[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 10-11979 JUNE 16, 2011 JOHN LEY Non-Argument Calendar CLERK ________________________
D.C. Docket No. 1:09-cv-01013-WSD
DEAN MARK GOTTSCHALK,
lllllllllllllllllllll Plaintiff-Appellant,
versus
KAREN ANN GOTTSCHALK, BARBARA MARIE LASSITER, HON. S. LARK INGRAM, et al.,
lllllllllllllllllllll Defendants-Appellees,
CASEY CAGLE, et al., llllllllll lllllllllll Defendants.
________________________
Appeal from the United States District Court for the Northern District of Georgia
(June 16, 2011) Before EDMONDSON, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Dean Gottschalk appeals the district court’s dismissal of his pro se civil
rights complaint, which was brought pursuant to 42 U.S.C §§ 1983 and 1985 and
Georgia state law. On appeal, Gottschalk argues that the district court erred in
concluding that he was not entitled to injunctive relief because he had an adequate
remedy at law. He also challenges the district court’s conclusion that certain of
his claims were barred by the Rooker-Feldman1 doctrine. In addition, he asserts
that the district court erred in concluding that he had failed to state a claim under
§ 1983 against the private defendants. He contends that his amended complaint
included sufficient factual allegations to show that the private defendants
conspired with state actors to violate his constitutional rights. For the reasons
stated below, we affirm.2
1 Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). 2 Gottschalk also contends that the district court abused its discretion by striking his response to the Woods defendants’ motion for judgment on the pleadings. We conclude that the district court did not abuse its discretion by striking Gottschalk’s response because the response was untimely and Gottschalk had not moved for an extension of time to file it. Moreover, any error in striking the response was harmless because the district court reviewed Gottschalk’s arguments and concluded that they would not have affected the outcome of the case.
2 I.
In 2009, Gottschalk filed a pro se amended complaint raising a total of 13
claims. Gottschalk named 38 individuals and entities as defendants, including:
(1) his ex-wife, Karen Gottschalk; (2) Barbara Lassiter, an attorney; (3) the
Honorable C. LaTain Kell, a judge of the Superior Court of Cobb County,
Georgia; (4) the Honorable S. Lark Ingram, Chief Judge of the Cobb County
Superior Court; (5) Diane Woods, an attorney, and her law firm, Huff, Woods &
Hamby (“Woods defendants”); (6) Michael Manely, an attorney, and the Manely
Firm, PC; (7) Cobb County, Georgia, and the members of the Cobb County Board
of Commissioners; (8) Sonny Perdue, the Governor of the State of Georgia; (9)
Thurbert Baker, the Attorney General of the State of Georgia; (10) the members of
the Georgia State Board of Examiners of Psychologists; (11) the members of the
Georgia Composite Board of Professional Counselors, Social Workers and
Marriage and Family Therapists; (12) Dr. Sheri M. Siegel, a clinical psychologist;
(13) Emmett Fuller, a licensed professional counselor; (14) Dr. Susan Z.
Volentine, a licensed psychologist; (15) Psychological Affiliates, PC, a business
entity that, according to the complaint, employed both Dr. Volentine and Fuller;
and (16) Larry and Ann Bost, Karen Gottschalk’s parents.
3 Gottschalk’s claims were based on the following facts from his complaint.
In 1998, Gottschalk married Karen Gottschalk and the couple had two children
together. The marriage did not last, however, and the couple divorced in March
2005. Karen Gottschalk was unhappy with the result of the divorce proceedings,
so she hired a new attorney, Barbara Lassiter, to represent her.
In April 2006, Karen Gottschalk filed in Cobb County Superior Court a
petition for modification of Gottschalk’s visitation rights with his children The
petition stated that Gottschalk was prone to violence and had been arrested for
aggravated assault for threatening another person with a shotgun during a “road
rage” incident. In fact, Gottschalk had entered a plea, without admitting guilt,
only to the charge of pointing a weapon. Karen Gottschalk also enlisted the help
of her parents, Larry and Ann Bost, who followed Gottschalk and reported his
activities to law enforcement and to the county zoning board.
