                             In the
 United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 04-2894
LANCE DAWSON,
                                             Plaintiff-Appellant,
                                v.

THOMAS NEWMAN, JR., Madison County
Superior Court Judge in his individual
capacity, STATE OF INDIANA, INDIANA
DEPARTMENT OF CORRECTIONS,
ARTHUR HEGEWALD, BETTY WEIST,
VICTORIA FAFATA, and KATHY STOOPS-WRIGHT,
                                          Defendants-Appellees.
                         ____________
           Appeal from the United States District Court
    for the Southern District of Indiana, Indianapolis Division.
          No. 03 C 1563—Sarah Evans Barker, Judge.
                         ____________
    ARGUED JANUARY 21, 2005—DECIDED AUGUST 18, 2005
                         ____________


 Before RIPPLE, WOOD, and SYKES, Circuit Judges.
  SYKES, Circuit Judge. When Lance Dawson’s probation
was revoked, he appealed to the Indiana Court of Appeals
and won a ruling that the revocation was improper. On
remand Madison County Superior Court Judge Thomas
Newman, Jr., ordered Dawson released from prison. Judge
Newman’s office faxed a copy of the Indiana Court of
Appeals’ decision to the Indiana Department of Corrections
2                                               No. 04-2894

(“DOC”) but did not include a copy of the release order.
Dawson thus remained in prison for another fourteen
months, until he was released on parole supervision. He
reported for supervision, informed parole officials that his
original probation revocation had been overturned, but was
unable to convince officials that he should not be on parole.
  Dawson then brought this suit under 42 U.S.C. § 1983
against Judge Newman, Madison County Clerk of Court
Kathy Stoops-Wright, the DOC, and several parole officials.
The State defendants (the judge, the DOC, and the parole
officials) moved to dismiss on absolute immunity grounds;
the clerk, Stoops-Wright, filed an answer and did not join
the motion to dismiss. The district court granted the
dismissal motion, concluding that the judge was immune
and the DOC and its parole officials could not be held liable
for Dawson’s wrongful continued incarceration and parole
supervision because they had no power to “recompute a
sentence” and were not at fault for the failure to transmit
the release order. The district court later issued a brief
“clarification” order indicating that the dismissal was
“complete” and was meant to include dismissal of Dawson’s
claims against the clerk, even though she had not moved to
dismiss.
  We affirm in part and reverse in part. Judge Newman is
entitled to absolute judicial immunity, and the claims
against him were properly dismissed. The claims against
the parole officials should not have been dismissed, how-
ever. The dismissal motion raised only the issue of absolute
immunity—not the liability merits—and the parole officials
are not entitled to absolute immunity. Finally, the district
court’s follow-up order summarily dismissing the claims
against the court clerk was improper, as she had not moved
to dismiss.
No. 04-2894                                               3

                     I. Background
   We accept the facts alleged in Dawson’s second amended
complaint as true for purposes of our review of the district
court’s order granting the defendants’ motion to dismiss.
Baker v. Kingsley, 387 F.3d 649, 660 (7th Cir. 2004). In
1990 Dawson was convicted of certain criminal charges and
placed on three years’ probation with a suspended sentence
of six years. In September 1992 Dawson’s probation officer
filed a notice of probation violation and a hearing was
scheduled. The hearing was rescheduled several times due
to the unavailability of the State’s witnesses. On February
5, 1993, Dawson moved for a continuance. This motion was
granted but the hearing was never rescheduled.
  On June 12, 2000, approximately ten years after being
placed on three years’ probation and eight years after the
alleged probation violation, the State filed an amended
notice of probation violation. On October 23, 2000, Judge
Newman revoked Dawson’s probation and imposed the six-
year term of incarceration. Dawson appealed. On July 18,
2001, the Indiana Court of Appeals held that Dawson’s
probation revocation was improper as it occurred long after
his term of probation had expired. See Dawson v. State, 751
N.E.2d 812, 815 (Ind. Ct. App. 2001). The case was re-
manded to Judge Newman and he immediately entered a
docket order mandating Dawson’s release. Someone in
Judge Newman’s office faxed a copy of the Indiana Court of
Appeals’ decision to the DOC, but the release order itself
was never transmitted. E-mails were sent between DOC
employees indicating that Dawson was going to be released
due to his successful appeal, and he was transferred from
the Kentucky correctional facility where he was incarcer-
ated to Plainfield Correctional in Indiana for “possible
release on appeal.”
  But while the wheels of Dawson’s imminent release
ostensibly were moving forward, he remained in custody for
another fourteen months. He did not question his incarcera-
4                                               No. 04-2894

