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Robertson v. Jessup

United States District Court, D. Kansas

July 7, 2017



          DAVID J. WAXSE U.S. Magistrate Judge

         Plaintiff, a state prisoner appearing pro se and in forma pauperis, filed this civil rights complaint pursuant to 42 U.S.C. § 1983. Mr. Robertson claims that Defendant, who is Clerk of the District Court of Butler County, Kansas, failed to send him notice of an order of the court in a state lawsuit, which caused Plaintiff to miss the deadline to appeal. For the reasons discussed below, Plaintiff's complaint is subject to dismissal without prejudice.

         Statutory Screening of Prisoner and In Forma Pauperis Complaints

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of such entity to determine whether summary dismissal is appropriate. 28 U.S.C. § 1915A(a). Additionally, with any litigant, such as Plaintiff, who is proceeding in forma pauperis, the Court has a duty to screen the complaint to determine its sufficiency. 28 U.S.C. § 1915(e)(2). Upon completion of this screening, the Court must dismiss any claim that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2)(B).

         To survive this review, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In applying the Twombly standard, the Court must assume the truth of all well-pleaded factual allegations in the complaint and construe them in the light most favorable to the plaintiff. See Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10thCir. 2011). While a pro se plaintiff's complaint must be liberally construed, Erickson v. Pardus, 551 U.S. 89, 94 (2007), pro se status does not relieve the plaintiff of “the burden of alleging sufficient facts on which a recognized legal claim could be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).


         Plaintiff filed a lawsuit in the Butler County District Court on July 31, 2015, against a nurse at the El Dorado Correctional Facility. The defendant's attorney filed an entry of appearance after the deadline to answer, then filed a motion for extension of time to answer on October 6, 2015. Defendant Jessup signed a fourteen day extension order on October 6, even though the deadline to answer had already passed. Plaintiff attempted to file a motion for default judgment on September 24, 2015, but Defendant Jessup “refused to allow” Plaintiff to file his motion, relying on a new Kansas law requiring the payment of $195 or a new verified poverty affidavit to be submitted with each dispositive motion.

         On May 13, 2016, the judge signed a journal entry granting the defendant's motion to dismiss. Plaintiff claims Defendant Jessup failed to mail him a copy of the journal entry in violation of state law. This failure caused Plaintiff to lose the right to appeal the dismissal.

         Mr. Robertson seeks a “declaration that the acts and omissions described herein violated Plaintiff's rights under the United States Constitution, ” as well as preliminary and permanent injunctions. In addition, Plaintiff requests compensatory damages in the amount of $50, 000 and punitive damages in the amount of $500, 000.


         After reviewing Plaintiff's complaint with the standards set out above in mind, the Court finds that the complaint is subject to summary dismissal under 28 U.S.C. § 1915A(b) and 28 U.S.C. § 1915(e)(2) because Plaintiff seeks monetary damages from a defendant who is immune from such relief and because he fails to state a claim on which relief may be granted.

         Plaintiff names Janell Jessup, Clerk of the Butler County District Court, in her official and individual capacity, as the defendant in this case. The Eleventh Amendment bars suit against a state official in her official capacity because the real party in interest is the State. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989)(“[N]either a state nor its officials acting in their official capacities are ‘persons' under § 1983.”). Defendant is a state official. As such, she is not a person who can be sued under § 1983 in her official capacity.

         Moreover, Defendant is entitled to absolute immunity from claims for damages in her individual capacity as well. Court clerks and their agents are generally entitled to absolute quasi-judicial immunity. Coleman v. Farnsworth, 90 F. App'x 313, 316-17 (10th Cir. 2004). The Tenth Circuit described the immunity afforded a court clerk in Coleman:

It is well established in this circuit that a judge is absolutely immune from civil liability for judicial acts, unless committed in clear absence of all jurisdiction, and the same immunity continues even if “flawed by the commission of grave procedural errors.” Whitesel v. Sengenberger,222 F.3d 861, 867 (10th Cir. 2000)(quotation marks and citation omitted). Moreover, judges are “absolutely immune regardless of their motive or good faith, ” Smith v. Losee,485 F.2d 334, 342 (10th Cir. 1973)(citing Doe v. McMillan,412 U.S. 306, 319, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973)), “even when the judge is accused of acting maliciously and corruptly.” Pierson v. Ray,386 U.S. 547, 553, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). We have extended the same immunity to judicial officers where performance of a judicial act is involved or their duties have an integral relationship with the judicial process. See Whitesel, 222 F.3d at 867; Lundahl v. Zimmer,296 F.3d 936, 939 (10th Cir. 2002), cert. denied,538 U.S. 983, 123 S.Ct. 1797, 155 L.Ed.2d 675 (2003). Applying this standard, we have held a court clerk enjoys absolute quasi-judicial immunity when he or she performs a “judicial act, ” such as entry of a default judgment. See Lundahl, 296 F.3d at 939. While we have held court ...

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