Stephanie Harris v. Clint Deveaux
780 F.2d 911
11th Cir.
1986
Check Treatment

*2 hearing After testimony of Harris HATCHETT, Before KRAYITCH and Tiedge, Detective Judge Deveaux or- *, Judges, Circuit and WRIGHT Senior Cir rape dered the case Jones transfer- Judge. cuit Superior red to the Court County of Fulton but dismissed the imprisonment false KRAVITCH, Judge: charge. Judge Deveaux then stated that Deveaux, Clinton of the Munici- “going he was to insist that the victim of pal City Court of the of Atlanta and de- charged this case be with robbery.” armed action, fendant in a appeals section 1983 Despite prosecutor’s statement that the from the district court’s denial of his mo- City Solicitor did not wish to arrest Harris summary judgment tion for ground on the and no brought against judicial immunity. of absolute We hold: warrant, her unless Jones swore out a (1) jurisdiction this court has to hear an Judge Deveaux directed the detective to appeal from the denial of a motion for arrest Harris and charged ordered her with summary judgment ground on the of abso- robbery. (2) lute immunity and Harris was arrested and detained. immunity by directing not lose entry chambers, prosecutor, counsel charges against a appearing witness before Jones, Judge Deveaux discussed bond in a pending upon case and based for her. willing Deveaux was evidence before him. Accordingly, we re- recognizance release Harris on her own if verse the decision of the district court. prosecutor agree to the same Jones; prosecutor reduction for re- I. BACKGROUND counsel, fused. Harris obtained and sever- Court, As a Municipal municipal al hours later a different presides hearings, over bond judge permitted her release on her own probable hearings, nonjury cause trials on recognizance. violations, ordinance requests for war- rants. September appeared On Harris preliminary Deveaux for a hearing September Jones, On Phillip robbery charge. on the charged rape imprisonment, and false granted a continuance so that counsel for appeared pre- Upon Harris could review the case. learn- liminary hearing. hearing At the pros- ing that Harris had been released on her ecutor complainant, Stepha- called recognizance, Judge own Deveaux ordered nie Harris. Harris testified that she met charges against ag- Jones reduced to night Jones at a club and he offered her a gravated assault and released him Harris, ride to on his According another club. recognizance. prosecutor park object- Jones took her to own raped her. cross-examination, On ed both to the reduction of the admitted that she prior night had known Jones to the to Jones’ release.

* Circuit, Eugene Wright, Judge, sitting by designation. A. Honorable U.S. Circuit for the Ninth judgment.” from final Coopers Lyb- removed the case 463, 468, municipal jurisdiction Livesay, from the rand v. 437 U.S. Jones 2454, 2458, by taking it to the Fulton Nix- County grand jury. Fitzgerald, on v. 2690, 2697, (1982), hearing charges against

