IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-20385
_____________________
MICHAEL S. SLEEMAN,
Plaintiff-Appellant,
v.
BRAZORIA COUNTY, ET AL.,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-95-CV-704)
_________________________________________________________________
January 31, 1996
Before KING, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Michael S. Sleeman appeals the district court's dismissal of
his 42 U.S.C. § 1983 claim against Brazoria County, Judge Ogden
Bass, Judge James Blackstock, Cindy Hall, Sheriff Joe King, and
Judge Samuel Kent, pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure, and the doctrines of absolute judicial
immunity and qualified immunity. We affirm.
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
I. BACKGROUND
On the morning of November 14, 1994, Sleeman went to the
County Court at Law Number 3 of Brazoria County, with the intent
of serving a federal complaint on Judge Blackstock. Sleeman's
version of what happened that day is uncontested on appeal.
According to Sleeman, he waited for a break in the proceedings
and then asked Judge Blackstock's permission to approach the
bench. Sleeman asked Judge Blackstock if the judge's clerk could
accept service for him. When the judge answered "yes," Sleeman
delivered the papers and left the courtroom. Several hours
later, Sleeman returned to Judge Blackstock's courtroom as a
subpoenaed witness in a case pending before the judge that
afternoon. When Judge Blackstock noticed Sleeman sitting in the
courtroom, the judge called him to the bench. Commenting that he
disapproved of the way Sleeman had delivered his papers that
morning, Judge Blackstock held him in contempt of court and
imposed a sentence of ninety days incarceration and a $300 fine.
Sleeman petitioned for a writ of Habeas Corpus in both
federal and state courts before Judge Kent and Judge Bass,
respectively. On December 30, 1994, after Sleeman had served 38
days and a state appeals court had agreed to hear his habeas
corpus petition, Judge Blackstock commuted Sleeman's sentence to
time served.
On March 10, 1995, Sleeman, acting pro se, filed his
original complaint for damages and alleged civil rights
2
violations pursuant to 42 U.S.C. § 1983,2 in the United States
District Court for the Southern District of Texas. Sleeman
asserted that Judge Blackstock had acted vindictively--wrongly
finding Sleeman in contempt and sentencing him. He alleged that
Judge Bass and Judge Kent delayed in acting on his petition for
the writ of habeas corpus. In addition, Sleeman sued Brazoria
County, and Cindy Hall, an assistant criminal district attorney
of Brazoria County, and Joe King, Sheriff of Brazoria County, for
assisting in his arrest. Pursuant to Rule 12(b)(6), each
defendant filed a motion to dismiss for failure to state a claim
upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).
On May 2, 1995, the district court entered an order
dismissing all defendants. The district court found that, with
respect to Sleeman's complaint: Judges Blackstock, Bass, and
Kent enjoyed absolute judicial immunity; Hall and King possessed
qualified immunity; and Sleeman had "failed to provide any
factual basis for his allegations that Brazoria County had an
unconstitutional policy which led to his unlawful arrest."
2
Sleeman seeks damages under the Civil Rights Act of
1871, Rev. Stat. § 1979, presently 42 U.S.C. § 1983. This
section provides:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory, subjects, or causes to be subjected, any
citizens of the United States or other person within
the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress.
42 U.S.C. § 1983.
3
Thereafter, Sleeman timely filed a notice of appeal from the
order and final judgment of dismissal.
II. DISCUSSION
We review de novo a dismissal for failure to state a claim
upon which relief can be granted. First Gibraltar Bank, FSB v.
Smith, 62 F.3d 133, 135 (5th Cir. 1995). We accept the
allegations of the complaint as true and we do not affirm the
district court's dismissal unless it appears beyond doubt that
the plaintiff cannot prove any set of facts in support of his
claim which would entitle him to relief. Lefall v. Dallas Indep.
School Dist., 28 F.3d 521, 524 (5th Cir. 1994).
Sleeman challenges only the district court's dismissal of
his § 1983 complaint against Judge Blackstock. The other
defendants--Brazoria County, Judge Bass, Hall, King, and Judge
Kent--are included in this appeal by virtue of Sleeman's notice
of appeal, but Sleeman does not seek relief against them in his
appeal brief. Although we construe the briefs of pro se
litigants more permissively than those filed by counsel,
Securities and Exch. Comm'n v. AMX, Int'l, Inc., 7 F.3d 71, 75
(5th Cir. 1993), issues not raised and argued in a litigant's
initial appeal brief are considered waived. Cinel v. Connick, 15
F.3d 1338, 1345 (5th Cir.), cert denied, 115 S. Ct. 189 (1994).
Therefore, consistent with an apparently deliberate choice on
Sleeman's part, we find that he has abandoned his claims against
all defendants other than Judge Blackstock.
4
The Rule 12(b)(6) dismissal of Sleeman's complaint against
Judge Blackstock was based on the doctrine of absolute judicial
immunity. It is well-established "as a general principle of the
highest importance to the proper administration of justice that a
judicial officer, in exercising the authority vested in him,
shall be free to act upon his own convictions, without
apprehension of personal consequences to himself." Harper v.
