United States District Court, M.D. Tennessee, Nashville Division
William L. Campbell, Jr. Judge.
REPORT AND RECOMMENDATION
Alistair E. Newbern United States Magistrate Judge.
Honorable William L. Campbell, Jr., District Judge.
the Court is Defendant Judge J. Mark Rogers's motion to
dismiss Plaintiff Richard Darrell Everingham's pro se
amended petition for a writ of habeas corpus. (Doc. No. 14.)
The referral order in this action authorizes the Magistrate
Judge to recommend disposition of any pretrial motions under
28 U.S.C. § 636(b)(1)(A) and (B). (Doc. No. 7.) For the
reasons that follow, the Magistrate Judge RECOMMENDS that
Rogers's motion to dismiss be GRANTED.
Factual and Procedural Background
action arises out of Plaintiff Everingham's divorce
proceedings in the Circuit Court for Rutherford County,
Tennessee. On June 28, 2018, Everingham filed a petition for
a writ of habeas corpus naming his ex-wife, Kristina Marie
Everingham, as the sole defendant. (Doc. No. 1.) On August
20, 2018, Everingham moved for leave to amend his petition to
remove Ms. Everingham as a defendant and instead name Judge
Rogers, who presided over the couple's divorce
proceedings. (Doc. No. 8.) The Court granted Everingham's
motion to amend on August 21, 2018 (Doc. No. 9), and
Everingham filed an amended petition on August 27, 2018 (Doc.
No. 10). The amended petition alleges that Rogers entered a
divorce decree, child support order, and monetary judgment
against Everingham without providing him a jury trial; that
Rogers refused to recuse himself despite his friendship with
Ms. Everingham's stepfather; that Rogers threatened to
have Everingham arrested for refusing to volunteer evidence
against himself; and that Rogers did have Everingham arrested
on July 13, 2018, for failure to appear and contempt of
court. (Doc. No. 10.) The amended petition does not allege
that Everingham is currently in custody. It appears that the
relief that Everingham seeks is a declaration that
Rogers's orders in the underlying divorce proceedings are
has filed a motion to dismiss the amended petition under
Federal Rule of Civil Procedure 12(b)(1) for lack of
subject-matter jurisdiction or under Rule 12(b)(6) for
failure to state a claim. (Doc. Nos. 14, 15.) Rogers argues
that, because Everingham was not in state custody when he
filed his petition, this Court lacks jurisdiction to consider
his claims for habeas relief and that, even if the Court were
to construe Everingham's claims as arising under some
other federal statute, this Court still lacks subject-matter
jurisdiction under the Rooker-Feldman doctrine.
(Id.) In the alternative, Rogers argues that
judicial immunity protects him against any of
Everingham's claims that could be construed to seek
monetary damages; that the Eleventh Amendment bars any claims
against him in his official capacity; that Everingham's
claims are barred by the applicable statutes of limitation;
and that Everingham has failed to state a claim of any
constitutional violations. (Id.) Everingham opposes
the motion. (Doc. No. 16.)
a court has subject-matter jurisdiction is a “threshold
determination” in any action. Am. Telecom Co. v.
Republic of Lebanon, 501 F.3d 534, 537 (6th Cir. 2007).
This reflects the fundamental principle that
“[j]urisdiction is power to declare the law, and when
it ceases to exist, the only function remaining to the court
is that of announcing the fact and dismissing the
cause.” Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 94 (1998) (quoting Ex parte
McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)); see
Wayside Church v. Van Buren Cty., 847 F.3d 812, 816 (6th
Cir. 2017) (explaining that courts “are ‘bound to
consider [a] 12(b)(1) motion first, since [a] Rule 12(b)(6)
challenge becomes moot if th[e] court lacks subject matter
jurisdiction” (quoting Moir v. Greater Cleveland
Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir.
party asserting jurisdiction bears the burden of establishing
that subject-matter jurisdiction exists. Ammons v. Ally
Fin., Inc., 305 F.Supp.3d 818, 820 (M.D. Tenn. 2018). A
motion to dismiss under Rule 12(b)(1) for lack of
subject-matter jurisdiction “may either attack the
claim of jurisdiction on its face or it can attack the
factual basis of jurisdiction.” Golden v. Gorno
Bros., Inc., 410 F.3d 879, 881 (6th Cir. 2005). A facial
attack challenges the sufficiency of the pleading and, like a
motion under Rule 12(b)(6), requires the Court to take all
facts alleged in the pleading as true. Wayside
Church, 847 F.3d at 816-17 (quoting Gentek Bldg.
Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330
(6th Cir. 2007)). A factual attack challenges the allegations
supporting jurisdiction, raising “a factual controversy
requiring the district court to ‘weigh the conflicting
evidence to arrive at the factual predicate that
subject-matter does or does not exist.” Id. at
817 (quoting Gentek Bldg. Prods., Inc., 491 F.3d at
330). District courts reviewing factual attacks have
“wide discretion to allow affidavits, documents and
even a limited evidentiary hearing to resolve disputed
jurisdictional facts.” Ohio Nat'l Life Ins. Co.
v. United States, 922 F.3d 320, 325 (6th Cir. 1990).
Rogers argues that the Court lacks subject-matter
jurisdiction because Everingham was not in state custody when
he filed his habeas petition-which implicates factual
questions- and because the Rooker-Feldman doctrine
bars Everingham's claims for injuries stemming from
Rogers's final orders in Everingham's divorce
proceedings-which implicates only the allegations in
Everingham's petition. See Reguli v. Guffee, 371
Fed.Appx. 590, 595 (6th Cir. 2010) (treating
Rooker-Feldman argument as a facial attack on
subject-matter jurisdiction). Because this Court lacks
jurisdiction to hear Everingham's claims, it need not
address Rogers's remaining arguments for dismissal.
statute, federal courts may consider “an application
for a writ of habeas corpus [o]n behalf of a person in
custody pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the Constitution
or law or treaties of the United States.” 28 U.S.C.
§ 2254(a). “This language is jurisdictional: if a
petitioner is not ‘in custody' when [he or] she
files [the] petition, courts may not consider it.”
Hautzenroeder v. Dewine, 887 F.3d 737, 740 (6th Cir.
2018) (citing Steverson v. Summers, 258 F.3d 520,
522 (6th Cir. 2001)); Maleng v. Cook, 490 U.S. 488,
490 (1989) (“The federal habeas statute gives the
United States district courts jurisdiction to entertain
petitions for ...