Petition for Writ of Certiorari — Patricia Gill, Petitioner v. Mercy College, et al.

Case 18-1470, Document 59-1, 04/16/2019, 2540768, Pagel of 4

18-1470-cv

Gill v. Mercy College et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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 TO A SUMMARY

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

At a stated term of the United States Court of Appeals for the Second Circuit,

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of

New York, on the 16th day of April, two thousand nineteen.

PRESENT:

GUIDO CALABRESI,

DEBRA ANN LIVINGSTON,

RAYMOND J. LOHIER, JR.,

Circuit Judges.

t%

Patricia Gill,

Plaintiff-Appellant,

18-1470-cv

v.

New York City Commission on Human Rights,

Defendant,

Mercy College, Evan Imber-Black, Michael

Sperling, Lois Wims, Kimberly Cline, Shelly

Alkin, Deidre Whitman,

Defendants-Appellees.

FOR PLAINTIFF-APPELLANT:

Patricia Gill, pro se,

Bronx, NY.

FOR DEFENDANTS-APPELLEES:

Jeffrey S. Kramer, Locke Lord LLP,

New York, NY.

Case 18-1470, Document 59-1, 04/16/2019, 2540768, Page2 of 4

Appeal from an order of the United States District Court for the Southern District of New

York (Roman, J).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-Appellant Patricia Gill (“Gill”), pro se, sued Mercy College and six of its

administrators pursuant to 42 U.S.C. § 1983 based on an alleged Eighth Amendment violation.

Liberally construed, Gill asks the district court to “reverse the decisions” of the New York

Commission on Human Rights and the New York State courts, which previously rejected her

argument that the college discriminated against her on the basis of disability (dyslexia and vision

impairments) under the New York City Administrative Code by denying her admission into its

Marriage & Family Therapy Program (“the Program”). The district court granted the motion to

dismiss made by Defendants-Appellees, Mercy College and various school employees, under

Federal Rule of Civil Procedure 12(b)(1) on the ground that, inter alia, relief in federal court was

barred by the Rooker-Feldman doctrine. Gill appealed. We assume the parties’ familiarity with

the underlying facts, procedural history, and issues on appeal.

When a district court grants a defendant’s Rule 12(b)(1) motion to dismiss, “we review the

district court’s factual findings for clear error and its legal conclusions de novo.” See Luckett v.

Bure, 290 F.3d 493, 496 (2d Cir. 2002). After “[cjonstruing all ambiguities and drawing all

inferences” in a plaintiffs favor, a district court may properly dismiss a case for lack of subject

matter jurisdiction under Rule 12(b)(1) if it “lacks the statutory or constitutional power to

adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

2

Case 18-1470, Document 59-1, 04/16/2019, 2540768, Page3 of 4

“When a federal suit follows a state suit, the former may, under certain circumstances, be

prohibited by what has become known as the Rooker-Feldman doctrine.” Sung Cho v. City of

New York, 910 F.3d 639, 644 (2d Cir. 2018). This Court’s review of a district court’s application

of Rooker-Feldman is de novo. Id. The doctrine “established the clear principle that federal

district courts lack jurisdiction over suits that are, in substance, appeals from state-court

judgments.” Hoblock v. Albany Cty. Bd. of Elections, 422 F.3d 77, 84 (2d Cir. 2005). It has

emerged as a response to complaints that “invited federal courts of first instance to review and

reverse unfavorable state-court judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544

U.S. 280, 283 (2005). “Since federal district courts are granted original—and not appellate—

jurisdiction, cases that function as de facto appeals of state-court judgments are therefore

jurisdictionally barred.” Sung Cho, 910 F.3d at 644. Courts are deprived of jurisdiction under

this doctrine when four requirements are met: “(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.” Id. at 645 (citing

Hoblock, 422 F.3d at 85).

All four requirements are met here. First, Gill lost before the New York State Supreme

Court and the Appellate Division, First Department, and the New York Court of Appeals dismissed

her motion for leave to appeal, satisfying the first element. See id. (“[T]he federal-court plaintiff

must have lost in state court. .. .”). The fourth prong is also easily met, as Gill’s state-court case

concluded in February 2017 when the New York Court of Appeals denied her motion for leave to

appeal, but she did not file her district court action until March 2017. Hoblock, 422 F.3d at 85

3

Case 18-1470, Document 59-1, 04/16/2019, 2540768, Page4 of 4

(“[T]he state-court judgment must have been rendered before the district court proceedings

commenced . ..(internal quotation marks omitted)).

