Robertson (ID 76205) v. Jessup

Filing 9

MEMORANDUM AND ORDER ENTERED: This matter is dismissed without prejudice for failure to state a claim on which relief may be granted. Signed by U.S. Senior District Judge Sam A. Crow on 07/26/17. 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.

MEMORANDUM AND ORDER
This matter is a civil rights action filed pursuant to 42
U.S.C. § 1983.
David

J.

Waxse

By order of July 7, 2017, U.S. Magistrate Judge
directed

Plaintiff

to

show

cause

to

the

undersigned why this matter should not be dismissed for failure
to state a claim upon which relief may be granted.
The order identified two grounds for dismissal: first, the
Court found that the defendant, Janell Jessup, is entitled to
absolute quasi-judicial immunity; and second, the Court found
that Plaintiff had not alleged a deliberate or intentional act
on Defendant’s part as required to state a claim for a violation
of his constitutional rights.

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Plaintiff

filed

a

timely

response

(Doc.

#8).

In

that

pleading, Plaintiff objects to the finding that Defendant has
absolute quasi-judicial immunity in this situation.

He argues

that Defendant had a duty to mail him notice of the entry of
judgment,

and

this

duty

did

not

involve

the

exercise

of

judgment.

Therefore, he argues, she is not entitled to quasi-

judicial immunity.
While the mailing of notice may not involve the exercise of
judgment, it is integrally related to the judicial process.

The

Tenth Circuit has favorably cited cases finding immunity in more
egregious circumstances than those alleged here, on the basis
that the clerk’s actions were integrally related to the judicial
process.

See Coleman v. Farnsworth, 90 F. App'x 313, 317 (10th

Cir. 2004) (finding court clerk who refused to comply with a
court order to issue a summons was protected by quasi-judicial
immunity), citing Smith v. Erickson, 884 F.2d 1108, 1111 (8th Cir.
1989)

(concluding

clerk's

duties

in

filing

documents

was

an

integral part of the judicial process, so the clerk's delayed
filing of the complaint and lying about its whereabouts were
protected by judicial immunity); Mullis v. United States Bankr.
Ct., 828 F.2d 1385, 1390 (9th Cir. 1987) (determining bankruptcy
clerks enjoyed absolute quasi-judicial immunity for failing to
provide notice, accepting incomplete petition, and refusing to
accept an amended complaint, as their actions related to an
2

integral

part

of

the

judicial

process);

see

also

Green, 245 F. App’x 780, 783 (10th Cir. 2007).

Wymore

v.

Nothing that

Plaintiff argues causes the undersigned to disagree with Judge
Waxse’s conclusion that Defendant is immune from liability for
damages under § 1983.
Plaintiff spends much time arguing that his appeal in the
underlying state court lawsuit would not be frivolous.

This

inquiry is only relevant to the determination of actual injury
or prejudice as required to make out a First Amendment access to
the courts claim.

Plaintiff cites a Fifth Circuit case holding

that where prison officials’ failure to deliver a notice of
dismissal caused an inmate to miss the deadline to appeal, the
inmate suffers prejudice only where the underlying claims were
not frivolous.

See Ruiz v. U.S., 160 F.3d 273, 275 (5th Cir.

1998).
However, this issue is not reached here because the Court
finds that Plaintiff has failed to state a claim on the ground
that he did not allege a deliberate deprivation of his rights on
Defendant’s part.

As explained in the order to show cause,

merely negligent conduct cannot support a First Amendment denial
of access to the courts claim or a claim for violation of due
process

or

Amendment.

equal

protection

rights

under

the

Fourteenth

See Mills v. Connors, 319 F. App'x 747, 749 (10th

Cir. 2009), citing Simkins v. Bruce, 406 F.3d 1239, 1242 (10th
3

Cir.

2005);

Arlington

Heights

v.

Metropolitan

Housing

Dev.

Corp., 429 U.S. 252, 265 (1977); Daniels v. Williams, 474 U.S.
327, 328 (1986).
Plaintiff’s only argument to counter this finding is that
the Court was “speculating” (Doc. #8, p. 3) when it stated that
“[a]t the most, his allegations show an inadvertent error or
negligence.”

This was not speculation but was based on the

allegations included in Plaintiff’s complaint.

On the other

hand, a finding that Defendant deliberately failed to provide
Plaintiff

notice

of

the

dismissal

would

require

pure

speculation; Plaintiff has not made that allegation let alone
provided any credible basis for reaching that conclusion.
For the reasons set forth, the Court concludes this matter
must

be

dismissed

pursuant

to

28

U.S.C.

§§

1915A(b)

and

1915(e)(2)(B) 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.

IT

IS

THEREFORE

ORDERED

that

this

matter

is

dismissed

without prejudice for failure to state a claim on which relief
may be granted.

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IT IS SO ORDERED.
DATED:

This 26th day of July, 2017, at Topeka, Kansas.

s/_Sam A. Crow_____
SAM A. CROW
U.S. Senior District Judge

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