United States District Court, E.D. North Carolina, Eastern Division
ROBERT A. MAGARY, SR., Plaintiff,
GERRIT BENSON, FREDERICK LOWE, LESLIE LILLY, MITCHELL BROUDY, and PETER IMBROGNO, Defendants.
ORDER and MEMORANDUM &
KIMBERLY A. SWANK United States Magistrate Judge
pro se case is before the court on the application [DE #1] by
Plaintiff Robert A. Magary, Sr. to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915(a)(1) and for
frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B),
the matter having been referred to the undersigned by the
Honorable James C. Dever III, Chief United States District
Judge. For the reasons set forth below, Plaintiff's
application to proceed in forma pauperis is allowed,
and it is recommended that Plaintiff's claims against
Defendants be dismissed.
seeks money damages from certain Commonwealth of Virginia
judges and guardians ad litem involved in his divorce and
child custody cases from 2001 through 2009. (Compl. [DE #1-1]
at 2-6.) He invokes federal question jurisdiction via
allegations that Defendants violated his Fourteenth Amendment
rights to due process and equal protection and his rights
under the Civil Rights Act of 1964. (Id. at 2.) The
undersigned construes Plaintiff's claim for money damages
based on violation of the Fourteenth Amendment as a claim
made pursuant to 42 U.S.C. § 1983, the statute which
permits a person to sue state actors for money damages for
deprivation of his civil rights.
In Forma Pauperis Application
standard for determining in forma pauperis status is
whether “one cannot because of his poverty pay or give
security for the costs . . . and still be able to provide
himself and dependents with the necessities of life.”
Adkins v. E.I. DuPont de Nemours & Co., 335 U.S.
331, 339 (1948). Based on the information contained in
Plaintiff's affidavit, the court finds that Plaintiff has
demonstrated appropriate evidence of inability to pay the
required court costs. Thus, Plaintiff's application to
proceed in forma pauperis is allowed.
the determination that Plaintiff is entitled to in forma
pauperis status, the court is required to dismiss all or
part of an action found to be frivolous or malicious, which
fails to state a claim on which relief can be granted, or
which seeks money damages from a defendant immune from such
recovery. 28 U.S.C. § 1915(e)(2); Michau v.
Charleston County, 434 F.3d 725, 728 (4th Cir. 2006). A
case is frivolous if it lacks an arguable basis in either law
or fact. Neitzke v. Williams, 490 U.S. 319, 325
(1989). Pro se complaints are entitled to a more liberal
treatment than pleadings drafted by lawyers. See White v.
White, 886 F.2d 721, 722-23 (4th Cir. 1989). However,
the court is not required to accept a pro se plaintiff's
contentions as true. Denton v. Hernandez, 504 U.S.
25, 32 (1992). The court is permitted to “pierce the
veil of the complaint's factual allegations and dismiss
those claims whose factual contentions are clearly
baseless.” Neitzke, 490 U.S. at 327.
asserts claims against Judges Gerrit Benson, Leslie Lilly,
and Frederick Lowe for various actions taken in the course of
Plaintiff's child custody proceedings in state court.
(Compl. at 3-5.) “It has long been settled that a judge
is absolutely immune from a claim for damages arising out of
his judicial actions.” Chu v. Griffith, 771
F.2d 79, 81 (4th Cir. 1985). “[J]udges of courts of
superior or general jurisdiction are not liable to civil
actions for their judicial acts, even when such acts are in
excess of their jurisdiction, and are alleged to have been
done maliciously or corruptly.” Stump v.
Sparkman, 435 U.S. 349, 355-56 (1978). “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 acted in the clear absence of all jurisdiction.”
Id.; see also McCray v. Maryland, 456 F.2d
1, 3 (4th Cir. 1972) (“The absolute immunity from suit
for alleged deprivation of rights enjoyed by judges is
matchless in its protection of judicial power. It shields
judges even against allegations of malice or
corruption.”), abrogated on other grounds by Pink
v. Lester, 52 F.3d 73, 77 (4th Cir. 1995).
Plaintiff's claims against Judges Benson, Lilly, and Lowe
arise from judicial actions taken in court proceedings
regarding child custody determinations between Plaintiff and
his former wife. Plaintiff has alleged no facts, even
construed liberally, to indicate these judges acted in the
clear absence of all jurisdiction. Therefore, these
Defendants are immune from the money damages Plaintiff seeks.
also asserts claims against Defendants Broudy and Imbrogno
for actions they took as guardians ad litem in the same child
custody proceedings. (Compl. at 3, 5.) The Fourth Circuit has
recognized absolute immunity for guardians ad litem for
actions “occur[ing] within the judicial process.”
Fleming v. Asbill, 42 F.3d 886, 889 (4th Cir. 1994).
This immunity applies even in circumstances where a guardian
ad litem has “lied to the judge in open court.”
Plaintiff's claims against Defendants Broudy and Imbrogno
arise from actions taken in connection with judicial
proceedings. Thus, these Defendants are immune from ...