Case: 18-14099    Date Filed: 11/15/2019    Page: 1 of 18


                                                             [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 18-14099
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 2:16-cv-00501-VEH



ROGER SHULER,
CAROL SHULER,

                                                   Plaintiffs - Appellants,

versus

LIBERTY DUKE,
CHRISTINA CROW,
JINKS CROW & DICKSON,
Law Firm,
ROB RILEY,
JAY MURRILL,
CHRIS CURRY,
individually and in his official capacity as Shelby Co. Sheriff,
WILLIAM H. PRYOR,
TED ROLLINS,
GOOGLE,
LUTHER STRANGE,
JESSICA MEDEIROS GARRISON,
WILLIAM E. SWATEK,
DAVID GESPASS,
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CLAUD NEILSON, et al.,

                                                    Defendants - Appellees.

                           ________________________

                    Appeal from the United States District Court
                       for the Northern District of Alabama
                           ________________________

                                (November 15, 2019)



Before MARCUS, ROSENBAUM, and EDMONDSON, Circuit Judges.



PER CURIAM:



      Plaintiffs Roger and Carol Shuler (proceeding pro se) appeal the district

court’s dismissal with prejudice of their civil action, filed pursuant to 42 U.S.C. §

1983 and Alabama law. Plaintiffs also appeal the denial of their motions to

disqualify district court Judges Hopkins and Smith. No reversible error has been

shown; we affirm.

      This appeal is broadly tied to articles Roger published on his blog about

“unseemly matters connected to key political and legal figures in Alabama.”

Briefly stated, Roger alleges that defendants participated in a conspiracy to

retaliate against him for engaging in conduct protected by the First Amendment.
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      Plaintiffs’ complaint identifies two defamation lawsuits filed against Roger

as a result of Roger’s blog posts, including a lawsuit filed by Defendants Rob Riley

and Liberty Duke (the “Riley/Duke litigation”). Judge Claud Neilson -- “serving

as judge by designation of the Alabama Supreme Court” -- presided over the

Riley/Duke litigation and issued a contempt order against Roger for failing to

appear.

      In connection with the contempt order in the Riley/Duke litigation, Deputy

Sheriffs Chris Blevins and Jason Valenti arrested Roger at his home on 23 October

2013. Plaintiffs allege that Deputy Sheriff Blevins entered Plaintiffs’ garage

without a warrant, shoved Roger to the concrete floor, sprayed Roger with pepper

spray, and dragged Roger from his garage to the driveway, where Deputy Sheriff

Valenti threatened to break Roger’s arms. Roger was transported to the Shelby

County Jail and was charged with resisting arrest. Following a trial, Roger was

found guilty of resisting arrest and was given a suspended sentence. Roger was

released from custody on 26 March 2014.

      As a result of Roger’s arrest and incarceration, Roger’s photograph was

published on several websites, which Plaintiffs say implied falsely that Roger was

a criminal. Plaintiffs also allege that -- in response to being featured in Roger’s




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blog posts -- Defendant Ted Rollins made purportedly defamatory statements

about Roger on several websites, websites advertised by Google.

       Plaintiffs filed their initial pro se complaint on 26 March 2016, in which

they named 22 defendants. In September 2017, Plaintiffs amended their

complaint, naming eight additional defendants. In their amended complaint,

Plaintiffs asserted against defendants federal claims under section 1983 for

violation of the First, Fourth, and Fourteenth Amendments. Plaintiffs also asserted

claims under Alabama law for defamation, abuse of process, assault and battery,

trespassing, invasion of privacy, false arrest and false imprisonment, and for

intentional infliction of emotional distress.

       In sixteen separately-filed motions, defendants moved to dismiss Plaintiffs’

complaint. The district court dismissed with prejudice Plaintiffs’ amended

complaint for failure to state a claim.1




1
  On appeal, Plaintiffs contend the district court should have granted them leave to amend before
dismissing the amended complaint with prejudice. Plaintiffs filed no motion to amend in the
district court. Nor do Plaintiffs describe what proposed amendments would cure the deficiencies
identified by the district court. Because Plaintiffs had already amended their complaint once and
because nothing indicated that a more carefully drafted complaint would have stated a claim, the
district court abused no discretion in dismissing Plaintiffs’ complaint without first sua sponte
granting Plaintiffs leave to amend. See Bank v. Pitt, 

, 1112 (11th Cir. 1991),
overruled in part by Wagner v. Daewoo Heavy Indus. Am. Corp., 

, 542 (11th Cir.
2002) (en banc) (district courts must provide pro se plaintiffs “at least one chance to amend the
complaint,” but only if “a more carefully drafted complaint might state a claim”).
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                                           I.



