Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-22-2006

Azubuko v. Royal
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4584




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Recommended Citation
"Azubuko v. Royal" (2006). 2006 Decisions. Paper 1397.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1397


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APS-142
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                    NO. 05-4584
                                 ________________

                            CHUKWUMA E. AZUBUKO

                                          v.

                          JUDGE C. ASHLEY ROYAL
                   IN OFFICIAL AND INDIVIDUAL CAPACITY

                     ____________________________________

                   On Appeal From the United States District Court
                             For the District of New Jersey
                                (D.C. Civ. No. 05-3821)
                     District Judge: Honorable Faith S. Hochberg
                   _______________________________________


          Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                 February 24, 2006

           Before: SLOVITER, MCKEE AND FISHER, CIRCUIT JUDGES

                                (Filed March 22, 2006 )


                             _______________________

                                     OPINION
                             _______________________

PER CURIAM

      Chukwuma Azubuko appeals from the District Court’s order dismissing his

complaint as frivolous under 28 U.S.C. § 1915(e)(2)(B). Because we determine that the
appeal is lacking in arguable legal merit, we will dismiss it under 28 U.S.C.

§ 1915(e)(2)(B).

       This case grows out of two lawsuits that Azubuko, a resident of Boston,

Massachusetts, filed in the United States District Court for the Middle District of Georgia.

Both lawsuits, one challenging the cancellation of his credit card and the other against the

Suffolk County Sheriff in Massachusetts, were dismissed. Judge Royal presided over

both cases.

       On August 1, 2005, Azubuko filed what appears to be a civil rights action against

Judge Royal in the United States District Court for the District of New Jersey.1 He seeks

fifteen million dollars in damages, the reversal of the two cases, and an injunction

preventing the Judge Royal from presiding over any future cases. On September 7, 2005,

the District Court granted Azubuko’s motion to proceed in forma pauperis and ordered

that he file an amended complaint within 10 days that set forth a short and plain statement

of his claim. Instead of amending his complaint, Azubuko filed a motion for recusal. On

September 29, 2005, the District Court dismissed the complaint and denied his motion.

       Azubuko timely filed a notice of appeal. We have appellate jurisdiction pursuant

to 28 U.S.C. § 1291. Having granted Azubuko leave to proceed in forma pauperis on

appeal, we must now determine whether his appeal should be dismissed pursuant to 28



   1
   Azubuko’s filings are, to be charitable, confusing. Construing his pleadings liberally,
we are led to conclude that he is filing an action pursuant to Bivens v. Six Unknown
Agents of the Federal Bureau of Narcotics, 

(1971).

                                             2
U.S.C. § 1915(e)(2)(B). An appeal may be dismissed under § 1915(e)(2)(B) if it has no

arguable basis in law or fact. Neitzke v. Williams, 

, 325 (1989). We may

affirm the District Court on any ground supported by the record. Tourscher v.

McCullough, 

, 239 (3d Cir. 1999). We review a District Court’s denial of a

motion for recusal for abuse of discretion. Johnson v. Trueblood, 

, 290 (3d

Cir. 1980).

       A judicial officer in the performance of his duties has absolute immunity from suit

and will not be liable for his judicial acts. Mireles v. Waco, 

, 12 (1991). “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, 

, 356-57 (1978) (citation omitted). All of the allegations in Azubuko’s complaint

relate to actions taken by Judge Royal in his capacity as a judge. Azubuko has not set

forth any facts that would show that Judge Royal’s actions were taken in clear absence of

his jurisdiction.

       Azubuko’s request for injunctive relief is also unavailing. In 1996, Congress

amended 42 U.S.C. § 1983 to provide that “injunctive relief shall not be granted” in an

action brought against “a judicial officer for an act or omission taken in such officer’s

judicial capacity . . . unless a declaratory decree was violated or declaratory relief was

unavailable.” 42 U.S.C. § 1983; Bolin v. Story, 

, 1242 (11th Cir. 2000)



                                               3
(explaining that the amendment applies to both state and federal judges); see also Mullis

v. United States Bankr. Court for the Dist. of Nev., 

(9th Cir. 1987);

Antoine v. Byers & Anderson, Inc., 

, 433 n.5 (1993) (noting that the rules

regarding judicial immunity do not distinguish between lawsuits brought against state

officials and those brought against federal officials). Because Azubuko has not alleged

that a declaratory decree was violated or that declaratory relief is unavailable, and

because the injunctive relief sought by Azubuko does not address the actions of Judge

Royal other than in his judicial capacity, his claim for injunctive relief is barred.

       Further, the District Court did not abuse its discretion in denying Azubuko’s

motion for recusal. Azubuko, in his motion, claims that Judge Hochberg should withdraw

from his case because “[t]here existed a conflict of interest. The Plaintiff had a lawsuit

pending against her.” However, the mere fact that Judge Hochberg may be one of the

numerous federal judges that Azubuko has filed suit against is not sufficient to establish

that her recusal from his case is warranted under 28 U.S.C. § 144 or § 455(a).2 See In re

Taylor, 

, 652 (7th Cir. 2005) (“[A] per se rule of disqualification [under §

455(a)] would allow litigants to judge shop by filing a suit against the presiding judge.”);

United States v. Studley, 

, 940 (9th Cir. 1986) (“A judge is not disqualified

[under § 144] by a litigant’s suit or threatened suit against him.”)



   2
    In addition to the current suit against Judge Royal, Azubuko also brought a nearly
identical suit in the District of Delaware against a District Judge for the District of
Massachusetts. Azubuko v. Judge Pattis S. Saris, No. 05-4156 (3d Cir. Jan. 20, 2006).

                                               4
      In sum, we readily conclude that the District Court correctly dismissed Azubuko’s

complaint. Because his appeal also lacks merit, we will dismiss it under § 1915(e)(2)(B).