|Judge R. David Proctor (center), with family members who|
have benefited from ties to corrupt Trump AG Jeff Sessions
We will focus, in this post, on the third act because it provides as clear-cut an example as you will ever see of a judge simply refusing to follow black-letter law. We've written about a lot of judicial cheat jobs, but this is one of the most brazen we've seen -- in a case involving my wife, Carol, and me, or in a case involving other parties.
That Proctor would prove to be a crooked, dishonest sack of feces should surprise no one. He and his family have benefited to stunning degrees from their ties to former U.S. Sen. Jeff Sessions (R-AL). While in private practice, Proctor helped Sessions (perhaps the best-known racist in American public life) get a black judge removed from a case in which he, as Alabama's attorney general, was a defendant. One of Proctor's sons, Jake, has worked for Sessions -- and now works for Sessions' Senate replacement, the abominable Luther Strange. Proctor's other son, Luke, attended the U.S. Military Academy at West Point, almost certainly with the assistance and recommendation of . . . Jeff Sessions.
On top of that, the Proctors are members of Briarwood Presbyterian Church (PCA), Birmingham's nutty right-wing congregation that thinks it needs its own police department. In fact, the church is trying to cover up for future drug busts at Briarwood Christian School, like the one that made it into the news in 2015 and prompted the move for a police force. Briarwood is built on a history of racism and homophobia, as superbly reported last week by Michael Harriot at theroot.com.
Sessions, of course, now is Trump Attorney General and faces a criminal complaint alleging perjury, false statements, and obstruction of justice related to false testimony in his confirmation hearing about meetings with a Russian ambassador.
Proctor's handling ("butchering" would be a better word) of our "House Case" shows that he is a cheat and a con man of Sessionsian proportions. We've already shown that Proctor cheated us at the beginning of his memorandum opinion by holding us to a heightened pleading standard that no longer exists in the Eleventh Circuit. (Proctor's opinion and our Rule 59 response to it are embedded at the end of this post.)
That infected the entire case, causing it to be improperly reviewed on every point of law and wrongfully granting defendants' Motions to Dismiss -- and that, if upheld on appeal, means they won't have to face discovery that likely would unearth deep and widespread misconduct.
Proctor's cheat job, however, did not end there. How outrageous can a compromised federal judge get when he is strongly motivated to cheat a party? In this case, Proctor had ample motivation because at least four defendants -- Jessica Medeiros Garrison, Rob Riley, Cliff Sims, and Yellowhammer News -- have documented ties, like Proctor, to Jeff Sessions.
Let's jump ahead to the end of the opinion, where Proctor dispenses with any notion that he might be an objective arbiter. By this point, Proctor has already ruled that our complaint failed to state a plausible claim for wrongful foreclosure, constitutional violations, defamation, and more. (Never mind that the "plausible" hurdle is from the heightened pleading standard that no longer exists in the Eleventh Circuit -- and Proctor even cites the case, Randall v. Scott, 610 F. 3d 701 (11th Cir., 2010), that send the heightened pleading standards of Bell Atlantic v. Twombly to the exits.)
If Proctor had followed the proper standard of review, an amended complaint would not be needed in our case. But if our complaint is dismissed for any reason, lawful or otherwise, we are entitled, under the law, to file an amended complaint. Proctor, however, is determined to keep that from happening -- and he resorts to blatant falsehoods to do it. From his memorandum opinion:
“Where a more carefully drafted complaint might state a claim, a plaintiff must be given at least one chance to amend the complaint before the district judge dismisses the action with prejudice.” Cornelius v. Bank of Am., NA, 585 F. App'x 996, 1000 (11th Cir. 2014) (citing Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir.1991)). Here, the court is addressing Plaintiffs’ Amended Complaint. And “[w]hile a pro se litigant generally must be given at least one opportunity to amend his complaint, a district judge need not allow an amendment where amendment would be futile.” Id. (citing Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir.2007) (per curiam)). This case is one of the rare few in which any further amendment of Plaintiffs’ complaint would be futile, and accordingly is due to be dismissed without leave to further amend. See Cockrell v. Sparks, 510 F.3d at 1310 (“Leave to amend a complaint is futile when the complaint as amended would still be properly dismissed or be immediately subject to summary judgment for the defendant.”).
This is a classic example of a compromised judge being duplicitous. Proctor claims, in so many words, that we had already amended our complaint, and thus, were not entitled to a second amendment. He fails to mention that our first amendment was simply to correct a couple of defendant names in the header of the complaint; it had nothing to do with substantive amendment of the complaint. Notice also that Proctor makes a simple conclusory statement that amendment "would be futile," without presenting any grounds to support it. Proctor continues along this deceitful line of thought:
Plaintiffs have already amended their complaint once in this action. Having reviewed the claims made by Plaintiffs, the court finds that any additional attempt to amend the complaint would be futile. Plaintiffs’ Amended Complaint does not fail to state a claim because it is was pled inartfully. To the contrary, Plaintiffs have presented twenty pages of allegations and sought to allege a grand scheme between twenty-nine separate persons and entities. Plaintiffs are notoriously litigious in the Northern District of Alabama. The court mentions this not to because it holds Plaintiffs to a higher pleading standard than any other pro se litigant or to express any prejudice against Plaintiffs. Instead, the court merely notes that Plaintiffs have tried in at least one other case to bring similar claims against a number of the same defendants, arising out of a similarly alleged factual scenario. Ultimately, no matter how many times Plaintiffs’ complaint is amended or re-packaged, it is clear that they are unable to assert a right to relief based on an attempt to change (or condemn as unlawful) the results of state court foreclosure proceedings or other judgments of the state courts. See District of Columbia Court of Appeals, 460 U.S. 462. And having considered the allegedly defamatory articles attached to Defendants’ motions to dismiss, the court determines that amendment of Plaintiffs’ defamation claim would similarly be futile. Finally, the court finds that it would be futile to allow any further amendment of Plaintiffs’ remaining tort claims based on the foreclosure of their former home. Having reviewed the claims alleged by Plaintiffs, the court finds that it would be futile to allow Plaintiffs continued bites at the apple of re-pleading given the nature of the facts they allege and the relief they seek as a result.
