OPINION
I. Introduction
A. The Complaint
Plaintiff commenced this proceeding by filing, in the United States District Court for the Middle District of Florida, Fort Myers Division, a Complaint naming as defendants
Juan R. Torruella, in his personal capacity, Bruce M. Selya, in his personal capacity, Conrad K. Cyr, in his personal capacity, Michael Boudin, in his personal capacity, Norman H. Stahl, in his personal capacity, Sandra Lea Lynch, in her personal capacity, Hector M. Laffitte, in his personal capacity, William G. Young, in his personal capacity, D. Brock Hornby, in his personal capacity, Paul J. Barbadoro, in his personal capacity, Steven McAuliffe, in his personal capacity, Mary M. Lisi, in her personal capacity, John Does, an undetermined number of law clerks believed to exceed 12 in number to be determined in discovery, in their personal capacity, and Jane Does, an undetermined number of law clerks believed to exceed 12 in number to be determined in discovery, in their personal capacity.
The case was designated in that court as Case No. F:01-CV-418-FTM-29DNF.
B. Transfer to the District of Massachusetts
By Order dated August 2, 2001, a judge of the District Court for the Middle District of Florida, Fort Myers Division, transferred the case to this court, where it was filed by the Clerk of this court as Docket No. 1.
C. Pending Matters
Now before this court for decision are the following:
(1) Plaintiff's Motion for Transfer of Venue (not filed and not docketed in this court but apparently served upon defense counsel);
(2) Defendants' Motion to Dismiss (Docket No. 2, filed November 19, 2001) with Memorandum in Support (Docket No. 3, filed November 19, 2001);
(3) Defendants' Opposition to Plaintiff's Motion for Change of Venue (Docket No. 4, filed December 21, 2001).
II. Venue is Appropriate in the District of Massachusetts
A. Plaintiff's Claim to Venue in Florida is Insupportable
Plaintiff seeks to have this court transfer this case back to Florida. That is not possible for several independently sufficient reasons.
First. The record contains no showing that any court in Florida has jurisdiction over the person of any of the defendants. The District Court for the Middle District of Florida, Fort Myers Division, has so decided. See Part I.B. of this opinion, above. This court lacks authority to overturn that decision. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988) ("the policies supporting the [law of the case] doctrine apply with even greater force to transfer decisions than do decisions of substantive law; transferee courts that feel entirely free to revisit transfer decisions of a coordinate court threaten to send litigants into a vicious circle of litigation"); accord Hayman Cash Register Co. v. Sarokin, 669 F.2d 162, 169 (3d Cir.1982); Breed Technologies, Inc. v. Allied Signal, Inc., 128 F.Supp.2d 743, 746 (D.Del.2001).
Second. On the record now existing, this court would reach the same decision on the ground of lack of a showing of jurisdiction over the person of any defendant, even if not bound by the previous decision of the court in which this civil action was filed.
For these indisputable reasons, this court need not and does not examine the several additional grounds of Defendants' Opposition to Plaintiff's Motion for Change of Venue. That motion is denied in the Order below.
III. Grounds Asserted in the Motion to Dismiss
After addressing the "Standard of Review" in Part A of their argument, defendants identify as allegedly independently sufficient reasons for dismissal the following grounds:
B. The Plaintiff Lacks Article III Standing
C. The Plaintiff's Claims Are Barred by Immunity
D. The Plaintiff's Claims Are Barred by 28 U.S.C. § 372(c)(10)
E. The Complaint Fails to State a Claim Upon Which Relief Can Be Granted
1. Count I Fails to State the Elements of a RICO Violation
2. Count II of the Complaint Fails to State a Valid Bivens Claim
3. There is No Private Right of Action for Damages Under 18 U.S.C. § 242
In explanation of Ground B, defendants argue:
Article III of the United States Constitution limits a federal court's jurisdiction to justiciable cases or controversies. See Allen v. Wright, 468 U.S. 737, 750-51, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). To establish a standing to sue, a plaintiff must show that a justiciable issue exists and that he has a sufficiently personal stake in it. Becker v. Federal Election Commission, 230 F.3d 381, 384-85 (1st Cir.2000). "The basic requirements for Article III standing are that the petitioner is someone who has suffered or is threatened by injury in fact to a cognizable interest, that the injury is causally connected to the defendant's action, and that it can be abated by a remedy the court is competent to give." Save Our Heritage, Inc. v. Federal Aviation Administration, 269 F.3d 49, [55] (1st Cir.2001); see Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The plaintiff bears the burden of establishing his standing to sue. Id. at 561, 112 S.Ct. 2130.
The complaint fails to allege any facts suggesting that the plaintiff has suffered any injury at all, much less one causally connected to the decisions of the Judicial Council. The plaintiff does not allege that he was a party to a case having some relation to the Judicial Council decisions. There is no allegation that the plaintiff was an attorney whose practice was affected by any particular judicial conduct at issue in the Judicial Council decisions. Since a purely intellectual interest in an issue, no matter how sincere, will not suffice to establish an injury that is both "concrete and particularized," Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), the plaintiff may not maintain this action. Accordingly, it should be dismissed.
