Adams v. Pollard et al

Filing 9

OPINION: Plaintiff's complaint is dismissed without prejudice for failure to state a claim and as barred by absolute immunity pursuant to 28 U.S.C.§ 1915A. The Court will afford Plaintiff the opportunity to amend his complaint if he beli eves he can state a claim. Plaintiff shall file an amended complaint, if any, on or before June 26, 2017. Plaintiff's Motion for Appointment of Counsel 5 is DENIED AS MOOT with leave to refile. SEE WRITTEN ORDER. Entered by Judge Sue E. Myerscough on 06/05/2017. (SKN, ilcd)

E-FILED

Tuesday, 06 June, 2017 10:05:12 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
ALLEN D. ADAMS,
Plaintiff,
v.
RANDY POLLARD, Jefferson
County Circuit Clerk, TIMOTHY
NEUBAUER, 2nd Circuit Judge,
CHERE KAY GARNER, Cass
County Circuit Clerk, and
THOMAS BRANNAN, 8th Circuit
Judge,
Defendants.

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No. 17-3121

MERIT REVIEW OPINION
Plaintiff filed this case pro se from the Big Muddy River
Correctional Center. The case is before the Court for a merit review
pursuant to 28 U.S.C. § 1915A. This statute requires the Court to
review a complaint filed by a prisoner to identify the cognizable
claims and to dismiss part or all of the complaint if no claim is
stated.
In reviewing the Complaint, the Court accepts the factual
allegations as true, liberally construing them in Plaintiff's favor.

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Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013). However,
conclusory statements and labels are insufficient. Enough facts
must be provided to "'state a claim for relief that is plausible on its
face.'" Alexander v. U.S., 721 F.3d 418, 422 (7th Cir. 2013) (quoted
cite omitted).
On May 3, 2017, Plaintiff filed a Complaint (d/e 1) pursuant to
42 U.S.C. § 1983 against Randy Pollard, the Jefferson County,
Illinois, Circuit Clerk; Timothy Neubauer, an associate judge in the
Second Judicial Circuit Court in Jefferson County, Illinois; Chere
Kay Garner, the Cass County, Illinois, Circuit Clerk; and Thomas
Brannan, an associate judge in the Eighth Judicial Circuit Court in
Cass County, Illinois. The allegations in Plaintiff’s complaint and
the reasonable inferences drawn from those allegations, as well as
the documents attached to the Complaint, present the following
information.
Between October and November 2016, Plaintiff tried to file a
petition for dissolution of marriage and related paperwork in the
Jefferson County Circuit Court “on a previous dissolution of
marriage.” Compl. at 6. The paperwork was returned to him
without being filed.
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Subsequently, Plaintiff attempted to file a petition for
dissolution of marriage and related paperwork relating to his
marriage to Kimberly Adams. On December 5, 2016, Judge
Neubauer directed the Circuit Clerk to return “all documents” to
Plaintiff and to not “file any pleadings.” See d/e 1 at 10. The order
also stated that Plaintiff needed to attempt to serve a signed entry of
appearance from Plaintiff’s wife, Kimberly Adams, and a signed
proposed judgment by both parties. Id. A copy of the order was
mailed to Plaintiff.
Plaintiff attempted to serve Adams with an entry of
appearance, waiver of service of summons, and consent to default
judgment, but the mail was returned to Plaintiff. Plaintiff also
received the envelope he had sent to Adams marked “unreachable.”
Id. The envelope was opened and missing the petition for
dissolution of marriage Plaintiff had sent to Adams. A few weeks
later, Plaintiff received from the Cass County Circuit Court his
dissolution of marriage documents, including the petition for
dissolution, with “Jefferson County” crossed out in the heading and
replaced by “Cass County.”

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Irene Cavazos (Plaintiff does not further identify this
individual) contacted the Cass County Circuit Clerk on February
28, 2017 with regard to Plaintiff being transferred from Big Muddy
Correctional Center to appear in court in Cass County for a divorce
Plaintiff filed in Jefferson County. The Circuit Clerk told Cavazos
that she, the Circuit Clerk, changed the caption when she received
Plaintiff’s paperwork because she assumed that the documents
were meant to be filed in Cass County. Cavazos told the Circuit
Clerk that the paperwork had been sent to Cass County to be
served on Adams, who resided in Cass County. The Circuit Clerk
contacted Cavazos a few hours later and advised Cavazos that the
Circuit Clerk had called the Jefferson County judge. The Jefferson
County judge—presumably Judge Neubauer, but this is not clear—
reported that the Jefferson County case was closed and had been
moved to Cass County because Adams was served in Cass County.
The next day, Plaintiff was transferred from prison to appear in
court on March 3, 2017 in Cass County. The divorce was granted.
No appeal was filed. In this lawsuit, Plaintiff seeks damages in
excess of $210,000 and court costs.

