                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 14a0256n.06

                                          No. 13-5299


                         UNITED STATES COURTS OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                       FILED
ROBERT C. MARKS, SR.,                                   )                         Apr 04, 2014
                                                        )                    DEBORAH S. HUNT, Clerk
       Plaintiff-Appellant,                             )
                                                        )
v.                                                      )       ON APPEAL FROM THE
                                                        )       UNITED STATES DISTRICT
STATE OF TENNESSEE; ADMINISTRATIVE                      )       COURT FOR THE MIDDLE
OFFICE OF THE STATE COURTS                              )       DISTRICT OF TENNESSEE
                                                        )
       Defendants-Appellees.                            )
                                                        )



BEFORE:        KEITH, SILER, and ROGERS, Circuit Judges.

       ROGERS, Circuit Judge. Plaintiff Robert Clive Marks is a former lawyer who suffers

from substantial disability. Marks was found liable for legal malpractice and then defended

himself pro se in an enforcement action against certain assets. The present case arises out of the

proceedings in that enforcement action. The gist of Marks’s grievance is that the State of

Tennessee, through the Administrative Office of the State Courts, violated his rights under the

Americans with Disabilities Act (ADA) when implementing its disability-accommodation policy

during the litigation. Marks had some success in the case; on appeal, certain trust assets were

successfully protected from his creditors. Atkins v. Marks, 288 S.W.3d 356, 371–73 (Tenn. Ct.

App. 2008). Marks’s only remaining basis for injury is the stress he suffered during litigation,

which he claims contributed to the loss of his leg.         Because the local ADA coordinator
No. 13-5299, Marks v. Tennessee


reasonably implemented the courts’ disability policy and ensured that Marks was effectively able

to litigate his case, the district court properly granted the State’s motion to dismiss.

       The district court laid out in detail the relevant facts, including a description of Marks’s

disability, the underlying litigation, and the series of communications between Marks and

various court officers. Marks v. Tenn. Admin. Office of Cts., No. 3:06-CV-01208, 2013 WL

432905, at *2–5 (M.D. Tenn. Feb. 4, 2013). In short: The Administrative Office of the Courts

instituted a policy to implement the ADA that included a procedure for disabled persons to

request modifications to the courtroom or court procedures in order to accommodate their

disabilities. During the enforcement litigation, Marks submitted administrative requests for

modification; some of the requests asked that the case be postponed while Marks convalesced

from numerous medical calamities, and another sought for the hearings be truncated to

accommodate his limited physical and cognitive stamina. The local ADA coordinator forwarded

all of these requests to the trial court judge, who substantially accommodated all of the requests.

However, after the first request, the trial judge informed Marks that he should move for

continuances before the court, rather than submit administrative requests for postponement.

Marks administratively challenged this response, and the Administrative Office ultimately stated

that such requests should typically be addressed to the court, but could alternatively be submitted

to the local coordinator, who would then consult with the trial judge. During the litigation and

administrative challenge, Marks suffered a medical complication, and his leg was amputated.

Marks then sued the State and Administrative Office in federal district court, claiming that their

handling of his requests for modification violated his rights under the ADA and that the

Administrative Office had failed to post ADA notices in certain courthouses.




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No. 13-5299, Marks v. Tennessee


       This case has been before this court before. After the district court initially dismissed the

case under the Rooker–Feldman doctrine, we held that that doctrine did not apply to bar Marks’s

claim. Marks v. Tennessee, 554 F.3d 619, 623 (6th Cir. 2009). We characterized Marks’s claim

as follows:

       In actuality, Marks’s claim to the district court (and to this court on appeal) is
       that, as a qualified individual with a disability, he is entitled to reasonable
       accommodation, and, in this case, a reasonable accommodation would be to allow
       him to stay the court proceedings by faxing [a request for modification] to the
       [Administrative Office of the Courts] (rather than moving the court for a
       continuance via an actual appearance or a filing at the courthouse) and to maintain
       that stay until his treating physicians had given him a medical release to proceed.
       Marks does not claim that he was injured by the court’s rulings on the
       continuances (nor could he, inasmuch as the court granted every continuance), but
       instead claims that he was injured by: (1) his having to file the continuances
       (rather than the faxes) at all and to engage in this dispute with the court and the
       [Administrative Office] about this accommodation while in his weakened and
       disabled condition; (2) the court’s and the [Administrative Office]’s refusal to
       stay the proceedings (indefinitely) pending his doctor’s release (i.e., their refusal
       to grant him his preferred “reasonable accommodation”); and (3) the court’s and
       the [Administrative Office]’s failure to post the ADA signs in the court house, as
       required by the ADA. As a remedy, Marks seeks damages, based on his pain and
       suffering from these three alleged harms.

