[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-10195

Non-Argument Calendar

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KEVIN CICHOWSKI, 

STANLEY CICHOWSKI, JR., 

Plaintiffs-Appellants,

versus

ANDREA K. TOTTEN, 

Small claims judge, in official capacity,

THE FLORIDA BAR, 

an organization,

Defendants-Appellees.

____________________

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2 Opinion of the Court 24-10195

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 3:23-cv-01181-TJC-MCR

____________________

Before WILSON, JORDAN, and LAGOA, Circuit Judges.

PER CURIAM:

Stanley and Kevin Cichowski filed a civil rights action under 

42 U.S.C. § 1983 against Judge Andrea Totten and the Florida Bar.

In their amended complaint, they alleged that Judge Totten 

violated Stanley’s constitutional rights and the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. She did so by not allowing 

Kevin (Stanley’s son) to help Stanley put on his small claims case

based on the Florida Bar’s rules concerning the unauthorized practice of law, and by threatening Kevin with arrest.1

The Cichowskis also alleged that the Florida Bar’s rules concerning the unauthorized practice of law are unconstitutionally 

vague. In their view, those rules violate the First and Fourteenth 

Amendments.2

The district court dismissed the amended complaint with 

prejudice, ruling that Judge Totten had absolute judicial immunity 

and that the Florida Bar had Eleventh Amendment immunity. On 

1 The Cichowskis requested only injunctive relief against Judge Totten.

2 With respect to the Florida Bar, the Cichowskis requested money damages 

and injunctive relief.

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appeal, the Cichowskis argue that Judge Totten was not entitled to 

absolute judicial immunity because she was engaged in an executive function in enforcing the Florida Bar’s rules. They also argue 

that the Florida Bar is not entitled to Eleventh Amendment immunity because (a) Congress abrogated that immunity when it 

passed the ADA, and (b) the Florida Bar is violating federal law with 

respect to pro se litigants on an ongoing basis.

I 

In reviewing the district court’s dismissal on judicial immunity and Eleventh Amendment immunity grounds, we accept the 

factual allegations in the amended complaint as true. And we draw 

all inferences in the light most favorable to the Cichowskis. See 

Weissman v. Nat’l Ass’n of Sec. Dealers, Inc., 500 F.3d 1293, 1295–96 

(11th Cir. 2007). See also Buckley v. Fitzimmons, 509 U.S. 259, 261 

(1993) (assuming allegations in complaint to be “entirely true” for 

purposes of analyzing absolute immunity).

We liberally construe pro se pleadings. See Tannenbaum v. 

United States, 148 F.3d 1262, 1263 (11th Cir. 1998). But neither this 

Court nor the district court is required to “rewrite an otherwise 

deficient pleading in order to sustain an action.” Campbell v. Air Jamaica, Ltd., 760 F.3d 1165, 1168–69 (11th Cir. 2014) (internal citation and quotation marks omitted).3 

3 In conducting our review in this case, we assume that the Cichowskis asserted a claim under Title II of the ADA in their amended complaint. 

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As the district court explained in its order, in Florida practicing law without a license constitutes a felony. See Fla. Stat. 

§ 454.23. Florida Bar Rule 10-2.29(a) clarifies that nonlawyers may 

assist self-represented parties in completing certain approved forms 

without running afoul of § 454.23. The assistance must be limited 

to oral “communications reasonably necessary to elicit factual information to complete the blanks on the form and inform the selfrepresented person how to file the form.” Fla. Bar. R. 10-2.29(a). 

“The nonlawyer may not give legal advice or give advice on remedies or courses of action.” Id.

II

We review whether a judge is entitled to absolute judicial 

immunity de novo. See Stevens v. Osuna, 877 F.3d 1293, 1301 (11th 

Cir. 2017). Judicial immunity extends to state court judges, and 

“applies even when the judge’s conduct was in error, was done maliciously, or was in excess of [her] authority.” Id. A judge will only 

be deprived of immunity when she acts in the “clear absence of all 

jurisdiction.” Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000). 

Judicial immunity does not generally bar injunctive relief, but such 

relief will not be granted unless “a declaratory decree was violated,

or declaratory relief was unavailable.” See 42 U.S.C. § 1983; Pulliam 

v. Allen, 466 U.S. 522, 541–42 (1984).

Whether a judge’s actions were made in her official capacity, 

and within the bounds of her jurisdiction, depends on whether 

“(1) the act complained of constituted a normal judicial function; 

(2) the events occurred in the judge’s chambers or in open court; 

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(3) the controversy involved a case pending before the judge; 

and (4) the confrontation arose immediately out of a visit to the 

judge in [her] judicial capacity.” Sibley v. Lando, 437 F.3d 1067, 1070 

(11th Cir. 2005). 

Here, the district court did not err in dismissing the 

Cichowskis’ claims against Judge Totten with prejudice. Based on 

the allegations of the amended complaint, she acted within the 

bounds of her jurisdiction when she ensured that the Cichowskis 

complied with the Florida Bar’s rules on the unauthorized practice

of law. See Stevens, 877 F.3d at 1301; Bolin, 225 F.3d at 1239. First, 

Judge Totten’s actions were taken in her official judicial capacity. 

