The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
THOMAS PEPE,
Plaintiff,
v. Case No: 2:25-cv-617-JES-KCD
JUDGE MICHAEL T. MCHUGH,
JUDGE ALANE C. LABODA, JUDGE
JAMES SHENKO, JUDGE JOSEPH
FULLER, SENIOR JUDGE
CHRISTINE H. GREIDER, and
SENIRO JUDGE CYNTHIA A
PIVACEK,
Defendants.
OPINION AND ORDER
This matter comes before the Court on the Magistrate Judge’s
Report and Recommendation (Doc. #53) issued on August 28, 2025.
Plaintiff filed an Objection (Doc. #54), and a Notice of Judicial
Concern and Demand for Review (Doc. #55) on September 8, 2025.
I.
On July 13, 2025, plaintiff initiated a Complaint (Doc. #1)
against Judge Michael T. McHugh “for actions taken in clear absence
of jurisdiction, outside the scope of judicial authority, and in
concert with non-judicial actors to facilitate a fraudulent
foreclosure and obstruct justice in related probate matters.” On
July 18, 2025, plaintiff was granted leave to proceed in forma
pauperis, but the complaint was dismissed with leave to amend to
address certain deficiencies.1 (Doc. #8.)
On July 23, 2025, plaintiff filed an Amended Complaint (Doc.
#9) adding defendants Judge Alane C. Laboda, Judge James Shenko,
Judge Joseph Fuller, Christopher Decosta, Ralph Confreda, Scott
Brown, Wendy Manswell, John Richards, Douglas R. Goldin, Luke
Lajqui, Saul Villalobos, and “additional unnamed co-conspirators”
with a short generic statement of facts. Plaintiff filed numerous
notices and on July 30, 2025, filed a Second Amended Complaint
(Doc. #32) with additional facts and identified counts.
On August 8, 2024, plaintiff filed a document entitled “Third
Amended Complaint” (Doc. #47) with “reinstated claims” against
Judge Michael T. McHugh with numerous attachments. On August 13,
2025, plaintiff filed a Motion for Leave to File Third Amended
Complaint and to Reinstate Previously Terminated Defendants (Doc.
#49). On August 14, 2025, the motion was granted, and plaintiff
was directed to file the third amended complaint on or before
August 28, 2025. On August 19, 2025, plaintiff filed a Notice of
Refiled Third Amended Complaint Pursuant to Court Request (Doc.
1 Specifically, it was noted that Judge McHugh is entitled to
immunity for actions taken in his judicial capacity despite
plaintiff attempting to frame it otherwise, the pleading did not
comply with Fed. R. Civ. P. 8 and 10, and there were insufficient
factual allegations. (Doc. #8.)
#52) that does not include previous versions or a revised version
of a complaint and references exhibits.
On August 28, 2025, the Magistrate Judge issued a Report and
Recommendation (Doc. #53) noting that plaintiff’s claims against
the state judges stem from conduct that occurred while they were
acting in their judicial capacities in cases pending in the
Twentieth Judicial Circuit Courts of Florida. It is recommended
that the action be dismissed with prejudice because plaintiff has
been permitted to amend several times and plaintiff “offers no
facts to avoid judicial immunity.” (Id. at 3.)
II.
Plaintiff objects that judicial immunity does not apply when
judges act in a clear absence of jurisdiction. Plaintiff argues
that he has clearly alleged that the judges refused to adjudicate
central claims, obstructed due process, and acted outside the scope
of their lawful authority. Plaintiff also alleges criminal acts
by the judges.
The “Third Amended Complaint” (Doc. #47) filed on August 8,
2025, alleges that Judge Michael T. McHugh allowed a civil case
against Thomas Pepe “despite lacking subject matter jurisdiction,”
the judge “refused to act” on his filings, and Judge McHugh failed
to dismiss the case causing the foreclosure of the estate home of
Eugene Pepe. All of this occurred despite plaintiff’s allegations
of fraud and ADA barriers to filing. There are no allegations
specific to any of the other defendants. Attached to the pleading
is an Amended Complaint, a motion for leave to file the amended
complaint, a notice of filing amended complaint, and proposed
orders and summonses. On August 19, 2025, plaintiff filed a Notice
of Refiled Third Amended Complaint Pursuant to Court Request (Doc.
#52) listing counts and allegations with no factual basis. This
was reviewed as the operative third amended pleading.
“Judges are entitled to absolute judicial immunity from
damages for those acts taken while they are acting in their
judicial capacity unless they acted in the clear absence of all
jurisdiction. [] This immunity applies even when the judge’s acts
are in error, malicious, or were in excess of his or her
jurisdiction. [] Whether a judge’s actions were made while acting
in his judicial capacity depends on whether: (1) the act complained
of constituted a normal judicial function; (2) the events occurred
in the judge's chambers or in open court; (3) the controversy
involved a case pending before the judge; and (4) the confrontation
arose immediately out of a visit to the judge in his judicial
capacity.” Sibley v. Lando, 437 F.3d 1067, 1070 (11th Cir. 2005)
(internal quotation marks and citations omitted). “A judge is
entitled to absolute immunity for any acts that are within the
function of the judicial office and loses immunity only if the
claimed acts are wholly outside his jurisdiction as a judge.”
Lloyd v. Foster, 298 F. App'x 836, 840 (11th Cir. 2008) (citation
omitted).
There are no allegations in any of the filings of actions
taken outside of the purview of Judge McHugh’s role as a judge
presiding over a case, and zero allegations against any of the
other defendants in any of the various filings other than a general
allegation of a conspiracy.
After conducting a careful and complete review of the findings
and recommendations, a district judge may accept, reject or modify
the magistrate judge’s report and recommendation. 28 U.S.C. §
636(b)(1); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982),
cert. denied, 459 U.S. 1112 (1983). In the absence of specific
objections, there is no requirement that a district judge review
factual findings de novo, Garvey v. Vaughn, 993 F.2d 776, 779 n.9
(11th Cir. 1993), and the court may accept, reject or modify, in
whole or in part, the findings and recommendations. 28 U.S.C. §
636(b)(1). The Court agrees that plaintiff fails to state a claim
that is not barred by judicial immunity.
“A district court need not, however, allow an amendment (1)
where there has been undue delay, bad faith, dilatory motive, or
repeated failure to cure deficiencies by amendments previously
allowed; (2) where allowing amendment would cause undue prejudice
to the opposing party; or (3) where amendment would be futile.”
Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (citing
Foman v. Davis, 371 U.S. 178, 182 (1962)). The Court finds that
no amendment could cure the deficiencies, and any amendment would
be futile. The action will be dismissed without leave to amend
and with prejudice.
Accordingly, it is now
ORDERED :
1. Plaintiff’s Objection (Doc. #54) is OVERRULED.
2. The Report and Recommendation (Doc. #53) is adopted, and
the action is dismissed with prejudice.
3. The Clerk shall terminate all pending motions and deadlines
and close the file.
DONE and ORDERED at Fort Myers, Florida, this 16th day
of September 2025,
ox EL
: le hy ) Z. A, Gob
ade E. STEELE
SHNIOR UNITED STATES DISTRICT JUDGE
Copies:
Counsel of Record