                  United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                ___________

                                No. 06-1909
                                ___________

Richard Stanley Maness,                *
                                       *
             Appellant,                *
                                       * Appeal from the United States
       v.                              * District Court for the
                                       * Western District of Arkansas.
District Court Of Logan County-        *
Northern Division; Paula McCaully,     *       [PUBLISHED]
District Court Clerk; Judge David R.   *
Cravens, District Court Judge;         *
Amanda Roberts, District Court Clerk; *
Judge Paul X. Williams, District Court *
Judge; Logan County Circuit Clerk;     *
Judge Paul Danielson, Logan County     *
Circuit Judge; David McCormick,        *
Logan County Circuit Judge; Terry      *
Sullivan, Logan County Circuit Judge; *
Everly Kellar, Logan County Circuit    *
and Chancery Clerk; Kevin Barham,      *
Paris City Prosecutor,                 *
                                       *
             Appellees.                *
                                  ___________

                           Submitted: March 7, 2007
                              Filed: August 13, 2007
                               ___________

Before RILEY, HANSEN, and MELLOY, Circuit Judges.
                            ___________

PER CURIAM.
      Richard Maness appeals the district court’s 28 U.S.C. § 1915(e)(2)(B)
preservice dismissal of his 42 U.S.C. § 1983 action. As relevant, the magistrate judge
recommended dismissal based upon immunity, and the district court adopted the
magistrate judge’s report. Upon de novo review, see Moore v. Sims, 200 F.3d 1170,
1171 (8th Cir. 2000) (per curiam), we affirm.

       Maness alleged that Logan County District Court Judge Paul X. Williams
improperly refused his request to continue his state-court trial, refused to hear
evidence of Maness’s factual innocence, and convicted him; and that City Prosecutor
Kevin Barham failed to present any evidence against him. Maness also alleged that
Logan County Circuit Court Clerk Everly Kellar refused to file his appeal for lack of
a filing fee, and refused his repeated requests to present his application to proceed in
forma pauperis (IFP) to a circuit court judge. According to correspondence between
Kellar and Maness, an order from a circuit judge granting IFP status was required to
perfect the appeal. As a result of Kellar’s alleged refusal to present the IFP
application, Maness’s appeal was dismissed. Maness sought damages and an order
vacating his conviction and fine.

      Initially, we note that Maness conceded in his objections to the magistrate
judge’s report that Judge Williams, Prosecutor Barham, and Court Clerk Kellar are the
only proper defendants in this case; and we note as well that Maness’s request to
vacate his conviction is cognizable only in a habeas corpus action, see Preiser v.
Rodriguez, 411 U.S. 475, 489-90 (1973). We agree with the district court that Judge
Williams and Prosecutor Barham enjoyed absolute immunity. See Mireles v. Waco,
502 U.S. 9, 11 (1991) (per curiam) (judges are immune from suit unless actions were
nonjudicial in nature or taken in complete absence of all jurisdiction); Brodnicki v.
City of Omaha, 75 F.3d 1261, 1266 (8th Cir. 1996) (prosecutor is entitled to absolute




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immunity when acting as advocate for state in criminal prosecution; immunity covers
initiation and pursuit of criminal prosecution).

       A different analysis is used to assess any immunity from suit Clerk Kellar may
have. As to absolute quasi-judicial immunity, there is no suggestion in the record that
Kellar’s alleged refusal to present Maness’s IFP application to a circuit judge was
discretionary rather than ministerial. See Antoine v. Byers & Anderson, Inc., 508
U.S. 429, 436-37 (1993) (when judicial immunity is extended to officials other than
judges, it is because they exercise discretionary judgment as part of their function;
functional approach does not require that absolute immunity be extended to court
personnel simply because they are “part of judicial function”; holding that court
reporters do not enjoy immunity because they have no discretion in carrying out
statutory duties); Snyder v. Nolen, 380 F.3d 279, 286-289, 291 (7th Cir. 2004) (per
curiam) (clerk of court who allegedly refused to file inmate’s pleadings was not acting
in “functionally comparable” way to judge and breached duty to perform ministerial
act of accepting technically sufficient papers; clerk did not enjoy absolute quasi-
judicial immunity); cf. McCullough v. Horton, 69 F.3d 918, 919 (8th Cir. 1995) (per
curiam) (court clerk’s failure to provide transcript as ordered by court was not clearly
discretionary act entitling clerk to immunity). Thus, Kellar was not shielded by
absolute quasi-judicial immunity.

       However, we conclude that Kellar is shielded by qualified immunity. "Qualified
immunity protects state actors from civil liability when their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known." Kahle v. Leonard, 477 F.3d 544, 549 (8th Cir. 2007) (internal
marks omitted). We must ask and answer two questions when a defense of qualified
immunity is raised by a state actor: (1) whether or not the state actor deprived the
complainant of a constitutional or statutory right, and (2) if there was a deprivation of
such a right, whether or not the right was clearly established such that a reasonable
person would have realized that his or her actions were unlawful. Id. at 550. If the

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answer to the first question is no then the § 1983 claim fails, and if the answer to the
second question is no, the state actor is protected by qualified immunity. Id.

       In this instance, Maness's claim of access to the courts fails because he cannot
show actual injury or prejudice based on Clerk Keller's ministerial decision to not
present his petition to a judge. See Johnston v. Hamilton, 452 F.3d 967, 973 (8th Cir.
2006) ("To sustain his claim based on denial of access to . . . the court, [he] must
prove that he suffered an actual injury or prejudice as a result of the alleged denial of
access."). We reach this conclusion for two reasons. First, the Arkansas state courts
have made it clear that the responsibility for perfecting an appeal rests on the appellant
in total, Sullivan v. Arkansas, 784 S.W. 2d 155, 156 (Ark. 1990) (per curiam), and
that placing blame on the clerk does not excuse an appellant's failure to do so, Raynor
v. Arkansas, No. CR 06-655, 2006 WL 1781500 at *1 (Ark. June 29, 2006)
(unpublished) (holding that petitioner's claim that he failed to timely file a notice of
appeal because the circuit clerk did not respond to his questions concerning requests
to proceed in forma pauperis was not a showing of good cause for delay in perfecting
the appeal); Phelps v. Arkansas, No. CR 92-1160, 1992 WL 392727 at *1 (Ark. Dec.
21, 1992) (unpublished) (stating that it was not the duty of the clerk to perfect an
appeal and that "[p]etitioner's contention that his failure to tender the record was
caused by the circuit clerk . . . does not excuse him of his responsibility to have either
tendered the record to this court within ninety days or sought by proper motion an
extension of time to lodge the record").

       Secondly, we agree with Judge Easterbrook's reasoning in Snyder v. Nolen, and
find that Maness has not stated a claim for violation of his right to access to the courts.
380 F.3d at 292-93 (writing that no claim for access to the courts was stated based
upon the fact that the appellant could have appealed the clerk's refusal of his petition
within the state system but failed to take advantage of the remedies available to him).




                                           -4-
       Based on Arkansas law that places the responsibility for perfecting an appeal
on the appellant and Maness's apparent failure to pursue any sort of relief in the state
courts before filing the federal claim, we find no violation of Maness's constitutional
right of access to the courts.

       Accordingly, we affirm the district court's grant of summary judgment to all
three defendants.
                      ______________________________




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