Johnson v. McMahon

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ROBERT W. JOHNSON,

Plaintiff,

-against- 19-CV-5090 (LLS)

JUDGE COLLEEN McMAHON; THE STATE

ORDER OF DISMISSAL

OF NEW YORK; and PROGRESSIVE

CORPORATION INSURANCE COMPANY,

Defendants.

LOUIS L. STANTON, United States District Judge:

Plaintiff, appearing pro se, brings this action against Chief Judge McMahon, New York

State, and Progressive Corporation Insurance Company (Progressive). By order dated June 5,

2019, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in

forma pauperis (IFP). For the following reasons, the Court dismisses this complaint.

BACKGROUND

Plaintiff sues Chief Judge McMahon, asserting claims arising out of her judicial role in

Plaintiff’s prior action against Progressive, see Johnson v. Progressive Corporation Insurance

Company, No. 19-CV-2902 (CM) (S.D.N.Y. May 22, 2019) (the “Southern District case”). That

action concerned a car accident in Buffalo, in which Plaintiff was involved as a passenger in one

of the vehicles. Plaintiff claimed that the Court’s jurisdiction over the claims arose under the

diversity of citizenship statute, 28 U.S.C. § 1332.

On May 22, 2019, Chief Judge McMahon dismissed Johnson, No. 19-CV-2902 (CM)

because Plaintiff had filed a duplicate complaint in the Northern District of Ohio, see Johnson v.

Progressive Corp. Ins. Co., No. 19-CV-0826 (N.D. Ohio) (the “Ohio case”). In the Ohio case,

Plaintiff asserted that the court’s jurisdiction over the claims arose under the federal question

statute, 28 U.S.C. § 1331. Id.

On May 30, 2019, Chief Judge McMahon denied Plaintiff’s motion for reconsideration

filed in the Southern District case, in which he argued that the Southern District case was not

duplicative of the Ohio case. In that order, she informed Plaintiff that the Clerk’s Office would

not accept any further documents for filing in that case, except for those that were directed to the

United States Court of Appeals for the Second Circuit.

Plaintiff now brings this new action against Chief Judge McMahon, Progressive, and the

State of New York, claiming that the Southern District case is not identical to the Ohio case

because the Ohio case concerns his federal civil rights, and the Southern District case raises a

personal injury claim under state law. In this new action, Plaintiff asserts that the basis of this

Court’s jurisdiction is the federal question statute, and that Chief Judge McMahon “illegally

endorsed Progressive Insurance [l]awyer Michael K. Gertzer which is a violation of due

process.” (Compl. at 6.) He also claims that “[Chief] Judge McMahon and Courts did not serve

Progressive Insurance Company with Plaintiff’s complaint as ordered by Judge Colleen

McMahon on April 22, 2019.”1 (Id. at 5.)

Plaintiff also reasserts his claims against Progressive regarding the Buffalo car accident.

He does not assert any facts related to New York State’s involvement.

Plaintiff seeks money damages. He also seeks “[a]mendments to rules, regulations,

statutes, codes and laws,” but he does not specify how. (Id. at 7.)

1 Chief Judge McMahon granted Plaintiff’s IFP application on April 22, 2019, but she

never directed the Clerk of Court to effect service on Progressive. (See No. 19-CV-2902 Doc.

No. 4.)

DISCUSSION

A. The claims against Chief Judge McMahon are barred under the doctrine of judicial

immunity

Judges are absolutely immune from suit for damages for any actions taken within the

scope of their judicial responsibilities. Mireles v. Waco, 502 U.S. 9, 11 (1991). 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). “Even allegations of bad faith or malice cannot

overcome judicial immunity.” Id. (citations omitted). This is because “[w]ithout insulation from

liability, judges would be subject to harassment and intimidation . . . .” Young v. Selsky, 41 F.3d

47, 51 (2d Cir. 1994). In addition, as amended in 1996, 42 U.S.C. § 1983 provides that “in any

action brought against a judicial officer for an act or omission taken in such officer’s judicial

capacity, injunctive relief shall not be granted unless a declaratory decree was violated or

declaratory relief was unavailable.” 42 U.S.C. § 1983.

