[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 23, 2007
No. 06-12482 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-03193-CV-GET-1
WASHINGTON MUTUAL BANK,
Plaintiff-Appellee,
versus
SAMUEL ADAM BUSH,
Defendant-Third-Party-
Plaintiff-Appellant,
versus
THOMAS W. THRASH, JR.,
Third-Party-Defendant-
Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 23, 2007)
Before TJOFLAT, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Samuel Adam Bush, proceeding pro se, appeals the district court’s dismissal
of his third party complaint against a federal district judge. We find no error and
therefore affirm the dismissal.1
“Few doctrines were more solidly established at common law than the
immunity of judges from liability for damages for acts committed within their
judicial jurisdiction. . . .” Pierson v. Ray, 386 U.S. 547, 553-54, 87 S.Ct. 1213,
1217, 18 L.Ed.2d 288 (1967). Judicial immunity applies when (1) “the judge
deal[t] with the plaintiff in his judicial capacity” and (2) the judge did not act “in
the ‘clear absence of all jurisdiction.’” Dykes v. Hosemann, 776 F.2d 942, 945
(11th Cir. 1985) (en banc) (quoting Stump v. Sparkman, 435 U.S. 349, 357, 98
1
We have previously dismissed, for lack of jurisdiction, Bush’s appeal to the extent it
sought judicial review of an order remanding his case to state court. Because we also noted, at
that time, that we would consider the denial of a post-judgment tolling motion to reconsider, we
do so here, which we deem to be a challenge to the original judgment of dismissal.
See Kicklighter v. Nails by Jannee, Inc., 616 F.2d 734, 738-39 n.1 (5th Cir. 1980).
2
S.Ct. 1099, 1105, 55 L.Ed.2d 331 (1978)). “This immunity applies even when the
judge’s acts are in error, malicious, or were in excess of his or her jurisdiction.”
Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000).
Accepting all of the allegations in Bush’s third party complaint as true and
construing them in a light most favorable to Bush, we conclude that no claim is
stated. See Sibley v. Lando, 437 F.3d 1067, 1070 (11th Cir. 2005). An improper
remand by a federal judge in a federal case is not a viable claim under Bivens, the
Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, or any applicable state
statute. See, e.g., Bolin, 225 F.3d at 1240-43.
Assuming, arguendo, that an improper remand was a viable claim, Judge
Thrash is entitled to judicial immunity. The first requirement for immunity is
satisfied because, by issuing an order to remand, Judge Thrash was dealing with
Bush in his judicial capacity. See Dykes, 776 F.2d at 945; see also Forrester v.
White, 484 U.S. 219, 227, 108 S.Ct. 538, 544, 98 L.Ed.2d 555 (1988) (absolute
judicial immunity applies to “the paradigmatic judicial acts involved in resolving
disputes between parties who have invoked the jurisdiction of a court”). The
second requirement is met because the U.S. District Court had subject matter
jurisdiction such that it could remand the dispossessory action to state court and
require that any subsequent removal action by Bush be accompanied by a bond.
3
See Dykes, 776 F.2d at 943. Although Bush contends that injunctive relief is not
barred by judicial immunity, our caselaw holds otherwise, see Bolin, 225 F.3d at
1242-43, and cannot be overruled by a panel of this Court. See United States v.
Petho, 409 F.3d 1277, 1280 (11th Cir. 2005). Thus, the dismissal of Bush’s
complaint against Judge Thrash was appropriate.
Bush does not expressly address the denial of the motion to reconsider in his
brief, and even if his pro se pleadings are liberally construed to include such a
challenge, he has not demonstrated error. The district court correctly noted that
Bush’s motion to reconsider presented no new evidence and essentially was a
restatement of his response in opposition to Judge Thrash’s motion to dismiss.
Accordingly, the dismissal of Bush’s complaint against Judge Thrash and
the denial of Bush’s motion to reconsider are affirmed.
AFFIRMED.
4