De Young v. State of Kan.

• Decision Date: 09 May 1995
• Docket Number: No. 94-4199-SAC.,94-4199-SAC.
• Citation: 890 F. Supp. 949
• Parties: Garry DE YOUNG, Plaintiff, v. STATE OF KANSAS, and John W. White, Administrative Judge for the First Judicial District of the State of Kansas, Defendants.
• Court: U.S. District Court — District of Kansas

890 F. Supp. 949

Garry DE YOUNG, Plaintiff, v. STATE OF KANSAS, and John W. White, Administrative Judge for the First Judicial District of the State of Kansas, Defendants.

No. 94-4199-SAC.

United States District Court, D. Kansas.

May 9, 1995.

Garry De Young, Stark, KS, pro se.

Carl A. Gallagher and M.J. Willoughby, Office of the Atty. Gen., Topeka, KS, for defendants.

MEMORANDUM AND ORDER

CROW, District Judge.

The case comes before the court on the defendant State of Kansas' motion to dismiss (Dk. 15) on the basis of Eleventh Amendment immunity, and on the defendant Judge John W. White's motion to dismiss (Dk. 28) on the basis of judicial immunity and lack of subject matter jurisdiction. The plaintiff, Garry De Young, appearing pro se, has filed several responses to these motions. The court considers both motions ripe for ruling.

STANDARDS FOR MOTION TO DISMISS

A court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). Dismissal is appropriate "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)). "The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true." Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993). Therefore, "the issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).

A court judges the sufficiency of the complaint accepting as true the well-pleaded factual allegations and drawing all reasonable inferences in favor of the plaintiff. Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir.1987). The court construes the allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. at 236, 94 S.Ct. at 1686; Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991). These deferential rules, however, do not allow the court to assume that a plaintiff "can prove facts that it has not alleged or that the defendants have violated the ... laws in ways that have not been alleged." Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 902, 74 L.Ed.2d 723 (1983) (footnote omitted). Dismissal is a harsh remedy to be used cautiously so as to promote the liberal rules of pleading while protecting the interests of justice. Cayman Exploration Corp. v. United Gas Pipe Line, 873 F.2d 1357, 1359 (10th Cir. 1989).

Because the plaintiff appears pro se, the court must remain mindful of additional considerations. A pro se litigant's pleadings are construed liberally and judged against a less stringent standard than pleadings drawn by attorneys. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). Thus, if the pro se plaintiff's complaint reasonably can 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." Id. However, "it is not the proper function of the district court to assume the role of advocate for the pro se litigant." Id. For that reason, the court is not to "construct arguments or theories for the plaintiff in the absence of any discussion of those issues." Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991) (citation omitted).

NATURE OF ACTION

The plaintiff's complaint consists entirely of conclusory allegations devoid of any factual context. For his statement of claim, the plaintiff simply alleges the defendants violated his rights under the Fourteenth and Seventh Amendment. For relief, the plaintiff asks to have K.S.A. 61-2707 declared unconstitutional and for one million dollars in actual damages and another million dollars in punitive damages. Only after reading the plaintiff's "Brief For This Case," (Dk. 6), does one learn the plaintiff's facts behind his constitutional claims.

Apparently, the Copy Products Corporation sued De Young in the Small Claims Court of Neosho County, Kansas, for $312.80. De Young says he appeared before the small claims court and defended on the basis that the Copy Products Corporation had failed to repair the copier and to provide the necessary quantity of toner as required by their contract. De Young also says that he demanded a jury trial but was informed that K.S.A. 61-2707 denied him one and that he objected during the proceedings that the statutory procedure violated his rights under the Seventh and Fourteenth Amendments. It appears that De Young appealed the adverse decision of the small claims court and that the district court upheld the constitutionality of the small claims procedure citing the plaintiff's right to a jury trial on a de novo appeal to the district court. The plaintiff does not disclose whether the state district court action is still pending or whether he has appealed the district court's ruling to the Kansas Court of Appeals.

