NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 20-1112 ___________

SURENDER MALHAN, for himself and as a parent of E.M. and V.M., Appellant

v.

DAVID KATZ, in both his individual and official capacities; JOHN DOES 1 THROUGH 10 ___________

On Appeal from the United States District Court for the District of New Jersey (D.N.J. No. 2:18-cv-16404) U.S. District Judge: Hon. Susan D. Wigenton

___________

Submitted Under Third Circuit L.A.R. 34.1(a) on September 17, 2020

Before: KRAUSE, RESTREPO, and BIBAS, Circuit Judges.

(Opinion filed: October 14, 2020)

OPINION*

* This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not constitute binding precedent. KRAUSE, Circuit Judge.

Surender Malhan appeals the dismissal of his complaint. Because we agree with

the District Court that Judge Katz is not a proper defendant for declaratory or injunctive

relief under

and is absolutely immune from a suit for monetary damages,

we will affirm.

I. DISCUSSION1

Malhan’s claims against Judge Katz, 2 presiding judge of the family division of the

Essex County Superior Court, boil down to two central contentions: (1) Judge Katz’s

conduct during an October 2018 custody proceeding violated due process and equal

protection; and (2) Judge Katz retaliated against Malhan for this lawsuit and a critical

Facebook post by having his law clerk tell a court employee to suspend Malhan’s visitation

rights. All of his claims either seek injunctive or declaratory relief, pursuant to § 1983 and

the Declaratory Judgment Act, or seek monetary damages. Because Judge Katz is not a

1 The District Court had jurisdiction under

, and we have jurisdiction under

. We exercise plenary review over a grant of a motion to dismiss. See Santiago v. GMAC Mortg. Grp., Inc.,

, 386 (3d Cir. 2005). To survive the motion, the complaint must allege “enough facts to state a claim to relief that is plausible on its face.” N.J. Carpenters & the Trustees Thereof v. Tishman Const. Corp. of N.J.,

(3d Cir. 2014) (citation omitted). We accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff’s favor.

2 Malhan’s amended complaint contains four claims: (1) violation of due process and equal protection based on Judge Katz’s actions at the custody hearing (Count I); (2) conspiracy to deprive Malhan of due process and equal protection (Count II); (3) a declaratory judgment that parents have a due process right to cross-examine witnesses and present rebuttal evidence (Count III); and (4) retaliation (Count IV). 2 proper defendant for declaratory or injunctive relief under § 1983 and because he is

absolutely immune from a suit for monetary damages, Malhan cannot proceed on any

count.

A. Malhan’s request for declaratory or injunctive relief

A § 1983 action for declaratory or injunctive relief that challenges the

constitutionality of either a state statute or policy may not be brought against “a judge who

acts [in an adjudicatory capacity] as a neutral and impartial arbiter of [the law].” Allen v.

DeBello,

(3d Cir. 2017). Judges act in an adjudicatory capacity when

they have no “personal or institutional stake on either side of [a] . . . controversy,” “have

played no role in [a] statute’s enactment,” and “have not initiated its enforcement.”

(alterations in original) (citation omitted). A judge is a proper defendant, however, if she

“acts as an enforcer or administrator of a statute,” i.e., when she has the power to initiate

proceedings,

at 440–42; is delegated administrative functions,

; or is in an

“adverse” position to the parties, Brandon E. ex rel. Listenbee v. Reynolds,

(3d Cir. 2000).

Judge Katz’s challenged courtroom practices—calling and directly examining

witnesses, prohibiting Malhan from conducting cross-examination or calling his own

witnesses, and declining to listen to an audio recording offered by Malhan as rebuttal

evidence—were all done in an adjudicative capacity. At base, Malhan is challenging Judge

Katz’s application (proper or not) of the standards set forth in New Jersey case law and

related evidentiary rules for the initiation and conduct of custody proceedings. See, e.g.,

Hand v. Hand,

(N.J. Super. Ct. App. Div. 2007) (collecting case law

3 concerning plenary hearings); K.A.F. v. D.L.M.,

, 983–84 (N.J. Super. Ct. App.

Div. 2014) (same); N.J. R. Evid. 614 (discussing the court’s ability to call and examine

witnesses).

In short, Malhan’s fight lies with those governing standards, not Judge Katz.3

Because Judge Katz did not initiate the custody hearing himself, played no role in

promulgating the rules to which Malhan objects, and has no vested interest in defending

the rules’ constitutionality, he is not a proper defendant for declaratory or injunctive relief.

B. Malhan’s request for monetary damages

Absolute immunity applies so long as the suit challenges a judicial act that was not

taken in the “clear absence of all jurisdiction.” Stump v. Sparkman,

, 356–57

(1978) (citation omitted); see Figueroa v. Blackburn,

(3d Cir. 2000)

(noting that immunity attaches so long as the court “has some subject matter jurisdiction”

(citation omitted)). An act is judicial if (1) it is “a function normally performed by a judge”;

and (2) the parties “dealt with the judge in his judicial capacity.” Figueroa,

(citation omitted).

Judge Katz’s actions at the custody hearing and the ex parte communication by his

law clerk satisfy these criteria. The judge had jurisdiction over the proceedings in dispute.

3 Malhan argues that Judge Katz assumed a prosecutorial role when he questioned the witnesses and prohibited cross-examination. But Judge Katz allowed neither parties’ counsel to conduct cross-examination; he allowed the children’s guardian ad litem to question the witnesses and based his own questioning on topics suggested by the parties’ counsel. Assuming arguendo that these actions were in error, that alone does not mean Judge Katz acted in an enforcement capacity—misapplication of the law is still application of the law, not enforcement of the law against a party. 4 See, e.g., Hand,

(discussing a similar custody proceeding); N.J. Code of

Jud. Conduct r. 3.8 cmt. 2 (contemplating communications between judges and court

employees). Calling and questioning witnesses, see, e.g., N.J. R. Evid. 614(a)–(b), and

communicating ex parte with court employees, see, e.g., N.J. Code of Jud. Conduct r. 3.8

cmt. 2, are both “function[s] normally performed by a judge,” Figueroa,

.

And the parties were dealing with Judge Katz while he was attempting to resolve a custody

dispute—a “paradigmatic judicial act[].” See Forrester v. White,

(1988).

In particular, Malhan challenges Judge Katz’s refusal to consider his evidence or permit

cross-examination and asserts that Judge Katz acted with malicious intent. But even

assuming the truth of Malhan’s allegations, which we must at the motion-to-dismiss stage,

“[a] judge will not be deprived of immunity because the action he took was in error, was

done maliciously, or was in excess of his authority,” Stump, 435 U.S. at 356—even where

such action constituted a “grave procedural error[],”

, or was conducted in an

“informal and ex parte” manner, Forrester,

.

* * *

In sum, because declaratory and injunctive relief is not properly sought against

Judge Katz and because absolute judicial immunity against claims for monetary damages

attaches where, as here, a judge engaged in judicial acts and had “some subject matter

jurisdiction,” Figueroa,

(citation omitted), the District Court did not err in

dismissing Malhan’s complaint.

II. CONCLUSION For the foregoing reasons, we will affirm the District Court’s order of dismissal. 5