Akins v. Kopf

Filing 5

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: Akins's Motion for Leave to Proceed in Forma Pauperis (Filing No. 2 ) isdenied. The Complaint is dismissed with prejudice on the grounds that it seeks relief against a defendant who is immune from suit. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party)(TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SAMAR AKINS,
Plaintiff,
v.
RICHARD KOPF, Federal District
Judge,
Defendant.

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4:14CV3217

MEMORANDUM
AND ORDER

Plaintiff Samar Akins (“Akins” or “Plaintiff”) filed his Complaint (Filing No. 1)
in this matter on November 5, 2014. He also filed a Motion for Leave to Proceed in
Forma Pauperis (Filing No. 2). This matter is before the court for pre-service screening
of the Complaint. For the reasons set forth below, the Complaint will be dismissed and
Akins will not be permitted to proceed in forma pauperis in this matter.
I. SUMMARY OF COMPLAINT
Akins filed his Complaint against Senior United States District Court Judge
Richard G. Kopf. The following is taken from Akins’s Complaint:
That I have filed several federal 1983 civil lawsuits against various county,
city, and state officials alleging violations of my federal and civil rights
ranging from discrimination to violations of the Uniform Landlord Tenant
Act, and the lawsuits which Judge Koph [sic] has presided over have all
resulted with the same ruling basicly [sic] saying that I haven’t state a claim
and giving me leave to amend my petitions. Basicly [sic] Judge Koph [sic]
is saying that I dont [sic] have any Federal or civil rights because in all of
my civil actions he did not recognize any of my federal claims.
This in itself is a [sic] arbitrary and capricious act making a mockery of the
judicial system. Judge Koph [sic] even went as far as to threaten me not to
file any more federal suits in forma pauperis alleging I could possibly be

abusing the system because I filed in forma pauperis. Judge Koph [sic]
discriminatory actions against me is based on my race, social economical
status, and political beliefs also his actions have been in favor of all the
white defendants in my lawsuits. Judge Koph [sic] most definitely treated
me differently from other plaintiffs.
(Filing No. 1 at CM/ECF pp. 1-2.) As relief, Akins seeks $100,000 in damages. He also
asks that all of his federal civil lawsuits be heard by a different judge. (Filing No. 1 at
CM/ECF p. 3.)
II. 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).
Pro se plaintiffs 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, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to dra
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 omitted).

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III. DISCUSSION OF CLAIMS
Akins seeks relief from a United States district court judge for violations of his
“human rights” and for violations of the Fifth, Seventh, Eighth, and Fourteenth
Amendments. (Filing No. 1 at CM/ECF p. 2.) However, Judge Kopf is immune from
suit. It is apparent that the acts Akins complains of were taken in connection with the
civil actions Akins filed in this federal district court.
A judge is immune from suit in all but two narrow sets of circumstances. Schottel
v. Young, 687 F.3d 370, 373 (8th Cir. 2012). “First, a judge is not immune from liability
for nonjudicial actions, i.e., actions not taken in the judge’s judicial capacity. Second, a
judge is not immune for actions, though judicial in nature, taken in the complete absence
of all jurisdiction.” Id. (internal citations omitted). An act is judicial if “it is one
normally performed by a judge and if the complaining party is dealing with the judge in
his judicial capacity.” Id. (internal citations omitted).
Akins argues in his Complaint that Judge Kopf is not entitled to judicial immunity
because his actions were criminal when he “threaten[ed him] not to file any more civil
lawsuits.” (Filing No. 1 at CM/ECF p. 2.) The court takes judicial notice of the court
records found in Case Number 4:14-cv-03153-RGK-PRSE. In an order dated July 31,
2014, Judge Kopf stated:
A word of caution to Plaintiff: Plaintiff has filed eight civil actions
in this court since January of 2014. He has filed three civil actions this week
alone. (See Akins v. Albers, 4:14CV3150 (filed July 29, 2014); Akins v.
Officer Firell, 4:14CV3151 (filed July 29, 2014); Akins v. Wilson,
4:14CV3153 (filed July 30, 2014).) The right of access to the courts is not
absolute or unconditional. See In re Winslow, 17 F.3d 314, 315 (10th Cir.
1994). Indeed, this court has the authority to enjoin a litigant who abuses
the court system through vexatious and harassing litigation. See, e.g.,
Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir. 1989). Thus, the court
cautions Plaintiff of the rule that his right of access to the courts is not
absolute and that he will not be allowed to abuse the legal system. If the
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court determines at some later time that Plaintiff has abused the legal
system, the court may impose sanctions and filing restrictions.
(Case No. 4:14-cv-03153-RGK-PRSE, Filing No. 5.)
Judge Kopf’s word of caution to Akins was not an act in “clear absence of all
jurisdiction.” Further, it was clearly an action taken in his judicial capacity. As such,
Judge Kopf is immune from suit in this matter. Moreover, to the extent Akins seeks
judicial review of Judge Kopf’s decisions, his avenue for relief is an appeal of Judge
Kopf’s decisions to the Eighth Circuit Court of Appeals.
IT IS THEREFORE ORDERED that:
1.

Akins’s Motion for Leave to Proceed in Forma Pauperis (Filing No. 2) is

denied.
2.

The Complaint is dismissed with prejudice on the grounds that it seeks relief

against a defendant who is immune from suit.
3.

A separate judgment will be entered in accordance with this Memorandum

and Order.
DATED this 7th day of November, 2014.
BY THE COURT:

s/ Joseph F. Bataillon
Senior United States District Judge
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