[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-10546 JULY 7, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 06-00138-CV-CDL-4
HENRY COOK,
Plaintiff-Appellant,
versus
RANDOLPH COUNTY, GEORGIA,
RANDOLPH COUNTY DEPARTMENT OF REGISTRATION
AND ELECTIONS, VOTER REGISTRATION DIVISION,
HONORABLE LINDA JACKSON, Individually,
and in her official capacity as Superintendent
of Elections for Randolph County, Georgia,
WINONA JOHNSON, Individually and in her
official capacity as Deputy Registrar of
Randolph County, Georgia,
LORRAINE CURRY, Individually and in her
official capacity as Deputy Registrar
of Randolph County, Georgia,
CAROL RAY, Individually, and in her
official capacity as Chief Registrar
of Randolph County, Georgia,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(July 7, 2009)
Before TJOFLAT and CARNES, Circuit Judges, and HOOD,* District Judge.
CARNES, Circuit Judge:
As Justice Holmes once remarked, “pretty much all law consists in
forbidding men to do some things that they want to do.” Adkins v. Children’s
Hospital, 261 U.S. 525, 568, 43 S. Ct. 394, 405 (1923) (Holmes, J., dissenting). In
this case the Randolph County Board of Registrars wanted to change the voting
registration of Henry Cook, a member of the county’s board of education, which
also would have changed the district from which he could run for office. The law
that prevented the board from doing that is § 5 of the Voting Rights Act of 1965,
42 U.S.C. §1973c, enforced by an injunction that was obtained in a lawsuit filed
by some of Cook’s constituents; that injunction required preclearance and the
Department of Justice refused to grant it. This appeal is not about the preclearance
requirement. Instead, it involves Cook’s separate lawsuit and his insistence that
even though the Board of Registrars’ attempt did not succeed, he is still entitled to
*
Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
2
an injunction against and monetary relief from the members of the Board and the
County.
I.
Henry Cook is an African American man who has served on the Randolph
County Board of Education as a representative of District 5 ever since 1993. He
continues to serve on that Board (and as its chairman). District 5 is a
predominantly African-American voting district, and Cook has been outspoken
about funding for that district’s schools. District 4 is predominantly white. Each
school district is represented on the board of education by someone who lives
within that district; there are no at-large representatives.
After the 2000 census, the Randolph County election maps were redrawn
and approved by the legislature. In 2002 a redistricting plan was submitted to the
Department of Justice for preclearance approval as required by § 5 of the Voting
Rights Act of 1965, 42 U.S.C. § 1973c. On the map showing the proposed
districts, the line between Districts 4 and 5 runs right through Cook’s 8-acre
property. Most of his land is in District 5, but his house is in District 4. During
the preclearance process, a dispute arose about where Cook would be considered
to reside for voting purposes, and the County assured the Department of Justice
that Cook would still be considered to reside in District 5. That representation
3
induced the Department’s September 30, 2002 decision to grant preclearance to
the redistricting map, which was expressly conditioned on Cook’s voting district
not being changed. Cook thereafter received a “new” voter registration card
showing that he was still a registered voter in District 5, just as he had been
before.
On October 11, 2002, however, Lee Norris Jordan challenged whether Cook
could run for reelection to the Board of Education’s District 5 seat, asserting that
he did not actually reside in that district. Jordan, who is also African American,
was running against Cook for that district’s seat on the Board of Education. The
county election superintendent was Linda Jackson, but she recused herself from
deciding the matter because during the preclearance process she had assured the
Department of Justice that Cook would remain in District 5. Because of that
recusal, Superior Court Judge Gary McCorvey was appointed to serve as election
superintendent to decide the challenge. As acting election superintendent, Judge
McCorvey held a hearing on the matter on October 22, 2002. Six days later he
issued a decision concluding that “the residence of Henry L. Cook is within the
boundaries of such ‘new’ district five as contemplated by the Laws and
Constitutions of both the State of Georgia and the United States of America.” In
November of 2002 Cook was reelected to the Board of Education from District 5.
4
Because Jordan waited until after the election to appeal the acting election
superintendent’s decision, the Superior Court of Randolph County dismissed his
appeal as moot, and the Supreme Court of Georgia affirmed that dismissal. Jordan
v. Cook, 587 S.E.2d 52 (Ga. 2003).
Even though the relevant facts and law had not changed, on January 30,
2006 the three members of the Randolph County Board of Registrars (defendants
Carol Ray, Winona Johnson, and Lorraine Curry), all of whom are white, held a
specially called meeting and voted unanimously to change Cook’s voter
registration from District 5 to 4. The minutes of their meeting state that it “was
publicized twenty-four (24) hours in advance via the courthouse bulletin board
and the local legal organ, The Southern Tribune.” Cook says that he was not
given any prior notice. In regard to the reason for the change, the minutes state:
Our decision was based on the following facts: (1) first and foremost it is
our duty as voter registrars to establish the correct precinct and district of
eligible registered voters. (2) No city taxes are paid on the land owned by
Henry L. Cook at Rt. 1 Box 220 Howell Mill Road, indicating he is not in
the city limits which would be district five (5). He accepts homestead
exemption and purchases car tags at the above mentioned address. He has
been billed for county taxes, that were due no later than December 20, 2005,
and as of today (January 30, 2006) they have not been paid. (3) All
neighbors around him are in district four (4).
