Earick v. Kelly

Filing 5

OPINION AND ORDER DISMISSING CASE, Signed by District Judge Judith E. Levy. (WBar)

Case 5:21-cv-11538-JEL-DRG ECF No. 5, PageID.18 Filed 01/17/23 Page 1 of 5

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Dylan John Earick,

Case No. 21-cv-11538
Plaintiff,

v.

Judith E. Levy
United States District Judge

Elizabeth Kelly,

Magistrate Judge David R. Grand

Defendant.
________________________________/
OPINION AND ORDER DISMISSING COMPLAINT [1]
Dylan John Earick is a pretrial detainee who, at the time of his
complaint, was confined at the Genesee County Jail. He has filed a pro
se complaint under 42 U.S.C. § 1983. Plaintiff names a single defendant,
Genesee County Circuit Court Judge Elizabeth Kelly, and claims that
she violated his right of access to the courts, right to due process, and
right to equal protection. Plaintiff has been granted leave to proceed
without prepayment of the fees and costs for this action. 28 U.S.C. §
1915(a)(1).
I. Standard
Under the Prison Litigation Reform Act of 1996 (“PLRA”), the Court
is required to, on its own, dismiss an in forma pauperis complaint before

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service if it determines that the action is frivolous or malicious, fails to
state a claim upon which relief can be granted, or seeks monetary relief
against a defendant who is immune from such relief. 42 U.S.C. § 1997e(c);
28 U.S.C. § 1915(e)(2)(B). The Court also must dismiss a complaint
seeking redress against government entities, officers, and employees
which 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. 28 U.S.C. § 1915A.
A pro se civil rights complaint is to be construed liberally. Haines
v. Kerner, 404 U.S. 519, 520–21 (1972). Federal Rule of Civil Procedure
8(a) requires that a complaint set forth “a short and plain statement of
the claim showing that the pleader is entitled to relief,” as well as “a
demand for the relief sought.” Fed. R. Civ. P. 8(a)(2), (3). This rule is
intended to give a defendant “fair notice of what the claim is and the
grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007) (citation omitted). Detailed factual allegations are not
required but Rule 8 “demands more than an unadorned, the defendantunlawfully-harmed me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
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To state a civil rights claim under 42 U.S.C. § 1983, a plaintiff must
allege that: (1) he was deprived of a right, privilege, or immunity secured
by the federal Constitution or laws of the United States; and (2) the
deprivation was caused by a person acting under color of state law. Flagg
Bros. v. Brooks, 436 U.S. 149, 155–57 (1978).
II. Discussion
Plaintiff’s claims against Judge Kelly arise from actions taken in
her judicial capacity and, therefore, she is entitled to absolute immunity.
Judges are entitled to absolute judicial immunity on claims for
damages. Mireles v. Waco, 502 U.S. 9, 9–10 (1991) (per curiam). The 1996
amendments to § 1983 extended absolute immunity for state judicial
personnel to requests for injunctive or equitable relief. See 42 U.S.C. §
1983 (“[I]n any action brought against a judicial officer for an act or
omission taken in such officer’s judicial capacity, injunctive relief shall
not be granted unless a declaratory decree was violated or declaratory
relief is unavailable”); see also Kipen v. Lawson, 57 F. App’x 691 (6th Cir.
2003) (discussing federal judges’ immunity). Determining if an action is
“judicial” depends on the “‘nature of the act itself, i.e., whether it is a
function normally performed by a judge,’” and “‘the expectations of the
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parties, i.e., whether they dealt with the judge in [the judge’s] judicial
capacity.’” Mireles, 502 U.S. at 13 (quoting Stump v. Sparkman, 435 U.S.
349, 362 (1978)). A judge’s acts do not become non-judicial simply because
they are erroneous or “in excess of [the judge’s] authority”; if that were
the case, then “any mistake of a judge in excess of [the judge’s] authority
would become a ‘nonjudicial’ act, because an improper or erroneous act
cannot be said to be normally performed by a judge.” Id. at 12. A judge is
not immune, however, under two circumstances: (1) “for nonjudicial
actions, i.e., actions not taken in the judge’s judicial capacity;” or (2) “for
actions, though judicial in nature, taken in the complete absence of all
jurisdiction.” Id. at 11–12 (citations omitted). Plaintiff does not allege
that Judge Kelly’s actions fell within either of these exceptions and does
not allege facts to support a finding that either exception applies.
Plaintiff’s claims against Judge Kelly arise from her actions, or
inactions, related to Plaintiff’s state criminal proceeding. Plaintiff asserts
that, beginning in December 2020, he filed multiple motions which Judge
Kelly had yet to decide. Plaintiff maintains that this delay essentially
denied him his right of access to the courts, and violated his rights to due
process and equal protection. But control of the docket is a “paradigmatic
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judicial act[].” Kipen, 57 F. App’x at 692. See also Lowe v. Letsinger, 772
F.2d 308, 312 (7th Cir. 1985) (“[D]eciding when to decide a case, no less
than deciding the case itself, is a judicial act for which a judge is
absolutely immune.”). Judge Kelly’s actions were judicial in nature and
she is entitled to absolute judicial immunity.
III. Order
For the reasons discussed, the complaint is dismissed.
If Plaintiff elects to appeal this decision, he may not proceed
without prepayment of the fees and costs on appeal because an appeal
would be frivolous and could not be taken in good faith. See 28 U.S.C. §
1915(a)(3); Coppedge v. United States, 369 U.S. 438, 445 (1962).
IT IS SO ORDERED.
Dated: January 17, 2023
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon
counsel of record and any unrepresented parties via the Court’s ECF System to their
respective email or first-class U.S. mail addresses disclosed on the Notice of
Electronic Filing on January 17, 2023.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager

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