Richardson v. District of Columbia ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
T. CARLTON RICHARDSON,
Plaintiff,
v. Civil Action 09-01856 (HHK)
DISTRICT OF COLUMBIA, et al.,
Defendants.
MEMORANDUM OPINION
T. Carlton Richardson’s license to practice law has been suspended as a result of
disciplinary proceedings brought against him in Florida and in the District of Columbia. See In
re Richardson, 692 A.2d 427 (D.C. 1997). He brings this action against entities and individuals
involved in the District of Columbia proceedings, including the District of Columbia Court of
Appeals—as an institution and its judges, individually—the District of Columbia Board on
Professional Responsibility, the Office of Bar Counsel, the District of Columbia Bar, and several
individuals presently or formerly associated with these entities (collectively “defendants”).
Proceeding pro se, Richardson, in an extraordinarily prolix complaint, alleges numerous causes
of action, including “various common law torts (including, but not limited to—wrongful
conviction; civil conspiracy; fraud, deceit, and misrepresentation; abuse and misuse of official
authority and fraud upon the courts)” as well as “U.S. Constitutional and federal statutory torts[,]
including but not limited to[,] violations of the plaintiff’s rights to due process, fair trial
procedures and other civil rights secured to the plaintiff under the 4th, 5th, 6th, and 8th
Amendments, as well as the Civil Rights Act, [42] U.S.C. §1983.” Compl. at 3.
Before the Court are defendants’ motions to dismiss [## 25, 26]. Upon consideration of
the motions, the oppositions thereto, and the record of this case, the Court concludes that the
motions must be granted.
I. BACKGROUND
Richardson was temporarily suspended from practicing law in Florida in 1990 for
charging his clients a “clearly excessive fee.” See Fla. Bar v. Richardson, 574 So. 2d 60 (Fla.
1990). Richardson filed his first of many cases in this Court when he “challenge[d] the
procedures and results of the Florida disciplinary proceedings on federal antitrust and
constitutional grounds.” Richardson v. Fla. Bar, 1990 WL 116727, at *2 (D.D.C. May 15,
1990). Finding that the case was “a poorly-veiled attempt to obtain collateral, pseudo-appellate
review of the Supreme Court of Florida’s . . . decision,” Id. at *2, this Court dismissed
Richardson’s complaint for lack of jurisdiction.
After Richardson’s suspension in Florida, the District of Columbia Board on Professional
Responsibility (“the Board”) recommended that Richardson face reciprocal discipline in the
District of Columbia, and the D.C. Court of Appeals accordingly imposed a ninety-one day
suspension. See In re Richardson, 602 A.2d 179, 180 (D.C. 1992). While another complaint
against Richardson for charging excessive fees was pending before the Florida Bar, see Fla. Bar
v. Richardson, 604 So. 2d 489 (Fla. 1992), Richardson filed a petition for resignation from that
bar, which the Supreme Court of Florida granted in 1992.
On June 27, 1995, the D.C. Court of Appeals temporarily suspended Richardson from the
practice of law in the District to enable the Board to consider whether it would impose reciprocal
discipline against him in the District based on his resignation from the Florida Bar while
2
disciplinary charges were pending there. In Richardson v. D.C. Court of Appeals, Civ. No. 95-
1272, slip op. (D.D.C. 1996) (“Richardson I”), Richardson challenged the temporary suspension
in this Court, “alleging that [the] suspension, and the D.C. Bar rule that permits it . . .
unconstitutionally deprive[d] him, without due process, of his liberty interest in practicing law.”
Richardson v. D.C. Court of Appeals, 83 F.3d 1514, 1514 (D.C. Cir. 1996). This Court
dismissed Richardson’s suspension claim for lack of jurisdiction based on the Rooker-Feldman
doctrine and abstained from hearing his claim regarding the unconstitutionality of the D.C. Bar
rule under Younger v. Harris, 401 U.S. 37 (1971). See id. Affirming this Court’s decision, the
D.C. Circuit held that this Court lacked jurisdiction of both of Richardson’s claims because they
fell “squarely within the Rooker-Feldman doctrine, under which federal district courts lack
jurisdiction to review judicial decisions by state and District of Columbia courts.” Richardson v.
D.C. Court of Appeals, 83 F.3d at 1514.1
The D.C. Court of Appeals temporarily suspended Richardson from the District of
Columbia Bar again on March 12, 1996. See Richardson v. D.C. Court of Appeals, 962 F. Supp.
1, 1 (D.D.C. 1997) (“Richardson II”). In response, Richardson filed another action in this Court,
this time challenging the constitutionality of the second interim suspension order that the D.C.
