United States District Court, W.D. Oklahoma
GEORGE L. MOTHERSHED, Plaintiff,
STATE OF OKLAHOMA, ex rel. Justices of the Oklahoma Supreme Court and Judges of the Court of Appeals of the State of Oklahoma, Defendants.
TIMOTHY D. DeGIUSTI, UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff George L. Mothershed's Affidavit
and Petition to Proceed Pro Se [Doc. No. 3]. Plaintiff, who
is an attorney, is subject to filing restrictions previously
imposed in Mothershed v. State of Oklahoma ex rel.
Oklahoma Bar Association, No. CIV-13-435-C (W.D. Okla.
Dec. 20, 2013), aff'd, No. 14-6044 (10th Cir.
July 1, 2014) (hereafter “Order”). His filing is
designed to satisfy the requirements of the Order to bring a
new action without counsel. With the filing, Plaintiff has
also filed a Complaint for Declaratory and Injunctive Relief
[Doc. No. 1] and three motions.
consideration, the Court finds that Plaintiff has not shown
he should be permitted to proceed pro se on the
claims asserted in his proposed Complaint. Plaintiff intends
to sue the justices of the Oklahoma Supreme Court and certain
judges of the Oklahoma Court of Civil Appeals under 42 U.S.C.
§ 1983. Plaintiff claims his federal constitutional
rights were violated in a state court appeal where he, as the
appellant, was not permitted to file an appellate brief
because the appeal was decided under the accelerated
procedure provided by Rule 1.36 of the Oklahoma Supreme Court
Rules. See Apache Corp. v. Mothershed, No. 115, 367
(Okla.Civ.App. Jan. 20, 2017), cert. denied, Order
(Okla. Sept. 25, 2017), cert. denied, 138 S.Ct. 675
(Jan 8, 2018). Plaintiff would seek an order “enjoining
the Defendants . . . from enforcing the Oklahoma appellate
courts' Okla. Sup. Ct. R. 1.36(g) summary appeals
provisions [that] prohibit the lawful filing of [an]
appellate merits brief” and a declaratory judgment
“that the state court legislated rule, Okla. Sup. Ct.
R. 1.36(g) summary appeals, is null and void” and
“that all appellate proceedings conducted under Okla.
Sup. Ct. R. 1.36(g) summary appeals, including the Oklahoma
Supreme Court, Apache Corp. v. George L. Mothershed, et
al., No. No. [sic] SD-115367 are null and void.”
See Compl. [Doc. No. 1] at 33-34.
Plaintiff certifies that the legal theories and arguments he
raises in this action are not frivolous, the Court disagrees.
Plaintiff asserts that, because he presents his § 1983
claim as an attack on an unconstitutional court rule and not
merely the decision in his case, his claim does not run afoul
of the Rooker-Feldman doctrine. See
Compl. ¶ 4. However, Plaintiff ignores other legal
impediments to his suit, some of which are jurisdictional.
Plaintiff proposes to sue state court judges who as
individuals enjoy absolute immunity from suit and as state
officials enjoy sovereign immunity under the Eleventh
Amendment. Although the Eleventh Amendment does not bar an
official-capacity suit that seeks only prospective relief
under Ex parte Young, 209 U.S. 123 (1908), such
relief is not available against judges under Section 1983. As
amended in 1996, Section 1983 expressly provides that
“in any action brought against a judicial officer for
an act or omission taken in such officer's judicial
capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was
unavailable.” 42 U.S.C. § 1983.
Plaintiff does not establish his standing to pursue the
injunctive and declaratory relief he intends to seek.
Plaintiff “must demonstrate a continuing injury to
establish standing for prospective relief.” Jordan
v. Sosa, 654 F.3d 1012, 1019 (10th Cir. 2011). Like
prospective injunctive relief, “[a] declaratory
judgment is meant to define the legal rights and obligations
of the parties in anticipation of some future conduct, not
simply to proclaim liability for a past act.” Ysais
v. New Mexico, 373 Fed.Appx. 863, 866 (10th Cir. 2010
(citing Utah Animal Rights Coal. v. Salt Lake City
Corp., 371 F.3d 1248, 1266 (10th Cir. 2004) (McConnell,
J., concurring) (“[A] declaratory judgment action
involving past conduct that will not recur is not
justiciable.”)). Plaintiff alleges no facts that would
show he may be subjected to Rule 1.36(g) in the future.
Therefore, Plaintiff fails to establish his standing to seek
declaratory or injunctive relief concerning the
constitutionality of Rule 1.36(g).
THEREFORE ORDERED that Plaintiff's Petition to Proceed
Pro Se [Doc. No. 3] is DENIED and the Complaint for
Declaratory and Injunctive Relief [Doc. No. 1], which was
provisionally filed by the Clerk, is DISMISSED without
FURTHER ORDERED that Plaintiff's Motion to Proceed In
Forma Pauperis [Doc. No. 2], Plaintiff's Application
for an Order to Defendants to Show Cause Why His Pending
Motion for Injunction and Declaratory Relief Should Not Be
Granted [Doc. No. 4], and Plaintiff's Motion for
Preliminary Injunction and Declaratory Relief [Doc. No. 6]
are DENIED as moot.
 See Rooker v. Fid. Trust Co.,
263 U.S. 413, 416 (1923); D.C. Court of Appeals v.
Feldman, 460 U.S. 462, 486-87 (1983).
 Plaintiff obviously knows of the
judicial immunity provided by § 1983 due to prior
unsuccessful attempts to sue judges who have presided over
his cases. See, e.g., Mothershed v.
Thomson, No. CV-04-2266-PHX-JAT, 2006 WL 381679 (D.
Ariz. Feb. 16, ...