Sun v. Pollak

Filing 6

MEMORANDUM AND ORDER, In line with the foregoing, pltff's complaint is dismissed with prejudice, and without leave to amend. Although pltff paid the filing fee to commence this action, the Court certifies, pursuant to 28 USC sec. 1915(a)(3), tha t any appeal would not be taken in good faith, and, therefore, in forma pauperis status is denied for the purpose of an appeal. The Clerk of Court is directed to enter judgment accordingly, and to close this case. (Ordered by Judge Eric N. Vitaliano on 4/06/2017) c/m Fwd. for Judgment. (Galeano, Sonia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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XIU JIAN SUN,

Plaintiff.
-against17-cv-1570 (ENV) (LB)
CHERYLL. POLLAK,
Defendant.

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VITALIANO, D.J.

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On March 20, 2017, pro se plaintiff Xiu Jian Sun commenced this action against nit d
States Magistrate Judge Cheryl L. Pollak, who sits in the Eastern District of New York. JCF
Dkt. No. 1. Plaintiff paid the statutory filing fee, but appears prose. See Mar. 20, 2017 Flin
Fee Receipt. For the reasons set forth below, the action is dismissed with prejudice.
Background
Sun identifies himself as "god's servant" and ''the spiritual Adam," and asserts that
"Jehovah" instructed him to sue Magistrate Judge Pollak, whom he dubs "Pharisees." E

D t.

No. 1 at 1. The complaint does not plead any facts concerning Judge Pollak, nor does it
articulate any cognizable cause of action, nor does it request any relief aside from the
appointment of a Mandarin Chinese interpreter for any court proceedings. See id. at 1-2.
However, since plaintiff attached to the complaint a copy of a report and recommendatio th
Judge Pollak issued, on March 2, 2017, in a separate action brought by him, it would app art at
Sun seeks to sue Judge Pollak over the issuance of that report and recommendation. Id. at 3- . 1

The action in which Magistrate Judge Pollak entered that report and recommendation
captioned Sun v. Cheung, No. 16-cv-5734 (E.D.N.Y.), was, on this date, also dismiss d.

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As a prefatory note, this is the fifth action that plaintiff has filed in this district aga nst
judges, judicial employees, and lawyers. All of the previous four actions have been dismi se
either as frivolous or for failure to prosecute. See Sun v. Cheung, No. 16-cv-5734, slip op
(E.D.N.Y. Apr. 6, 2017) (dismissed for failure to prosecute); Sun v. Dillon, No. 16-cv-527 , sip
op. (E.D.N.Y. Oct. 5, 2016) (dismissed as frivolous); Sun v. Katzmann, No. 16-cv-3937, sip
(E.D.N.Y. Aug. 2, 2016) (same); Sun v. Cavallo, No. 16-cv-1083, slip op. (E.D.N.Y. Mar. 19,
2016) (same), appeal dismissed, No. 16-950 (2d Cir. Aug. 12, 2016).
Standard of Review
A pro se complaint, "however inartfully pleaded, must be held to less stringent st d
than formal pleadings drafted by lawyers." Erickson v. Pardus, 55 l U.S. 89, 94, 127 S. Ct.
2197, 2200, 167 L. Ed. 2d 1081 (2007) (citation omitted). Such a complaint should "be li er ly
construed," id. (citation omitted), and "interpreted 'to raise the strongest arguments that [i]
suggest[s],"' Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citation omitted).
Nonetheless, a pro se complaint must still plead sufficient facts to state a claim "that is pl usi le
on its face." See Teichmann v. New York, 769 F.3d 821, 825 (2d Cir. 2014) (quoting Ash rofi v.
Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009)). ''A claim ha fa 'al

plausibility when the plaintiff pleads factual content that allows the court to draw the reas na le
inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678
(citation omitted).
At the pleadings stage, the court must assume the truth of "all well-pleaded,
nonconclusory factual allegations" in the complaint. Kiobel v. Royal Dutch Petroleum Co., 6 1
F.3d 111, 124 (2d Cir. 2010) (citing Iqbal, 556 U.S. at 678 and Selevan v. NY. Thruway
584 F.3d 82, 88 (2d Cir. 2009)). Although all factual allegations contained in the compl