The complaint alleged that the Cobb County Superior Court utilizes a
“shadow justice” system in child custody cases. The court typically appoints a
guardian ad litem, “usually an old, established one that has been doing it for 20 to
30 years, to ‘evaluate’ the case.” The guardian ad litem’s report becomes the de
facto ruling of the court, and is very difficult for the parties to challenge. The
purpose of this procedure is to dispose of family law cases quickly, without the
4 need for a protracted trial. In Gottschalk’s case, the presiding judge appointed Diane
Woods as a guardian ad litem without a formal request from either side. Woods
had served as a guardian ad litem for more than 20 years and judges routinely
deferred to her assessment. Woods was given complete access to all of
Gottschalk’s medical records, including his mental health records, even though
those records were privileged under Georgia law.
The complaint further alleged that Woods submitted a motion to have
Gottschalk and the children evaluated by a clinical psychologist, Dr. Sheri Siegel.
Woods and Dr. Siegel had a long-standing professional relationship. Prior to
Gottschalk’s evaluation by Dr. Siegel, Karen Gottschalk and Lassiter attempted to
influence Dr. Siegel’s opinion by sending her “at least 25 pounds” of
documentation critical of Gottschalk. Dr. Siegel’s final report concluded that
Gottschalk did not have any level of clinical pathology to support a diagnosis.
Nevertheless, the report contained prejudicial statements about Gottschalk and
suggested that he might have “tendencies toward certain ill-defined conditions.”
At Woods’s request, the superior court restricted the circulation of Dr. Siegel’s
report. The court provided copies of the report to counsel and to Woods, but
specified that any further unauthorized distribution of the report would be
punishable by contempt.
5 As a result of Dr. Siegel’s evaluation, Gottschalk was ordered to undergo
therapy with Fuller, a licensed professional counselor. Fuller shared his clinical
findings with Woods, who then passed that information on to others. Meanwhile,
Karen Gottschalk secretly arranged to have the couple’s children evaluated by Dr.
Volentine, a psychologist. The purpose of the evaluations was to create a false
record suggesting that Gottschalk was a threat to the children. Despite the fact
that she had never evaluated Gottschalk, Dr. Volentine told Woods that Gottschalk
might have a high-functioning form of Asperger’s Disorder and suggested that he
be evaluated for that condition. The complaint asserted that Dr. Volentine and
Fuller were both associates of Psychological Affiliates, and they discussed
Gottschalk’s alleged condition in secret.
The complaint asserted that the visitation modification case was set for trial
and assigned to Judge Kell. On the morning of the second day of trial, Woods
announced in chambers that she had just received information that triggered her
obligation to make a mandatory report to the Department of Family and Children’s
Services. Gottschalk’s counsel objected that Woods’s statement was unfairly
prejudicial, but Judge Kell declined to order a mistrial, and did not allow
Gottschalk to question Woods concerning her declaration.
6 During the trial, Gottschalk called Dr. Monty Weinstein as an expert
witness. When Gottschalk’s counsel began to question Dr. Weinstein concerning
problems with the Siegel Report, Judge Kell became angry, and accused
Gottschalk and his counsel of illegally distributing the report to Dr. Weinstein.
The judge threatened to hold Gottschalk’s counsel in contempt. Judge Kell
searched Dr. Weinstein’s bag and seized certain reports, including a report
concerning a test that Dr. Weinstein had administered to Gottschalk.
The complaint alleged that Judge Kell ultimately entered a final order that:
(1) required Gottschalk to attend counseling with a psychologist selected by
Woods; (2) allowed Woods to talk freely about Gottschalk with the psychologist,
in violation of the patient/therapist privilege; (3) imposed supervision on
Gottschalk’s visits with his children, at Gottschalk’s own expense, until such time
as Woods was satisfied with his progress; and (4) imposed other restrictions on
Gottschalk’s association with his children. Gottschalk asserted that Judge Kell
had essentially delegated his decision making authority to Woods.
