Madore

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

RYAN D. MADORE, on behalf of M.R.M. and G.J.M.,

Plaintiffs, 5:25-cv-00095 (BKS/MJK)

v.

SALVATORE A. PAVONE, ESQ., DAVID M. PRIMO,

ESQ., and HON. CHRISTINA F. DEJOSEPH,

Defendants.

Appearances:

Plaintiff Pro se:

Ryan David Madore

Fayetteville, NY 13066

For Defendants:

Letitia James

Attorney General for the State of New York

Elizabeth Lombardi

Assistant Attorney General, of Counsel

300 S. State Street, Ste. 300

Syracuse, NY 13202

Hon. Brenda K. Sannes, Chief United States District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff pro se Ryan David Madore brings this action under 42 U.S.C. § 1983 against

Defendants Salvatore Pavone, Esq., David M. Primo, Esq., and Onondaga County Family Court

Judge Christina F. DeJoseph. Plaintiff alleges violations of his and his children’s rights under the

United States Constitution in connection with Onondaga County Family Court proceedings.

(Dkt. No. 1).1 Plaintiff seeks the restoration of “father/son” rights, the return of his “biological

children being unlawfully alienated[,]” and the imposition of a “penalty[,]” “fine[,] and

imprisonment[.]” (Id. at 14-15). Presently before the Court is Defendants’ motion to dismiss

pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), 12(b)(5), and 12(b)(6). (Dkt. No.

11). The motion is fully briefed. (Dkt. Nos. 11-2, 14, 16).2 Also before the Court is Plaintiff’s

second motion to appoint counsel. (Dkt. No. 10). For the reasons that follow, Defendants’ motion

to dismiss is granted, and Plaintiff’s motion to appoint counsel is denied as moot.

II. BACKGROUND3

Plaintiff’s claims arise out of a series of family court proceedings and orders in Onondaga

County Family Court, pertaining to the custody and visitation of his children M.R.M. and G.J.M.

(See Dkt. No. 1). The Complaint is difficult to follow, but it appears that most of the relevant

proceedings took place before Salvatore Pavone, Esq., “acting in his official capacity as [ ]

appointed attorney referee[,]” (id. at 3-9), and Onondaga County Family Court Judge Christina F.

DeJoseph, (id. at 8-12).

On November 23, 2016, Pavone presided over a custody proceeding involving Plaintiff

and M.R.M. (Dkt. No. 1, at 7). “[T]he court[-]appointed attorney assigned to represent [Plaintiff]

1 Plaintiff asserts violations of the Second, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Fourteenth

Amendments to the United States Constitution. (Dkt. No. 1). Plaintiff also appears to invoke the New York State

Constitution. (Id.).

2 Plaintiff also filed a sur-reply to Defendant’s motion to dismiss without seeking the Court’s leave, in violation of

L.R. 7.1(a)(1). (See Dkt. No. 18). All parties, including pro se litigants, must follow the Court’s local rules.

Nevertheless, in light of Plaintiff’s pro se status, and out of an abundance of caution, the Court has considered

Plaintiff’s sur-reply.

3 The facts are drawn from the Complaint, (Dkt. No. 1), and Plaintiff’s responses to Defendants’ motion to dismiss,

(Dkt. Nos. 14, 18). See DeRocha v. Linstruth, No. 18-cv-1052, 2019 WL 5596252, at *1 n.1, 2019 U.S. Dist. LEXIS

188017, at *3 (N.D.N.Y. Oct. 30, 2019) (“The mandate to read the papers of pro se litigants generously makes it

appropriate to consider a plaintiff’s papers in opposition to a defendant's motion to dismiss . . . to the extent that

those factual assertions are consistent with the allegations of the plaintiff’s complaint.”). The Court assumes the

truth of, and draws reasonable inferences from, the well-pleaded factual allegations, see Lynch v. City of N.Y., 952

F.3d 67, 74–75 (2d Cir. 2020), but does not accept as true any legal conclusions asserted therein, see Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009).

in [his] visitation/custody case relieved himself minutes prior to [the] proceedings[,]” and

Plaintiff proceeded without counsel. (Id. at 7, 11). Plaintiff lost custody of M.R.M as a result of

that proceeding. (Id.).

