FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPTEMBER 06, 2000

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 99-13880

Non-Argument Calendar

________________________

D. C. Docket No. 99-cv-0024-RLV

LARRY BOLIN, 

KENNETH DAVID PEALOCK, et al.,

Plaintiffs-Appellants,

versus

RICHARD W. STORY, et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(September 6, 2000)

Before TJOFLAT, HULL and RONEY, Circuit Judges.

PER CURIAM:

After being convicted of certain criminal offenses, plaintiffs brought this
2

civil rights action seeking injunctive and declaratory relief against numerous

judges and prosecutors, as well as an Internal Revenue Service (“IRS”) agent. 

Plaintiffs appeal the district court’s denial of plaintiffs’ recusal motions and the

Rule 12(b)(6) dismissal of their action based upon absolute immunity. Upon

review, we affirm.

I. BACKGROUND

A. Criminal Prosecution of Plaintiff Thompson

In 1995, Plaintiff Lloyd Thompson was convicted of a drug conspiracy in

violation of 21 U.S.C. § 846. Thompson’s conviction and sentence were affirmed

by this Court in an unpublished opinion on July 15, 1996. Thompson subsequently

filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. See United

States v. Thompson, Civil Action No. 1:97-cv-1815-WCO. Magistrate Judge John

R. Strother issued a report and recommendation in which he recommended that the

motion to vacate be denied. United States District Judge William C. O’Kelley

adopted the report and recommendation and subsequently declined to issue a

certificate of appealability. Thompson alleges that he appealed this ruling, but no

ruling has been made by this Court. 

In addition, Thompson asserts that “in the course of reviewing his

paperwork, [he] found the following entry on his master docket sheet”:
 1

Court records indicate that Bolin was sentenced to a forty-eight month term of

imprisonment on November 24, 1999.

3

11/6/97 72 ORDER by Mag Judge John R. Strother Jr. as to

defendant Lloyd Barry Thompson directing clerk to shred

sealed material. (yrm) [Entry date 11/20/97]”

Finally, Thompson asserts that “[i]t was patently obvious from the ruling of

defendant district judge William C. O’Kelly [sic] that he had not read any of

plaintiff Lloyd Barry Thompson’s § 2255 petition” and that “predictably” his

arguments will not be read by Article III judges in this Court either.

B. Criminal Prosecution of Plaintiffs Pealock and Bolin

In 1997, plaintiffs Kenneth Pealock and Larry Bolin, among others, were

indicted for conspiracy to defraud the United States. See United States v. Pealock,

2:97-cr-29-RWS. Pealock and Bolin were tried before United States District Judge

Richard W. Story, and found guilty on March 15, 1999. Pealock was sentenced to

a term of imprisonment, and Bolin had yet to be sentenced as of the time of the

district court’s ruling in this case.1

 Defendant Assistant United States Attorney

David M. Leta handled the case for the government.

Pealock and Bolin allege that the only reason charges were brought against
 2

Plaintiffs also attach a “Summary of Events” to their complaint describing what they allege

to be specific incidents of misconduct during the criminal prosecution of Pealock and Bolin.

 3There is only one judge on this Court, Judge Charles R. Wilson, who is not a named

defendant in this case as he was sworn in as a member of this Court after the filing of plaintiffs’

complaint.

4

Pealock was so that Leta could “score ‘career points’ by obtaining a $3,000,000.00

forfeiture of plaintiff Kenneth Pealock’s property.” Further, Pealock and Bolin

allege that “either defendant district judge Richard W. Story is being completely

dishonest in his rulings or someone else (i.e., the prosecutor) is writing his

opinions for him.”2

 

C. The Civil Complaint 

Plaintiffs brought this action for declaratory and injunctive relief against

Judges O’Kelley and Story, Magistrate Judge Strother, most of the active and

senior judges of this Court,3

 Assistant United States Attorney Leta, the United

States Attorney for the Northern District of Georgia, Richard Deane, Ted

Robertson, an IRS agent who was allegedly involved in Pealock and Bolin’s

federal criminal trial, and unnamed law clerks and staff attorneys for this Court. 