(capitalization altered). The minutes also note that Georgia Code § 21-2-226(b)
gives the Board of Registrars the duty “to determine and place any eligible
5
registered voter in the proper” district.
In February 2006, Cook received notice that his voting district had been
changed. The deadline for qualifying to run for the Board of Education was April
28, 2006. Because of the Board of Registrars’ action, Superintendent of Elections
Jackson would not provisionally qualify Cook to run from District 5.
II.
On April 17, 2006, two related lawsuits were filed. Cook filed one in the
Superior Court of Randolph County, Georgia. In addition to the three members of
the Board or Registrars, it named as defendants: Randolph County; the Randolph
County Department of Registration and Elections, Voter Registration Division;
and Linda Jackson, the superintendent of elections. All of the individual
defendants were sued in both their individual and official capacities. The original
complaint in that lawsuit claimed that the defendants had conspired to remove
Cook from his district because of racial animosity and also that he was not given
notice or an opportunity to be heard. It sought “to compel defendants to place
[Cook] back into his correct district from which he was removed by Defendants’
illegal conduct.” The complaint requested an injunction ordering the defendants
to place him back in District 5 and restraining any other candidates from
registering to run for the District 5 seat on the Board of Education until Cook was
6
reassigned to that district. It also sought monetary damages, attorney’s fees, and
costs.
On the same day that Cook filed his lawsuit in state court, some of his
constituents filed another one in federal district court against the same individual
defendants, as well as some others, seeking injunctive relief under § 5 of the
Voting Rights Act. See Jenkins v. Ray, No. 4:06-CV-43, 2006 WL 1582426
(M.D. Ga. June 5, 2006) (“the Jenkins lawsuit”). Cook was not a party to that
lawsuit. The Jenkins plaintiffs asked the court to enjoin the defendants from
removing Cook from District 5 without preclearance from the Department of
Justice. They also requested attorney’s fees under 42 U.S.C. §§ 1988 and 1973e.
The Jenkins plaintiffs prevailed. On June 5, 2006, the district court issued an
injunction barring “further use of the changes at issue absent preclearance [from
the Department of Justice] under Section 5 [of the Voting Rights Act].” Id. at *3.
The Department of Justice denied preclearance in a letter dated September
12, 2006. It concluded that the County had failed to meet its burden of showing
that the proposed change (the reassignment of Cook from District 5 to 4) did not
have a discriminatory purpose. In reaching that conclusion, the letter noted that
“the County [had] formally determined—and advised this Department—that Mr.
Cook was an eligible voter and candidate for office in District 5” during the
7
Department’s review of the proposed redistricting following the 2000 census.
Concerning the reassignment of Cook to District 4 in 2006, the letter stated:
This sequence of events is procedurally and substantively unusual.
The Board [of Registrars] resurrected the issue of Mr. Cook’s
residency after it had been settled for three years, without any
intervening change in fact or law, and without notifying Mr. Cook
that it was doing so. Moreover, it is particularly unusual for officials
with no legal training to overturn, in effect, a decision by a judge in
order to disturb an incumbent officeholder.1
As a result of the Department of Justice’s refusal to preclear the change in
Cook’s voter registration, he remained registered in District 5 and was qualified to
run for re-election from that district in the 2006 election. He did run and was re-
elected to the Board of Education from District 5. He still holds his position, as he
has for the past fifteen years.
Notwithstanding his electoral victory, Cook proceeded with his lawsuit,
which eventually led to this appeal. On November 15, 2006, five months after the
federal district court had issued its decision in Jenkins and two months after the
Department of Justice had denied preclearance to the change in his voting
1
We note that, although it does not affect the outcome in this lawsuit, the Department’s
letter indicates that it assumed that Gary McCorvey was acting in his judicial capacity when he
made a decision about Jordan’s challenge to Cook’s residency. If that was the assumption, it is
is wrong. McCorvey was acting solely as superintendent of elections, and he was doing that
because the non-judge who usually served in that position had recused herself.
8
registration, Cook filed a second amended complaint in his state court action.2 In
it Cook asserted for the first time claims under 42 U.S.C. §1983 alleging that the
defendants had: (1) violated his “procedural and substantive due process rights
and liberty rights under the 5th and 14th Amendments”; (2) discriminated and
retaliated against him based on race in violation of his “Constitutional right of due
process and equal protection under the 14th Amendment”; (3) interfered with his
right to vote and to be a candidate for public office in violation of his
“Constitutional rights under the 13th, 14th, and 15th Amendments”; (4) interfered
with his right to vote and run for public office as well as other rights in violation
of his “Constitutional rights under the 1st Amendment”; (5) violated his rights
under § 5 of the Voting Rights Act of 1965 and his rights under 42 U.S.C. § 1985;
(6) violated his due process and equal protection rights under the 1st, 13th, 14th,
and 15th Amendments; and (7) violated his rights to make, enforce, and enter into
a contract in violation of 42 U.S.C. § 1981. The second amended complaint
demanded damages, attorney’s fees, and costs under 42 U.S.C. §§ 1983, 1985,
1988, 1981, and 1973.
2
Cook’s first amended complaint was filed on June 5, 2006. It amended the original
complaint “for misnomer to make the style of the case consistent with the pleadings” by adding
Winona Johnson and Lorraine Curry as defendants in both their individual and official capacities.
9
On November 30, 2006, the defendants removed the lawsuit to federal court
based on federal question jurisdiction. Cook filed a timely motion to remand,
which the district court denied.
