Petition for Writ of Certiorari — Capogrosso v. New York State Commission on Judicial Conduct
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091196 MAR 29 2010
No.
IN THE OFFICE OF THE CLERK
Supreme Court of the United States
ELEANOR CAPOGRKOSSO, PETITIONER,
Vv.
THE NEW YORK STATE COMMISSION
ON JUDICIAL CONDUCT ET AL.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
PETITION FOR WRIT OF CERTIORARI
KH LEANOR CAPOGROSSO
Pro se
122 Fast 42™ Street
Suite 1616
New York, NY 10168
(212)509-7700
eleanor@capogrosso.com
CURRY & TAYLOR ® 202-393°4141
1
QUESTIONS PRESENTED
1. Does the district court’s sua sponte dismissal of
petitioner’s complaint without notice and without the
opportunity to replead deny her due process?
2. Was Circuit Judge Wesley bound to recuse
himself from hearing this appeal?
21
PARTIES TO THE PROCEEDING
Eleanor Capogrosso, Petitioner,
The New York State Commission on Judicial Conduct,
The State of New York; The Office of Court
Administration of the Unified Court System; The
Appellate Division, First Department, Departmental
Disciplinary Committee; Hon. Fern Fisher Brandvecn, in
her official and individual capacities; Hon. Eileen
Bransten, in her official and individual capacities; Hon.
John T. Buckley, in both his official and individual
capacities; Hon. Joan B. Carey, in her official and
individual capacities; Sherry K. Cohen, in her official and
individual capacities; Paul J. Curran, in his official and
individual capacities; Hon. Carol R. Edmead, in her
official and individual capacities; Raoul Felder, in his
official and individual capacities; Hon. Judith Gische, in
her official and individual capacities; Sarah Jo Hamilton,
in her official and individual capacities; Hon. Debra
James, in her official and individual capacities; Hon.
Judith S. Kaye, in her official and individual capacities;
Hon. Joan M. Kenney, in her official and individual
capacities; Catherine O’ Hagan Wolfe, in her official and
individual capacities; Hon. Jeffrey K. Oing, in his official
and individual capacities; Hon. Eileen A. Rakower, in her
official and individual capacities; Sherrill Spatz, in her
official and individual capacities; Hon. Martin A. Shulman,
in his official and individual capacities; Hon. Geoffrey D.
Wright, in his official and individual capacities; John Doe
1-20; Jane Doe 1-20; The Appellate Division, First
Department, Departmental] Disciplinary Committee; and
Thomas J. Cahill, in his official and individual capacities,
Respondents.
v1
TABLE OF CONTENTS
Page
FES TIONS PRESENTED aiaticotecetaeeeiesonecenenee
PARTIES 70 THE PROC EEIIIG ciwisccic rarer ree il
TABLE OF RATT icicnssvteasicecsteneetce ees i\
CP UIT ITS TRAIT saicnshnsasscvorsssstaucstste sioretantennceteeeee ee l
PUIG vse sss ckseacancavicresxcdteadeecceenaacen eee 2
RELEVANT PROVISIONS INVOLVED. ......0::ccccccsoscoossecsssecesdeseseoss 2
ORT bind ee 8
REASONS FOR GRANTING THE PETITION ...........cscccsessceseeeesees 17
Cie aon icko sh doucssnees tn cena podntaeceets a ae ea
APPENDIX
CRIME CE FI oro kccviesaneccaccivsssesadnceecate eee la
Mstrict Court Opinion & Order (2006) .0.......cccccccceeseeeeeeeeees 4a
Distract Cicet Cree COIR) ovsecisccseseiescnscsccscssecsecenensiseassenens 52a
OPer EPG TOO ICI sis ois visecnccnasinnsrsisicssecscservieinsarrnnnsens 57a
wv)
TABLE OF AUTHORITIES
Page
CASES
ABBAS V. DIXON, 480 F.3D 636, 639-640(2*" CIR. 2007) ....18, 19
ACOSTA V. ARTUZ, 221 F.3D 117, 124(2*” CIR. 2000)............... 18
ARNETT V. KENNEDY, 416 U.S. 134, 142-146(1974).........0000.. 17
ASHCROFT V. IQBAL ET AL., 556 U.S.__ (2009).......... 22, 28, 29
BELL V. ATLANTIC CORP. V. TWOMBLY, 550 U.S. 544,
Ey ESDP RAR ED PSPS ie Sno TELS PEPPER STARS 22
BLAKELY V. WASHINGTON, 542 U.S.296, 305-
a a ecdaas a iuniureiaasaoin 21,2
BOARD OF REGENTS V. ROTH, 408 U.S. 564, 571-
8. 3. 3 NR aa een aeRO RRO MNa ARE ARN AS SEE AMOR a AN he AEN OPER OME ALS 18
BRISCOE V. LAHUE, 460 U.S. 325, 341 N.26(1983) ..................20
CITIZENS UNITED V. FEDERAL ELECTION COMMN.,
ee rd PS ie ecco ech tins nici
COMMERCIALES S.A. V. ROGERS, 357 U.S. 197,
I as Neo) oe yO ne sc enaannednaneh 2)
CONLEY V. GIBSON, 355 U.S. 41, 45-46(1957).........ccccccceessessesee Qe
DENNIS V. HIGGINS, 498 U.S. 439, 445(1991)..... ee eee 24
DISTRICT OF COLUMBIA COURT OF APPEALS V.