Gottschalk raised 13 causes of action in his federal complaint, including
claims under 42 U.S.C. §§ 1983 and 1985 and Georgia state law. He requested
both monetary damages and injunctive relief. Gottschalk also sought a declaratory
7 judgment that the Georgia statute providing for modification of a parent’s
visitation rights, O.C.G.A. § 19-9-3(b), was unconstitutional.
On September 10, 2009, the district court entered an order dismissing some
of Gottschalk’s claims. First, the court dismissed Gottschalk’s § 1983 claims
against Dr. Volentine, Lassiter, Larry Bost, Ann Bost, and Karen Gottschalk
because the amended complaint failed to allege that any of those defendants had
acted under color of state law or had conspired with a state actor to violate
Gottschalk’s constitutional rights. The court allowed Gottschalk’s state-law
claims against those defendants to proceed. The court also dismissed Gottschalk’s
claims against Manely, the Manely Firm, and the Cobb County Board of
Commissioners.
The district court later entered a second order that dismissed all of
Gottschalk’s remaining claims. The court first addressed Gottschalk’s claims
against the state defendants. To the extent that Gottschalk was suing Judge Kell in
his individual capacity, the court concluded that Judge Kell was entitled to judicial
immunity. To the extent that Gottschalk was asserting claims against Judge Kell
in his official capacity, the court observed that his request for monetary damages
was barred by the Eleventh Amendment. The court also determined that
Gottschalk was not entitled to injunctive relief against Judge Kell because
8 Gottschalk had an adequate remedy at law. Specifically, the court observed that
Gottschalk had filed an appeal in state court and was contesting Judge Kell’s order
in that proceeding.
Next, to the extent that Gottschalk was challenging the orders entered by
Judge Kell, the district court concluded that his clams were barred by the
Rooker-Feldman doctrine. The court pointed out that Gottschalk could have
raised his constitutional claims in the state court proceeding and that those issues
were inextricably intertwined with the state court judgment. The court further
explained that Gottschalk’s constitutional challenge to O.C.G.A. § 19-9-3(b) was
barred by the Rooker-Feldman doctrine because he essentially was challenging the
manner in which the visitation modification proceeding was conducted, the
substance of the state court’s order, and his continuing obligation to comply with
that order.
The district court also dismissed Gottschalk’s § 1983 claims against Dr.
Siegel, Dr. Volentine, Fuller, Psychological Affiliates, and Woods. The court
concluded that none of those defendants were state actors. In addition, the court
concluded that the amended complaint did not state a conspiracy claim against
those defendants under § 1983 because it did not include any allegations showing
that they had entered into an agreement with a state actor to violate Gottschalk’s
9 constitutional rights. The district court additionally concluded that Gottschalk had
failed to state a claim for relief against Governor Perdue, Attorney General Baker,
Chief Judge Ingram, the Georgia State Board of Examiners of Psychologists and
the Georgia Composite Board of Professional Counselors. In light of the fact that
all of Gottschalk’s federal claims had been dismissed, the district court declined to
exercise supplemental jurisdiction over his state law claims, and dismissed those
claims without prejudice.
II.
A district court’s denial of injunctive relief is reviewed for an abuse of
discretion. Common Cause/Georgia v. Billups, 554 F.3d 1340, 1349 (11th Cir.
2009). To establish that an injunction is needed, a plaintiff must show that:
(1) there was a legal violation; (2) there is a serious risk of continuing irreparable
injury if an injunction is not granted; and (3) there are no adequate remedies at
law. Bolin v. Story, 225 F.3d 1234, 1242 (11th Cir. 2000). We have explained
that a plaintiff has adequate remedies at law if he is able to file an appeal or seek
an extraordinary writ. Id. at 1242-43.