Court of Appeals imposed in accordance with D.C. Bar Rule XI § 11(d). Id. Richardson argued
that the D.C. Court of Appeals did not provide him a hearing before temporarily suspending him,
thereby violating his Fourteenth Amendment right to due process. This Court dismissed the
complaint, noting that Richardson had not “distinguished this case from the suit he [previously]
brought” challenging the first suspension, which was dismissed by this Court on jurisdictional
1
The D.C. Circuit did not reach the issue of Younger abstention.
3
grounds and affirmed by the D.C. Circuit. Id. Again, Richardson appealed and the D.C. Circuit
summarily affirmed. See Richardson v. D.C. Court of Appeals, 1997 WL 811754, at *1 (D.C.
Cir. Dec. 9, 1997) (stating that because Richardson’s “general constitutional challenge . . . is
inextricably intertwined with [previous D.C. Court of Appeals] decisions, the district court
correctly found jurisdiction lacking”).
During Richardson’s second interim suspension, the D.C. Office of Bar Counsel began
investigating allegations that Richardson had continued to practice law despite the interim
suspension orders. The Bar Counsel had obtained a copy of a check that Richardson had written
for a Continuing Legal Education (“CLE”) class and it was used in contempt proceedings
brought against him. In response, Richardson again filed suit in this Court, this time against the
D.C. Bar, two employees of the Office of Bar Counsel, and the Clerk of the D.C. Court of
Appeals. Richardson alleged that conduct related to this investigation, specifically the D.C.
Bar’s provision of “a copy of a personal check to the Office of Bar Counsel,” which revealed
information that was used to obtain a subpoena for Richardson’s bank records, constituted an
invasion of his privacy and a violation of his constitutional rights under the Fourteenth
Amendment. See Compl. ¶¶ 1-10, Richardson v. D.C. Bar, No. 96-2286 (D.D.C. Jan. 13, 1997).
This case was dismissed for failure to state a claim and the Circuit Court again summarily
affirmed the dismissal. See Richardson v. D.C. Bar, No. 96-2286, slip op. (D.D.C. Jan. 13,
1997), aff’d, Richardson v. D.C. Bar Ass’n, 1997 WL 404321, at *1 (D.C. Cir. June 30, 1997).
On April 17, 1997, the D.C. Court of Appeals imposed final discipline against
Richardson, suspending him from practicing law in the District of Columbia for three years with
reinstatement conditioned on proof of fitness. In re Richardson, 692 A.2d at 428, cert. denied,
522 U.S. 1118 (1998).
4
Undeterred, in 2006, Richardson filed another case in this Court related to the bar
disciplinary proceedings that had been brought against him. Richardson alleged that his “civil
rights were violated when he was suspended from the District of Columbia Bar, and that these
violations have continued throughout the proceedings in his subsequently filed civil litigation.”2
Richardson v. District of Columbia, 2007 WL 2007591, at *2 (D.D.C. July 11, 2007)
(“Richardson V”), aff’d, Richardson v. District of Columbia, 2008 WL 2396186, at *1 (D.C. Cir.
Feb. 13, 2008). Richardson’s civil rights claims were dismissed on Rooker-Feldman grounds.
The Court observed that “the issue of whether the district court has jurisdiction to review the
state court decision has previously been litigated four times.”3 Id.Again, undeterred, Richardson filed the instant case asserting, once more, claims arising
from bar disciplinary proceedings against him that resulted in his suspension.
2
In this suit, Richardson also attempted to “seek[] reinstatement of his prior habeas
petition,” based on “newly discovered evidence” that would justify revisiting this Court’s 2001
dismissal of his habeas claims. Richardson v. District of Columbia, 2007 WL 2007591, at *1-2.
The Court dismissed this claim and Richardson does not re-allege it in this case.
3
The Court summarized the history of the suits brought by Richardson challenging
his suspension in this Court:
Plaintiff’s previous challenges in this District Court to the constitutionality of his
suspension were dismissed for lack of jurisdiction under the Rooker-Feldman
doctrine, which prohibits federal district courts from reviewing judicial decisions
of state and local courts, as well as all claims intertwined with that judicial action.
See Richardson v. D.C. Court of Appeals, No. 95-1272, slip op. (D.D.C. 1996)
(“Richardson I”) (Hogan, J.) (discussing Rooker v. Fidelity Trust Co., 263 U.S.
413 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983)), aff’d,
Richardson v. D.C. Court of Appeals, 83 F.3d 1513 (D.C. Cir.1996); Richardson
v. D.C. Court of Appeals, 962 F. Supp. 1 (D.D.C 1997) (Sporkin, J.)
(“Richardson II”); Richardson v. D.C. Court of Appeals, No. 04-0101, slip op.
(D.D.C. Mar. 31, 2004) (Huvelle, J.) (“Richardson III”); Richardson v. Dist. of
Columbia, No. 05-0210, slip op. (D.D.C. Mar. 29, 2005) (Huvelle, J.)