Id.

       On remand, the district court again dismissed the complaint. Marks v. Tenn. Admin.

Office of Cts., 2013 WL 432905, at *12. First, the district court dismissed the failure-to-post-

notice claim for lack of standing, finding that “Plaintiff’s complaint lack[ed] factual allegations

of any injury in fact or any threat of future injury fairly traceable to the alleged lack of ADA

notices.”     Id. at *8–9.   Next, the court held that the Tennessee personal injury statute of

limitations applied and that, therefore, only Marks’s post–December 20, 2005 claims were

timely. Id. at *9. Construing the gravamen of the complaint as a challenge to the state trial

judge’s rulings to grant or deny continuances and the trial judge’s alleged comments during trial,

the district court held that the direct appeal in state court precluded this parallel challenge, that

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No. 13-5299, Marks v. Tennessee


judicial immunity barred the claims, and that “Plaintiff’s attempt to circumvent the doctrine of

judicial immunity by naming as Defendants the State of Tennessee and the Administrative Office

of the Court fails.” Id. at *9–11. Finally, assuming that the State and the Administrative Office

were proper defendants to the claim, the district court reached the merits and held that Marks

failed to state a claim of disability discrimination because the trial court made “reasonable

accommodations” to Marks’s disability during the state court proceedings. Id. at *11.

       Marks now appeals a second time, arguing that he has standing to pursue the failure-to-

post-notice claims, that the State and the Administrative Office were proper defendants, and that

the complaint stated a claim upon which relief could be granted.

       First, the district court correctly held that Marks lacks constitutional standing to raise the

claim that the Administrative Office failed to post ADA notices. Marks can obtain no injunctive

relief that would eliminate any threat of imminent injury.1 Marks is already fully aware of the

courts’ ADA policy, as is evidenced by his persistent attempts to file requests for modification

with the local ADA coordinator. Therefore, he cannot be said to be suffering injury as a result of

his lack of knowledge of the policy. Furthermore, an alleged atmosphere of discrimination is not

the kind of “concrete and particularized” injury required by the Constitution. Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560 (1992). The Supreme Court has held that an “abstract stigmatic

injury” is not cognizable. Allen v. Wright, 468 U.S. 737, 755–56 (1984), arguably abrogated on




       1
        To the extent that Marks also argues that the failure to post ADA notices in the
courthouses contributed to the other injuries that he alleges, it is not plausible that the public
presence of the notices would have changed how Marks’s requests were handled. No evidence
shows that the local coordinator and the judge were not aware of the policy as they were
implementing it—indeed, the local coordinator’s job description is to enforce the policy.
Regardless, as discussed below, the local coordinator and the trial judge fully complied with the
policy and reasonably accommodated Marks’s disability.
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No. 13-5299, Marks v. Tennessee


other grounds by Lexmark Int’l, Inc. v. Static Control Components, Inc., No. 12-873, -- S. Ct. --,

2014 WL 1168967 (Mar. 25, 2014).

       Second, the trial court properly dismissed the claims regarding the handling of the

administrative requests, because Marks failed to state a plausible cause of action.2 As a matter of

law, the allegedly discriminatory conduct of the courts was not discriminatory. “To survive a

motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a

claim for relief that is plausible on its face.” Kolley v. Adult Protective Servs., 725 F.3d 581, 585

(6th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks

omitted)). We review de novo the district court’s dismissal of a plaintiff’s complaint for failure

to state a claim under Federal Rule of Civil Procedure 12(b)(6). Id.

       Even construing the complaint in the light most favorable to Marks, with its allegations

accepted as true and all reasonable inferences drawn in his favor, the district court properly

dismissed the complaint as it failed to allege a plausible claim of discrimination. See Jackson v.