tion, as he had not been informed of the Court of Appeals’
decision and believed his appeal was still pending. On
September 6, 2002, Dawson was finally released, but not as
a completely free man; he was instead ordered to report for
parole supervision. He reported as ordered, but by this time
he had learned about the Indiana Court of Appeals’ decision
and Judge Newman’s docket order and protested to parole
officials that his placement on parole supervision was
improper. Dawson’s protests apparently fell on deaf ears.
Dawson told his parole officer, Betty Weist, that he had
been ordered released and should not be on parole. This
prompted Weist to contact Judge Newman’s court staff for
advice, but none was forthcoming. Weist’s supervisor,
Victoria Fafata, told her to continue Dawson’s parole
supervision. Dawson’s attorney got involved, and the matter
was referred up the chain of command to Arthur Hegewald,
Supervisor of Parole Services. Hegewald seemed uncon-
cerned and declined to meet with Dawson’s attorney,
indicating that the snafu “did not matter” because Dawson’s
parole would soon expire of its own accord.
  Dawson filed this lawsuit in state court under 42 U.S.C.
§ 1983 against Judge Newman, the DOC, and DOC parole
officials Weist, Fafata, and Hegewald. The defendants
removed the case to federal court and Dawson amended the
complaint to add Madison County Clerk of Court Kathy
Stoops-Wright as a defendant. Dawson filed a second
amended complaint, alleging due process, equal protection,
wrongful imprisonment, and cruel and unusual punishment
violations, and also asserting state law claims for false
imprisonment. The State defendants—Judge Newman, the
DOC, and the parole officials—moved to dismiss pursuant
to Rule 12(b)(6), asserting absolute immunity. As noted,
Stoops-Wright filed an answer and did not join the motion
to dismiss.
  The district court dismissed the federal claims with
prejudice, concluding that the judge was entitled to absolute
No. 04-2894                                                    5

judicial immunity and the DOC and the parole officials
“cannot be held liable” because “[n]either the DOC nor its
parole agents are empowered to recompute a sentence in
the manner which would have been required for Dawson to
have been released.” The court further concluded that “[t]he
failure to transmit the [release] documentation was not the
fault of the parole officers, who merely maintained their
supervision over Dawson in the normal course of their
duties.”1 The court’s order purported to dispose of the entire
case, even though Stoops-Wright had not moved to dismiss.
Dawson therefore requested clarification from the court.
The district court responded with a “clarification” order
indicating that the earlier order was intended to include a
sua sponte dismissal of Dawson’s claims against Stoops-
Wright because “the reasoning and disposition [of the
earlier order] were complete, though one defendant failed to
formally join in the challenge to the claims against her.”
Dawson appealed.


                       II. Discussion
  We review the district court’s judgment granting the
defendants’ motion to dismiss de novo. Baker, 387 F.3d at
660. As we have noted, the district court held that Judge
Newman was entitled to absolute judicial immunity but did
not address the immunity argument of the parole officials,
ruling instead on the merits that they “cannot be held
liable” because they had no power to “recompute a sentence”
and were “not at fault” for the failure to transmit the
release order. Upon Dawson’s request for clarification, the
court summarily swept Dawson’s claims against the court


