# Gilliam v. New York State Board of Law Examiners

> District Court, S.D. New York · August 19, 2024

URL: https://www.frixlaw.com/law-library/cases/10661874

## Case

- **Court:** District Court, S.D. New York
- **Decided:** August 19, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JAMES W. GILLIAM,
Plaintiff,
OPINION & ORDER
-v-
23-CV-05201 (PMH)
NEW YORK STATE BOARD OF LAW
EXAMINERS and CARMEN BEAUCHAMP

CIPARICK,
Defendants.
PHILIP M. HALPERN, United States District Judge:
James W. Gilliam (“Plaintiff”), proceeding pro se, commenced this action on June 18, 2024
against the New York State Board of Law Examiners (“Board”) and Carmen Beauchamp Ciparick
(“Ciparick” and together, “Defendants”). (Doc. 1, “Compl.”). Plaintiff presses a claim for relief
under 42 U.S.C. § 1983 for the violation of his constitutional rights under the Due Process Clause
of the Fourteenth Amendment of the U.S. Constitution.1 (Id.).
Defendants filed, pursuant to the briefing schedule set forth by the Court, their motion to
dismiss on October 27, 2023 pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
(Doc. 16; Doc. 17, “Def. Br.”; Doc. 18, “Onnen Decl.”; Doc. 19, “McAlary Decl.”; Doc. 20).

1 Plaintiff also presses a claim for relief under 28 U.S.C. § 1343. (Compl. ¶¶ 26-28 (“Count One”)).
Defendants note in the motion to dismiss that “28 U.S.C. § 1343 is a jurisdictional statute and so does not
provide a cause of action as Plaintiff has alleged.” (Def. Br. at 14, n.5). The Court agrees. Section 1343 “is
a jurisdictional provision and does not in itself provide a cause of action.” Davis v. 1568 Broadway Hotel
Mgmt. LLC DoubleTree Hotel Times Square, No. 17-CV-01895, 2018 WL 317849, at *3, n.8 (S.D.N.Y.
Jan. 5, 2018); see also Xu v. Neubauer, 166 F. Supp. 3d 203, 208 (D. Conn. 2015) (Section 1343 “is merely
a jurisdictional statute and is not itself the basis for any cause of action. Accordingly, the plaintiff’s claim
is being dismissed for failure to state a claim upon which relief can be granted.”). Accordingly, to the extent
that Plaintiff seeks to press a claim for relief for the violation of 28 U.S.C. § 1343, such claim is dismissed
for failure to state a claim upon which relief can be granted.
Plaintiff filed his opposition (Doc. 13; Doc. 15; Doc. 23; Doc. 24) and the motion to dismiss was
fully submitted with the filing of Defendants’ reply (Doc. 25, “Reply”).
For the reasons set forth below, Defendants’ motion to dismiss is GRANTED.
BACKGROUND

Plaintiff received his Bachelor of Laws degree on November 30, 2021 through a distance
learning program at the University of London. (Compl. ¶¶ 62-64). Plaintiff alleges that, as of the
filing of the Complaint, he was “days away from becoming registered as a solicitor admitted to the
senior courts in England and Wales.” (Id. ¶ 64). Plaintiff, while “starting his second year at the
University of London,” represented his wife in a lawsuit brought against her by Discover Bank in
the New York Supreme Court, Orange County. (Id. ¶¶ 8, 21-22). Plaintiff filed an answer on behalf
of his wife in the lawsuit brought by Discover Bank. (Id. ¶¶ 21-22). The trial court struck the
answer filed by Plaintiff as a sanction for his unauthorized practice of law. (Id. ¶¶ 8-9 (citing
Discover Bank v. Gilliam, 199 A.D.3d 645 (N.Y. App. Div. 2d Dep’t 2021)). The New York State
Supreme Court, Appellate Division, Second Department affirmed the trial court’s sanction as

