Mays v. Sudderth

United States Court of Appeals,

Fifth Circuit.

No. 95-10591.

Melissa V. MAYS, Plaintiff-Appellee,

v.

Ben D. SUDDERTH; Thomas Pack; Erath County, Texas, Defendants,

and

David Coffee, Defendant-Appellant.

Oct. 15, 1996.

Appeal from the United States District Court for the Northern District of Texas.

Before GARWOOD, EMILIO M. GARZA and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

In this appeal we determine whether a sheriff is absolutely immune from suit and liability for

damages in a civil action brought against him pursuant to 42 U.S.C. § 1983 for injuries resulting from

the sheriff's attachment of the plaintiff in accordance with a judicial order, facially valid and within

the court's jurisdiction. The district court, in ruling on the defendant sheriff's motion for summary

judgment, held, in pertinent part, that the sheriff was only qualifiedly immune from suit and refused

to enter a judgment dismissing the plaintiff's § 1983 claims against the sheriff in his individual

capacity. We conclude that a government official's strict compliance with a facially valid judicial

order issued by a court acting within its jurisdiction clothes the official with the absolute judicial

immunity enjoyed by the judge issuing the order. Accordingly, we reverse the district court's ruling

that Sheriff Coffee is not entitled to absolute immunity, render partial summary judgment dismissing

the § 1983 action for damages against the Sheriff, and remand the case to the district court for further

proceedings.

I.

FACTS AND PROCEEDINGS BELOW

1
 This suit arises out of the arrest and detention of the plaintiff, Melissa Mays, pursuant to a

writ of attachment ordered by Judge Don Jones, a duly elected judge of the 266th Judicial District

of Texas, and issued by defendant Thomas Pack, the District Clerk of that court. During June and

July 1990, Judge Jones presided over the capital murder trial of Jerry Roland Garrett, who received

legal representation from defendant Ben D. Sudderth. In the course of that representation, defendant

Sudderth sought to subpoena Mays as a material defense witness and, at his request, defendant Pack

twice issued a subpoena to secure her appearance at trial. Both subpoenas, issued respectively on

June 11 and June 15, 1990, were returned unserved because they did not contain a correct address

for Mays.1

Mr. Garrett personally filed an application for writ of attachment, dated July 3, 1990,

requesting the court to issue a writ of attachment against two persons, other than Mays, who had

failed to appear at trial in accordance with subpoenas served upon them. Some time thereafter, Judge

Jones met in his chambers with defendants Sudderth and Pack concerning the application. Defendant

Sudderth orally informed Judge Jones that Mays was a material witness whose presence he had been

unable to secure although he had unsuccessfully attempted to serve her with a subpoena.2 Judge

1
The June 11, 1990 subpoena, which listed Mays' former address at 841 Bridle, Fort Worth,
Tarrant County, Texas, was returned unserved with the notation, "moved to Aledo [Parker
County, Texas]." The second subpoena, addressed to same street address in Aledo, Texas, was
returned unserved by the Parker County sheriff's office with the comment, "Aledo & Weatherford
said there is no address by the name of Bridle."
2
The parties' versions of what happened in this meeting are divergent. The plaintiff alleges that
defendant Sudderth informed Judge Jones that he had attempted to subpoena Mays and that she
had not appeared; that defendant Pack advised Judge Jones and Sudderth that the subpoenas had
been returned unserved; that Sudderth nonetheless insisted that a writ of attachment issue for
Mays despite the lack of a legal basis for her arrest; and that Judge Jones and defendants
Sudderth and Pack reached an agreement that Mays should be arrested despite the absence of
legal cause and the lack of a sworn application for her arrest. The defendants presented summary
judgment evidence that defendant Sudderth informed Judge Jones at the meeting that Mays was
aware of the attempts to serve her with a subpoena, was avoiding service and would be leaving
the state with her parents the next day. Consequently, Judge Jones instructed Sudderth to write
Mays' name on his application for writ of attachment, and ordered defendant Pack to prepare a
writ of attachment for Mays and the other individuals named in the application. For purposes of
our ruling, the disparities in the parties' versions of what happened in the judge's chamber are not
relevant.

2
Jones instructed Sudderth to add Mays' name in handwriting to the application for writ of attachment

and ordered Pack to issue a writ of attachment for Mays. A "writ of attachment on body," signed by

Judge Jones, was issued on July 11, 1990, ordering "any sheriff or constable within the State of Texas

... to forthwith attach the body of Malissa [sic] Mays ... and deliver said body safely to the possession

of David Coffee, Sheriff, Stephenville, Erath County, TX to be produced before the 266th Judicial

District Court of Erath County, Texas, on the 12th day of July, 19__ at 9:00 o'clock A.M. ..."