Docket No. 3 at 4-5 (footnote omitted).
In explanation of Ground C, defendants argue:
It is a well established principle of law that a judge enjoys absolute immunity from suit for money damages for actions taken in his or her judicial capacity. Mireles v. Waco, 502 U.S. 9, 11-12, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991). "This immunity applies no matter how erroneous the act may have been, how injurious its consequences, how informal the proceeding, or how malicious the motive." Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir.1989); See Bettencourt v. Bd. of Reg. In Med., 904 F.2d 772, 782 (1st Cir.1990); Decker v. Hillsborough County Atty.'s, 845 F.2d 17, 21 (1st Cir.1988); Malachowski v. City of Keene, 787 F.2d 704, 710 (1st Cir.1986).
The Supreme Court has recognized only two situations in which judicial immunity can be overcome. First, a judge is not immune from liability for "actions not taken in the judge's judicial capacity." Id. "[W]hether an act by a judge is a `judicial' one relates to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity." Stump v. Sparkman, 435 U.S. 349, 362, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); see also Cleavinger v. Saxner, 474 U.S. 193, 201-202, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985). Second, a judge does not enjoy immunity for actions taken in the complete absence of jurisdiction. Mireles, 502 U.S. at 11-12, 112 S.Ct. 286, citing Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988); see also Bradley. v. Fisher, 13 Wall. 335, 80 U.S. 335, 20 L.Ed. 646 (1871). Neither exception applies in this case.
The actions alleged in the complaint were "judicial." They were taken by the members of the Judicial Council in their judicial capacities and pursuant to the jurisdiction conferred upon them by 28 U.S.C. § 372(c). The complaint indicates that the defendants were each members of the Judicial Council, and it alleges that the defendants acted in their capacities as such. E.g., Complaint ¶¶ 38, 41, 46. The disposition of the various petitions, was "a function normally performed by a judge," since, by law, the members of the Judicial Council must be Article III judges, 28 U.S.C. § 332(a)(1). The Judicial Council is expressly empowered by law to pass judgment on complaints of judicial misconduct, and to thereby withhold or impose disciplinary measures in response to a complaint. 28 U.S.C. § 372(c)(6). This function is a form of adjudication and therefore falls within the scope of functions protected by absolute immunity. See Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435-36, 113 S.Ct. 2167, 124 L.Ed.2d 391 (1993); see also Bradley v. Fisher, 13 Wall. 335, 80 U.S. 335, 20 L.Ed. 646 (1871) (absolute immunity applies to disbarring of attorney without first affording the lawyer an opportunity to be heard); Partington v. Gedan, 961 F.2d 852, 866-67 (9th Cir.1992) (interpreting and enforcing state bar disciplinary rules are "judicial" functions); Sparks v. Character & Fitness Comm., 859 F.2d 428 (6th Cir.1988) (denying an application for admission to a state bar is "judicial" in nature); LaNave v. Minnesota Sup.Ct., 915 F.2d 386, 387 (8th Cir.1990) (same). The plaintiff could only have expected, when he filed his section 372(c)(1) petitions, to "deal[ ] with the judge in his judicial capacity." Stump v. Sparkman, 435 U.S. 349, 362, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978).
Moreover, the jurisdiction of the defendants to act on the petitions can hardly be questioned. The complaint acknowledges that such actions are taken pursuant to 28 U.S.C. § 372(c)(1), Complaint ¶ 18, and there can be little doubt that the statute confers jurisdiction for such actions. Therefore, neither exception to judicial immunity applies here.
Judicial immunity cannot be avoided by the simple expedient of alleging a RICO violation. While judges do not enjoy immunity from criminal liability, O'Shea v. Littleton, 414 U.S. 488, 503, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), this does not mean that civil plaintiffs can recover from a judge under RICO. Federal courts "have proceeded on the assumption that common-law principles of legislative and judicial immunity were incorporated into our judicial system and that they should not be abrogated absent clear legislative intent to do so." Pulliam v. Allen, 466 U.S. 522, 529, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984). There is no indication that in enacting RICO Congress intended to give civil plaintiffs a remedy not available to those who sue judges under the common law. The complaint must therefore be dismissed on the ground that it is barred by absolute judicial immunity.
Even if absolute immunity were not available in this case, the suit would be subject to dismissal on the basis of qualified immunity. See generally Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The complaint does not allege facts which, if taken as true, show that the defendants violated " `clearly established' statutory or constitutional rights of which a reasonable person would have known." Id. at 818, 102 S.Ct. 2727; see Castro-Aponte v. Ligia-Rubero, etc., et al., 953 F.2d 1429, 1430 (1st Cir.1992).