appropriate, holding that “the Supreme Court properly determined that Gilliam’s submissions to
the court violated Judiciary Law § 478” and further that “the court did not err in striking the
defendant’s answer, opposition to the plaintiff’s motion, and cross motion as an appropriate
sanction for the unauthorized practice of law.” Discover Bank, 199 A.D.3d at 645.
Plaintiff made a request to the Board on January 30, 2023 seeking an evaluation of his
foreign academic credentials and a determination of his eligibility to sit for the New York Bar
Exam. (McAlary Decl. ¶ 11). The Board requested documentation from Plaintiff concerning any
in-person instruction he received and informed Plaintiff that without this additional information,
it would be unable to issue a determination on his application. (Id. ¶¶ 12-13; Compl. ¶ 14). Plaintiff
has not provided this information, and the Board has not yet rendered a decision on his request to
sit for the New York Bar Exam. (McAlary Decl. ¶ 14). Plaintiff filed a petition seeking a waiver
of compliance from the New York Court of Appeals pursuant to Rule § 520.14. (Id. ¶ 15).
Plaintiff’s petition, verified on April 7, 2023, was denied by the Court of Appeals on May 31,

2023. (Id.). Plaintiff alleges that Defendants’ conduct “constitutes discrimination” and unlawfully
excludes him from the practice of law in violation of the Due Process Clause of the Fourteenth
Amendment. (Compl. ¶ 30).
STANDARD OF REVIEW
I. Rule 12(b)(1) Standard
“Federal courts are courts of limited jurisdiction, and Rule 12(b)(1) requires dismissal of
an action when the district court lacks the statutory or constitutional power to adjudicate it.”
Schwartz v. Hitrons Sols., Inc., 397 F. Supp. 3d 357, 364 (S.D.N.Y. 2019) (citing Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000)).2 “The Second Circuit has instructed courts to
consider the Rule 12(b)(1) challenge first since if the Court must dismiss the complaint for lack of

subject matter jurisdiction, the defendant’s defenses and objections become moot and do not need
to be determined.” Fife v. Fin. Indus. Regul. Auth., Inc., No. 20-CV-10716, 2022 WL 912945, at

2 Unless otherwise indicated, case quotations omit all internal citations, quotation marks, footnotes, and
alterations.
*2 (S.D.N.Y. Mar. 29, 2022), aff’d, No. 22-750, 2022 WL 17818984 (2d Cir. Dec. 20, 2022) (citing
Daly v. Citigroup Inc., 939 F.3d 415, 426 (2d Cir. 2019)). 3
II. Rule 12(b)(6) Standard
On a Rule 12(b)(6) motion, a court may dismiss a complaint for “failure to state a claim

upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, 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)). A claim is plausible on its face “when the ple[d] factual
content allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin
to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant acted
unlawfully.” Id. The factual allegations pled “must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
“When there are well-ple[d] factual allegations, a court should assume their veracity and

then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.
Thus, the Court must “consider the legal sufficiency of the complaint, taking its factual allegations
to be true and drawing all reasonable inferences in the plaintiff’s favor.” Harris v. Mills, 572 F.3d
66, 71 (2d Cir. 2009). The presumption of truth, however, “is inapplicable to legal conclusions,

3 “Whether Eleventh Amendment immunity constitutes a true issue of subject matter jurisdiction or is more
appropriately viewed as an affirmative defense has not yet been decided by the Supreme Court or [the
Second Circuit].” Allco Fin. Ltd. v. Roisman, No. 22-2726, 2023 WL 4571965, at *1 (2d Cir. July 18, 2023);
see also Mallison v. Conn. Office of Early Childhood, 634 F. Supp. 3d 21, 30 n.2 (D. Conn. 2022) (“Neither
the Second Circuit nor the Supreme Court has definitively determined whether the Eleventh Amendment
is to be understood as a bar to subject matter jurisdiction or is more appropriately viewed as an affirmative
defense.”). Here, however, this distinction has no practical effect because the Court, in considering
Defendants sovereign immunity argument, relies only upon the allegations in the Complaint and draws all
reasonable inferences in Plaintiff’s favor.
and threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. at 72. A plaintiff must provide “more than labels and conclusions”
to show entitlement to relief. Twombly, 550 U.S. at 555.
A complaint submitted by a pro se plaintiff, “however inartfully ple[d], must be held to

