Adkins v. Kansas Commission on Judicial Qualifications
Filing
15
MEMORANDUM AND ORDER. The defendants motion to review (Dk. 10) the magistrate judges order (Dk. 7) is summarily denied. As set out in this Memorandum and Order, the plaintiffs complaint utterly fails to state a cognizable claim for relief. Additiona lly, the plaintiffs claims are plainly barred on Eleventh Amendment immunity and quasi-judicial absolute immunity. The court hereby orders the plaintiff to show cause why the court should not dismiss the plaintiffs action. The plaintiff will have t hirty days from the filing date of this order to file with the court an amended complaint and a separate memorandum that address and/or cure each of the legal and factual deficiencies addressed in this screening order. Signed by U.S. District Senior Judge Sam A. Crow on 10/20/2011. Mailed to pro se party: Mr. Ebrahim Adkins, 6105 Corona Avenue, Kansas City, KS 66102 by certified mail; Certified Tracking Number: 70101060000094210793 and by regular mail. (bmw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
EBRAHIM ADKINS,
Plaintiff,
Vs.
No. 11-4109-SAC
KANSAS COMMISSION ON
JUDICIAL QUALIFICATIONS,
Defendant.
MEMORANDUM AND ORDER
The case comes before the court on the defendant’s motion to
review (Dk. 10) the magistrate judge’s order (Dk. 7) that granted the
plaintiff’s motion for leave to proceed in forma pauperis (Dks. 2 and 6) and
that denied the plaintiff’s motion for appointment of counsel (Dk. 3). In this
order, this court also will exercise its authority under 28 U.S.C. §
1915(e)(2) and screen the plaintiff’s pleaded for frivolousness, failure to
state a claim for relief, and immunity of the defendant.
MOTION TO REVIEW MAGISTRATE JUDGE’S ORDER (Dk. 10).
The magistrate judge carefully reviewed the plaintiff’s affidavit
concluding that the plaintiff’s financial situation justified granting his motion
for leave to proceed in forma pauperis. (Dk. 7). The defendant moves for
review of this order in that “[t]he magistrate judge did not screen the case
for merit as is required by 28 U.S.C. § 1915(e).” (Dk. 11, p. 1).
Specifically, the defendant complains that “[i]n granting in forma pauperis
status, the magistrate did not consider 28 U.S.C. § 1915(e)(2)’s factors,
which is contrary to law.” Id. at p. 5. Finally, the defendant suggests the
magistrate judge assumed the role of advocate in informing the plaintiff that
a person or entity had to be named in the caption of the complaint in order
to be a party and that it was not enough to mention them in the body of the
allegations.1
The court summarily denies the defendant’s motion for review.
The defendant cites no legal authority for its proposition that a magistrate
judge in deciding a plaintiff’s in forma pauperis (“ifp”) request “is required”
to screen a case for merit pursuant to § 1915(e)(2). Unlike § 1915A, the
language of § 1915(e)(2) does not impose a duty to screen or review
“before docketing” or “as soon as practicable.”2 Instead, “§ 1915(e)(2)(i)
and (ii) require a court to dismiss a case filed by an ifp litigant at any time
The logic in this contention utterly escapes the court, for the same
argument could be made whenever a court makes a procedural ruling and
offers the losing party the opportunity to correct the procedural deficiency by
amendment.
1
The operation and relationship between the two are explained in this
quotation from Grayson v. Mayview State Hosp., 293 F.3d 103, 109 n.3 (3rd
Cir. 2002) (internal quotation marks and citations omitted):
“Section 1915A is applicable at the initial stage of the litigation, while
§ 1915(e)(2) [is] . . . applicable throughout the entire litigation
process. Thus, the PLRA [Prison Litigation Reform Act] sets up a
two-step dismissal process by which dismissal can occur early for the
facially inadequate complaints pursuant to the screening statute or can
occur later by either of the remaining provisions should it become
apparent that the case satisfies [one of these] sections.”
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‘the court determines that . . . the action or appeal . . . is frivolous [or] fails
to state a claim on which relief may be granted.” Merryfield v. Jordan, 584
F.3d 923, 926 n.3 (10th Cir. 2009). For non-prisoner ifp cases, like this one,
a court’s duty to dismiss arises with the determination that statutory
grounds exist for dismissal, but § 1915(e)(2) does not establish when this
determination must be made. The only time restriction is that dismissal
must occur sometime after ifp has been granted. Otherwise, the statute
permits a court to dismiss “at any time” this determination is made.3 28
U.S.C. § 1915(e)(2). The defendant cites no authority that requires a court
to consider § 1915(e)(2) as factors on a non-prisoner litigant’s ifp request.
