Petition for Writ of Certiorari — Maddox v. Prudenti (No. 09-9)

Supreme Court U.S.

or 7 09-9 APR26 2009

a OFFICE OF THE CLERK

Jn the

Supreme Court of the United States

ALTON H. MADDOX, JR.,

Petitioner,

Vv.

A. GAIL PRUDENTI as Presiding Justice of the APPELLATE DIVISION,

SECOND JUDICIAL DEPARTMENT; DAVID S. RITTER,

MYRIAM J. ALTMAN, NANCY E. SMITH, FRED T. SANTUCCI,

ANITA R. FLORIO, HOWARD MILLER, STEPHEN G. CRANE,

THOMAS A. ADAMS, DANIEL F. LUCIANO, GABRIEL M.

KRAUSMAN, SONDRA MILLER, GLORIA GOLDSTEIN,

ROBERT W. SCHMIDT, STEVEN W. FISHER, ROBERT A.

SPOLZINO, WILLIAM F. MASTRO, BARRY A. COZIER,

REINALDO E. RIVERA, PETER B. SKELOS; ROBERT A. LIFSON

as Associate Justices of the Appellate Division, Second Judicial Department,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Second Circuit

PETITION FOR WRIT OF CERTIORARI

ALTON H. Mappox, Jr.

Pro Se

16 Court STREET, Suite 1901

BROOKLYN, NY 11241

(718) 834-9034

Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001

i

QUESTIONS PRESENTED

WHETHER race can be employed as a factor to

depart from the doctrine of stare decisis involving a

white doctor, on the one hand, and an outspoken Black

attorney, on the other hand, and, afterwards, FRAP

§ 32.1 and Local Rule 0.23 are utilized to insulate the

summary order from the Reporter of Decisions.

WHETHER the clerk of the court or the chief judge

has the authority to engage in judge shopping to

prevent a party from successfully asserting any

constitutional claims in the district court and

disallowing the claims to be subject to appellate

review.

ll

TABLE OF CONTENTS

Page

Questions Premeeyeet once a ee io ee eee i

Table of AwGNGRIIN 5 ee ee eee. iv

Opinion BGhOwW on ee ee ase. 1

JuUTisdictiem sc 5 ie Pe esc vane. 1

Constitutional & Statutory Provisions Involved .. 1

Statement .. i... aes a ee se. 5

Argument

I. RACE AFFECTS DOCTRINE OF STARE

DECISIS IN COURT OF APPEALS ...... 9

Il. JUDGE SHOPPING IS FROWNED UPON

IN THE FEDERAL COURTS .......... 15

CONCLUSION oye ees. 17

il

. APPENDIX

Appendix A - Summary Order of the U.S.C.A..

Second Circuit, dated December 23, 2008 ... la

Appendix B - Opinion and Order of the

U.S.D.C., E.D.N.Y., dated January 16,2007 . 8a

Appendix C - Opinion and Order of the

U.S.D.C., E.D.N.Y. dated December 14, 2006

Appendix D - Second Circuit Order on Denial of

Petition for Rehearing dated January 26, 2009

re ee a ro es NN IS PEL Ay 36a

Appendix E - Second Circuit Order Denying

ae rr re rer ar sig 38a

Motion to Publish

iV

TABLE OF AUTHORITIES

Page(s)

Cases

Brown v. Board of Education,

ee Grae OE og cess evawceeeewuns 9

City of Los Angeles v. Lyons,

en ee kk oe ook bee eles 14

Consub Delaware LLC v. Scharin Engenharia

Limitada,

Gee ©.00 106 (2G Cit. 2008) . ic cee es 12

Cummings v. Richmond Co. Bd. of Ed.,

pe ee NE Ko ee ae oe ak owe le ee g

District of Columbia Court of Appeals v. Feldman,

OD UF .0e ee CE co i eee te eee passim

Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,

ee re, ee ee se oi vcs wwe eee eben 13

Hachamovitch v. DeBruno,

159 F.3d 687 (2d Cir. 1998) ............. 6,11

Hilton v. South Carolina Public Railway Comm’n,

502 U.S. 197, 203 112 S.Ct. 560,

PBR Oe Ele. Sy aa ee 9

In re Bell South Corp.,

334 F.3d 941 (19" Cir. 2003) ............. 16

In re Ruffalo,

390 U.S. 544, 88 S.Ct. 1222 (1968)

Korematsu v. United States,

323 U.S. 214 (1944)

Loving v. Virginia,

388 U.S. 1 (1967)

Maddox v. Prudent,

303 Fed.Appx. 962 (2d Cir. 2008)

Missouri ex. rel. Gaines v. Canada,

305 U.S. 337 (1938)

Moore v. Dempsey,

261 U.S. 86 (1923)

Morgan v. Virginia,

328 U.S. 373 (1946)

Osborne v. District Attorney’s Office For the

Third Judicial District,

521 F.3d 1118 (9" Cir. 2008),

revd. 557 U.S. ss (2000009)

Plessy v. Ferguson,

163 U.S. 537 (1896)

Rooker v. Fidelity Trust Co.,

263 U.S. 413, 44 S.Ct. 149,

68 L.Ed. 362 (1923)

Scott v. Sandford,

19 How. (60 U.S.) 393 (1857)

vi

Shelley v. Kramer,

ae Ro ar re 9

Smith v. Allwright,

vp OR al! | rr . 9

United States v. Phillips,

59 F.Supp. 2d 1178 (D. Utah. 1999) ..... . 2s

Constitutional Provisions

a l

a 14

ewe e ee eee eevee see een l

ee 7 a

De ES kt ce ese ceoeees we

Re cece enereseenedn 2

Statutes

hae cde eane eu 15, 16

a a mre 6

tee ee te eave seebons . 6

Federal Rules

Dg YS a are 2,4, 10, 17

ee 6

Local Rule § 0.23 (2d Cir.)............ 3, 4. 10, 17

Bees eee oe Cee GAP) ow wc ce cee ene 10

State Statutes & Rules

GR FE Sy 7 | ea eae eee

UE 5 go es esta keene Sao NGS 8,1]

re aa ea ae rere er 8

rey 8 ae 4,6,15

oe | rr rare ee D

l

Alton H. Maddox, J., respectfully petitions for a

writ of certiorari to review the summary order of the

United States Court of Appeals for the Second Circuit

in this case.

OPINIONS BELOW

The summary order of the Court of Appeals (App.,

infra la) reported at 303 Fed. Appx. 962 (2™ Cir.

2008). The opinions of the district court are

unreported. (App., infra 8a and 12a)

JURISDICTION

The Court of Appeals entered its summary order on

December 23, 2008 (App., infra la). The court of

appeals denied a timely petition for rehearing on

January 26, 2009 (App., infra 36a).

CONSTITIONAL & STATUTORY

PROVISIONS INVOLVED

Art. 1, sec. 10 cl. 1:

No State .... pass any Bill of Attainder, ex post facto

Law....

Amendment I

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech, or

of the press; or the right of the people peaceably to

assemble, and to petition the Government for a redress

of grievances.

2

Amendment V

No person shall ....be deprived of life, liberty, or

property, without due process of law; nor shall private

property be taken for public use, without just

compensation.

Amendment XIII

1. Neither slavery nor involuntary servitude, except as

a punishment for crime whereof the party shall have

been duly convicted, shall exist within the United

States, or any place subject to their jurisdiction.

Amendment XIV

1. All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they

reside. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any

person of life, liberty, or property, without due process

of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

Fed R App P § 32.1

A court may not prohibit or restrict the citation of

federal judicial opinions, orders, judgments, or other

written dispositions that have been:

(i) designated as ‘unpublished’ ‘not for publication’

‘non-precedential,’ ‘not precedent,’ or the like; and

(11) issued on or after January 1, 2007

Second Circuit Local Rule

§ 0.23.

(a) The demands of contemporary case loads

require the court to be conscious of the need to utilize

judicial time effectively. Accordingly, in those cases in

which decision is unanimous and each judge of the

panel believes that no jurisprudential purpose would

be served by an opinion (i.e., a ruling having

precedential effect), the ruling may be by summary

order instead of by opinion.

(b) Rulings by summary order do not have

precedential effect.

Citation of Summary Orders

(1) Citation to summary order filed after

January 1, 2007, is permitted.

(A) in a brief or other paper in which a litigant cites

a summary order, in each paragraph in which a

citation appears, at least one citation must either be to

the Federal Appendix or be accompanied by the

notation: “(summary order).”

(B) Unless the summary order is available in an

electronic database which is publicly accessible

without payment of fee (such as the database available

at http://www.ca2.uscourts.gov/), the party citing the

summary order must file and serve a copy of that

summary order together with the paper in which the

summary order is cited. If no copy is served by reason

of the availability of the order on such a database, the

citation must include reference to that database and

the docket number of the case in which the order was

entered.

4

(2) Citation to summary orders filed prior to

January 1, 2007, is not permitied in this or any other

court, except in a subsequent stage of a case in which

the summary order has been entered, in a related case,

or in any case for purposes of estoppel or res judicata.

(d) Summary orders filed after January 1, 2007,

shall bear the following legend:

SUMMARY ORDER

Rulings by summary order to not have precedential

effect. Citation to summary orders filed after January

1, 2007; is permitted and is governed by this court’s

Local Rule 0.23 and Federal Rule of Appellate

Procedure 32.1. In a brief or other paper in which a

litigant cites a summary order, in each paragraph in

which a citation appears, at least one citation must

either be to the Federal Appendix or be accompanied

by the notation: “(summary order).” Unless the

summary order is available in an electronic database

which is publicly accessible without payment of fee

(such as the database available at

http://www.ca2.uscourts.gov/), the party citing the

summary order must file and serve a copy of that

summary order together with the paper in which the

summary order is cited. If no copy is served by reason

of the availability of the order on such a database, the

citation must include reference to that database and

the docket number of the case in which the order was

entered.

