[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 29, 2005
No. 05-12678
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-21728-CV-AJ
MONTGOMERY BLAIR SIBLEY,
Plaintiff-Appellant,
versus
MAXINE COHEN LANDO,
ALAN R. SCHWARTZ,
MARIO P. GODERICH,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 29, 2005)
Before BIRCH, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Montgomery Blair Sibley appeals the district court’s dismissal of his state
tort and federal civil rights claims against Judge Maxine Cohen Lando, Judge Alan
R. Schwartz, and Judge Mario P. Goderich as well as the district court’s denial of
his motion to amend his complaint. The district court dismissed the claims because
state and federal judicial immunity prevents the collateral review he seeks, and it
denied the motion to amend because the change would not have created claims that
could survive the judicial immunity defense. We AFFIRM.
I. BACKGROUND
In the underlying state court action, which we expressly do not review for
the substance of its decision, Sibley was confined for failure to pay child support in
the amount of $100,000. See Sibley v. Sibley, 833 So. 2d 847 (Fla. Dist. Ct. App.
2002). Continuing what has become a multi-headed leviathan of meritless
litigation, Sibley sued his trial and appellate state court judges in federal court on
state and federal causes of action for $10 million each.1 The district court
1
By judicial decree, Sibley has been barred from self-representation in Florida state
courts as a result of his vexatious litigation. See Sibley v. Sibley, 885 So. 2d 980, 988 (Fla. Dist.
Ct. App. 2004). Sibley seems unfazed by sanctions against his person, so the Florida courts
decided that his frivolous suits could continue only if Sibley could convince another lawyer to
take his case. Id. Sibley also has a history of abusive litigation in federal courts. See Sibley v.
Wilson, 2004 U.S. Dist. 22205 (S.D. Fla. 2004) (listing cases). The latest of these was to sue the
Justices of the United States Supreme Court, in their individual capacities, for denying certiorari
in his case. See Sibley v. United States Supreme Court, 136 F. App’x 252 (11th Cir. 2005). A
similar remedy to that employed in Florida courts might be appropriate, upon motion to a district
2
dismissed, because, given the defense of judicial immunity, Sibley failed to state a
claim.
On appeal, Sibley argues that Judge Lando was not entitled to judicial
immunity as to the state law claims of unlawful imprisonment, because she had lost
jurisdiction over his case when he filed seven affidavits seeking her recusal, and
her subsequent incarceration of him was, therefore, unlawful. Sibley asserts that,
under Fla. Stat. § 38.10, a litigant need only file an affidavit stating that he fears he
will not receive a fair trial in order to bar a judge from proceeding. He filed seven
such motions and affidavits, which he argues barred Judge Lando from proceeding
in his case and rendering a judicial immunity defense unavailable to her. In his
eighth claim, Sibley reiterates that Judge Lando lost jurisdiction when she failed to
rule on one of his motions to disqualify. Sibley contends that, because Judge
Lando exceeded her jurisdiction, she is ineligible for judicial immunity from his
§ 1983 claims.
As to Judges Schwartz and Goderich, Sibley argues that these appellate
judges acted in the complete absence of jurisdiction. Sibley also contends that
Judges Schwartz and Goderich committed “non-judicial” acts outside the scope of
their jurisdiction by (1) soliciting evidence during oral argument outside the record
court, given Sibley’s history of vexatious litigation. This court has enforced similar sanctions in
the past. See, e.g., Martin-Trigona v. Shaw, 986 F.2d 1384, 1386-87 (11th Cir. 1993).
3
on appeal, and (2) “fabricating” evidence not contained in the record. Sibley
argues that these actions violated Florida Rule of Appellate Procedure 9.200 and,
thus, that the judges were not entitled to judicial immunity.
II. DISCUSSION
We review motions to dismiss for failure to state a claim de novo, and we
accept the allegations in the complaint as true, construing them in a light most
favorable to the plaintiff.2 Spain v. Brown & Williamson Tobacco Corp., 363 F.3d
1183, 1187 (11th Cir. 2004) (citing Fed. R. Civ. Pro. 12(b)(6)). 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.”
Id. “We review the denial of a motion to amend a complaint for an abuse of
discretion standard.” Green Leaf Nursery v. E.I. DuPont De Nemours & Co., 341
F.3d 1292, 1300 (11th Cir. 2003).
A. Judicial Immunity Under Federal Law
2
We reject Sibley’s argument that the failure to plead the affirmative defense of judicial
immunity precludes dismissal, because dismissal is available, as in this case, when the defense is
an obvious bar given the allegations. See Marsh v. Butler County, 268 F.3d 1014, 1022 (11th
Cir. 2001) (en banc).
