THOMAS v. SCHLEGEL, No. 5:2014cv01282 - Document 21 (E.D. Pa. 2015)
Court Description: MEMORANDUM OPINION. SIGNED BY HONORABLE EDWARD G. SMITH ON 2/11/15. 2/12/15 ENTERED AND COPIES MAILED TO PRO SE, E-MAILED.(mas, )
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THOMAS v. SCHLEGEL Doc. 21 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA DALE A. THOMAS, Plaintif, CIVIL ACTION NO. 14-1282 v. DOUGLAS SCHLEGEL, Deendant. MEMORANDUM OPINION February 11, 2015 Smith, J. The pro se plaintif brings this 42 U.S.C. § 1983 action seeking injunctive and compensatory relief against the defendant, a Pennsylvania magisterial district judge, claiming that the defendant violated his constitutional rights when the deendant allegedly removed an exhibit from his oice file. The deendant moves to dismiss the complaint because he claims that, inter alia, the Eleventh Amendment bars the plaintiffs claim, his judicial position is not a "person" subject to suit under section 1983, and he is entitled to the protection of absolute judicial immunity. As the plaintiff has confirmed that he seeks relief against the deendant only in his individual capacity, the court does not have to address the defendant's arguments under the Eleventh Amendment and whether he is a "person" under section 1983. Nonetheless, the court finds that judicial immunity protects the defendant from the plaintiffs claims and, accordingly, the court will dismiss this action with prejudice. I. ALLEGATIONS AND PROCEDURAL HISTORY On February 28, 2014, the prose plaintiff, Dale A. Thomas, commenced this action by filing a complaint against the defendant, Magisterial District Judge Douglas Schlegel. Compl., Doc. No. 1. In the complaint, the plaintiff alleges that in March 2012, Judge Schlegel presided Dockets.Justia.com over a hearing relating to the plaintiff's alleged violation of a Bushkill Township noise ordinance. I. at i 1. The plaintif complains that prior to the hearing, the Bushkill Township Police Department gave him a written waning indicating that he had violated the noise 1 ordinance on various dates and times. I. at 1 4. The plaintif alleges that this noise ordinance requires a waning notice "setting orth the proscribed conduct, giving the person a chance to restrain rom said behavior, prior to the imposition of a ine." I. at 12. However, the warning the plaintiff received did not comply with this requirement because it failed to describe any 2 conduct that violated the ordinance. I. at r 4. The plaintif sought to defend himself at the March 2012 hearing beore Judge Schlegel by demonstrating that the police did not provide him with adequate notice of the conduct that violated the ordinance. I. at r 5. The plaintif urther alleges that the police anticipated this defense because the oficer testifying against the plaintif, Officer Happel, presented a waning notice that difered rom the notice that the plaintif received in that it speciically pertained to the plaintif's dogs. I. at r 6. Judge Schlegel admitted this "new" copy of the warning notice into evidence, and, ultimately, he ound the plaintiff guilty of two ofenses. I. at r 7. 1 Although the plaintif indicates that he attached a copy of the notice to the complaint, see Comp!. at 4, he ailed to do so. 2 The court may consider the ordinance, in efect since 2009, as a matter of public record. See Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) ("In evaluating a motion to dismiss, we may consider documents that are attached to or submitted with the complaint, . ..and any 'matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case."' (quoting 5B Charles A. Wright & Arthur R. Miller, Thomas v. Coopersmith, No. 11-7578, 2012 Fe. Prac. & Proc. § 1357 (3d ed. 2004)); see, e.g., (E.D. Pa. Aug. 21, 2012) (explaining that, in L 3599415, at *2, n.3 case involving the plaintif in the instant case, the court could consider the noise ordinance because it is "both integral to plaintiff's claim and a matter of public record "). The ordinance does not, as plaintif suggests, require that the oicer "set orth the proscribed conduct, giving the person a chance to restrain rom said behavior, prior to the imposition of a fine." Comp!.at 4. The only language regarding warnings in the ordinance is as ollows: B. Wanings. [I]f it is determined that there is a noise disturbance, the Township of Bushkill, shall upon written complaint by the afected person, who resides in the Township, conirmed and signed by a second complainant, or [corroborated] by a Bushkill Township Police Oficer, issue a written waning to the person responsible. Any such warning shall be in efect or six (6) months. Bushkill Twp.Ordinance No.2009-1 § l l(B) (June 4, 2009). 