Wasser v. United States of America
MEMORANDUM DECISION AND ORDER, The United States removed the three cases to this Court under one notice of removal, and substituted itself as a deft. For the reasons set forth below, the cases are dismissed. The Court certifies pursuant to 28 USC sec . 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. (Terminating 4 Motion to Dismiss Case as Frivolous) Ordered by Judge Brian M. Cogan on 2/14/2013. c/m by chambers. Fwd. for Judgment. (Galeano, Sonia)
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IN CLERK'S c: ,
US DISTRICT COU!l i
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
FEB 1 5 2013
DECISION AND ORDER
13 Civ. 0793 (BMC)
-againstUNITED STATES OF AMERICA,
·COGAN, District Judge.
Plaintiff prose filed three actions in the Supreme Court of the State ofNew York,
County of Kings, each against a different judge of the United States Court of Appeals for the
Second Circuit. The United States removed the three cases to this Court under one notice of
removal, and substituted itself as defendant. See 28 U.S.C. § 2679(d)(l). For the reasons set
forth below, the cases are dismissed.
Plaintiffs underlying state court actions against the three Second Circuit judges pertain to
his appeal of this Court's decision in Wasser v. Battist;~, No. 12-CV-2120 (RRM) (JO) (E.D.N.Y.
May 4, 20 12), dismissing plaintiffs complaint. The Second Circuit dismissed plaintiffs appeal
for failure to pay the filing fee. Wasser v.
No. 12-2018 (2d Cir. July II, 2012).
Plaintiff thereafter commenced his state court actions by request for judicial intervention
and summons with notice; on the request form, he checked off the tort category "other
negligence," with "abuse of power" as the explanation. Plaintiff also checked off the box "other
tort," and explained "'they say I cane [sic] not sue." In all three cases, plaintiff executed and
filed, but did not serve, a summons with notice in which he stated that the nature of the action is
..bais [sic] harrsment [sic] & more." In his Motion Information Statement, plaintiff threatens,
among other things, "'If I do not gete [sic] my case in court soon, I am taking all 3 judge[s] to a
civil court for bais [sic] and I can prove it ... I have the right to sue in civil court that's what I
will do if it will take me 20 years I will fight it in civil court."
Courts must assume the truth of"all well-pleaded, nonconclusory factual allegations" in a
complaint. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d Ill, 123 (2d Cir. 2010) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009). A complaint must plead
"'enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007). Although "detailed factual allegations" are not
required, .. [a] pleading that offers 'labels and conclusions' or •a formulaic recitation of the
elements of a cause of action will not do."' Ashcroft, 556 U.S. at 662, 129 S. Ct. 1937, 1949
(quoting Twombly, 550 U.S. at 555, 127 S. Ct. 1955). Similarly, a complaint is insufficient to
state a claim "if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id.
(quoting Twombly. 550 U.S. at 557, 127 S. Ct. 1955).
It is axiomatic that prose complaints are held to less stringent standards than pleadings
drafted by attorneys, and the Court is required to read plaintiffs prose complaint liberally and
interpret it as raising the strongest arguments it suggests. See Erickson v. Pardus, 551 U.S. 89,
127 S. Ct. 2197 (2007); Triestrnan v. Fed. Bureau of Prisons, 470 F.3d 471 (2d Cir. 2006)
(citation and internal quotation marks omitted).
Here, plaintiff has brought suit against three federal judges for dismissing his appeal, an
act the judges took pursuant to their judicial authority. It is well-settled that judges have absolute
immunity from suit for judicial acts performed in their judicial capacities. See Mireles v. Waco,
502 U.S. 9, II, 112 S. Ct. 286 (1991) (per curiam) (finding that this absolute "judicial immunity
is not overcome by allegations of bad faith or malice," nor can a judge ..be deprived of immunity
because the action he took was in error ... or was in excess of his authority") (quoting Stump v.
Sparkman, 435 U.S. 349, 356, 98 S. Ct. 1099 (1978)); Bliven v. Hunt, 579 F.3d 204 (2d Cir.
2009); Huminski v. Corsones, 386 F.3d 116 (2d Cir. 2004). Moreover, in cases of judicial
immunity, a court may dismiss a complaint sua sponte, without affording a hearing or other
notice of dismissal. See Tapp v. Champagne, 164 Fed. App'x 106 (2d Cir. 2006) (summary
order) (affirming sua sponte dismissal of§ 1983 claims against judges protected by absolute
immunity); Fisch v. Consulate General of Republic of Poland, Nos. 11 Civ. 4182 (SAS), ll Civ.
4183 (SAS), 2011 WL 3847398 (S.D.N.Y. Aug. 30, 2011) (dismissing, sua sponte, claims
against four federal judges from suit under doctrine of judicial immunity).
Although pro se plaintiffs are ordinarily afforded an opportunity to amend their
complaint, see Tracy v. Freshwater, 623 F.3d 90 (2d Cir. 2010), leave may be denied where
amendment would be futile. See Cuoco v. Moritsugu, 222 F.3d 99 (2d Cir. 2000). Since
plaintiff could not add any plausible allegation to his complaint that would render his suit viable,
leave to amend is denied.
Accordingly, these cases are dismissed. The Court certifies pursuant to 28 U.S.C §
1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis
status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438,82 S. Ct.
Dated: Brooklyn, New York
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