Moore v. Gerrard

Filing 6

MEMORANDUM AND ORDER that Moore's Complaint is dismissed with prejudice. The court will enter judgment by a separate document. Moore's Motion for Leave to Proceed in Forma Pauperis 2 is denied as moot. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MAURICE MOORE,
Plaintiff,
v.
JOHN M. GERRARD, in his
individual and official capacity,
Defendant.

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4:15CV3140

MEMORANDUM
AND ORDER

This matter is before the court on initial review of Plaintiff Maurice Moore’s
Complaint (Filing No. 1). See 28 U.S.C. § 1915(e)(2). For the reasons discussed
below, the court finds (1) sovereign immunity deprives the court of jurisdiction over
Moore’s claims for damages against Judge Gerrard in his official capacity, and (2)
absolute judicial immunity bars Moore’s claims for damages against Judge Gerrard
in his individual capacity.
I. SUMMARY OF COMPLAINT
Liberally construed, Moore asserts constitutional claims against Judge Gerrard,
a federal district court judge. He alleges Judge Gerrard presided over his civil case,
Moore v. Stacy, No. 4:15-cv-03107-JMG-PRSE. He complains that Judge Gerrard
dismissed this civil case without requiring the defendant to answer the complaint. He
alleges, in conclusory fashion, that Judge Gerrard’s actions were racially motivated.
(Filing No. 1 at CM/ECF pp. 1-3.)
For relief, Moore seeks damages in the amount of $2 million. Moore also asks
for a declaration that Judge Gerrard violated the Federal Rules of Civil Procedure, the
Nebraska Constitution, and Moore’s rights under the Equal Protection Clause of the
United States Constitution. (Filing No. 1 at CM/ECF p. 4.)

II. 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 of it 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.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (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 draw the reasonable inference
that the defendant is liable for the misconduct alleged.”).
III. DISCUSSION
A.

Sovereign Immunity

Moore sued Judge Gerrard, a federal district court judge, in his official capacity
and in his individual capacity. Sovereign immunity prevents the court from exercising
jurisdiction over claims for damages against Judge Gerrard in his official capacity.
The doctrine of sovereign immunity provides that the United States is immune
from suit unless Congress has expressly waived the defense. See, e.g., United States
v. Mitchell, 463 U.S. 206, 212 (1983) (“It is axiomatic that the United States may not
be sued without its consent and that the existence of consent is a prerequisite for
jurisdiction.”); Cohens v. Virginia, 19 U.S. 264, 411-12 (1821) (“The universally
received opinion is[ ] that no suit can be commenced or prosecuted against the United
States[.]”). If sovereign immunity applies, the court lacks jurisdiction to entertain the
offending suit. See, e.g., FDIC v. Meyer, 510 U.S. 471, 475 (1994); United States v.
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Sherwood, 312 U.S. 584, 586 (1941). A lawsuit against a government official in his
official capacity is tantamount to a suit against “an entity of which an officer is an
agent[,]” Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (internal quotation marks
omitted) (quoting Monell v. New York City Dep’t. of Soc. Servs., 436 U.S. 658, 690
n. 55 (1978)); therefore, the sovereign immunity doctrine applies equally to the
government itself and to any federal official sued in his or her official capacity.
Congress may waive sovereign immunity, but any such waiver must be express.
United States v. Mitchell, 445 U.S. 535, 538 (1980).
Here, Moore brought suit against Judge Gerrard in his official capacity. Judge
Gerrard is part of the United States government for purposes of sovereign immunity.
See Graham, 473 U.S. at 165-166. The United States clearly falls within the
protective reach of sovereign immunity. There is nothing in the record to suggest the
United States waived, or that Congress overrode, sovereign immunity here.
Therefore, this court lacks jurisdiction over Moore’s claims against Judge Gerrard in
his official capacity.
B.

Judicial Immunity

Moore’s individual-capacity claims against Judge Gerrard also fail. This cause
of action comes under Bivens v. Six Unknown Federal Agents, 403 U.S. 388 (1971)
(recognizing an implied cause of action for monetary damages against federal
government officials sued in their individual capacities for constitutional violations).
Judges are entitled to absolute immunity from suit for all judicial actions except
those taken in the complete absence of all jurisdiction. Penn v. United States, 335
F.3d 786, 789 (8th Cir. 2003). Absolute judicial immunity is not overcome by
allegations of bad faith or malice. Mireles v. Waco, 502 U.S. 9, 12 (1991); Stump v.
Sparkman, 435 U.S. 349, 356-57 (1978).

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Here, Moore alleged no facts against Judge Gerrard that would fall outside the
scope of his duties in presiding over Moore’s civil proceedings. Accordingly, his
individual-capacity claims against him for money damages are barred on the basis of
judicial immunity.
C.

Requests for Declaratory Relief

Moore also seeks declaratory relief. While judicial immunity is not a bar to
declaratory relief, Lawrence v. Kuenhold, 271 Fed.Appx. 763, 766 (10th Cir. 2008),
Moore is not entitled to such relief. Moore essentially asks for a declaration that
Judge Gerrard violated the Federal Rules of Civil Procedure, the Nebraska
Constitution, and his rights under the Equal Protection Clause of the United States
Constitution. (Filing No. 1 at CM/ECF p. 4.) These are requests for a declaration of
past liability. They do not pertain to Moore’s future rights. Therefore, a declaratory
judgment would serve no purpose and is not available. Id. at 766.
IT IS THEREFORE ORDERED that:
1.
Moore’s Complaint is dismissed with prejudice. The court will enter
judgment by a separate document.
2.
Moore’s Motion for Leave to Proceed in Forma Pauperis (Filing No. 2)
is denied as moot.
DATED this 22nd day of February, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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