(“Richardson IV”).
Richardson v. District of Columbia, 2007 WL 2007591, at *1 (D.D.C. July 11, 2007)
(“Richardson V”), aff’d, Richardson v. District of Columbia, 2008 WL 2396186, at *1 (D.C. Cir.
Feb. 13, 2008).
5
II. ANALYSIS
Defendants move to dismiss Richardson’s complaint on multiple grounds. First, pursuant
to Rule (12)(b)(1) of the Federal Rules of Civil Procedure, defendants argue that this Court lacks
subject matter jurisdiction because of the Rooker-Feldman doctrine. Defendants assert that the
doctrine operates to deprive this Court of subject matter jurisdiction because all of Richardson’s
claims are premised on, or are inextricably intertwined with, proceedings involving claims
resolved by the D.C. Court of Appeals or that court’s decision affirming Richardson’s criminal
contempt conviction. Second, defendants assert that Richardson’s claims should be dismissed
pursuant to Federal Rule of Civil Procedure 12(b)(6) on res judicata grounds. Finally,
defendants argue that each defendant enjoys absolute immunity from Richardson’s claims. Each
argument will be addressed in turn.
A. Rooker-Feldman
Under the Rooker-Feldman doctrine, this Court is not able to exercise jurisdiction over
actions that essentially seek “appellate review of [a] state judgment . . ., 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 (1994), or over claims that are “inextricably intertwined” with
the state court judgment, D.C. Court of Appeals v. Feldman, 460 U.S. 462, 486-88 (1983).
Defendants argue that because Richardson’s claims directly attack, or are “inextricably
intertwined” with, decisions of the D.C. Court of Appeals, his claims fall squarely within the
Rooker-Feldman doctrine.4 Defendants are correct. In a nutshell, Richardson essentially asks
4
According to Richardson, “[a]ll [of his] claims arise out of the “wrongful
revocation of [his] law license.” Compl. at ¶ 10. Richardson’s claims that challenge the D.C.
Court of Appeals decision to suspend his license, or are “inextricably intertwined” with that
6
this Court to review decisions of the D.C. Court of Appeals, which the Court “may not do.” See
Feldman, 460 U.S. 462, 483 n.16 (1983).
Moreover, the application of the Rooker-Feldman doctrine has been previously litigated
and decided against Richardson with respect to the same claims, or those that are inextricably
intertwined with such claims, as he raises here. Richardson, therefore, is precluded from
relitigating the doctrines’s application to this case. See GAF Corp. v. United States, 818 F.2d
901, 912 (D.C. Cir. 1987) (stating that a judgment ordering dismissal has “preclusive effect as to
matters actually adjudicated; it will . . . preclude relitigation of the precise issue of jurisdiction
that led to the initial dismissal.”) (emphasis added).
Richardson argues that the Supreme Court’s decision in Exxon Mobil Corp. v. Saudi
Basic Industries Corp., 544 U.S. 280 (2005), alters the legal landscape to his advantage insofar
as the proper application of the Rooker-Feldman doctrine is concerned. According to
Richardson, Exxon Mobil “add[s] a third plank to [the Rooker-Feldman] analysis.” Pl.’s
Combined Resp. to D.C. Bar Regulators’ [1] Reply to Opp’n. To Pl.’s Mots. For Leave to Take
decision, include his claims that: (1) his suspension proceedings were procedurally inadequate
under the D.C. Code, the Due Process Clause of the Fifth Amendment, and the Equal Protection
Clause; (2) the D.C. Court of Appeals suspended him “without notice and an evidentiary
hearing” in violation of the Due Process Clause and the D.C. Code; (3) his three-year suspension
period violated his Fifth Amendment due process and Eighth Amendment rights; (4) Bar
prosecutors’ “concealing the existence of and failing to disclose [ ] records” was a “violation of
due process,” rendering the D.C. Court of Appeals’ “reciprocal disciplinary orders . . . void”; and
(5) his license suspension violated the Equal Protection Clause.
Richardson’s claim that Bar Counsel participated in an “illegal search and seizure” of his
bank records was litigated in the D.C. Courts in the context of Richardson’s criminal contempt
proceedings. See In re Richardson, 759 A. 2d 649, 654 (D.C. 2000). His additional claim that
the criminal contempt conviction violated his due process rights because the hearing was
conducted by one judge instead of three is also barred by Rooker-Feldman as it is inextricably
intertwined with the D.C. Court of Appeals’ decision upholding his conviction.
7
Disc. and [2] Cross-Mot. to Dismiss (“Pl.’s Opp’n”) at 2 n.3. Richardson relies heavily on the
following language in Exxon Mobil in support of his argument that the Rooker-Feldman doctrine
does not bar this Court from considering his claims. The Exxon Mobil Court states that:
[i]n parallel litigation, a federal court may be bound to recognize the claim- and
issue-preclusive effects of a state-court judgment, but federal jurisdiction over an action
does not terminate automatically on the entry of judgment in the state court.