Plaintiffs state that “[t]he gravamen of plaintiffs’ Complaint is that the defendant

federal judges do not READ anything submitted by pro se litigants, thereby

defrauding them of the judgments that are rightfully theirs.” In addition, “[t]his

case also addresses perjury by a government witness before a grand jury,
5

capricious prosecution, denial of the right to have a disinterested prosecutor,

withholding of Brady material, and judicial dishonesty.”

The complaint asserts that both this Court and the “Northern District of

Georgia” treat pro se litigants differently than licensed attorneys in that magistrate

judges in the district court make reports and recommendations which are then

adopted by district judges who have not read the pro se pleadings. Further, the

complaint alleges that “[i]t has been clearly established that appellate court judges

in the Eleventh Circuit routinely do not read pro se briefs, but allow staff attorneys

to make ‘summaries’ for them instead.” The plaintiffs base this assertion on the

testimony of both former Chief Judges Joseph Hatchett and Gerald Tjoflat at a

March 28, 1998 public hearing of the Commission on Structural Alternatives for

the Federal Courts of Appeals in Atlanta, Georgia.

Plaintiffs’ complaint appears to allege that the failure of the defendant

judges to read pro se pleadings violates their right to equal protection, denies them

access to the courts, and amounts to obstruction of justice. In addition, the

complaint appears to allege that this practice constitutes a fraud on the court and

permitted Leta to present false testimony in the prosecution of Pealock and Bolin,

thus perpetuating the fraud on the court. Finally, the complaint alleges that the

defendant judges, court personnel, and U.S. Attorneys comprise an enterprise
6

which persists in a pattern of racketeering activity to obstruct justice.

Plaintiffs’ complaint seeks declarations that (1) pro se litigants “are entitled

to the same consideration in adjudication of their actions as any lawyer from any

‘blue chip’ law firm,” (2) “the practice of allowing staff attorneys to make

presentations to appellate panels too involved in other things” is unconstitutional,

(3) “the practice of issuing an Opinion without first reading the pleadings of a pro

se litigant” is unconstitutional, and (4) Defendant Judges Story and Strother are

“mentally incompetent by reason of bias.” Plaintiffs also seek to enjoin defendants

to provide (1) a report by this Court to Congress, (2) “extensive discovery . . . in

order to uncover and document the fraud in the judgments rendered against them

and the pathological bias of defendant federal district court judge Richard W.

Story, defendant senior district court judge William C. O’Kelly [sic], and federal

magistrate judge John R. Strother, Jr.,” and (3) an investigation by a grand jury

into the “criminal depredations of the defendants.” Further, plaintiff Thompson

seeks to void the judgment in Thompson v. United States, Case No. 1:97-cv-1814-

WCO.

D. Proceedings in the District Court 

This action was before the Honorable Robert L. Vining, Jr., United States

District Judge for the Northern District of Georgia. The defendant Judges and U.S.
 4

In response to the defendants’ motions to dismiss, plaintiffs clarified that their claims were

against defendants in their individual capacity. As a result, the district court found that

sovereign immunity was not at issue. Similarly, plaintiffs only assert claims against defendants

in their individual capacity on appeal, and thus no issue of sovereign immunity is presented to

this Court either.

7

Attorneys filed a motion to dismiss plaintiffs’ action on the basis of sovereign

immunity on April 22, 1999. An additional motion to dismiss was filed by

Defendant Ted Robertson on August 31, 1999. Prior to the district court’s ruling

on these motions, plaintiffs filed a motion for the recusal of Judge Vining on

March 25, 1999. The district court denied that recusal motion on May 3, 1999. 

The plaintiffs filed another motion to recuse on June 17, 1999.

In an order dated September 27, 1999, the district court denied plaintiffs’

second motion for recusal and granted defendants’ motions to dismiss plaintiffs’

complaint. Specifically, the district court dismissed plaintiffs’ claims against the

defendant Judges and U.S. Attorneys on the basis of absolute immunity and the

claims against I.R.S. agent Robertson for failure to state a claim.4

 Plaintiffs appeal

the district court’s orders denying recusal and dismissing this action.