4
“Judges are entitled to absolute judicial immunity from damages for those
acts taken while they are acting in their judicial capacity unless they acted in the
‘clear absence of all jurisdiction.’” Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir.
2000) (citations omitted). “This immunity applies even when the judge’s acts are
in error, malicious, or were in excess of his or her jurisdiction.” Id. Whether a
judge’s actions were made while acting in his judicial capacity depends on
whether: (1) the act complained of constituted a normal judicial function; (2) the
events occurred in the judge’s chambers or in open court; (3) the controversy
involved a case pending before the judge; and (4) the confrontation arose
immediately out of a visit to the judge in his judicial capacity. Scott v. Hayes, 719
F.2d 1562, 1565 (11th Cir. 1983).
We reject, from the outset, the use of § 1983 as a device for collateral review
of state court judgments.3 Cf. Exxon Mobile Corp. v. Saudi Basic Indus. Corp.,
___ U.S. ___, 125 S. Ct. 1517, 1521-22 (2005). As § 1983 is applied to this case,
therefore, we do not ask whether civil incarceration was appropriate. The inquiry
is whether ordering civil incarceration is a judicial activity. Similarly, we do not
review whether the substance of a question at oral argument was improper, but
3
We note that this form of appellate review is unusual. Sibley does not ask us to fix an
erroneous state court judgment, which we could not do, but rather to award $10 million against
each state court judge who participated in his cases. This alignment of parties distinguishes this
case from a case where review under the Rooker-Feldman doctrine would be appropriate.
5
rather, whether questions in oral argument are judicial acts. Sibley had his
opportunity to contest the propriety of these judges’ merits decisions in the
appellate process. See Sibley v. Sibley, 833 So. 2d 847 (Fla. Dist. Ct. App. 2002),
review denied, 854 So. 2d 660 (Fla. 2003), cert. denied, 540 U.S. 1109, 124 S. Ct.
1074 (2004).
1. Federal Claims Against the State Trial Judge
With regard to Sibley’s § 1983 claims against Judge Lando, the district court
properly concluded that Judge Lando had judicial immunity from Sibley’s claims,
because, by issuing the writ of bodily attachment, Judge Lando was committing a
judicial act. See Bolin, 225 F.3d at 1239; see also Pope v. Quattelbaum, 884 So.
2d 301, 301 (Fla. App. Dist. Ct. 2004) (discussing and applying Florida Family
Law Rule of Procedure 12.615(e)’s writ of bodily attachment provision). The
jurisdictional inquiry is a state law question and is discussed in section B of this
opinion regarding state law immunity. Because we conclude in that section that
there was no “clear absence of jurisdiction” and because Judge Lando was acting in
her judicial capacity, the § 1983 claims against Judge Lando were properly
dismissed.
6
2. Federal Claims Against the State Appellate Judges
Sibley challenges Judge Schwartz’s question at oral argument regarding the
source of funds used on appeal and the participation of both judges in an
unfavorable decision, because the opinion used allegedly “fabricated” evidence.
Sibley does not contest the jurisdiction of the appellate court to hear his case and
only contends that the actions by the judges were neither judicial nor appellate in
nature.4 Because asking questions at oral arguments and issuing a decision in the
form of a written opinion are judicial actions and because the judges were not
acting in the “clear absence of all jurisdiction,” Judges Schwartz and Goderich are
entitled to judicial immunity from Sibley’s claims.5 Bolin, 225 F.3d at 1239.
4
Sibley’s farcical argument that, because an appellate judge asked a factual question, the
proceeding was transformed from an appeal into a trial is unsupported in law. He cites no case
or statute for this argument, and we can find none. The appeal to the state district court was
procedurally proper, and that ends our jurisdictional inquiry. Florida Rule of Appellate
Procedure 9.200, which is cited by Sibley as authoritative, describes the content of the appellate
record. That rule does not provide a mechanism whereby an appellate court becomes a trial
court in any circumstance nor does it provide a rubric for removing the jurisdiction of an
appellate court.
5
Sibley argues that it is unjust to allow a judicial immunity defense because he gets no
appellate review. However, in this very case, he sought review in both the Supreme Court of
Florida and the United States Supreme Court. Both declined. See Sibley v. Sibley, 833 So. 2d
847 (Fla. Dist. Ct. App. 2002), review denied, 854 So. 2d 660 (Fla. 2003), cert. denied, 540 U.S.
1109, 124 S. Ct. 1074 (2004). Such appeals are the appropriate recourse for review of the
decisions of state courts, and not collateral review in federal courts. Cf. Exxon Mobile Corp.,
125 S. Ct. at 1522-23 (discussing appellate review of state court cases in the context of the
Rooker-Feldman doctrine); see also Sibley, 136 F. App’x at 252 (discussing Sibley’s appellate
options).
