Telford et al v. United State of America et al

MOTION to Dismiss for Failure to State a Claim

D.S.D.December 21, 2016

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION BRENDA BURTON and HOLLIE ) TELFORD, ) ) Plaintiff, ) ) vs. ) Case No. 3:16-cv-3033 RAL ) UNITED STATE OF AMERICA; ) ALAN B. JOHNSON; NENA JAMES ) AND THOMAS DEERING IN THEIR ) INDIVIDUAL, OFFICIAL CAPACITIES; ) ROCK SPRINGS HOUSING ) AUTHORITY; APRIL THOMPSON; ) GLOBAL E. LLC aka PIONEER PARK; ) ANN CLAYTON, JUDY CIRRILLO, ) CENTURYLINK, HOLLIE PORTILLO; ) O’KELLEY H. PEARSON; LAW OFFICE ) HICKEY AND EVANS, LLP; DONALD ) THATCHER; EVA TAFOYA, HUD, AND ) DOES 1-10, ) ) Defendants. ) DEFENDANTS JAMES AND DEERING’S MOTION TO DISMISS Defendants Nena James and Thomas Deering move to dismiss Hollie Telford’s action against them. I. Introduction Case 3:16-cv-03033-RAL Document 45 Filed 12/21/16 Page 1 of 10 PageID #: 354 2 Hollie Telford has sued Wyoming judicial officials Nena James and Thomas Deering in their official capacities. See Doc. 1 at 1; Murphy v. State of Ark., 127 F.3d 750, 754 (8th Cir. 1997) (a plaintiff that wants to sue a state official in that person’s individual capacity must make a clear statement that the suit is an individual capacity suit). While Telford’s second amended complaint is long, convoluted, and has several defendants and numerous claims for relief (including a RICO claim against Judge Deering, Doc. 11 at 25), Telford essentially wants this Court to intervene in a Wyoming eviction case. See generally id. Even though the U.S. Supreme Court requires a plaintiff’s complaint to bring enough factual allegations to state a plausible claim for relief, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), Telford’s factual allegations against Judge James and Judge Deering are insufficient to state any claim for relief. Telford accuses Judge James and Judge Deering of “permiting [sic] the enforcement of [an] eviction judgment …” Doc. 11 ¶ 93. Telford separately alleges that Judge Deering denied a motion for sanctions that she filed and that Judge Deering knew that Telford would use some evidence in support of this racketeering case against two defendants. Id. ¶ 79. Telford wants this Court to 1) issue a declaratory judgment stating that Judge James and Judge Deering violated the Fair Housing Act (FHA) and 2) to enjoin Judge James and Judge Deering from acting on the Wyoming eviction case. Id. ¶ 93. Case 3:16-cv-03033-RAL Document 45 Filed 12/21/16 Page 2 of 10 PageID #: 355 3 This is not the first time that Telford has sued judges for their rulings on matters in which she is involved: “When Holli [Telford] is unsuccessful in obtaining the relief she seeks, she has not infrequently resorted to collateral attack on the judges who have adjudicated her cases.” Lundahl v. Quinn, 67 P.3d 1000, 1002 (Utah 2003). As a result of these activities, several courts have imposed filing restrictions on Telford.1 1 Here are some courts that have imposed filing restrictions on Telford. She has also used the name “Lundahl.” See Lundahl v. Zimmer, 296 F.3d 936, 937 (10th Cir. 2002). This list is not exhaustive: 1. Supreme Court of the United States: Lundahl v. Eli Lilly & Co., 125 S. Ct. 1940 (2005). 2. United States Court of Appeals for the Ninth Circuit: In re Lundahl, No. 97– 80258 (9th Cir. Jul. 17, 1997). 3. United States Court of Appeals for the Tenth Circuit: Johnson v. Stock, 2005 WL 1349963 (10th Cir. 2005). 4. United States District Court for the District of Wyoming: Lundahl v. Eli Lilly & Co., 2014 WL 347157 (D. Wyo. 2014); affirmed in Lundahl v. Halabi, 600 F. App’x 596 (10th Cir. 2014). 5. United States District Court for the Western District of Texas: Lundahl v. Hawkins, 2009 WL 3617518 (W.D. Tex. 2009) (applies to all federal district courts in Texas); affirmed in Lundahl v. Hawkins, 407 F. App’x 777 (5th Cir. 2011). 6. United States District Court for the District of Idaho: Lundahl v. Nar Inc., 434 F. Supp. 2d 855 (D. Idaho 2006). 