Ulloa v. McAvoy

Filing 10

MEMORANDUM-DECISION & ORDER: It is ordered that the # 7 Motion to Dismiss for Failure to State a Claim is GRANTED and plaintiff's # 1 Complaint is DISMISSED in its entirety with prejudice. Signed by Chief Judge Norman A. Mordue on 7/8/2011. (jmb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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Richard Enrique Ulloa,
Plaintiff,
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1:10-CV-1567 (NAM/RFT)

Thomas J. McAvoy,
Defendant.
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APPEARANCES:
Richard Enrique Ulloa
17902-052
Rensselaer County Jail
4000 Main Street
Troy, New York 12180
Plaintiff, pro se
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Office of United States Attorney
Michael S. Cerrone, Esq., Assistant United States Attorney
138 Delaware Avenue
Buffalo, New York 14202
Attorney for Defendant

Hon. Norman A. Mordue, Chief U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
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Defendant, United States District Judge Thomas J. McAvoy, moves (Dkt. No. 7) to
dismiss this pro se action for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). Richard
Enrique Ulloa, plaintiff in this action, was tried as a criminal defendant before Judge McAvoy on
seven counts of mail fraud under 18 U.S.C. § 1341. The trial commenced on December 28, 2010.
On December 30, 2010 a jury convicted Ulloa on all counts. See United States v. Ulloa, 1:10CR-321.

On December 28, 2010, the first day of trial, Ulloa filed the complaint herein. The only
allegations in the complaint that pertain to Judge McAvoy in any respect are as follows:
11. Judge McAvoy has ignored the fact the [sic] his court is NOT an
administrative court, that it is not an Admiralty court, and that it is and he flies
in his court the Army Military flag.
12. Judge McAvoy ignored all facts submitted and overruled all evidence.

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13. Judge McAvoy has denied Richard-Enrique to testify before the Grand
Jury and to bring in new information, or that the Grand Jury was given misinformation and that Richard-Enrique was denied the ability to present his
side of the story.
14. Judge McAvoy has ignored not one but two Declaratory Decrees from two
Common Law juries, who have dismissed case 10-CR-321 in its entirety.
15. Judge McAvoy has refused my Motion for Contempt for Discovery.

To survive a dismissal motion, “a complaint must plead ‘enough facts to state a claim to
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relief that is plausible on its face.’” Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.
2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court must accept as
true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff's
favor. See ATSI Commc'n, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). A complaint
should be “especially liberally construed when it is submitted pro se and alleges civil rights

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violations.” See Jacobs v. Mostow, 271 Fed.Appx. 85, 87 (2d Cir. 2008) (citing Fernandez v.
Chertoff, 471 F.3d 45, 51 (2d Cir. 2006)).
It has long been the law that judges have absolute immunity from damage claims arising
out of their judicial acts. See Tucker v. Outwater, 118 F.3d 930, 932 (1997) (citing Bradley v.
Fisher, 80 U.S. (13 Wall.) 335 (1872)). Such immunity may be overcome only where the judge
acts in the clear absence of all jurisdiction or if he acts outside his judicial capacity. See Gross v.
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Rell, 585 F.3d 72, 82 (2d Cir. 2009). Here, the claims in paragraphs 12 through 15 that Judge
McAvoy “ignored all facts submitted and overruled all evidence,” refused to permit Ulloa to
testify before the grand jury, ignored “Declaratory Decrees from two Common Law juries,” and
refused Ulloa’s “Motion for Contempt for Discovery” clearly concern conduct performed in
Judge McAvoy’s jurisdiction and judicial capacity. He is absolutely immune from liability for
these alleged actions.
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Paragraph 11, the only remaining paragraph pertaining to Judge McAvoy, fails to support
a cognizable claim, even when viewed as true and interpreted with the greatest lenience.
Construed in the context of the entire complaint, it may arguably be read as a challenge to Judge
McAvoy’s authority as a district court judge to try the charges against Ulloa.1 Regardless of any
religious or political views Ulloa may hold, Judge McAvoy had the statutory and constitutional

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power to adjudicate the criminal charges against him. See U.S. Const., Art. III; 28 U.S.C. § 1331.
In presiding over Ulloa’s criminal trial, he clearly acted within his jurisdiction and judicial
capacity. See generally Gross v. Rell, 585 F.3d 72, 84-85 (2d Cir. 2009). The Court can discern
no other reasonable interpretation of paragraph 11. Even upon the most liberal reading of the
complaint, there is no indication of any claim against Judge McAvoy that could overcome the
judicial immunity to which he is entitled. Thus, all claims are barred by judicial immunity, and

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the complaint is dismissed with prejudice.
It is therefore
ORDERED that the motion (Dkt. No. 7) is granted; and it is further

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For example, the preceding paragraph in the complaint reads: “10. The FBI is an Agency, and it
has no authority to bring charges against the people.”
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ORDERED that the complaint is dismissed in its entirety with prejudice.
IT IS SO ORDERED.
Date: July 8, 2011
Syracuse, New York

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