The opinion
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RICHARD HONE,
Plaintiff, Civil Action No. 21-4991
v. OPINION & ORDER
ANNE E. THOMPSON, et al.,
Defendants.
John Michael Vazquez, U.S.D.J.
Plaintiff Richard Hone seeks to bring this action in forma pauperis pursuant to 28 U.S.C.
§ 1915. D.E. 1. For the reasons discussed below, the Court GRANTS his application to proceed
in forma pauperis but DISMISSES the Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B).
Under Section 1915, this Court may excuse a litigant from prepayment of fees when the
litigant “establish[es] that he is unable to pay the costs of his suit.” Walker v. People Express
Airlines, Inc., 886 F.2d 598, 601 (3d Cir. 1989). Plaintiff sufficiently establishes his inability to
pay, and the Court grants his application to proceed in forma pauperis without prepayment of fees
and costs.
When allowing a plaintiff to proceed in forma pauperis the Court must review the
complaint and dismiss the action if it determines that the action is frivolous, malicious, fails to
state a claim upon which relief may be granted, or seeks monetary relief against a defendant who
is immune. 28 U.S.C. § 1915(e)(2)(B). When considering dismissal under Section
1915(e)(2)(B)(ii) for failure to state a claim on which relief can be granted, the Court must apply
the same standard of review as that for dismissing a complaint under Federal Rule of Civil
Procedure 12(b)(6). Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir. 2012).
To state a claim that survives a Rule 12(b)(6) motion to dismiss, a complaint must contain
“enough facts 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 facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the plausibility standard “does
not impose a probability requirement, it does require a pleading to show more than a sheer
possibility that a defendant has acted unlawfully.” Connelly v. Lane Const. Corp., 809 F.3d 780,
786 (3d Cir. 2016) (internal quotation marks and citations omitted). As a result, a plaintiff must
“allege sufficient facts to raise a reasonable expectation that discovery will uncover proof of her
claims.” Id. at 789. In other words, although a plaintiff need not plead detailed factual allegations,
“a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell
Atl. Corp., 550 U.S. at 555 (internal quotations omitted).
Because Plaintiff is proceeding pro se, the Court construes the Complaint liberally and
holds it to a less stringent standard than papers filed by attorneys. Haines v. Kerner, 404 U.S. 519,
520 (1972). The Court, however, need not “credit a pro se plaintiff's ‘bald assertions’ or ‘legal
conclusions.’” Grohs v. Yatauro, 984 F. Supp. 2d 273, 282 (D.N.J. 2013) (quoting Morse v. Lower
Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)).
Through this matter, Plaintiff is largely challenging United States District Court Judge
Anne Thompson’s decision in a different case brought by Plaintiff. Although Plaintiff provides
few details about the underlying matter, it appears that Judge Thompson screened Plaintiff’s
complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and dismissed the complaint. D.E. 1 at 4, ¶ 2.
Plaintiff now seems to allege that Judge Thompson conspired with state court judges, who were
defendants in the underlying matter, to violated Plaintiff’s due process rights. Id. Plaintiff names
Judge Thompson and two other defendants, who are presumably the state court judges in the
underlying matter. Plaintiff states that he is asserting a Bivens claim, in addition to claims pursuant
to 42 U.S.C. § 1983, based on violations of the Ninth and Fourteenth Amendments. D.E. 1 at 3.
Specifically, Plaintiff alleges the Defendants conspired to deny Plaintiff of his due process and fair
hearing rights. Id. at 6.
Section 1983 provides individuals with a cause of action for certain violations of
constitutional rights. See 42 U.S.C. § 1983. Section 1983, in relevant part, provides as follows:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress[.]
Section 1983 does not provide substantive rights; rather, Section 1983 provides a vehicle for
vindicating violations of other federal rights. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
To state a Section 1983 claim, a plaintiff must demonstrate that “(1) a person deprived him of a
federal right; and (2) the person who deprived him of that right acted under color of state or
territorial law.” Burt v. CFG Health Sys., No. 15-2279, 2015 WL 1646849, at *2 (D.N.J. Apr. 14,
2015). “Bivens is the short-hand name given to causes of action against federal officials for alleged
constitutional violations.” Bistrian v. Levi, 912 F.3d 79, 88 (3d Cir. 2018). Thus, Bivens is
essentially a “federal analog” to suits brought against state officials under Section 1983. Ashcroft,
556 U.S. at 675 (2009). While not set forth in Plaintiff’s pleading, the Court assumes that Plaintiff
intends to assert his Bivens claim against Judge Thompson, who is a federal judge, and his Section
1983 claims against the state court judge Defendants, who are presumably state actors.
