Beoties Emory, Plaintiff-appellant, v. Clarence Peeler, Individually and in His Official Capacityas Superior Court Judge, Stone Mountain Judicialcircuit, Defendant-appellee, 756 F.2d 1547 (11th Cir. 1985)

This is a suit brought by a juror in a state court murder trial against the judge who presided over the trial. The juror claimed that the judge violated his constitutional rights by singling him out in open court, after the jury returned its verdict, as the only juror to vote against the death penalty and by commenting about the juror to a news reporter in a published interview. The juror sought declaratory relief and money damages against the judge under 42 U.S.C. § 1983 (1982)¹  and the state law of defamation.²  The district court dismissed the suit, concluding that the complaint failed to state a section 1983 claim for relief and that the court lacked subject matter jurisdiction over the state law claim. We agree with the district court's disposition of Emory's section 1983 claim but remand his state law claim for money damages so that the district court can reconsider whether to exercise pendent jurisdiction and decide its merits.

We begin by paraphrasing the facts alleged in the plaintiff's complaint.³  In December 1981, the plaintiff, Beoties Emory, was summoned, qualified, and selected to serve on a twelve-member jury in a murder trial in the Superior Court of DeKalb County, Georgia before the defendant, Judge Clarence L. Peeler, Jr. The jury unanimously found the accused guilty of murder, but it was unable to reach a unanimous decision recommending the imposition of the death penalty.⁴  The jury therefore returned a verdict recommending a sentence of life imprisonment. After the jury's verdict was published in open court, Judge Peeler examined the jurors to determine how they voted. Judge Peeler's inquiry revealed that eleven jurors had voted for the imposition of the death penalty and that one juror, Emory, had held out for a sentence of life imprisonment. Judge Peeler accordingly sentenced the defendant to life imprisonment, as required by Georgia law. After the trial, Judge Peeler had an interview with a wireservice news reporter in which he stated that he had "considered" lodging perjury charges against the hold-out juror for giving false responses to questions put to him during the pretrial voir dire examination of the jury venire. The statement was published in local and national newspapers. Emory was never charged with perjury.

Emory contends that these facts are sufficient to constitute a violation of rights guaranteed him by the first⁵  and ninth amendments,⁶  and protected against state infringement by the fourteenth amendment,⁷  and that Judge Peeler is liable to him under 42 U.S.C. § 1983.⁸  According to Emory, Judge Peeler's conduct interfered with his first and ninth amendment right as a juror to deliberate and to reach a verdict free from "governmental dictation" and intrusion and had a "chilling effect" on his exercise of that right in the future. Put in other words, Emory says he had a constitutional right to keep his jury verdict confidential and that Judge Peeler had no authority to ascertain his verdict by questioning him. Emory also contends that Judge Peeler's actions deprived him, without due process of law, of his constitutionally protected liberty interest in his reputation. With respect to his pendent state law claim, Emory asserts that Judge Peeler's statement to the news reporter was slanderous under Georgia law⁹  and that the judge's conduct, considered as a whole, violated his common law right to serve and deliberate freely on a jury. Emory's complaint seeks a declaration that Judge Peeler violated Emory's rights under the U.S. Constitution and the law of Georgia and a judgment for money damages, an attorney's fee, and costs.

As noted, Emory seeks both money damages and declaratory relief in each of his claims, federal and state. We first dispose of his claims for declaratory relief, holding that he fails to present a case or controversy. As to his claims for money damages, we hold that the doctrine of judicial immunity bars Emory from recovering under 42 U.S.C. § 1983 for Judge Peeler's in-court conduct. Emory's section 1983 claim based on Judge Peeler's out-of-court conduct also fails, as it does not involve the deprivation of a constitutionally protected interest. Whether Judge Peeler's statements to the news reporter transgressed the law of Georgia will be determined in the district court, on remand, or in the state courts.

Emory asks that the district court declare that the statements Judge Peeler made about him were in violation of Emory's constitutional rights and of the laws of Georgia.¹⁰  28 U.S.C. § 2201 (1982), echoing the "case or controversy" requirement of article III of the Constitution, provides that a declaratory judgment may only be issued in the case of an "actual controversy." That is, under the facts alleged, there must be a substantial continuing controversy between parties having adverse legal interests. Lake Carriers' Association v. MacMullan, 406 U.S. 498, 506, 92 S. Ct. 1749, 1755, 32 L. Ed. 2d 257 (1972); Golden v. Zwickler, 394 U.S. 103, 108, 89 S. Ct. 956, 959-60, 22 L. Ed. 2d 113 (1969); Sullivan v. Division of Elections, 718 F.2d 363, 365 (11th Cir. 1983). The plaintiff must allege facts from which the continuation of the dispute may be reasonably inferred. Ciudadanos Unidos de San Juan v. Hidalgo County Grand Jury Commissioners, 622 F.2d 807, 821-22 (5th Cir. 1980), cert. denied, 450 U.S. 946, 101 S. Ct. 1479, 67 L. Ed. 2d 613 (1981).¹¹  Additionally, the continuing controversy may not be conjectural, hypothetical, or contingent; it must be real and immediate, and create a definite, rather than speculative threat of future injury. City of Los Angeles v. Lyons, 461 U.S. 95, 103 S. Ct. 1660, 1666, 75 L. Ed. 2d 675 (1983); Golden v. Zwickler, 394 U.S. at 108, 89 S. Ct. at 959-60; Wolfer v. Thaler, 525 F.2d 977, 979 (5th Cir.), cert. denied, 425 U.S. 975, 96 S. Ct. 2176, 48 L. Ed. 2d 800 (1976). The remote possibility that a future injury may happen is not sufficient to satisfy the "actual controversy" requirement for declaratory judgments. See City of Los Angeles v. Lyons, 461 U.S. at 103, 103 S. Ct. at 1666 (1983).

