Jones v. Silverman
MEMORANDUM AND ORDER - Plaintiff's Complaint (filing no. 1 ) is dismissed without prejudice. A separate Judgment will be entered in accordance with this Memorandum and Order. Ordered by Chief Judge Joseph F. Bataillon. (Copy mailed to pro se party) (AOA)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WAYA TSALAGI JONES,
BRIAN C. SILVERMAN, District
Judge, Alliance, Ne,
Plaintiff filed her Complaint on July 25, 2011. (Filing No. 1.) Plaintiff has
previously been given leave to proceed in forma pauperis. (Filing No. 6.) The court
now conducts an initial review of the Complaint to determine whether summary
dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
SUMMARY OF COMPLAINT
Plaintiff filed her Complaint on July 25, 2011, against Nebraska District Judge
Brian C. Silverman. (Filing No. 1 at CM/ECF pp. 1, 3.) Plaintiff is a non-prisoner
who currently resides in Hot Springs, South Dakota. (Id. at CM/ECF p. 1; see also
Plaintiff’s allegations are difficult to decipher. As best as the court can tell,
Plaintiff alleges that Defendant convicted her husband “as a felon,” “dismissed a case
against Himself,” and signed a “Dog Warrant” permitting an animal control officer
to illegally search her home. (Id. at CM/ECF pp. 3-4.) Plaintiff requests that the
court “restore” her husband’s rights,1 return the “value” of the home and property
The court takes judicial notice that Bret Tschacher was recently found guilty of being a felon in
possession of a firearm and sentenced to 21 months in prison. (See United States v. Tschacher, Case No.
09CR3025, Filing No. 108.)
taken, “pay Full Restitution,” and issue a “Full Pardon” for her husband. (Id. at
CM/ECF p. 7.)
APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). The court must
dismiss a complaint or any portion thereof that states a frivolous or malicious claim,
that fails to state a claim upon which relief may be granted, or that seeks monetary
relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
A pro se plaintiff must set forth enough factual allegations to “nudge their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed” for failing to state a claim upon which relief can be granted. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 129 S. Ct.
1937, 1950 (2009) (“A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”). Regardless of whether a plaintiff is represented
or is appearing pro se, the plaintiff’s complaint must allege specific facts sufficient
to state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).
However, a pro se plaintiff’s allegations must be construed liberally. Burke v. North
Dakota Dep’t of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations
DISCUSSION OF CLAIMS
As set forth above, Defendant is a Nebraska District Court Judge. (Filing No.
1.) Judges are absolutely immune from suits for damages arising from acts, whether
or not erroneous, in their judicial capacity, as long as such actions were not taken in
the complete absence of all jurisdiction. Mireles v. Waco, 502 U.S. 9, 11-12 (1991).
Judicial immunity is an immunity from suit, not just from damages, and “is not
overcome by allegations of bad faith or malice, the existence of which ordinarily
cannot be resolved without engaging in discovery and eventual trial.” Id. Moreover,
“[a] judge will not be deprived of immunity because the action he took was in error
. . . or was in excess of his authority.” Id. at 12 (quotation omitted). Absolute judicial
immunity applies to monetary damages claims only and does not extend to suits
requesting declaratory and prospective injunctive relief. Pulliam v. Allen, 466 U.S.
522, 536-38 (1984).
As the Supreme Court set forth in Mireles, “the relevant inquiry is the ‘nature’
and ‘function’ of the act, not the ‘act itself,’” and courts “look to the particular act’s
relation to a general function normally performed by a judge” in determining whether
judicial immunity applies. Mireles, 502 U.S. at 13. The Eighth Circuit has
specifically held that “conducting a trial is a judicial function” for which judges are
entitled to absolute immunity. Hollowell v. Johnson, 46 F. App’x 388, 388 (8th Cir.
Plaintiff asserts claims against Defendant because he presided over her
husband’s felony conviction, dismissed a separate lawsuit, and issued a warrant to
search Plaintiff’s home. (Filing No. 1 at CM/ECF pp. 3-4.) Plaintiff asserts that these
actions were taken “illegally” or “wrongfully.” However, as set forth above,
conducting the trial of Plaintiff’s husband is a judicial function, as is signing warrants
and dismissing cases. Thus, even if Defendant’s actions were somehow taken in bad
faith, Defendant is still absolutely immune from a suit based on these actions.
Accordingly, Plaintiff’s Complaint must be dismissed.2
To the extent Plaintiff’s Complaint seeks relief other than monetary damages, such as the restoration
of her husband’s rights or her husband’s “Full Pardon,” Plaintiff lacks standing to bring such a claim. See
Warth v. Seldin, 422 U.S. 490, 498-99 (1975) (stating the general rule that, to establish standing a plaintiff
must assert her legal rights or interests and not “the legal rights or interests of third parties”).
IT IS THEREFORE ORDERED that:
Plaintiff’s Complaint (filing no. 1) is dismissed without prejudice.
A separate Judgment will be entered in accordance with this
Memorandum and Order.
DATED this 6th day of October, 2011.
BY THE COURT:
s/ Joseph F. Bataillon
Chief United States District Judge
*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for
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the opinion of the court.
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