The defendants filed a motion for summary judgment on all of Cook’s
claims, and after a hearing the district court granted that motion on January 4,
2008. In analyzing the motion the district court divided Cook’s claims into a
“claim for injunctive relief,” which it held was moot because that relief had
already been granted in the Jenkins lawsuit, and “damages claims.” The court did
not, however, dismiss the claims as moot insofar as they sought injunctive relief.
Instead, it granted summary judgment, not on the merits but on mootness grounds.
The court then took up Cook’s “damages claims,” which it listed as follows:
(1) deprivation of his right to be free from race discrimination, in
violation of the Due Process and Equal Protection Clauses of the
Fourteenth Amendment, the Thirteenth and Fifteenth Amendments,
and 42 U.S.C. § 1981; (2) interference with his right to vote and his
right to run for public office, in violation of the First and Fourteenth
Amendments; (3) deprivation of his right to procedural due process,
in violation of the Fourteenth Amendment; and (4) conspiracy to
deprive him of his rights, in violation of 42 U.S.C. § 1985.
The court also listed as a damages claim Cook’s claim that the defendants had
violated Georgia law.
Insofar as damages were sought from the individual defendants, the district
10
court concluded that they were entitled to qualified immunity. The court reasoned
that there was no evidence that the individual defendants had deprived Cook of his
substantive rights under 42 U.S.C. § 1981 or the First, Thirteenth, Fourteenth, or
Fifteenth Amendments. The court noted that defendant Jackson did not even
participate in the attempt to change Cook’s voting registration, and for that reason
could not be liable for attempting to deprive Cook of any right not to have his
registration changed. As to the other individual defendants (Ray, Johnson, and
Curry), the district court found there was no evidence that their decision to
reassign Cook to District 4 deprived him of any right. Because Cook was allowed
to vote and run for office from District 5 “[a]t all times in 2006,” the attempted
reassignment did not interfere with his rights. The court also found that there was
no evidence that Ray, Johnson, or Curry had considered Cook’s race in deciding to
reassign him to District 4. Because Cook had failed to show that he was deprived
of any substantive right, the court held that the individual defendants were entitled
to qualified immunity on the claims against them.
The court next considered Cook’s claim that he was deprived of procedural
due process because he did not get notice and a hearing before the January 30,
2006 meeting at which the registrars decided to change his voting district. The
court set out the requirements: “In this circuit, a § 1983 claim alleging a denial of
11
procedural due process requires proof of three elements: (1) a deprivation of a
constitutionally-protected liberty or property interest; (2) state action; and (3)
constitutionally-inadequate process.” Grayden v. Rhodes, 345 F.3d 1225, 1232
(11th Cir. 2003). The court reasoned that “[a]s a registered elector in District 4,
plaintiff retained the right to cast a ballot and to run for public office.” In other
words, Cook was never actually deprived of those rights. The court concluded
that even if there is a constitutionally protected liberty or property interest in being
assigned to a particular voting district, Cook’s rights were not violated because he
was never actually deprived of his right to vote and run for office in District 5.
Therefore, the individual defendants were entitled to summary judgment on the
procedural due process claims.
The court went on to decide whether Randolph County was liable, because
the claims against the individual defendants in their official capacities were really
claims against the County. Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir.
1991) (“[W]hen an officer is sued under Section 1983 in his or her official
capacity, the suit is simply another way of pleading an action against an entity of
which an officer is an agent.”) (quotation marks omitted)). The district court found
that the evidence did not support Cook’s allegations of constitutional or statutory
violations and that he had not provided evidence of a county policy or custom that
12
had deprived him of his rights. For these reasons, the court granted summary
judgment to all of the defendants on Cook’s “claims for damages under 42 U.S.C.
§ 1983.”
The court separately considered Cook’s 42 U.S.C. § 1985(3) conspiracy
claim. It correctly listed the elements of a § 1985(3) conspiracy as follows:
(1) a conspiracy, (2) for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of
the laws, or of equal privileges and immunities under the laws; and
(3) an act in furtherance of the conspiracy, (4) whereby a person is
either injured in his person or property or deprived of any right or
privilege of a citizen of the United States.
Childree v. UAP/GA CHEM, Inc., 92 F.3d 1140, 1147 (11th Cir. 1996). The court
found that even if Cook had presented enough evidence on elements one and
three, he had failed to show that he had been “injured in his person or property or
deprived of any right or privilege of a citizen of the United States,” the fourth
element. On that basis, the court concluded the defendants were entitled to
summary judgment on Cook’s conspiracy claim.
Finally, the court concluded that the defendants were entitled to summary
judgment on Cook’s state law claims. It reasoned that the equal protection and
due process guarantees under the United States Constitution and the Georgia
Constitution are the same. For that reason, Cook’s claims under the Georgia
13
Constitution suffered from “the same fatal flaw” as the claims that he brought
under the United States Constitution—he had failed to show that the defendants
had deprived him of a protected right.
This is Cook’s appeal of the final judgment entered against him.
III.
Cook’s threshold contention is that the district court erred in denying his
timely motion to remand the lawsuit to state court. He argues that the district
court lacked subject matter jurisdiction because the notice of removal was
procedurally defective for two reasons. One reason he asserts is that the
defendants did not attach to their notice of removal all of the pleadings, process,
and orders from state court.