less stringent standards than formal pleadings drafted by lawyers . . . .” Estelle v. Gamble, 429
U.S. 97, 106 (1976). Because pro se plaintiffs “‘are often unfamiliar with the formalities of
pleading requirements,’ courts must ‘apply a more flexible standard in determining the sufficiency
of a pro se [complaint] than they would in reviewing a pleading submitted by counsel.’” Smith v.
U.S. Dep’t of Just., 218 F. Supp. 2d 357, 361 (W.D.N.Y. 2002) (quoting Platsky v. Cent. Intell.
Agency, 953 F.2d 26, 28 (2d Cir. 1991)). However, while “[p]ro se complaints are held to less
stringent standards than those drafted by lawyers, even following Twombly and Iqbal,” dismissal
is “appropriate where a plaintiff has clearly failed to meet minimum pleading requirements.”
Thomas v. Westchester Cty., No. 12-CV-06718, 2013 WL 3357171, at *2 (S.D.N.Y. July 3, 2013)
(internal citations omitted); see also Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (“Even

in a pro se case . . . although a court must accept as true all of the allegations contained in a
complaint, that tenet is inapplicable to legal conclusions, and threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.”). Therefore, while
the Court must “draw the most favorable inferences that [a plaintiff’s] complaint supports, [it]
cannot invent factual allegations that [a plaintiff] has not pled.” Chappius, 618 F.3d at 170. The
Court does, however, have a duty to interpret “the pleadings of a pro se plaintiff liberally and
interpret them ‘to raise the strongest arguments that they suggest.’” McPherson v. Coombe, 174
F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
III. Documents Considered
The Court, in deciding a Rule 12(b)(1) motion, “may refer to evidence outside the
pleadings.” Makarova, 201 F.3d at 113. Indeed, on such a motion, the Court “may consider
affidavits and other materials beyond the pleadings to resolve the jurisdictional issue,” along with

“matters of which judicial notice may be taken.” Malloy v. Pompeo, No. 18-CV-04756, 2020 WL
5603793, at *8 (S.D.N.Y. Sept. 18, 2020). Defendants submit the following documents in support
of their motion to dismiss: the declaration of attorney Miranda Ruth Onnen (Doc. 18), which
attaches as exhibits the motion schedule in the matter Discover Bank v. Gilliam, Index No.
6315/2017 (N.Y. Sup. Ct. Orange Cnty.) and the Decision & Order issued in that case; and the
declaration of John McAlary, the Executive Director of the New York State Board of Law
Examiners (Doc. 19).
The Court does not rely on Ms. Onnen’s declaration or the exhibits thereto in reaching the
rulings herein, and accordingly does not consider those documents other than as background
material. The Court can and does consider Mr. McAlary’s declaration, only to the extent that it is

necessary to adjudicate Defendants’ instant motion to dismiss.
ANALYSIS
I. Standing
Defendants argue that “[i]n the absence of any denial by the Board, Plaintiff cannot allege
that he has suffered any injury in fact.” (Def Br. at 11). John McAlary, the Executive Director of
the New York State Board of Law Examiners, states in his declaration that the Board notified
Plaintiff on February 14, 2023 that it was unable to determine Plaintiff’s eligibility to sit for the
New York Bar Exam based on the documents Plaintiff provided with his application and “gave
Plaintiff the opportunity to demonstrate he received in-person instruction by providing” the
relevant supporting documents. (McAlary Decl. ¶¶ 11-14). Plaintiff has, as of October 26, 2023,
failed to furnish evidence of in-person instruction and the Board has therefore not yet issued a
determination on Plaintiff’s eligibility to sit for the New York Bar Exam. (Id. ¶¶ 13-14).
The plaintiff in Otrompke v. The First Dep’t Comm. on Character & Fitness failed to

