Brik v. McFarland

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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:

ROMAN BRIK,

:

Plaintiff,

: MEMORANDUM AND ORDER

– against – : 23-CV-3507 (AMD) (LB)

:

JANET McFARLAND, COURT OFFICER

LAVANCO, Badge # 6248 :

Defendants. :

--------------------------------------------------------------- X:

A

NN M. DONNELLY, United States District Judge::

On May 5, 2023, the pro se plaintiff filed a co:m plaint bringing claims pursuant to 42

U.S.C. § 1983, and one claim for intentional infliction of emotional distress under New York

law, against the Honorable Janet McFarland, a judge in Family Court of the State of New York,

:

Richmond County and a court officer, Officer Lavanco, Shield Number 6248, in connection with

:

ongoing family court proceedings. (ECF No. 1.) On: May 17, 2023, the plaintiff filed a motion

:

for recusal. (ECF No. 4.) The Court grants the plaintiff’s request to proceed in forma pauperis

:

pursuant to 28 U.S.C. § 1915. For the reasons discussed below, the plaintiff’s motion for recusal

:

is denied, the complaint is dismissed, and the plaintif:f is granted thirty days leave from the date

of this order to file an amended complaint against Officer Lavanco only.

BACKGROUND

This is the defendant’s third complaint related to family court proceedings in Richmond

County.1 In a complaint filed on September 7, 2021, the plaintiff asserted § 1983 claims against

the Honorable Peter F. DeLizzo, a New York state judge overseeing his child custody

1 See Brik v. Stroutsovsky, Nos. V-1268-20/20A & V-1269-20/20A.

proceedings. (Brik v. DeLizzo, No. 21-CV-5353, ECF No. 1).)2 I dismissed that complaint on

October 6, 2021 as frivolous because Judge DeLizzo is immune from suit, but granted the

plaintiff leave to amend. (Id., ECF No. 5.) On November 15, 2021, the plaintiff filed an

amended complaint, this time against the Richmond County Family Court, seeking a declaration

affirming his constitutional right to a jury trial in his child custody case. (Id., ECF No. 7.) On

December 22, 2021, I dismissed the amended complaint for two reasons: because the Richmond

County Family Court is a state entity immune from suit, and because there is no constitutional

right to a jury trial in a state court child custody case. (Id., ECF No. 9.) The plaintiff appealed

that decision to the Second Circuit, arguing that I “ignored explicit statutory language and

abundant case law, erroneously and unjustly denying expressly provided for declaratory relief.”

(Id., ECF No. 11.) On November 14, 2022, the Second Circuit dismissed that appeal by mandate

because the appeal lacked an arguable basis in law or fact. (Id., ECF No. 13.)

In the meantime, on October 7, 2021, the plaintiff filed a § 1983 case against Judge

McFarland, who replaced Judge DeLizzo in the custody proceeding. The plaintiff claimed that

Judge McFarland “effectively” denied his emergency order to show cause. (ECF No. 1 ¶ 118;

Brik v. McFarland, No. 21-CV-5626, ECF No. 1.) The plaintiff voluntarily dismissed this

complaint on October 13, 2021.

The plaintiff’s most recent filing is also against Judge McFarland for actions she took in

the child custody proceeding. The plaintiff alleges that Judge McFarland’s decisions were

“habitual violations of all judicial norms of behavior” (ECF No. 1 ¶ 7) that impeded his and his

children’s rights. He further alleges that she exercised “arrogantly delusional contempt toward

due process, law, and the U.S. Constitution.” (Id. ¶ 164.) The plaintiff brings § 1983 claims for

2 Citations to “ECF” refer to filings in the instant case, 23-CV-3507. Citations to filings in related cases

specify the relevant docket numbers.

