Bethea v. Plusch et al
Filing
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ORDER granting 1 Motion for Leave to Proceed in forma pauperis. The claim against Judge Nancy Corsones is DISMISSED,. Signed by Senior Judge J. Garvan Murtha on 4/13/2011. (kak)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Craig Bethea,
Plaintiff,
v.
Michael Plusch, William
Wright, Nancy Corsones,
Bennington County,
Vermont, State of Vermont,
United States of America,
Defendants.
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File No. 1:11-cv-00057-jgm
ORDER
(Doc. 1)
Plaintiff Craig Bethea, a federal inmate proceeding pro se,
seeks to file a complaint alleging that the defendants violated
his constitutional rights in the course of his criminal case.
Bethea has filed a motion to proceed in forma pauperis, and has
submitted an affidavit that meets the requirements of 28 U.S.C. §
1915.
The motion for leave to proceed in forma pauperis (Doc. 1)
is therefore GRANTED.
For the reasons set forth below, however,
Bethea’s claim against Judge Nancy Corsones is DISMISSED.
I.
Dismissal of Judge Corsones
Under 28 U.S.C. § 1915A, the Court must screen a civil
complaint brought by a prisoner against a governmental entity or
its agents and dismiss the complaint or any portion thereof if it
brings a claim that is “frivolous, malicious, or fails to state a
claim upon which relief may be granted; or seeks monetary relief
from a defendant who is immune from such relief.”
28 U.S.C. §
1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).
Similarly, under 28 U.S.C. § 1915(e), the Court must dismiss the
action if it determines it is “(i) frivolous or malicious; (ii)
fails to state a claim on which relief may be granted; or (iii)
seeks monetary relief from a defendant who is immune from such
relief.”
28 U.S.C. § 1915(e)(2)(B).
Here, the Court finds that Judge Nancy Corsones is immune
from suit, and must be dismissed under §§ 1915A(b) and
1915(e)(2)(B).
The claim against Judge Corsones states she
“violated the plaintiff’s rights by issuing a general exploratory
search warrant in the absence of probable cause.”
11.)
(Doc. 1-2 at
Bethea further asserts that, by issuing the search warrant,
Judge Corsones “abandoned her neutral and detached role and . . .
acted as nothing more than a rubberstamp for police.”
(Id.)
Judges have absolute immunity for judicial acts performed in
their judicial capacities.
Mireles v. Waco, 502 U.S. 9, 11
(1991); Stump v. Sparkman, 435 U.S. 349, 356 (1978); Young v.
Selsky, 41 F.3d 47, 50 (2d Cir. 1994).
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 [she]
took was in error . . . or was in excess of [her] authority.”
Mireles, 502 U.S. at 11 (quotation omitted).
As the alleged
wrongdoing by Judge Corsones involved an act performed in her
judicial capacity, see Burns v. Reed, 500 U.S. 478, 492 (1991)
(“the issuance of a search warrant is unquestionably a judicial
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act”), the claim against her must be DISMISSED.
See Montero v.
Travis, 171 F.3d 757, 760 (2d Cir. 1999) (“A complaint will be
dismissed as ‘frivolous’ when it is clear that the defendants are
immune.”) (internal quotations omitted).
II.
Remaining Defendants
As to the remaining Defendants, if the allegations in the
complaint are substantiated, Bethea may have an opportunity to
prevail on the merits of this action.
The following paragraphs
are intended to assist the pro se litigant by identifying for him
certain requirements of this Court.
Failure to comply with these
requirements may result in the dismissal of the complaint.
Because Bethea is not represented by a lawyer, he is
reminded that the Federal Rules of Civil Procedure require him to
mail to the lawyer(s) for the defendants a true copy of anything
he sends to the court.
Failure to do so may result in dismissal
of this case or other penalties.
Anything filed with the court
should specifically state that it has been sent to the lawyer(s)
for the defendants.
Bethea should keep a true copy of everything
he sends to the defendants or the court.
Each party shall keep the court apprised of a current
address at all times while the action is pending.
Notice of any
change of address must be filed promptly with the Court and
served on other parties.
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As this case proceeds, it is possible that the defendants
may file motions for summary judgment.
The Second Circuit
requires that a pro se litigant be provided notice “of the nature
and consequences of a summary judgment motion.”
Vital v.
Interfaith Med. Ctr., 168 F.3d 615, 621 (2d Cir. 1999); see also
Sellers v. M.C. Floor Crafter, 842 F.2d 639 (2d Cir. 1988).
A
motion for summary judgment made by a defendant under Rule 56 of
the Federal Rules of Civil Procedure is a request for a judgment
in its favor without a trial.
This motion will set forth the
facts that the defendant contends are not reasonably subject to
dispute and that entitle the defendant to judgment as a matter of
law.
All assertions of material fact in the defendant’s motions
will be taken as true by the court unless contradicted.
McPherson v. Coombe, 174 F.3d 276, 281 (2d Cir. 1999).
See
In short,
failure to contradict those factual assertions may result in the
entry of summary judgment in favor of that defendant.
To contradict or oppose a defendant’s motion for summary
judgment, Bethea must show proof of his claims.
in one or more of the following ways.
He may do this
Most typically, a
plaintiff may file and serve one or more affidavits or
declarations setting forth the facts that would be admissible in
evidence that he believes prove his claims or counter the
defendant’s assertions.
The person who signs each affidavit must
have personal knowledge of the facts stated within the affidavit.
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Alternatively, Bethea may rely on statements made under
penalty of perjury in the complaint if the complaint shows that
he has personal knowledge of the matters stated, and if he calls
to the court’s attention those parts of the complaint upon which
he relies to oppose the defendant’s motion.
Bethea may also rely
upon written records, but must prove that the records are what
they claim they are.
Finally, Bethea may rely on all or any part
of deposition transcripts, answers to interrogatories, or
admissions obtained in this proceeding.
If there is some good
reason why the necessary facts are not available to Bethea at the
time required to oppose a summary judgment motion, the court will
consider a request to delay consideration of the defendant’s
motion.
Bethea should always file a response to a motion by a
defendant.
In particular, in the event a defendant files a
motion for summary judgment as discussed above, or moves to
dismiss the complaint, Bethea’s failure to respond may result in
the dismissal of the case with respect to that defendant.
In accordance with the above, it is hereby ORDERED that:
1.
Bethea’s request for leave to proceed in forma pauperis
(Doc. 1) is GRANTED.
Bethea may file, and the Clerk of the Court
shall accept, his complaint without prepayment of the required
fees, and Bethea shall not be required to pay the fees for
service of the complaint.
If necessary, service of process shall
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be effected by the U.S. Marshals Service.
See Fed. R. Civ. P.
4(c)(3); 28 U.S.C. § 1915(d).
2.
Bethea is obligated to pay the statutory filing fee of
$350.00 for this action.
The fee shall be collected and paid in
accordance with this court’s order, filed concurrently herewith.
3.
Bethea’s claim against Judge Nancy Corsones is
DISMISSED.
Dated at Brattleboro, in the District of Vermont, this 13th
day of April, 2011.
/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
Senior United States District Judge
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