Lewis v. Wolfe

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

REGINA LEWIS,

21-CV-6949 (LTS)

Plaintiff,

-against- ORDER OF DISMISSAL AND

TO SHOW CAUSE UNDER

CATHERINE O’HAGAN WOLFE,

28 U.S.C. § 1651

Defendant.

LAURA TAYLOR SWAIN, Chief United States District Judge:

Plaintiff Regina Lewis, who is proceeding pro se, filed this action under 42 U.S.C. § 1983

alleging that Defendant Catherine O’Hagan Wolfe, the Clerk of Court for the United States Court

of Appeals for the Second Circuit, violated Plaintiff’s rights when she issued an order in one of

Plaintiff’s appellate proceedings. On October 6, 2021, the Court granted Plaintiff’s request to

proceed in this action in forma pauperis (IFP), that is, without prepayment of fees.

For the reasons set forth below, the Court (1) dismisses the complaint and (2) orders

Plaintiff to show cause why she should not be barred, under 28 U.S.C. § 1651, from filing future

actions IFP in this Court without leave of court.

STANDARD OF REVIEW

The Court must dismiss an IFP complaint, or portion thereof, that is frivolous or

malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a

defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v.

Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). While the law mandates dismissal

on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v.

Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they

suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal

quotation marks and citations omitted).

BACKGROUND

This action arises out of Plaintiff’s appellate proceeding in the Second Circuit, where she

was required to seek leave to appeal because of her history of frivolous and vexatious filings. See

Lewis v. County of Orange, N.Y., No. 16-4082 (2d Cir. May 18, 2018) (No. 77).

Plaintiff alleges the following: On July 14, 2021, Defendant “rendered a decision and

order,” even though Defendant “is not an appellate judge.” (ECF 1, at 1.) Plaintiff asserts that the

“decision, instructing [Plaintiff] to seek permission prior to filing a notice of appeal and

dismissal of [her] appeal[,] is fraud and unethical conduct.” (Id.) Defendant also

construed the appellate rules to deny and disparage [Plaintiff] from [her] right to file an

appeal in violation of the 11th Amendment. … Apparently, the chief judges are

responsible for the clerk, and condone the fraudulent practice of the defendant requiring

me and others to seek permission before filing a notice of appeal. This constitutes inter

alia judicial misconduct, see [Rule 5.1 Appeal by Leave under 28 U.S.C. § 636(c)(5)]

(Abrogated Apr. 24, 1998, eff. Dec. 1, 1998).

(Id.)

Publicly available records indicate that on July 14, 2021, in Plaintiff’s appellate

proceeding in the matter of Lewis v. Huebner, No. 21-1710 (2d Cir. Aug. 4, 2021), Defendant

issued an order, stating that Plaintiff’s appeal would be “dismissed effective August 4, 2021

unless a motion seeking leave of [the Second Circuit] is filed by that date.” Id., No. 6. Defendant

issued the July 14, 2021 order based on prior decisions “requiring [Plaintiff] to file a motion

seeking leave of [the Second Circuit] prior to filing any future appeals.” Id. (citing Regina Lewis

v. County of Orange, N.Y., 16-4017, Regina Lewis v. City of Newburgh, New York, 16-4041,

Regina Lewis v. County of Orange, N.Y., 16-4082). The sanction requiring Plaintiff to seek leave

from the Second Circuit before filing any future appeal in that court was imposed because of her

frivolous, vexatious, and “clearly meritless appeals.” Lewis, No. 16-4082, ECF 77.

Plaintiff now sues Defendant for issuing a court order directing Plaintiff to seek leave to

appeal. She seeks injunctive relief and money damages.

DISCUSSION

Claims against Defendant

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). Moreover, as amended, Section 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.” Id.; see Viola v. Bryant, No. 17-CV-0853, 2017 WL 2676407, at *3 n.5 (D.

Conn. June 21, 2017) (applying Section 1983 amendment to cases involving federal judicial

officers).

Absolute judicial immunity has been extended to those nonjudicial officers who perform

acts that are “‘functionally comparable’ to that of a judge’” or “are integrally related to an

ongoing judicial proceeding.” Mitchell v. Fishbein, 377 F.3d 157, 172 (2d Cir. 2004) (citations

omitted). Courts have held that this quasi-judicial immunity applies to other individuals when

they are “performing discretionary acts of a judicial nature.” Oliva v. Heller, 839 F.2d 37, 39 (2d

Cir. 1988). Court clerks, for example, are immune from suit “for performance of tasks which are

judicial in nature and an integral part of the judicial process.” Rodriguez v. Weprin, 116 F.3d 62,

66 (2d Cir. 1997); see also McKeown v. N.Y. State Comm’n on Judicial Conduct, 377 F. App’x

121 (2d Cir. 2010) (grievance committee counsel); Stephens v. Sullivan & Cromwell LLP, No.