FLEA, GO Ue. GD viiiccnseccssscsevetcercensencsssccesses 25, 26
KE ADES V. THOMPSON, 823 F.2D 1055, 1061-1062(7™
ON as caries saint cease aces acakhatsadsanierade canssegsaasvacansvousaivacss 19
EDELMAN V. JORDAN, 415 U.S. 651, 663(1974)....... eee 24
IE.XXON MOBIL CORP. V. SAUDI BASIC INDUSTRIES
Ce ae ia cikik decks danke heretctastelecacctdcsrcns 26
FORRESTER V. WHITE, 484 U.S. 219, 229(1988) .............eceeeeeee 25
GOLDBERG V. KELLY, 397 U.S. 254, 269-270(1970).............00 21
HAMDI V. RUMSFELD, 542 U.S. 507, 5383(2004)............eeeeeee eee 29
ICC v. LOUISVILLE & N. R. Co., 227 U.S. 88,93-
BE ai cca: ca shacecins tc caesdatanauche acc cctiaaiecanaeais pukasoliakveiaies 21
IN RE MURCHISON, 349 U.S. 1838, 186 (1955)... cette eens 29
KLAPPROTT V. UNITED STATES, 335 U.S. 601, 611
EN ic ticki ces aciciepe cases balan adaeanadaecub aint moacaa ain aedenzeepinien 20
LANCE V. DENNIGB, B46 US. SERB ED vcsiscsiccicccnscscsscsecscccrscescns at
LEWIS V. NEW YORK, 547 F.2D 4, 6 N.4(2"" CIR. 1976)........... 18
UV
LUGO V. KEANE, 15 F.3D 29, 31(2"" CIR. 1994) .........c0ececccceceees 19
LUJAN V. DEFENDERS OF WILDLIFE, 504 U.S. 555,
SI acoso cvesies cutatc ops act uswunmmunndcuneerosatiaanvaseinaa 28
MARBURY V. MADISON, 5 U.S. (1 CRANCH) 1387,
I Ti cits sn Ain ct du coexec ceed) camvehadauiocenaieaieded gpindian ie dciahaveiacenl 24
MCCULLOCH V. MARYLAND, 17 U.S. 316, 486(1819).............. 24
MCNABB V. UNITED STATES, 318 U.S. 332, 341(1948)........... 20
MEMPHIS LIGHT, GAS & WATER DIV. v. CRAFT, 4386
ee ee Eh. apa cata cates vanutunbensnsetenaianteiavaabeanend 17,20
MIRELES V. WACO, 502 U.S. 9, 11-12(1991) ...... ee 25
MITCHUM V. FOSTER, 407 U.S. 225, 238-239 (1972) ................ 24
MONROE V. PAPE, 365 U.S. 167, 180(1961)........0.. ee eeeeees 24
MULLANE V. CENTRAL HANOVER TR. Co., 339 U.S.
a ek asia lead nabs enaneeaneds 17
OFFUTT V. UNITED STATES, 348 U.S. 11,14(1954). oe. 29
PEREZ V. ORTIZ, 849 F.2D 793, 797(2"" CIR. 1988) ............ 19, 20
QUERCIA V. UNITED STATES, 289 U.S. 466, 470(1933) .......... 29
QUERN V. JORDAN, 440 U.S, 332, 337(1979)...........csessceeseesseees 24
ROOKER V. FIDELITY TRUST Co., 263 U.S. 413(1923) ........... 25
SCREWS V. UNITED STATES, 325 U.S. 91, 107-
TD dlc cci ad cs sede cpncaky ca seed pacudeieedsmasndasannbaterssainariou 24
SNIDER V. MELINDEZ, 199 F.3D 199 F.3bD 108, 118(2"°
GR.) SURREY Ser eden te Bae OOFU NTRP ER Ien See Mee nT ERE POND SP Ioan 19
SQUARE D Co. V. NIAGRA FRONTIER TARIFF
BUREAU, INC., 760 F.2D 1347, 1865(2*° CIR. 1988) ............ 18
STUMP V. SPARKMAN, 435 U.S. 349, 356-357(1978).........0..0... 25
UNITED STATES V. BURKE, 504 U.S. 229 (1992)... eee 19
UNITED SYATES V. CLASSIC, 313 U.S. 299, 326 (1941)........... 24
VOLKSWAGENWERK AKTIENGESELLSCHAFT V.