22 NYCRKR§50.2

The clerk shall assign a civil case upon the filing of the

initial pleading.

5

All cases shall be randomly assigned by the clerk or

his designee in public view in one of the clerk’s offices

in such a manner that each active judge shall receive

as nearly as possible the same number of cases, except

as provided in paragraph (h). Where a party or his

counsel requests prior to selection that he or she be

present at the selection, the clerk shall make

reasonable efforts to comply with the request. In

Brooklyn civil cases a magistrate judge shall be drawn

at the same time and in the same manner as a judge.

All Long Island civil cases shall be assigned to the

Long Island magistrate judge.

STATEMENT

Petitioner was indefinitely suspended from the

practice of law in New York after members of the New

York Legislature initiated a disciplinary complaint

against him for his representation of unpopular

defendants and causes. Subsequently, petitioner was

definitely suspended from the practice of law in New

York for five years.

In a petition dated July 21, 2003, petitioner moved

the respondents for an order allowing for his

reinstatement to the practice of law based on newly-

discovered evidence. Respondents denied this

application because it was outside the scope of 22

NYCRR §691.11. Stated differently, newly-discovered

evidence is unavailable as a ground to vacate and set

aside a disciplinary order of suspension in New York

On or about December 15, 2004, petitioner initiated

a civil rights action in the United States District Court

for the Eastern District of New York against the

respondents. Jurisdiction was invoked under 42 USC

6

§§ 1331 and 1343. The complaint was modeled after

Hachamovitch v. DeBuono, 159 F.3d 687 (2 Cir.

1998)(Jacobs, J.) which allowed a white medical doctor

to reopen a closed medical disciplinary proceeding

based on newly-discovered evidence.

This action was originally assigned to Judge Carol

B. Amon without complying with the random

assignment procedure of Loc. R. 50.2(b) in the Eastern

District. After petitioner filed an objection, Judge

Nina Gershon was randomly assigned to the case. A

“Notice to Parties” dated October 27, 2006 and from

Chambers of Judge Nina Gershon stated: “This letter

is to advise you that Judge Nina Gershon has recused

herself from this case and Judge Brian M. Cogan has

been assigned in her stead.” No reason was ever given

for the recusal. No mention was made of a random

assignment.

The assignment to Judge Cogan was also made in

excess of Local Rule 50.2. Upon Petitioner’s objection

to the illegal assignment of Judge Cogan, Judge Allyne

R. Ross was surreptitiously selected and without

petitioner’s presence nor his knowledge as is required

by Local Rule 50.2. Petitioner became aware of this

assigument after Judge Ross summarily disposed of

the motion to dismiss under Rule 12(b)(6) of the FRCP

in defendants’ favor.

In a letter dated November 8, 2005 from the

attorney for respondents to Judge Gershon, the letter

reads in part as follows:

Similarly his objection as set forth in the same

: 1)

paragraph to defendants’ use of the word

7

‘disbarment to describe his status. ‘Disbarment’

is defined as follows:

The action of expelling a lawyer from the

bar or from the practice of law, usu.

because of some disciplinary violation ....

Although disbarment is typically a

permanent removal from the practice of,

in some jurisdictions a disbarred may

(after a certain period) petition for

readmission

This letter from the attorney for the respondents

prompted this response, in part, in a letter dated

March 8, 2006 from petitioner to Judge Gershon:

Defendants are seeking to change my legal

status from suspended attorney to disbarred

attorney as it represented in its initial letter to

this Court dated June 16, 2005. This

unwarranted reclassification would negatively

affect the standard for my reinstatement to the

practice of law absent the constitutional

violations.

Judge Gershon nor any subsequent judge of the

District Court ever entertained the claim of

petitioner's unconstitutional disbarment. The federal

civil rights complaint was premised on petitioner being

a suspended attorney. Respondents had never

formally nor informally claimed that petitioner had

been disbarred and no formal claim of disbarment had

ever been lodged against petitioner even though

disbarment in New York is only seven years. The

District Court failed to question respondents about

8

petitioner’s legal status while insulating respondents

from any bad-faith litigation.

The District Court allowed petitioner twenty days

to re-plead his First Amendment claim of retaliation

“|blecause this admonition occurred after plaintiff

served his amended and supplemental complaint on

May 1, 2006, the complaint obviously omits it.”

The admonition arose on June 29, 2006. Judge

Ross was unaware that petitioner had requested a

hearing pursuant to 22 NYCRR §691.6 and no hearing

occurred until July 2007 and after the appeal had been

perfected. The Brooklyn Grievance Committee

sustained the disciplinary complaint even though the

criminal court had inexplicably destroyed the court file

and the complaining judge had no memory of the

event.

Chief Judge Jacobs of the Second Circuit was also

a member of the panel that decided the instant appeal

in Maddox v. Prudenti et. al. With respect to an

absence of a mechanism to present newly-discovered

evidence in a disciplinary proceeding, the Second

Circuit ruled on petitioner’s claim of due process as

follows:

In fact, the Second Department does have such

a mechanism: N.Y.C.P.L.R. 5015(a)(2) allows a

court to relieve a party from judgment ‘upon the

ground of ... newly-discovered evidence which,

if introduced at trial, would probably have

produced a different result and which could not

have been discovered on time to move for a new

trial’ See also C.P.L.R. 103(b) (applying C.P.L.R.

5015(a)(2) to disciplinary proceedings.) And

9

because a procedure for the submission of new

evidence exists —a procedure that Maddox has

not as yet invoked —Maddox cannot allege an

injury. The dismissal of the first claim must

therefore be affirmed.

I. RACE AFFECTS DOCTRINE OF STARE

DECISIS IN COURT OF APPEALS

While the doctrine of stare decisis is not an

inflexible rule, it is well-settled that this Court will not

“depart from the doctrine of stare decisis without some

compelling justifications.” Hilton v. South Carolina

Public Railway Comm’n. 502 U.S. 197, 203 112 S.Ct.

560, 116 L.Ed 2d 560 (1991). Strict scrutiny must be

invoked to analyze any purported justification. See

Korematsu v. United States 323 U.S. 214 (1944) and

Loving v. Virginia, 388 U.S. 1(1967).

The Fourteenth Amendment, which was supposed

to invalidate Scott v. Sandford, 19 How. (60 U.S.) 393

(1857), did not take reasonable effect in American

jurisprudence until Brown v. Board of Education, 347

U.S. 483 (1954). In the meantime, this Court had held

in Plessy v. Ferguson, 163 U.S. 537 (1896) that the

separation of the races in public accommodations was

constitutionally permissible.

This delay in giving judicial. deference to the

Fourteenth Amendment spawned myriad cases before

the Court. See e.g., Missouri ex. rel. Gaines v. Canada,

305 U.S. 337 (1938); Smith v. Allwright, 321 U.S. 649

(1944); Morgan v. Virginia, 328 U.S. 373 (1946):

Shelley v. Kramer, 334 U.S. 1 (1948) Cummings v.

Richmond Co. Bd. of Ed., 175 U.S. 528 (1899); and

Moore v, Dempsey, 261 U.S. 86 (1923).

10

It may have been judicially economical and efficient

to this Court for racial segregation to have been

practiced beyond 1868 but it undermined and stained

this country’s judicial system and made a mockery out

of democracy.

In this vein, the employment of Rule 32.1 of the

Fed. R. App.P, which gives the Second Circuit

unbridled judicial discretion to publish or not to

publish an opinion, undermines the doctrine of stare

decisis and lends itself to judicial bias.

Although Rule 32.1 of the Fed. R. App.P may be

construed as passive on the use of citations of judicial

opinions, Local Rule § 0.23 of the Second Circuit

makes it clear that “({r]ulings by summary order do not

have precedential effect.” This is a backdoor approach

to reviving the local rules of circuit courts and stifling

the doctrine of stare decisis. ‘The Second Circuit

arbitrarily substitutes precedential value with

persuasive value and its local rules conflicts with the

local rules of other circuits.

For example, Local Rule 36 of the First Circuit

states that when an opinion has been drafted, it is

preferred that it be published except” where opinions

are likely not break new legal ground or contribute

otherwise to legal development....” (Inder thiscriteria,

the opinion herein would have been published as a

departure from controlling precedent. Secrecy masks

this departure.

The Second Circuit disposed of petitioner’s first

claim that the Second Department’s lack of a

mechanism by which attorneys can submit newly

discovered evidence to challenge their suspension from

11

the practice of law violated states’ rights by ruling

that C.P.L.R. 103(b) applies C.P.L.R. 5015(a)(2) to

disciplinary proceedings. This ruling violated the

rationale for the Rooker-Feldman doctrine.

Interestingty, the Second Circuit failed to cite any

case to support this supposition. Moreover, this was

not the approach followed by Hachamovitch v.

DeBuono, 159 F.3d 687 (2"! Cir. 1998) which held that

Rooker-Feldman doctrine did not bar the Second

Circuit Court of Appeals from assuming jurisdiction

over a due process claim concerning the lack of a

mechanism in the state for reopening a closed medical

disciplinary proceeding.

Chief Judge Jacobs authored the opinions in both

Hachamovitch v. DeBuono and Maddox v. Prudenti et.

al. The former casé involved a white doctor. The

latter case involved a Black lawyer. This was the only

viable distinction in both cases.

Both cases arose under New York law and they

both involved an absence of a judicial mechanism to

present a claim of newly-discovered evidence in a

disciplinary proceeding. Yet, Chicf Judge Jacobs failed

to direct Dr. Moshe Hachamovitch to initiate a

disciplinary proceeding under C.P.L.R. 5015(a)(2) as

the Court did with petitioner.

