JAMES R. BLACKSTON, BRADLEY W. BARBER Plaintiffs, vs. STATE OF ALABAMA, et. al., Defendants.

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Case No.: 99-A-295-N

ORDER

Pending before the court is the plaintiffs' Motion For Leave to Amend their complaint, filed on 29 June 2001 (Doc. # 109). Previously, on 25 April 2001 (Doc. # 102), the Magistrate Judge extended the deadline for amending the complaint from 1 June 2001 to 13 July 2001. Thus, the plaintiffs' motion was timely. Upon consideration of the plaintiffs' motion, and for good cause, it is ORDERED that the motion to amend is DENIED. I. DISCUSSION A. Original Complaint The plaintiffs contended, inter alia, in their original complaint, filed on 25 March 1999, that the defendants violated a "Consent Decree" entered on 15 December 1995. In fact, the document appended to the complaint and referenced as a "Consent Decree" is a "Release and Settlement Agreement" signed only by the parties to the Agreement. The Agreement is not signed by a judge, and it was not formally approved or adopted by this court. Therefore, it is not a "Consent Decree"; it is not a "decree" at all. After the parties submitted their Release and Settlement Agreement in 1995, this court entered an order granting the plaintiffs' motion to dismiss their claims with prejudice. (See Blackston, et al v. Dorrough, et al, Civil Action No. 93-H-623-N, Docs, #67 and 69). The plaintiffs also alleged several constitutional and state law violations. On 16 February 2000, the court entered a Memorandum Opinion and Order. Based upon that order, the only claims which remained in this case as of that date were o their First Amendment claim; o their state law breach of contract claim; and o to the extent that the court finds their pleadings to be adequate, their RICO claim. (Doc. # 35). B. Previous Amendments to the Complaint Before the court entered its order limiting the claims (Doc. # 35, supra), the plaintiffs amended their complaint on 12 July 1999 (Doc. # 22) (Amendment #1). Immediately after the court's order of 16 February 2000, the plaintiffs filed another amendment on 29 February 2000 (Doc. #37) for the purpose of alleging RICO violations pursuant to 18 U.S.C. §§196l et seq. (Amendment #2). In that amendment, the plaintiffs also named Peggy Walker ["Walker"], then Director of Research and Planning for the Alabama Administrative Office of Courts, as a party defendant. The court entered an order on 2 March 2000 (Doc. # 38) striking Walker as a defendant, but permitting factual allegations of her conduct to remain in the lawsuit. In its order, the court stated the following: Peggy D. Walker has not previously been named a defendant in this case. In Amendment #2 to the Verified Complaint, the Plaintiffs also allege a violation of 18 U.S.C. §1513(a)(1) against Peggy Walker, a claim which was not previously stated in the Plaintiffs Verified Complaint or the first amendment to the Verified Complaint. These portions of Amendment #2 to the Verified Complaint exceed the scope of this court's February 16, 2000 Order. This court's Order allowed the Plaintiffs to more specifically plead their RICO claims, not to bring in additional parties or to bring additional claims. [Emphasis supplied] On 4 April 2000, the plaintiffs, in seeming defiance of the court, filed yet another motion to amend the complaint to add Walker as a necessary party (Doc. # 54). The motion was again denied on 6 April 2000 (Doc. # 55). Following the plaintiffs' appeal of the Magistrate Judge's order denying the motion to add Walker, the court entered an order dismissing the second amendment to the complaint (Doc. # 64). The court's order specifically provided: If the Plaintiffs intend to pursue their RICO claim, they are to omit any discussion of the background facts in this case in the allegations of the RICO violation itself, and are to plead only those facts which they contend are circumstantial evidence of the intent to defraud. The court further admonished the plaintiffs that they "were not given leave to plead" a violation of 18 U.S.C. § 15 13(a)(1) (See footnote 1) and specifically directed them "not to include, without leave of court, a claim under 18 U.S.C. § 1513, or any other new claim, in any amendment they may choose to file to allege a RICO claim." (See Doc. # 64) Plaintiffs next filed an Amendment to their complaint on 13 July 2000 (Doc. # 65; Amendment# 2A). The Magistrate Judge entered a Recommendation on 21 November 2000 that the defendants' motion to dismiss the amended