     Case: 10-20048     Document: 00511183804          Page: 1    Date Filed: 07/23/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            July 23, 2010

                                     No. 10-20048                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



KRISTOFER THOMAS KASTNER,

                                                   Plaintiff - Appellant
v.

TOM LAWRENCE, Individually and as Harris County Justice of the
Peace Precinct 4 Position 2; DEANA FORRESTER, Individually and as
Harris County Clerk; UNKNOWN CLERK, Individually and as Harris
County Clerk; BELINDA CINQUE, Individually and as Harris County
Clerk; HARRIS COUNTY; STATE OF TEXAS,

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CV-2491


Before WIENER, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Kristofer Thomas Kastner filed suit against three county court clerks, the
Harris County Justice of the Peace, Harris County, and the State of Texas,
alleging civil rights violations under 42 U.S.C. § 1983. The district court granted



        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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the Defendants’ motions to dismiss. On appeal, Kastner argues that the district
court erred in denying discovery, in denying him the opportunity to amend his
complaint, and in holding the Defendants immune from suit. Finding no error,
we AFFIRM.
                  FACTUAL AND PROCEDURAL HISTORY
      Kastner’s complaint alleges that his wallet, credit card, checks, and other
items were stolen and that he reported the theft to the Harris County Sheriff’s
Department the same day. Thereafter, the thief used one of Kastner’s checks to
pay for purchases at a Kroger grocery store. After the check was returned for
insufficient funds, Kroger executed an affidavit stating that Kastner had written
the check, that it had verified his signature, and that a notice of insufficient
funds had been sent to the address on the license. Based on this affidavit, a
warrant was issued for Kastner’s arrest.
      Harris County constables arrested Kastner for issuance of a bad check and
detained him in the county jail. Kastner alleges that during his arrest and
detention, he suffered physical, emotional, and reputational damage based on
his arrest; strip search; being forced to wear dirty, used jail clothes; and from the
use of the handcuffs. The next month, the case against Kastner was dismissed
for insufficient evidence.
      Based on these events, Kastner filed suit under Section 1983. Proceeding
pro se, he alleged civil rights violations arising from the Defendants’ false arrest
and imprisonment, negligence, and negligent supervision and training. Kastner
alleges that the Defendants failed to assure themselves that Kroger had
complied with the applicable statutory requisites before issuing the warrant.
See Tex. Penal Code Ann. § 32.41. Specifically, he alleges that notice of the bad
check was improper, and that he was not allowed sufficient time to make
restitution to Kroger for the amount of the check as required by the statute. He



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also alleges that the Defendants erred in not determining that the wallet and
checks were stolen before issuing the warrant.
        The magistrate judge recommended granting the Defendants’ motions to
dismiss and denying Kastner’s motions to recuse, to proceed with discovery, for
default judgment, and for sanctions. The district court adopted the magistrate
judge’s Memorandum and Recommendations and dismissed with prejudice.
                                  DISCUSSION
A.      Dismissal Under Rule 12(b) (6)
        We review a dismissal under Federal Rule of Civil Procedure 12(b)(6) de
novo, applying the same standard as the district court. Davis v. Tarrant County,
Tex., 565 F.3d 213, 217 (5th Cir. 2009). We will affirm if the complaint alleges
facts which if accepted as true, “state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). We construe pro
se pleadings liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
        1.    Absolute Immunity
        The district court concluded that Judge Lawrence and the three court
clerks all had absolute immunity for their actions in this case.
        Generally, judges have absolute immunity from damage suits. Mireles v.
Waco, 502 U.S. 9, 9-10 (1991). Immunity applies even where the judge’s action
“was in error, was done maliciously, or was in excess of his authority.” Stump
v. Sparkman, 435 U.S. 349, 356 (1978). Two narrow exceptions exist to this
immunity: (1) if the actions are not taken in the judge’s judicial capacity, and (2)
if judicial action is “taken in the complete absence of all jurisdiction.” Mireles,
502 U.S. at 11. Kastner argues that both exceptions are applicable here.
        In determining whether actions were taken in a judge’s judicial capacity,
we apply a four-factor test:
      (1) whether the precise act complained of is a normal judicial
function; (2) whether the acts occurred in the courtroom or appropriate adjunct


