The opinion of the court was delivered by: Slomsky, J.
Plaintiff Victor Walthour has filed a pro se Complaint against the
Honorable John W. Herron alleging violations of his civil rights under
the Fourteenth Amendment to the United States Constitution.*fn1
(Doc. No. 1.) Plaintiff alleges that Judge Herron infringed
upon his civil rights when he removed Plaintiff as the guardian of his
wife Rosalyn Walthour in a March 24, 2010 Court Order entered into the
Orphan's Court Division of the Philadelphia Court of Common Pleas, In
Re Rosalyn P. Walthour, an Incapacitated Person, O.C. No. 520 IC of
2004 (the "Herron Order"). Plaintiff asks the Court for an injunction
barring Judge Herron from future decisions in connection with his
wife, and for the imposition of a fine in the amount of $10,000 per
day until Plaintiff is reinstated as the guardian of Rosalyn
Walthour's person. (Doc. No. 1 ¶ V.)
The Herron Order is attached to the Complaint and explains that Plaintiff's wife is incapacitated and is the beneficiary of a trust for her care and maintenance, which is worth approximately $9,649,643. (Doc. No. 1-2.) On February 16, 2010, Judge Herron held a hearing regarding the proposed spending plan under Mrs. Walthour's trust. See Walthour v. Herron, No. 10-1495, 2010 WL 1877704, at *1 (E.D. Pa. May 6, 2010). After the hearing, Judge Herron Ordered that Plaintiff be removed as co-guardian of his wife's estate because the proposed spending plan was wasteful of Mrs. Walthour's assets. Id. Shortly thereafter, on March 29, 2010, Plaintiff filed a complaint with this Court against Judge Herron alleging violations of 42 U.S.C. §§ 1983, 1985, 1986 and 3631. (See Walthour v. Herron, No. 10-1495, Doc. No.1.) Predicated on the very same facts that form the basis of the instant Complaint, that claim alleged that Judge Herron "signed [a] decree removing Victor Walthour as guardian of Rosalyn Walthour." (Id. ¶ III.C.) Plaintiff sought the removal of Judge Herron from his judicial duties and an award of "everything [Judge Herron] has now and in the future." (Id. ¶ V.) On May 6, 2010, this Court issued an Order and accompanying Opinion dismissing Plaintiff's Complaint because Plaintiff failed to state a claim on which relief could be granted, and because Judge Herron was entitled to absolute Judicial Immunity. (Walthour v. Herron, No. 10-1495, Doc. No.7-8.)
As noted, on March 9, 2011, Plaintiff filed the instant Complaint. On March 23, 2011, Defendant Judge Herron filed a Motion to Dismiss Plaintiff's Complaint and accompanying Memorandum (Doc. No. 4). On March 31, 2011, Plaintiff filed a response (Doc. No. 6). For reasons that follow, the Court will grant Defendant's Motion to Dismiss and dismiss the instant Complaint (Doc. No. 1).
Defendant has moved to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) & (6). "When a motion to dismiss is based on lack of subject matter jurisdiction pursuant to Rule 12(b)(1), as well as other Rule 12(b) defenses, the Court should consider the Rule 12(b)(1) challenge first because, if it must dismiss the complaint for lack of subject matter jurisdiction the accompanying defenses become moot and need not be addressed." Cellco Partnership d/b/a Verizon Wireless and Onstar, LLC v. Dealers Warranty, LLC, No. 9-1814, 2010 WL 3946713, at *3 (D.N.J. Oct. 5, 2010) (quoting Wyeth and Cordis Corp. v. Abbot Labs., No. 8-230, 2008 WL 203685, at *2 (D.N.J. May 8, 2008)); see also Tagayun v. Stolzenberg, 239 Fed. Appx. 708, 710 (3d Cir. 2007) ("An actual determination must be made whether subject matter jurisdiction exists before a court may turn to the merits of the case."); McCurdy v. Esmonde, 2003 WL 223412, at *4 (E.D. Pa. Jan. 30, 2003) ("Without jurisdiction the court cannot proceed at all in any cause.") (citing Steel Co. V. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998).
Federal Rule of Civil Procedure 12(b)(1) states:
(b) How to Present Defenses.
Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion ... (1) lack of subject-matter jurisdiction.
Fed. R. Civ. P. 12(B)(1). Challenges to subject matter jurisdiction under Rule 12(b)(1) may be either facial or factual. Smith v. Rebstock, Slip Copy, 2011 WL 1235142, at * [ ] (E.D.Pa. 2011) (citing Common Cause of Pa. v. Pennsylvania, 558 F.3d 249, 257 (3d Cir.2009)). "Facial attacks, like those presented in this case, 'contest the sufficiency of the pleadings, and the trial court must accept the complaint's allegations as true.'" Id.
Judge Herron is entitled to judicial immunity for all claims against him in his personal capacity. As this Court held in the Opinion dismissing Plaintiff's prior claims against Judge Herron, a "judicial officer, in the performance of his duties as a judge, is absolutely immune from suit in his personal capacity and is not liable for his judicial acts. "Walthour, 2010 WL 1877704, at *5 (citing Azbuko v. Royal, 443 F.3d 302, 303 (3d Cir. 2006) (per curiam)). A judge will not be deprived of his judicial immunity even if his actions were in error, or in excess of his authority, or were taken with malice. Id. (citing Stump v. Sparkman, 435 U.S. 349, 356-57 (1978); Azbuko, 443 F.3d at 303.)"[O]nly when he has acted in the 'clear absence of all jurisdiction'" will a judge be subject to liability. Stump, 435 U.S. at 356-57.
The allegations in Plaintiff's Complaint are predicated upon judicial acts that were clearly taken in the performance of Defendant's duties as a judge. Plaintiff has not alleged any facts to suggest otherwise. Judge Herron is entitled to judicial immunity for all claims against him in his ...