Sibley betrays his desire for this court to conduct a substantive review of things already
decided when he suggests that he received insufficient appellate review. The law of judicial
immunity is well settled and does not include an inquiry into the merits of the decision. Bolin,
7
B. Judicial Immunity Under State Law
Florida courts have adopted a doctrine of absolute judicial immunity and
have equated it to the federal doctrine discussed previously in section A of this
opinion.6 See Office of the State Attorney v. Parrotino, 628 So. 2d 1097, 1099
(Fla. 1993). Thus, as in the federal system, judges are immune from suit for
judicial acts “unless they clearly act without jurisdiction.” Johnson v. Harris, 645
So. 2d 96, 98 (Fla. Dist. Ct. App. 1994); see also Berry v. State, 400 So. 2d 80, 83
& n.3 (Fla. Dist. Ct. App. 1981) (citing cases). Sibley argues that his petition for
recusal divested Judge Lando of jurisdiction.7
225 F.3d at 1239 (“This immunity applies even when the judge’s acts are in error, malicious, or
were in excess of his or her jurisdiction.”).
6
We note that, because of the location of her court in the Eleventh Judicial Circuit, the
precedent governing Judge Lando’s conduct is from the Third District of Florida and the Florida
Supreme Court. However, we decide whether immunity applies from the perspective of the
Florida Supreme Court. See McMahan v. Toto, 311 F.3d 1077, 1080 (11th Cir. 2002)
(observing that it is the duty of federal courts to decide diversity questions as the state’s
intermediate appellate courts do unless it is clear that the state supreme court would decide the
case differently).
7
Sibley cites a Florida Statue and Rule of Judicial Administration for the law that
removed Judge Lando’s jurisdiction. The statute, which governs disqualification of a judge for
prejudice, states:
Whenever a party to any action or proceeding makes and files an affidavit stating
fear that he or she will not receive a fair trial in the court where the suit is pending
on account of the prejudice of the judge of that court against the applicant or in
favor of the adverse party, the judge shall proceed no further, but another judge
shall be designated in the manner prescribed by the laws of this state for the
substitution of judges for the trial of causes in which the presiding judge is
disqualified.
Fla. Stat. § 38.10. The Florida Rules of Judicial Administration, which govern disqualification
8
Sibley’s contention would have merit only if the affidavit submitted to the
court automatically deprived Judge Lando of jurisdiction.8 If the affidavit did not
deprive her of jurisdiction, then Judge’s Lando would be absolutely immune from
suit for judicial acts. Because, as we concluded in the § 1983 discussion of this
opinion, ordering civil incarceration is a judicial act, the only question is whether
Judge Lando clearly acted without jurisdiction.
The state appellate court, whose rulings govern Judge Lando’s court, stated
that a trial judge is not automatically disqualified under Rule 2.160 even if she fails
to rule on a disqualification motion within 30 days of filing. Tarrant v. Jacoboni,
of trial judges, states:
Determination – Initial Motion. The judge against whom an initial motion to
disqualify . . . is directed shall determine only the legal sufficiency of the motion
and shall not pass on the truth of the facts alleged. If the motion is legally
sufficient, the judge shall immediately enter an order granting disqualification and
proceed no further in the action.
Fla. R. Jud. Admin. 2.160(f). The Florida Supreme Court has noted that Rule 2.160 governs the
process for judicial disqualification, while § 38.10 controls the substantive right. See Cave v.
State, 660 So. 2d 705, 707 (Fla. 1995). Sibley, however, fails to mention that this is not the end
of the inquiry. The judge is not automatically disqualified, but rather must take the facts as true
and assess whether those “facts alleged would place a reasonably prudent person in fear of not
receiving a fair and impartial trial.” Barnhill v. State, 834 So. 2d 836, 843 (Fla. 2002)
(quotations omitted). Even though it is clear that this is a very deferential standard in favor of
granting the litigant’s first motion for a new judge, this language means that the petition for
withdrawal does not itself remove jurisdiction.
8
The state argues, in the alternative, that jurisdiction, for purposes of this question, is
vested in the trial court and not in a particular judge, citing Kalmanson v. Lockett, 848 So. 2d
374, 379 (Fla. Dist. Ct. App. 2003). On this argument, it is the court that ordered civil
incarceration, and as long as the court was properly with jurisdiction, which Sibley does not
deny, then failure to rule on a motion, which would merely alter which judge signed the order, is
immaterial.
9
780 So. 2d 344, 344-45 (Fla. Dist. Ct. App. 2001). Thus, at the time her ruling was
made,9 Judge Lando was not automatically disqualified because she failed to rule
on the motion for 30 days. We conclude, therefore, that Judge Lando did not act in
an absence of jurisdiction.
