Rolle v. Girardi
MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION; Judge Shields' R&R (Docket Entry 16) is ADOPTED in its entirety and this case is DISMISSED WITH PREJUDICE. The Clerk of the Court is directed to mark this case CLOSED. So Ordered by Judge Joanna Seybert on 3/4/2016. C/M;C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
Nehemiah Rolle, pro se
909 3rd Avenue 6096
New York, NY 10150
Eric T. Schneiderman, Esq.
Ralph Pernick, Esq.
New York State Attorney General
200 Old County Road, Suite 240
Mineola, NY 11501
SEYBERT, District Judge:
Girardi’s (“Defendant”) motion to dismiss the Complaint (Docket
Defendant’s motion. (Docket Entry 16.) For the following reasons,
the Court ADOPTS Judge Shields’ R&R in its entirety.
Pro se Plaintiff Nehemiah Rolle (“Plaintiff”) commenced
this action pursuant to 42 U.S.C §§ 1983 and 1985, claiming that
deprived Plaintiff of his rights under the First, Fourth, Fifth,
Sixth, Seventh, Eighth, Ninth, Tenth, Thirteen, and Fourteenth
Amendments of the United States Constitution.
Defendant moved to dismiss the Complaint on April 30,
2015, and the Court referred Defendant’s motion to Judge Shields
for an R&R on whether the motion should be granted.
On December 30, 2015, Judge Shields issued her R&R.
(Docket Entry 16.)
The R&R recommends that the Court grant
Defendant’s motion and dismiss this case because judges have
absolute immunity for acts performed in their judicial capacity,
and all of Plaintiff’s claims stem from actions Defendant took in
his role as a judge.
(R&R at 7, 9.)
On February 8, 2016, Plaintiff filed objections to Judge
Plaintiff objects to Judge Shields’ jurisdiction over this1 case
and argues that Judge Shields misapplied the doctrine of judicial
(See Objections at 1, 7.)
“When evaluating the report and recommendation of a
magistrate judge, the district court may adopt those portions of
the report to which no objections have been made and which are not
The Court need not address Plaintiff’s jurisdictional argument
because Defendant’s motion to dismiss was properly referred to
Judge Shields for and R&R on October 13, 2015 pursuant to
Federal Rule of Civil Procedure 72(b).
Walker v. Vaughan, 216 F. Supp. 2d 290, 291
(S.D.N.Y. 2002) (citation omitted).
A party may serve and file
specific, written objections to a magistrate judge’s report and
recommendation within fourteen days of receiving the recommended
See FED. R. CIV. P. 72(b)(2).
Upon receiving any
timely objections to the magistrate judge’s recommendation, the
district “court may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge.”
U.S.C. § 636(b)(1)(C); see also FED. R. CIV. P. 72(b)(3).
that objects to a report and recommendation must point out the
specific portions of the report and recommendation to which they
See Barratt v. Joie, No. 96-CV-0324, 2002 WL 335014, at
*1 (S.D.N.Y. Mar. 4, 2002) (citations omitted).
When a party raises an objection to a magistrate judge’s
report, the Court must conduct a de novo review of any contested
sections of the report.
815, 817 (S.D.N.Y. 1991).
See Pizarro v. Bartlett, 776 F. Supp.
But if a party “makes only conclusory
arguments, the Court reviews the Report and Recommendation only
for clear error.”
Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51
(E.D.N.Y. 2008) (internal quotation marks and citation omitted).
Furthermore, even in a de novo review of a party’s specific
objections, the Court ordinarily will not consider “arguments,
case law and/or evidentiary material which could have been, but
Kennedy v. Adamo, No. 02-CV-1776, 2006 WL 3704784, at
*1 (E.D.N.Y. Sept. 1, 2006) (internal quotation marks and citation
Defendant principally objects to the R&R on the grounds
that Judge Shields applied the doctrine of judicial immunity too
The Court disagrees.
“Section 1983 suits for damages are absolutely barred
against judicial actors for actions performed in their official
capacities.” Hodges v. Mangano, 28 F. App’x 75, 77 (2d Cir. 2002);
Young v. Selsky, 41 F.3d 47, 51 (2d Cir. 1994) (“Judges enjoy
absolute immunity from personal liability for ‘acts committed
within their judicial jurisdiction.’”) (quoting Pierson v. Ray,
386 U.S. 547, 554, 87 S. Ct. 1213, 1217, 18 L. Ed. 2d 288 (1967).
Judge are absolutely immune for their official acts, because
“[w]ithout insulation from liability, judges would be subject to
harassment and intimidation and would thus ‘lose that independence
without which no judiciary can either be respectable or useful.’”
Id. (quoting Butz v. Economou, 438 U.S. 478, 509, 98 S. Ct. 2894,
2912, 57 L. Ed. 2d 895 (1978)).
Here, Judge Shields correctly
outlined in her R&R that the offending actions Defendant took
during the trial at issue were all undertaken in his official
capacity as a Judge.
(See R&R at 2-3.)
Plaintiff cannot point to
any specific conduct in the Complaint to which the doctrine of
Objection is OVERRULED and Judge Shields’ R&R is adopted in its
Leave to Amend
The Second Circuit has stated that “[w]hen a motion to
dismiss is granted, the usual practice is to grant leave to amend
the complaint.” Hayden v. Cnty. of Nassau, 180 F.3d 42, 53 (2d
Cir.1999); see also FED. R. CIV. P. 15(a)(2) (“The court should
“Nonetheless, courts may deny leave to replead where amendment
qualifies as futile.”
Herbert v. Delta Airlines, No. 12–CV–1250,
2014 WL 4923100, at *5 (E.D.N.Y. Sept. 30, 2014) (citing Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).
Here, since all of
Plaintiff’s claims relate to the actions that a judge took acting
in his official capacity, leave to amend is DENIED as futile.
Judge Shields’ R&R (Docket Entry 16) is ADOPTED in its
entirety and this case is DISMISSED WITH PREJUDICE.
The Clerk of
the Court is directed to mark this case CLOSED.
4 , 2016
Central Islip, New York
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
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