This is the statutorily prescribed procedure for filing a notice of removal:
A defendant or defendants desiring to remove any civil action or
criminal prosecution from a State court shall file in the district court
of the United States for the district and division within which such
action is pending a notice of removal signed pursuant to Rule 11 of
the Federal Rules of Civil Procedure and containing a short and plain
statement of the grounds for removal, together with a copy of all
process, pleadings, and orders served upon such defendant or
defendants in such action.
28 U.S.C. § 1446(a). To begin with, the failure to include all state court pleadings
and process with the notice of removal is procedurally incorrect but is not a
14
jurisdictional defect. See Covington v. Indemnity Ins. Co. of N. Am., 251 F.2d
930, 933 (5th Cir. 1958);3 see also Usatorres v. Marina Mercante Nicaraguenses,
S.A., 768 F.2d 1285, 1286 (11th Cir. 1985); 14C Charles Alan Wright, et al.,
Federal Practice and Procedure § 3733 (2008) (“The failure to conform to these
procedural rules is not a jurisdictional defect, and both the failure to file all the
state court papers or to provide the Rule 11 signature are curable in the federal
court if there is a motion to remand.”).
Besides, we are not persuaded that the defendants failed to attach “a copy of
all process, pleadings, and orders served upon such defendant or defendants in
such action.” 28 U.S.C. § 1446(a); see also Usatorres, 768 F.2d at 1286. Cook’s
motion to remand asserted in a conclusory fashion that “defendants did not meet
the procedural requirements for removing [this case] as is shown on the face of the
Notice of Removal.” He argued in support of his motion that “it is apparent that
defendants have not filed all of the pleadings in the state court proceeding.” But
the defendants were not required to file all of the pleadings from the state court
proceeding, only those that were served on them. See 28 U.S.C. § 1446(a);
Usatorres, 768 F.2d at 1286. Cook still has not specified which state court
3
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.
15
process, pleadings, or orders that were served on the defendants were missing
from the defendants’ notice of removal. The district court properly rejected
Cook’s “vague contention that Defendants’ removal was procedurally defective in
some way.”
Cook also contends that the removal was improper because the removal
notice did not show that all of the defendants consented. He is correct that
removal is proper only if all of the defendants consent, see Bailey v. Janssen
Pharmaceutica, Inc., 536 F.3d 1202, 1207 (11th Cir. 2008), but we have never
required that every defendant individually sign the notice of removal in order to
establish unanimous consent. This notice of removal stated in its first sentence
that “[a]ll defendants, by counsel, hereby file a Notice of Removal. . . .” The
notice was signed by the attorney who represented all of the defendants. As their
attorney, she was authorized to represent to the court what their positions were and
they were bound by the representations she made. See Burdis v. Texas & P. Ry.
Co., 569 F.2d 320, 324 n.3 (5th Cir. 1978) (concluding that “a pleading, prepared
by an attorney, is admissible and binding upon the pleading party”). Requiring the
additional formality of each defendant individually signing the removal notice
would impose a pointless burden. No one contends that any of the defendants did
not want the case removed. Absent some basis for believing that, the
16
representation of the attorney for the defendants that all of her clients consented to
the removal is enough.
IV.
We now turn to the merits, reviewing de novo the district court’s decision to
grant summary judgment to the defendants on all of the claims. See Ellinger v.
United States, 470 F.3d 1325, 1332 (11th Cir. 2006).
Cook’s second amended complaint, which is the one before us in this
appeal, incorporates by reference the factual allegations and legal claims in the
two previous complaints and then piles on them a slew of claims stated in only the
most conclusory fashion. The § 1983 claims include everything from alleged
violations of his substantive and procedural due process rights under the 5th and
14th Amendments, to violation of his equal protection rights under the 14th
Amendment, to interference with his right to vote and to be a candidate under the
13th, 14th, and 15th Amendments and retaliating against him because he exercised
those rights (some or all of these claims are alleged in more than one place), to
violation of his 1st Amendment rights of “political association, political beliefs,
and freedom of speech and association rights and right to petition the
government.” Cook throws on top of those claims another one for violation of his
right to vote and be a candidate for office and be free of retaliation for exercising
17
those rights, all in violation of § 5 of the Voting Rights Act. He also heaps on the
pile a 42 U.S.C. § 1985 claim for conspiracy to interfere with his right to vote and
be a candidate for public office and be free of retaliation based on race. Finally,
he adds for good measure a 42 U.S.C. § 1981 contract claim that asserts, without
explanation, that the interference with his right to vote and be a candidate for
public office and retaliating against him because of his race “violated Plaintiff’s
rights to make, enforce, and enter into a contract.”
Cook’s second amended complaint is a shotgun pleading. We have had
much to say about shotgun pleadings, none of which is favorable. See, e.g., Davis
v. Coca-Cola Bottling Co., 516 F.3d 955, 979 n.54 (11th Cir. 2008) (“[S]ince 1985
we have explicitly condemned shotgun pleadings upward of fifty times.”);
Strategic Income Fund, LLC v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293,
1295 n.9 (11th Cir. 2002) (“This court has addressed the topic of shotgun
pleadings on numerous occasions in the past, often at great length and always with
great dismay.”); Byrne v. Nezhat, 261 F.3d 1075, 1131 (11th Cir. 2001) (“Shotgun
pleadings, if tolerated, harm the court by impeding its ability to administer
justice.”); Anderson v. District Bd. of Trs. of Central Fla. Cmty. Coll., 77 F.3d
364, 367 (11th Cir. 1996) (“Experience teaches that, unless cases are pled clearly
and precisely, issues are not joined, discovery is not controlled, the trial court’s
18
docket becomes unmanageable, the litigants suffer, and society loses confidence in
the court’s ability to administer justice.”).
