Opinion
SA-21-CA-498-FB (HJB)
07-02-2021
MICHAEL J. HOLMES, Plaintiff, v. RICHARD B. FARRER, Defendant.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Henry J. Bemporad, United States Magistrate Judge
To the Honorable Fred Biery, United States District Judge:
This Report and Recommendation concerns the status of the above case, which was automatically referred to the undersigned for disposition of the application to proceed in forma pauperis (“IFP”) and a review under 28 U.S.C. § 1915(e), pursuant to this Division's October 8, 2019, Standing Order. Pursuant to § 1915(e), I recommend that Plaintiffs complaint be DISMISSED.
Section 1915(e) provides that, in IFP cases, “the court shall dismiss the case at any time” if the court determines, among other things that the action “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). In this case, Plaintiff seeks to sue U.S. Magistrate Judge Richard B. Farrer pursuant to 42 U.S.C. § 1983 for violation of Plaintiffs Fourteenth Amendment rights during proceedings in a lawsuit pending in this Court. See Holmes v. City of San Antonio Airport, et al., Nos. SA-21-CA-267-OLG (RBF), SA-21-CA-275-OLG (RBF).
Plaintiffs case must be dismissed for at least three reasons. First, § 1983 applies only to persons acting “under color of' state law; Judge Farrer acts under federal authority. Section 1983 does not apply to actions brought against federal officials, such as federal Magistrate Judges. Butcher v. Guthrie, 332 Fed.Appx. 161, 162 (5th Cir. 2009). Instead, federal officials may be sued for civil rights violations only under the authority established by Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389 (1971).
Second, even if Plaintiff had brought suit under Bivens, Judge Farrer would be immune from suit, because his handling of Plaintiff s other lawsuits was a judicial act “not performed in the clear absence of all jurisdiction.” Butcher, 332 Fed.Appx. at 162 (quoting Malina v. Gonzales, 994 F.2d 1121, 1124 (5th Cir. 1993)). See also Wightman v. Jones, 809 F.Supp. 474 (N.D. Tex. 1992) (judicial immunity bars the award of monetary damages and declaratory or injunctive relief against federal judges in a Bivens action).
Finally, it is well-settled that “[independent lawsuits against presiding judges are not the appropriate vehicle for disgruntled litigants to obtain a reversal of adverse judgments.” Rutherford v. U.S. Dist. Cts., Civ. Action No. 10-2801, 2010 WL 3801017, at *1 (E.D. La. Sept. 2, 2010), recommendation adopted, 2010 WL 3800921 (E.D. La. Sept. 21, 2010), appeal dismissed, 425 Fed.Appx. 400 (5th Cir. 2011). “Neither damages, injunctive nor declaratory relief is available to be used as a vehicle for disgruntled litigants to reverse adverse judgments.” Montesano v. New York, Nos. 05 CV 9574(GBD) and 05 CV 10624(GBD), 2006 WL 944285, at *4 (S.D.N.Y. Apr. 12, 2006). If Plaintiff objects to Judge Farrer's actions in his case, his remedy is to object to those actions before the District Court, or to appeal.
Based on the foregoing, I recommend that Plaintiffs case be DISMISSED.
Instructions for Service and Notice of Right to Object/Appeal.
The United States District Clerk shall serve a copy of this Report and Recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this Report and Recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); FED, R. CIV. P. 72(b). The party shall file the objections with the clerk of the court, and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusive or general objections. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, U.S. 140. 149-52 (1985); Acuna v. Brown & Root, Inc.. 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions and recommendations contained in this Report and Recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
SIGNED.