15-CV-1251 (LGS), 2015 WL 1608427, at *3 (S.D.N.Y. Apr. 9, 2015) (county clerk). In addition,

court clerks “are absolutely immune from suit for ‘functions which are administrative in nature if

the task was undertaken pursuant to the explicit direction of a judicial officer or pursuant to the

established practice of the court.’” Garcia v. Hebert, No. 08-CV-0095 (DFM), 2013 WL

1294412, at *12 (D. Conn. Mar. 28, 2013) (quoting Humphrey v. Court Clerk for the Second

Circuit, No. 5:08-CV-0363, 2008 WL 1945308, at *2 (N.D.N.Y. May 1, 2008)).

Pursuant to Local Rule 45.1 of the Second Circuit’s Local Rules of Appellate Procedure

(“Local Rule 45.1”): “The clerk signs and enters, electronically or otherwise, all orders on behalf

of the court.” Id.

Plaintiff sues Defendant based on her issuing an order, pursuant to Local Rule 45.1, in

Plaintiff’s appellate proceeding. This conduct is “judicial in nature and an integral part of the

judicial process.” Rodriguez, 116 F.3d at 66. The Court therefore finds that Defendant is entitled

to absolute immunity from this lawsuit.

The Court also finds that Plaintiff’s allegation that Defendant does not have the authority

to issue orders is frivolous. See, e.g., United States v. Crawford-Bey, No. 1:08-CR-0029, 2014

WL 1778415, *12 n.19 (D. Vt. May 5, 2014) (noting that movant’s “allegation … [that] the fact

that the Second Circuit decision was signed by the clerk of the court [was] ‘suspect’ [and] that

there was ‘no finding by [a] judge,’ which ‘call[ed] for rehearing en banc[,]’ … [was]

frivolous”).

The Court therefore dismisses Plaintiff’s complaint against Defendant as frivolous, and

under the doctrine of judicial immunity. See 28 U.S.C. § 1915(e)(2)(B)(i), (iii); Mills v. Fischer,

645 F.3d 176, 177 (2d Cir. 2011) (“Any claim dismissed on the ground of absolute judicial

immunity is ‘frivolous’ for purposes of [the in forma pauperis statute].”).

Plaintiff’s Litigation History

On July 29, 2015, Plaintiff was barred under 28 U.S.C. § 1915(g) from filing any new

civil action IFP while she is a prisoner. Lewis v. Epstein, ECF 1:14-CV-9404, 8 (S.D.N.Y. July

29, 2015). After this bar order was issued, Plaintiff filed 12 cases that were dismissed under

Section 1915(g).1 See Lewis v. Penney, ECF 1:17-CV-2547, 4 (S.D.N.Y. May 15, 2017); Lewis v.

Law Offices of Mathew Witherow, ECF 1:16-CV-10065, 3 (S.D.N.Y. Jan. 10, 2017); Lewis v.

Cnty.. of Orange NY, ECF 1:16-CV-9991, 2 (S.D.N.Y. Jan. 10, 2017); Lewis v. Cnty. of Orange

New York, ECF 1:16-CV-10050, 2 (S.D.N.Y. Jan. 9, 2017); Lewis v. United States, ECF 1:16-CV-

10049, 2 (S.D.N.Y. Jan. 4, 2017); Lewis v. City of Newburgh, NY, ECF 1:16-CV-8872, 2

(S.D.N.Y. Nov. 18, 2016); Lewis v. Cnty. of Orange N.Y., ECF 1:16-CV-8571, 2 (S.D.N.Y. Nov.

10, 2016); Lewis v. Sculley, ECF 1:16-CV-5685, 2 (S.D.N.Y. July 21, 2016); Lewis v. Dubois,

ECF 1:16-CV-8246, 3 (S.D.N.Y. July 21, 2016); Lewis v. Sculley, ECF 1:16-CV-4281, 2

(S.D.N.Y. July 7, 2016); Lewis v. Legal Aid Soc’y. of Orange Cnty. Inc., ECF 1:15-CV-8469, 2

(S.D.N.Y. Nov. 6, 2015); Lewis v. Ryder Weimer & Frankel, ECF 1:15-CV-6255, 3 (S.D.N.Y.

Sept. 11, 2015).

At a competency hearing held on October 10, 2017, pursuant to Rule 17 of the Federal

Rules of Civil Procedure, Plaintiff was found not competent to represent herself. See Lewis v.

Newburgh Hous. Auth., ECF 7:11-CV-3194, 153 (S.D.N.Y. Nov. 5, 2018).