Emory alleges that he has been injured by Judge Peeler's past conduct, both inside and outside of the courtroom. Emory makes no factual allegation, however, that such conduct has continued or will be repeated in the future. The mere possibility that Emory will once again be summoned, qualified, and selected to sit as a juror in a capital case before Judge Peeler and perhaps subjected to a reenactment of the scenario that occurred in this case is too remote to be labeled a controversy. A declaration that Judge Peeler's past conduct violated Emory's constitutional rights and Georgia law "would [be] nothing more than a gratuitous comment without any force or effect." Northern Virginia Women's Medical Center v. Balch, 617 F.2d 1045, 1049 (4th Cir. 1980).

In sum, Emory's claim for declaratory judgment relief fails to satisfy the threshold "case or controversy" requirement of article III and the "actual controversy" prerequisite of 28 U.S.C. § 2201. Accordingly, the district court was correct in dismissing that claim.¹²  See Golden v. Zwickler, 394 U.S. at 109-110, 89 S. Ct. at 960. Cf. O'Shea v. Littleton, 414 U.S. 488, 493-97, 94 S. Ct. 669, 675-77, 38 L. Ed. 2d 674 (1974).

Emory seeks damages for Judge Peeler's in-court conduct, alleging that Judge Peeler, "in open court, demanded that the plaintiff identify himself as the juror who voted against the imposition of the death penalty." The doctrine of judicial immunity precludes such recovery here.¹³  This doctrine, which is vital to the proper administration of justice, is founded on the notion that a judge must " 'be free to act upon his own convictions, without apprehension of personal consequences to himself.' " Stump v. Sparkman, 435 U.S. 349, 355, 98 S. Ct. 1099, 1104, 55 L. Ed. 2d 331 (1978) (citing Bradley v. Fisher, 13 Wall. 335, 347, 20 L. Ed. 646 (1872)). The salutary objectives of the doctrine are such that federal courts have applied it in civil rights suits against judicial officers to protect them from judgments for money damages. Stump v. Sparkman, 435 U.S. at 356, 98 S. Ct. at 1104; Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967); Harper v. Merckle, 638 F.2d 848, 856 n. 9 (5th Cir.), cert. denied, 454 U.S. 816, 102 S. Ct. 93, 70 L. Ed. 2d 85 (1981). In Stump, the Supreme Court established a two-part test for determining whether a judge enjoys absolute immunity for his conduct. First, was the judge, in performing the acts in question, dealing with the plaintiff in his judicial capacity and were his acts of the sort normally performed by judicial officers?¹⁴  Stump, 435 U.S. at 362, 98 S. Ct. at 1107. If the answer to this question is in the negative, judicial immunity does not lie. If the answer is in the affirmative, the second prong of Stump 's test comes into play: did the judge's conduct fall clearly outside his subject matter jurisdiction? Id. 435 U.S. at 359-64, 98 S. Ct. at 1106-08; Harper v. Merckle, 638 F.2d at 858. If it did, the judge may be held to respond in money damages. As the Supreme Court stated in Stump:

A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the "clear absence of all jurisdiction."

* * *

A judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors.

435 U.S. at 356-59, 98 S. Ct. at 1105-06 (citations omitted).

In the case at hand, there is no dispute that the defendant judicial officer had subject matter jurisdiction over the case which brought him into contact with the plaintiff. The only debatable question is whether the plaintiff's allegations satisfy the first prong of the Stump test. We conclude they do not.

The judicial conduct complained of--the interrogation of a juror about his verdict--took place in a courtroom as a state murder trial was coming to a close. Such interrogation is a function normally performed by trial judges. The juror was "dealing with" Judge Peeler in the judge's official capacity. In short, the judge's conduct was a "judicial act."¹⁵  Judge Peeler therefore cannot be held answerable to Emory in money damages even if his conduct amounted to error.

