Turageon v. Goodnow CV-95-054-L 07/11/95 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Paul E. Turqeon

v. #C-95-054-L

Donald E. Goodnow, et al.

ORDER ON MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE _________ OF ACTION AGAINST THE DEFENDANT DONALD GOODNOW

The defendant Donald Goodnow, by and through his attorneys,

the Office of the Attorney General, files this motion (Doc. 10)

reguesting that plaintiff's complaint be dismissed pursuant to Fed.

R. Civ. P. 12(b)(6). For the reasons set forth below, the court

grants defendant's motion to dismiss.

BACKGROUND

The plaintiff was incarcerated on May 14, 1992 in the New

Hampshire State Prison, for a minimum period of three and one half

years, up to a maximum period of seven years. The plaintiff,

appearing pro se, filed his complaint on January 31, 1995 under

Title

, alleging that his First, Fifth, and

Fourteenth Amendments under the United States Constitution were

violated. Additionally, the plaintiff alleges violation of his

rights under the New Hampshire Constitution, Part 1, Articles 14, 15, and 23.

The plaintiff's suit arises out of the alleged refusal of the

Clerk of the Strafford County Superior Court to schedule a hearing

on the plaintiff's motion to suspend the balance of his minimum

sentence. The plaintiff alleges that according to New Hampshire

law, he had the right to a sentence reduction hearing every two

years. The plaintiff brought suit against: 1)Donald Goodnow in

his individual capacity; 2) Donald Goodnow in his official capacity

as Clerk of the Strafford County Superior Court; and 3) the County

of Strafford, New Hampshire.

On May 18, 1995, the defendant Strafford County filed a motion

to dismiss for failure to state a cause of action due to the fact

that the Clerk of the Strafford County Superior County is an

employee of the State of New Hampshire, rather than an employee of

Strafford County. By order dated June 1, 1995, this court

dismissed Strafford County as a party to the action.

On June 1, 1995, the defendant Goodnow, filed an Assented-To

Motion to Dismiss. Apparently, there was a miscommunication

between Assistant Attorney General Christopher Reid and the

plaintiff regarding consent to the motion. On June 2, 1995, the

court received a "Clarification" from the plaintiff, in which he

stated that he had misunderstood Attorney Reid's telephone call and

he withdrew his consent. See Doc. 11. The plaintiff filed an

2 objection to the defendant's motion to dismiss on June 13, 1995.

DISCUSSION

For the sake of providing guidance for the plaintiff, the

court feels compelled to note the difference between suits brought

against a person in his or her individual capacity and those

brought against a person in his or her official capacity.

Individual capacity suits, also known as personal capacity suits,

seek to impose personal liability upon a government official for

actions taken under color of state law. Kentucky v. Graham,

(1985). Comparatively, official capacity suits seek

to impose liability upon the government entity itself. I_ci. at 166.

Therefore, in situations where the official is named as a party in

an official capacity suit, it is the government entity of which the

official is an agent that is the real party in interest.

Thus, an award of damages against an official in his or her

individual capacity can be executed only against the official's

personal assets, while an award of damages in an official capacity

suit must be satisfied by the government entity. Id.. Defenses

available to an official in a personal capacity action include

personal immunity defenses. I_ci. Contrastingly, in official

capacity actions, the only defenses that apply are forms of

sovereign immunity, such as the Eleventh Amendment. J-d. at 167.

3 With the above principles in mind, the court reiterates that

the plaintiff's two remaining claims are an individual capacity

suit against Goodnow, and a claim against Goodnow in his official

capacity, which is in effect a claim against the State of New

Hampshire.

The defendant asserts the following grounds for dismissal.

First, the defendant contends that, in his official capacity, 1) he

is entitled to sovereign immunity under the Eleventh Amendment to

the United States Constitution; and 2) he is not a "person" as

defined in

. Second, the defendant claims that in

his individual capacity, he is a judicial officer and as such is

entitled to absolute immunity for actions performed within the

scope of his duties.

I. OFFICIAL CAPACITY SUIT

Regarding plaintiff's claim against Goodnow in his official

capacity, the Eleventh Amendment of the United States Constitution

provides that:

The Judicial power of the United States shall not be construed to extend to any suit in law or eguity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

While the Eleventh Amendment does not apply in state courts.