SCR UI, CS UF Be. GG Te aves ecsccnsnessncnicdsevesssoscennens 17
WARD V. MONROEVILLE, 409 U.S. 57, 61-62(1972)........... 20, 29
WILLNER V. COMMITTEE ON CHARACTER AND
FITNESS, 373 U.S. 96, 108-104(1963)...........-...cscccsensseonees 20, 2)
WITHROW V. LARKIN, 421 U.S. 35, 46-47(1975) ................ 20, 29
CU, BO USS. Te, FO css sav vec cesses icnssnencenssscienesacemesens 24
STATUTES
Nee oN ns ces cnuceanactcdaaatunceci j
a ss cus ubdacahdsaedvansiekssidueucawancvawsineances 2
ee EP secu uahidusd GewsghavilevebadeacsucessGeneescies 3
a Ds ews dbus node ba bbpuseunniabiseaeovansvecuaeses 2
a es canasseubcabaubvesbanverrsensacasvasncecttte aT
28 U.S.C. $ s 1 343( (a)( (35) eee ISCO SOSEEOCOSCOSOOTOOSOCOOCCOOOTOCOOCOT COLO SOOOe eT TT eee ee eee eee 14
ee do as aduisei nays casiueidvebdei bode cnnvexesisnussuasvenstbonesesnieie 26
28 U.S.C. § 2101(c) 2
LS) SEN ies crduadad 14, 24
RULES
es a depalbsuubinbanesasaaenisaidsivdasual >, 17
led. R. Civ. P. 7(b)(1)
Fed. R. Civ. P. 8(a)(1) ;
Fed. R. Civ. P. 12(b)(6) 3
a rs cs vauutbiuhtsnccenedavacviswadocacddesin, 19
I ar, EO san pave abubaa teas daunasdscdesamivereasaiesiacst 6
]
OPINIONS BELOW
The unpublished summary order of the Court of
Appeals for the Second Circuit in Kleanor Capogrosso
v. State Commission on Judicial Conduct et al., C.A.
No. 08-4719, filed October 30, 2009, affirming the
district court’s sua sponte dismissal of petitioner’s
amended complaint, is set forth in the Appendix
hereto(App.1-3).
The unpublished opinion of the U.S. District
Court for the Southern District of New York,
Scheindlin, J., in Lleanor Capogrosso v. State
Commission on Judicial Conduct et al., C.A. No.
5455(SAS), filed August &, 2008, dismissing sua sponte
petitioner’s amended complaint, is set forth in the
Appendix hereto(App. 4-51).
The unpublished Order of the United States
District Court for the Southern District of New York,
Scheindlin, J., in Kleanor Capogrosso wv. State
Commission on Judicial Conduct et al., C.A. No.
5455(SAS), August 27, 2008, denying the petitioner’s
motion for reconsideration, is set forth in the Appendix
hereto(App. 52-55).
The unpublished Order of the Court of Appeals
for the Second Circuit in Kleanmor Capogrosso v. State
Commission on Judicial Conduct et al., C.A. No. O8&-
4719, filed December 29, 2009, denying petitioner’s
petition for panel rehearing or for rehearing en banc, is
set forth in the Appendix hereto(App. 56-57).
©)
—
JURISDICTION
The judgment of the United States Court of
Appeals for the Second Circuit affirming the district
court’s sua sponte dismissal of petitioner’s amended
complaint, was entered on October 30, 2009(App. 1-3).
Its further Order denying petitioner’s timely filed
petition for panel rehearing or for rehearing en banc
was filed and decided on December 29, 2009(App. 56-
ov).
This petition for writ of certiorari is filed within
ninety (90) days of the date the court of appeals denied
petitioners’ timely filed petition for rehearing or for
rehearing en banc. 28 U.S.C. § 2101(c). Supreme Court
Rule 13.38. The jurisdiction of this Court is invoked
pursuant to the provisions of 28 U.S.C. § 1254(1).
RELEVANT PROVISIONS INVOLVED
United States Constitution, Amendment V:
No person...shall be deprived of life, liberty, or
property, without due process of law....
