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