Terry A. Burlison v. Pam Angus

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 11, 2018
• Docket: 18-10427
• Status: Unpublished

Opinion

Case: 18-10427 Date Filed: 09/11/2018 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-10427 Non-Argument Calendar ________________________

D.C. Docket No. 5:17-cv-00570-JSM-PRL

TERRY A. BURLISON,

Plaintiff-Appellant,

versus

PAM ANGUS, individually and in her capacity as a Marion County Deputy Clerk,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(September 11, 2018)

Before MARTIN, JILL PRYOR, and BRANCH, Circuit Judges.

PER CURIAM: Case: 18-10427 Date Filed: 09/11/2018 Page: 2 of 4

Terry Burlison appeals the district court’s sua sponte dismissal of his pro se1

civil rights suit under 42 U.S.C. § 1983, in which he sought monetary damages

against Pam Angus, a Marion County, Florida, deputy clerk of court. His suit

alleges that she issued a writ of possession without judicial authority in favor of his

landlords in a state court dispossessory action, which, in turn, caused him to be

evicted from his residence in violation of his rights under the Fourth Amendment

of the United States Constitution. He argues that the district court committed

procedural error when it sua sponte dismissed his § 1983 complaint with prejudice

without first notifying him of its intent to do so and without giving him an

opportunity to respond.

We review a district court’s sua sponte dismissal for abuse of discretion. See

Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1335–36 (11th Cir. 2011). In doing so, we

review de novo any underlying questions of law in a district court’s dismissal of a

complaint for failure to state a claim. Mitchell v. Farcass, 112 F.3d 1483, 1490

(11th Cir. 1997).

Prior to dismissing a civil action sua sponte, a court normally must provide

the plaintiff “with notice of its intent to dismiss and an opportunity to respond.”

Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1248 (11th Cir. 2015). “An

1 “Pro se pleadings are held to a less stringent standard than pleadings drafted by attorney and will, therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). 2 Case: 18-10427 Date Filed: 09/11/2018 Page: 3 of 4

exception to this requirement exists, however, when amending the complaint

would be futile, or when the complaint is patently frivolous.” Id. A district court

may dismiss a complaint for failure to state a claim based upon an affirmative

defense “when the defense is an obvious bar given the allegations,” even if the

defendant has not asserted the defense. Sibley v. Lando, 437 F.3d 1067, 1070 n.2

(11th Cir. 2005).

Here, the district court did not abuse its discretion when it concluded that

Burlison’s complaint was patently frivolous because its central claim was

obviously barred by judicial immunity, which is a recognized defense to liability

under section 1983. See Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000).

While court clerks are not entitled to absolute immunity from claims for equitable

relief, which Burlison has not sought, they do “have absolute immunity from

actions for damages arising from acts they are specifically required to do under

court order or at a judge’s direction.” Tarter v. Hury, 646 F.2d 1010, 1013 (5th Cir.

Unit A June 1981); see also Roland v. Phillips, 19 F.3d 552, 556 n.4 (11th Cir.

1994) (stating that when a court official “acts pursuant to a direct judicial order,

absolute quasi-judicial immunity is obvious”). And court clerks are entitled to

qualified immunity from all other actions for damages. Tarter, 646 F.2d at 1013.

The district court correctly concluded that Burlison’s claim against Angus

was patently frivolous, and therefore could be dismissed without notice and an

3 Case: 18-10427 Date Filed: 09/11/2018 Page: 4 of 4

opportunity to respond. Angus, as a deputy clerk of court, was entitled to absolute

judicial immunity on Burlison’s claim for money damages, because, in issuing the

challenged writ of possession in favor of Burlison’s landlords, she was following a

direct order of a Marion County, Florida, judge. See Tarter, 646 F.2d at 1013.

Accordingly, we affirm the district court’s sua sponte dismissal of

Burlison’s suit.

AFFIRMED.