Nor does [28 U.S.C.] § 1257 stop a district court from exercising subject-matter
jurisdiction simply because a party attempts to litigate in federal court a matter previously
litigated in state court. If a federal plaintiff “present[s] some independent claim, albeit
one that denies a legal conclusion that a state court has reached in a case to which he was
a party . . . , then there is jurisdiction and state law determines whether the defendant
prevails under principles of preclusion.”
Exxon Mobil, 544 U.S. at 293 (internal citations omitted) (emphasis added). Richardson’s
reliance on Exxon Mobil is misplaced.
In Exxon Mobil, Saudi Basic Industries Corporation (SABIC) sued Exxon Mobil in a
Delaware state court seeking a declaratory judgment that it did not overcharge Exxon Mobil for
royalties. Exxon Mobil countersued SABIC in federal court in New Jersey two weeks later,
before any judgment was entered in state court, in an attempt to “protect itself in the event it lost
in state court on grounds (such as the state statute of limitations) that might not preclude relief in
the federal venue.” Id. at 289, 293-94. Exxon Mobil answered SABIC’s state court complaint
by “asserting as counterclaims the same claims [it] had made in the federal suit in New Jersey.”
Id. Before the state court trial, SABIC moved to dismiss the federal suit on, inter alia, immunity
grounds under the Foreign Sovereign Immunities Act, which the District Court denied. Id.SABIC then took an interlocutory appeal to the Third Circuit. Id. at 289. In the interim, the state
court found for Exxon Mobil, and SABIC appealed to the Delaware Supreme Court. Id. After
the state court verdict, the Third Circuit, sua sponte, held that federal jurisdiction terminated
8
when the Delaware state court entered judgment. Id. The Supreme Court reversed this decision,
reasoning that, “[w]hen there is parallel state and federal litigation, Rooker-Feldman is not
triggered simply by the entry of judgment in state court.” Id. at 292. Exxon Mobil reaffirmed,
however, that the Rooker-Feldman doctrine is appropriately, though narrowly, applied to “cases
brought by state-court losers complaining of injuries caused by state-court judgments rendered
before the district court proceedings commenced and inviting district court review and rejection
of those judgments.” Exxon Mobil, 544 U.S. at 284.
It is evident that Exxon Mobil provides no support for Richardson’s position that the
Rooker-Felman doctrine does not bar this Court from exercising jurisdiction over his claims.
Here there is no parallel litigation with any action in a D.C. Court. And, of more significance,
this case falls precisely within the category of cases that Exxon Mobil affirms are precluded from
review by a federal court—“state-court losers complaining of injuries caused by state-court
judgments rendered before the district court proceedings commenced and inviting district court
review and rejection of those judgments.” Id. at 1521-22. Moreover, while Exxon Mobil affirms
that a federal court may exercise jurisdiction over claims independent from claims that were the
subject of a judgment in a state or D.C. court, such affirmation does not help Richardson whose
claims here were the subject of decisions by the D.C. Court of Appeals, or they are so
“inextricably intertwined” with those decisions that this Court cannot review them.
Richardson’s only claims that are arguably distinguishable from his challenge of
judgments of the D.C. Court of Appeals are those that relate to the alleged unconstitutionality of
certain D.C. Bar rules. This Court does not have jurisdiction to hear these claims.
9
In Feldman, the Supreme Court recognized that, although a federal district court may
have subject matter jurisdiction over a general challenge to the constitutionality of a state bar
rule, a District Court may not review the state court’s decision where the constitutional claims
are “inextricably intertwined with the state court’s denial in a judicial proceeding of a particular
plaintiff’s application for admission to the state bar.” Feldman, 460 U.S. at 483 n.16. If the
Court were to do so, it would “in essence be[ ] called upon to review the state court decision.”
Id. As the D.C. Circuit held in one of Richardson’s previous cases, “Richardson’s attacks on [the
D.C. Bar rules’] constitutionality . . . are not merely intertwined with his attack on the decision to
suspend him but are one and the same . . . . His attack on the rule cannot be contemplated without
his attack on his suspension.” Richardson v. D.C. Court of Appeals, 83 F.3d at 1515-16. Exxon
Mobil reiterates that a plaintiff may separately maintain those claims challenging bar rules as
unconstitutional only where “those claims ‘do not require review of a judicial decision in a
particular case.’” Exxon Mobil, 544 U.S. at 286-87 (quoting Feldman, 460 U.S. at 487).
B. Res Judicata
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court may dismiss a
complaint, or any portion of it, for failure to state a claim upon which relief may be granted. Fed.
