United States District Court, D. Kansas
NOTICE AND TO SHOW CAUSE
J. WAXSE U.S. Magistrate Judge
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.
Screening of Prisoner and In Forma Pauperis
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. §
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.
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
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.
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.
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.
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
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
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 ...