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Jiricko v. Frankenburg Jensen Law Firm

United States District Court, D. Utah, Central Division

March 14, 2017

DR. MILOS JIRICKO, Plaintiff,
v.
FRANKENBURG JENSEN LAW FIRM; CAROLYN STEVENS JENSEN, lawyer; JENIFER M. BRENNAN, lawyer, KEITH KELLY, State Judge in his official and personal capacity, HEATHER BRERETON, Judge in her official and personal capacity; Defendants.

          Dee Benson Judge.

          REPORT AND RECOMMENDATION TO DISMISS THE AMENDED COMPLAINT AGAINST THE JUDICIAL DEFENDANTS FOR FAILURE TO STATE A CLAIM (ECF NO. 17)

          EVELYN J. FURSE United States Magistrate Judge.

         Defendants Judges Keith Kelly and Heather Brereton (“the Judicial Defendants”) move the Court[1] to dismiss Plaintiff Milos Jiricko's (“Dr. Jiricko”) Amended Complaint. (Judicial Defs.' Mot. to Dismiss & Mem. in Supp. (“Mot.”), ECF No. 17.) The Judicial Defendants argue judicial immunity, Younger abstention, and the Rooker-Feldman doctrine bar D r. Jiricko's claims against them. After considering the parties' briefing, [2] the undersigned finds judicial immunity shields the Judicial Defendants from Dr. Jiricko's claims, the Younger abstention doctrine prevents this Court from adjudicating Dr. Jiricko's case, and the Judicial Defendants are not the proper party to defend the constitutionality of the Utah Health Care Malpractice Act. Accordingly, the undersigned RECOMMENDS the District Court dismiss the Amended Complaint against the Judicial Defendants for failure to state a claim.

         BACKGROUND

         This case arises out of an adverse ruling against Dr. Jiricko in state court. On October 17, 2013, Dr. Jiricko filed an action in the Utah Third District Court against Dr. Bradley, a Utah licensed ophthalmologist, for personal injuries including severe permanent loss of central vision in his right eye as a result of a surgical procedure.[3] (Pl.'s 1st Am. & Suppl. Civil Rights Compl. (“Am. Compl.”) ¶ 13, ECF No. 2.) In the state court case, Dr. Jiricko alleged breach of fiduciary duties, misrepresentation, fraud in the inducement, fraud in omission, and unlawful touching. (Compl. 4-8, Jiricko v. Hoopes Vision Ctr., No. 13907101 (Utah 3d Dist. Ct. filed Oct. 17, 2013), ECF No. 17-2.) Judge Kelly held that Dr. Jiricko's claims “all relate to whether Dr. Jiricko gave informed consent. As such, the Utah Health Care Malpractice Act, § 78B-3-401, et. seq., applies in this case, and outlines what a patient must do in order to recover damages . . . .” (Order Re: Hr'g of 6/10/14, June 26, 2014, at 2, Jiricko v. Hoopes Vision Ctr., No. 130907101, ECF No. 17-3.) Accordingly, Judge Kelly required Dr. Jiricko to meet the requirements of the Utah Health Care Malpractice Act (“the Act”) § 78B-3-406. (Id.) On September 20, 2015, Dr. Jiricko's case was reassigned to Judge Brereton. (Jiricko v. Hoopes Vision Ctr., No. 130907101, attached as Appendix 1.) Judge Brereton granted the defendants' motion for summary judgment because Dr. Jiricko failed to designate a qualified expert witness as required by the Act. (Order Granting Defs.' Mot. for Summ. J. & Order of Dismissal with Prejudice in Favor of Defs., Dec. 18, 2015, at 2, Jiricko v. Hoopes Vision Ctr., No. 13907101, ECF No. 17-5.) The Utah Court of Appeals summarily affirmed the district court judgment. (Order of Summ. Affirmance, Jiricko v. Hoopes Vision Ctr., No. 20160027-CA (Utah Ct. App. Mar. 4, 2016), ECF No. 17-7.)

