Opinion
5:25-CV-00202 (LEK/MJK)
03-04-2025
DAVID L. KIRBY, III, Plaintiff, v. STATE OF NEW YORK CITY OF SYRACUSE ONONDAGA COUNTY JUDGE LIMPBERT[1] Defendant.
David L. Kirby, III, Plaintiff, pro se
David L. Kirby, III, Plaintiff, pro se
THE HONORABLE LAWRENCE E. KAHN, SENIOR U.S. DISTRICT COURT JUDGE
ORDER AND REPORT-RECOMMENDATION
HON. MITCHELL J. KATZ, U.S. MAGISTRATE JUDGE
Plaintiff commenced this action on February 12, 2025, by filing a complaint (Dkt. 1). On February 13, 2025, Senior United States District Court Judge Lawrence E. Kahn administratively closed this matter because Plaintiff failed to pay the appropriate filing fee. (Dkt. 2). On February 24, 2025, Plaintiff filed a motion for leave to proceed in forma pauperis (“IFP”) with an inmate authorization form. (Dkt. 3, 4). The Clerk has sent Plaintiff's complaint, together with his application to proceed in forma pauperis to this Court for its review.
I. IFP Application
Plaintiff declares in his IFP application that he is unable to pay the filing fee. (Dkt. 3). After reviewing his application, this Court finds that Plaintiff is financially eligible for IFP status.
However, in addition to determining whether a plaintiff meets the financial criteria to proceed IFP, the Court must also consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915. That statute requires courts to dismiss a case at any time if it determines that the action is (1) frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915 (e)(2)(B)(i)-(iii).
When determining whether an action is frivolous, courts must consider whether the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and 28 U.S.C. § 1915. Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldredge, 505 F.2d 802, 804 (8th Cir. 1974). Courts have a duty to show liberality toward pro se litigants and must use extreme caution in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and has had an opportunity to respond. Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) But courts must still determine that a claim is not frivolous before permitting a plaintiff to proceed. Id. (finding that a district court may dismiss a frivolous complaint sua sponte even when plaintiff has paid the filing fee).
To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Bell Atl. Corp., 550 U.S. at 555).
In addition, Fed.R.Civ.P. 8(a)(2) requires that a pleading contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Although Rule 8 does not require detailed factual allegations, it does “demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Houston v. Collerman, No. 9:16-CV-1009 (BKS/ATB), 2016 WL 6267968, at *2 (N.D.N.Y. Oct. 26, 2016) (quoting Iqbal, 556 U.S. at 678). A pleading that contains allegations that “‘are so vague as to fail to give the defendants adequate notice of the claims against them' is subject to dismissal.” Id. (citing Sheehy v. Brown, 335 Fed.Appx. 102, 104 (2d Cir. 2009)).
II. Complaint
The complaint alleges that Plaintiff and his attorney were “deprived” of his right to be present at the grand jury proceeding. (Dkt. 1 at ¶ 4). Plaintiff further alleges that he was not allowed to “confront [his] hostile witnesses.” (Id.). Finally, the complaint alleges that Plaintiff was indicted on “falsified evidence” and that he was denied a speedy and fair trial. (Id.).
III. Judge Limpert
Onondaga County Court Judge Limpert is immune from suit. The Second Circuit has ruled that “the New York State Unified Court System is unquestionably an arm of the State and is entitled to Eleventh Amendment sovereign immunity.” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009). Similarly, judges within the New York State Unified Court System are entitled to Eleventh Amendment immunity to the extent they are sued in their official capacity. See Aron v. Becker, 48 F.Supp.3d 347, 366 (N.D.N.Y. 2014) (dismissing claim against a Delaware County judge on sovereign immunity grounds). Accordingly, Plaintiff cannot maintain his claims against Judge Limpert in his official capacity and the Court recommends that the complaint be dismissed with prejudice and without leave to amend.
The complaint against Judge Limpert, to the extent it alleges any claims against him in his personal capacity, is subject to dismissal on judicial immunity grounds. See McNair v. Utica Police Dep't, 6:23-CV-699 (DNH/ATB), 2023 WL 4935993, at *3 (N.D.N.Y. June 26, 2023), report and recommendation adopted, No. 6:23-CV-699, 2023 WL 4931609 (N.D.N.Y. Aug. 1, 2023). It is well settled that judges have absolute immunity for their judicial acts performed in their judicial capacities. See Mireles v. Waco, 502 U.S. 9, 11 (1991); see also Shtrauch v. Dowd, 651 Fed.Appx. 72, 73-74 (2d Cir. 2016) (“Generally, ‘acts arising out of, or related to, individual cases before the judge are considered judicial in nature'”) (quoting Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009)). “Judicial immunity applies even when the judge is accused of acting maliciously or corruptly.” Coon v. Merola, No. 1:19-CV-394 (DNH/ATB), 2019 WL 1981416, at *3 (N.D.N.Y. Apr. 8, 2019) (citing Imbler v. Pachtman, 424 U.S. 409, 419 n.12, (1976))), report and recommendation adopted, 2019 WL 1978595 (N.D.N.Y. May 3, 2019). “The only two circumstances in which judicial immunity does not apply is when he or she takes action ‘outside' his or her judicial capacity and when the judge takes action that, although judicial in nature, is taken ‘in absence of jurisdiction.'” Id. (quoting Mireles, 502 U.S. at 11-12). Here, Plaintiff fails to plausibly allege that Judge Limpert was acting outside of his judicial capacity or in the absence of jurisdiction. The complaint should therefore be dismissed against Judge Limpert in his individual capacity with prejudice and without leave to amend.
IV. Opportunity To Amend
Generally, before courts dismiss a pro se complaint or any part of the complaint sua sponte, it should allow plaintiffs the opportunity to amend at least once. But leave to re-plead may be denied where any amendment would be futile. See Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is present when the problem with plaintiff's causes of action is substantive such that better pleading will not cure it. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation omitted). Here, because Judge Limpert is immune from suit, any amendment would be futile. The Court therefore recommends that the complaint be dismissed with prejudice and without leave to amend.
WHEREFORE, based on the findings above, it is
ORDERED, that Plaintiff's motion to proceed IFP (Dkt. 3) is GRANTED, and it is further
The Court notes that although Plaintiff's IFP application has been granted, plaintiff will still be required to pay fees that he may incur in the future regarding this action, if it moves forward, including but not limited to copying and/or witness fees.
RECOMMENDED, that the District Court DISMSS the complaint (Dkt. 1) WITH PREJUDICE in its entirety against Judge Limpert without leave to amend, and it is further
ORDERED, that while Plaintiff may file objections to this Order and Report-Recommendation, before plaintiff submits any amended pleading, he should wait for the District Court to rule on the above Orders and Recommendations, and it is further
ORDERED, that the Clerk of the Court serve a copy of this Order and Report-Recommendation on plaintiff by regular mail together with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72.