDICE Counts Three and Seven as to Mr. McIntire because the Eleventh Amendment provides Mr. McIntire immunity from suit in this case.

         I. Factual Background

         The court fully incorporates the Background section of its prior Memorandum Opinion in this case. (Doc. 20 at 2-6).

         In that Memorandum Opinion and its accompanying Order, this court dismissed or entered summary judgment against Plaintiff as to every claim except two-Counts Three and Seven-as to Jeremy McIntire, which sought the prospective relief of enjoining continued enforcement of facially unconstitutional disciplinary procedures. Specifically, the court declined to enter judgment on the facial challenges of Mr. Overall's third and seventh counts as to Mr. McIntire because Mr. McIntire failed to address them in his motion for summary judgment.

         A little over a month after this court entered judgment against Plaintiff on all claims but Counts Three and Seven, Plaintiff filed a “Motion for Final Ruling on Constitutionality, ” which asked this court to rule whether subsections (b), (c), and (i) of Alabama Rule of Disciplinary Procedure 28 are constitutional. (Doc. 22). Construing Mr. Overall's motion as a motion for summary judgment, this court set a briefing schedule for both Defendant's response and Plaintiff's reply, if necessary. (Doc. 24). Defendant filed his response, (doc. 25), and Plaintiff Overall never filed any reply.

         Defendant's response raises Eleventh Amendment immunity defenses to each of Mr. Overall's claims but does not move that this court enter judgment on Mr. McIntire's behalf pursuant to those arguments. Determining that Defendant's Eleventh Amendment defenses, if successful, would bar Mr. Overall's claim, this court construed Defendant's response as a motion for summary judgment and presented Mr. Overall a final opportunity to respond. (Doc. 26). Mr. Overall failed to timely respond, and indeed has still not responded at all, so this court now considers Defendant's motion without any response from Plaintiff.

         II. Discussion

         Defendant Jeremy McIntire, assistant general counsel for the Office of General Counsel for the Alabama State Bar, argues that the Eleventh Amendment provides him immunity from Mr. Overall's challenges to the facial constitutionality of three subsections of Alabama Rule of Disciplinary Procedure 28. This court agrees and will GRANT Defendant's motion and DISMISSES WITH PREJUDICE the only remaining count of Plaintiff's complaint against the only remaining defendant in this case.

         The Eleventh Amendment protects “agents and instrumentalities of the State” from lawsuits against them in their official capacities. Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003) (en banc). Mr. McIntire is assistant general counsel for the Office of General Counsel for the Alabama State Bar. (Doc. 1 at 2; Doc. 12-1 at 1). As such, he performs “the investigation and prosecution of attorney disciplinary matters.” (Doc. 12-1 at 1); Ala. R. Disc. P. 6 (setting out the duties of the General Counsel, including assistants to the General Counsel). Because the Alabama State Bar is an arm of the State and Mr. McIntire is its agent, he is a state official whom the Eleventh Amendment, if applicable, would protect. See Nichols v. Alabama State Bar, 815 F.3d 726, 732 (11th Cir. 2016) (“After considering the four factors, we agree with the district court's conclusion that the Alabama State Bar is an arm of the state of Alabama and thus enjoys Eleventh Amendment immunity . . . .”).

         But the Ex parte Young doctrine creates an exception to the Eleventh Amendment immunity for state officials. Under the Ex parte Young doctrine, “official-capacity suits against state officials are permissible . . . when the plaintiff seeks ‘prospective equitable relief to end continuing violations of federal law.” Lane v. Central Ala. Comm. Coll., 772 F.3d 1349, 1351 (11th Cir. 2014) (citations altered) (emphases in original) (quoting Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326, 1336 (11th Cir. 1999); see also Ex parte Young, 209 U.S. 123 (1908). The Supreme Court has explained that “[i]n making an officer of the state a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional, it is plain that such officer must have some connection with the enforcement of the act, or else it is merely making him a party as a representative of the state, and thereby attempting to make the state a party.” Ex parte Young, 209 U.S. at 157. Accordingly, the Ex parte Young doctrine does not remove a defendant's immunity “where the officer who is charged has no authority to enforce the challenged statute.” Summit Med. Assocs., 180 F.3d at 1341-42.

         In Counts Three and Seven, Mr. Overall seeks prospective relief to end alleged continuing violations of federal law. (See Doc. 1 at 9-10, 15-16). So the court must determine whether Mr. McIntire has “some connection with the enforcement of” the rules challenged in Counts Three and Seven-in other words, whether he has some connection with the enforcement of Rule28(b), (c), and ...