# Gipson v. Limbaugh

> District Court, E.D. Missouri · September 23, 2020

URL: https://www.frixlaw.com/law-library/cases/10233779

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** September 23, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10233779

## How later opinions describe it (automated extraction)

- stating that federal courts are not required to “assume facts that are not alleged, just because an additional factual allegation would have formed a stronger complaint”
- stating that attorneys who represented plaintiff, “whether appointed or retained, did not act under color of state law and, thus, are not subject to suit under section 1983”
- stating that the Eighth Circuit “has repeatedly held that both retained and appointed attorneys are not liable for deprivations of constitutional rights under 42 U.S.C. § 1983 for the reason that they do not act under color of state law”
- stating that court must accept factual allegations in complaint as true, but is not required to “accept as true any legal conclusion couched as a factual allegation’

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
DARION GIPSON, )
Plaintiff,
v. No. 1:20-cv-00187-NCC
STEPHEN N. LIMBAUGH, JR., et al.,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on review of plaintiff Darion Gipson’s amended
complaint. (Docket No. 6). For the reasons discussed below, this action will be dismissed without
prejudice.
Legal Standard on Initial Review
Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. To
state a claim, a plaintiff must demonstrate a plausible claim for relief, which is more than a “mere
possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Jd. at 678. Determining whether
a complaint states a plausible claim for relief is a context-specific task that requires the reviewing
court to draw upon judicial experience and common sense. /d. at 679. The court must “accept as
true the facts alleged, but not legal conclusions or threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements.” Barton v. Taber, 820 F.3d 958, 964 (8" Cir.
2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73 (8" Cir. 2016) (stating

that court must accept factual allegations in complaint as true, but is not required to “accept as true
any legal conclusion couched as a factual allegation’).
When reviewing a pro se complaint under § 1915(e)(2), the Court must give it the benefit
of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). A “liberal construction”
means that if the essence of an allegation is discernible, the district court should construe the
plaintiffs complaint in a way that permits his or her claim to be considered within the proper legal
framework. Solomon v. Petray, 795 F.3d 777, 787 (8" Cir. 2015). However, even pro se complaints
are required to allege facts which, if true, state a claim for relief as a matter of law. Martin v.
Aubuchon, 623 F.2d 1282, 1286 (8" Cir. 1980). See also Stone v. Harry, 364 F.3d 912, 914-15 (gt
Cir. 2004) (stating that federal courts are not required to “assume facts that are not alleged, just
because an additional factual allegation would have formed a stronger complaint”). In addition,
affording a pro se complaint the benefit of a liberal construction does not mean that procedural
rules in ordinary civil litigation must be interpreted so as to excuse mistakes by those who proceed
without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).
Background
Plaintiff is a self-represented litigant who is currently incarcerated at the United States
Penitentiary, Hazelton, in Bruceton Mills, West Virginia. On August 27, 2020, he filed a civil
action on a Court-provided 42 U.S.C. § 1983 complaint form. (Docket No. 1). Along with the
complaint, plaintiff filed a motion for leave to proceed in forma pauperis. (Docket No. 2).
On September 3, 2020, the Court granted plaintiff's motion for leave to proceed in forma
pauperis. (Docket No. 5). The Court also directed plaintiff to file an amended complaint, as his
original complaint was illegible. Plaintiff was given thirty days in which to comply. He was
advised that his amended complaint would be subjected to screening pursuant to 28 U.S.C. § 1915.