2 The plaintif timely filed an appeal from his summary conviction or a trial de Northampton County Court of Common Pleas. I. at 8. nova in the A ew months later, the plaintif visited Judge Schlegel's ofice to obtain a copy of the notice that Oicer Happel presented at the plaintiffs hearing. I. at 9. Ater retrieving the ofice ile, Judge Schlegel's secretary showed the plaintif that Oicer Happel's notice was missing rom the ile. I. at 10. While speaking with Judge Schlegel's secretary, the plaintif noticed a log in the file indicating that two documents were entered into evidence at the hearing, one titled Commonwealth exhibit 1 noise warning notice, and another titled defense exhibit 1 noise warning notice. I. The plaintif requested a copy of this log, and the secretary first obtained permission rom Judge Schlegel to provide it. I. at 10, 11. Although the log that the plaintiff observed in the oice referenced the two exhibits, he alleges that Judge Schlegel rewrote the log to show only Commonwealth exhibit 1 and he eventually received a copy of the rewritten log instead of the original log. I. at 11. The plaintif alleges that Judge Schlegel "removed this evidence from the file to cover up the fact[] that Officer Happel employed illegal evidence to procure a conviction, urther preventing plaintif rom challenging said evidence[] at trial de novo.'' I. at 12. Ater the trial de nova, the court imposed a $4,000 ine or ordered that the plaintiff leave 3 his home by the end of December 2012. I. at 15. On March 11, 2013, the plaintif served Judge Schlegel with a subpoena duces tecum, ormally requesting production of the noise warning notice that Oficer Happel entered into evidence at the hearing. I. at 16. Judge Schlegel did not respond to this subpoena. I. 3 During oral argument beore this court, the plaintif explained that because he told The Common Pleas Judge that he was considering moving, the Judge accepted his promise to move in lieu of imposing a monetary fine. plaintif had n The ongoing eud with his neighbor, whom the plaintif believed to be the individual who iled the noise complaint against him, and their disharmony lead the plaintif to decide to move. 3 Based on the aforementioned allegations, the plaintiff asserts a cause of action against Judge Schlegel under 42 U.S.C. § 1983. I. at 1. The plaintif alleges that "[w]ithholding the requested evidence deprived [him of] the undamental fairness requirement of due process under the Fourteenth Amendment of the United States Constitution." I. at 19. He seeks injunctive relief mandating Judge Schlegel to produce "the tainted evidence produced by Oicer Happel at the March 2nd hearing" and compensatory damages in excess of $ 150,000. I. at 23-24.4 With regard to the request or injunctive relief, the plaintiff states that he needs the "illegal evidence" or a pending civil matter (docketed in this court at No. 1 1-7578) and or two other criminal prosecutions. I. at 13, 2 1-22. Judge Schlegel filed the instant motion to dismiss on May 30, 20 14. Doc. No. 6. The plaintiff iled a response in opposition to the motion on June 30, 20 14. Doc. No. 12. Judge Schlegel iled a reply to the plaintiffs response on July 7, 20 14. Doc. No. 13. The plaintiff filed a surreply on July 30, 20 14. Doc. No. 14. The court held oral argument on January 15, 20 15. The motion is now ripe or disposition. II. DISCUSSION In the motion to dismiss, Judge Schlegel argues that the court should dismiss the complaint because ( 1) the Eleventh Amendment immunizes him from the claims against him in his official capacity; (2) the claims against him in his oficial capacity are barred because the Magisterial District Court over which Judge Schlegel presides is not a "person" under 42 U.S.C. § 1983; (3) the doctrine of absolute judicial immunity bars any individual capacity claims against him; (4) the plaintiffs claim or injunctive relief is actually a improper request for 4 mandamus; The complaint's numbered paragraphs run rom I to 23, followed by one unnumbered paragraph under the heading "Damages," j ust before the "Wherefore" clause. For reference purposes only, the court will label this unnumbered paragraph under "Damages" as paragraph 24. 