II. DISCUSSION

Plaintiffs raise several issues on appeal. Because plaintiffs have named most

of the active and senior judges of this Court as defendants, however, we must first

address our ability to decide this appeal before reaching the merits of these issues.
8

A. Recusal by this Court 

In ordinary circumstances, each of us would be disqualified from hearing

this appeal by virtue of being named as defendants. See 28 U.S.C. § 455(b)(5)(i)

(providing that a federal judge “shall . . . disqualify himself [when] [h]e . . . is a

party to the proceeding”). There is an exception to this rule, however, in cases

where “the case cannot be heard otherwise.” United States v. Will, 449 U.S. 200,

213 (1980). Under this “rule of necessity,” a judge is not disqualified due to a

personal interest if there is no other judge available to hear the case. See id.;

Atkins v. United States, 556 F.2d 1028, 1036 (Ct. Cl. 1977). 

The rule of necessity is generally invoked in cases in which no judge in the

country is capable of hearing the case. See In re Petition to Inspect and Copy

Grand Jury Materials, 735 F.2d 1261, 1266-67 (11th Cir. 1984). At least two

courts have found, however, that where a plaintiff indiscriminately sues all of the

judges in a circuit, the fact that it is possible to convene a panel of disinterested

judges outside the circuit does not require transfer of the case or preclude the

application of the rule of necessity. See United States v. Switzer, 198 F.3d 1255

(10th Cir. 2000); Tapia-Ortiz v. Winter et al., 185 F.3d 8 (2d Cir. 1999). 

Specifically, in Tapia-Ortiz, a pro se prisoner brought a RICO action against the

judges of the Second Circuit Court of Appeals and its staff attorneys claiming that
9

they had failed, and would fail, to address properly the issues raised in cases on

appeal. The Second Circuit found that the fact that “it is possible to convene a

disinterested panel in another circuit does not require transfer here, where appellant

has indiscriminately named all then-current Second Circuit judges as defendants,

even those who had no role in deciding either of his appeals.” Tapia-Ortiz, 185

F.3d at 10.

Similarly, in United States v. Switzer, 198 F.3d 1255 (10th Cir. 2000), the

court determined that it did not have to recuse in the appeal of the denial of a §

2254 habeas petition. The petitioner in that case previously filed a pro se RICO

action against all of the active and senior judges of the Tenth Circuit Court of

Appeals, two district court judges of the Federal District Court for the District of

Colorado, a magistrate judge, the U.S. Attorney for Colorado, the Clerk of the

Tenth Circuit, and the Tenth Circuit’s Chief Staff Counsel. In the RICO action, the

petitioner alleged that the defendants conspired to obstruct justice in that no Article

III judge read the filings in his prior § 1983 and habeas cases, nor did they read the

orders and judgments issued in his § 1983 case, as the rulings on pro se filings are

routinely authored by law clerks and staff attorneys and signed by judges without

review. The Tenth Circuit followed the Second Circuit’s reasoning in concluding

that “under our duty to sit and the rule of necessity, a lawsuit brought
10

indiscriminately against all the active and senior judges on the Tenth Circuit Court

of Appeals does not operate automatically to render the court unable to hear and

decide an appeal brought by the plaintiff/petitioner.” Id. at 1258. In addition, the

Tenth Circuit applied this holding “both to appeals in which the judges are named

and to associated or subsequent appeals in which the plaintiff/petitioner is a party

but the judges are not named.” Id.

We are faced with a similar situation in this case. Because only one judge

currently serving on this Court was not named as a party, it is impossible to

convene a three-judge panel in which none of the judges have a personal interest in

this case. Further, plaintiffs have indiscriminately named all, except one, of the

current judges of this circuit regardless of their involvement in any of their appeals. 

