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NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

____________________________________

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ASSEM A. ABULKHAIR, ) Civil Action No.: 11-3372 (JLL)

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Plaintiff, ) OPINION

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v. )

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NED M. ROSENBERG )

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Defendant. )

____________________________________)

LINARES, District Judge.

Plaintiff Assem Abulkhair seeks to bring this action in forma pauperis pursuant to 28 

U.S.C. § 1915. After reviewing his affidavit of poverty, the Court finds that Plaintiff qualifies 

for non-prisoner in forma pauperis status pursuant to 28 U.S.C. § 1915. The Court now reviews 

Plaintiff’s complaint pursuant to 28 U.S.C. § 1915(e)(2) to determine whether it should be 

dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted, 

or because it seeks monetary relief from a defendant who is immune from such relief. For the 

foregoing reasons, Plaintiff’s complaint is dismissed with prejudice.

I. BACKGROUND

On March 6, 2008, Plaintiff Abulkhair filed a libel action against his former counsel and 

law firm for defamation. (Compl. ¶ 5.) Defendant Judge Ned M. Rosenberg was assigned to the 

case and he dismissed the claim. (Compl. ¶ 6.) The Appellate Division affirmed the dismissal, 

which was reported in the New Jersey Law Journal on April 6, 2009. (Compl. ¶ 7.) On April 1, 

2010, Plaintiff sued the New Jersey Law Journal and the attorneys involved in the reported case

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claiming that the New Jersey Law Journal article constituted defamation. (Compl. ¶ 8.) Judge 

Rosenberg was assigned to the case and Plaintiff filed a formal recusal motion on July 1, 2010 on 

the grounds that Judge Rosenberg could potentially be called as a witness in the proceedings.

(Compl. ¶¶ 9, 16.) On July 9, 2010 Judge Rosenberg denied Plaintiff Abulkhair’s request for 

recusal and dismissed Plaintiff’s complaints. (Compl. ¶ 17.) Plaintiff appealed the dismissal

separately. Id. Plaintiff now brings suit against Judge Rosenberg seeking damages of not less 

than $5,100,000. (Compl. ¶ 75, 82.)

II. LEGAL STANDARD AND DISCUSSION

Judges are “absolutely immunized from a suit for money damages arising from their 

judicial acts.” Brookhart v. Rohr, 385 Fed. Appx. 67, 70 (3d Cir. 2010) citing Mireles v. Waco, 

502 U.S. 9 (1991). Absolute judicial immunity applies even if the judge acted maliciously, 

Stump v. Sparkman, 435 U.S. 349, 356 (1978), or if the judge committed “grave procedural 

errors.” Id. at 359. A judge will be subject to liability only if he acted in the “clear absence of all 

jurisdiction.” Id. at 356-57 (citation omitted).

Plaintiff’s first, second and fourth claims – color of state law violation, violation of the

Civil Rights Act, and violation of due process, respectively – are brought under 42. U.S.C. § 

1983 and they all fail for lack of subject-matter jurisdiction. Plaintiff asserts that this Court has 

federal question jurisdiction over this matter as he brings a 42 U.S.C. § 1983 claim against 

Defendant Rosenberg, a New Jersey Superior Court Judge. Plaintiff claims that Defendant 

Rosenberg’s failure to recuse himself from the underlying case in which Plaintiff was a party

prejudiced Plaintiff’s constitutional rights. In his complaint, Plaintiff repeatedly emphasizes that 

Defendant Rosenberg’s actions were taken “under color of statute, regulation, custom or usage of 

the State of New Jersey within the meaning of 42 U.S.C. § 1983.” (Compl. ¶ 40.) As noted 

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above, a judge will only be liable to a suit for money damages arising from his judicial acts if the 

judge acted in “clear absence of all jurisdiction.” Stump, 435 U.S. at 356-57. Judge Rosenberg 

heard the underlying case in a New Jersey Superior Court, which is a court of general 

jurisdiction. Plaintiff offers no evidence that Judge Rosenberg acted in clear absence of all 

jurisdiction when he denied the motion for recusal and dismissed Plaintiff’s claims. Indeed, 

none of Judge Rosenberg’s actions at issue in the complaint were taken outside of his judicial 

capacity as a judge of the New Jersey Superior Court. Furthermore, Redmond v. Manfredi, No. 

10-3464, 2011 WL 802628, at *1 (3d Cir. Mar. 9, 2011) notes that “It is a well-established 

principle that judges are absolutely immune from suits for damages under § 1983 when they act 

in a judicial capacity.” Thus, Plaintiff is barred from bringing a § 1983 suit against Defendant 

Rosenberg and the first, second and fourth claims are dismissed.

Plaintiff’s third claim against Defendant Rosenberg is brought pursuant to New Jersey 

Rule 1:12, which provides, inter alia, that a Judge should recuse him or herself where there is 

any reason which might preclude an unbiased hearing and judgment. Plaintiff alleges that 

because there was a possibility that Defendant Rosenberg could have been called as a witness in 

the underlying trial, it might have precluded an unbiased hearing and judgment. As noted above, 

judges have absolute judicial immunity as long as they are not acting in clear absence of 

jurisdiction. Stump, 435 U.S. at 356-57. Furthermore, a litigant may challenge judicial orders 

only by appeal, and not by suing the judge. In re Thomas, 508 F.3d 1225, 1227 (9th Cir. 2007), 

cert. denied, 128 S. Ct. 1654, 170 L. Ed. 2d 362 (U.S. 2008). Therefore, this claim is also 

dismissed.

For his fifth claim, Plaintiff brings a common law tort claim for negligent infliction of 

emotional distress. However, this tort requires that the “Plaintiff have been in danger and 

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suffered some physical harm as a result of the emotional distress.” McCauley v. University of the 

Virgin Islands, 618 F.3d 232, 251 n.3 (3d Cir. 2010). The New Jersey Supreme Court has held 

that where the “fright does not cause substantial bodily injury or sickness, it is to be regarded as 

too lacking in seriousness and too speculative to warrant the imposition of liability.” Falzone v. 

Busch, 214 A.2d 12, 17 (1965) (emphasis in original); see also, Restatement (Second) Torts § 

436A (“If the actor’s conduct is negligent as creating an unreasonable risk of ... emotional 

disturbance to another ... without bodily harm or other compensable damage, the actors is not 

liable for such emotional disturbance.”) As the record is completely devoid of any facts 

indicating that Plaintiff sustained any injury or received medical attention for an injury or illness, 

Plaintiff has failed to establish this crucial element of his tort claim and therefore this claim is 

dismissed, notwithstanding the fact that his claim would be barred regardless under the holding 

of Stump.

Lastly, Plaintiff seeks punitive damages claiming Defendant Rosenberg’s conduct was 

extreme and outrageous. (Compl. ¶ 90.) Plaintiff presents no evidence that Defendant Rosenberg 

acted in reckless disregard of Plaintiff’s federally protected rights and so punitive damages are 

inappropriate. Cochetti v. Desmond, 572 F.2d 102, 106 (3d Cir. 1978). Furthermore, Defendant 

Rosenberg’s absolute judicial immunity extends to punitive damages, since judicial immunity is 

immunity from suit, not just immunity from damages. Mireles v. Waco, 502 U.S. 9, 11, 112 S. Ct. 

286, 288, 116 L. Ed. 2d 9 (1991). Thus, Plaintiff’s punitive damages claim is dismissed.

III. CONCLUSION

For the reasons set forth above, Plaintiff’s complaint is dismissed in its entirety with 

prejudice.

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DATED: August 5, 2011

s/ Jose L. Linares_________

JOSE L. LINARES, U.S.D.J. 

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