Merckle, 638 F.2d 848, 856 (5th Cir.) (quoting Bradley v. Fisher,
80 U.S. (13 Wall) 335, 347 (1871)), cert. denied, 454 U.S. 816
(1981). For this reason, a judge acting within the ambit of his
authority enjoys absolute judicial immunity. McAfee v. 5th
Circuit Judges, 884 F.2d 221, 222 (5th Cir. 1989), cert. denied,
493 U.S. 1083 (1990). The Supreme Court has concluded that §
1983 did not abolish this settled principle of law. Pierson v.
Ray, 386 U.S. 547, 554-55 (1967)). Therefore, a judge remains
absolutely immune against actions for damages for all judicial
acts that are not performed in the clear absence of all
jurisdiction. Malina v. Gonzales, 994 F.2d 1121, 1124 (5th Cir.
1993).
We must determine whether Judge Blackstock's actions were
judicial acts and, if so, whether or not they fall clearly
outside his jurisdiction as a state court judge. Harper, 638
F.2d at 858. The actions of Judge Blackstock that are at issue
are those that took place on the afternoon of November 14, 1994--
when Judge Blackstock found Sleeman in contempt and sentenced
5
him.3 We consider four factors in determining whether Judge
Blackstock's actions were judicial in nature: (1) whether the
precise acts complained of--use of the contempt and sentencing
powers--are normal judicial functions; (2) whether the acts
occurred in the courtroom or adjunct spaces; (3) whether the acts
centered around a case pending before Judge Blackstock; and (4)
whether the acts arose directly out of a visit to the judge in
his official capacity. Malina, 994 F.2d at 1124 (citing
McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir. 1972)). These
four factors are to be broadly construed in favor of immunity,
and immunity is sometimes proper even though one or more of the
factors is not met. Id. (citations omitted).
The first two factors weigh in favor of a finding that Judge
Blackstock's actions toward Sleeman were judicial in nature. The
first factor--whether the precise acts complained of are normal
judicial functions--favors Judge Blackstock because both the
contempt citation and the sentencing are normal functions of a
judge. The second factor--whether the acts occurred in the
courtroom or adjunct spaces--also favors Judge Blackstock.
Sleeman was found in contempt and sentenced in County Court at
Law Number 3.
3
Sleeman and Judge Blackstock crossed paths twice on the
day in question--in the morning, when Sleeman served the judge
with process, and in the afternoon when Judge Blackstock found
Sleeman in contempt and sentenced him. Although the morning
encounter precipitated the conduct taken by Judge Blackstock that
afternoon, Sleeman does not seek damages for anything the judge
did in the morning. Because Judge Blackstock does not need to
invoke the doctrine of absolute judicial immunity for his conduct
in the morning, we need only focus on the afternoon encounter.
6
Judge Blackstock's position loses some ground, however,
under the third factor. That factor--whether the acts centered
around a case pending before the judge--clearly does not weigh in
favor of a finding that Judge Blackstock's actions toward Sleeman
were judicial in nature. The acts that led to Sleeman's
incarceration did not center around any matter pending before
Judge Blackstock. They were precipitated by Sleeman's service of
process on Judge Blackstock in the morning, and they were
subsequently triggered when Sleeman found himself back in the
courtroom that afternoon within eyeshot of the judge.
Sleeman argues that the fourth factor--whether the acts
arose directly out of a visit to the judge in his official
capacity--weighs in favor of a finding that Judge Blackstock's
actions were not judicial in nature. He contends that the
confrontation arose out of nonjudicial business because he
expected to be serving process on Blackstock, the private
citizen, not Blackstock, the judge. Sleeman suggests that our
holding in Harper supports his position. In Harper, we recalled
the language of Stump v. Sparkman, 435 U.S. 349, 362 (1978),
where Justice White concluded that "consideration must be given
not only to the nature of the act itself but also to the
expectations of the parties." Harper, 638 F.2d at 859 (quotation
marks omitted).
Harper involved a § 1983 action brought against a county
judge in Florida. The defendant in Harper, Judge Merckle,
occupied an office in the courthouse where Jack Harper's former
7
wife worked as a secretary. One day, while Harper was looking
for his former wife, he happened into Judge Merckle's office.
Judge Merckle was wearing street clothes and apparently did not
identify himself. Operating on the basis of courthouse gossip
and mistakenly believing that there was an outstanding contempt
violation against Harper, Judge Merckle began an impromptu
interrogation session. "[I]n what can be characterized fairly as
a most unusual request, Judge Merckle, still seated behind his
secretary's desk, told [Harper] to raise his right hand to be
sworn in." Harper, 638 F.2d at 851. A befuddled Harper promptly
left the building. Court bailiffs caught Harper and escorted him
back to the judge's chambers for a hastily convened contempt
hearing at which Judge Merckle found him in contempt of court and
sentenced him to three days incarceration. In an "exceedingly
narrow" ruling "tailored to this, the rarest of factual
settings,"4 we held:
[W]hen it is beyond reasonable doubt that a judge has
acted out of personal motivation and has used his
judicial office as an offensive weapon to vindicate
personal objectives, and it further appears certain
that no party has invoked the judicial machinery for
any purpose at all, then the judge's actions do not
amount to "judicial acts."
