Calkins v. Williams et al

Filing 11

MEMORANDUM DECISION AND ORDER DISMISSING CASE. For the reasons stated, and pursuant to 28 U.S.C. § 1915(e), Calkins' Complaint and all claims against Defendants are DISMISSED with prejudice. The Clerk of Court is directed to close this case. Signed by Judge Robert J. Shelby on 9/30/21. (jwt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

ANDREW CALKINS,
Plaintiff,

MEMORANDUM DECISION AND
ORDER DISMISSING CASE

v.

Case No. 1:18-cv-00053-RJS

DAVIS SCHOOL DISTRICT, et al,

Chief Judge Robert J. Shelby

Defendants.

Pro se Plaintiff Andrew Calkins, proceeding in forma pauperis, brings this action against
Defendants Becky Williams, Brad Vallace, and Laura Bond of Davis School District (Davis
School District Defendants), Matthew Combs and J. C. Ynchausti of Bountiful City (Bountiful
City Defendants), Melinda Caraballo of the United States Equal Opportunity Commission1 (EOC
Defendant),2 and Judge David Nuffer of the District of Utah, alleging employment and other
forms of discrimination under Title VII of the Civil Rights Act of 1964. For the reasons set forth
below, the court DISMISSES with prejudice Calkins’ Complaint against Defendants pursuant to
28 U.S.C. § 1915(e)(2).
BACKGROUND
In 2015, Calkins filed a lawsuit against the Davis School District, Bountiful City, and
EOC Defendants, alleging Title VII violations against him while he worked for Davis School

Calkins names the “U.S. Equal Opportunity Commission” as a Defendant. Presumably, Calkins intended to name
the Equal Employment Opportunity Commission, but the court will refer to this Defendants by the name used in the
Complaint.
1

Calkins’ Complaint is unclear whether Davis School District, Bountiful City, and the U.S. Equal Opportunity
Commission are themselves named Defendants. However, as explained below, the named Defendants in this
Complaint are identical to those named in a prior suit, with the exception of Judge Nuffer.
2

District as a general custodian at Bolton Elementary School (Calkins I).3 That action was
assigned to Judge Nuffer. The nature and variety of Calkins’ claims are not clear from the
Calkins I Complaint, but he appears to allege Title VII violations including hostile work
environment, harassment, retaliation, and discrimination based on religion and marital status.4
That case was referred to Magistrate Judge Evelyn J. Furse under 28 U.S.C. §
636(b)(1)(B) to handle, up to and including a report and recommendation on all dispositive
matters.5 The Defendants each filed Motions to Dismiss Calkins’ Complaint,6 and Judge Furse
issued a Report and Recommendation with respect to each motion (the Reports) recommending
they be granted.7 Judge Nuffer adopted the recommendations on April 13, 2017, dismissing
Calkins’ Complaint and allowing him thirty days to amend.8 Judge Nuffer’s Order also warned
Calkins that “[f]ailure to submit an amended complaint within thirty days will result in dismissal
of all claims with prejudice and closure of the case.”9 Calkins failed to amend. On September
25, 2017, Judge Nuffer dismissed the case with prejudice for failure to prosecute pursuant to
Local Rule 42-1.10

3

Dkt. 3 in case number 1:15-cv-00060-DN (Calkins I). For clarity, the court will cite to Calkins I docket entries by
using the following convention: “Calkins I, Dkt. X.” The court will cite to docket entries in the instant case (Calkins
II) using the convention “Dkt. X.”
4

See Calkins I, Dkt. 3 (Complaint).

5

Calkins I, Dkt. 4.

6

See Calkins I, Dkts. 15, 18, 21. No motion was filed on behalf of Defendant Brad Vallace because his service was
returned unexecuted. Calkins I, Dkt. 14. Therefore, Judge Nuffer determined he was not properly before the court.
See Calkins I, Dkt. 26 (Judge Nuffer’s Order) at 2.
7

Calkins I, Dkts. 23, 24, 25.

8

Calkins I, Dkt. 26 (Judge Nuffer’s Order) at 3–4.

9

Id. at 4.

10

See Calkins I, Dkt. 27 (Order Dismissing Case); see also DUCivR 42-1.

2

On May 15, 2018, Calkins filed another lawsuit naming the same Defendants as in
Calkins I and adding Judge Nuffer as an additional defendant (Calkins II).11 The Calkins II
Complaint is identical to the Complaint dismissed in Calkins I, except for two alterations: (1) it
removes one line referencing a message Calkins left for the EOC; and (2) it adds a paragraph
alleging Judge Nuffer was “incapable of understanding religious rights marriage (virgin rights)
or what a hostile environment is,” and that “[h]is intentional religious discrimination, and
ignorance and unlawful dismissal of this complaint could cost [Calkins] more
$1,000,000,000,000 quadrillion dollars.”12
Calkins has taken no action in this case since filing his Complaint over three years ago.
On June 4, 2021, following a series of recusals from other judges, this action was reassigned to
the undersigned.
Now before the court is Calkin’s Complaint in Calkins II.
LEGAL STANDARD
Under 28 U.S.C. § 1915(a), the court may allow a claimant to proceed in forma pauperis
(IFP), “commenc[ing] . . . a [civil action] . . . without prepayment of fees,” by submitting an
affidavit that includes a statement of assets proving an inability to pay.13 “The district court may
grant a motion to proceed IFP even if the complaint fails to state a claim and the court must
thereby dismiss the complaint pursuant to 28 U.S.C. § 1915(e)(2).”14 Indeed, the court must

11

Dkt. 3 (Complaint).