Given the similarity of the situation, and the persuasive nature of the Second and

Tenth Circuits’ reasoning, we follow both Tapia-Ortiz and Switzer in concluding

that the rule of necessity allows at least those judges on this Court who have not

been involved in plaintiffs’ prior appeals to hear this appeal. We therefore turn to

the merits of the issues raised by plaintiffs.

B. Recusal by the District Court 

Before reaching the merits of the district court’s dismissal of plaintiffs’

action, we review the district court’s denial of plaintiffs’ motions for recusal by
 5

 In Stein v. Reynolds Sec., Inc., 667 F.2d 33 (11th Cir. 1982), the Eleventh Circuit adopted

decisions of the former Fifth Circuit, Unit B, rendered after September 30, 1981, as binding

precedent.

11

that court. Pursuant to 28 U.S.C. § 455(a), a judge “shall disqualify himself in any

proceeding in which his impartiality might reasonably be questioned.” The

standard under § 455 is objective and requires the court to ask "whether an

objective, disinterested, lay observer fully informed of the facts underlying the

grounds on which recusal was sought would entertain a significant doubt about the

judge's impartiality." McWhorter v. City of Birmingham, 906 F.2d 674, 678 (11th

Cir. 1990) (citation omitted). Under 28 U.S.C. § 455, it is well settled that the

allegation of bias must show that "the bias is personal as distinguished from

judicial in nature." United States v. Phillips, 664 F.2d 971, 1002 (5th Cir. Unit B

1981), superseded on other grounds, United States v. Huntress, 956 F.2d 1309 (5th

Cir.1992);5

 Phillips v. Joint Legislative Comm., etc., 637 F.2d 1014, 1019-20 (5th

Cir. 1981). As a result, except where pervasive bias is shown, a judge's rulings in

the same or a related case are not a sufficient basis for recusal. See Phillips, 664

F.2d at 1002-03. 

Plaintiffs’ motions offer no factual evidence of the type of personal bias that

would sustain a doubt about Judge Vining's impartiality and require recusal in this

case. Plaintiffs base their motions upon the fact that Judge Vining has sat by
12

designation on the Eleventh Circuit Court of Appeals in the past, has a long term

working relationship with a large majority of the defendants, and oversaw a grand

jury investigation of one of the plaintiffs. We conclude that these allegations are

not sufficient to cause an objective, disinterested, lay observer to entertain a

significant doubt about Judge Vining’s impartiality. Accordingly, we affirm the

district court’s denial of Plaintiffs’ motions for recusal. 

C. Absolute Judicial Immunity

Plaintiffs also challenge the district court’s grant of absolute immunity from

plaintiffs’ claims of injunctive relief to the defendant judges. Judges are entitled to

absolute judicial immunity from damages for those acts taken while they are acting

in their judicial capacity unless they acted in the “‘clear absence of all

jurisdiction.’” Stump v. Sparkman, 435 U.S. 349, 356-57 (1978); Simmons v.

Conger, 86 F.3d 1080, 1084-85 (11th Cir. 1996). This immunity applies even

when the judge’s acts are in error, malicious, or were in excess of his or her

jurisdiction. See Stump, 435 U.S. at 356. 

In Pulliam v. Allen, 466 U.S. 522 (1984), however, a divided Supreme Court

held that judicial immunity did not protect a state judge from claims for injunctive

relief in a § 1983 action. In making this determination, the Court concluded that,

consistent with the development of immunity in English common law, American
13

courts had never adopted a rule of absolute judicial immunity to claims for

injunctive relief. Id. at 536. In addition, the Court noted that, as of the time of its

opinion, seven Circuits had indicated that there was no immunity from prospective

injunctive relief and that the limitations already imposed by the requirements for

obtaining injunctive relief “severely curtail the risk that judges will be harassed

and their independence compromised by the threat of having to defend themselves

against suits by disgruntled litigants.” Id. at 537-38. Finally, the Court addressed

the concern that allowing federal judges to grant injunctive relief against state

judges under § 1983 would be inconsistent with the doctrines of comity and

federalism. In this regard, the Court stated that nothing in § 1983 indicates that

Congress intended to insulate state judges completely from federal review of their

actions, and, because that statute allowed for suits against state officials and did not

limit the relief available against judges, the Court declined to create such a limit. 

