UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Chukwuma E. Azubuko

v. Civil No. 06-cv-267-PB

Salvatore M. Giorlandino,

Assistant Massachusetts Attorney

General, et al.

REPORT AND RECOMMENDATION

Before the Court is pro se and in forma pauperis plaintiff

Chukwuma Azubuko’s complaint asserting libel, slander, denial of

access to the court and infliction of emotional distress claims. 

Azubuko names Salvatore Giorlandino, an Assistant Massachusetts

Attorney General, Judge Margaret Hinkle, and the Suffolk Superior

Court as defendants to this action. The matter is before me for

preliminary review to determine, among other things, whether the

complaint states any claim upon which relief might be granted. 

See United States District Court for the District of New

Hampshire Local Rule (“LR”) 4.3(d)(1)(B)(i). Because I find that

it does not, I recommend that the action be dismissed. 

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Standard of Review

Under this Court’s local rules, when a plaintiff commences

an action pro se and in forma pauperis, the magistrate judge is

directed to conduct a preliminary review and to:

(i) report and recommend to the court that the 

filing be dismissed because the allegation of 

poverty is untrue, the action is frivolous or 

malicious, fails to state a claim upon which relief 

may be granted, or seeks monetary relief against a 

defendant who is immune from such relief under 28 

U.S.C. § 1915(e)(2); or it fails to establish 

subject matter jurisdiction under Fed. R. Civ. P. 

12(b)(1); or

(ii) grant the party leave to file an amended 

filing in accordance with the magistrate judge’s 

directives; or

(iii) pursuant to Fed. R. Civ. P. 4(c)(2), appoint 

a person to effect service.

LR 4.3(d)(1)(B). In conducting the preliminary review, the Court

construes pro se pleadings liberally. See Ayala Serrano v.

Lebron Gonzales, 909 F.2d 8, 15 (1st Cir. 1990) (following

Estelle v. Gamble, 429 U.S. 97, 106 (1976) to construe pro se

pleadings liberally in favor of the pro se party). “The policy

behind affording pro se plaintiffs liberal interpretation is that

if they present sufficient facts, the court may intuit the

correct cause of action, even if it was imperfectly pled.” Ahmed 

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v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997), cert. denied,

Ahmed v. Greenwood, 522 U.S. 1148 (1998).

At this preliminary stage of review, all factual assertions

made by the plaintiff and inferences reasonably drawn therefrom

must be accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3

(1st Cir. 1996) (stating the “failure to state a claim” standard

of review and explaining that all “well-pleaded factual

averments,” not bald assertions, must be accepted as true). This

review ensures that pro se pleadings are given fair and

meaningful consideration. See Eveland v. Dir. of C.I.A., 843

F.2d 46, 49 (1st Cir. 1988).

Background

The allegations in the complaint are very vague and largely

incomprehensible. Construing the complaint liberally, however, I

have identified the assertions of plaintiff that are essential to

my consideration of this matter. 

Azubuko claims that his right to access the courts, and his

right not to be defamed, have been violated by a member of the

Massachusetts Attorney General’s office, a Massachusetts State

Court judge and a Superior Court of Massachusetts. Specifically,

Azubuko objects to Giorlandino seeking an injunction against his

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continued filing in the Suffolk County Superior Court which was

granted and/or enforced by Judge Hinkle as denying him access to

the courts. Apparently, he challenges the allegations contained

in the pleadings, orders or other court documents issued by

defendants as defamatory and libelous. 

Azubuko himself and all of the defendants to this action are

located in Massachusetts. Azubuko has not alleged any events

relevant to his claim which occurred outside of Massachusetts. 

Discussion

1. Choice of Defendants

Azubuko has listed three defendants to this action: a

state’s attorney, a judge, and a state court. None of these

defendants are amenable to suit for the actions alleged in the

complaint.

A. Judicial Immunity

Azubuko has sued Judge Margaret Hinkle. However, judges are

entitled to absolute judicial immunity for actions taken within

the scope of their jurisdiction. See Mireles v. Waco, 502 U.S.

9, 11 (per curiam) (“[J]udicial immunity is an immunity from

suit, not just from the ultimate assessment of damages); Pierson

v. Ray, 386 U.S. 547, 554 (1967) (“[I]mmunity applies even when

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the judge is accused of acting maliciously and corruptly.”). The

judicial actions complained of by Azubuko, the making and

enforcing of an order regarding court filings, are well within

the scope of a judge’s jurisdiction. Accordingly, Judge Hinkle

is immune from suit and I recommend that she be dismissed from

this action.

B. Sovereign Immunity

Claims against the Suffolk Superior Court, an entity of the

Commonwealth of Massachusetts, are barred by the Eleventh

Amendment’s grant of sovereign immunity. Alabama v. Pugh, 438

U.S. 781, 781 (1978) (per curiam) (Eleventh Amendment generally

recognized as a bar to suits against a State, its departments,

and agencies, unless the State has consented to suit); Brown v.

