Case 1:15-cv-00104-CG-N Document 27 Filed 03/11/15 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CARI D. SEARCY,

)
)
Plaintiff,
)
)
v.
)
)
HON. DON DAVIS, individually and in )
his official capacity as Probate Judge )
for Mobile County, Alabama,
)
)
Defendant.
)

Civil Action No.

Case No. 1:15-cv-104-CG-N

AMENDED MOTION TO DISMISS

COMES NOW the defendant, Mobile County Judge of Probate DON DAVIS
(Judge Davis), individually and in his official capacity, and amends his Motion to
Dismiss (Doc. 8) filed February 27, 2015, to seek dismissal of the Complaint and
Motions for Preliminary and Permanent Injunction on the following grounds:
1.

Judge Davis has recused, pursuant to the Alabama Canon of Judicial

Ethics 3(c)(1) from the adoption proceeding in Probate Court made the basis of this
litigation. Further, Judge Davis amended the Order attached as Amended Plaintiffs
Exhibit C, found on Page 26 of Doc. 1-1. These two orders are Exhibits C and B filed
under seal, Document 21.

Case 1:15-cv-00104-CG-N Document 27 Filed 03/11/15 Page 2 of 5

2.

Procedural History:
(a)

Plaintiff filed a Complaint and Request for Preliminary and

Permanent Injunctive Relief on February 24, 2015 (Doc. 1.)

(b)

Judge Davis filed an opposition to plaintiffs request for

preliminary injunction on March 1, 2015 (Doc. 12) and a Motion to Dismiss on

February 27, 2015 (Doc. 8).
(c)

Defendant has also filed a reply brief in support of the Motion to

Dismiss (Doc. 25).

3.

Argument:

For this Amended Motion, Judge Davis further adopts all arguments in Judge
Daviss Motion to Dismiss (Doc. 8), the Brief in support of Judge Daviss Motion to
Dismiss (Doc. 9), and the reply brief in support of Motion to Dismiss (Doc. 25).
Judge Davis also adopts the arguments found in the Motion to Quash (Doc. 11) and
reply in support of it. (Doc. 24).
4.

The recusal order (Exhibit C on Doc. 21) resolves the relief requested

in the plaintiffs requests for relief items (a), (b), (f), (g), and (i). Judge Davis, sued
in both his personal and official capacities, cannot rule on the pending petition for
adoption.
5.

The Amended Order (Exhibit B of Doc. 21) resolves the relief requested

Case 1:15-cv-00104-CG-N Document 27 Filed 03/11/15 Page 3 of 5

in plaintiffs requests for relief (c) and (h).

6.

Plaintiffs requests for relief (d) and (e) are for damages and attorneys

fees. Judge Davis is protected from these claims including by immunity and the
Rooker-Feldman doctrine, as noted in the original Motion to Dismiss and Brief in
support thereof and the reply brief. Judge Davis is protected by absolute judicial
immunity from damages because his actions were taken in his judicial capacity.
Plaintiff does not contend the only exception to this absolute judicial immunity, the
absence of all jurisdiction, is applicable. In fact, the plaintiff herself chose Judge
Daviss jurisdiction, instead of any other probate court in the state. Judge Davis is
also protected by qualified immunity, because he has not violated the plaintiffs
Constitutional rights and because he has acted in accordance with, and to the extent
he has acted, he has not violated clearly established law. Clearly established law can
only be created by the U.S. Supreme Court, the Alabama Supreme Court, or the
Eleventh Circuit. The only court to have spoken on the merits of this issue is the
Alabama Supreme Court in its decisions of March 3, 2015 and March 10, 2015. (The
March 10 ruling is attached as Exhibit A to Document 22, the Supplemental Motion
to Stay.) Judge Davis is entitled to Eleventh Amendment immunity because he is
acting on behalf of a probate court of the State of Alabama in performing a state
function, adoption, not a county function. The plaintiff cannot overcome any of these

Case 1:15-cv-00104-CG-N Document 27 Filed 03/11/15 Page 4 of 5

immunities, regardless of how the plaintiff pleads. Under the Rooker-Feldman

doctrine, this Court lacks jurisdiction over Judge Davis since the plaintiff seeks direct
review of a state court action. Further, under Rooker-Feldman, this Court lacks
jurisdiction since the order the plaintiff dislikes is an interlocutory order. Therefore,
items (d) and (e) in the request for relief are due to be dismissed.
7.

The only requested relief not addressed above is the requested relief: (j)

granting such other, further, and different relief as the Court deems appropriate[.sic]
This relief is too vague for the defendant to respond. Given the above, there is no
alternative or further relief available to the plaintiff against Judge Davis.
WHEREFORE, PREMISES CONSIDERED, defendant Probate Judge DON
DAVIS respectfully moves to dismiss the Complaint and the Motions for Preliminary
and Permanent Injunctions.

s/ Mark S. Boardman
Mark S. Boardman (ASB-8572-B65M)
Clay R. Carr (ASB-5650-C42C)
Teresa B. Petelos (ASB-8716-L66T)
BOARDMAN, CARR, BENNETT, WATKINS,
HILL & GAMBLE, P.C.
400 Boardman Drive
Chelsea, Alabama 35043-8211
Telephone: (205) 678-8000
Facsimile: (205) 678-0000

Case 1:15-cv-00104-CG-N Document 27 Filed 03/11/15 Page 5 of 5

s/ J. Michael Druhan, Jr.

J. Michael Druhan , Jr., Esq.
Harry V. Satterwhite, Esq.
SATTERWHITE, DRUHAN, GAILLAND & TYLER
ATTORNEYS
1325 Dauphin Street
Mobile, Alabama 36604
Telephone: (251) 432-8120
Facsimile: (251) 405-0147

Along with:

Lee L. Hale, Esq.

501 Church Street
Mobile, Alabama 36602
Telephone: 251-433-3671
Facsimile: 251-432-1982

CERTIFICATE OF SERVICE
I do hereby certify that on March 11, 2015, I electronically filed the foregoing
with the Clerk of Court using the CM/ECF electronic filing system which will send
notification of such filing to all Counsel of record. If any of the following are not
registered with the CM/ECF electronic filing system, I certify that a copy will be
served by mailing a copy of the same by United States Mail, properly addressed and
first class postage prepaid, to wit:
David G. Kennedy, Esq.
THE KENNEDY LAW FIRM
P.O. Box 556
Mobile, Alabama 36601

Christine Cassie Hernandez, Esq.

P.O. Box 66174
Mobile, Alabama 36660

s/ Mark S. Boardman
Of Counsel