See id. at 540-42.

The dissent in Pulliam disagreed with the majority’s analysis of English

common law, arguing instead that the common-law remedies pointed to by the

majority were not analogous to suits for injunctive relief against judges and

therefore did not support the majority’s position that such relief was available. 

Further, the dissenting Justices were of the opinion that the prerequisites for
14

injunctive relief did not provide a sufficient protection to judicial independence

from the threat of vexatious litigation and pointed to the case before them as an

example. As a result, the dissent concluded that there was “no principled reason

why judicial immunity should bar suits for damages but not for prospective

injunctive relief.” Id. at 557.

The precise question of whether this Pulliam limit on judicial immunity

applies to federal judges as well, when sued pursuant to Bivens v. Six Unknown

Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), is one of

first impression in our circuit. It has been addressed, however, by several district

courts and the Ninth Circuit Court of Appeals. See Mullis v. United States

Bankruptcy Court for the District of Nevada, 828 F.2d 1385 (9th Cir. 1987);

Kampfer v. Scullin, 989 F. Supp. 194, 201-02 (N.D.N.Y. 1997); Stephens v.

Herring, 827 F. Supp. 359, 361-65 (E.D.Va. 1993); Page v. Grady, 788 F. Supp.

1207 (N.D.Ga. 1992); Wightman v. Jones, 809 F. Supp. 474 (N.D.Tex. 1992);

Neville v. Dearie, 745 F. Supp. 99 (N.D.N.Y. 1990); see also Dorman v. Higgins,

821 F.2d 133, 139 (2d Cir. 1987). Most of these courts have held that the doctrine

of absolute judicial immunity serves to protect federal judges from injunctive relief

as well as money damages. 

In Mullis, the Ninth Circuit pointed out several “anomalies” in the potential
15

application of the Pulliam exception to judicial immunity to federal judges. 

Specifically, the court stated that in cases in which a federal judge meets the

preconditions for judicial immunity—that he or she acted in his or her judicial

capacity—there will “invariably” be an adequate remedy at law through either

ordinary appeals or an extraordinary writ. Further, the court stated that the

availability of these alternate remedies would diminish a plaintiff’s ability to show

a serious risk of irreparable harm as well. See Mullis, 828 F.2d at 1392.

The Mullis court also noted that to allow injunctive relief against federal

judges would be to permit a “horizontal appeal” from one district court to another

or even “reverse review” of a ruling of the court of appeals by a district court. Id.

at 1392-93. The court then went on to conclude that these problems suggested that

the Pulliam exception should not apply in suits against federal judges. Finally, the

Mullis court noted that this conclusion was supported by the absence of explicit

statutory authority for a suit against a federal judge as was present in the § 1983

action against a state judge at issue in Pulliam. Id. at 1393-94.

Similarly, in Page v. Grady, 788 F. Supp. 1207 (N.D.Ga. 1992), the

Northern District of Georgia concluded that the rationale of Pulliam does not apply

in suits against federal judges. In Page, the court noted that suits against state

officials are explicitly allowed by § 1983 and that suits for injunctive relief against
16

state judges were necessary to effectuate the historical practice of federal court

oversight of state courts. 788 F. Supp. at 1211. Because these policies are not at

issue in suits against federal judges, and Bivens actions against federal officials are

judicially-created remedies anyway, the Page court found that it was inappropriate

to limit absolute judicial immunity in Bivens suits against federal judges. Id. at

1211-12. The court also noted that to find otherwise would be to allow a new

method of oversight of federal court actions by co-equal or inferior federal courts. 

See id. at 1212; Stephens, 827 F. Supp. at 361-65; Wightman, 809 F. Supp. at 476-

79.

There is an opposing position that warrants discussion, however. 

