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DO NOT PUBLISH IN THE UNITED STATES COURT OF APPEALS Bradley Barber, vs. Polly Conradi, individually and in her
Appeal from the United States District Court
Before ANDERSON and EDMONDSON, Circuit Judges, and KRAVITCH, Senior Circuit Judge. |
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PER CURIUM Plaintiff-Appellant Bradley Barber is a member of the National Congress for Fathers and Children, an association advocating fathers' rights. He appeals the district court's dismissal of his Civil rights complaint brought under 42 U.S.C. §§1983, 1985(3) and 1986, for failure to state a claim. Barber's complaint focuses on his claimed right to gather information about divorce proceedings, involving children, from the files of Alabama's Tenth Judicial Circuit Court, Domestic Division. Barber planned to compile and to publish information about acts taken by Alabama's elected judiciary in child custody cases. Barber and other members of his group (footnote 1) were restricted in their access to court records by Defendants-Appellees, Polly Conradi, Circuit Court Clerk for Jefferson County, Alabama; Page 2 Susan Lee, Deputy Clerk; and Richard Jones, Jefferson County Deputy Sheriff. Barber alleged that the restrictions imposed on viewing court records -- a two hour per week limit -- violated his rights of free speech and free association, as protected by both the United States and Alabama constitutions. He says the restrictions interfere with his ability to communicate information to others and prevent him from jointly reviewing court files with other members of his group. Barber also accused Appellees of violating his equal protection and free speech rights by treating him -- because of his beliefs and association with a fathers' rights group -- differently from others seeking access to the files. The Appellees were sued in both their official and individual capacities, and both monetary damages and injunctive relief was sought. Page 3 a. Monetary Damages Claims The district court concluded the Eleventh Amendment immunized the Appellees from claims for monetary relief in their official capacities. The Eleventh Amendment bars suits for monetary damages against an unconsenting state and against state officials in their official capacities when the suit is in reality a suit against the official's office. Pennhurst State School & Hospital V. Halderman, 104 S.Ct..900, 908 (1984). Sheriffs in Alabama represent the State when executing their law enforcement duties, see McMillian v. Monroe County Ala., No. 96-542, ___S.Ct.___ (U.S. June 2, 1997). and we have held that the sheriff's Eleventh Amendment immunity in Alabama extends to their deputies. Carr v. City of Florence Ala., 916 E.2d 1521, 1525-27 (11th Cir. 1990). Court clerks statutorily are state employees. See Ala. Code §12-17-1(a). The district court Page 4 committed no reversible error in dismissing Barber's claims for monetary relief against Appellees in their official capacities because such claim "is no different from a suit against the State itself." Will v Michigan Dept. of State Police, 109 S.Ct. 2304, 2312 (1989). The district court concluded the Appellees were also shielded from suit for monetary damages in their individual capacities by the doctrine of qualified immunity. Qualified immunity protects government officials performing discretionary functions from personal liability in civil proceedings, so long as their conduct violates no clearly established federal statutory or constitutional rights of which a reasonable person must have known. See Harlow v. Fitzgerald, 102 S.Ct. 2727, 2738 (1982). "To be 'clearly established,' the federal law by which the government official's conduct should be evaluated must be preexisting, obvious, and mandatory so that a similarly situated, Page 5 reasonable government agent would be on notice that his or her questioned conduct violates federal law under the circumstances." Hill V. DeKalb Regional Youth Detention Center, 40 F.3d 1176, 1186 (11th Cir. 1994). This standard is very exacting: "If case law, in factual terms, has not staked out a bright line, qualified immunity almost always protects the defendant. The line is not to be found in abstractions -- to act reasonably, to act with probable cause, and so forth -- but in studying how these abstractions have been applied in concrete circumstances." Lassiter v. Alabama A & M University, 28 E.3d 1146, 1150 (11th Cir. 1994) (citations and quotation marks omitted). Whether a complaint alleges a violation of clearly established rights is a question of law subject to de novo review. Williams v. Alabama State University, 102 F.3d 1179, 1182 (11th Cir. 1997). Because Barber proceeds pro se, we construe his Page 6 allegations liberally. See Haines v. Kerner, 92 S.Ct. 594, 595 (1972). Barber alleges that limiting his access to court files prevented him from obtaining and presenting information of a political nature to his constituents: Interfering with a free discussion of governmental affairs and violating his First Amendment rights of expression and free association. Barber also raises an equal protection claim, contending that he was treated differently based upon his association with a fathers' rights group critical of the courts. No clearly established law supports Barber's First Amendment claims to defeat Appellees' entitlement to qualified immunity. While the Supreme Court has recognized a qualified right of access to criminal court proceedings protected by the First Amendment, See Globe Newspaper Co V Superior Court, 102 S.Ct. 2613, 2620 (1982), neither the Supreme Court nor this Court has considered whether citizens enjoy a right of access Page 7 A more difficult question is