United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
WILLIAM C. LEE JUDGE
Stewart Bey, without the benefit of counsel, filed a Bivens
action against United States District Court Judge Holly Brady
and the Federal Government. He also filed a motion for leave
to proceed in forma pauperis. When presented with an IFP
application, the district court makes two determinations: (1)
whether the suit has sufficient merit; and (2) whether the
plaintiff's poverty level justifies IFP status.
See 28 U.S.C. § 1915(e)(2); Denton v.
Hernandez, 504 U.S. 25, 27 (1992); Smith-Bey v.
Hosp. Adm'r, 841 F.2d 751, 757 (7th Cir. 1988). If a
court finds that the suit lacks sufficient merit or that an
inadequate showing of poverty exists, the court must deny the
IFP petition. See Smith-Bey, 841 F.2d at 757.
a court must dismiss a case at any time if it determines that
the suit is frivolous, malicious, or fails to state a claim
upon which relief may be granted. 28 U.S.C. §
1915(e)(2)(B). To determine whether the suit states a claim
under 28 U.S.C. § 1915(e)(2)(B)(ii), a court applies the
same standard as it would to a motion to dismiss filed
pursuant to Federal Rule of Civil Procedure 12(b)(6).
DeWalt v. Carter, 224 F.3d 607, 611 (7th Cir. 2000).
In deciding a motion to dismiss under Rule 12(b)(6), a court
must accept all well-pleaded factual allegations as true and
view them in the light most favorable to the plaintiff.
Luevano v. WalMart Stores, Inc., 722 F.3d 1014, 1027
(7th Cir. 2013). To survive dismissal, a “complaint
must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks and citation omitted). “A
document filed pro se is to be liberally construed,
and a 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 (2007) (internal quotation marks
and citation omitted).
case, Stewart Bey satisfies the financial prong of the
analysis, but the complaint falls short of what is required
to state a claim. In his complaint, Stewart Bey alleges that,
after Judge Brady dismissed the lawsuit he filed against
Matthew Loughran, Brian Boderick, and Bloomberg BNA, she
interfered with his right to appeal her unfavorable decision
by denying his petition seeking leave to appeal in forma
pauperis. ECF 1 at 2. He claims that when Judge Brady made
this decision she was “working outside of her judicial
capacity” because the U.S. Court of Appeals-and not
Judge Brady-had jurisdiction over his dismissed claims.
Id. In sum, Stewart Bey asserts that Judge Brady
“abused process” for the purpose of interfering
with his civil case, which caused him to incur filing fee,
copying, and transportation costs associated with filing his
under [42 U.S.C.] § 1983 and those under . . .
Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971), are identical save for the replacement of a state
actor (§ 1983) by a federal actor
(Bivens).” Bieneman v. Chicago, 864
F.2d 463, 469 (7th Cir. 1988) (parallel citations omitted).
“In order to state a claim under § 1983 a
plaintiff must allege: (1) that defendants deprived him of a
federal constitutional right; and (2) that the defendants
acted under color of state law.” Savory v.
Lyons, 469 F.3d 667, 670 (7th Cir. 2006). Thus, to state
a claim in a Bivens action, the plaintiff must
allege that the defendant deprived him of a federal
constitutional right while acting under color of federal law.
42 U.S.C. § 1983, Stewart Bey cannot sue the defendants
he has named in his complaint. With respect to Judge Brady,
she is immune from suit because “[a] judge has absolute
immunity for any judicial actions unless the judge acted in
absence of all jurisdiction.” Polzin v. Gage,
636 F.3d 834, 838 (7th Cir. 2011). “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 has
acted in the clear absence of all jurisdiction.”
Stump v. Sparkman, 435 U.S. 349, 359 (1978). Because
the doctrine of judicial immunity applies, Stewart Bey cannot
proceed on his claim against Judge Brady.
to the extent Stewart Bey is suing the Federal Government,
that claim also fails. Here, he claims, that when Judge Holly
was working outside of her judicial capacity, she was
“working within the scope of [her] employment for the
[F]ederal [G]overnment.” ECF 1 at 3. “In
Bivens [v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388, 394 (1971)] the
Supreme Court recognized an implied cause of action for
damages against federal officers to redress a
constitutional violation.” Engel v. Buchan,
710 F.3d 698, 703 (7th Cir. 2013) (emphasis added). Under
Bivens, the Federal Government as the employer of
the alleged wrongdoer cannot be held liable on the basis of
respondeat superior. See Arnett v. Webster,
658 F.3d 742, 757 (7th Cir. 2011) (internal citations
omitted). Accordingly, Stewart Bey cannot proceed against the
it is usually necessary to permit a plaintiff the opportunity
to file an amended complaint when a case is dismissed sua
sponte, see Luevano v. Wal-Mart, 722 F.3d 1014
(7th Cir. 2013), that is unnecessary where the amendment
would be futile. Hukic v. Aurora Loan Servs., 588
F.3d 420, 432 (7th Cir. 2009) (“[C]ourts have broad
discretion to deny leave to amend where . . . the amendment
would be futile.”). Such is the case here. No.
amendment would change the fact that Stewart Bey has sued
defendants that cannot be liable to him under 42 U.S.C.
these reasons, the in forma pauperis motion (ECF 2) is DENIED
and this case is DISMISSED pursuant to 28 U.S.C. §