1

Plaintiff’s Motion to Proceed Without Prepayment of Fees

was granted on April 12, 2010. (Doc. 3).

2

Section 1915(e)(2)(B) provides:

(2) Notwithstanding any filing fee, or any

portion thereof, that may have been paid, the

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

LETTIE MALONE ANDERSON, :

Plaintiff, :

vs. : CIVIL ACTION 10-00164-KD-B

JUDGE DON DAVIS, et al., :

Defendants. :

REPORT AND RECOMMENDATION

Plaintiff, who is proceeding pro se, filed a Complaint and a

Motion to Proceed Without Prepayment of Fees. (Docs. 1, 2).

Plaintiff's motion to proceed without prepayment of fees was

referred to the undersigned for appropriate action pursuant to 28

U.S.C. § 636(b)(1)(A) and Local Rule 72.2(c)(1). Local Rule

72.2(c)(1) provides for the automatic referral of non-dispositive

pretrial matters, such as Plaintiff’s motion, to a Magistrate

Judge. In addition to considering Plaintiff’s motion1

, the

undersigned is also required to screen Plaintiff’s Complaint

pursuant to 28 U.S.C. § 1915(e)(2)(B). Troville v. Venz, 303 F.3d

1256, 1260 (11th Cir. 2002) (applying § 1915(e) to non-prisoner

actions).2

 After carefully screening Plaintiff’s Amended Complaint

Case 1:10-cv-00164-KD-B Document 5 Filed 06/11/10 Page 1 of 14
court shall dismiss the case at any time if

the court determines that -- 

(A) the allegation of poverty is

untrue; or

(B) the action or appeal –

(I) is 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.

2

(Doc. 4), it is recommended that Plaintiff’s action be dismissed

with prejudice, prior to service of process, pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(I). 

I. Nature of Proceedings.

 After granting Plaintiff’s Motion to Proceed Without

Prepayment of Fees (Doc. 3), the Court screened Plaintiff’s

original Complaint. The Court found the Complaint was deficient in

several respects, pointed them out to Plaintiff, advised Plaintiff

of the requirements for pleading a complaint in federal court, and

directed that the Pro Se Litigant Guide be sent to Plaintiff for

her use. (Id.). Plaintiff was ordered to file an amended

complaint to cure these deficiencies and was advised that the

amended complaint would supersede the original Complaint. (Id. at

5).

Plaintiff filed a brief Amended Complaint wherein she names

one Defendant, Mobile County Probate Judge Don Davis. (Doc. 4 at

Case 1:10-cv-00164-KD-B Document 5 Filed 06/11/10 Page 2 of 14
3

1). According to Plaintiff’s Amended Complaint, she is suing

Defendant Davis under 42 U.S.C. § 1983, under “Article Ninth

[Amendment VII] in suit as Common Law,” and under “Article the

eight of the Bill of Rights [Amendment VI].” (Id. at 2).

Plaintiff alleges that Defendant Davis issued decisions that were

unfavorable to her on July 9, 2008, August 14, 2008, February 28,

2008, April 1, 2008, and November 13, 2009; that she “was never

given the opportunity to prove common law”; and that this is a

“[c]ivil action for deprivation of rights.” (Id. at 1-2). The

Amended Complaint does not contain any other factual allegations.

The other allegations in the Amended Complaint merely recite

language from the Sixth and Seventh Amendments of the Constitution.

 For relief, Plaintiff seeks reimbursement for her payment of

house notes for two years; for the money she invested in home

repairs; for the proceeds from the life insurance policy that named

her, the spouse, as the beneficiary; for property taxes that she

paid on two lots for sixteen years; and for the proceeds from an

asbestos settlement because they are owed to her as the spouse.