R. Civ. P. 12(b)(6). A court considering a motion to dismiss pursuant to Rule 12(b)(6) must
assume that all factual allegations in the complaint are true, even if they are doubtful. Twombly,
550 U.S. 544, 555 (2007). Richardson’s complaint fails to state a claim because all of
Richardson’s claims are barred either under the doctrine of claim preclusion or issue preclusion,
collectively referred to as res judicata. See Taylor v. Sturgell, 128 S. Ct. 2161, 2171 (2008).
Under the doctrine of claim preclusion, a final judgment “forecloses ‘successive litigation of the
10
very same claim, whether or not relitigation of the claim raises the same issues as the earlier
suit.’” Id. (quoting New Hampshire v. Maine, 532 U.S. 742, 748 (2001)). Issue preclusion bars
“successive litigation of an issue of fact or law actually litigated and resolved in a valid court
determination essential to the prior judgment.” Id.
1. Claim Preclusion
Under claim preclusion, “a subsequent lawsuit will be barred if there has been prior
litigation (1) involving the same claims or cause of action, (2) between the same parties or their
privies, and (3) there has been a final, valid judgment on the merits, (4) by a court of competent
jurisdiction.” Smalls v. United States, 471 F.3d 186, 192 (D.C. Cir. 2006) (citing Blonder-
Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 323-24 (1971)). “[A] final judgment on
the merits of an action precludes the parties or their privies from relitigating issues that were or
could have been raised in that action.” Allen v. McCurry, 449 U.S. 90, 94 (1980) (emphasis
added). In this action, Richardson reasserts several claims against the same parties that have
been previously decided on the merits, and some claims that are newly raised but are
transactionally related to the previous claims and thus could have been brought in Richardson’s
earlier suits.
i. Fourth Amendment Claims
Richardson alleges that D.C. Bar Counsel and defendant Shiskevish, the director of the
D.C. Bar’s CLE office, violated his Fourth Amendment rights by participating in “[a]n illegal
search and seizure” in which Bar Counsel “subpoenaed Richardson’s bank records” based on
account information that appeared on a check written by Richardson and provided to Bar Counsel
by Shiskevish. Compl. at ¶¶ 68-70. Richardson grounds his alleged Fourth Amendment
11
violations on (1) “the sharing of information between the CLE[ ] office of the D.C. Bar and [B]ar
prosecutors [ ] without Richardson’s consent;” (2) the subpoenaing of his bank accounts based on
information revealed by the check he had written; and (3) a “violat[ion of Richardson’s]
investigatory due process rights” resulting from the issuance of the subpoenas, “under D.C. [Bar
Rule]5 XI § 6(a)(2), which prohibits discovery until after an accused attorney has responded.”6
Compl. ¶ 73. All of Richardson’s Fourth Amendment claims are without merit, and have been
decided by prior court decisions.
As for Richardson’s claim that the Bar Counsel violated his Fourth Amendment rights by
obtaining a copy of his check from Shiskevish, the D.C. Circuit held that because Richardson
“neither owned nor possessed the check used to institute the investigation or the bank records
which were subpoenaed” his “privacy rights under either the Fourth or Fifth Amendments” were
not implicated. Richardson v. D.C. Bar Ass’n, 1997 WL 404321, at *1. Similarly, as to
Richardson’s argument that the issuance of a subpoena of his bank records by an Assistant Bar
Counsel based on information found on the check violated Richardson’s Fourth Amendment
rights, the D.C. Court of Appeals held that Richardson’s argument was without merit. See In re
Richardson, 759 A.2d at 654. The Court reasoned that a “depositor has no expectation of privacy
and thus no ‘protectable Fourth Amendment interest’ in copies of checks and deposit slips
retained by his bank.” Id. (citing United States v. Payner, 447 U.S. 727, 732 (1980); United
States v. Miller, 425 U.S. 435, 437 (1976)).
5
Richardson cites “D.C. Code XI § 6(a)(2),” but the Court assumes Richardson
intends to reference D.C. Bar Rule XI § 6(a)(2), which states that “no disposition shall be
recommended or undertaken by Bar Counsel until the accused attorney shall have been afforded
an opportunity to respond to the allegations.” D.C. Bar Rule XI § 6(a)(2).
6
Richardson groups this claim under a Fourth Amendment heading, so the Court
addresses it here.
12
Finally, as to Richardson’s argument that the issuance of the subpoenas was undertaken
in contravention of D.C. Bar Rule XI § 6(a)(2), the D.C. Court of Appeals specifically noted in
2000 that Bar Counsel “followed the procedure for obtaining records by subpoena outlined in Bar
Rule XI, § 18 (2000).” Id. at n.4.7
Because this Court has determined, and the D.C. Circuit has affirmed, that Richardson
had no Fourth Amendment interest at stake related to the check or his bank records, the Court
cannot hear Richardson’s renewed Fourth Amendment claims against Bar Counsel here.
