United States District Court, D. Utah, Northern Division
ORDER AND MEMORANDUM DECISION
CAMPBELL U.S. DISTRICT COURT JUDGE.
2016, the Third Judicial District Court determined that pro
se Plaintiff Zackary Rusk had not paid rent to his landlord.
The landlord, Cowboy Properties (CP), moved for summary
judgment. Judge Heather Brereton, the defendant here, granted
that motion. Now Mr. Rusk invokes 42 U.S.C. § 1983 as
support for his assertions against Judge Brereton. Because
Judge Brereton has absolute judicial immunity from suits when
acting in her official capacity as a judge, the court sua
sponte dismisses Mr. Rusk's complaint.
heart of Mr. Rusk's complaint is the following:
At a hearing around December 27th of 2016, the
court, Judge Brereton noted that Rusk's claims for causes
of action, cross claims, counter claims, etc., she [sic]
would not entertain and that of what could be found as
cognizable claims as they pertain to relevant causes of
action, cross claims, counter claims, etc[.], well exceeding
(in tens of thousands if not hundreds of thousands or several
millions now in just compensatory damages of) [sic] what can
be seen and found as the request for relief from CP.
(Cullimore Law offices - defending CP - does substantial
business with this court..) [sic] this [sic] created further
bias and resulted in a significant miscarriage of justice,
infringing upon due process and voiding public policy,
demonstrating clear bias in the conduct of the court.
(Pl.'s Compl. ECF No. 3 “Complaint.”)
Additionally, Mr. Rusk moves the court to: nullify Judge
Brereton's orders, void previous settlements, grant a
fair hearing on his previous rent cases, issue declaratory
relief, award costs of litigation, and award “other
relief as [the] court deems appropriate and just.”
Id. at 12-13. Having reviewed the complaint, the
court determines it must be dismissed.
may dismiss a complaint sua sponte (i.e., on its own
initiative) “where it is obvious that the plaintiff
cannot prevail on the facts he has alleged.”
Perkins v. Kan. Dep't of Corr., 165
F.3d 803, 806 (10th Cir. 1999).
In determining whether dismissal is proper, we must accept
the allegations of the complaint as true and must construe
those allegations, and any reasonable inferences that might
be drawn from them, in the light most favorable to the
plaintiff. See Breidenbach v. Bolish, 126 F.3d 1288,
1292 (10th Cir. 1997). Further, we must liberally construe
the allegations of a pro se complaint. See Haines v.
Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d
Id. Further, “[t]his broad judicial immunity
extends to judicial acts done in error, maliciously, or in
excess of authority.” De Young v. State of
Kansas, 890 F.Supp. 949, 953 (D. Kan. 1995) (sua sponte
dismissing civil rights action against state trial judge
because judge had absolute judicial immunity).
Tenth Circuit has identified two exceptions to the rule of
absolute judicial immunity: (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.
(internal citations, quotation marks, and alterations
omitted). Stein v. Disciplinary Bd. of Sup. Ct. of
N.M., 520 F.3d 1183, 1195 (10th Cir. 2008) (internal
citation and quotation marks omitted).
neither exception applies here. All of Judge Brereton's
actions were taken in her official capacity as a judge. Judge
Brereton presided over Mr. Rusk's case when the allegedly
unconstitutional actions occurred; she was clearly acting in
a judicial capacity. And even though Mr. Rusk questions her
motives for ruling the way she did, that is insufficient to
allege that Judge Brereton acted in the complete absence of
all jurisdiction. “[A] judge does not act in the clear
absence of all jurisdiction even if the action [s]he took was
in error, was done maliciously, or was in excess of [her]
authority.” Moss v. Kopp, 559 F.3d 1155, 1163
(10th Cir. 2009). Accordingly, Judge Brereton is absolutely
immune from Mr. Rusk's claims. See Ledbetter v. City
of Topeka, Kan., 318 F.3d 1183, 1189 (10th Cir. 2003)
(dismissing § 1983 claim against municipal judge on
absolute immunity grounds).
Mr. Rusk's entitlement to non-monetary damages, the court
does not have authority to grant the remedies he seeks.
First, Mr. Rusk asks the court to issue a declaratory
judgment that Judge Brereton's actions violated his civil
rights. But the “Eleventh Amendment ‘does not
allow a federal court to issue a judgment against a state
officer declaring that [s]he violated federal law in the
past.'” Johns v. Stewart, 57 F.3d 1544,
1553 (10th Cir. 1995) (quoting P.R. Aqueduct & Sewer
Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146
(1993)); see also ...