In sum, the defendant’s motion is devoid of legal merit in arguing that the
magistrate judge acted contrary to the law in granting ifp without
simultaneously making a § 1915(e)(2) determination.4
Section 1915(e)(2)(B) Determination
By the terms of this statute, the court will make an initial
determination of whether the plaintiff’s pleaded action is “frivolous or
malicious,” “fails to state a claim on which relief may be granted,” or “seeks
“In essence, § 1915(e)(2) is a screening process, to be applied sua
sponte and at any time during the proceedings.” Marsh v. Department of
Children and Families, 2006 WL 2474019 at *4 (M.D. Fla. 2006), aff’d in part
and dismissed in part, 259 Fed. Appx. 201 (11th Cir. 2007).
3
Of course, there is nothing to prevent the defendant from exercising
its right to file a timely motion to dismiss pursuant to Fed. R. Civ. P. 12.
4
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monetary relief against a defendant who is immune from such relief.” A
court liberally construes a pro se complaint and applies “less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,
551 U.S. 89, 94 (2007). Still, a pro se litigant's “conclusory allegations
without supporting factual averments are insufficient to state a claim upon
which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). The court “will not supply additional factual allegations to round out
a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.”
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). The
court employs the same standard for dismissal under § 1915(e)(2)(B)(ii) as
that used for motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Kay v.
Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007). Further, a suit “is
frivolous where it lacks an arguable basis either in law or fact” or is “based
on an indisputably meritless legal theory.” Neitzke v. Williams, 490 U.S.
319, 325, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
To avoid dismissal, the complaint’s “factual allegations must be
enough to raise a right to relief above the speculative level.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). Put another
way, there must be “enough facts to state a claim to relief that is plausible
on its face.” Id. at 570. “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference
4
that the defendant is liable for the misconduct alleged.” Gallagher v.
Shelton, 587 F.3d 1063, 1068 (10th Cir. 2009) (quotation omitted). The
court accepts all well-pleaded allegations in the complaint as true and
considers them in the light most favorable to the non-movant. Anderson v.
Blake, 469 F.3d 910, 913 (10th Cir. 2006). “[W]hen the allegations in a
complaint, however true, could not raise a claim of entitlement to relief,”
dismissal is appropriate. Twombly, 550 U.S. at 558. The complaint must
offer “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action.” Id. at 555. Having reviewed the plaintiff’s
filed complaint, the court finds it is subject to dismissal for the following
reasons.
The plaintiff’s caption names as the only defendant the Kansas
Commission on Judicial Qualifications (“KCJQ”). Alleging that he filed three
complaints with the KCJQ, the plaintiff fails to identify any of the relevant
dates to these filings, and he further fails to describe plainly the nature and
substance of his filings. The plaintiff does attach the KCJQ letters he
received that explained the KCJQ’s authority was limited to investigating
unethical judicial conduct and its jurisdiction did not include reviewing legal
issues or matters involving judicial discretion for which appellate review lies
with higher courts. Nonetheless, the plaintiff seeks relief under 42 U.S.C. §
1983 claiming the KCJQ “condoned the Butler County District Court,
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Wyandotte County Municipal Court and Kansas Supreme Court” in denying
him appellate review (count one), indigent relief on appeal (count two), and
appellate counsel (count three). (Dk. 1, pp. 4, 6, and 7). He further claims
KCJQ “condoned the Wyandotte County Municipal Court” in denying him
(count four) the “filing of my documents” and the Butler County District
Court in “actions regarding summary judgment.” Id. at 8. On count one,
the plaintiff summarily claims the denial of his First Amendment right and
the retaliatory denial of his constitutional right of access to the courts. On
count two, he summarily claims the denial of his Fifth Amendment right and
the right of access to courts. On count three, he claims the denial of his
Sixth Amendment right to counsel. On count four, he claims the denial of
his Fourteenth Amendment right of access to the courts.
