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Tollefson v. Corwin

United States District Court, D. North Dakota

January 22, 2014

Jon Reed Tollefson, Plaintiff,
Wickham Corwin, Defendant.

Report and Recommendation

KAREN K. KLEIN, Magistrate Judge.

Plaintiff Jon Reed Tollefson ("Tollefson"), who is proceeding pro se, filed a complaint pursuant to 42 U.S.C. § 1983. (Doc. #1). Defendant Judge Wickham Corwin ("Judge Corwin") filed a motion to dismiss. (Doc. #7). Thereafter, Tollefson filed a motion for a temporary restraining order ("TRO") against Judge Corwin and a motion for a hearing. (Doc. #29). Tollefson seeks damages of no less than $50, 000 from Judge Corwin.[1] (Doc. #1). The court has allowed an amendment to the complaint to assert claims against Judge Corwin in his individual capacity as well as his official capacity. (Doc. #43).

Summary of Recommendation

Judge Corwin is immune from suit under the Eleventh Amendment and the doctrine of judicial immunity because he is a state employee and his actions were judicial in nature and within his jurisdiction. Additionally, a TRO or preliminary injunction cannot be issued against Judge Corwin because Tollefson's request is not related to the claims presented in his complaint and Judge Corwin is immune from suit. Accordingly, it is RECOMMENDED that Defendant's motion to dismiss (Doc. #7) be GRANTED, plaintiff's motion requesting a TRO (Doc. #29) against defendant be DENIED, plaintiff's motion for a hearing (Doc. #29) be DENIED, and the plaintiff's complaint (Doc. #1) be DISMISSED with prejudice.


Judge Corwin is a North Dakota State District Judge who presided over Tollefson's hearing in Case No. 09-2012-CV-01346, on April 29, 2013.[2] (Doc. #9). Tollefson contends Judge Corwin violated his constitutional rights of free speech and due process during the hearing and by entering an Order[3] finding Tollefson in contempt of court. (Doc. #1, Doc. #9). Judge Corwin has filed a motion to dismiss the complaint in this case based on judicial immunity. (Doc. #7, Doc. #9).

Tollefson has also filed a motion requesting a TRO against Judge Corwin because he "is a dangerous person." (Doc. #29). Judge Corwin filed a response requesting the motion be denied because Tollefson has failed to demonstrate Judge Corwin poses any threat of immediate and irreparable injury, loss, or damage to Tollefson. (Doc. #32).

Law and Discussion

1. Official Capacity: Eleventh Amendment

A suit against a state employee in his official capacity is considered to be a suit against the state. See Will v. Michigan Dep't of State Police , 491 U.S. 58, 71 (1989); Quern v. Jordan , 440 U.S. 332, 337 (1979); Edelman v. Jordan , 415 U.S. 651, 663 (1974). States enjoy immunity from suit for damages in the federal courts under the Eleventh Amendment. Will , 491 U.S. at 66. It is well established that a state is immune from suit for damages under 42 U.S.C. § 1983. Id . (a state and its agencies are not "persons" within the meaning of section 1983); Monroe v. Arkansas State University , 495 F.3d 591, 594 (8th Cir. 2007). A state's immunity also extends to state agencies and institutions as well to state employees who are sued in their official capacities. Will , 491 U.S. at 71. The State of North Dakota has not waived its Eleventh Amendment immunity. See N.D. Cent. Code § 32-12.2-10.

In the instant case, Judge Corwin is a North Dakota State District Judge and therefore considered a state official. Judge Corwin was acting in his official capacity as District Judge when presiding over Tollefson's hearing and issuing the Order. Consequently, the Eleventh Amendment bars Tollefson from recovering money damages from Judge Corwin because he was a state employee working in his official capacity and therefore enjoys the state's sovereign immunity.

2. Individual Capacity: Judicial Immunity

"Judges performing judicial functions enjoy absolute immunity from § 1983 liability." Robinson v. Freeze , 15 F.3d 107, 108 (8th Cir. 1994); see also Callahan v. Rendlen , 806 F.2d 795, 796 (8th Cir. 1986) ("[J]udicial immunity protects a judicial officer from civil suits seeking money damages, including those suits initiated under 42 U.S.C. § 1983."). As the Eighth Circuit has explained, "[t]his absolute immunity from suit allows judges to fulfill their duties without concern for their own fortunes, which helps to ensure that their duties will be performed impartially and completely." Duffy v. Wolle , 123 F.3d 1026, 1034 (8th Cir. 1997). Judicial immunity is an immunity from suit, not just the ultimate assessment of damages. See Mireles v. Waco , 502 U.S. 9, 10 (1981). It cannot be overcome by allegations of bad faith or malice. Id .; see also Pierson v. Ray , 386 U.S. 547, 554 (1967) ("[I]mmunity applies even when the judge is accused of acting maliciously or corruptly"); Harlow v. Fitzgerald , 457 U.S. 800, 815-19, (1982) (Allegations of malice are insufficient to overcome qualified immunity).

Judicial immunity may be overcome in only two circumstances, neither of which are apparent in the case at bar. "First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity." Mireles , 502 U.S. at 9-12 (adding that an action is judicial in nature if "it is a function normally performed by a judge."). "Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction." Id .; see also Stump v. Sparkman , 435 U.S. 349, 356-57 (1998) ("A judge will not be deprived of immunity because the action he took is in ...

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