Burgie et al v. Hannah et al

Filing 6

ORDER dismissing pltfs' complaint with prejudice for failure to state a claim upon which relief may be granted; this dismissal counts as a "strike"; judgment will be entered accordingly. Signed by Chief Judge J. Leon Holmes on 3/23/12. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
ERIC C. BURGIE, ADC #120956;
and SAMUEL L. HENDERSON, ADC #120748
v.

PLAINTIFFS

NO. 4:12CV00051 JLH

JIM R. HANNAH, et al.

DEFENDANTS
ORDER

Plaintiffs Eric C. Burgie and Samuel L. Henderson, currently incarcerated at the Tucker
Maximum Security Unit of the Arkansas Department of Correction (“ADC”), filed a pro se complaint
on January 25, 2012, naming as Defendants Justices Jim R. Hannah, Donald L. Corbin, Paul E.
Danielson, Robert L. Brown, Elana Willis, Annabelle Clinton Imber, and Jim Gunter of the Arkansas
Supreme Court; along with Sue Newberry, Arkansas Supreme Court Criminal Justice Coordinator,
and Leslie W. Steen, Clerk of the Courts for the Arkansas Supreme Court.
I. Screening
Before docketing the complaint, or as soon thereafter as practicable, the Court must review
the complaint to identify cognizable claims or dismiss the complaint if it: (1) is frivolous or malicious;
(2) fails to state a claim upon which relief may be granted; or (3) seeks monetary relief against a
defendant who is immune from such relief. See 28 U.S.C. § 1915A. Fed. R. Civ. P. 8(a)(2) requires
only “a short and plain statement of the claim showing that the pleader is entitled to relief.” In Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (abrogating Conley v. Gibson, 355 U.S. 41 (1967),
and adopting a new standard for failure to state a claim upon which relief may be granted), the Court
stated, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do . . . . Factual allegations must be enough to raise a right to relief above the speculative level,”

citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004).
A complaint must contain enough facts to state a claim to relief that is plausible on its face, not
merely conceivable. Twombly at 570. However, a pro se plaintiff’s allegations must be construed
liberally. Burke v. N.D. Dept. of Corr. & Rehab., 294 F.3d 1043, 1043-1044 (8th Cir. 2002) (citation
omitted).
II. Analysis
According to the complaint, in November of 2009 Burgie attempted to file pleadings to
reopen the direct appeal of his criminal conviction, which had been previously closed, but Burgie’s
submissions were returned unfiled by Steen and Newberry. Plaintiffs relate that Newberry wrote
Burgie a letter stating that the Arkansas Supreme Court specifically directed her to reject any pleading
in a closed direct appeal that seeks to reopen the direct appeal.
Plaintiffs also contend that both Burgie and Henderson have attempted to file motions to
recall the mandate, pursuant to Arkansas Supreme Court Rule 5-3(d), but Newberry and Steen have
returned the pleadings, stating that there is no basis for filing the motion under the prevailing rules
of state procedure. Finally, Plaintiffs assert that Burgie filed a motion for rule on the clerk, once
Newberry and Steen rejected his motion to recall the mandate, but that motion was denied by the
Arkansas Supreme Court without opinion.
Seven Defendants are Arkansas Supreme Court Justices. “Judges performing judicial
functions enjoy absolute immunity from § 1983 liability.” Robinson v. Freeze, 15 F.3d 107, 108 (8th
Cir. 1994). Like other forms of official immunity, judicial immunity is an immunity from suit, not just
from the ultimate assessment of damages. Mireless v. Waco, 502 U.S. 9, 11 (1991). Whether a
judge’s act can be considered “judicial” depends on the nature of the act itself, that is, whether the

