Gorbey v. United States of America, et al.

Filing 10

MEMORANDUM OPINION AND ORDER adopting 8 Proposed Findings; granting 7 Motion to Proceed without Prepayment of Fees or Costs filed by Michael S. Gorbey; dismissing the 1 Claim of Civil Action Complaint with prejudice. Signed by Judge Joseph R. Goodwin on 9/30/2009. (cc: plaintiff; attys; any unrepresented party) (taq) (Modified text to conform to filed document on 9/30/2009) (skh).

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION MICHAEL S. GORBEY, Plaintiff, v. UNITED STATES OF AMERICA, CONGRESS, U. S. DEPARTMENT OF JUSTICE, and FEDERAL JUDGE IRENE M. KEELEY, Defendants. CIVIL ACTION NO. 2:09-cv-00313 MEMORANDUM OPINION AND ORDER I. Introduction Pending before this court is the plaintiff Michael Gorbey's application to proceed in forma pauperis [Docket 7]. Mr. Gorbey filed an action in this court in March 2009, presumably pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), against United States District Judge Irene Keeley, the United States of America, Congress, and the United States Department of Justice. He bases his suit on the allegations that Judge Keeley remanded him to custody of the United States Marshal following his trial and acquittal in the Northern District of West Virginia, and that in doing so, she "made an `illegal' and `unjustified' administrative order." (Claim of Civil Action Compl. p. 3.) He further asserts that Judge Keeley's actions were "`intentionally' unlawful" and "set[] a bad example" for state police because the police "did again re-arrest Mr. Gorbey (2) other times `after' Judge Keeley had done this to him." (Id. at 1 p. 3-4). This matter was referred to the Honorable Maurice G. Taylor on March 30, 2009, for total pretrial management and submission of proposed findings of fact and recommendations for disposition. On June 12, 2009, Judge Taylor submitted proposed findings and made various recommendations regarding Mr. Gorbey's application to proceed in forma pauperis and the disposition of the underlying action. On June 22, 2009, the plaintiff filed timely objections to the proposed findings and recommendations ("PF&R"). The court has reviewed de novo those portions of the PF&R to which the plaintiff objects. For reasons set forth below, the court ADOPTS the Magistrate Judge's proposed findings. The plaintiff's application to proceed in forma pauperis [Docket 7] is GRANTED, but the "Claim of Civil Action Complaint" [Docket 1] is DISMISSED with prejudice. II. Discussion In order for a plaintiff to proceed in forma pauperis, he or she must submit an affidavit that lists all of his or her assets and states that he or she is unable to pay the applicable court filing fees. See 28 U.S.C. 1915(a)(1). In addition, a prisoner seeking a fee waiver under 1915(a) "shall submit a certified copy of [his] trust fund account statement (or institutional equivalent) . . . for the 6-month period immediately preceding the filing of the complaint . . . ." Id. at 1915(a)(2). It appears from the record that Mr. Gorbey complied with the requirements of 1915(a) and is thus entitled to proceed herein without prepayment of fees. However, Mr. Gorbey is also subject to the requirement of 28 U.S.C. 1915(e)(2)(B), which provides that a court shall dismiss a case in which the plaintiff is proceeding in forma pauperis if 2 the court determines that the suit "is frivolous," "fails to state a claim upon which relief can be granted," or "seeks monetary relief against a defendant who is immune from such relief." I agree with Judge Taylor that this case is frivolous, fails to state a claim, and also seeks monetary relief against someone who is immune from such relief. First, Judge Keeley is immune from liability for money damages for acts committed within her judicial discretion. Hogan v. James, 486 F.2d 1399, 1399 (4th Cir. 1973); see also Butz v. Economou, 438 U.S. 478, 500-01 (1978) (holding that immunities developed in 1983 actions apply in Bivens actions). That discretion clearly encompasses her order remanding Mr. Gorbey to the custody of the U.S. Marshal. Second, the suit is frivolous and fails to state a claim against the remaining defendants. In his objections to the PF&R, Mr. Gorbey attempts to bind the federal government and Congress to the actions of Judge Keeley, stating that they are "responsible for the `illegal' acts committed by" her, and comparing the government to a corporation, of which Judge Keeley is an agent. (Pet'r Objections Mot. Defer Ct.'s Recommendation 3). There is simply no legal basis for this argument. Furthermore, "Bivens does not allow for recovery of money damages, or suits in general, against the government itself." Reinbold v. Evans, 187 F.3d 348, 355 n.7 (4th Cir. 1999). III. Conclusion For the reasons set forth above, Mr. Gorbey's application to proceed in forma pauperis [Docket 7] is GRANTED, but the "Claim of Civil Action Complaint" [Docket 1] is DISMISSED with prejudice. The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party. ENTER: 3 September 30, 2009 4

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