      We review de novo the district court’s grant of a motion to dismiss a

complaint for failure to state a claim. Randall v. Scott, 

, 705 (11th

Cir. 2010). In doing so, we accept as true the factual allegations in the complaint

and draw all reasonable inferences in favor of the plaintiffs. 

we

construe liberally pro se pleadings. Tannenbaum v. United States, 

,

1263 (11th Cir. 1998).



      A. Judicial Immunity



      The district court committed no error in dismissing Plaintiffs’ claims against

Judge Neilson as barred by absolute judicial immunity. A judge is entitled to

absolute judicial immunity from damages for acts taken while acting in his judicial

capacity. Sibley v. Lando, 

, 1070 (11th Cir. 2005). A judge is

entitled to immunity even when his conduct “was in error, was done maliciously,

or was in excess of his authority.” Stump v. Sparkman, 

, 356 (1978).

A judge acting within his judicial capacity is “subject to liability only when he has

acted in the ‘clear absence of all jurisdiction.’” 

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       Here, Plaintiffs’ claims against Judge Neilson stem from judicial rulings

Judge Neilson made while presiding over the Riley/Duke litigation, including

Judge Neilson’s issuance of the contempt order. That these decisions were made

in the direct exercise of Judge Neilson’s judicial function is clear. See 

(in determining whether an act by a judge is “judicial” in nature, we consider

“whether it is a function normally performed by a judge” and whether the parties

“dealt with the judge in his judicial capacity”). Although Plaintiffs contend that

Judge Neilson’s rulings were erroneous, Plaintiffs allege no facts -- accepted as

true and construed in Plaintiffs’ favor -- demonstrating that Judge Neilson acted in

the “clear absence of all jurisdiction.” Judge Neilson is thus entitled to absolute

judicial immunity from Plaintiffs’ federal and state claims.



    B. Statute of Limitations



       1. Federal § 1983 Claims (Counts 1-6)2




2
  Even construed liberally, Plaintiffs’ initial appellate brief raises no challenge to the district
court’s dismissal of Plaintiffs’ section 1983 claim for civil conspiracy (Count 13). That claim is
thus not before us on appeal. See Timson v. Sampson, 

, 874 (11th Cir. 2008)
(“While we read briefs filed by pro se litigants liberally, issues not briefed on appeal by a pro se
litigant are deemed abandoned.” (citation omitted)).
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      Plaintiffs’ section 1983 claims are subject to Alabama’s two-year statute of

limitations for personal injury actions. See Ala. Code § 6-2-38(l); Wallace v. Kato,

, 394 (2007) (in section 1983 actions, federal courts refer typically to

state law to determine the applicable statute of limitations and tolling rules). A

cause of action under section 1983 accrues -- and the statute of limitations begins

to run -- when a plaintiff knows or has reason to know (1) of his injury and (2) who

has inflicted it. Chappell v. Rich, 

, 1283 (11th Cir. 2003).

      Plaintiffs’ federal constitutional claims (Counts 1-6) all arise from events

that occurred during Roger’s arrest on 23 October 2013. Plaintiffs’ initial

complaint -- filed on 26 March 2016 -- was filed more than two years after

Plaintiffs’ claims accrued and the statute of limitations began to run. The district

court thus dismissed properly Plaintiffs’ federal claims as time-barred.

      On appeal, Plaintiffs contend that their cause of action for false arrest and

for false imprisonment (Counts 4 and 5) first accrued when Roger was released

from custody on 26 March 2014. This argument is foreclosed by the Supreme

Court’s decision in Wallace v. Kato. The Supreme Court stressed that “false

imprisonment consists of detention without legal process.” 

(emphasis added). Thus, claims for false imprisonment (which encompass

claims for false arrest) accrue on the date legal process is initiated against a

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plaintiff. 

person is held pursuant to legal process, the continuation of a

purportedly “unlawful detention forms part of the damages for the ‘entirely

distinct’ tort of malicious prosecution, which remedies detention accompanied, not

by absence of legal process, but by wrongful institution of legal process.” 

original).

       Here, state court records 3 demonstrate that a warrant for Roger’s arrest was

issued by a magistrate judge, that Roger was charged with resisting arrest, and that

Roger was later adjudged guilty of resisting arrest. Because Roger was not

detained without legal process, his false arrest and false imprisonment claims

accrued on the day of his arrest: the day Plaintiffs knew of their alleged injury and

who had caused it. See id.; 

.