complaint be granted (Doc. # 78), citing pleading deficiencies in the new complaint and the court's inability to discern the plaintiff's claims. The court entered an order on 10 January 2001, adopting the Recommendation and dismissing plaintiff's Amendment #2A (Doc. # 86). After further efforts by the plaintiffs to reinstate the RICO claim - and arguably Walker - to this litigation, the court entered another order on 24 January 2001 (Doc. # 91), clarifying its position, stating that. Plaintiffs' Motion to Amend the Complaint to add Peggy Walker as another Defendant to the RICO claim is futile, and is, therefore, due to be DENIED. The court further declared that the Motion to Amend the Complaint to add a claim under [18 U.S.C. §15 13] is also futile and due to be DENIED. Finally, the court again recast the litigation, stating the following: The case will proceed on the Plaintiffs' claims for relief, including the contempt petition. . . for violation of the First Amendment and for breach of contract. C. The Pending Amendment According to the plaintiffs, their Amendment # 4 "is necessary to clarify the issues and undisputed facts and to appraise the court of additional and newly discovered evidence." Based upon the Magistrate Judge's scrutinizing review of the record in the 1993 litigation, upon which several of plaintiffs' allegations are based, as well as the record in the instant case, the court finds that the pending amendment should be denied. 1. Inclusion of Matters Previously Dismissed First, Amendment # 4 is deficient because it seeks to "incorporate" pleadings that have already been dismissed by this court. Plaintiffs seek to "incorporate by reference as fully rewritten herein" Amendment #3, which sought to add Peggy Walker as a defendant. As aforestated, this court has on several occasions dismissed Walker as a defendant and reminded the plaintiffs that she will not be included as a party to this action. Plaintiffs also seek to incorporate Amendment #2A. The court dismissed that amendment on 10 January 2001 (Doc. # 86). Thus, on the ground that it incorporates claims and allegations previously dismissed by this court, the plaintiffs' motion is DENIED. 2. Lack of Record Support: No Consent Decree Second, the current amendment should be denied because it alleges facts based upon this court's official record that are clearly unsupported by the record. A court may take judicial notice of its own acts and records, including records in prior proceedings. Coney v. Smith, 738 F.2d 1199, 1200 (11th Cir. l984) (See footnote 2) Although the plaintiffs have persisted in their claim that the defendants have violated a "Consent Decree", it is "beyond reasonable controversy" (See footnote 3) that this court did not issue a Consent Decree. It is now time to lay to rest that claim which is unequivocally refuted by this court's clear record. At the conclusion of the plaintiffs' 1993 case, the parties, in pursuit of settlement, entered into a contract - a Release and Settlement Agreement - disposing of the plaintiffs' claims. (See footnote 4) The defendants specifically declined to admit liability on any of the plaintiffs' claims and expressly denied guilt of "any wrongdoing" in the case. The court never entered a decree approving or adopting 'the parties' obligations under their contract. The court never "decreed" any action; nor did it issue an order directing any of the parties to fulfill or refrain from fulfilling any of the promises made in the Agreement. Instead, the court merely dismissed the action with prejudice on the plaintiffs' motion on 5 March 1996 (See Doc. #69, Civil Action No. 93-H-623-N). (See footnote 5) Thus, for example, plaintiffs' declaration in paragraph 17 of the amendment that defendants acted "[i]n violation of the Consent Decree and Court Order" is simply untenable and should not be allowed in the face of an indisputable indication that the allegation cannot be substantiated. (See footnote 6) As noted by the Eleventh Circuit, "[tjhe district court possesses the inherent power to police its docket." Mingo v. Sugar Cane Growers Co-Op of Florida, 864 F.2d 101, 102 (11th Cir. 1989). The allegations in paragraphs 8, 11, 19, 25, 28, 34, 37, and 39 are subject to a similar analysis. (See footnote 7) Thus, to whatever extent the plaintiffs may challenge the defendants' conduct, their claims may not be premised upon a Consent Decree issued in the 1993 litigation. 