On July 11, 1990, Mays was taken into custody by Parker County Sheriff's deputies at her

parent's home in Aledo. She was subsequently picked up by deputies of Erath County Sheriff David

Coffee, the appellant herein, and booked into the Erath County jail pursuant to the writ of attachment

served on Sheriff Coffee's office. Mays alleges that defendant Coffee complied with the writ despite

knowledge that no legal basis existed for her attachment because the subpoenas that had been issued

for Mays had been returned unserved. Mays was held overnight at the Erath County jail3 and taken

to court the next morning where she testified briefly that she had no knowledge of facts relevant to

the case and was dismissed.

Mays brought a § 1983 action seeking compensatory and exemplary damages and injunctive

and declaratory relief against attorney Sudderth,4 District Clerk Pack, Sheriff Coffee and Erath

County, Texas.5 Pack and Coffee were sued in both their individual and official capacities. Mays

alleged that Sheriff Coffee, "knowing that the first two subpoenas naming the Plaintiff had been

3
Mays' parents were not permitted to post bail, although the defendants presented summary
judgment evidence that she was released to her parents' custody the next morning before her court
appearance.
4
The complaint against Sudderth was dismissed without prejudice pursuant to Rule 3.1(h) of
the Local Rules of the Northern District of Texas due to Mays' failure to move for default
judgment in light of Sudderth's failure to timely answer her complaint.
5
Mays additionally brought state law claims for assault, battery, intentional infliction of
emotional distress, false arrest and false imprisonment, under the district court's supplemental
jurisdiction. 28 U.S.C. § 1367. The district court found that the state tort claims against Pack
and Coffee were barred by judicial immunity as the claims were not based on any tortious conduct
of the defendants and arose solely from their compliance with Judge Jones' order of attachment.
This ruling is not before us.

3
returned unserved to the Erath County Sheriff's Department, and knowing that there was no legal

basis for the arrest of the Plaintiff, agreed and conspired with Sudderth, Pack and Judge Jones to

serve the unlawful Writ of Attachment and cause the illegal arrest of the Plaintiff."6 Defendants Pack,

Coffee and Erath County jointly filed a motion for summary judgment, arguing in pertinent part that

Pack and Coffee were absolutely immune from suit based on their execution of Judge Jones' order.

The district court granted partial summary judgment in favor of District Clerk Pack on the ground

that, in his individual capacity, he was absolutely immune from Mays' § 1983 damages claims. The

court held, however, that Sheriff Coffee enjoyed only qualified immunity and that plaintiff was entitled

to seek discovery on her § 1983 claims against him. Sheriff Coffee here appeals the district court's

denial of his summary judgment motion.

II.

DISCUSSION

A.

Appellate Jurisdiction and Standard of Review

Although ordinarily only final judgments are reviewable on appeal, 28 U.S.C. § 1291, "the

denial of a substantial claim of absolute immunity is an order appealable before final judgment, for

the essence of absolute immunity is its possessor's entitlement not to have to answer for his conduct

in a civil damages action." Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 2815, 86 L.Ed.2d

411 (1985)(citing Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982)); see

Chrissy F. by Medley v. Mississippi Dept. of Public Welfare, 925 F.2d 844, 848-49 (Kermit Constr.

Corp. v. Banco Credito y Ahorro Ponceno, 547 F.2d 1, 3 (1st Cir.1976) 5th Cir.1991). We thus have

jurisdiction to review Sheriff Coffee's claim that the district court erred in denying him summary

judgment on the ground that he is not absolutely immune from suit.7 We review the district court's

6
The district court held that Sheriff Coffee in his individual capacity is not liable on the denial
of bail claim. This ruling is not before this Court.
7
In Mitchell, the Court held that the denial of a claim of qualified immunity is an appealable
collateral order to the extent that the lower court decision turns on legal questions. Mitchell, 472

4
decision to deny summary judgment de novo, applying the same criteria employed by the court in the

first instance. See Johnson v. Odom, 910 F.2d 1273, 1276-77 (5th Cir.1990)(denial of qualified

immunity reviewed de novo ), cert. denied, 499 U.S. 936, 111 S.Ct. 1387, 113 L.Ed.2d 443 (1991).