7. United States District Court for the District of Utah: See L.A. Homeowners Aid, Inc. v. Lundahl, 2006 WL 2459371 at ** 4–5 (D. Utah 2006). Case 3:16-cv-03033-RAL Document 45 Filed 12/21/16 Page 3 of 10 PageID #: 356 4 This Court should dismiss Telford’s action against Judge James and Judge Deering. Telford is not entitled to a declaratory judgment that these judges violated the FHA because Telford does not state an FHA claim against them. Moreover, because the Federal Courts Improvement Act of 1996 bars this Court from enjoining Judge James and Judge Deering from acting in the Wyoming eviction case, Telford is not entitled to an injunction. In the off-chance that Telford has sued Judge James and Judge Deering in their individual capacities, absolute immunity would also bar such claims. II. 12(b)(6) Standard When evaluating a 12(b)(6) motion, the plaintiff’s well-pleaded allegations must be accepted as true. Neitzke v. Williams, 490 U.S. 319, 326–27 (1989). This Court must also construe pro se pleadings liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007). That said, “[d]istrict judges have no obligation to act as counsel or paralegal to pro se litigants.” Pliler v. Ford, 542 U.S. 225, 231 (2004). In addition, this Court is not required to assume factual allegations that a plaintiff does not allege in her complaint. Stone v. Harry, 364 F.3d 912, 915 (8th Cir. 2004). It is well established that a well-pleaded complaint must contain enough factual allegations to state a facially-plausible claim for relief. See Carter v. 8. Idaho Supreme Court: Telford v. Nye, 154 Idaho 606 (2013) (affirming order declaring Telford to be a vexatious litigant). Case 3:16-cv-03033-RAL Document 45 Filed 12/21/16 Page 4 of 10 PageID #: 357 5 Huterson, 831 F.3d 1104, 1107 (8th Cir. 2016). A complaint must “provide [the defendant with] fair notice of the [plaintiff’s] claim ….” Eckert v. Titan Tire Corp., 514 F.3d 801, 807 (8th Cir. 2008). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. III. Argument Telford wants a declaratory judgment stating that Judge James and Judge Deering violated the Fair Housing Act and an injunction preventing them from acting on Telford’s Wyoming eviction case. She is entitled to neither. If Telford did bring an individual capacity suit against Judge James and Judge Deering, then they are absolutely immune from suit. A. Telford is not entitled to a declaratory judgment stating that Judge James and Judge Deering violated the FHA because her second amended complaint does not state a plausible FHA claim against them. Telford alleges two separate FHA violations. First, she alleges discrimination on the basis of disability, in violation of 42 U.S.C. § 3604(f)(2). Doc. 11 ¶ 53. Second, she alleges retaliation, in violation of 42 U.S.C. § 3617. Id. ¶ 58. Case 3:16-cv-03033-RAL Document 45 Filed 12/21/16 Page 5 of 10 PageID #: 358 6 42 U.S.C. § 3604(f)(2) prohibits discrimination “against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of-- (A) that person; or (B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or (C) any person associated with that person.” To state a claim under 42 U.S.C. § 3617, a plaintiff must allege that the “(1) plaintiff engaged in statutorily protected activity; (2) defendant took adverse action against plaintiff; and (3) causal connection exists between adverse action and protected activity ….” Neudecker v. Boisclair Corp., 351 F.3d 361, 364 (8th Cir. 2003). Telford does not state a claim against Judge James or Judge Deering under either FHA theory. The disability discrimination theory fails because Telford does not allege that either party discriminated against her when renting or selling a dwelling. The retaliation theory fails because Telford does not allege that Judge James and Judge Deering took an adverse action against Telford because she took part in an activity that the FHA protects. Telford merely alleges that Judge Deering denied one of her motions and that both Judge James and Judge Deering permitted the enforcement of an eviction judgment. Doc. 11 ¶¶ 79, 93. Case 3:16-cv-03033-RAL Document 45 Filed 12/21/16 Page 6 of 10 PageID #: 359 7 Because Telford has not stated a plausible FHA claim against Judge James and Judge Deering, she is not entitled to a declaratory judgment to that effect. See Salau v. Denton, 139 