In this case, Gottschalk was not entitled to injunctive relief because he had
an adequate remedy at law—namely, he could appeal the superior court’s order to
the Georgia Court of Appeals. The fact that his case was tried before a judge
10 rather than a jury, and the fact that the superior court applied a low burden of
proof, do not make the appeal process an ineffective remedy. In addition, the
delays in the appellate process, and the fact that the superior court did not stay its
order pending the Court of Appeals’s decision, do not mean that he will be unable
to obtain relief on appeal. Once Gottschalk’s appeal is heard, the Georgia Court of
Appeals will have the power to consider his constitutional claims and to set aside
the state court’s order if it concludes that his constitutional rights have been
violated. Because Gottschalk had an adequate remedy at law, the district court did
not abuse its discretion in denying his request for injunctive relief. See Bolin, 225
F.3d at 1242-43; Common Cause/Georgia, 554 F.3d at 1349.
III.
We review de novo a district court’s conclusion that the Rooker-Feldman
doctrine deprives it of subject matter jurisdiction over a case. Nicholson v. Shafe,
558 F.3d 1266, 1270 (11th Cir. 2009). The Rooker-Feldman doctrine is a
jurisdictional rule that precludes lower federal courts from reviewing state court
judgments. Id. The Supreme Court has explained that the Rooker-Feldman
doctrine applies to “cases brought by state-court losers complaining of injuries
caused by state-court judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of those judgments.”
11 Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284, 125 S.Ct.
1517, 1521-22, 161 L.Ed.2d 454 (2005). We have held that the Rooker-Feldman
doctrine does not apply if the plaintiff’s state-court appeal was still pending at the
time when the plaintiff filed his complaint in federal court. Id. at 1279.
Here, Gottschalk’s state court appeal was still pending at the time when he
filed his federal complaint. Therefore, the district court erred in concluding that
his claim for injunctive relief against Judge Kell, and his claim that O.C.G.A.
§ 19-9-3(b) was unconstitutional, were barred by the Rooker-Feldman doctrine.
See Nicholson, 558 F.3d at 1279. Nevertheless, we may affirm the district court
on any ground supported by the record. Green v. Jefferson County Com’n, 563
F.3d 1243, 1245 n.3 (11th Cir. 2009). As described above, the district court
properly denied Gottschalk’s request for an injunction against Judge Kell’s order
because Gottschalk had an adequate remedy at law, so we affirm the dismissal of
that claim.
In addition, Gottschalk’s constitutional challenge to O.C.G.A. § 19-9-3(b)
failed to state a claim upon which relief could be granted. His argument was that
O.C.G.A. § 19-9-3(b) violates substantive due process because it permits a
superior court to modify visitation rights even if there has been no material change
in conditions. Gottschalk is correct that the due process clause of the Fourteenth
12 Amendment protects a parent’s fundamental right to participate in the care,
custody, and management of their children. See, e.g., Lassiter v. Dep’t of Soc.
Servs., 452 U.S. 18, 27, 101 S.Ct. 2153, 2159-60, 68 L.Ed.2d 640 (1981); Troxel
v. Granville, 530 U.S. 57, 65-66, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000).
Nevertheless, the Supreme Court has also recognized that the law of domestic
relations has traditionally been left to the states. Cf. Elk Grove Unified School
Dist. v. Newdow, 542 U.S. 1, 12-13, 124 S.Ct. 2301, 2309, 159 L.Ed.2d 98 (2004).
Neither the Supreme Court nor this Court has held that a state must impose a
specific standard of proof for modification of visitation rights. Accordingly, we
conclude that Gottschalk’s complaint failed to show that O.C.G.A. § 19-9-3
violates substantive due process.
IV.
We review a dismissal of a complaint under Fed.R.Civ.P. 12(b)(6) de novo,
accepting the factual allegations in the complaint as true, and viewing them in the
light most favorable to the plaintiff. Speaker v. U.S. Dep’t of Health and Human
Services Centers for Disease Control and Prevention, 623 F.3d 1371, 1379 (11th
Cir. 2010). To survive a motion to dismiss, a complaint must “state a claim for
relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). “A claim has facial
13 plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. ___, ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868
(2009). The complaint need not include detailed factual allegations, but it must set
forth “more than labels and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-
1965.
