ALD-003 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-2389
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EARL PEEPLES,
Appellant
v.
HONORABLE JAMES N. CITTA, Justice of the
Superior Court of New Jersey; THE COUNTY OF OCEAN
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 3:11-cv-06238
District Judge: Honorable Joel A. Pisano
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Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
October 4, 2012
Before: SLOVITER, VANASKIE and WEIS, Circuit Judges
(Opinion filed: October 15, 2012)
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OPINION
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PER CURIAM.
Earl Peeples, an inmate proceeding pro se and in forma pauperis, appeals from an
order of the United States District Court for the District of New Jersey dismissing with
prejudice his civil rights action brought pursuant to 42 U.S.C. § 1983. Because this
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appeal does not present a substantial question, we will summarily affirm the District
Court’s order. See 3d Cir. L.A.R 27.4; I.O.P. 10.6.
Because we primarily write for the parties, we need only recite the facts necessary
for our discussion. In submissions to the District Court, Peeples asserts that Judge Citta,
the Superior Court of New Jersey judge who presided over Peeples’ criminal trial,
violated various ethical canons by accepting a statement made by his victim’s mother into
evidence at sentencing and by commenting that Peeples’ picture should be used to
illustrate the topic of domestic violence and that there were similarities between his trial
and the trial of O.J. Simpson. Peeples also alleges that Judge Citta is not entitled to
absolute immunity because he acted with a “malicious intention” to deprive Peeples of
his First Amendment right to free speech by imposing a retaliatory sentence.
In October 2011, Peeples filed this civil rights action against Judge Citta, but his
action was administratively terminated on January 6, 2012 because of his failure to either
pay the full filing fee or submit a complete application to proceed in forma pauperis. In
April 2012, Peeples wrote a letter requesting that the District Court reopen his case, and
he included his complete in forma pauperis application with this letter. On April 16,
2012, the District Court entered an Order and accompanying Opinion granting Peeples’
motion to reopen the case but dismissing his complaint with prejudice. In its Opinion,
the District Court determined that Judge Citta was entitled to judicial immunity and that
providing Peeples leave to amend his complaint would be futile. Peeples then timely
filed this appeal.
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We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and exercise
plenary review over the District Court’s dismissal order. See Allah v. Seiverling, 229
F.3d 220, 223 (3d Cir. 2000). The legal standard for dismissing a complaint for failure to
state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) is the same as that for dismissing a
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). See id. 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)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This Court affirms
a district court’s dismissal for failure to state a claim “only if, accepting all factual
allegations as true and construing the complaint in the light most favorable to the
plaintiff, we determine that the plaintiff is not entitled to relief under any reasonable
reading of the complaint.” McGovern v. City of Philadelphia, 554 F.3d 114, 115 (3d Cir.
2009). We may summarily affirm if the appeal does not present a substantial question,
and may do so on any basis supported by the record. Murray v. Bledsoe, 650 F.3d 246,
247 (3d Cir. 2011) (per curiam).
We agree with the District Court that Peeples’ claims for damages against Judge
Citta are barred by the doctrine of judicial immunity. See Mireles v. Waco, 502 U.S. 9, 9
(1991) (per curiam) (“[G]enerally, a judge is immune from a suit for money damages.”);
Azubuko v. Royal, 443 F.3d 302, 303 (3d Cir. 2006) (per curiam) (“A judicial officer in
the performance of his duties has absolute immunity from suit and will not be liable for
his judicial acts.”); Larsen v. Senate of the Commonwealth, 152 F.3d 240, 249 (3d Cir.
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1998) (“It is settled that absolute judicial immunity extends only to claims for damages . .
. .”). While Judge Citta’s language may been viewed as disagreeable, none of his actions
mentioned in Peeples’ complaint were taken “in the complete absence of all jurisdiction,”
Mireles, 502 U.S. at 12 (citing Stump, 435 U.S. at 356), and we agree that Peeples’
claims for damages are subject to dismissal.
Furthermore, Peeples’ claim that Judge Citta acted with a “malicious intention”
cannot overcome the immunity. 1 See Mireles, 502 U.S. at 11 (“[J]udicial immunity is not
overcome by allegations of bad faith or malice . . . .”); Forrester v. White, 484 U.S. 219,
227 (1988) (an act “does not become less judicial by virtue of an allegation of malice”);
Stump v. Sparkman, 435 U.S. 349, 356-57 (citation omitted) (“A judge will not be
deprived of immunity because the action he took . . . was done maliciously . . . .”).
Although “immunity, whether qualified or absolute, is an affirmative defense which must
be affirmatively pleaded,” Kennedy v. City of Cleveland, 797 F.2d 297, 300 (6th Cir.
1986), the District Court did not err in raising it sua sponte because the defect was clear
from the face of Peeples’ complaint, Ray v. Kertes, 285 F.3d 287, 296 (3d Cir. 2002).
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We further agree with the District Court that Peeples’ “retaliation” claim also lacks
merit. To establish a claim of retaliation, a plaintiff must meet a three-part test. First, the
plaintiff must prove that he engaged in a constitutionally-protected activity; second, he
must demonstrate that the government responded in a retaliatory manner; and third, he
must show that the particular protected activity caused the particular retaliation.
Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 282 (3d Cir. 2004). Here, Peeples merely
mentions that his First Amendment right to free speech was violated at his sentencing;
however, his complaint instead complains of Judge Citta’s speech. Therefore, we agree
with the District Court that Peeples cannot meet the three-part test because he has not
asserted a protected activity and has not demonstrated a causal connection.
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In his argument supporting his appeal, Peeples asserts that he should have been
provided leave to amend his complaint. Generally, a District Court should not sua sponte
dismiss a complaint for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)
without providing an opportunity for the plaintiff to amend the complaint. However,
because we do not see how Peeples could have amended his complaint to overcome
judicial immunity, amendment would be futile and we conclude that the District Court
did not err in declining to allow Peeples leave to amend. See Grayson v. Mayview State
Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
For the foregoing reasons, no substantial question is presented and we will affirm
the judgment of the District Court. See 3d Cir. L.A.R 27.4; I.O.P. 10.6.
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