The second and third elements—whether Gill is complaining of injury from the state court

judgment and whether she invited district court review and rejection of that judgment—are also

satisfied. For Rooker-Feldman to apply, the federal suit must “complain[ ] of injury from a statecourt judgment and seek[] to have that state-court judgment reversed.”

Id. at 86.

By

incorporating documents from her state court actions and by not asserting any independent claims

or facts—other than a passing and unexplained reference to an Eighth Amendment claim—the

district court complaint seeks only the same relief Gill sought most recently before the New York

Court of Appeals: reversal of the earlier court decisions and admission into the Program. In fact,

Gill’s complaint explicitly states that she is “asking United States District Court to reverse the

decisions the lower courts made.” App’x at 34. It is therefore clear that in filing her federal

com plaint, Gill complains of only those injuries caused by the state courts’ refusal to order her

admittance into the Program and seeks to reverse their judgments. But only the U.S. Supreme

Court can address such an issue. Sung Cho, 910 F.3d at 644 n.4. Accordingly, the second and

third Rooker-Feldman prongs are satisfied as well.

We have considered all of Gill’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

4

Case 7:17-cv-01769-NSR Document 27

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PATRICIA GILL

Plaintiff,

-against-

17 CIVIL 1769 (NSR)

JUDGMENT

MERCY COLLEGE, EVAN IMBER-BLACK,

MICHAEL SPERLING, LOIS WIMS, SHELLY

ALKIN, DEIDRE WHITMAN and KIMBERLY

CLINE.

Defendants.

•X

It is hereby, ORDERED, ADJUDGED AND DECREED: That for the reasons

stated in the Court's Opinion and Order dated April 23,2018, Defendants’ motion is granted and

the complaint is dismissed with prejudice for lack of subject matter jurisdiction; accordingly, this

case is closed.

Dated: New York, New York

April 24, 2018

RUBY J. KRAJICK

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Clerf^of Co,

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Depdty Clerk

THIS DOCUMENT WAS BN

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Case 7:17-cv-01769-NSR Document 26 Filed 04/23/18 Page 1 of 8

USDCSDNY

DOCUMENT

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ELECTRONICALLY FILED

DOC #:________

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DATE FILED: ^-lrZ3 j£

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

PATRICIA GILL,

Plaintiff,

-againstMERCY COLLEGE, EVAN IMBER-BLACK,

MICHAEL SPERLING, LOIS WIMS, SHELLY

ALKIN, DEIDRE WHITMAN and KIMBERLY

CLINE.

No. 17-cv-1769 (NSR)

OPINION & ORDER

Defendants.

NELSON S. ROMAN, United States District Judge

Pro se plaintiff Patricia Gill (“Plaintiff”) brought this action pursuant to 42 U.S.C. § 1983

against Defendants, Mercy College (“Mercy”), Evan Imber-Black, Michael Sperling, Lois Wims,

Shelly Alkin, Deidre Whitman, and Kimberly Cline (collectively “Defendants”). (See Complaint,

(“Compl.”) ECF No. 2.) Before this Court is Defendants’ motion to dismiss Plaintiff s Complaint

(“Defendants’ Motion”) filed on August 29,2017. (See ECF No. 20.) For the following reasons,

Defendants’ Motion is GRANTED and the complaint is dismissed with prejudice.

PROCEDURAL BACKGROUND1

The following procedural facts- which are taken from the Complaint, documents annexed

thereto, and matters of which the Court may take judicial notice2 - are construed in the light most

1 In the exercise of judicial restraint, this Court need not to address the factual allegations pertaining to Plaintiff’s

claims, as the Court lacks subject matter jurisdiction over them.

2 The Court will take judicial notice of the documents attached to Jeffrey S. Kramer’s Declaration in Support of

Defendants’ Motion to Dismiss (ECF No. 22) (“Kramer Deck”) and consider it for purposes of this motion, as

documents which are either incorporated by reference or integral to the Complaint. Nicosia v. Amazon.com, Inc., 834

F.3d 220,230 (2d Cir. 2016); see also Chambers v. Time Warner, Inc., 282 F.3d at 153 (2d Cir. 2002).