The Amended Complaint is disjointed and contains very few

facts. Standing by itself, the Amended Complaint does not clearly

convey a plausible claim against Defendant Davis. Although

Plaintiff was advised that the Amended Complaint would supersede

the original Complaint and, therefore, she should not rely on the

original Complaint, the undersigned finds that the original

Case 1:10-cv-00164-KD-B Document 5 Filed 06/11/10 Page 3 of 14
3

The frivolity and the failure-to-state-a-claim analysis

contained in Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827,

104 L.Ed.2d 338 (1989), was unaltered when Congress enacted 28

U.S.C. § 1915(b)(2)(B) in 1996. Bilal v. Driver, 251 F.3d 1346,

1349 (11th Cir.), cert. denied, 534 U.S. 1044 (2001). However,

4

Complaint helps to clarify some of the allegations contained in

the Amended Complaint.

In the original Complaint Plaintiff maintained that Defendant

Davis “denied [her] the right to a trial to establish Common-law

Marriage which is legal in the state of Alabama.” (Doc. 1 at 1).

Plaintiff stated that after “sixteen years with [her] deceased

husband, Mack Arthur Anderson, [which] were good years most the

times[,]” a date for a ceremonial marriage had been set. (Id. at

1-2). Nonetheless, Defendant Davis wrote the Social Security

Administration to stop Plaintiff’s widow’s benefits; however,

their minor son still receives his benefits. (Id. at 2).

Defendant Davis allegedly deprived Plaintiff and her minor son of

money or property in handling the estate which she believes were

owed to her. (Id. at 2-3). Plaintiff filed “this suit because an

injustice has been committed against [her] by the system.” (Id. at

2). 

II. Analysis.

A. Standards of Review Under 28 U.S.C. § 1915(e)(2)(B).

Because Plaintiff is proceeding in forma pauperis, the Court

is reviewing the Amended Complaint (Doc. 4) under 28 U.S.C. §

1915(e)(2)(B).3 Pursuant to § 1915(e)(2)(B)(I), a claim may be

Case 1:10-cv-00164-KD-B Document 5 Filed 06/11/10 Page 4 of 14
dismissal is now mandatory under § 1915(e)(2)(B). Id. at 1348-

49.

5

dismissed as “frivolous where it lacks an arguable basis in law or

fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827,

1831-32, 104 L.Ed.2d 338 (1989). A claim is frivolous as a matter

of law where, inter alia, the defendants are immune from suit, id.

at 327, 109 S.Ct. at 1833, or the claim seeks to enforce a right

that clearly does not exist. Id.

Moreover, a complaint may be dismissed under 28 U.S.C. §

1915(e)(2)(B)(ii) for failure to state a claim upon which relief

may be granted. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th

Cir. 1997). To avoid dismissal for failure to state a claim upon

which relief can be granted, the allegations must show

plausibility. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127

S.Ct. 1955, 1966, 167 L.Ed.2d 929 (2007). “A claim has facial

plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, ___ U.S.

___, ___, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009). That is,

“[f]actual allegations must be enough to raise a right to relief

above the speculative level” and must be a “‘plain statement’

possess[ing] enough heft to ‘sho[w] that the pleader is entitled to

relief.’” Twombly, 550 U.S. at 555, 557, 127 S.Ct. at 1965, 1966

(second brackets in original). 

Case 1:10-cv-00164-KD-B Document 5 Filed 06/11/10 Page 5 of 14
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When considering a pro se litigant’s allegations, a court

gives them a liberal construction holding them to a more lenient

standard than those of an attorney. Haines v. Kerner, 404 U.S.

519, 520, 92 S.Ct. 594, 595-596, 30 L.Ed2d 652 (1972). A court,

however, does not have “license . . . to rewrite an otherwise

deficient pleading [by a pro se litigant] in order to sustain an

action.” GJR Investments v. County of Escambia, Fla., 132 F.3d

1359, 1369 (11th Cir. 1998). Furthermore, a pro se litigant “is

subject to the relevant law and rules of court including the

Federal Rules of Civil Procedure.” Moon v. Newsome, 863 F.2d 835,

837 (11th Cir.), cert. denied, 493 U.S. 863 (1989).

