Opinion
CIV-21-633-D
10-22-2021
R. WAYNE JOHNSON, Plaintiff, v. THAD BALKMAN, et al., Defendants.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Plaintiff, appearing pro se, originally commenced this action in the Oklahoma County District Court, and the case was removed to this Court. Doc. 1 (Notice of Removal); id. Ex. 3 (state-court docket). Chief United States District Judge Timothy D. DeGiusti has referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 10.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
Plaintiff seeks relief under 42 U.S.C. § 1983 and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), alleging violations of his constitutional rights arising from the litigation of one of Plaintiff's prior actions-“a former state suit . . . and a federal suit . . . removed to Fed. Ct.” Doc. 1, Ex. 2, at 1-2 (Complaint). Plaintiff refers to a case he filed in state court, 1 R. Wayne Johnson, #282756 v. U.S. Postal Serv., No. CJ-2020-30, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=clevelandνmb er=CJ-2020-30&cmid=2342112 (last visited Oct. 13, 2021) (Johnson I), which was removed to federal court and dismissed as frivolous, Johnson v. U.S. Postal Serv., No. CIV-20-350-D, 2020 WL 5351970 (W.D. Okla. May 13, 2020), adopted, 2020 WL 3027675 (W.D. Okla. June 5, 2020). Doc. 1, Ex. 2, at 1-2. Plaintiff vaguely alleges “unlicensed legal work, ” “misprision of felony, ” and “mail crimes” related to purported violations of privacy occurring when “prisons ‘open'-deny-read mail: sans search warrants.” Id. at 1-3. Plaintiff asks the Court to “[p]roceed as proper” and “award all damages” requested throughout his complaint. Id. at 6.
Plaintiff names as Defendants United States Attorney for the Western District of Oklahoma Timothy J. Downing and Assistant United States Attorneys Tom Majors and Sarah Greenwalt McMurray (“Federal Defendants”). Doc. 1, Ex. 2. Plaintiff also names Cleveland County District Judge Thad Balkman and Debbie Stevenson, Civil Supervisor for the Cleveland County Court Clerk's Office. Id. Finally, Plaintiff names United 2 States Magistrate Judge Shon T. Erwin and former Clerk of Court for the Eastern District of Arkansas James McCormack. Id.
Counsel for Defendants Downing, McMurray, and Majors asserts in her entry of appearance that “a review of the State Court Docket Sheet does not reveal service upon” Defendant Judge Erwin or Defendant McCormack. Doc. 2, at 1. The Court's own review of the state-court docket sheet supports counsel's assertion. See United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (exercising discretion “to take judicial notice of publicly-filed records in [this] court and certain other courts concerning matters that bear directly upon the disposition of the case at hand” (citation omitted)).
Federal Defendants timely filed a notice of removal to this Court, and Defendants Balkman and Stevenson consented. Doc. 1, at 1-2; see 28 U.S.C. § 1446(b)(1) (establishing thirty-day time limit for notice of removal); see also 28 U.S.C. § 1446(b)(2)(A) (“When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.”).
Prior to removal, Defendants Balkman and Stevenson both moved to dismiss the claims against them, on grounds of judicial and quasi-judicial removal respectively. Doc. 1, Exs. 4, 5. After removal, Federal Defendants moved to dismiss Plaintiff's claims against them for failing to satisfy Fed.R.Civ.P. 8, among other grounds for dismissal. Doc. 12, at 8. The United States filed an amicus brief arguing Defendant Judge Erwin and Defendant McCormack are absolutely immune to Plaintiff's claims and urging dismissal 3 on that ground. Doc. 38. The undersigned recommends dismissal of Plaintiff's complaint in its entirety.
Upon removal, Defendants Balkman and Stevenson notified the Court of their pending motions to dismiss, as required by Local Civil Rule 81.2. Docs. 5, 8.
I. The Court should grant Federal Defendants' motion to dismiss.
A. Motion to dismiss under Fed.R.Civ.P. 12(b)(6).
A party may move to dismiss a claim under Fed.R.Civ.P. 12(b)(6) for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). Dismissal is proper when the plaintiff has failed to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the [complaint] alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations omitted). In reviewing sufficiency, “[a]ll well-pled factual allegations are accepted as true and viewed in the light most favorable to the nonmoving party.” Peterson v. Grisham, 594 F.3d 723, 727 (10th Cir. 2010). 4