preliminary Supreme jurisdiction Court held it had Harris was reconvened before *3 denying immunity The Solicitor moved to dismiss the an order absolute veaux. president States, ground on the that Harris was a former of the United not- agreed ing prior deny- The the dismis- decisions that juvenile. found orders sal, ing immunity but then ordered Harris detained so absolute to be within the juve- Meanor, custody could transferred to Cohen doctrine. Helstoski 442 that be 500, object- 2445, nile for Harris U.S. 99 S.Ct. 61 30 authorities. Counsel L.Ed.2d (1979); States, ground Abney ed on the that v. United 2034, (1977). Judge Deveaux had been dismissed and no 52 L.Ed.2d 651 pending juvenile court. were why There is sound reason orders de- objected also nying immunity absolute fall within the Harris, stating that veaux’s order to hold collateral order doctrine. Absolute immu- proper procedure was for Jones to file nity protect is meant only juvenile court. Harris petition with the liability, going but from to trial at all. municipal detained at the court four — -, Forsyth, Mitchell v. U.S. 105 juvenile and then transferred to the hours 2806, 2815, (1985); S.Ct. 15 authorities. Wright, Miller Cooper, Federal Practice 1985). (supp. Harris initiated the and Procedure Ac- § pursuant cordingly, to 42 after trial the current action U.S.C. defendant cannot denying identified obtain effective of an 1983. The district court five review order “Thus, separate complained: immunity. acts of which Harris denial of substan- immunity tial claim of absolute is an order (1) ordering Sep- on the arrest of Harris appealable judgment.” before final Mitch- 1; tember ell, 105 at 2815. think it S.Ct. We clear (2) ordering permitting her to be de- immunity Deveaux’s claim is Jones; tained substantial. (3) ordering September 16 her arrest on Nevertheless, Harris contends that not denying all orders claims of immu- absolute (4) refusing her counsel to take to allow nity appealable. argues are authorities; her to the required two circuits have that the claim of (5) releasing recogni- on his own Jones immunity raise a “serious and un- absolute zance. McDonald, question. settled” Smith v. court concluded that — (4th Cir.1984),aff’d, 737 F.2d 427 U.S. immunity inapplicable to the first four -, (1985); S.Ct. disagree. of these actions. We (10th Singer, Chavez v. Cir.1983). Harris, however, does not cite II. JURISDICTION any case which a court found it lacked jurisdiction under the This court has ground jurisdiction on this and indeed it “collateral order” doctrine of Cohen v. denying unusual for order an Corp., 337 Industrial Loan Beneficial immunity claim of to not “substantial” 541, 93 L.Ed. 1528 U.S. question. raise a “serious and unsettled” ap This doctrine allows immediate event, any appeal Deveaux’s “conclu peal interlocutory orders which question. raise such a disputed question, re sively determine the important completely sepa Harris also contends that denials abso solve an issue action, if immunity appealable only there from the merits of the and lute rate appeal questions are no of fact. effectively unreviewable on Williams Col [are] (5th Cir.1984); determining lins, judge’s F.2d 721 Evans v. whether a con- conduct stituted a act: Dillahunty, Cir.

1983). however, again, Once Harris cites (1) complained act of ... is a appellate function; no in which an court de (2) cases normal events ground. on clined review this Absolute judge’s involved occurred in the cham- (3) depend good bers; does not faith or controversy centered reasonableness; unlikely thus it be case then pending around a (4) disputed ques judge; to find a case where factual the confrontation arose immediately precluded tions review. Harris notes out of a visit to dispute: Judge capacity. his official one factual Deveaux con charges, press tends that Jones wanted to ease, 858. In 638 F.2d at the current three only Judge Harris claims that De while clearly present. of these factors are All of dispute, veaux wished do so. This how events occurred in *4 ever, is irrelevant to our consideration of courtroom, controversy Deveaux’s the cen- claim immuni Judge Deveaux’s of absolute pending Judge tered around a case before Accordingly ty. we find no material factu Deveaux, the and events arose and dispute. al immediately testimony out of the

