Robertson (ID 76205) v. Jessup
Filing
7
NOTICE AND ORDER TO SHOW CAUSE ENTERED: Within twenty (20) days of receipt of this order, Plaintiff shall show cause to the Honorable Sam A. Crow why Plaintiff's complaint should not be dismissed. Signed by Magistrate Judge David J. Waxse on 07/07/17. Mailed to pro se party Joshua James Robertson by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOSHUA JAMES ROBERTSON,
Plaintiff,
v.
CASE NO.17-3097-SAC-DJW
JANELL JESSUP,
Defendant.
NOTICE AND ORDER TO SHOW CAUSE
Plaintiff, a state prisoner appearing pro se and in forma
pauperis,
filed
this
U.S.C. § 1983.
civil
rights
complaint
pursuant
to
42
Mr. Robertson claims that Defendant, who is
Clerk of the District Court of Butler County, Kansas, failed to
send him notice of an order of the court in a state lawsuit,
which caused Plaintiff to miss the deadline to appeal.
reasons
discussed
below,
Plaintiff’s
complaint
is
For the
subject
to
dismissal without prejudice.
Statutory Screening of Prisoner and In Forma Pauperis Complaints
The
Court
is
required
to
screen
complaints
brought
by
prisoners seeking relief against a governmental entity or an
officer or employee of such entity to determine whether summary
1
dismissal is appropriate.
28 U.S.C. § 1915A(a).
Additionally,
with any litigant, such as Plaintiff, who is proceeding in forma
pauperis,
the
Court
has
a
duty
determine
its
sufficiency.
28
to
screen
U.S.C.
§
the
complaint
1915(e)(2).
to
Upon
completion of this screening, the Court must dismiss any claim
that is frivolous or malicious, fails to state a claim on which
relief may be granted, or seeks monetary relief from a defendant
who is immune from such relief.
28 U.S.C. § 1915A(b); 28 U.S.C.
§ 1915(e)(2)(B).
To survive this review, the plaintiff must plead “enough
facts to state a claim to relief that is plausible on its face.”
Bell
Atl.
Corp.
v.
Twombly,
550
U.S.
544,
570
(2007).
In
applying the Twombly standard, the Court must assume the truth
of all well-pleaded factual allegations in the complaint and
construe them in the light most favorable to the plaintiff.
See
Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th
Cir.
2011).
While
a
pro
se
plaintiff’s
complaint
must
be
liberally construed, Erickson v. Pardus, 551 U.S. 89, 94 (2007),
pro se status does not relieve the plaintiff of “the burden of
alleging
sufficient
could be based.”
facts
on
which
a
recognized
legal
claim
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991).
2
Complaint
Plaintiff filed a lawsuit in the Butler County District
Court
on
July
31,
2015,
Correctional Facility.
against
a
nurse
at
the
El
Dorado
The defendant’s attorney filed an entry
of appearance after the deadline to answer, then filed a motion
for extension of time to answer on October 6, 2015.
Defendant
Jessup signed a fourteen day extension order on October 6, even
though the deadline to answer had already passed.
Plaintiff
attempted to file a motion for default judgment on September 24,
2015, but Defendant Jessup “refused to allow” Plaintiff to file
his motion, relying on a new Kansas law requiring the payment of
$195 or a new verified poverty affidavit to be submitted with
each dispositive motion.
On May 13, 2016, the judge signed a journal entry granting
the defendant’s motion to dismiss.
Plaintiff claims Defendant
Jessup
of
failed
to
mail
him
violation of state law.
a
copy
the
journal
entry
in
This failure caused Plaintiff to lose
the right to appeal the dismissal.
Mr.
Robertson
seeks
a
“declaration
that
the
acts
and
omissions described herein violated Plaintiff’s rights under the
United
States
permanent
Constitution,”
injunctions.
compensatory
damages
in
as
In
the
well
addition,
amount
damages in the amount of $500,000.
3
of
as
preliminary
Plaintiff
$50,000
and
and
requests
punitive
Analysis
After reviewing Plaintiff’s complaint with the standards
set out above in mind, the Court finds that the complaint is
subject to summary dismissal under 28 U.S.C. § 1915A(b) and 28
U.S.C.