No court in New York has ever ruled that CPLR

8§ 103 and 5015 (a)(2) are available to doctors or

lawyers in disciplinary proceedings. In a case of first

impression, the Second Circuit Court of Appeals ruled

that these statutory provisos were available to

attorneys but that doctors, similarly situated, had

federal civil rights claims.

12

This judicial split in authority in the Second Circuit

Court of Appeals does serious harm to the doctrine of

stare decisis and it violates the “well —established

[rule] in this Circuit that ‘one pancl of this Court

cannot overrule a prior decision of another panel,

unless there has been an intervening Supreme Court

decision that cast doubt on [this Court’s] controlling

precedent.” [citations omitted]. Consub Delaware LLC

v. Scharin Engenharia Limitada, 543 F.3d 104, 107

(2™ Cir. 2009).

To be sure, petitioner violated no disciplinary rule

by refusing to cooperate with the state against his

client amid a criminal trial. Initially, the Brooklyn

Grievance Committee admitted that any investigation

of the disciplinary complaint would be burdened by the

attorney-client privilege. For not cooperating with the

state against his client and refusing to violate the

attorney-client privilege, petitioner was cruelly,

wrongfully, and excessively disciplined.

Moreover, an affidavit was secured from a grand

juror noting that the state attorney general had

serious departed from the law in conducting the grand

jury investigation; namely, Article 190 of the Criminal

Procedure Law. The state attorney general and not

the grand jury had authored the grand jury report

which became the basis for the disciplinary

investigation.

New York courts have already ruled that any

serious departure from the grand jury investigation

mandates a suppression of the grand jury minutes

which, allegedly, supported the grand jury

investigation. This information became available only

13

fourteen years after the end of the grand jury

investigation and after petitioner’s “disbarment.”

While this court has now ruled on the merits in

Osborne v. District Attorney’s Office for the Third

Judicial District et. al., 521 F.3d 1118 (9" Cir. 2008)

revd. 557 U.S.____s (20009) it is interesting to note that

a review of its due process claim was not saddled down

by the Rooker-Feldman doctrine.

Alaska lacks a statute giving a convicted defendant

access to biological evidence which was used to convict

him. Petitioner, on the other hand, is secking access

to secret but exculpatory, grand jury minutes and a

forum to adjudicate his claims. The Second Circuit

Court of Appeals fails to appreciate this distinction

under Rooker-Feldman.

The Court below clearly misunderstood the efficacy

of the Rooker-Feldman doctrine which applies to

matters which precede rather than matters which

follow a state court judgment. See Exxon Mobil Corp.

v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005).

But district courts have jurisdiction to review

“general challenges to state bar admission rules” since

state “courts may act in a non-judicial capacity in

promulgating rules regulating the bar.” District of

Columbia Court of Appeals v. Feldman, 460 U.S. 462

(1983).

The Second Circuit Court of Appeals also failed to

appreciate petitioner’s claim that respondents had a

duty to explain its decision since petitioner was

indefinitely suspended from the practice of law in 1990

without due process; definitely suspended in 1994 with

14

at least a semblance of due process; and arguably

disbarred from the practice of law in 2006 without any

pretense of adhering to due process.

Thus, it was error for the Court of Appeals to assert

that petitioner suffered no injury because of the

Second Department’s failure to explain its refusal to

reinstate him. This may have been correct if this

Court had not already ruled in In re Ruffalo, 390 U.S.

544, 88 S.Ct. 1222 (1968) that an attorney is entitled

to due process before a state can disbar him or her.

Aside from the procedural requirements of due

process, an attorney is at least entitled to know his or

her legal status. There is a difference between being

a suspended attorney and being a disbarred attorney.

A disbarred attorney in New York is subject to the

whims of respondents. On the other hand, a

suspended attorney must simply satisfy the conditions

in the suspension order.

The Ex Post Facto claim under Art. 1, §10, cl. 3 is

viable because when petitioner sought reinstatement

to resume the practice of law, respondents imposed

new conditions on petitioner which emulated the

conditions for a disbarred attorney without informing

him that respondents were treating him as a disbarred

attorney

These conditions certainly satisfy the test raised in

City of Los Angeles v. Lyons 461 U.S.95 (1983) in

which this Court said “[petitioner] must demonstrate

that he faces a concrete and particularized, non-

speculative, imminent future harm.” Thethreat at the

very least of disbarring an already suspended attorney

certainly falls within “concrete and particularized,

15

non-speculative, imminent future harm. Id. At 102-

103.

II. JUDGE SHOPPING IS FROWNED UPON IN

THE FEDERAL COURTS

Local Rule 50.2 of the Eastern District of New York

clearly provides for the random selection of judges.

Citing Rules of the United States District Court for the

Eastern District of New York, Rule 50.2(b), the

random selection of judges must be in public view and

in the clerk’s office. See United States v. Phillips, 59

F Supp. 2d 1178, 1180 (D. Utah. 1999).

Although this rule is simple, four judges were

separately assigned in the District Court below. Only

one judge was randomly assigned and she recused

herself after more than one year as the assigned judge

without citing a reason as is required under 28 U.S.C.

§ 455. The only inference to be drawn is that she

belatedly developed a judicial bias against petitioner.

While petitioner was awaiting a response from his

objection to the calculated assignment of Judge Cogan

who wasa former law partner to the special prosecutor

who had investigated the disciplinary complaint

against pctitioner, Judge Ross was surreptitiously

assigned to hear the case.

It is well-settled that neither the chief judge nor

the clerk of the court has the authority to make any

changes to the Court’s rule allowing for random

assignment of cases nor to withdraw any assignment

and reassign the case to another judge. United States

v. Phillips at 1182-1184. The rule allowing for random

16

assignment of cases was ignored to petitioner's

detriment.

Petitioner was entitled to access to the courts. This

means that petitioner was entitled to present his

claims to an unbiased, judicial, fact-finder. Judge

Ross, who decided the motion to dismiss, never met

petitioner and never read the file intelligently enough

to understand the factual and constitutional claims.

Petitioner had already raised the claim of his

possible disbarment based on representations from

counsel for respondents. No action had been taken on

it. Moreover, Judge Ross failed to appreciate the

status of petitioner’s First Amendment claim and the

New York Court Rules and Regulations.

Judge Ross ordered petitioner to replead his First

Amendment claim although the New York Court Rules

and Regulations allowed petitioner to exhaust his

claims administratively. ‘Thus, the order of Judge

Ross was premature. When petitioner was unable to

intelligently replead his claim, Judge Ross dismissed

it. This was error.

The concerns in this case about the tension between

28 U.S.C. § 455 and the rules for random assignment

of judges was concisely discussed in In re Bell South

Corp., 334 F.3d 941, 956 n.7 (11" Cir. 2003). There

are few decisions on the issue.

When Judge Gershon was allowed to recuse herself

without giving a reason and the subsequent, secret

assignment of a judge who was a law partner of the

special prosecutor had the effect of setting this case on

a disaster course. When this relationship was

1/

revealed, Judge Ross was secretly assigned to the case

and she hurriedly disposed of it in violation not only of

the random assignment rule but also, in violation of

due process.

CONCLUSION

Stare decisis is the bedrock of American

jurisprudence. It not only requires an adherence to

prior precedent but it also provides for certainty of

result. There was also not only a marked departure

from prior precedent including the Rooker-Feldman

doctrine but also Fed R.App. P §32.1 and Local Rule

§0.23 of the Second Circuit which replaces precedential

value with persuasive value.

When the clerk of the district court or its chief

judge was allowed to skirt a random assignment rule,

it denied to petitioner the right to present

constitutional claims to an unbiased fact-finder. The

constitutional claims include the right not to be

disbarred without due process of law and the right of

a disbarred lawyer to be free of judicial retaliation for

exercising First Amendment rights and representing

unpopular defendants and causes

When petitioner initiated this civil rights action,

petitioner had no notice or proof that his status had

been changed from a suspended attorney to a

disbarred attorney. Counsel for respondents admitted,

in writing, that petitioner had been disbarred during

the course of this litigation. Petitioner attempted to

bring this matter to the attention of the District Court

without success. Due process concerns and claims of

retaliation for exercising First Amendment rights were

of no moment to the District Court

LS

Accordingly, the court should grant the petition for

a writ of certiorari.

Dated: Brooklyn, NY

June 26, 2009

Respectfully submitted,

Alton H. Maddox, Jr.

APPENDIX

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

07-0187-cv

[Filed December 23, 2008]

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE

PRECEDENTIAL EFFECT. CITATION TO

SUMMARY ORDERS FILED AFTER JANUARY 1,

2007, IS PERMITTED AND IS GOVERNED BY THIS

COURT'S LOCAL RULE 32.1 AND FEDERAL RULE

OF APPELLATE PROCEDURE 32.1. INABRIEF OR

OTHER PAPER IN WHICH A LITIGANT CITES A

SUMMARY ORDER, IN EACH PARAGRAPH IN

WHICH A CITATION APPEARS, AT LEAST ONE

CITATION MUST EITHER BE TO THE FEDERAL

APPENDIX OR BE ACCOMPANIED BY THE

NOTATION: “(SUMMARY ORDER).” UNLESS THE

SUMMARY ORDER IS AVAILABLE IN AN

ELECTRONIC DATABASE WHICH IS PUBLICLY

ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH

AS THE DATABASE AVAILABLE AT

HTTP:/WWW.CA2.USCOURTS.GOV), THE PARTY

CITING THE SUMMARY ORDER MUST FILE AND

SERVE A COPY OF THAT SUMMARY ORDER

TOGETHER WITH THE PAPER IN WHICH THE

SUMMARY ORDER IS CITED. IF NO COPY IS

SERVED BY REASON OF THE AVAILABILiTY OF

2a

THE ORDER ON SUCH A DATABASE, THE

CITATION MUST INCLUDE REFERENCE TO THAT

DATABASE AND THE DOCKET NUMBER OF THE

-CASE IN WHICH THE ORDER WAS ENTERED.