Specifically, the dissent in Mullis quotes Pulliam’s conclusions that the absence of

immunity from prospective relief prior to that time had not chilled judicial

independence and that such independence was adequately protected by the

requirements for injunctive relief as follows:

We never have had a rule of absolute judicial immunity from

prospective relief, and there is no evidence that the absence of that

immunity has had a chilling effect on judicial independence . . . The

limitations already imposed by the requirements for obtaining

equitable relief against any defendant–a showing or an inadequate

remedy at law and of a serious risk of irrevocable harm (citations

omitted), –severely curtail the risk that judges will be harassed and

their independence compromised by the threat of having to defend

themselves against suits by disgruntled litigants.
17

Mullis, 828 F.2d at 1394-95 (O’Scannlain, J. dissenting) (alterations in original);

see Scruggs v. Moellering, 870 F.2d 376, 378 (7th Cir. 1989) (questioning Mullis’

need for reliance upon absolute immunity when the court’s conclusion that an

adequate remedy at law existed led to the same result), abrogated on other grounds,

Antoine v. Byers & Anderson, Inc., 508 U.S. 429 (1993); Dorman v. Higgins, 821

F.2d 133, 139 (2d Cir. 1987) (citing Pulliam, without discussion, for the

proposition that a federal probation officer’s quasi-judicial immunity from

damages claims regarding the preparation of a pre-sentence report did not bar

similar claims for injunctive relief); Neville v. Dearie, 745 F. Supp. 99, 102

(N.D.N.Y. 1990) (citing Dorman for the proposition that judicial immunity does

not bar claims for injunctive relief against federal judges).

In addition, the Supreme Court has previously held that it is inappropriate to

create a distinction between state and federal officials for the purposes of immunity

as follows:

There is no basis for according to federal officials a higher degree of

immunity from liability when sued for a constitutional infringement as

authorized by Bivens than is accorded state officials when sued for the

identical violation under § 1983. The constitutional injuries made

actionable by § 1983 are of no greater magnitude than those for which

federal officials may be responsible.

Butz v. Economou, 438 U.S. 478, 500 (1978). We have similarly stated that the

immunities provided federal officials in Bivens actions are coextensive with those
 6

None of these cases directly addresses the scope of absolute judicial immunity, however. 

Abella merely contains a general comment on the coextensiveness of remedies and immunities

under § 1983 and Bivens, Charles discusses witness immunity, and Barker involves qualified

immunity. Indeed, Abella contains a footnote explicitly stating that the court does not address

the issue of absolute immunity. See Abella, 63 F.3d at 1065-66 n.3.

18

provided state officials from § 1983 actions. See Abella v. Rubino, 63 F.3d 1063,

1065 (11th Cir. 1995); Charles v. Wade, 665 F.2d 661, 666 (5th Cir. Unit B 1982);

Barker v. Norman, 651 F.2d 1107, 1122 (5th Cir. 1981).6

 Thus, this issue is a

closer one than it would seem at first blush. After considering both sides of the

issue, however, we find the stronger argument favors the grant of absolute

immunity to the defendant federal judges in this case. Thus we affirm the district

court’s dismissal of the claims against the defendant judges.

Further, even assuming arguendo that the Pulliam decision applies equally in

Bivens actions against federal judges, that decision has been partially abrogated by

statute. Specifically, in 1996, Congress enacted the Federal Courts Improvement

Act (“FCIA”), Pub. L. No. 104-317, 110 Stat. 3847 (1996), in which it amended §

1983 to provide that “injunctive relief shall not be granted” in an action brought

against “a judicial officer for an act or omission taken in such officer’s judicial

capacity . . . unless a declaratory decree was violated or declaratory relief was

unavailable.” At least two district courts have determined that this amendment also

limits any injunctive relief available against federal judges. See Jones v. Newman,
19