1
  The district court also dismissed the state law false imprison-
ment claims without prejudice (false imprisonment was the only
claim against the DOC); these claims are not at issue in this
appeal.
6                                               No. 04-2894

clerk under the umbrella of the dismissal order, even
though the clerk had not moved to dismiss. The court did
not explain the reasoning behind this “clarification” order,
saying only that the earlier dismissal order was “complete”
and that “the court may, sua sponte, dismiss the complaint
where the inadequacy of the complaint is clear.”
   On appeal, the parties argue the immunity question, and
Dawson also argues that the district court should not have
dismissed his claims against Stoops-Wright sua sponte. We
take this last argument first. Stoops-Wright has not
responded to it, which ordinarily means the point is deemed
waived. Holman v. Indiana, 211 F.3d 399, 406 (7th Cir.
2000). In any event, Dawson is correct that the district
court’s sua sponte dismissal of Dawson’s claims against
Stoops-Wright was entirely inappropriate. “Unless a claim
is frivolous, it is rudimentary that a court cannot sua
sponte enter summary judgment or dismiss a complaint
without notifying the parties of its intentions and allowing
them an opportunity to cure the defect in the complaint or
respond.” English v. Cowell, 10 F.3d 434, 437 (7th Cir.
1993). The district court gave no notice that it intended to
give Stoops-Wright the benefit of an order granting a
dismissal motion she had neither filed nor joined. Dawson
had no notice of the grounds invoked for the dismissal and
was given no opportunity to respond. The court’s “clarifica-
tion” order did not identify any legal basis whatsoever for
dismissing the claims against Stoops-Wright. Although
Stoops-Wright contends on appeal that she is entitled to
absolute immunity and breached no duty, these arguments
must be raised first in the district court. Id. at 440 (“Eng-
lish was entitled to an opportunity to be heard before
dismissal of his claims. This opportunity must be afforded,
not on appeal, but at the district court . . . . ”). The order
dismissing Dawson’s claims against Stoops-Wright must be
reversed.
No. 04-2894                                                 7

  The dismissal of the claims against Judge Newman,
however, was entirely appropriate, as the judge is entitled
to absolute immunity. The doctrine of judicial immunity has
been embraced “for centuries.” Lowe v. Letsinger, 772 F.2d
308, 311 (7th Cir. 1985). It confers complete immunity from
suit, not just a mere defense to liability, and “is applicable
in suits under section 1983 because the ‘legislative record
[gave] no clear indication that Congress meant to abolish
wholesale all common-law immunities.’ ” Dellenbach v.
Letsinger, 889 F.2d 755, 758 (7th Cir. 1989) (quoting
Pierson v. Ray, 386 U.S. 547, 554 (1967)). If a judge errs
“through inadvertence or otherwise, a party’s remedy is
through appellate process.” Lowe, 772 F.2d at 311. Judicial
immunity extends to acts performed by the judge “in the
judge’s judicial capacity.” Dellenbach, 889 F.2d at 759
(emphasis in original). That is, judicial immunity applies
“to judicial acts, but not to ministerial or administrative
acts.” Lowe, 772 F.2d at 312. The Supreme Court has
acknowledged the imprecision inherent in “attempting to
draw the line between truly judicial acts, for which immu-
nity is appropriate, and acts that simply happen to have
been done by judges.” Forrester v. White, 484 U.S. 219, 227
(1988).
  Dawson argues that Judge Newman’s failure to transmit
the release order to the DOC was not a “judicial” act or
omission but a “ministerial” or “administrative” one. He
cites an Indiana statute that imposes a requirement upon
“the court” to notify the DOC of a corrected or modified
sentence: “Whenever . . . a court corrects an erroneous
sentence or modifies a previously imposed sentence[,] . . .
the court shall immediately send certified copies of the
corrected or modified sentence to the department of correc-
tion.” IND. CODE § 35-38-1-16 (2004). Judge Newman
responds that this case is analogous to Lowe, which in-
volved a § 1983 claim arising out of a judge’s four-year
delay in ruling on a postconviction motion and subsequent
8                                                No. 04-2894