Additionally, because the D.C. Circuit previously held that Richardson had no privacy interest in
the check, Richardson also fails to state a claim against Shishkevish.8 See Richardson v. D.C.
Bar Ass’n, 1997 WL 404321, at *1 (holding that defendants’ alleged actions “did not violate
[Richardson’s] privacy rights under either the Fourth or Fifth Amendments because he neither
owned nor possessed the check” and that the “dismissal of [Richardson]’s complaint was proper
because the complaint failed to state a claim upon which relief could be granted”).
ii. Due Process Claims
Richardson further asserts that his due process rights were violated by the D.C. Court of
Appeals when it suspended him “without notice” and without an evidentiary hearing, in
contravention of the Fifth Amendment and D.C. Code § 11-2503(b). Compl. at ¶¶ 54, 59-61.
7
Further, Rule XI § 6(a)(2) states, in relevant part, that “no disposition [of an
investigation] shall be recommended or undertaken by Bar Counsel until the accused attorney
shall have been afforded an opportunity to respond to the allegations.” D.C. Bar Rule XI §
(6)(a)(2). This clause of the rule, on its face, does not relate to the issuance of subpoenas, or the
taking of any other intermediate steps before recommending a disposition in an investigation.
Thus, Richardson’s reliance on § 6(a)(2) in connection with a Fourth Amendment claim is
misplaced, and his argument is without merit.
8
Richardson’s only discernible claim against Shiskevish is that she provided Bar
Counsel with a copy of Richardson’s check that was on file with the CLE office. See Compl. at
¶¶ 69-75.
13
The D.C. Court of Appeals considered and rejected these arguments in 1997:
Nothing in our rules governing reciprocal discipline is at all inconsistent with the
procedural requirements of this statutory provision. . . . the statute expressly
permits this court to “suspend the person charged from practice at [the] bar
pending the hearing,” D.C. Code § 11-2503(b)—clear authority for a temporary
suspension under D.C. Bar R. XI § 11(d) pending final disposition of the
reciprocal disciplinary proceeding. Such authority does not violate the Due
Process Clause.
See In re Richardson, 692 A.2d at 430; see also id. at 433-35 (rejecting Richardson’s due process
challenges). Similarly, dating back to 1997, this Court observed that Richardson received ample
due process. See Richardson II, 962 F. Supp. at 2, n.2.9
Furthermore, although Richardson adds a passing reference to the Sixth Amendment in
relation to his due process claim, see Compl. at ¶ 10 (“[t]hose investigatory and adjudicatory
improprieties involved the denial of certain due process (under 5th Amd. generally–adequate
notice and prior evidentiary hearing) and fair trial procedures [under 6th Amd. (to
confrontation),”) see also Compl. at ¶ 23, he does not offer any legal or factual support for this
claim. In this regard, therefore, Richardson fails to state a claim arising out of the Sixth
Amendment. See Fed. R. Civ. P. 8; Twombly, 550 U.S. at 555 (“factual allegations must be
enough to raise a right to relief above the speculative level”).
9
In Richardson II, the Court did not reach the merits of Richardson’s due process
claims. The Court did note, however, that “[a]lthough Plaintiff did not appear in person before
the D.C. Court of Appeals before the temporary suspension was first initiated, he was given
notice and did respond to that notice in writing. It was the opportunity to respond in writing that
constituted Plaintiff’s due process. He was granted further due process when he appeared before
the D.C. Court of Appeals for a post-deprivation hearing.” Richardson II, 962 F. Supp. at 2 n.2.
14
iii. Remaining Tort Claims
The doctrine of claim preclusion prevents a claimant who has litigated a claim to
judgment once from litigating the same claim in a subsequent suit involving the same parties or
their privies based on the same cause of action litigated in the prior suit. Drake v. FAA, 291 F.3d
59, 66 (D.C. Cir. 2002). The claimant is also precluded from bringing claims that arise from the
same nucleus of facts upon which the prior litigation is based. Id. In order to determine whether
a subsequent cause of action arises from “the same nucleus of facts” that give rise to the first suit,
the Court will look to “whether the facts are related in time, space, origin, or motivation, whether
they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’
expectations or business understanding or usage.” Apotex, Inc. v. FDA, 393 F.3d 210, 217 (D.C.
Cir. 2004) (internal citations omitted).
With one exception that is discussed infra Part B.2.ii, Richardson’s claims here arise out
of the same cause of action and the same nucleus of facts, the proceedings leading to his 1997
final suspension, that have been the subject of prior court decisions. See Compl. at ¶ 10 (“All
claims arise out of the wrongful revocation of Richardson’s law license”).
