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Hill v. Davis

United States District Court, S.D. Alabama, Southern Division

March 6, 2019

DONISHER R. HILL, Plaintiff,
v.
DON DAVIS and DAVID ZIMMERMAN in their official and personal capacities, Defendants.

          ORDER AND REPORT AND RECOMMENDATION

          WILLIAM E. CASSADY UNITED STATES MAGISTRATE JUDGE

         Plaintiff Donisher R. Hill filed her pro se complaint in this Court on June 25, 2018, claiming that her state and federal rights have been violated by Don Davis, Probate Judge of Mobile County, and Mr. David Zimmerman, an attorney. (See Docs. 1 & 5.)[1]Defendants Davis and Zimmerman immediately filed motions to dismiss (see Docs. 8 & 17) making numerous arguments for dismissal, including: absolute judicial immunity, Article III standing, failure to identify the constitutional rights that were violated, duplicative litigation with an appeal pending in the Alabama Supreme Court, her claims are barred by the Rooker-Feldman doctrine and the Colorado River doctrine, failure to plead a viable § 1983 claim and the § 1985 and § 1986 claims are inapplicable to the facts of this case. Judge Davis has also filed a motion for sanctions pursuant to the Federal Rules of Civil Procedure, Rule 11 (Doc. 32).

         Several motions were filed by the Plaintiff as well: a motion to amend (Doc. 24), a motion for sanctions against Jerome E. Speegle (Doc. 30), a motion to strike the motions to dismiss (Doc. 35), a motion to disqualify Mr. Jerome E. Speegle (Doc. 38), a motion for “equal access and equal respect under the law” (Doc. 41), and a motion to dismiss based on the threatening and retaliatory language of the magistrate judge (Doc. 42).[2]

         The Court conducted a telephone hearing with Ms. Hill and counsel for the defendants on September 19, 2018 (Doc. 39) for the purpose of hearing arguments on the pending motions and to give Plaintiff an opportunity to expand on the factual basis for her claims. After consideration of the motions and the arguments presented during oral argument, it is determined that the Court is without subject matter jurisdiction and Plaintiff's claims against both defendants should be dismissed without prejudice. In addition, the motion for Rule 11 sanctions is due to be granted since Plaintiff, after notice, refused to withdraw her unsupported claims.

         Factual and Procedural Background

         The most liberal reading of Plaintiff's claims is that she is trying to allege that her civil rights were violated pursuant to 42 U.S.C. §§ 1983, 1985 and 1986 when Judge Davis ordered that she be removed as attorney-in-fact under a power of attorney instrument dated November 1, 2017. (Doc. 1). She also claims that her removal as attorney-in-fact is a violation of the Alabama Theft by Deception law and power of attorney law. (Id.).

         In her own words, Hill argues that Judge Davis and Mr. Zimmerman, in their individual and official capacity, “perfected an illegal act without lawful jurisdiction and without authority when they used a disguised probate matter to reach[] and grab Plaintiff's role and function as Agent invading Plaintiff's Agent authority and without Agent's permission and consent.” (Id. at 1). Her request for relief is that this Court take “[c]orrective action as to the right of Plaintiff to be recognized and respected pursuant to the Power of Attorney for which your Plaintiff serve as Agent pursuant to law.” (Id. at 3). She also wants a cease and desist order entered against both defendants in order to keep them from interfering with her ability to serve as an Agent. (Id.) Monetarily, she seeks five hundred thousand dollars from each defendant in their individual capacities. (Id.).

         After the defendants had filed their motions to dismiss explaining to the Court and to Ms. Hill why her claims lacked any semblance of merit, she did not take issue with their arguments but moved to amend her complaint on July 23, 2018. (Doc. 24). In response to this motion, the Court provided an opportunity for the Plaintiff to convince the opposing parties and the Court that her contemplated amended complaint would state a cause of action. In an Order dated July 24, 2018, Plaintiff was ordered to file a proposed amended complaint not later August 7, 2018 which she failed to do. This Order was entered as an attempt to gain compliance with Civil L. R. 15[3] which requires that proposed amended pleadings be produced in their entirety and further, that the motion to amend should specifically identify the changes that are being made. Even during the hearing held on September 19, 2019, Plaintiff refused and/or was unable to advise the Court or the parties of the substance of any amendment she wanted to make. She was unable or refused to provide any substantial justification for not filing a proposed amended complaint by August 7, 2018. For the reasons stated in the record at the conclusion of that hearing, she was informed that her motion to amend (Doc. 24) would be denied.

