Lin v. Shim

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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NELSON LIN,

Plaintiff,

-v- No. 25-CV-1367-JGK

HON. JONATHAN H. SHIM et al.,

Defendants.

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ORDER

Plaintiff Nelson Lin, who is appearing pro se, brings this action invoking the

Court’s jurisdiction under 28 U.S.C. sections 1331, 1343(a)(3), and 1367. Plaintiff asserts

claims pursuant to, inter alia, 42 U.S.C. section 1983 (“Section 1983”) for due process, equal

protection, and First Amendment violations, and 42 U.S.C. section 1985 (“Section 1985”). The

claims arise out of child custody proceedings currently pending in the Family Court of the State

of New York, County of New York (the “Family Court”).

On February 26, 2025, Plaintiff filed a proposed order to show cause for a

preliminary injunction and temporary restraining order. (Docket entry no. 23.) Plaintiff asks

that this Court (1) restrain and enjoin Defendants from enforcing the Family Court’s December

6, 2022 supervised visitation order until this Court adjudicates the constitutional claims pending

in the instant case; (2) restore Plaintiff’s prior 50/50 physical custody rights until this Court

adjudicates the constitutional claims pending in the instant case; (3) “remove” and enjoin the

January 16, 2025 “Family Court Gag Order”; (4) stay all further proceedings in the Family

Court; (5) prohibit New York Family Court Judge Jonathan H. Shim (“Judge Shim”) “from

engaging in further retaliatory actions against Plaintiff”; and (6) order all Defendants “to

preserve and disclose all exculpatory evidence related to the custody proceedings[.]” (Docket

entry no. 23-7 (“Prop. Ord.”); docket entry no. 23-1 (“Pl. Mem.”) at 5.)

The Court has reviewed Plaintiff’s submission thoroughly. For the reasons set

forth below, the Court denies Plaintiff’s request for an order to show cause seeking a temporary

restraining order and preliminary injunctive relief.

BACKGROUND

In 2019, Plaintiff initiated child custody proceedings in the Family Court due to

concerns for his child’s safety, specifically, inappropriate contact with his child by the partner of

his child’s mother. (Docket entry no. 11 (“Compl.”) ¶ 19.) Both the child’s mother, June Hou

(“Hou”) and her partner, Marx Rivera (“Rivera”), are named as defendants in the above-

captioned action. (Id. ¶¶ 11, 13.)

Plaintiff alleges that, in connection with the child custody proceedings, Judge

Shim “issued a series of unjust and unconstitutional orders, culminating in the destructive

December 6, 2022 Order that reduced his parenting time to indefinite supervised visitation.” (Id.

¶ 25.) Prior to the issuance of that order, Plaintiff had retained 50% physical custody. (Id.)

Plaintiff alleges that “the December 6, 2022 Order was issued (a) without affording Plaintiff a

meaningful opportunity to be heard; (b) without a new trial on the new allegations of

inappropriate touching by Defendant Rivera . . . and (c) without the opportunity for Plaintiff to

present witnesses or evidence in his defense.” (Id.) Plaintiff alleges Judge Shim displayed bias,

and had revealed that he had “predetermined” his ruling in connection with the December 6,

2022 hearing at which the order issued by stating that he had “typed up his notes of the order that

the Court is going to issue today.” (Id.; Pl. Mem. at 6.)

The text of the December 6, 2022 Family Court order appended to Plaintiff’s

Complaint reads, in relevant part:

It is hereby:

ORDERED that: The Father’s parenting time with the subject child is

suspended until December 13, 2022. It is further

ORDERED that: The Father shall have no communication with the

subject child until the CAC concludes its investigations into the

allegations of sex abuse. Thereafter, Father shall only have visits that are

supervised by a mental health professional agreeable to both parents and

the Attorney for the Child, and on a schedule agreeable to the parties and

the provider.

See docket entry no. 11-1 (“Dec. 2022 Ord.”) The transcript of the December 6, 2022

hearing, submitted in connection with the instant application, demonstrates that counsel

for Plaintiff and counsel for Hou were given the opportunity to present oral argument in

connection with the parties’ written submissions before Judge Shim reached his decision.

(See docket entry no. 23-4 at 7-21.)

Plaintiff alleges further misconduct on the part of Judge Shim due to Judge Shim

“(a) issuing ‘gag’ orders to silence Plaintiff, which clearly obstructed his access to the courts,

denying his Due Process Rights, (by Ordering him not to file Motions without court permission)

. . . and (b) denying Plaintiff’s four (4) Orders to Show Cause that had languished for years

(some since 2019)[.]” (Compl. ¶ 26.) The text of the January 16, 2025 order that Plaintiff refers

to as a “gag order” was issued in connection with an order to show cause filed by Plaintiff in the

Family Court, and a cross-motion by Hou seeking, inter alia, “a moratorium on motions

submitted by [Plaintiff] without th[e] [Family] Court’s prior consent in an attempt to curtail

[Plaintiff’s] ‘bad faith litigation tactics[.]’” (Docket entry no. 23-3 (“Jan. 2025 Ord.”) at 1-2.)