Sedgwick Claims Mgmt. Servs., Inc., 731 F.3d 556, 562 (6th Cir. 2013) (en banc). Marks’s

allegations assert that the local ADA coordinator conferred with the judge and with Marks before

responding to the request for modification. Because the judicial ADA policy merely required the

local coordinator to advise the judge in his exercise of judicial functions, the local coordinator

acted reasonably in complying with the policy. Furthermore, Marks does not dispute that he was

granted multiple continuances and that the court limited the merits hearings to three hours. Even

viewed in the light most favorable to Marks, the facts demonstrate that the trial judge

       2
        Unlike the district court, we do not rely on absolute judicial immunity, because Marks
only seeks relief against the State and an agency of the State, such that any award of damages
would come only from public funds. The judicial immunity doctrine does not appear to apply,
because that doctrine typically only forbids damages suits against judges, Cameron v. Seitz,
38 F.3d 264, 271 (6th Cir. 1994), or officials exercising judicial functions, who are sued in their
individual capacity, Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435–36 (1993).
                                                -5-
No. 13-5299, Marks v. Tennessee


substantially accommodated Marks’s disability and that Marks effectively litigated the case all

the way through a substantially successful appeal.

        After Marks protested the local coordinator’s assertion that requests for continuance

should be addressed to the trial judge, this articulation of the policy was confirmed at every level

of administrative review. The local ADA coordinator initially stated: “This is a request for a

continuance only. This is a judicial matter to be considered by the presiding Judge.” R. 11-10

(PgID 204). The presiding judge said substantially the same thing. R. 11-12 at 2 (PgID 272).

The Administrative Office’s final review of the decision confirmed a third time the exclusive

discretion of the trial judge to control his calendar, although it conceded that a request for

modification sent to the local ADA coordinator may serve as a motion for continuance:

        Should medical necessity require that the trial be continued from the set trial date,
        you may petition the court for a continuance of the date. Alternatively, you may
        request a continuance as a modification under the ADA. Due to the potential
        impact of such a modification on the judicial program, it would be appropriate for
        the Local Judicial Program ADA Coordinator to consult with the judge hearing
        the case as a part of the decision making process.

R. 11-16 at 2 (PgID 206). Similarly, Paragraph VI(J) of the current version of the policy states:

“If the Local Judicial Program ADA Coordinator determines that additional time may be

necessary in order to achieve and/or obtain Modification, the Local Judicial Program ADA

Coordinator shall notify the judge presiding over the matter, who will determine an appropriate

course of action.” Tenn. Admin. Office of Courts, Judicial Branch ADA Policy (2.07), at 4

(Nov.    14,    2008),    available     at   http://www.tsc.state.tn.us/sites/default/files/policy_2-

07_americans_with_disabilities_act_1.pdf. Beyond being able to notify a judge of a potential

difficulty arising out of the litigant’s disability, the local coordinator is powerless to grant

additional time as part of a requested modification. Once the local coordinator forwarded

Marks’s requests to the trial judge, the local coordinator became irrelevant to the outcome of the

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No. 13-5299, Marks v. Tennessee


request. Because there is no indication that the coordinator delayed in performing the only

reasonable action within her authority, she did not discriminate against Marks.

       This policy respects the longstanding principle that a judge maintains full control of his

calendar. See Elliot v. Life of the South Ins. Co., 296 S.W.3d 64, 70 (Tenn. Ct. App. 2008);

Tenn. Code Ann. § 20-7-101. Trial courts in Tennessee “possess broad discretionary authority to

control their dockets and the proceedings in their courts.” Hessmer v. Hessmer, 138 S.W.3d 901,

904 (Tenn. Ct. App. 2003); see also Smith v. Daniel, 46 F.2d 740, 742 (6th Cir. 1931). This

power necessarily implies that motions for continuance are within the exclusive jurisdiction of

the judge presiding over the proceedings.

       In a sense, Marks created the dispute that he alleges caused his injuries. He chose to

contest the handling of his requests for modification, rather than accepting the local coordinator

and trial judge’s determination that the requests should have been fashioned as motions for

continuance addressed directly to the court. Although we sympathize with Marks’s plight, the

law provides no remedy for injuries that may have been caused in small part by the burdens of

basic legal (and administrative) processes.

       The judgment is accordingly affirmed.




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