United States Constitution, Amendment VIT:
In Suits at common law, where the value in
controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved, and no
fact tried by a jury, shall be otherwise
reexamined in any Court of the United States,
than according to the rules of the common law.
3
United States Constitution, Amendment XT:
The Judicial power of the United States shall not
be construed to extend to any suit in law or in
equity, commenced or prosecuted against one of
the United States by Citizens of another State,
or by Citizens or Subjects of any Foreign State.
United States Constitution, Amendment XIV, § 1:
...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....
28 U.S.C. § 1331:
The district courts. shall have original
jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United
States.
28 U.S.C. $$ 1848(a)(3) & (4):
(a) The district courts shall have onginal
jurisdiction of any civil action authorized by law
to be commenced by any person:
(3) ‘l'o redress the deprivation, under color of any
State aw, statute, ordinance, regulation, custom
or usage, of any right, privilege or immunity
secured by the Constitution of the United
States or by any Act of Congress providing for
4
equal rights of citizens or of all persons within
the jurisdiction of the United States;
(4) To recover damages or to secure equitable or
other relief under any Act of Congress providing
for the protection of civil rights, including the
right to vote.
28 U.S.C. § 455:
(a) Any justice, judge, or magistrate judge of the
United States shall disqualify himself in any
proceeding in which his impartiality might
reasonably be questioned.
(b) He shall also disqualify himself in the
following circumstances:
(1) Where he has a personal bias or prejudice
concerning a party, or personal knowledge of a
disputed evidentiary facts concerning the
proceeding;
(5) Where he or his spouse, or a person within
the third degree of relationship to either of them,
or the spouse of such person
(iv) is to the judge’s knowledge likely to be a
material witness in the proceeding.
Crvil Rights Act-42 U.S.C. § 1983:
[Every person who under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of
theUnited States or other person within the
jurisdiction thereof to the deprivation of any
7)
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or
other proper proceeding for redress....
Fed. R. Cru. P. A:
(The federal rules of civil procedure] ...shall be
construed and administered to secure the just,
speedy, and inexpensive determination of every
action and proceeding.
Fed. R. Civ. P. 7(b)(D:
(1) In General. A request for a court order must
be made by motion....
Fed. R. Crv. P. 8(a) (1) & (2):
(a) Claims for relief. A pleading that states a
claim for relief must contain:
(1) a short and plain statement of the grounds for
the court’s jurisdiction, unless the court already
has jurisdiction and the claim needs no new
jurisdictional support;
(2) a short and plain statement of the claim
showing that the pleader is entitled to relief...
Fed. R. Civ. P. 12(6)(6):
..{TJhe following defenses may at the option of
the pleader be made by motion:...(6) failure to
state a claim upon which relief can be granted....
6
Fed. R. Civ. P. 15(a) (1) & (2):
(a) Amendments Before Trial.
(1) Amending as a Matter of Course. A party
may amend its pleading once as a matter of
course:
(A) before being served with a responsive
pleading; or
(B) within 20 days after serving the pleading
if a responsive pleading js not allowed and the
action is not yet on the trial calendar.
(2) Other Amendments. In all other cases, a
party may amend its pleading only with the
opposing party’s written consent or the court’s
leave. The court should freely give leave when
justice so requires.
Article VI, § 22, Const. of the State of New York:
There shall be a commission on judicial conduct.
The commission on judicial conduct shall receive,
iniliate, investigate and hear complaints with
respect to the conduct, qualifications, fitness to
perform or performance of official duties of any
judges or justice of the unified court system, in
the manner provided by law; and, in accordance
with subdivision d of this section, may determine
that a judge or justice be admonished, censured
or removed from office for cause, including, but
not limited to, misconduct in office, persistent
failure to perform his or her duties, habitual
intemperance and conduct, on or off the bench,
prejudicial to the administration of justice, or
that a judge or justice be retired for mental or
7
physical disability preventing the _ proper
performance of his or her judicia! duties.
New York Judiciary Law, § 44(1):
The commission’ shall receive, initiate,
investigate and hear complaints with respect to
the conduct, qualifications, fitness to perform, or
performance of official duties of any judge, and,
in accordance with the provisions of subdivision
d of section twenty-two of article six of the
constitution, may determine that a judge be
admonished, censured, or removed from office
for cause, including, but not limited to,
misconduct in office, persistent failure to
periorm his duties, habitual intemperance and
conduct, on or off the bench, prejudicial to the
administration of justice, or that a judge be
retired for mental or physical _ disability
preventing the proper performance of his
judicial duties.
