United States District Court, S.D. Georgia, Waycross Division
THOMAS L. THOMAS, Plaintiff,
KAREN LAWSON; JANET BELL; VINCENT CULLOTTA; DAVID A. BASINSKI; and J. KELLY BROOKS, Defendants.
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE.
matter is before the Court for review of Plaintiff's
pro se Complaint and Motion to Proceed in Forma
Pauperis. After review, the Court DENIES Plaintiff's
Motion for Leave to Proceed in Forma Pauperis, (doc.
2). For the reasons which follow, I RECOMMEND the Court
DISMISS Plaintiff's Complaint, DENY Plaintiff's
request for injunctive relief, DIRECT the Clerk of Court to
CLOSE this case, and DENY Plaintiff in forma
pauperis status on appeal.
filed his Complaint on January 12, 2017, pursuant to 42
U.S.C. §§ 1983 through 1986. (Doc. 1.) In his
Complaint, which is the third cause of action Plaintiff has
filed in this Court contesting child custody proceedings
arising in the State of Ohio and in Brantley County, Georgia,
Plaintiff contends Defendants Lawson, Bell, Cullotta, and
Basinski, all of whom are or were judges in the State of
Ohio, and Defendant Brooks, a Brantley County Superior Court
Judge, acted outside of their judicial authority.
Specifically, Plaintiff avers Defendants Lawson and Bell
acted without subject matter jurisdiction by entering rulings
in an Ohio state custody proceeding after he had filed a
notice of removal in this Court. Plaintiff claims Defendants
Cullotta and Basinski refused to issue orders on certain of
his requests and that Defendant Basinski retaliated against
him by refusing to issue an order. Further, Plaintiff
maintains Defendant Brooks entered a final order denying his
motion for relief from judgment and ordered the clerk not to
forward Plaintiff's appeal by right to the Georgia Court
of Appeals. (Id. at pp. 6- 16.) Plaintiff seeks $10,
000, 000 in damages and the issuance of preliminary
injunctive relief against Defendants. (Id. at pp.
28 U.S.C. § 1915(a)(1), the Court may authorize the
filing of a civil lawsuit without the prepayment of fees if
the plaintiff submits an affidavit that includes a statement
of all of his assets and shows an inability to pay the filing
fee and also includes a statement of the nature of the action
which shows that he is entitled to redress. Even if the
plaintiff proves indigence, the Court must dismiss the action
if it is frivolous or malicious, or fails to state a claim
upon which relief may be granted. 28 U.S.C. §
1915(e)(2)(B)(i)-(ii); Grayson v. Mayview State
Hosp., 293 F.3d 103, 113 n.19 (3d Cir. 2002)
(non-prisoner indigent plaintiffs are “clearly within
the scope of § 1915(e)(2)”); Dutta-Roy v.
Fain, No. 1:14-CV-280-TWT, 2014 WL 1795205, at *2
(N.D.Ga. May 5, 2014) (frivolity review of indigent
non-prisoner plaintiff's complaint).
reviewing a Complaint on an application to proceed in
forma pauperis, the Court is guided by the instructions
for pleading contained in the Federal Rules of Civil
Procedure. See Fed. R. Civ. P. 8 (“A pleading
that states a claim for relief must contain [among other
things] . . . a short and plain statement of the claim
showing that the pleader is entitled to relief.”);
Fed.R.Civ.P. 10 (requiring that claims be set forth in
numbered paragraphs, each limited to a single set of
circumstances). Further, a claim is frivolous under Section
1915(e)(2)(B)(i) “if it is ‘without arguable
merit either in law or fact.'” Napier v.
Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (quoting
Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir.
1915 also “accords judges not only the authority to
dismiss a claim based on an indisputably meritless legal
theory, but also the unusual power to pierce the veil of the
complaint's factual allegations and dismiss those claims
whose factual contentions are clearly baseless.”
Bilal, 251 F.3d at 1349 (quoting Neitzke v.
Williams, 490 U.S. 319, 327 (1989)). Whether a complaint
fails to state a claim under Section 1915(e)(2)(B)(ii) is
governed by the same standard applicable to motions to
dismiss under Federal Rule of Civil Procedure 12(b)(6).
Thompson v. Rundle, 393 F.App'x 675, 678 (11th
Cir. 2010). Under that standard, this Court must determine
whether the complaint contains “sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff
must assert “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not” suffice. Twombly, 550 U.S. at 555.
analysis, the Court will abide by the long-standing principle
that the pleadings of unrepresented parties are held to a
less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v.
Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006)
(“Pro se pleadings are held to a less
stringent standard than pleadings drafted by
attorneys.”) (emphasis omitted) (quoting Hughes v.
Lott, 350 F.3d 1157, 1160 (11th Cir. 2003)). However,
Plaintiff's unrepresented status will not excuse mistakes
regarding procedural rules. McNeil v. United States,
508 U.S. 106, 113 (1993) (“We have never suggested that
procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed
Plaintiff's 42 U.S.C. §§ 1983 Through 1986
Claims Against Defendants in Their Capacities as Judicial
immunity bars Plaintiff's claims against Defendants in
their official capacities.Congress did not abrogate the doctrine
of judicial immunity when it enacted Section 1983. Judicial
immunity is an absolute immunity, and it applies even when a
judge acts maliciously. Bolin v. Story, 225 F.3d
1234, 1239 (11th Cir. 2000) (“Judges are entitled to
absolute judicial immunity from damages for those acts taken
while they are acting in their judicial capacity unless they
acted in the clear absence of all jurisdiction.”);
Stump v. Sparkman, 435 U.S. 349, 356 (1978) (holding
judicial immunity doctrine applies in Section 1983 actions).
Absolute immunity not only protects against liability but
also against a case going to trial at all. Harris v.
Deveaux, 780 F.2d 911, 914 (11th Cir. 1986) (citing
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). To
determine whether a judge is entitled to absolute immunity
from money damages under Section 1983, a two-part test was
established in Stump: 1) whether the judge dealt
with the plaintiff in a judicial capacity; and 2) whether the
judge acted in the “clear absence of all
jurisdiction.” Id. (quoting Stump,
435 U.S. at 357). The second prong of this test is
“only satisfied if a judge completely lacks subject
matter jurisdiction.” Id. at 916.
clearly complains about Defendants' actions or omissions
in their capacities as judicial officials in cases pending
before them in which Plaintiff was a named party. He fails to
make a plausible claim that Defendants acted in the clear
absence of jurisdiction. Plaintiff maintains Defendants
Lawson and Bell entered orders in the Ohio child custody
case, even though he had filed his notice of removal in this
Court. However, it appears the orders Defendants Lawson and
Bell entered in the Ohio proceedings were in response to
motions Plaintiff had filed in the Ohio proceedings after he
filed the notice of removal in this Court. (Docs. 1-11, 1-12,
1-13.) These Defendants did not act in a clear absence of all
jurisdiction. Plaintiff cannot complain about judicial
actions taken as a result of his filings and claim that