4 and (5) the Rooker-Feldman doctrine bars the claims. Mot. to Dismiss Pl.'s Compl. Filed on Behalf of the Honorable Douglas Schlegel ("De.'s Mot.") at i! 9-15. In response to Judge Schlegel's arguments, the plaintif contends that Judge Schlegel did not act in his oficial or judicial capacity when he allegedly violated the plainti's constitutional rights, that he is suing Judge Schlegel in his individual capacity only, and that Judge Schlegel's actions did not constitute a "judicial act" or purposes of judicial immunity. Pl.'s Mem. in Opp'n to Mot. to Dismiss ("Pl.'s Opp'n") at 2-4. Additionally, the plaintif argues that his claim is not barred by the Rooker-Feldman doctrine because he "is not requesting this Court to review the propriety of the state court's ruling." I. at 8. The plaintiff has also clarified that he is not pursuing any claims against Judge Schlegel in his oficial capacity. See Resp. to Reply in Opp'n to Mot. to Dismiss ("Pl.'s Surreply") at 1 (stating that "[p]laintiff is suing Judge Schlegel in his individual capacity, not the entity in which he presides" and "plaintif, is not suing Judge Schlegel in his oicial capacity, and counsel's fabrication of such a claim is unfounded" (emphasis in original)). Therefore, the court need not address Judge Schlegel's arguments that the Eleventh Amendment bars the plaintiffs claims or that he is not a "person" under 42 U.S.C. § 1983 because those arguments would only serve to dismiss any claims against him or damages in his oicial capacity. See, e.g., Garden St. Elec. Inspection Servs. Inc. v. Levin, Eleventh Amendment and 144 F. App'x 247, 250-51 (3d Cir. 2005) (explaining that 42 U.S.C. § 1983 permit suits for damages against state officials when sued in their personal or individual capacities, but not when sued in oficial capacities). 5 Regarding the remaining claims against Judge Schlegel in his individual capacity, for the reasons 5 The court recognizes that a plaintiff may pursue a section his or her oicial capacity. See Wll v. 1983 claim for injunctive relief against a state oicial in Mich. Dep 't of St. Pol., 491 U.S. 58, 71 n.10 ("Of course a state oicial in his or her oficial capacity, when sued or injunctive relief, would be a person under § 1983 capacity actions or prospective relief are not treated as actions against the State."' (quoting 473 U.S. 159, 167 n.14 (1985)). 5 because 'oicial Kentucy v. Graham, discussed below, the court dismisses those claims with prejudice because judicial immunity bars those claims. A. 1. The Motion To Dismiss Standard of Review-Rule 12(b)(6) Motions Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal of a complaint or a portion of a complaint or failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests "the suficiency of the allegations contained in the complaint." Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (citation omitted). As the moving party, "[t]he deendant bears the burden of showing that no claim has been presented." Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citation omitted). In general, a complaint is legally suicient if it contains "a short and plain statement of the claim showing that the pleader is entitled to relie." Fed. R. Civ. P. 8(a)(2). "The touchstone of [this] pleading standard is plausibility." Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012). Although Rule 8(a)(2) does "not require heightened fact pleading of speciics," it does require the recitation of "enough acts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has acial plausibility when the plaintif pleads actual content that allows the court to draw the reasonable inference that the deendant is liable or the misconduct alleged." Ashcrot v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). In other words, "[t]he plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a deendant has acted unlawully." (quotation omitted). I. Ultimately, a complaint must contain acts suicient to nudge any claim "across the line rom conceivable to plausible." Twombly, 550 U.S. at 570. 