Home/Tenth Circuit/Clemens v. State Of Kansas

Clemens v. State Of Kansas

951 F.2d 287, 1991 U.S. App. LEXIS 29467
CourtCourt of Appeals for the Tenth Circuit
DecidedDecember 18, 1991
Docket91-3152
StatusPublished
Cited by2 cases

This text of 951 F.2d 287 (Clemens v. State Of Kansas) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clemens v. State Of Kansas, 951 F.2d 287, 1991 U.S. App. LEXIS 29467 (10th Cir. 1991).

Opinion

951 F.2d 287

Arthur J. CLEMENS, Jr., Plaintiff-Appellant,
v.
STATE OF KANSAS, Miami County District Court, Kansas Court
of Appeals, James H. Clemens, David E. Clemens, Arthur J.
Clemens, Sr., Robert Nicholson, Miami County National Bank,
Richard Clemens, Timothy Clemens, Katherine Mientka, James
Robert Clemens, Christopher Clemens, Defendants-Appellees.

No. 91-3152.

United States Court of Appeals, Tenth Circuit.

Dec. 18, 1991.

Arthur J. Clemens, Jr., pro se.

Robert T. Stephan, Atty. Gen. and Carl A. Gallagher, Asst. Atty. Gen., Topeka, Kan., for defendants-appellees, State of Kan., Kansas Court of Appeals and the Miami County Dist. Court.

Before McKAY, Chief Judge, SEYMOUR, and EBEL, Circuit Judges.

SEYMOUR, Circuit Judge.

Arthur Clemens is suing the State of Kansas, the Miami County District Court, the Kansas Court of Appeals, and a number of individuals, many of whom appear to be Mr. Clemens' relatives. The district court has dismissed the three state defendants pursuant to their Eleventh Amendment immunity from suit in federal court. Mr. Clemens now appeals this dismissal.1

Because Mr. Clemens' suit against the individual defendants remains pending in the district court, the order dismissing the state defendants is not final. We join those circuits that have concluded that an order granting immunity is not a collateral order which is immediately appealable under 28 U.S.C. § 1291 (1988), as interpreted by Cohen v. Beneficial Industr. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). See Branson v. City of Los Angeles, 912 F.2d 334, 335 (9th Cir.1990); Theis v. Smith, 827 F.2d 260, 261 (7th Cir.1987); Coe v. Ziegler, 817 F.2d 29, 30 (6th Cir.1987); Thompson v. Betts, 754 F.2d 1243, 1246 (5th Cir.1985). The rationale for allowing interlocutory appeal of an order denying immunity is that the defendant's right to be free from standing trial can not be effectively vindicated on appeal after trial. See Mitchell v. Forsyth, 472 U.S. 511, 524-30, 105 S.Ct. 2806, 2814-17, 86 L.Ed.2d 411 (1985); Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 644 (10th Cir.1988). A grant of immunity, in contrast, "may be fully and effectively reviewed after final judgment. Accordingly, it does not fall under the collateral order doctrine." Branson, 912 F.2d at 335.

We therefore dismiss this appeal for lack of jurisdiction.

1

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument

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Related

Primas v. City of Oklahoma City
958 F.2d 1506 (Tenth Circuit, 1992)
Arthur M. Primas, and Brenda M. Primas v. The City of Oklahoma City, a Municipal Corporation Fred Anderson, Individually and as Assistant Municipal Counselor and Employee of the City of Oklahoma City, Through the Municipal Counselor's Office Terry Childers, Individually and as City Manager and Employee of the City of Oklahoma City Don Pennington, a Police Officer and Employee of the City of Oklahoma City, Through the Oklahoma City Police Department, and Fred Hays, Individually and as Assistant City Manager and Employee of the City of Oklahoma City, Through the City Manager's Office, Arthur M. Primas, and Brenda M. Primas v. The City of Oklahoma City, a Municipal Corporation Fred Anderson, Individually and as Assistant Municipal Counselor and Employee of the City of Oklahoma City, Through the Municipal Counselor's Office Terry Childers, Individually and as City Manager and Employee of the City of Oklahoma City Fred Hays, Individually and as Assistant City Manager and Employee of the City of Oklahoma City, Through the City Manager's Office, and Don Pennington, a Police Officer and Employee of the City of Oklahoma City, Through the Oklahoma City Police Department, Arthur M. Primas, and Brenda M. Primas v. The City of Oklahoma City, a Municipal Corporation Terry Childers, Individually and as City Manager and Employee of the City of Oklahoma City Fred Hays, Individually and as Assistant City Manager and Employee of the City of Oklahoma City, Through the City Manager's Office Don Pennington, a Police Officer and Employee of the City of Oklahoma City, Through the Oklahoma City Police Department, and Fred Anderson, Individually and as Assistant Municipal Counselor and Employee of the City of Oklahoma City, Through the Municipal Counselor's Office, Arthur M. Primas Brenda M. Primas v. The City of Oklahoma City, a Municipal Corporation Terry Childers, Individually and as City Manager and Employee of the City of Oklahoma City Fred Hays, Individually and as Assistant City Manager and Employee of the City of Oklahoma City, Through the City Manager's Office Don Pennington, a Police Officer and Employee of the City of Oklahoma City, Through the Oklahoma City Police Department, and Fred Anderson, Individually and as Assistant Municipal Counselor and Employee of the City of Oklahoma City, Through the Municipal Counselor's Office
958 F.2d 1506 (Tenth Circuit, 1992)

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Bluebook (online)
951 F.2d 287, 1991 U.S. App. LEXIS 29467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clemens-v-state-of-kansas-ca10-1991.