Arden M. Conard v. Orinda D. Evans , 193 F. App'x 945 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUG 22, 2006
No. 06-11029 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-01204-CV-CC-1
ARDEN M. CONARD,
Plaintiff-Appellant,
versus
ORINDA D. EVANS,
DAVID E. NAHMIAS,
LORI M. BERANEK,
STEPHEN JOEL STONE,
U.S. MARSHAL SERVICE,
UNKNOWN PERSON OR PARTY,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 22, 2006)
Before DUBINA, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Arden Conard, proceeding pro se, appeals the dismissal of his complaint
alleging constitutional violations under 42 U.S.C. § 1983,1 claims of false arrest,
libel, and slander under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2679,
and a claim under the Racketeer Influenced and Corrupt Organizations Act
(“RICO”), 18 USC § 1961 et seq.
I. Background
Conard filed a civil complaint against: (1) District Court Judge Orinda
Evans, (2) United States Attorney David Nahmias, (3) Assistant United States
Attorney Lori Beranek, (4) Assistant United States Attorney Stephen Joel Stone,
(5) the United States Marshal Service, and (6) an Unknown Person or Party. The
allegations in the complaint stem from a prior legal action filed against Conard to
collect unpaid student loans. Conard’s complaint alleged that after Conard
defaulted on his loans, the United States filed a collection action against him on
March 21, 1990. Beranek and Stone represented the United States in this action,
1
At the outset, we note that although Conard indicated in his complaint that his civil
rights claim fell under 42 U.S.C. § 1983, section 1983 is reserved for claims made against state
actors. Patrick v. Floyd Medical Center, 201 F.3d 1313, 1315 (11th Cir. 2000) (citation
omitted). The defendants in the instant case are federal actors. Because Conard is a pro se
litigant, however, we will construe his complaint liberally so that his civil rights claim falls
under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388(1971), which is the appropriate vehicle for bringing a civil rights claim against federal actors.
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and the case was assigned to Judge Evans. The United States entered into a
consent agreement with Conard, but Conard ultimately failed to pay the consent
judgment, and the United States took steps to enforce the agreement.
Conard further alleged that, when he delivered a legal pleading to Judge
Evans’s chambers, either Judge Evans or an unknown person or party within her
office called the U.S. Marshal Service and made false statements against him. The
U.S. Marshal Service then approached Conard, took him into custody and
questioned him for approximately one hour.
Conard claimed that the statute of limitations on his student loan collection
action had expired prior to March 21, 1990. Conard further alleged that, by failing
to alert him of this expiration and by filing the claim and accepting the consent
agreement despite knowing of this expiration, Nahmias, Beranek, and Judge Evans
acted outside their legal authority, violated Conard’s civil rights, conspired to
violate his civil rights, and violated RICO, which prohibits use of the United States
mail to carry out illegal conduct. Conard’s complaint also alleged that he was
libeled, slandered, and falsely arrested when Judge Evans or an unknown person or
party within her office made false statements against him to the Marshal Service.
Based on these allegations, Conard sought monetary damages, injunctive relief
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terminating the collection action and declaratory relief.2
Nahmias, Beranek, and Judge Evans subsequently filed a motion to dismiss,3
arguing that the statute of limitations applying to student loan collection actions
had been eliminated and that the law eliminating the statute of limitations had been
applied retroactively in case law. They further argued that the claims brought
against Nahmias and Beranek were barred by prosecutorial immunity and that the
claims against Judge Evans were barred by judicial immunity. Finally, they argued
that the libel and slander claim should be dismissed on the grounds that Conard
failed to specify who made the allegedly slanderous comments and in what manner
they were slanderous, the United States is the only proper party under the FTCA, a
suit for false arrest, libel, and slander is not actionable under the FTCA, and Judge
Evans is protected by judicial immunity.
The district court granted the motion to dismiss, finding that the statute of
limitations for student loan collection actions had been eliminated and that the
elimination applied retroactively. The district court found that, accordingly, Judge
Evans had jurisdiction over the student loan collection action and was entitled to
2
Judge Evans recused herself, and the case was assigned to U.S. District Court Judge
Clarence Cooper.
