Wells

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________________________________________

Michael James Wells,

Plaintiff,

v. 8:26-CV-1144

(MAD/MJK)

Attorney Brian Barrett,

Defendant.

_____________________________________________________________________

Michael James Wells, Plaintiff pro se

Mitchell J. Katz, U.S. Magistrate Judge

To the Honorable Mae A. D’Agostino, U.S. District Judge:

ORDER AND REPORT- RECOMMENDATION

Wells began this action on May 29, 2026, by filing a Complaint.

(Dkt. 1). Wells also moved for leave to proceed in forma pauperis (“IFP”)

and for the appointment of counsel. (Dkts. 2, 4). The Clerk has sent the

Complaint and those motions to this Court for review. (Id.). For the

reasons below, the Court grants Wells’s motion for IFP status, denies

the motion for the appointment of counsel, and recommends the District

Court dismiss the Complaint.

I. BACKGROUND

A. Facts

On June 22, 2025, Wells was arrested and charged with “Assault

in the Second Degree, Criminal Possession of a Weapon in the Third

Degree, and Menacing in the Second Degree.” (Complaint, Dkt. 1, at ¶¶

5, 6). Two days later, “a Grand Jury convened and indicted” Wells on all

charges. (Id. at ¶7). After Wells ended the representation of two other

non-party defense attorneys, Brian Barrett began representing Wells.

(Id.).

Throughout his representation of Wells, Barrett “only came to see”

Wells “2 times.” (Id. at ¶8). Wells “requested that” Barrett “come and

see him on numerous occasions” but Barrett “said he was just too busy.”

(Id.) (cleaned up). Wells “had a cell phone in the facility” and that cell

phone contained evidence supporting Wells’s self-defense, defense. (Id.

at ¶9). But Barrett “never went to pick the phone up even when [Wells]

signed the phone over to him to pick up.” (Id.). Because Barrett “never

picked the phone up, the phone was eventually destroyed by the facility

. . .”. (Id.) (cleaned up). Later, Wells was moved from St. Lawrence

County Correctional Facility Special Housing Unit to Elmira

Correctional Facility. (Id. at ¶10).

“On numerous occasions [Wells] asked [Barrett] to go interview . .

. witnesses and see if they[] [would] be willing to” testify. (Id. at ¶11).

“Barrett never contacted any” of the “7 witnesses” Wells identified. (Id.).

Wells also asked Barrett “to go take pictures of the crime scene for trial”

but Barrett “never went to take any pic[tures] and had no pictures for

trial. . .” . (Id. at ¶13).

“At the start of . . . jury selection[,] . . . Barrett told the judge that

he ‘wasn’t ready or prepared for trial’” (Id. at ¶12). The judge said “‘ he

didn’t care, trial would proceed without further delay.’” (Id. at ¶13)

(cleaned up). During trial, Barrett told Wells “‘we’ve won[,] if you and

Brittney testify you’ll only ruin the case.” (Id. at ¶11) (cleaned up). All

in all, Barrett “never came to see [Wells] to prepare for trial and that

caused [Wells] to lose trial . . .”. (Id. at ¶10).

B. Procedural History

Now, Wells is suing Barrett, alleging Ineffective Assistance of

Counsel under 42 U.S.C. §1983. (Id. at ¶¶1, 15-23). Wells requests

“compensatory damages . . . in the amount of $25,000,000.00 and

punitive damages in the amount of $10,000,000.00 plus costs and

attorney[’s] fees, and to grant [Wells] a trial by jury of all issues so

triable . . .”. (Id. at ¶24) (cleaned up).

II. IFP APPLICATION

Wells declares in his IFP application that he is unable to pay the

filing fee. (Dkt. 2). After reviewing his application, this Court finds

Wells is financially eligible for IFP status.

III. STANDARD OF REVIEW

Courts must consider the sufficiency of the allegations set forth in

the Complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A. Section

1915(e)(2) of Title 28 of the United States Code directs that, when a

plaintiff seeks to proceed in forma pauperis, “the court shall dismiss the

case at any time if the court determines that – . . . (B) the action . . .

(i) is frivolous or malicious; (ii) fails to state a claim on which relief may

be granted; or (iii) seeks monetary relief against a defendant who is

immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

Similarly, under 28 U.S.C. § 1915A, a court must review any

“complaint in a civil action in which a prisoner seeks redress from a

governmental entity or officer or employee of a governmental entity”

and must “identify cognizable claims or dismiss the complaint, or any

portion of the complaint, if the complaint . . . is frivolous, malicious, or

fails to state a claim upon which relief may be granted; or . . . seeks

monetary relief from a defendant who is immune from such relief.” 28

U.S.C. § 1915A(b). The term “prisoner” includes pretrial detainees. 28

U.S.C. § 1915A(c) (2006).

Second Circuit jurisprudence suggests that 28 U.S.C.

1915(e)(2)(B)’s review of pro complaints is a two-step inquiry.

At step one, courts apply the traditional special solicitude afforded

to pro se plaintiffs. See, e.g., Rosa v. Doe, 86 F.4th 1001, 1007 (2d Cir.

2023). Indeed, courts are “obligated to afford a special solicitude to pro

se litigants.” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010). “The

solicitude afforded to pro se litigants takes a variety of forms. It most

often consists of liberal construction of pleadings” and “motion papers.”

Id. (cleaned up). So, at step one, courts must ‘“accept all of the facts

alleged in the complaint as true and draw all inferences in the

plaintiff’s favor.”’ White v. Schmidt, No. 22-1267, 2024 WL 1266245, at

*2 (2d Cir. Mar. 26, 2024) (summary order) (quoting Harnage v.

Lightner, 916 F.3d 138, 140-41 (2d Cir. 2019)). And once the court has

done so, it must then construe the pro se submission “to raise the

strongest arguments that [it] suggest[s].” Triestman v. Fed. Bureau of

Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (emphasis removed).

At step two, courts subject the liberally construed pleading to

Rule 8’s pleading standard. See, e.g., Sykes v. Bank of Am., 723 F.3d

399, 403 (2d Cir. 2013) (citing Twombly Bell Atlantic v. Twombly, 550

U.S. 544, (2005) and Ashcroft v. Iqbal, 556 U.S. 662 (2009) when

affirming a district court’s dismissal of the plaintiff’s complaint under

28 U.S.C. 1915); see also Edwards v. Erfe, 588 F. App’x 79 (2d Cir. 2015)

(summary order) (citing Sykes and affirming the District Court’s sua

sponte dismissal of a prisoner rights case); Hirsch v. Rochester City

Police Dep’t, 578 F. App’x 49, 50 (2d Cir. 2014) (summary order) (same

in a civil rights case); Sheehy v. Brown, 335 F. App’x 102, 103 (2d Cir.

2009) (summary order) (citing Iqbal and affirming the District Court’s

dismissal of a claim under 20 U.S.C. §1915(e)(2)).

While the Second Circuit has never formally stated that Rule 8’s

pleading standard applies, the Court infers that the Second Circuit has

adopted that position. To arrive at this conclusion, the Court focuses on

two pieces of evidence. First, the Circuit’s citations to Iqbal and

Twombly—which clarified Rule 8s pleading standard. See Sykes, 723

F.3d at 403. Second, other circuit courts have authorized district courts

to apply Rule 12(b)(6) when reviewing claims under §1915(e)(2)(B).1

Nothing in the Second Circuit’s jurisprudence leads this Court to

believe that it would break stride with eight other circuit courts. This

evidence, altogether, leads this Court to believe that the Second Circuit

approves of this Court’s application of Rule 12(b)(6)’s standard to

§1915(e)(2)(B) reviews after applying special solicitude to the pro se

submission.

When applying Rule 8 to pleadings, Courts’ must determine if a

claim is facially plausible. See Iqbal, 556 U.S. at 678 (2009) (citing

Twombly, 550 U.S. at 570). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal, 556 U.S. at 678. This means that pro se complaints,

even while liberally construed, “must plead ‘enough facts to state a

claim to relief that is plausible on its face.”’ Skyes, 723 F.3d at 403

1 See Herrera v. Agents of Pennsylvania Bd. of Prob. & Parole, 132 F.4th 248, 254

n.5 (3d Cir. 2025) (applying Rule 12(b)(6)’s standard to §1915(e)(2)(B) review); Martin v.

Duffy, 858 F.3d 239, 248 (4th Cir. 2017) (same); Hale v. King, 642 F.3d 492, 497 (5th Cir.

2011) (same); Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (same); Coleman v. Lab.

& Indus. Rev. Comm’n of Wisconsin, 860 F.3d 461, 468 (7th Cir. 2017) (same); Wilhelm v.

Rotman, 680 F.3d 1113 (9th Cir. 2012) (same) Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir.

2007) (same); Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008) (same).

(quoting Twombly, 550 U.S. at 570). “Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements,

do not suffice.” Iqbal, 556 U.S. at 678. Indeed Rule 8 “demands more

than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

Id.

In sum, the Court’s role, when reviewing a Complaint under

§1915(e)(2)(B), is two-fold. First, the Court must draw all inferences in

the pro se plaintiff’s favor and construe their submission to raise the

strongest possible argument. Second, the Court must then review the

Complaint and determine if it plausibly alleges enough facts for the

Court to reasonably infer that the defendant would be liable for the

alleged misconduct.

IV. DISCUSSION

A. Barrett is not a state actor, so Wells cannot use §1983

as a vehicle to bring his claim.

The District Court should dismiss Wells’s Complaint without

prejudice and without leave to amend. To plausibly allege a 42 U.S.C.

§1983 violation, the plaintiff must show that the defendant deprived the

plaintiff of their rights under the color of state law. In other words, the

plaintiff must prove that the defendant was a state actor. Here, Wells

cannot plausibly allege that Barrett is a state actor. Thus, the Court

recommend dismissing Wells’s Complaint.

A §1983 violation occurs when “a person or persons acting under

color of state law deprived a plaintiff of rights, privileges or immunities

secured by the Constitution or laws of the United States.” McDarby v.

Dinkins, 907 F.2d 1334, 1336 (2d Cir.1990). To plausibly allege a §1983

claim, “the conduct at issue must have been committed by a person

acting under color of state law.” DuBois v. Bedford-Flatbush

Chiropractic, P.C., 409 F. Supp. 3d 62, 69 (E.D.N.Y. 2019). “For

purposes of a § 1983 action, a defendant necessarily acts under color of

state law when he abuses the position given to him by the State.” Lynch

v. Southampton Animal Shelter Found. Inc., 971 F. Supp. 2d 340, 348

(E.D.N.Y. 2013). “Private actors are not liable under section 1983 unless

the conduct allegedly causing the deprivation of a federal right can be

fairly attributable to the State.” Id. (cleaned up). Importantly, plaintiffs

“bears the burden of proof to establish that the acts of private persons

or entities constitute state action.” Omnipoint Commc’ns Inc. v. Comi,

233 F. Supp. 2d 388, 394 (N.D.N.Y. 2002)

Wells’s Complaint does not establish that the District Court has

subject matter jurisdiction over this case. “[N]either public defenders,

such as Legal Aid attorneys, nor court-appointed counsel, nor private

attorneys, act under the color of state law merely by virtue of their

position.” McCluskey v. New York State Unified Ct. Sys., No. 10-CV-

2144, 2010 WL 2558624, at *6 (E.D.N.Y. June 17, 2010) (Bianco J.). But

here, Wells is suing Barrett—an attorney who represented him in his

criminal case—because he “didn’t do a good job representing” Wells.

