Jacob v Johnny [2012] FMSC 15; 18 FSM Intrm. 226 (Pon. 2012) (4 April 2012)

FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2011-040

ROSA RODRIGUEZ JACOB,
Plaintiff,

vs.

NIKONTRO JOHNNY, individually and in his capacity as Associate Justice in the Pohnpei Supreme Court, Pohnpei State Police Department Director LUCAS CARLOS, individually and in his official capacity, and Pohnpei Supreme Court Chief Clerk LEON FELIX, individually and in his official capacity,
Defendants.
_____________________________________________

ORDER GRANTING PARTIAL DISMISSAL

Dennis K. Yamase
Associate Justice

Decided: April 4, 2012

APPEARANCES:

For the Plaintiff: Rosa Rodriguez Jacob, pro se

P.O. Box 1922

Kolonia, Pohnpei FM 96941

For the Defendants: Kasio Mida, Jr., Esq.

Ramp & Mida Law Firm

P.O. Box 1480

Kolonia, Pohnpei FM 96941

For the Defendant: Ira J. Shiflett, Esq.

(Carlos) Assistant Attorney General

Pohnpei Department of Justice

P.O. Box 1555

Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Civil Procedure - Dismissal - Before Responsive Pleading
For the purpose of Rule 12(b)(6) motions to dismiss, the court must accept the plaintiff's allegations as true with all reasonable inferences to be made in her favor since she is the party opposing the motion to dismiss. The court will then grant dismissal only if it appears to a certainty that no relief could be granted under any state of facts which could be proven in support of her claim. Jacob v. Johnny, [2012] FMSC 15; 18 FSM Intrm. 226, 229 (Pon. 2012).

Civil Procedure - Filings; Civil Procedure - Service
Every summons signed by the clerk should state the name, address and telephone number of the plaintiff's attorney or trial counselor, if any, otherwise the plaintiff's address and telephone number, and the court clerk is supposed to determine before filing that a paper subsequent to the summons and complaint has a certificate of service and contains the mailing address and telephone number of the party filing the paper or the party's attorney. Jacob v. Johnny, [2012] FMSC 15; 18 FSM Intrm. 226, 230 n.1 (Pon. 2012).

Civil Procedure - Filings
The court will not penalize a party for a court employee's omission in failing to see that a filing contained the filer's phone number. Jacob v. Johnny, [2012] FMSC 15; 18 FSM Intrm. 226, 230 n.1 (Pon. 2012).

Criminal Law and Procedure - Arrest and Custody
An eviction order is not an arrest warrant. Jacob v. Johnny, [2012] FMSC 15; 18 FSM Intrm. 226, 230 (Pon. 2012).

Torts - Immunity
A qualified official immunity defense which requires a facially-valid arrest warrant, does not apply when there was no arrest warrant but only an eviction order. Jacob v. Johnny, [2012] FMSC 15; 18 FSM Intrm. 226, 231 (Pon. 2012).

Criminal Law and Procedure - Cruel and Unusual Punishment
A detainee's claim that while in jail she was denied food and water and access to her family is not a cruel and unusual punishment claim because no question of cruel and unusual punishment arises when a person has not been tried, convicted, and sentenced. Jacob v. Johnny, [2012] FMSC 15; 18 FSM Intrm. 226, 231 (Pon. 2012).

Constitutional Law - Due Process; Criminal Law and Procedure - Arrest and Custody; Criminal Law and Procedure - Cruel and Unusual Punishment
A pretrial detainee has a stronger right than a convicted prisoner to liberty, and that right is protected by the Due Process Clause while a convicted prisoner's claims upon liberty have been diminished through due process so the convicted prisoner must rely primarily on the protections from cruel and unusual punishment. Jacob v. Johnny, [2012] FMSC 15; 18 FSM Intrm. 226, 231 (Pon. 2012).

Civil Procedure - Parties
A suit against a person "in his official capacity" is, and should be treated as, a suit against the entity that employs that officer. Therefore a suit against a person in his official capacity as director of the Pohnpei state police is and should be treated as a suit against the Pohnpei state police. Jacob v. Johnny, [2012] FMSC 15; 18 FSM Intrm. 226, 231-32 (Pon. 2012).

Civil Procedure - Dismissal - Before Responsive Pleading
When a plaintiff has not made any allegations that a defendant official directed or participated in the alleged acts that she complains of, she has not stated a claim against him in his individual or personal capacity and that defendant, in his individual capacity only, will be dismissed from the action. Jacob v. Johnny, [2012] FMSC 15; 18 FSM Intrm. 226, 232 (Pon. 2012).