DISMISSAL OF STATE

"The Eleventh Amendment imposes a constitutional limitation on the jurisdiction of Article III courts." Ponca Tribe of Oklahoma v. State of Oklahoma, 37 F.3d 1422, 1427 (10th Cir.) (citing Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98, 104 S.Ct. 900, 906, 79 L.Ed.2d 67 (1984)), petition for cert. filed, 63 U.S.L.W. 3477 (U.S. Dec. 9, 1994) (No. 94-1029). It affords absolute immunity from suit in federal courts for states and their agencies regardless of the legal or equitable nature of the relief sought. Ramirez v. Oklahoma Dept. of Mental Health, 41 F.3d 584, 588 (10th Cir. 1994). There are, however, three circumstances when the amendment does not deprive the Article III courts of jurisdiction:

First, Congress may abrogate the states' Eleventh Amendment immunity "by making its intention unmistakably clear" in the text of a federal statute enacted pursuant to a constitutional provision that empowers Congress with abrogation rights. Dellmuth v. Muth, 491 U.S. 223, 227-28 109 S.Ct. 2397, 2399, 105 L.Ed.2d 181 (1989). Second, a state may expressly waive Eleventh Amendment immunity. Edelman v. Jordan, 415 U.S. 651, 673 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). And third, we may consider a suit against a state official to enjoin a non-discretionary violation of federal law. Ex parte Young, 209 U.S. 123, 159-60 28 S.Ct. 441, 453-54, 52 L.Ed. 714 (1908).

Ponca Tribe of Oklahoma, 37 F.3d at 1427.

"In enacting 42 U.S.C. section 1983, Congress did not intend to abrogate Eleventh Amendment immunity and grant jurisdiction to seek damages against a state." Russ v. Uppah, 972 F.2d 300, 303 (10th Cir. 1992) (citing See Quern v. Jordan, 440 U.S. 332, 345, 99 S.Ct. 1139, 1147, 59 L.Ed.2d 358 (1979)). There is no indication in this case that the State of Kansas has unmistakably waived its Eleventh Amendment immunity. See Billings v. Wichita State University, 557 F.Supp. 1348, 1351 (D.Kan.1983), and K.S.A. 75-6116(g). The third circumstance, which was recognized in Ex parte Young, "allows for prospective relief only `against state officials in federal court challenging the constitutionality of official conduct enforcing state law' and `has no application in suits against the States and their agencies, which are barred regardless of the relief sought.'" Hensel v. Office of Chief Administrative Hearing, 38 F.3d 505, 509 (10th Cir.1994) (quoting Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., ___ U.S. ___, ___, 113 S.Ct. 684, 688, 121 L.Ed.2d 605 (1993)). "If the Eleventh Amendment applies, it confers total immunity from suit, not merely a defense to liability." Ambus v. Granite Bd. of Educ., 995 F.2d 992, 994 (10th Cir.1993) (citation omitted). Because none of the three exceptions applies here, the State of Kansas is immune from federal suit and this court is without jurisdiction to entertain the plaintiff's claim.

DISMISSAL OF JUDGE WHITE

The plaintiff alleges in his complaint that the State of Kansas is "represented by" Judge White. For purposes of this motion, the court presumes the plaintiff is alleging that Judge White is a state official and is suing him in both his official and individual capacities.

The plaintiff is unable to recover monetary damages. The Eleventh Amendment bars damage suits brought against state officials in their official capacities. Russ v. Uppah, 972 F.2d at 303. The Eleventh Amendment does not restrict civil damage suits against state officials in their individual capacities, Hafer v. Melo, 502 U.S. 21, 30-31, 112 S.Ct. 358, 364-65, 116 L.Ed.2d 301, 313 (1991). Nonetheless, the state official may have a personal immunity derived from common law. Russ, 972 F.2d at 303.

It is well-established that judges are absolutely immune from civil damages liability for acts performed in their judicial capacities. Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 1104-05, 55 L.Ed.2d 331 (1978); Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 107, 130 L.Ed.2d 55 (1994). This broad judicial immunity extends to judicial acts done in error, maliciously, or in excess of authority. Stump, 435 U.S. at 356, 98 S.Ct. at 1104. A judge is subject to liability for only those judicial acts taken in the "`clear absence of all jurisdiction.'" Id. (quoting Bradley v. Fisher, 80 U.S. 335, 13 Wall 335, 351, 20 L.Ed. 646 (1872)).

In determining whether the conduct qualifies as a judicial act, a court looks to two factors: whether the act is a function normally performed by a judge and whether the parties dealt with the judge in the judge's judicial...