Thursday, August 31, 2017

Eleventh Circuit Court of Appeals in Atlanta reverses dismissal of a federal lawsuit over my unlawful 2013-14 arrest and incarceration in Shelby County, AL

Liberty Duke
Dismissal of a federal lawsuit over my 2013-14 arrest and incarceration in Shelby County, AL, has been reversed on appeal.

The U.S. Eleventh Circuit Court of Appeals, in a "Do Not Publish" opinion dated August 23, 2017, overturned the dismissal by District Judge R. David Proctor in the Northern District of Alabama. The Eleventh Circuit, based in Atlanta, covers Alabama, Georgia, and Florida. The case is styled Roger Shuler, et al v. Liberty Duke, et al. (The opinion can be viewed at the link above and is embedded at the end of this post.)

We have referred to this as "The Jail Case," to distinguish it from "The House Case" (involving a wrongful foreclosure on our home of 25 years in Birmingham). An appeal on "The House Case" is pending in the Eleventh Circuit.

Our complaint in "The Jail Case" was filed on March 26, 2016, and the court issued its final dismissal order on September 14, 2016. We timely filed a notice of appeal, and the case had been sitting in the Eleventh Circuit for almost a year. Courts can be slow, but that is a ridiculously long time for an appeal that involved a clear and simple issue -- in a case that hasn't really gotten started yet. I happened to check the Eleventh Circuit Web site late Tuesday night and was shocked to see an opinion finally had been issued. I was even more shocked when I read the two-page ruling and realized the court had found in our favor.

Under the law, that's the only ruling the court could make. But we've had similarly clear-cut rulings go against us before, so I was braced for the worst. In fact, I hardly knew how to react to a federal-court victory -- even a small one. It's the first time in our 17-year legal sojourn that a federal court has gotten the facts and law correct, ruling in our favor.

Defendants in "The Jail Case" include Homewood attorney Rob Riley (son of former Gov. Bob Riley) and members of his Riley Jackson law firm; lobbyist Liberty Duke and her attorney, Christina Crow; former Shelby County Sheriff Chris Curry and three of his deputies, including Chris Blevins, the officer/thug who entered our home without a warrant, beat me up, and doused me with pepper spray; federal judge Bill Pryor; businessman Ted Rollins (and Campus Crest Communities), his stepmother Michele Rollins (and Rollins Jamaica), his former stepson Zac Parrish (and McMichael and Parrish Homes); and Google.

Rob and Bob Riley
Proctor, a protege of Trump Attorney General Jeff Sessions, dismissed the case for "failure to prosecute," claiming my wife, Carol, and I failed to serve defendants in a timely matter. The court, however, had granted us in forma pauperis (IFP) status, and federal law is clear that the court is responsible for completing service for IFP litigants.

In his dismissal order, Proctor claimed we were granted only "partial IFP" status and were not entitled to have the clerk's office in Birmingham's Hugo Black Courthouse effectuate service. We argued there is no such thing as "partial IFP" status under the law, and in so many words, the Eleventh Circuit agreed with us. From the opinion:

We review a district court’s sua sponte dismissal for failure to effect service under Fed. R. Civ. P. 4(m) for an abuse of discretion. Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010) (per curiam). “We affirm unless we find that the district court has made a clear error of judgment, or has applied the wrong legal standard.” Id. (internal quotation marks omitted).

Without addressing the merits of the appeal, we reverse the district court’s dismissal because it should have effectuated service for the Shulers, who had IFP status. Under Fed. R. Civ. P. 4(c)(3), the district court must order that service be made by either a United States marshal, a deputy marshal, or by any person specially appointed by the court when the litigant is proceeding under IFP status.


I was starting to think I might never live to read such words from a federal court -- words that nailed it on the facts and law, words that found in our favor. I keep rereading the opinion to make sure it's true.

How simple are the issues at this point in the proceedings? We spelled that out in the primary section of our appellate brief:

The district court has granted the Shulers in forma pauperis (IFP) status in two pending cases – the instant case and a related case styled Shuler, et al v. Garrison et. al (Case no. 2:16-CV- 695-VEH). The court in Garrison, without interference from a judge (it was under a different judge from Proctor at the time), issued summonses and executed service for the Shulers, as required under statutory and case law. Garrison, which was filed after the instant case, has moved along at a normal pace. But Proctor, in the instant case (Duke), unlawfully interfered and prevented court-conducted service, meaning Duke has been stuck in limbo, with no service on defendants.

This is not just a matter of Proctor getting the law wrong in Duke – although he clearly has. It’s also a matter of gross inconsistency. The Northern District of Alabama has followed the law regarding court-conducted service for IFP parties in one case, while ignoring it in another. . . .

Here are more on specifics of the relevant law:

The foundational law is found at 28 U.S.C. 1915 (“Proceedings in forma pauperis"), which holds at section (d): “The officers of the court shall issue and serve all process, and perform all duties in such cases. Witnesses shall attend as in other cases, and the same remedies shall be available as are provided by law in other cases.”

FRCP 4 (c)(3) drives the point home further: “By a Marshal or Someone Specially Appointed. At the plaintiff's request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court. The court must so order if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. 1915.

The three-judge panel that issued the reversal included Charles R. Wilson (Clinton appointee), Julie E. Carnes (Obama appointee), Jill A. Pryor (Obama).

Ted Rollins
What does this ruling mean? Well, it's not a sweeping victory on the merits, by any means. It's a procedural ruling that allows "The Jail Case" to finally begin, after being grounded for more than a year.

What happens next? We will address that in an upcoming post. But the main thing is this: The court will issue summonses and complaints to defendants, as required by law, and a case that should have been well under way -- maybe near the finish line -- finally will get rolling.

Many questions lie ahead, but this much is certain: "The Jail Case" lives!

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