Years later, on July 13, 2023, Pavone “proposed an order to suspend [Plaintiff’s]

parenting time, pending further order by [the] court.” (Id. at 8-9). Plaintiff appears to allege that

Judge DeJoseph stopped Pavone’s proposed orders. (Id. at 8). On September 7, 2023, Pavone

issued an Emergency Order to Show Cause, which was “received and processed” by David

Primo, Chief Clerk for the Onondaga County Family Court. (Dkt. Nos. 1, at 8; 18-1, at 21-22).

Plaintiff alleges Pavone issued a temporary order that required Plaintiff to stay away from

M.R.M. (Dkt. No. 1, at 9). 4 “Plaintiff was not informed of [the] proceedings and was not

present[.]” (Id. at 5). On February 28, 2024, a “fact finding and disposition” occurred, and a two-

year full stay away order of protection was issued “by default.” (Id. at 6). On March 21, 2024,

Primo wrote Plaintiff a letter responding to Plaintiff’s request for a transcript of the February 28,

2024 proceedings, and enclosing the forms and instructions for ordering the transcript. (Id. at 9-

10).

On June 17, 2024, Plaintiff filed a petition for violation of his custody and visitation

orders. (Dkt. Nos. 1, at 12; 18-1, at 73). On August 12, 2024, Plaintiff also filed a notice of

motion for “emergency judicial relief” in Onondaga County Family Court, asserting that that he

was facing “retaliat[i]on for [ ] filing a petit[i]on with NY Onondaga County Family Court

alleging numerou[s] civil rights violations by multiple New York State Fam[i]ly Court Officers.”

(Dkt. No. 1, at 12). On September 16, 2024, Judge DeJoseph dismissed both Plaintiff’s June 17,

4 Plaintiff attached a copy of a September 14, 2023 temporary order of protection pertaining to M.R.M to his sur-

reply. (See Dkt. No. 18-1, at 23-24). That temporary order was not signed by Pavone. (See id. at 24). While not

referenced in the Complaint, Plaintiff also attached a copy of an order of protection dated September 21, 2023,

directing him to stay away from G.J.M. (Id. at 41-42).

2024 petition and August 12, 2024 motion. (Id. at 12; see also Dkt. No. 18-1, at 73). On

September 23, 2024, Plaintiff filed a petition for an order of protection, which was dismissed on

September 25, 2024. (Dkt. No. 1, at 12-13). Also on September 23, 2024, Plaintiff filed a petition

for modification of his custody and visitation orders, along with another petition for violation.

(Id.). Those petitions were also dismissed. (Dkt. Nos. 1, at 12-13; 18-1, at 79).

III. DISCUSSION

A. Claims on behalf of M.R.M. and G.J.M.

As a preliminary matter, Defendants contend that any claims Plaintiff asserts on behalf of

his minor children must be dismissed, because Plaintiff, a non-attorney, may not represent his

children. (Dkt. No. 11-2, at 13-14). The Court agrees that Plaintiff cannot represent his children.

See Cheung v. Youth Orchestra Found., 906 F.2d 59, 61 (2d Cir. 1990) (“[A] non-attorney parent

must be represented by counsel in bringing an action on behalf of his or her child[.]”))); Berrios

v. New York City Hous. Auth., 564 F.3d 130, 135 (2d Cir. 2009). To the extent Plaintiff seeks to

proceed with claims on behalf of his children he must obtain an attorney to represent the children

in this case. If a notice of appearance is not filed by counsel within thirty days of this Decision

and Order, the claims of M.R.M. and G.J.M. will be dismissed without prejudice.