(Complaint, Dkt. 1, at pg. 3). Worse yet, Wells’s Complaint is devoid of

any statements or evidence which plausibly suggest that Barrett was

acting under the color of law. See generally (Id.). And because there is

no allegation that Barrett was acted “under color of state law,” he is

“not subject to § 1983 liability.” Kash v. Honey, 38 F. App’x 73, 76 (2d

Cir. 2002) (summary order) (affirming the trial court’s dismissal of

plaintiff’s claims against a private attorney). Because there is no state

action, §1983 is not available to Wells. And because that is so, there is

no federal question jurisdiction under 28 U.S.C. §1331. Without a

federal question—and no allegations that the parties are diverse and

the amount in controversy exceeds $75,000 establishing diversity

jurisdiction—the District Court has no jurisdiction to hear the case.

Indeed, ‘“[f]ederal courts are courts of limited jurisdiction,’ and may

hear cases only where a federal question exists (‘federal question

jurisdiction’) or there is diversity of the parties (‘diversity jurisdiction’).”

Shafik v. Aston Martin Lagonda of N. Am., Inc., 770 F. Supp. 3d 432,

441 (D. Conn. 2025) (quoting Durant, Nichols, Houston, Hodgson &

Cortese-Costa P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir. 2009)). Thus, the

Court recommends the District Court dismiss the Complaint without

prejudice and without leave to amend. See Fed. R. Civ. P. 12(h)(3) (“If

the court determines at any time that it lacks subject-matter

jurisdiction, the court must dismiss the action.”); Durant, Nichols,

Houston, Hodgson & Cortese-Costa P.C., 565 F.3d at 64

(“Notwithstanding any prior proceedings, it is our obligation to raise the

matter of subject matter jurisdiction whenever it appears from the

pleadings or otherwise that jurisdiction is lacking.”); See Karupaiyan v.

New York, No. 23-1257-CV, 2024 WL 2174272, at *2 (2d Cir. May 15,

2024) (summary order) (“When subject matter jurisdiction is lacking,

the district court lacks the power to adjudicate the merits of the case,

and accordingly Article III deprives federal courts of the power to

dismiss the case with prejudice.”(cleaned up)).

B. Appointment of counsel is not warrant because Wells’s

case must be dismissed.

Wells’s motion to appointment of counsel is denied as moot. “The

hallmark of a moot case or controversy is that the relief sought can no

longer be given or is no longer needed.” Martin-Trigoa v. Shiff, 702 F.2d

380, 386 (2d Cir. 1983). Because the Court recommends dismissal, there

is no longer a controversy. And thus, this Court cannot compel the U.S.

Marshal service to effectuate service.

V. CONCLUSION

WHEREFORE, based on the findings above, it is

RECOMMENDED that the District Court:

1. DISMISS Wells’s Complaint (Dkt. 1) without

prejudice and without leave to amend; and

2. DENY Wells’s motion to appoint counsel (Dkt. 4);

and it is

ORDERED

1. that Wells’s motion to proceed IFP (Dkt. 2) be

GRANTED; and

2. that the Clerk provide Wells with copies of the

unpublished decisions cited herein in accordance

with Lebron v. Sanders, 557 F.3d 76 (2d Cir.

2008) (per curiam); and Wells is

REMINDED

that in accordance with 28 U.S.C. § 636(b)(1), they

have fourteen days within which to file written

objections to the foregoing report. Such objections

shall be filed with the Clerk of the Court. FAILURE

TO OBJECT TO THIS REPORT WITHIN

FOURTEEN DAYS WILL PRECLUDE

APPELLATE REVIEW. Roldan v. Racette, 984

F.2d 85 (2d Cir. 1998) (citing Small v. Sec’y of

Health and Human Servs., 892 F.2d 15 (2d Cir.

1989) (per curiam)); 28 U.S.C. § 6386(b)(1) (Supp.

2018); Fed. R. Civ. P. 6(a), 6(d), 72

Dated: June 12, 2026

Hon. Mitchell J. Katz

U.S. Magistrate Judge

13

588 Fed.Appx. 79 (Mem)

This case was not selected for publication in West's Federal Reporter.

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE

OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY

ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX

OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A

SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

United States Court of Appeals,

Second Circuit.

M.A. EDWARDS, Plaintiff–Appellant,

v.

ERFE, Warden, Corrigan C.I.; Official, Individual, LaJoie, Complex Warden; Official, Individual,

Sutherland, Correction Officer; Official and Individual, Lynn Milling, PoP Management;

Official, Individual, Iozzia, Correction Officer; Official and Individual, Peck, Correction

Officer; Official and Individual, Penn, Captain; Official and Individual, Defendants–Appellees.

No. 14–1597.

|

Jan. 8, 2015.

Appeal from a judgment and order of the United States District Court for the District of Connecticut (Alfred V. Covello, J.).

Attorneys and Law Firms

M.A. Edwards, Suffield, CT, pro se.

No Appearance, for Defendants–Appellees.

Present: GERARD E. LYNCH, DENNY CHIN, Circuit Judges, EDWARD KORMAN,* District Judge.

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment and

order of the district court are AFFIRMED.

Appellant M.A. Edwards, proceeding pro se, appeals from the district court's judgment dismissing his 42 U.S.C. § 1983

complaint sua sponte and from the order denying reconsideration of that judgment. We assume the parties' familiarity with the

underlying facts and procedural history.

We review a district court's sua sponte dismissal of a complaint de novo. Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir.2013).

Pro se submissions are generally reviewed with “special solicitude,” and we interpret those submissions to raise the strongest

claims suggested. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474–75 (2d Cir.2006) (per curiam). District courts should

not dismiss a pro se complaint without granting leave to amend unless amendment would be futile. See Cuoco v. Moritsugu,

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

deprived of his property. A prisoner may challenge the deprivation of property in a § 1983 action only if the State provides no

adequate post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). Connecticut

provides inmates with a remedy for lost or destroyed property. Under Connecticut General Statutes § 4–141 et seq., a person may

bring a claim against the State to the Claims Commissioner unless, inter alia, the law establishes another administrative remedy

for that claim. Conn. Gen.Stat. § 4–142. An inmate's property claim may not be brought directly to the Claims Commissioner

because Connecticut Department of Corrections (“DOC”) Administrative Directive 9.6(16)(B) establishes an administrative

remedy for prisoners aggrieved by property loss or damage. However, if a prisoner exhausts his internal administrative remedy

and the DOC's Lost Property Board (“LPB”) denies his claim, he may then bring his claim to the Claims Commissioner, see id.

at 9.6(16)(F), who, as *81 relevant here, may order relief or authorize suit, see Conn. Gen.Stat. § 4–158.

The district court properly ruled that Edwards's claim failed because he did not allege that the above process was inadequate.

Arguably, the district court should not have dismissed the claim without providing Edwards an opportunity to amend. See

Cuoco, 222 F.3d at 112. However, any error is harmless because Edwards's reconsideration motion sets out what he would

have alleged had he been granted the opportunity to amend. See Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117,

127 (2d Cir.2007). In that motion, Edwards argued that the postdeprivation remedy was inadequate because prison staff told

him that the LPB required him to prove his ownership with a receipt of purchase. That allegation does not demonstrate that

Edwards lacked an adequate state remedy because, irrespective of the LPB's methods of reaching its decision, he could seek

relief from the Claims Commissioner, whose consideration of the issue would have been independent of the LPB's decision.

Edwards suggests no reason, either in his reconsideration motion or on appeal, why the presentation of his claim to the Claims

Commissioner would have been an inadequate remedy if the LPB were to have denied his claim.

Edwards also asserts that Connecticut's housing of sentenced with unsentenced inmates violates his constitutional rights as a

sentenced inmate. However, the Fifth Circuit case relied on by Edwards postulates a due process right of pretrial detainees not to

be housed indiscriminately with sentenced inmates, not the reverse. See Jones v. Diamond, 636 F.2d 1364, 1374 (5th Cir.1981),

overruled on other grounds by Int'l Woodworkers of Am. v. Champion Int'l Corp., 790 F.2d 1174 (5th Cir.1986). Whereas “[d]ue

process requires that a pretrial detainee not be punished,” a “sentenced inmate ... may be punished, although that punishment

may not be ‘cruel and unusual’ under the Eighth Amendment.” Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 60

L.Ed.2d 447 (1979). Edwards' claim fails because he alleges no facts indicating that his housing with unsentenced inmates

rather than sentenced inmates amounts to cruel and unusual punishment.

We need not consider whether Connecticut's housing practice violates the due process rights of pretrial detainees, because

Edwards lacks standing to assert the rights of pretrial detainees. See Ziemba v. Rell, 409 F.3d 553, 555 (2d Cir.2005). We note,

however, that two recent District of Connecticut decisions have held that this practice does not violate a pretrial detainee's due

process rights “absent allegations that the pretrial detainee suffered an injury from being housed with one or more convicted

inmates, or that the placement with convicted inmates was intended to punish the pretrial detainee.” Silvera v. Conn. Dep't

of Corr., 726 F.Supp.2d 183, 197 (D.Conn.2010); Woodhouse v. Carroll, No. 3:08CV1092 (MRK), 2010 WL 3023888, at *5

(D.Conn. Aug.2, 2010).

Lastly, Edwards contends that his double-bunking with another inmate violates his Eighth Amendment rights. That claim fails

because double-bunking is not per se unconstitutional and Edwards has not alleged that the practice has “lead to deprivations of

essential food, medical care, or sanitation,” or to other conditions that rise to the level of cruel and unusual punishment. Rhodes

v. Chapman, 452 U.S. 337, 344, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981).

We review the denial of a motion for reconsideration for abuse of discretion. Simon v. City of N.Y., 727 F.3d 167, 171 (2d

Cir.2013). “[R]econsideration will generally *82 be denied unless the moving party can point to controlling decisions or data

that the court overlooked-matters, in other words, that might reasonably be expected to alter the conclusion reached by the

court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.1995). Here, the district court properly declined to grant relief

because the arguments and allegations raised in the reconsideration motion did not entitled Edwards to relief.

Finally, we note that appellees failed to file a brief in this appeal, despite requesting and receiving from this Court an extension

of time in which to do so. In fact, since requesting an extension, appellees have made no filing with this Court whatsoever.

While an appellee is of course under no obligation to submit a brief, the views of appellees will often be of assistance to the

Court, especially in dealing with claims made by uncounseled appellants. Moreover, it is discourteous to request an extension

only to then cease all communication without notifying the Court that the party has decided not to file a brief.

We have considered all of Edwards's remaining arguments and find them to be without merit. Accordingly, we AFFIRM the

judgment and order of the district court.

All Citations

588 Fed.Appx. 79 (Mem)

Footnotes

* The Honorable Edward Korman, of the United States District Court for the Eastern District of New York, sitting by

designation.

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.

578 Fed.Appx. 49

This case was not selected for publication in the Federal Reporter.

Not for Publication in West's Federal Reporter. RULINGS BY SUMMARY ORDER DO NOT HAVE

PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,

2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1

AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT

FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A

SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

United States Court of Appeals,

Second Circuit.

Nicholas J. HIRSCH, Plaintiff–Appellant,

v.

ROCHESTER CITY POLICE DEPARTMENT, et al., Defendants–Appellees.

No. 13–3002–cv.

|

Sept. 22, 2014.