Proctor's first sentence here is a lie, and garbage only gets stacked higher as the paragraph moves along. Proctor claims amendment of our wrongful foreclosure and defamation claims would be "futile," but he offers nothing to support that. For the third or fourth time in the case, Proctor displays prejudice by referring to us as "notoriously litigious" (he usually calls us "frequent fliers") and essentially admits that he dismissed the "House Case" based on something in another case, which he does not even identify. He cites no law that shows it is proper to decide one case based on elements from another case.
|Trump communications specialist Cliff Sims|
and wife, Megan, with perjurious AG
On page 44 of its opinion, this court makes the peculiar claim that the Shulers cannot "assert a right to relief based on an attempt to change the results of state-court foreclosure proceedings or other judgments of the state court." To support this, the court cites District of Columbia Court of Appeals v. Feldman, which involves bar admissions rules and nothing else. This is preposterous for a variety of reasons. One, Alabama is a non-judicial foreclosure state, so the Shulers foreclosure claims had nothing to do with state-court proceedings.We go on to make a rather lengthy argument about the Rooker-Feldman doctrine, but here is the key point: Proctor tries to get out of dealing with our wrongful-foreclosure count by claiming it is tied to state-court proceedings. But it wasn't. As we state in the highlighted section above, Alabama is a non-judicial foreclosure state. Our foreclosure involved no lawsuit, no court order, no state-court proceedings of any kind. That means Proctor has jurisdiction to hear the claim in federal court.
Here is an even more blatant example of Proctor trying to cheat us. As already noted, an amended complaint should not be necessary in this case. That's because the 11th Circuit held in Randall v. Scott, 610 F.3d 701, 710 (11th Cir., 2010) as follows: “We conclude that the district court erred in applying a heightened pleading standard to Randall's complaint. After Iqbal it is clear that there is no “heightened pleading standard” as it relates to cases governed by Rule 8(a)(2), including civil rights complaints.”
Ours is a civil-right complaint, and the Rule 8 standard has been in place for decades. The U.S. Supreme Court provided back-up for the Randall holding in Johnson v. City of Shelby, 135 S. Ct. 346 (2014), the nation’s highest court held: “We summarily reverse. Federal pleading rules call for "a short and plain statement of the claim showing that the pleader is entitled to relief, Fed. Rule Civ. Proc. 8(a)(2)."
Our complaint easily meets the "short and plain statement" requirement of Rule 8. If anything, our complaint provides too much detail. But even if one assumes Proctor got it right in his dismissal, he gets it wrong in failing to allow us an amended complaint. Proctor cites Cockrell v. Sparks 510 F. 3d 1307 (11 th Cir., 2007) to support his claim that amendment would be futile. But he conveniently ignores the fact Cockrell involved discovery and summary judgment. It had nothing to do with dismissal, and the requirement that the Shulers be allowed to amend, at the Motion to Dismiss stage.
This is straight from the Cockrell opinion:
“Cockrell filed a complaint asserting, among other state and federal claims, a 42 U.S.C. § 1983 excessive force claim against the Sheriff of Polk County and Deputy Kevin Redden, whom he believed to be the deputy who shoved him, in their official and individual capacities. During discovery, Cockrell realized that Deputy King, not Redden, had shoved him. . . .
“The defendants then moved for summary judgment on various grounds, including that the complaint failed to state a claim against Deputy King because it still alleged that the excessive force had been used by Deputy Redden, not by King. In response, Cockrell moved for leave to amend his complaint. . . . Cockrell's motion to amend was futile, and therefore properly denied, only if King would be entitled to summary judgment on the merits of the claim if the amendment were allowed. Because we conclude below that King would be entitled to summary judgment on the merits, the district court correctly held that Cockrell's motion to amend was futile.”
Cockrell obviously involves consideration of summary judgment, after discovery has been conducted. It has nothing to do with a case like ours, where defendants seek to avoid discovery by filing Motions to Dismiss. But Proctor's buffoonery does not end there.
He refuses to acknowledge that we are pro se plaintiffs, and that gives us an absolute right to file an amended complaint. The Eleventh Circuit has held in Carter v. HSBC Mortgage (11th Cir., 2015): "A pro se plaintiff, however, “must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice,” at least where a more carefully drafted complaint might state a claim. Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991)."
Here is another key holding from the Eleventh Circuit: “As to the second exception, where the issue of futility is close, we err on the side of generosity to the plaintiff." O’Halloran v. First Union Natl Bank of Fla., 350 F.3d 1197, 1206 (11th Cir. 2003).”
David Proctor is a dreadful judge, but he's not stupid. He knows our foreclosure -- and many foreclosures in Alabama, involve no state-court proceedings. And he knows Eleventh Circuit precedent requires him to allow amendment of our complaint. We've caught a federal judge, who took an oath to uphold the law, engaging in skulduggery that likely is designed to protect Jeff Sessions' cronies in our "House Case."
We will have more illustrations of Judge Proctor's "cheating heart" in upcoming posts.
(To be continued)