Opinion
No. 1:95CV00426
November 12, 2002
MEMORANDUM OPINION GRANTING MOTION FOR SUMMARY JUDGMENT [Doc. 57] AND DENYING PLAINTIFF'S MOTION TO AMEND THE COMPLAINT [Doc. 65]
Plaintiff Walter Lee Hearne was the senior animal control officer in Chatham County when, because of adverse publicity relating to the euthanization of four puppies, he was asked to resign by defendant Wayne Sherman, Director of the Chatham County Health Department. Whether he voluntarily resigned or was terminated and whether, if terminated, he received due process were the central issues in his North Carolina Administrative Procedures petition and the subsequent judicial review in the North Carolina Court of Appeals and the North Carolina Supreme Court. Similar issues are at the heart of Mr. Hearne's claims in this court: that he was subjected to due process violations when he was terminated without adequate pre-termination notice and when Director Sherman, the person who terminated him, was the person who exercised final agency authority under the applicable North Carolina General Statute and made the factual determination that Mr. Hearne had voluntarily resigned. Mr. Sherman and Chatham County have moved for summary judgment, pointing out that the North Carolina courts have decided that Mr. Hearne's termination was by way of voluntary resignation and that principles of res judicata or collateral estoppel and theRooker-Feldman doctrine prevent further litigation about it in this court. The Court agrees that either of those two grounds is sufficient to support dismissal.
Mr. Hearne now moves for permission to amend his complaint to allege additional due process violations on the ground that when his case was argued in the North Carolina Supreme Court, Chief Justice Burley Mitchell — who later recused himself from voting — sat with the Court when it heard arguments and, thereafter, was present in conference during a period when he was negotiating future employment with the law firm representing Mr. Sherman and Chatham County. He claims Justice Mitchell's presence to be a conflict which vitiates the equally divided Supreme Court opinion affirming the Court of Appeals decision against him. He moves to add former Chief Justice Mitchell, now a partner in that law firm, and also the law firm as parties defendant and wishes to add a further claim against the law firm under 42 U.S.C. § 1983 for allegedly drafting the findings of fact for Director Sherman when Sherman issued his final determination of agency action. That motion will be denied for several reasons: first, the Rooker-Feldman doctrine prohibits this Court from assessing the propriety of a North Carolina Supreme Court Justice's attendance either during argument or conference; second, considerations of judicial immunity prohibit suit against an active or former judicial official when the claim is based on acts undertaken within the judicial role; and third, the 42 U.S.C. § 1983 claim against the law firm is not one for which relief may be granted and is, thus, futile. Last, there being no federal claim and diversity not existing, it would be jurisdictionally futile for Mr. Hearne to allege a state constitutional claim.
I.
In Brown Root, Inc. v. Breckenridge, 211 F.3d 194, 198-199 (4th Cir. 2000), Judge Wilkinson recently observed:
The Rooker-Feldman doctrine provides that "a United States District Court has no authority to review final judgments of a state court in judicial proceedings." District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); see also Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923). "[J]urisdiction to review such decisions lies exclusively with superior state courts and, ultimately, the United States Supreme Court." Plyler v. Moore, 129 F.3d 728, 731(4th Cir. 1997). Only habeas corpus petitions or actions sounding in habeas corpus are excepted from the Rooker-Feldman bar. See Plyler, 129 F.3d at 732, 733.
Rooker-Feldman bars not only direct review of issues actually decided by the state court, but also consideration of those claims which are "inextricably intertwined" with state court decisions. See Feldman, 460 U.S. at 486-87, 103 S.Ct. 1303; Plyler, 129 F.3d at 731. The "inextricably intertwined" prong of the doctrine bars a claim that was not actually decided by the state court but where "success on the federal claim depends upon a determination that the state court wrongly decided the issues before it." Plyler, 129 F.3d at 731 (internal quotation marks omitted). Under either the "actually decided" or the "inextricably intertwined" prong, the principle is the same: "[A] party losing in state court is barred from seeking what in substance would be appellate review of the state judgment in a United States district court, based on the losing party's claim that the state judgment itself violates the loser's federal rights." Johnson v. De Grandy, 512 U.S. 997, 1005-06, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994).
In Orca Yachts v. Mollicam, Inc., 287 F.3d 316, 318-319 (4th Cir. 2002), Judge Widener explained the principles of issue preclusion that also apply here:
Under res judicata principles, a prior judgment between the same parties can preclude subsequent litigation on those matters actually and necessarily resolved in the first adjudication. See In re Varat Enters, Inc., 81 F.3d 1310, 1315 (4th Cir. 1996). The doctrine of res judicata encompasses two concepts: 1) claim preclusion and 2) issue preclusion, or collateral estoppel. Varat, 81 F.3d at 1315 (citing Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980)). The rules of claim preclusion provide that if the later litigation arises from the same cause of action as the first, then the judgment in the prior action bars litigation "not only of every matter actually adjudicated in the earlier case, but also of every claim that might have been presented." Varat 81 F.3d at 1315 (citing Nevada v. United States, 463 U.S. 110, 129-30, 103 S.Ct. 2906, 77 L.Ed.2d 509 (1983)). However, issue preclusion is more narrowly drawn and applies when the later litigation arises from a different cause of action between the same parties. Varat, 81 F.3d at 1315. Issue preclusion operates to bar subsequent litigation of those legal and factual issues common to both actions that were "actually and necessarily determined by a court of competent jurisdiction in the first litigation." Varat, 81 F.3d at 1315 (quoting Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979)). Thus, while issue preclusion applies only when an issue has been actually litigated, claim preclusion requires only a valid and final judgment. Compare Restatement (Second) of Judgments § 27 (1980) (when issue of fact or law is actually litigated the determination is conclusive in subsequent action between the same parties) with § 17 of the same Restatement (a valid final judgment is conclusive between the parties and bars subsequent action on the claim).