Appeal from a judgment of the United States District Court for the Western District of New York (Charles J. Siragusa, Judge.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the

District Court is AFFIRMED in part, VACATED in part, and the cause is REMANDED for further proceedings consistent

with this order.

Attorneys and Law Firms

Nicholas J. Hirsch, Rochester, NY, pro se.

No Appearance.

PRESENT: JOSÉ A. CABRANES and RAYMOND J. LOHIER, JR., Circuit Judges, PAUL A. ENGELMAYER,* District

Judge.

*50 SUMMARY ORDER

Appellant Nicholas Hirsch, proceeding pro se, appeals from the District Court's judgment dismissing his lawsuit sua sponte

and imposing a leave-to-file sanction. We assume the parties' familiarity with the underlying facts, the procedural history of

the case, and the issues on appeal.

We review a district court's sua sponte dismissal of a complaint de novo. Sykes v. Bank of Am., 723 F.3d 399, 403 (2d. Cir.2013).

Pro se submissions are generally reviewed with “special solicitude,” and we interpret those submissions to raise the strongest

claims suggested. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474–75 (2d Cir.2006) (per curiam) (quoting Ruotolo v.

I.R.S., 28 F.3d 6, 8 (2d Cir.1994)). District courts should generally not dismiss a pro se complaint without granting leave to

amend. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000). However, leave to amend is unnecessary if amendment would

be futile, see id., or if the plaintiff “is an extremely litigious [litigant] who is quite familiar with the legal system and with

pleading requirements,” Davidson v. Flynn, 32 F.3d 27, 31 (2d Cir.1994).

because he timely responded. Hirsch is correct, but remand is unwarranted. Res judicata barred his claims against the City of

Rochester, the Rochester City Police Department, Officer Michael Johnson, and Officer Samuel Ognibene, as these defendants

were all listed in Hirsch's previously-dismissed complaint. See Second Amended Complaint, Hirsch v. City of Rochester, No.

6:11–CV–6381 (W.D.N.Y. Feb. 17, 2012), ECF No. 56; see also Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 284–91 (2d

Cir.2000) (barring constitutional claims under the doctrine of res judicata). However, although Hirsch's previous complaint

also listed six “John Does,” it did not specifically list Officer Nina Nowack. His claims against Nowack were therefore not

barred by res judicata. Cf. Nagle v. Lee, 807 F.2d 435, 440 (5th Cir.1987) (ruling that fictitiously named officers were not

entitled to benefit of res judicata where they did not appear in the prior action and were never served). Nonetheless, Hirsch's

most recent complaint failed to allege any facts suggesting that Nowack violated his federal or constitutional rights. Moreover,

affording Hirsch an opportunity to amend would have been unnecessary in light of the litigant's history. The District Court's

prior orders repeatedly and explicitly explained that complaints containing only conclusory legal assertions warrant dismissal.

See Davidson, 32 F.3d at 31.

Turning to the leave-to-file sanction, we review a sanction order for an abuse of discretion. See Chambers v. NASCO, Inc., 501

U.S. 32, 55, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991); StreetEasy, Inc. v. Chertok, 752 F.3d 298, 306–07 (2d Cir.2014). As the

Supreme Court has noted, “[b]ecause of their very potency, inherent powers must be exercised with restraint and discretion.”

Chambers, 501 U.S. at 44, 111 S.Ct. 2123. A court, however, may impose a filing injunction if confronted with “extraordinary

circumstances, such as a demonstrated history of frivolous and vexatious litigation ... or a failure to comply with sanctions

imposed for such conduct.” Milltex Indus. Corp. v. Jacquard Lace Co., Ltd., 55 F.3d 34, 39 (2d Cir.1995) (quoting Richardson

Greenshields Sec., Inc. v. Lau, 825 F.2d 647, 652 (2d Cir.1987)). A “court may not impose a filing *51 injunction on a litigant

sua sponte without providing the litigant with notice and an opportunity to be heard.” Iwachiw v. N.Y. State Dep't of Motor

Vehicles, 396 F.3d 525, 529 (2d Cir.2005) (quoting Moates v. Barkley, 147 F.3d 207, 208 (2d Cir.1998)). Here, Hirsch timely

objected to the District Court's order to show cause why a leave-to-file sanction should not be imposed. That objection, however,

was mistakenly docketed in another of Hirch's actions. Pl.'s Resp. & Cover Ltr., Hirsch v. City of Rochester, No. 6:12–CV–

6525 (W.D.N.Y. Apr. 15, 2013), ECF Nos. 7–8. Because the District Court did not consider this objection, the sanction order is

vacated, and the cause is remanded in order to provide Hirsch with an opportunity to be heard on this question. Of course, we

intimate no view on whether the order would be appropriate in the circumstances presented.

We have considered Hirsch's remaining arguments and find them to be without merit. Accordingly, we AFFIRM in part,

VACATE in part, and REMAND the cause for further proceedings consistent with this order.

All Citations

578 Fed.Appx. 49

Footnotes

* The Honorable Paul A. Engelmayer, of the United States District Court for the Southern District of New York, sitting

by designation.

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.

2024 WL 2174272

Only the Westlaw citation is currently available.

United States Court of Appeals, Second Circuit.

Palani KARUPAIYAN, Plaintiff-Appellant,

v.

State of NEW YORK, City of New York, New York City Police Department (NYPD), John Does Police Officers

of NYPD, Fredrick Dsouza, Pravin Pandey, Raja Pandey, Adar Management Corp., Defendants-Appellees.

23-1257-cv

|

May 15, 2024

Appeal from a judgment of the United States District Court for the Eastern District of New York (Ann M. Donnelly, District

Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the

district court is AFFIRMED IN PART, VACATED IN PART, and REMANDED for further action consistent with this order.

Attorneys and Law Firms

For Plaintiff-Appellant: Palani Karupaiyan, pro se, Philadelphia, PA.

For Defendants-Appellees: No appearance.

Present: Dennis Jacobs, William J. Nardini, Steven J. Menashi, Circuit Judges.

SUMMARY ORDER

*1 Plaintiff-Appellant Palani Karupaiyan, pro se, sued the State and City of New York, the New York City Police Department

(“NYPD”), unnamed NYPD officers, three private individuals, and a real estate company under various federal and state causes

of action. Karupaiyan's allegations stem from several disagreements and altercations with his co-tenants and his apartment's

management company, as well as purported discrimination by New York City police officers who allegedly responded to his

residence and arrested him after one of his co-tenants called 911 after an altercation. After granting Karupaiyan in forma pauperis

status, the district court dismissed his complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim but permitted

him leave to amend. See Karupaiyan v. New York, No. 23-CV-5424 (AMD) (LB), 2023 WL 9020011 (E.D.N.Y. Sept. 8, 2023).

Instead of amending, Karupaiyan appealed.1 We assume the parties’ familiarity with the case.

I. Forfeiture of Issues on Appeal

While we liberally construe pro se filings to raise the strongest arguments they suggest, McLeod v. Jewish Guild for the Blind,

864 F.3d 154, 156 (2d Cir. 2017), pro se appellants must still clearly state the issues on appeal in their briefs, see Moates v.

Barkley, 147 F.3d 207, 209 (2d Cir. 1998). We normally do not decide issues that are not briefed. Id.; see also LoSacco v. City

of Middletown, 71 F.3d 88, 93 (2d Cir. 1995) (“[W]e need not manufacture claims of error for an appellant proceeding pro se

....”).2 Nor will we decide issues that a pro se appellant briefs only “in passing.” Gerstenbluth v. Credit Suisse Secs. (USA)

LLC, 728 F.3d 139, 142 n.4 (2d Cir. 2013).

Karupaiyan's brief largely fails to address the substance of the district court's decision dismissing his complaint. The only

prosecution claims under 42 U.S.C. § 1983. We accordingly conclude that he has forfeited all other issues.

II. Sua Sponte Dismissal

Karupaiyan appears to challenge the district court's sua sponte dismissal of his complaint under § 1915(e)(2)(B). While we have

cautioned against sua sponte dismissals without notice and opportunity to be heard in certain contexts, see Catzin v. Thank You

& Good Luck Corp., 899 F.3d 77, 82–83 (2d Cir. 2018), the district court granted Karupaiyan leave to amend his complaint

to fix the defects identified, but he did not take advantage of the offer. We discern no error in the sua sponte dismissal under

these circumstances.

III. Merits

*2 We review de novo Karupaiyan's challenge to the dismissal of his false arrest and malicious prosecution claims arising out

of his alleged arrest. McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004). We conclude that he failed to state a claim for

false arrest under 42 U.S.C. § 1983 against Fredrick Dsouza and Pravin Pandey because they are private citizens and did not act

under color of state law. A private individual becomes a state actor for the purposes of § 1983 only when (1) the state compelled

the conduct, (2) the private party acted jointly with a state, or (3) the private party fulfilled a role that is traditionally a public

state function. See Sybalski v. Indep. Group Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008). Filing a complaint

with the police does not fit within any of these categories. See Dahlberg v. Becker, 748 F.2d 85, 93 (2d Cir. 1984) (holding that

“mere invocation” of state legal procedures does not amount to state action under § 1983).

Karupaiyan also fails to plead a false arrest or malicious prosecution claim under § 1983 against NYPD officers or the City of

New York, as he does not allege any facts showing that the officers lacked probable cause for the arrest, see Ashley v. City of

New York, 992 F.3d 128, 136 (2d Cir. 2021) (“Probable cause to arrest is a complete defense to an action for false arrest.”), or

that the criminal proceedings terminated in his favor, see Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir. 2010)

(requiring a plaintiff to plead “termination of the proceeding in [his] favor”).

The remainder of Karupaiyan's brief seeks various remedies that are not related to any of the claims he raised below—for

example, he seeks an order reorganizing the New York State Unified Court System. He points to no authority that would permit

such relief, even assuming he had a meritorious claim.

IV. Prejudice

Although Karupaiyan's claims against the State of New York fail, the district court erred by dismissing them with prejudice.

The district court correctly dismissed these claims because New York is entitled to state sovereign immunity and has not waived

that immunity. See Karupaiyan, 2023 WL 9020011, at *2. The “constitutional principle of sovereign immunity” poses “a bar to

federal jurisdiction over suits against nonconsenting States.” Alden v. Maine, 527 U.S. 706, 730 (1999). “When subject matter

jurisdiction is lacking, ‘the district court lacks the power to adjudicate the merits of the case,’ and accordingly ‘Article III

deprives federal courts of the power to dismiss the case with prejudice.’ ” Green v. Dep't of Educ. of City of N.Y., 16 F.4th 1070,

1074 (2d Cir. 2021) (quoting Carter v. HealthPort Techs., LLC, 822 F.3d 47, 54–55 (2d Cir. 2016)). Therefore, 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.

The district court likewise erred by dismissing with prejudice Karupaiyan's landlord-tenant claims—other than those under

the Fair Housing Act or 42 U.S.C. § 1981—pursuant to Federal Rule of Civil Procedure 12(h)(3). See Karupaiyan, 2023 WL

9020011, at *5. Because Rule 12(h)(3) provides for dismissal for lack of subject matter jurisdiction, such a dismissal must

be without prejudice. See Green, 16 F.4th at 1074. We therefore remand with instructions for the district court to modify its

judgment to dismiss these claims without prejudice. See Russo v. United States, No. 22-1869, 2024 WL 726884, at *2 (2d Cir.

Feb. 22, 2024).

