UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

JAMES JAMISON, Case No. 1:18-cv-419
Plaintiff,
Barrett, J.
vs. Litkovitz, M.J.

UNITED STATES FEDERAL
GOVERNMENT, et al.,
Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after
being served with a copy thereof. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s) of the
R&R objected to, and shall be accompanied by a memorandum of law in support of the
objections. A party shall respond to an opponent’s objections within FOURTEEN DAYS after
being served with a copy of those objections. Failure to make objections in accordance with this
procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States

v. Walters, 638 F.2d 947 (6th Cir. 1981).


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JAMES JAMISON, Case No. 1:18-cv-419

Plaintiff,

Barrett, J.

vs. Litkovitz, M.J.
UNITED STATES FEDERAL REPORT AND
GOVERNMENT, er al., RECOMMENDATION

Defendants.

Plaintiff has filed a civil rights complaint and amended complaint in this Court pursuant
to 42 U.S.C. § 1983. (Doc. 1,7). On July 23, 2018, the undersigned issued a Report and
Recommendation that plaintiff's complaint, as amended, be dismissed for failure to state a claim
upon which relief may be granted. (Doc. 9). Specifically, it was recommended that plaintiff's
claims that defendants—the United States Federal Government, Assistant United States Attorney
Jessica Knight, and U.S. Attorney General Jeff Sessions—violated his constitutional rights in
connection with the revocation of his supervised release be dismissed because his claims were
barred by sovereign and prosecutorial immunity. (See id.). Plaintiff has now filed a proposed
second amended complaint naming United States District Court Judge Timothy S. Black as a
defendant on the basis that Judge Black allegedly violated his constitutional rights in sentencing
him for a supervised release violation. (See Doc. 10).

Federal Rule of Civil Procedure 15(a) governs amendments to the pleadings. A
complaint may be amended once as a matter of course within twenty-one days of service of
responsive pleadings. Fed. R. Civ. P. 15(a)(1)(B). Thereafter, a plaintiff may amend the
complaint either with consent of the opposing party or leave of the court. Fed. R. Civ. P.
15(a)(2). “In deciding whether to grant a motion to amend, courts should consider undue delay

in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to


cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of
amendment.” Brumbalough v. Camelot Care Ctrs., Inc., 427 F.3d 996, 1001 (6th Cir. 2005).
The test for futility is whether the amended complaint “could not withstand a Rule 12(b)(6)
motion to dismiss.” Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 421 (6th Cir. 2000).
In this instance, plaintiff should be denied leave to file a second amended complaint
because the proposed amended complaint fails to state a claim upon which relief can be granted.
Plaintiff seeks to hold Judge Black liable for revoking his supervised release and sentencing him
for the violation. However, judges are afforded absolute immunity from damages for acts they
commit while functioning within their judicial capacity. Mireles v, Waco, 502 U.S. 9, 11
(1991); Pierson v. Ray, 386 U.S. 547 (1967); Barrett v. Harrington, 130 F.3d 246, 255 (6th Cir.
1997). Judges retain absolute immunity from liability even if they act maliciously or corruptly,
as long as they are performing judicial acts and have jurisdiction over the subject matter giving
rise to the suit against them. Stump v. Sparkman, 435 U.S. 349, 356-57 (1978). See also Stern
v. Mascio, 262 F.3d 600, 607 (6th Cir. 2001); King v. Love, 766 F.2d 962 (6th Cir. 1985).
Plaintiff has not alleged any facts to suggest that Judge Black acted outside his judicial capacity
or “in the complete absence of all jurisdiction.” Stern, 262 F.3d at 607. Accordingly, the
complaint fails to state a claim for which relief may be granted against the judicial defendant
because he is entitled to absolute judicial immunity for the actions alleged in the complaint.
See, e.g., Perez v. United States, No. C-10-246, 2011 WL 261 8881, at *2-3 (S.D. Tex. July 1,
2011) (finding that a judge was entitled to absolute judicial immunity where the judge
determined that the plaintiff violated the conditions of his supervised release and sentenced him);

Lawrence v. Conlon, No. 92 C 2922, 1995 WL 153273, at *3 (N.D. Ill. Apr. 6, 1995) (“a judge


who considers the evidence at a hearing regarding the revocation of a supervised release and
renders a decision, acts well within her judicial capacity”).

Accordingly, in sum, plaintiff should be denied leave to file a second amended
complaint because the proposed second amended complaint fails to state a claim upon which

relief may be granted.

IT IS SO RECOMMENDED.

pate 7/3¢[zo18 Llhsta that.

Karen L. Litkovitz
United States Magistrate nie