On September 21, 2020, plaintiff submitted an amended complaint. (Docket No. 6). He
also filed a motion for appointment of counsel, a second motion for leave to proceed in forma
pauperis, and a motion for extension of time to file. (Docket No. 7; Docket No. 8; Docket No. 9).
The Amended Complaint
Plaintiffs amended complaint is handwritten on a Court-provided 42 U.S.C. § 1983
prisoner civil rights complaint form. In the amended complaint, he names Federal Judge Stephen
N. Limbaugh, Jr. and defense attorney Jacob Zimmerman as defendants. (Docket No. 6 at 2-3).
Defendants are sued in both their official and individual capacities.
In the “Statement of Claim,” plaintiff asserts that Judge Limbaugh violated his Fourteenth
Amendment right to due process by failing to send plaintiff to a mental health evaluation in his
criminal case.' (Docket No. 6 at 4). Plaintiff further claims that Judge Limbaugh failed to give him
a “[downward] departure sentence reduction for each one of [his] mental disorders.” Specifically,
plaintiff states that he has ADHD, bipolar disorder, intermittent explosive disorder, oppositional
defiant disorder, mood disorder, borderline intellectual functioning, depression, and antisocial
personality disorder. As a result, plaintiff states that he has a due process right to a downward
departure of his sentence.
Similarly, plaintiff accuses Attorney Zimmerman of ineffective assistance of counsel by
failing to “have the judge or court send [him] to a mental health court evaluation.” He further
alleges that Attorney Zimmerman was ineffective for not getting “the judge [and] court [to] give
[him] a downward departure sentence reduction for each one of [his] mental disorders.” Plaintiff

! Plaintiff's criminal case is United States v. Daniel, et al., No. 1:16-cr-6-SNLJ-2 (E.D. Mo.). On April 19, 2016,
plaintiff pleaded guilty to one count of interfering with commerce by threat or violence, and one count of possessing
a firearm in furtherance of a crime of violence. On July 26, 2016, he was sentenced to an aggregate term of 154
months’ imprisonment and an aggregate term of five years of supervised release.

states that this amounts to a violation of his constitutional rights pursuant to the Sixth and
Fourteenth Amendments.
As a result of defendants’ actions, plaintiff states that he suffers from “mental black
downs,” and has “almost committed suicide several times.” He is seeking $15 million in damages.
(Docket No. 6 at 5).
Discussion
Plaintiff is a self-represented litigant who brings this action pursuant to 42 U.S.C. § 1983.
As his claims are against alleged federal officials, however, his case actually falls under Bivens v.
Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 389 (1971). In Bivens,
the United States Supreme Court enforced a damages remedy to compensate persons injured by
federal officers who violated the Fourth Amendment prohibition against unreasonable searches
and seizures. 403 U.S. at 397. Subsequently, in two other cases, the Supreme Court approved of
an implied damages remedy for the violation of the Fifth Amendment’s due process clause, and
the Eighth Amendment’s prohibition on cruel and unusual punishment. Ziglar v. Abbasi, 137 □□□□□
1843, 1854-55 (2017). Thus, generally speaking, “[a] Bivens claim is a cause of action brought
directly under the United States Constitution against a federal official acting in his or her individual
capacity for violations of constitutionally protected rights.” Buford v. Runyon, 160 F.3d 1199, 1203
n.6 (8"" Cir. 1998).
“An action under Bivens is almost identical to an action under [42 U.S.C. §] 1983, except
that the former is maintained against federal officials while the latter is against state officials.”
Gordon v. Hansen, 168 F.3d 1109, 1113 (8 Cir. 1999). As such, claims under Bivens and claims
under § 1983 involve the same analysis. Solomon, 795 F.3d at 789 n.7. Furthermore, the body of