§
1915(e)(2)
because
Plaintiff
seeks
monetary
damages
from a defendant who is immune from such relief and because he
fails to state a claim on which relief may be granted.
Plaintiff names Janell Jessup, Clerk of the Butler County
District Court, in her official and individual capacity, as the
defendant
in
this
case.
The
Eleventh
Amendment
bars
suit
against a state official in her official capacity because the
real party in interest is the State.
See Will v. Michigan Dep’t
of State Police, 491 U.S. 58, 71 (1989)(“[N]either a state nor
its officials acting in their official capacities are ‘persons’
under § 1983.”).
Defendant is a state official.
As such, she
is not a person who can be sued under § 1983 in her official
capacity.
Moreover, Defendant is entitled to absolute immunity from
claims for damages in her individual capacity as well.
clerks
and
their
agents
quasi-judicial immunity.
are
generally
entitled
to
Court
absolute
Coleman v. Farnsworth, 90 F. App’x
313, 316-17 (10th Cir. 2004).
The Tenth Circuit described the
immunity afforded a court clerk in Coleman:
4
It is well established in this circuit that a judge is
absolutely immune from civil liability for judicial
acts, unless committed in clear absence of all
jurisdiction, and the same immunity continues even if
“flawed by the commission of grave procedural errors.”
Whitesel v. Sengenberger, 222 F.3d 861, 867 (10th Cir.
2000)(quotation
marks
and
citation
omitted).
Moreover, judges are “absolutely immune regardless of
their motive or good faith,” Smith v. Losee, 485 F.2d
334, 342 (10th Cir. 1973)(citing Doe v. McMillan, 412
U.S. 306, 319, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973)),
“even when the judge is accused of acting maliciously
and corruptly.” Pierson v. Ray, 386 U.S. 547, 553, 87
S.Ct. 1213, 18 L.Ed.2d 288 (1967).
We have extended
the
same
immunity
to
judicial
officers
where
performance of a judicial act is involved or their
duties have an integral relationship with the judicial
process.
See Whitesel, 222 F.3d at 867; Lundahl v.
Zimmer, 296 F.3d 936, 939 (10th Cir. 2002), cert.
denied, 538 U.S. 983, 123 S.Ct. 1797, 155 L.Ed.2d 675
(2003). Applying this standard, we have held a court
clerk enjoys absolute quasi-judicial immunity when he
or she performs a “judicial act,” such as entry of a
default judgment.
See Lundahl, 296 F.3d at 939.
While we have held court clerks are generally entitled
to such immunity, we also have held it is necessary
“to weigh the nature of the activity involved and the
need for unfettered exercise of discretion against the
individual interest in protection under § 1983.”
Henriksen v. Bentley, 644 F.2d 852, 855–56 (10th Cir.
1981).
Coleman, 90 F. App'x 313, 316–17 (10th Cir. 2004).
Plaintiff
failure
to
complains
mail
him
dismissing his case.
primarily
notice
of
about
the
Defendant
district
Jessup’s
court’s
order
He also mentions her refusal to file his
motion for default judgment because he had not met the statutory
requirements to file.
Both of these alleged acts, or failures
to act, were “within the core duties” of a court clerk “in
assisting the court – that is, in performing a ‘function [ ]
5
closely associated with the judicial process.’”
See Dahl v.
Charles F. Dahl, M.D., P.C. Defined Ben. Pension Trust, 744 F.3d
623, 630 (10th Cir. 2014)(citing Cleavinger v. Saxner, 474 U.S.
193, 199 (1985)).
immunity
In such a case, the defense of judicial
generally
applies,
motive, or good faith.
regardless
of
procedural
error,
Id.
Plaintiff claims that Defendant acted in violation of state
rules
and
laws
jurisdiction.
but
does
“[A]n
act
not
is
show
not
she
acted
outside
of
outside
a
[clerk’s]
jurisdiction just because it is wrongful, even unlawful.”
at
630-31.
The
Tenth
Circuit
explained
this
her
principle
Id.
as
follows:
As the Supreme Court said in Stump, “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; rather, he will be subject to liability
only when he has acted in the clear absence of all
jurisdiction.” 435 U.S. at 356–57, 98 S.Ct. 1099
(internal quotation marks omitted). Immunity does not
protect only the innocent.
