United States District Court, D. Nebraska
TIMOTHY L. ASHFORD, TIMOTHY L. ASHFORD, P.C.L.L.O., Plaintiffs,
W. RUSSELL BOWIE, CRAIG MCDERMOTT, THOMAS RILEY, JAMES GLEASON, TIMOTHY BURNS, and DERICK VAUGHN, Individually, Defendants.
E. STROM, SENIOR JUDGE
matter is before the Court on the motion of defendants, W.
Russell Bowie, Craig McDermott, Thomas Riley, James Gleason,
Timothy Burns, and Derick Vaughn (collectively the
“defendants”) to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6) (Filing No. 54). The matter has
been fully briefed. See Filing Nos. 55, 59, and 60. After
review of the motion, the parties’ briefs, and the
applicable law, the Court finds as follows.
filed suit on January 12, 2015 (Filing No. 1). On
September 1, 2015, the Court granted plaintiffs leave to
amend their complaint for a second time (Filing No.
32). The Second Amended Complaint
(“SAC”) alleges violations of the Nebraska
Political Subdivisions Tort Claims Act, Neb. Rev. Stat.
§§ 13-901 to 13-928, civil rights violations under
42 U.S.C. §§ 1981 and 1983, Title VII violations,
as well as violations of the Nebraska and United States
Constitutions. See generally Filing No. 31.
Specifically plaintiffs allege defendants denial of his
application to be “placed on the list by the panel to
receive court appointment in murder cases” is racially
based and in violation of the law. (Id. at 7).
January 11, 2016, the Court denied plaintiffs’ request
for an extension of time to serve some of the named
defendants and dismissed the SAC as to all defendants. The
Court reasoned plaintiffs “failed to serve any of the
defendants . . . ha[d] not executed service to the defendants
to which summons had[d] been issued . . . [and] [s]ummons
ha[d] not been issued for three defendants.” (Filing
No. 36 at 2). The Court also found that plaintiffs
“failed to show good cause for the failure to timely
on May 9, 2016, the Court altered and amended in part, the
January 11, 2016, dismissal. See Filing No.
52. In the Court’s May 9, 2016 order, the
Court stated: “[a]s of January 11, 2016, the Court was
not aware that any defendants were served because plaintiffs
failed to provide proof of service to the Court as required
by Rule 4.” (Id. at 4). The Court then
recognized that “[o]n January 15, 2016, the plaintiffs
filed returned executed summons for some of the named
defendants.” (Id. at 5). The Court then
amended the part of the January 11, 2016 order that dismissed
defendants McDermott, Vaughn, Gleason, Riley, Burns, and
19, 2016, the now reinstated defendants moved to dismiss
under Federal Rule of Civil Procedure 12(b)(6) claiming the
applicability of judicial and quasi-judicial immunity bars
immunity is an immunity from suit, not just from ultimate
assessment of damages.” Mireles v. Waco, 502
U.S. 9, 11, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991) (citing
Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct.
2806, 86 L.Ed.2d 411 (1985)). The United States Supreme Court
has determined that 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.” Mireless, 502 U.S. at 11
(citing Forrester v. White, 484 U.S. 219, 227-29,
108 S.Ct. 538, 98 L.Ed.2d 555 (1988); Stump v.
Sparkman, 435 U.S. 349, 360, 356-57, 98 S.Ct. 1099, 55
L.Ed.2d 331 (1978); Bradley v. Fisher, 80 U.S. 335,
351, 20 L.Ed. 646 (1872)).
order to determine whether the act is judicial, the United
States Court of Appeals for the Eighth Circuit has provided:
“[a]n act is a judicial act if it is one normally
performed by a judge and if the complaining party is dealing
with the judge in his judicial capacity.” Schottel
v. Young, 687 F.3d 370, 373 (8th Cir. 2012) (quoting
Birch v. Mazander, 678 F.2d 754, 756 (8th Cir. 1982)
(internal citations omitted)).
judicial immunity is extended to officials other than judges,
it is because their judgments are functionally comparable to
those of judges -- that is, because they, too, exercise a
discretionary judgment as a part of their function.”
Robinson v. Freeze, 15 F.3d 107, 108 (8th Cir. 1994)
(quoting Antoine v. Byers & Anderson, Inc., 508
U.S. 429, 436, 113 S.Ct. 2167, 124 L.Ed.2d 391 (1993)
(internal citations and quotations omitted)). Extension of
this quasi-judicial immunity turns on ...