Judge in that case. the Whether act of is III. IMMUNITY a presents “normal function” a 1983, In enacting 42 U.S.C. § question. Judge more difficult Deveaux’s Congress abrogate did not doctrine the arresting and detaining orders Harris obvi- judicial immunity. Sparkman, Stump v. ously were actions within normal 349, 1099, 435 U.S. S.Ct. However, deten- functions. the arrest and Judicial is an absolute tion on of Harris both occasions arose di- immunity; applies it judge even where a rectly out fact that maliciously. Id. at S.Ct. at charges the Har- himself ordered Stump, Supreme 1104. In the estab Court believe, not ris. We do and two-part a determining lished test argue, normally task does not it is the a judge enjoys immunity whether judge charges of a to file criminal in his damages First, money under 1983. section It seems particularly own court. unusual judge plaintiff whether dealt with the objec- to file judge for a over the judicial capacity. in a Id. at 98 S.Ct. at investigating and tions of the not, If judicial immunity 1107. then does officer, preliminary and then conduct a so, apply. question If not then the is hearing sup- whether the the judge whether acted in “clear ab ported sufficient evidence to bind the jurisdiction.” sence all Id. over for trial. defendant S.Ct. at 1105. Here the court ruled Harper, judge the defendant encoun- in Deveaux’s actions were his plaintiff plain- in his tered chambers while judicial capacity, in but that he acted delivering sup- tiff a check was for child jurisdiction. clear absence of all ex-wife, port employee. a court his judge suspicious regarding whether A. in Whether Deveaux Acted his support plaintiff to fulfill his child intended Capacity Judicial in obligation, attempted swear Merckle, In Harper plaintiff him. When (5th B), denied, refused, judge Unit him arrest- Cir. cert. had ed, (1981),1 immediately contempt pro- convened contempt in following ceeding, court focused on the factors found Circuit, Circuit, B, Reynolds 1. The Unit Eleventh in Stein v. Se- Fifth rendered after curities, Inc., (11th Cir.1982), 667 F.2d 33 adopted precedent decisions of the former brought parties, ordered him incarcerated. 638 F.2d at 850- them but as judge immunity, 54. The court denied the private, nonjudi- a result of events in their holding swearing in that while a witness lives, they per- cial events in which had a conducting contempt proceeding met Accordingly, stake. sonal in Sevier and factor, judge the first because the had him- Lopez, the not events did center around a personal self the incident for rea- initiated case, pending plaintiff’s then and the con- sons, weighed the third fourth factors judge frontation with the did not arise out finding judge acting that the of a to the judicial capaci- visit his judicial capacity. in his at 859. Id. Similarly, ty. in Harper initiated out of his own concern