(1) violating his First Amendment rights, (2) violating his due process rights, and (3) violating

child-parent freedoms.3 (Id. ¶¶ 177-198.) He also brings claims for conspiracy to violate his

rights under § 1983 and intentional infliction of emotional distress. (Id. ¶¶ 199-198.) Finally,

the plaintiff appears to claim that Judge McFarland violated his Sixth and Seventh Amendment

rights by denying him a jury trial. (Id. ¶ 2.)

In addition to Judge McFarland, the plaintiff brings claims against a court officer, Officer

Lavanco, who the plaintiff alleges, “violently assaulted [him]” on February 24, 2023, at the

entrance to the courtroom. (Id. ¶ 1.) The plaintiff does not include any additional facts to

support this claim. The plaintiff seeks declaratory and injunctive relief, including an order

enjoining Judge McFarland from retaliating against him. (Id. at 54-55.)

STANDARD OF REVIEW

A complaint must plead sufficient facts to “state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). At the pleadings stage of the

proceeding, the court must assume the truth of “all well-pleaded, nonconclusory factual

allegations” in the complaint. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 123 (2d Cir.

2010) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)). Pro se complaints are held to less

stringent standards than pleadings drafted by attorneys; the court must read the plaintiff’s pro se

complaint liberally and interpret it as raising the strongest arguments it suggests. See, e.g.,

Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hughes v. Rowe, 449 U.S. 5, 9 (1980); Sealed

Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 191-93 (2d Cir. 2008).

Under 28 U.S.C. § 1915(e)(2)(B), a district court will dismiss an in forma pauperis action

where it “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or

3 He also brings this claim pursuant to New York State law.

(iii) seeks monetary relief against a defendant who is immune from such relief.” An action is

“frivolous” when either: (1) “the ‘factual contentions are clearly baseless,’ such as when

allegations are the product of delusion or fantasy;” or (2) “the claim is ‘based on an indisputably

meritless legal theory.’” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.

1998) (internal citation omitted).

DISCUSSION

I. Motion for Recusal

The plaintiff moves that the Court recuse itself. The plaintiff argues that the Court is

“inextricably enmeshed with the New York State and its apparatus, in particular, [the] NYS

judiciary,” and that the Court has “a history indicating [a] full, career-long alignment with

family-destroying ideological ‘progressive’ (Marxist/communist in disguise) agenda fueling the

holocaust of childhoods executed by Family and Supreme Courts.” (ECF No. 4 at 1.) In

addition, he says that the Court is biased against him “in favor of [the Court’s] former

colleagues,” and that it “manipulatively misrepresented [his] arguments and the law, and acted as

a prosecutor, judge and executioner,” when it dismissed his earlier complaint. (Id.)

Under 28 U.S.C. § 455, “[a]ny justice, judge, or magistrate judge of the United States

shall disqualify [herself] in any proceeding in which [her] impartiality might reasonably be

questioned.” 28 U.S.C. § 455(a). To establish a basis for recusal, “[m]ovants must overcome a

presumption of impartiality, and the burden for doing so is substantial.” Metro. Opera Ass’n,

Inc. v. Local 100, Hotel Emps. Int’l Union, 332 F. Supp. 2d 667, 670 (S.D.N.Y. 2004) (citations

and quotation marks omitted). The relevant question under § 455(a) is “whether an objective,

disinterested observer fully informed of the underlying facts would entertain significant doubt

that justice would be done absent recusal.” United States v. Oluwafemi, 883 F. Supp. 885, 890

(E.D.N.Y. 1995) (citing DeLuca v. Long Island Lighting Co., Inc., 862 F.2d 427, 428-29 (2d Cir.

1988)). Determination of that inquiry is committed to the sound discretion of the judge whose

disqualification is sought. Id. (citing In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1312

(2d Cir. 1988)). “Where grounds for recusal do not exist, the judge is obligated not to recuse

herself.” Id. (citing Drexel, 861 F.2d at 1312; Wolfson v. Palmieri, 396 F.2d 121, 124 (2d Cir.

1968)).

