Maier v. Pokorny

Filing 9

NOTICE AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted until February 22, 2017, in which to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why Plaintiff's Amended Complaint 4 should not be dismi ssed. Plaintiff's Motion for Copies 6 is granted to the extent that the Clerk is directed to provide Plaintiff with a copy of Plaintiff's Amended Complaint 4 . Signed by Magistrate Judge David J. Waxse on 01/31/17. Mailed to pro se party Christopher Coty Maier by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CHRISTOPHER COTY MAIER,
Plaintiff,
v.

CASE NO. 16-3235-SAC-DJW

JUDGE SALLY POKORNY,
Defendant.

NOTICE AND ORDER TO SHOW CAUSE
Plaintiff Christopher Maier is hereby required to show good cause, in writing, to the
Honorable Sam A. Crow, United States District Judge, why this action should not be dismissed
due to the deficiencies in Plaintiff’s Amended Complaint that are discussed herein.
I. Nature of the Matter before the Court
Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is
incarcerated at the Douglas County Jail in Lawrence, Kansas (“SCDC”). Plaintiff filed an
Amended Complaint (Doc. 4) on December 12, 2016, naming Judge Sally Pokorny as the sole
defendant. Although Plaintiff’s allegations are confusing and conclusory, they involve Judge
Pokorny’s appointment of counsel in Plaintiff’s criminal cases.
II. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or an officer or an employee of a governmental entity. 28 U.S.C.
§ 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised
claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be

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granted, or that seek monetary relief from a defendant who is immune from such relief. 28
U.S.C. § 1915A(b)(1)–(2).
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by
the Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988)
(citations omitted); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). 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). In addition, the court accepts
all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th
Cir. 2006). On the other hand, “when the allegations in a complaint, however true, could not
raise a claim of entitlement to relief,” dismissal is appropriate. Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 558 (2007).
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). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to
relief’ requires “more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action.” Twombly, 550 U.S. at 555 (citations omitted). The complaint’s “factual
allegations must be enough to raise a right to relief above the speculative level” and “to state a
claim to relief that is plausible on its face.” Id. at 555, 570.
The Tenth Circuit Court of Appeals has explained “that, to state a claim in federal court,
a complaint must explain what each defendant did to [the pro se plaintiff]; when the defendant
did it; how the defendant’s action harmed [the plaintiff]; and, what specific legal right the
plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d

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1158, 1163 (10th Cir. 2007). 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) (citation omitted).
The Tenth Circuit has pointed out that the Supreme Court’s decisions in Twombly and
Erickson gave rise to a new standard of review for § 1915(e)(2)(B)(ii) dismissals. See Kay v.
Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (citations omitted); see also Smith v. United States,
561 F.3d 1090, 1098 (10th Cir. 2009). As a result, courts “look to the specific allegations in the
complaint to determine whether they plausibly support a legal claim for relief.” Kay, 500 F.3d at
1218 (citation omitted). Under this new standard, “a plaintiff must ‘nudge his claims across the
line from conceivable to plausible.’” Smith, 561 F.3d at 1098 (citation omitted). “Plausible” in
this context does not mean “likely to be true,” but rather refers “to the scope of the allegations in
a complaint: if they are so general that they encompass a wide swath of conduct, much of it
innocent,” then the plaintiff has not “nudged [his] claims across the line from conceivable to
plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 127 S.
Ct. at 1974).
III. DISCUSSION
A. Eleventh Amendment Immunity
Although it is unclear whether Plaintiff sues Judge Pokorny in her official capacity, a
claim against state officials for monetary damages are barred by sovereign immunity. An
official-capacity suit is another way of pleading an action against the governmental entity itself.
Kentucky v. Graham, 473 U.S. 159, 165 (1985). “When a suit alleges a claim against a state
official in his official capacity, the real party in interest in the case is the state, and the state may
raise the defense of sovereign immunity under the Eleventh Amendment.” Callahan v. Poppell,

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471 F.3d 1155, 1158 (10th Cir. 2006) (quotation omitted). Sovereign immunity generally bars
actions in federal court for damages against state officials acting in their official capacities.
Harris v. Owens, 264 F.3d 1282, 1289 (10th Cir. 2001). It is well established that Congress did
not abrogate the states’ sovereign immunity when it enacted § 1983. Quern v. Jordan, 440 U.S.
332, 338–45 (1979); Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002).
The bar also applies when the entity is an arm or instrumentality of a state. Sturdevant v.
Paulsen, 218 F.3d 1160, 1164 (10th Cir. 2000).