         In August 2018, Defendant Davis moved for sanctions pursuant to Federal Rules of Civil Procedure Rule 11. (Doc. 32). In that motion, Judge Davis alleges that the Plaintiff filed her action without substantial justification and that he is entitled to monetary sanctions in an amount to cover his attorney's fees and costs. In support of this motion, Judge Davis incorporates his motion to dismiss and submits a copy of a letter that was sent to Hill on July 9, 2018 along with copies of both his motion to dismiss and his motion for sanctions. (Doc. 32 at 6-18). This letter was sent in compliance with Rule 11(c)(2), Fed. R. Civ. P., and warned Plaintiff that her failure to dismiss her lawsuit within twenty-one days would result in Judge Davis seeking attorney's fees from her. Ms. Hill did not dismiss her suit within that twenty-one-day period. Although she has moved to dismiss her lawsuit, without prejudice (Doc. 42), this motion was filed after the hearing on September 19, 2018 and after she was informed that the undersigned would recommend that Rule 11 sanctions be granted based on her frivolous lawsuit and her refusal to dismiss her suit on a timely basis.

         David B. Zimmerman is a lawyer admitted to practice in Alabama. In his capacity as an attorney, he filed a Petition for Guardianship and Conservatorship with regard to Theresa Singleton, a person alleged to be incapacitated. His client in this matter, the Petitioner, is Nakeashia Osterloh, the mother of both Theresa Singleton and Donisher Hill. (Doc. 17-1). After holding a hearing, Judge Davis entered an Order dated May 16, 2018 that revoked all power of attorney instruments executed by Theresa Singleton and required Plaintiff Hill to furnish the Probate Court with any and all bank records and to provide an accounting of all expenditures pertaining to Ms. Singleton. Copies of these documents were also to be provided to J. Gregory Carwie, Esq., David Zimmerman, Esq. and William Donaldson, Esq.[4]

         Based on these actions by Mr. Zimmerman, Plaintiff named him as a defendant in her claim for monetary and injunctive relief based on allegations of a concerted violation of state and federal rights by defendants Zimmerman and Davis. Against this backdrop, defendants argue that her complaint is frivolous and should be dismissed under numerous legal theories. In addition, Judge Davis seeks Rule 11 sanctions.

         Analysis

         I. Standards of Review on a Motion to Dismiss.

         The motions to dismiss filed in this action are interpreted to raise as grounds for dismissal the lack of subject matter jurisdiction and the failure to state a claim upon which relief may be granted. Rule 8(a) of the Federal Rules of Civil Procedure requires the plaintiff to present “a short and plain statement of the grounds for the court's jurisdiction” and “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(1)-(2). Courts are also in a position of raising issues concerning subject matter jurisdiction sua sponte in situations where the Court perceives a jurisdictional problem. See Fed.R.Civ.P. 12(h)(3) (a court must dismiss an action “[i]f the court determines at any time that it lacks subject-matter jurisdiction”).

         Attacks on subject matter jurisdiction pursuant to Rule 12(b)(1), Fed.R.Civ.P. may be facial or factual. Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009). A facial attack on the complaint requires the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion. By contrast, a factual attack on a complaint challenges the existence of subject matter jurisdiction using material extrinsic from the pleadings, such as affidavits or testimony. Stalley ex rel. U.S. v. Orlando Regional Healthcare System, Inc., 524 F.3d 1229, 1232-33 (11th Cir. 2008) (quoting McElmurray v. Consol. Gov't of Augusta-Richmond County, 501 F.3d 1244, 1250 (11th Cir. 2007) (quotation, citation, and alterations omitted). After a review of the Complaint, Amended Complaint and the Motions to Dismiss, including exhibits, it is determined that the jurisdictional attacks in this case are both facial and factual. Therefore, the undersigned has reviewed the public records of the Probate Court that are relevant to the probate proceeding referenced by the parties as relevant information regarding the Court's jurisdiction.

         II. Plaintiff' Claims.

         Although neither the Complaint or the Amended Complaint specifically contain a reference to a jurisdictional statue such as 28 U.S.C. § 1331, Hill did complete the Civil Cover Sheet form by marking the section indicating federal question jurisdiction. (Doc. 1-1). In the same document, plaintiff informs the Court that all parties are citizens of the State of Alabama, ruling out any consideration of diversity jurisdiction. (Id.)

         Certainly, the Court has jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. However, in order to determine if a particular case arises under federal law for the purposes of § 1331, courts are governed by the well-pleaded-complaint rule. Scarborough v. Carotex Const., Inc., 420 Fed.Appx. 870, 873, 2011 WL 902222, at *2 (11th Cir. 2011) (quoting Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 830, 122 S.Ct. 1889, 1893, 153 L.Ed.2d 13 (2002)). The single act of selecting the federal question section of the Civil Cover Sheet is not sufficient on its own of meeting the pleading requirements of Rule 8(a)(1). Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 2062, 156 L.Ed.2d 1 (2003) (“A suit arises under the Constitution and laws of the United States only when the plaintiff's statement of his own cause of action shows that it is based upon those laws or that Constitution.”) (quoting Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908)). See also, Chief Holdings Group, LLC v. City National Bank, 2011 WL 13221002, at *5 (N.D.Ga., 2011) (“Moreover, although plaintiffs checked the box for federal question jurisdiction on their civil cover sheet, indicating that TILA [Truth in Lending Act], 15 U.S.C. § 1601 et seq., was the basis of their wrongful foreclosure claim, … the complaint itself contains no mention of any federal law, … .”) (internal quotation marks omitted).