B. Motion to Dismiss – Rules 12(b)(1) and 12(b)(6)

Defendants argue that the Complaint must be dismissed pursuant to Rule 12(b)(1) for

lack of subject matter jurisdiction, because Plaintiff’s claims are barred (1) against Defendants in

their official capacity by the Eleventh Amendment, (2) by the doctrine of judicial immunity, and

(3) by the Rooker-Feldman doctrine. (Dkt. No. 11-2, at 14-21). However, “[a] defense of

absolute judicial immunity or quasi-judicial immunity has nothing to do with a federal court's

jurisdiction.” Wang v. Delphin-Rittmon, 664 F. Supp. 3d 205, 216-218 (D. Conn. 2023) (“As a

leading treatise recognizes, ‘[t]he defense of qualified or judicial immunity has also been held to

be properly raised via Rule 12(b)(6) rather than Rule 12(b)(1), although one can find courts not

being too particular about the distinction.’” (quoting 5B Charles A. Wright & Arthur R. Miller,

Federal Practice and Procedure § 1350 (3d ed.))); Nevada v. Hicks, 533 U.S. 353, 373 (2001)

(“There is no authority whatever for the proposition that absolute- and qualified-immunity

defenses pertain to the court's jurisdiction[.]”). Therefore, Defendants’ motion to dismiss under

the doctrine of judicial immunity is properly considered under the Rule 12(b)(6) standard. See

also Butcher v. Wendt, 975 F.3d 236, 241 (2d Cir. 2020) (“Because [the plaintiff]'s claims against

[the defendant judge] are barred by absolute judicial immunity, they were correctly dismissed

under Rule 12(b)(6).”).

1. Standard

“A court faced with a motion to dismiss pursuant to both Rules 12(b)(1) and 12(b)(6)

must decide the jurisdictional question first because a disposition of a Rule 12(b)(6) motion is a

decision on the merits and, therefore, an exercise of jurisdiction.” Mann v. N.Y. State Ct. of

Appeals, No. 21-cv-49, 2021 WL 5040236, at *3, 2021 U.S. Dist. LEXIS 209018, at *8

(N.D.N.Y. Oct. 29, 2021) (citation omitted). A motion to dismiss based on an abstention doctrine

is considered a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), City of

New York v. Milhelm Attea & Bros., Inc., 550 F. Supp. 2d 332, 341 (E.D.N.Y. 2008), as is a

motion to dismiss under the Rooker-Feldman doctrine, Hylton v. J.P. Morgan Chase Bank, N.A.,

338 F. Supp. 3d 263, 273 (S.D.N.Y. 2018). A district court resolving a motion to dismiss under

Rule 12(b)(1) “must take all uncontroverted facts in the complaint . . . as true[] and draw all

reasonable inferences in favor of the party asserting jurisdiction.” Tandon v. Captain’s Cove

Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014). The Court may also “refer to

evidence outside the pleadings” and “take judicial notice of documents in the public record,

including state court filings.” Krajisnik Soccer Club, Inc. v. Krajisnik Football Club, Inc., No.

20-cv-1140, 2021 WL 2142924, at *2, 2021 U.S. Dist. LEXIS 99456, at *5 (N.D.N.Y. May 26,

2021) (citations omitted).

To survive a motion to dismiss under Rule 12(b)(6) for failure to state a claim, “a

complaint must provide ‘enough facts to state a claim to relief that is plausible on its face,’”

Mayor & City Council of Balt. v. Citigroup, Inc., 709 F.3d 129, 135 (2d Cir. 2013) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plaintiff must provide factual allegations

sufficient “to raise a right to relief above the speculative level.” Id. (quoting Twombly, 550 U.S.

at 555). The Court must accept as true all factual allegations in the complaint and draw all

reasonable inferences in the plaintiff’s favor. See EEOC v. Port Auth., 768 F.3d 247, 253 (2d Cir.

2014) (citing ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)).