3. Lack of Record Support: No Court Order For the reasons stated in the preceding section of this order, the Amendment is also deficient because the allegations rely upon a "court order", the non-existence of which the court can judicially notice. Throughout the Amendment - and this litigation in general -the plaintiffs have made repeated reference to a court order entered in the 1993 litigation on 21 December 1995 "wherein all meetings of [the Alabama Child Support Guidelines Committee] were ordered by this Court to be open to Blackston and Barber for tape recording." (See, e.g., paragraph 23 of the Amendment). In fact, Judge Hobbs, presiding in the 1993 case, did not issue an order dated 21 December 1995. In further fact, although Judge Hobbs entered an order on 6 December 1994 - a Consent Order - directing that at future hearings of the Advisory Committee on Child Support Guidelines and Enforcement, plaintiffs be allowed to tape record such proceedings (Doc. # 39), the court later vacated that order on 22 December 1994 (Doc. #43). The order was never reinstated before the plaintiffs' claims were dismissed on 5 March 1996. Because the court's order of 6 December 1994 was rendered null and void by the order entered on 22 December 1994, the parties' obligations under the earlier order, whatever they were, ceased as of the date of the later order. Thus, to whatever extent the plaintiffs may challenge the defendants' failure to permit them to tape record proceedings, that claim may not be premised upon a court order from the 1993 case. 4. Non-Compliance With Orders in This Case As aforestated, when the court entered its culminating order on 24 January 2001 (Doc. # 91), it admonished the defendant that "[t]he case will proceed on the Plaintiffs' claims for relief, including the contempt petition. . . for violation of the First Amendment and for breach of contract". The court also advised the plaintiffs to conform any future amendments to the scope of the complaint outlined by the court in its order dated 16 February 2000 (Doc. #35). Plaintiffs cast their amendment as one which introduces "additional and newly discovered evidence" which is beyond the scope of the complaint and the permitted amendments and beyond the scope of the referenced court order. Finally, the plaintiffs have again named Frank Gregory as a defendant in the Amendment. In their own motion, filed on 9 March 2001, the plaintiffs requested leave to substitute Rich Hobson, the newly appointed Director of the Administrative Office of Courts, "in place of Frank Gregory", who retired on 22 January 2001. The court granted the motion on 25 April 2001 (Doc. # 101), and Frank Gregory is no longer a defendant in this case. II. CONCLUSION Accordingly, the plaintiffs' Motion For Leave to Amend their complaint, filed on 29 June 2001, is DENIED. DONE this 13th day of March, 2002. VANZETTA PENN McPHERSON UNITED STATES MAGISTRATE JUDGE Footnote 1 - 'That section provides federal criminal penalties for retaliating against a witness, victim, or an informant. Footnote 2 - Pursuant to F.R.E. 201, the court may take judicial notice, whether requested or not, and it may take judicial notice at any stage of the proceeding. Indeed, the plaintiffs themselves requested the court to take judicial notice of an opinion issued by the Court of Appeals on 4 May 1999 (Doc. # 12). Footnote 3 - See Note to Subdivision (b), F.R.E. 201. Footnote 4 - The Release and Settlement Agreement is attached to the original Complaint as Exhibit A. Footnote 5 - Although the Release and Settlement Agreement was dated 15 December 1995, it was not filed with the Clerk of the court until 29 January 1996. Footnote 6 - This finding is consistent with the analysis which precedes dismissal for failure to state a claim. A Rule 12(b)(6) motion, which tests the legal sufficiency of the complaint, may be granted only if it is clear that no relief could be granted under any set of facts that could be proven consistent with the allegations set forth in the complaint. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); see also Wright v. Newsome, 795 F.2d 964, 967 (11th Cir.1986) (citation omitted) ("[W]e may not ... [dismiss unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claims in the complaint that would entitle him or her to relief'). In the instant case, there is no set of facts under which the plaintiffs can prove that a Consent Decree was either entered by this court or violated by the defendants. Footnote 7 - The Amendment inadvertently skips paragraph 38. Back to Lawsuit Page [ Home]---[Search]---[Email]---[Access Page]---[Child Support]