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Daniel

Patrick Moynihan United States Courthouse, 500

Pearl Street, in the City of New York, on the 23 day

of December, two thousand eight.

PRESENT: HON. DENNIS JACOBS,

Chief Judge,

HON. REENA RAGGI,

Circuit Judge,

HON. DEBRA ANN LIVINGSTON,

Circuit Judge.

ALTON H. MADDOX Jr., -_

PLAINTIFF-APPELLANT,

Ws

A. GAIL PRUDENTI, DAVID S. RITTER,

MYRIAM J. ALTMAN, NANCY E. SMITII,

FRED T. SANTUCCI, ANITA R. FLORIA,

HOWARD MILLER, STEPHEN G. CRANE,

THOMAS A. ADAMS, DANIEL F. LUCIANO,

GABRIELA M. KRAUSMAN, SONDRA MILLER,

GLORIA GOLDSTEIN, ROBERT W. SCHMIDT,

STEVEN W. FISHER, ROBERT A. SPOLZINO,

WILLIAM F. MASTRO, BARRY COZIER,

PETER B. SKELOS, ROBERT A. LIFSON,

as Associate Justices of the Appellate Division,

Second Judicial Department,

DEFENDANTS-APPELLEES.

Nee ee ee eee eee eee See”

3a

APPEARING FOR PLAINTIFF-APPELLANT:

ALTON H. MADDOX, pro se,

New York, New York.

APPEARING FOR DEFENDANT-APPELLEES:

PATRICK J. WALSH, Esq.,

Assistant Solicitor General, for Andrew M. Cuomo,

Attorney General of the State of New York.

Appeal from an order of the United States District

Court for the Eastern District of New York (Ross, J.).

UPON DUE CONSIDERATION, IT IS HEREBY

ORDERED, ADJUDGED AND DECREED that the

District Court’s order be AFFIRMED.

Alton Maddox appeals from a judgment of the

United States District Court for the Eastern Dis‘rict of

New York (Ross, J.) dismissing his facial and

as-appliea constitutional challenges to the attorney

reinstatement procedures of the Supreme Court of the

State of New York Appellate Division, Second Judicial

Department. The District Court dismissed Maddox’s

facial claims for lack of standing and his as-applied

claims under the Rooker-Feldman doctrine. We

assume the parties’ familiarity with the underlying

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

Maddox first claims that the Second Department’s

lack of a mechanism by which attorneys can submit

newly discovered evidence to challenge their

suspension from practice violated the Fourteenth

Amendment. In fact, the Second Department does

have such a mechanism: N.Y. C.P.L.R. 5015(a)(2)

allows a court to relieve a party from judgment “upon

4a

the ground of. . . newly-discovered evidence which, if

introduced at the trial, would probably have produced

a different result and which could not have been

discovered in time to move for a new trial.” See also

C.P.L.R. 103(b) (applying C.P.L.R. 5015(a)(2) to

disciplinary proceedings). And because a procedure for

the submission of new evidence exists--a procedure

that Maddox has not as yet invoked-Maddox cannot

allege an injury. The dismissal of the first claim must

therefore be affirmed.

Second, Maddox claims that the Second

Department unconstitutionally failed to explain its

decision to deny his application for reinstatement.

Under the Rooker-Feldman doctrine, “federal district

courts lack jurisdiction over suits that are, in

substance, appeals from state-court judgments.”

Hoblock v. Albany County Bd. of Elections, 422 F.3d

77, 84 (2d Cir. 2005). The Rooker-Feldman doctrine

precludes our review of state court decisions when all

four of the following conditions exist:

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 “invitle]

district court review and rejection of [that]

judgment|].” Fourth, the state-court judgraent

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.

Holbock, 422 F.3d at 85 (alterations in original)

(footnote omitted) (quoting Exxon-Mobil Corp. v. Saudi

5a

Basic Indus. Corp., 544 U.S. 280, 284 (2005)). The

Rooker-Feldman dectrine applies here to preclude our

review of Maddox’s second claim: Maddox lost in state

court; that happened in 2008, prior to the filing of this

federal lawsuit; he complains of an injury caused by a

state court judgment-namely the Second Department’s

failure to explain its refusal to reinstate him; and his

claim is clearly designed to assist. him in review and

reversal of that judgment. It follows that we lack

jurisdiction over this claim, and its dismissal must

accordingly be affirmed.

Third, Maddox claims that the Second Department

violated the Ex Post Facto clause, U.S. Const. Art. 1§9

cl. 3, by imposing new conditions on his reinstatement

that were not in the original order suspending him

from the practice of law. However, “[t}he ex post facto

clause forbids retroactive application of penal

legislation, not civil legislation.” Domond v. I.N.S., 244

F.3d 81, 87 (2d Cir. 2001). This claim also meets the

four Rooker-Feldman requirements: it arises from a

suit Maddox lost in state court, prior to the filing of

this lawsuit; it complains of an injury caused by a

state court judgment; and it seeks review and reversal

of that judgment. Its dismissal must therefore be

affirmed.

Fourth, Maddox claims that the absence of rules in

the Second Department relating to compulsory process

and discovery rights for disciplined attorneys violated

the Fourteenth Amendment. Insofar as Maddox

challenges his own past proceedings before the state

courts, we lack jurisdiction under the Rooker-Feldman

doctrine for the same reasons already given. And

insofar as Maddox challenges the constitutionality of

future proceedings, his claim has been mooted by the

6a

Second Department’s adoption, in 2005, of 22 N.Y.

Comp. Codes R. & Regs. Tit. 22, § 691.5-a, which

provides that in a “formal disciplinary proceeding”

against an attorney, the clerk of court may issue

subpoenas, and the testimony of unavailable witnesses

may be taken by deposition.

Fifth, Maddox claims that the Second Department

discriminated against him on the basis of race.

Maddox’s claim of discrimination in past proceedings

must be dismissed on Rooker-Feldman grounds:

Maddox lost in those proceedings, which predated this

lawsuit; he complains of an injury caused by the state

court’s judgment; and he seeks review and reversal of

that judgment. With regard to Maddox’s claim of

possible future discrimination, Maddox lacks standing:

such a claim would require him to show that if he

applied for admission or reinstatement in the Second

Department, his application would then be rejected

based on racial animus. This is too speculative an

allegation to support standing. See Allen v. Wright,

468 U.S. 737, 751 (1984) (abstract, conjectural, or

hypothetical injuries cannot support standing).

Finally, Maddox claims that, in violation of the

First Amendment, the Second Department retaliated

against him for publishing certain opinion pieces in

the New York Amsterdam News. Maddox represents

that the Second Department’s Grievance Committee

scheduled a disciplinary hearing for July 19, 2007, but

the record on appea does not reflect whether the

Grievance Commi‘cee has reached a final resolution of

the matter. Until it does, Maddox’s First Amendment

claim would not be ripe; moreover, we would lack

jurisdiction over Maddox’s claim even if it were ripe,

since it is barred by the Rooker-Feldman doctrine.

Ta

Accordingly, we hereby AFFIRM the judgment of the

District Court.

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, CLERK

By: Richard Alcantara, Deputy Clerk

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

04 CV 5444 (ARR)(LB)

[Dated January 16, 2007]

[Filed January 18, 2007]

ALTON H. MADDOX Jr.,

PLAINTIFF,

Vv.

A. GAIL PRUDENTI, as Presiding Justice of the

APPELLATE DIVISION, SECOND JUDICIAL

DEPARTMENT; DAVID S. RITTER,

MYRIAM J. ALTMAN, NANCY E. SMITH,

FRED T. SANTUCCI, ANITA R. FLORIO,

HOWARD MILLER, STEPHEN G. CRANE,

THOMAS A. ADAMS, DANIEL F. LUCIANO,

GABRIEL M. KRAUSMAN, SONDRA MILLER,

GLORIA GOLDSTEIN, ROBERT W. SCHMIDT,

STEVEN W. FISHER, ROBERT A. SPOLZINO,

WILLIAM F. MASTRO, BARRY A. COZIER,

REINALDO E. RIVERA, PETER B. SKELOS,

ROBERT A. LIFSON, as Associate Justices

of the Appellate Division, Second Judicial

Department,

DEFENDANTS.

ee ee ee ee ee ee ee ee a a a _ A ee _ 4 _4_4>_ 4A

ROSS, United States District Judge:

Qa

By Opinion and Order dated December 14, 2006,

this court dismissed several of the plaintiffs claims for

lack of subject matter jurisdiction pursuant to Fed. R.

Civ. P. 12(b)(1) and granted the plaintiff permission to

re-plead his First Amendment retaliation claim within

twenty days of the date of the order,

More specifically, the court held that under the

Rooker-Feldman doctrine it lacked subject matter

jurisdiction to entertain plaintiffs challenges to the

particular application of the disciplinary rules in the

state judicial proceedings against him. The court

further held that it lacked subject matter jurisdiction

to entertain plaintiffs facial challenges to the

disciplinary rules and procedures because plaintiff

lacked standing to bring such challenges. For these

reasons, the court dismissed causes of action one

through five pursuant to Fed. R. Civ. P. 12(b)(1).