B. Discussion. 

1. Damages Claim Against Defendant Davis.

Defendant Davis is the probate court judge who handled the

estate of Mack Arthur Anderson. (Doc. 1 at 1-2). In a § 1983

action, a judge is entitled to absolute judicial immunity from

damages for those acts taken while he was acting in his judicial

capacity unless he acted in the “clear absence of all

jurisdiction.” Stump v. Sparkman, 435 U.S. 349, 356, 362, 98 S.Ct.

1099, 1105, 1107-08 55 L.Ed.2d 331 (1978) (citation and internal

marks omitted); Simmons v. Conger, 86 F.3d 1080, 1084-85 (11th Cir.

1996) (same). A judge is entitled to this immunity even though his

acts were in error, were malicious, or were in excess of his

jurisdiction. Stump, 435 U.S. at 356, 98 S.Ct. at 1105. 

Case 1:10-cv-00164-KD-B Document 5 Filed 06/11/10 Page 6 of 14
7

Plaintiff complains of Defendant Davis’s handling of Mr.

Anderson’s estate in regard to his decisions concerning her status,

the money and property she believed were due her, and his contact

with the Social Security Administration. However, determining if

Plaintiff was a legal wife, ordering the distribution of assets,

and advising appropriate agencies of the court’s rulings are

functions that an Alabama probate judge typically performs. Thus,

the first prong of the Stump immunity test requiring a judge to

have acted in his judicial capacity is met.

 The next prong of the Stump test is whether Defendant Davis

acted in the “‘clear absence of all jurisdiction.’” Simmons, 86

F.3d at 1085 (quoting Stump, 435 U.S. at 357). In Alabama, a

probate judge has exclusive original jurisdiction over the handling

of estates. See ALA. CODE § 12-13-1 (1975), § 12-13-40 (1975), §

12-13-41 (1983). The matters about which Plaintiff complains

concern Defendant Davis’s handling of Mr. Anderson’s estate. As

probate judge, Defendant Davis was clearly acting within his

jurisdiction when he handled the estate of Mr. Anderson. Cf. Dykes

v. Hosemann, 776 F.2d 942, 948 n.17 (11th Cir. 1985) (an example of

the “clear absence of jurisdiction” is when a probate judge with

jurisdiction over wills and estates tries a criminal case).

While Plaintiff attributes error to Judge Davis’s handling of

different aspects of Mr. Anderson’s estate, an error by a judge in

a ruling or in the handling of a case does not divest the judge of

Case 1:10-cv-00164-KD-B Document 5 Filed 06/11/10 Page 7 of 14
4

“Unpublished opinions are not considered binding precedent,

but they may be cited as persuasive authority.” 11TH CIR. R. 36-2

(2005).

8

jurisdiction over an action pending before him or her. See Stump,

435 U.S. at 363-64, 98 S.Ct. at 1108-09 (finding that judicial

immunity extends to judicial acts that may contain error).

Because both prongs of the Stump test are satisfied, Defendant

Davis is entitled to absolute judicial immunity from Plaintiff’s

damages claims. Accordingly, Plaintiff’s damages claims against

Defendant Davis are frivolous as a matter of law and are due to be

dismissed. See Dykes, 776 F.2d at 945 (finding that the statecourt judge who made the custody determination in a juvenile

dependency case was entitled to absolute immunity from damages in

a § 1983 action); Rolleston v. Eldrige, 848 F.2d 163, 165 (11th

Cir. 1988) (affirming the dismissal of the § 1983 action against

the state-court judge on absolute immunity grounds and noting that

a § 1983 action in federal district court “is neither [an]

alternative nor a complement to the appeal of a state trial court

decision to a higher state court”); Stegeman v. Georgia, 290

Fed.Appx. 320, 323 (11th Cir. 2008) (unpublished)4 (finding that in

a § 1983 action the probate judge was entitled to absolute immunity

for ruling on the estate’s temporary administrator’s petition to

discharge), cert. denied, 129 S.Ct. 1672 (2009).

2. References to Constitutional Amendments.

In addition, Plaintiff mentions “Article Ninth [Amendment

Case 1:10-cv-00164-KD-B Document 5 Filed 06/11/10 Page 8 of 14
9

VII]” and then quotes from the Seventh Amendment. (Doc. 4 at 2). 