Courts - Judges; Torts - Immunity
A judge is generally granted absolute immunity from civil liability for acts done in the exercise of a judicial function. A judge loses the cloak of judicial immunity in only two events: First, a judge is not immune from non-judicial actions, i.e. actions not taken in the judge's judicial capacity. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction. Jacob v. Johnny, [2012] FMSC 15; 18 FSM Intrm. 226, 232 (Pon. 2012).

Courts - Judges; Torts - Immunity
Few doctrines were more solidly established at common law than the immunity of judges for damages for acts committed within their judicial jurisdiction. Jacob v. Johnny, [2012] FMSC 15; 18 FSM Intrm. 226, 232 (Pon. 2012).

Courts - Judges; Torts - Immunity
When analyzing whether a judge was performing judicial acts, the factors determining whether an act by a judge is a "judicial" one relate to the nature of act itself (whether it is a function normally performed by a judge) and to the expectations of the parties (whether they dealt with the judge in his judicial capacity). Issuing eviction orders, denying motions, and the like are all acts or functions normally performed by a judge. Jacob v. Johnny, [2012] FMSC 15; 18 FSM Intrm. 226, 232 (Pon. 2012).

Courts - Judges; Torts - Immunity
When the Pohnpei Supreme Court is a court of general jurisdiction and when it is undisputed that the Pohnpei Supreme Court has jurisdiction over cases that the plaintiff filed there since she filed those cases there for the very reason that that court had jurisdiction, the plaintiff cannot allege that a Pohnpei justice acted in complete absence of jurisdiction when he issued orders in her cases even though she clearly alleges that he acted in excess of his jurisdiction. Jacob v. Johnny, [2012] FMSC 15; 18 FSM Intrm. 226, 232 (Pon. 2012).

Courts - Judges; Torts - Immunity
Judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction and are alleged to have been done maliciously or corruptly, and a judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors. Jacob v. Johnny, [2012] FMSC 15; 18 FSM Intrm. 226, 232 (Pon. 2012).

Courts - Judges; Torts - Immunity
Since a judge is absolutely immune from liability for his judicial acts even if those acts were done maliciously or corruptly or in excess of his jurisdiction or if his exercise of authority was flawed by the commission of grave procedural errors, he is thus immune from a plaintiff's compensatory damages claims. Jacob v. Johnny, [2012] FMSC 15; 18 FSM Intrm. 226, 233 (Pon. 2012).
Civil Procedure - Injunctions; Courts - Judges; Torts - Immunity
Judicial immunity does not prevent a judge from being subject to prospective injunctive relief when the judge has acted, not in complete absence of jurisdiction, but in excess of jurisdiction. Judicial immunity does not apply against the imposition of prospective injunctive relief because no common law precedent ever granted such immunity. Jacob v. Johnny, [2012] FMSC 15; 18 FSM Intrm. 226, 233 (Pon. 2012).

Civil Procedure - Dismissal - Before Responsive Pleading; Courts - Judges; Torts - Immunity
When a Pohnpei Supreme Court judge is immune from suit and thus from the imposition of compensatory damages, the compensatory damages claims against him must be dismissed. But when the plaintiff's factual allegations against the judge, viewed in the light most favorable to the plaintiff, are claims that the judge acted in excess of his jurisdiction and violated the plaintiff's civil rights in doing so, the court will not dismiss her claims against the judge for injunctive relief and for 11 F.S.M.C. 701(3) reasonable attorney's fees and costs incurred in obtaining that relief, since she alleges sufficient facts which, if proven that the judge acted in excess of his jurisdiction, state a claim for which the FSM Supreme Court can grant her some relief. Jacob v. Johnny, [2012] FMSC 15; 18 FSM Intrm. 226, 233-34 (Pon. 2012).

Attorney's Fees - Court-Awarded
Pro se litigants are not entitled to attorney's fees awards. Jacob v. Johnny, [2012] FMSC 15; 18 FSM Intrm. 226, 234 n.2 (Pon. 2012).

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

This comes before the court on 1) defendant Lucas Carlos's Motion to Dismiss, filed January 27, 2012; 2) Judge Johnny's Motion to Dismiss Based on Judicial Immunity, filed January 30, 2012; 3) Plaintiff's Memorandum in Opposition to Defendant Lucas Carlos' Motion to Dismiss Filed January 27, 2012, filed February 3, 2012; and 4) Plaintiff's Memorandum in Opposition to Defendant Nikontro Johnny's Motion to Dismiss Based on Judicial Immunity Filed January 30, 2012, filed February 3, 2012. The motions are granted only in part. The court's reasons follow.