However, “the tenet that a court must accept as true all of the allegations contained in a

complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

The complaint of a plaintiff proceeding pro se “must be construed liberally with ‘special

solicitude’ and interpreted to raise the strongest claims that it suggests.” Hogan v. Fischer, 738

F.3d 509, 515 (2d Cir. 2013) (quoting Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)).

“Nonetheless, a pro se complaint must state a plausible claim for relief.” Id.

2. Subject Matter Jurisdiction

a. Eleventh Amendment Immunity

The Eleventh Amendment has long been construed as barring a citizen from bringing a

suit against their own state in federal court, under the fundamental principle of “sovereign

immunity.” U.S. Const. amend. XI (“The Judicial power of the United States shall not be

construed to extend to any suit in law or equity, commenced or prosecuted against one of the

United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”);

Hans v. Louisiana, 134 U.S. 1, 10-21 (1890); Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S.

261, 267 (1997); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Eleventh

Amendment immunity is lost only if Congress unequivocally abrogates states’ immunity, or a

state expressly consents to suit. Gollomp v. Spitzer, 568 F.3d 355, 365-66 (2d Cir. 2009). It is

well-settled that Congress did not abrogate states’ immunity through 42 U.S.C. § 1983, see

Quern v. Jordan, 440 U.S. 332, 332-45 (1979), and that New York State has not waived its

sovereign immunity from Section 1983 claims, see Nolan v. Cuomo, No. 11-cv-5827, 2013 WL

168674, at *7, 2013 U.S. Dist. LEXIS 6680, at *21 (E.D.N.Y. Jan. 16, 2013) (citing Trotman v.

Palisades Interstate Park Comm'n, 557 F.2d 35, 39–40 (2d Cir.1977)).

The Eleventh Amendment also bars suits for damages against state officials acting in

their official capacities. See Kentucky v. Graham, 473 U.S. 159, 169 (1985) (a claim for damages

against state officials in their official capacity is considered to be a claim against the State and is

therefore barred by the Eleventh Amendment); Ying Jing Gan v. City of New York, 996 F.2d 522,

529 (2d Cir. 1993) (“To the extent that a state official is sued for damages in [their] official

capacity, such a suit is deemed to be a suit against the state, and the official is entitled to invoke

the Eleventh Amendment immunity belonging to the state.”). Claims against the New York

Unified Court System and its members are likewise barred by the Eleventh Amendment. See

Gollomp, 568 F.3d at 365-68 (holding that the New York Unified Court System is an “arm of the

State” within meaning of Eleventh Amendment sovereign immunity doctrine and affirming

dismissal of § 1983 claim).

Defendants assert that Plaintiff’s claims against Defendants in their official capacity are

barred by the Eleventh Amendment. (See Dkt. No. 11-2, at 14-16). The Court agrees. Plaintiff

names all three Defendants in their official capacities as part of the Onondaga County Family

Court, (see Dkt. No. 1, at 1-3, 8), which is part of the New York Unified Court System, see

Walker v. Fam. Ct. Judge Catherine Cholakis, No. 19-cv-1288, 2020 WL 3503158, at *7, 2020

U.S. Dist. LEXIS 114355, at *16 (N.D.N.Y. June 29, 2020) (recognizing county family court as

part of the New York Unified Court System (citing N.Y. Const. Art. VI, §§ 1, 13)). Because

Plaintiff alleges that Defendants violated his rights while acting in their official capacities, to the

extent that Plaintiff seeks monetary damages against Defendants, his claims are barred by the

Eleventh Amendment. See Graham, 473 U.S. at 169; Walker, 2020 WL 3503158, at *7, 2020

U.S. Dist. LEXIS 114355, at *16-17 (dismissing claims against county family court judge in her

official capacity as barred under the doctrine of sovereign immunity); Weinstein v. Bogacz, No.