Emory's final claim for damages is that Judge Peeler's out of court statement to the news reporter, that he considered lodging perjury charges against Emory but decided against it after investigating the matter, deprived him of his constitutionally protected liberty interest in his reputation without due process of law, in violation of the fourteenth amendment. We need not determine whether Judge Peeler's judicial immunity extended to his statement to the reporter because well established precedent bars Emory's 42 U.S.C. § 1983 claim for money damages for such conduct.

To state a claim under section 1983, a plaintiff must allege facts showing that the defendant's act or omission, done under color of state law, deprived him of a right, privilege, or immunity protected by the Constitution or laws of the United States. Dollar v. Haralson County, Ga., 704 F.2d 1540, 1542-43 (11th Cir.), cert. denied, --- U.S. ----, 104 S. Ct. 399, 78 L. Ed. 2d 341 (1983). A naked claim that a state official's action damaged the plaintiff's reputation does not state a deprivation, without due process of law, of a liberty or property interest guaranteed by the Constitution. Paul v. Davis, 424 U.S. 693, 712, 96 S. Ct. 1155, 1166, 47 L. Ed. 2d 405 (1976); Bradford v. Bronner, 665 F.2d 680, 682-83 (5th Cir. Unit B 1982).¹⁶ 

Paul v. Davis, supra, whose facts are analogous to those Emory presents, controls our decision. In Paul, city police distributed to merchants a "flyer" listing "active shoplifters" which included Davis' name and photograph. The police had Davis' name because he had been charged with shoplifting. The charge was dismissed after the flyer came out, and shortly thereafter Davis sued the police under section 1983, alleging that the "active shoplifter" designation had injured his reputation, would seriously impair his future employment opportunities, and would interfere with his ability to do business with local merchants. Id. 424 U.S. at 697, 96 S. Ct. at 1159. The Supreme Court found no constitutional violation. The court held that damage to reputation must be coupled with the denial of a more tangible interest, such as loss of employment, to warrant the fourteenth amendment due process protection delivered by section 1983; reputation, standing alone, is not a liberty interest recognized by the Constitution or federal law. Id. at 700-02, 712, 96 S. Ct. at 1160-61, 1166.

Emory is in virtually the same position as was Davis. He too claims a litany of consequences flowing from the alleged defamation, asserting that Judge Peeler's out of court statement damaged his reputation and caused him humiliation, embarrassment, mental distress, public ridicule, threats, harassment, condemnation by his peers, and pecuniary loss. Consistent with Paul, we hold that Judge Peeler's statement, however seriously it may have harmed Emory's reputation, did not deprive Emory of any liberty interest protected by the Constitution. Paul v. Davis, 424 U.S. at 712, 96 S. Ct. at 1166; accord Marrero v. City of Hialeah, 625 F.2d 499 (5th Cir. 1980), cert. denied, 450 U.S. 913, 101 S. Ct. 1353, 67 L. Ed. 2d 337 (1981) (injury to reputation plus violation of fourth amendment rights and loss of business goodwill protected by state law was sufficient to make out a section 1983 claim for relief); Bradford v. Bronner, 665 F.2d at 682-83 (stigmatization from firing and derogatory comments by government officials were insufficient allegations to sustain a section 1983 action).¹⁷ 

Emory has a judicial forum in which to seek vindication of his injured reputation and relief for any damages caused by Judge Peeler's out-of-court statement; he may file a defamation cause of action in state court.¹⁸  Emory's interest in his reputation is one of many interests which the state tort law protects against injury. We refuse to transform this state defamation case into a federal civil rights claim. Baker v. McCollan, 443 U.S. 137, 146-47, 99 S. Ct. 2689, 2695-96, 61 L. Ed. 2d 433 (1979); Paul v. Davis, 424 U.S. at 698-702, 96 S. Ct. at 1159-61; Cook v. Houston Post, 616 F.2d 791, 794-95 (5th Cir. 1980).

The district court dismissed Emory's pendent state law defamation claim for want of subject matter jurisdiction, citing United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 1139, 16 L. Ed. 2d 218 (1966) (if federal claims are dismissed before trial, the state claims should be dismissed as well). At the time the judgment of dismissal was entered, the statute of limitations on Emory's claim may have run.

We are unable to determine from the record if this is so and whether the district court considered the limitations problem in deciding not to exercise pendent jurisdiction. Our precedent indicates that it would be an abuse of discretion for a district court to dismiss a pendent claim which becomes time barred while the court has it under consideration. See L.A. Draper & Son v. Wheelabrator-Frye, Inc., 735 F.2d 414, 426-27 (11th Cir. 1984); Quality Foods de Centro America, S.A. v. Latin American Agribusiness Development Corporation, S.A., 711 F.2d 989, 999-1000 (11th Cir. 1983); Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir. 1982); Pharo v. Smith, 625 F.2d 1226, 1227 (5th Cir. 1980). Accordingly, we vacate the dismissal of Emory's state law claim and remand it to the district court for further consideration in the light of this precedent.

AFFIRMED in part, VACATED in part, and REMANDED.