Adverse rulings are not a basis for recusal. See HC2, Inc. v. Messer, No. 20-CV-3178,

2022 WL 61370, at *3 (S.D.N.Y. Jan. 6, 2022); see also Sun v. New York City Police Dept., No.

18-CV-11002, 2021 WL 4206939, at *1 (S.D.N.Y. Aug. 13, 2021) (denying plaintiff’s request

for recusal and noting that “[d]isagreement with a litigant’s legal position is not an indication of

improper bias on the part of the Court”). “A judge should not recuse himself on unsupported,

irrational or highly tenuous speculation, and has as much of an obligation not to recuse himself

when it is not called for as he is obliged to when it is.” United States v. LaMorte, 940 F. Supp.

572, 576-77 (S.D.N.Y. Sept. 17, 1996) (internal quotations and citations omitted); see also

Zavalidroga v. Cote, 395 F. App’x 737, 739 (2d Cir. 2010) (“[W]e have a duty to . . . the Court

at large, and the public not to casually recuse ourselves when a party makes general and

unsupported allegations about our impartiality.”).

The plaintiff does not allege any facts that demonstrate that the Court’s decisions were

based on anything other than an application of the relevant law. His argument that the Court

“twisted and misrepresented the relief [he] sought” (ECF No. 4 at 3) when it dismissed his

complaint against Judge Delizzo (DeLizzo, No. 21-CV-5353, ECF No. 5) is meritless. In

dismissing his amended complaint in 2021, the Court addressed his declaratory relief argument

as follows:

The plaintiff faults the Court’s directive instructing him not to bring claims

against Judge DeLizzo, who has absolute immunity; he notes that he is

seeking declaratory relief. (ECF No. 7 at 2-5.) However, the plaintiff seeks

a declaration that Judge DeLizzo’s past decision violated his constitutional

rights, which is retrospective in nature and barred by judicial immunity. See

Treistman v. McGinty, 804 F. App’x 98, 99 (2d Cir. 2020) (“[J]udicial

immunity bars any claim for retrospective declaratory relief.”);

MacPherson v. Town of Southampton, 664 F. Supp. 2d 203, 211 (E.D.N.Y.

2009) (“[T]o the extent Plaintiffs’ declaratory claims are retrospective in

nature in that they seek a declaration that the Justices’ past enforcement of

the Town’s rental law has violated the Constitution, they are barred by the

doctrine of absolute immunity.”).

(DeLizzo, No. 21-CV-5353, ECF No. 9 at 2.)

The plaintiff says that he requested “a declaration that DeLizzo violated my civil rights.”

(ECF No. 4 at 4.) By its terms, the plaintiff was seeking purely retrospective relief—a

declaration that the judge violated his rights. Thus, those claims were properly dismissed.

Indeed, the plaintiff made this very argument on appeal, which the Second Circuit dismissed

because it “lacked an arguable basis in law or fact.” (Brik v. DeLizzo, No. 21-CV-5353, ECF

No. 13.)

The plaintiff also objects that his cases were all assigned to this Court, which he claims

violates “the fundamental principle of access to justice guaranteed by randomly allotted,

impartial judges not acting as jury gatekeepers.” (ECF No. 4 at 1.) The plaintiff seems to

suggest that the Court sought out his cases. The Court assures the plaintiff that it did not seek

out his cases. Rather, the Court was assigned his cases pursuant to Local Rule 50.3.1(e), which

requires that “all pro se civil actions filed by the same individual” are deemed related “[i]n the

interest of judicial economy,” and therefore be assigned to the same district judge and magistrate

judge. That is why the Court has been assigned to preside over the plaintiff’s cases—because he

is a pro se litigant whose filings are deemed related.

In short, there are no grounds for recusal in this case. Accordingly, the plaintiff’s motion

is denied.