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The Court has also reviewed the electronic docket for both
Cass County and Jefferson County. See, e.g.,  Olson v. Champaign
Cnty., Ill., 784 F.3d 1093, 1096 n.1 (7th Cir. 2015) (a court may
take judicial notice of documents in the public record when ruling
on a motion to dismiss under Rule 12(b)(6)). The Cass County
docket sheet shows that a petition for dissolution was filed on
January 9, 2017; summons was returned on February 16, 2017;
Plaintiff appeared in court on March 3, 2017; and the judgment of
dissolution of marriage was entered on March 6, 2017.1 The
Jefferson County docket sheet shows that a petition for dissolution
was filed on February 11, 2017, and dismissed on March 1, 2017,
when the deputy clerk was advised by the Cass County Circuit
Clerk that the case was completed in Cass County.2
To state a claim pursuant to 42 U.S.C. § 1983, Plaintiff must
allege (1) the deprivation of a right secured by the Constitution or
laws of the United States; and (2) the alleged deprivation was
committed by a person acting under the color of state law.

1

http://www.judici.com/courts/cases/case_history.jsp?court=IL009015J&ocl=I
L009015J,2017D1,IL009015JL2017D1P1 (last visited June 5, 2017). 
2

http://www.judici.com/courts/cases/case_history.jsp?court=IL041025J&ocl=I
L041025J,2017D28,IL041025JL2017D28P1 (last visited June 5, 2017). 

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Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 822 (7th
Cir. 2009). The Court interprets Plaintiff’s claim as a denial-ofaccess-to-the-courts claim. Prisoners have a constitutional right of
access to the courts. Bounds v. Smith, 430 U.S. 817, 821 (1977).
The First Amendment right to petition and the Fourteenth
Amendment right to substantive due process protect an individual’s
right to pursue legal redress for claims that have a reasonable basis
in law. Snyder v. Nolen, 380 F.3d 279, 291 (7th Cir. 2004).
As an initial matter, the Court notes that both judges are
entitled to absolute immunity. A judge is entitled to absolute
immunity for his judicial acts unless he acted in the clear absence
of jurisdiction, even if the action is erroneous, malicious, or in
excess of her authority. Brokaw v. Mercer Cnty., 235 F.3d 1000,
1015 (7th Cir. 2000). The acts by Jefferson County Judge
Neubauer and Cass County Judge Brannan—which involve Judge
Neubauer issuing a written order to the Circuit Clerk directing the
Circuit Clerk to return Plaintiff’s paperwork and Judge Brannan
deciding Plaintiff’s dissolution of marriage case—are judicial acts.
See, e.g., Tittle v. State of Wis., No. 07-C-739, 2007 WL 4206965, at
*4 (E.D. Wis. Nov. 27, 2007) (“A judge’s decision to schedule dates
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or enter orders in a case are judicial acts with respect to which the
judge has absolute judicial immunity.”). Plaintiff does not allege
that either judge acted in clear absence of jurisdiction. Moreover,
Circuit Clerk Pollard is entitled to immunity to the extent Judge
Neubauer ordered him to return the documents to Plaintiff. Kincaid
v. Vail, 969 F.2d 594, 601 (7th Cir. 1992) (holding that clerks were
entitled to absolute immunity where the judge directed them to
return the complaint and filing fee to the plaintiffs and tell the
plaintiffs to file the documents in another court).
Plaintiff’s Complaint also alleges, however, other instances
when his pleadings were purportedly returned to him without being
filed. Liberally construed, these allegations suggest other instances
when Jefferson County Circuit Clerk Pollard returned documents to
Plaintiff without a court order, in which case, absolute immunity
does not apply. Snyder, 380 F.3d at 288-89 (finding the clerk was
not entitled to absolute immunity where he was not acting at the
direction of the judge when he returned the documents).
Plaintiff’s complaint fails to state a claim, however, because
Plaintiff does not allege any injury. See Christopher, 536 U.S. at
415 (noting that the right of access is “ancillary to the underlying
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claim, without which a plaintiff cannot have suffered injury by
being shut out of court”); In re Maxy, 674 F.3d 658, 661 (7th Cir.
2012) (finding the plaintiff did not allege an actual injury and,
therefore, did not state a claim for a denial of his right to access the
courts); see also, e.g., Marks v. City of Wausau, 590 F. App’x 634,
635 (7th Cir. 2015) (affirming summary judgment in favor of the
defendants on the plaintiff’s denial-of-access claim; the plaintiff did
not suffer an actual injury by the defendants’ refusal to file court
documents or otherwise enable him to appeal his municipal court
convictions because the plaintiff was allowed to proceed with his
appeal). Plaintiff received the relief he requested—the dissolution of
his marriage.
Finally, Plaintiff’s claim against Cass County Circuit Clerk
Garner fails to state a claim because he alleges no facts suggesting
that she denied him access to the court, as she filed Plaintiff’s
pleadings.
IT IS THEREFORE ORDERED:
1)

Plaintiff's complaint is dismissed without prejudice for

failure to state a claim and as barred by absolute immunity
pursuant to 28 U.S.C. § 1915A. The Court will afford Plaintiff the
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opportunity to amend his complaint if he believes he can state a
claim. See, e.g., Smith v. Knox Cnty. Jail, 666 F.3d 1037, 1040
(7th Cir. 2012) (noting that a pro se plaintiff should be given an
opportunity to amend his complaint before the Court dismisses the
complaint with prejudice). Plaintiff shall file an amended
complaint, if any, on or before June 26, 2017.
2)

Plaintiff’s Motion for Appointment of Counsel (d/e 5) is

DENIED AS MOOT with leave to refile. Moreover, Plaintiff does not
identify what attempts he has made to retain counsel.
ENTERED: June 5, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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