6 In implementing the overarching plausibility standard, the court is required to conduct a three-part inquiry. First, the court must "outline the elements a plaintiff must plead to a state a claim or relief." Bistrian, 696 F.3d at 365 (citations omitted). Second, the court must identify allegations that are not "entitled to the assumption of truth" because they "are no more than conclusions." I. (citations omitted). Thus, legal conclusions, whether in pure form or "couched as actual allegation[s]," and conclusory actual allegations are not entitled to be assumed true. See Iqbal, 556 U.S. at 678, 681 (quoting Twombly, 550 U.S. at 555); Siwulec v. JM Adjustment Servs., LLC, 465 F. App'x 200, 202 (3d Cir. 2012). Finally, the cout must "look or well-pled factual allegations, assume their veracity, and then 'determine whether they plausibly give rise to an entitlement to relief."' Bistrian, 696 F.3d at 365 (quotations omitted). This determination is "a context-speciic task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679 (citation omitted). The court generally limits this three-part inquiry to "the allegations contained in the complaint, exhibits attached to the complaint and matters of public record." Guar. Corp. v. Pension Benefit hite Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (citations omitted). However, the court may also properly consider "an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiffs claims are based on the document." I. (citations omitted). 2. Analysis Because the plaintif acknowledges that he is pursuing claims against Judge Schlegel in his individual capacity, the court will not address Judge Schlegel 's arguments for dismissal under the Eleventh Amendment and whether his oice is a "person" under section 1983. Instead, the 7 court will address whether Judge Schlegel is immune rom suit in this case pursuant to judicial immunity. Judges are absolutely immune rom liability in civil actions, including section 1983 actions, or their judicial acts. Dennis v. Spars, 449 U.S. 24, 27 (1980). "Judicial immunity is an immunity rom suit, not just rom ultimate assessment of damages." Mireles v. Waco, 502 U.S. 9, 11 (1991). Both judges of general and limited jurisdiction, including magisterial judges, are entitled to judicial immunity. See Figueroa v. Blackburn, 208 F.3d 435, 441 (3d Cir. 2000) (concluding that magisterial district judges, even though they preside over courts of limited jurisdiction, are entitled to protections of judicial immunity). There are only two circumstances in which a plaintiff can overcome judicial immunity: "First, a judge is not immune rom liability or nonjudicial actions, i.e., actions not taken in the judge's judicial capacity. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction." Mireles, 502 U.S. at 11-12 (citations omitted). In determining whether judicial immunity applies, the court "must decide whether the Complaint set forth allegations that, taken as true, establish that the application of an exception to the doctrine of absolute judicial immunity is above the speculative level." Kirkland v. DiLeo, 581 F. App'x 111, 114-15 (3d Cir. 2014) (citing Bell At!. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Whether Judge Schlegel's Acts were Non-Judicial in Nature a. As indicated above, the court must first determine whether the complaint includes allegations showing that Judge Schlegel's acts were non-judicial in nature. In analyzing whether an act is non-judicial in nature, courts consider "whether it is a function normally perormed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity." Stump v. Sparkman, 435 U.S. 349, 362 (1978). "[T]he relevant inquiry is the 'nature' 8 In other words, we look to the particular act's and 'unction' of the act, not the 'act itself.' relation to a general unction normally performed by a judge." Mireles, 502 U.S. at 13 (citing Stump, 435 U.S. at 362)). Although neither the Supreme Court nor the Third Circuit have enumerated the particular acts that are deinitively judicial in nature, some other Circuit Courts of Appeals have considered the following actors: "(1) whether the precise act complained of is a normal judicial unction; (2) whether the acts occurred in the courtroom or appropriate adjunct spaces such as the judge's chambers; (3) whether the controversy centered around a case pending beore the court; and (4) whether the acts arose directly out of a visit to the judge in his oficial capacity." Perez v. Gamez, No. 1:13-CV-01552, 2013 WL 6147935, at *6 (M.D. Pa. Nov. 22, 2013) (quoting Davis v. Tarrant Cny., Tex., 565 F.3d 214, 222-23 (5th Cir. 2009) and citing to Duvall v. Cny. of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001)). Here, the relevant allegations rom the complaint are that the "plaintif proceeded to the ofice of the Magistrate to obtain a copy of the noise warning notice . . . entered into evidence at the hearing." Compl. at 9. Judge Schlegel's secretary "showed the plaintif that this document was missing rom the ile." I. at 10. Upon the plaintiffs request, the secretary then asked Judge Schlegel or permission to give the plaintif a copy of the evidence log from the hearing. I. at 11. When the plaintif received the copy, he saw that it had been rewritten to omit reerence to the document that the plaintif had entered into evidence at the hearing: "deense exhibit 1 noise warning notice." I. at 10-11. Assuming that these allegations are true, as the court must or purposes of this analysis, and applying them to the our-factor test outlined above, the court inds that the acts complained of are judicial in nature. The allegations demonstrate that the irst factor is satisied because the precise act complained of-custody and control over oficial case records-is a normal judicial 9 unction of Pennsylvania magisterial district judges. In this regard, the "[s]ecurity, possession, custody and control of the oficial case records of the magisterial district courts are generally the responsibility of the magisterial district judge and his or her designated staf." 204 Pa. Code § 213.2. Judge Schlegel is accused of removing an evidentiary exhibit rom the case record of a matter that was assigned to him and over which he presided. As a magisterial district judge, it was his province to maintain the case records, keep them within his possession and custody, and ensure their security. Because these are unctions normally performed by a Pennsylvania magisterial district judge, Judge Schlegel's handling of a document in a case record is an act that is judicial in nature. This is the case even if, as the plaintif alleges, Judge Schlegel purposefully mishandled and removed the document rom the ofice ile. A judge is not deprived of immunity even when the action was "in error, done maliciously or corruptly, or ...in excess of his [or her] authority." Iseley v. Bucks Cny., 549 F. Supp.160, 165 (E.D. Pa. 1982). Further, the act that the plaintif went to Judge Schlegel's oice to obtain a copy of the evidence indicates that the plaintif understood that case records are maintained by magisterial district judges, and this supports the conclusion that this judicial unction was performed to the expectation of the parties. As or the second factor, the complaint does not provide any factual allegations that the court may rely on to discern whether the acts occurred in the courtroom or appropriate adjunct spaces such as the judge's chambers. The plaintif alleges that he arrived at Judge Schlegel's oice to obtain a copy of the noise warning, and "[w]hen the secretary pulled the ile[,] she stated that the evidence was missing rom the file." Pl. Opp'n at 3. The logical conclusion is 's that Judge Schlegel would have been in his oice when he allegedly tampered with the file. However, the allegations appear to show that Judge Schlegel may have removed the document 10 prior to the time that the plaintiff arrived in his oice, thus, or purposes of this motion, the court cannot conclude where the removal actually took place and the second actor is non determinative. Concening the third actor, the allegations satisy this actor because all of the allegations center around the plaintiffs hearing and convictions for violating the noise ordinance. Judge Schlegel presided over the hearing, Judge Schlegel admitted the missing document-the noise violation warning-into evidence at the hearing, and the plaintif alleges that Judge Schlegel removed the document rom the case ile. Thereore, the controversy is entirely concerned with and about a case pending beore the court. For the inal factor, the acts arose directly out of a visit to Judge Schlegel in his official capacity. The plaintif visited Judge Schlegel's office to obtain records rom this case beore Judge Schlegel, and Judge Schlegel was maintaining those records pursuant to his duty as a magisterial district judge. See 204 Pa. Code § 213 .2. In summation, the court inds that, as the presiding judge, Judge Schlegel's maintenance of, or failure to maintain, the case record and its corresponding exhibits relating to the plaintiffs noise ordinance violation hearing was a judicial act. b. Whether Judge Schlegel's Acts were Taken in the Complete Absence of all Jurisdiction Ater concluding that the acts complained of were judicial in nature, the court must next evaluate whether the acts, while judicial, were taken in complete absence of all