F. Supp. 3d 989, 1012 (W.D. Mo. 2015) (a plaintiff is not entitled to a declaratory judgment without an underlying claim for relief). Accord Val-Com Acquisitions Trust v. CitiMortgage, Inc., 421 F. App’x 398, 400–01 (5th Cir. 2011) (“In a declaratory judgment action, the parties litigate the underlying claim, and the declaratory judgment is merely a form of relief that the court may grant.”); Essling's Homes Plus, a Minn. Corp. v. City of St. Paul, a Minn. Corp., 356 F. Supp. 2d 971, 984 (D. Minn. 2004) (“A successful action for declaratory judgment requires a viable underlying cause of action.”). B. The Federal Courts Improvement Act of 1996 bars this Court from enjoining Judge James and Judge Deering from carrying out judicial acts in Wyoming. Under the Federal Courts Improvement Act of 1996, “in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.” 42 U.S.C. § 1983. “An act is a judicial act if it is one normally performed by a judge and if the complaining party is dealing with the judge in his judicial capacity.” Birch v. Mazander, 678 F.2d 754, 756 (8th Cir. 1982). Ruling on a motion is a judicial act. Schottel v. Young, Case 3:16-cv-03033-RAL Document 45 Filed 12/21/16 Page 7 of 10 PageID #: 360 8 687 F.3d 370, 373 (8th Cir. 2012). So is enforcing a court order. See Patterson v. Von Riesen, 999 F.2d 1235, 1239–40 (8th Cir. 1993). Telford seeks an injunction based on judicial acts and omissions that Judge James and Judge Deering took in their judicial capacities. Telford takes issue with 1) Judge Deering denying one of her motions and 2) both judges permitting the enforcement of an eviction judgment. Doc. 11 ¶¶ 79, 93. Both of these acts are judicial in nature. Schottel, 687 F.3d at 373; Patterson, 999 F.2d at 1239–40. Thus, Telford can only receive an injunction against Judge James and Judge Deering if they either violated a declaratory decree or if declaratory relief was unavailable. 42 U.S.C. § 1983. But Telford’s complaint does not show that either exception applies here. Therefore, Telford is not entitled to an injunction barring Judge James and Judge Deering from acting on the Wyoming eviction case. C. To the extent that Telford has sued Judge James and Judge Deering in their individual capacities, they are absolutely immune from suit. “Judges performing judicial functions enjoy absolute immunity from § 1983 liability.” Robinson v. Freeze, 15 F.3d 107, 108 (8th Cir. 1994). “The doctrine of judicial immunity is supported by a long-settled understanding that the independent and impartial exercise of judgment vital to the judiciary might be impaired by exposure to potential damages liability.” Antoine v. Byers & Anderson, Inc., 113 S. Ct. 2167, 2171 (1993). Case 3:16-cv-03033-RAL Document 45 Filed 12/21/16 Page 8 of 10 PageID #: 361 9 However, a judge may be liable for 1) non-judicial acts or 2) judicial actions taken in the complete absence of all jurisdiction. Schottel, 687 F.3d at 373. Neither exception to judicial immunity applies here. First, Telford only accuses Judge James and Judge Deering of performing the judicial acts of ruling on a motion and enforcing a judgment. Doc. 11 ¶¶ 79, 93; Schottel, 687 F.3d at 373; Patterson, 999 F.2d at 1239–40. Second, Telford has not shown that either judge acted in the complete absence of all jurisdiction. Therefore, Judge James and Judge Deering are entitled to absolute immunity in their individual capacities. IV. Conclusion This Court should dismiss Telford’s action against Judge James and Judge Deering. DATED this 21st day of December, 2016. /s/ Richard M. Williams Richard M. Williams Deputy Attorney General Office of Attorney General 1302 E. Highway 14, Suite 1 Pierre, SD 57501 Telephone: 605-773-3215 Email: rich.williams@state.sd.us /s/ Jesse B. Naiman Jesse B. Naiman Case 3:16-cv-03033-RAL Document 45 Filed 12/21/16 Page 9 of 10 PageID #: 362 10 Assistant Attorney General Wyoming Attorney General’s Office Kendrick Building 2320 Capital Ave. Cheyenne, WY 82002 Telephone: 307-777-8935 Email: jesse.naiman@wyo.gov Attorneys for Defendants Nena James and Thomas Deering Case 3:16-cv-03033-RAL Document 45 Filed 12/21/16 Page 10 of 10 PageID #: 363