Morgan, Jr. v. Serra

Filing 9

MEMORANDUM AND ORDER overruling plaintiff Robert S. Morgan, Jr.'s 8 Motion To Open Case Due To Postal Error. Signed by Chief Judge Kathryn H. Vratil on 5/1/2013. Mailed to pro se plaintiff Robert S. Morgan, Jr. by regular mail. (mg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROBERT S. MORGAN, JR.

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Plaintiff,
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v.
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ROBERT L. SERRA,
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Defendant.
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____________________________________)

CIVIL ACTION
No. 13-2084-KHV

MEMORANDUM AND ORDER
On February 15, 2013, plaintiff filed a civil complaint. On March 15, 2013, the Court
ordered plaintiff to show cause in writing on or before April 5, 2013, why this action should not be
dismissed for failure to state a claim upon which relief can be granted on the ground that defendant
is entitled to judicial immunity in this action. See Notice And Order To Show Cause (Doc. #6).
Because plaintiff did not file a response on or before April 5, the Court entered an order dismissing
plaintiff’s complaint without prejudice. See Order (Doc. #7) filed April 16, 2013.
Plaintiff then filed a motion asking the Court to reopen his case. Motion To Open Case Due
To Postal Error (Doc. #8) filed April 19, 2013. He appended his response to the Notice And Order
To Show Cause, along with copies of postal receipts showing that a letter he sent to the courthouse
by certified mail was delivered on April 2, 2013. Docs. #8-1, 8-2. However, his response did not
include the caption of this case and court personnel were unable to determine that it was to be filed
in this civil action. Because plaintiff submitted his response before April 5, however, the Court now
considers it.
In the Notice And Order To Show Cause (Doc. #6), Magistrate Judge David J. Waxse
reviewed the allegations of plaintiff’s complaint which names as defendant the state court judge

who entered a small claims judgment against plaintiff. Recognizing the established principle that
a judge is generally immune from suit for money damages, Judge Waxse suggested that plaintiff’s
complaint may fail to state a claim upon which relief may be granted because defendant is entitled
to immunity. He therefore ordered plaintiff to show cause why this action should not be dismissed
for that reason. Plaintiff’s response does not demonstrate that any facts or legal arguments exist
which would overcome defendant’s entitlement to judicial immunity. Accordingly, for the reasons
set forth in the Notice And Order To Show Cause (Doc. #6), the Court OVERRULES plaintiff’s
Motion To Open Case Due To Postal Error (Doc. #8) filed April 19, 2013.
IT IS SO ORDERED.
Dated this 1st day of May, 2013 at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge

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