Davis v. Lucks
MEMORANDUM AND ORDER - Upon completion of initial review, Plaintiff's Complaint (Filing No. 1 ) is dismissed without prejudice. A separate judgment will be entered in accordance with this Memorandum and Order. All pending motions are denied as moot. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party)(JAB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
STEVE L. DAVIS,
DENISE M. LUCKS, Clerk of the U.S.
District Court for the District of
CASE NO. 4:12CV3068
Plaintiff filed his Complaint in this matter on April 6, 2012. (Filing No. 1.) Plaintiff is
a prisoner who has been granted leave to proceed in forma pauperis. (Filing No. 7.) On
June 1, 2012, Plaintiff paid the initial partial filing fee. (See Docket Sheet.) The court now
conducts an initial review of Plaintiff’s claims to determine whether summary dismissal is
appropriate under 28 U.S.C. §§ 1915(e) and 1915A.
SUMMARY OF COMPLAINT
Plaintiff filed his complaint on April 6, 2012, against one Defendant, Clerk of Court
Denise M. Lucks. (Filing No. 1 at CM/ECF p. 1.) Defendant is sued in her individual
capacity only. (Id. at CM/ECF p. 3.)
Condensed and summarized, Plaintiff’s Complaint relates entirely to his claim that
Defendant did not send him a copy of the memorandum and order and judgment
dismissing his separate habeas corpus action until more than nine months after those
documents had been entered. (Id. at CM/ECF pp. 1-3; see also Case No. 4:10CV3138.)
Plaintiff alleges that, in failing to timely send him the documents in Case No. 4:10CV3138,
Defendant acted negligently and violated his constitutional rights to access the courts
because he was unable to file a timely appeal “and/or objections.” (Id. at CM/ECF p. 2.)
Plaintiff seeks relief in the form of compensatory and punitive damages, totaling $100,000.
(Id. at CM/ECF p. 3.)
APPLICABLE LEGAL STANDARDS ON REVIEW
The court is required to review prisoner and in forma pauperis complaints seeking
relief against a governmental entity or an officer or employee of a governmental entity to
determine whether summary dismissal is appropriate. See 28 U.S.C. §§ 1915(e) and
1915A. 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); 28 U.S.C. § 1915A.
Therefore, where a pro se plaintiff does not set forth enough factual allegations to
“nudge their claims across the line from conceivable to plausible, 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), (overruling Conley v. Gibson, 355 U.S. 41
(1967), and setting new standard for failure to state a claim upon which relief may be
granted). 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 omitted).
Liberally construed, Plaintiff here alleges federal constitutional claims. To state a
claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights protected by the
United States Constitution or created by federal statute and also must show that the
alleged deprivation was caused by conduct of a person acting under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.
DISCUSSION OF CLAIMS
Liberally construed, Plaintiff alleges Defendant denied him access to the courts in
violation of his First, Fourth, Fifth, and Fourteenth Amendment rights by failing to send him
a copy of the memorandum and order and judgment dismissing his claims with prejudice
in Case No. 4:10CV3138. (Filing No. 1 at CM/ECF pp. 2-3.) A federal district court may
“take judicial notice, whether requested or not of its own records and files, and facts which
are part of its public records. Judicial notice is particularily applicable to the court’s own
records of prior litigation closely related to the case before it.” U.S. v. Jackson, 640 F.2d
614, 617 (8th Cir. 1981), (quotation omitted); see also Levy v. Ohl, 477 F.3d 988, 991 (8th
Cir. 2007), (affirming dismissal of case where district court relied on, and took judicial notice
of, public records of related case).
Here, Plaintiff alleges that Defendant did not send him a copy of the memorandum
and order and judgment dismissing his Petition for Writ of Habeas Corpus until more than
nine months after its entry. (Filing No. 1 at CM/ECF pp. 2-3.) However, the court’s own,
public, records indicate that Defendant sent a copy of the memorandum and order and
judgment on the same date it was entered, May 13, 2011. (See, Case No. 4:10CV3138,
Filing Nos. 23 and 24.) The court’s records further show that those pleadings were never
returned to the court as undeliverable, or for any other reason. (See Docket Sheet, Case
No. 4:10CV3138.) Thus, the court’s records clearly show that Defendant sent copies of the
memorandum and order and judgment to Plaintiff on May 13, 2011. As such, Plaintiff has
not set forth sufficient facts to state a claim upon which relief may be granted.
Even assuming the court’s records did not show that Plaintiff’s allegations lack merit,
in order to state a claim for denial of access to the courts, a plaintiff must allege that the
defendant(s) hindered his efforts to pursue a non-frivolous legal claim and that the plaintiff
suffered some actual concrete injury as a result. Lewis v. Casey, 518 U.S. 343, 350-54
(1996). Plaintiff has not alleged a claim in accordance with Lewis.
Plaintiff alleges only that he suffered non-specific “emotional anguish” and “stress”
due to the alleged delay in notification of the dismissal in Case No. 4:10CV3138. (Filing
No. 1 at CM/ECF p. 3.) However, such allegations do not meet the requirements set forth
in Lewis. Additionally, while Plaintiff also alleges that he was delayed in filing his appeal
in Case No. 4:10CV3138, there is no indication that Plaintiff’s attempt to access the courts
was hindered. The record in Case No. 4:10CV3138 shows that the court granted Plaintiff’s
motion to extend time to file his notice of appeal on March 2, 2012.
4:10CV3138, Filing No. 30.) Indeed, Plaintiff’s appeal in Case No. 4:10CV3138 is currently
pending before the Eighth Circuit Court of Appeals. In short, Defendant timely sent the
dismissal memorandum and order and judgment to Plaintiff. However, even if she had not,
Plaintiff suffered no “concrete injury,” because the court permitted his untimely appeal. For
these reasons, Plaintiff’s Complaint is dismissed in its entirely for failure to state a claim
upon which relief may be granted.1
The court notes that Defendant may also be entitled to “absolute quasi-judicial
immunity.” See Martin v. Hendren, 127 F.3d 720, 721 (8th Cir. 1997) (quoting Roland v.
Phillips, 19 F.3d 552, 555 (11th Cir. 1994)). However, court clerks are only entitled to
absolute quasi-judicial immunity for discretionary acts, or for acts taken at the direction of
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
All pending motions are denied as moot; and
The Clerk of the court is directed to place the “28USC1915(g)_STR” flag on
DATED this 19th day of June, 2012.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
a judge or according to court rule. See Antoine v. Byers & Anderson, Inc., 508 U.S. 429,
436 (1993) (concluding that when judicial immunity is extended to officials other than
judges, it is because they also exercise discretionary judgment as part of their function);
Geitz v. Overall, 62 F. App’x 744, 746 (8th Cir. 2003) (permitting case to proceed where
clerk’s failure to notify a party of court orders was “arguably ministerial”). Because it
already determined that Plaintiff’s Complaint fails to state a claim, the court need not reach
this separate issue.
*This opinion may contain hyperlinks to other documents or Web sites. The U.S.
District Court for the District of Nebraska does not endorse, recommend, approve, or
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The court accepts no responsibility for the availability or functionality of any hyperlink.
Thus, the fact that a hyperlink ceases to work or directs the user to some other site does
not affect the opinion of the court.
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