Burke v. Toor
Filing
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OPINION AND ORDER granting 1 Motion for Leave to Proceed in forma pauperis. This case is hereby DISMISSED. The court certifies that any appeal from this Order would not be taken in good faith because Mr. Burke's pleading lacks any arguable basis in law or fact and permission to pursue an appeal of this Opinion and Order in forma pauperis is DENIED. Signed by District Judge J. Garvan Murtha on 11/18/2014. (esb)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
JAMES T. BURKE,
Plaintiff,
v.
HELEN M. TOOR, Individual
Capacity,
Defendant.
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Case No. 1:14-cv-228
OPINION AND ORDER
(Doc. 1)
Pro se plaintiff James T. Burke moves to proceed in forma
paurperis against The Honorable Helen M. Toor, Vermont Superior
Court Judge, in her individual capacity. (Doc. 1-2.)
Mr. Burke
brings his proposed Complaint under 28 U.S.C. § 1983 alleging
violations of his Fourteenth Amendment rights arising from
several state court matters over which Judge Toor allegedly
presided.
(Doc. 1-2 at 3.)
Because the financial affidavit in
support of the motion meets the requirements of 28 U.S.C. §
1915(a), the motion for leave to proceed in forma pauperis is
GRANTED.
However, for the reasons set forth below, this case is
DISMISSED.
Discussion
Mr. Burke is currently serving a sentence for a state
criminal conviction.
He alleges Judge Toor improperly failed to
recuse herself from Mr. Burke’s pending state post-conviction
relief (“PCR”) matter (Docket No. 214-2-13 Cncv) after she
presided over certain pre-trial matters in his underlying
criminal case.
(Doc. 2 at 7-10.) Mr. Burke alleges Judge Toor’s
decision denying his motion to disqualify the Assistant Attorney
General representing the State of Vermont in the state PCR matter
“clearly amounted to an [unlawful] cover[-]up of the State[‘]s
corruption[.]” (Id. at 8.)
He further alleges Judge Toor issued
other rulings generally evidencing judicial bias and “employing
cover-up legal analysis[.]” (Id. at 9.)
Mr. Burke seeks
compensatory and punitive damages and enforcement of his
Fourteenth Amendment rights.
(Id. at 11.)1
Pro se filings are “to be liberally construed, and a pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation
marks and citations omitted).
A district court may dismiss a
case, however, if it determines the complaint “is frivolous or
malicious; fails to state a claim on which relief may be granted;
or seeks monetary relief against a defendant who is immune from
such relief.”
28 U.S.C. § 1915(e)(2)(B).
1
Nothing in the proposed Complaint suggests that Mr. Burke
seeks federal habeas relief under 28 U.S.C. § 2254. Furthermore,
this Court has already denied a § 2254 petition brought by Mr.
Burke. Burke v. Pallito, No. 2:12-cv-197, 2013 WL 496150, slip
op. at *1 (Jan. 13, 2013). A second or successive petition may
only be filed with a district court if the petitioner has first
been granted permission to do so by the relevant court of
appeals. 28 U.S.C. § 2244(b)(3)(A).
2
Judge Toor is entitled to absolute immunity for actions
relating to the exercise of her judicial functions.
v. Waco, 502 U.S. 9, 11 (1991).
See Mireles
Judicial immunity exists because
of the public interest in having judges who are “‘at liberty to
exercise their functions with independence and without fear of
consequences.’” Huminski v. Corsonnes, 396 F.3d 53, 74 (2d Cir.
2005) (quoting Pierson v. Ray, 386 U.S. 547, 554 (1967)).
Judicial immunity applies even where the judge is accused of
acting maliciously or corruptly.
Imbler v. Pachtman, 424 U.S.
409, 419 n.12 (1976) (citing Pierson, 386 U.S. at 553-54).
Indeed, absolute immunity applies “‘however erroneous the act may
have been, and however injurious in its consequences it may have
proved to the plaintiff.’” Young v. Selsky, 41 F.3d 47, 51 (2d
Cir. 1994) (quoting Cleavinger v. Saxner, 474 U.S. 193, 199-200
(1985)).