07-cv-1259, 2007 WL 9724303, at *2, 2007 U.S. Dist. LEXIS 114234, at *4 (E.D.N.Y. Sept. 25,

2007) (dismissing official capacity claims against family court attorney referee as prohibited

under the Eleventh Amendment), aff'd, 320 F. App'x 56 (2d Cir. 2009); Casaburro v. Giuliani,

986 F. Supp. 176, 182 (S.D.N.Y. 1997) (dismissing official capacity claims against County Clerk

as barred on Eleventh Amendment grounds). Therefore, Defendants’ motion to dismiss

Plaintiff’s claims against Defendants in their official capacity is granted, without prejudice,5 for

lack of subject matter jurisdiction.

5 See Karupaiyan v. New York, No. 23-1257-cv, 2024 WL 2174272, at *2, 2024 U.S. App. LEXIS 11740, at *5 (2d

Cir. May 15, 2024) (remanding with instructions to modify judgment where court erroneously dismissed claims

against State of New York with prejudice; “because the district court lacked jurisdiction over the claims against the

State of New York, it was erroneous to dismiss those claims with prejudice rather than without prejudice”).

b. Rooker-Feldman Doctrine

“Under the Rooker-Feldman doctrine, federal district and circuit courts lack subject-

matter jurisdiction over cases that are essentially ‘appeals from state-court judgments.’”

Schweitzer v. Crofton, 935 F. Supp. 2d 527, 540 (E.D.N.Y. 2013) (quoting Hoblock v. Albany

Cnty. Bd. of Elections, 422 F.3d 77, 84 (2d Cir.2005)), aff'd, 560 F. App'x 6 (2d Cir. 2014). The

Rooker-Feldman doctrine bars federal claims “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.” Green v.

Mattingly, 585 F.3d 97, 101 (2d Cir. 2009) (quoting Exxon Mobil Corp. v. Saudi Basic Indus.

Corp., 544 U.S. 280, 284 (2005)); see also Hoblock, 422 F.3d at 84-85. The underlying principle

of the Rooker-Feldman doctrine is that “within the federal judicial system, only the Supreme

Court may review state-court decisions.” Hoblock, 422 F.3d at 85.

There are four “requirements” that must be satisfied before Rooker-Feldman applies: (1)

the “federal-court plaintiff must have lost in state court,” (2) the plaintiff “must complain of

injuries caused by a state-court judgment,” (3) the plaintiff “must invite district court review and

rejection of that judgment,” and (4) the state-court judgment “must have been rendered before

the district court proceedings commenced.” Green, 585 F.3d at 101 (citing Hoblock, 422 F.3d at

85) (internal quotation marks and brackets omitted). “In the child custody context, in order to

satisfy this substantive requirement, a plaintiff must be ‘plainly’ seeking to ‘repair [ ] to federal

court to undo the [Family Court] judgment.’” McKnight v. Middleton, 699 F. Supp. 2d 507, 515

(E.D.N.Y. 2010) (quoting Green, 585 F.3d at 102), aff'd, 434 F. App'x 32 (2d Cir. 2011). As

such, “Rooker-Feldman does not apply to [a p]laintiff's claims that only seek monetary damages

or prospective injunctive relief and do not seek to overturn a child custody award.” Id.

Here, Defendants argue that Plaintiff’s request for this Court to return his children and

“[r]estore father/son, God given, inalienable rights” is barred by the Rooker-Feldman doctrine.

(Dkt. No. 11-2, at 19-21). The Court agrees. The allegations in the Complaint, coupled with the

court orders separately filed by Plaintiff, make it clear that Plaintiff lost custody as a result of an

Onondaga County Family Court order, (see Dkt. No. 1, at 7, 11-13), and that he was (or is)

prevented from seeing his children because of state court orders of protection, (see Dkt. Nos. 1,

at 5-6, 8-9; 18-1, at 21-26, 39-42). Plaintiff also concedes, while “[a]ddressing [the] Rooker[-

]Feldman Doctrine” in his response brief, that “the court judgments were all rendered prior to

commencement of this proceeding.” (Dkt. No. 14, at 6).