Harris directs us to two other decisions personal acquaintance. Here, Judge her De support of assertion that prosecutorial were veaux’s acts and there veaux’s actions arose out of judicial pro- ceedings fore brought not a normal function. before him by indepen- Turner, Cir. parties. Sevier dent Unlike the judges Sevier 1984), county juvenile Lopez, Judge Deveaux had no stake in county contract with the collect delin charges against Harris; the case had quent support payments. child no connection with nonju- Deveaux’s employed persons bring criminal actions dicial life. sup court to enforce child Judge Deveaux’s action in initiating the obligations impending port and used charges against Harris does precisely leverage criminal con actions obtain fit the first of four factors for deter *5 The Sixth that sent orders. Circuit found mining judicial. whether an act is As was initiating prosecutions is not a function nor pointed out in McIlhany, Adams v. 764 mally performed by officers, and judicial (5th Cir.1985), however, judge immunity. therefore denied in immunity situations which “[t]here Vanderwater, In Lopez F.2d at 272. though must be afforded or even one more (7th Cir.), dismissed, F.2d 1229 cert. of the ... factors fails to obtain.” This is 601, 66 U.S. L.Ed.2d 491 Here, such a situation. truly the acts that (1980), judge a also a state landlord. Harris, injured the arrest and incarcera plaintiff, He found tenant had a he tion, are normal functions do move, building. asked to back in The first importantly, fit the factor. More arrested; plaintiff and, had at judge clearly present, other three factors are judge the station the wrote out ju we therefore conclude the actions were plea waiving in a jury and filled form a Harper, dicial. As we in “We stated can (the entering guilty plea trial and a plea no judge envision situation —where a illegible signature, form contained an approached qua by parties judge after he his); which denied possibly spawn to a case—that could a suc eight then sentenced the to cessful 1983 suit.” 638 F.2d at 856 n. 9. § alleged facts, in jail. months these Seventh Circuit found that had policy reasons behind the doctrine of he acted a and that therefore support our conclusion: immunity. was not entitled 620 F.2d First, foremost, a must be free convictions, upon to act his own without apprehension personal consequences; Lopez distinguish- Sevier and are both second, the controversiality impor- in able that third and fourth factors in competing tance a case determine whether act is interests that an likely court make it judges were absent.2 both cases losing party willing initiated not result of may overly as a a case be express opinion pretrial conspiracy party strip 2. We do not an this whether Hosemann, immunity. Dykes court would follow Sevier. We note that Sevier judge of case, prosecute conspired did not but (11th Cir.1985) (en banc). himself F.2d 942 circuit, employee with an do so. this judge; ascribe malevolent motives to the satisfied if a completely lacks third, judges prospect subject jurisdiction. faced with the matter Dykes v. Ho- and, semann, defending damages perhaps, actions Cir.1985) (en F.2d 942 banc). money judgments satisfying Georgia provides law that: driven to wasteful destructive self- recorder, Any mayor, proper other and, moreover, protection may devices be presiding any officer court of a munici- justice; less inclined to administer pal corporation authority shall have fourth, ap- alternative remedies such as bind jail over or commit to offenders peal impeachment reduce the need against any whenever, criminal law private rights of action investigation course of an fifth, judges; and alleging the ease of officer, proper such case therefor is qualified “good bad faith would make a made out the evidence. immunity virtually faith” worthless be- O.C.G.A. 17-7-22. Accordingly, Judge judges constantly cause be forced clearly subject juris- matter to defend their motivations in court. diction over the charges against Harris. Hosemann, Dykes v. Nor was stripped of sub- (11th Cir.1985)(en banc). ject jurisdiction upon matter learning that juvenile. fact, was a presented Deveaux was with evi- veaux followed the parties procedure dence before him. His called own by Georgia law: review evidence indicated that there case; were two different versions of the he appears If it any a criminal determined, convictions, based on his own proceeding quasi-criminal proceed- or a justified the evidence further action ing child, that the except defendant is a principals, both the rather than superior in cases where the court has against only Judges Jones. must be free jurisdiction concurrent provided to act on their convictions. (b) 15-11-5, subsection of Code Section may improperly have acted in ordering the the case shall forthwith be transferred to charges against say, Harris. We cannot together copy with a *6 however, acting that he was his the accusatory pleading pa- and all other judicial capacity. pers, documents, transcripts of testi- mony relating to the case. The transfer- B. Whether Deveaux Acted in the ring court shall order that the defendant Clear All Absence of Jurisdiction juvenile be taken forthwith to the court place designated or to a detention The district court found that or court shall release him to the veaux acted in the jurisdic- clear absence of custody parent, guardian, of his custodi- prose- tion because he assumed the role of an, person other cutor, legally responsible nothing Georgia gives law brought juvenile for him to be before the judge jurisdiction proceedings. to initiate designated by court at time that court. We believe that the district court should accusatory pleading may serve have considered the of whether petition lieu of a in the Deveaux became a in the filing unless that court directs the of a prong Stump context first v. petition. Sparkman above, test. As indicated we conclude that Deveaux did act in his O.C.G.A. 15-11-13. judicial capacity, prosecu- rather than as a above, Based on the we find that tor. Deveaux is entitled to for the long We need not According- consider whether of Harris. ly, Deveaux acted in the “clear the order of the district court RE- absence jurisdiction.” of all Since the district court and the case REMANDED to the VERSED summary judg- considered the motion for consistent ment, opinion. this court has held that the test is with this

HATCHETT, Judge, specially

concurring: expressed

Although holding to the views Hosemann, my Dykes dissent banc), (11th Cir.1985) (en I must

concur. GOSA, Plaintiff-Appellee,

Linda

Cross-Appellant, HOSPITAL,

BRYCE

Defendant-Appellant,

Cross-Appellee.

No. 85-7052. Appeals,

United States Court of

Eleventh Circuit.

Jan. McDonald, III, Copeland, Fairley

J. Fran- Gill, P.A., Ala., co, Montgomery, Screws & defendant-appellant, cross-appellee. *7 Jr., Stewart, Whatley, Joe R. Falkenber- Ala., Birmingham, ry Whatley, plain- cross-appellant. tiff-appellee, ANDERSON, Before Cir- RONEY MORGAN, Judges, cuit Senior Circuit Judge.
PER CURIAM: dispute Equal Pay in this Act There is no plaintiff, Gosa, per- Linda case that equal to formed her male work