Newberger, 291 F.3d 89, 92 (1st Cir. 2002) (there has been no

unequivocal abrogation of the Commonwealth of Massachusetts’

Eleventh Amendment immunity). Accordingly, I recommend that the

Suffolk Superior Court be dismissed from this action.

Further, I find that Azubuko’s allegations against

Giorlandino are taken against him in his capacity as an agent of

the Commonwealth of Massachusetts. I therefore find that the 

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Eleventh Amendment protects Giorlandino from suit and I recommend

that the action be dismissed against him.

2. Abusive Litigation Practices

It is worth noting that the order in question in this case

was issued to curb Azubuko’s vexatious and abusive litigation

practices. Azubuko has been enjoined from filing civil actions

in the United States District Court for the District of

Massachusetts as a result of his vexatious filing practices

there. Chukwu v. Registry of Motor Vehicles, et al., C.A. No.

95-11661-WGY, docket no. 13 (Order directing clerk not to accept

for filing any further documents tendered pro se by plaintiff

unless certain conditions were met) (D.Mass. Sept. 6, 1995). 

That Order was reaffirmed in Azubuko v. Commonwealth Auction

Ass’n, C.A. 03-10053-PBS, docket no. 3 (Memorandum and Order)

(D.Mass. Dec. 17, 2003) and Azubuko v. Suffolk Super. Ct., et

al., C.A. No. 05-10609-RCL, docket no. 12 (Order for dismissal)

(D. Mass. Apr. 6, 2006). In an effort to circumvent the filing

restrictions placed upon him by the United States District Court

for the District of Massachusetts, Azubuko has filed actions in

the Districts of Florida, Georgia, Louisiana, Delaware, Michigan,

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1This case is one of four cases recently filed in this Court

by Azubuko, all of which would more appropriately have been

brought in the District of Massachusetts. See Azubuko v.

Massachusetts Lawyers Weekly, Civ. No. 06-266 (filed July 19,

2006); Azubuko v. Coffey, et al., Civ. No. 06-323 (filed August

31, 2006); Azubuko v. United States Court of Appeals - Tenth

Cir., Civ. No. 06-00333 (filed Sept. 7, 2006).

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and now this Court.1 These actions allege causes of action

appropriately brought in the District of Massachusetts, which has

personal jurisdiction over both the plaintiff and the defendants

named by plaintiff. 

A federal court may not sua sponte raise the issue of

personal jurisdiction as the basis for dismissing a case, as

personal jurisdiction is a waivable individual liberty right. 

McBee v. Delica Co., Ltd., 417 F.3d 107, 127 (1st Cir. 2005). 

Azubuko, as a law school graduate, is aware, however, that should

the defendant in this case assert this Court’s lack of personal

jurisdiction as a defense, it would very likely be successful as

there is no apparent basis upon which this Court could exercise

personal jurisdiction over the defendant in this case absent the

defendant’s waiver. Accordingly, I find that the only possible

purpose Azubuko had in filing this matter in this Court was to

attempt to evade the filing restrictions he would face in the

District of Massachusetts.

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“Federal courts plainly possess discretionary powers to

regulate the conduct of abusive litigants.” Cok v. Fam. Ct. of

R.I., 985 F.2d 32, 34 (1st Cir. 1993). This power encompasses

the Court’s ability to enjoin a pro se party from filing

frivolous and vexatious pleadings. See United States v. GomezRosario, 418 F.3d 90, 101 (1st Cir. 2005). Where a litigant has

demonstrated a “propensity to file repeated suits . . . involving

the same or similar claims” of a “frivolous or vexatious nature,”

a bar on further filings is appropriate. Castro v. United

States, 775 F.2d 399, 409 (1st Cir. 1985) (per curiam) (abrogated

on other grounds by Stevens v. Dep’t of the Treasury, 500 U.S. 1

(1991)). 

To this end, I have recommended, in a Report and

Recommendation issued this date in Azubuko v. Mass. Lawyers

Weekly, Civ. No. 06-266, that an injunction issue prohibiting

Azubuko from filing further action in this Court without the

prior approval of a judicial officer. This Court is mindful of

the severity of issuing a broad injunction against a pro se

plaintiff. See Castro, 775 F.2d at 410 (“[I]f an injunction

against future litigation were couched in overly broad terms,

this could impermissibly infringe upon a litigator’s right of

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access to the courts”); Pavilonis v. King, 626 F.2d 1075, 1079

(1st Cir.), cert. denied, 449 U.S. 829 (1980). 

Conclusion

I recommend that this action be dismissed for failure to

state a claim upon which relief might be granted. See LR

4.3(d)(1)(B). Any objections to this Report and Recommendation

must be filed within ten (10) days of receipt of this notice. 

Failure to file objections within the specified time waives the

right to appeal the district court’s order. See Unauth’d

Practice of Law Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir.

1992); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.

1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: November 9, 2006

cc: Chukwuma Azubuko, pro se

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