United States District Court, W.D. Arkansas, Harrison Division
DAVID A. STEBBINS PLAINTIFF
STATE OF ARKANSAS and BOONE COUNTY CIRCUIT COURT CLERK DEFENDANTS
MEMORANDUM OPINION AND ORDER
Timothy L. Brooks Judge.
a civil rights action filed by Plaintiff David A. Stebbins.
Plaintiff is proceeding pro se and in forma
pauperis ("IFP"). The Court has screened the
Complaint pursuant to 28 U.S.C. § 1915(e)(2), and
dismisses the case with prejudice for the reasons explained
to the allegations of the Complaint (Doc. 2), Mr. Stebbins
filed a pro se lawsuit in the Circuit Court of Boone
County, Arkansas on April 10, 2012. The case was dismissed.
Mr. Stebbins filed an appeal with the Arkansas Court of
Appeals, but he claims that when the Boone County Circuit
Clerk ("Clerk") transmitted the official record of
the case to the Court of Appeals, she intentionally omitted
an important document: an order of sua sponte
dismissal of certain claims, dated January 23, 2015
("the January 23rd order" or "the missing
order"). On September 7, 2016, the Court of Appeals
entered an order directing the Clerk to supplement the record
and send the missing order, if it existed and was, indeed,
part of the official record of the case. According to Mr.
Stebbins, the Clerk failed to respond to the order (at least
as of the date the Complaint was filed), and her inaction
"ha[d] the effective result of putting [Mr.
Stebbins'] appeal on the shelf indefinitely." (Doc.
2, p. 6). Mr. Stebbins also maintains that the State of
Arkansas, who is named as a separate Defendant along with the
Clerk, "has done absolutely diddly to enforce the order
against the Circuit Clerk" or otherwise require the
Clerk to comply with the Court of Appeals' order.
reviewing the claims asserted in the Complaint, Mr. Stebbins
maintains that his constitutional rights were violated,
pursuant to 42 U.S.C. § 1983, due to the Clerk's
refusal to act on the Court of Appeals' order, and due to
the State of Arkansas' refusal to require the Clerk to
act. He believes he was deprived of his right "to access
the appellate court system, " id. at 12, due to
the Clerk's inaction, and charges that the State of
Arkansas committed "just as much a constitutional
violation as the Clerk's decision to tamper with the
record in the first place, " id. at 11, by
failing to discipline the Clerk. He also vaguely alleges a
violation of his right to due process, presumably due to the
Clerk's and the State's failure to act. Finally, he
states his belief that Defendants, and other unnamed state
and local actors, are retaliating against him for having
filed multiple lawsuits in state court. The Complaint
contains a non-exhaustive list of seven pro se
lawsuits that Mr. Stebbins filed in the past, but were
dismissed. See Id. at 3-5. Mr. Stebbins opines that
"every officer of the State of Arkansas who I have ever
come into contact with, from 2010 to the present, not just
[Boone County Circuit Judge] Russel[l] Rogers, has made no
secret that they disdain me because of my litigation
history." Id. at 7. He further contends that a
"retaliatory motive" has fueled the Clerk's and
the State's decisions in the case at bar, and that he has
suffered damages due to the halting of his appeal, however
temporary. He points out that if, hypotheticaly, he were to
prevail in the pending appeal, he would be entitled to an
$11, 000 judgment, plus post-judgment interest. He also asks
that the Court enjoin the Defendants from retaliating against
him for his past litigation.
the Court takes judicial notice of the Arkansas Court of
Appeals' order of September 7, 2016, which appears at
Doc. 21, pp. 23-27. The order pointed out multiple
deficiencies in Mr. Stebbins' appellate briefing,
including "a significantly deficient addendum and
abstract." Id. at 24. The order also noted that
the addendum "contains a document not contained in the
record"-the missing order Mr. Stebbins identified in the
Complaint in the case at bar. Id. at 25. The Court
of Appeals described the missing order as a letter from Judge
Rogers, dated January 23, 2015, a copy of which Mr. Stebbins
attached to his appellate briefing, in the addendum portion.
The Court of Appeals then explained that the letter did not
appear in the official record of documents transmitted by the
Clerk to the Court of Appeals. Accordingly, as the letter
appeared-for the first and only time-in Mr. Stebbins'
briefing alone, and not in the official court record, the
Court of Appeals expressed skepticism that the document was,
in fact, an official part of the record on appeal. The Court
directed the Clerk to investigate the matter and to
supplement the record with the letter "if it exists,
" id. at 24, and then remanded the case to the
trial court "to settle and supplement the record with
the omitted document (the trial court's January 23, 2015
letter) within thirty days" and allow Mr. Stebbins the
opportunity "to file a substituted abstract, addendum,
and brief within fifteen days from the date that the
supplemental record is filed." Id. at 26.
with the Complaint in this case, Mr. Stebbins recently filed
a Motion for Leave to Amend the Complaint (Doc. 41). In that
Motion, he requested permission to add Judge Rogers as a
separate defendant "for acts of First Amendment
Retaliation." Id. at 1. Interestingly, Mr.