With respect to the plaintiffs First Amendment

retaliation claim, the court noted that the amended

complaint omitted the admonition subsequently issued

by the Grievance Committee and so the court granted

plaintiff permission to re-plead his First Amendment

claim within twenty days, directing plaintiff to set

forth, if possible, the elements of a First Amendment

retaliation claim required by Second Circuit

precedents regarding criticism of public officials by

private citizens. See, e.g., Gill v. Pidlypchak, 389 F.3d

379 (2d Cir. 2004). The plaintiff has heretofore failed

to re-plead this claim. Nor has plaintiff requested an

adjournment. Pursuant to Fed. R. Civ. P. 12(b)(6),

the court therefore dismisses plaintiffs First

Amendment retaliation claim, his sixth cause of action,

for failure to state a claim upon which relief can be

granted.

10a

The Clerk of Court is instructed to enter judgment

accordingly.

SO ORDERED.

/s/

Allyne R. Ross

United States District Judge

Dated: January 16, 2007

Brooklyn, New York

SERVICE LIST:

Alton H. Maddox, Jr.

16 Court Street, Ste. 1901

Brooklyn, NY 11241

Defendants’ Attorney

Anthony J. Tomari

Attorney General, State of New York

120 Broadway, 24th Floor

New York, NY 10271

Magistrate Judge Bloom

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

04 CV 5444 (ARR)(LB)

[Dated December 14, 2006]

[Filed December 19, 2006]

ALTON H. MADDOX JR..

Plaintiff,

Ve

A. GATT, PRUDENTI, as Presiding Justice of the

APPELLATE DIVISION, SECOND JUDICIAL

DEPARTMENT; DAVID S. RITTER,

MYRIAM J. ALTMAN, NANCY E. SMITH,

FRED T. SANTUCCI, ANITA R. FLORIO,

HOWARD MILLER, STEPHEN G. CRANE,

THOMAS A. ADAMS, DANIEL F. LUCIANO,

GABRIEL M. KRAUSMAN, SONDRA MILLER,

GLORIA GOLDSTEIN, ROBERT W. SCHMIDT,

STEVEN W. FISHER, ROBERT A. SPOLZINO,

WILLIAM F. MASTRO, BARRY A. COZIER,

REINALDO E. RIVERA, PETER B. SKELOS,

ROBERT A. LIFSON, as Associate Justices

of the Appellate Division, Second Judicial

Department,

Defendants.

l3a

OPINION AND ORDER

ROSS, United States District Judge:

Plaintiff pro se Alton H. Maddox, Jr., commenced

the instant action with the filing of a complaint on

December 15, 2004. In his Amended and

Supplemental Complaint (“Compl.”), served = on

defendants on May 1, 2006, plaintiff mames as

defendants several] justices of the Appellate Division of

the New York State Supreme Court for the Second

Judicial Department’ and seeks declaratory and

injunctive relief. Now pending before the court is

defendants’ motion to dismiss. For the reasons set

forth below, the court grants defendants’ motion in

part, denies defendants’ motion in part, and grants

plaintiff permission to re-plead his First Amendment

retaliation claim within twenty days of the date of this

order.

BACKGROUND

The following factual allegations are drawn from

plaintiffs complaint. For the purposes of a motion to

dismiss, all facts alleged in the complaint are

presumed to be true.

According to the Second Department’s website, several of the

defendants are no longer justices of the Appellate Division. Myriam

J. Altman died on January 29, 2005. Nancy E. Smith was

“|djesignated an Associate Justice of the Appellate Division, Fourth

Department, effective November 23, 2004.” Barry A. Cozie

“{rlesigned effective January 27, 2006, to resume the active practice

of law.” (See http://www.courts.state.ny.us/courts/ad2/justices.shtml )

l4da

Plaintiff was admitted to practice law in the State

of New York on March 15, 1976. (Compl. 4 8.) In

October 1988, then Attorney General Robert Abrams

filed a complaint with the Grievance Committee for

the Second and Eleventh Judicial Districts alleging

that plaintiff had “engaged in serious professional

misconduct in connection with the highly publicized

Tawana Brawley matter and his representation of Ms.

Brawley with respect thereto.” In_re Alton _H.

Maddox, 157 A.D.2d 244, 245 (App. Div. 2d Dep't

1990) (per curiam). (See Compl. 7 12.) Plaintiff

refused to cooperate with the Grievance Committee’s

investigation. (Compl. 12; Maddox v. Mollen, No. 89

Civ. 4181, 1SG9OWL 39869, at *2(E.D.N.Y. Mar. 28,

1990).) On May 21, 1990, the Appellate Division,

Second Department, (hereinafter the “Appellate

Division”), suspended plaintiff from the practice of law

until further order of the court, but permitted plaintiff

to complete his representation of Alfred C. Sharpton,

then a defendant in a pending criminal trial. 157

A.D.2d at 250. The New York Court of Appeals denied

plaintiffs motion for leave to appeal this suspension

order. 76 N.Y.2d 705 (1990). By order dated

December 27, 1990, the United States District Court

for the Eastern District of New York suspended

plaintiff from the practice of law in this court during

the period of his suspension by the Appellate Division.

(Pl. Aff. Ex. A-1.)

On August 1, 1994, the Appellate Division

confirmed the Special Referee’s report sustaining two

allegations of professional misconduct against

plaintiff. 201 A.D.2d 24 (App. Div. 2d Dep’t 1994)

(per curiam). The specific charges sustained against

plaintiff were: (1) violating the Code of Professional

Responsibility DR 1-102(A)(5) and (8) (former (7)) (22

15a

N.Y.C.R.R. § 1200.3 |all5}, [8]), for refusing to appear

before the Grievance Committee and refusing to

cooperate with its investigation; and (2) violating those

same provisions by failing to file with the Clerk of the

court an affidavit showing compliance with the court’s

1990 suspension order and the Rules of the court. 201

A.D.2d at 25-26. As a result of these violations, the

Appellate Division suspended plaintiff from the

practice of law for a period of five years “and

continuing until the further order of this Court, with

leave to the respondent to apply for

reinstatement... .” 201 A.D.2d at 29-30. On October

12, 1994, the Appellate Division denied plaintiffs

motion for reargument of the order of suspension. (See

Decision & Order on Motion, Nov. 25, 2003, PI. Aff. Ex.

EK.) On December 1, 1994, the New York Court of

Appeals denied plaintiff's motion for leave to appeal.

84 N.Y.2d 948 (1994).

On July 21, 2003, plaintiff petitioned the Appellate

Division for an order “allowing for the immediate,

automatic and unconditional reinstatement of Alton H.

Maddox, Jr., a suspended attorney to the practice of

law based on newly-discovered evidence, fraud,

prosecutorial misconduct and misrepresentation.”

(Compl. 4] 28.) Plaintiff's basis for this petition seems

to have been a September 11, 2000, affidavit from a

member of the grand jury empanelled to investigate

the charges made by Ms. Brawley. (See Pl. Aff. 7 5; Pl.

Aff. Ex. C.) The grand juror states that the grand

jury’s report was not authored by members of the

grand jury and that dissenting grand jurors were not

informed of any right to fashion a dissent to the grand

jury report. (PI. Aft. Ex. C.) According to plaintiff, the

Grievance Committee responded to his petition on

August 18, 2003. (Pl. Opp’n Mem. 7.) The excerpts of

16a

the Grievance Committee’s opposition quoted in

plaintiffs brief to this court’ indicate that the

Committee argued that plaintiffs petition was not

properly made pursuant to 22 N.Y.C.R.R. § 691.11,

which sets forth the Appellate Division’s special! rules

for reinstatement following suspension. The excerpts

indicate that the Committee further argued that if the

Appellate Division opted to entertain plaintiffs

“motion in its present form, the Court should note that

a review of the files of the Grievance Committee.

reveals no complaints against respondent since his

suspension which have resulted in a finding of

professiona! misconduct.” (Pl. Opp’n Mem. 7.)

By Decision and Order dated November 25, 2003,

the Appellate Division, “[uJpon the papers filed in

support of the motion and the papers filed in response

thereto,” denied plaintiffs motion. (Pl. Aff. Ex. E.)

In January and February 2006, plaintiff wrote

opinion columns in the New York Amsterdam News

“stating that Judge William Erlbaum had given jury

instructions in People v. Maddox to the effect that

plaintiff was guilty of obstructing governmental

administration.” (Compl. 9 49-50.) Judge Erlbaum,

according to plaintiff, had presided over the 1985

prosecution of plaintiff for obstructing governmental

administration. (Pl. Opp’n Mem. 10.) Plaintiff states

that he had unsuccessfully objected to Judge

Erlbaum’s jury instruction. Nevertheless, the jury

acquitted plaintiff on all counts. (Pl. Opp’n Mem. 10.)

In response to plaintiffs opinion columns, defendants

“initiated a sua sponte investigation” informing

plaintiff by letters dated February 7 and 22, 2006, and

demanding “that plaintiff produce evidence including

a jury charge to prove the claims expressed in the

17a

articles”* and informing plaintiff that his failure to

cooperate with the investigation “would constitute an

independent ground of professional misconduct” and

therefore a basis to discipline plaintiff. (Compl.

{ 51-52; Pl. Opp’n Mem. 10-11.) Plaintiff states that

he “provided two lengthy responses,” which “the

Grievance Committee arbitrarily found ,

unsatisfactory.” (Pl. Opp’n Mem. 11.) Plaintiff states

that by letter “dated June 29, 2006, the Grievance

Committee informed plaintiff that it had issued an

admonition” and “that any further professional

misconduct may negatively affect plaintiffs current

legal status.” (Pl. Opp’n Mem. 11.) “An admonition

is discipline imposed without a hearing.” 22

N.Y.C.R.R. § 691.6.

On December 15, 2004, plaintiff commenced the

instant lawsuit in this court, seeking declaratory and

injunctive relief. Plaintiff now seeks declaratory and

injunctive relief on the grounds that (1) defendants’

failure to fashion procedures for post-disciplinary relief

based on newly discovered evidence, fraud,

prosecutorial misconduct and misrepresentation, such

as New York law provides civil litigants, see N.Y.