       We also reject Plaintiffs’ argument about equitable tolling. Under Alabama

law, a plaintiff seeking equitable tolling bears the burden of showing (1) that he

has pursued diligently his rights, and (2) that some extraordinary circumstance

prevented him from filing the action. Weaver v. Firestone, 

, 957

(Ala. 2013) (citing Pace v. DiGuglielmo, 

, 418 (2005)). Whether

equitable tolling applies is a fact-specific inquiry. 

We have said that



3
 In considering a Rule 12(b)(6) motion to dismiss, appellate courts may take judicial notice of
publicly-filed documents, including state court records. Lozman v. City of Riviera Beach, 

, 1075 n.9 (11th Cir. 2013).
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equitable tolling is an “extraordinary remedy” that should be extended “only

sparingly.” Arce v. Garcia, 

, 1261 (11th Cir. 2006).

      Plaintiffs contend that equitable tolling is warranted in this case based on (1)

Roger’s five-month imprisonment and (2) Carol’s broken arm, which required

surgery and six months of physical therapy. Contrary to Plaintiffs’ assertion,

imprisonment -- by itself -- is no “extraordinary circumstance” warranting

automatic equitable tolling: an imprisoned litigant must still show he pursued

diligently his rights. Cf. 

. Nor is a broken arm the kind of

“extraordinary circumstance” justifying equitable tolling. Plaintiffs have alleged

no facts demonstrating that they exercised reasonable diligence in pursuing their

claims or how they were prevented from doing so. On this record, Plaintiffs

cannot show that equitable tolling is justified in this case.



      2. State Law Claims (Counts 8, 11, 12 & Second 12)



      The district court also dismissed as time-barred Plaintiffs’ claims under

Alabama law for abuse-of-process, invasion of privacy, false arrest and false

imprisonment, and for intentional infliction of emotional distress. That these state-




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law claims are subject to a two-year statute of limitations -- under Ala. Code § 6-2-

38(l) -- is undisputed.

      Plaintiffs’ claims for invasion of privacy, false arrest and false

imprisonment, and for intentional infliction of emotional distress are tied clearly to

events that occurred on the day of Roger’s arrest on 23 October 2013. About

Plaintiffs’ abuse-of-process claim, Plaintiffs identify two legal processes that form

the basis of their claim: (1) the motion for a preliminary injunction and contempt

order (filed in the Riley/Duke litigation) which led to Roger’s arrest; and (2) the

charges filed against Roger for resisting arrest. Both complained-of processes

occurred on or before Roger’s arrest on 23 October 2013.

      Because more than two years elapsed between the events giving rise to

Plaintiffs’ claims and the filing of Plaintiffs’ initial complaint -- and because

Plaintiffs have alleged no circumstances warranting equitable tolling of the two-

year limitations period -- the district court dismissed properly Counts 8, 11, 12, and

Second 12 as time-barred.




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       C. State Immunity



       We next address Plaintiffs’ claims against Sheriff Chris Curry and Deputy

Sheriffs Blevins and Valenti (“Defendant Officers”) for assault and battery and for

trespass (Counts 9 & 10). The district court dismissed these claims as barred by

sovereign immunity.4

       Pursuant to Article I, § 14, Ala. Const. of 1901, the State of Alabama has

absolute immunity from lawsuits. Ex parte Donaldson, 

, 897 (Ala.

2011). In applying this constitutional “State immunity” doctrine, Alabama courts

have said that “an action against a sheriff -- or a deputy sheriff -- for damages

arising out of the performance of his duties is ‘essentially a suit against the state.’”

Ex parte Davis, 

, 501 (Ala. 2005). Given a sheriff’s status as a

constitutional officer -- and because deputy sheriffs act on behalf of a sheriff -- “a

claim for monetary damages made against a deputy sheriff in his or her individual

capacity is barred by the doctrine of State immunity whenever the acts that form

the basis of the alleged liability were being performed within the line and scope of

the deputy sheriff’s employment.” Ex parte 

.




4
  Because these claims are subject to a six-year limitations period under Ala. Code § 6-2-34, the
claims were not dismissed as time-barred.
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      Plaintiffs’ claims for assault and battery and for trespass stem from

Defendant Officers’ alleged conduct while arresting or attempting to arrest Roger

at his home. Performing arrests falls within the statutory duties of a sheriff and his

deputies. See Ala. Code § 36-22-3(a)(4), (b); Ex parte 

.