Judge Shim granted this portion of Hou’s application, ordering that “[Plaintiff] shall not file any

further motions in this litigation without Court permission.” (Id. at 9.)

On February 17, 2025, Plaintiff initiated the instant action in this Court. (See

docket entry no. 1.) Plaintiff filed the proposed order to show cause and motion for a temporary

restraining order and injunctive relief on February 26, 2025. (Docket entry no. 23.) Plaintiff

argues that immediate federal intervention is necessary “as he is scheduled to resume trial in

Family Court . . . on February 28, 2025, and Monday March 1, 2025.” (Pl. Mem. at 4.)

DISCUSSION

To obtain preliminary injunctive relief, a plaintiff must show: (1) that he is likely

to suffer irreparable harm and (2) either (a) a likelihood of success on the merits of his case or

(b) sufficiently serious questions going to the merits to make them a fair ground for litigation and

a balance of hardships tipping decidedly in her favor. See UBS Fin. Servs., Inc. v. W.V. Univ.

Hosps., Inc., 660 F. 3d 643, 648 (2d Cir. 2011) (citation and internal quotation marks omitted);

Wright v. Giuliani, 230 F.3d 543, 547 (2000). Preliminary injunctive relief “is an extraordinary

and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries

the burden of persuasion.” Moore v. Consol. Edison Co. of N.Y., Inc., 409 F.3d 506, 510 (2d Cir.

2005) (internal quotation marks and citation omitted).

As explained below, Plaintiff’s submissions do not demonstrate: (1) a likelihood

of success on the merits, or (2) sufficiently serious questions going to the merits to make them a

fair ground for litigation and a balance of hardships tipping decidedly in his favor. Accordingly,

Plaintiff has not established his entitlement to a temporary restraining order or preliminary

injunctive relief.

Judicial Immunity

Plaintiff’s claims asserted against Judge Shim for damages and injunctive relief

under 42 U.S.C. sections 1983 and 1985 are barred under the doctrine of judicial immunity.

Judges, such as Judge Shim, are absolutely immune from suit for damages in their individual

capacities for any actions taken within the scope of their judicial responsibilities. See Mireles v.

Waco, 502 U.S. 9, 9-12 (1991); Deem v. Dimella-Deem, 941 F.3d 618, 620-21 (2d Cir. 2019).

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). “[E]ven allegations of bad

faith or malice cannot overcome judicial immunity.” Id. at 209 (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, and particularly pertinent here, is Section 1983’s provision, added in

1996, 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. Plaintiff does not plead the

violation of any declaratory decree by Judge Shim, nor is declaratory relief unavailable—

Plaintiff has access to the appellate avenues of New York’s court system. See generally Berlin v.

Meijias, No. 15-CV-5308-JMA, 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.” (citations omitted)), appeal dismissed, No. 17-

3589 (2d Cir. Apr. 18, 2018) (effective May 18, 2018).

Nor is Plaintiff’s argument that Judge Shim acted outside of his judicial authority

availing. Judicial immunity does not apply 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 the

complete absence of all jurisdiction.” Mireles, 502 U.S. at 11-12; see also Bliven, 579 F.3d at

210 (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). Here, where the challenged rulings and statements were made in the

context of issues presented in litigation over which Judge Shim was presiding, the judge was

clearly acting in his judicial capacity and within his jurisdiction.

In sum, Plaintiff's claims against Judge Shim arise from Judge Shim’s decisions in

the ongoing New York Family Court proceeding concerning Plaintiff’s child.1 This conduct is

well within the scope of a judge’s duties. Judge Shim is therefore immune from suit under the

doctrine of judicial immunity and Plaintiff cannot demonstrate the requisite likelihood of success

on the merits or serious ground for litigation against Judge Shim.

Private Defendants

Section 1983 Claims

A claim for relief under Section 1983 must allege facts showing that each

defendant acted under the color of a state “statute, ordinance, regulation, custom or usage.” 42

U.S.C. § 1983. Private parties therefore generally are not liable under the statute. Sykes v. Bank

of America, 723 F.3d 399, 406 (2d Cir. 2013) (citing Brentwood Acad. v. Tenn. Secondary Sch.

Athletic Ass’n, 531 U.S. 288, 295 (2001)). A private attorney’s legal representation generally

does not constitute state action for the purpose of stating a claim under Section 1983 against

that attorney, regardless of whether that attorney is privately retained, court-appointed, or

employed as a public defender. See Bourdon v. Loughren, 386 F.3d 88, 90 (2d Cir.