The Seventh Amendment provides: 

In suits at common law, where the value in

controversy shall exceed twenty dollars, the

right of trial by jury shall be preserved,

and no fact tried by a jury, shall be

otherwise reexamined in any Court of the

United States, than according to the rules of

the common law. 

U.S. CONST. amend. VII. This Court is not able to determine a

cogent reason for Plaintiff’s reference to the Seventh Amendment.

If Plaintiff contends that her rights under the Seventh Amendment

were violated, such a claim is without merit. Dice v. Akron,

Canton & Youngstown R.R. Co., 342 U.S. 359, 365, 72 S.Ct. 312, 316,

96 L.Ed. 398 (1952) (“[T]he 7th Amendment applies only to

proceedings in courts of the United States, and does not in any

manner whatever govern or regulate trials by jury in state courts,

or the standards which must be applied concerning the same.”). In

addition, to the extent Plaintiff claims that her rights under the

Ninth Amendment were violated, the claim is without merit.

Strandberg v. City of Helena, 791 F.2d 744, 748 (9th Cir. 1986)

(“[T]he ninth amendment has never been recognized as independently

securing any constitutional right, for purposes of pursing a civil

rights claim.”). 

In her Amended Complaint, Plaintiff also mentions “[a]rticle

the eight of the Bill of Rights [Amendment VI]” and quotes

portions of the Sixth Amendment. The Sixth Amendment provides:

Case 1:10-cv-00164-KD-B Document 5 Filed 06/11/10 Page 9 of 14
10

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and

district wherein the crime shall have been

committed, which district shall have been

previously ascertained by law, and to be

informed of the nature and cause of the

accusation; to be confronted with the

witnesses against him; to have compulsory

process for obtaining witnesses in his favor,

and to have the Assistance of Counsel for his

defence.

U.S. CONST. amend VI. A claim for a violation of the Sixth

Amendment is frivolous because the state-court action was a civil

action and this is a civil action; thus, the Sixth amendment has no

applicability. Briggs v. Wall, 2009 WL 4884529, at *3 (D.R.I. Dec.

16, 2009) (unpublished) (“[T]he Sixth Amendment . . . is not

applicable to a plaintiff’s pursuit of civil actions.”); Bailey v.

Systems Innovation, Inc., 852 F.2d 93, 97 (3d Cir. 1988) (“The

sixth amendment, by its terms, is applicable only to criminal

actions[.]”). Likewise, to the extent Plaintiff seeks to assert an

Eighth Amendment claim, the claim is frivolous as the Eighth

Amendment is applicable only to criminal defendants. Ingraham v.

Wright, 430 U.S. 651, 6643, 97 S.Ct. 1401, 1408, 51 L.Ed.2d 711

(1977) (The Eighth Amendment’s “[b]ail, fines, and punishment

traditionally have been associated with the criminal process[.]”).

Whether Plaintiff is seeking to bring an independent claim for

a violation of her rights under any of these foregoing

constitutional amendments or is seeking to enforce a violation of

Case 1:10-cv-00164-KD-B Document 5 Filed 06/11/10 Page 10 of 14
5

The Court has considered other grounds upon which this

action should be dismissed but found them to be inapplicable

based upon record before the Court. Because Plaintiff has only

requested damages against Defendant Davis, the Court reasons that

the probate exception to the court’s federal subject matter

jurisdiction is not applicable. Marshall v. Marshall, 547 U.S.

293, 311-12, 126 S.Ct. 1735, 1783, 164 L.Ed.2d 480 (2006)(“The

probate exception [which] reserves to state probate courts the

probate or annulment of a will and the administration of a

decedent’s estate; it also precludes federal court from

endeavoring to dispose of property that is in the custody of a

state probate court.”).

