The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Lois Jones brought this action against defendant, Cook County
Probate Judge Miriam Harrison, alleging slander, conspiracy, violation of
rights under the Fourteenth Amendment, and violation of 42 U.S.C. § 1983.
Along with her pro se complaint plaintiff also filed a motion to proceed
in forma pauperis.
Pursuant to 28 U.S.C. § 1915(a) we may authorize plaintiff to proceed
in forma pauperis if she demonstrates an inability to pay the required
costs and fees. The court's review of plaintiff's eligibility to proceed
in forma pauperis is hindered by plaintiff's incomplete financial
affidavit. Plaintiff's responses to the questions that she did answer
confirm that she is not currently employed and does not have any
savings. However, she does not state when she was last employed, nor
whether she or anyone at her same address has made more than $200 from
salary or wages over the past year. In response to a question about her
current employment plaintiff indicates that she is receiving benefits
from the Social Security Administration, but she does not report the
amount. Given the incomplete financial affidavit, we do not find that
plaintiff has evidenced her inability to pay. Completion of the affidavit
could easily cure this defect and prove plaintiff to be unable to pay the
court fees. Therefore, we will go on to address the merits of plaintiff's claims.
In reviewing a petition to proceed in forma pauperis we analyze the
plaintiff's claims and dismiss the complaint if we determine that the
action is frivolous or malicious, it fails to state a claim upon which
relief may be granted, or seeks damages from a defendant who is immune
from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); Alston v. Debruyn,
13 F.3d 1036, 1039 (7th Cir. 1994). Complaints by pro se parties, such as
the one before the court, are "liberally construed and not held to the
stringent standards expected of pleadings drafted by lawyers." McCormick
v. City of Chicago, 230 F.3d 319, 325 (7th Cir. 2000).
For purposes of this decision we take plaintiff's allegations as true,
though we do not accept her conclusory statements of law. See Zimmerman
v. Tribble, 226 F.3d 568, 571 (7th Cir. 2000). Plaintiff's allegations
stem from Judge Harrison's role in legal proceedings involving
plaintiff's ailing father. Plaintiff and her siblings were concerned about
the medical treatment their father was receiving. The complaint is
unclear whether the alleged neglect he endured was at a residential
facility, in outpatient care, or during hospitalizations. Regardless, in
late March 2002, plaintiff took action, appearing in defendant's court on
a petition requesting guardianship of her father "as it related to his
intake of medication." Plaintiff maintains that Judge Harrison was bound
to rule on this petition in a timely manner and at least within 90 days.
Plaintiff states that Judge Harrison failed to do so, even though she did
assign a guardian ad litem less than a month later, in April 2002, to
investigate the matter. The guardian was released from service by Judge
Harrison on May 6, 2002, allegedly because "there were no assets."
Plaintiff maintains that her father continued to be neglected and to
receive improper medication, leading to his deteriorating health and ultimate death in
November 2003. In late September 2002, plaintiff returned to Judge
Harrison's courtroom to present a scheduled emergency motion regarding
her father. Plaintiff's father was receiving medical care from his former
doctor's wife, who was not licensed to practice medicine in Illinois.
Plaintiff alleged that the wife's treatment resulted in plaintiff's
father suffering from an insulin overdose. Though the complaint is
unclear, it appears that during this motion hearing, Judge Harrison ruled
on a previous motion filed by plaintiff for change of venue. Plaintiff
states that she made an oral motion to withdraw the request for change of
venue, but that Judge Harrison did not allow the withdrawal and
transferred the case to another judge. At some point after presenting her
motion, plaintiff was escorted out of the courtroom by the sheriff and
was told that if she re-entered she would be arrested. Plaintiff's
complaint omits any explanation of what, if anything, provoked this
Plaintiff also alleges a conspiracy involving Judge Harrison. On or
about October 1, 2002, the newly assigned judge appointed Ellen Douglas,
the second guardian ad litem for plaintiff's father. Plaintiff states
that prior to Douglas's appointment, Judge Harrison gave Douglas false
information and a photograph of plaintiff, which resulted in "prejudice
and conspiracy against the Plaintiff and the violation of her rights to
"be with and be dedicated to her father and to help care for him. . . ."
In a list of plaintiff's father's hospitalizations during 2002 and 2003,
plaintiff notes that after his September 25, 2002 discharge from Roseland
Hospital, she was not allowed to see him "due to Defendant's False
Allegations and Slander."
We need not address whether plaintiff has successfully pled each of her
claims, for defendant is immune from damages on all counts. Plaintiff asserts in her
complaint that absolute immunity does not apply to Judge Harrison in this
case because her offending actions were outside the scope of her
employment. However, her allegations do not support this legal
conclusion. The actions about which plaintiff complains are Judge
Harrison's responses to plaintiff's March 2002 and September 2002
motions, her appointment of a public guardian in April 2002, her decision
to grant plaintiff's motion for a change of venue, and her conversation
with plaintiff's father's second court-appointed guardian, Ellen
Douglas. Judge Harrison is immune from liability for damages if the acts
giving rise to plaintiff's action were performed within her jurisdiction
and in a judicial capacity. Alexander v. Reid, 2003 WL1733648 at *2
(N.D.III. 2003)(citing Mireles v. Waco, 502 U.S. 9.11-12 (1991)). "A
judge will not be deprived of immunity because the action taken was in
error, was done maliciously, or was in excess of his authority; rather,
will be subject to liability only when the judge has acted in the clear
absence of all jurisdiction." Offutt v. Kaplan, 884 F. Supp. 1179
(N.D.III.1995)(citing Sipka v. Soet, 761 F. Supp. 761, 765 (D.Kan.
Judge Harrison's rulings on plaintiff's March 2002 and September 2002
motions, her appointment of a guardian ad litem, and her decision on
plaintiff's motion for a change of venue, despite the request to withdraw
it, are all actions that were clearly within her jurisdiction and
judicial capacity. The only action that could be construed as outside the
scope of her absolute immunity is her alleged conversation with Douglas.
Yet, given the assertions of the complaint, this conversation is also
deserving of immunity.
Plaintiff alleges that Judge Harrison slandered her to the woman who
was immediately thereafter appointed guardian ad litem for plaintiff's
father. The result of Judge Harrison's alleged slander was that plaintiff was not able to see her father. To
determine whether an action is within Judge Harrison's jurisdiction, the
court looks to whether she acted in the clear absence of all
jurisdiction. Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099,
1105 (1978). To determine whether the act was performed in a judicial
capacity the court looks to whether it preserves the judicial process.
Alexander, 2003 WV 1733648 at *2 (citing Hansen v. Bennett, 948 F.2d 397,
403 (7th Cir. 1991). Given that the pertinent conversation took place
between a judge and a court-appointed guardian ad litem (a position that
has been described as an "arm of the court," see Collins v. Tabet,
111 N.M. 391, 806 P.2d 40, 44 (N.M. 1991)), and concerned a case before
the judge, resulting in an apparent legal restriction on plaintiff's
ability to interact with her father, the court cannot conclude that Judge
Harrison had this conversation in "clear absence of all jurisdiction,"
nor that it was held outside her judicial capacity.
In reaching our decision to deny plaintiff's in forma pauperis
petition, we have had to make some assumptions given the complaint's
vagaries and omissions.
For the foregoing reasons, plaintiff's motion to proceed in ...