         Even though Plaintiff did not include a specific jurisdictional statement in her Complaint or Amended Complaint, if a sufficient reference to federal law is contained in the complaint, a court may determine that federal jurisdiction does exist. Scarborough 420 Fed.Appx. at 873. In reviewing paragraph 5 of the form complaint utilized by the plaintiff, it is noted that she was required to state the facts on which she based her allegations that the defendants had violated her constitutional rights. (Docs. 1 & 2). The information in the original complaint and the amended complaint clearly show that she believes that her claims may proceed under the auspices of federal statutes 42 U.S.C. §§ 1983, 1985 and 1986 because of the actions taken by Mr. Zimmerman and Probate Judge Don Davis related to a guardianship action that is pending in the Probate Court of Mobile County, Alabama. She also references an Alabama criminal statute, theft by deception, and “power of attorney law.” (Doc. 1 at 1). Her statements fall short, however, of establishing federal question jurisdiction because she has not stated a constitutional right that was violated in her § 1983 claim and she has not presented facts that would establish a claim under 42 U.S.C. §§ 1985 and 1986. In addition, her presentation that the defendants violated the laws of Alabama covering the authority to grant powers-of-attorney and the criminal prohibition of theft by deception are determined to be state claims. Even if these claims could be considered viable, they claim violations of state law and cannot support federal question jurisdiction.

         Hill did not attempt to identify the specific federal law or constitutional right violated by Judge Davis and Mr. Zimmerman. She claims that after a meeting of the minds, these defendants used the guardianship action filed by Mr. Zimmerman on behalf of his client to deprive her of rights that she was granted through the execution of a power of attorney by her sister. (Doc. 1 at 1) (“Defendants' probate matter is a misguided legal coup of Plaintiff' rights.”). In the Amended Complaint, she adds information that Zimmerman attacked her status as an agent for her sister and was able to convince Judge Davis to issue a “void order” that harmed the plaintiff by terminating her sister's Power of Attorney that caused plaintiff great financial damage. (Doc. 2 at 1).

         “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 108 S.Ct. 2250, 2254-55, 487 U.S. 42, 48 (1988). In fact, the “first step in any such claim is to identify the specific constitutional right infringed.” Albright v. Oliver, 510 U.S., 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). “After pinpointing that right, courts still must determine the elements of, and rules associated with, an action seeking damages for its violation.” Manuel v. City of Joliet, Ill., 137 S.Ct. 911, 920 (2017). The Court is unable to identify a plausible constitutional right that Hill alleges was violated. Her right to act as an agent for her sister was clearly governed by state law, specifically, the Alabama Uniform Power of Attorney Act, Ala. Code § 26-1A-101 et seq. (1975). Under the Uniform Power of Attorney Act, it is also clear that a parent of the principal is authorized to seek judicial relief when he or she feels that the conduct of the principal's agent should be reviewed. In those instances, the court has the authority to “grant appropriate relief.” Ala. Code § 26-1A-116 (1975). Thus, Hill's attempt to show that she has brought a federal question action under § 1983 fails.

         42 U.S.C. § 1985 has three subparts and Hill has failed to identify which part of the statute applies in this case. If she purports to bring her conspiracy claims pursuant to 42 U.S.C. § 1985(2)-(3), that provision provides as follows:

[I]f two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws ... the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.

         The elements that must be established to prove a claim under § 1985(3) are:

(1) defendants engaged in a conspiracy; (2) the conspiracy's purpose was to directly or indirectly deprive a protected person or class the equal protection of the laws, or equal privileges and immunities under the laws; (3) a conspirator committed an act to further the conspiracy; and (4) as a result, the plaintiff suffered injury to either his person or his property, or was deprived of a right or privilege of a citizen of the United States.

Jimenez v. Wellstar Health System, 596 F.3d 1304, 1312 (11th Cir. 2010). “[T]he second element requires a showing of some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action. Burrell v. Board of Trustees of Ga. Military College, 970 F.2d 785, 794 (11th Cir.1992) (quoting United Brotherhood of Carpenters & Joiners of America, Local 610 v. Scott, 463 U.S. 825, 829, 103 S.Ct. 3352, 3356, 77 L.Ed.2d 1049 (1983) (internal quotation marks omitted).

         Although Hill is clearly trying to allege a conspiracy between Judge Davis and Mr. Zimmerman, she has not provided facts that would support such a conspiracy. She merely alleges facts from which one would infer that both defendants were merely performing their relevant tasks as an attorney and probate judge. Mr. Zimmerman brought the guardianship action on behalf of the mother of the principal, the action was litigated before Judge Davis and during those proceedings Hill's ability to act pursuant to a power of attorney executed by her sister was revoked. These facts do not establish a claim of conspiratorial conduct on the part of Judge Davis and Zimmerman to deprive the Plaintiff of any unidentified rights she has under the Constitution or ...


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