I. Plaintiff's Allegations

For the purpose of the two pending Rule 12(b)(6) motions to dismiss, the court must accept plaintiff Rosa Rodriguez Jacob's allegations, summarized below, as true with all reasonable inferences to be made in her favor since she is the party opposing the motion to dismiss. Nahnken of Nett v. United States, [1996] FMSC 9; 7 FSM Intrm. 581, 586 (App. 1996); FSM v. Koshin 31[2008] FMSC 71; , 16 FSM Intrm. 15, 18 (Pon. 2008); FSM v. Fu Yuan Yu 096[2008] FMSC 41; , 16 FSM Intrm. 1, 2 (Pon. 2008). The court will then grant dismissal only if it appears to a certainty that no relief could be granted under any state of facts which could be proven in support of her claim. Nahnken of Nett, 7 FSM Intrm. at 586; Ladore v. Panuel, [2010] FMSC 39; 17 FSM Intrm. 271, 275 (Pon. 2010); Annes v. Primo, [2006] FMSC 16; 14 FSM Intrm. 196, 205 (Pon. 2006).

Jacob alleges that her uncle, Patricio Rodriguez, transferred to her a Kolonia Town residential leasehold, Lot No. 017-A-47, on which she made improvements; that she recorded the transfer; and that after her uncle's death the Board of Trustees, without notice or hearing, changed the lease to another person. She then filed suit, docketed as PCA No. 215-2005, in Pohnpei Supreme Court, naming that other person and the Board of Trustees as defendants. That suit was eventually assigned to Justice Mayceleen JD Anson who, on January 5, 2011, dismissed it without prejudice.

In June 2011, Justice Nikontro Johnny issued an order in PCA No. 215-2005, allegedly falsely stating that a hearing had been held and that Jacob had been present and evicting Jacob from Lot No. 017-A-47. Although she was never served the eviction order, Jacob was arrested by the Pohnpei state police, allegedly without due process, and held in jail over fourteen hours and not allowed to eat or drink or have contact with her family the whole time.

Jacob then filed a second Pohnpei Supreme Court suit, docketed as PCA No. 174-11, seeking to re-establish her rights to the Lot No. 017-A-47 leasehold. Justice Johnny sua sponte and without hearing, notice, or a pleading or a motion being filed by the defendant, dismissed this suit nine days after it was filed. Eight days later, Jacob moved to set aside that dismissal. Her motion was, without hearing, notice, or an opposition being filed by the defendant, denied four days later. Then the Pohnpei court disqualified her counsel, leaving her to act pro se. Jacob alleges further procedural irregularities both before and after, including the Pohnpei Supreme Court clerk's office's frequent or systematic misplacement of filings and missing papers in her case(s).

Jacob seeks declaratory relief about the parties' rights and liabilities; an order enjoining Justice Johnny from taking further action in PCA No. 215-2005 and PCA No. 174-2011 and an order quashing any and all orders he has issued in those cases; compensatory damages and costs; legal fees and costs under 11 F.S.M.C. 701(3); and any other relief to which she might be entitled.

II. The Lucas Carlos Motion

Defendant Lucas Carlos moves to dismiss the complaint against him because he was not present when Jacob was arrested and jailed; because police officers are entitled to qualified official immunity when they rely on an arrest warrant and therefore a probable cause determination by a judicial officer; and because Jacob's time in jail did not constitute cruel and unusual punishment since Jacob was not treated with deliberate indifference. Carlos contends that the complaint does not allege any misconduct by him, but only alleges the possibility of misconduct.[1]

A. Qualified Immunity

Carlos asserts that Jacob does not state a claim for relief because the state police have qualified official immunity when arresting a person pursuant to a facially-valid arrest warrant issued by a judicial officer. Carlos assumes that Jacob states that there was an arrest warrant. Jacob, however, alleges that Justice Johnny issued an eviction order that was never served on her. She does not allege that there ever was an arrest warrant. An eviction order is not an arrest warrant. In her opposition, Jacob supplies a supporting affidavit that avers that no arrest warrant was ever issued, that one does not exist, and that she was arrested without any warrant. Since this is matter outside the pleadings, she invites the court to not exclude that unrebutted evidence, to consider the motion to dismiss to be a summary judgment motion, and to grant her summary judgment on this claim. The court declines the invitation, for now.

