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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

LAWRENCE L. BLANKENSHIP,

 Plaintiff,

vs. Case No: 3:10cv248/MCR/MD

HONORABLE JOHN SIMON, et al.,

Defendants.

REPORT AND RECOMMENDATION

This cause is before the court on plaintiff’s civil rights complaint filed under

42 U.S.C. § 1983. (Doc. 1). The filing fee has been paid. Upon review of the

complaint, the court concludes that plaintiff has not established a jurisdictional

basis for this action, and that it should be dismissed. 

Plaintiff is a resident of Pensacola, Florida. He is suing two state court judges

in Escambia County, Florida: County Court Judge John Simon and Circuit Court

Judge Kenneth L. Williams. Plaintiff states that in 2008 he obtained a judgment

against two individuals inSmall Claims court. The judgment provided that execution

be withheld. (Doc. 1, p. 3; see also id., p. 6). On January 27, 2010, defendant Judge

Simon issued an Order for Execution providing that “the plaintiff may proceed to

collection on the Final Judgment Execution Withheld entered October 10, 2008. 

Execution may issue at plaintiff’s request. The Court retains jurisdiction over any

future Orders it deems necessary.” (Id., p. 6). Plaintiff claims Judge Simon and

Judge Williams are violating his constitutional rights by “not carrying out Judicial

duties” in his case. Specifically, it appears plaintiff attempted to schedule a hearing

but was told by the clerk of court that “Know [sic] Judicial Judges will hear

[plaintiff’s] cases.” (See id., pp. 3, 9). As relief, plaintiff seeks “non-economic
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damages against Judicial Judge in the amount of $100,000, plus court costs and

other reliefs [sic].” (Id., p. 5). 

A federal court must dismiss a case whenever it appears the court lacks

subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3); Bochese v. Town of Ponce Inlet,

405 F.3d 964, 975 (11 Cir. 2005); University of South Alabama v. American Tobacco

th

Co. 168 F.3d 405, 410 (11 Cir. 1999) (once a federal court determines that it is th

without subject matter jurisdiction, the court is powerless to continue); Lovern v.

Edwards, 190 F.3d 648, 654 (4 Cir. 1999) (citations omitted). A court should inquire th

into whether it has subject matter jurisdiction at the earliest possible stage in the

proceedings, and in fact, a federal court is obligated to inquire into subject matter

jurisdiction sua sponte whenever it may be lacking. Bochese, 405 F.3d at 975

(quoting University of South Alabama, 168 F.3d at 410). The absence of jurisdiction

may be raised at any time during the case, and may be based on the court’s review

of the evidence. Lovern, 190 F.3d at 653 (citations omitted). A district court may

address its lack of subject matter jurisdiction in two ways: the court may find

insufficient allegations in the pleading, viewing the alleged facts in the light most

favorable to plaintiff, similar to an evaluation pursuant to Rule 12(b)(6), or, after an

evidentiary hearing, the court may weigh the evidence in determining whether the

facts support the jurisdictional allegations. Id. (citations omitted). The burden is on

the party asserting jurisdiction to demonstrate that jurisdiction in fact exists. Id. at

654 (citing Thomas v. Gaskill, 315 U.S. 442, 446, 62 S. Ct. 673, 86 L. Ed. 2d 951

(1942)). 

In this case, plaintiff asserts federal question jurisdiction based on claims

arising under § 1983 (deprivation of his constitutional rights). But the mere

assertion of a federal claim is not sufficient to obtain jurisdiction under 28 U.S.C. §

1331. “Federal jurisdiction requires that a party assert a substantial federal claim. 

Davis v. Pak, 856 F.2d 648, 650 (4 Cir. 1988) (citing Hagans v. Lavine, 415 U.S. 528,

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536, 94 S. Ct. 1372, 39 L. Ed. 2d 577 (1976)) (emphasis added); see also Baker v.

Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962) (if jurisdiction is based on a

federal question, the plaintiff must show he has alleged a claim under federal law

Case No: 3:10cv248/MCR/MD
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and that the claim is not frivolous). In Hagans, the Supreme Court noted: “Over the

years this Court has repeatedly held that the federal courts are without power to

entertain claims otherwise within their jurisdiction if they are ‘so attenuated and

unsubstantial as to be absolutely devoid of merit, wholly insubstantial, obviously

frivolous, plainly insubstantial, or no longer open to discussion.’” 415 U.S. at 536-37

(citations omitted). While emphasizing that this insubstantiality threshold is a

difficult one to meet, the Court concluded that the substantiality doctrine “remains

the federal rule and needs no reexamination.” Id. at 538. A complaint is frivolous

“where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490

U.S. 319, 325, 109 S. Ct. 1827, 1833, 104 L. Ed. 2d 338 (1989). Dismissals on this

ground should only be ordered when the legal theories are “indisputably meritless,”

id., 490 U.S. at 327, or when the claims rely on factual allegations that are “clearly

baseless.” Denton v. Hernandez, 504 U.S. 25, 31, 112 S. Ct. 1728, 1733, 118 L. Ed.

2d 340 (1992). 

Here,plaintiff’s claims against Judge Simon and Judge Williams are obviously

frivolous in that they are precluded by the doctrine of judicial immunity. “Few

doctrines were more solidly established at common law than the immunityof judges

from liability for damages for acts committed within their judicial jurisdiction. . . .” 

Pierson v. Ray, 386 U.S. 547, 553–54, 87 S.Ct. 1213, 1217, 18 L. Ed. 2d 288 (1967). 

Judicial immunity applies when (1) “the judge deal[t] with the plaintiff in his judicial

capacity” and (2) the judge did not act “in the ‘clear absence of all jurisdiction.’” 

Dykes v. Hosemann, 776 F.2d 942, 945 (11 Cir. 1985) (en banc ) (quoting Stump v. th

Sparkman, 435 U.S. 349, 357, 98 S. Ct. 1099, 1105, 55 L. Ed.2 d 331 (1978)). “This

immunity applies even when the judge’s acts are in error, malicious, or were in

excess of his or her jurisdiction.” Bolin v. Story, 225 F.3d 1234, 1239 (11 Cir. 2000). th

The allegations of plaintiff’s complaint establish that to the extent Judge Simon and

Judge Williams dealt with the plaintiff, i.e., when they acted, or declined to act, in

plaintiff’s Small Claims case, they did so in their judicial capacities. It is also

apparent that the defendants did not act “in the clear absence of all jurisdiction”

when they engaged in the challenged conduct. Therefore, plaintiff has failed to state

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a substantial federal claim against either defendant, and his claims against them

should be dismissed.

To the extent plaintiff’s complaint can liberally be construed as raising one or

more claims under state law, the undersigned recommends that the court, in its

discretion pursuant to 28 U.S.C. § 1367(c)(3), decline to exercise supplemental

jurisdiction over any state law claims. See United Mine Workers of America v.

Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). 

Accordingly, it is respectfully RECOMMENDED:

1. That plaintiff’s federal claims be DISMISSED for lack of jurisdiction.

2. That any state law claims be DISMISSED WITHOUT PREJUDICE. 

3. That the clerk be directed to close the file. 

At Pensacola, Florida this 15 day of July, 2010. th

 /s/ Miles Davis

MILES DAVIS

UNITEDSTATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy hereof. Any different deadline that

may appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of any objections shall be served upon any other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11 Cir. 1988). th

Case No: 3:10cv248/MCR/MD