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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0703%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2009

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0703%3A1. Public record. Not legal advice.