Kevin Cichowski, et al v. Andrea Totten, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-10195
Non-Argument Calendar
____________________
KEVIN CICHOWSKI,
STANLEY CICHOWSKI, JR.,
Plaintiffs-Appellants,
versus
ANDREA K. TOTTEN,
Small claims judge, in official capacity,
THE FLORIDA BAR,
an organization,
Defendants-Appellees.
____________________
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2 Opinion of the Court 24-10195
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:23-cv-01181-TJC-MCR
____________________
Before WILSON , J ORDAN , and L AGOA , Circuit Judges.
PER CURIAM:
Stanley and Kevin Cichowski filed a civil rights action under
42 U.S.C. § 1983 against Judge Andrea Totten and the Florida Bar.
In their amended complaint, they alleged that Judge Totten
violated Stanley’s constitutional rights and the Americans with Dis-
abilities Act, 42 U.S.C. § 12131 et seq. She did so by not allowing
Kevin (Stanley’s son) to help Stanley put on his small claims case
based on the Florida Bar’s rules concerning the unauthorized prac-
tice of law, and by threatening Kevin with arrest.1
The Cichowskis also alleged that the Florida Bar’s rules con-
cerning the unauthorized practice of law are unconstitutionally
vague. In their view, those rules violate the First and Fourteenth
Amendments.2
The district court dismissed the amended complaint with
prejudice, ruling that Judge Totten had absolute judicial immunity
and that the Florida Bar had Eleventh Amendment immunity. On
1 The Cichowskis requested only injunctive relief against Judge Totten.
2 With respect to the Florida Bar, the Cichowskis requested money damages
and injunctive relief.
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24-10195 Opinion of the Court 3
appeal, the Cichowskis argue that Judge Totten was not entitled to
absolute judicial immunity because she was engaged in an execu-
tive function in enforcing the Florida Bar’s rules. They also argue
that the Florida Bar is not entitled to Eleventh Amendment im-
munity because (a) Congress abrogated that immunity when it
passed the ADA, and (b) the Florida Bar is violating federal law with
respect to pro se litigants on an ongoing basis.
I
In reviewing the district court’s dismissal on judicial immun-
ity and Eleventh Amendment immunity grounds, we accept the
factual allegations in the amended complaint as true. And we draw
all inferences in the light most favorable to the Cichowskis. See
Weissman v. Nat’l Ass’n of Sec. Dealers, Inc., 500 F.3d 1293, 1295–96
(11th Cir. 2007). See also Buckley v. Fitzimmons, 509 U.S. 259, 261
(1993) (assuming allegations in complaint to be “entirely true” for
purposes of analyzing absolute immunity).
We liberally construe pro se pleadings. See Tannenbaum v.
United States, 148 F.3d 1262, 1263 (11th Cir. 1998). But neither this
Court nor the district court is required to “rewrite an otherwise
deficient pleading in order to sustain an action.” Campbell v. Air Ja-
maica, Ltd., 760 F.3d 1165, 1168–69 (11th Cir. 2014) (internal cita-
tion and quotation marks omitted).3
3 In conducting our review in this case, we assume that the Cichowskis as-
serted a claim under Title II of the ADA in their amended complaint.
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4 Opinion of the Court 24-10195
As the district court explained in its order, in Florida practic-
ing law without a license constitutes a felony. See Fla. Stat.
§ 454.23. Florida Bar Rule 10-2.29(a) clarifies that nonlawyers may
assist self-represented parties in completing certain approved forms
without running afoul of § 454.23. The assistance must be limited
to oral “communications reasonably necessary to elicit factual in-
formation to complete the blanks on the form and inform the self-
represented person how to file the form.” Fla. Bar. R. 10-2.29(a).
“The nonlawyer may not give legal advice or give advice on reme-
dies or courses of action.” Id.
II
We review whether a judge is entitled to absolute judicial
immunity de novo. See Stevens v. Osuna, 877 F.3d 1293, 1301 (11th
Cir. 2017). Judicial immunity extends to state court judges, and
“applies even when the judge’s conduct was in error, was done ma-
liciously, or was in excess of [her] authority.” Id. A judge will only
be deprived of immunity when she acts in the “clear absence of all
jurisdiction.” Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000).
Judicial immunity does not generally bar injunctive relief, but such
relief will not be granted unless “a declaratory decree was violated,
or declaratory relief was unavailable.” See 42 U.S.C. § 1983; Pulliam
v. Allen, 466 U.S. 522, 541–42 (1984).
Whether a judge’s actions were made in her official capacity,
and within the bounds of her jurisdiction, depends on whether
“(1) the act complained of constituted a normal judicial function;
(2) the events occurred in the judge’s chambers or in open court;
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24-10195 Opinion of the Court 5
(3) the controversy involved a case pending before the judge;
and (4) the confrontation arose immediately out of a visit to the
judge in [her] judicial capacity.” Sibley v. Lando, 437 F.3d 1067, 1070
(11th Cir. 2005).
Here, the district court did not err in dismissing the
Cichowskis’ claims against Judge Totten with prejudice. Based on
the allegations of the amended complaint, she acted within the
bounds of her jurisdiction when she ensured that the Cichowskis
complied with the Florida Bar’s rules on the unauthorized practice
of law. See Stevens, 877 F.3d at 1301; Bolin, 225 F.3d at 1239. First,
Judge Totten’s actions were taken in her official judicial capacity.
