United States District Court, S.D. Georgia, Statesboro Division
Christopher L. Ray United States Magistrate Judge
pro se and in forma pauperis, Pamela Swain
seeks review of the state Superior Court's denial of her
request for a restraining/protective order against
beleaguered movie producer Harvey Weinstein. Doc. 1 at 3-4
(explaining that, among other things, Weinstein has
“stalk[ed] and attack[ed] me personally” since
November 2013 and has the Sheriff's office “under
his ‘control'”). She seeks a “3 year
protective order against Harvey Weinstein” and 7
million dollars in compensation, apparently jointly and
severally against all defendants. Id. at 5. In
cases, like this one, where the plaintiff is proceeding
in forma pauperis, see doc. 3, the Court is
required to screen each case, and must dismiss it at any time
if the Court determines either that the allegation of poverty
is untrue or that the action or appeal is frivolous or
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2).
extent that her Complaint seeks review of the state
court's denial of relief, it must be dismissed, as there
is no basis for federal jurisdiction over it. Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994);
Bender v. Williamsport Area Sch. Dist., 475 U.S.
534, 541 (1986). Relevantly here, this Court is not empowered
to sit as an appellate court to review the decisions of state
courts. See Rooker v. Fidelity Trust Co., 263 U.S.
413 (1923); District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462 (1983); see also Verizon Md.
Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 644,
n. 3 (2002) (“… 28 U.S.C. § 1331 is a grant
of original jurisdiction, and does not authorize district
courts to exercise appellate jurisdiction over state-court
judgments”). The only federal court that can review
judgments entered by a state court in civil litigation is the
Supreme Court of the United States. See 28 U.S.C.
§ 1257. Lower federal courts (almost invariably) lack
subject matter jurisdiction when the state court's
judgment is the source of the injury of which plaintiffs
complain in federal court. Exxon Mobil Corp. v. Saudi
Basic Industries Corp., 544 U.S. 280, 291-92 (2005). Put
simply, this Court is not the place for plaintiff to argue
that the state court wrongly (or even corruptly) denied her
request for a protective order. She may (subject to the
applicable procedural rules) appeal to the appropriate state
appellate court, if she seeks review. From there, she may
continue to seek review from the Supreme Court of the United
States. Regardless, she cannot come here.
claims against Tattnall County, or other unspecified county
officials, are also dead on arrival. As the Eleventh Circuit
has explained, a county is liable under § 1983
“only when the execution of a county policy or custom
causes a constitutional violation.” Presnell v.
Paulding County, Ga., 454 Fed.Appx. 763, 768-69 (11th
Cir. 2011) (citing Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 694 (1978)). She does not allege
any county policy or custom violated her rights. At most, she
alleges that an individual (Weinstein) has coopted county
officials. Finally, to the extent that she asserts any claim
against the county under state law, it is immune from suit
under the Georgia Constitution. See Id. at 769
(citing Gilbert v. Richardson, 264 Ga. 744, 452
S.E.2d 476, 479 (1994)) (“The sovereign immunity
provided in the Georgia Constitution to the state or any of
its departments or agencies also applies to Georgia's
counties.”). Accordingly, Swain has stated no claim
against Tattnall County.
like Judge Stewart, are absolutely immune from civil
liability for acts taken pursuant to their judicial
authority,  see, e.g., Forrester v. White,
484 U.S. 219, 227-29 (1988), even when the judicial acts are
done maliciously or corruptly. Stump v.
Sparkman, 435 U.S. 349, 356 (1978) (recognizing as a
“well established” principle of law “of the
highest importance” that “judges of courts of
superior or general jurisdiction are not liable to civil
actions for their judicial acts, even when such acts are in
excess of their jurisdiction, and are alleged to have been
done maliciously or corruptly.”); Harris v.
Deveaux, 780 F.2d 911, 914 (11th Cir. 1986). To the
extent that Swain seeks to sue Judge Stewart in his official
capacity, her claim also founders on the Eleventh Amendment.
See Simmons v. Conger, 86 F.3d 1080, 1084 (11th Cir.
1996) (district court erred in awarding damages against state
court judge “in his official capacity, given that such
relief is barred by the Eleventh Amendment”). The
question of liability in his individual capacity,
however, is more complicated.
individual liability depends upon the application of a
two-part test. Simmons, 86 F.3d at 1084. The first
part of the test requires determination of “whether the
judge dealt with the plaintiff in a judicial capacity.”
Id. If not, “then there is no immunity.”
Id. at 1085. “If the judge was dealing with
the plaintiff in his judicial capacity, however, the second
part of the test is whether the judge acted in the clear
absence of all jurisdiction.” Id. (quotes and
cite omitted). Only judicial acts “in the clear absence
of jurisdiction” can support a judge's individual
liability. Id. The distinction between judicial acts
“lacking jurisdiction, ” for which a judge might
be individually liable, and those merely exceeding his
jurisdiction, which will not, is often subtle.
is no question that Superior Court judges, like Judge
Stewart, are judges of general jurisdiction. See
O.C.G.A. § 15-6-8. Swain's (charitably) terse
allegation that he “told the Tattnall County Clerk of
Superios [sic] Court to ‘lose' my motion to
appeal” is insufficient to even imply an act “in
the clear absence of all jurisdiction.” It is not clear
what her “motion to appeal” comprised and, thus,
it is not clear whether the alleged interference could
support Swain's claim. Applications for discretionary
review, which might be described as “motions, ”
are filed with the clerk of the respective appellate courts,
not with the superior court's clerk. See
O.C.G.A. § 5-6-35. If Swain were attempting to
improperly file a document, a judge's recognition of that
fact, mistaken or not, would not seem to be “in the
clear absence of all jurisdiction.” Notices of appeal
are filed with the trial court, but they are not motions.