4
To exemplify the limited application of our holding in
Harper, we noted that our research had revealed only one other
case within the scope of our holding: Zarcone v. Perry, 572 F.2d
52 (2d Cir. 1978). Harper, 638 F.2d at 859 n.17. Zarcone
involved a judge who ordered a coffee vendor handcuffed and
brought before him after patronizing the vendor and adjudging his
coffee "putrid." Zarcone, 572 F.2d at 53. In his chambers, the
judge "started screaming at [the coffee vendor], threatening him
and his 'livelihood' for about 20 minutes, and thoroughly scaring
him." Id. Later that night, the vendor was again brought before
the judge for a similar encounter. Id. at 54.
8
Harper, 638 F.2d at 859. Accordingly, we found that Judge
Merckle's actions could not be considered judicial acts and that
absolute judicial immunity was inappropriate. Id.
The case at bar is distinguishable from Harper. Whereas we
found it "clearly unreasonable to conclude that Harper
entertained the expectation that judicial matters were at hand
when he entered Judge Merckle's office on nonjudicial business,"
the same cannot be said of Sleeman in this case. On the
afternoon of the day in question, Sleeman entered Judge
Blackstock's courtroom as a subpoenaed witness in a case pending
before the judge. Sleeman was fully aware that "judicial matters
were at hand," even though he was not aware that one such
judicial matter would focus on him. He did expect, however, to
encounter Judge Blackstock serving in his official capacity. The
finding of contempt and the sentencing took place during this
afternoon visit. Therefore, we find that the fourth factor
weighs in favor of Judge Blackstock, and, based on our analysis
of all four factors, we conclude that Judge Blackstock's actions
are properly characterized as judicial acts.
Notwithstanding that they are judicial in nature, to enjoy
absolute judicial immunity, Judge Blackstock's actions must not
fall outside his jurisdiction as a state court judge. Malina,
994 F.2d at 1124. We must determine whether Judge Blackstock had
subject-matter jurisdiction to issue the contempt citation and
sentence. Id. at 1125 n.1 (pointing out that this approach is
consistent with the position taken by a majority of the Circuits
9
and the Supreme Court). By law, a judge in Texas may hold
someone in his courtroom in contempt and sentence him to jail
time, a fine, or both.5 Thus, Judge Blackstock had subject-
matter jurisdiction over Sleeman's conduct within the courtroom
and therefore, Judge Blackstock's actions were not taken in the
clear absence of all jurisdiction.
We conclude that Judge Blackstock is entitled to absolute
judicial immunity for citing Sleeman with contempt and sentencing
him to ninety days in jail and a $300 fine. We may disagree with
the action taken by Judge Blackstock but that does not justify
depriving the judge of immunity. Stump, 435 F.2d at 363. "This
immunity applies even when the judge is accused of acting
maliciously and corruptly." Pierson, 386 U.S. at 554. As long
as the acts were performed in the exercise of his judicial
5
Title 2, the portion of the Texas Government Code that
deals with the judicial branch, provides in pertinent part:
§ 21.001. Inherent Power and Duty of Courts
(a) A court has all powers necessary for the
exercise of its jurisdiction and the enforcement of its
lawful orders, including authority to issue writs and
orders necessary or proper in aid of its jurisdiction.
(b) A court shall require that proceedings be
conducted with dignity and in an orderly and
expeditious manner and control the proceedings so that
justice is done.
§ 21.002. Contempt of Court
(a) A court may punish for contempt.
(b) The punishment for contempt of court other than
a justice court or municipal court is a fine of not
more than $500 or confinement in the county jail for
not more than six months, or both such a fine and
confinement in jail.
. . . .
Tex. Gov't Code Ann. §§ 21.001--21.002.
10
function, "the alleged magnitude of the judge's errors or the
mendacity of his acts is irrelevant." Boyd v. Biggers, 31 F.3d
279, 284 (5th Cir. 1994). Because Judge Blackstock is absolutely
immune from suit for finding Sleeman in contempt and sentencing
him, it follows that Sleeman failed to state a claim against
Judge Blackstock upon which relief can be granted. The district
court properly dismissed Sleeman's action pursuant to Rule
12(b)(6).
In addition to the doctrine of absolute judicial immunity,
Judge Blackstock raises another argument in his defense. He
contends that Sleeman's complaint is barred by the Supreme
Court's holding in Heck v. Humphrey, 114 S. Ct. 2364, 2372
(1994).6 As a result of our determination that Judge Blackstock
enjoys absolute judicial immunity, we need not reach the question
of whether the holding in Heck precludes recovery on a § 1983
suit brought under the peculiar facts of this case.
6
In Heck, the Supreme Court held:
[I]n order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for
other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983
plaintiff must prove that the conviction or sentence
has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal
authorized to make such determination, or called into
question by a federal court's issuance of a writ of
habeas corpus."
Heck v. Humphrey, 114 S. Ct. 2364, 2372 (1994).
11
III. CONCLUSION
For the foregoing reasons, the decision of the district
court is AFFIRMED.
12