Walsh v. Walace et al

Filing 5

ORDER ADOPTING REPORT AND RECOMMENDATIONS adopting 3 Report and Recommendations. ORDER REFERRING CASE to Magistrate Judge Martin C. Carlson; Amended complaint due w/in 21 days of this order. Signed by Honorable Malachy E Mannion on 9/12/16. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JOHN WALSH, III

:
CIVIL ACTION NO. 3:16-1722

Plaintiff
v.
ROBERT WALACE, ESQ.,
et al.,

:
:

(Mannion, D.J.)
(Carlson, M.J.)

:
:

Defendants
ORDER
Based on the report of Judge Carlson, (Doc. 3), to which no objections
have been filed, IT IS HEREBY ORDERED THAT the report is ADOPTED IN
ITS ENTIRETY.1 Plaintiff’s complaint, (Doc. 1), is DISMISSED WITHOUT
PREJUDICE. See Roy v. Supreme Court of U.S., 484 F.App’x 700, 700 (3d
Cir. 2012) (dismissal under Rule 8 is justified if the complaint is not

1

As Judge Carlson finds, Walsh fails to allege how the denial of a permit
to protest on Lackawanna County Court property due to his failure to obtain
required liability insurance is a violation of his First Amendment rights. As
Judge Carlson points out, (Doc. 3, at 13), “narrowly-tailored and content
neutral insurance requirements relating to the use of public forums may not
offend the Constitution.” (citing iMatter Utah v. Njord, 980 F. Supp. 2d 1356,
1370 (D.Utah 2013), aff'd, 774 F.3d 1258 (10th Cir. 2014).
Moreover, as Judge Carlson finds, Judge Michael Barrasse is protected
by absolute immunity for all judicial acts except those made in the clear
absence of jurisdiction. Cleavinger v. Saxner, 474 U.S. 193, 199, 106 S.Ct.
496, 88 L.Ed.2d 507 (1985); Stump v. Sparkman, 435 U.S. 349, 356–67, 98
S.Ct. 1099, 55 L.Ed.2d 331 (1978); Clark v. Conahan, 737 F.Supp.2d 239,
255-256 (M.D.Pa. 2010). “Judicial immunity provides complete immunity from
suit, not merely from an ultimate assessment of damages.” Smith v.
Laster,787 F.Supp.2d at 319 (citing Mireles v. Waco, 502 U.S. 9, 11, 112
S.Ct. 286, 116 L.Ed.2d 9 (1991)).

comprehensible). Leave to amend is GRANTED and plaintiff is directed to file
an amended complaint as specified in Judge Carlson’s report within 21 days
of the date of this Order.2 The clerk of court is directed to recommit this case
to Judge Carlson for further proceedings.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge

Date: September 12, 2016
O:\Mannion\shared\ORDERS - DJ\CIVIL ORDERS\2016 ORDERS\16-1722-01.wpd

2

Insofar as Walsh filed an addendum to his complaint to add the City of
Scranton as a defendant and to add more violations of his rights under the
Fourth and Fourteenth Amendments, (Doc. 4), this addendum must be
incorporated in any amended complaint that Walsh files. Also, Walsh is
advised that any constitutional claims against municipal defendants must
comport with Monell v. Dept. of Soc. Servs., New York City, 436 U.S. 658,
694–95, 98 S.Ct. 2018 (1978). See Carswell v. Bor. of Homestead, 381 F.3d
235, 244 (3d Cir. 2004).