case law regarding § 1983 applies to Bivens actions. Jd. Therefore, even though plaintiff's claims
come under Bivens, they will be reviewed using case law regarding 42 U.S.C. § 1983.
A. Claim Against Attorney Zimmerman
Plaintiff has accused Attorney Zimmerman of ineffective assistance of counsel, thereby
violating his constitutional rights. As noted above, plaintiff's Bivens claim will be analyzed in the
same manner as a claim arising pursuant to 42 U.S.C. § 1983.
“The essential elements of a [42 U.S.C.] § 1983 claim are (1) that the defendant(s) acted
under color of state law, and (2) that the alleged wrongful conduct deprived the plaintiff of a
constitutionally protected federal right.” Green v. Byrd, 2020 WL 5050364, at *2 (8" Cir. 2020).
A defense attorney, however, whether appointed or retained, does not act under color of law, and
thus cannot be liable for the alleged deprivation of constitutional rights under § 1983. See Polk
Cty. v. Dodson, 454 U.S. 312, 325 (1981) (stating that “a public defender does not act under color
of state law when performing a lawyer’s traditional functions as counsel to a defendant in a
criminal proceeding”); Myers v. Vogal, 960 F.2d 750, 750 (8" Cir. 1992) (stating that attorneys
who represented plaintiff, “whether appointed or retained, did not act under color of state law and,
thus, are not subject to suit under section 1983”); Christian v. Crawford, 907 F.2d 808, 810 (8"
Cir. 1990) (stating that the Eighth Circuit “has repeatedly held that both retained and appointed
attorneys are not liable for deprivations of constitutional rights under 42 U.S.C. § 1983 for the
reason that they do not act under color of state law”); and Rogers v. Bruntrager, 841 F.2d 853, 856
Cir. 1988) (“Public defenders do not act under color of state law for purposes of 42 U.S.C. §
1983 when performing the traditional functions of defense counsel”). Furthermore, a defense
attorney is not transformed into a federal official “for purposes of a Bivens action merely because
they are appointed by a federal court pursuant to federal law.” Christian, 907 F.2d at 810.

Here, plaintiff alleges that Attorney Zimmerman, an attorney appointed under the Criminal
Justice Act, was ineffective by failing to get him a mental health evaluation or a downward
departure on his sentence. These are actions within the realm of a defense attorney’s “traditional
functions as counsel to a defendant in a criminal proceeding.” As such, Attorney Zimmerman was
not acting under color of law. Because acting under color of law is an essential element to a § 1983
action, plaintiff failed to state a claim. Therefore, the claim against Attorney Zimmerman must
be dismissed.
B. Official Capacity Claim Against Judge Limbaugh
Plaintiff has sued Judge Limbaugh in an official capacity. In an official capacity claim
against an individual, the claim is actually “against the governmental entity itself.” See White v.
Jackson, 865 F.3d 1064, 1075 (8" Cir. 2017). That is, a “suit against a public employee in his or
her official capacity is merely a suit against the public employer.” Johnson v. Outboard Marine
Corp., 172 F.3d 531, 535 (8 Cir. 1999).
Here, Judge Limbaugh is alleged to be employed by the federal government. Pursuant to
the doctrine of sovereign immunity, however, the United States cannot be sued without its consent.
See United States v. Mitchell, 463 U.S. 206, 212 (1983) (stating that “[i]t is axiomatic that the
United States may not be sued without its consent and that the existence of consent is a prerequisite
for jurisdiction”). Absent an express waiver, sovereign immunity bars a claim for money damages
against the United States, its agencies, and its officers acting in their official capacities. See FDIC
v. Meyer, 510 U.S. 471, 475 (1994) (determining that a Bivens claim cannot be brought against a
federal agency). Because sovereign immunity is jurisdictional in nature, and because no waiver of
sovereign immunity applies in this case, plaintiff's claim against Judge Limbaugh in his official
capacity must be dismissed.

C. Individual Capacity Claim Against Judge Limbaugh
Plaintiff has also sued Judge Limbaugh in an individual capacity, alleging that Judge
Limbaugh violated his constitutional rights by not having him mentally evaluated, and by not
giving him a downward departure on his sentence.
Because a judicial officer, exercising the authority in which he or she is vested, should be
free to act upon their own convictions, judicial immunity provides a judge with immunity from
suit. Hamilton v. City of Hayti, Missouri, 948 F.3d 921 (8" Cir. 2020). “Like other forms of official
immunity, judicial immunity is an immunity from suit, not just from ultimate assessment of
damages.” Mireles v. Waco, 502 U.S. 9, 11 (1991). This immunity applies even when the judge is
accused of acting maliciously or corruptly. Pierson v. Ray, 386 U.S. 547, 554 (1967). See also
Woodworth v. Hulshof, 891 F.3d 1083, 1090 (8" Cir. 2018) (stating that “judicial immunity is not
overcome by allegations of bad faith or malice”). Moreover, “a judge will not be deprived of his
immunity because the action he took was in error or was in excess of his authority.” Justice
Network, Inc. v. Craighead Cty., 931 F.3d 753, 760 (8" Cir. 2019).
A judge’s immunity from § 1983 actions bars a plaintiff's recovery in all but two narrow
sets of circumstances. Schottel v. Young, 687 F.3d 370, 373 (8" Cir. 2012). First, a judge does not
have immunity for non-judicial actions. Duty v. City of Springdale, Ark., 42 F.3d 460, 462 (8" Cir.
1994). “An 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.” Birch v. Mazander, 678 F.2d 754, 756 (8"
Cir. 1982). See also Justice Network, Inc., 931 F.3d at 760 (stating “that to determine whether an
act is judicial, courts look to the particular act’s relation to the general function normally performed
by judge”).