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act is a function normally performed by a judge in his judicial capacity. See Forrester v. White, 484
U.S. 219, 228-29 (1988); Stump v. Sparkman, 435 U.S. 349, 362 (1978). To the extent that any
justice has refused to accept pleadings from either Plaintiff, such acts were undertaken in the
performance of their judicial functions. Accordingly, Hannah, Corbin, Danielson, Brown, Willis,
Imber, and Gunter, are entitled to immunity, and Plaintiffs’ claims against them should be dismissed.
Neither Newberry nor Steen is a judge. Burgie challenged Newberry’s actions regarding his
efforts to reopen his direct appeal in Burgie v. Hannah, No. 4:09CV920 (E.D. Ark.). That case was
dismissed, the dismissal was affirmed by the Eighth Circuit, and ultimately the United States Supreme
Court denied Burgie’s petition for a writ of certiorari. Accordingly, Burgie’s claim regarding his
direct appeal is precluded by the doctrine of collateral estoppel. Collateral estoppel is appropriate
when four elements are present: (1) the issue sought to be precluded is identical to the issue
previously decided, (2) the prior action resulted in a final adjudication on the merits, (3) the party
sought to be estopped was either a party or in privity with a party to the prior action, and (4) the
party sought to be estopped was given a full and fair opportunity to be heard on the issue in the prior
action. Irving v. Domire, 586 F.3d 645, 647-48 (8th Cir. 2009) (internal citations omitted). Burgie
himself was the only plaintiff in the previous case. Although Steen was not in Burgie’s previous
action, Burgie’s claims in the instant case regarding the denial of his attempts to reopen his direct
appeal are identical to those in his previous case, and there was a final adjudication on the merits in
the earlier case. Burgie’s earlier case was decided on Defendant’s motion for summary judgment.
Burgie had an opportunity to, and in fact did, respond to the motion before it was decided. The
United States Court of Appeals for the Eighth Circuit conducted a de novo review of the record
before affirming the dismissal. Accordingly, Burgie had a full and fair opportunity to be heard, all

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elements are met, and Burgie’s claim relating to his direct appeal is precluded by the doctrine of
collateral estoppel.
Both Plaintiffs assert that Steen and Newberry denied them access to the courts when they
refused to file Plaintiffs’ motions to recall the mandate, pursuant to Arkansas Supreme Court Rule
5-3(d). Additionally, after that denial, Burgie filed a motion for rule on the clerk, which was denied
by the Arkansas Supreme Court.1 Thus, the refusal to file Burgie’s motion to recall the mandate was
ultimately the result of action by the Arkansas Supreme Court Justices, who are immune from suit.
Therefore, Steen and Newberry did not deny Burgie access to the courts, and nothing they did caused
Burgie any prejudice in his attempt to recall the mandate. There is no allegation that Henderson filed
a motion for rule on the clerk. If Henderson is dissatisfied with Steen and Newberry’s refusal to file
his motion to recall the mandate, he should seek relief from the Arkansas Supreme Court. If Burgie
is dissatisfied with the Arkansas Supreme Court’s ruling, he must appeal that to the United States
Supreme Court. See Atl. Coast Line R.R. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 296 (1970)
(lower federal courts possess no power to sit in review of a state court decision); Rooker v. Fidelity
Trust Co., 263 U.S. 413, 415-16 (1923) (district courts may not exercise appellate jurisdiction over
state courts); Williams v. McKenzie, 834 F.2d 152, 153 (8th Cir. 1987) (federal courts are not
empowered to review state court proceedings even if a federal claim has been asserted therein); see
28 U.S.C. § 1257 (providing for United States Supreme Court review of state court judgments only

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Arkansas Supreme Court Rule 2-2(b) provides that if an appellant believes the Clerk is in
error in refusing to docket the record, upon payment of the filing fee, the case will be tentatively
docketed and numbered. The Rule further provides that if the motion is granted, the case proceeds
in the regular manner. If it is denied, the case is stricken from the record.
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through writ of certiorari). Accordingly, Plaintiffs’ complaint must be dismissed for failure to state
a claim upon which relief may be granted.
III. Conclusion
IT IS THEREFORE ORDERED THAT:
1.

Plaintiffs’ complaint is DISMISSED WITH PREJUDICE for failure to state a claim

upon which relief may be granted.
2.

This dismissal counts as a “strike” for purposes of 28 U.S.C. § 1915(g).

3.

The Court certifies that an in forma pauperis appeal taken from the order and

judgment dismissing this action is considered frivolous and not in good faith.
DATED this 23rd day of March, 2012.

UNITED STATES DISTRICT JUDGE

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