* * *

We have considered Karupaiyan's remaining arguments and find them unpersuasive. Accordingly, we AFFIRM the judgment of

the district court in part, VACATE the judgment insofar as the district court dismissed with prejudice claims over which it lacked

subject matter jurisdiction, and REMAND for the district court to amend its judgment to dismiss these claims without prejudice.

All Citations

Not Reported in Fed. Rptr., 2024 WL 2174272

Footnotes

1 Because the time to amend has long since run despite multiple extensions, the dismissal without prejudice has ripened

into a final and appealable order over which we may exercise jurisdiction. See 28 U.S.C. § 1291; Salmon v. Blesser,

802 F.3d 249, 252 n.2 (2d Cir. 2015).

2 Unless otherwise indicated, case quotations omit all internal quotation marks, alteration marks, footnotes, and citations.

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.

38 Fed.Appx. 73

This case was not selected for publication in West's Federal Reporter.

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE

OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY

ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX

OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A

SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

United States Court of Appeals, Second Circuit.

Harvey KASH, Carl Lanzisera, and Julia Gambino, Plaintiffs–Appellants,

v.

Thomas HONEY, Individually and in his Official Capacity, Frank Incantalupo,

Individually and in his Official Capacity, James Catterson, Individually and in his Official

Capacity, Patrick Mercurio, Individually and in his Official Capacity, Defendants,

A. Craig Purcell, Individually and in his Official Capacity, Defendant–Appellee,

Edward Manzello, Individually and in his Official Capacity, Defendant–Counter–Defendant–Appellee.

Docket No. 01–7794

|

April 11, 2002.

Synopsis

Protesters at local bar association's Law Day event brought § 1983 action against bar president and police officer. The United

States District Court for the Eastern District of New York, Thomas G. Platt, J., granted summary judgment for defendants, and

appeal was taken. The Court of Appeals held that: (1) president was not state actor; (2) officer did not use unreasonable force

when removing one protester; (3) officer's accidental elbowing of second protester was not violation of her substantive due

process rights; and (4) officer did not violate protesters' First Amendment rights.

Affirmed.

Procedural Posture(s): On Appeal; Motion for Summary Judgment.

West Headnotes (6)

[1] Civil Rights Attorneys and witnesses

Local bar association president could not be held liable under § 1983 for filing misdemeanor complaint against Law

Day protestor involved in altercation with police officer, absent showing of state action; president was private citizen,

and there was no evidence he conspired or acted jointly with officer. 42 U.S.C.A. § 1983.

4 Cases that cite this headnote

[2] Civil Rights Cooperation with state actor

Private person does not act jointly with state actor, and thus does not incur § 1983 liability, merely by swearing to

affidavit in accusatory instrument. 42 U.S.C.A. § 1983.

18 Cases that cite this headnote

[3] Search, Seizure, and Arrest Particular cases in general

Force used by police officer to restrain and remove protester from public event was objectively reasonable, under

Fourth Amendment, and thus did not give rise to § 1983 liability; officer did not strike protester, even though he

believed protester to be fighting back and attempting to grab his firearm, and he released protester after removing him

from room. U.S.C.A. Const.Amend. 4; 42 U.S.C.A. § 1983.

[4] Constitutional Law Neglect or delay

Municipal, County, and Local Government Arrest and detention; use of force

Police officer's unintentional elbowing of one protester's shoulder while attempting to restrain second protester did

not so shock conscience of court as to amount to substantive due process violation, and thus did not give rise to §

1983 liability. U.S.C.A. Const.Amend. 5; 42 U.S.C.A. § 1983.

1 Case that cites this headnote

[5] Constitutional Law Protests and Demonstrations in General

Municipal, County, and Local Government Police, Law Enforcement, and Public Safety

Police officer who removed protester could not be held liable under § 1983 for First Amendment violation absent

evidence that conflict arose due to protester's attempt to engage in expressive activity; protester claimed that his

movement toward Congressmen, which officer prevented, was not for purpose of speaking to them. U.S.C.A.

Const.Amend. 1; 42 U.S.C.A. § 1983.

[6] Constitutional Law Protests and Demonstrations in General

Municipal, County, and Local Government Arrest and detention; use of force

Police officer who elbowed protester in alleged retaliation for having been embarrassed at prior event could not be

held liable under § 1983 for First Amendment violation; officer's alleged motive was personal revenge, not deterrence

of protester's political expression. U.S.C.A. Const.Amend. 1; 42 U.S.C.A. § 1983.

*74 Appeal from the United States District Court for the Eastern District of New York, Thomas G. Platt, Judge.

Attorneys and Law Firms

Arthur V. Graseck, Jr., Islip Terrace, NY, for Appellant.

Kevin G. McMorrow; Joseph M. O'Connor; Ahmuty, Demers & McManus, Albertson, NY, for Appellee A. Craig Purcell.

Daniel J. Chepatis, Assistant Solicitor General; Michael S. Belohlavek, Deputy Solicitor General, of counsel, for Eliot Spitzer,

Attorney General of the State of New York, New York, NY, for Appellee Edward Manzello.

*75 Present OAKES, SACK, and BRIGHT,* Circuit Judges.

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of said district

court, entered on February 21, 2001, be, and it hereby is, AFFIRMED.

Plaintiffs Harvey Kash, Carl Lanzisera, and Julia Gambino appeal from a judgment of the United States District Court for

the Eastern District of New York (Thomas G. Platt, Judge ) granting summary judgment to defendants A. Craig Purcell and

Edward Manzello.

The plaintiffs belong to Americans for Legal Reform (“ALR”), an organization that “seeks to bring about reform in the American

legal system through political means.” Compl. ¶ 18. They filed suit against the defendants under 42 U.S.C. § 1983 alleging

violations of their constitutional rights under the First, Fifth, and Fourteenth Amendments.

Kash alleges that on April 29, 1996, at the Suffolk County Bar Association's annual “Law Day,” defendant Edward Manzello,

a security officer employed by the Suffolk County Unified Court System, employed excessive force against him in the course

of preventing him from walking in the direction of Congressmen Rick Lazio and Michael Forbes, speakers at Law Day. He

further alleges that, thereafter, defendant A. Craig Purcell, then president of the Suffolk Bar Association, maliciously caused to

be filed a false misdemeanor complaint against him charging him with disorderly conduct; and that Purcell thereby intended,

inter alia, to penalize Kash for attempting to exercise his First Amendment rights.

Gambino asserts that while attempting to extricate Kash from Manzello's restraint, Manzello elbowed her in the shoulder a few

times. She conceded in her deposition that these strikes were “[n]ot intentional.” Lanzisera alleges that sometime earlier on Law

Day, as he passed by Manzello, Manzello elbowed him intentionally. Lanzisera speculates that Manzello did this because of an

incident that occurred one year earlier. Lanzisera had been demonstrating at a courthouse, and Manzello took his sign. Lanzisera

complained to Manzello's superior, who returned the sign to Lanzisera. This incident, Lanzisera believes, embarrassed Manzello.

The plaintiffs bring their claims under 42 U.S.C. § 1983. They therefore must establish that the defendants deprived them of

rights “secured by the Constitution or laws of the United States,” and that they did so “under color of state law.” American Mfrs.

Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999).

I. The Claim Against Purcell

[1] The plaintiffs' sole allegation against Purcell is that he “maliciously, for purpose or purposes personal to him, including

the purpose of penalizing plaintiff KASH for exercising his First Amendment rights ... falsely charged HARVEY KASH in an

accusatory instrument.” Compl. ¶ 14.

The plaintiffs do not dispute that Purcell is a private attorney or that the Suffolk County Bar Association is a private not-for-

profit organization that receives no governmental funding of any kind. The acts of private attorneys are not deemed to be “under

color of state law,” see *76 Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir.1975), and “an otherwise private person acts ‘under

color of’ state law” only if he or she “conspir[es] with state officials to deprive another of federal rights.” Tower v. Glover, 467

U.S. 914, 920, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984).

The evidence shows that before the Law Day program began, Manzello informed Purcell that he had been assigned to provide

security to certain judges there. No evidence suggests that Purcell conspired or acted jointly with Manzello. No evidence suggests

that Purcell knew that the plaintiffs would be attending the Law Day program. The plaintiffs contend that Manzello and Purcell

discussed ALR before Law Day, but they point to no evidence in the record to support that contention. A conclusory allegation

that a private person acted jointly with a state actor fails to state a claim under § 1983, see Spear v. Town of W. Hartford, 954

[2] Purcell also did not act jointly with a state actor merely by swearing to an affidavit in an accusatory instrument. Private

misuse of an otherwise valid state statute is not state action. Dahlberg v. Becker, 748 F.2d 85, 90 (2d Cir.1984). Because none

of Purcell's alleged conduct can be deemed “fairly attributable to the State,” Spear, 954 F.2d at 68 (internal quotation marks and

citations omitted), Purcell did not act “under color of state law” and therefore is not subject to § 1983 liability.

II. The Claims Against Manzello

[3] To analyze excessive-force claims, we begin by “identifying the specific constitutional right allegedly infringed by the

challenged application of force.” Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). “ ‘[I]f a

constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must

be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.’ ” County

of Sacramento v. Lewis, 523 U.S. 833, 843, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (quoting United States v. Lanier, 520 U.S.

259, 272 n. 7, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997)).

Because Manzello's alleged use of force against Kash took place during a brief “seizure,” we apply the Fourth Amendment's

“reasonableness” standard and ask whether his “actions [were] ‘objectively reasonable’ in light of the facts and circumstances

confronting [him], without regard to [his] underlying intent or motivation.” Graham, 490 U.S. at 397, 109 S.Ct. 1865.

Manzello, according to a police report he filed, perceived Kash's movement in the direction of Congressmen Forbes and Lazio

as a threat. He responded by obstructing Kash's path with his back turned toward Kash. Kash does not dispute that he found

his path obstructed by Manzello's back. He also does not dispute that after allegedly tapping Manzello on the shoulder and

then speaking to Manzello in a loud voice, he attempted to maneuver himself past Manzello. Manzello then restrained Kash

and removed him from the meeting hall. He did not strike Kash, even though Manzello believed Kash to be fighting back

and attempting to grab his firearm. After successfully removing Kash from the room, Manzello released him. Deferring to the

“judgment of [a] reasonable officer[ ] on the scene,” who “reasonably, but mistakenly, believed that a suspect was likely to fight

back,” Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 2158, 150 L.Ed.2d 272 (2001), no reasonable jury could conclude that

this brief and minimal use of force against Kash was objectively unreasonable.

*77 [4] Manzello's alleged uses of excessive force against Gambino and Lanzisera did not take place during a seizure. We

therefore analyze them under the substantive due-process rubric, see County of Sacramento, 523 U.S. at 843–44, 118 S.Ct. 1708,

and ask whether Manzello's conduct “shocks the conscience,” see id. at 846–47, 118 S.Ct. 1708 (collecting cases). Manzello

unintentionally elbowed Gambino in the shoulder while attempting to restrain Kash. He allegedly also intentionally elbowed

Lanzisera. Neither sustained any injury. No reasonable jury could conclude that this conduct “shocks the conscience.” See id.

