# Lichtman v. Dennis

> District Court, W.D. New York · May 21, 2024

URL: https://www.frixlaw.com/law-library/cases/10367245

## Case

- **Court:** District Court, W.D. New York
- **Decided:** May 21, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MITCHEL LICHTMAN,

Plaintiff,

Case No. 24-CV-06038-FPG
v.
DECISION AND ORDER

HON. BRIAN D. DENNIS, et al.,

Defendants.

INTRODUCTION

Plaintiff Mitchel Lichtman (“Plaintiff”), proceeding pro se, brings this action against
Defendants Hon. Brian D. Dennis; Ontario Family Court; and Ontario County (“Defendants”),
alleging constitutional violations pursuant to 42 U.S.C. § 1983. ECF No. 1 at 1, 41-46. Plaintiff
alleges that Judge Dennis violated his constitutional rights by issuing orders that Plaintiff could
have no contact with his grandchildren, after Plaintiff’s daughter-in-law sought sole custody of her
children, following her divorce from Plaintiff’s son. Id. at 5-9. Plaintiff had pleaded guilty to a
felony involving possession of a sexual performance by a minor in the 1990s, and admitted to
sexually abusing his son when he was a teen. Id. at 5. Defendants have moved to dismiss
Plaintiff’s complaint. ECF Nos. 6, 9.
For the reasons set forth below, Plaintiff’s complaint fails to state a claim upon which relief
may be granted. Accordingly, Defendants’ motions to dismiss are GRANTED.
BACKGROUND
Courts evaluating a motion to dismiss must accept facts alleged in the complaint as true
and draw all reasonable inferences from those facts in favor of the non-moving party. Nat’l Fed.
of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, 567 (D. Vt. 2015). As such, the facts below are
taken from Plaintiff’s complaint.
In March 2021, Plaintiff’s daughter-in-law filed a motion in Ontario County Family Court
seeking full legal custody of her children and to prohibit Plaintiff’s contact with them, after her

divorce from Plaintiff’s son. ECF No. 1 at 9. Plaintiff states that he posed “no significant risk of
harm to his grandchildren[,]” despite his prior misconduct and that he had developed a positive
relationship with them and his son. Id. “Upon receiving the motion […] in March of 2021, the
court issued an ex parte order barring any contact between Plaintiff and his grandchildren.” Id. at
11. In June 2021, Plaintiff filed a request for grandparent visitation. Id. at 13-15. After a hearing,
Plaintiff’s motion was denied. Id. at 16-17. In denying Plaintiff’s motion, Judge Dennis cited,
inter alia, Plaintiff’s sexual abuse of his son when he was thirteen years old, and other offenses to
which Plaintiff had previously pleaded guilty. ECF No. 1 at 17.
On June 1, 2022, Judge Dennis issued an order prohibiting contact between Plaintiff and
his grandchildren until 2034. ECF No. 1 at 3. On July 14, 2022, Judge Dennis entered an order

of protection against Plaintiff. Id. On June 30, 2022, the Appellate Division unanimously affirmed
Judge Dennis’s decisions. ECF No. 1 at 78-81.
LEGAL STANDARD
To survive a Rule 12(b)(6) challenge, a complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The
“plausibility standard is not akin to a probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. (internal quotation marks omitted). A
district court must accept as true all factual statements alleged in the complaint and draw all
reasonable inferences in favor of the nonmoving party. Vietnam Ass’n for Victims of Agent Orange
v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir. 2008).
But even a plausibly pleaded complaint may be dismissed under Rule 12(b)(6) if the motion
raises a well-supported affirmative defense, including the defense that the claim is barred by the

applicable statute of limitations, and the propriety of the defense “appears on the face of the
complaint.” Official Comm. of the Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand,
LLP, 322 F.3d 147, 158 (2d Cir. 2003); see also McGullam v. Cedar Graphics, Inc., 609 F.3d 70,
76 (2d Cir. 2010). The Court now turns to Defendants’ motions.
DISCUSSION
Defendants move to dismiss Plaintiff’s complaint for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6). ECF Nos. 6, 9. The Court first addresses the motions
to dismiss the claims asserted against Defendants Ontario County and the Ontario County Family
Court, before proceeding to address Plaintiff’s claims against Defendant Hon. Brian D. Dennis
(“Judge Dennis”).