Viewing Jacob's allegation that she was arrested and jailed without due process in the light most favorable to her with all reasonable inferences in her favor, the court can infer that Jacob alleges that she was arrested and held without a warrant. That being so, based on just Jacob's pleading, the qualified official immunity defense, which, as described by Carlos, requires a facially-valid arrest warrant, does not apply.

B. Jacob's Jail Time

Carlos contends that Jacob's claims about her detention must be subjected to a cruel and unusual punishment analysis but that her allegations do not state a cruel and unusual punishment claim because she has not shown that she was jailed under conditions posing a serious risk of substantial harm and that the government official knew of the serious risk and disregarded it or was deliberately indifferent towards it.

However, Jacob's claim that she was denied food and water and access to her family is not a cruel and unusual punishment claim. No question of cruel and unusual punishment arises when a person has not been tried, convicted, and sentenced. Paul v. Celestine, [1990] FMSC 2; 4 FSM Intrm. 205, 208 (App. 1990); Youp v. Pingelap, [1999] FMSC 35; 9 FSM Intrm. 215, 217 (Pon. 1999). Jacob had not been tried, convicted, and sentenced when she was arrested and jailed. Jacob was, if anything, a pretrial detainee. A pretrial detainee has a stronger right (than a convicted prisoner) to liberty, and that right is protected by the Due Process Clause, FSM Const. art. IV, § 3, while a convicted per's er's claims upon liberty have been diminished through due process so that person must rely primarily on article IV, sectionhich protects persons from cruel and unusual punishment. Plais v. Panuelo, 5 FSM IntM Intrm. 179, 190 (Pon. 1991) (when plaintiff was both a pretrial detainee on one charge and a convicted prisoner on others, his claims were analyzed under both due process and cruel and unusual punishment standards).

Analyzing Jacob's claim under a due process standard, the court cannot say that it appears to a certainty that no relief could be granted Jacob under any state of facts which could be proven in support of her claim that she was she was arrested and jailed in violation of due process and that she was denied food and water and access to her family. See, e.g., Warren v. Pohnpei State Dep't of Public Safety, [2005] FMSC 49; 13 FSM Intrm. 483, 491-92 (Pon. 2005). This claim thus cannot be dismissed.

C. Capacity

Carlos is being sued in his official capacity and in his individual capacity. He asserts that no liability can attach to him because he was not present when Jacob was arrested and jailed by Pohnpei state police officers and Jacob does not allege that he was there.

A suit against a person "in his official capacity" is, and should be treated as, a suit against the entity that employs that officer. Herman v. Bisalen, [2009] FMSC 9; 16 FSM Intrm. 293, 296 (Chk. 2009); see alsoMarsolo v. Esa, [2011] FMSC 19; 17 FSM Intrm. 480, 485-86 (Chk. 2011). Therefore a suit against Carlos in his official capacity is and should be treated as a suit against the Pohnpei state police.

The state police are alleged to have arrested Jacob without due process and jailed her for over fourteen hours without food or drink or contact with her family. Taking these allegations as true and viewing them in the light most favorable to Jacob, as the court must in deciding a Rule 12(b)(6) motion, Jacob states a claim upon which she may be granted relief against the Pohnpei state police. Therefore, Carlos, in his official capacity, will not be dismissed.

However, since Jacob has not made any allegations that Carlos directed or participated in the alleged acts that Jacob complains of, she has not stated a claim against him in his individual or personal capacity. Therefore Carlos, in his individual capacity only, will be dismissed from this action.

III. The Nikontro Johnny Motion

Pohnpei Supreme Court Associate Justice Nikontro Johnny moves to dismiss the complaint against him because his status as a judge gives him absolute immunity from civil liability for any of his acts done in the exercise of a judicial function. He contends that the acts that Jacob alleges he took were all acts done in his judicial capacity and are functions that are normally performed by a judge. He adds that the Pohnpei Supreme Court has original jurisdiction over all cases involving real estate disputes of the nature of those in PCA No. 215-2005 and PCA No. 174-2011.

A. Absolute Immunity from Civil Liability

"[A] judge is generally granted absolute immunity from civil liability for acts done in the exercise of a judicial function . .;. ." Jano v. King King, [1992] FMSC 27; 5 FSM Intrm. 388, 391 (Pon. 1992).

A judge loses the cloak of judicial immunity in only two events: "First, a jis noune from non-judicial actions, i.e. actions not tnot taken in the judge's judicial capacityacity. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction."