Attempting to impose order on the chaos, we begin with the claims that
Cook has pleaded as §1983 claims. His second amended complaint identifies
those § 1983 claims as arising under the 1st, 5th, 13th, 14th, and 15th
Amendments, under § 5 of the Voting Rights, and under 42 U.S.C. § 1985.
All of those claims require Cook to show that he was actually deprived of a
constitutional liberty interest or a substantive federal right. See Burton v. City of
Belle Glade, 178 F.3d 1175, 1188 (11th Cir. 1999) (providing that to prevail on a
§ 1983 claim, “plaintiffs must demonstrate both that the defendants deprived them
of a right secured under the Constitution or federal law and that the deprivation
occurred under color of state law”). He has not shown that, and the undisputed
facts prevent him from doing so.
The Constitution certainly protects the right to vote. Reynolds v. Sims, 377
U.S. 533, 554, 84 S. Ct. 1362, 1377–78 (1964) (“Undeniably the Constitution of
the United States protects the right of all qualified citizens to vote, in state as well
as in federal elections.”).4 Citizens also have a constitutionally protected right to
4
Cook alleges violations of his voting rights under various constitutional amendments,
including the First and Thirteenth. The inclusion of those amendments, like much of the second
amended complaint, is redundant. See Burton v. City of Belle Glade, 178 F.3d 1175, 1188 n.9
19
run for public office. See McCormick v. Edwards, 646 F.2d 173, 175 (5th Cir.
1981) (stating that a non-civil service employee “like all citizens, has a
constitutionally protected right to actively support, work for and campaign for a
partisan candidate for political office or even to run for such office himself”).5
The Constitution guarantees procedural and substantive due process when a liberty
interest is at stake. See Grayson, 460 F.3d at 1340 (stating that “procedural due
process imposes constraints on governmental decisions which deprive individuals
of liberty or property interests within the meaning of the Due Process Clause of
the Fifth or Fourteenth Amendment”) (quoting Mathews v. Eldridge, 424 U.S.
319, 335, 96 S. Ct. 893, 903 (1976) (quotation marks omitted)); Duncan v.
Poythress, 657 F.2d 691, 705 (5th Cir. 1981) (holding that one of the substantive
guarantees of the due process clause is “the right to be free from the purposeful
decision of state officials to deny the citizens of a state the right to vote in an
election mandated by law”). The Constitution also provides for equal protection.
See Burton, 178 F.3d at 1188–89 (“[T]o establish a violation of either the Equal
Protection Clause of the Fourteenth Amendment or the Fifteenth Amendment, [the
plaintiff] must show that the [defendant’s] decision or act had a discriminatory
(11th Cir. 1999) (“[T]he First and Thirteenth Amendments afford no greater protection for voting
rights claims than that already provided by the Fourteenth and Fifteenth Amendments.”).
5
See footnote 3, supra.
20
purpose and effect.”) (emphasis added).
The problem with Cook’s § 1983 claims is that he did not actually suffer a
deprivation of any of the constitutional or statutory rights he asserts. All of
Cook’s claims are stated as though his voting registration was changed from
District 5 to District 4. It was not. Because of the Jenkins injunction and the
Department of Justice’s denial of preclearance, the registrars’ effort to change
Cook’s voting registration failed. The attempt accomplished nothing. It was a
non-starter because moving Cook’s voting residence required preclearance, which
was never granted. See Lopez v. Monterey County, 519 U.S. 9, 20, 117 S. Ct.
340, 347 (1996) (“A jurisdiction subject to § 5’s requirements must obtain either
judicial or administrative preclearance before implementing a voting change. No
new voting practice is enforceable unless the covered jurisdiction has succeeded in
obtaining preclearance.”).
All of Cook’s claims rest on the premise that an unsuccessful attempt to
deprive him of constitutional or statutory rights is a deprivation of those rights. It
is not. Assuming for the sake of argument that Cook has a constitutional right to
vote in and run for office in a particular district, the attempt to deprive him of that
right did not succeed. And that makes all the difference. See Andree v. Ashland
County, 818 F.2d 1306, 1312 (7th Cir. 1987) (holding that “the mere unsuccessful
21
attempt to secure an injunction under an allegedly unconstitutional ordinance does
not itself make out a deprivation of constitutional rights”); Villanueva v. McInnis,
723 F.2d 414, 419 (5th Cir. 1984) (stating that “[w]hile [plaintiff’s] liberty or life
interests may for a brief period have been sufficiently threatened to warrant
injunctive relief the distance to a deprivation of liberty or life was here too great to
lend definition to the constitutional right allegedly lost”).
The Fifth Circuit has analyzed the issue of whether an unsuccessful attempt
to deprive someone of his constitutional rights is actionable under § 1983, and we
are persuaded by the logic of its decision. See Villanueva, 723 F.2d at 418–19. In
Villanueva the court reversed the judgment on a jury verdict awarding Villanueva
$90,000 in damages (plus attorney’s fees) based on his claim that former district
attorney Oscar B. McInnis had conspired to murder him. 723 F.2d at 414–16.