B. Plaintiff's claims against Federal Defendants fail under Fed.R.Civ.P. 8.
Rule 8 of the Federal Rules of Civil Procedure requires a complaint to contain “(1) a short and plain statement of the grounds for the court's jurisdiction . . .; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought.” Fed.R.Civ.P. 8(a). To avoid a dismissal for failure to state a claim, a complaint must set out factual allegations that “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
“Rule 8 serves the important purpose of requiring plaintiffs to state their claims intelligibly so as to inform the defendants of the legal claims being asserted.” Mann v. Boatright, 477 F.3d 1140, 1148 (10th Cir. 2007). It “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). That is, from the allegations in the complaint, Defendant must be able to learn “what each defendant did to [the plaintiff]; when the defendant did it; how the defendant's action harmed [the plaintiff]; and, what specific legal right the plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe Cty. Justice Ctr., 492 F.3d 1158, 1163 (10th Cir. 2007).
Pro se litigants are not excused from complying with these minimal pleading demands. “This is so because a pro se plaintiff requires no special 5 legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But the Court cannot “supply additional facts, [or] construct a legal theory for [P]laintiff that assumes facts that have not been pleaded.” Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989).
Plaintiff does not explain how Federal Defendants allegedly violated his rights. Defendant Majors and Defendant Greenwalt McMurray represented the federal defendants named by Plaintiff in Johnson I. No. CIV-20-350-D, Docs. 6, 15. And Defendant Downing served as United States Attorney for the Western District of Oklahoma at the time. Plaintiff only alludes to their roles in that case, simply explaining that this action “arises from” Johnson I. Doc. 1, Ex. 2, at 2. But mention of that case is insufficient to inform Defendants what they did to Plaintiff, or when, or how-much less what right they allegedly violated. See Nasious, 492 F.3d at 1163.
Plaintiff's claims against Federal Defendants therefore fail under Fed.R.Civ.P. 8, and the undersigned recommends the Court grant their motion to dismiss. 6
II. The Court should dismiss Plaintiff's claims against Defendants Judge Balkman and Stevenson, as well as those against Defendants Judge Erwin and McCormack.
A. Judicial and quasi-judicial immunity.
“[J]udges are generally immune from suits for money damages.” Stein v. Disciplinary Bd. of Supreme Ct. of N.M., 520 F.3d 1183, 1195 (10th Cir. 2008) (citing Mireles v. Waco, 502 U.S. 9, 9-10 (1991)). “There are only two exceptions to this rule: (1) when the act is ‘not taken in [the judge's] judicial capacity,' and (2) when the act, ‘though judicial in nature, [is] taken in the complete absence of all jurisdiction.'” Id. (alterations in original) (quoting Mireles, 502 U.S. at 12). But unless one of these exceptions applies, “[a] judge will not be deprived of immunity because the action he took was in error, [or] was done maliciously . . . .” Stump v. Sparkman, 435 U.S. 349, 356 (1978). “The ‘judicial acts' for which judges enjoy immunity include all functions normally performed by a judge when the parties deal with the judge in [their] judicial capacity.” Bradley v. Gray, 78 F. App'x. 84, 85 (10th Cir. 2003) (quoting Stump, 435 U.S. at 362).
Derived from judicial immunity, quasi-judicial immunity provides “[a]bsolute immunity for officials assigned to carry out a judge's orders.” Moss v. Kopp, 559 F.3d 1155, 1163 (10th Cir. 2009). “Just as judges acting in their judicial capacity are absolutely immune from liability . . . ‘official[s] charged 7 with the duty of executing a facially valid court order enjoy[] absolute immunity from liability for damages in a suit challenging conduct prescribed by that order.'” Turney v. O'Toole, 898 F.2d 1470, 1472 (10th Cir. 1990) (alteration in original) (quoting Valdez v. City & County of Denver, 878 F.2d 1285, 1286 (10th Cir. 1989)). This immunity “is necessary to ensure that such officials can perform their function without the need to secure permanent legal counsel.” Moss, 559 F.3d at 1163.
B. Defendant Judge Balkman's and Defendant Stevenson's motions to dismiss.
Prior to removal, Defendant Judge Balkman and Defendant Stevenson each moved to dismiss Plaintiff's claims against them under Okla. Stat. Tit. 12, § 2012(B)(6). Doc. 1, Exs. 4, 5. That Oklahoma statute authorizes dismissal of a complaint for “[f]ailure to state a claim upon which relief can be granted.” Signature Leasing, LLC v. Buyer's Grp., LLC, 466 P.3d 544, 547 n.2 (Okla. 2020). After removal, Defendants' motions are governed by Fed.R.Civ.P. 12(b)(6), the analogous federal provision. See Fed. R. Civ. P. 81(c)(1) (“These rules apply to a civil action after it is removed from a state court.”); Dorrough v. Geo Grp., Inc., No. CIV-14-1389-D, 2016 WL 3829142, at *1 (W.D. Okla. July 12, 2016) (applying analogous federal rule to motion for dismissal filed in state court prior to removal). Dismissal is therefore proper when the plaintiff has 8 failed to plead “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