[5] [6] Finally, the plaintiffs' First Amendment retaliation claims fail because they introduced no evidence that the alleged

actions of Purcell and Manzello were motivated by their exercise of First Amendment rights. See Curley v. Vill. of Suffern,

268 F.3d 65, 73 (2d Cir.2001). In fact, the plaintiffs do not assert that they intended to or did engage in any expressive activity

at the Law Day program. Kash testified that it was a coincidence that he had been walking in the direction of Congressmen

Forbes and Lazio; he had intended only to get a cup of coffee from the refreshments table, not to speak to them or anyone

else. Lanzisera speculates that Manzello elbowed him to retaliate for the alleged embarrassment that Lanzisera caused him on a

previous occasion. Even if true, this would suggest the motive of personal vengeance. It would not raise a reasonable inference

that Manzello intended to punish Lanzisera in order to deter the expression of ALR's views.

For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

All Citations

38 Fed.Appx. 73

Footnotes

* Of the United States Court of Appeals for the Eighth Circuit, sitting by designation.

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.

2010 WL 2558624

Only the Westlaw citation is currently available.

This decision was reviewed by West editorial staff and not assigned editorial enhancements.

United States District Court,

E.D. New York.

Peter McCLUSKEY, Plaintiff,

v.

NEW YORK STATE UNIFIED COURT SYSTEM, Chief Judge Hon.

Jonathan Lippman, Gabor & Gabor, David Gabor, Hope Gabor, Defendants.

No. 10–CV–2144 (JFB)(ETB).

|

June 17, 2010.

Attorneys and Law Firms

Peter McCluskey, Lynbrook, NY, pro se.

Anne C. Leahey, New York State Attorney General's Office, Hauppauge, NY, Joan M. Faley, Labatte, Balkan, Colavita &

Contini, LLP, Garden City, NY, for Defendant.

ORDER

JOSEPH F. BIANCO, District Judge.

*1 Pro se plaintiff Peter McCluskey (“plaintiff”) filed a complaint on May 11, 2010 against the defendants, New York State

Unified Court System, Chief Judge Hon. Jonathan Lippman, Gabor & Gabor, David Gabor, and Hope Gabor (collectively

“defendants”).1 The complaint purports to allege claims for deprivation of due process against the New York State Unified

Court System and claims for malpractice against the Gabor defendants. For the reasons that follow, the Court dismisses the

federal claims sua sponte, with prejudice, and declines to exercise supplemental jurisdiction over any state law claims plaintiff

is attempting to assert.

I. Background

A. Facts

Plaintiff's complaint invokes this Court's federal question jurisdiction pursuant to 28 U.S.C § 1331. Plaintiff's complaint alleges

that the Gabor defendants represented plaintiff in a prior lawsuit against Suffolk County Community College. (Compl.¶¶ 9,

12.) In that underlying suit, the action was dismissed by Justice J. Jones Jr., who held that the “alleged fraud was related to

breach of contract,” and that “a fraud claim could have been maintained if the plaintiff had sought special damages caused by

the fraudulent misrepresentation and not recoverable in a breach of contract.” (Id. ¶ 13.) Accordingly, plaintiff's fraud claims

against Suffolk Community College were dismissed.

Plaintiff thereafter filed a legal malpractice action against the Gabor defendants in the New York Supreme Court, Nassau

County, 07/2978, arising out of the underlying representation. (Id. ¶¶ 9, 14.) The complaint filed by plaintiff against the Gabor

defendants alleged malpractice for their failure to seek special damages and failure to appeal the dismissal of the underlying fraud

claim premised upon the Gabor defendants' failure to seek special damages because Justice Diamond found that “Gabor had

sufficiently submitted evidence of special damages”; however, plaintiff's malpractice claim premised upon the failure to appeal

the dismissal of the fraud claim was not dismissed. (Id. ¶ 16.)

On April 7, 2009, the New York State Appellate Division, Second Department, reversed in part Justice Diamond's order

and dismissed plaintiff's remaining malpractice claim, finding that plaintiff could not establish that the defendants committed

malpractice by failing to take an appeal from that order. McCluskey v. Gabor & Gabor, 61 A.D.3d 646, 876 N.Y.S.2d 162,

164 (App.Div.2009). (Id. § 18.) According to the complaint, Justice Diamond thereafter reversed the Appellate Division's

April 7, 2009 order's finding of law with respect to special damages. Specifically, plaintiff alleges that, on August 28, 2009,

Justice Diamond “adhered to his original determination” that the Gabor defendants had submitted adequate evidence of special

damages.2 (See id. ¶ 19, 876 N.Y.S.2d 162.) Thus, Justice Diamond denied plaintiff's motion requesting reinstatement of the

claim against the Gabor defendants for failing to seek special damages. (Id. ¶ 20, 876 N.Y.S.2d 162.) Plaintiff appealed the

August 28, 2009 order, but was denied review by the Appellate Division. (Id. ¶¶ 21–22.) Plaintiff thereafter filed a notice

of appeal to the New York Court of Appeals, but the Court of Appeals dismissed that appeal. (Id. ¶ 23, 876 N.Y.S.2d 162.)

Specifically, plaintiff alleges that “[a]t a session of the court of appeals on April 6, 2010, Chief Judge Lippman presiding,

plaintiff's appeal was dismissed by the court on its own motion for the reason that an appeal from the December 23, 2009 order

was not within its jurisdiction”; further, plaintiff contends that Chief Judge Lippman “failed to take any administrative action

pursuant to his policy responsibility to address the alleged unconstitutional discrimination practiced against pro se litigants in

his lower courts.” (Id. ¶¶ 54–55.)

*2 Plaintiff then filed a motion, pursuant to New York C.P.L.R. § 5015(a)(5) and C.P.L.R. § 2221(e), for an order that would

“implement the appellate determination by reinstating the special damages claim.” (Id. ¶ 26, 876 N.Y.S.2d 162.) Plaintiff alleges

that, at the conference held to discuss plaintiff's motion, “Justice Diamond pressured plaintiff by intimidation to withdraw the

motion under the threat of sanctions.” (Id. ¶¶ 27, 29.) Plaintiff's motion was denied on August 28, 2009, on the grounds that the

Gabor defendants had submitted sufficient evidence of special damages in the underlying action. (Id. ¶ 30, 876 N.Y.S.2d 162.)

Plaintiff alleges that this ruling deprived him of due process, and further contends that he was discriminated against throughout

the proceedings because he was a pro se litigant. (Id. ¶¶ 31–36.)

As a second cause of action in the instant complaint, plaintiff alleges negligence and malpractice by the Gabor defendants.

Specifically, plaintiff alleges that the Gabor defendants, representing plaintiff in the underlying state court action, failed to seek

special damages or appeal the dismissal of the fraud allegations. (Id. ¶¶ 60–61.) These are the same claims raised by plaintiff

in his state court action against these defendants.

B. Procedural History

Plaintiff filed the instant action on May 11, 2010. By letter dated May 27, 2010, the Gabor defendants filed a letter requesting

a pre-motion conference in anticipation of filing a motion to dismiss the instant action based on the statute of limitations, res

judicata, and the Rooker–Feldman doctrine. By Order dated May 27, 2010, this Court ordered plaintiff to file a letter with the

Court addressing why the federal claims asserted in his complaint should not be dismissed by the Court sua sponte based on the

absolute immunity of Chief Judge Jonathan Lippman, the sovereign immunity afforded to the New York State Unified Court

System, and the lack of state action upon which to premise liability under 42 U.S.C. § 1983 and the Fourteenth Amendment

for defendants Gabor & Gabor, David Gabor, and Hope Gabor. By letter dated June 8, 2010, defendants Chief Judge Jonathan

Lippman and the New York State Unified Court System also requested a pre-motion conference in order to file a motion to

dismiss based on judicial immunity, sovereign immunity, and the Rooker–Feldman doctrine. Plaintiff responded to the Court's

Order by letter on June 7, 2010. The Court has fully considered plaintiff's submission, as well as the letter submissions of the

defendants.

191 (2d Cir.2008); McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir.2004). If a liberal reading of the complaint “gives any

indication that a valid claim might be stated,” courts must grant leave to amend the complaint. Cuoco v. Moritsugu, 222 F.3d

99, 112 (2d Cir.2000).

*3 “An action is ‘frivolous' when either: (1) ‘the factual contentions are clearly baseless, such as when allegations are the

product of delusion or fantasy;’ or (2) ‘the claim is based on an indisputably meritless legal theory.’ ” Olushina v. Gonzalez,

No. 06–CV–4030 (JG), 2006 WL 2927158, at *2 (E.D.N.Y. Oct.11, 2006) (dismissing sua sponte § 1983 claim against defense

attorney for lack of state action) (quoting Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.1998)).

Similarly, a complaint fails to state a claim for which relief can be granted when it does not “allege a plausible set of facts

sufficient ‘to raise a right to relief above the speculative level.’ ” See Operating Local 649 Annuity Trust Fund v. Smith Barney

Fund Mgmt. LLC, 595 F.3d 86, 91 (2d Cir.2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167

L.Ed.2d 929 (2007)). This standard does not require “heightened fact pleading of specifics, but only enough facts to state a

claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see also Peterec–Tolino v. N.Y., No. 08–4732–cv, 2010

WL 445643, at *1–2 (2d Cir. Feb.8, 2010) (summary order) (affirming district court's sua sponte dismissal of § 1983 claims

because, inter alia, certain defendants were not state actors).

“[A]ny party or the court sua sponte, at any stage of the proceedings, may raise the question of whether the court has subject

matter jurisdiction.” United Food & Commercial Workers Union, Local 919, AFL–CIO v. Center Mark Prop. Meriden Square,

Inc., 30 F.3d 298, 301 (2d Cir.1994) (quoting Manway Constr. Co. v. Horn. Auth. of Hartford, 711 F.2d 501, 503 (2d Cir.1983)

(internal quotation omitted)). Courts may also dismiss sua sponte claims that are barred by sovereign immunity or judicial

immunity. Matter of Application of the Camardo Law Firm, P.C. v. Dep't of the Army, No. 5:09–CV–654 (FJS/GHL), 2010 WL

1935868, at *2 (N.D.N.Y. May 11, 2010) (“Although the parties do not address this point, the Court, at any time, can sua sponte

raise the issue of subject matter jurisdiction or sovereign immunity.” (citing Grupo Dataflux v. Atlas Global Group, L.P., 541

U.S. 567, 593, 124 S.Ct. 1920, 158 L.Ed.2d 866 (2004) and Warren v. United States, No. 06–CV–0226S, 2009 WL 1663991,

at *2 (W.D.N.Y. June 15, 2009)). Finally, it is not inappropriate for a court to dismiss a claim under Section 1983 where there

is no conceivable basis to find that the defendant was a state actor. See Sommer v. Rankin, 449 F.Supp. 66, 67 (E.D.N.Y.1978)

(“In this case, the claim of state action, which is essential to the invocation of [§ ] 1983, is clearly frivolous. This court cannot

believe that the Court of Appeals intended that sua sponte dismissal should be avoided even in cases such as this, where there

is no conceivable basis for liability under § 1983. Accordingly, the court is of the opinion that in this particular case, such

dismissal would not be inappropriate.”); see also Walton v. Breeyear, No. 9:05–CV–0194 (LEK/DEP), 2007 WL446010, at *5

n. 12 (N.D.N.Y. Feb. 8, 2007); Mendlow v. Seven Locks Facility, 86 F.Supp.2d 55, 59 n. 1 (D.Conn.2000).

III. Discussion

*4 The Court liberally construes plaintiff's pro se complaint to attempt to assert a Fourteenth Amendment Due Process claim

pursuant to § 1983 against each of the defendants, as well as a state law malpractice and negligence claim against the Gabor

defendants. The Court addresses each in turn.