1999 WL 493429 (S.D.N.Y. 1999); Kampfer v. Scullin, 989 F. Supp. 194

(N.D.N.Y. 1997). As the court in Jones explained, there are two reasons

supporting the applicability of this amendment in Bivens actions. First, as a

general matter federal courts incorporate § 1983 law into Bivens actions. See

Antoine v. Byers & Anderson, Inc, 508 U.S. 429, 433 n.5 (1993). In addition, to

the extent that federal judicial officers are not immune from suits for injunctive

relief, their liability is based on § 1983 law as set out in Pulliam. As a result, even

assuming arguendo that Pulliam does apply to federal judges, the 1996 amendment

to § 1983 would limit the relief available to plaintiffs to declaratory relief. As

discussed below with regard to the defendant prosecutors, plaintiffs are not entitled

to declaratory relief as there is an adequate remedy at law. Therefore, for this

reason as well, the district court properly dismissed plaintiffs claims against the

defendant judges.

D. Defendant Prosecutors

Prosecutors are also entitled to absolute immunity from damages for acts or

omissions associated with the judicial process, in particular, those taken in

initiating a prosecution and in presenting the government’s case. See Imbler v.

Pachtman, 424 U.S. 409, 430-31 (1976); Jones v. Cannon, 174 F.3d 1271, 1281

(11th Cir. 1999); Fullman v. Graddick, 739 F.2d 553, 558-59 (11th Cir. 1984). 
20

Our predecessor court has held that prosecutors are not immune from claims for

injunctive relief, however. See Tarter v. Hury, 646 F.2d 1010, 1012 (5th Cir.

1981) (“[P]rosecutors do not enjoy absolute immunity from [declaratory and

injunctive relief] claims.”). Further, we have found no case distinguishing between

state and federal prosecutors in this regard as has been done between state and

federal judges. However, we do not resolve this question because the district

court’s dismissal of plaintiffs claims against the defendant prosecutors may so

clearly be upheld on an alternate ground. 

In order to receive declaratory or injunctive relief, plaintiffs must establish

that there was a violation, that there is a serious risk of continuing irreparable

injury if the relief is not granted, and the absence of an adequate remedy at law. 

See Newman v. Alabama, 683 F.2d 1312 (11th Cir. 1982). As aptly noted by the

Ninth Circuit in Mullis, there is an adequate remedy at law for the violations

alleged by plaintiffs in their complaint. Specifically, plaintiffs may appeal any

rulings, or actions taken, in their criminal cases not only to this Court but also to

the Supreme Court. In addition, plaintiffs may seek an extraordinary writ such as a

writ of mandamus in either this Court or the Supreme Court. See 28 U.S.C. §

1651. Accordingly, there is an adequate remedy at law and plaintiffs are not

entitled to declaratory or injunctive relief in this case. As a result, the district court
 7

Even were the defendant judges not entitled to absolute immunity, the remaining claims for

declaratory relief against them would be properly dismissed for this reason as well.

21

was correct in dismissing plaintiffs’ claims, albeit for a different reason.7

E. Dismissal of Claims Against Defendant Robertson

Plaintiffs also allege that the district court erred in dismissing their claims

against defendant Robertson. The district court dismissed these claims for failure

to state a claim based upon the fact that plaintiffs’ complaint fails to allege any

specific misconduct by Robertson. Plaintiffs assert that there is ample evidence in

the record to prove their allegations of misconduct against Robertson and refer the

court to materials filed in the criminal case against plaintiff Pealock. Regardless of

whether the district court could have properly taken judicial notice of these

materials in ruling upon Robertson’s motion to dismiss, we note that the same

alternate remedies available to plaintiffs for their claims against the defendant

judges and prosecutors are also available for their claims against Robertson. 

Accordingly, plaintiffs are not entitled to declaratory or injunctive relief against

Robertson either and we affirm the district court’s dismissal of plaintiffs’ claims

against him as well.

III. CONCLUSION

The district court did not err in denying plaintiffs’ motions for recusal. We
22

also conclude that the defendant judges are entitled to absolute immunity and

plaintiffs cannot show the absence of an adequate remedy at law for their claims

and therefore are not entitled to the declaratory or injunctive relief sought in their

complaint. As a result, we affirm the district court’s dismissal of this action.

AFFIRMED.