United States District Court, S.D. Illinois
May 9, 2005.
BRUCE CLARRY, Plaintiff,
DENNIS G. HATCH, et al., Defendants.
The opinion of the court was delivered by: J. PHIL GILBERT, District Judge
MEMORANDUM AND ORDER
This matter comes before the Court on Defendants Dennis Hatch
and Kathy Twine's motions to dismiss the claims against them in
this case (Doc. 19), to which Plaintiff responded. (Doc. 32).
This case apparently stems from a divorce or child custody
lawsuit between Plaintiff Bruce Clarry and his ex-wife, Nova.
Defendant Dennis Hatch, an Illinois circuit judge, is apparently
assigned to those proceedings. Kathy Twine, for her part, is a
member of the Illinois Judicial Inquiry Board whose relevance to
this case we'll explore momentarily. As a global matter note that
Plaintiff, proceeding pro se in this matter, seeks damages from
these Defendants for alleged racial discrimination against him.
Let's consider Plaintiff's claims against Judge Hatch first.
Noting that Judge Hatch is white and that Plaintiff is black,
Plaintiff says that Judge Hatch, again, motivated by racial
animus, wronged Plaintiff by ignoring his motions; revoking his
visitation with his children without just cause; terminating his
parental rights; denying him reasonable visitation with his
children; ignoring his evidence; denying his discovery;
interfering with his attorney-client relationship; disregarding
the state child support guidelines; and ordering him to pay excessive attorney's fees and costs all in violation
of 42 U.S.C. § 2000d.
As suggested above, Judge Hatch through a representative
provided by the Illinois Attorney General's office, to be sure
parried on several grounds, though it's worth noting that
counsel's efforts along those lines was somewhat disappointing.
For one thing, one third of Judge Hatch's brief is dedicated to
establishing that Plaintiff can't prevail under § 2000d. But
that's as true as it is irrelevant. Granted, § 2000d requires
that a plaintiff under that section be "the intended beneficiary
of, or an applicant for, or a participant in a federally funded
program" (Doc. 20 at 5), and Illinois state courts are none of
these things. So counsel's position would be welltaken if this
were a motion for summary judgment. But it's not, and an entirely
different principle applies to motions to dismiss. Consider cases
like Johnson v. Revenue Mgmt. Corp., 169 F.3d 1057, 1060 (7th
Cir. 1999), which hold that "complaints need not articulate legal
theories" at all. Indeed, "[t]his is the difference between
notice pleading [i.e., what's applicable in federal court] and
code pleading [applicable in Illinois]; abandonment of code
pleading is the fundamental choice behind [FED. R. CIV. P.] 8,
the reason why it does not contain the phrase `cause of action,'
a term of art in code pleading days." Bennett v. Schmidt,
153 F.3d 516, 518 (7th Cir. 1998) (emphasis in original). More,
allegations of "racial discrimination" by "state officials"
should set off bells and whistles with any reasonably competent
civil rights litigator in any event. Note that 42 U.S.C. § 1983,
which is easily the most cited statute in federal civil rights
Every person who, under color of any statute,
ordinance, regulation, custom, or usage of any State
or Territory or the District of Columbia, subjects,
or causes to be subjected, any citizen of the United
States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for
Allegations of "racial discrimination" unquestionably invoke the
Equal Protection Clause of the Fourteenth Amendment a "right," for its part, "secured by the
Thus we reach counsel's alternative ground for dismissal of
Judge Hatch from this case that as an Illinois state judge
he's entitled to qualified immunity. Again, counsel's reliance
on the doctrine of qualified immunity, as opposed to absolute
immunity, is puzzling at best. Stump v. Sparkman, 435 U.S. 349
(1978), has long since held that (i) "judges" are absolutely
immune from suits for (ii) "monetary damages" arising from their
(iii) "judicial acts." Points (i) and (ii) are undisputed here
and clearly alleged accordingly in Plaintiff's complaint, and
although Plaintiff "disagrees" that the relevant acts "occur[red]
. . within the scope of [Judge Hatch's] judicial powers," even a
cursory review of those acts clearly rebuts Plaintiff's position.
