[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
October 19, 2005
No. 05-10769 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-61385-CV-PCH
JOHN WILLIAMS,
Plaintiff-Appellant,
versus
ROBERT B. CARNEY,
MICHAEL WEISS, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 19, 2005)
Before BLACK, HULL and WILSON, Circuit Judges.
PER CURIAM:
John Williams appeals the district court’s dismissal of his complaint, in
which he alleged violations of: (1) the Fourth and Fourteenth Amendments,
pursuant to 42 U.S.C. §§ 1983 and 1985; (2) section 934.10, Florida Statutes;1 and
(3) state law governing “intentional torts,” “abuse of process,” and “intentional
infliction of emotional distress.” We affirm the district court.
I. BACKGROUND
In his pro se complaint, Williams alleged Weiss and Anderson, two
attorneys for Billing, Cochran, Heath, Lyles, Mauro & Anderson, P.A. (Billing,
Cochran), illegally recorded statements he made at an aborted deposition. He also
alleged Judge Carney considered these recorded statements before compelling the
taking of his deposition, imposing sanctions on him, and revoking his pro hac vice
status in a case brought by a corporation affiliated with Williams against the city of
Fort Lauderdale, which was represented by Billing, Cochran. Williams attached as
exhibits to his complaint transcripts of the aborted deposition and the hearing in
which Judge Carney allegedly used these statements to sanction him.
The district court dismissed his complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which relief could be granted.
Williams asserts the district court erred in finding: (1) Judge Carney was entitled
1
Section 934.10, Florida Statutes provides a civil remedy for the unlawful interception,
disclosure, or use of wire, oral, or electronic communications.
2
to absolute judicial immunity; (2) Williams had no reasonable expectation of
privacy in his statements at issue; (3) Weiss, Anderson, and Billing, Cochran, were
not “state actors” for purposes of § 1983; and (4) Weiss, Anderson, and Billing,
Cochran were entitled to assert Florida’s litigation privilege as a defense to suit.
II. DISCUSSION
We review de novo the grant of a motion to dismiss, taking as true the facts
as alleged in the complaint.2 Doe v. Pryor, 344 F.3d 1282, 1284 (11th Cir. 2003).
Motions to dismiss are only granted “when the movant demonstrates ‘beyond
doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.’” Spain v. Brown & Williamson Tobacco Corp., 363
F.3d 1183, 1187 (11th Cir. 2004) (citation omitted). “Pro se pleadings are held to
a less stringent standard than pleadings drafted by attorneys and will, therefore, be
liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.
1998).
A. Judicial immunity
Under the doctrine of judicial immunity, a judge is entitled to absolute
judicial immunity from damages for those acts taken: (1) while acting in a judicial
2
Because Williams’ exhibits were attached to his complaint, the district court did not err
in considering them without converting the motion to dismiss into a summary judgment request.
See Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1368 (11th Cir. 1997).
3
capacity; unless (2) acting in the clear absence of all jurisdiction. Bolin v. Story,
225 F.3d 1234, 1239 (11th Cir. 2000). Whether an act is done within a judge’s
judicial capacity is determined by “the nature of the act itself, i.e., whether it is a
function normally performed by a judge, and to the expectations of the parties, i.e.,
whether they dealt with the judge in his judicial capacity.” Mireles v. Waco, 112 S.
Ct. 286, 288 (1991). As to the second requirement, a judge does not act in the
“clear absence of all jurisdiction” when he acts erroneously, maliciously, or in
excess of his authority, but rather when he acts without subject matter jurisdiction.
Dykes v. Hosemann, 776 F.2d 942, 947–48 (11th Cir. 1985).
“Injunctive relief shall not be granted” in an action brought against “a
judicial officer for an act or omission taken in such officer's judicial capacity . . .
unless a declaratory decree was violated or declaratory relief was unavailable.”
Bolin, 225 F.3d at 1242 (quotation omitted). Declaratory relief is available if a
plaintiff establishes a violation, a serious risk of continuing irreparable injury if the
relief is not granted, and the absence of an adequate remedy at law. Id.
Judge Carney’s state court orders compelling the taking of Williams’
deposition, imposing sanctions on Williams, and revoking his pro hac vice status,
as well as any “use” of Williams’ “intercepted” statements, were judicial acts
because they were normal judicial functions in a case pending before him, occurred
4
in his courtroom, and arose from dealings with him in his official capacity.