1. Defendant Judge Balkman is absolutely immune.
Plaintiff's allegations against Defendant Judge Balkman stem from Johnson I, over which he presided. Doc. 1, Ex. 4, at 2; Johnson I, Docket Entry Dated Jan. 9, 2020 (case assignment). Plaintiff alleges Judge Balkman violated “clearly established statutory (crimes) rights-and constitution” because he “refused to sign default judgment.” Doc. 1, Ex. 4, at 5-6.
Judge Balkman's decision on a default judgment question is “clearly [a] ‘judicial act[].'” See Bradley, 78 Fed.Appx. 84, 86 (10th Cir. 2003) (“The acts for which Plaintiff sued Judge Gray-namely the manner in which she conducted a state post-conviction hearing and the sanctions she handed down therein- are clearly ‘judicial acts.'”). And “disagreement with a ruling does not touch upon the court's jurisdiction or judicial capacity.” Jiricko v. Frankenburg Jensen L. Firm, 764 Fed.Appx. 664, 668 (10th Cir. 2019).
Plaintiff suggests his allegations satisfy the jurisdiction exception to judicial immunity, simply alleging Judge Balkman “lacked jurisdiction” over the case. Doc. 1, Ex. 4, at 5-6. However, “a judge does not act in the clear absence of all jurisdiction even if the action he took . . . was in excess of his authority” or “even if his exercise of authority is flawed by the commission of 9 grave procedural errors.” Whitesel v. Sengenberger, 222 F.3d 861, 867 (10th Cir. 2000) (quoting Stump, 435 U.S. at 356-59). Rather, the proper inquiry “is whether at the time he took the challenged action he had jurisdiction over the subject matter before him.” Stump, 435 U.S. at 356. “Oklahoma district courts are courts of general jurisdiction.” Wilhelm v. Bruning, No. CIV-09-1050-C, 2010 WL 2164630, at *3 (W.D. Okla. Apr. 16, 2010), adopted, No. CIV-09-1050-C, 2010 WL 2106233 (W.D. Okla. May 25, 2010); Rodriguez v. Moinian, 798 P.2d 232, 233-34 (Okla. App. 1990) (“Since 1967, the District Courts of Oklahoma are courts of ‘unlimited original jurisdiction,' having authority over ‘all justiciable matters.'”). Because Judge Balkman had jurisdiction over the proceedings before him, he is absolutely immune from Plaintiff's claims about his alleged mishandling of the declaratory judgment question.
2. Defendant Stevenson is absolutely immune.
Plaintiff does not clearly explain how Defendant Stevenson allegedly violated his rights. Stevenson is Civil Supervisor for the Cleveland County Court Clerk's Office.
Plaintiff generally asserts that despite “know[ing] mail rooms use ‘rules' to commit[] mail crimes, ” “not one of these defendants report[ed] [Texas] employee's mail crimes to any judge[, ] U.S. Marshal[, or] FBI.” Doc. 1, Ex. 2, at 3. These “mail crimes” refer to the prison practice of “‘open[ing]'- 10 deny[ing]-read[ing] mail sans search warrants to violate ‘privacy' protected by the 4th Amend[ment]” and privacy statutes. Id.
“[A] court clerk enjoys absolute quasi-judicial immunity when he or she performs a ‘judicial act[.]'” Coleman v. Farnsworth, 90 Fed.Appx. 313, 317 (10th Cir. 2004). This is because “no court can discharge its judicial duties without the aid of clerks, servants and agents.” Wiggins v. N.M. State Supreme Court Clerk, 664 F.2d 812, 815 (10th Cir. 1981). And courts have extended this immunity to court clerks performing mail-related services to the court. Johnson v. Garza, 2016 WL 9021959, at *3 (D.N.M. Oct. 31, 2016) (“Courts have extended the immunity to court officials engaged in activity integral to the judicial process, including court clerks mailing copies of orders to a plaintiff.”) (citing Dickerson v. Bates, 287 F.Supp.2d 1251, 1254 n.1 (D. Kan. 2003)).
As pointed out by the United States, Plaintiff was also the plaintiff in Johnson v. Garza, where he leveled similar charges of privacy-related mail crimes against a clerk of court. See 2016 WL 9021959, at *1.