Because Plaintiffs seek money damages for acts performed by Defendant Officers

in the course and scope of their official duties, Plaintiffs’ claims against Defendant

Officers are barred by Alabama’s State immunity doctrine. See Ex parte Fielding,

, 358 (2011) (a deputy sheriff sued in his official and individual

capacity was immune under § 14 for tort liability because -- when he entered his

neighbors’ property and shot his neighbors’ dog -- he was acting within the scope

of his duties to protect citizens and to preserve the peace); Ex parte Davis, 

at 501-02 (concluding that a deputy sheriff was entitled to State immunity from

individual-capacity claims for money damages for trespass and for assault and

battery arising out of a search and arrest on plaintiff’s property: acts that were

performed within the scope of the deputy sheriff’s official duties).

      On appeal, Plaintiffs contend that Defendant Officers are unentitled to

immunity because Defendant Officers acted with malice and in bad faith.

Plaintiffs rely chiefly on Ex parte Cranman, 

, 405 (Ala. 2000), in

which the Alabama Supreme Court recognized exceptions to Alabama’s state-

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agent immunity doctrine if a state agent acted “willfully, maliciously, fraudulently,

in bad faith, beyond his or her authority, or under a mistaken interpretation of the

law.” The doctrine of State immunity under § 14 -- the doctrine at issue in this

case -- is separate and distinct from the doctrine of state-agent immunity addressed

in Ex parte Cranman. Alabama’s State immunity doctrine applies to constitutional

officers (including sheriffs and deputy sheriffs) while Alabama’s state-agent

immunity doctrine applies “to those state agents or employees whose positions

exist by virtue of legislative pronouncement.” Ex parte 

. Thus, the exceptions to state-agent immunity recognized in Ex parte

Cranman have no bearing on the immunity afforded sheriffs and deputy sheriffs

under § 14. 

(Count 7)



      The district court concluded that Plaintiffs failed to allege sufficient facts to

state a plausible claim for defamation. The district court also concluded -- as an

“additional and independent” ground for dismissal -- that Plaintiffs’ defamation

claim against Google was barred by section 230 of the Communications Decency

Act, 47 U.S.C. § 230(c)(1) (“CDA”).

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        On appeal, Plaintiffs raise no substantive argument challenging the district

court’s chief reason for dismissing Plaintiff’s defamation claim against all

defendants. Plaintiffs’ appellate brief focuses, instead, only on the district court’s

independent alternative ground for dismissing Plaintiffs’ defamation claim against

Google as barred by the CDA. We thus affirm the district court’s dismissal of

Plaintiffs’ defamation claim for failure to state a claim for relief. For background,

see Sapuppo v. Allstate Floridian Ins. Co., 

(11th Cir. 2014) (“an

appellant abandons a claim when he either makes only passing references to it or

raises it in a perfunctory manner without supporting arguments and authority”).



                                                II.



        Plaintiffs next contend that the district court erred in denying Plaintiffs’

motions to recuse district court Judges Hopkins and Smith: motions that Plaintiffs

say were filed pursuant only to 28 U.S.C. § 144. Plaintiffs moved to recuse Judge

Hopkins based on (1) campaign contributions that Judge Hopkins or her husband

made to political candidates whom Roger criticized on his blog; 5 and (2) judicial


5
 In support of their motion for recusal, Plaintiffs alleged the following campaign contributions
made by now-Judge Virginia Hopkins and by her husband, Christopher Hopkins:

    •   2000: Virginia contributed $250 to President Bush
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rulings Judge Hopkins made in this case. Plaintiffs’ motion was referred to Judge

Smith. In a 12-page order, Judge Smith concluded that no personal bias or

prejudice was shown and denied the motion.

       Plaintiffs then moved to have Judge Smith disqualified -- and to vacate the

order denying Plaintiffs’ motion to recuse Judge Hopkins -- based on evidence that

Judge Smith is related to Defendant Riley. Chief Judge Bowdre denied the motion,

explaining that (1) the seven-degrees of relationship between Judge Smith and

Defendant Riley mandated no recusal and (2) nothing evidenced that Judge Smith

harbored a personal bias or prejudice against Plaintiffs or personal knowledge of

the controversy.

       We review for abuse of discretion the district court’s rulings on a

defendant’s motions for recusal. United States v. Bailey, 

, 968 (11th

Cir. 1999). We will affirm a judge’s refusal to recuse unless “the impropriety is


   •   21 May 2003: Virginia and Christopher each contributed $1000 to Senator Richard
       Shelby
   •   31 October 2003: Christopher contributed $2000 to the Bush-Cheney campaign
   •   2 March 2004: Christopher contributed $1000 to Sen. Jeff Sessions

Plaintiffs also alleged -- with no further factual allegations about the dates, amounts, or recipients
-- that “[o]verall, [Christopher] made nearly $9,000 in federal contributions between 2000-2004,
with all but $500 going to Republicans.”
         Plaintiffs have called to our attention no campaign contribution -- from Judge Hopkins or
from Christopher -- that was made after Judge Hopkins took the judicial oath in 2004.
Moreover, the last contribution identified by Plaintiffs was made twelve years before Plaintiffs
filed this civil action in March 2016: a significant passage of time. We also note that none of the
identified recipients of campaign contributions are parties to this civil action.
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clear and one which would be recognized by all objective, reasonable persons.” 

warranted under section 144 only if the moving party “allege[s] facts

that would convince a reasonable person that bias actually exists.” Christo v.