II. Claims Against Judge McFarland

The plaintiff’s allegations against Judge McFarland arise from her decisions in the

plaintiff’s Richmond County Family Court child custody action. It is well-settled that judges

have absolute immunity from suits for damages arising out of judicial acts performed in their

judicial capacities. Mireles v. Waco, 502 U.S. 9, 11 (1991); Stump v. Sparkman, 435 U.S. 349,

356 (1978). Generally, “acts arising out of, or related to, individual cases before the judge are

considered judicial in nature.” Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009); Ojeda v.

Mendez, No. 20-CV-3910, 2021 WL 66265, at *2 (E.D.N.Y. Jan. 7, 2021). Judicial immunity

“is not overcome by allegations of bad faith or malice,” nor can judges “be deprived of immunity

because the action [the judge] took was in error . . . or was in excess of [the judge’s] authority.”

Mireles, 502 U.S. at 11, 13 (quotation marks and citations omitted); Witcher v. Moriber, No. 21-

CV-6168, 2022 WL 1085297, at *1 (E.D.N.Y. Apr. 11, 2022). Judicial immunity does not

apply, however, when a judge takes action outside his or her judicial capacity, or when the judge

takes action that, although judicial in nature, is taken “in absence of all jurisdiction.” Mireles,

502 U.S. at 11-12; see also Bliven, 579 F.3d at 209-10. Here, the plaintiff fails to assert any

plausible claim which suggests that Judge McFarland did not have jurisdiction or acted outside

her judicial capacity. Therefore, Judge McFarland is entitled to absolute immunity.

The plaintiff seeks declaratory judgments declaring that Judge McFarland’s past acts, in

her capacity as the judge assigned to his case, were unlawful. (ECF No. 1 at 54-55.) As

explained above, while judicial immunity “do[es] not necessarily preclude declaratory relief,” it

still bars “claims that are retrospective in nature in that they seek a declaration that a judge’s past

behavior has violated the Constitution.” Sibley v. Geraci, No. 6:20-CV-06310, 2020 WL

6041842, at *2 (W.D.N.Y. Oct. 13, 2020) (quoting other sources), aff’d, No. 20-3608, 2021 WL

2224369 (2d Cir. June 2, 2021) (summary order). The plaintiff’s claims against Judge

McFarland fall squarely within that category.

The plaintiff’s claims for injunctive relief fare no better. The Federal Courts

Improvement Act of 1996 bars injunctive relief in any § 1983 action “against a judicial officer

for an act or omission taken in such officer’s judicial capacity . . . unless a declaratory decree

was violated, or declaratory relief was unavailable.” § 309(c), Pub. L. No. 104-317, 110 Stat.

3847, 3853 (1996) (amending 42 U.S.C. § 1983); see Huminski v. Corsones, 396 F.3d 53, 74 (2d

Cir. 2004) (injunctive relief); Guerin v. Higgins, 8 F. App’x 31 (2d Cir. 2001) (declaratory

relief). The plaintiff has not alleged that Judge McFarland violated a declaratory decree or acted

in excess of her jurisdiction, or that declaratory relief is unavailable. The Court denies the

plaintiff’s specific request for declaratory relief as improper, but that does not mean that

declaratory relief is unavailable as a general matter. Ashmore v. New York, No. 12-CV-3032,

2012 WL 2377403, at *3 (E.D.N.Y. June 25, 2012) (“While plaintiff, who appealed the

judgment entered against him in state court, may not have succeeded in obtaining declaratory

relief, he has not alleged facts to suggest that such relief was unavailable.”). Indeed,

“[d]eclaratory relief against a judge for actions taken within her judicial capacity is ordinarily

available by appealing the judge’s order.” Walker v. Jolly, No. 23-CV-1430, 2023 WL 3304546,

at *7 (S.D.N.Y. May 5, 2023); see also Vazquez-Diaz v. Borreiro, No. 1:22-CV-8708, 2022 WL

17539501, at *3 n.4 (S.D.N.Y. Dec. 5, 2022); Berlin v. Meijias, No. 15-CV-5308, 2017 WL

4402457, at *4 (E.D.N.Y. Sept. 30, 2017) (“Here, no declaratory decree was violated and

declaratory relief is available to plaintiffs through an appeal of the state court judges’ decisions

in state court.”). Thus, declaratory relief was available to the plaintiff in the form of an appeal in

state court.