jurisdiction. "A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the 'clear absence of all jurisdiction."' Stump, 435 U.S. at 356-57 (quoting Bradley v. Fisher, 80 U.S. 335, 351 (1871)). In support of his argument that Judge Schlegel was acting in 11 complete absence of all jurisdiction, the plaintif points out that prior to visiting Judge Schlegel' s ofice to obtain a copy of the noise warning, he had appealed his conviction to the Court of Common Pleas of Northampton County. Compl. at 8-9. He notes that it was not until a few months ater he iled the appeal that he visited Judge Schlegel's oice. I. The appeal, the plaintiff argues, efectively divested Judge Schlegel of jurisdiction, such that at the time he committed the act of removing evidence rom the file, he was acting without jurisdiction. Pl. 's Opp'n at 1; Pl.'s Surreply at 2. As a preliminary matter, the plaintiff does not allege precisely when Judge Schlegel removed the evidence. The plaintif's jurisdictional argument merely assumes that it happened ater he iled his appeal. The court inds, however, that regardless of when Judge Schlegel removed the document rom the ile, he was not acting in complete absence of jurisdiction. Contrary to the plaintiff's assertion, there is a diference between "excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter." Stump, 435 U.S. at 356 n.6. More speciically, [w]here there is clearly no jurisdiction over the subject-matter any authority exercised is a usurped authority, and or the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject-matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions or his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars the validity of his judgments may depend. I. (quoting Bradley, 80 U.S. at 351-52) (emphasis added). The key inquiry, thereore, is whether Judge Schlegel had subject-matter jurisdiction. Pennsylvania magisterial district judges have jurisdiction over, inter alia, summary ofenses. See 42 Pa. C.S. § 1515. A summary offense is an offense that is statutorily designated as such, or one that carries a maximum sentence of ninety days imprisonment. See 18 Pa. C.S. § 106(c). 12 Judge Schlegel convicted the plaintif of violating an ordinance-the Bushkill Township Noise Ordinance-which carries a maximum sentence of $1,000, and, in default of payment, a maximum thirty days imprisonment. Bushkill Twp. Ordinance No. 2009-01 § 13 (June 4, 2009). Therefore, violating the ordinance is a summary offense and Judge Schlegel had subject-matter jurisdiction over the hearing on the violations. Even if the complained-of act occurred ater the plaintif filed the appeal or a trial de nova, the iling of the appeal did not divest Judge Schlegel of subject-matter jurisdiction. See, e.g., Green v. Maraia, 722 F.2d 1013, 1017-18 (2d Cir. 1983) (holding that even when a judge no longer has personal jurisdiction over the defendant and the case, he may still possess subject-matter jurisdiction). Several circuits have held that a judge does not act in clear absence of subject-matter jurisdiction when a judge later acts ater an appeal was taken. See Dellenbach v. Letsinger, 889 F.2d 755, 760 n.6 (7th Cir. 1989) (collecting cases). "[A] judge who possesses subject matter jurisdiction is not within the 'clear absence of all jurisdiction' posture which would deprive him of the use of the defense of judicial immunity." Green, 722 F.2d at 1017-18. At most, Judge Schlegel acted in excess of jurisdiction, but this would still entitle him to the protections of judicial immunity. See Mullis v. U. Bankr. Court for Dist. of Nev., 828 F.2d 1385, 1389 (9th Cir. 1987) (holding that a bankruptcy judge merely acted in excess of jurisdiction when the judge "improperly retained jurisdiction ater commencement of his appeal to the district court"). For the aforementioned reasons, the plaintif has not met his burden to "set forth allegations that, [i] taken as true, establish that the application of an exception to the doctrine of absolute judicial immunity is above the speculative level." Kirkland v. Dileo, 581 F. App'x 111, 114-15 (3d Cir. 2014) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 13 Accordingly, Judge Schlegel is entitled to the protections of judicial immunity and the court will 6 dismiss the complaint with prejudice. B. The Plaintiff's Request For Payment For Service Of The Summons And Complaint In his response in opposition to the motion to dismiss, the plaintiff requests compensation or service of the summons and complaint. Pl. 