It does appear that the plaintiff’s complaints to KCJQ related to
the state courts’ handling of his criminal convictions. Under count one, he
asserts “a constitutional right to withdraw pleas and appeal my convictions
and habeas petitions.” (Dk. 1, p. 5). Under count three, he refers to
“indigent criminal appeals.” Id. at 8. In asserting he was denied due
process and the panoply of other rights for purposes of challenging his
convictions, the plaintiff’s § 1983 claims are barred under the rule of Heck v.
Humphrey, 512 U.S. 477 (1994). The Supreme Court in Heck held that
“where success in a prisoner's § 1983 damages action would implicitly
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question the validity of conviction or duration of sentence, the litigant must
first achieve favorable termination of available state, or federal habeas,
opportunities to challenge the underlying conviction or sentence.”
Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam). Thus, to the
extent that the plaintiff is asserting claims based on the denial of due
process and other rights in challenges to his convictions, these claims
implicitly question the validity of his convictions. Because the plaintiff does
not allege that any of his convictions were vacated, his claims are barred
under Heck.
The plaintiff’s entitles his complaint as seeking a writ of
mandamus against the KCJQ. A federal district’s mandamus authority
extends only to federal officials. See 28 U.S.C. § 1361 (“The district courts
have original jurisdiction of any action in the nature of mandamus to compel
an officer or employee of the United States or any agency thereof to perform
a duty owed to the plaintiff.”); see also Amisub (PSL), Inc. v. State of Colo.
Dep't of Social Services, 879 F.2d 789, 790 (10th Cir. 1989) (“No relief
against state officials or state agencies is afforded by § 1361.”), cert.
denied, 496 U.S. 935 (1990); Sockey v. Gray, 159 Fed. Appx. 821, 822
(10th Cir. 2005) (“Federal courts are without jurisdiction to grant a writ of
mandamus against state and local officials.”). The plaintiff’s complaint seeks
relief outside the court’s mandamus authority, and all such claims are
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subject to dismissal.
The capacity of a party to be sued in federal court is determined
“by the law of the state where the court is located.” Fed. R. Civ. P. 17(b). It
is well-established law in Kansas that subdivisions, agencies, or departments
of governmental entities lack the capacity to sue or be sued unless a statute
provides otherwise. See Hopkins v. State, 237 Kan. 601, 702 P.2d 311, 316
(1985) (“There is a line of Kansas cases which holds that subordinate
government agencies do not have the capacity to sue or be sued in the
absence of statute.”). The plaintiff’s complaint does not cite a statute, nor
has the court found one, that provides the KCJQ with the capacity to be sued
under circumstances as here. Thus, the plaintiff may not bring an action
against the named defendant.
In his response to the motion to review, the plaintiff seeks to
add the individual members of the KCJQ in their official and individual
capacities. For purposes of this order, the court will treat these individuals
as named defendants in this action. The claims against the commissioners
in their official capacities are claims against the State of Kansas. See Moore
v. Board of County Com'rs of County of Leavenworth, 507 F.3d 1257, 1258
(10th Cir. 2007). The Eleventh Amendment provides an immunity from
federal suits against state agencies for damages and other forms of relief.
Federal Maritime Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 765
8
(2002). This includes federal suits against state officers in their official
capacities, Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002), cert.
denied, 538 U.S. 999 (2003),5 but the Eleventh Amendment does not bar
such official capacity suits that seek only prospective relief, Chamber of
Commerce v. Edmondson, 594 F.3d 742, 760 (10th Cir. 2010). The court
does not find any genuinely cognizable claim for prospective relief. The
plaintiff’s pleading fails to specify the requested form of declaratory relief,
and whatever is requested appears to address only liability for past acts that
will not recur. Ysais v. New Mexico, 373 Fed. Appx. 863, 866, 2010 WL
1511403 (10th Cir.), cert. denied, 131 S. Ct. 88 (2010). The plaintiff pleads
as injunctive relief that his complaints filed with KCJQ “be reversed and all
relief requested be granted.” (Dk. 1, p. 14). As mentioned above, the
plaintiff does not allege the substance and nature of these filed complaints,
but they presumably parallel his claims here on being denied appellate
review, indigent relief on appeal and appellate counsel and on being
subjected to filing restrictions and a summary judgment ruling.6 All such
Moreover, “in Will v. Mich. Dep't of State Police, the Supreme Court
held that, in suits for damages, ‘neither a State nor its officials acting in their
official capacities are “persons” under § 1983.’ 491 U.S. 58, 71, 109 S.Ct.
