United States District Court, E.D. New York
XIU JIAN SUN, Plaintiff.
CHERYL L. POLLAK, Defendant.
MEMORANDUM & ORDER
N. VITALIANO, United States District Judge
March 20, 2017, pro se plaintiff Xiu Jian Sun
commenced this action against United States Magistrate Judge
Cheryl L. Pollak, who sits in the Eastern District of New
York. ECF Dkt. No. 1. Plaintiff paid the statutory filing
fee, but appears pro se. See Mar. 20, 2017 Filing
Fee Receipt. For the reasons set forth below, the action is
dismissed with prejudice.
identifies himself as "god's servant" and
"the spiritual Adam, " and asserts that
"Jehovah" instructed him to sue Magistrate Judge
Pollak, whom he dubs "Pharisees." ECF Dkt. No. 1 at
1. The complaint does not plead any facts concerning Judge
Pollak, nor does it articulate any cognizable cause of
action, nor does it request any relief aside from the
appointment of a Mandarin Chinese interpreter for any court
proceedings. See Id. at 1-2. However, since
plaintiff attached to the complaint a copy of a report and
recommendation that Judge Pollak issued, on March 2, 2017, in
a separate action brought by him, it would appear that Sun
seeks to sue Judge Pollak over the issuance of that report
and recommendation. Id. at
prefatory note, this is the fifth action that plaintiff has
filed in this district against judges, judicial employees,
and lawyers. All of the previous four actions have been
dismissed, either as frivolous or for failure to prosecute.
See Sun v. Cheung, No. 16-cv-5734, slip op.
(E.D.N.Y. Apr. 6, 2017) (dismissed for failure to prosecute);
Sun v. Dillon, No. 16-cv-5276, slip op. (E.D.N.Y.
Oct. 5, 2016) (dismissed as frivolous); Sun v.
Katzmann, No. 16-cv-3937, slip op. (E.D.N.Y. Aug. 2,
2016) (same); Sun v. Cavallo, No. 16-cv-1083, slip
op. (E.D.N.Y. Mar. 19, 2016) (same), appeal
dismissed, No. 16-950 (2d Cir. Aug. 12, 2016).
pro se complaint, "however inartfully pleaded, must
be held to less stringent standards than formal pleadings
drafted by lawyers." Erickson v. Pardus, 551
U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007)
(citation omitted). Such a complaint should "be
liberally construed, " id. (citation omitted),
and "interpreted 4to raise the strongest arguments that
[it] suggest[s], '" Graham v. Henderson, 89
F.3d 75, 79 (2d Cir. 1996) (citation omitted). Nonetheless, a
pro se complaint must still plead sufficient facts
to state a claim "that is plausible on its face."
See Teichmann v. New York, 769 F.3d 821, 825 (2d
Cir. 2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)). "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." Iqbal, 556 U.S. at 678 (citation
pleadings stage, the court must assume the truth of "all
well-pleaded, nonconclusory factual allegations" in the
complaint. Kiobel v. Royal Dutch Petroleum Co., 621
F.3d 111, 124 (2d Cir. 2010) (citing Iqbal, 556 U.S.
at 678 and Selevan v. N.Y. Thruway Auth, 584 F.3d
82, 88 (2d Cir. 2009)). Although all factual allegations
contained in the complaint ere assumed to be true,
that tenet is "inapplicable to legal conclusions."
Iqbal, 556 U.S. at 678. As a corollary, a court
generally should not dismiss a pro se complaint
without granting leave to amend, so long as "a liberal
reading of the complaint gives any indication that a valid
claim might be stated." Cuoco v. Moritsugu, 222
F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed.
Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)).
principles notwithstanding, a district court may dismiss a
pro se action sua sponte-even if the
plaintiff has paid the requisite filing fee-if it determines
that the action is frivolous. See Fitzgerald v. First
East Seventh Street Tenants Corp., 221 F.3d 363, 363-64
(2d Cir. 2000). Put simply, "[a]n action is frivolous if
it lacks an arguable basis in law and fact-i.e., where it is
'based on an indisputably meritless legal theory' or
presents 'factual contentions [that] are clearly
baseless.'" Scanlon v. Vermont, 423
F.App'x 78, 79 (2d Cir. 2011) (quoting Neitzhe v.
Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 1833, 104
L.Ed.2d 338 (1989)); see Denton v. Hernandez, 504
U.S. 25, 32-33, 112 S.Ct. 1728, 1733-34, 118 L.Ed.2d 340
(1992); Livingston v. Adirondack Beverage Co., 141
F.3d 434, 437 (2d Cir. 1998). For example, "[a]
complaint will be dismissed as 'frivolous' when
'it is clear that the defendants are immune from
suit.'" Montero v. Travis, 171 F.3d 757,
760 (2d Cir. 1999) (quoting Neitzke, 490 U.S. at
these standards in mind, under even the most liberal review,
the Court cannot discern what legally cognizable harm Sun
supposedly suffered, what acts of Judge Pollak are blamed as
the cause of any harm, or what rights of his were allegedly
infringed. To the extent that plaintiff seeks to sue
Magistrate Judge Pollak for issuing a report and
recommendation in a case that was before her as a magistrate
judge, any such suit is barred by judicial immunity. It is
well settled, " of course, "that judges generally
have absolute immunity from suits for money damages for their
judicial actions." Shtrauch v. Dowd, 651
F.App'x 72, 73 (2d Cir. 2016; (quoting Bliven v.
Hunt, 579 F.3d 204, 209 (2d Cir. 2009)).
should have been able to divine from the dismissal of prior
actions, this "judicial immunity is an immunity from
suit, not just from the ultimate assessment of damages,
" and it is not overcome by allegations of bad faith or
malice, " nor can a judge '"be deprived of
immunity because the action [she] took was in error... or was
in excess of [her] authority.'" Mireks v.
Waco, 502 U.S. 9, 11-13, 112 S.Ct. 286, 288, 116 L.Ed.2d
9 (1991) (citations omitted). Furthermore, the Federal Courts
Improvement Act of 1996 extended judicial immunity to most
actions seeking prospective injunctive relief-unless, that
is, a declaratory decree was violated or declaratory relief
was unavailable, neither of which is alleged here.
See Federal Courts Improvement Act of 1996, §
309(c), Pub. L. No. 104-317, 110 Stat. 3847, 3853 (1996)
(amending 42 U.S.C. § 1983) ("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"); Huminski v.
Corsones, 396 F.3d 53, 74 & n.23 (2d Cir. 2005);
see also Shtrauch, 651 F.App'x at 73.
this standard, the consequences are clear. Plaintiffs
complaint must be dismissed as frivolous because it is
obvious that Magistrate Judge Pollak is immune from his
lawsuit. See Montero, 171 F.3d at 760; see also
Tapp v. Champagne, 164 F.App'x 106, 107 (2d Cir.
2006) (affirming sua sponte dismissal of claims
against judges shielded by absolute immunity). Moreover,
since even the most liberal reading of the complaint gives no
indication that it could be ...