Thus, we will reverse if "the pleadings, depositions, answers to interrogatories and admissions on file,

together with affidavits, if any, show that there is no genuine dispute as to any material fact and that

the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex

Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

B.

Absolute Immunity

Sheriff Coffee contends that he shares Judge Jones' absolute immunity from suit for claims

arising from the arrest and detention of Mays pursuant to the writ of attachment issued by the judge.

The district court, relying on a decision that recognized that "[s]heriffs enjoy qualified immunity from

damages for official actions taken in good faith," Hamill v. Wright, 870 F.2d 1032, 1036 (5th

Cir.1989), held that Coffee was entitled only to qualified immunity for his actions in executing Judge

Jones' order. The district court, however, erred in resting its analysis of the question solely on Sheriff

Coffee's identity as sheriff, rather than evaluating his role in the context of this case. In order to

determine "whether particular actions of government officials fit within a common law tradition of

absolute immunity, or only the more general standard of qualified immunity, [courts] have applied

a "functional approach,' ... which looks to "the nature of the function performed, not the identity of

the actor who performed it.' " Buckley v. Fitzsimmons, 509 U.S. 259, 269, 113 S.Ct. 2606, 2613,

125 L.Ed.2d 209 (1993)(quoting Forrester v. White, 484 U.S. 219, 229, 108 S.Ct. 538, 545, 98

L.Ed.2d 555 (1988)). Whether Sheriff Coffee is entitled to absolute immunity requires us to evaluate

U.S. at 530, 105 S.Ct. at 2817. The Court did not similarly limit the appealability of an
interlocutory order denying absolute immunity, see id. at 525, 105 S.Ct. at 2815, and we need not
determine at this juncture whether such a limitation is appropriate. The parties do not dispute that
Sheriff Coffee acted pursuant to a facially valid order issued by a judge acting within his
jurisdiction. The question presented here is whether, given such facts, Sheriff Coffee is absolutely
immune from suit and liability. This is a question of law. See Babcock v. Tyler, 884 F.2d 497,
501 (9th Cir.1989), cert. denied, 493 U.S. 1072, 110 S.Ct. 1118, 107 L.Ed.2d 1025 (1990).

5
his role in executing a facially valid order in light of the judicial process of which he was a part.

It is well established that judges enjoy absolute immunity for judicial acts performed in

judicial proceedings. Pierson v. Ray, 386 U.S. 547, 553-54, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288

(1967). "A judge will not be deprived of immunity because the action he took was in error, was done

maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has

acted in the "clear absence of all jurisdiction.' " Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct.

1099, 1105, 55 L.Ed.2d 331 (1978)(quoting Bradley v. Fisher, 13 Wall (80 U.S.) 335, 351, 20 L.Ed.

646 (1872)). This broad scope of immunity is afforded to judges for actions taken within their

jurisdiction because their role in the judicial system requires that they enjoy freedom to determine the

law unfettered by the threat of collateral attacks against the judge personally. Absolute judicial

immunity is justified "by the long-settled understanding that the independent and impartial exercise

of judgment vital to the judiciary might be impaired by exposure to potential damages liability."

Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435, 113 S.Ct. 2167, 2171, 124 L.Ed.2d 391

(1993); see also Burns v. Reed, 500 U.S. 478, 494, 111 S.Ct. 1934, 1943, 114 L.Ed.2d 547

(1991)("Absolute immunity is designed to free the judicial process from the harassment and

intimidation associated with litigation."); Pierson, 386 U.S. at 554, 87 S.Ct. at 1218 (absolute

immunity is afforded " "not for the protection or benefit of a malicious or corrupt judge, but for the

benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions

with independence and without fear of consequences.' ")(quoting Scott v. Stansfield, L.R. 3 Ex. 220,

223 (1868)).

Absolute immunity applies to the judicial acts of judges acting within their jurisdiction even

in suits brought pursuant to 42 U.S.C. § 1983, despite that statute's obvious focus on the unlawful

acts of state officials.8 See Pierson, 386 U.S. at 554, 87 S.Ct. at 1218 (section 1983 does not

8
42 U.S.C. § 1983 "purports to subject "[e]very person' acting under color of state law to
liability for depriving any other person in the United States of "rights, privileges, or immunities
secured by the Constitution and laws.' " Burns v. Reed, 500 U.S. 478, 484, 111 S.Ct. 1934,
1938, 114 L.Ed.2d 547 (1991).