C.P.L.R. § 5015, and criminal defendants, sce N.Y.

Crim. Proc. Law § 440.10, violates the Due Process and

Equa! Protection Clauses of the Fourteenth

9

The defendants dispute that the letters demanded that

plaintiff produce evidence to prove the claims expressed in his

articles. The defendants contend that the February 7, 2006, letter

stated: “Along with your answer please feel free to submit any

material you deem relevant or helpful, such as a transcript of the

jury charge in question.” (Def. Mem. 8n.2.) Neither party has

submitted to this court any of the letters concerning the

investigation and admonition of plaintiff in 2006.

18a

Amendment; (2) defendants’ failure to give reasons for

rejecting plaintiffs application for reinstatement to

practice law violates the Due Process Clause;

(3) defendants set conditions upon plaintiffs

reinstatement in violation of the Due Process and

Equal Protection Clauses and the Ex Post Facto

Clause; (4) defendants’ failure to fashion procedures

for compulsory process and discovery to assist

attorneys in disciplinary proceedings, such as those

the First Judicial Department provides, see 22

N.Y.C.R.R. § 605.17, violates the Due Process and

Equal Protection Clauses; (5) defendants have

subjected “attorneys of African ancestry to terms,

conditions, standards and practices to be reinstated to

law different from those terms, conditions, customs,

usages, standards and procedures employed under

Judiciary Law § 90 and 22 N.Y.C.R.R. § 691.11 to

Caucasian attorneys”; and (6) defendants’

investigation in response to plaintiffs newspaper

columns constitutes retaliation in violation of the First

Amendment.

Defendants move to dismiss on the basis of the

Rooker-Feldman doctrine, res judicata, failure to state

a claim under § 1983, the statute of limitations, and

ripeness. (Def. Mem. 2.)

DISCUSSION

A. MOTION TO DISMISS STANDARD

1) Rule 12(b)(1)

When considering a motion to dismiss for lack of

subject matter jurisdiction under Rule 12(b)(1), the

court may consider affidavits and other materials

19a

beyond the pleadings. See Rebinson v. Gov't of

Malaysia, 269 F.3d 133, 140-41 & n.6 (2d Cir. 2001).

Under Rule 12(b)(1), the court must accept as true all

material factual allegations in the complaint, but will

not draw inferences favorable to the party asserting

jurisdiction. Shipping Fin. Servs. Corp. v. Drakos, 140

F.3d 129, 131 (2d Cir. 1998). However, the court notes

“that the obligation to read the pleadings of a pro se

plaintiff liberally and interpret them to raise the

strongest arguments that they suggest extends to the

question of standing no less than it does to any other

issue.” Lerman v. Board of Elections, 232 F.3d 135,

142 n.8 (2d Cir. 2000) (internal quotations and citation

omitted). As the party seeking to invoke the

jurisdiction of the court, the plaintiff bears the burden

of demonstrating that subject matter jurisdiction is

proper based on facts existing at the time the

complaint was filed. Scelsa v. City Univ. of N.Y., 76

F.3d 37, 40 (2d Cir. 1996). “While a plaintiffs

standing is ordinarily assessed as of the time a lawsuit

is brought, immediate post-filing events may be taken

into account where .. . the relief requested is directed

at preventing a future action... .” Hakim v. Chertoff,

447 F. Supp. 2d 325, 328 (S.D.N.Y. 2006).

2) Rule 12(b)(6)

On a motion to dismiss for failure to state a claim

pursuant to Rule 12(b)(6), the court should dismiss the

complaint only if “it appears beyond doubt that the

plaintiff can prove no set of facts in support of his

complaint which would entitle him to relief.” King v.

Simpson, 189 F.3d 284, 286-87 (2d Cir. 1999) (internal

quotation marks and citation omitted). The court

must accept all well-pled factual allegations in the

complaint as true end draw all reasonable inferences

20a

in favor of the plaintiff. See Koppel v. 4987 Corp., 167

F.3d 125, 130 (2d Cir. 1999). The primary inquiry is

not whether the plaintiff will ultimately prevail, but

whether the plaintiffs allegations are sufficient to

permit him to support his claims with evidence. See

Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378

(2d Cir. 1995). It should also be noted that courts are

particularly hesitant to dismiss actions filed by pro se

litigants, as pro se complaints are held to “less

stringent standards than formal pleadings drafted by

lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972).

“When considering motions to dismiss a pro se

complaint such as this, ‘courts must construe [the

complaint] broadly, and interpret [it] to raise the

strongest arguments that [it] suggestls].”” Weixel v.

N.Y.C. Bd. of Educ., 287 F.3d 138, 145-6 (2d Cir. 2002)

(quoting Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir.

2000)). As a general rule, an action brought pro se

“should not be dismissed for failure to state a claim

unless it appears beyond a doubt that the plaintiff can

prove no_ set of facts in support of his claim which

would entitle him to relief.” Hughes v. Rowe, 449 U.S.

5, 10 (1980). “Nevertheless, the [clourt is also aware

that pro se status does not exempt a party from

compliance with relevant rules of procedural and

substantive law.” I[wachiw v. N.Y.C. Bd. of Educ., 194

I’. Supp. 2d 194, 202 (E.D.N.Y. 2002) (citing Traguth

v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).

B. ROOKER-FELDMAN DOCTRINE

Defendants argue that plaintiffs claims are barred

by the Rooker-Feldman doctrine. (Def. Mem. 14-17.)

For the reasons that follow, the court concludes that

some, but not all of plaintiff's claims are so barred.

2la

Based on the general principle “that within the

federal judicial system, only the Supreme Court may

review state-court decisions,” the Rooker-Feldman

doctrine holds that “federal district courts lack

jurisdiction over suits that are, in substance, appeals

from state-court judgments.” Hoblock v. Albany

County Bd. of Elections, 422 F.3d 77, 85, 84 (2d Cir.

2005).

In the eponymous Feldman case, the Supreme

Court held that the doctrine barred district court

review of “claims that a state court has unlawfully

denied a particular applicant admission” to the state

bar, since such particular applications are judicial

proceedings in nature and effect, whereas district

courts have jurisdiction to review “general challenges

to state bar admission rules,” since state “courts may

act in a non-judicial capacity in promulgating rules

regulating the bar.” District of Columbia Court of

Appeals v. Feldman, 460 U.S. 462, 482-86 (1983).

The Supreme Court has recently clarified the

narrow scope of the doctrine. See Lance v. Dennis,

1268. Ct. 1198, 1201 (2006) (per curiam) (“[O]ur cases

since Feldman have tended to emphasize _ the

narrowness of the Rooker-Feldman rule.”); Exxon

Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,

283, 291 (2005) (noting that lower courts have

extended the doctrine “far beyond the contours of the

Rooker and Feldman cases,” and explaining “the

limited circumstances in which this Court’s appellate

jurisdiction over state-court judgments, 28 U.S.C.

§ 1257, precludes” subject-matter jurisdiction in the

district court); Hoblock, 422 F.3d at 85 (“In Exxon

Mobil, the Supreme Court pared back the

While

22a

reining in lower courts’ extension of the doctrine, the

Exxon Mobil Court left Feldman’s holding in tact. See

544 U.S. at 283-87, 291-92.

In Hoblock, the Second Circuit examined Exxon

Mobil and identified “four requirements for the

application of Rooker-Feldman”: (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”;

(4) “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.” 422 F.3d at 85 (internal quotation marks

omitted).

In this case, several of plaintiffs claims satisfy

these four requirements and are therefore dismissed

for lack of subject matter jurisdiction. Plaintiffs

second, third, and, to some extent, fifth claims for

relief meet the requirements of even this “pared back”

Rooker-Feldman doctrine. Plaintiffs second claim

alleges that defendants’ failure to give reasons for

rejecting plaintiffs application for reinstatement to

practice law violates the Due Process Clause. (Compl.

{{| 33-35, B.) By this claim, plaintiff seeks to have

this court review the Appellate Division’s Decision and

Order dated November 25, 2003, whereby that court

denied plaintiffs motion seeking reinstatement. (PI.

Aff. Ex. .) Plaintiff was the losing party in state

court. He complains of injury from the state-court

judgment, asserting that the state court’s failure to

specify its reasons violates his due process rights. He

asks this court to review and reject the state-court

23a

order. And the state-court order was rendered in

November 2008, prior to the filing of this actiun. This

claim is therefore barred by the Rooker-Feldman

doctrine.

Similarly, plaintiffs third claim alleges that

defendants set conditions upon plaintiff's

reinstatement in violation of the Due Process and

Equal Protection Clauses and the Ex Post Facto

Clause. (Compl. 9 36-38, C.) It is not clear from

plaintiffs complaint what requirements he alleges to

be ex_post facto conditions imposed on _ his

reinstatement by defendants. But to the extent that

plaintiff is complaining of the Appellate Division’s

specific application of the disciplinary rules in his

particular case and asking this court to review and

reject either the Appellate Division’s denial of

reinstatement in 2003 or its orders of 1990 or 1994

suspending plaintiff, that challenge is barred by

Rooker-Feldman.

Plaintiffs fifth claim, to the extent it seeks review

of defendants’ application of the disciplinary rules to

his particular case by alleging that defendants

subjected plaintiff to ex post facto conditions different

from those conditions “that are accorded to

Caucasians,” (Compl. 9 47), is barred for the same

reasons. It is not clear from plaintiffs complaint how

the Appellate Division’s punishment of him differed

from its application of the disciplinary rules “to

Caucasian attorneys.” But it is clear that

Rooker-eldman precludes plaintiff from asking this

court to review and reject the state-court orders

suspending him and denying him reinstatement.

24a

As this discussion suggests, however, several of

plaintiffs claims are not barred by Rooker-Feldman.

