Butera v. Crane, Jr.

Filing 11

ORDER that this civil action is dismissed for lack of jurisdiction and failure to state a claim for relief, by Judge Richard P. Matsch on 4/4/2014. (evana, ) (Modified on 4/4/2014 This is a Docketing Error and it is NOT a part of this case)(evana, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior District Judge Richard P. Matsch
Civil Action No. 13-cv-03227-RPM
DONALD K. HYER,
Plaintiff,
v.
MICHELLE LUCERO,
Defendant.
_____________________________________________________________________
ORDER FOR DISMISSAL
_____________________________________________________________________
In this civil action Donald K. Hyer seeks recovery of damages under 42 U.S.C. §
1983 from Michelle Lucero, Division Clerk to Boulder County District Court Judge
Mulvahill, claiming that she falsely informed the Colorado Department of Corrections
that the judge had signed a new Mittimus adding a one year mandatory parole term to
the sentence imposed by Judge Sandstead on May 23, 2003. As a result the plaintiff
claims he was forced to sign a parole agreement as a sex offender on parole and he
has served additional time in custody before he was unconditionally released in 2012.
He claims a violation of the Fourth and Fourteenth Amendments to the United States
Constitution because the defendant’s conduct resulted in deprivation of his liberty.
The defendant filed a motion to dismiss under Fed.R.Civ.P. 12(b)(1) and
12(b)(6), claiming lack of subject matter jurisdiction under Heck v. Humphrey, 512 U.S.
477 (1954) and absolute immunity as a judicial officer [Doc. 5]. The plaintiff responded
on March 9, 2014, [Doc. 8]. In that response he contends that although Judge Mulvahill

did order an amended Mittimus, it was days later and the judge was without jurisdiction
because Mr. Hyer had already served the sentence.
The plaintiff filed a supplement to his response on March 23, 2014 [11]. He
claims that Ms. Lucero had no authority to issue an Amended Mittimus because Judge
Mulvahill did not have jurisdiction to order it.
In the Reply filed March 27, 2014, [Doc. 12], the defendant shows that there is an
appeal pending in the Colorado Court of Appeals from Judge Mulvahill’s denial of a
motion under Colorado Rule of Criminal Procedure 35, asserting that the sentence
imposed by Judge Mulvahill was illegal.
That question is central to the plaintiff’s claim against Ms. Lucero and this Court
will not interfere with the ongoing criminal proceedings. Younger v. Harris, 91 S. Ct.
746 (1971).
The plaintiff has failed to overcome the claim of quasi judicial immunity for the
actions of a division clerk to a district judge and qualified immunity is also applicable to
this case.
Accordingly, it is
ORDERED that this civil action is dismissed for lack of jurisdiction and failure to
state a claim for relief.
DATED: April 4th, 2014
BY THE COURT:
s/Richard P. Matsch
__________________________
Richard P. Matsch, Senior Judge

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