See Newman v. State of Indiana, 129 F.3d 937, 941 (7th Cir.
Judge Hatch can't be entirely dismissed from this case at this
point, however, as subsequent filings have seemingly altered the
nature of Plaintiff's claim against Judge Hatch. Styled a paper
"Requesting Hearing for Intervention," Plaintiff moves the Court
for an "order [directing that] cases Clarry vs. Pulke No. 00-F-34
and Clarry vs. Clarry No. 91-d-131, be moved to St. Clair county
circuit court and that the court appoint the judge. Also ? since
they have had plenty of time to resolve the issues which have
adversely affected my family for over a year, order Perry County
to move the cases within 20 days of notification." In other
words, and as the Court understands things, Plaintiff wants to
amend his complaint to add a claim against Judge Hatch (the
presiding judge in those cases) for relief in the form of an
injunction which the doctrine of Ex Parte Young, 209 U.S. 123
(1908), places outside the scope of judicial immunity. As to
counsel's alternative argument, the Court finds that the
principles recently set forth in Exxon Mobil Corp. v. Saudi
Basic Industries, 125 S. Ct. 1517 (2005), reject the notion that Plaintiff's suit is barred by the Rooker-Feldman doctrine.
That said, we're now left to consider Plaintiff's claims
against Ms. Twine who, the Court notes, is represented by the
same lawyer who represents Judge Hatch in this case. As an
initial point, because Ms. Twine wasn't a "judge" as such in the
proceedings below, that counsel's argument for dismissal of Ms.
Twine from this case was predicated on the doctrine of
qualified immunity is perhaps more understandable than it was
with Judge Hatch. Nevertheless, the Court concludes that the
relevant cases support applying absolute immunity to Ms. Twine's
acts as well. See Tobin for Governor v. Illinois State Bd. of
Elections, 268 F.3d 517, 521-526 (7th Cir. 2001). Indeed, the
extent of Plaintiff's allegations against her were as follows:
A racial discrimination complaint was file[d] with
the Judicial Inquiry Board, state of Illinois,
against judge Dennis G. Hatch February 15, 2004.
Defendant Kathy D. Twine, Judicial Inquiry Board,
State of Illinois, did not contact the plaintiff. The
board has a legal obligation to properly investigate
complaints of racial discrimination. The board could
not properly make a[n] accurate determination without
hearing both sides of the case, but did so. Defendant
Kathy D. Twine, Judicial Inquiry Board, State of
Illinois was bias in there actions, because the
plaintiff is black the judge Dennis G. Hatch is
(Doc. 18 at 7).
The following is hereby ORDERED:
1. Plaintiff's paper "Requesting Hearing for Intervention"
(Doc. 26), construed as a motion to amend his claim against
Defendant Dennis Hatch, is GRANTED, and will be deemed to
assert a claim against Defendant Hatch for injunctive relief as
stated therein. The motion for a hearing (Doc. 26) is otherwise
DENIED as premature.
2. Defendant Dennis Hatch's motion to dismiss the claims
against him in this case (Doc. 19) is GRANTED IN PART and
DENIED IN PART. Plaintiff's claims for damages against Defendant Hatch are DISMISSED with prejudice.
3. Defendant Kathy Twine's motion to dismiss the claims against
her in this case (Doc. 19) is GRANTED and those claims are
DISMISSED with prejudice. The Clerk of Court is DIRECTED to
ENTER JUDGMENT accordingly at the end of this case.
4. Defendant Edward Eytalis and Nova Clarry's motion to dismiss
the claims against them in this case (Doc. 22) is DENIED as it
merely incorporates arguments made by Defendants Hatch and Twine
which have been rejected in this Order.
IT IS SO ORDERED.
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