2304, 105 L.Ed.2d 45 (1989).” Ross v. The Board of Regents of The
University of New Mexico, 599 F.3d 1114, 1117 (10th Cir. 2010).
5
To the extent that Plaintiff's claims for prospective relief are premised
on his rights furnished under state law, they are not cognizable under §
1983. Jones v. City and Cnty. of Denver, Colo., 854 F.2d 1206, 1209 (10th
6
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claims challenge the particular court’s exercise of discretionary judgment in
deciding issues ordinarily reviewed by appellate courts. These are not
matters over which the Commission appears to have jurisdiction to grant
any such requested relief.7 Thus, this court would have no legal basis for
granting this relief. In short, the court finds no authentic claim for
prospective relief against the individual members in their official capacity.
Suits seeking damages from state officials in their individual
capacities are not barred by the Eleventh Amendment, Cornforth v.
University of Oklahoma Bd. of Regents, 263 F.3d 1129, 1132-33 (10th Cir.
Cir.1988).
The KCJQ’s limited function and purpose is the investigation and
adjudication of ethical complaints against judges as hereby confirmed by this
recent Tenth Circuit decision:
“The Commission, also established by the Kansas Supreme Court, is
charged with investigating allegations against judges and candidates,
and recommending disciplinary action when necessary. See Kan.
Sup.Ct. R. 602-21. Its 14 members are appointed by the Supreme
Court and consist of a mix of judges, lawyers, and nonlawyers. Anyone
may submit a complaint regarding the conduct of a judge or candidate
to the Commission, with the majority of complaints coming from the
general public. Each complaint received by the Commission is assigned
to a seven-member panel for investigation. If the investigatory panel
finds probable cause of a violation of the Code, it refers the matter to
a seven-member hearing panel for a trial-like proceeding. There is no
direct appeal of the investigatory panel's decision.”
Kansas Judicial Review v. Stout, 519 F.3d 1107, 1112 (10th Cir. 2008).
Plainly, the KCJQ does not exercise appellate jurisdiction, did not “condone”
the courts’ rulings challenged in the plaintiff’s pleading, and does not have
the jurisdiction to grant the substantive legal relief sought in his underlying
criminal actions.
7
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2001), cert. denied, 534 U.S. 1162 (2002), and such state actors can be
deemed “persons” under § 1983, Hafer v. Melo, 502 U.S. 21, 23 (1991).
Nonetheless, absolute quasi-judicial immunity would necessarily cover the
individual members who serve in this quasi-judicial body that presides over
the proceedings involved in receiving, considering and adjudicating
disciplinary complaints. See, e.g., McKeown v. N.Y. State Com’n on Judicial
Conduct, 377 Fed. Appx. 121, 124 (2nd Cir. 2010) (citing see also
Anonymous v. Ass'n of the Bar of N.Y., 515 F.2d 427, 433 (2d Cir. 1975)
(“observing that New York State courts regard disciplinary proceedings as
‘judicial proceeding[s]’ and determining that the state bar association's
grievance committee acted as a quasi-judicial body and an arm of the
Appellate Division”). “[T]he decisions of the OCA [Office of Court
Administration] attorneys not to initiate disciplinary proceedings against
McQuade and Streng are protected by the doctrine of quasi-judicial
immunity.”), cert. denied, 423 U.S. 863 (1975)); Crenshaw v. Baynerd, 180
F.3d 866, 868 (7th Cir.) (members of the state civil rights commission that
was a “quasi-judicial adjudicatory” “acted in a functionally adjudicatory
capacity when they determined that they lacked jurisdiction to review and
consider her complaint.”), cert. denied, 528 U.S. 952 (1999); Parent v. New
York, ---F. Supp. 2d---, 2011 WL 2020767 (judicial immunity bars claims
against state grievance committee and its members); Lampton v. Diaz, 2010
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WL 1873091 at *12 (S.D. Miss. 2010) (Mississippi Commission on Judicial
Performance is “an integral part of the judicial process,” and “is sufficiently
judicial in nature to warrant absolute immunity.”)8 There is nothing in the
plaintiff’s pleading to suggest he can overcome this absolute quasi-judicial
immunity.