Why grant immunity to
those who have no need of it?
See Snell v. Tunnell,
920 F.2d 673, 687 (10th Cir. 1990) (“Absolute immunity
has its costs because those with valid claims against
dishonest or malicious government officials are denied
relief.”). Immunity is conferred so that judicial
officers can exercise their judgment (which on
occasion may not be very good) without fear of being
sued in tort.
Id. at 631.
Defendant Jessup is immune from recovery of damages under §
1983.
Accord Beauclair v. Green, 2015 WL 225758 (D. Kan. Jan.
6
16, 2015).
Plaintiff’s complaint is subject to dismissal under
28 U.S.C. §§ 1915A(b)(2) and 1915(e)(2)(B)(iii) because he seeks
monetary
damages
from
a
defendant
who
is
immune
from
such
were
not
entitled
not
make
relief.
However,
immunity,
even
the
if
facts
Defendant
alleged
by
Jessup
Plaintiff
do
to
out
constitutional violation as required for a § 1983 action.
a
The
Tenth Circuit has stated that “[l]iability under § 1983 must be
predicated
upon
a
‘deliberate’
deprivation
of
constitutional
rights by the defendant, and not on negligence.”
of
Telluride,
quoting
Jojola
Colo.,
v.
495
F.3d
Chavez,
1995)(emphasis in original).
55
1243,
F.3d
1256
488,
(10th
490
Darr v. Town
Cir.
(10th
2007),
Cir.
Mr. Robertson has not alleged any
facts showing Defendant Jessup intentionally did not send him
notice of the court’s order of dismissal.
At the most, his
allegations show an inadvertent error or negligence.
While the United States Supreme Court has found that § 1983
itself contains no state-of-mind requirement, a plaintiff must
still prove a violation of the underlying constitutional right.
Daniels v. Williams, 474 U.S. 327, 328 (1986).
Depending on the
right, merely negligent conduct may not be enough to state a
claim.
Id.
Plaintiff alleges Defendant Jessup violated two of
his constitutional rights: (1) his right of access to the courts
under the First Amendment; and (2) his right to equal protection
7
under the Fourteenth Amendment.
“It is well-established that
mere negligence cannot support § 1983 claims that are premised
on the denial . . . of access to the courts.”
Mills v. Connors,
319 F. App'x 747, 749 (10th Cir. 2009), citing Simkins v. Bruce,
406 F.3d 1239, 1242 (10th Cir. 2005) (holding that “when access
to courts is impeded by mere negligence, . . . no constitutional
violation occurs”).
Similarly, to state a claim for an equal
protection violation, a plaintiff must show the defendant acted
with an invidious discriminatory intent or purpose.
Arlington
Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265
(1977).
A showing of “invidious discriminatory purpose” is not
consistent with negligence.
Further, if Plaintiff’s complaint
is liberally construed to be alleging a due process violation,
“the Due Process Clause is simply not implicated by a negligent
act of an official causing unintended loss of or injury to life,
liberty, or property.”
Daniels, 474 U.S. at 328 (emphasis in
original).
Plaintiff’s
U.S.C.
§§
complaint
complaint
1915A(b)(1)
fails
to
is
subject
and
state
a
to
dismissal
1915(e)(2)(B)(ii)
claim
upon
which
under
because
relief
may
28
the
be
granted.
Summary
For the reasons discussed above, this 42 U.S.C. § 1983
action
is
subject
to
summary
dismissal
8
under
28
U.S.C.
§
1915A(b) and 28 U.S.C. § 1915(e)(2)(B).
Accordingly,
the
Court
will direct Plaintiff to show cause why this matter should not
be dismissed.
The failure to file a specific, written 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
factual
and
legal
allegations.
Makin
v.
Colo.
Dept.
of
Corrections, 183 F.3d 1205, 1210 (10th Cir. 1999).
IT IS THEREFORE ORDERED that within twenty (20) days of
receipt
of
this
order,
Plaintiff
shall
show
cause
to
the
Honorable Sam A. Crow why Plaintiff’s complaint should not be
dismissed.
IT IS SO ORDERED.
DATED:
This 7th day of July, 2017, at Kansas City, Kansas.
s/ David J. Waxse
DAVID J. WAXSE
U.S. Magistrate Judge
9
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