Johnson v. Balkman

• Decision Date: 22 October 2021
• Docket Number: CIV-21-633-D
• Parties: R. WAYNE JOHNSON, Plaintiff, v. THAD BALKMAN, et al., Defendants.
• Court: U.S. District Court — Western District of Oklahoma

R. WAYNE JOHNSON, Plaintiff, v. THAD BALKMAN, et al., Defendants.

No. CIV-21-633-D

United States District Court, W.D. Oklahoma

October 22, 2021

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).^[1] 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.

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, 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 States Magistrate Judge Shon T. Erwin and former Clerk of Court for the Eastern District of Arkansas James McCormack. Id. ^[2]

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 on that ground. Doc. 38. The undersigned recommends dismissal of Plaintiff's complaint in its entirety.^[3]

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).

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 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.

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 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...