New York Judiciary Law, § 90(2):
The supreme court shall have power and control
over attorneys and counselors-at-law and _ all
persons practicing or assuming to practice law,
and the appellate division of the supreme court
in each department is authorized to censure,
suspend from practice or remove from office any
attorney and counselor-at-law admitted to
practice who is guilty of professional misconduct,
malpractice, fraud, deceit, crime or
misdemeanor, or any conduct prejudicial! to the
administration of justice; and the appellate
8
division of the supreme court is hereby
authorized to revoke such admission for any
misrepresentation or suppression of any
information in connection with the application
for admission to practice.
STATEMENT
In 1997, petitioner Eleanor Capogrosso
(“petitioner”), an attorney duly licensed to practice law
in New York, retained the law firm of Gentile and
3enjamin to defend an action brought against her by
another attorney, Gregory Calabro, involving a fee
dispute(App. 16). Both Michael Gentile and Howard
Benjamin were formerly associated with the
Department Disciplinary Committee of the New York
State Supreme Court Appellate Division, First
Department (“the DDC”), a state body charged by law
with investigating and enforcing attorney discipline.
Gentile had been its Chief Counsel for nine years and
Benjamin had been a staff attorney.
When a default entered against her on account of
Benjamin’s unexcused failure to appear on her behalf,
petitioner asked Benjamin to move to vacate the
default(App. 16). He refused, promising instead to pay
the judgment himself(App. 16). As time passed,
petitioner’s credit report and _ other _ business
opportunities began to be affected negatively by this
unsatisfied default judgment and it prompted
petitioner to ask both Calabro and Benjamin for
evidence that the judgment had been paid(App. 16).
Neither one did so and petitioner in 2001 filed a
prievance against both Calabro and Benjamin with the
9
DDC, for failing to maintain bank records for the
requisite period of time(App. 16).
Respondent Sarah Jo Hamilton, First Deputy
Chief Counsel for the DDC, transferred petitioner’s
grievance to another disciplinary jurisdiction, the
Fourth Department DDC, which eventually closed the
complaint against Benjamin without investigating the
reason why Benjamin did not appear in court on
petitioner’s behalf, causing the default judgment, and
without obtaining copies of the cancelled check(s)(App.
16). Petitioner then began a civil action against Calabro
under the Fair Credit Reporting Act in an attempt to
have him remove the judgment appearing on her credit
report(App 16). In response, Calabro sought in
di) covery proof in the form of cancelled checks that he
already had been paid, as petitioner alleged(App. 16).
In addition, petitioner brought another
complaint against Benjamin with the DDC based upon
his failure to produce proof that he had paid the default
judgment against petitioner consistent with his
promise to do so(App. 16). Respondent Thomas J.
Cahill, Chief Counsel for the DDC, referred petitioner’s
complaints against Calabro and Benjamin to
mediation(App. 16)
While. petitioner’s DDC complaints against
Calabro and Benjamin were pending, respondent Hon.
Joan M. Kenney, the presiding justice in petitioner’s
civil action against Calabro, dismissed the action(App.
16-17). In the course of dismissing petitioner’s action,
respondent Kenney unfairly castigated petitioner by
asserting falsely that she had prosecuted some thirty
five lawsuits as a pro se litigant sincel1998, insinuating
10
that these lawsuits were frivolous(App. 17). These
remarks by Kenney were published in the New York
Law Journal, damaging petitioner’s reputation in the
legal community and causing petitioner harm in other
courts before other judges, including respondent Hon.
Judith Gische who openly criticized petitioner during
one of her cases for being a litigious pro se party,
remarks which adversely affected petitioner’s handling
of the civil action she had before Judge Gische(App. 18-
19).
Based upon Judge Kenney’s. dismissal of
petitioner’s civil action against Calabro, the DDC
cancelled the mediation of petitioner’s complaints
against Calabro and Benjamin(App. 16-17). In the
meantime, both Cahill and Hamilton of the DDC
promised petitioner that her continuing complaints
ugainst Calabro and Benjamin seeking his production of
the cancelled check(s) would be addressed and by June
3, 2003, the DDC was anticipating retrieving the checks
and securing Calabro’s agreement that he had been
paid. Petitioner’s credit report continued to be affected
negatively while this matter remained unresolved.
sy August of 2003, petitioner still had not
received the cancelled checks and she began anew to
request various state court. judges with supervisory
power in the DDC (Hon. John 'l. Buckley; Hon. Judith
S. Kaye) and others for help and oversight in having
the DDC investigate and resolve this matter(App. 17-
18). By February of 2004, petilioner’s pending
complaints against Calabro and Benjamin were still
open and undecided. However, on February 27, 2004,
the DDC forwarded to petitioner original affirmations
from Calabro and Benjamin attesting to the fact that
1]
the judgement against her was satisfied on or about
February 1, 1998. Xeroxed copies of Benjamin’s checks
were enclosed in this fax transmission(App. 17-18).