presented by Barber's claim that the district court erred in granting Appellees qualified immunity on his equal protection claim. Barber contends that the restrictions imposed on his and his associates' access to court records were applied in a discriminatory manner, thereby violating both his First Amendment and equal protection rights. Barber says that Appellees treated his group differently based on the Page 8 Page 9 to a speaker solely to suppress the point of view he espouses on an otherwise includible subject"); Department of Agriculture v. Moreno 93 S.Ct. 2821, 2826 (1973) (if the constitutional conception of ‘equal protection of the laws' means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest"); Police Dept of Chicago v. Mosley, 92 S.Ct. 2286, 2290-94 (1972) (absent careful tailoring to serve a substantial governmental interest, both the First Amendment and the equal protection clause prevent the government from discriminating among picketers based on the content of their expressive conduct).(footnote2) At this stage in the proceedings -- Page 10 consideration of a Rule 12(b)(6) motion -- we must accept as true all well-pleaded facts in the complaint and draw all inferences in the plaintiff's favor. Williams v. Alabama State University, 102 F.3d 1179, 1182 (11th Cir, 1997). Because it is not "clear that no relief could be granted under any set of facts that could be proved consistent with the allegations," Hishon v. King & Spalding, 104 S.Ct. 2229, 2232 (1984), dismissal of Barber's equal protection claim based on qualified immunity was error. b. Injunctive Relief Claims. The Eleventh Amendment's proscription of suits against a state or its officials does not bar the issuance of injunctions prohibiting state officials from acting in violation of the 11 Constitution. Pennhurst, 104 S.Ct. at 909. In a similar way, qualified immunity "may not be effectively asserted as a defense to a claim for declaratory or injunctive relief." Ratliff v. DeKalb County Ga. 62 F.3d 338, 340 n.4 (11th Cir. 1995). Accordingly, a finding of qualified immunity -- which may indicate only that the unconstitutionality of a particular act was not well established -- does not necessarily preclude injunctive relief for the same act. As earlier discussed, the absence of clearly established law on Barber's First Amendment claim (absent the equal protection aspect) entitled Appellees to qualified immunity in a suit for monetary damages. Whether Barber has a constitutionally protected right to reasonable access to domestic court records, and whether two hours per week is reasonable under the circumstances are complex legal and factual questions. The district court opinion appears to conclude that the access restrictions were reasonably Page 12 imposed to avoid an undue burden on the clerk's office, but it contains no indication of how Barber's asserted First Amendment interest in obtaining access was weighted, and, in any event, reasonableness was only discussed in the context of the district Court's qualified immunity findings. Considering the complaint's allegations, a fuller explanation of the district court's reasons -- maybe additional proceedings beyond the pleading stage -- for dismissal of the claims for injunctive relief is required. See Elston v. Talladega County Rd. of Educ., 997 F.2d 1394, 1425 (11th Cir. 1993). Even if Barber cannot state a First Amendment claim entitling him to injunctive relief based exclusively on limited access to court records. if the access restrictions were discriminatorily applied, thereby violating both Barber's First Amendment and equal protection rights, the alleged unequal treatment may state a claim for injunctive relief. "Regulations Page 13 enacted for the purpose of restraining speech on the basis of its content presumptively violate the First Amendment." City of Renton, 106 S.Ct. at 928. Further consideration, for example, per Rule 56, of Barber's First Amendment claim insofar as it seeks injunctive relief for alleged unequal treatment based on the content of his expression is required. c Other Claims Barbers advances a litany of other claimed errors, none of which are of substantive merit. d. Conclusion Appellees are protected from suit in their official capacities for monetary damages by the Eleventh Amendment. Appellees Page 14 are entitled to qualified immunity from damages for the reasonable access aspect of Barber's First Amendment claim. At this stage in the proceedings, entitlement to qualified immunity on the content based unequal treatment claim has not been established. We VACATE dismissal of the First Amendment and equal protection claims insofar as they seek prospective injunctive relief and REMAND for further proceedings. We AFFIRM dismissal of all other claims. Page 15 Footnote 1 -- Although other members of the National Congress for Men and Children were named plaintiffs in the district court, only Barber perfected an appeal from the district court's decision. Fed. R. App. P. 3(c}. Footnote 2 -- In Blackston v. State of Alabama, 30 E.3d 117, 120 (11th Cir. 1994) this Court reversed the district court's dismissal of a claim raised by members (including Barber) of the same fathers' rights group stating that strict scrutiny would apply if plaintiffs could prove that the act they challenged (a ban on tape recording certain proceedings of the Alabama Supreme Court Advisory Committee on Child Support) was affected by hostility for the father's rights group. Since Blackston post-dates imposition of the restrictions Barber challenges in the instant case, we do not rely on it to evaluate Appellees' claim of qualified Immunity which must be considered in the light of "pre-existing" law. |
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