Furthermore, after Sibley filed the first affidavit seeking Judge Lando’s
disqualification, Judge Lando retained, at a bare minimum, the jurisdiction to
perform ministerial acts and, therefore, was not divested of all jurisdiction over the
matter. See Fischer v. Knuck, 497 So. 2d 240, 243 (Fla. 1986). Accordingly,
when she issued the writ of bodily attachment , Judge Lando may have acted in the
excess of her jurisdiction, but she did not act in the “clear absence of all
jurisdiction.” See Bolin, 225 F.3d at 1239. Thus, Judge Lando is entitled to
judicial immunity as to these claims. Id.
Likewise, with respect to Sibley’s eighth claim that Judge Lando’s transfer
from the Family Division resulted in her loss of jurisdiction over his case, her
transfer from the Family Division and all of her rulings Sibley challenged in his
9
In May 2003, however, the Florida Supreme Court ruled, in Tableau Fine Art Group,
Inc. v. Jacoboni, 853 So. 2d 299, 302-03 (Fla. 2003), that a motion to disqualify must be ruled
upon within 30 days of filing. The Florida Supreme Court, however, declined to make this
ruling retroactive. Id. at 303. Therefore, a state court judge’s failure to rule on a motion to
disqualify within 30 days, pre-Tableau, does not take away the jurisdiction to rule. See Sibley v.
Sibley, 885 So. 2d 980, 983-84 (Fla. Dist. Ct. App. 2004), review denied, 901 So. 2d 120 (Fla.
2005), cert. denied, 04-1411 (U.S. Oct. 3, 2005); City of Hollywood v. Witt, 868 So. 2d 1214,
1218 (Fla. Dist. Ct. App. 2004).
10
complaint occurred prior to the Florida Supreme Court’s decision in Tableau.
Under the binding precedent regarding Fla. Stat. § 38.10 at the time, therefore,
Judge Lando retained jurisdiction over Sibley’s case. See Tarrant, 780 So. 2d at
344-45. Thus, her issuance of a writ of bodily attachment was a judicial act, and
she was not operating under a “clear absence of jurisdiction.” See Bolin, 225 F.3d
at 1239.
C. Motion To Amend
Under the Federal Rules, leave to amend a complaint that is requested after
a responsive pleading has been filed “shall be freely given when justice so
requires.” Fed. R. Civ. P. 15(a). This rule “severely restricts” a district court’s
discretion to dismiss a complaint without first granting leave to amend. Bryant v.
Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). Nonetheless, a district court may
dismiss when such amendment would be futile. Id. “[We have] found that denial
of leave to amend is justified by futility when the complaint as amended is still
subject to dismissal.” Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1263 (11th
Cir. 2004) (citation omitted).
We have held that, “[i]n order to receive declaratory or injunctive relief,
plaintiffs must establish that there was a violation, that there is a serious risk of
11
continuing irreparable injury if the relief is not granted, and the absence of an
adequate remedy at law.” Bolin, 225 F.3d at 1242. In Bolin, we held that a
plaintiff was ineligible for declaratory relief, because he had an adequate remedy at
law—specifically, the right to appeal to this court or up the state appellate courts
and to petition the Supreme Court for certiorari. Id. at 1243. Sibley is ineligible
for equitable relief because he had access to the appellate process, a remedy at law,
and, thus, his proposed claim for declaratory relief against Judges Schwartz and
Goderich would have been futile. See Bryant, 252 F.3d at 1163.
To the extent that Sibley sought to amend his complaint to incorporate a
transcript of the hearing during which Judge Lando incarcerated him, the addition
of the transcript could not have changed the fact that his complaint failed to state a
claim, because, as discussed herein, Judge Lando was not acting in the absence of
all jurisdiction, and, therefore, had judicial immunity from suit. Finally, to the
extent Sibley sought to amend his complaint to clarify that he wished to sue Judges
Schwartz and Goderich in their individual capacities, such an amendment would
also be futile, as both judges were entitled to judicial immunity from suit in their
individual capacities. See Simmons v. Conger, 86 F.3d 1080, 1084-85 (11th
Cir.1996) (noting that a judge sued in his individual capacity was entitled to
absolute judicial immunity from damages in a § 1983 case). Thus, the district
12
court did not abuse its discretion in declining to permit Sibley to amend his
complaint because that amendment, as well as the other requested actions, would
be futile. See Bryant, 252 F.3d at 1163.
III. CONCLUSION
Sibley complained that Florida state judges acted without jurisdiction and
that he deserves compensation or the opportunity to amend his complaint to state a
claim. We disagree, because the judges who Sibley sued are shielded from all the
claims he brought, and all the claims he sought to bring in the amended complaint,
by absolute judicial immunity. Consequently, the district court decision is
AFFIRMED.
13