Moreover, even assuming the truth of Williams’ allegations, that Judge Carney
improperly considered the intercepted statements before entering his orders, Judge
Carney did not act in the “clear absence of all jurisdiction,” as he still had subject
matter jurisdiction over the proceedings, regardless of a particular act. See Dykes,
776 F.2d at 947–48. As such, the district court did not err in dismissing Williams’
claims for monetary damages against Judge Carney under the doctrine of judicial
immunity.
Moreover, Williams sought two forms of injunctive relief. First, he asked
for an injunction “from further disclosure and use of the aforesaid communication
and the other material integrated and packaged in the motion improperly presented
to, and used by the defendant Judge Carney to penalize plaintiff.” However,
Williams failed to allege what “serious risk of continuing irreparable injury” he
faced absent such relief. Indeed, he admitted in his complaint he voluntarily
dismissed the prior state suit. Without such an allegation, declaratory relief was
unavailable to him, and the district court did not err in dismissing this claim. See
Bolin, 225 F.3d at 1242.
Williams also asked for a “mandatory injunction” directing the removal and
destruction of any court files containing his statements. This claim also fails
5
because there was an adequate remedy at law, namely, an extraordinary writ, such
as a writ of mandamus, to compel the proper parties to remove and destroy these
papers. See Bolin, 225 F.3d at 1242. Thus, the district court did not err in
dismissing Williams’ claims for injunctive relief against Judge Carney.
B. Section 934.10, Florida Statutes
Section 934.10, Florida Statutes provides a civil remedy for persons whose
wire, oral, or electronic communications are intercepted, disclosed, or used in
violation of sections 934.03–.09, Florida Statutes. “Oral communication” is
defined as “any oral communication uttered by a person exhibiting an expectation
that such communication is not subject to interception under circumstances
justifying such expectation . . . .” § 934.02(2), Fla. Stat. “From this language, it is
clear that the legislature did not intend that every oral communication be free from
interception without the prior consent of all the parties to the communication.”
State v. Inciarrano, 473 So. 2d 1272, 1275 (Fla. 1985). Rather, “[a] reasonable
expectation of privacy under a given set of circumstances depends upon one’s
actual subjective expectation of privacy as well as whether society is prepared to
recognize this expectation as reasonable.” Id. (emphasis in original). In
determining reasonableness under this provision, Florida’s courts look to Fourth
Amendment jurisprudence. Brandin v. State, 669 So. 2d 280, 282 n.2 (Fla. 1st
6
DCA 1996). Factors used include the location where the communication occurs,
the manner in which the communication is made, and the kind of communication at
issue. Stevenson v. State, 667 So. 2d 410, 412 (Fla. 1st DCA 1996).
Exhibits to the complaint showed Williams, who appears to be a licensed
attorney in New York, made his statements at an aborted deposition after he had
introduced himself and objected to the proceedings and the recording of his
statements. Yet, after he made these objections, Williams directed the statements
at issue to those present. These statements, as well as the manner in which they
were made, concerned a public proceeding and even if not to be recorded, were not
qualified, in advance, as confidential, privileged, or private. Thus, the statements
were not communications that society is prepared to recognize as falling under an
objective expectation of privacy. See Inciarrano, 473 So. 2d at 1275 (finding an
individual has no reasonable expectation of privacy in statements made with intent
to do harm to another). Accordingly, the district court did not err in dismissing his
section 934.10 claims, as his statements were not “oral communications” within
the meaning of that provision.
C. Section 1983
In order to prevail in a § 1983 action, “a plaintiff must show that he or she
was deprived of a federal right by a person acting under color of state law.” Griffin
7
v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). “Only in rare
circumstances can a private party be viewed as a ‘state actor’ for section 1983
purposes.” Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992). In order for a
private party to be considered a “state actor,” we have held one of three conditions
must be met: (1) the state has coerced or at least significantly encouraged the
action alleged to violate the Constitution; (2) the private party performed a public
function that was traditionally the exclusive prerogative of the state; or (3) the state
had so far insinuated itself into a position of interdependence with the private party
that it was a joint participant in the enterprise. Rayburn ex rel. Rayburn v. Hogue,
241 F.3d 1341, 1347 (11th Cir. 2001).
Assuming arguendo that a private attorney, representing a city in a civil
action, is a “state actor” for § 1983 purposes, and further assuming these attorneys
were “state actors,” Williams failed to allege sufficient facts to show a violation of
a federal right. See Calhoun v. Lillenas Publishing, 298 F.3d 1228, 1230 n.2 (11th
Cir. 2002) (holding we “may affirm the district court on different grounds as long
as ‘the judgment entered is correct on any legal ground regardless of the grounds
addressed, adopted or rejected by the district court’”). The district court did not err
in dismissing Williams’ § 1983 claims against Weiss, Anderson, and Billing,
Cochran.
