                                                        [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                                                                  FILED
                          ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                             December 19, 2005
                                No. 05-11408
                                                            THOMAS K. KAHN
                            Non-Argument Calendar               CLERK
                          ________________________

                     D. C. Docket No. 05-80056-CV-DTKH

NORMAN J. MORDKOFSKY,


                                                              Plaintiff-Appellant,

                                     versus

GUIDO CALABRESI,
U.S. Court of Appeals, 2nd Circuit Judge,

                                                             Defendant-Appellee.


                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         _________________________

                              (December 19, 2005)

Before ANDERSON, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:

      Norman Mordkofsky appeals the sua sponte dismissal of his complaint
based upon the doctrine of absolute judicial immunity. He argues that the district

court erred in sua sponte dismissing his appeal based on judicial immunity because

the Judge Calabresi performed a nonjudicial act, not normally performed by a

judge, the dismissal did not happen in court or in chambers, and there was no case

pending because the defendant had dismissed it. He also argues that the district

court had federal question jurisdiction over his complaint because the complaint

alleged violations of the Constitution and laws of the United States, that nothing in

28 U.S.C. § 1343 or 42 U.S.C. § 1985 states that judicial immunity affects subject

matter jurisdiction, that Judge Calabresi waived judicial immunity by not pleading

it, that Judge Calabresi’s dismissal of his Second Circuit case was contrary to other

legal opinions Judge Calabresi had written, and that his Second Circuit case had

legal merit.

       Under the doctrine of absolute immunity, “[j]udges are entitled to absolute

judicial immunity from damages for those acts taken while they are acting in their

judicial capacity unless they acted in the clear absence of all jurisdiction.” See

Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000) (internal quotations omitted)

(citing Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 55 L.Ed.2d 331

(1978)). “[J]udicial immunity is an immunity from suit, not just from ultimate

assessment of damages.” Mireles v. Waco, 502 U.S. 9, 11, 112 S.Ct. 286, 288, 116



                                           2
L.Ed.2d 9 (1991). “This immunity applies even when the judge’s acts are in error,

malicious, or were in excess of his or her jurisdiction.” Bolin, 225 F.3d at 1239.

However, judicial immunity is an affirmative defense and does not divest the court

of subject matter jurisdiction. Boyd v. Carroll, 624 F.2d 730, 732-33 (5 th Cir.

1980).1 In Boyd, this court held that the failure to plead judicial immunity waived

the affirmative defense and so the court would not address the issue, demonstrating

that it is not subject matter jurisdiction.

       Therefore, the district court erred when it dismissed sua sponte

Mordkofsky’s complaint.2 Accordingly, we vacate and remand for further

proceedings. We note that this case is clearly subject to dismissal upon a plea of

judicial immunity. It is unfortunate that the case law requires it be remanded. This

remand will expend additional judicial and governmental resources because the

Government has to reply and raise the defense. Therefore, because of this waste of

resources, the district court may want to consider sanctions.

VACATED and REMANDED.




       1
           In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)(en banc), this
Court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down
prior to the close of business on September 30, 1981.
       2
          Dismissal would have been appropriate had Mordkofsky filed his suit in forma
pauperis, pursuant to the frivolity review under 28 U.S.C. § 1915(e)(2).

                                               3