See Sibley, 437 F.3d at 1070. Second, given that Judge Totten’s actions concerned a small claims matter pending before her, she did

not act in the absence of all jurisdiction. See Bolin, 225 F.3d at 1239. 

As we have explained, “[j]udges have an obligation to maintain 

control over the courthouse and over the conduct of persons in the 

courthouse[.]” Stevens, 877 F.3d at 1305. A judge’s enforcement of 

applicable rules in a pending case is a quintessential judicial act. 

Third, insofar as the Cichowskis sought any injunctive relief against 

Judge Totten under § 1983, they did not allege that a declaratory 

decree was violated, or that declaratory relief was unavailable. See 

Pulliam, 466 U.S. at 541–42; 42 U.S.C. § 1983. 

III

We review a district court’s dismissal on Eleventh Amendment grounds de novo. See In re Emp. Discrimination Litig. Against 

State of Ala., 198 F.3d 1305, 1310 (11th Cir. 1999). Eleventh 

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Amendment immunity extends to the Florida Bar because it is an 

official arm of the Florida Supreme Court, and therefore, an arm of 

the state itself. See Kaimowitz v. Fla. Bar, 996 F.2d 1151, 1155 (11th 

Cir. 1993). There are, however, several exceptions to Eleventh 

Amendment immunity, and we discuss them below. 

First, a state can consent to suit in federal court. See 

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984). 

But Florida has not waived its sovereign immunity with regard to 

§ 1983 actions. See Gamblev. Fla. Dep’t of Health & Rehab. Servs., 779 

F.2d 1509, 1520 (11th Cir. 1986). 

Second, Eleventh Amendment immunity can be abrogated 

by a clear congressional statement in certain statutes. See Kimel v. 

Fla. Bd. of Regents, 528 U.S. 62, 73 (2000). Congress, however, has 

not abrogated the states’ Eleventh Amendment immunity from 

§ 1983 suits. See Williams v. Bd. of Regents of Univ. Sys. Of Ga., 477 

F.3d 1282, 1301 (11th Cir. 2007). 

Third, Title II of the ADA does abrogate Eleventh Amendment immunity for damages actions against states for conduct that 

“actually violates the Fourteenth Amendment[.]” United States v. 

Georgia, 546 U.S. 151, 153–54, 159 (2006) (citing 42 U.S.C. §§ 12131–

22) (emphasis omitted). The only allegations in the amended complaint about the ADA, however, are that Stanley “is dyslexic and 

often needs help with reading” and that the county court failed to 

provide him a reasonable accommodation (i.e., did not allow Kevin 

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to help him present his case). See Amended Complaint, D.E. 28 at 

¶ 49.4 

The problem for the Cichowskis is that rules barring the unauthorized practice of law have been upheld when challenged under the Fourteenth Amendment. See Wright v. Lane Cty. Dist. Ct., 

647 F.2d 940, 941 (9th Cir. 1981); Monroe v. Horwitch, 820 F.Supp. 

682, 686–87 (D. Conn. 1993). Although these cases did not involve 

disabled individuals, we are aware of no authorities to the contrary. 

On the facts alleged, the amended complaint does not state a claim 

for a constitutional violation.

Fourth, “[t]he [Ex parte] Young doctrine permits federal 

courts to entertain suits against state officers seeking prospective 

equitable relief to end continuing violations of federal law.” 

McClendon v. Ga. Dept. of Cmty. Health, 261 F.3d 1252, 1256 (11th 

Cir. 2001) (referencing Ex Parte Young, 209 U.S. 123 (1908)) (emphasis omitted). However, this third exception applies only to prospective relief against state officers. See Puerto Rico Aqueduct & Sewer 

Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993). It “does 

not permit judgments against state officers declaring that they violated federal law in the past, . . . and has no application in suits 

4 The Cichowskis’ brief contains additional factual allegations, e.g., that Stanley has social anxiety disorder, that Kevin is also dyslexic, and that Florida is 

denying access to judicial services to those who suffer from dyslexia and social 

anxiety disorder. We do not consider these allegations. “[F]acts contained in 

a motion or brief cannot substitute for missing allegations in the complaint.” 

EEOC v. Catastrophe Management Solutions, 852 F.3d 1018, 1030 n.5 (11th Cir. 

2016) (citation and internal quotation marks omitted).

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against the [s]tates and their agencies, which are barred regardless 

of the relief sought.” Id. So this exception does not save the claims 

against the Florida Bar. 

IV

In closing, we recognize that district courts are sometimes 

required to give pro se litigants additional leeway to amend their 

pleadings before dismissing with prejudice. See Woldeab v. Dekalb 

Cty. Bd. Of Educ., 885 F.3d 1289, 1291 (11th Cir. 2018). Nevertheless, district courts can dismiss with prejudice when amendment 

would be futile. See Hall v. United Ins. Co. of Am., 367 F.3d 1255, 

1262–63 (11th Cir. 2004). Here the Cichowskis do not seek leave 

to amend. Nor do they say what additional factual allegations they 

could include in a second amended complaint that would allow 

them to avoid judicial immunity for Judge Totten and Eleventh 

Amendment immunity for the Florida Bar. 

The district court’s order of dismissal is affirmed.

AFFIRMED.

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