A. Ontario County
Defendant Ontario County moves to dismiss on the grounds that no allegations of
misconduct are asserted against it in Plaintiff’s complaint apart from its mere status as the county
in which the Ontario Family Court is located. ECF No. 6-1 at 2-4. In response, Plaintiff stated
that he “does not oppose Defendant Ontario County’s Motion to Dismiss[.]” ECF No. 11 at 1.
Because Plaintiff’s complaint does not include allegations that may plausibly establish
Defendant’s liability for the alleged misconduct, and because Plaintiff does not oppose
Defendant’s motion, Defendant’s motion to dismiss Plaintiff’s claims against Ontario County is
granted.
When a plaintiff sues a municipality, such as Ontario County, the plaintiff must allege the
municipality itself caused the violation of the plaintiff’s rights. See Connick v. Thompson, 563
U.S. 5 I, 60 (2011) (“A municipality or other local government may be liable under this section
[1983] [for the acts of its employees] if the governmental body itself ‘subjects’ a person to a

deprivation of rights or ‘causes’ a person ‘to be subjected’ to such deprivation.” (quoting Monell
v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 692 (1978))); Cash v. Cnty. of Erie, 654
F.3d 324, 333 (2d Cir. 2011). To state a claim under Section 1983 against a municipality, the
plaintiff must allege facts showing: (1) the existence of a municipal policy, custom, or practice;
and (2) that the policy, custom, or practice caused the violation of the plaintiff’s constitutional
rights. Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012); see Bd. of Cnty. Comm’rs of
Bryan Cnty v. Brown, 520 U.S. 397, 403 (1997) (internal citations omitted).
As stated, Plaintiff does not allege facts in his complaint that may plausibly establish that
Ontario County caused the alleged violation of Plaintiff’s rights through a municipal custom,
policy, or otherwise, nor that Judge Dennis is even an employee of Ontario County whose alleged

misconduct may be attributable to some custom, policy, or practice it created. Judge Dennis, as a
member of Ontario County Family Court, is presumably employed by the New York State Unified
Court System, and Plaintiff fails to plausibly allege that he is employed by Ontario County. See,
e.g., Gordon v. Albany Cnty., 454 N.Y.S.2d 52, 53 (Sup. Ct. 1982) (“[A] County Court Judge is
not an employee of the County.”); see also Donlon v. City of Hornell, No. 23-CV-6096-FPG, 2023
WL 2236490, at *3 (W.D.N.Y. Feb. 27, 2023). Accordingly, Defendants’ motion to dismiss the
claims asserted against this Defendant is granted.
B. Ontario County Family Court
Defendant Ontario County Family Court moves to dismiss Plaintiff’s complaint on the
grounds that Plaintiff’s Section 1983 claims against the entity are barred by the Eleventh
Amendment because the court is an agency of the New York State Unified Court System. ECF

No. 9-1 at 6-7. In response, Plaintiff indicated that he “does not oppose Defendant Ontario County
Family Court’s […] Motion to Dismiss, based only on Defendants’ claim that suits against states
and their agencies are barred by the [Eleventh] Amendment[.]” ECF No. 13 at 1. For the reasons
below, the Court grants Defendants’ motion to dismiss Plaintiff’s claims against Ontario County
Family Court on other grounds.
Section 1983 “provides that an action may be maintained against a ‘person’ who has
deprived another of rights under the ‘Constitution and Laws.’” Brown v. Nassau Cnty., No. 05-
CV-872, 2005 WL 1124535, at *3 (E.D.N.Y. May 9, 2005). But a state court “is not a ‘person’
within the meaning of § 1983.”1 Id.; see also, e.g., id. (family court in Nassau County not subject
to suit under Section 1983); Gault v. Admin. Fair Hearing at 14 Boerum Place, No. 14-CV-7398,