A. Section 1983 Due Process Claims

Section 1983 of Title 42 of the United States Code provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ...

subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.

See 42 U.S.C. § 1983.

Thus, to state a claim under Section 1983, a plaintiff must allege two elements: (1) the defendant acted under color of state law;

and (2) as a result of the defendant's actions, the plaintiff suffered a deprivation of his rights or privileges as secured by the

Constitution of the United States. See Annis v. County of Westchester, 136 F.3d 239, 245 (2d Cir.1998). Here, plaintiff alleges due

process violations under the Fourteenth Amendment by New York State Court of Appeals Chief Judge Jonathan Lippman, by

the New York State Unified Court System, and by the Gabor defendants. The Court examines plaintiff's federal claims against

each of these defendants in turn and determines that plaintiff's claims must be dismissed.

1. The Claims Against Chief Judge Jonathan Lippman

Under the doctrine of absolute judicial immunity, judges are subject to suit only for: (1) “non-judicial actions, i.e., actions not

taken in the judge's judicial capacity;” or (2) “actions, though judicial in nature, taken in the complete absence of all jurisdiction.”

Mireles v. Waco, 502 U.S. 9, 11–12, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991) (internal citations omitted); see Stump v. Sparkman,

435 U.S. 349, 355–56, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). This absolute “judicial immunity is not overcome by allegations

of bad faith or malice,” nor can a judge “ ‘be deprived of immunity because the action he took was in error ... or was in excess

of his authority.’ ” Mireles, 502 U.S. at 11, 12 (quoting Stump, 435 U.S. at 356).

Here, plaintiff fails to allege any actions by Chief Judge Lippman that were performed in his personal capacity or that were

performed outside the scope of his jurisdiction. The only allegations against Chief Judge Lippman in the complaint state that

“[a]t a session of the court of appeals on April 6, 2010, Chief Judge Lippman presiding, plaintiff's appeal was dismissed by the

court on its own motion for the reason that an appeal from the December 23, 2009 order was not within its jurisdiction,” and

that Chief Judge Lippman “failed to take any administrative action pursuant to his policy responsibility to address the alleged

unconstitutional discrimination practiced against pro se litigants in his lower courts.” (Compl.¶¶ 54–55.)

*5 Although plaintiff alleges that the acts of Chief Judge Lippman “were outside the exercise of his judicial functions,” (PL's

Letter at 3), the actions that plaintiff alleges pertaining to Chief Judge Lippman are judicial actions, taken in his judicial capacity

as Chief Judge of the New York State Court of Appeals. In fact, the complaint acknowledges that “[t]he auspices of the Chief

Judge of the State Unified Court System include the supervision, administration and operation of State Courts in accordance

with the New York State Constitution.” (Id. ¶ 4.) Judges have traditionally enjoyed absolute immunity for damages arising out

of judicial acts performed in their judicial capacities. See Mireles v. Waco, 502 U.S. 9, 11–12, 112 S.Ct. 286, 116 L.Ed.2d 9

(1991); Fields v. Soloff, 920 F.2d 1114, 1119 (2d Cir.1990) (“A judge defending against a section 1983 suit is entitled to absolute

immunity from damages for actions performed in his judicial capacity.”); accord Perez v. Cuomo, No. 09–CV–1109 (SLT),

2009 WL 1046137, at *4 (E.D.N.Y. Apr.17, 2009). “[I]f the relevant action is judicial in nature, the judge is immune so long

as [the action] was not taken in the complete absence of jurisdiction.” Huminski v. Corsones, 396 F.3d 53, 75 (2d Cir.2004)

(citing Mireles, 502 U.S. at 11–12). Plaintiff's § 1983 claim against Chief Judge Lippman is plainly barred by the doctrine of

absolute judicial immunity because the claim concerns the Chief Judge's actions while presiding over a session of the Court

of Appeals on April 6, 2010. Specifically, plaintiff merely alleges that the Chief Judge dismissed plaintiff's appeal from the

December 23, 2009 order because it was determined to be outside the Court of Appeals' jurisdiction. Chief Judge Lippman's

actions constituted judicial acts well within his jurisdiction. Given a most liberal reading, plaintiff's claims against the defendant

judge cannot be sustained, and the § 1983 claim is dismissed as to Chief Judge Lippman.

2. The Claims Against the New York State Unified Court System

Plaintiff's complaint does not allege any specific allegations against the New York State Unified Court System. Nonetheless,

the Court construes plaintiff's complaint as attempting to state a claim for violation of his Fourteenth Amendment rights by the

New York State Unified Court System.

The Eleventh Amendment to the United States Constitution provides:

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.

U.S. Const. amend. XI. “The reach of the Eleventh Amendment has ... been interpreted to extend beyond the terms of its text

to bar suits in federal courts against states, by their own citizens or by foreign sovereigns.” State Emples. Bargaining Agent

Coalition v. Rowland, 494 F.3d 71, 95 (2d Cir.2007) (quoting W. Mohegan Tribe & Nation v. Orange County, 395 F.3d 18, 20

(2d Cir.2004)). Absent a state's consent to suit or an express statutory waiver, the Eleventh Amendment bars federal court claims

against states. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). “Sovereign immunity

does not merely constitute a defense to monetary liability or even to all types of liability. Rather, it provides an immunity from

suit.” FMC v. S.C. State Ports Auth., 535 U.S. 743, 766, 122 S.Ct. 1864, 152 L.Ed.2d 962 (2002).

*6 As agencies or arms of the State of New York, its courts are immune from suit under the Eleventh Amendment. See Saint–

Fleur v. City of N.Y., No. 99 Civ. 10433(WHP)(AJP), 2000 WL 280328, at *2 (S.D.N.Y. Mar. 14, 2000) (collecting cases);

Fields v. Walthers, No. 94–CV–1659, 1997 WL 204308, at *2 (N.D.N.Y. Apr. 5, 1997) (“For Eleventh Amendment purposes,

governmental entities of the state that are considered ‘arms of the state’ receive Eleventh Amendment immunity.”). In a case

similar to the instant case, in which a plaintiff alleged several claims against New York state courts, a court in this district held

that sovereign immunity barred the action:

In the present case, New York State has not consented to suit. Moreover, lawsuits against state officers

acting [in] their official capacity and lawsuits against state courts are considered to be lawsuits against

the state. Will v. Mich. Dep't of State Police, 491 U.S. 58, 70–71, 109 S.Ct. 2304, 105 L.Ed.2d 45

(1989); Abrahams, 473 F.Supp.2d at 563 (citing Kentucky v. Graham, 473 U.S. 159, 169, 105 S.Ct. 3099,

87 L.Ed.2d 114 (1985); Al–Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir.1989)). Thus,

plaintiff's claims against New York State, its officers, and its courts may only proceed if they are brought

pursuant to a valid Congressional abrogation of state immunity.

McNamara v. Kaye, No. 06–CV–5169 (DLI)(CLP), 2008 WL 3836024, at *8 (E.D.N.Y. Aug. 13, 2008). This Court agrees with

that analysis. Accordingly, plaintiff's federal claims against the New York State Unified Court System are barred by sovereign

immunity, and must be dismissed.3

3. The Claims Against the Gabor Defendants

An individual acts under color of state law when he or she exercises power “possessed by virtue of state law and made possible

only because the wrongdoer is clothed with the authority of state law.” Polk County v. Dodson, 454 U.S. 312, 317–18, 102

S.Ct. 445, 70 L.Ed.2d 509 (1981) (quoting United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941)). In the

instant action, it is clear from the allegations of the complaint that the Gabor defendants do not qualify as state actors within the

meaning of § 1983. To that end, it is axiomatic that neither public defenders, such as Legal Aid attorneys, nor court-appointed

counsel, nor private attorneys, act under the color of state law merely by virtue of their position. Polk County, 454 U.S. at 325

(stating that a “public defender does not act under color of state law when performing a lawyer's traditional functions as counsel

to a defendant in a criminal proceeding”); Grant v. Hubert, No. 09–CV–1051, 2009 WL 764559, at *1 (E.D.N.Y. Mar. 20, 2009)

(“It is well settled that private attorneys do not act under color of state law and are not state actors simply by virtue of their

state-issued licenses to practice law.”); see also Rodriguez v. Weprin, 116 F.3d 62, 65–66 (2d Cir.1997) (affirming dismissal

act ‘under color of state law’ and therefore are not subject to suit under 42 U.S.C. § 1983” (collecting cases)). Thus, plaintiff's

claim is both frivolous—because the legal theory on which it is based is “indisputably meritless”—and fails to state a claim for

which relief can be granted because plaintiff cannot assert a plausible § 1983 claim against his attorney. See Kash v. Honey, 38 F.

App'x 73, 75–76 (2d Cir.2002) (concluding that there was no state action by a private lawyer who plaintiff alleged “maliciously,

for purpose or purposes personal to him, including the purpose of penalizing [plaintiff] for exercising his First Amendment

rights ... falsely charged [plaintiff] in an accusatory instrument”); Licari v. Voog, No. 08–4920–pr, 2010 WL 1647456, at *1

(2d Cir. Apr.26, 2010) (affirming district court's sua sponte dismissal of § 1983 claim against defense attorney because claim

was frivolous under § 1915(e)(2)(B)(i)).

*7 Plaintiff argues that the complaint does not premise liability for the Gabor defendants under 42 U.S.C. § 1983, but rather

alleges that the action is brought under the Fourteenth Amendment. However, the Fourteenth Amendment “applies to acts of

the states, not to acts of private persons or entities.” Rendell–Baker v. Kohn, 457 U.S. 830, 837–38, 102 S.Ct. 2764, 73 L.Ed.2d

418 (1982). Accordingly, if plaintiff's claims against the Gabor defendants are not brought under § 1983, there is still no basis

for relief. Thus, any purported federal claims against the Gabor defendants are dismissed because none of the Gabor defendants

was a state actor.4

B. State Law Claims

Having determined that plaintiff's federal claims do not survive defendants' motions to dismiss, the Court concludes that

retaining jurisdiction over any state law claims is unwarranted. 28 U.S.C. § 1367(c)(3); United Mine Workers of Am. v. Gibbs,

383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). “In the interest of comity, the Second Circuit instructs that ‘absent

exceptional circumstances,’ where federal claims can be disposed of pursuant to Rule 12(b)(6) or summary judgment grounds,

courts should ‘abstain from exercising pendent jurisdiction.’ ” Birch v. Pioneer Credit Recovery, Inc., No. 06–CV–6497T, 2007

WL 1703914, at *5 (W.D.N.Y. June 8, 2007) (quoting Walker v. Time Life Films, Inc., 784 F.2d 44, 53 (2d Cir.1986)).

Therefore, in the instant case, the Court, in its discretion, “ ‘decline[s] to exercise supplemental jurisdiction’ “ over plaintiff's

state law claims because “it ‘has dismissed all claims over which it has original jurisdiction.’ “ Kolari v. N.Y.-Presbyterian

Hosp., 455 F.3d 118, 122 (2d Cir.2006) (quoting 28 U.S.C. § 1367(c)(3)); see also Cave v. E. Meadow Union Free Sch. Dist.,

514 F.3d 240, 250 (2d Cir.2008) (“We have already found that the district court lacks subject matter jurisdiction over appellants'

federal claims. It would thus be clearly inappropriate for the district court to retain jurisdiction over the state law claims when

there is no basis for supplemental jurisdiction.”); Karmel v. Claiborne, Inc., No. 99 Civ. 3608(WK), 2002 WL 1561126, at *4

(S.D.N.Y. July 15, 2002) (“Where a court is reluctant to exercise supplemental jurisdiction because of one of the reasons put

forth by § 1367(c), or when the interests of judicial economy, convenience, comity and fairness to litigants are not violated by

refusing to entertain matters of state law, it should decline supplemental jurisdiction and allow the plaintiff to decide whether

or not to pursue the matter in state court.”).

