Robertson (ID 76205) v. Jessup
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,
NOTICE AND ORDER TO SHOW CAUSE
Plaintiff, a state prisoner appearing pro se and in forma
U.S.C. § 1983.
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.
dismissal without prejudice.
Statutory Screening of Prisoner and In Forma Pauperis Complaints
prisoners seeking relief against a governmental entity or an
officer or employee of such entity to determine whether summary
dismissal is appropriate.
28 U.S.C. § 1915A(a).
with any litigant, such as Plaintiff, who is proceeding in forma
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.
To survive this review, the plaintiff must plead “enough
facts to state a claim to relief that is plausible on its face.”
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.
Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th
liberally construed, Erickson v. Pardus, 551 U.S. 89, 94 (2007),
pro se status does not relieve the plaintiff of “the burden of
could be based.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
Plaintiff filed a lawsuit in the Butler County District
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.
Jessup signed a fourteen day extension order on October 6, even
though the deadline to answer had already passed.
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
violation of state law.
This failure caused Plaintiff to lose
the right to appeal the dismissal.
omissions described herein violated Plaintiff’s rights under the
damages in the amount of $500,000.
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
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
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
Moreover, Defendant is entitled to absolute immunity from
claims for damages in her individual capacity as well.
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:
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.
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
performance of a judicial act is involved or their
duties have an integral relationship with the judicial
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
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.
Coleman, 90 F. App'x 313, 316–17 (10th Cir. 2004).
dismissing his case.
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 [ ]
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)).
In such a case, the defense of judicial
motive, or good faith.
Plaintiff claims that Defendant acted in violation of state
jurisdiction just because it is wrongful, even unlawful.”
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 §
Accord Beauclair v. Green, 2015 WL 225758 (D. Kan. Jan.
Plaintiff’s complaint is subject to dismissal under
28 U.S.C. §§ 1915A(b)(2) and 1915(e)(2)(B)(iii) because he seeks
constitutional violation as required for a § 1983 action.
Tenth Circuit has stated that “[l]iability under § 1983 must be
rights by the defendant, and not on negligence.”
1995)(emphasis in original).
Darr v. Town
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
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
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
Similarly, to state a claim for an equal
protection violation, a plaintiff must show the defendant acted
with an invidious discriminatory intent or purpose.
Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265
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
For the reasons discussed above, this 42 U.S.C. § 1983
1915A(b) and 28 U.S.C. § 1915(e)(2)(B).
will direct Plaintiff to show cause why this matter should not
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
Corrections, 183 F.3d 1205, 1210 (10th Cir. 1999).
IT IS THEREFORE ORDERED that within twenty (20) days of
Honorable Sam A. Crow why Plaintiff’s complaint should not be
IT IS SO ORDERED.
This 7th day of July, 2017, at Kansas City, Kansas.
s/ David J. Waxse
DAVID J. WAXSE
U.S. Magistrate Judge
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