Id. at 391 (quoting Mireless v. Waco, [1991] USSC 137; 502 U.S. 9, 11-12[1991] USSC 137; , 112 S. Ct. 286, 288[1991] USSC 137; , 116 L. Ed. 2d 9, 14 (1991) (citations omitted)). Few doctrines were more solidly established at common law than the immunity of judges for damages for acts committed within their judicial jurisdiction. Damarlane v. Pohnpei Supreme Court Appellate Division, [2001] FMSC 66; 10 FSM Intrm. 116, 121 (Pon. 2001).

When analyzing whether Justice Johnny was performing judicial acts, "'the factors determining whether an act by a judge is a "judicial" one relate to the nature of act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.'" Bank of Guam v. O'Sonis, [1999] FMSC 26; 9 FSM Intrm. 106, 112 (Chk. 1999) (quoting Stump v. Sparkman, [1978] USSC 100; 435 U.S. 349, 362[1978] USSC 100; , 98 S. Ct. 1099, 1107[1978] USSC 100; , 55 L. Ed. 2d 331, 342 (1978) (relied on by the Jano court)). Justice Johnny's acts that Jacob seeks redress for are all acts or functions normally performed by a judge - issuing eviction orders, denying motions, and the like.

The second question in deciding whether immunity exists is whether the judge acted in "complete absence of all jurisdiction." The Pohnpei Supreme Court is, of course, a court of general jurisdiction. Pon. Const. art. #167; 4(2). JacobJacob does not tispute that the Pohnpei Supreme Court has jurisdiction over cases such as PCA No. 215-2005 and PCA No. 174-2011. After all, she filed those cases there fot verson. Therefore Jure Justice Johnny did not act in complete lete absence of jurisdiction, although Jacob clearly alleges that he acted in excess of his jurisdiction.

Thus the alleged nature of Justice Johnny's acts in PCA No. 215-2005 and No. 174-2011 are not such as to cause a loss of his immunity. Cases alleging similar impropriety have reached the same conclusion. "[J]udges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly," Bradley v. Fisher, 80 U.S. [1871] USSC 15; (13 Wall.) 335, 351, 20 L. Ed. 646, 651 (1872) quoted inStump, 435 U.S. at 355-56, 98 S. Ct. at 1104, 55 L. Ed. 2d at 338-39), and "[a] judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors," Stump, 435 U.S. at 359, 98 S. Ct. at 1106, 55 L. Ed. 2d at 341. Justice Johnny is thus absolutely immune from liability for his judicial acts even if those acts were done maliciously or corruptly or in excess of his jurisdiction or if his exercise of authority was flawed by the commission of grave procedural errors. O'Sonis, 9 FSM Intrm. at 112. Justice Johnny is thus immune from Jacob's compensatory damages claims.

B. Injunctive Relief Against a Judge

Jacob alleges that Justice Johnny acted in excess of his jurisdiction by acting in and issuing orders in cases not assigned to him; to have acted in excess of his jurisdiction by issuing orders without notice and authority or without a motion, even a sua sponte motion by the court, before the court; and to have acted in excess of his jurisdiction by acting in cases he had a conflict. In her opposition, Jacob further asserts that the other person to whom the Lot No. 017-A-47 leasehold was changed was Justice Johnny's close personal friend with whom he breakfasted daily and therefore Justice Johnny should have been disqualified from PCA No. 215-2005 and PCA No. 174-2011 because his close personal friend was a party-defendant in both cases. This assertion is supported by an attached affidavit, and, since it is matter outside the pleadings, Jacob invites the court to consider Justice Johnny's motion to dismiss as a summary judgment motion and grant her summary judgment on her claims against him. The court will decline this invitation.

Judicial immunity does not prevent a judge from being subject to prospective injunctive relief when the judge has acted, not in complete absence of jurisdiction, but in excess of jurisdiction. See, e.g., Ruben v. Petewon, [2008] FMSC 34; 15 FSM Intrm. 605, 608-09 (Chk. 2008); O'Sonis, 9 FSM Intrm. at 112-13. Judicial immunity does not apply against the imposition of prospective injunctive relief because no common law precedent ever granted such immunity. O'Sonis, 9 FSM Intrm. at 113 (relying on Pulliam v. Allen, [1984] USSC 97; 466 U.S. 522, 104 S. Ct. 1970, 80 L. Ed. 2d 565 (1984)).