1

Case 7:17-cv-01769-NSR Document 26 Filed 04/23/18 Page 2 of 8

favorable to Plaintiff, as she is the non-moving party.3 See, e.g., Kleinman v. Elan Corp., 706 F.3d

145, 152 (2dCir. 2013); Gonzalez v. Hasty, 651 F.3d 318, 321 (2d Cir. 2011).

On two separate occasions Plaintiff applied for admission to Mercy’s graduate “Marriage

and Family Therapy Program” (the “Program”). {See Compl. at 6.)4 Plaintiff claims that she was

denied admission to the Program because of her dyslexia and vision impairment. {Id.) Plaintiff

contends that such a denial constitutes a violation of the N.Y.C. Administrative Code § 8-107

which provides that discrimination on the basis of a person’s disability is unlawful. {Id. at 7.)

In an attempt to seek relief for what she believed to be discrimination, on July 12, 2012,

Plaintiff filed an initial complaint against the Defendants named herein with the New York City

Commission on Human Rights (the “NYCHR”), asserting that Mercy denied her admission to the

Program because of her disabilities. {See Kramer Decl., Ex. A.) The NYCHR determined that

Defendants sufficiently established that the denial of admission was based on legitimate,

nondiscriminatory reasons.

{See Compl. at 22.) Consequently, the NYCHR dismissed the

complaint. {See Kramer Decl., Ex. B.)

After the NYCHR dismissed Plaintiffs complaint, she initiated an Article 78 proceeding

in New York State Supreme Court. {See Kramer Deck, Ex. E) During the pendency of that

proceeding, Plaintiff filed three motions seeking: (1) to vacate the NYCHR decision; (2) a

mandatory injunction compelling Mercy to admit her into the Program; and (3) an order awarding

Plaintiff legal fees and any other relief the court deemed proper. {Id. Exs. E-F.) In response,

3 “In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all uncontroverted facts in the

complaint (or petition) as true, and draw all reasonable inferences in favor of the party asserting jurisdiction.” Booker

v. Griffin, No. 16-CV-00072 (NSR), 2018 WL 1614346, at 4 (S.D.N.Y. Mar. 31, 2018). The Court assumes the truth

of the facts alleged in Plaintiffs Complaint for purposes of this motion only.

4 As Plaintiff is proceeding pro se and her Complaint is the standard, fillable form complaint, all citations thereto will

be to pages, not paragraphs.

2

Case 7:17-cv-01769-NSR Document 26 Filed 04/23/18 Page 3 of 8

Defendants moved to dismiss the proceeding. (See ECF No. 20.) Justice Hunter adjudicated the

matter and granted Defendants’ motions,5 ultimately dismissing the matter. (See id.)

Thereafter, Plaintiff appealed the decision to the Appellate Division; the court denied the

petition. {See Kramer Decl. Ex. H.) Specifically, the court held that, “[a]s the article 78 court

found, petitioner failed to exhaust her administrative remedies.” {See id.) In addition, it noted that

“judicial review would in any event be time-barred, because the proceeding was brought more than

thirty days after the service of determination.” {See id.) Plaintiff then filed a motion for

reconsideration which was denied. {Id. Ex. I.) Plaintiff subsequently sought leave to appeal to the

Court of Appeals; the motion was denied. {Id. Ex. J.) On March 9, 2017, Plaintiff initiated the

present action seeking Appellate Review. Before the Court is Defendants’ Motion pursuant to

Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 41(b).

STANDARD ON MOTION TO DISMISS

On a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter

jurisdiction, dismissal is proper “when the district court lacks the statutory or constitutional power

to adjudicate it.” Nike, Inc. v. Already, LLC, 663 F.3d 89, 94 (2d Cir. 2011) (quoting Makarova v.

United States, 201 F.3d 110, 113 (2d Cir. 2000)). A plaintiff bears the burden of proving subject

matter jurisdiction by preponderance of the evidence. Liranzo v. United States, 690 F.3d 78, 84

(2d Cir. 2012); Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (quoting

Makarova, 201 F.3d at 113). “Jurisdiction must be shown affirmatively, and that showing is not

made by drawing from the pleadings inferences favorable to the party asserting it.” Shipping Fin.