The KCJQ letters attached to the plaintiff’s pleading show his
complaints to the KCJQ were considered and closed because they did not
contain “facts evidencing judicial misconduct as defined in the Code of
The court in Lampton noted the following in an accompanying
footnote:
“Although there is scant case law on quasi-judicial immunity for
judicial ethics commissions, the U.S. Supreme Court and the Fifth
Circuit have repeatedly held that state bar disciplinary committees
have an “essentially judicial nature.” See, e.g., Middlesex County
Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 434 n. 13, 102
S.Ct. 2515, 73 L.Ed.2d 116 (1982) (abstaining from review of
committee's decision); Carr v. Calogero, 987 F.2d 772, No. 92–3384,
1993 WL 67171, at *1 (5th Cir. Mar.4, 1993) (unpublished table
decision) (citing Slavin v. Curry, 574 F.2d 1256, 1266 (5th Cir. 1978))
(affirming dismissal of suit against members of Louisiana bar
association disciplinary board based on absolute immunity). Moreover,
a pair of decisions from other jurisdictions have applied quasi-judicial
immunity to state judicial ethics commissions. See Dobronski v.
Arizona, 128 F. App'x 608, 609 (9th Cir. 2005) (affirming dismissal of
individual capacity claims against members of the Arizona Commission
on Judicial Conduct based on quasi-judicial immunity); Salman v.
State of Nev. Comm'n on Judicial Discipline, 104 F.Supp.2d 1262,
1268 (D. Nev. 2000) (holding that individual-capacity claims against
members and employees of state commission on judicial discipline are
barred by absolute quasi-judicial immunity).
Lampton v. Diaz, 2010 WL 1873091, at *12 (S.D. Miss. 2010), aff’d on other
grounds, 639 F.3d 223 (5th Cir. 2011).
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Judicial Conduct.” (Dk. 1-1, pp. 2, 3). In short, the plaintiff brings this
action based on what KCJQ did in these letters, that is, it denied his
complaints because they were procedurally and legally deficient in not
alleging facts that evidenced judicial misconduct. This is not an allegation of
a constitutional violation, for the plaintiff has no constitutional right to have
the judges investigated. See Nelson v. Skehan, 386 Fed. Appx. 783, 786
(10th Cir. 2010), cert. denied, 131 S. Ct. 912 (2011); cf. Ellibee v. Hazlett,
122 Fed. Appx. 932, 934, 2004 WL 2850097 at * 1 (10th Cir. 2004)
(individual lacks standing to bring a civil action against the state officer
“charged with the investigation and resolution of attorney disciplinary
complaints.”), cert. denied, 544 U.S. 1040 (2005).
“The burden is on the plaintiff to frame a ‘complaint with enough
factual matter (taken as true) to suggest’ that he or she is entitled to relief.”
Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir.2008) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. at 556). “[B]are assertions” consisting
of “nothing more than a ‘formulaic recitation of a constitutional
. . . claim,” however, “are conclusory and not entitled to be assumed true.”
Ashcroft v. Iqbal, 556 U.S. 552, 129 S.Ct. 1937, 1951 (2009) ( citing
Twombly, 550 U.S. at 554-555). The plaintiff’s pleading is replete with bare
assertions, conclusory allegations, and legal citations, all of which fail to
offer “a short and plain statement of the claim showing that . . . [he] is
13
entitled to relief.” Fed. R. Civ. P. 8(a)(2). Moreover, the allegations of the
complaint, however true, do not raise a claim of entitlement to relief against
the named defendant or its individual members in either their official or
individual capacities.
As set out above, the plaintiff’s complaint utterly fails to state a
cognizable claim for relief. Additionally, the plaintiff’s claims are plainly
barred on Eleventh Amendment immunity and quasi-judicial absolute
immunity. The court hereby orders the plaintiff to show cause why the court
should not dismiss the plaintiff’s action. The plaintiff will have thirty days
from the filing date of this order to file with the court an amended complaint
and a separate memorandum that address and/or cure each of the legal and
factual deficiencies addressed in this screening order.
IT IS THEREFORE ORDERED that the defendant’s motion to
review (Dk. 10) the magistrate judge’s order (Dk. 7) is summarily denied;
IT IS FURTHER ORDERED that the plaintiff is granted thirty days
from the filing date of this order to file an amended complaint and a
separate memorandum that shows cause why his action should not be
dismissed for failure to state a claim for relief, for being frivolous, or for
seeking monetary relief against a defendant who is immune from such relief.
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Dated this 20th day of October, 2011, Topeka, Kansas.
s/ Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
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