United States District Court, D. Kansas
BRENNAN R. TRASS, Plaintiff,
TRISH ROSE and THOMAS STANTON, Defendants.
MEMORANDUM AND ORDER
CROW, U.S. SENIOR DISTRICT JUDGE.
matter is a civil rights action filed under 42 U.S.C.
§1983. Plaintiff, a pretrial detainee, proceeds pro se
and submitted the filing fee in installments.
February 9, 2018, the Court issued a Notice and Order to Show
Cause (NOSC) directing plaintiff to show cause why this
matter should not be dismissed. The NOSC cited the judicial
immunity that shields defendant Rose, a state district court
judge, and the prosecutorial immunity that protects defendant
Stanton, an assistant district attorney.
filed a timely response which incorporates an amended
response and amended complaint allege the defendants have
denied plaintiff a speedy trial, that the defendant judge no
longer has jurisdiction in the plaintiff's state criminal
case, that the defendants conspired to falsify the records to
change the scheduled trial date, and that defendants violated
plaintiff's rights by not allowing him to be present at
some of the continuance hearings.
is absolutely immune from a civil rights suit based on
actions taken in a judicial capacity, unless the judge acted
in the clear absence of all jurisdiction. See Mireles v.
Waco, 502 U.S. 9, 11-12 (1991). This immunity “is
not overcome by allegations of bad faith or malice, ”
id., but is available only where a judge “acts
clearly without any colorable claim of jurisdiction.”
Snell v. Tunnell, 920 F.2d 673, 686 (10th
prosecutor is entitled to absolute immunity for conduct that
is “intimately associated with the judicial phase of
the criminal process[.]” Imbler v. Pachtman,
424 U.S. 409, 430 (1976). This conduct includes action taken
“in initiating a prosecution and in presenting the
State's case” and may involve action
“preliminary to the initiation of a prosecution and
actions apart from the courtroom.” Id. at 431
where a prosecutor is acting as an administrator or in an
investigatory role, the prosecutor is entitled only to
qualified immunity. Buckley v. Fitzsimmons, 509 U.S.
259, 273-74 (1993). To determine whether a prosecutor is
entitled to absolute immunity against a claim, a court must
examine “‘the nature of the function performed,
not the identity of the actor who performed it.'”
Kalina v. Fletcher, 522 U.S. 118, 127 (1997)(quoting
Forrester v. White, 484 U.S. 219, 229 (1988)).
case, the Court concludes the plaintiff's claims are
barred by the defendants' immunities.
claims against the defendant district judge do not suggest
any act that was taken beyond her jurisdiction.
Plaintiff's claims appear to arise from the judge's
ruling on a motion in limine, an act clearly within the
judicial role, while his claims against both defendants
likewise involve both prosecutorial and judicial activity,
which are protected by absolute immunities. Plaintiff
identifies no actions by the prosecutor that appear to be
investigatory or otherwise outside the advocacy role.
plaintiff's bare allegation of a conspiracy between the
defendants to alter the record is not factually supported.
The portion of the March 4, 2016, transcript plaintiff
submits shows a discussion to address a continuance sought by
the plaintiff's counsel and a trial setting of May 24
(Doc. #6, p. 17); on the same day, however, defendant Rose
entered an order of continuance which moved the trial date to
June 14, 2016 (id., p. 18). This discrepancy does
not persuade the Court of a conspiracy. The docket sheet
provided by plaintiff contains a minutes entry dated March
15, 2016, continuing the trial from March 22, 2016, to June
14, 2016. No. objection to that date appears on the docket.
On May 26, 2016, counsel for plaintiff moved for an
additional continuance, which was granted (id., p.
11). While this sequence of events suggests some difficulty
is scheduling a time for trial, it does not suggest a
conspiracy or malfeasance by the defendants. See Smith v.
United States, 561 F.3d 1090, 1098 (10th Cir.
2009)(where allegations in a complaint are “so general
that they encompass a wide swath of conduct, much of it
innocent”, the plaintiff has not presented claims that
to the extent plaintiff asks this Court to enter an
injunction and a temporary restraining order in the state
criminal case, his claim sounds in mandamus. However, a
federal court has no authority to issue a writ of mandamus
“to ‘direct state courts or their judicial
officers in the performance of their duties.'”
Van Sickle v. Holloway, 791 F.2d 1431, 1436
(10th Cir. 1986)(quoting Haggard v.
Tennessee, 421 F.2d 1384, 1386 (6th Cir. 1970)).
alternative, if this matter were liberally construed as a
pretrial habeas corpus action under 28 U.S.C. § 2241,
plaintiff would not be entitled to relief, as he first must
exhaust state court remedies by presenting his federal claim
to the state courts, including the state appellate courts,
before seeking federal habeas corpus relief. See Capps v.
Sullivan, 13 F.3d 350, 354 n. 2 (10th Cir.
1993)(recognizing that case law directs federal courts to