Obviously, if Mr. Hearne voluntarily resigned, he would not have been entitled to the due process pre-termination rights he complains about not having received. The North Carolina Court of Appeals held that the termination was by voluntary resignation. The finding was upheld by an evenly divided Supreme Court. That finding precludes a federal district court in a collateral proceeding from making a different determination. Moreover, the state courts considered the question whether Mr. Sherman was impermissibly conflicted and determined that he was not.
Justice Lake, writing for the Court in Hearne v. Sherman, 350 N.C. 612, 516 S.E.2d 864 (1999), observed that "[t]he determinative facts as to whether [Mr. Hearne] voluntarily resigned are not in dispute." He then quoted Mr. Hearne's testimony, "[a]nd he (Sherman) said, well, said, I am asking you for your resignation. And I said, you got it." id. 516 S.E.2d at 866. Also, Mr. Hearne's wife who was listening on another phone testified: "Mr. Sherman said, well, I just think it would be in the best interest of the animal shelter if you would resign, Lee. . . . And Lee said — he was very verbal and said well, this is not over unless you ask the other people for their resignations also. And Mr. Sherman didn't respond at that. And Lee said, well, you've got it." Id. 866.
As to whether Mr. Sherman's acting as the final agency decision maker constituted an impermissible conflict and a due process violation, Justice Lake wrote:
While there is language in the final agency decision relating to the credibility of Mr. Hearne and Mr. Sherman, the fact is the parties do not dispute the foregoing testimony of (Mr. Hearne) and his wife or the material facts surrounding the termination of (Mr. Hearne's) employment. This testimony from (Mr. Hearne) and his wife is substantial evidence that (Mr. Hearne), while certainly and understandably not happy about it, did in fact resign his position. Consequently, respondent Sherman was not put in the position of having to weigh his own credibility with regard to this fact. We therefore cannot conclude that either the procedure followed in this case or the evidence considered as a result thereof violated (Mr. Hearne's) right to due process.Id. 516 S.E.2d at 866.
This Court, under Rooker-Feldman, does not have the power to question the correctness of the North Carolina courts' determination either as to whether Mr. Hearne left his job through voluntary resignation or whether Mr. Sherman's acting as the final agency decision maker constituted a violation of due process. Nor, if the power did exist, would principles of issue preclusion allow relitigation of either issue. The complaint shall be dismissed in an accompanying order.
II.
As to amending the complaint for the purpose of questioning, on due process grounds, Chief Justice Mitchell's participation in oral argument and conference (but then recusing himself from participating in voting), Mr. Hearne had the opportunity to raise any question of conflict in the petition for rehearing that he filed with the North Carolina Supreme Court and, thereafter, in a petition for a writ of certiorari to the United States Supreme Court. He admits he was aware of the recusal and Justice Mitchell's entry into private practice within nine days of the issuance of the opinion and, therefore, before the petition for rehearing was required to be filed. Under Rooker-Feldman "[t]he relevant inquiry is whether a party had a `reasonable opportunity to raise his federal claim in state proceedings.'" Brown Root., supra. at 201. This is not a matter which this Court may consider.
Nor is Mr. Hearne able to sue Mr. Mitchell either in his official capacity as a state actor or in his individual capacity. The Eleventh Amendment bars the former; judicial immunity the latter. See Stump v. Sparkman, 435 U.S. 349, 356-57; 98 S.Ct. 1099, 1104 (1972) (Judicial immunity); Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 100-01, 104 S.Ct. 900, 908 (1984) (Eleventh Amendment).
In the proposed amendment, Mr. Hearne wishes to name the law firm of Womble, Carlisle, Sandridge and Rice as a § 1983 defendant on the basis that, according to information and belief, it drafted the final agency opinion signed by Mr. Sherman and did so even though North Carolina General Statute 150B-35 prohibited "`a member or employee of the agency making a final decision' from communicating, directly or indirectly, in connection with any issue of fact or question of law with any person or party or his representative, except on notice and opportunity for all parties to participate". Mr. Hearne's amendment would be futile. First, it has been finally determined that he voluntarily resigned and was entitled to no pre-termination notice or hearing. As to the hearing that he did receive, it has been finally determined that Mr. Sherman, even though the final decision maker, was not impermissibly conflicted in making a credibility determination because the plaintiff's testimony and that of his wife were consistent with a finding of voluntary resignation and not inconsistent with Mr. Sherman's account or his finding. Mr. Hearne may not relitigate these questions in this court and without doing so, he is unable to establish that he suffered constitutional injury. Whether there was a violation of N.C.Gen.Stat. § 150B-35 is a question of North Carolina statutory construction, not one which rises to a potential federal constitutional violation. Without the federal claim, there is no basis for this court to entertain the state constitutional claims.
Since it would be futile to allow a further amendment of the complaint, the motion to amend will be denied in an accompanying order.
All other pending motions will be denied as moot.