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spaces such as the judge’s chambers; (3) whether the controversy centered
around a case pending before the court; and (4) whether the acts arose directly
out of a visit to the judge in his official capacity.
Malina v. Gonzalez, 994 F.2d 1121, 1124 (5th Cir. 1993). We construe these
factors broadly in favor of immunity. Id.
      The challenged action involves the issuance of arrest warrants, which is
within the judge’s judicial activity.   The acts occurred in or near courtroom
space, and involved a case pending before the court.        We reject Kastner’s
contention that Judge Lawrence was acting not in his judicial capacity, but in
an “administrative, legislative, or executive” capacity. Davis, 565 F.3d at 221.
      Kastner argues that because no offense was committed and certain
procedures were not followed, the judge was somehow completely stripped of his
jurisdiction. In considering the argument, we note that under Texas law, the
offense of issuance of a bad check is a Class C misdemeanor, punishable by fine
only. Tex. Penal Code Ann. § 32.41(f). Under the Texas Constitution and the
Texas Code of Criminal Procedure, justice of the peace courts have subject
matter jurisdiction over such crimes. See Tex. Code Crim. Proc. Ann. art. 4.11;
T EX. C ONST. art. V, § 19. Consequently, Judge Lawrence’s action was not taken
“in the complete absence of all jurisdiction.” Mireles, 502 U.S. at 11.
      This absolute immunity also extends to the court clerks. As stated by the
district court, the Texas court clerks have the power to perform the ministerial
task of issuing process at the judge’s behest; they do not determine probable
cause for arrest. See Sharp v. State, 677 S.W.2d 513, 514 (Tex. Crim. App. 1984).
This is the duty of the judge.    Court clerks are immune from actions “for
damages arising from acts they are specifically required to do under court order
or at a judge’s discretion.” Clay v. Allen, 242 F.3d 679, 682 (5th Cir. 2001)
(citation and quotation marks omitted). Because the clerks issued the warrant




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at the direction of the justice of the peace, they are also protected by absolute
immunity.
      2.    Eleventh Amendment Immunity
      The Eleventh Amendment bars suits against the states unless the state
has specifically waived its immunity or Congress has abrogated state immunity.
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989). Judge Lawrence
named in his official capacity is also immune under the same principles. Davis,
565 F.3d at 228.
      Kastner argues that the State of Texas has waived its immunity with the
Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021,
104.002. However, under Texas law, the waiver of immunity does not apply to
any claim “based on an act or omission of a court of this state or any member of
a court of this state acting in his official capacity or to a judicial function of a
governmental unit.” Id. § 101.053(a). Therefore, the State has not waived
immunity, and dismissal of these claims was proper.
      3.    Claims Against the County
      Harris County can be liable under Section 1983 “only for acts that are
directly attributable to it through some official action or imprimatur.” James v.
Harris County, 577 F.3d 612, 617 (5th Cir. 2009) (citation and quotation marks
omitted). A plaintiff must show “in addition to a constitutional violation, that
an official policy promulgated by the municipality’s policymaker was the moving
force behind, or actual cause of, the constitutional injury.” Id. That policy must
be unconstitutional or adopted “with deliberate indifference to the known or
obvious fact that such constitutional violations would result.” Id. (citation and
quotation marks omitted).
      Kastner alleges that there was an official policy of not properly issuing
warrants, and that the policy directly resulted in violations of his constitutional
rights. He argues that the officials were not properly trained or supervised in

