Timothy L. Ashford; Timothy L. Ashford, P.C.L.L.O. Plaintiffs-Appellants
Douglas County; State of Nebraska Defendants John Does, 1-1000; Jane Does, 1-1000; W. Russell Bowie, in his Official Capacity; Craig McDermott, in his Official Capacity Defendants - Appellees Douglas Johnson; Leslie Johnson; John Doe; Shelly Stratman; Horacio Wheelock Defendants Thomas Riley, Individually and in his Official Capacity Defendant-Appellee Denise Frost Defendant James Gleason, Individually and in his Official Capacity; Timothy Burns, Individually and in his Official Capacity; Derick Vaughn, Individually and in his Official Capacity Defendants-Appellees
Submitted: November 16, 2017
from United States District Court for the District of
Nebraska - Omaha
BENTON, SHEPHERD, and KELLY, Circuit Judges.
lawyer Timothy Ashford appeals a district court order
dismissing his race discrimination suit on grounds of
judicial and quasi-judicial immunity. We conclude that
Ashford lacked standing in the district court, so we vacate
the district court's judgment and remand with
instructions to dismiss the case without prejudice.
decision turns on the facts that were before the district
court when it granted the motion to dismiss under
Fed.R.Civ.P. 12(b)(6). "When considering a Rule 12(b)(6)
motion, the court generally must ignore materials outside the
pleadings, but it may consider some materials that are part
of the public record or do not contradict the complaint, as
well as materials that are necessarily embraced by the
pleadings." Smithrud v. City of St. Paul, 746
F.3d 391, 395 (8th Cir. 2014) (quotation omitted). We must
treat the complaint's factual allegations as true.
See Taxi Connection v. Dakota, Minnesota & E. R.R.
Corp., 513 F.3d 823, 825-26 (8th Cir. 2008).
pleadings necessarily embrace Nebraska Fourth Judicial
District Local Rule 4-17. That rule sets out the process for
appointing lawyers to represent indigent defendants in
Douglas County. To be appointed to the panel of attorneys
eligible to represent indigent defendants, licensed Nebraska
lawyers must submit an application to the Douglas County
District Court Administrator. R. 4-17(H). A selection
committee then meets and decides whether each applicant is
eligible to join the panel, and what types of cases the
applicant is eligible to receive. R. 4-17(F)(2). The
selection committee is made up of four judges, two private
attorneys with criminal defense experience, and the Douglas
County Public Defender. Id. Beyond requiring that
the selection committee "meet at least once each year,
and at such other times as the Committee deems appropriate,
" the rule does not set out the dates for committee
4-17 went into effect on April 1, 2015, three months after
Ashford initially filed this lawsuit. On June 29, 2015,
Ashford filed his Rule 4-17 application. He sought
eligibility to represent indigent murder defendants. About
six weeks later, on September 1, 2015, Ashford filed his now
operative second amended complaint. That complaint alleged
only that Ashford had not yet received a response from the
district court dismissed Ashford's claims under
Fed.R.Civ.P. 12(b)(6) because it concluded that the selection
committee members were protected by judicial and
quasi-judicial immunity. We express no opinion on that
determination. Instead, we conclude that Ashford's second
amended complaint did not adequately allege an injury in
fact, and so did not vest the district court with
a federal court may resolve the merits of a plaintiff's
claims, the "plaintiff must show that he is under threat
of suffering 'injury in fact' that is concrete and
particularized; the threat must be actual and imminent, not
conjectural or hypothetical." Missourians for Fiscal
Accountability v. Klahr, 830 F.3d 789, 794 (8th Cir.
2016) (quotation marks omitted).
complaint alleges that he applied to represent indigent
murder defendants on June 29, 2015, and had not heard back by
September 1, 2015. But the selection committee is only
required to meet once per year. See R. 4-17(F)(2).
Ashford does not allege that the selection committee has even
considered his application. Nor does the selection
committee's six-week silence raise an inference that it
de facto denied Ashford's application through inaction.
mindful that facts may have developed during the long
pendency of this litigation. But those facts are not now
before us. We are bound to evaluate standing based on the
record that was before the district court. That record lacked
factual allegations sufficient to establish an injury in fact
and permit meaningful evaluation of judicial and
quasi-judicial immunity. The district court therefore lacked
jurisdiction to adjudicate Ashford's claims.
as moot Ashford's pending motions to take judicial
notice,  vacate the judgment of the district court,
and remand with ...