2004) (citations omitted); see also Milan v. Wertheimer, 808 F.3d 961, 964 (2d Cir. 2015)

1 That Plaintiff disagrees with Judge Shim’s decisions does not render them outside the

scope of his jurisdiction, nor do allegations of bad faith or malice, Bliven, 579 F.3d 204,

210, or allegations that Judge Shim was wrong on the law.

(holding that law guardians in family court who act as “attorneys for the child,” are not state

actors for purposes of Section 1983).

Courts have similarly held that court-appointed psychologists do not act under

color of state law, including in circumstances substantially analogous to those of the instant

case. See Falco v. Santoro, No. 18-CV-2480-JS-GRB, 2018 WL 6706312, at *4 n.4 (E.D.N.Y.

Dec. 19, 2018) (collecting cases); Young v. N.Y. State Corr. & Cmty. Supervision, No. 18-CV-

5786, 2019 WL 591555, at *4 n.9 (E.D.N.Y. Feb. 13, 2019) (explaining that courts

dismiss Section 1983 claims “against court-appointed psychologists . . . on the grounds that they

are not state actors”); Davis v. Whillheim, No. 17-CV-5793-KPF, 2019 WL 935214, at *10

(S.D.N.Y. Feb. 26, 2019) (“Simply providing the Family Court with allegedly defective reports

does not support allegations that [clinicians employed by private organizations] should be treated

as state actors.”).

Plaintiff has made no showing that the remaining named Defendants were state

actors. Accordingly, the Defendants apart from Judge Shim are private parties for purposes of

Section 1983, and are not amenable to suit under that statute. Plaintiff has no likelihood of

success on the merits and has not raised serious questions as to them in his Section 1983 claims.

Section 1985 Claim

To support a conspiracy claim pursuant to Section 1985(3), a plaintiff

must allege:

(1) a conspiracy (2) for the purpose of depriving a person or class of

persons of the equal protection of the laws, or the equal privileges and

immunities under the laws; (3) an overt act in furtherance of the

conspiracy; and (4) an injury to the plaintiff’s person or property, or a

deprivation of a right or privilege of a citizen of the United States.

Gray v. Town of Darien, 927 F.2d 69, 73 (2d Cir. 1991). Moreover, to make out a Section

1985(3) claim, a plaintiff must allege that the alleged conspiracy was motivated by “some

racial, or perhaps otherwise class-based, invidious discriminatory animus behind the

conspirators’ action.” United Bhd. of Carpenters & Joiners of Am., Loc. 610, AFL-CIO v. Scott,

463 U.S. 825, 835 (1983).

Here, Plaintiff does not make any allegations that either Hou or Rivera were

motivated by anything other than personal bias, nor does he make any allegations that would

support an inference that any of the remaining Defendants were motivated by discriminatory

animus toward Plaintiff based upon his gender, outside of the conclusory assertion that bias

against the male parent is “an insidious bias that often permeates custody disputes.” (Compl. ¶¶

52, 60). Accordingly, Plaintiff has failed to demonstrate a likelihood of success on the merits, or

sufficiently serious questions going to the merits to make them fair ground for litigation. See,

e.g., Capogrosso v. Gelbstein, No. 18-CV-2710-MKB-LB, 2019 WL 6406444, at *13 (E.D.N.Y.

Jan. 30, 2019) (“A Section 1985 conspiracy claim that is only supported by conclusory assertions

cannot survive a motion to dismiss.” (gathering cases)).

Interference with State Court Proceedings

The relief Plaintiff seeks, i.e. the stay or reversal of orders and the stay of

proceedings, would require that this Court intervene in his state family proceeding. The Younger

abstention doctrine, domestic relations abstention doctrine, and the federal Anti-Injunction Act

all preclude this Court from granting such relief.

Younger Abstention

In Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court of the United States

held that a federal court may not enjoin a pending state criminal proceeding in the absence of

special circumstances suggesting bad faith, harassment, or irreparable injury that is both serious

and immediate. See Gibson v. Berryhill, 411 U.S. 564, 573-74 (1973) (citing Younger, 404 U.S.

37). Application of this Younger abstention doctrine has been extended to state civil

enforcement proceedings that are “akin to criminal prosecutions,” and state civil proceedings

“that implicate a State’s interest in enforcing the orders and judgments of its courts.” Sprint

Commc’n, Inc. v. Jacobs, 571 U.S. 69, 72-73 (2013) (citations omitted). The doctrine applies to

federal court claims for injunctive relief and declaratory relief that would cause the federal court

to intervene in any of those types of state court proceedings. See Kirschner v. Klemons, 225

F.3d 227, 235 (2d Cir. 2000). Courts have held that pending state court child custody and child

support proceedings involve at least one of the circumstances mentioned in Sprint in which the

Younger abstention doctrine should be applied. See Falco v. Justices of the Matrimonial Parts of

the Supreme Court of Suffolk Cnty., 805 F.3d 425, 417 (2d Cir. 2015) (“[Plaintiff’s] federal

lawsuit implicates the way that New York courts manage their own divorce and custody

proceedings – a subject in which ‘the states have an especially strong interest.’”); Gravagna v.