5 The Court concluded that Plaintiff failed to exhaust administrative remedies of appeal before initiating the NYCHR.

{See Kramer Decl., at Ex. F.) Specifically, the court reasoned that the decision Plaintiff received at the NYCHR was

not a final decision ripe for review in a court of law. {Id.) Nevertheless, the court found Plaintiffs claim to be time

barred because administrative law requires the institution of a matter challenging an NYCHR decision within thirty

days of service of the agency’s final order. (Id.) Finally, the Court held that the NYCHR decision was not arbitrary

or capricious, nor lacking a rational basis. (See id.)

3

Case 7:17-cv-01769-NSR Document 26 Filed 04/23/18 Page 4 of 8

Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). Nevertheless, the Court must accept as

true all the facts alleged in the complaint. Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009).

This Court may consider, in addition to the factual allegations in the complaint, “[t]he documents

attached to the complaint as exhibits, and any documents incorporated in the complaint by

reference.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007).

A court lacks subject matter jurisdiction if plaintiffs claim are barred by either the RookerFeldman doctrine or res judicata. The Rooker-Feldman doctrine precludes federal cases “that

essentially amount to appeals of state court judgments.” Vossbrinck v. Accredited Home Lenders,

Inc., 773 F.3d 423, 426 (2d Cir. 2014). Moreover, “[ujnder res judicata, a final judgment on the

merits of an action precludes the parties or their privies from relitigating issues that were or could

have been raised in that action.” Allen v. McCurry, 449 U.S. 90, 94 (1980) (citing Cromwell v.

Sac Cty., 94 U.S. 351 (1876)).

DISCUSSION

Defendants primarily argue that dismissal is warranted for lack of subject matter jurisdiction.

(See ECF No. 20.)

Defendants also contend that, irrespective of whether this Court has

jurisdiction, the Plaintiffs claim are barred by res judicata. (Id.) In the alternative, Defendants

move to dismiss on grounds that Plaintiffs claims are time barred and that the Complaint otherwise

fails to state a claim for relief. Furthermore, Defendants maintain that Plaintiff failed to comply

with this Court’s rules. (Id.) This Court finds that dismissal is proper for lack of subject matter

jurisdiction.6

6 As detailed infra, this Court lacks subject matter jurisdiction to adjudicate Plaintiffs claims by operation of RookerFeldman and res judicata. Irrespective of the Complaint’s sufficiency under the Fed. R. Civ. P. 12(b)(6) standard, the

aforementioned doctrines preclude this Court’s ability to adjudicate this matter. Therefore, this Court declines to

explore whether dismissal pursuant to Fed. R. Civ. P. 12(b)(6) is proper.

4

Case 7:17-cv-01769-NSR Document 26 Filed 04/23/18 Page 5 of 8

I.

Rooker-Feldman Doctrine

The Rooker-Feldman doctrine “denies federal district courts . . . jurisdiction over cases that

essentially amount to appeals of state court judgments.” denies “federal district courts ...

jurisdiction over cases that essentially amount to appeals of state court judgments.” Barbato v.

U.S. BankNaflAss’n, No. 14-CV-2233 (NSR), 2016 WL 158588, at 2 (S.D.N.Y. Jan. 12, 2016)

(citing Vossbrinck, 773 F.3d at 426). In order to dismiss a claim pursuant to the Rooker-Feldman

doctrine, a court must find the following:

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 invitfe] 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. The first and fourth of

these requirements may be loosely termed procedural; the second and third may be

termed substantive.

Hoblockv. Albany Cty. Bd. ofElections, 422 F.3d 77, 85 (2d Cir. 2005).

In the present action, all of the requirements are met; thus, this Court lacks subject matter

jurisdiction. The first and fourth elements are clearly satisfied: Plaintiff lost every state court

proceeding she commenced against Defendants between February 2015 and February 2017, prior

to filing her Complaint with this Court on March 9, 2017. (ECF. No. 21.) The Court therefore

focuses on the second and third required elements.

Correspondingly, the second and third elements are also met. Plaintiff alleges that the New

York State Supreme Court’s refusal to compel Mercy College to accept her into the Program has

injured her; the second element is satisfied. (See Compl. at 11.) Additionally, Plaintiff seeks relief

that would require this Court to invalidate and dismiss the state court’s judgment, falling squarely

within the third element. According to the Complaint, Plaintiff “is asking [the] United States

5

Case 7:17-cv-01769-NSR Document 26 Filed 04/23/18 Page 6 of 8

District Court to reverse the decisions the lower courts made.” (See Compl. at 27.) Further,

Plaintiff invites this Court to reject the judgment of the state court. Plaintiff states that she “feels

strongly that Justice Alexander W. Hunter,7 should have not dismissed the case.” (Id. at 27.)