While Villanueva was incarcerated in a county jail, McInnis entered into an
agreement with an inmate, Daniel Rodriguez, to murder Villanueva. Id. at
415–16. McInnis said he would try to get Rodriguez released from jail in
exchange for his help, and Rodriguez actually contacted a hit man in Mexico to
have Villanueva murdered. Id. at 416. Rodriguez then began to worry that
McInnis was setting him up, so he cancelled the hit. Id. He told the sheriff and
the FBI about the scheme, and they instructed him to continue his interactions with
22
McInnis as if the hit were still planned. Id. Villanueva did not learn that there had
been an aborted plan to have him murdered until after he had been released. Id.
Villanueva filed a lawsuit against McInnis, bringing claims for
constitutional violations under § 1983 based in part on the conspiracy to murder
him. Id. The Fifth Circuit held that § 1983 “reaches no further than deprivation of
a federally protected or constitutionally secured right or privilege.” Id. at 418. It
reasoned that there was no deprivation of a federal right:
Villanueva alleged and, we may assume, proved, a conspiracy to
murder. He points to no other claimed deprivation. Of course murder
without due process by a person acting under color of state law denies
a federal right, but here there was no murder. As is apparent there was
only an “agreement” to murder. After Rodriguez informed the state
and the FBI and acted as an informant there was no actual threat that
the “conspiracy” would be carried out.
Id. (internal citation omitted). The court emphasized that a plaintiff has “to prove
an actual deprivation of a constitutional right; a conspiracy to deprive is
insufficient.” Id. The court concluded:
That the agreement between McInnis and Rodriguez was illegal or
even “unconstitutional” in an abstract sense such as might be posed
by a quo warranto inquiry does not answer the question raised by this
private suit for money damages. We are unable to identify in this
inchoate “agreement” an actual deprivation of any constitutional right
of Villanueva. Villanueva’s argument that he has a constitutional
right to be free of a conspiracy to murder begs the question of
deprivation. While Villanueva’s liberty or life interests may for a
brief period have been sufficiently threatened to warrant injunctive
23
relief the distance to a deprivation of liberty or life was here too great
to lend definition to the constitutional right allegedly lost. Implicit in
a deprivation is both a defined right and a loss. Stated differently and
in sum this claimant has proved no loss of constitutional right.
Id. at 418–19 (footnote omitted).
Like the plaintiff in Villanueva, Cook failed to show he lost a constitutional
or statutory right. Because of the Jenkins injunction and the Department of
Justice’s denial of preclearance, Cook was able to continue voting in and running
for office from District 5. He won the 2006 election. His tenure on the Board of
Education was not interrupted. Nothing changed. Because Cook was never
actually deprived of his rights to vote in or run for office from District 5, he
suffered no loss of any constitutional or statutory right.
Cook argues that his constitutional and statutory rights were violated
because he was forced to spend money on lawyers in order to bring this lawsuit.
We are unconvinced by that argument for several reasons. To begin with, Cook
has not established its factual premise. He has not shown that he has spent or will
spend any money on attorney’s fees. Cook’s contract with his attorneys was never
put into evidence. For all we know from the record, Cook had a pure contingency
arrangement with them.6
6
At the hearing on the defendants’ motion for summary judgment, counsel for Cook
stated that the County had spent over $200,000 on attorney’s fees. Counsel did not state,
24
Even if Cook has paid or will pay his attorneys, we are not persuaded by his
argument that his payment of legal costs means that his federal rights have been
violated. The argument seems circular, positing the cost of bringing a lawsuit as
the reason it must succeed. Cook has cited no authority for the proposition that
conduct which causes a person to hire attorneys to vindicate his federal
constitutional or statutory rights violates those rights. Cf. Andree, 818 F.2d at
1312 (holding that plaintiffs’ costs in defending an injunction action brought
against them in state court based on an allegedly unconstitutional ordinance “are
not recoverable as a substantive item of damage under section 1983 in the absence
of some showing that the [injunction action] was brought for some ulterior
purpose”); Burton, 178 F.3d at 1188 (stating that a plaintiff with a § 1983 claim
has to show that person acting under color of state law deprived him of a
constitutional right).
It was Cook, and not the defendants, who chose to file this lawsuit. Even if
he had not filed it, his rights to vote in and run for public office from District 5
would have been secured by the Jenkins lawsuit and the Department of Justice’s
denial of preclearance. Cook not only chose to bring this lawsuit, he also chose to
amend his complaint to add the claims he is now pursuing and to seek damages
however, how much, if any, Cook had spent on his fees.
25
after his rights to vote and run for office in District 5 already had been secured
through the Jenkins injunction and the denial of preclearance.
Except where there is a fee-shifting provision, each party bears the cost,
including attorney’s fees, of litigation. See Alyeska Pipeline Serv. Co. v.
Wilderness Soc’y, 421 U.S. 240, 247, 95 S. Ct. 1612, 1616 (1975); Johnson v.
Florida, 348 F.3d 1334, 1350 (11th Cir. 2003); Loggerhead Turtle v. County
Council of Volusia County, 307 F.3d 1318, 1322 (11th Cir. 2002) (“Under the
‘American Rule’ of civil litigation, parties to a lawsuit ordinarily pay their own
attorney’s fees.”). It would turn the American rule on its head to hold that
requiring a plaintiff to bear the cost of litigation amounts to the denial of a
constitutional or statutory right. See Tejas Dev. Co. v. McGough Bros., 167 F.2d
268, 269 (5th Cir. 1948) (“In pressing their third party claims as and when they did
the third party plaintiffs took the risk and must bear the consequences of futile
costs.”); Employers Reinsurance Corp. v. Mid-Continent Cas. Co., 358 F.3d 757,
766–67 (10th Cir. 2004) (“[T]he American Rule . . . ordinarily bars the recovery of
attorney fees by the prevailing party in litigation, on the theory that such fees are a
cost of recovering damages, not damages in themselves.”).