12

Id.

13

28 U.S.C. § 1915(a).

14

Smith v. Torrez, 428 F. Supp. 3d 629, 633 (D.N.M. 2019) (citing Buchheit v. Green, 705 F.3d 1157, 1160–61
(10th Cir. 2012)).

3

dismiss an IFP action at any time if the court determines the action is frivolous or malicious, or
fails to state a claim on which relief may be granted.15
And while the pleadings of pro se plaintiffs, such as Calkins, are to be liberally construed,
they must still “allege sufficient facts on which a recognized legal claim could be heard.”16
ANALYSIS
I.

Calkins’ Claims Against the Davis County School District, Bountiful City,
and EOC Defendants are Barred by the Doctrine of Claim Preclusion

“[A] party who once had a chance to litigate a claim before an appropriate tribunal
usually ought not have another chance to do so.”17 For this reason, the doctrine of claim
preclusion “prevent[s] a party from litigating a legal claim that was or could have been the
subject of a previously issued final judgment.”18
Claim preclusion applies when three elements are met: “(1) a final judgment on the
merits in an earlier action; (2) [the same] identity of parties or privies in the two suits; and (3)
[the same] identity of the cause of action in both suits.”19 However, claim preclusion does not
apply if “the party resisting it did not have a ‘full and fair opportunity to litigate’ the claim in the
prior action.”20 This exception applies “only where the requirements of due process were not
afforded—where a party shows ‘a deficiency that would undermine the fundamental fairness of
the original proceedings.’”21 Fairness “‘is determined by examining any procedural limitations,
the party’s incentive to fully litigate the claim, and whether effective litigation was limited by the

15

28 U.S.C. § 1915(e)(2).

16

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

17

Stone v. Dep’t of Aviation, 453 F.3d 1271, 1275 (10th Cir. 2006).

18

Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 847 F.3d 1221, 1239 (10th Cir. 2017) (citation omitted).

19

Id.

20

Id.

21

Johnson v. Spencer, 950 F.3d 680, 709 (10th Cir. 2020) (citation omitted).

4

nature or relationship of the parties.’”22 Any “dismissal with prejudice is a final decision on the
merits for claim preclusion.”23
Here, Calkins’ claims against the Davis County School District, Bountiful City, and EOC
Defendants are barred by claim preclusion. Calkins’ Complaint in the instant action is identical
to the Complaint he filed against these same Defendants in Calkins I. This satisfies both the
second and third requirements of claim preclusion—that the suit involve the same parties and the
same claims. The first requirement is satisfied because the Calkins I Complaint was dismissed
with prejudice, which qualifies as a final decision on the merits for purposes of claim
preclusion.24 Further, there was no deficiency in those proceedings that would compromise their
fundamental fairness such that Calkins was deprived of a full and fair opportunity to litigate.
Indeed, Calkins’ claims were first dismissed without prejudice when Judge Nuffer adopted the
recommendations from Judge Furse, and Calkins was given thirty days to amend.25 In adopting
the recommendations, Judge Nuffer cautioned that failure to amend would result in his claims
being dismissed with prejudice.26 Calkins did not object to Judge Nuffer’s Order, nor did he
amend his Complaint. His claims were ultimately dismissed with prejudice for failure to
prosecute.27
Therefore, Calkins’ claims against the Davis County School District, Bountiful City, and
EOC Defendants are precluded and must be dismissed.

22

Id.

Reyes v. Larimer Cty., 796 F. App’x 497, 499 (10th Cir. 2019) (citing Murphy v. Klein Tools, Inc., 935 F.2d 1127,
1127, 1129 (10th Cir. 1991)).
23

24

Id.

25

Calkins I, Dkt. 26 (Judge Nuffer’s Order) at 4.

26

Id.

27

See Calkins I, Dkt. 27 (Order Dismissing Case) at 1–2.

5

II.