three-week delay in transmitting the order granting
postconviction relief. We held in Lowe that judicial omis-
sions of this sort were entitled to absolute immunity. Lowe,
772 F.2d at 313. This case is substantially similar.
  We began in Lowe by noting that three factors generally
govern the determination of whether a particular act or
omission is entitled to judicial immunity: “(1) whether the
act or decision involves the exercise of discretion or judg-
ment, or is rather a ministerial act which might as well
have been committed to a private person as to a judge; (2)
whether the act is normally performed by a judge; and (3)
the expectations of the parties, i.e., whether the parties
dealt with the judge as judge.” Lowe, 772 F.2d at 312. We
concluded in Lowe that “[a]ll three factors point to the
judicial character” of the judge’s delay in deciding the
postconviction motion because “deciding when to decide a
case, no less than deciding the case itself, is a judicial act
for which a judge is absolutely immune.” Id. We further
concluded that the three-week delay in sending notice of the
order granting postconviction relief was also immunized
because although “[o]rdinarily the mere mailing of the
notice is a clerk’s chore” that did not involve the exercise of
discretion, to the extent that the judge “did undertake to
control the disposition of his own order[,] he was still acting
in his judicial role.” Id. at 313. Although the judge in Lowe
was entitled to absolute immunity, the court clerk was not;
we concluded that “the clerk’s duty to type and send notice
after entry of judgment is a non-discretionary, ministerial
task.” Id.
  Similarly here, § 35-38-1-16 requires “the court” to send
to the DOC a copy of any order correcting or modifying a
sentence. To the extent that this imposes any duty on the
judge himself (as opposed to the court clerk or other court
staff as part of “the court” as an institution), the judge is
acting in his judicial capacity, the parties are “deal[ing]
with the judge as a judge,” id. at 312, and the judge’s
No. 04-2894                                                   9

alleged failure to act is entitled to absolute immunity.
Dawson’s claims against Judge Newman are premised upon
an alleged violation of what Dawson contends is a personal
statutory duty of the judge, which necessarily involves an
act or omission by the judge as a part of the judicial case
processing function. Assuming arguendo that Dawson’s
premise is correct (that the statute imposes a personal duty
on the judge), it follows that the acts or omissions in the
performance of that judicial duty are immunized. To the
extent that the statute imposes a duty on the judge at all,
that duty implicates the judge’s role as judge rather than as
an administrative or clerical officer. Judge Newman is
absolutely immune and the claims against him were
properly dismissed.
  The parole officers’ immunity argument is another
matter, however. They contended in the district court, and
reiterate here, that they are entitled to absolute immunity
because their duties as parole officers were closely aligned
with the judicial process. The district court disregarded this
argument and dismissed on the basis of its sua sponte
conclusion that the parole officers “cannot be held liable” for
the failure of others to correct the record regarding
Dawson’s status. This, like the sua sponte dismissal of
Dawson’s claims against the court clerk, was improper.
Addressing the argument that was raised—in the district
court and on appeal—we conclude that the parole officers
are not entitled to absolute immunity.
  Absolute immunity for acts by nonjudicial government
officers is determined on the basis of “a functional ap-
proach.” Wilson v. Kelkhoff, 86 F.3d 1438, 1443 (7th Cir.
1996). “Absolute immunity is only accorded for limited
functions; ‘[t]he presumption is that qualified rather than
absolute immunity is sufficient to protect government
officials in the exercise of their duties.’ ” Id. (quoting Burns
v. Reed, 500 U.S. 478, 486-87 (1991)). Absolute judicial
immunity “is not limited to government officials with the
10                                                 No. 04-2894

title of . . . judge; officials performing ‘functionally compara-
ble’ acts in other contexts, such as administrative agencies,
are also accorded absolute immunity.” Id. (quoting Butz v.
Economou, 438 U.S. 478, 512 (1978)). Thus, we have held
that parole officials are entitled to absolute immunity “for
their activities that are analogous to those performed by
judges.” Id. at 1444. These include, for example, acts
associated with the decision to grant, revoke, or deny
parole, or the signing of an arrest warrant. Id. Because such
activities involve decision-making that is “judicial” in
nature, it follows that absolute immunity should shield
such acts.
  The allegations against the parole officials in this case do
not involve acts that are analogous to those performed by
judges. Weist, Fafata, and Hegewald allegedly ignored
Dawson’s protests and refused to investigate his claim of
entitlement to release from parole in the ordinary course of
performing their everyday duties as parole officials. They
offer no precedent for the proposition that they should be
entitled to absolute immunity for performing their day-to-
day duties in the supervision of a parolee. We decline to
extend absolute judicial immunity to the circumstances
presented here.
  Accordingly, for the foregoing reasons, we AFFIRM the
judgment dismissing Dawson’s claims against Judge
Newman, REVERSE the judgment dismissing his claims
against the remaining defendants, and REMAND for further
proceedings.
No. 04-2894                                         11

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—8-18-05