4 Maine v. Thiboutot,

(1980), the amendment

provides immunity to States from suits in federal court. Hafer v.

Melo,

(1991) . Essentially, a State cannot be sued

in federal court unless 1) the State consents, or 2) Congress

abrogates the state's Eleventh Amendment immunity. Welch v. Texas

Dept, of Highways and Public Transp.,

(1987).

In the case at bar, the State of New Hampshire has not

consented to suit in this court. Additionally, it is well settled

that Congress did not intend to abrogate the state's Eleventh

Amendment immunity by passing

, the cause of action

in this case. Will v. Michigan Dept, of State Police,

(1989); Quern v. Jordan,

(1979). Therefore,

plaintiff's claims against Goodnow, as a state official in his

official capacity, must be dismissed pursuant to the doctrine of

sovereign immunity.

Notwithstanding the impact on plaintiff's action by the

Eleventh Amendment, the defendant, in his official capacity, is

also shielded from liability in

actions.

Succinctly, 42 U.S.C § 1983 provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . . . (emphasis added).

5 Moreover, in Will v. Michigan Dept, of State Police,

(1989), the Supreme Court held that both a State and its

officials "acting in their official capacities" are outside the

class of "persons" subject to liability under § 1983. For this

reason as well, the court dismisses the suit against Goodnow in his

official capacity as Clerk of the Strafford County Superior Court.

II. INDIVIDUAL CAPACITY SUIT

With respect to plaintiff's claim against Goodnow in his

individual capacity, the defendant contends that he is a judicial

official (i.e. Clerk of the Strafford County Superior Court), and

as such, he is entitled to absolute immunity for all those actions

performed within the scope of his official duties.

As a threshold consideration, the law is apodictic that judges

are immune from suit. Pierson v. Ray,

, 87 S. C t .

1213,

(1967). The policy reason for this absolute

immunity is clear: a judge should be able to perform his or her

duties without being afraid of personal conseguences. This veil of

immunity from suit will only be pierced in situations where a judge

does not have jurisdiction over the subject matter. Thompson v.

Sanborn,

(D.N.H. 1983) (citing Bradley v.

Fisher, 13 Wall 335, 351,

(1872) .

Similarly, judicial immunity also applies to "other officers

6 of government whose duties are related to the judicial process."

Barr v. Matteo,

(1959). Judicial officials

include court clerks, Slotnick v. Garfinkle,

(1st

Cir. 1980), parole board and probation officers, Sullivan v.

Kelleher,

(1st Cir. 1968), court appointed medical

examiners, Burkes v. Callion,

(9th Cir. 1970), and

court reporters, Stewart v. Minnick,

(9th Cir. 1969).

Immunity is extended to auxiliary judicial personnel due to the

"danger that disappointed litigants . . . will vent their wrath on

[them] ." Scruggs v. Moellerinq,

(7th Cir. 1989) .

It is axiomatic that when a court clerk carries out the orders

of a judge, absolute immunity will apply. See, e.g., Kincaid v.

Vail,

(7th Cir. 1992) (holding that clerks who

returned inmates' complaints and filing fees and directed them to

file in small claims court were immune because their actions were

performed at judicial direction); Slotnick v. Garfinkle,

(holding that court clerk who filled out commitment papers

was immune because he was acting under the official directive of a

judge).

Notably, the case at bar does not involve a situation in which

a court clerk acted under the directive of a judge. The guestion

that remains, therefore, is whether the defendant is entitled to

judicial immunity in his duties of scheduling hearings. This court

7 holds that defendant is so entitled.

Fundamentally, defendant is entitled to immunity for tasks,

like those performed in the instant case, which form an integral

part of the judicial process. Mullis v. United States Bankruptcy

Court,

(9th Cir. 1987) (holding that court

clerks have absolute judicial immunity from damages for civil

rights violations when "they perform tasks that are an integral

part of the judicial process.") Therefore, the claim against the

defendant in his individual capacity is dismissed.

CONCLUSION

For the aforementioned reasons, defendant Donald Goodnow's

motion to dismiss (Doc. 10) is granted.

July 11, 1995

Martin F. Loughlin Senior Judge Paul E. Turgeon Chris Reid, Esg. Office of the Attorney General