For example, the court has concluded that a defendant judge enjoyed absolute official immunity, but granted injunctive relief against the defendant judge, including fee and cost awards. In Ruben v. Petewon, [2008] FMSC 34; 15 FSM Intrm. 605, 608-09 (Chk. 2008), when a Chuuk State Supreme Court judge clearly acted grossly in excess of his jurisdiction by issuing orders in a case dismissed with prejudice by the (other) judge to which it had been assigned; by granting relief from judgment for a party when no motion for relief had been filed or served; and by issuing orders without or with little notice evicting "non-parties" and compelling their compliance to orders they were then denied opportunity to challenge, the FSM Supreme Court granted the plaintiffs preliminary, Ruben v. Petewon, [2005] FMSC 40; 13 FSM Intrm. 383, 388-90 (Chk. 2005), and permanent injunctive relief against the judge. Ruben, 15 FSM Intrm. at 608. The plaintiffs were thus entitled to a judgment as a matter of law on their civil rights claim for attorney's fees and costs under 11 F.S.M.C. 701(3) for securing the injunction in that case (but not that for work in the related state court cases). Ruben, 15 FSM Intrm. at 609.

And in Bank of Guam v. O'Sonis, [1999] FMSC 26; 9 FSM Intrm. 106, 110-11, 113 (Chk. 1999), when a Chuuk State Supreme Court judge clearly acted in excess of his jurisdiction by presiding over a probate case he should have been disqualified from because he had previously represented a party in substantially the same matter; by issuing and seeking to enforce writs of execution on a non-party who was denied an opportunity to be heard or intervene on the ground it was a non-party; and by acting when he had a personal bias against that non-party, that "non-party" obtained a permanent injunction in the FSM Supreme Court in which it successfully contended that the judge and another defendant had violated its civil rights. O'Sonis, 9 FSM Intrm. at 113. And, although the state court judge had absolute official immunity, the FSM court concluded that the judge was liable, under 11 F.S.M.C. 701(3), for costs and reasonable attorney's fees incurred in obtaining the injunction against the state court judge. O'Sonis, 9 FSM Intrm. at 113.

Justice Johnny is immune from suit and thus from the imposition of compensatory damages. The compensatory damages claims against him must be dismissed. But Jacob's factual allegations against Justice Johnny, viewed in the light most favorable to Jacob, are claims that Justice Johnny acted in excess of his jurisdiction and violated Jacob's civil rights in doing so. Jacob's claim against Justice Johnny for injunctive relief and, under 11 F.S.M.C. 701(3), for reasonable attorney's fees[2] and costs incurred in obtaining that relief, are therefore not dismissed since she alleges sufficient facts which, if proven that Justice Johnny acted in excess of his jurisdiction, state a claim for which the FSM Supreme Court can grant some relief.

IV. Conclusion

Accordingly, Lucas Carlos, in his individual capacity only, is dismissed without prejudice, and all claims against Justice Nikontro Johnny, except those seeking injunctive relief, are dismissed.

Their motions to dismiss having been denied in part, defendants Carlos and Johnny have ten days to file their answers. FSM Civ. R. 12(a).

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^[1] Carlos also asserts compliance with Rule 6(d) since he made a reasonable effort to obtain Jacob’s agreement to his motion but could not contact her in the time available because her pleadings did not contain a telephone number for her. Since every summons signed by the clerk should "state the name, address and telephone number of the plaintiff’s attorney or trial counselor, if any, otherwise the plaintiff’s address and telephone number," FSM Civ. R. 5(d), and since the court clerk is supposed to "determine before filing that a paper subsequent to the summons and complaint has a certificate of service and contains the mailing address and telephone number of the party filing the paper or the party’s attorney," FSM GCO 1992-3, the clerk apparently overlooked the telephone number’s omission more than once. The court will not penalize a party for a court employee’s omission. Panuelo v. Amayo, [2004] FMSC 13; 12 FSM Intrm. 365, 372 (App. 2004) (when clerk’s office failed to serve trial notice on pro se litigant, reversal on due process grounds required); Kosrae Island Credit Union v. Obet, [1995] FMSC 32; 7 FSM Intrm. 193, 194 (App. 1995) (when, because of a court employee’s faulty instructions, appellant failed to timely and properly file his notice of appeal in the FSM Supreme Court trial division on Kosrae in addition to filing in the Kosrae State Court, appeal’s dismissal was unwarranted).

^[2] The court notes that so far Jacob has been acting pro se and that pro se litigants are not entitled to attorney’s fees awards. Berman v. Pohnpei, [2011] FMSC 6; 17 FSM Intrm. 360, 376 (App. 2011) (attorney’s fee awards should not be made to pro se litigants regardless of whether they are lawyers or lay persons).