Judicial immunity “is overcome only in two sets of
circumstances.
First, a judge is not immune from liability for
nonjudicial actions, i.e., actions not taken in the judge’s
judicial capacity.
Second, a judge is not immune for actions,
though judicial in nature, taken in the complete absence of all
jurisdiction.” Mireles, 502 U.S. at 12.
Although Mr. Burke names
Judge Toor in her individual capacity, none of his allegations
concern nonjudicial actions.
Instead, Mr. Burke challenges
rulings Judge Toor made while acting in her judicial capacity.
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Likewise, assuming the truth of Mr. Burke’s allegations,
Judge Toor did not act in the complete absence of all
jurisdiction.
Mr. Burke does not allege Judge Toor lacked
authority to preside over his PCR or criminal matters in general,
but rather that she should have recused herself from the pending
PCR case because of pre-trial rulings she issued in the
underlying criminal case.
In support of this claim, Mr. Burke cites 13 V.S.A. § 7131,
which provides that “the superior or district judge who presided
when the original sentence was imposed shall not hear the [postconviction relief] application.”
13 V.S.A. § 7131.
However, Mr.
Burke does not allege that Judge Toor presided over his
sentencing or even the criminal trial itself.
See also Burke v.
Pallito, No. 2:12-cv-197, 2013 WL 496150, slip op. at *1 (Jan.
13, 2013) (noting that Judge Matthew Katz presided over Burke’s
criminal trial).
The Vermont Supreme Court has held where a
trial judge presides over pre-trial criminal matters, § 7131 does
not require recusal from subsequent PCR matters brought by that
defendant.
(Vt. 2007).
In re Barrows, 917 A.2d 490, 497, 181 Vt. 283, 291,
Therefore, because Mr. Burke neither bases his
claims on nonjudicial conduct, nor alleges judicial conduct in
the absence of jurisdiction, Judge Toor is entitled to absolute
judicial immunity.
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Furthermore, to the extent Mr. Burke seeks to have this
Court intervene in the pending state PCR matter, the doctrine of
abstention articulated in Younger v. Harris, 401 U.S. 37 (1971),
prevents this Court from doing so.
See also Huffman v. Pursue,
Ltd., 420 U.S. 592, 608 (1975) (extending abstention doctrine to
state civil proceedings); Burke v. Hardin, No. 1:09-CV-114, 2010
WL 1417830, slip op. at *1 (D. Vt. Apr. 6, 2010) (dismissing
federal habeas claim on Younger abstention grounds where criminal
case still pending); Burke v. Donovan, No. 1:08-CV-263, 2009 WL
5214325, slip op. at *2 (D. Vt. Dec. 29, 2009) (citing Younger
abstention doctrine and recommending dismissal where Mr. Burke
sought order compelling state prosecutor to produce deposition
transcript in a pending criminal case).
Accordingly, because Judge Toor is absolutely immune from
the relief sought by Mr. Burke, and Mr. Burke has otherwise
failed to state a claim on which relief can be granted, this case
is DISMISSED.
District courts generally should not dismiss a pro se
complaint without granting leave to amend. See Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
However, the Court
finds that granting leave to amend the proposed Complaint would
be futile due to the multiple bases for dismissal that exist. See
id. (“The problem with [plaintiff’s] causes of action is
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substantive; better pleading will not cure it.
Repleading would
thus be futile.”)
CONCLUSION
For the reasons set forth above, upon conducting the review
required under 28 U.S.C. § 1915(a)(1) and 1915(e)(2)(B), Mr.
Burke’s motion to proceed in forma pauperis (Doc. 1) is GRANTED,
and this case is DISMISSED.
The Court certifies that any appeal from this Order would
not be taken in good faith because Mr. Burke’s pleading lacks any
arguable basis in law or fact, and permission to pursue an appeal
of this Opinion and Order in forma pauperis is DENIED.
See 28
U.S.C. § 1915(a)(3); see also Coppedge v. United States, 369 U.S.
438, 444-45 (1962).
SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this 18th
of November, 2014.
/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
United States District Judge
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