Furnell Severin v. Jefferson Parish , 357 F. App'x 601 ( 2009 )


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  •            IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    December 16, 2009
    No. 09-30395                      Charles R. Fulbruge III
    Summary Calendar                            Clerk
    FURNELL SEVERIN
    Plaintiff - Appellant
    v.
    PARISH OF JEFFERSON, JUDGE FRED S. BOWLES, JUDGE H. CHARLES
    GAUDIN, JUDGE CHARLES GRISBAUM, JUDGE EDWARD A. DUFRESNE,
    JR., JUDGE THOMAS C. WICKER, JR., JUDGE SOL GOTHARD, JUDGE
    JAMES L. CANELLA, JUDGE THOMAS J. KLIEBERT, JUDGE THOMAS F.
    DALEY, JUDGE SUSAN M. CHEHARDY, JUDGE MARION F. EDWARD,
    JUDGE CLARENCE E. MCMANUS, JUDGE WALTER J. ROTHSCHILD,
    PETER J. FITZGERALD, Clerk of Court; JERROLD PETERSON, Central Staff
    Director; KATHI WORKMAN, Assistant Central Staff Director; CAROL
    TREUTING, Central Staff Secretary; CHERYL LANDRIEU, Law Clerk;
    JENNIFER COOPER, Law Clerk; LESLIE LANGHETTER; Research Attorney;
    UNIDENTIFIED PARTIES.
    Defendants - Appellees
    Appeal from the United States District Court
    for the Eastern District of Louisiana
    USDC No. 2:09-CV-2766
    Before KING, STEWART, and HAYNES, Circuit Judges.
    PER CURIAM:*
    *
    Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
    R. 47.5.4.
    No. 09-30395
    Furnell Severin (“Severin”), Louisiana prisoner #475683, appeals the
    district court’s dismissal of his 42 U.S.C. § 1983 civil rights complaint as
    frivolous, for failure to state a claim on which relief may be granted, and/or for
    seeking monetary damages against defendants who are immune from such relief.
    For the reasons stated below, we affirm.
    I. BACKGROUND
    Severin, proceeding pro se and in forma pauperis filed a civil rights
    complaint pursuant to 42 U.S.C. § 1983 against the Parish of Jefferson, Judge
    Fred S. Bowles, Judge H. Charles Gaudin, Judge Charles Grisbaum, Judge
    Edward A. Dufresne, Jr., Judge Thomas C. Wicker, Jr., Judge Sol Gothard,
    Judge James L. Canella, Judge Thomas J. Kliebert, Judge Thomas F. Daley,
    Judge Susan M. Chehardy, Judge Marion F. Edwards, Judge Clarence E.
    McManus, Judge Walter J. Rothschild, Peter J. Fitzgerald, Jerrold Peterson,
    Kathi Workman, Carol Treuting, Cheryl Landrieu, Jennifer Cooper, Leslie
    Langhetter and other unidentified parties.
    This case arose as a result of allegations which came to light after the
    suicide of Jerrold Peterson, the former Central Staff Director of the Louisiana
    Fifth Circuit Court of Appeal. Before his death, Peterson wrote a letter to the
    judges of the Louisiana Fifth Circuit where he accused them of instituting a
    policy to circumvent Louisiana’s constitutional requirement of three judge panels
    with respect to pro se prisoner post-conviction writs by having such filings
    submitted to one judge or a staff member who would issue a ruling concerning
    the writ application without review by a three judge panel. See L A. C ONST. ART.
    V (each state Court of Appeal “shall sit in panels of at least three judges selected
    according to rules adopted by the court.”).
    After Peterson’s allegations were made public, many state prisoners
    claimed that their rights had been violated by the court’s procedures and sought
    relief from the Louisiana Supreme Court. In response, the Louisiana Fifth
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    No. 09-30395
    Circuit Court of Appeal unanimously adopted an en banc resolution where it
    asked the Louisiana Supreme Court to consider remanding those cases to it with
    direction that they be assigned to random three judge panels. State v. Cordero,
    