To the extent that the basis of Richardson’s tort claims are set forth and capable of being
understood—“wrongful conviction; civil conspiracy; fraud, deceit and misrepresentation; abuse
and misuse of official authority,” see Compl. at ¶ 1—they are just second, third, or fourth
attempts to recast allegations that Richardson has previously raised or could have raised in prior
lawsuits. See, e.g., Richardson II, 962 F. Supp. at 2 (noting that Richardson, after “having
previously been rebuffed by [this Court] and the D.C. Circuit” was “trying to get, at the very
least, a second bite at the apple” by bringing the “same action again”). Regardless of whether
15
particular claims have been decided on the merits, claim preclusion bars Richardson from
bringing related claims in this suit.
2. Issue Preclusion
Res judicata precludes the relitigation of an issue so long as (1) it was previously
contested by the parties and submitted for judicial determination; (2) it was actually and
necessarily decided by a court of competent jurisdiction; and (3) preclusion does not work a
“basic unfairness to the party bound by the first determination.” See Yamaha Corp. of Am. v.
United States, 961 F.2d 245, 254 (D.C. Cir. 1992). Several of the claims Richardson raises now
are necessarily precluded because the issue of whether this Court has jurisdiction to hear them
has already been decided against Richardson.
i. Issue of Court’s Jurisdiction Over Eighth Amendment and Civil
Rights Claims Precluded
To reiterate, an earlier judgment ordering dismissal on jurisdictional grounds in litigation
between the same parties “preclude[s] relitigation of the precise issue of jurisdiction that led to
the initial dismissal.” GAF Corp. v. United States, 818 F.2d 901, 912 (D.C. Cir. 1987); see also
Dozier v. Ford Motor Co., 702 F.2d 1189, 1191 (D.C. Cir. 1983). Thus, the issue of this Court’s
jurisdiction to hear Richardson’s Eighth Amendment claim, asserting that his “penalties [were]
grossly disproportionate to the offense,” Compl. ¶¶ 84-86, is precluded. This claim has been
raised previously by Richardson and the question of this Court’s jurisdiction to hear it has
already been litigated and decided. See Richardson IV, No. 05-0210, slip op. at 3 (“As for any
other Eighth Amendment challenge to his suspension . . . federal courts do not have jurisdiction
to review state court judgments even where a constitutional violation is alleged.”).10
10
In addition to arguing that the penalties to which he was subjected was
disproportionate, Richardson’s complaint challenges the “illegal disciplinary sanction” of the
16
Richardson also raises civil rights claims, arguing that he suffered “[c]ivil rights
violations of a due process and equal protection nature aris[ing] out of the nondisclosure and
concealment of illegal disciplinary investigations and procedures conducted by bar prosecutors
and the Board.” Compl. ¶¶ 87-105. In 2007, this Court dismissed Richardson’s virtually
identical civil rights violation claims,11 holding again that this Court could not hear this claim as
the “issue of jurisdiction necessarily has been determined by the appropriate courts.” See
Richardson, 2007 WL 2007591, at *2, aff’d, Richardson v. District of Columbia, 2008 WL
2396186, at *1 (D.C. Cir. 2008) (“[A]ppellant’s civil rights claims . . . are barred by the collateral
estoppel doctrine.”). The Court finds again that Richardson is precluded from raising these
issues.
ii. Prosecutorial Misconduct and Fraud on the Courts Claims Precluded
Richardson has only one discernible post-1997 suspension issue—that Bar Counsel
“obstructed justice” and perpetrated a “fraud upon the court[]” by not disclosing the existence of
an undocketed 1992 investigation until 2003, see Compl. ¶¶ 49-51—but this too is precluded.
D.C. Court of Appeals’ interim suspension and its automatic extension for his failure to file a
required registration statement. See Compl. ¶¶ 78-83. The issue of this Court’s jurisdiction to
hear Richardson’s allegations regarding the automatic extension of his license revocation has
already been decided—twice. See Richardson IV, No. 05-0210, slip op. at 2-4 (noting
Richardson’s “disproportionate penalty” claim appeared “to be based on the automatic extension
of his license revocation for noncompliance with a D.C. Bar Rule . . . the exact argument—and
even the same rule [14(f)]—that was addressed and rejected by this Court in Richardson III.”).
In Richardson III, No. 04-0101, slip op. at 4, the Court likewise abstained from hearing this
particular challenge on Rooker-Feldman grounds.
11
The Court notes that Richardson’s statement of his claims relating to the alleged
civil rights violations appears to be lifted almost verbatim from his 2006 complaint. Compare
Compl. ¶¶ 87-105 with Compl. ¶¶ 71-91, Richardson v. District of Columbia, 2007 WL 2007591(D.D.C. July 11, 2007).