In determining whether an entity is an

instrumentality or arm of the state for purposes of Eleventh Amendment immunity, the Tenth
Circuit has established a two-party inquiry, requiring an examination of: (1) “the degree of
autonomy given to the agency, as determined by the characterization of the agency by state law
and the extent of guidance and control exercised by the state,” and (2) “the extent of financing
the agency receives independent of the state treasury and its ability to provide for its own
financing.” Duke v. Grady Mun. Sch., 127 F.3d 972, 974 (10th Cir. 1997) (citations omitted).
“The governmental entity is immune from suit if the money judgment sought is to be satisfied
out of the state treasury.” Id. (citations omitted).
Kansas state law clearly characterizes the district courts as arms of the state
government—part of a unified judicial branch along with the Kansas Supreme Court and Kansas
Court of Appeals. Wilkins v. Skiles, No. 02–3190, 2005 WL 627962, at *4 (D. Kan. March 4,
2005); see generally, KAN. CONST. art 3. The legislature defines “state agency,” for purposes
of the state workers’ compensation fund, as “the state, or any department or agency of the state,
but not including . . . the district court with regard to district court officers or employees whose
total salary is payable by counties.” K.S.A. 44–575(a). The only court personnel who are not
included in the judicial personnel pay system, and are instead paid by the county, are county

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auditors, coroners, court trustees and personnel in each trustee’s office, and personnel
performing services in adult or juvenile detention or correctional facilities. K.S.A. 20–162(a),
(b). District court judges are state officials. Schroeder v. Kochanowski, 311 F. Supp. 2d 1241,
1256 (D. Kan. 2004), see also Sigg v. Dist. Court of Allen Cty., Kan., No. 11-2625-JTM, 2012
WL 941144, at *4 (D. Kan. March 20, 2012) (district court judge is a state official and official
capacity claims against judge for money damages are barred).
Any official capacity claim against the state official for monetary damages is barred by
sovereign immunity.

Furthermore, state officers acting in their official capacity are not

considered “persons” against whom a claim for damages can be brought under § 1983. Will v.
Mich. Dept. of State Police, 491 U.S. 58, 71 (1989).
B. Personal Immunity
Defendant Pokorny also enjoys personal immunity.

“Personal immunities . . . are

immunities derived from common law which attach to certain governmental officials in order
that they not be inhibited from ‘proper performance of their duties.’” Russ v. Uppah, 972 F.2d
300, 302–03 (10th Cir. 1992) (citing Forrester v. White, 484 U.S. 219, 223, 225 (1988)).
Plaintiff’s claim against Defendant Pokorny should be dismissed on the basis of judicial
immunity. A state judge is absolutely immune from § 1983 liability except when the judge acts
“in the clear absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349, 356–57 (1978)
(articulating broad immunity rule that a “judge will not be deprived of immunity because the
action he took was in error, was done maliciously, or was in excess of his authority . . . .”); Hunt
v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994). Only actions taken outside a judge’s judicial
capacity will deprive the judge of judicial immunity. Stump, 435 U.S. at 356–57. Plaintiff

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alleges no facts whatsoever to suggest that Defendant Pokorny was acting outside her judicial
capacities.
The Court must dismiss a case if it finds that the plaintiff is seeking monetary relief
against a defendant “who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(iii); see also
28 U.S.C. § 1915A(b).
IV. Motion for Copies
Plaintiff has filed a Motion for Copies (Doc. 6), seeking various motions in this case as
well as his other pending case. The Court will grant the motion to the extent that the Clerk is
directed to send a copy of Plaintiff’s Amended Complaint at Doc. 4 to Plaintiff.
V. Response Required
For the reasons stated herein, it appears that this action is subject to dismissal in its
entirety.

Plaintiff is therefore required to show good cause why his Amended Complaint

(Doc. 4) should not be dismissed for the reasons stated herein. The failure to file a timely,
specific response waives de novo review by the District Judge, see Thomas v. Arn, 474 U.S. 140,
148–53 (1985), and also waives appellate review of both factual and legal questions. Makin v.
Col. Dept. of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999).
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff is granted until
February 22, 2017, in which to show good cause, in writing, to the Honorable Sam A. Crow,
United States District Judge, why Plaintiff’s Amended Complaint (Doc. 4) should not be
dismissed for the reasons stated herein.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Copies (Doc. 6) is granted to
the extent that the Clerk is directed to provide Plaintiff with a copy of Plaintiff’s Amended
Complaint at Doc. 4.

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IT IS SO ORDERED.
Dated in Kansas City, Kansas, on this 31st day of January, 2017.

s/ David J. Waxse
David J. Waxse
U. S. Magistrate Judge

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