As in Feldman, to the extent that plaintiff makes a

general challenge to the constitutionality of the

Appellate Division’s disciplinary rules, his claims are

not barred by the Rooker-Feldman doctrine because

they “do not require review of a judicial decision in a

particular case.” Feldman, 460 U.S. at 482-87.

Plaintiffs first and fourth claims raise general

challenges to the Appellate Division’s disciplinary

procedures, alleging that the absence from those

procedures of mechanisms to re-open disciplinary

orders and to enable compulsory process and

discovery violates the Due Process and Equal

Protection Clauses. These claims, as well as plaintiffs

general challenge that the disciplinary procedures

violate the Equal Protection Clause by subjecting

African-American attorneys to different conditions

than those applied “to Caucasian attorneys,” are

therefore not barred by Rooker-Feldman.’ See Mosby

v. Ligon, 418 F.3d 927 (8th Cir. 2005) (holding that

Rooker-Feldman bars disciplined attorney’s claims

challenging particular application of the disciplinary

* The court notes that the Second Circuit addressed

Rooker-Feldman’s application to similar claims raised by a doctor

disciplined by New York’s Board for Professional Medical

Conduct. See Hachamovitch v. DeBuono, 159 F.3d 687 (2d Cir.

1998). In Hachamovitch, the court applied this circuit’s overly

expansive Rooker-Feldman principles to bar adoctor’s claim that

he was entitled to exculpatory evidence, while permitting review

of the doctor’s claim that the disciplinary proceedings are

constitutionally defective due to “the absence of any mechanism

for the reopening of a closed disciplinary proceeding in hght of

newly discovered evidence.” 159 F.3d at 694-96.

25a

procedures of the Arkansas bar but does not bar

attorney’s facial challenges to the rules).

C. STANDING

Although the parties have not addressed the issue

of standing, the court raises it sua sponte because it

“goes to this [clourt’s subject matter jurisdiction.”

Central States Southeast and Southwest Areas Health

and Welfare Fund v. Merck-Medco Managed Care,

L.L.C., 433 F.3d 181, 198 (2d Cir. 2005); Henneberry

v. Sumitomo Corp. of America, 415 F. Supp. 2d 423,

438 (S.D.N.Y. 2006) (“Regardless whether the parties

raise standing on their own, the Court may address

the issue at any time, sua sponte.”).

Before addressing the issue of standing, however,

the court disposes of any argument that standing

doctrine would not apply here. In light of the

similarities between plaintiffs’ remaining claims and

those raised in Feldman, where the Supreme Court

stated that the district court in that case “has subject

matter jurisdiction over [the general constitutional

challenges] of [Feldman’s] complaint|],” 460 US. at

487, it may seem odd to suggest that this court lacks

subject matter jurisdiction in this case. Nevertheless,

the Supreme Court has cautioned that “|wjhen

questions of jurisdiction have been passed on in prior

decisions sub silentio, this Court has never considered

itself bound when a subsequent case finally brings the

jurisdictional issue before us.” Hayans v. Lavine, 415

U.S. 528, 535 n.5 (1974); see also Adeleke v. U.S., 355

F.3d 144, 149-50 (2d Cir. 2004); Mosby v. Ligon, 418

F.3d 927, 932-33 & n.2 (8th Cir. 2005) (“But Feldman

does not relieve Mosby of the requirement that she

demonstrate Article II] standing, and we conclude

26a

that Mosby does not have standing to bring what she

uescribes as her facial challenge.”); Grendell v. Ohio

Supreme Court, 252 F.3d 828, 835-37 (6th Cir. 2001)

(“(T]he Supreme Court’s determination in Feldman

concerning a federal district court’s subject matter

jurisdiction over a general constitutional challenge,

made without comment as to the standing of the

litigants, cannot be construed as implying that all

general constitutional challenges made in recognition

those litigants.”). In addition, courts in this Circuit

have applied the ordinary standing requirements after

dismissing some of plaintiffs claims on the basis of

Rooker-Feldman. See, e.g., International Fidelity

Insurance Co. v. City of New York, 263 F. Supp. 2d

619, 629-35 (E.D.N.Y. 2003) (holding that

Rooker-Feldman bars several claims and lack of

standing bars remaining claims).*

These decisions firmly establish that although

plaintiff has successfully avoided the dismissal of his

entire complaint on the basis of Rooker-Feldman,

plaintiff, as the party invoking this court’s jurisdiction,

nonetheless “bears the burden of establishing the

elements of standing.” Lujan v. Defenders of Wildlife,

504 US. 555, 561 (1992).

Under Article III, § 2 of the Constitution, plaintiff

must show that: “(1) [he] has suffered an injury in fact

“ The court further notes an unpublished summary order in

which the Second Circuit side-stepped the difficult question of

dismissal on the basis of Rooker-Feldman by holding that plaintiff

“lacks standing to pursue the declaratory relief demanded.”

Assistance, 153 Fed. Appx. 753, 754-55 (2d Cir. 2005)

27a

that is (a) concrete and particularized and (b) actual or

imminent, not conjectural or hypothetical; (2) the

injury is fairly traceable to the challenged action of the

defendant(s]; and (3) it is likely, as opposed to merely

speculative, that the injury will be redressed by a

favorable decision.” Hakim v. Chertoff, 447 F. Supp.

2d 325, 327-28 (S.D.N.Y. 2006) (quoting Friends of the

Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528

U.S. 167, 180-81 (2000)). “A plaintiff must

demonstrate standing for each claim and form of relief

sought.” Vaughn v. Consumer Home Mortgage Co.,

No. 01 Civ. 7937, 2006 WL 2239324, at *5 (E.D.N_Y.

Aug. 4, 2006) (internal quotation omitted).

Most significantly for this case, “la] plaintiff

seeking injunctive or declaratory relief cannot rely on

past injury to satisfy the injury requirement but must

show a likelihood that he or she will be injured in the

future.” Deshawn E. by Charlotte E. v. Safir, 156

F.3d 340, 344 (2d Cir. 1998) (citing City of Los Angeles

v. Lyons, 461 U.S. 95, 105-06 (1983)). In addition,

“abstract injury is not enough; rather, the injury or

threat of injury must be both real and immediate, not

conjectural or hypothetical.” Shain v. Ellison, 356 F.3d

211,215 (2d Cir. 2004) (internal quotations omitted).

Aside from plaintiffs First Amendment retaliation

claim, discussed below, plaintiffs remaining claims

raise general challenges to the Appellate Division’s

disciplinary rules. Plaintiffargues that the procedures

are constitutionally deficient because: (1) they lack a

mechanism whereby a disciplined attorney may

re-open and vacate the punishment on the basis of

newly-discovered evidence or the misconduct of an

adverse party; (2) they lack a mechanism for attorneys

in disciplinary proceedings to obtain compulsory

28a

: 5 é —s .

process and discovery; and (3) the conditions for

reinstatement for African-American attorneys differ

from those applied “to Caucasian attorneys.”

The court concludes that plaintiff lacks standing to

raise these claims because the record here does not

demonstrate that he is likely to suffer from any of

these alleged constitutional deficiencies in the future.

Undoubtedly, plaintiff has been injured by his past

encounters with the Appellate Division’s disciplinary

procedures. In 1988, plaintiff was reprimanded “for

his disrespectful and obstreperous conduct as a

defense attorney on July 11, 1984, when he threw his

briefcase in the direction of the Judge’s bench,

striking the bench.” In _ re Alton H. Maddox, 201

A.D.2d 24, 29, 615 N.Y.S.2d 439, 441 (App. Div. 2d

Dep’t 1994) (per curiam). In 1990, plaintiff was

suspended. See In re Alton H. Maddox, 157 A.D.2d

244, 555 N.Y.S.2d 851 (App. Div. 2d Dep’t 1990) (per

curiam). In 1994, plaintiff was again suspended. 201

A.D.2d 24,615 N.Y.S.2d 439. And in 2006, according to

plaintiff, he was admonished. (PI. Opp’n Mem, 11.)

Although these past punishments can be “evidence

bearing on whether there is a real and immediate

threat of repeated injury,” City of Los Angeles v.

Lyons, 461 U.S. 95, 102 (1983) (internal quotation

omitted), they do not serve to establish the existence of

The court notes that plaintiffs claim that the Second

Department Appellate Division must provide for discovery similar

to that provided by the First Department Appellate Division

under 22 N.Y.C.R.R. § 605.17 may now be moot. Pursuant to the

recommendations of the Krausman Report, (PI. Aff. Ex. D at 14,

25), the Second Department has adopted a rule similar to the

First Department’s rule. See 22 N-Y.C.R.R. § 691.5-A.

29a

such a threat. Plaintiff must demonstrate that he

faces a concrete and particularized, non-speculative,

imminent future harm. For plaintiff to satisfy his

burden of establishing a sufficient likelihood of injury

by a future unconstitutional disciplinary procedure, he

would have to show that if he engages in professional

misconduct and if he is investigated by the Grievance

Committee and if he is disciplined and if he obtains

newly-discovered evidence which “would probably have

produced a different result” or evidence of misconduct

by an adverse party, see N.Y. C.P.L.R. § 5015, he will

be denied an opportunity to present that evidence or

he will be denied a means to obtain necessary evidence

by compulsory process or discovery or he will be

subjected to different disciplinary conditions because

of his race. As the Second Circuit stated in Shain,

“l|s]Juch an accumulation of inferences is simply too

speculative and conjectural to supply a predicate for

prospective [equitable] relief.” Shain, 356 F.3d at 216.

Furthermore, this conclusion comports' with

opinions in other circuits holding that disciplined

attorneys lack standing to raise general challenges to

state disciplinary rules. In Mosby v. Ligon, the Eighth

Circuit dismissed for lack of standing a punished

attorney’s facial challenge to the Arkansas Model

Rules of Professional Conduct. 418 F.3d 927 (8th Cir.

