# Lantz v. Hermanson

> District Court, W.D. Oklahoma · November 27, 2019

URL: https://www.frixlaw.com/law-library/cases/10387962

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** November 27, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

JAMES GLEN LANTZ, )
)
Plaintiff, )
)
-vs- ) Case No. CIV-19-906-F
)
BRIAN HERMANSON, )
)
Defendant. )

ORDER
Before the court is Defendant District Attorney Brian Hermanson’s Motion to
Dismiss (doc. no. 4), filed October 23, 2019. Plaintiff, James Glen Lantz, has
responded to the motion and defendant has replied. Upon due consideration of the
parties’ submissions, the court makes its determination.
I.
Plaintiff has filed a complaint under 42 U.S.C. § 1983 alleging violations of
his constitutional rights. He seeks monetary relief against defendant, Brian
Hermanson, in his individual capacity and in his official capacity as District
Attorney for Kay County, Oklahoma. In his complaint, plaintiff alleges that in 2016,
he was sentenced in two cases, CF-2016-406 and CF-2008-238, and the sentences
were ordered to run concurrently. Plaintiff alleges that 15 days after the sentencing
hearing, the Kay County District Attorney’s office prepared a judgment and sentence
stating the sentences were to run consecutive rather than concurrent. According to
plaintiff, the Kay County District Attorney’s office has a policy or custom of not
presenting the judgment and sentence to defense attorneys for approval and
signature. Plaintiff alleges that on October 27, 2017, he was advised by the
Oklahoma Department of Corrections (DOC) that his sentences were running
consecutively rather than concurrently. On December 1, 2017, plaintiff filed a
Motion to Modify Sentence Nunc Pro Tunc. Plaintiff alleges that a copy of the
motion was provided to the district attorney by the court clerk’s office, and after
being provided with the motion, defendant and his office made no effort to correct
the judgment and sentence. Plaintiff alleges that on May 25, 2018, he filed a Second
Motion to Modify Sentence Nunc Pro Tunc. According to plaintiff, the DOC records
indicated that he would have been released on May 26, 2018 if defendant or his
office had corrected the judgment and sentence and sent it to the DOC. Plaintiff
alleges that no amended judgment and sentence was set for hearing or presented to
the judge until October 16, 2018. Plaintiff complains that defendant’s action
violated his constitutional rights to due process, to counsel and to freedom from cruel
and unusual punishment.
Defendant has moved, pursuant to Rule 12(b)(6), Fed. R. Civ. P., to dismiss
plaintiff’s complaint. Defendant argues that plaintiff’s claims against him in his
individual capacity are barred by prosecutorial immunity, the holding of Heck v.
Humphrey, 512 U.S. 477 (1994), the applicable two-year statute of limitations, the
lack of personal participation in the alleged constitutional violations and qualified
immunity. He argues plaintiff’s claims against him in his official capacity are barred
because states are not persons for purposes of § 1983 and Eleventh Amendment
immunity.
II.
Official Capacity Claims
As stated, plaintiff seeks to recover monetary relief under § 1983 against
defendant, Brian Hermanson, in his official capacity. “Official capacity suits
represent another way of pleading an action against an entity of which an officer is
an agent.” Arnold v. McClain, 926 F.2d 963, 966 (10th Cir. 1991) (quotations
omitted). Under Oklahoma law, the district attorney is a state officer. Id.; see also,
Laidley v. McClain, 914 F.2d 1386, 1391-92 (10th Cir. 1990). Hence, plaintiff is
bringing his § 1983 claims against the state of Oklahoma. Arnold, 926 F.2d at 966.
Such claims, however, are barred by the Eleventh Amendment, which prohibits
bringing an action for damages against a state in federal court. Id. Moreover, they
are barred because neither states nor state officers sued in their official capacity are
“persons” within the meaning of § 1983. Will v. Michigan Dept. of State Police,
491 U.S. 58, 71 (1989). The court thus concludes plaintiffs’ claims against
defendant, Brian Hermanson, in his official capacity, should be dismissed without
prejudice.
III.
Individual Capacity Claims
Plaintiff also seeks to recover monetary relief under § 1983 against defendant,
Brian Hermanson, in his individual capacity. Plaintiff complains that defendant
violated his constitutional rights by preparing and presenting to the judge an
erroneous judgment and sentence for his two criminal cases without seeking defense
counsel’s approval or signature. He also complains that defendant violated his
constitutional rights by failing to prepare and present an amended judgment and
sentence, upon plaintiff’s filing of motions to modify. Plaintiff asserts that defendant
did nothing in response to those motions until October 16, 2018, several months after
he should have been released.
“Prosecutorial immunity bars claims for damages against a prosecutor sued in
[his] individual capacity.” Blair v. Osborne, 777 Fed. Appx. 926, 929 (10th Cir.
2019) (citing Lewis v. Clarke, 137 S.Ct. 1285, 1291 (2017)) (unpublished decision
cited as persuasive pursuant to 10th Cir. R. 32.1(A)). Such immunity, which is
absolute, applies for activities that are “‘intimately associated with the judicial phase
of the criminal process.’” Id., (quoting Imbler v. Pachtman, 424 U.S. 409, 430
(1976)). “[A]bsolute immunity may not apply when a prosecutor is not acting as
‘an officer of the court,’ but is instead engaged in other tasks, say, investigative or
administrative tasks.” Van de Kamp v. Goldstein, 555 U.S. 335, 342 (2009). When
prosecutors are engaging in investigative or administrative tasks, they are protected
only by qualified immunity which protects all public officials. Buckley v.
Fitzsimmons, 509 U.S. 259, 273 (1993).
The distinction between the roles of “prosecutor” and “investigator” or
“administrator” is not always clear. See, Imbler, 424 U.S. at 431 n. 33. However,
the court concludes that defendant’s alleged conduct in preparing and presenting an
erroneous judgment and sentence to the court, without obtaining defense counsel’s
approval or signature, is one intimately associated with the judicial phase of the
criminal process.1 The court is satisfied that defendant was functioning as the state’s
advocate when performing the alleged conduct and was also functioning as an officer
of the court.2 The court also concludes that defendant’s alleged conduct in failing to
prepare and present an amended judgment and sentence, upon the filing of plaintiff’s
motions to modify, is one intimately associated with the judicial phase of the
criminal process. It involves defendant’s role as an advocate regarding the court’s