By letters of November &, 2004, the DDC
through respondent Cahill, its Chief Counsel, wrote
petitioner that the DDC had completed its
investigation of both Calabro and Renjamin incident to
her complaints and had determined that neither one
had engaged in misconduct warranting the imposition
of discipline(App. 18). In fact, the DDC told petitioner
that after she filed her complaint, Benjamin provided
the DDC with copies of some of the checks as well as his
transmittal letters to Calabro with the understanding
“that the DDC would attempt to obtain records from
the bank showing deposit of the checks....’(App. 18).
Petitioner unsuccessfully asked respondent DDC
Chairman Paul J. Curran for a reconsideration of the
DDC’s decision refusing to find misconduct; and she
unsuccessfully sought an explanation from various state
judges with supervisory power over the DDC as to the
reason it took more than three years to resolve this
matter when Benjamin had provided the DDC with
checks shortly after her complaint was filed in
Z001(App. 13)
In the wake of this experience with the DDC,
petitioner became aware in 2008 that her experience
was typical of DDC’s investigation of highly influential
attorneys such as Gentile and Benjamin who have close
ties to the DDC, the judiciary and other state
employees. As she later alleged, her right to a fair
hearing on her DDC complaints against Calabro and
Benjamin was precluded by these close relationships;
DDC personne! in collaboration with state court judges
12
exerted improper influence in its decisionmaking
process and prevented a fair resolution of complaints
brought to it, including her two complaints against
Calabro and Benjamin(App. 19).
Besides this episode of official malfeasance by
DDC and its” related State actors, petitioner
experienced other instances of unequal treatment by
State judges, especially in the wake of respondent
Kenney’s unfair castigation of petitioner by asserting
falsely that she had prosecuted some_ thirty-five
lawsuits as a pro se litigant since!998, insinuating that
these lawsuits were frivolous(App. 17). These remarks
by Kenney, published in the New York Law Journal,
damaged petitioner’s reputation in the legal community
and caused petitioner harm in other courts before other
state court judges.
Petitioner’ office was located near the World
Trade Center and the terrorist attack in lower
Manhattan on September 11, 2001, disrupted not only
her ability to work but also the state court trial and
motion calendars(App.17). Despite the Governor's
executive order allowing the suspension of court
deadlines in the aftermath of the attack and Chiet
Judge Judith S. Kaye’s procedural directive extending
court deadlines for those directly affected, respondent
Hon. Eileen Rakower on October 10, 2001, refused
petitioner’s request for an adjournment (because of the
disruption of her office) to oppose a motion to reopen a
default which had entered against her opponent(App.
18).
With the Governor’s executive order and Chief
Judge Kaye’s procedural! directive still in effect,
13
Respondent Hon. Carol R. Edmead likewise refused
petitioner an adjournment on December 17, 2001, in
petitioner’s separate action against Benjamin and
granted his motion to dismiss her complaint with
prejudice and by default even though her office still
was unable to function because of the attack(App. 17).
Respondent Jeffrey K. Oing upheld the entry of default
and respondent Hon. Geoffrey D. Wright denied
petitioner’s motion to reargue this decision(App. 17).
Respondent Hon. Martin A. Shulman considered
petitioner’s order to show cause concerning Judge
Wright’s decision but did not take any corrective action
because, in part, the file had disappeared from the
Clerk’s office(App. 17).
Neither respondent Hon. Fern Fisher
Brandveen nor respondent Hon. Joan 8. Carey
responded to petitioner’s complaint that all of these
judges had “ignored Executive Orders from then-
Governor George Pataki and the procedural directives
from Chief Judge...Kaye...."(App. 17). Finally,
petitioner notified Carrie Cohen, Chief of the Public
Integrity Unit of the Office of the Attorney General
together with respondent Sherill Spatz, Inspector
General, but neither took any action(App. 17).
In addition, respondent Hon. Debra James
dismissed without reason petilioner’s malpractice
action she had brought against her former attorney and
enjoined petitioner from initiating any other civil action
without approval from the administrative judge, noting
that petitioner had challenged the integrity of other
judges(App. 18). Finally, respondent Hon. Eileen
Bransten allowed petitioner’s own counsel to withdraw
from a civil action (because of the judge’s friendship
14
with counsel) but then ordered petitioner to appear for
a deposition without counsel(App. 19). When she
refused, Judge Bransten made petitioner responsible
for the court reporter fee and dismissed petitioner’s
complaint (App. 19).