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assumed to be true, that tenet is "inapplicable to legal conclusions." Iqbal, 556 U.S. at 67$.
corollary, a court generally should not dismiss a pro se complaint without granting leave t

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amend, so long as "a liberal reading of the complaint gives any indication that a valid clai
might be stated." Cuoco v. Moritsugu, 222 F .3d 99, 112 (2d Cir. 2000) (quoting Gomez v. US A

Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)).
These principles notwithstanding, a district court may dismiss a pro se action sua

sponte-even if the plaintiff has paid the requisite filing fee-if it determines that the actir i
frivolous. See Fitzgerald v. First East Seventh Street Tenants Corp., 221 F .3d 363, 363-6f (2
Cir. 2000). Put simply, "[a]n action is frivolous if it lacks an arguable basis in law and far- .e.,
where it is 'based on an indisputably meritless legal theory' or presents 'factual contentior
[that] are clearly baseless."' Scanlon v. Vermont, 423 F. App'x 78, 79 (2d Cir. 2011) (qu tin

Neitzke v. Williams, 490 U.S. 319, 327, 109 S. Ct. 1827, 1833, 104 L. Ed. 2d 338 (1989)); see
Denton v. Hernandez, 504 U.S. 25, 32-33, 112 S. Ct. 1728, 1733-34, 118 L. Ed. 2d 340 (1992 ;
Livingston v. Adirondack Beverage Co., 141F.3d434, 437 (2d Cir. 1998). For example, '[a]
complaint will be dismissed as 'frivolous' when 'it is clear that the defendants are immun fr m
suit."' Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999) (quoting Neitzke, 490 U.S. at 327.
Discussion
With these standards in mind, under even the most liberal review, the Court cannot
discern what legally cognizable harm Sun supposedly suffered, what acts of Judge Pollak are
blamed as the cause of any harm, or what rights of his were allegedly infringed. To the eren
that plaintiff seeks to sue Magistrate Judge Pollak for issuing a report and recommendatir i a
case that was before her as a magistrate judge, any such suit is barred by judicial immunir ' It
is well settled," of course, "that judges generally have absolute immunity from suits for mon y

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damages for their judicial actions." Shtrauch v. Dowd, 651 F. App'x 72, 73 (2d Cir. 2016
(quoting Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009)).
As Sun should have been able to divine from the dismissal of prior actions, this ')
immunity is an immunity from suit, not just from the ultimate assessment of damages,"
not overcome by allegations of bad faith or malice," nor can a judge "'be deprived of i
because the action [she] took was in error ... or was in excess of [her] authority."' Mire/ s v.

Waco, 502 U.S. 9, 11-13, 112 S. Ct. 286, 288, 116 L. Ed. 2d 9 (1991) (citations omitted).
Furthermore, the Federal Courts Improvement Act of 1996 extended judicial immunity to
actions seeking prospective injunctive relief-unless, that is, a declaratory decree was vio ate or
declaratory relief was unavailable, neither of which is alleged here. See Federal Courts
Improvement Act of 1996, § 309(c), Pub. L. No. 104-317, 110 Stat. 3847, 3853 (1996)
(amending 42 U.S.C. § 1983) ("in any action brought against a judicial officer for an act
omission taken in such officer's judicial capacity, injunctive relief shall not be granted un ess
declaratory decree was violated or declaratory relief was unavailable"); Huminski v. Cors ne ,
396 F.3d 53, 74 & n.23 (2d Cir. 2005); see also Shtrauch, 651 F. App'x at 73.
Applying this standard, the consequences are clear. Plaintifr s complaint must be
dismissed as frivolous because it is obvious that Magistrate Judge Pollak is immune from is
lawsuit. See Montero, 171 F .3d at 760; see also Tapp v. Champagne, 164 F. App'x I 06, 07 2d
Cir. 2006) (affirming sua sponte dismissal of claims against judges shielded by absolute
immunity). Moreover, since even the most liberal reading of the complaint gives no indi atio
that it could be amended to state a plausible claim against Judge Pollak, leave to amend
also be denied as futile. See Cuoco, 222 F.3d at 112.

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/s/ USDJ ERIC N. VITALIANO