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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

ALBENO SCELETZ CARMICHAEL, 

 Plaintiff,

vs. Case No. 3:11cv86/RV/EMT

JUDGE MICHAEL G. ALLEN,

 Defendant.

ORDER, REPORT AND RECOMMENDATION

This cause is before the court upon plaintiff’s civil rights complaint filed pursuant to Title

42 U.S.C. §1983 (doc. 1), and his motion to proceed in forma pauperis (doc. 2). With respect to the

latter motion, good cause having been shown, leave to so proceed will be granted. 

Since plaintiff is proceeding in forma pauperis, the court is required to dismiss the case at

any time if it determines that the “action or appeal” is “(i) frivolous or malicious; (ii) fails to state

a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is

immune from such relief.” 28 U.S.C.A. § 1915(e)(2)(B). In this case, the lone defendant in this

action is Escambia County Judge Michael G. Allen, who presided over plaintiff’s dissolution of

marriage action. Plaintiff alleges that Judge Allen signed an order on January 19, 2011, that was in

violation of Florida and Federal law. His main complaint appears to be that he was not afforded a

hearing on his pending motions. Plaintiff seeks judgment against Judge Allen in the amount of

$10,000, and an order voiding or striking the order complained of.

Plaintiff’s claim for damages cannot stand because Judge Allen is immune from suit. 28

U.S.C. § 1915(e)(2)(B)(iii). Judges acting in their judicial capacity are absolutely immune from

damages suits. Mireles v. Waco, 502 U.S. 9, 11, 112 S. Ct. 286, 288, 116 L. Ed. 2d 9 (1991)

(“Judicial immunity is an immunity from suit, not just from ultimate assessment of damages.”)
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(citing Mitchell v. Forsyth, 472 U.S. 511, 526–27, 105 S. Ct. 2806, 2815–16, 86 L. Ed. 2d 411

(1985)); Dennis v. Sparks, 449 U.S. 24, 27, 101 S. Ct. 183, 186, 66 L. Ed. 2d 185 (1980); see also

Sibley v. Lando, 437 F.3d 1067,1070 (11th Cir. 2005). Whether a judge’s actions were taken while

acting in his judicial capacity 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; (3) the

controversy involved a case pending before the judge; and (4) the confrontation arose immediately

out of a visit to the judge in his judicial capacity. Sibley, 437 F.3d at1070. “This immunity applies

even when the judge’s acts are in error, malicious, or were in excess of his or her jurisdiction.” Id.

(quoting Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000)); Mireles, 502 U.S. at 11, 112 S. Ct.

at 288 (judicial immunity not overcome by allegations of bad faith or malice). Furthermore, the

immunity is retained even if it is alleged that the judge conspired with other parties to bring about

a deprivation of another’s rights. Dykes v. Hosemann, 776 F.2d 942, 946 (11th Cir. 1985) (en banc)

(citations omitted). Sibley, 437 F.3d at 1070. Immunity may be overcome only (1) where the judge

has not acted within his judicial capacity or (2) where the judge’s actions, though judicial in nature,

are taken in the complete absence of all jurisdiction over the subject matter. Stump v. Sparkman, 435

U.S. 349, 356–57, 98 S. Ct. 1099, 1104–05, 55 L. Ed. 2d 331 (1978) (citing Bradley v. Fisher, 80

U.S. (13 Wall.) 335, 351 (1871)); Mireles, 502 U.S. at 11, 112 S. Ct. at 288; Forrester v. White, 484

U.S. 219, 227, 108 S. Ct. 538, 544, 98 L. Ed. 2d 555 (1988); Dykes, 776 F.2d at 948 (judge who has

subject matter jurisdiction, but no personal jurisdiction retains immunity) (citing cases in accord). 

No such allegations are present here.

To the extent plaintiff wants this court to review the substance of Judge Allen’s order, he also

is not entitled to relief. It is well established that federal district courts exercise only original

jurisdiction; they lack appellate jurisdiction to review state court decisions reached in administrative

and judicial proceedings. District of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462, 476, 103

S. Ct. 1303, 1311–12, 75 L. Ed. 2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415–16,

44 S. Ct. 149, 150, 68 L. Ed. 362 (1923). The Rooker and Feldman decisions have become known

as the Rooker-Feldman doctrine. Under the Rooker-Feldman doctrine, federal district courts do not

have jurisdiction “over challenges to state-court decisions in particular cases arising out of judicial

Case No: 3:11cv86/RV/EMT
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proceedings even if those challenges allege that the state court’s action was unconstitutional. 

Review of those decisions may be had only in [the Supreme Court on certiorari].” Berman v. Fla.

Bd. of Bar Exam’rs, 794 F.2d 1529, 1530 (11th Cir. 1986) (quoting Feldman, 460 U.S. at 486). 

Furthermore, under the Rooker-Feldman doctrine, a federal court “maynot decide federal issues that

are raised in state proceedings and ‘inextricably intertwined’ with the state court’s judgment.’” Datz

v. Kilgore, 51 F.3d 252, 253 (11th Cir. 1995) (citing Staley v. Ledbetter, 837 F.2d 1016, 1018 (11th

Cir. 1988) (quoting Wood v. Orange County, 715 F.2d 1543, 1546 (11th Cir. 1983)). A federal claim

is “inextricably intertwined” with a state court judgment “if the federal claim succeeds only to the

extent that the state court wrongly decided the issues before it.” Datz, 51 F.3d at 253–54 (quoting

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25, 107 S. Ct. 1519, 1533, 95 L. Ed. 2d 1 (1987) (Marshall,

J., concurring)). This court cannot determine such inextricablyintertwined claims even if the federal

claim was not raised in state court, as long as there was a reasonable opportunity to do so. Liedel

v. Juvenile Court of Madison County, Ala., 891 F.2d 1542, 1545 and n.4 (11th Cir. 1990) (citing

Wood, 715 F.2d at 1546-47). Plaintiff’s complaint was filed on February16, 2011, twenty-eight days

after Judge Allen entered his order in state court. The only federal claim in the complaint appears

to stem from a misguided belief that the First Amendment right to petition the government for

redress of grievances mandates that the state court schedule a hearing on any petition and/or motions

he files. It does not appear from the complaint that plaintiff appealed or sought any review in state

court before filing the instant case. Thus no federal claims were raised in state court, and under

Rooker-Feldman this court lacks jurisdiction to review the state court judgment. 

“Ordinarily, a partymust be given at least one opportunity to amend before the district court

dismisses the complaint.” Corsello v. Lincare, Inc., 428 F.3d 1008, 1014 (11th Cir. 2005). “A

district court need not, however, allow an amendment (1) where there has been undue delay, bad

faith, dilatory motive, or repeated failure to cure deficiencies by amendments previously allowed;

(2) where allowing amendment would cause undue prejudice to the opposing party; or (3) where

amendment would be futile.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). In this case,

amendment would be futile, and therefore dismissal is appropriate.

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Accordingly, it is ORDERED:

Plaintiff’s motion to proceed in forma pauperis (doc. 2) is GRANTED.

And it is respectfully RECOMMENDED:

That this cause be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and

(iii), and because this court lacks jurisdiction to review orders entered in the state court proceedings.

DONE AND ORDERED this 24 day of February 2011. th

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES 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 thereof. 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 objections

shall be served upon all 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 (11th Cir. 1988).

Case No: 3:11cv86/RV/EMT