    993 So. 2d 203
    , 206 (La. 2008). In its decision, on a writ application filed by a
    prisoner affected by the alleged constitutional violations of the Louisiana Fifth
    Circuit Court of Appeal, the Louisiana Supreme Court adopted the court of
    appeal’s resolution. 
    Cordero, 993 So. 2d at 205
    .
    In his complaint, Severin claimed that he was denied his constitutional
    rights by the failure of the judges and employees of the Louisiana Fifth Circuit
    Court of Appeal to follow the applicable provisions of state law when denying his
    pro se post-conviction writ application. State v. Severin, No. 06-KH0305 (La.
    App. 5th Cir. May 1, 2006). He does not allege that he sought relief pursuant to
    Cordero. In his report and recommendation, the magistrate judge recommended
    that all of Severin’s claims against the judges and employees of the Louisiana
    Fifth Circuit Court of Appeal be dismissed as frivolous, for failure to state a
    claim on which relief may be granted, and/or for seeking monetary damages
    against defendants who are immune from such relief. The district court adopted
    the magistrate judge’s report and recommendation.
    II. DISCUSSION
    A.    Standard of Review
    A prisoner’s civil rights complaint should be dismissed if it is frivolous,
    malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C.
    § 1915A(b)(1). We review a district court’s § 1915A dismissal de novo. See Ruiz
    v. United States, 
    160 F.3d 273
    , 275 (5th Cir. 1998). A complaint brought by a
    prisoner proceeding in forma pauperis may also be dismissed as frivolous when
    it lacks an arguable basis in law or fact. 28 U.S.C. § 1915(e)(2)(B)(I); Hutchins
    v. McDaniels, 
    512 F.3d 193
    , 195 (5th Cir. 2007). Such dismissals are reviewed
    for abuse of discretion. Berry v. Brady, 
    192 F.3d 504
    , 507 (5th Cir. 1999).
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    No. 09-30395
    Because the magistrate judge referred to both § 1915A and § 1915(e) when he
    recommended dismissing Severin’s suit as frivolous, the court will review the
    issues raised on appeal de novo. Velasquez v. Woods, 
    329 F.3d 420
    , 421 (5th Cir.
    2003).
    To avoid dismissal for failure to state a claim, a plaintiff ’s complaint must
    plead enough facts to “state a claim to relief that is plausible on its face.”
    Ashcroft v. Iqbal, __ U.S. __, 
    129 S. Ct. 1937
    , 1949, 
    173 L. Ed. 2d 868
    (2009)
    (quoting Bell Atl. Corp. v. Twombly, 
    550 U.S. 544
    , 570 (2007). The factual
    allegations must “raise a right to relief above the speculative level.” 
    Twombly, 550 U.S. at 555
    . While pro se complaints are held to less stringent standards
    than those drafted by lawyers, “conclusory allegations or legal conclusions
    masquerading as factual conclusions will not suffice to prevent a motion to
    dismiss.” Taylor v. Books A Million, Inc., 
    296 F.3d 376
    , 378 (5th Cir. 2002).
    B.       Claim Against the Parish of Jefferson
    In the caption of his complaint, Severin named the Parish of Jefferson as
    a defendant but stated no claim against the parish in the body of his complaint.
    Even if Severin had stated claims in the body of his complaint against the Parish
    of Jefferson, those claims would not have been cognizable because the parish
    government has no authority or control over the state appellate courts. As a
    result, any claim against the parish is frivolous.
    C.       Claims Against Jerrold Peterson
    In his lawsuit, Severin named Peterson as a defendant. “Federal law . . .
    relies on state law to determine if a party can be named as a defendant to a
    lawsuit. Louisiana law does not allow suits against the deceased.” Martinez v.
    United States, Civ. Action No. 96-4072, 
    1998 WL 92248
    , at *2 (E.D. La. Mar. 2,
    1998); see also Campbell v. Travelers Ins., Civ. Action No. 06-9068, 
    2008 WL 145048
    , at *1 (E.D. La. Jan. 14, 2008). Peterson was deceased at the time
    Severin filed this action, therefore the claim against Peterson must be dismissed.
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    No. 09-30395
    D.    Claims Against the Judges
    Additionally, Severin named as defendants the above named judges of the
    Louisiana Fifth Circuit Court of Appeal.         He sought monetary damages,
    declaratory relief, and injunctive relief.
    1.     Monetary Damages
    It is well established that judges enjoy absolute judicial immunity from
    lawsuits that cannot be overcome by allegations of bad faith or malice. Stump
    v. Steward, 
    435 U.S. 349
    , 355-56 (1978). Judicial immunity is clearly applicable
    in cases, such as the instant one, brought pursuant to 42 U.S.C. § 1983.
    
    Steward, 435 U.S. at 356
    ; Pierson v. Ray, 
    386 U.S. 547
    , 554-55 (1967). The
    Supreme Court has recognized only two instances in which judicial immunity is
    inapplicable. “First a judge is not immune from liability for non-judicial actions,
    i.e. actions not taken in the judge’s judicial capacity. Second, a judge is not
    immune for actions through judicial in nature, taken in the complete absence of
    all jurisdictions.” Mireless v. Waco, 
    502 U.S. 9
    , 11 (1991).
    Regarding the first exception, the Supreme Court has noted:
    The relevant cases demonstrate that the factors determining
    whether an act by a judge is a ‘judicial’ one relate to the nature of
    the act itself, i.e., whether it is a function normally performed by a
    judge, and to the expectations of the parties, i.e. whether they dealt
    with the judge in his official capacity.
    