         On February 19, 2016, Dr. Jiricko, proceeding pro se, filed a complaint against the Judicial Defendants and the Frankenburg Jensen Law Firm, attorney Carolyn Stevens Jensen, and attorney Jenifer Brennan (“the Frankenburg Defendants”). (ECF No. 1.) On March 7, 2016, Dr. Jiricko filed his Amended Complaint. (ECF No. 2.) Dr. Jiricko alleges 42 U.S.C. § 1983 violations of his First, Fifth, Seventh, and Fourteenth Amendment rights, abuse of process, conspiracy, intentional infliction of emotional distress, and fraud upon the court against the Judicial Defendants and Frankenburg Defendants. (See Am. Compl. ¶¶ 29-61, ECF No. 2.) D r. Jiricko also alleges the unconstitutionality of the Utah Health Care Malpractice Act, both on its face and as applied to him. (Id. 7, ECF No. 2.) On April 12, 2016, the Judicial Defendants filed this Motion to Dismiss arguing judicial immunity, the lack of an existing controversy, the Rooker-Feldman doctrine, Younger abstention, and the Federal Courts Improvement Act bar Dr. Jiricko's claims against them. (Mot., ECF No. 17.)

         DISCUSSION

         I. Legal Standard

         To survive a motion to dismiss, a complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Hogan v. Winder, 762 F.3d 1096, 1104 (10th Cir. 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In reviewing a motion to dismiss, courts “accept all facts pleaded by the non-moving party as true and grant all reasonable inferences from the pleadings in favor of the same.” Wasatch Equal. v. Alta Ski Lifts Co., 820 F.3d 381, 386 (10th Cir. 2016) (citing Colony Ins. Co. v. Burke, 698 F.3d 1222, 1228 (10th Cir. 2012)). Although a court “construe[s] a pro se plaintiff's complaint broadly, the plaintiff still has ‘the burden of alleging sufficient facts on which a recognized legal claim could be based.'” Jenkins v. Currier, 514 F.3d 1030, 1032 (10th Cir. 2008) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). “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 plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).

         II. Judicial Immunity Bars Dr. Jiricko's Demand for Money Damages

         “The Supreme Court of the United States has long held that judges are generally immune from suits for money damages.” Stein v. Disciplinary Bd., 520 F.3d 1183, 1195 (10th Cir. 2008) (citing Mireles v. Waco, 502 U.S. 9, 9-10 (1991)). “[J]udicial immunity is not overcome by allegations of bad faith or malice . . . .” Mireles, 502 U.S. at 11. Further, allegations of conspiracy do not overcome judicial immunity; accordingly, Dr. Jiricko's conspiracy allegations fail. Hunt v. Bennett, 17 F.3d 1263, 1267 (10th Cir. 1994). Judicial immunity “is overcome in only two sets of circumstances. First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.” Mireles, 502 U.S. at 11-12.

         A. Judges Kelly and Brereton Took Judicial Actions.

         Dr. Jiricko alleges Judge Kelly's June 10, 2014 ruling was unlawful and therefore nonjudicial. (Plf.'s Mem. in Supp. of his Opp'n to Judicial Defs. Mot. to Dismiss under R 12 B (1) (6) (“Pl. Opp.”) 7-10, ECF No. 35.) Dr. Jiricko alleges

In the furtherance of conspiracy, the Frankenburg's lawyer Jensen colluded with the judge Kelly premeditated to issue a ruling to unlawfully convert Dr. Jiricko's common law case action No: 130907101 which alleged misrepresentation, fraud, breach of fiduciary duties fraud in inducement, fraud in omission; concealment, unlawful touching and battery into a statutory action under the Utah 78B-3-401.

(Id. at 7, ECF No. 35.) “Herein the defendants knew full well that any application of Utah statute §78B-3-401 to Dr. Jiricko's state case, be it on its face or by its application or both violates due process.” (Id. at 9, ECF No. 35.) “Judge Kelly is required under the Utah and U.S. Constitution's uphold the oath of his office. Judge Kelly's act decided no dispute hence adjudicated nothing; it was unconstitutional act done in the furtherance of the defendants' conspiracy.” (Id. at 9, ECF No. 35.) “Violation of the Judge Kelly own oath of office is unlawful act under Utah specific laws and therefore, misdemeanor is not a judicial act under any metrics.” (Pl. Opp. 10, ECF No. 35.)

         Dr. Jiricko's argument that Judge Kelly's June 10, 2014 ruling does not qualify as “a judicial act under any metrics” lacks merit. Dr. Jiricko cannot overcome judicial immunity by simply characterizing Judge Kelly's Order as a nonjudicial act. “[T]he factors determining whether an act by a judge is a ‘judicial' one relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations ...


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