Judicial immunity does not apply when the judge takes action “outside” his judicial

capacity, or when the judge takes action that, although judicial in nature, is taken “in absence of

jurisdiction.” Mireles, 502 U.S. at 9-10; see also Bliven, 579 F.3d at 209-10 (describing actions

that are judicial in nature). But “the scope of [a] judge’s jurisdiction must be construed broadly

where the issue is the immunity of the judge.” Stump v. Sparkman, 435 U.S. 349, 356 (1978).

Plaintiff sues Chief Judge McMahon based on her rulings in Johnson, No. 19-CV-2902

(CM). Plaintiff raised similar arguments in his motion for reconsideration, and after Chief Judge

McMahon denied that motion, she informed Plaintiff that further filings would not be accepted.

In response, he sued her. This claim clearly challenges judicial conduct. It is therefore barred

under the doctrine of judicial immunity and is dismissed on this basis.

B. Plaintiff’s claims against New York State are dismissed under the Eleventh

Amendment

“[A]s a general rule, state governments may not be sued in federal court unless they have

waived their Eleventh Amendment immunity, or unless Congress has abrogated the states’

Eleventh Amendment immunity . . . .” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009).

“The immunity recognized by the Eleventh Amendment extends beyond the states themselves to

state agents and state instrumentalities that are, effectively, arms of a state.” Id. New York has

not waived its Eleventh Amendment immunity to suit in federal court, and Congress did not

abrogate the states’ immunity in enacting 42 U.S.C. § 1983. See Trotman v. Palisades Interstate

Park Comm’n, 557 F.2d 35, 40 (2d Cir. 1977).

The Eleventh Amendment does not bar suits seeking prospective injunctive relief against

state officials allegedly acting in violation of federal law. See Ex Parte Young, 209 U.S. 123,

150-59 (1908).

Plaintiff does not assert any facts suggesting that New York State or any of its officials

were personally involved in violating his rights. In any event, Plaintiff cannot sue the State of

New York in federal court for money damages, and he does not seek any injunctive relief against

a state official. Thus, the Court dismisses his claims against the State of New York under the

Eleventh Amendment.

C. Plaintiff’s claims against Progressive are dismissed because his pending claims

against Progressive in the Ohio case arise out of the same set of facts

For the reasons stated in the May 22, 2019 order of dismissal in the Southern District

case, see Johnson, No. 19-CV-2902 (CM), the Court dismisses Plaintiff’s claims against

Progressive without prejudice to the Ohio case, see Johnson v. Progressive Corp. Ins. Co., No.

19-CV-0826. Plaintiff may not split his case into two and litigate each one in a different federal

courthouse, under two different legal theories. See Waldman v. Vill. of Kiryas Joel, 207 F.3d 105,

110 (2d Cir. 2000) (discussing “the well-established rule that a plaintiff cannot avoid the effects

of res judicata by ‘splitting’ his claim into various suits, based on different legal theories (with

different evidence ‘necessary’ to each suit)”).

Put simply, the Court was well within its authority to dismiss the Southern District case

as duplicative of the Ohio case for the purposes of managing its docket, promoting efficiency,

and protecting parties from repetitive filings. See Curtis v. Citibank, N.A., 226 F.3d 133, 138 (2d

Cir. 2000) (noting that “[t]he power to dismiss a duplicative lawsuit is meant to foster judicial

economy and the comprehensive disposition of litigation . . [it] is also meant to protect parties

from the vexation of concurrent litigation over the same subject matter” (internal quotation

marks and citations omitted)).

D. The Court declines to grant Plaintiff leave to amend because it would be futile

District courts generally grant a pro se plaintiff an opportunity to amend a complaint to

cure its defects, but leave to amend is not required where it would be futile. See Hill v. Curcione,

657 F.3d 116, 123–24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).

Because the defects in Plaintiff’s complaint cannot be cured with an amendment, the Court

declines to grant Plaintiff leave to amend his complaint.

CONCLUSION

The Clerk of Court is directed to assign this matter to my docket, mail a copy of this

order to Plaintiff, and note service on the docket. Plaintiff’s complaint, filed in forma pauperis

under 28 U.S.C. § 1915(a)(1), is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii), and as

duplicative of Johnson v. Progressive Corp. Ins. Co., No. 19-CV-0826 (N.D. Ohio).

The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would

not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an

appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

The Clerk of Court is directed to docket this as a “written opinion” within the meaning of

Section 205(a)(5) of the E-Government Act of 2002.

SO ORDERED.

Dated: June 26, 2019

New York, New York

Louis L. Stanton

U.S.D.J.