    Steward, 435 U.S. at 362
    . Here, the denial of Severin’s writ application clearly
    involves a function normally performed by a judge, and by filing the writ
    application Severin was dealing with the judges in their official judicial
    capacities. In regards to the second exception, it is undisputed that the judges
    had jurisdiction over Severin’s writ application.
    Severin argues that judicial immunity is inapplicable because the judges
    acted beyond their authority by allegedly delegating that authority to a single
    judge or staff member. The Supreme Court, however, has held that judicial
    5
    No. 09-30395
    immunity is not inapplicable simply because a judge acts beyond his authority.
    See, e.g., 
    Steward, 435 U.S. at 356
    . (“A judge will not be deprived of immunity
    because the action he took was in error, was done maliciously, or was in excess
    of his authority . . . ”).   The judges are protected from Severin’s claim for an
    award of monetary damages by their absolute immunity.
    2.     Declaratory Relief
    In his complaint, Severin claimed that because he is innocent of the crime
    of which he was convicted the judges violated his constitutional rights by failing
    to properly review his writ application challenging his conviction. While judicial
    immunity does not bar declaratory relief, Severin’s request is nevertheless still
    barred because a careful review reveals that it is simply an attempt to challenge
    the validity of his current confinement, and as a result should be brought in a
    habeas corpus proceeding. Holloway v. Walker, 
    765 F.2d 517
    , 525 (5th Cir.
    1985); Smith v. Judges of La. Fifth Circuit Court of Appeal, Civ. Action No. 08-
    4350, 
    2009 WL 78430
    , at *2 (E.D. La. Jan. 9, 2009); Preiser v. Rodriguez, 
    411 U.S. 475
    , 600 (1973) (“[W]hen a state prisoner is challenging the very fact or
    duration of his physical imprisonment, and the relief he seeks is a determination
    that he is entitled to immediate release or a speedier release from that
    imprisonment, his sole federal remedy is a writ of habeas corpus.”). Because
    Severin has a habeas petition currently pending in the district court, it is
    unnecessary for us to construe the complaint in part as a petition for habeas
    corpus. Severin v. Cain, Civ. Action No. 07-1541 “B” (4) (E.D. La.).
    3.     Injunctive Relief
    In his complaint, Severin indicated that he is seeking injuctive relief but
    Severin’s request is moot. The procedures which Severin complains of have been
    discontinued. Additionally, the Louisiana Fifth Circuit Court of Appeal did not
    have the last word with respect to his post-conviction claims. After that court
    denied his writ application, he sought review from the Louisiana Supreme
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    No. 09-30395
    Court, which independently also denied his post-conviction claims. State v.
    Severin, 
    349 So. 2d 432
    (La. 2007). Furthermore, in light of Cordero, Severin
    may be entitled to even further review of his post-conviction claims.
    E.     Claims Against Remaining Defendants
    The remaining defendants in this lawsuit are the employees of the
    Louisiana Fifth Circuit Court of Appeal who acted pursuant to the procedures
    allegedly implemented by the judges. Because they were only acting at the
    express direction of the judges, to assist them in carrying out their judicial
    functions, these defendants are likewise entitled to absolute judicial immunity
    with respect to Severin’s claim for monetary damages. See Mitchell v. McBryde,
    
    944 F. 23
    229, 230-31 (5th Cir. 1991). A court employee who acts under the
    explicit instructions of a judge “acts as the arm of the judge and comes within his
    absolute immunity,” even if the employee acts “in bad faith or with malice.” See
    Williams v. Wood, 
    612 F.2d 982
    , 985 (5th Cir. 1980); see also Clay v. Allen, 
    242 F.3d 679
    , 682 (5th Cir. 2001). To the extent that Severin seeks declaratory or
    injunctive relief with respect to the remaining defendants, those forms of relief
    are unavailable for the reasons previously discussed.
    F.     State Law Claims
    In his complaint, Severin also asserted claims under state law. Because
    Severin’s federal claims were dismissed, the district court declined to exercise
    supplemental jurisdiction over his state law claims and dismissed them without
    prejudice. See 28 U.S.C. § 1367(c)(3) (“The district court may decline to exercise
    supplemental jurisdiction over a claim . . . if . . . the district court has dismissed
    all claims over which it has original jurisdiction.”); see also Bass v. Parkwood
    Hospital, 
    180 F. 4d
    234, 246 (5th Cir. 1999) (internal citations omitted) (“When
    a court dismisses all federal claims before trial, the general rule is to dismiss any
    pendent claims. However the dismissal should expressly be without prejudice so
    that the plaintiff may refile in the appropriate state court.”). As we affirm the
    7
    No. 09-30395
    dismissal of all of Severin’s federal claim, no federal question remains before the
    district court and we find no error in its discretionary refusal to exercise
    supplemental jurisdiction over Severin’s state law claims and dismissal of them
    without prejudice.
    III. CONCLUSION
    For the foregoing reasons, the district court’s ruling is affirmed.
    8