Plaintiff has clearly “lost in state court,” and complains of injuries caused by state court

judgments. See Green, 585 F.3d at 101. Plaintiff also, in seeking injunctive relief, invites review

and rejection of those judgments, which were rendered before the instant proceedings

commenced. See id. Therefore, Plaintiff’s requested injunctive relief must be dismissed for lack

of subject matter jurisdiction under the Rooker-Feldman doctrine, without prejudice. See Voltaire

v. Westchester Cnty. Dep't of Soc. Servs., No. 11-cv-8876, 2016 WL 4540837, at *9, 2016 U.S.

Dist. LEXIS 116409, at *28-29 (S.D.N.Y. Aug. 29, 2016) (holding Rooker-Feldman barred

plaintiff’s federal claims where Plaintiff “lost in state court when her parental rights were

terminated,” complained of injury “by alleging that the state judgment violated her federal due

process rights as a parent,” and sought “vacatur of the order terminating her parental rights”

“and/or damages to remedy injury resulting from it”) (collecting cases); Rotering v. Amodeo, No.

07-4357-cv, 2009 WL 579138, at *2, 2009 U.S. App. LEXIS 4966, at *6 (2d Cir. Mar. 6, 2009)

(affirming district court dismissal for lack of subject matter jurisdiction pursuant to Rooker-

Feldman doctrine where plaintiff “called upon the district court to overturn an injurious state-

court judgment” and “failed to present any independent claim based on an injury that was not

caused by the state-court judgment denying his [ ] petition”).

3. Judicial Immunity

Defendants argue that Plaintiff’s Complaint must be dismissed against all Defendants

under the doctrine of judicial immunity. (Dkt. No. 11-2, at 16-19). “‘[J]udges generally have

absolute [judicial] immunity from suits for money damages for their judicial actions,’ but not for

actions taken in an administrative, legislative, or executive capacity.” Kellogg v. Nichols, 149

F.4th 155, 159 (2d Cir. 2025) (quoting Bliven v. Hunt, 579 F.3d 204, 209-10 (2d Cir. 2009)). “In

determining whether an act by a judge is ‘judicial,’ thereby warranting absolute immunity,” a

court must “take a functional approach, for such ‘immunity is justified and defined by the

functions it protects and serves, not by the person to whom it attaches.’” Id. “Generally speaking,

‘acts arising out of, or related to, individual cases before the judge are considered judicial in

nature.’” Id. (quoting Bliven, 579 F.3d at 210). “Judicial immunity is so broad that judges and

referees ‘are not liable to civil actions for their judicial acts, even when such acts . . . are alleged

to have been done maliciously or corruptly.’” Topolski v. Wrobleski, No. 13-cv-0872, 2014 WL

2215761, at *3, 2014 U.S. Dist. LEXIS 73031, at *11 (N.D.N.Y. May 29, 2014) (quoting Stump

v. Sparkman, 435 U.S. 349, 356 (1978)). Absolute judicial immunity can only be overcome if:

(1) the act is not taken in the judge’s judicial capacity, or (2) the act, “though judicial in nature,

[is] taken in the complete absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11-12 (1991).

“[A] court appointed referee is similarly entitled to absolute immunity for [their] official

acts.” Topolski, 2014 WL 2215761, at *3, 2014 U.S. Dist. LEXIS 73031, at *10 (quoting Renner

v. Stanton, No. 13-cv-01676, 2013 WL 1898389, at *3, 2013 U.S. Dist. LEXIS 65015, at *7

(E.D.N.Y. May 7, 2013)). Judicial immunity “also applies to government officials, including

clerks of court and other court employees, for their acts that assist a judge in the performance of

[their] judicial duties.” Mendez v. Johnson, No. 22-cv-6811, 2022 WL 3587600, at *2, 2022 U.S.