On July 17, 2008, petitioner brought a civil
action against all these respondents in the federal
district court for the Southern District of New
York(App. 5;16-20). Alleging all of the aforementioned
facts and positing jurisdiction of the federal court on 28
U.S.C. §1343(a)(3) & (4), petitioner in an amended 57
page complaint brought under 42 U.S.C. § 1983, claimed
that the DDC personnel together with the judges who
supervise its activity as well as the Office of Court
Administration (“the OCA”) engaged in a conspiracy to
violate her due process mnghts incident to their
processing of her complaints against Calabro and
Benjamin; and that the DDC, its Chief Counsel, the
OCA and Judge Kaye are liable for their neglgent
supervision of this unfair and discriminatory
process(App. 19).
Petitioner claimed that the State Commission on
Judicial Conduct (“SCJC”), its chairman, as well as all
of the state judges who refused to provide relief from
adverse decisions in her cases following September 11,
2001, engaged in a conspiracy to “hinder public and
legal justice in the State of New York...all in retahation
because [petitioner] filed complaints and letters about
the defendants’ repeated contempt of Executive orders
and Directives’(App. 19-20). She claimed that Judges
Kenney and James made false public statements about
her leading to unfair decisions against her by other
15
state judges, including Judges Gische’~ and
3ransten(App. 20).
Petitioner further claimed that Chief Judge
Kaye together with nine other state court judges
enyayed is a separate conspiracy to obstruct justice and
that Spatz, the OCA, the State of New York, and
Judges Shulman, Brandveen and Carey as well as Chief
Judge Kaye are responsible for negligent
supervision(App. 20).
Finally, petitioner claimed that Section 44 of
New York’s Judiciary ..aw providing for the oversight,
investigation and discipline of judges by the SC.JC upon
a finding of misconduct denies her due process and the
equal protection of the laws because its proceedings are
not made public, there are no promulgated standards of
decisionmaking for a finding of misconduct, there is no
right to appeal and its decisions are not otherwise
subject to review or oversight(App. 20). Petitioner
sought damages, a declaration that Section 44 of New
York’s Judiciary Law is unconstitutionally void and
other equitable relhef. A jury trial was also demanded
on all issues so triable.
On August 8, 2008, the District Court,
Scheindlin, J., sua sponte dismissed petitioner’s
amended complaint along with five other complaints
challenging the procedure which the DDC employs to
process, investigate and decide complaints against
attorneys for alleged misconduct(App. 4-51). As the
district judge ruled, it does not have jurisdiction to
oversee the decisions of the DDC; that power lies with
the United States Supreme Court(App. 5). The district
court also ruled that dismissal was warranted on the
el
16
grounds that the Eleventh Amendment bars such suits;
that judicial immunity applies to these allegations; that
the FRooker-Feldman doctrine renders these issues
unreviewable by a federal district court; and that
petitioner has no constitutional right to have her
grievances investigated and therefore no standing to
assert that Section 44 of New York’s Judiciary Law is
unconstitutional(App. 25-32).
Since any amendment to petitioner’s amended
complaint would be futile, the motion judge denied
petitioner the opportunity to replead (App. 33). On
August 27, 2008, the district judge denied petitioner’s
motion for reconsideration(App. 52-55).
On October 30, 2009, the court of appeals in a
summary order affirmed the district court’s dismissal
citing the Eleventh Amendment, the doctrine of judicial
immunity, the Rooker-Feldman doctrine and because
petitioner failed to allege a deprivation of a “right,
privilege, or immunity secured by the Constitution or
laws of the United States”(App. 1-3).
On December 29, 2009, the court of appeals
denied petitioner’s timely filed petition for rehearing or
for rehearing ev banc App. 56-57)
1?
REASONS FOR GRANTING THE PETITION
1. The District Court’s Sua Sponte Dismissal of
Petitioner’s Complaint Without Notice And
Without Giving Her The Opportunity To Replead
Denied Her Due Process And A Fair Hearing On
Her Claims.