Turning first to Plaintiff’s Bivens claim, Plaintiff asserts that Defendants violated his Ninth
and Fourteenth Amendment rights. D.E. 1 at 3. But the Supreme Court has only approved of
Bivens action in three contexts: (1) a violation of Fourth Amendment search and seizure
protections, Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 397 (1971); (2) a
violation of Fifth Amendment due process protections (against gender discrimination), Davis v.
Passman, 442 U.S. 228, 248-49 (1979); and (3) a violation of Eighth Amendment protections
against cruel and unusual punishment (in not providing a prisoner adequate medical treatment),
Carlson v. Green, 446 U.S. 14, 19 (1980). “These three cases—Bivens, Davis, and Carlson—
represent the only instances in which the Court has approved of an implied damages remedy under
the Constitution itself.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1854-55 (2017). Thus, Plaintiff fails
to allege that Judge Thompson violated any constitutional right that could lead to cognizable
Bivens claim and fails to provide any authority even suggesting that a Bivens claims is appropriate.
In fact, outside of these three instances, the Supreme Court has made clear that expanding the
Bivens remedy “is a disfavored judicial activity.” Hernandez v. Mesa, 140 S. Ct. 735, 742 (2020)
(internal quotations omitted).
In addition, even if Plaintiff did have an appropriate vehicle to bring his claims, Plaintiff
fails to sufficiently allege facts to support his claim. In fact, Plaintiff’s allegations are largely
conclusory, caustic, and legally erroneous. Plaintiff’s claim against Judge Thompson appears to
be that when screening the complaint in the underlying matter pursuant to 28 U.S.C. §
1915(e)(2)(B), Judge Thompson incorrectly dismissed Plaintiff’s claim based on judicial
immunity. D.E. 1 at 4. “A District Court may dismiss a complaint sua sponte on the immunity
grounds of § 1915(e)(2)(B)(iii) when it is clear on the face of the complaint that a party is immune
from suit.” McDeavitt v. McCarthy, 767 F. App’x 365, 367 (3d Cir. 2019); see also 28 U.S.C. §
1915(e)(2)(B)(iii) (explaining that a “court shall dismiss the case at any time if the court determines
that . . . the action or appeal . . . seeks monetary relief against a defendant who is immune from
such relief.”).
First, Plaintiff misstates the standard under § 1915(e)(2)(B). He claims that the section
only applies to cases that are frivolous or clearly baseless. D.E. 1 at 4 ¶ 2. This statement is wrong
as a matter of law. The statute clearly indicates that a federal court must also screen a complaint
to determine if “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)(ii), (iii).
Second, Plaintiff complains that Judge Thompson made him try his case before the
defendants responded. D.E. 1 at 4 ¶ 2. Plaintiff is again incorrect as a matter of law. In screening
a complaint, a federal court is determining the sufficiency of the complaint. In other words, the
screening process concerns pleadings not trials. And to the extent that Plaintiff is complaining that
Judge Thompson screened his complaint, that is exactly what she was required to do under the
law.
Third, Plaintiff’s allegations of a conspiracy are entirely conclusory. Plaintiff essentially
argues that because Judge Thompson screened his complaint and ruled against him, Judge
Thompson was engaged in a conspiracy. Id. That is the sum and substance of Plaintiff’s
conspiracy allegations, which fall well short of being plausible. As for Plaintiff’s claims against
the remaining Defendants, although Plaintiff alleges that they conspired to violate his Ninth1 and
1 Plaintiff fails, even in a conclusory fashion, to indicate any basis for a claim under the Ninth
Amendment.
Fourteenth Amendment rights, Plaintiff fails to sufficiently allege any facts about their allegedly
wrongful conduct. In fact, outside of the conclusory allegation that Defendants conspired to deny
Plaintiff’s due process and fair hearing rights, Plaintiff provides no information to establish that a
conspiracy existed or what Defendants even did wrong.