Calkins’ Remaining Claims Against Judge Nuffer are Barred by the Doctrine
of Judicial Immunity

Under the doctrine of judicial immunity, “[j]udges of courts of superior or general
jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess
of their jurisdiction, and are alleged to have been done maliciously or corruptly.”28 This
protection for judges mitigates “the risk that judges will be harassed and their independence
compromised by the threat of having to defend themselves against suits by disgruntled litigants”
or against “charge[s] that in performing their judicial duties the judges of [a] court were
engaging in a conspiracy against [a party].”29 However, judicial immunity is overcome in two
sets of circumstances: (1) “a judge is not immune from liability for nonjudicial actions, i.e.,
actions not taken in the judge’s judicial capacity,” and (2) “for actions, though judicial in nature,
taken in the complete absence of all jurisdiction.”30 “[W]hether an act by a judge is a ‘judicial’
one relates to the nature of the act itself, i.e., whether it is a function normally performed by a
judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial
capacity.”31
Here, Calkins’ claims against Judge Nuffer based on the dismissal of his Complaint in
Calkins I are barred by the doctrine of judicial immunity. Judge Nuffer adopted the
recommendations from Judge Furse to dismiss of Calkins’ Complaint,32 an action well within his
judicial capacity.33

28

Stump v. Sparkman, 435 U.S. 349, 355–56 (1978).

29

Green v. Seymour, 59 F.3d 1073, 1078 (10th Cir.1995) (citing Pulliam v. Allen, 466 U.S. 522, 537–38 (1984)).

30

Mireles v. Waco, 502 U.S. 9, 11–12. (citations omitted).

31

Id. at 12. (citations omitted).

32

See Calkins I, Dkt. 26 (Judge Nuffer’s Order).

33

See Fed. R. Civ. P. 72(b); Mireles, 502 U.S. at 11.

6

Further, this judicial action was not taken “in the complete absence of all jurisdiction.”34
The court had jurisdiction over Calkins’ claims because his allegations for violations of Title VII
of the Civil Rights Act appear on the face of his Complaint, and Title VII provides a cause of
action created by federal law.35
Therefore, Calkins’ claims against Judge Nuffer must also be dismissed.36
III.

Calkins’ Claim Against Judge Nuffer is Also Dismissed as Frivolous

Under 28 U.S.C. § 1915(e)(2)(B)(i), the court must dismiss an action sua sponte when a
plaintiff is proceeding in forma pauperis if the action is “frivolous or malicious.” A claim is
frivolous where it “lacks an arguable basis either in law or in fact,” meaning it presents an
“inarguable legal conclusion [or] fanciful factual allegation.” Neitzke v. Williams, 490 U.S. 319,
325 (1989).
Here, Calkins alleges Judge Nuffer is “incapable of understanding religious marriage
(virgin rights) or what a hostile environment is.” Dkt. 3 (Complaint) at 4. He goes on to allege
“[Judge Nuffer’s] intentional religious discrimination, and ignorance and unlawful dismissal of
this complaint could cost me more $1,000,000,000,000 quadrillion dollars.” Id. This is the
extent of Calkins’ allegations against Judge Nuffer. Without more, these allegations lack an
arguable basis in fact or law and present a fanciful factual allegation. Therefore, even if judicial

34

See Mireles, 502 U.S. at 12.

35

See Nicodemus v. Union Pacific Corp., 318 F.3d 1231, 1235 (10th Cir. 2003) (explaining that to find jurisdiction
under 28 U.S.C. § 1331, a question of federal law must appear on the face of the plaintiff’s well-pleaded complaint,
and the plaintiff’s cause of action must be created by federal law); Hannah v. Cowlishaw, 628 F. App’x 629, 632
(10th Cir. 2016) (explaining that Title VII of the Civil Rights Act of 1964 provides a cause of action against
employer for various forms of discrimination.).
See Echols v. American Fork Investors, 974 F.2d 1345 (10th Cir. 1992) (unpublished) (affirming a district court’s
granting motions to dismiss with prejudice claims against several judges based on judicial immunity); see also
Foerster v. Lubeck, No. 2:14-CV-344-DB, 2014 WL 3858507, at *1 (D. Utah Aug. 5, 2014) (unpublished) (district
court adopting report and recommendation recommending dismissal of claims with prejudice based on judicial
immunity); Chambers v. Gesell, 120 F.R.D. 1, 3 (D.D.C. 1988) (dismissing case with prejudice based on judicial
immunity).
36

7

immunity did not bar the claim against Judge Nuffer, the court would dismiss it as frivolous
pursuant to § 1915(e).
CONCLUSION
For the reasons stated,37 and pursuant to 28 U.S.C. § 1915(e), Calkins’ Complaint38 and
all claims against Defendants are DISMISSED with prejudice. The Clerk of Court is directed to
close this case.
SO ORDERED this 30th day of September 2021.
BY THE COURT:

________________________________
ROBERT J. SHELBY
United States Chief District Judge

The court notes that an additional basis to dismiss Calkins’ Complaint is, again, for a failure prosecute under
DUCivR 42-1. Under normal circumstances, the court would issue an order to show cause prompting the plaintiff to
further action. However, given the unique circumstances of this case, and that Calkins has taken no further action in
this case during the past three years, the court could alternatively dismiss Calkins’ Complaint without prejudice for
failure to prosecute.
37

38

Dkt. 3.

8