Opinion
Case No. 02-4078-JAR
November 18, 2002
MEMORANDUM AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
Plaintiff Lawrence L. Kelly filed this pro se action against Defendants Magistrate Judge James P. O'Hara, District Judge Richard D. Rogers, and the United States. Plaintiff alleges constitutional violations under 42 U.S.C. § 1981 and 1982 stemming from a prior case in which plaintiff alleged "criminal charges" against parties not currently involved in the instant action. Plaintiff also alleges a conspiracy against his civil rights. Defendants filed a motion to dismiss for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6).
The Complaint filed in this case is a handwritten description by the plaintiff of the "unconstitutional" actions taken by Judge O'Hara and Judge Rogers in his prior suit. Plaintiff alleges that these actions include harassment, envious hate, and corruption that led to the denial of plaintiff's right to sue. He alleges that Judge O'Hara and Judge Rogers enabled the defendants in the previous suit to prevail by crafting a pre-trial order in their favor and entering summary judgment against plaintiff.
Dismissing a pro se complaint under Fed.R.Civ.P. 12(b)(6) is only appropriate "where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend." A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than pleadings drafted by lawyers. Thus, if a pro se plaintiff's complaint can reasonably be read "to state a valid claim on which the plaintiff could prevail, it [the court] should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." However, it is not "the proper function of the district court to assume the role of advocate for the pro se litigant." For that reason, the court should not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues," nor should it "supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf."
Curley v. Perry, 246 F.3d 1278, 1281 (10th Cir. 2001), cert. denied 122 S.Ct. 274 (2001) (quoting Perkins v. Kansas Dep't of Corrections, 165 F.3d 803, 806 (10th Cir. 1999)).
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Id.
Id.
Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991).
Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
Judicial Immunity
It is an established principle that a judicial officer is generally immune from suit for money damages. There are only two exceptions to this rule. First, a judge may be held liable for nonjudicial actions; and second, a judge may be held liable for actions taken "in the complete absence of jurisdiction." Additionally, "judicial immunity is not overcome by allegations of bad faith or malice." Disagreeing with a judge's actions does not justify depriving that judge of his or her immunity.
E.g., Mireles v. Waco, 502 U.S. 9, 9-10 (1991) (per curiam); Stump v. Sparkman, 435 U.S. 349, 355-56 (1978); Roemer v. Crow, 993 F. Supp. 834, 836 (D.Kan. 1998).
Mireles, 502 U.S. at 11.
Id. at 12.
Id. at 11.
Stump v. Sparkman, 435 U.S. 349, 363 (1978).
Plaintiff alleges that Magistrate Judge O'Hara and District Judge Rogers conspired to deny his right to sue in his previous case. Even assuming the truth of his allegations, bad faith and corruption are not enough to overcome judicial immunity. Additionally, issuing a pre-trial order and entering summary judgment are clearly judicial functions. The exception for non-judicial functions is thus inapplicable. The exception for absence of jurisdiction is also inapplicable. Although Plaintiff contends in his reply brief that the judges operated without jurisdiction, he asserts no facts to support this contention. Both judges had jurisdiction to issue the pre-trial order. And Judge Rogers had jurisdiction to issue the summary judgment order. Therefore, the claims against the judges should be dismissed.
See Mireles, 502 U.S. at 12-13 (explaining that the proper area of inquiry is whether the function performed is judicial or executive in nature).
Sovereign Immunity
Plaintiff also names the United States as a defendant in this action. Again, it is an established principle that the United States, as sovereign, is immune from suit. The doctrine of sovereign immunity precludes suit against the United States as a party defendant unless it is explicitly waived. The United States has not waived its sovereign immunity for constitutional torts, and Plaintiff has pointed to no explicit waiver of immunity. "However desirable a direct remedy against the government might be as a substitute for individual official liability, the sovereign still remains immune to suit." Therefore, the case should be dismissed as against Defendant United States.
See, e.g., United States v. Mitchell, 445 U.S. 535, 538 (1980); Weaver v. United States, 98 F.3d 518, 519 (10th Cir. 1996).
E.g., Weaver, 98 F.3d at 521.
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 410 (1971) (quoted in Martinez v. Winner, 771 F.2d 424, 442 (10th Cir. 1985)); Parker v. Bancoklahoma Mortg. Co., 25 F.3d 1058 (table), 1994 WL 170789 (10th Cir. May 5, 1994).
Bivens, 403 U.S. at 410.
The complaint lacks an arguable basis in law, and should be dismissed against all Defendants. Under the facts alleged in the complaint there is no way that Plaintiff could prevail because the parties are protected by judicial immunity or sovereign immunity. It would be futile to provide this plaintiff with an opportunity to amend.
See Neitzke v. Williams, 490 U.S. 319, 327 (1989) (explaining that claims where the defendants are clearly immune from suit qualify for dismissal under both Rule 12(b)(6) and 28 U.S.C. § 1915(d), which allows for dismissal by a district court of a claim filed in forma pauperis if the action is frivolous).
IT IS THEREFORE ORDERED that Defendants' motion to dismiss is GRANTED and this action is DISMISSED WITH PREJUDICE.