2016 WL 3198280, at *2 (E.D.N.Y. June 8, 2016); Mills v. Brooklyn Fam. Ct., No. 87-CV-2711,
1987 WL 14803, at *1 (E.D.N.Y. Oct. 19, 1987). Even construing Plaintiff’s complaint liberally
to assert claims against the New York State Unified Court System, the “New York State Unified
Court System” is likewise not a “person” within the “meaning of 42 U.S.C. § 1983,” and as such,
cannot be sued under that statute. Brown v. N.Y.S. Unified Ct. Sys., 261 F. App’x 307, 308-09 (2d
Cir. 2008) (summary order); Donlon v. City of Hornell, No. 23-CV-6096-FPG, 2023 WL 1784669,
at *1 (W.D.N.Y. Feb. 6, 2023). Thus, the Ontario County Family Court must be dismissed from
this action. See Mongielo v. Kantor, No. 21-CV-973-FPG, 2022 WL 1049247, at *3 (W.D.N.Y.

1 Nor is a state court a municipality for Monell purposes.
Apr. 7, 2022) (dismissing state court from Section 1983 action). The Court need not reach
Defendant’s Eleventh Amendment argument because Plaintiff does not adequately allege a
colorable Section 1983 claim.
C. Hon. Brian J. Dennis

Defendants move to dismiss Plaintiff’s claims against Judge Dennis on the grounds that (i)
he has absolute immunity from monetary damages claims brought against him in his official
capacity and (ii) individual capacity damages suits are barred when the alleged misconduct arises
from the performance of judicial duties. ECF No. 9-1 at 4-6. Defendants do not address Plaintiff’s
claims for injunctive or declaratory relief. In response, Plaintiff states that he is not seeking
damages, only injunctive and declaratory relief, and that such relief is available. ECF No. 13 at 5-
9. Plaintiff’s complaint confirms that Plaintiff seeks only injunctive and declaratory relief. See
generally ECF No. 1. The parties do not dispute that Judge Dennis was acting in his official
capacity at all relevant times.
Plaintiff appears to request (i) an injunction enjoining enforcement of Judge Dennis’s June

1, 2022 order prohibiting contact between Plaintiff and his grandchildren until 2034, and the July
14, 2022 order of protection, and (ii) a declaratory judgment stating that “Plaintiff’s constitutional
rights have been violated […] and that therefore, the unlawful orders mandating that he have no
contact with his grandchildren must be vacated[,]” presumably via the injunctive relief he also
requests. ECF No. 1 at 4-5. For the reasons below, Plaintiff’s claims for injunctive and declaratory
relief are dismissed.
Under the Rooker-Feldman doctrine, federal courts lack jurisdiction over “cases brought
by state-court losers complaining of injuries caused by state-court judgments rendered before the
district court proceedings commenced and inviting district court review and rejection of those
judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). The
doctrine applies when the federal court plaintiff: (1) lost in state court, (2) complains of injuries
caused by the state court judgment, (3) invites district court review and rejection of that judgment,
and (4) commenced district court proceedings after the state judgment was rendered. See

Vossbrinck v. Accredited Home Lenders, Inc., 773 F.3d 423, 426 (2d Cir. 2014).
Here, Plaintiff’s claims are likely barred by the Rooker-Feldman doctrine. This federal
court proceeding commenced in 2024, approximately two years after the challenged state court
orders were issued against Plaintiff in 2022. ECF No. 1; see Szymonik v. Connecticut, 807 F.
App’x 97, 99 (2d Cir. 2020) (summary order). Plaintiff appears to have “lost” in state court, and
is complaining of “injuries caused by the state court judgment”—specifically, the challenged
orders. Vossbrinck, 773 F.3d at 426. Even if the challenged orders do not constitute “state court
judgments” under Rooker-Feldman, the Appellate Division’s denial of Plaintiff’s appeal in 2022
is a “state court judgment” which appears to constitute a “final disposition of the entire state court
case” from the face of Plaintiff’s complaint.2 Szymonik v. Connecticut, No. 3:18-CV-263 (MPS),

2019 WL 203117, at *5 (D. Conn. Jan. 15, 2019), aff’d, 807 F. App’x 97. While Plaintiff is
challenging orders which will be enforced until 2034, this does not mean that “the state proceeding
is ongoing[,]” such that Rooker-Feldman would not apply. MacPherson v. Town of Southampton,
664 F. Supp. 2d 203, 210 (E.D.N.Y. 2009). Though Plaintiff frames his complaint in constitutional
terms and requests injunctive relief, it appears to be, “in substance, [an] appeal[] from state-court
judgments.” See Hoblock v. Albany County Bd. of Elections, 422 F.3d 77, 84 (2d Cir. 2005).
Accordingly, Plaintiff’s claims may be dismissed for lack of jurisdiction.

