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    Pledger v. Russell, 10th Cir. (2017)

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    The United States Court of Appeals for the Tenth Circuit affirmed the district court's dismissal of Tamika Pledger's complaint against Judge Michael Russell. The appeals court found that Judge Russell was entitled to absolute immunity for his judicial actions in Pledger's ongoing criminal case. While the district court had jurisdiction over Pledger's Section 1983 claim, all of Judge Russell's challenged acts were judicial in nature and done with proper jurisdiction. The appeals court remanded for the district court to clarify that the dismissal was with prejudice based on absolute immunity, rather than for lack of jurisdiction.

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    Pledger v. Russell, 10th Cir. (2017)

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    The United States Court of Appeals for the Tenth Circuit affirmed the district court's dismissal of Tamika Pledger's complaint against Judge Michael Russell. The appeals court found that Judge Russell was entitled to absolute immunity for his judicial actions in Pledger's ongoing criminal case. While the district court had jurisdiction over Pledger's Section 1983 claim, all of Judge Russell's challenged acts were judicial in nature and done with proper jurisdiction. The appeals court remanded for the district court to clarify that the dismissal was with prejudice based on absolute immunity, rather than for lack of jurisdiction.

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    Filed: 2017-07-19 Precedential Status: Non-Precedential Docket: 17-3008

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    The United States Court of Appeals for the Tenth Circuit affirmed the district court's dismissal of Tamika Pledger's complaint against Judge Michael Russell. The appeals court found that Judge Russell was entitled to absolute immunity for his judicial actions in Pledger's ongoing criminal case. While the district court had jurisdiction over Pledger's Section 1983 claim, all of Judge Russell's challenged acts were judicial in nature and done with proper jurisdiction. The appeals court remanded for the district court to clarify that the dismissal was with prejudice based on absolute immunity, rather than for lack of jurisdiction.

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    303 views5 pages

    Pledger v. Russell, 10th Cir. (2017)

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    Scribd Government Docs
    The United States Court of Appeals for the Tenth Circuit affirmed the district court's dismissal of Tamika Pledger's complaint against Judge Michael Russell. The appeals court found that Judge Russell was entitled to absolute immunity for his judicial actions in Pledger's ongoing criminal case. While the district court had jurisdiction over Pledger's Section 1983 claim, all of Judge Russell's challenged acts were judicial in nature and done with proper jurisdiction. The appeals court remanded for the district court to clarify that the dismissal was with prejudice based on absolute immunity, rather than for lack of jurisdiction.

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    The document discusses a court case where the plaintiff filed a complaint alleging that the state court judge presiding over her criminal case violated her rights. The district court and appeals court ruled that the judge was entitled to absolute immunity for his judicial actions.

    The plaintiff alleged that the public defenders appointed by the judge were biased, the judge initiated bond proceedings sua sponte and placed her in custody, the judge had improper ex parte communications, and the judge made erroneous rulings on various motions in her case.

    The district court dismissed the complaint on the grounds that it lacked subject-matter jurisdiction, the judge was entitled to absolute immunity, and the plaintiff failed to state a claim.

    FILED

    United States Court of Appeals


    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    July 19, 2017
    FOR THE TENTH CIRCUIT
    Elisabeth A. Shumaker
    _________________________________ Clerk of Court
    TAMIKA J. PLEDGER,

    Plaintiff - Appellant,

    v. No. 17-3008
    (D.C. No. 2:16-CV-02770-JAR-GLR)
    JUDGE MICHAEL A. RUSSELL, (D. Kan.)

    Defendant - Appellee.
    _________________________________

    ORDER AND JUDGMENT*


    _________________________________

    Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.


    _________________________________

    Tamika J. Pledger filed a pro se complaint in the United States District Court for

    the District of Kansas alleging that Defendant Michael A. Russell, the state-court judge

    presiding over a criminal case in which she is accused of involuntary manslaughter,

    violated her rights. The district court dismissed her complaint under 28 U.S.C. 1915,

    holding that it lacked subject-matter jurisdiction, that Judge Russell is entitled to absolute

    *
    After examining the briefs and appellate record, this panel has determined unanimously
    that oral argument would not materially assist in the determination of this appeal. See
    Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
    without oral argument. This order and judgment is not binding precedent, except under
    the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
    however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
    32.1.
    immunity, and that Ms. Pledger failed to state a claim. Exercising jurisdiction under 28

    U.S.C. 1291, we affirm the dismissal on the absolute-immunity ground.

    Ms. Pledgers complaint alleges that (1) the public defenders appointed by Judge

    Russell to represent her were biased against her because of their former connections to

    the district attorneys office when Judge Russell was the chief deputy; (2) Judge Russell

    sua sponte initiated bond proceedings, rather than waiting for the prosecutor to raise the

    issue; (3) Judge Russell wrongfully placed her in custody after her bondsman lost his

    bond license; (4) Judge Russell had impermissible ex parte communications with the

    prosecution about her case; (5) Judge Russell made erroneous decisions about several

    issues in her case, including ordering a mental-health evaluation and denying her motions

    for a grand-jury indictment, for his recusal, for new counsel, and for dismissal for lack of

    jurisdiction based on her being charged by Notary Public Casey L. Meyer and not a

    Judge, Doc. No. 1 at 7; and (6) he refused to give her written versions of his orders. She

    seeks money damages, the dismissal of her criminal case, and the sanction and removal

    from the bench of Judge Russell.