Fee shifting statutes such as 42 U.S.C. § 1988 might have provided a
vehicle for the district court to award Cook attorney’s fees if he had prevailed on
26
the merits, but prevailing requires a plaintiff to bring about a material alteration in
his legal relationship with the defendants. See Buckhannon Bd. and Care Home,
Inc. v. West Va. Dep’t of Health and Human Res., 532 U.S. 598, 622, 121 S. Ct.
1835, 1849 (2001) (rejecting the “catalyst” theory and holding that “a party cannot
be deemed to have prevailed, for purposes of fee-shifting statutes such as 42
U.S.C. §§ 1988 . . . unless there has been an enforceable alteration of the legal
relationship of the parties”) (quotation marks omitted). Even when defendants
give in and change their conduct in the way that a plaintiff desires, the change has
to be brought about by means of judicial decree. See id. at 604, 121 S. Ct. at 1840
(“[E]nforceable judgments on the merits and court-ordered consent decrees create
the ‘material alteration of the legal relationship of the parties’ necessary to permit
an award of attorney’s fees.”). It was not Cook’s lawsuit that resulted in a decree
altering the legal relationship of the parties by prohibiting the Board of Registrars
from changing his voting district. That decree came in the Jenkins case, one to
which Cook was not a party. For these reasons, Cook’s argument that any legal
cost he may have incurred in filing this lawsuit establishes that his constitutional
or statutory rights were violated is inconsistent with the American rule on
attorney’s fees and with the Supreme Court’s rejection of the catalyst theory in
deciding who is a prevailing party.
27
What we have said so far applies to all of the claims Cook pleaded as
arising under § 1983. One of those claims warrants separate mention. It is that the
defendants’ attempt to change Cook’s voting “violated Plaintiff’s voting rights
under § 5 [of] the Voting Rights Act of 1965, codified at 42 U.S.C. § 1973 which
may be remedied through 42 U.S.C. § 1983.” The attempt, made clear in a later
paragraph of the second amended complaint, is to obtain monetary damages for a
violation of § 5.
The Supreme Court has held that private parties have an implied right of
action under 42 U.S.C. § 1973c to “seek a declaratory judgment that a new state
enactment is governed by [§] 5.” Allen v. State Bd. of Elections, 393 U.S. 544,
555, 89 S. Ct. 817, 826 (1969). And “the private party has standing to obtain an
injunction” in the appropriate circumstances. Id. Neither the Supreme Court nor
this Court has ever held, however, that private parties have an implied right of
action for monetary damages under § 5. Cook cites no decision holding that, and
he has not persuaded us to hold that. Damages may be available for constitutional
violations arising from actual deprivations of the right to vote based on intentional
racial discrimination, but not under § 5 of the Voting Rights Act. Cf. Palmer v.
Bd. of Educ. of Cmty. Unit Sch. Dist. 201-U, 46 F.3d 682, 686 (7th Cir. 1995)
(stating in a case involving claims brought under § 1983 that “[m]ost voting-rights
28
cases seek equitable relief, but damages too are available for a racially motivated
deprivation of the right to vote.”) (citing Nixon v. Herndon, 273 U.S. 536, 47 S.
Ct. 446 (1927) (Holmes, J.)). The one thing that Cook might have been entitled to
under § 5 is injunctive relief, and that had already been provided in the Jenkins
lawsuit before he amended his complaint to bring this claim.7
In addition to pleading a violation of 42 U.S.C. § 1985 as part of his § 1983
claims, Cook has proceeded as though he had also pleaded a free-standing §
1985(3) claim. Perhaps confused by the shotgun pleading, the defendants
responded as though the claim were separate, and the district court decided it that
way. For the sake of completeness, we will, too.
The elements of a § 1985(3) claim are:
(1) a conspiracy, (2) for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of
the laws, or of equal privileges and immunities under the laws; and
(3) an act in furtherance of the conspiracy, (4) whereby a person is
7
In one of his briefs to us Cook states that he is seeking “the equitable remedy of a
permanent injunction as a personal protection against further misuse of the legal process to deny
him the right to run in the district where he legally resides.” Because of the injunction issued in
the Jenkins lawsuit and the denial of preclearance, the request for an injunction in this case is
moot. See Sheely v. MRI Radiology Network, 505 F.3d 1173, 1183 (11th Cir. 2007) (“If events
that occur subsequent to the filing of a lawsuit deprive the court of the ability to give the plaintiff
meaningful relief, then the case is moot and must be dismissed.”) (quotation marks and
alterations omitted). That is true regardless of whether the request for injunctive relief is moored
to § 5 of the Voting Rights Act or is a free-floating one.
29
either injured in his person or property or deprived of any right or
privilege of a citizen of the United States.