Accordingly, pursuant to 28 U.S.C. § 1367(c)(3), the Court declines to retain jurisdiction over any remaining state law claims

given the absence of any federal claims that survive.

IV. Leave to Replead

The Court has considered affording plaintiff an opportunity to amend the complaint, For man v. Davis, 371 U.S. 178, 182, 83

S.Ct. 227, 9 L.Ed.2d 222 (1962), but declines to do so, finding that the deficiencies therein are not such that could be cured by

amending the complaint. O'Hara v. Weeks Marine, Inc., 294 F.3d 55, 69 (2d Cir.2002).

V. Conclusion

the doctrines of judicial immunity, sovereign immunity, and the Rooker–Feldman doctrine. Furthermore, the Court declines to

exercise supplemental jurisdiction over plaintiff's purely state law claims in the absence of any federal claims.

SO ORDERED.

All Citations

Not Reported in F.Supp.2d, 2010 WL 2558624

Footnotes

1 For ease of reference, Gabor & Gabor, David Gabor, and Hope Gabor are referred to collectively as the “Gabor

defendants.”

2 Plaintiff's complaint does not make it clear how Justice Diamond's August 28, 2009 opinion was inconsistent with the

Appellate Division's decision. Upon review of the Appellate Division's opinion, it appears that the Appellate Division

only reversed Justice Diamond's order insofar as it failed to dismiss plaintiff's claims against the Gabor defendants for

failure to pursue an appeal. Justice Diamond's August 28, 2009 Order noted this, specifically: “[c]ontrary to plaintiff's

argument, Justice Jones did not determine that defendants failed to offer evidence of special damages in the underlying

action. Rather, Justice Jones appears to have overlooked the evidence of plaintiff's taking the HB Studios course and its

relevance to the special damages issue. Perhaps because neither Justice Jones nor this court considered the HB Studios

course, the Appellate Division failed to discuss this evidence in granting summary judgment to defendants with respect

to the failure to appeal malpractice claim. Nevertheless, plaintiff has failed to establish that this court overlooked or

misapprehended any matter of fact or law which would change its prior determination with respect to the failure to offer

evidence of special damages malpractice claim.” (Gabor Defs.' Ex. E at 4.) Justice Diamond's opinion further notes “[a]s

a preliminary matter, the court notes that its granting of summary judgment to defendants with respect to the malpractice

claim based upon failure to offer evidence of special damages was not before the Appellate Division.” (Id. at 5.)

3 The cases cited by plaintiff on this issue are inapposite. Plaintiff relies on cases that involve judicial review of agency

factual findings and interpretations of statutes or regulations. See, e.g., Kurcsics v. Merchants Mut. Ins. Co., 49 N.Y.2d

451, 426 N.Y.S.2d 454, 403 N.E.2d 159 (N.Y.1980); N.Y. Times Co. v. City of N.Y. Comm'n on Human Rights, 41 N.Y.2d

345, 393 N.Y.S.2d 312, 361 N.E.2d 963 (N.Y.1977). Moreover, Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25

L.Ed.2d 287 (1970), discusses whether a state that terminates public assistance payments to a particular recipient without

affording him the opportunity for an evidentiary hearing prior to termination denies the recipient procedural due process

in violation of the Fourteenth Amendment. Id. at 255. Here, by contrast, plaintiff was not denied a hearing, but rather

was afforded several opportunities to be heard in court.

4 To the extent that plaintiff attempts to assert some other federal claim against the Gabor defendants, such a claim would

be barred by the Rooker–Feldman doctrine. Pursuant to the Rooker–Feldman doctrine, “lower federal courts lack subject

matter jurisdiction over a case if the exercise of jurisdiction over that case would result in the reversal or modification of

a state court judgment,” Hachamovitch v. DeBuono, 159 F.3d 687, 693 (2d Cir.1998) (discussing Rooker v. Fidelity Trust

Co., 263 U.S. 413, 415–16, 44 S.Ct. 149, 68 L.Ed. 362 (1923); and Dist. of Colombia Court of Appeals v. Feldman, 460

U.S. 462, 476, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983)), or if the federal claim asserted is “inextricably intertwined” with

an earlier state-court judgment, Abrahams v. Appellate Div. of Supreme Court, 473 F.Supp.2d 550, 555 (S.D.N.Y.2007)

for the Rooker–Feldman doctrine to apply:

First, the federal-court plaintiff must have lost in state court. Second, the plaintiff must “complain[ ] of injuries

caused by [a] state-court judgment[.]” Third, the plaintiff must “invit[e] district court review and rejection of [that]

judgment[ ].” Fourth, the state-court judgment must have been “rendered before the district court proceedings

commenced”-i.e., Rooker–Feldman has no application to federal-court suits proceeding in parallel with ongoing

state-court litigation.

Hoblock v. Albany County Bd. of Elections, 422 F.3d 77, 85 (2d Cir.2005) (quoting Exxon Mobil Corp. v. Saudi Basic

Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005)). In the present case, plaintiff seeks review of

the state courts' decisions regarding his malpractice claims against the Gabor defendants. Plaintiff's allegations against

the Gabor defendants largely reiterate the claims that plaintiff made against the Gabor defendants in the original state

court malpractice action, which was dismissed on the merits in state court. See McCluskey v. Gabor & Gabor, 61

A.D.3d 646, 876 N.Y.S.2d 162 (App.Div.2009); McCluskey v. Gabor & Gabor, 856 N.Y.S.2d 499 (Sup.Ct.2008); see

also (Gabor Defs.' Ex. E.). These allegations are an attempt by plaintiff to invite this Court to review and reject those

earlier state court judgments. Plaintiff's state law malpractice claims fit squarely within the boundaries of the Rooker–

Feldman doctrine. Accordingly, plaintiff's claims should also be dismissed on this ground.

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.

335 Fed.Appx. 102

This case was not selected for publication in West's Federal Reporter.

United States Court of Appeals,

Second Circuit.

Sandra SHEEHY, et al., Plaintiffs–Appellants,

v.

Thomas P. BROWN, et al., Defendants–Appellees.

No. 08–0102–cv.

|

June 23, 2009.

Synopsis

Background: Plaintiffs appealed, pro se, a judgment of the United States District Court for the Western District of New York,

Telesca, J., sua sponte dismissing their complaint.

Holdings: The Court of Appeals held that:

[1] plaintiffs failed to establish § 1983 claims arising out of their allegedly false prosecutions, and

[2] plaintiffs failed to state a claim for conspiracy to interfere with civil rights.

Affirmed.

West Headnotes (2)

[1] Civil Rights Criminal prosecutions

Plaintiffs failed to allege that their convictions or sentences were invalidated or otherwise expunged, as required to

establish § 1983 claims arising out of their allegedly false prosecutions. 42 U.S.C.A. § 1983.

61 Cases that cite this headnote

[2] Conspiracy Civil rights conspiracies

Plaintiffs failed to allege the formation of a conspiracy, and overt acts in furtherance of such conspiracy, as required

to state a claim for conspiracy to interfere with civil rights. 42 U.S.C.A. § 1985.

424 Cases that cite this headnote

*103 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND DECREED that the judgment of the

district court is AFFIRMED.

Attorneys and Law Firms

Sandra Sheehy, pro se.

Robert Sheehy, pro se.

Patrick Sheehy, pro se.

Bobbi Sheehy, pro se.

Billie Sheehy, pro se.

Casey Sheehy, pro se.

Sherry Sheehy, pro se.

PRESENT: Hon. PIERRE N. LEVAL, Hon. ROSEMARY S. POOLER and Hon. B.D. PARKER, Circuit Judges.

SUMMARY ORDER

**1 Plaintiffs–Appellants Sandra, Robert, Patrick, Bobbi, Billie, Casey, and Sherri Sheehy, pro se, appeal from the judgment of

the United States District Court for the Western District of New York (Telesca, J.), sua sponte dismissing the complaint, pursuant

to 28 U.S.C. § 1915(e)(2)(B)(ii). We assume the parties' familiarity with the facts, procedural history and issues on appeal.

Having reviewed de novo the district court's sua sponte dismissal under § 1915(e), see Giano v. Goord, 250 F.3d 146, 149–50

(2d Cir.2001), we conclude that the district court did not err in dismissing Appellants' complaint.

[1] First, any 42 U.S.C. § 1981 or § 1983 claim against Appellees Lucy or Edward Sherwood, Thomas Fuoco, Mark

Wattenberg, or Steve Presutti was properly dismissed, as private actors and institutions generally are not proper § 1983

defendants. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (§ 1983

actions do not reach purely private conduct). Additionally, for an individual to recover damages for an allegedly unconstitutional

conviction or imprisonment, he or she “must prove that the conviction or sentence has been reversed on direct appeal, expunged

by executive order, declared invalid by a state tribunal ... or called into question by a federal court's issuance of a writ of habeas

corpus....” Heck v. Humphrey, 512 U.S. 477, 486–87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Thus, any § 1983 claims arising

out of the allegedly false prosecutions of Sandra, Patrick, or Robert Sheehy were appropriately dismissed, as Appellants did

not allege that their convictions or sentences were invalidated or otherwise expunged. Id.

*104 As for the American Society for the Prevention of Cruelty to Animals, the Allegany County Society for the Prevention

of Cruelty to Animals, and Appellee Presutti, claims against these defendants were properly dismissed, as Appellants did not

allege any wrongdoing on their part or specify how they were involved in the constitutional violations alleged. See 28 U.S.C.

§ 1915(e)(2). Next, to the extent that Appellants challenge the conduct of county district attorneys or state court judges, such

actors are entitled to immunity. Nixon v. Fitzgerald, 457 U.S. 731, 766, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982); Imbler v.

Pachtman, 424 U.S. 409, 430–31, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct.

2606, 125 L.Ed.2d 209 (1993).

Appellants also assert § 1983 claims against: (1) county sanitation workers for entering the Sheehys' property, in violation of their

property and privacy rights; (2) state troopers for use of excessive force and retaliation; and (3) Allegany County Department of

Social Services employees for entering the Sheehys' property and removing the Sheehy children from their homes, in violation

of their First, Fourth, and Ninth Amendment rights. Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a

(2009). Thus, a pleading that only “tenders naked assertions devoid of further factual enhancement” will not suffice. Id. (internal

citations and alterations omitted). We conclude that because the Appellants' § 1983 allegations are so vague as to fail to give

the defendants adequate notice of the claims against them, the district court did not err in dismissing them.

**2 [2] Appellants also assert claims under § 1985, for which a plaintiff must allege: (1) a conspiracy, (2) which has an intent

or purpose to deprive a person of equal protection of the law; (3) an act in furtherance of the conspiracy; (4) which results in

an injury to a person, or a person's property, or the deprivation of a federal constitutional right. See Mian v. Donaldson, Lufkin

& Jenrette Securities Corp., 7 F.3d 1085, 1087 (2d Cir.1993) (per curiam). Here, the Appellants' claims of conspiracy failed to

specifically allege (1) the formation of a conspiracy; or (2) overt acts in furtherance of such conspiracy. Thus, the district court

correctly dismissed any claims brought pursuant to §§ 1985 and 1986.