Accordingly, the plaintiff’s claims against Judge McFarland are dismissed.

III. Claims Against Court Officer Lavanco

The plaintiff also names Officer Lavanco in the complaint, but alleges only that Officer

Lovanco “violently assaulted” him on February 24, 2023, “apparently at the direction of

McFarland.” (ECF No. 1 ¶ 1.) Pursuant to Rule 8 of the Federal Rules of Civil Procedure, the

plaintiff must provide a short, plain statement of his claim against the defendant so that the

defendant has adequate notice of the claims against him. Iqbal, 556 U.S. at 678 (Rule 8

“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”). A

pleading that “tenders naked assertions devoid of further factual enhancement” will not suffice.

Id. (internal citations and alterations omitted). To satisfy this standard, the complaint must at a

minimum “disclose sufficient information to permit the defendant to have a fair understanding of

what the plaintiff is complaining about and to know whether there is a legal basis for recovery.”

Kittay v. Kornstein, 230 F.3d 531, 541 (2d Cir. 2000) (internal quotation marks omitted);

Harnage v. Lightner, 916 F.3d 138, 141 (2d Cir. Feb. 15, 2019).

Even liberally construing the plaintiff’s claims against Officer Lavanco, the complaint as

drafted does not state a claim upon which relief can be granted. Although the plaintiff alleges

that the officer assaulted him, he does not describe anything about the assault or the injuries that

he suffered. The plaintiff also appears to make a § 1983 claim against Officer Lavanco; he says

that he is seeking a “declaratory judgment that the [] actions of . . . Defendant Lavanco were

unlawful and in violation of Plaintiff’s First Amendment rights.” (ECF No. 1 at 54.) However,

the plaintiff does not explain how Officer Lavanco violated his First Amendment rights.

CONCLUSION

Accordingly, the complaint is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), (iii),

and the plaintiff’s motion for recusal is denied. In light of this Court’s duty to construe pro

se complaints liberally, the Court grants the plaintiff thirty days from the date of this order to file

an amended complaint against Officer Lavanco. Cruz v. Gomez, 202 F.3d 593 (2d Cir. 2000).

If the plaintiff elects to file an amended complaint, the amended complaint must comply

with Rule 8(a) of the Federal Rules of Civil Procedure, and include a short, plain statement of

facts to support his claim against Officer Lavanco. The plaintiff must also state the relief that

he requests.

An amended complaint against Judge McFarland would be futile because she has judicial

immunity and “better pleading will not cure” the defects that the Court has identified. Cuoco v.

Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Ashmore v. Prus, 510 F. App’x 47, 49 (2d

Cir. 2013) (summary order) (leave to amend is futile where barriers to relief cannot be

surmounted by reframing the complaint). Accordingly, the amended complaint should not

include claims against Judge McFarland or other defendants who are immune from suit.

If the plaintiff files an amended complaint, it will completely replace, not supplement, the

original complaint. The amended complaint must be captioned as an “Amended Complaint,”

and have the same docket number as this order: 23-CV-3507 (AMD) (LB). No summons will

issue at this time and all further proceedings are stayed for thirty days. If the plaintiff does not

amend the complaint within thirty days, or cure the deficiencies discussed in this order, judgment

will be entered.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken

in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. See

Coppedge v. United States, 369 U.S. 438, 444–45 (1962).

SO ORDERED.

s/Ann M. Donnelly

___________________________

ANN M. DONNELLY

United States District Judge

Dated: Brooklyn, New York

June 29, 2023