6
abrogate absolute immunity afforded judges under the common law). Although the presumption in

§ 1983 actions is that government officials are protected in the exercise of their duties by qualified

rather than absolute immunity, see Burns v. Reed, 500 U.S. 478, 486-87, 111 S.Ct. 1934, 1939, 114

L.Ed.2d 547 (1991) (citations omitted), § 1983 " "is to be read "in harmony with general principles

of tort immunities and defenses rather than in derogation of them.' " Id. at 484, 111 S.Ct. at 1938

(citing Imbler v. Pachtman, 424 U.S. 409, 418, 96 S.Ct. 984, 989, 47 L.Ed.2d 128 (1976)). To

determine whether a government official is absolutely immune from suit, the court must "undertake[

] a considered inquiry into the immunity historically accorded the relevant official at common law and

the interests behind it.' " Antoine, 508 U.S. at 432-33, 113 S.Ct. at 2169-70 (quoting Butz v.

Economou, 438 U.S. 478, 508, 98 S.Ct. 2894, 2912, 57 L.Ed.2d 895 (1978). Thus, in Imbler v.

Pachtman, the Court concluded that the rationale underlying the absolute immunity accorded under

common law to prosecutors for the initiation of suit and presentation of the state's case "dictate[s]

the same absolute immunity under § 1983 that the prosecutor enjoys at common law."9 424 U.S. at

427, 96 S.Ct. at 993. The Court observed that such immunity is necessary to ensure "the vigorous

and fearless performance of the prosecutor's duty that is essential to the proper functioning of the

criminal justice system." Id. at 427-28, 96 S.Ct. at 993-94. In defining the parameters of

prosecutorial absolute immunity, however, the Court has found that prosecutors retain only qualified

immunity for giving legal advice to police, Burns, 500 U.S. at 492-94, 111 S.Ct. at 1942-43, for

participating in investigatory functions prior to establishing probable cause or initiating suit, Buckley,

509 U.S. at 274-75, 113 S.Ct. 2616-17, and for making out-of-court statements to the press. Id. at

277-78, 113 S.Ct. at 2618. In so concluding, the Court observed that the common law at the time

of § 1983's enactment did not provide absolute immunity for these functions. See Burns, 500 U.S.

9
The Court observed that "[t]he common-law immunity of a prosecutor is based upon the same
considerations that underlie the common-law immunities of judges and grand jurors acting within
the scope of their duties. These include concern that harassment by unfounded litigation would
cause a deflection of the prosecutor's energies from his public duties, and the possibility that he
would shade his decisions instead of exercising the independence of judgment required by his
public trust." Imbler, 424 U.S. at 422-23, 96 S.Ct. at 991.

7
at 493-94, 111 S.Ct. at 1943; Buckley, 509 U.S. at 275, 277, 113 S.Ct. at 2617-18.

When 42 U.S.C. § 1983 was enacted in 1871, the common law provided absolute immunity

to government officials in their execution of facially valid judicial orders entered by a court of

competent jurisdiction. As the Supreme Court observed that year in Erskine v. Hohnbach:

The duties of the collector in the enforcement of the tax assessed were purely ministerial. The
assessment, duly certified to him, was his authority to proceed, and, like an execution to a
sheriff, regular on its face, issued by a tribunal having jurisdiction of the subject-matter,
constituted his protection.

Whatever may have been the conflict at one time in the adjudged cases, as to the
extent of protection afforded to ministerial officers acting in obedience to process, or orders
issued to them by tribunals or officers invested by law with authority to pass upon and
determine particular facts, and render judgment thereon, it is well settled now, that if the
officer or tribunal possess jurisdiction over the subject-matter upon which judgment is passed,
with power to issue an order of process for the enforcement of such judgment, and the order
or process issued thereon to the ministerial officer is regular on its face, showing no departure
from the law, or defect of jurisdiction over the person or property affected, then, and in such
cases, the order or process will give full and entire protection to the ministerial officer in its
regular enforcement against any prosecution which the party aggrieved thereby may institute
against him, although serious errors may have been committed by the officer or tribunal in
reaching the conclusion or judgment upon which the order or process is issued.2
2
Savacool v. Boughton, 5 Wendell, 171; Earl v. Camp, 16 Id. 562; Chegaray v.
Jenkins, 5 New York, 376; Sprague v. Birchard, 1 Wisconsin, 457.

81 U.S. 613, 14 Wall. 613, 20 L.Ed. 745 (1871); see Savacool v. Boughton, 5 Wend. 171

(discussing cases).10

The significant reasons underlying the grant of absolute immunity to those officials who carry

out the facially valid orders of a court with proper jurisdiction are not difficult to discern.