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how they issue warrants. However, “[a] local judge acting in his or her judicial
capacity is not considered a local government official whose actions are
attributable to the county.” Krueger v. Remier, 66 F.3d 75, 77 (5th Cir. 1995)
(citations omitted). Kastner has not shown that the judge’s “edicts or acts may
fairly be said to represent official policy.” Monell v. Dep’t of Social Servs. of the
City of N.Y., 436 U.S. 658, 694 (1978).
B.      Denial of Discovery
        The magistrate judge denied discovery until after the motions to dismiss
were heard. After granting the Defendants’ motions to dismiss, the magistrate
judge recommended that Kastner’s motion to proceed with discovery be denied.
Kastner argues that this ruling was in error because it did not enable him to
obtain evidence sufficient to defeat the Rule 12(b)(6) motion.
        “One of the purposes of immunity, absolute or qualified, is to spare a
defendant not      only   unwarranted     liability, but unwarranted       demands
customarily imposed upon those defending a long drawn out lawsuit.” Siegert
v. Gilley, 500 U.S. 226, 232 (1991). In the context of qualified immunity, we have
held that even limited discovery on the issue of immunity is not appropriate
until the district court first determines that “the plaintiff’s pleadings assert
facts, which, if true, would overcome the defense.” Vander Zee v. Reno, 73 F.3d
1365, 1368-69 (5th Cir. 1996) (citation and quotation marks omitted).
        As previously noted, the exceptions to the absolute immunity protecting
the judge and clerks in their individual capacities are very narrow. Mireles, 502
U.S. at 11-12. Kastner does not indicate that additional discovery would lead to
evidence which would defeat the immunity of the state, Judge Lawrence, and the
county clerks.
        Kastner alleges that discovery would lead to evidence showing a policy or
custom giving rise to liability for the county. However, the judge’s judicial
actions cannot be attributed to the county. See Krueger, 66 F.3d at 77. Kastner’s

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allegations do not indicate any policy or custom of the county apart from the
actions and directions of the judge and those acting at his direction.
        The district court did not abuse its discretion in denying discovery.
C.      Denial of Leave to Amend
        Kastner contends that the district court erred in not allowing him to
amend his complaint. The request to amend was made for the first time in his
objections to the magistrate’s Memorandum and Recommendations.
        Generally, a pro se litigant should be offered an opportunity to amend his
complaint before it is dismissed with prejudice. Bazrowx v. Scott, 136 F.3d 1053,
1054 (5th Cir. 1998). However, granting leave to amend is not required where
the plaintiff has already pled his “best case.” Id.
        We are convinced that Kastner already pled his best case. He has given
no indication of what material facts he would include in an amended complaint.
See Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009). Accordingly, we
conclude that the district court did not abuse its discretion in denying leave to
amend.
D.      Motions to Recuse
        The district court denied Kastner’s motions to recuse the magistrate and
district judges. We review a denial of a motion to recuse for abuse of discretion.
Andrade v. Chojnacki, 338 F.3d 448, 454 (5th Cir. 2003).
         “Any justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality might reasonably
be questioned.” 28 U.S.C. § 455(a). Kastner correctly states that a judge should
recuse himself when a reasonable person, with knowledge of the circumstances,
would question the judge’s impartiality. See Republic of Panama v. Am. Tobacco
Co., Inc., 265 F.3d 299, 302 (5th Cir. 2001). However, we disagree with his
conclusion that a reasonable person would question the judges’ impartiality in
this case.

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      “[J]udicial rulings alone almost never constitute a valid basis for a bias or
partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994). Where the
grounds for recusal arise solely in the course of the judicial proceedings, judicial
rulings will only “in the rarest circumstances evidence the degree of favoritism
or antagonism required.”      Id.    Kastner has not shown any favoritism or
antagonism on the part of the district court or magistrate judge, but merely
expresses disagreement with specific rulings by the court on motions and routine
case management matters. There has been no abuse of discretion.
      AFFIRMED.




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