submit “required certified copies of his prior bar applications to complete his application.” No. 20-
4107, 2021 WL 5764221, at *1 (2d Cir. Dec. 6, 2021). The Second Circuit held that the plaintiff
lacked standing to assert claims related to his application for the New York Bar because the
plaintiff “had not submitted a completed bar application at the time of his complaint.” 2021 WL
5764221, at *1. The same is true here. Plaintiff was asked to submit documentation showing that
he received in-person instruction to complete his application but failed to do so. (Compl. ¶ 14;
McAlary Decl. ¶¶ 11-14). Plaintiff’s application to determine his eligibility to sit for the New York
Bar Exam is incomplete without the submission of the requested documents, and the Board has
not yet issued an eligibility determination. (McAlary Decl. ¶ 14). Plaintiff cannot, under these
circumstances, “establish that he had standing to bring a due process claim at the time he filed

suit.” Otrompke, 2021 WL 7654221, at *2. Accordingly, the Complaint must be dismissed.
II. Eleventh Amendment Immunity
Defendants separately argue that they “fall within a category of state agents afforded
sovereign immunity and the Complaint must be dismissed.” (Def. Br. at 11-12). The Second
Circuit has “expressly decided this issue” by holding that “[t]he Board of Law Examiners, as an
arm of the State of New York, shares in Eleventh Amendment immunity.” T.W. v. New York State
Bd. of L. Examiners, No. 22-1661, 2024 WL 3463499, at *4 (2d Cir. July 19, 2024) (citing T.W.
v. New York State Bd. of L. Examiners, 996 F.3d 87, 92 (2d Cir. 2021)). Ciparick, who serves as
the chair of the Board, shares in the Board’s Eleventh Amendment immunity—to the extent that
she is sued in her official capacity—as a state agent.’ See Asensio v. DiFiore, No. 18-CV-10933,
2019 WL 4392743, at *6 (S.D.N.Y. Sept. 13, 2019) (citing Gollomp v. Spitzer, 568 F.3d 355, 366
(2d Cir. 2009)) (“The immunity extends beyond the states themselves to state agents that are,
effectively, arms of a state.”). Defendants are therefore entitled to Eleventh Amendment immunity,
which is an independent basis for the dismissal of the Complaint.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss under
Federal Rule of Civil Procedure 12(b)(1) and dismisses the Complaint with prejudice.° The Clerk
of Court is respectfully directed to terminate the motion pending at Doc. 16.
SO ORDERED.
Dated: White Plains, New York
August 19, 2024
PHILIP M. HALPERN
United States District Judge

* Plaintiff does not specify whether his claim for relief is pressed against Ciparick in both her official and
individual capacities or only one. (Compl. at 2). Plaintiff does not seek money damages in this case, but
rather requests in his prayer for relief that the “Court grant declaratory relief permitting him to sit for the
New York Bar examinations at the earliest opportunity.” (/d. at 40). There is no indication in the Complaint
that Plaintiff intended to sue Ciparick in her individual capacity. Even if the Court were to construe the
Complaint as pressing a claim against Ciparick in her individual capacity, such a claim would fail as a
matter of law. Plaintiff has failed to allege that Ciparick was involved in or took any action in connection
with Plaintiff’s application to sit for the New York Bar Exam. The only allegation regarding Ciparick is a
purely “hypothetical email exchange” between Ciparick and another individual that Plaintiff offers as a
“theory of impropriety” that could have occurred. (/d. Jf 17-18). This hypothetical scenario, standing alone,
is insufficient to confer standing with respect to Ciparick in her individual capacity. See Carney v. Adams,
592 U.S. 53, 60 (2020) (“[S]tanding requires an injury in fact that must be concrete and particularized, as
well as actual or imminent. It cannot be conjectural or hypothetical.”); Melendez v. Sirius XM Radio, Inc.,
50 F.4th 294, 306 (2d Cir. 2022) (“Melendez's argument regarding hypothetical facts would not allow his
claims to survive a motion to dismiss because factual allegations must be enough to raise a right to relief
above the speculative level.”). Accordingly, to the extent that Plaintiff presses a claim against Ciparick in
her individual capacity, it is dismissed pursuant to Fed. R. Civ. P. 12(b)(1) for lack of standing.
> The Court need not and does not, given the conclusions herein, reach the balance of Defendants’
arguments made in their motion to dismiss.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10661874. Public record. Not legal advice.