Trawinski v. United Techs., 313 F.3d 1295, 1299 (11th Cir. 2002) (quotation
marks omitted). We have explained and Cook acknowledges that “[t]he purpose
of § 1985 was to stifle the serious class-based deprivation of constitutional rights
by private parties, not to serve as a general federal tort law.” Id. Therefore, “a
claim under § 1985(3) requires the proof of invidious discriminatory intent as well
as the violation of a serious constitutional right.” Id. The district court
determined that the defendants were entitled to summary judgment on Cook’s §
1985(3) claim because Cook had failed to establish that he was injured in his
person or property or deprived of any right or privilege of a citizen of the United
States. That is essentially what we have already said about the claims Cook
brought under § 1983.
Cook argues that voting rights and the right to be a political candidate
should be of core concern under § 1985(3). He insists that there was a scheme to
deprive him of those rights and that the events were timed so that “he would be put
to the most extreme pressure and expense” just before the 2006 school board
election. Furthermore, Cook asserts that the backdrop for the defendants’ actions
was “the ever-present issue of race in Randolph County” and a pattern of racial
30
discrimination that had been ongoing for many years in Randolph County.
Cook argues that he suffered injuries that § 1985(3) was designed to
compensate, and one of the decisions he relies on to support that argument is
Haddle v. Garrison, 525 U.S. 121, 119 S. Ct. 489 (1998). It was a § 1985(2) case
involving allegations that the defendants had conspired to have the plaintiff fired
from his job in retaliation for his obeying a federal grand jury subpoena, and that
they did so to deter him from testifying at a federal criminal trial. Id. at 122, 119
S. Ct. at 490. The Supreme Court held that a plaintiff did not have to show
deprivation of a constitutionally protected liberty interest to state a claim for
damages under § 1985(2) because “[t]he gist of the wrong at which § 1985(2) is
directed is not deprivation of property, but intimidation or retaliation against
witnesses in federal-court proceedings.” Id. at 125, 119 S. Ct. at 492. Unlike
Haddle, this is not a § 1985(2) case. Cook does not allege that the defendants
retaliated against him because he served as a witness in any court proceedings.
Instead, he has brought a § 1985(3) claim, and that requires proof of “the violation
of a serious constitutional right” as well as invidious intent. Trawinski, 313 F.3d at
1299.
The other decision Cook relies on is Chavis v. Clayton County Sch. Dist.,
300 F.3d 1288 (11th Cir. 2002). Like Haddle, Chavis involved a § 1985(2) claim
31
of racially discriminatory retaliation for testimony given in court proceedings. See
id. at 1293. It is distinguishable from this case on the same grounds.
In the present case Cook alleges that the defendants removed him from his
voting district, which injured him under §1985(3) because voting rights and the
right to run for public office are core concerns under that statute. He points again
to the fact that he hired legal counsel to vindicate those core rights. Voting rights
and the right to run for public office are core constitutional rights; however, for
the reasons we have already discussed, an attempted deprivation of constitutional
or statutory rights is not the same as an actual deprivation, see Villanueva, 723
F.2d at 418–19. And incurring legal fees to vindicate rights does not itself
establish that those rights were violated. See Andree, 818 F.2d at 1312.
In addition to his §§ 1983 and 1985 claims, Cook included in his second
amended complaint a claim alleging discrimination in violation of 42 U.S.C. §
1981. “To state a claim of race discrimination under § 1981, plaintiffs must allege
facts establishing: (1) that the plaintiff is a member of a racial minority; (2) that
the defendant intended to discriminate on the basis of race; and (3) that the
discrimination concerned one or more of the activities enumerated in the statute.”
Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1270 (11th Cir. 2004). The
activities enumerated in the statute are the right to make and enforce contracts, to
32
sue, and to give evidence. Id.; see also 42 U.S.C. § 1981.8 In his second amended
complaint the only one of those enumerated activities Cook mentions in
connection with his § 1981 claim is “Plaintiff’s rights to make, enforce, and enter
into a contract.” The statutory language actually is “make and enforce contracts,”
42 U.S.C. § 1981(a), but in any event Cook has not explained how the attempt to
change his voter registration affected his rights to make, enforce, or do anything
else with a contract. He did not explain the claim to the district court, which
concluded that Cook had failed to present evidence that the defendants had
deprived him of any rights protected by § 1981. Nor did Cook attempt to explain
the claim to us in his briefs or at oral argument. If claims were children, this one
has been neglected enough to qualify for foster care. The neglected, unsupported
claim fails. See Kinnon v. Arcoub, Gopman & Assocs., Inc., 490 F.3d 886, 890
(11th Cir. 2007) (“To state a claim under § 1981, a plaintiff must identify an
impaired contractual relationship under which the plaintiff has rights.”) (alteration
and quotation marks omitted).
Finally, Cook also asserted claims that his due process and equal protection
8
Section 1981 provides: “All persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and enforce contracts, to sue, be parties,
give evidence, and to the full and equal benefit of all laws and proceedings for the security of
persons and property as is enjoyed by white citizens, and shall be subject to like punishment,
pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” 42 U.S.C. §
1981(a).
33
rights under the Georgia Constitution had been violated. Those claims mirror the
corresponding federal constitutional ones. See Cherokee County v. Greater
Atlanta Homebuilders Ass’n, 566 S.E.2d 470, 473 n.1(Ga. Ct. App. 2002) (“The
equal protection guarantees of the Georgia and federal constitutions are
coextensive. The due process guarantees are substantively identical.”) (internal
citation omitted). They fail for the same reasons.
AFFIRMED.
34