Tommy Lee Cox v. Cathelene Robinson, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11201
Non-Argument Calendar
____________________
TOMMY LEE COX,
Plaintiff-Appellant,
versus
CATHELENE ROBINSON,
Individually and in her official capacity as
Fulton County Clerk of Superior and Magistrate Court,
a.k.a. Cathelene (Tina) Robinson,
JOHN AND/OR JANE DOE(S) 1 THROUGH 100,
Individually,
JOHN AND/OR JANE DOE(S) 1 THROUGH 100,
each in their official capacity as Fulton County Chief
Deputy Clerk, Assistant Chief Deputy Clerk(s), and
Clerk(s) whose true name,their office and
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2 Opinion of the Court 23-11201
residential address each are yet unknown,
ROBINSON,
and these Does clerking for and in the employment
of Georgia's Fulton County Office of Clerk of
Superior and Magistrate Court,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:22-cv-01998-SEG
____________________
Before L AGOA , BRASHER , and ABUDU, Circuit Judges.
PER CURIAM:
Tommy Lee Cox, proceeding pro se, appeals the district
court’s dismissal of his complaint brought under 42 U.S.C. §§ 1983,
1985, and 1986 and multiple provisions of the Georgia Constitu-
tion. The district court’s basis for dismissing Cox’s complaint was
its finding that the defendants were entitled to absolute immunity
and Eleventh Amendment sovereign immunity in their roles as
state court clerks.
“Whether an official is entitled to absolute immunity is a
question of law that we review de novo.” Stevens v. Osuna, 877 F.3d
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23-11201 Opinion of the Court 3
1293, 1301 (11th Cir. 2017). We also review de novo whether an
entity constitutes an arm of the state under Eleventh Amendment
immunity analysis. Lightfoot v. Henry Cnty. Sch. Dist., 771 F.3d 764,
768 (11th Cir. 2014).
“Pro se pleadings are held to a less stringent standard than
pleadings drafted by attorneys and will, therefore, be liberally con-
strued.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.
1998). However, a pro se litigant is nonetheless “subject to the rel-
evant law and rules of court, including the Federal Rules of Civil
Procedure.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989).
We “generally will not consider an issue or theory that was not
raised in the district court.” Wright v. Hanna Steel Corp., 270 F.3d
1336, 1342 (11th Cir. 2001).
Clerks of the court have absolute immunity for a narrow
range of acts that “they are specifically required to do under court
order or at a judge’s direction, and only qualified immunity for all
other actions for damages.” Tarter v. Hury, 646 F.2d 1010, 1013 (5th
Cir. Unit A June 1981); see also Roland v. Phillips, 19 F.3d 552, 556
n.4 (11th Cir. 1994) (holding that, when an official acts pursuant to
a direct judicial order, absolute quasi-judicial immunity is obvious).
“[T]he power to punish for contempt[] is inherent in all
courts.” Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (quotation
marks omitted, first alteration in original). Within this power,
courts have discretion “to fashion an appropriate sanction for con-
duct which abuses the judicial process.” Id. at 44-45. Moreover,
each Georgia superior court possesses the power “to compel
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4 Opinion of the Court 23-11201
obedience to its orders and to control the conduct of everyone con-
nected with a judicial proceeding before that court.” Bayless v. Bay-
less, 280 Ga. 153, 155 (2006) (citing O.C.G.A. § 15-1-3(3)-(4)). Geor-
gia superior courts are “charged with the efficient clearing of cases
upon [their] docket,” and they are authorized to impose “harsh
sanction[s]” pursuant to that duty. Id.
The Eleventh Amendment provides that “[t]he Judicial
power of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Sub-
jects of any Foreign State.” U.S. Const. amend. XI. “Under the
Eleventh Amendment, state officials sued . . . in their official capac-
ity are immune from suit in federal court.” Jackson v. Ga. Dep’t of
Transp., 16 F.3d 1573, 1575 (11th Cir. 1994). This bar applies re-
gardless of whether the relief sought is legal or equitable. Nichols
v. Ala. State Bar, 815 F.3d 726, 731 (11th Cir. 2016). Immunity under
the Eleventh Amendment is considered “surrendered” in three sit-
uations:
(1) when a state waives its Eleventh Amendment sov-
ereign immunity and consents to suit in federal court,
(2) when Congress, acting pursuant to § 5 of the Four-
teenth Amendment, abrogates a state’s Eleventh
Amendment sovereign immunity by expressing an
unequivocal intent to do so, and (3) when a state offi-
cial is sued for prospective injunctive relief to end a
continuing violation of federal law.
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23-11201 Opinion of the Court 5
Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1278 (11th Cir. 1998) (cita-
tions omitted).
The state of Georgia has not waived its sovereign immunity
“with respect to actions brought in the courts of the United States.”
O.C.G.A. § 50-21-23. The Supreme Court has held that Congress
did not abrogate the sovereign immunity of Georgia—or any other
state—in enacting 42 U.S.C. § 1983. See Quern v. Jordan, 440 U.S.
332, 342-45 (1979).
“To receive Eleventh Amendment immunity, a defendant
need not be labeled a ‘state officer’ or ‘state official,’ but instead
need only be acting as an ‘arm of the State,’ which includes agents
and instrumentalities of the State.” Manders v. Lee, 338 F.3d 1304,
1308 (11th Cir. 2003) (en banc). “Whether a defendant is an ‘arm of
the State’ must be assessed in light of the particular function in
which the defendant was engaged when taking the actions out of
which liability is asserted to arise.” Id. We consider four factors in
assessing whether an entity is an “arm of the State”: “(1) how state
law defines the entity; (2) what degree of control the State main-
tains over the entity; (3) where the entity derives its funds; and
(4) who is responsible for judgments against the entity.” Myrick v.
Fulton Cnty., Ga., 69 F.4th 1277, 1294 (11th Cir. 2023).
The Georgia Constitution gives the state legislature the
power to set the “qualifications, powers, and duties” of Georgia su-
perior court clerks. Ga. Const. art. IX, § 1, para. III(a). Pursuant to
this power, the Georgia state legislature has enacted statutes re-
lated to the duties and powers of superior court clerks. See
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O.C.G.A. §§ 15-6-60, 15-6-61. Georgia state law also sets qualifica-
tions for superior court clerks, and the governor of Georgia has the
authority to form a committee to investigate a clerk’s alleged mis-
conduct, which can result in her removal from office. See id.
§§ 15-6-50, 15-6-82. Indeed, the Georgia Constitution prohibits
counties in Georgia from taking actions that affect any elective
county office . . . or the personnel thereof.” Ga. Const. art. IX, § 2,
para. I(c)(1). In Georgia, superior court clerks are elected county
officials. Id. art. IX, § 1, para. III(a).
Here, we conclude that the district court did not err in dis-
missing Cox’s complaint on immunity grounds. As for his individ-
ual-capacity claims, the district court correctly found that Robinson
was protected by absolute immunity, because her conduct was car-
ried out in compliance with a valid and enforceable court order.
The district court also correctly found that Robinson was protected
by Eleventh Amendment sovereign immunity against Cox’s offi-
cial-capacity claims, because it correctly concluded that Robinson,
as a superior court clerk, was acting as an “arm of the state.” Ac-
cordingly, we affirm.
AFFIRMED.
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