Additionally, the Court does not have before it information

reflecting whether a final judgment was entered by Defendant

Davis or whether an appeal of Defendant Davis’s judgment was

taken and is pending. In the absence of this information, the

Court cannot determine whether this action is barred by the

Rooker-Feldman doctrine. See Nicholson v. Shafe, 558 F.3d 1266,

1279 (11th Cir. 2009) (We “hold that state proceedings have not

ended for purposes of Rooker-Feldman when an appeal from the

state court judgment remains pending at the time the plaintiff

commences the federal court action that complains of injuries

caused by the state court judgment and invites review and

rejection of that judgment.”); see also District of Columbia

Court of Appeals v. Feldman, 460 U.S. 462, 476, 103 S.Ct. 1303,

1311, 75 L.Ed.2d 206 (1983) (relying on Rooker v. Fidelity Trust

Co., 263 U.S. 413 (1923), the Supreme Court found that “a United

States District Court has no authority to review final judgments

of a state court in judicial proceedings. Review of such

judgments may be had only in this Court.”). 

11

these amendments through 42 U.S.C. § 1983, the result is the same -

her claims are frivolous and are due to be dismissed. 

III. Conclusion.

Based upon the foregoing reasons, it is recommended that this

action be dismissed with prejudice as frivolous, prior to service

of process, pursuant to 28 U.S.C. § 1915(e)(2)(B)(I).5 

The instructions that follow the undersigned’s signature

contain important information regarding objections to the Report

Case 1:10-cv-00164-KD-B Document 5 Filed 06/11/10 Page 11 of 14
12

and Recommendation of the Magistrate Judge.

DONE this 10th day of June, 2010.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

Case 1:10-cv-00164-KD-B Document 5 Filed 06/11/10 Page 12 of 14
6

Effective December 1, 2009, the time for filing written

objections was extended to “14 days after being served with a

copy of the recommended disposition[.]” Fed.R.Civ.P. 72(b)(2).

13

MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or

anything in it must, within ten days of the date of service of this

document, file specific written objections with the clerk of court.

Failure to do so will bar a de novo determination by the district

judge of anything in the recommendation and will bar an attack, on

appeal, of the factual findings of the magistrate judge. See 28

U.S.C. § 636(b)(1)(c); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir.

1988). The procedure for challenging the findings and

recommendations of the magistrate judge is set out in more detail

in SD ALA LR 72.4 (June 1, 1997), which provides, in part, that:

A party may object to a recommendation entered by a

magistrate judge in a dispositive matter, that is, a

matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing

a “Statement of Objection to Magistrate Judge’s

Recommendation” within ten days6 after being served

with a copy of the recommendation, unless a different

time is established by order. The statement of

objection shall specify those portions of the

recommendation to which objection is made and the basis

for the objection. The objecting party shall submit to

the district judge, at the time of filing the

objection, a brief setting forth the party’s arguments

that the magistrate judge’s recommendation should be

reviewed de novo and a different disposition made. It

is insufficient to submit only a copy of the original

brief submitted to the magistrate judge, although a

copy of the original brief may be submitted or referred

to and incorporated into the brief in support of the

objection. Failure to submit a brief in support of the

objection may be deemed an abandonment of the

objection.

A magistrate judge’s recommendation cannot be appealed to a

Court of Appeals; only the district judge’s order or judgment can

be appealed.

Case 1:10-cv-00164-KD-B Document 5 Filed 06/11/10 Page 13 of 14
14

2. Opposing party’s response to the objection. Any opposing

party may submit a brief opposing the objection within ten (10)

days of being served with a copy of the statement of objection. 

Fed. R. Civ. P. 72; SD ALA LR 72.4(b). 

3. Transcript (applicable where proceedings tape recorded).

Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the magistrate

judge finds that the tapes and original records in this action are

adequate for purposes of review. Any party planning to object to

this recommendation, but unable to pay the fee for a transcript, is

advised that a judicial determination that transcription is

necessary is required before the United States will pay the cost of

the transcript.

DONE this 10th day of June, 2010.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

Case 1:10-cv-00164-KD-B Document 5 Filed 06/11/10 Page 14 of 14