Dist. LEXIS 150562, at *5 (S.D.N.Y. Aug. 22, 2022). “A court’s inherent power to control its

docket is part of its function of resolving disputes between the parties,” and court staff have

absolute immunity for actions taken in furtherance of that judicial function. Rodriguez v. Weprin,

116 F.3d 62, 66–67 (2d Cir. 1997) (holding that court clerks were entitled to immunity for claim

that they failed “to properly manage the court calendar,” resulting in delay in scheduling an

appeal). “Court clerks enjoy absolute immunity even for administrative functions if the task was

undertaken pursuant to the explicit direction of a judicial officer or pursuant to the established

practice of the court.” Humphrey v. Ct. Clerk for the Second Cir., No. 508-cv-0363, 2008 WL

1945308, at *2, 2008 U.S. Dist. LEXIS 35912, at *8 (N.D.N.Y. May 1, 2008) (citing Rodriguez,

116. F.3d at 67); Topalski, 2014 WL 2215761, at *5, 2014 U.S. Dist. LEXIS 73031, at *17

(“Where a clerk [ ] acts ‘pursuant to the established practice of the court,’ [they are] entitled to

absolute immunity.” (quoting McKnight, 699 F. Supp. 2d at 507)).

The family court orders challenged by Plaintiff were clearly issued by Pavone and Judge

DeJoseph from the bench, while they were presiding over Plaintiff’s custody and visitation

matters.6 (See generally Dkt. No. 1). Pavone and Judge DeJoseph are therefore entitled to

6 To the extent that Plaintiff contends, by arguing that Pavone held “unlawful proceedings,” (see Dkt. No. 1, at 7),

that Pavone acted outside of his jurisdiction, Defendants correctly observe that “[t]he scope of the judge’s

jurisdiction must be construed broadly, such that a court acts in the absence of all jurisdiction only when it does not

have any statutory or constitutional power to adjudicate the case.” (Dkt. No. 11-2, at 17-18 (quoting Gerken v.

Gordon, 24-cv-00435, 2024 WL 4608307, at *9, 2024 U.S. Dist. LEXIS 196645, at *22 (N.D.N.Y. Oct. 29, 2024))).

See also Mendez, 2022 WL 3587600, at *2, 2022 U.S. Dist. LEXIS 150562, at *5 (noting “the scope of [a] judge's

jurisdiction must be construed broadly where the issue is the immunity of the judge”). The Complaint does not

allege any facts supporting a plausible inference that Pavone acted “in the absence of all jurisdiction.” The fact that

some of Defendants’ actions were taken while Plaintiff was not present does not change the Court’s analysis. See

Bliven, 579 F.3d at 210 (“The fact that a proceeding is informal and ex parte has not been thought to imply that an

act otherwise within a judge's lawful jurisdiction was deprived of its judicial character.” (internal quotations and

citation omitted)).

absolute judicial immunity for those acts. See Carley v. Lawrence, 24 F. App'x 66, 67 (2d Cir.

2001) (“Plaintiff's claims against Judge Lawrence are based upon orders that he issued from the

bench while presiding over a matter in Family Court. Such orders qualify as judicial acts.

Therefore, Judge Lawrence is entitled to absolute immunity for those acts.”). To the extent that

Plaintiff alleges any claim for monetary damages against Pavone and Judge DeJoseph in their

individual capacities that is not otherwise barred by Rooker-Feldman, such a claim is therefore

barred by the doctrine of judicial immunity.

With respect to Primo, Plaintiff’s factual allegations are sparse; Plaintiff alleges Primo

“processed” an Emergency Order to Show Cause, and that Primo sent Plaintiff a letter with the

forms and instructions to enable Plaintiff to obtain a transcript of the February 28, 2024 hearing.

