JARVIS v. GLIOTTONE et al
MEMORANDUM OPINION filed. Signed by Judge Freda L. Wolfson on 8/6/2015. (eaj)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 14-7766 (FLW)
HENRY GLIOTTONE, et al.,
This Matter having been opened by Defendants’ motion to dismiss Plaintiff’s Complaint
with Prejudice against the Honorable Philip A. Borow, J.M.C. on the basis of judicial immunity.
(ECF No. 5.) Plaintiff, proceeding pro se, has filed his opposition (ECF No. 11), and
Defendants’ thereafter filed a letter memorandum in reply. (ECF No. 10.) For the reasons
explained herein, the Court grants Defendants’ motion to dismiss with prejudice the Complaint
against Judge Borow.
The Court recounts only those facts relevant to the instant motion to dismiss. Plaintiff’s
section 1983 claims against Judge Borow arise from Judge Borow’s alleged role in issuing the
warrant that resulted in Plaintiff’s arrest. In his Second Amended Complaint, 1 submitted on
Plaintiff appears to have amended his Complaint once prior to removal. (ECF No. 1, Notice of
Removal at ¶ 3.) After Defendants removed the case to federal court, Plaintiff filed a motion to
amend his Complaint, (ECF No. 18), which was granted on May 18, 2015. (ECF No. 27).
Plaintiff’s Second Amended Complaint was filed on June 22, 2015. (ECF No. 34.) Defendants
note in their moving papers that Plaintiff’s initial Complaints do not mention Judge Borow
specifically and merely list him as a Defendant in the caption. (ECF No. 5, Br. at 1.) The Court,
February 25, 2015, Plaintiff alleges the following regarding Judge Borow’s participation in the
alleged violation of his rights:
[Judge] Philip Borow affirmed the arrest over a telephone
without investigating physical evidence and verbal, written, or
recorded statements from an alleged victim in his presence. Philip
[A]. Borow[’s] signature is found to be present on the CDR2
complaint warrants determining probable cause 5 days after the
(ECF No. 34, Second Am. Compl. at 5; see also Second. Am. Compl. at 7 (same).)
In his First Amended Complaint, Plaintiff asks for damages in the amount of 15.5 million
dollars and “relief of an injunction against all police agencies in the State of [New Jersey] against
retaliation and a restraining order because I fear for life and liberties.” (ECF No. 1-1, at 14.) In
his Second Amended Complaint, Plaintiff appears to refer to his First Amended Complaint and
states the following about the relief he is seeking: “The Plaintiff sought an injunction and
declaratory relief, compensation, punitive damages, redress, and admonishment – the officers
violated custom and usage.” (ECF No. 34, at 8.) Neither Amended Complaint, however,
requests injunctive or declaratory relief against Judge Borow.
Plaintiff has sued Judge Borow for signing the warrant for Plaintiff’s arrest over the
phone, allegedly without first investigating the allegations or requiring the presence of the
victim. It is well settled, however, that judges are absolutely immunized from a civil rights suit
for money damages arising from their judicial acts. Mireles v. Waco, 502 U.S. 9, 9, 112 S.Ct.
286, 116 L.Ed.2d 9 (1991) (per curiam); Stump v. Sparkman, 435 U.S. 349, 356–57, 98 S.Ct.
1099, 55 L.Ed.2d 331 (1978); Kwasnik v. Leblon, 228 F. App'x 238, 243 (3d Cir. 2007) (“A
however, assesses the allegations against Judge Borow as stated more specifically Plaintiff’s
Second Amended Complaint.
judicial officer in the performance of his or her duties has absolute immunity from suit. 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, 435 U.S. at 357 (citations omitted). Absolute
immunity for judicial acts applies equally to municipal court judges. See, e.g., Figueroa v.
Blackburn, 208 F.3d 435 (3d Cir. 2000).
There are only two circumstances in which a plaintiff can overcome judicial immunity:
“First, a judge is not immune from liability for nonjudicial 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.” Mireles, 502 U.S. at 11–12 (internal citations
omitted). In determining whether judicial immunity applies, the court “must decide whether the
Complaint set forth allegations that, taken as true, establish that the application of an exception
to the doctrine of absolute judicial immunity is above the speculative level.” Kirkland v. DiLeo,
581 F. App’x 111, 114–15 (3d Cir. 2014) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
Judicial immunity also specifically applies to judicial errors in issuing warrants. See,
e.g., Johnson v. Provenzano, No. 12-1253, 2014 WL 7011545, at *4 n.3 (D.N.J. Dec. 11, 2014);
Wolchesky v. Beckenstein, No. 15-1721, 2015 WL 2250485, at *5 (D.N.J. May 13, 2015). Thus
even if the issuance of the warrant by Judge Borow was later found to be improper or in error,
those rulings would not give rise to civil liability since judicial immunity applies to all judicial
rulings, even those that are later determined to be mistaken. 2 See Gallas v. Supreme Court of
Pennsylvania., 211 F.3d 760, 769 (3d Cir. 2005).
Here, Plaintiff’s allegations against Judge Borow arise from his issuance of an arrest
warrant, which is plainly a judicial act, and Judge Borow is entitled to absolute immunity for that
conduct in an action for damages. 3 The Court notes that Judge Borow also appears to have been
acting pursuant to the New Jersey Rules Governing Criminal Practice. See N.J. Ct. R. 3:2-3(b)
(“A judge may issue an arrest warrant on sworn oral testimony of a law enforcement applicant
who is not physically present. Such testimony may be communicated to the applicant to the
judge by telephone, radio or other means of electronic communication.”). Because Judge Borow
has absolute immunity for the judicial acts described in Plaintiff’s Complaint, the Court
dismisses with prejudice the Complaint against Judge Borow.
For the reasons described herein, the Complaint is dismissed with prejudice as to Judge
Borow. An appropriate Order follows.
_/s Freda L. Wolfson_____
Freda L. Wolfson, U.S.D.J.
Date: __August 6__________, 2015
In his opposition brief, but not in his Complaint, Plaintiff contends that Judge Borow show[ed]
favoritism” toward the arresting officers in issuing the warrant. (ECF No. 11, at 1.) Even if
Plaintiff alleged that Judge Borow acted with an improper motive, such allegations would not
defeat judicial immunity for judicial acts. Allegations that actions were undertaken with an
improper motive diminishes neither their character as judicial actions nor the judge's immunity.
See Forrester v. White, 484 U.S. 219, 227 (1988).
Plaintiff’s First and Second Amended Complaint do not seek injunctive or declaratory relief
against Judge Borow.
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