Plaintiff adds that Justice Hunter “had the power to order the case be sent back to the City of New

York Commission on Human Rights.” (Id. at 27.) This Court, however, is only “empowered to

exercise original, not appellate, jurisdiction.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544

U.S. 280,283 (2005). Consequently, the Rooker-Feldman doctrine bars this Court from reviewing

Plaintiffs claim. (See Vossbrinck, 113 F.3d at 427).

II.

Res Judicata

Assuming arguendo that the Rooker-Feldman doctrine did not apply, this Court would

nevertheless lack subject matter jurisdiction to adjudicate the claim as it is precluded by res

judicata. The doctrine of res judicata, or claim preclusion, holds that “a final judgment on the

merits of an action precludes the parties or their privies from relitigating issues that were or could

have been raised in that action.” Allen v. McCurry, 449 U.S. 90, 94 (1980); Rates Tech. Inc. v.

Speakeasy, Inc., 685 F.3d 163, 169 (2d Cir. 2012). To substantiate the defense of res judicata, a

party must show that “(1) the previous action involved an adjudication on the merits; (2) the

previous action involved the parties or those in privity with them; and (3) the claims asserted in

the subsequent action were, or could have been, raised in the prior action.” Graham v. Select

Portfolio Serv., Inc., 156 F. Supp. 3d 491, 509 (quoting Pike v. Freeman, 266 F.3d 78, 91 (2d Cir.

2001)).

Furthermore, this Court must refer to New York State law “which has adopted a

transactional approach to res judicata, barring a later claim arising out of the same factual grouping

7 In addition to finding that Plaintiff failed to exhaust her administrative remedies and that the claim was otherwise

barred by the statute of limitations, Justice Hunter found, on the merits, that “petitioner could not establish by a

preponderance of the evidence that the Mercy respondents discriminated against her because of her disabilities. . . .”

(See Kramer Decl., Ex. F.)

6

Case 7:17-cv-01769-NSR Document 26 Filed 04/23/18 Page 7 of 8

as an earlier litigated claim even if the later claim is based on different legal theories or seeks

dissimilar or additional relief.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). 8

Res judicata bars this Court from adjudicating this claim. First, Plaintiffs Article 78

petition was dismissed on the merits. (See Kramer Deck Ex. F.) The state court, in addition to

concluding that the Plaintiff failed to exhaust all available administrative remedies and that her

claims were time barred by the statute of limitations, found on the merits that the “facts and

circumstances surrounding the request for judicial review” revealed no foundation for annulling

NYCHR’s order. (Id.) Evidently, the dismissal of Plaintiff s claim was “not merely for pleading

defect, but manifestly on the merits.” Lampert v. Ambassador Factors Corp., 266 A.D. 2d 124,

(1st Dep’t 1999), substantiating the first element of the doctrine of res judicata, see Graham, 156

F. Supp. 3d at 509.

Additionally, the second and third requirements of res judicata are undoubtedly met. The

present claims involve the exact same parties to the state court action. (Compare with Kramer

Deck, Ex. E.) Moreover, Plaintiff asserts the exact same claim in this Court as she did in the

Article 78 proceeding.

Plaintiff states that NYCHR erroneously decided her claim of

discrimination against the Defendants and requests that the Court vacate the NYCHR’s decision.

0Compare with Kramer Deck, Ex. E.) Consequently, Plaintiff is barred from re-litigating her

claims in this Court.

CONCLUSION

For the foregoing reasons, Defendants’ Motion is GRANTED, and Plaintiffs Complaint

is dismissed with prejudice for lack of subject matter jurisdiction.

8 Furthermore, the claims unquestionably arise out of “the same factual groupings as” the earlier claims and are thus

barred under New York State’s transactional approach.

7

Case 7:17-cv-01769-NSR Document 26 Filed 04/23/18 Page 8 of 8

The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 20 and

terminate the action. The clerk of the court is also directed to mail a copy of this opinion to Plaintiff

and show proof of service on the docket.

Dated:

SO ORDERED:

April 23,2018

White Plains, New York

NELSCtfcLS^ftOMAN

United States District Judge

8