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Magary v. Benson

United States District Court, E.D. North Carolina, Eastern Division

March 1, 2018

ROBERT A. MAGARY, SR., Plaintiff,


          KIMBERLY A. SWANK United States Magistrate Judge

         This 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.


         I. Background

         Plaintiff 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.[1] (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.

         II. In Forma Pauperis Application

         The 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.

         III. Frivolity Review

         Notwithstanding 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.

         Plaintiff 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).

         Here, 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.

         Plaintiff 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.” Id.

         Here, Plaintiff's claims against Defendants Broudy and Imbrogno arise from actions taken in connection with judicial proceedings. Thus, these Defendants are immune from ...

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