Finally, given the fact that Judge Thompson’s alleged wrongdoing stems from her decision
to dismiss the underlying complaint, judicial immunity is applicable. “The doctrine of judicial
immunity is founded upon the premise that a judge, in performing his or her judicial duties, should
be free to act upon his or her convictions without threat of suit for damages.” Figueroa v.
Blackburn, 208 F.3d 435, 440 (3d Cir. 2000). Accordingly, judges are generally immune from a
suit for money damages that challenges their conduct as a judge. Id.
Plaintiff asserts that judicial immunity does not apply. D.E. 1 at 4-5. Once again, Plaintiff
is wrong as a matter of law. Plaintiff claims that his injuries consist of “extreme emotional trauma”
and seeks “[$]50 million in compensatory + punitive damages.” D.E. 1 at 7. The case on which
Plaintiff relies, Pulliam v. Allen, 466 U.S. 522 (1984), addresses prospective injunctive relief.
Here, Plaintiff seeks money damages. Moreover, Pulliam, was decided under Section 1983 rather
than Bivens. Most importantly, after Pulliam, Congress enacted the Federal Courts Improvement
Act of 1996, Pub. L. 104-317, which amended Section 1983 to provide that “in any action brought
against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive
relief shall not be granted unless a declaratory decree was violated or declaratory relief was
unavailable.” Thus, the section of Pulliam on which Plaintiff relies has been overturned by statute.
When dismissing a case brought by a pro se plaintiff, a court must decide whether the
dismissal will be with prejudice or without prejudice, the latter of which affords a plaintiff with
leave to amend. Grayson v. Mayview State Hosp., 293 F.3d 103, 110-11 (3d Cir. 2002). The
district court may deny leave to amend only if (a) the moving party's delay in seeking amendment
is undue, motivated by bad faith, or prejudicial to the non-moving party or (b) the amendment
would be futile. Adams v. Gould, Inc., 739 F.2d 858, 864 (3d Cir. 1984). Because Plaintiff is
proceeding pro se and this is the Court’s initial screening, the Court will provide Plaintiff with an
opportunity to file an amended complaint solely as to the state court judge Defendants. Plaintiff’s
claims against Judge Thompson, however, will be dismissed with prejudice because Judge
Thompson is immune from claims related to work performed within her judicial capacity.
Accordingly, any claim against Judge Thompson would be futile. Therefore, the Court provides
Plaintiff thirty (30) days to file an amended complaint that cures the deficiencies set forth herein,
but only as to the state court judge Defendants.
However, before filing an amended complaint, Plaintiff should be aware of at least two
potential issues. First, to the extent Plaintiff is making allegations and claims against the state
judges which Judge Thompson already found insufficient, any amended complaint would be
dismissed on grounds of claim preclusion. The appropriate relief for Plaintiff, if he disagreed with
Judge Thompson’s decision, was to file a motion for reconsideration or to file an appeal with the
United States Court of Appeals for the Third Circuit.
In addition, assuming that an amended complaint would not address matters already
decided by Judge Thompson, if Plaintiff’s allegations against the state judges stem from their
decisions or role as judges, this Court will also conclude that the state court judge Defendants are
immune from suit.
Accordingly, and for good cause shown,
IT IS on this 29th day of March, 2021,
ORDERED that pursuant to 28 U.S.C. § 1915(a), Plaintiff Richard Hone’s application to
proceed in forma pauperis is GRANTED; and it is further
ORDERED that the Clerk of the Court is directed to file the Complaint without
prepayment of the filing fee; and it is further
ORDERED that Plaintiff's Complaint is DISMISSED pursuant to 28 U.S.C. §
1915(e)(2)(B); and it is further
ORDERED that Plaintiffs Complaint against Judge Thompson is DISMISSED with
prejudice; and it is further
ORDERED that Plaintiff is afforded thirty (30) days to file an amended complaint that
cures the deficiencies as set forth above as to the remaining Defendants. Failure to file an amended
complaint within this time will result in the entire case being dismissed with prejudice; and it is
further
ORDERED that the Clerk of the Court shall mail a copy of this Opinion and Order to
Plaintiff by regular mail and by certified mail return receipt.
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