See Sibley, 437 F.3d at 1070. Second, given that Judge Totten’s ac-
tions concerned a small claims matter pending before her, she did
not act in the absence of all jurisdiction. See Bolin, 225 F.3d at 1239.
As we have explained, “[j]udges have an obligation to maintain
control over the courthouse and over the conduct of persons in the
courthouse[.]” Stevens, 877 F.3d at 1305. A judge’s enforcement of
applicable rules in a pending case is a quintessential judicial act.
Third, insofar as the Cichowskis sought any injunctive relief against
Judge Totten under § 1983, they did not allege that a declaratory
decree was violated, or that declaratory relief was unavailable. See
Pulliam, 466 U.S. at 541–42; 42 U.S.C. § 1983.
III
We review a district court’s dismissal on Eleventh Amend-
ment grounds de novo. See In re Emp. Discrimination Litig. Against
State of Ala., 198 F.3d 1305, 1310 (11th Cir. 1999). Eleventh
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6 Opinion of the Court 24-10195
Amendment immunity extends to the Florida Bar because it is an
official arm of the Florida Supreme Court, and therefore, an arm of
the state itself. See Kaimowitz v. Fla. Bar, 996 F.2d 1151, 1155 (11th
Cir. 1993). There are, however, several exceptions to Eleventh
Amendment immunity, and we discuss them below.
First, a state can consent to suit in federal court. See
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984).
But Florida has not waived its sovereign immunity with regard to
§ 1983 actions. See Gamble v. Fla. Dep’t of Health & Rehab. Servs., 779
F.2d 1509, 1520 (11th Cir. 1986).
Second, Eleventh Amendment immunity can be abrogated
by a clear congressional statement in certain statutes. See Kimel v.
Fla. Bd. of Regents, 528 U.S. 62, 73 (2000). Congress, however, has
not abrogated the states’ Eleventh Amendment immunity from
§ 1983 suits. See Williams v. Bd. of Regents of Univ. Sys. Of Ga., 477
F.3d 1282, 1301 (11th Cir. 2007).
Third, Title II of the ADA does abrogate Eleventh Amend-
ment immunity for damages actions against states for conduct that
“actually violates the Fourteenth Amendment[.]” United States v.
Georgia, 546 U.S. 151, 153–54, 159 (2006) (citing 42 U.S.C. §§ 12131–
22) (emphasis omitted). The only allegations in the amended com-
plaint about the ADA, however, are that Stanley “is dyslexic and
often needs help with reading” and that the county court failed to
provide him a reasonable accommodation (i.e., did not allow Kevin
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24-10195 Opinion of the Court 7
to help him present his case). See Amended Complaint, D.E. 28 at
¶ 49.4
The problem for the Cichowskis is that rules barring the un-
authorized practice of law have been upheld when challenged un-
der the Fourteenth Amendment. See Wright v. Lane Cty. Dist. Ct.,
647 F.2d 940, 941 (9th Cir. 1981); Monroe v. Horwitch, 820 F.Supp.
682, 686–87 (D. Conn. 1993). Although these cases did not involve
disabled individuals, we are aware of no authorities to the contrary.
On the facts alleged, the amended complaint does not state a claim
for a constitutional violation.
Fourth, “[t]he [Ex parte] Young doctrine permits federal
courts to entertain suits against state officers seeking prospective
equitable relief to end continuing violations of federal law.”
McClendon v. Ga. Dept. of Cmty. Health, 261 F.3d 1252, 1256 (11th
Cir. 2001) (referencing Ex Parte Young, 209 U.S. 123 (1908)) (empha-
sis omitted). However, this third exception applies only to prospec-
tive relief against state officers. See Puerto Rico Aqueduct & Sewer
Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993). It “does
not permit judgments against state officers declaring that they vio-
lated federal law in the past, . . . and has no application in suits
4 The Cichowskis’ brief contains additional factual allegations, e.g., that Stan-
ley has social anxiety disorder, that Kevin is also dyslexic, and that Florida is
denying access to judicial services to those who suffer from dyslexia and social
anxiety disorder. We do not consider these allegations. “[F]acts contained in
a motion or brief cannot substitute for missing allegations in the complaint.”
EEOC v. Catastrophe Management Solutions, 852 F.3d 1018, 1030 n.5 (11th Cir.
2016) (citation and internal quotation marks omitted).
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8 Opinion of the Court 24-10195
against the [s]tates and their agencies, which are barred regardless
of the relief sought.” Id. So this exception does not save the claims
against the Florida Bar.
IV
In closing, we recognize that district courts are sometimes
required to give pro se litigants additional leeway to amend their
pleadings before dismissing with prejudice. See Woldeab v. Dekalb
Cty. Bd. Of Educ., 885 F.3d 1289, 1291 (11th Cir. 2018). Neverthe-
less, district courts can dismiss with prejudice when amendment
would be futile. See Hall v. United Ins. Co. of Am., 367 F.3d 1255,
1262–63 (11th Cir. 2004). Here the Cichowskis do not seek leave
to amend. Nor do they say what additional factual allegations they
could include in a second amended complaint that would allow
them to avoid judicial immunity for Judge Totten and Eleventh
Amendment immunity for the Florida Bar.
The district court’s order of dismissal is affirmed.
AFFIRMED.
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