1 During this time period, Plaintiff also filed an action that was dismissed as duplicative,

Lewis v. Hous. & Urban Dev., ECF 1:15-CV-6261, 2 (S.D.N.Y. Aug. 20, 2015), and a habeas

corpus petition, challenging her incarceration, that was denied as frivolous, see Lewis v. Brown,

ECF 1:16-CV-09121, 15 (S.D.N.Y. Jan. 24, 2017) (denying frivolous habeas corpus petition

attempting to “derail” criminal proceedings).

Plaintiff then filed another 12 cases that were dismissed without prejudice because of that

competency finding. See Lewis v. Soc. Sec. Admin., ECF 1:20-CV-09277, 4 (S.D.N.Y. Nov. 12,

2020); Lewis v. Smith, ECF 1:20-cv-07971, 4 (S.D.N.Y. Oct. 15, 2020); Lewis v. Vasquez-Doles,

ECF 1:20-CV-7972, 4 (S.D.N.Y. Oct. 8, 2020); Lewis v. Karas, ECF 1:20-CV-7532, 6 (S.D.N.Y.

Oct. 6, 2020); Lewis v. Karas, ECF 1:20-CV-7618, 3 (S.D.N.Y. Sept. 21, 2020); Lewis v. United

States, ECF 1:19-CV-11504, 2 (S.D.N.Y. Dec. 23, 2019); Lewis v. Ditomasso, ECF 1:19-CV-

10665, 4 (S.D.N.Y. Dec. 9, 2019); Lewis v. Bourne & Kenney Redevelopment Co., ECF 1:19-CV-

9560, 4 (S.D.N.Y. Oct. 30, 2019); Mothers Against Institutional Negligence Inc. et al v. The State

of New York, ECF 1:19-CV-3966, 6 (S.D.N.Y. May 21, 2019); Lewis v. United States, ECF 1:19-

CV-0839, 2 (S.D.N.Y. Feb. 1, 2019); Lewis v. Miller, ECF 1:18-CV-10324 (S.D.N.Y. Nov. 15,

2018); Lewis v. Cnty. of Orange, ECF 1:18-CV-9038, 2 (S.D.N.Y. Oct. 30, 2018).

At a subsequent competency hearing, held on March 18, 2021, Plaintiff was found to be

competent. See Lewis v. Jacobson, ECF 7:21-CV-7973, 24 (S.D.N.Y., case pending). On the

same day, Plaintiff filed a new civil action, which was dismissed both for failure to state a claim

and because she named defendants immune from suit. Lewis v. Hoovler, ECF 1:21-CV-2438, 4

(S.D.N.Y. Apr. 7, 2021).

Order to show cause

In light of this litigation history, the Court orders Plaintiff to show cause why she should

not be barred under 28 U.S.C. § 16512 from filing in this Court any further civil actions IFP,

without leave of court. See Moates v. Barkley, 147 F.3d 207, 208 (2d Cir. 1998) (per curiam)

(“The unequivocal rule in this circuit is that the district court may not impose a filing injunction

2 “The Supreme Court and all courts established by Act of Congress may issue all writs

necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and

principles of law.” 28 U.S.C. § 1651.

on a litigant sua sponte without providing the litigant with notice and an opportunity to be

heard.”).

Within 30 days of the date of this order, Plaintiff must submit to this Court a declaration

setting forth good cause why the Court should not impose this filing injunction upon her. If

Plaintiff fails to submit a declaration within the time directed, or if Plaintiff’s declaration does

not set forth good cause why this filing injunction should not be entered, she will be barred from

filing any further civil actions IFP in this court, unless she first obtains permission from the court

to do so.

CONCLUSION

The complaint, filed IFP under 28 U.S.C. § 1915(a), is dismissed because it is frivolous

and because Plaintiff seeks relief from a defendant who is immune from such relief. 28 U.S.C.

§ 1915(e)(2)(B)(i), (iii). The Court directs Plaintiff, within 30 days, to show cause by declaration

why an order should not be entered barring her from filing any further civil actions IFP in this

court without prior permission. A declaration form is attached to this order.

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

would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal.

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

The Clerk is directed to mail a copy of this order to Plaintiff and note service on the

docket.

Dated: October 14, 2021

New York, New York

/s/ Laura Taylor Swain

LAURA TAYLOR SWAIN

Chief United States District Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

Write the first and last name of each plaintiff or

petitioner.

Case No. CV

-against-

Write the first and last name of each defendant or

respondent.

DECLARATION

Briefly explain above the purpose of the declaration, for example, “in Opposition to Defendant’s

Motion for Summary Judgment,” or “in Response to Order to Show Cause.”

I, , declare under penalty of perjury that the

following facts are true and correct:

In the space below, describe any facts that are relevant to the motion or that respond to a court

order. You may also refer to and attach any relevant documents.

Attach additional pages and documents if necessary.

Executed on (date) Signature

Name Prison Identification # (if incarcerated)

Address City State Zip Code

Telephone Number (if available) E-mail Address (if available)