United States District Court, D. Utah, Central Division
DR. MILOS JIRICKO, Plaintiff,
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.
REPORT AND RECOMMENDATION TO DISMISS THE AMENDED
COMPLAINT AGAINST THE JUDICIAL DEFENDANTS FOR FAILURE TO
STATE A CLAIM (ECF NO. 17)
J. FURSE United States Magistrate Judge.
Judges Keith Kelly and Heather Brereton (“the Judicial
Defendants”) move the Court 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,  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.
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. (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
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.)
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).
Judicial Immunity Bars Dr. Jiricko's Demand for Money
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.
Judges Kelly and Brereton Took Judicial
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.
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
(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.)
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 ...