's Opp'n at 8-9. The plaintiff states that he sent the defendant a letter on March 24, 2014, requesting waiver of service of the summons, a copy of which he attaches as Exhibit 1 to his opposition. I. at Ex. 1. The plaintif argues that because the defendant did not respond within the thirty-day time limit provided by Federal Rule of Civil Procedure 4(d)(l)(F), he is entitled to reimbursement of the monies spent hiring the Northampton County Sherifs Oice to effectuate service of the summons and complaint. Id. at 9. Despite the plaintiffs request for compensation, he ails to argue or prove by way of documentary evidence that he complied with all of the provisions of Rule 4(d)(l). These provisions mandate that the notice and request or waiver contain certain inormation and language. See Fed. R. Civ. P. 4(d)(l) (setting orth requirements or notice and request or waiver of service). In particular, the plaintif ails to show that he complied with Rule 4(d)'s requirements that the notice and request "name the court where the complaint was filed;" "be accompanied by a copy of the complaint, two copies of a waiver form, and a prepaid means or retuning the form;" and "inorm the deendant, using text prescribed in Form 5, of the consequences of waiving and not waiving service." 7 Fed. R. Civ. P. 4(d)(l)(B), (C), (D). 6 Because of the resolution of this issue, the court will not address the defendant's remaining arguments about this 7 If the plaintif can prove that he provided this inormation elsewhere, such as on a separate sheet of paper, he action constituting an improper request or mandamus and the possible application of the Rooker-Feldman doctrine. should provide such proof to the court in the allotted timerame. The court notes that as to Rule 4(d)(l )(D) requirement that the plaintiff use the language in Form 5 to alert the deendant to the consequences of waiving and not waiving service, the language contained in the plaintifs letter request for waiver is deicient. The plaintiffs letter reads as ollows: You have thirty days rom the date of this letter to respond to my waiver of service request. Ater said time I will have service of the summons completed at your expense, as you may know rom 14 Nonetheless, as it appears that the plaintif has raised a potentially cognizable claim or reimbursement, the plaintif shall have a period of thirty days to submit proof that would satisfy the court that all of the requirements of Rule 4(d)( l ) were met in his March 24, 2014 request or waiver of service. If the plaintiff does not submit suficient proof within thirty days, the court will consider the plaintif to have abandoned his claim or reimbursement under Rule 4(d)(2). III. CONCLUSION Ater examining the allegations in the complaint, the exhibits attached to the complaint, the parties' submissions, and matters of public record, and ater hearing argument rom the parties, the court inds that the plaintif has failed to set orth allegations establishing that Judge Schlegel acted outside his judicial capacity or acted in the absence of all jurisdiction. Judge Schlegel is therefore entitled to the protections of judicial immunity and is immune rom this lawsuit. Accordingly, the court will dismiss this action with prejudice. An appropriate order follows. BY THE COURT: \ EDWARD G. SMITH, J. the instructions at the bottom of the waiver, there are some beneits or you to waive service of the summons. Pl. 's Opp'n at Ex. I. This language does not come close to the language provided in Form 5, which prescribes that the plaintif include the following language when requesting waiver of service: If you retun the signed waiver, I will file it with the court. The action will then proceed as if you had been served on the date the waiver is iled, but no summons will be served on you and you will have 60 days rom the date this notice is sent (see the date below) to answer the complaint (or 90 days if this notice is sent to you outside any judicial district of the United States). If you do not return the signed waiver within the time indicated, I will arrange to have the summons and complaint served on you. And I will ask the court to require you, or the entity you represent, to pay the expenses of making service. Fed. R. Civ. P. Form 5. It is insuicient, under the Rule, to simply assert that the defendant "may know" the beneits of waiving, or consequences of not waiving, service. 15
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