3
Stone was not party to this motion, and Evans, Nahmias and Beranek informed the court
that he is now deceased. The Marshal Service was also not party to this motion, and Nahmias,
Beranek, and Judge Evans noted that the Marshal Service was not properly served with the
complaint and did not return waiver of service forms.
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absolute judicial immunity in the current case and that Nahmias and Beranek were
protected by absolute prosecutorial immunity. The district court further found that
the count of the complaint alleging false arrest, libel and slander, was not
actionable under the FTCA.
II. Discussion
On appeal, Conard argues that his allegations of constitutional violations
against United States Attorney David Nahmias, Assistant United States Attorney
Lori Beranek, and Judge Orinda Evans should not have been dismissed; these
defendants were not protected by absolute immunity because they lacked
jurisdiction over the student loan collection action as the statute of limitations on
that action had run. Conard also argues that his allegations of false arrest, libel,
and slander against Judge Evans should not have been dismissed because libel and
slander causes of action can be asserted in federal court. Conard further argues
that his allegations have been adopted by Nahmias and Beranek because they failed
to timely respond to a motion to quash that Conard filed in the collection action.4
We review the district court’s grant of a motion to dismiss de novo,
accepting all allegations in the complaint as true and construing facts in a light
4
Because Conard failed to offer any argument relating to his RICO claim on appeal, he
has abandoned that claim. Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330
(11th Cir. 2004).
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most favorable to the plaintiff. Harper v. Thomas, 988 F.2d 101, 103 (11th Cir.
1993). A complaint should not be dismissed pursuant to Fed. R. Civ. P 12(b)(6)
unless it appears beyond a doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief. Marsh v. Butler County,
Ala., 268 F.3d 1014, 1022-23 (11th Cir. 2001). We liberally construe complaints
filed by pro se plaintiffs. GJR Investments, Inc. V. County of Escambia, Fla., 132
F3d. 1359, 1369 (11th Cir. 1998). We also review a finding of judicial immunity
de novo. Smith v. Shook, 237 F.3d 1322, 1325 (11th Cir. 2001).
Absolute prosecutorial immunity applies to all actions a prosecutor takes
while performing his function as advocate for the United States. Rowe v. City of
Fort Lauderdale, 279 F.3d 1271, 1279 (11th Cir. 2002). Likewise, the scope of a
judge’s jurisdiction must be construed broadly when issues of immunity are
implicated, and “[a] judge will not be deprived of immunity because the action he
took was in error, was done maliciously, or was in excess of his authority; rather,
he will be subject to liability only when he has acted in the ‘clear absence of all
jurisdiction.’ ” Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (citation
omitted). Thus, a judge is immune from suit even when her exercise of authority is
flawed by “grave procedural errors.” Id. at 359.
In initiating the student loan collection action, Nahmias and Beranek were
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fulfilling their functions as advocates for the United States. Likewise, Judge Evans
had jurisdiction over the student loan collection action pursuant to federal law.
Even had Judge Evans’s exercise of jurisdiction been marred by a failure to
dismiss on statute of limitations grounds, as Conard claims, that would not deprive
her of her immunity, as even “a grave procedural error” does not destroy judicial
immunity. Id. at 359. Accordingly, the district court did not err in finding that all
three defendants are immune from suit.
Conard also brought a claim for false arrest, libel, and slander under the
FTCA. The FTCA does not extend, however, to claims for false arrest, libel, and
slander, and the United States remains immune from suits raising such claims. 28
U.S.C. § 2680(h); United States v. Neustadt, 366 U.S. 696, 701-2 (1961).
Accordingly, the district court properly dismissed Conard’s claims for false arrest,
libel and slander.
Finally, we note that Conard’s allegation that Nahmias and Beranek failed to
respond to Conard’s motion to quash does not affect the outcome of this appeal.
We already accept all of the allegations in his complaint as true. Nevertheless,
Conard can prove no set of facts that would entitle him to relief.
Upon careful review of the record and upon consideration of the parties’
briefs, we find no reversible error. For the above reasons, we AFFIRM.
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