v. McNutt et al
Filing
9
MEMORANDUM OPINION & ORDER denying as moot 5 Motion for Default Judgment; re 7 Motion to Dismiss; an appropriate order shall issue. Signed by Senior Judge Thomas B. Russell on 10/17/2012. cc:counsel (KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:12-CV-00064
JESSE R. McNUTT
Plaintiff
v.
ROBERT JEFFREY HINES
Defendant
MEMORANDUM OPINION AND ORDER
Plaintiff Jesse R. McNutt filed the instant pro se action on May 1, 2012, against
Defendant Robert Jeffrey Hines. (See Docket No. 1.) On July 13, 2012, Plaintiff filed a
Motion for Default and Default Judgment, (Docket No. 5), to which Defendant has
responded, (Docket No. 6), and Plaintiff replied, (Docket No. 8). Defendant has since
moved to dismiss for failure to state a claim upon which relief can be granted under Fed.
R. Civ. P. 12(b). (Docket No. 7.) Plaintiff’s response to Defendant’s Motion to Dismiss
for Failure to State a Claim was due on August 24, 2012. Plaintiff has not responded, and
these matters are now ripe for adjudication.
For the reasons that follow, Defendant’s Motion to Dismiss, (Docket No. 7), will
be GRANTED, and an appropriate Order will issue separately.
Furthermore, IT IS HEREBY ORDERED that Plaintiff’s Motion for Default
Judgment, (Docket No. 5), is DENIED as moot.
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SUMMARY OF CLAIMS
Plaintiff filed a complaint captioned “Confirmed Complaint of Ministerial
Negligence in Any Office” against Defendant, Calloway Circuit Court Judge Robert
Jeffrey Hines, to whom Plaintiff refers as a “purported state judge.” (Docket No. 1, at 1.)
Plaintiff states his complaint is based “on malpractice of [Defendant] acting under color
of law for abuse of judicial discretion, willful wantonness or ministerial neglect in the
absence of all jurisdiction of any office.” (Docket No. 1, at 1.) Plaintiff states that he
appealed Calloway Circuit Court case number 04-CI-00446 on September 2, 2010 to the
Kentucky Court of Appeals. “Since that date,” Plaintiff states, “the court has continued
to injure [him] by non-judicial acts. Such as the order to sell property on 7/27/11 and
moreover ordered a Rule 11 sanction against a layman on or thereabouts 5/7/12 in
absence of all jurisdictions.” (Docket No. 1, at 2.) Specifically, Plaintiff accuses Judge
Hines of violating his First, Fourth, Fifth, Sixth, and Thirteenth Amendment Rights under
the U.S. Constitution while acting in his official capacity under color of state law.
(Docket No. 1, at 3.)
Plaintiff argues that the Kentucky Court of Appeals retained
jurisdiction over his case and, therefore, Judge Hines’ actions amounted to “willful
ministerial negligence.” (Docket No. 1, at 3.) Plaintiff also states that he filed motions
for Judge Hines to recuse himself, which Judge Hines denied. (Docket No. 1, at 3.)
Plaintiff seeks a trial by jury on his claims and “[d]amages in the amount of 50,000
ounces of pure 0.999 silver,” plus “[p]unitive damages in the amount of 25,000 ounces of
pure 0.999 silver.” (Docket No. 1, at 3-4.)
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ANALYSIS
The Court recognizes that pro se pleadings are to be held to a less stringent
standard than formal pleadings drafted by attorneys. See Haines v. Kerner, 404 U.S. 519
(1972). The duty to be less stringent with pro se complainants, 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
argument 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 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 judicial
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
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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 “in his individual
capacity” through his “willful ministerial negligence.” (Docket No. 1, at 3.) However, it
appears clear that Judge Hines’ actions pertaining to Plaintiff were exercises of his
judicial capacity. Plaintiff alleges that Judge Hines had no jurisdiction when he ordered
the sale of Plaintiff’s property in Calloway Circuit Court, case number 04-CI-00446,
because the case was on appeal. On February 19, 2010, Calloway Circuit Judge Edwin
White denied Plaintiff’s Motions to Recuse and to Alter, Amend, or Vacate Judgment,
and also set a supersedeas bond of $23,477.59. Plaintiff filed his first of seven notices of
appeal with the Kentucky Court of Appeals on March 3, 2010, which was docketed as
case number 2010-CA-00415.
As Defendant points out, despite that Plaintiff filed a timely appeal, an appeal
does not stay a monetary judgment in Kentucky unless a supersedeas bond is posted. See
Ky. R. Civ. P. 62.03(1). The Calloway Circuit Court maintained original jurisdiction
over the supersedeas bond throughout the appeal. See Ky. R. Civ. P. 73.06. Apparently,
Plaintiff neither posted the required supersedeas bond nor petitioned the Circuit Court for
a reduction. Accordingly, this Court finds no authority to support Plaintiff’s conclusion
that the execution of Default Judgment and Order of Sale entered against him was
somehow stayed pending appeal. See e.g., Marshall v. Goodwine, 332 S.W.3d 51, 55-56
(Ky. 2010), reh’g denied,(Mar. 24, 2011) (“Kentucky law makes it clear that an appellant
who fails to file a supersedeas bond does so at his own risk and that execution may
proceed . . . .”). Therefore, Judge Hines’ order to execute the default judgment was
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within the jurisdiction of the Circuit Court, and Defendant is entitled to absolute judicial
immunity.
Furthermore Plaintiff’s claims that Defendant was without authority to impose
Rule 11 sanctions on a layperson are without merit. See McBrearty v. Ky. Cmty. &
Technical Coll. Sys., 262 S.W.3d 205, 2010 (Ky. Ct. App. 2008) (“We require pro se
litigants to follow the Kentucky Rules of Civil Procedure.”). Kentucky courts have long
held that sanctions under Ky. R. Civ. P. 11 may be imposed on either a party or an
attorney. See, e.g., Clark Equip. Co. v. Bowman, 762 S.W.2d 417, 420 (Ky. Ct. App.
1988). Thus, under Kentucky law, Defendant did not exceed his jurisdiction by imposing
sanctions on a pro se party.
CONCLUSION
For the foregoing reasons, Defendant’s conduct is protected by judicial immunity.
Defendant’s Motion to Dismiss, (Docket No. 7), is GRANTED; and Plaintiff’s Motion
for Default Judgment, (Docket No. 5), is DENIED as moot.
A separate Order of
dismissal will be entered consistent with this Memorandum Opinion and Order.
cc:
Plaintiff, pro se
Defendant
October 17, 2012
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