10
Professors Prosser and Keeton have observed in their treatise on tort law that

[S]o long as [a warrant] is valid upon its face, the weight of authority probably is
that the officer is privileged to execute it even though he has personal knowledge
of facts which should prevent the arrest, and may safely leave all responsibility to
the court.16
16
People v. Warren, N.Y. 1843, 5 Hill 440; Watson v. Watson, 1 832, 9 Conn.
140; O'Shaughnessy v. Baxter, 1876, 121 Mass. 515; Heath v. Halfhill, 1989, 106 Iowa
11, 76 N.W. 522; Rice v. Miller, 1888, 70 Tex. 613, 8 S.W. 317; Second Restatement of
Torts, § 124, Comment b. Contra: Telefsen v. Fee, 1897, 168 Mass. 188, 46 N.E. 562;
Leachman v. Dougherty, 1876, 81 Ill. 324.

PROSSER AND KEETON ON TORTS, § 25, at 150 (5th ed. 1984).

8
"[E]nforcing or executing a court order is intrinsically associated with a judicial proceeding." Bush

v. Rauch, 38 F.3d 842, 847 (6th Cir.1994). As the Eighth Circuit has o bserved in addressing the

immunity afforded prison wardens for continuing to incarcerate a prisoner pursuant to a valid court

order, absolute immunity is essential to insure " "[t]he fearless and unhesitating execution of court

orders [ ] necessary if the court's authority and ability to function are to remain uncompromised.' "

Patterson v. Von Reisen, 999 F.2d 1235, 1240-41 (8th Cir.1993)(quoting Coverdell v. Dept. of

Social and Health Services, State of Washington, 834 F.2d 758, 765 (9th Cir.1987); see also Valdez

v. City and County of Denver, 878 F.2d 1285, 1288 (10th Cir.1989). Indeed, not only may the threat

of litigation impede an official's compliance with judicial orders, but "fear of bringing down litigation

on the [official] might color a court's judgment in some cases." Coverdell, 834 F.2d at 765 (9th

Cir.1987)(quoting Kermit Constr. Corp. v. Banco Credito y Ahorro Ponceno, 547 F.2d 1, 3 (1st

Cir.1976)). Moreover, because judges are absolutely immune from suit for judicial actions taken

pursuant to their jurisdiction, to deny similar protection to government officials executing their orders

would render the officials " "lightning rod[s] for harassing litigation aimed at judicial orders.' " Id.

at 1289 (quoting T & W Inv. Co. v. Kurtz, 588 F.2d 801, 802 (10th Cir.1978)); see Patterson, 999

F.2d at 1240; Coverdell, 834 F.2d at 765; Kermit Constr. Corp., 547 F.2d at 3. We note, moreover,

the unfairness of imposing liability in this context—an official charged with executing a facially valid

court order has no choice but to do so. Government officials "should not be required to make the

Hobson's choice between disobeying the court order or being haled into court to answer for

damages." Patterson, 999 F.2d at 1240; see also Valdez, 878 F.2d at 1289 (citing T & W Co., Inc.

v. Kurtz, 588 F.2d 801, 802 (10th Cir.1978)); United Steelworker's of America, AFL-CIO v. Bishop,

598 F.2d 408, 414 (5th Cir.1979); McCray v. Maryland, 456 F.2d 1, 5 n. 11 (4th Cir.1972).11 To

11
In Burns v. Reed, the Supreme Court denied absolute immunity to prosecutors for advising
police officers, observing that "it is incongruous to allow prosecutors to be absolutely immune
from liability for giving advice to the police, but to allow police officers only qualified immunity
for following the advice.... Ironically, it would mean that the police, who do not ordinarily hold
law degrees, would be required to know the clearly established law, but prosecutors would not."
500 U.S. at 495, 111 S.Ct. at 1944. In like vein, it is incongruous to shield the learned judge
from liability while exposing to suit the typically less-schooled official following his orders.

9
hold otherwise would require sheriffs and other court officers enforcing facially valid orders "to act

as pseudo-appellate courts scrutinizing the orders of judges." Id. at 1289. Such a result "is obviously

untenable." Henry v. Farmer City State Bank, 808 F.2d 1228, 1239 (7th Cir.1986).