(See Dkt. No. 1, at 8, 10). These were “acts arising out of, or related to,” Plaintiff’s individual

Onondaga County Family Court cases to “assist” the Family Court judges “in the performance of

[their] judicial duties[.]” See Mendez, 2022 WL 3587600, at *2-3, 2022 U.S. Dist. LEXIS

150562, at *5-6. Primo was entitled to immunity for processing a court order and providing

Plaintiff with the court’s forms and instructions for ordering a transcript. See Rodriguez, 116 F.3d

at 66–67; Humphrey, 2008 WL 1945308, at *2, 2008 U.S. Dist. LEXIS 35912, at *8; Topalski,

2014 WL 2215761, at *5, 2014 U.S. Dist. LEXIS 73031, at *17. Therefore, Plaintiff’s claims

against Primo must also be dismissed, because Primo is also entitled to absolute judicial

immunity. Mendez, 2022 WL 3587600, at *2-3, 2022 U.S. Dist. LEXIS 150562, at *5-6

(dismissing claims against judge, clerk, and chief clerk where claims arose “from actions taken

with respect to a case before” before the judge in city court; plaintiff “fail[ed] to allege any facts

showing that these defendants acted beyond the scope of their judicial responsibilities or outside

their jurisdiction”).7

IV. LEAVE TO AMEND

Under Federal Rule of Civil Procedure 15(a)(2) a court should freely give leave to amend

“when justice so requires.” See McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.

2007). Under Rule 15(a), absent certain circumstances not at play here, a party may amend its

pleading only with the opposing party’s written consent or the court’s leave. See Fed. R. Civ. P.

15(a)(1)–(2). A court may, in its discretion, deny leave to amend “for good reason, including

futility, bad faith, undue delay, or undue prejudice to the opposing party.” MSP Recovery

Claims, Series LLC v. Hereford Ins. Co., 66 F.4th 77, 90 (2d Cir. 2023). A request to amend is

futile where the problem with the claim is “substantive” and “better pleading will not cure it.”

Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

Here, the Eleventh Amendment, Rooker-Feldman doctrine, and judicial immunity issues

cannot be cured by better pleading. The claims for monetary damages against Defendants in their

official capacities are barred by sovereign immunity. Plaintiff’s request for injunctive relief is

barred by the Rooker-Feldman doctrine. Additionally, any claims for monetary damages against

Defendants in their individual capacities are barred by judicial immunity. Accordingly, the

complaint is dismissed in its entirety without opportunity to amend. See Rochester Drug Co-

Operative, Inc. v. Hiscox Ins. Co., Inc., 545 F. Supp. 3d 21, 24 (W.D.N.Y. 2021) (“Where it

appears that granting leave to amend is unlikely to be productive, [ ] it is not an abuse of

discretion to deny leave to amend.” (quoting Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131

(2d Cir. 1993))).

7 Because the Court dismisses for lack of subject matter jurisdiction and on judicial immunity grounds, the Court

does not reach Defendants’ arguments with respect to service or the merits of Plaintiff’s claims.

V. CONCLUSION

For these reasons, it is hereby

ORDERED that, to the extent Plaintiff seeks to proceed with claims on behalf of his

children he must obtain an attorney to represent the children in this case. If a notice of

appearance 1s not filed by counsel on behalf of M.R.M. and G.J.M. within thirty days of this

Decision and Order, the claims of M.R.M. and G.J.M. will be dismissed without prejudice and

this case will be closed, without further order of the Court; and it is further

ORDERED that Defendants’ motion to dismiss (Dkt. No. 11) is GRANTED as to all of

Plaintiff’s claims: Plaintiffs’ claims for monetary relief against Defendants in their official

capacities are dismissed under the doctrine of sovereign immunity under the Eleventh

Amendment, without prejudice but without leave to amend; and Plaintiff’s claims for injunctive

or equitable relief are dismissed under the Rooker-Feldman doctrine, without prejudice but

without leave to amend; and the remaining claims against the Defendants are dismissed with

prejudice because the Defendants are entitled to judicial immunity; and it is further

ORDERED that Plaintiff’s motion to appoint counsel (Dkt. No. 10) is DENIED as moot.

IT IS SO ORDERED.

Dated: October 27, 2025

Syracuse, New York

Brenda K. Sannes

Chief U.S. District Judge

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