2 There is no indication from Plaintiff’s complaint that he sought leave to appeal the Appellate Division’s decision to
the New York Court of Appeals. However, his motion for leave was dismissed and denied. Ceravolo v Lefebvre, 41
N.Y.3d 926 (2024).
Even if Rooker-Feldman did not apply, Plaintiff’s request for injunctive relief enjoining
enforcement of Judge Dennis’s orders would be barred. The text of 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.” Plaintiff’s complaint does not plausibly allege that Judge
Dennis violated a declaratory decree or that declaratory relief was unavailable. Cinotti v. Adelman,
709 F. App’x 39, 41 (2d Cir. 2017) (summary order). “Declaratory relief against a judge for
actions taken within his or her judicial capacity is ordinarily available by appealing the judge’s
order.” LeDuc v. Tilley, No. 3:05-CV-157-MRK, 2005 WL 1475334, at *6 (D. Conn. June 22,
2005). In addition, Plaintiff seeks declaratory relief in this action. ECF No. 1 at 4-5. To the extent
Plaintiff’s declaratory claims are retrospective in nature in that they seek a declaration that Judge
Dennis’s orders violated the Constitution, they are barred by the doctrine of absolute immunity.
LeDuc, 2005 WL 1475334, at *7 (“Declaratory relief against a judge for actions taken within his
or her judicial capacity is ordinarily available by appealing the judge's order.”).

The only relief potentially available to Plaintiff would be prospective declaratory relief, as
Plaintiff appears to claim, in somewhat conclusory fashion, to be seeking in his response to
Defendants’ motion to dismiss. See ECF No. 13 at 9; Francis v. Pellegrino, 224 F. App’x 107,
108 (2d Cir. 2007) (summary order) (doctrine of judicial immunity not a bar to prospective
declaratory relief); Mongielo v. Kantor, No. 21-CV-973-FPG, 2022 WL 1049247, at *3 (W.D.N.Y.
Apr. 7, 2022) (citing See MacPherson v. Town of Southampton, 664 F. Supp. 2d 203, 211
(E.D.N.Y. 2009)). But the Court does not construe Plaintiff’s complaint to be asserting a claim
for prospective declaratory relief. ECF No. 1 at 4-5. Rather, Plaintiff seeks injunctive relief from
this Court enjoining two orders issued in the past, and a declaratory judgment announcing that
“Plaintiffs constitutional rights have been violated” by the orders, which constitutes retrospective
declaratory relief. ECF No. 1 at 4-5 (emphasis added). Plaintiff does not plausibly allege that
Judge Dennis’s orders constitute a “continuing violation of the Constitution[,]” such that his claims
may be construed as claims seeking prospective declaratory relief, alone. MacPherson, 664 F.
Supp. 2d at 211. Accordingly, Plaintiffs claims against Judge Dennis are dismissed.
CONCLUSION
Ordinarily, in view of the leniency to be afforded to plaintiffs proceeding pro se, the Court
provides such plaintiffs an opportunity for leave to amend prior to dismissal. Abbas v. Dixon, 480
F.3d 636, 639 (2d Cir. 2007). However, such leave may not be given if the Court determines that
further leave to amend would be futile. Even when Plaintiff's complaint is “liberally construe[d],”
the Court concludes that providing leave to amend Plaintiff's complaint would be futile. See
Cuoco v. Moritsugu, 222 F. 3d 99, 112 (2d Cir. 2000). For the foregoing reasons, Defendants’
motions to dismiss, ECF Nos. 6, 9, are GRANTED. Accordingly, Plaintiffs complaint is
dismissed with prejudice. The Clerk of Court is directed to enter judgment for Defendants and
close this case.
IT IS SO ORDERED.
Dated: May 21, 2024 Milan
Rochester, New York
HON. FRANK P.GERACLJR.
United States District Judge
Western District of New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10367245. Public record. Not legal advice.