See O.C.G.A. § 5-6-37. The Clerk's duty in
filing notices of appeal is purely ministerial. See,
e.g., Hood v. State, 282 Ga. 462, 464, 651 S.E.2d 88, 90
(2007). As such, it is possible that interference with that
function might be an act “in the clear absence
of all jurisdiction.” In the absence of more detailed
allegations, however, the claim is not adequately pled.
allegations against Sheriff Sapp also fail to state a §
1983 claim. The only allegations she makes about Sheriff Sapp
is that he “refused” to take action when she
reported Weinstein's “stalking, ” and that he
“lied about all[ ] my police reports” in an
otherwise unspecified context. See doc. 1 at 4.
Neither of those allegations support a viable § 1983
claim. First, it is not clear how “lying, ” even
in a court proceeding, could amount to the violation of a
constitutional right necessary for such a
claim. See, e.g., Melton v. Abston, 841
F.3d 1207, 1220 (11th Cir. 2016) (“violation of a
constitutional right” is an essential element of a
§ 1983 claim).
extent that Swain claims that the Sheriff declined to
initiate a criminal investigation or prosecution, this claim
fails. As the Supreme Court has made clear, “in
American jurisprudence at least, a private citizen lacks a
judicially cognizable interest in the prosecution or
nonprosecution of another [private citizen].” Linda
R.S. v. Richard D., 410 U.S. 614, 619 (1973). Without
such an interest, Swain lacks standing - and this Court lacks
jurisdiction - over her claim. See id.; see
also, e.g., Inman v. State Bar of Georgia, 2014 WL
3022553 at * 3 (M.D. Ga. July 3, 2014) (dismissing claims
against a sheriff based on allegations of failure to
criminally pursue a private individual and collecting cases).
Accordingly, the claims against Sheriff Sapp fail.
Swain has failed to state any § 1983 claim against
Harvey Weinstein. Generally, private parties do not act under
color of state law; precluding § 1983 liability.
Nevertheless, “[p]rivate persons, jointly engaged with
state officials in the challenged action, are acting . . .
‘under color' of law for purposes of § 1983
actions.” Dennis v. Sparks, 449 U.S. 24, 27-8
(1980). Such joint actors remain liable notwithstanding any
immunity enjoyed by the state officials. Id. at 28
([T]he private parties conspiring with the judge were acting
under color of state law; and it is of no consequence in this
respect that the judge himself is immune from damages
allegations wave in the direction of a joint-actor theory of
liability against Weinstein. She alleges that Weinstein
“stated he had the county sheriff under his
‘control.'” Doc. 1 at 4. Despite that
allegation, however, she does not allege any express
coordinated action, she merely alleges that Weinstein claimed
influence and then various officials refused to act against
him. See generally Id. But indication and
insinuation are not sufficient to state a claim. See Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556-7 (2007)
(explaining, in the context of an alleged anti-trust
conspiracy, “an allegation of parallel conduct and a
bare assertion of conspiracy will not suffice” to state
a claim). Swain does not even allege conspiracy.
Even taking her allegations as true (i.e., that
Weinstein claimed, in a conversation with her, that he
exercised “control” over state officials, and
then those officials followed a course of action that was
consistent with his interests), Swain does not
plausibly allege that these individuals conspired. See
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)
(“Where a complaint pleads facts that are merely
consistent with a defendant's liability, it stops short
of the line between possibility and plausibility of
entitlement to relief.” (quotes and cite omitted)).
Thus, Swain's § 1983 claim against Weinstein should
summary, Swain has failed to state a § 1983 claim
against any defendant. Because plaintiff has not articulated
any cognizable federal claim over which this Court may assert
jurisdiction, any implicit state-law tort claims can also be
dismissed. Bender, 475 U.S. at 541;
Kokkonen, 511 U.S. at 377. Her Complaint, therefore,
might be dismissed in its entirety.
the Complaint's inadequacy, to say nothing of the
Court's scepticism of the facts it asserts, as a pro
se plaintiff, Swain should be afforded one
opportunity to cure the defects discussed above. See,
e.g., Langlois v. Traveler's Ins. Co., 401 Fed.Appx.
425, 426-27 (11th Cir. 2010) (even though IFP's
litigant's pro se complaint failed to state
basis for federal jurisdiction and failed to state a claim,
and she failed to seek leave to amend her complaint,
nevertheless she should have been afforded an opportunity to
amend deficiencies prior to dismissal, where no undue time
had elapsed, and no undue prejudice could be shown);
Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir.
2007) (pro se litigants must generally be given an
opportunity to amend their complaints). Swain is, therefore,
DIRECTED to file an Amended Complaint within 14 days of the
date of this Order. Any such amendment must plead sufficient
facts to support at least one claim over which this Court has
subject matter jurisdiction. Failure to timely respond will
be construed as plaintiff's voluntary dismissal of her