    We first address the district courts subject-matter jurisdiction. Reading Ms.

    Pledgers complaint liberally, see Haines v. Kerner, 404 U.S. 519, 520 (1972) (pro se

    pleadings are to be reviewed liberally), she stated the basis of a claim under 42 U.S.C.

    1983 by alleging facts that might amount to a denial of procedural due process. That

    sufficed for the district courts subject-matter jurisdiction under 28 U.S.C. 1331. See

    Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006) (A plaintiff properly invokes 1331

    jurisdiction when she pleads a colorable claim arising under the Constitution or laws of

    2
    the United States.); Rote v. Zel Custom Mfg. LLC, 816 F.3d 383, 397 (6th Cir.), cert.

    denied sub nom. Direccion Gen. de Fabricaciones Militares v. Rote, 137 S. Ct. 199

    (2016) (When the complaint pleads facts from which federal jurisdiction may be

    inferred . . . the insufficiency of the jurisdictional allegation is not controlling, and the

    action need not be dismissed. (internal quotation marks omitted)). Although she did not

    cite 42 U.S.C. 1983 or the Due Process Clause in her complaint, she did not need to.

    See Johnson v. City of Shelby, Miss., 135 S. Ct. 346, 347 (2014) ([N]o heightened

    pleading rule requires plaintiffs seeking damages for violations of constitutional rights to

    invoke 1983 expressly in order to state a claim.); King v. Rubenstein, 825 F.3d 206,

    222 (4th Cir. 2016) (Simply because [plaintiff] did not specifically label a claim under a

    due process heading does not mean that he did not raise one.). The district court had

    subject-matter jurisdiction over her claim.

    But that does not help Ms. Pledger much. Judges are generally immune from suits

    for money damages. See Mireles v. Waco, 502 U.S. 9, 9 (1991). That immunity can be

    overcome for only two types of actions: (1) actions not taken in the judges judicial

    capacity and (2) actions, though judicial in nature, taken in the complete absence of all

    jurisdiction. Id. at 1112. Neither exception applies to Ms. Pledgers allegations.

    All the acts by Judge Russell that Ms. Pledger complains about are judicial in

    nature. [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. Id. at 12 (internal

    quotation marks and brackets omitted). Acts are not nonjudicial just because they were

    3
    in error or in excess of . . . authority or even if motivated by malice or corruption.

    Id. at 1213. For example, when the complaint is that a judge ordered police officers to

    use excessive force to drag an attorney into his courtroom, the act is judicial because a

    judges direction to court officers to bring a person who is in the courthouse before him

    is a function normally performed by a judge. Id. at 12. Similarly, all the acts Ms.

    Pledger complains ofappointing counsel, raising an issue sua sponte, placing the

    defendant in custody, communicating with attorneys, ruling on motions, and issuing

    written or verbal ordersare functions normally performed by judges, and therefore

    absolutely immunized from liability.

    There is also no basis for arguing that Judge Russell acted in complete absence of

    all jurisdiction. Ms. Pledgers sole contention in this regard is that Judge Russell lacked

    jurisdiction over her criminal case because she was charged by Notary Public Casey L.

    Meyer and not a Judge. Doc. No. 1 at 7. But as the federal district court wrote:

    While [Ms. Pledger] alleges [Judge Russell] did not have jurisdiction
    because a notary signed the Affidavit for Application for Arrest Warrant
    instead of him, this is not the case. The Affidavit for Application for Arrest
    Warrant is allowed to be signed by a notary so long as the arrest warrant
    itself is signed by the judge. There is no allegation or evidence that the
    arrest warrant was not signed by [Judge Russell].

    District Court Order at 34 (footnote omitted) (citing K.S.A. 22-2302, 2304). On

    appeal Ms. Pledger does not contest the district courts characterization of the facts.

    Instead, she now complains that Judge Russell defamed her by releasing the false

    Affidavit for Application for Arrest Warrant to the media. Aplt. Br. at 23. But she did

    not raise this issue in district court, so we will not consider it. See Simmat v. U.S. Bureau

    4
    of Prisons, 413 F.3d 1225, 1240 (10th Cir. 2005) (we will not address issue raised for the

    first time on appeal).

    Although Ms. Pledgers suit is not only for money damages, the injunctive relief

    she seeksthe termination of her state criminal case and the sanction and removal of

    Judge Russellis not available in this action. See 42 U.S.C. 1983 ([I]n any action

    brought against a judicial officer for an act or omission taken in such officers judicial

    capacity, injunctive relief shall not be granted unless a declaratory decree was violated or

    declaratory relief was unavailable.).

    We AFFIRM the judgment below. But because the district court held that it

    lacked subject-matter jurisdiction (which results in dismissal without prejudice, see

    Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006)), we REMAND

    to the district court to clarify that the dismissal is with prejudice.

    Entered for the Court

    Harris L Hartz
    Circuit Judge

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