Consequently, we conclude that an official acting within the scope of his authority is

absolutely immune from a suit for damages to the extent that the cause of action arises from his

compliance with a facially valid judicial order issued by a court acting within its jurisdiction. We

therefore apply this rule to the case at hand.

Ms. Mays concedes that Judge Jones acted within the scope of his jurisdiction and thus

enjoys absolute immunity from actions arising from his issuance of a writ of attachment to secure her

presence as a witness in a trial over which he presided. Moreover, there is no question that Sheriff

Coffee's conduct in arresting and detaining Mays was in compliance with this facially valid court order

compelling him to do so. Mays contends, however, that Sheriff Coffee's alleged knowledge that there

was no legal cause for the writ of attachment erodes any immunity the sheriff may have. Ms. Mays

has not cited any case denying absolute immunity to government officials complying with facially

valid court orders, and cases abound to the contrary. See, e.g., Bush, 38 F.3d at 847 (citing cases);

Valdez, 878 F.2d at 1288 (same); Henry, 808 F.2d at 1239 (same).12 Moreover, Mays makes no

12
Mays' reliance on Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986),
Brown v. Byer, 870 F.2d 975 (5th Cir.1989), Gay v. Wall, 761 F.2d 175 (4th Cir.1985), and
Crane v. State of Texas, 759 F.2d 412 (5th Cir.), amended in part on denial of rehearing, 766
F.2d 193 (5th Cir.), cert. denied, 474 U.S. 1020, 106 S.Ct. 570, 88 L.Ed.2d 555 (1985), is
misplaced. In Malley, the Supreme Court held that a police officer's discretionary act in seeking a
warrant was entitled only to qualified immunity irrespective of his success in obtaining the
warrant. 475 U.S. at 340-43, 106 S.Ct. at 1096-97; see also Barr v. Abrams, 810 F.2d 358, 362
(2nd Cir.1987)(distinguishing Malley because the investigators in Barr did not apply for the
warrant but simply executed it in a concededly proper manner). In Brown, this court affirmed a
judgment against a deputy constable who had altered a warrant issued for the arrest of an
individual sharing the plaintiff's name, 870 F.2d at 976-77, and the court questioned whether a
warrant thus altered could be considered "facially valid." Id. at 979. In Gay, the Fourth Circuit
held that the plaintiff stated a cause of action where he alleged that the police detained him
pursuant to a warrant after they learned that he was in fact innocent, 761 F.2d at 178-79, and thus
addressed conduct of the police beyond the scope of the arrest warrant. At issue in Crane was a
county's practice of issuing misdemeanor writs of capias through the clerk of court without an
initial finding of probable cause by a magistrate, 759 F.2d at 414; thus, the case concerned the
actions of government officials in the complete absence of a judicial order issued by a court of
competent jurisdiction.

10
claim that Sheriff Coffee was in possession of any information that was not known by the judge

issuing the writ of attachment. In effect, what Ms. Mays seeks is a requirement that Sheriff Coffee

act as an appellate court evaluating the legality of a decision issued by a judge trained in the law and

authorized to issue such orders. As we observed above, such a result is untenable.

In reversing, we note the limits of our decision. We do not hold that a state officer may never

be held liable for the unquestioning execution of a judicial directive. "There are limits to how

unlawful an order can be and still immunize the officer executing it." Turney v. O'Toole, 898 F.2d

1470, 1474 (10th Cir.1990). As the officer's immunity derives from that of the issuing judge, the

order must be one for which the judge is absolutely immune from suit. Id. Thus, we do not find that

a state official would be absolutely immune from suit based on compliance with an order issued by

a judge acting "in the clear absence of all jurisdiction." See Stump v. Sparkman, 435 U.S. 349, 357,

98 S.Ct. 1099, 1105, 55 L.Ed.2d 331 (1978). Moreover, an official acting outside the scope of his

authority does not enjoy absolute immunity for his actions. Turney, 898 F.2d at 1474 (citing Cok v.

Cosentino, 876 F.2d 1, 3 (1st Cir.1989), and Williams v. Wood, 612 F.2d 982, 985 (5th Cir.1980)).

Finally, our ruling does not address the liability of an officer whose conduct in executing a facially

valid judicial order exceeds the scope of that order.

III.

CONCLUSION

For the foregoing reasons, the district court's denial of summary judgment in favor of Sheriff

Coffee on appellee's § 1983 claims for damages against him in his individual capacity is reversed,

summary judgment is granted in favor of the Sheriff dismissing that suit insofar as it seeks damages,

and the case is remanded for further proceedings consistent with this opinion.

11