In order to state a claim under § 1983, the plaintiff must show “(1) a
violation of a constitutional right, and (2) that the alleged violation was committed
by a person acting under color of state law.” Holmes v. Crosby, 418 F.3d 1256,
1258 (11th Cir. 2005). A private individual acts under color of state law for
purposes of § 1983 when he conspires with state actors to violate the plaintiff’s
constitutional rights. Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1283 (11th
Cir. 2002). To establish a prima facie case of conspiracy under § 1983, the
plaintiff must show that the defendants reached an understanding to violate his
constitutional rights. Id. The plaintiff need not produce a “smoking gun,” but he
must provide “some evidence of agreement between the defendants.” Id. at 1283-84.
The existence of a § 1983 conspiracy can be inferred from the defendants’ actions.
See Burrell v. Board of Trustees of Ga. Military College, 970 F.2d 785, 788-89
14 (11th Cir. 1992) (explaining that a plaintiff may establish a prima facie case of
conspiracy under § 1983 by relying on circumstantial evidence).
In determining whether a § 1983 conspiracy exists, a court cannot consider
any acts for which the defendants had absolute immunity. In Mastroianni v.
Bowers, 173 F.3d 1363 (11th Cir. 1999), the plaintiff sought to use a witness’s
grand jury testimony, for which the witness had absolute immunity, as proof that
the witness had entered into a pre-testimonial conspiracy to present false evidence.
Id. at 1367. We held that the witness’s testimony could not be used as a basis for
imposing civil liability, even if it was only being used to show the existence of a
pre-testimonial conspiracy for which the witness did not have immunity. Id.
Similarly, in Rowe, we held that a prosecutor’s actions during trial, for which he
had absolute immunity, could not be used to prove that the prosecutor entered into
a pre-trial conspiracy to violate the defendant’s constitutional rights. Rowe, 279
F.3d at 1282.
In this case, Gottschalk does not challenge the district court’s conclusion
that the various private defendants, when considered individually, were not state
actors for purposes of § 1983. Instead, he argues that the private defendants acted
under color of state law because they conspired with state actors to violate his
constitutional rights. Gottschalk is correct that a conspiratorial agreement can be
15 inferred from the actions of the individuals who are parties to the conspiracy. See
Burrell, 972 F.2d at 788-89. Here, however, the factual allegations in
Gottschalk’s complaint did not establish that the private defendants were acting in
concert. The fact that Lassiter, Karen Gottschalk, the Bosts, Dr. Siegel, Dr.
Volentine, and Fuller all took certain actions that were adverse to Gottschalk does
not, in and of itself, show that their actions were part of a common scheme or plan.
Accordingly, Gottschalk’s complaint failed to allege that the defendants entered
into an agreement to violate his constitutional rights. See Rowe, 279 F.3d at
1283-84.
Even if the complaint had established some level of agreement between the
private defendants, it did not show that a state actor was a party to the conspiracy.
The only state official whom Gottschalk directly connected to the constitutional
violations was Judge Kell. All of the factual allegations against Judge Kell related
to his actions during trial and his rulings in the case. Those allegations attempt to
show that Judge Kell acted unreasonably and unfairly, but they do not establish
that he had reached a prior agreement with the private defendants to deprive
Gottschalk of his right to procedural and substantive due process. See Rowe, 279
F.3d at 1283-84.
16 Moreover, Judge Kell’s rulings in the case cannot even be considered in
determining whether he had entered into a § 1983 conspiracy because he had
absolute judicial immunity for those actions. See Mastroianni, 173 F.3d at 1367;
Rowe, 279 F.3d at 1282. Although Mastroiani and Rowe involved witness
immunity and prosecutorial immunity, the reasoning of those decisions applies
with equal force in the context of judicial immunity. Because Gottschalk’s
complaint did not set forth “some evidence of agreement” between Judge Kell and
the private defendants, the district court correctly concluded that Gottschalk had
failed to state a § 1983 conspiracy claim. Rowe, 279 F.3d at 1283-84.
Accordingly, after review of the record and the parties briefs, we affirm.
AFFIRMED.