Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Malina v. Gonzales

filed: August 26, 1993.

THOMAS MARTIN MALINA AND MRS. THOMAS MARTIN MALINA, PLAINTIFFS-APPELLEES,
v.
JUDGE DOUGLAS GONZALES, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Eastern District of Louisiana. {Counsel}{Q}Counsel{/Q}{/Counsel}

For Defendant-Appellant: Roy A. Mongrue, Jr., AAG, LA Dept. of Justice, BRLA. Charles S. McCowan, Jr., Charles L. Patin, Jr., Baton Rouge, LA.

For Plaintiffs-Appellees: Theodor Allen Schirmer, Malibu, CA.

Before Smith and Emilio M. Garza, Circuit Judges, and Rainey,*fn* District Judge:

Author: Per Curiam

ON PETITION FOR REHEARING

Per Curiam:

The petition for rehearing is DENIED.

In their petition for rehearing, the plaintiffs point out that the court has erred in saying that Malina was told to appear in court the next day. The plaintiffs correctly show that the Second Amended Complaint alleges that Malina was told to appear in the Judge's office the next day. We hereby correct the opinion in this regard. This does not alter our analysis or the result, however. As our opinion states, one of the four factors from McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir. 1972), is whether the acts occurred in the courtroom or appropriate adjunct spaces such as the Judge's chambers.

Disposition

DENIED.

EMILIO M. GARZA, Circuit Judge, Concurring in part and Dissenting in part.

I concur in almost every aspect of the majority opinion except one: I would hold that Judge Gonzales is not absolutely immune from prosecution for holding Malina in contempt of court.*fn1 This case is not a case of "excess jurisdiction,"*fn2 but rather a case of "clear absence of all jurisdiction."*fn3 Crucial are the following facts:*fn4

[A] Baton Rouge city police officer appeared at Malina's home and told Malina that Judge Gonzales wanted to see him in his [office] at [8:30 a.m. before court] the next day. [Malina asked if any charges had been filed against him. The officer replied "no,"] he was there unofficially [to deliver a message] as a favor to Judge Gonzales, but the Judge could issue a bench warrant for Malina's arrest if Malina did not appear.

Malina appeared at [the] courtroom the next morning, but found the courtroom closed to the public. [Malina proceeded to Judge Gonzales's office.] When Judge Gonzales arrived, he instructed Malina to wait in the empty courtroom. A few minutes later, Judge ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.