Michael Shemonsky v. John Thomas , 400 F. App'x 624 ( 2010 )

BLD-023 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-2927
___________
MICHAEL R. SHEMONSKY, Debtor,
Appellant
v.
JOHN J. THOMAS, U.S. Bankruptcy Judge
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 10-cv-02882)
District Judge: Honorable Ronald L. Buckwalter
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
October 28, 2010
Before: SLOVITER, JORDAN and GREENAWAY JR., Circuit Judges
(Opinion filed: November 5, 2010)
_________
OPINION
_________
PER CURIAM
Michael Shemonsky appeals pro se from the United States District Court for the
Eastern District of Pennsylvania’s June 21, 2010 order. We will summarily affirm.
In June 2010, Shemonsky filed a complaint against a United States Bankruptcy
Court Judge as well as an application to proceed in forma pauperis. In his complaint,
Shemonsky sought over $5 billion dollars in damages for the 1990 “illegal theft of [his]
savings and loan by the office of thrift supervision.” The complaint, which states that the
bases for federal jurisdiction are “Article IV of the U.S. Constitution [and the] Fifth
Amendment,” makes no reference Judge Thomas, the defendant. On June 21, 2010, the
district court entered an order that granted Shemonsky’s application to proceed in forma
pauperis but dismissed his complaint under 28 U.S.C. § 1915(e)(2)(B)(ii). The district
court explained that, under the doctrine of judicial immunity, Judge Thomas is absolutely
immune from civil rights lawsuits that seek money damages for actions performed in a
judicial capacity. See Mireless v. Waco, 502 U.S. 9, 11 (1991). Additionally, the district
court stated that Shemonsky’s action, which was filed twenty years after the alleged
events in question occurred, was time-barred because federal civil rights actions are
subject to Pennsylvania’s two-year statute of limitation for personal injury actions. See
Wallace v. Kato, 549 U.S. 384, 387 (2007); 42 Pa. Cons. Stat. Ann. § 5524. This appeal
followed. 1
We have jurisdiction pursuant to 28 U.S.C. § 1291 and our review of the district
court’s sua sponte dismissal of Shemonsky’s complaint is plenary. See Allah v.
Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). We may take summary action when we
1
After Shemonsky filed his notice of appeal from the June 21, 2010 order, he
moved for reconsideration of that order. He attached documents from some of his
previous cases (of which there are many), claiming that they supported his allegations
regarding a “conspiracy to [sic] entrapment for financial gain.” The district court denied
the motion, stating that Shemonsky did not address the bases for the dismissal of his
complaint. Shemonsky did not appeal from the denial of the motion for reconsideration.
2
conclude that an appeal presents no “substantial question.” 3d Cir. LAR 27.4; I.O.P.
10.6.
After granting a litigant leave to proceed in forma pauperis, a district court is
required to dismiss the complaint if it fails to state a claim on which relief may be
granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). For the reasons given by the district court,
we agree that Shemonsky’s complaint failed to state a claim.
We have also held that a district court should not dismiss a pro se complaint
without allowing the plaintiff leave to amend unless amendment would be inequitable or
futile. See Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004); Grayson v. Mayview State
Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Although the district court did not explicitly
state that amendment of the complaint would be futile, it is clear that this was the district
court’s intent. Further, Shemonsky has had, and has taken, the opportunity to respond to
the district court’s order, but has revealed no flaw in the dismissal of his complaint. We
will therefore summarily affirm the judgment of the district court. See 3d Cir. LAR 27.4;
I.O.P. 10.6.
3