McNutt v. Hines

Filing 4

MEMORANDUM OPINION AND ORDER by Senior Judge Thomas B. Russell on 3/5/2012 granting 2 Motion/Application to proceed without prepayment of fees. For the reasons set forth, the instant action will be dismissed. cc: Plaintiff, pro se; Defendant (CDF)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
JESSE R. MCNUTT

PLAINTIFF

v.

CIVIL ACTION NO. 5:12CV-29-R

ROBERT JEFFREY HINES

DEFENDANT

MEMORANDUM OPINION AND ORDER
Plaintiff Jesse R. McNutt filed the instant pro se action. He also filed an application to
proceed without prepayment of fees. IT IS ORDERED that the application to proceed without
prepayment of fees (DN 2) is GRANTED. Since Plaintiff is proceeding in forma pauperis, this
Court must review the instant action pursuant to 28 U.S.C. § 1915(e) and McGore v.
Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). For the reasons set forth herein, the instant action
will be dismissed.
I. SUMMARY OF CLAIMS
Plaintiff filed a complaint captioned “Confirmed Complaint of Malpractice” against
Defendant Robert Jeffrey Hines, whom he states acted as special judge in a case in Calloway
Circuit Court. He states that he was denied “due process the right to testify a first article
violation in Calloway Circuit Court.” He states that he is poor and has been forced to act
without legally trained counsel. He further states that he was denied a court date to argue an
order by Defendant. Plaintiff states that the order violated his right to redress grievances, due
process, and equal protection under the Tenth, Eleventh, and Thirteenth Amendments to the
United States Constitution.
Plaintiff alleges a tort of conversion. He states that, as a result of Defendant’s “willful
ministerial negligence of your layman’s right to testify,” Defendant ordered a sale of his

property. He states that “a rule 11 sanction was granted to a divorce attorney against layman.”
Plaintiff further states that the order of sale and Rule 11 sanction are void or voidable. As relief,
Plaintiff seeks damages and injunctive relief.
II. ANALYSIS
Because Plaintiff is proceeding in forma pauperis, this Court must review the instant
action. 28 U.S.C. § 1915(e); McGore, 114 F.3d at 608-09. Upon review, this Court must
dismiss a case at any time if it determines that an action is frivolous or malicious, fails to state a
claim upon which relief may be granted, or seeks monetary relief from a defendant who is
immune from such relief. See 28 U.S.C. § 1915(e)(2)(B).
The Court recognizes that pro se pleadings are to be held to a less stringent standard than
formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519 (1972). The duty to be
less stringent with pro se complaints, however, “does not require [the Court] to conjure up
unpled allegations,” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979) (citation omitted), and
the Court is not required to create a claim for a pro se plaintiff. Clark v. Nat’l Travelers Life Ins.
Co., 518 F.2d 1167, 1169 (6th Cir. 1975). To command otherwise would require the “courts to
explore exhaustively all potential claims of a pro se plaintiff, [and] would also transform the
district court from its legitimate advisory role to the improper role of an advocate seeking out the
strongest arguments and most successful strategies for a party.” Beaudett v. City of Hampton,
775 F.2d 1274, 1278 (4th Cir. 1985).
Judges are entitled to absolute immunity for actions arising out of all acts performed in
the exercise of their judicial functions. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Immunity
extends to complaints arising out of judicial conduct in criminal as well as civil suits. Pierson v.
Ray, 386 U.S. 547, 553-54 (1967). Moreover, the common law immunity of judges applies to
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suits alleging deprivations of constitutional rights. Id. A plaintiff may recover damages against
a judge only when the judge has acted in “clear absence of all jurisdiction.” Stump v. Sparkman,
435 U.S. 349, 356-57 (1978) (quoting Bradley v. Fisher, 80 U.S. 335 (1871)). Furthermore,
“[a]bsolute immunity is not available if the alleged wrongful conduct was committed pursuant to
a non-judicial act, i.e., one not taken in the judge’s judicial capacity, such as terminating an
employee.” Cameron v. Seitz, 38 F.3d 264, 272 (6th Cir. 1994) (citing Forrester v. White, 484
U.S. 219, 229-30 (1988)).
In the instant case, Plaintiff states that Defendant was acting a special judge in a legal
proceeding in Calloway Circuit Court. While he describes Defendant in the caption of the
complaint as “Acting . . . In Total Absence of Personal Jurisdiction, Venue & Authority,” he
does not state any facts stating how or why he believes that Defendant was acting in absence of
jurisdiction. The Court is not required to accepted legal conclusions without “‘further factual
enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, --, 129 S. Ct. 1937, 1929 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Likewise, Plaintiff does not allege that his
claims arise out of any non-judicial act by Defendant.
Therefore, Defendant’s conduct is protected by judicial immunity, and Plaintiff’s
complaint against him will be dismissed for failure to state a claim upon which relief may be
granted. A separate Order of dismissal will be entered consistent with this Memorandum
Opinion and Order.
Date:

March 5, 2012

cc:

Plaintiff, pro se
Defendant
4413.010

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