United States District Court, N.D. Alabama, Middle Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE.
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).
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.
court fully incorporates the Background section of its prior
Memorandum Opinion in this case. (Doc. 20 at 2-6).
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
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.
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.
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.
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 . . . .”).
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.
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 ...