8
While the Supreme Court has expressly held the Fourth Amendment protects
against the “recording of oral statements,” it has also held “[w]hat a person
knowingly exposes to the public, even in his own home or office, is not a subject
of Fourth Amendment protection.” Katz v. United States, 88 S. Ct. 507, 511–12
(1967). Taking Williams’ allegations as true, his remarks were made publicly, for
all those within earshot to hear. Under these circumstances, he cannot show the
Fourth Amendment precludes the recording of such statements.
Moreover, Williams also failed to allege sufficient facts to establish a
procedural or substantive due process violation under the Fifth Amendment.
“Procedural due process requires notice and an opportunity to be heard before any
governmental deprivation of a property interest.” Zipperer v. City of Fort Myers,
41 F.3d 619, 623 (11th Cir. 1995) (citations omitted). The substantive due process
clause “protects only those rights that are ‘fundamental,’ that is, rights that are
‘implicit in the concept of ordered liberty.’” McKinney v. Pate, 20 F.3d 1550,
1556 (11th Cir. 1994) (en banc) (citation omitted).
Williams did not allege any facts he was denied notice or an opportunity to
be heard. Rather, he alleges that a court reporter—not named as a
defendant—recorded his statements made to opposing counsel at an aborted
deposition, and the law firm and attorneys used that statement to seek to compel
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his deposition and obtain an order revoking his pro hac vice status. Such actions
do not invoke a “fundamental right implicit in the concept of ordered liberty.” As
such, Williams has failed to allege facts sufficient to establish the deprivation of a
fundamental right.
D. Litigation privilege
Under Florida law, “absolute immunity must be afforded to any act
occurring during the course of a judicial proceeding . . . so long as the act has some
relation to the proceeding.” Green Leaf Nursery v. E.I. DuPont De Nemours and
Co., 341 F.3d 1292, 1302 n.8 (11th Cir. 2003). This litigation privilege “extends
not only to the parties in a proceeding but to . . . counsel as well.” Levin,
Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Ins.
Co., 639 So. 2d 606, 608 (Fla. 1994). As such, this privilege bars tort claims based
on counsel’s conduct during the course of litigation. See Jackson v. BellSouth
Telecomms., 372 F.3d 1250, 1275–76 (11th Cir. 2004) (holding Florida’s litigation
privilege barred suit against attorneys). Further, we have held “Florida law
suggests that the Florida courts would agree that ‘events taking place outside the
courtroom during discovery . . . [are] deserving of the protection of the [litigation]
privilege . . . .’” Id. at 1276.
10
Williams based his state tort law claims on an attorney’s conduct at an
aborted deposition and at a subsequent hearing on a motion to compel. Such
conduct by an attorney at a judicial proceeding is protected by absolute immunity
under Florida’s litigation privilege. Moreover, as discussed above, none of the
Appellees engaged in criminal actions under Florida law, and thus Williams’
argument that the privilege was waived necessarily fails.3
III. CONCLUSION
The district court did not err in: (1) finding Judge Carney was entitled to
absolute judicial immunity; (2) finding Williams had no reasonable expectation of
privacy in his statements at issue; (3) dismissing Williams’ § 1983 claims against
Weiss, Anderson, and Billing, Cochran; and (4) concluding Weiss, Anderson, and
Billing, Cochran were entitled to assert Florida’s litigation privilege as a defense to
suit.
AFFIRMED.
3
Although the district court relied on Rooker v. Fidelity Trust Co., 44 S. Ct. 149 (1923),
and D.C. Court of Appeals v. Feldman, 103 S. Ct. 1303 (1983) (the Rooker-Feldman doctrine) to
dismiss Williams’ federal law claims against Judge Carney, we do not address this issue because
it is unnecessary to the resolution of this case.
11