To the extent that Appellants assert claims based on the violation of federal criminal statutes, such as 18 U.S.C. §§ 241–242,

these claims are not cognizable, as federal criminal statutes do not provide private causes of action. See Robinson v. Overseas

Military Sales Corp., 21 F.3d 502, 511 (2d Cir.1994). In addition, any claim brought under 42 U.S.C. § 2000d, which prohibits

the exclusion of individuals from a federally funded program or activity on the basis of race, color, or national origin, properly

was dismissed, as Appellants did not allege that they were excluded from a federally funded program or activity and, thus, no

claim exists under that statute. Similarly, although former 42 U.S.C. § 13981 authorized a cause of action arising out of a crime

of violence motivated by gender, the Supreme Court has held that statute unconstitutional. See United States v. Morrison, 529

U.S. 598, 601, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000).

We have reviewed Appellants' remaining arguments and find them to be without merit. We also note here that we see no *105

indication in the record that Appellants perfected service on any of the defendants in this case.

Therefore, for the reasons stated above, the judgment of the district court is AFFIRMED.

All Citations

335 Fed.Appx. 102, 2009 WL 1762856

End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.

2024 WL 1266245

Only the Westlaw citation is currently available.

United States Court of Appeals, Second Circuit.

Paul WHITE, Plaintiff-Appellant,

v.

Sandra SCHMIDT, aka Sandra Kroger Schmidt, aka Sandra K. Schmidt, Defendant-Appellee,

Pat Doe, (1–10), Defendants.

Paul White, Plaintiff-Appellant,

v.

Teodocia Santos, Ella Abney, Personally and as Executrix of

the Estate of Albert Abney, Pat Doe, Defendants-Appellees.*

22-1267, 22-1911

|

March 26, 2024

Appeals from judgments of the United States District Court for the Northern District of New York (Mae A. D'Agostino, District

Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgments of the

district court are AFFIRMED IN PART and VACATED IN PART and REMANDED.

Attorneys and Law Firms

FOR PLAINTIFF-APPELLANT: Paul White, pro se, Coxsackie, NY.

FOR DEFENDANTS-APPELLEES: No appearance.

PRESENT: ROBERT D. SACK, WILLIAM J. NARDINI, MYRNA PÉREZ, Circuit Judges.

SUMMARY ORDER

*1

* * *

Plaintiff-Appellant Paul White, pro se and incarcerated, appeals from the April 26, 2022, and August 1, 2022, sua sponte

dismissals of two federal lawsuits (Mae A. D'Agostino, District Judge), each pursuant to the Rooker-Feldman doctrine. White's

appeals have been considered in tandem and consolidated for disposition. In 2015, White was convicted in New York state court

of grand larceny and fraud, stemming from a scheme to defraud investors in a North Carolina real estate development. See Spota

v. White, No. 29681-12, 2016 WL 6427362, at *2, 4 (N.Y. Sup. Ct. Suffolk Cnty. Oct. 28, 2016) (explaining the background of

the criminal case in a decision on a civil forfeiture proceeding). The Supreme Court, Suffolk County, awarded $2.975 million

in restitution to his victims, who included Sandra Schmidt, Teodocia Santos, and Ella and Albert Abney (the “Abneys”). Id. at

*2. White's appeal of the criminal judgment is, as of the time of writing, still pending.

In 2014, the Suffolk County District Attorney's Office brought a civil forfeiture action against White and obtained a $2.4

million judgment. Id. at *4, 9. After the judgment was entered, White retained an attorney who obtained a decision in a North

ownership of the property.

In 2017, White sued Schmidt and the Abneys in the Eastern District of New York, claiming that they had provided false

statements to the Suffolk County District Attorney's Office and had testified falsely at grand jury proceedings and at his criminal

trial, which resulted in their unjust enrichment by virtue of the restitution judgment that had been entered in their favor. In two

different orders, the Eastern District dismissed the action, reasoning that the defendants were entitled to witness immunity, and

in the alternative, the court lacked subject matter jurisdiction to entertain the unjust enrichment claim under Rooker-Feldman.

See generally White v. Abney, No. 17-cv-4286, 2020 WL 5848647 (E.D.N.Y. Sept. 30, 2020); White v. Abney, No. 17-cv-4286,

2021 WL 1176218 (E.D.N.Y. Mar. 29, 2021).

In 2021, White filed the actions underlying these appeals. He sued Schmidt in the Northern District of New York, claiming that

the restitution judgment had been satisfied by the North Carolina decision and that she had been unjustly enriched by a sum

that he had separately paid to her. In a separate action, he sued Santos and the Abneys, raising substantially identical claims.

In 2022, the district court sua sponte dismissed each action as barred under the Rooker-Feldman doctrine and, alternatively, by

collateral estoppel or res judicata, based on the preclusive effect of the Eastern District's earlier Rooker-Feldman procedural

holding. See generally White v. Schmidt, No. 21-cv-854, 2022 WL 1222805 (N.D.N.Y. Apr. 26, 2022); White v. Santos, No. 21-

cv-417, 2022 WL 3025723 (N.D.N.Y. Aug. 1, 2022). White timely appealed. We assume the parties’ familiarity with the case.

*2 We review de novo a sua sponte dismissal of a complaint, including a dismissal based on collateral estoppel, res judicata,

or lack of subject matter jurisdiction under Rooker-Feldman. Meadows v. United Servs., Inc., 963 F.3d 240, 243 (2d Cir. 2020)

(sua sponte dismissal); Comput. Assocs. Int'l, Inc. v. Altai, Inc., 126 F.3d 365, 368 (2d Cir. 1997) (collateral estoppel and res

judicata); Edwards v. McMillen Cap., LLC, 952 F.3d 32, 35 (2d Cir. 2020) (Rooker-Feldman). When reviewing a sua sponte

dismissal, we “accept all of the facts alleged in the complaint as true and draw all inferences in the plaintiff's favor.” Harnage

v. Lightner, 916 F.3d 138, 140–41 (2d Cir. 2019).1

Recognizing the “special solicitude” this Court must afford pro se litigants, see Rosa v. Doe, 86 F.4th 1001, 1007 (2d Cir. 2023),

we nevertheless conclude that White's claims against Schmidt and the Abneys are barred by res judicata, or claim preclusion.

“[C]laim preclusion ... operates in two ways: (1) it bars claims that were brought and decided in a prior litigation; and (2) it

bars all other claims relating to the same transaction against the same defendant that could have been brought at that time.” N.

Assurance Co. of Am. v. Square D Co., 201 F.3d 84, 87 (2d Cir. 2000). White v. Abney involved claims by White against Schmidt

and the Abneys, so claim preclusion bars him from now raising any claims “relating to the same transaction ... that could have

been brought” at the time he filed suit in White v. Abney. Id. White alleges that the following had occurred before he filed his

complaint in White v. Abney: (1) the Suffolk County Court entered restitution judgments in favor of Santos, the Abneys, and

Schmidt against White, (2) White obtained a decision from the North Carolina Superior Court determining that the defendants

in these cases held valid deeds for the properties at issue, and (3) White paid approximately $31,000 each to Schmidt and the

Abneys in partial satisfaction of the restitution judgments.

In the present cases, White seeks a declaratory judgment that the Suffolk County Court restitution judgments against him were

satisfied by the North Carolina decision, and a return of the money he has paid to the defendants based on a theory of unjust

enrichment distinct from the theory of unjust enrichment White relied on in White v. Abney. However, because White allegedly

paid the defendants a partial restitution before the North Carolina decision was issued, and the North Carolina decision was

issued before White initiated White v. Abney, White could have included his current claims for declaratory relief and unjust

enrichment against Schmidt and the Abneys in White v. Abney. Accordingly, White's claims against Schmidt and the Abneys

are barred by res judicata.

Santos, however, was not included as a defendant in White v. Abney, so claim preclusion cannot apply to White's current claims

against Santos. See N. Assurance, 201 F.3d at 87. We therefore consider whether White's claims against Santos are barred under

Feldman doctrine, “federal district courts lack jurisdiction over suits that are, in substance, appeals from state-court judgments.”

Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 84 (2d Cir. 2005). For a federal court to abstain under Rooker-Feldman,

*3 (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.

Plymouth Venture Partners, II, L.P. v. GTR Source, LLC, 988 F.3d 634, 641 (2d Cir. 2021). Here, the relevant state-court judgment

is the criminal restitution judgment, which White alleges has been satisfied, not the civil forfeiture judgment. The civil forfeiture

court did not address White's challenge to the restitution order, explaining instead that White's challenge was an improper

collateral attack on the criminal conviction, which had to be raised instead on direct criminal appeal. See Spota, 2016 WL

6427362, at *4. Thus, if White is complaining of an injury from a state-court judgment, the relevant judgment is the criminal

restitution judgment.

The application of Rooker-Feldman here was improper because the criminal restitution judgment was not final at the time the

federal lawsuit commenced. In Hunter v. McMahon, 75 F.4th 62, 65, 67, 70–71 (2d Cir. 2023), this Court concluded that the

Rooker-Feldman doctrine could not apply when an appeal remains pending in state court at the time a complaint is filed, because

Rooker-Feldman applies only after state-court proceedings have “ended.” Because White's criminal appeal remains pending,

the relevant state court proceeding had not concluded before White filed his complaint. Accordingly, the district court erred by

dismissing the complaint based on Rooker-Feldman.

Although the district court alternatively dismissed the complaint on the basis of collateral estoppel, we do not affirm on this

ground. In White v. Abney, the Eastern District dismissed White's complaint against Schmidt under the Rooker-Feldman doctrine.

Abney, 2020 WL 5848647, at *7. While collateral estoppel can bar reconsideration even of erroneous prior rulings, our decision

in Hunter amounted to a significant clarification of our law on this fairly significant issue of Rooker-Feldman’s proper scope.

See Faulkner v. Nat'l Geographic Enters. Inc., 409 F.3d 26, 37 (2d Cir. 2005) (“[E]ven where the specified elements of collateral

estoppel are present, reexamination of a legal issue is appropriate where there has been a change in the legal landscape after the

decision claimed to have preclusive effect.”). Accordingly, we do not affirm the judgment based on the preclusive effect that

the Rooker-Feldman holding in White v. Abney might have.

* * *

In sum, the district court erred by relying on the Rooker-Feldman doctrine to sua sponte dismiss White's complaints. We decline

to affirm on the alternative grounds of collateral estoppel. However, the district court's judgments with respect to Schmidt and

the Abneys can be affirmed on the alternative ground of res judicata. We express no view on the merits (or lack thereof) of the

underlying suit against Santos, which is better addressed by the district court in the first instance.2 Therefore, the judgments

of the district court are AFFIRMED IN PART and VACATED IN PART and REMANDED for further proceedings.

All Citations

Not Reported in Fed. Rptr., 2024 WL 1266245

Footnotes

* The Clerk of Court is directed to consolidate these appeals for purposes of decision.

1 Unless otherwise indicated, case quotations omit all internal quotation marks, alteration marks, footnotes, and citations.

2 We acknowledge that the district court may decide that a stay is warranted pending the outcome of the criminal restitution

judgment appeal. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 292 (2005) (“Comity or abstention

doctrines may, in various circumstances, permit or require the federal court to stay ... the federal action in favor of the

state-court litigation.”).

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