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)

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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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