Plaintiff alleges wrongdoing based on Defendant Stevenson's role in managing mail for the state judiciary, and she is therefore immune from Plaintiff's claims against her. 11
Because Defendant Judge Balkman and Defendant Stevenson are immune, the undersigned recommends the Court grant their motions to dismiss Plaintiff's claims against them.
C. The Court should dismiss Plaintiff's claims against Defendants Judge Erwin and McCormack under 28 U.S.C. § 1915A.
1. The Court's obligations to screen complaints.
The Court must screen complaints filed by prisoners seeking relief against a governmental entity or employee. 28 U.S.C. § 1915A(a). The Court must dismiss any portion of the complaint that is “frivolous, malicious, or fails to state a claim upon which relief may be granted” or seeks monetary relief from a defendant who is immune from such relief. Id. §§ 1915A(b), 1915(e)(2)(B). This obligation applies to complaints originally filed in state court and then transferred to federal court. E.g., Berryhill v. President of Okla. City, OK N.A.A.C.P., No. CIV-13-474-W, 2013 WL 3058271 (W.D. Okla. June 17, 2013) (adopting recommendation that Plaintiff's claims be dismissed under § 1915A after case was transferred from state court).
2. Defendant Judge Erwin is absolutely immune.
Plaintiff's does not specify how Defendant Judge Erwin allegedly violated his rights, mentioning his name only once in the body of his complaint. Doc. 1, Ex. 2, at 1 (listing Defendants “McCormick (sic); McMurray; Downing; 12 Majors[;] Erwin: Bivens: 91 S.Ct. 1999”). It was Judge Erwin, though, who presided over Johnson I after it was removed to federal court. See Doc. 1, Ex. 2, at 2. After removal, the case was referred to Judge Erwin pursuant to 28 U.S.C. § 636(b)(1)(B), (C). Johnson, 2020 WL 5351970, at *1. Judge Erwin recommended dismissal of Plaintiff's complaint as frivolous. Id. at *3.
Plaintiff's allegations, therefore, appear to relate to the recommended disposition of Johnson I. Judge Erwin is therefore absolutely immune from Plaintiff's claims against him.
3. Defendant McCormack is absolutely immune.
As with Defendant Stevenson, Plaintiff does not clearly explain how Defendant McCormack allegedly violated his rights. McCormack was formerly Clerk of Court for the Eastern District of Arkansas. So, Plaintiff's allegations of “mail crimes” and the failure to report them appear to apply to McCormack as well as Stevenson. See Doc. 1, Ex. 2, at 3. These alleged “mail crimes” refer to the prison practice of opening inmates' mail. Id. Specific to McCormack, Plaintiff alleges only that he “sent many letters.” Id. at 5.
Like Stevenson, McCormack is entitled to quasi-judicial immunity for any judicial acts, including the provision of mail-related services to the courts. Coleman, 90 Fed.Appx. at 317 (quasi-judicial immunity applies to court clerks performing judicial acts); Johnson, 2016 WL 9021959, at *3 (applying that 13 principle to mail-related activities).
Because Defendants Judge Erwin and McCormack are immune, the undersigned recommends dismissal of Plaintiff's claims against them.
III. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends dismissal of Plaintiff's complaint in its entirety. The undersigned recommends that the Court dismiss with prejudice the claims against Defendants Judge Balkman and Judge Erwin, as well as Defendants Stevenson and McCormack. See Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001) (holding that where “amendment would be futile, ” the court may dismiss a claim with prejudice); see also Phan v. Babcock, 764 Fed.Appx. 837, 838 (10th Cir. 2019) (holding that the district court properly dismissed with prejudice the claims against two judges who were entitled to absolute immunity from a civil rights suit).
Adoption of this Report and Recommendation will render moot Plaintiff's outstanding motions. See Docs. 26 (renewed motion to dismiss for lack of jurisdiction), 27 (“Motion for Production of Documents”), 29 (motion to vacate order denying Plaintiff's motion to dismiss), 36 (“Motion to Issue Ex Parte Young Injunction”). The undersigned notes that these motions partially reiterate arguments raised in Plaintiff's complaint and arguments addressed in the Court's order denying Plaintiff's Motion to Dismiss for Lack of Subject Matter Jurisdiction and Motion for Sanctions, Doc. 21, and order denying Plaintiff's Motion to Strike, Doc. 25.
The undersigned advises Plaintiff of his right to file an objection to this report and recommendation with the Clerk of this Court on or before November 14 12, 2021, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff that failure to make a timely objection to this report and recommendation waives the right to appellate review of both factual and legal questions contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This report and recommendation disposes of all issues referred to the undersigned Magistrate Judge in this matter. 15