1 In his motion, defendant argues that he was not involved in the alleged conduct because he did
not sign the subject plea agreement or judgment and sentences at issue. Instead it was handled by
an assistant district attorney. For purposes of defendant’s motion, the court assumes without
deciding that defendant was personally involved in the alleged conduct. However, the court notes
that the complaint alleges that defendant also had a policy and procedure of presenting the
judgment and sentences to the court without prior submission to defense attorneys. The court
concludes that defendant’s promulgation of the alleged policy relating to the presentation of
judgment and sentences would also fall within prosecutorial immunity. See, Van de Kamp v.
Goldstein, 555 U.S. 335 (2009).
2 The Tenth Circuit has stated that “absolute immunity may attach even to . . . administrative or
investigative activities when these functions are necessary so that a prosecutor may fulfill his
function as an officer of the court.” PJ ex rel. Jensen v. Wagner, 603 F.3d 1182, 1195 (10th Cir.
2010).
sentence. The court therefore concludes that plaintiff’s § 1983 claims based upon
such conduct are barred by the absolute prosecutorial immunity.3 Accordingly, the
court finds that plaintiff’s claims against defendant, Brian Hermanson, in his
individual capacity, should likewise be dismissed without prejudice.
IV.
In his motion, defendant submitted evidence that an amended judgment and
sentence was entered on May 31, 2018, requiring that plaintiff’s sentences be served
concurrently. He also submitted evidence of “time sheets” maintained by DOC,
which defendant asserts show that plaintiff’s sentence calculation was corrected, but
even with the correction, plaintiff apparently had additional time left to serve on his
other sentence and was released from incarceration on October 15, 2018.
In his response, plaintiff asks the court to grant him leave to amend his
complaint. He concedes that an amended judgment and sentence appears to have
been entered on May 31, 2018. However, he argues that the evidence shows that the
district attorney’s office did not fax the amended judgment and sentence to the DOC
until October 15, 2018, and upon receipt, the DOC immediately released him.
According to plaintiff, the evidence demonstrates that he did not have additional
days to be served as argued by defendant. In addition, plaintiff contends that while
defendant argues that he had no actions related to the matter, plaintiff sent
correspondence to him, which was returned to him. In light of these circumstances,
plaintiff asserts that defendant was on notice of plaintiff’s wrongful incarceration.
Upon review, the court declines to grant leave to amend the complaint.
Although not clear, it appears that plaintiff desires to amend his complaint to allege

3 In his response, plaintiff cites Odd v. Malone, 538 F.3d 202 (3rd Cir. 2008) and cases cited therein
to argue that defendant’s actions were administrative rather than prosecutorial. The court finds the
cited authority does not support a finding that defendant engaged in an administrative task with
respect to the preparation and presentment of a judgment and sentence.
a § 1983 claim that his constitutional right to freedom from cruel and unusual
punishment was violated by defendant’s failure to fax the May 31, 2018 amended
judgment and sentence to the DOC.
LCvR 7.1(c) provides that a response to a motion may not also include a
motion made by the responding party. Moreover, LCvR 15.1 requires that a party
moving for leave to amend a pleading attach the proposed pleading as an exhibit to
the motion. No separate motion for leave to amend has been filed and no proposed
pleading has been presented to the court.
In addition, the proposed amendment appears to be futile. The court does not
base this upon the application of prosecutorial immunity or even the application of
qualified immunity. Instead, the court notes that “[p]ersonal liability under § 1983
must be based on personal involvement in the alleged constitutional violation.”
Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir. 2011). And “[s]upervisory
liability [under § 1983] allows a plaintiff to impose liability upon a defendant-
supervisor who creates, promulgates, [or] implements . . . a policy . . . which
subjects, or causes to be subjected that plaintiff to the deprivation of any rights . . .
secured by the Constitution.” Id. at 1163-1164. (quotation omitted). Plaintiff’s
evidence of the returned envelope from defendant does not demonstrate that
defendant was personally involved or promulgated a policy or custom resulting in
the delay of notification of the amended judgment and sentence to the DOC. There
is nothing in plaintiff’s response to establish that plaintiff could state a plausible
§ 1983 claim against defendant for not faxing the DOC the amended judgment and
sentence until October 15, 2018. Accordingly, the court concludes that plaintiff
should not be granted leave to amend his complaint.
V.
Based upon the reasons above stated, Defendant District Attorney Brian
Hermanson’s Motion to Dismiss (doc. no. 4), filed October 23, 2019, is GRANTED.
Plaintiff's 42 U.S.C. § 1983 complaint and action against defendant, Brian
Hermanson, in his individual capacity and in his official capacity, is DISMISSED
WITHOUT PREJUDICE.
IT IS SO ORDERED this 27" day of November, 2019.

UNITED STATES DISTRICT JUDGE

19-0906p003.docx

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10387962. Public record. Not legal advice.