17
Richardson has raised this issue before, see, e.g., Compl. ¶ 4.1, Richardson IV, No. 05-0210
(D.D.C. 2005) (“fraudulent misrepresentation” and “nondisclosure and concealment”), id. ¶ 4.5
(“prosecutorial misconduct”); Compl. ¶¶ 31-32, Richardson V, 2007 WL 2007591 (D.D.C. 2007)
(No. 06-1665) (“prosecutorial misconduct”; id. ¶ 33 (“fraud upon the courts”)); however, this
Court addressed its jurisdiction to hear it in 2005:
Plaintiff claims that he had not been informed of the existence of the 1992
investigation prior to [2003] and that this fact gives rise to a fraudulent
nondisclosure and even a civil conspiracy claim. [ ] But regardless of when
plaintiff discovered the facts underlying his claims, it remains that these
procedural challenges are inextricably intertwined with the suspension itself.
Richardson IV, No. 05-0210, slip op. at 5. Though Richardson styled this claim as a “fraudulent
misrepresentation” in 2005, see Compl. ¶ 4.1, Richardson IV, No. 05-0210, it arises from the
same facts and circumstances as his most recent “prosecutorial misconduct,” “obstruct[ion] [of]
justice,” and “fraud upon the courts” claims here. See Compl. ¶¶ 49-51. Thus, the Court’s
judgment as to its jurisdiction to hear this issue in 2005 precludes Richardson from raising the
issue again.
C. Absolute Immunity
Defendants argue that they are entitled to absolute immunity from Richardson’s claims.
Defendants are correct. Both the D.C. Court of Appeals judges and the non-judicial defendants
are entitled to absolute immunity.
1. D.C. Court of Appeals Judges
The D.C. Court of Appeals judges are absolutely immune from causes of action asserted
in this case based on their decisions leading to Richardson’s suspension. See Pierson v. Ray, 386
U.S. 547, 553-54 (1967) (“[I]mmunity of judges for acts within the judicial role is well
18
established . . . . Few doctrines were more solidly established at common law than the immunity
of judges from liability for damages for acts committed within their judicial jurisdiction.” (citing
Bradley v. Fisher, 13 Wall. 335 (1872))). In Feldman, the Supreme Court analyzed the question
of whether bar admission proceedings were judicial in nature, and found that they were. See
Feldman, 460 U.S. at 479. The Court in Feldman determined that the proceedings under
consideration involved a judicial inquiry because “the court was called upon to investigate,
declare, and enforce ‘liabilities as they [stood] on present or past facts and under laws supposed
already to exist.’” Id. (internal citations omitted). In determining to suspend Richardson, the
judges of the D.C. Court of Appeals engaged in the same kind of judicial inquiry.
2. Non-Judicial Defendants
The non-judicial defendants in this case are also entitled to absolute immunity. D.C. Bar
Rule XI § 19(a) provides that “Members of the Board [on Professional Responsibility], its
employees, members of Hearing Committees, Bar Counsel, and all assistants and employees of
Bar Counsel . . . shall be immune from disciplinary complaint under this rule and from civil suit
for any conduct in the course of their official duties.” D.C. Bar Rule XI § 19(a). This Court has
recognized the absolute immunity this Rule provides. See, e.g., Thomas v. Knight, 257 F. Supp.
2d 86, 94 (D.D.C. 2003). The Rule provides immunity to Members of the Board and Bar
Counsel on its face, but similarly, as the D.C. Court of Appeals has recognized, absolute
immunity extends to defendant Shiskevish for her acts related to providing a copy of
Richardson’s check to Bar Counsel. See In re Spikes, 881 A.2d 1118, 1123-24 (D.C. 2005)
(citing In re Nace, 490 A.2d 1120, 1123-24 (D.C. 1985)) (stating that section 19(a) immunity
extends to those who provide information to the Board or to Bar Counsel).
19
Notably, section 19(a) extends immunity for conduct taken “in the course of [Bar
officials’] official duties.” D.C. Bar R. XI § 19(a). While Richardson seeks relief against the
defendants in this case “individually or in their representative capacities,” Compl. ¶ 109
(emphasis added), there is nothing in Richardson’s complaint to support an allegation that any of
the defendants acted outside their official capacities. Thus, the immunity protection afforded by
section 19(a) applies. See Nwachukwu v. Rooney, 362 F. Supp. 2d 183, 192 (D.D.C. 2005)
(noting that where “nothing in the complaint supports an allegation that the individuals who
acted on behalf of the Board and Bar Counsel did so other than in their official capacity and in
the course of official duties,” Rule XI § 19(a) applies and the defendants are entitled to absolute
immunity).
III. CONCLUSION
For the foregoing reasons, defendants’ motions to dismiss [## 25, 26] are granted. An
appropriate order accompanies this memorandum opinion.
Henry H. Kennedy, Jr.
United States District Judge
20