Padgett, 

, 1333 (11th Cir. 2000).

      The district court abused no discretion in denying Plaintiffs’ motions to

recuse Judge Hopkins. About the complained-of campaign contributions (made

before Judge Hopkins became a federal judge and well over a decade before

Plaintiffs filed this civil action), Plaintiffs allege no facts tending to show that

Roger’s criticism of the recipients of those contributions -- whom Plaintiffs say

“supported, championed, and enhanced Judge Hopkins’[s] legal career” -- caused

Judge Hopkins to harbor actual personal bias against Plaintiffs. In addition,

nothing evidences that the adverse rulings made by Judge Hopkins during the

district court proceedings were motivated by actual bias against Plaintiffs.

      We also reject Plaintiffs’ contention that Judge Smith should have been

disqualified on grounds that he is related to Defendant Riley. Although not cited

by Plaintiffs, the district court relied reasonably on 28 U.S.C. § 455, which

provides that a judge “shall” disqualify himself if the judge is related -- “within the

third degree of relationship” -- to a party to the proceeding. See 28 U.S.C. §

455(b)(5). Because Judge Smith confirmed facts in a sworn affidavit that he was

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separated from Defendant Riley by seven degrees of relationship, no recusal was

mandated under section 455. Other than Judge Smith’s familial ties to Defendant

Riley, Plaintiffs identify no other ground for disqualification.

       AFFIRMED.6



6
   We note that United States Circuit Judge for the Eleventh Circuit William H. Pryor is one of
the thirty named defendants in this case. In the district court, Plaintiffs seemed to assert that
Judge Pryor’s status as a defendant required the recusal from these proceedings of every district
judge of the Northern District of Alabama and every circuit judge of the Eleventh Circuit. But
Plaintiffs have filed no motion to recuse in this Court. Nevertheless, we consider, on our own
accord, the issue of recusal. See United States v. Kelly, 

, 744 (11th Cir. 1989).
         A federal judge “shall disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.” 28 U.S.C. § 455(a). “The standard for recusal under section
455(a) is ‘whether an objective, disinterested, lay observer fully informed of the facts underlying
the grounds on which recusal was sought would entertain a significant doubt about the judge’s
impartiality.’” 

.
         “There are twin, and sometimes competing, policies that bear on the application of the
section 455(a) standard.” United States v. Greenough, 

, 1558 (11th Cir. 1986).
On the one hand, “courts must not only be, but must seem to be, free of bias or prejudice.” 

other hand, “a judge, having been assigned to a case, should not recuse himself on
unsupported, irrational, or highly tenuous speculation.” 

so would grant to litigants or
third parties the power “to exercise a veto over the assignment of judges.” 

light of
these competing policies, we have recognized that “there is as much obligation for a judge not to
recuse when there is no occasion for him to do so as there is for him to do so when there is.” In
re Moody, 

, 895 (11th Cir. 2014).
         Given the facts and circumstances presented, no objectively good reason exists to doubt
the impartiality of our decision in this case. The claims asserted against Judge Pryor (Counts 2-8
& 13) were either barred clearly by the applicable statute of limitations or were abandoned on
appeal. Resolution of these claims was restricted to deciding clean legal issues and involved no
credibility determinations or fact-finding with respect to Judge Pryor. That a judicial colleague
is named as a defendant in litigation -- without more -- is no grounds for automatic
disqualification of every judge on the same court. Guide to Judiciary Policy, Vol. 2B, Ch. 2,
Published Advisory Opinion No. 103 (2009) (noting that permitting litigants to trigger automatic
disqualification of an entire court by simply naming a judge as a defendant “would permit and
might even encourage litigants to manipulate and abuse the judicial process”). Moreover,
Plaintiffs’ district court assertions -- that recusal is necessary because all Eleventh Circuit judges
are “likely [to] have direct or indirect professional ties to Pryor” and that assigning one of Judge
Pryor’s “immediate judicial colleagues” to this case “violates every notion of fairness one can
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attempt to conjure” -- are the kinds of “unsupported, irrational, or highly tenuous speculation”
that provide no valid basis for recusal. See 

.