Mickell v. Geroulo ( 2019 )

THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JOHNNIE MICKELL, : Plaintiff, : v. : 3:19-CV-1730 : (JUDGE MARIANI) JUDGE VITO P. GEROULO, et al., : Defendants. ORDER AND NOW, THIS 2d DAY OF OCTOBER, 2019, upon de novo review of Magistrate Judge Saporito’s Report and Recommendation (“R&R”) (Doc. 4), IT IS HEREBY ORDERED THAT: 1. Plaintiffs Objections (Docs. 6, 7) are OVERRULED. Although Plaintiff asserts that Judge Geroulo “is prohibit[ed] from concealing behind immunity” (Doc. 6, at {[ 5), Plaintiff's Complaint fails to allege “enough facts [against Judge Geroulo] to state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), or to set forth any ‘“[flactual allegations . .. enough to raise a right to relief above the speculative level,” Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013) which may serve as a basis to divest Judge Geroulo of judicial immunity.t Furthermore, Plaintiff's reliance on Forrester v. White, 484 U.S. 1 To the extent that Plaintiff's other Objections appear to be directed at the Court not serving Plaintiff's Complaint on all Defendants (see generally Doc. 7) and Magistrate Judge Saporito issuing a recommendation that Judge Geroulo be dismissed prior to service of the Complaint on Judge Geroulo and his filing of a motion to dismiss, such Objection is without merit. See 28 U.S.C. § 1915(e)(2) (providing that a “court shall dismiss the case at any time if the court determines that... the action . . . (ji) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.”); Powell v. Hoover, 956 F.Supp. 564, 566 (M.D. Pa. 1997) (holding that 28 U.S.C. § 1915 is not limited to prisoner suits). 219 (1988) in support of his Objections to the R&R’s recommended dismissal of Judge Geroulo is misplaced. The Supreme Court in Forrester re-affirmed the long- standing and well-established principle of judicial immunity for “the adjudicative function” which “requires a judge frequently to disappoint some of the most intense and ungovernable desires that people can have.” 484 U.S. at 227. The Court's decision in Forrester was expressly limited to the circumstance where a judge engages in administrative rather than judicial conduct such as occurred in Forrester where the Court held that a state court judge did not have absolute immunity in a suit brought by a probation officer who alleged the state court judge’s decision to demote and dismiss her was unlawful sex discrimination. A review of the Michell’s Complaint shows the actions of which he complains with respect to Defendant Geroulo are actions that, on their face, were undertaken within the scope of Judge Geroulo’s adjudicative function. 2. The R&R (Doc. 4) is ADOPTED for the reasons set forth therein. 3. The claims against defendant Judge Vito Geroulo are DISMISSED WITH PREJUDICE for the reasons set forth in the R&R. 4. The case is REMANDED to Magistrate Judge Saporito for further proceedings consistent with this Order. Can United States District Judge