Stebbins also admits in the Motion to Amend that, as of April
6, 2017, it now appears that the missing order/letter of
January 23 that is the primary subject of controversy
"was never in fact filed in the Circuit Court in the
first place, " id. at 2, and is therefore
not part of the official record in the state court
case. His allegation that the Clerk intentionally omitted
that document from the record appears to be moot; however, he
does not move to dismiss her from the case. Instead, he
directs his attention to Judge Rogers, whom he now blames for
"fail[ing] to send the [January 23rd] order to the Clerk
for filing." Id. In Mr. Stebbins' view,
"somebody should be held liable" for failing to
include the January 23rd letter/order in the official state
court record-either the Clerk or Judge Rogers, or perhaps the
State of Arkansas, which Mr. Stebbins identifies as the
employer of both of these individuals. Id.
Court takes further judicial notice of the fact that the
Clerk, Rhonda Watkins, filed an affidavit in the Court of
Appeals of Arkansas in Mr. Stebbins' case, regarding the
much-discussed "missing order." In her affidavit,
she officially affirmed that "no letter from the trial
judge on this case was filed on January 23, 2015 nor at a
later date." See David A. Stebbins v. David D.
Stebbins, Case No. CV-16-16 (Ark. Ct. App. 2015).
federal statute that authorizes Mr. Stebbins to proceed
in forma pauperis is 28 U.S.C. § 1915. Section
1915(e)(2) of the statute empowers the court to "dismiss
the case at any time if the court determines that. . . (B)
the action . . . (i) is frivolous or malicious; (ii) fails to
state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such
suit." 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). A claim
is frivolous if "it lacks an arguable basis either in
law or fact." Neitzke v. Williams, 490 U.S.
319, 325 (1989). A claim fails to state a claim upon which
relief may be granted if it does not allege "enough
facts to state a claim to relief that is plausible on its
face." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). "In evaluating whether a pro se
plaintiff has asserted sufficient facts to state a claim, we
hold 'a pro se complaint, however in artfully pleaded,
... to less stringent standards than formal pleadings drafted
by lawyers."' Jackson v. Nixon, 747 F.3d
537, 541 (8th Cir. 2014) (quoting Erickson v.
Pardus, 551 U.S. 89, 94 (2007)).
case is subject to summary dismissal pursuant to Section
1915(e)(2)(B) because: (1) it fails to state a claim under
Section 1983 for the violation of any constitutional right;
(2) both named Defendants, as well as the purported defendant
Mr. Stebbins wishes to add to his Complaint, are all immune
from suit; and (3) the allegations in the Complaint are
legally without merit and therefore frivolous. Beginning with
Mr. Stebbins' allegation that he suffered violations of
his right of access to the courts and of his right to due
process, these assertions are merit less. The Complaint, even
when read as broadly as possible, does not state facts that
would lead a fact finder to believe that Mr. Stebbins was
denied access to the state courts or was deprived of any
procedural safeguards otherwise provided to civil litigants.
Throughout the pendency of the instant lawsuit, Mr.
Stebbins' appellate case has continued to proceed and has
not been terminated. Moreover, it is evident that Mr.
Stebbins-and not anyone else-introduced delay into his
appellate case by attaching to his briefing a copy of a
document that was not a part of the official record below.
The Court of Appeals questioned the authenticity of this
document and whether it was, in fact, part of the record, and
Mr. Stebbins became frustrated at the delay that followed.
Under these facts, any claim by Mr. Stebbins that Defendants
retaliated against him in some way, due to his disability or
otherwise, also lacks merit.
second basis upon which the Court dismisses this case is that
the State of Arkansas, the Boone County Clerk, and Judge
Rogers-assuming for the sake of argument that he were added
to the lawsuit as a defendant-are all immune from suit.
According to Nix v. Norman, 879 F.2d 429, 430 (8th
Cir. 1989), the State of Arkansas is subject to sovereign
immunity, as "a suit brought solely against a state or a
state agency is proscribed by the Eleventh Amendment."
Although a state agent could be found liable in his or her
official capacity for injunctive or prospective relief, see
id., a court clerk could not be subject to
such liability because "clerks of court are entitled to
immunity the same as judges, " Daw's v.
McAteer, 431 F.2d 81, 82 (8th Cir. 1970). "Judges
performing judicial functions enjoy absolute immunity from
§ 1983 liability, " Robinson v. Freeze, 15
F.3d 107, 108 (8th Cir. 1994), and that immunity may only be
overcome if (1) the judge's challenged action is
non-judicial; or (2) the judge's action, "though
judicial in nature, [was] taken in the complete absence of
all jurisdiction, " Mireles v. Waco, 502 U.S.
9, 11 (1991). In the case at bar, the Clerk's official
duties involved sending a copy of the entire trial court
record to the Court of Appeals. Any complaint by Mr. Stebbins
as to how she performed this function would be immune from
suit. Similarly, any allegation by Mr. Stebbins that Judge
Rogers erred in failing to file a document as part of the
official record of the case is a task within the scope of his
judicial duties and would also be protected by immunity.
the third basis upon which the Court dismisses this Complaint
is due to frivolousness. Mr. Stebbins sued a court Clerk, who
is immune from suit, for failing to transmit to the Court of
Appeals a document that was never a part of the official
record of the case; then, he sued the State of Arkansas,
which is also immune from suit, for failing to force her to
transmit this document. If given the opportunity, Mr.
Stebbins would have also sued the circuit judge for declining
to make the document an official part of the record, and for
dismissing his lawsuit in the first place. For all of these
transgressions, he imagined that he was entitled to receive
damages in this Court for the period of ...