Eisenpress, No. 19-CV-0700-CM, 2019 WL 1469289, at *2 (S.D.N.Y. Apr. 2, 2019) (child

custody and child support).

Plaintiff requests that this Court intervene in his pending state court child custody

proceedings, thus implicating Younger, and his conclusory allegations are insufficient to meet

his burden of demonstrating that Younger’s exception for bad faith and bias applies. The Court

acknowledges that Plaintiff details several perceived flaws in the course of the Family Court

proceedings, which he appears to argue demonstrate bias. (See Pl. Mem. at 5-7.) The Court has

reviewed the documents submitted from the record in the Family Court proceedings, and is not

persuaded that Plaintiff has provided a proper basis for an inference that any of the referenced

proceedings or rulings were irregular or otherwise infected with bias.

Domestic Relations Abstention Doctrine

The domestic relations abstention doctrine requires this Court to abstain from

exercising federal question jurisdiction of domestic relations issues, such as those implicated in

Plaintiff’s claims. In 1990, in American Airlines, Inc. v. Block, the United States Court of

Appeals for the Second Circuit instructed federal district courts to abstain from exercising

federal question jurisdiction of claims involving domestic relations issues, so long as those

claims could be fully and fairly determined in the state courts. 905 F.2d 12, 14 (2d Cir. 1990).

Specifically, where a federal district court is “asked to grant a divorce or annulment, determine

support payments, or award custody of a child,” the court should abstain from exercising its

jurisdiction of such claims if “there is no obstacle to their full and fair determination in [the] state

courts.” Id. (internal quotation marks ad citation omitted); see also Deem, 941 F.3d at 621

(explaining that “American Airlines continues to be the law of this Circuit” after relevant

intervening Supreme Court precedent).

Plaintiff asks this Court to intervene in family court proceedings in New York

County, but the Court must abstain from exercising federal question jurisdiction of claims

concerning the issuance of state court custody orders. See Deem, 941 F.3d at 621-25 (affirming

sua sponte dismissal under domestic relations abstention doctrine).

Anti-Injunction Act

The Anti-Injunction Act provides that “[a] court of the United States may not

grant an injunction to stay proceedings in a State court except as expressly authorized by Act of

Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”

28 U.S.C. § 2283. Thus, “any injunction against state court proceedings otherwise proper . . .

must be based on one of the specific statutory exceptions [in the Act] if it is to be upheld.” Atl.

Coast Line R.R. Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 287 (1970). State court

proceedings “should normally be allowed to continue unimpaired by intervention of the lower

federal courts, with relief from error, if any, through the state appellate courts and ultimately” the

Supreme Court of the United States. Id. The Act “is an absolute prohibition against any

injunction of any state-court proceedings, unless the injunction falls within one of the three

specifically defined exceptions in the Act.” Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 630

(1977).

While the Supreme Court has held that actions brought pursuant to Section 1983

may fall within the “except as expressly authorized by Act of Congress” exception, see Mitchum

v. Foster, 407 U.S. 225 (1972), as discussed above, Plaintiff has not shown a likelihood of

succeeding on the merits of his Section 1983 claims, or sufficiently serious questions going to

the merits of those claims, and thus fails to demonstrate that he would be entitled to injunctive

relief under that exception. See, e.g., Ram v. Lal, 906 F. Supp. 2d 59, 71 (E.D.N.Y. 2012)

(“[W]hether [the “except as expressly authorized by Act of Congress”] exception to the Anti-

Injunction Act is applicable depends upon whether the . . . Plaintiffs have made out a cognizable

Section 1983 claim.”).

In sum, the Court has thoroughly considered all of Plaintiff’s arguments, and finds

that Plaintiff has not demonstrated a likelihood of success on the merits, or sufficiently serious

questions going to the merits to make them fair ground for litigation and a balance of hardships

tipping decidedly in his favor. Accordingly, Plaintiff’s request for an order to show cause for a

temporary restraining order and preliminary injunctive relief is denied in its entirety.

CONCLUSION

For the foregoing reasons, Plaintiff’s request for an order to show cause for a

temporary restraining order and preliminary injunctive relief is denied in its entirety. This Order

resolves docket entry no 23.

SO ORDERED.

Dated: New York, New York

February 27, 2025

__/s/ Laura Taylor Swain____

LAURA TAYLOR SWAIN

Chief United States District Judge

Part I