Mark Felix Wirfel v. Francis J. Leahey

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-1740
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MARK FELIX WIRFEL,
Appellant
v.
FRANCIS J. LEAHEY;
NORMAN A. KRUMENAKER;
TIMOTHY P. CREANY
____________________________
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 07-cv-00311)
District Judge: Honorable Kim R. Gibson
______________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 2, 2009
Before: RENDELL, HARDIMAN and ALDISERT, Circuit Judges
(Filed November 3, 2009)
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OPINION OF THE COURT
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PER CURIAM
Appellant Mark Felix Wirfel appeals the March 2, 2009, order of the United States
District Court for the Western District of Pennsylvania dismissing his complaint with

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prejudice. For the following reasons, we will affirm the District Court’s order.
I.
Wirfel has a history with the Court of Common Pleas of Cambria County,
Pennsylvania, going at least as far back as a 1997 custody action initiated by Wirfel’s ex-
wife concerning their two children, over which Judge Leahey presided. During the
custody proceedings, Wirfel began writing letters to Judge Leahey. Based upon these
letters, Wirfel was eventually charged with terroristic threats, attempted harassment, and
harassment by communications. In December 1998, Wirfel pleaded nolo contendere to
the charges and Judge Krumenacker sentenced him. While serving the sentence, Wirfel
began writing letters to Judge Krumenacker. Based upon the letters, Wirfel was again
charged with terroristic threats. Wirfel pleaded nolo contendere to the charge in March
2003 and Judge Creany sentenced him to a suspended sentence. Because a suspended
sentence is not permissible under Pennsylvania law, Wirfel was ultimately released from
prison on a writ of habeas corpus. See Wirfel v. Cmwlth. of Pa., 3:05-cv-00025 (W.D.
Pa. Aug. 23, 2007).
Wirfel initiated this civil action in the District Court in November 2007, naming
Judges Leahey, Krumenaker, and Creany as defendants (the “judicial defendants”). In his
complaint, Wirfel claims that the judicial defendants violated his First Amendment right
to free speech by subjecting him to “false arrests(s), conviction(s) and obstruction of
justice.” Wirfel appended to his complaint a 1998 order issued by Judge Leahey in the

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Wirfel also seeks to have criminal charges brought against the judicial defendants.1
However, such relief may not be obtained in a civil action under 42 U.S.C. § 1983.
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state court custody action, which prohibited Wirfel from having contact with his children
due to Wirfel’s mental condition. Wirfel claims that Judge Leahey’s order violated
Wirfel’s First Amendment “[r]ight to voice opinion of Religion to his own two children.”
Wirfel alleges that he responded to Judge Leahey’s order “with letters written of only the
truth no matter what,” that the letters did not threaten Judge Leahey’s life, and that Judge
Leahey wrongfully had him arrested.
Wirfel’s complaint claims that he suffered physical and emotional injuries,
primarily due to the loss of time with his children. He seeks monetary damages.1
The judicial defendants moved to dismiss the complaint on the grounds of absolute
judicial immunity. Wirfel opposed the motion and filed several additional motions,
largely concerning child support payments. On March 2, 2009, the District Court granted
the motion to dismiss, dismissed the complaint with prejudice, and denied Wirfel’s
pending motions as moot.
Wirfel filed this timely appeal.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise
plenary review over the District Court’s decision to grant the motion to dismiss on the
grounds of absolute judicial immunity. See Gallas v. Supreme Court of Pennsylvania,

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211 F.3d 760, 768 (3d Cir. 2000).
The Supreme Court long has recognized that judges are immune from suit for
monetary damages arising from their judicial acts. See Mireles v. Waco, 502 U.S. 9, 9
(1991); Forrester v. White, 484 U.S. 219, 225-27 (1988); Stump v. Sparkman, 435 U.S.
349, 355-56 (1978). Judicial immunity applies unless the judge’s actions either were
nonjudicial or were taken in the complete absence of jurisdiction. See Gallas, 211 F.3d at
768-69 (citing Mireles, 502 U.S. at 11-12).
The District Court concluded that absolute judicial immunity applies in this case.
After closely considering the allegations of the complaint, we agree. Wirfel’s claimed
injuries stem directly from court orders entered by Judges Leahey, Krumenaker, and
Creany in their capacities as judges for the Court of Common Pleas of Cambria County,
issued while they were presiding over civil and criminal matters involving Wirfel. These
orders may not serve as the basis for an award of civil damages. The judicial defendants
are entitled to the protection of absolute judicial immunity from Wirfel’s claims, and, as a
result, the District Court appropriately dismissed the complaint. See Gallas, 211 F.3d at
770. We also agree with the District Court’s conclusion that amendment of the complaint
would be futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
In support of his appeal, Wirfel argues that judicial immunity should not apply in
this case because “the actions (and orders) of the judge(s) were plainly incompetent and
clearly against the law. . . .” However, Wirfel’s claim of judicial error is not sufficient to

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overcome the application of judicial immunity. See Stump, 435 U.S. at 356-57; see also
Gallas, 211 F.3d at 769. Wirfel has not argued that the judicial defendants acted in a
nonjudicial capacity or outside of their jurisdiction and, based upon our review of the
allegations of the complaint, we discern no basis for such an argument.
III.
Because the judicial defendants are entitled to judicial immunity, we will affirm
the order of the District Court.

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