Second, a judge is not immune from lawsuits based on actions taken in the complete
absence of jurisdiction. Duty, 42 F.3d at 462. This is the case even if the judge’s actions were
judicial in nature. Schottel, 687 F.3d at 373. In the context of judicial immunity, however, the
scope of a judge’s jurisdiction is construed broadly. Justice Network, Inc., 931 F.3d at 762. □□□□□
action — taken in the very aid of the judge’s jurisdiction over a matter before him — cannot be said
to have been taken in the absence of jurisdiction.” Mireles, 502 U.S. at 13.
In this case, the allegations against Judge Limbaugh regard actions that are clearly judicial
in nature. That is, Judge Limbaugh’s ruling on whether or not plaintiff should be mentally
evaluated, and his determination as to plaintiff’s sentence, are actions normally performed by a
judge. Moreover, these actions occurred while plaintiff was dealing with Judge Limbaugh in a
judicial capacity. Furthermore, there is no indication that Judge Limbaugh’s actions were taken in
the absence of jurisdiction. Because Judge Limbaugh is immune from suit, he cannot be liable to
plaintiff, even if he acted erroneously or in the excess of his authority. Therefore, plaintiff's
individual capacity claim against Judge Limbaugh must be dismissed.
D. Motion to Appoint Counsel
Plaintiff has filed a motion for appointment of counsel. (Docket No. 7). The motion will
be denied as moot, as this action is being dismissed without prejudice. See 28 U.S.C. §
1915(e)(2)(B).
E. Motion to Proceed in Forma Pauperis
Plaintiff has filed a second motion for leave to proceed in forma pauperis. (Docket No. 8).
The Court previously granted plaintiff in forma pauperis status on September 3, 2020, and assessed
an initial partial filing fee of $2.79. (Docket No. 5). Therefore, plaintiff's second motion for leave
to proceed in forma pauperis will be denied as moot.

F. Motion for Extension of Time to File
Plaintiff has filed a document construed as a motion for extension of time to file. (Docket
No. 9). In the motion, plaintiff states that court forms sent to plaintiff by the Court were thrown in
the trash by a correctional officer. Plaintiff therefore seeks an extension of time.
The Court notes that the civil action forms requested by plaintiff have already been resent
to him by the Clerk of Court. The Court further notes that plaintiff has already submitted his
amended complaint on a Court form as previously ordered. Therefore, the motion for an extension
of time to file will be denied as moot.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion for appointment of counsel (Docket
No. 7) is DENIED AS MOOT.
IT IS FURTHER ORDERED that plaintiff's motion for leave to proceed in forma
pauperis (Docket No. 8) is DENIED AS MOOT.
IT IS FURTHER ORDERED that plaintiff's motion for an extension of time to file
(Docket No. 9) is DENIED AS MOOT.
IT IS FURTHER ORDERED that this action is DISMISSED without prejudice. See 28
U.S.C. § 1915(e)(2)(B). A separate order of dismissal will be entered herewith.
IT IS FURTHER ORDERED that an appeal from this dismissal would not be taken in
good faith.
Dated I, Spl 2020.
Yorntoed litt
RONNIE WO
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10233779. Public record. Not legal advice.