2005). ‘The plaintiff in that case, Lori Mosby, alleged

that the director of the Arkansas Supreme Court

Committee on Professional Conduct had acted and

was likely to act in bad faith and with deliberate

indifference toward Mosby’s rights, that he was likely

to apply the rules to her in a manner that violated the

Equal Protection and Due Process Clauses, and that

the Supreme Court's Justices discriminatorily applied

the rules and acted with deliberate indifference toward

30a

such discrimination. 418 F.3d at 929-30. The Eighth

Circuit held that Mosby lacked standing to raise such

general challenges, stating:

We deem apropos the Supreme Court’s

observation in O’Shea fv. Littleton], that

“attempting to anticipate whether and when

respondents will be charged with crime .

takes us into the area of speculation and

conjecture,” 414 U.S. at 497, because we have

the same inability to foresee whether Mosby

will face future disciplinary proceedings. The

speculative nature of making this prediction

leads us to conclude that the record does not

establish a real or immediate threat of repeated

injury. Mosby thus lacks standing to pursue the

injunctive relief that she seeks.

418 F.3d at 933-34.

Similarly, in Grendell v. Ohio Supreme Court, the

Sixth Circuit held that attorneys sanctioned pursuant

to Ohio Rule of Civil Procedure 11 lacked standing to

argue that the sanctions rules facially violate the Due

Process Clause by failing to afford notice and the

opportunity to be heard. 252 F.3d 828 (6th Cir. 2001).

The Sixth Circuit explained that in order

to show a palpable threat of future injury

necessary to achieve standing for declaratory

and injunctive relief, Grendell must present

evidence establishing: (1) that he is bringing or

highly likely to bring a lawsuit before the Ohio

Supreme Court; (2) that such lawsuit is

allegedly frivolous, exposing him to sanctions

under Rule XIV, § 5; (3) that the Ohio Supreme

3la

Court would, in its discretion, impose such

sanctions; and (4) that the imposition of those

sanctions would violate due process. Such a

chain of events is simply too attenuated to

establish injury in fact, and to confer the

required standing in this case.

252 F.3d at 833.

Although in light of plaintiffs pro se status the

court would ordinarily afford plaintiff an opportunity

to amend his complaint to establish standing, in this

case the court concludes that it is beyond a doubt that

plaintiff cannot put forth the facts necessary to

establish standing. For these reasons, the court

concludes that plaintiffs claims raising general

challenges to the Appellate Division’s disciplinary

rules and procedures are dismissed for lack of subject

matter jurisdiction.°®

° The court further notes an additional basis for concluding

that plaintiff lacks standing to challenge the disciplinary

procedure’s absence of a mechanism for re-opening a suspension.

Even if plaintiff is correct in arguing that the Constitution

requires that the state provide to disciplined attorneys a

mechanism to re-open their punishments similar to that provided

to civil litigants by N.Y.C.P.L.R. § 5015 and to criminal

defendants by N.Y. Crim. Proc. § 440.10, plaintiffs alleged basis

for re-opening his suspension appears to be meritless. Under

C.P.L.R. § 5015(a)(2), relief from a judgment may be had if

newly-discovered evidence “would probably have produced a

different result.” Similarly, under Crim. Proc. Law § 440.10(1)(g),

the standard for vacating a judgment requires that new evidence

“create a probability that had such evidence been received at the

trial the verdict would have been more favorable to the

defendant.” The newly-discovered evidence identified in plaintiff's

complaint consists of an affidavit from a grand juror empanelled

32a

D. FIRST AMENDMENT RETALIATION

Defendants argue that plaintiffs First Amendment

claim is not ripe for review because plaintiff has not.

been “punished, or even threatened with punishment

for his admitted comments.” (Def. Mem. 19-21.)

Defendants contend that the “Grievance Committee

has merely begun an investigation into Plaintiffs

statements.” (Def. Reply Mem. 9-11.) Defendants

concede that “[ilf the Grievance Committee ultimately

attempts to discipline Plaintiff for his speech, Plaintiff

is free to” advance his free speech claims in state court.

(Def. Reply Mem. 10.)

Defendants fail to acknowledge, however, that

plaintiff has indicated in his brief that the Grievance

Committee, by letter dated June 29, 2006, “informed

plaintiff that it had issued an admonition,” (Pl. Mem.

11), which is defined as “discipline without a hearing.”

See 22 N.Y.C.R.R. § 691.6. Because this admonition

occurred after plaintiff served his amended and

supplemental complaint on May 1, 2006, the complaint

obviously omits it.

to investigate the charges made by Ms. Brawley and relates to the

grand jury report in that investigation. (See PI. Aff. 7 5; Pl. Aff.

Ex. C.) Plaintiffs suspensions, however, were based not on the

initial charges of misconduct relating to plaintiff's representation

of Ms. Brawley, but rather on his refusal to cooperate with the

Grievance Committee’s investigations and his failure to file an

affidavit demonstrating compliance with his suspension. The

affidavit, therefore, has no bearing whatsoever on the conclusion

that plaintiff violated the rules for which he was suspended.

Plaintiff is neither injured by the absence of the procedure he

desires nor would any injury be redressed by a favorable decision

in this court.

33a

Plaintiff is therefore permitted to amend his

complaint to include this subsequent allegation of

retaliation. Without evaluating plaintiffs claim at this

time, the court notes that the Grievance Committee

may be the more appropriate defendant. In

re-pleading, plaintiff should also be careful to set forth,

if possible, the elements of a First Amendment

retaliation claim required by Second Circuit

precedents regarding criticism of public officials by

private citizens. See. e.g., Gill v. Pidlypchak, 389 F.3d

379 (2d Cir. 2004) (discussing various formulations of

the elements of First Amendment retaliation claims

but opting not to “choose among these various

possibilities to decide the case before us today”).

CONCLUSION

For the reasors discussed above, the court grants

defendants’ motion for dismissal in part, denies

defendants’ motion in part, and grants plaintiff

permission to re-plead his First Amendment

retaliation claim. Specifically, under’ the

Rooker-Feldman doctrine, the court lacks subject

matter jurisdiction to entertain plaintiffs challenges to

the particular application of the disciplinary rules in

the state judicial proceedings against him. To the

extent plaintiffs complaint raises facial challenges to

the disciplinary rules and procedures, the court lacks

subject matter jurisdiction because plaintiff lacks

standing to bring such challenges. Finally, the court

grants plaintiff permission to re-plead his First

Amendment retaliation claim within twenty days of

the date of this order.

SO ORDERED.

/s/

Allyne R. Ross

United States District Judge

Dated: December 14, 2006

Brooklyn, New York

35a

SERVICE LIST:

Alton H. Maddox, Jr.

16 Court Street, Ste. 1901

Brooklyn, NY 11201

Defendants’ Attorney

Anthony J. Tomari

Attorney General, State of New York

120 Broadway, 24th Floor

New York, NY 10271

ce: Magistrate Judge Bloom

36a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

07-0187-cv

[Filed January 26, 2009]

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Daniel

Patrick Moynihan United States Courthouse, 500

Pearl Street, in the City of New York, on the 26th day

of January, two thousand and nine.

Before: Hon. Dennis Jacobs,

Hon. Reena Raggi,

Hon. Debra Ann Livingston,

Circuit Judges.

Alton H. Maddox Jr.,

Plaintiff-Appellant,

V.

A. Gail Prudenti, David S. Ritter, Myriam J.

Altman, Nancy E. Smith, Fred T. Santucci,

Anita R. Floria, Iloward Miller, Stephen G. Crane,

Thomas A. Adams, Daniel F. Luciano, Gabriela M.

Krausman, Sondra Miller, Gloria Goldstein,

Robert W. Schmidt, Steven W. Fisher, Robert A.

Spolzino, William F. Mastro, Barry Cozier,

Peter B. Skelos, Robert A. Lifson, as Associate

Justices of the Appellate Division,

’

— — ee _—_ — Nee eee ee — ~—

37a

Second Judicial Department,

Defendants-Appellees.

Alton H. Maddox, Jr., having filed a petition for

panel rehearing and the panel that determined the

appeal having considered the request,

IT IS HEREBY ORDERED that the petition is

denied.

For the Court:

Catherine O’Hagan Wolfe, Clerk

By:

Frank Perez, Deputy Clerk

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR 'THE SECOND CIRCUIT

07-0187-cv

[Filed May 5, 2009]

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Daniel

Patrick Moynihan United States Courthouse, 500

Pear! Street, in the City of New York, on the 5th day

of May, two thousand and nine,

Before: Hon. Dennis Jacobs,

Chief Judge,

Hon. Reena Raggi,

Hion. Debra Ann Livingston,

Circuit Judges.

Alton H. Maddox Jdr.,

Piaintiff-Appellant,

vi

A. Gail Prudenti, David S. Ritter, Myriam J.

Altman, Nancy E. Smith, Fred T. Santucci,

Anita R. Floria, Howard Miller, Stephen G. Craiie,

Thomas A. Adams, Daniel F. Luciano, Gabriela M.

Krausman, Sondra Miller, Gloria Goldstein,

Robert W. Schmidt, Steven W. Fisher, Robert A.

Spolzino, William F. Mastro, Barry Cozier,

Peter B. Skelos, Robert A. Lifson, as Associate

39a

Justices of the Appellate Division,

Second Judicial Department,

Defendants-Appellees.

IT IS HEREBY ORDERED that the motion by pro

se Appellant Maddox to publish the summary order

dated December 23, 2008 is DENIED.

For the Court:

Catherine O’Hagan Wolfe, Clerk

By:_ ° Sa

Judy Pisnanont

Motions Staff Attorney