The Federal Rules of Civil Procedure “shall be
construed and administered to secure the just, speedy,
and inexpensive determination of every action and
proceeding.” Fed. R. Civ. P. (emphasis supplied). The
right of every litigant to adequate notice and the
opportunity to respond in a meaningful way to
challenges to her pleadings or proof is deeply embedded
In the Federal Rules’ concept of fair play and
substantial justice. See Memphis Light, Gas & Water
Div. v. Craft, 436 U.S. 1,13-14(1978); Arnett v. Kennedy,
116 U.S. 134, 142-146(11974); Mullane v. Central
Hanover Tr. Co., 339 U.S. 306, 314(1950). This reflect:
the fundamental principle of jJudicia) administration
that a person is entitled to notice before advers«
judicial action is taken against him. See generally
Volkswagenwerk Aktiengesellschaft v. Schlunk, 4586
U.S. 694,70701 988).
kor instance, Rule 7(b) requires that application
to the court be made by motion in writing; Rule 6(c)
requires that, in general, these motions be served at
least 14 days before the hearing; Rule 56(c) (1)(B) give
a parly opposing summary judgment 2! days to file a
response after the motion is served; and Rule 12(d)
explicitly provides that if, on a motion under Rule
12(b)(6) or 12(c), matters outside the pleadings are
presented to and not excluded by the court, the motion
Q
“5
must be treated as one for summary judgment under
tule 56 so that “all parties [are] given a reasonable
opportunity to present all the material that is pertinent
to the motion.” These embedded notions in the Federal
Rules of notice and an opportunity to respond before
judicial action is taken are founded on the principle that
a plaintiffs cause of action and her right to have her
claims fairly heard and decided in federal court 1s a
valuable property right entitled to due _ process
protection. hoard of Regents v. Roth, 408 U.S. 564, 571
yf(2(1972).
A procedure by which the district court
dismisses a plaintiffs complaint sua sponte without
notice and without giving the plaintiff the opportunity
to respond or replead her claims runs afoul of the Rules’
fundamental requirements of fair play and substantial
justice. It bespeaks a unilateral and final decision by a
district court without motion to deny a plaintiff her day
n court on her claims. The notice requirement is meant
not as a restriction on the moving party but rather as a
device for securing an opportunity for the non-moving
party to muster her best argument, to plan her
trategy, to put her best foot forward and to help the
district court secure a just determination under the
Rules. For these reasons, the Second Circuit itself ha
repeatedly held that a “[flailure to afford plaintiffs an
Opportunity to address the court’s sua spe tte Motion LO
| Muss 158, by lt elf, ground for reversal.” see, eC .Y
Abbas wv. Dizon, 480 I'.38d 636, 639-640(2nd Cir. 2007):
Acosla Artuz, 221 F.8d 117, 124(2nd Cir. 2000);
square L) Co. 1 Niagra lrontu r larif burean, ln
160 F.2d 1347, 1365(2nd Cir. 1985); Lewis v. New York,
547 F.2d 4,6 n.4(2nd Cir. 1976)
19
The sua sponte dismissal of civil actions is “bad
practice” for several reasons. First, it renders _ it
impossible for the district court to be an independent
decisionmaker; instead, it becomes a proponent for
dismissal on grounds neither raised nor argued by any
party, overlooking valid answers to its perception of
defects in the plaintiff's case. Snider v. Melindez, 199
F.3d 199 F.3d 108, 118(2nd Cir. 1998). Hades v.
Thompson, 823 I°.2d 1055, 1061-1062(7th Cir. 1987). As
Justice Scalia observed, “[t]he rule that points not
argued will not be considered is more than just a
prudential rule of convenience; its observance, at least
in the vast majority of cases, distinguishes our
adversary system of justice from the inquisitorial one.”
linited States v. Burke, 504 U.S. 229, 246(1992)(Scahia,
J., concurring).
Second, it may ultimately waste, rather than
economize, judicial resources by producing appeals and
remands which might otherwise be avoided. Perez v.
Ortiz, 849 F.2d 793, TW972nd Cir. 1988). Third, 1
prejudices plaintiffs by depriving them of the generous
opportunity to amend their complaints under Fed. R
Civ. P. 15(a) in order to replead their claims with more
precision, if necessary. Abbas v. Dixon, 480 F.3d at 640.
Lugo v. Keane, 15 F.3d 29, 31(2nd Cir. 1994). Square D
Co. v. Niagra Frontier Tariff Bureau, Inc., supra.
Schlesinger Inv. v. Fluor Corp., 671 F.2d 739, 743(2nd
Cir. 1932).
The district court failed to heed this persuasive
law and policy when it dismissed petitioner’s complaint
without notice and without giving her the opportunity
to respond or to replead her allegations, if
necessary(App. ). ‘The dismissal was in a ruling
20
common to six separate pending civil actions in the
district court alleging inter alia corruption, unequal
treatment and a lack of due process in the way New
York acts or fails to act in investigating and disciplining
alleged wrongdoing by attorneys practicing there----a
circumstance which itself compounds the unfairness of
this summary procedure. See Perez v. Ortiz, 849 F.2d at
797. The court of appeals’ ratification of this swa sponte
procedure with its own summary affirmance is _ in
conflict with the decisions of this Court and warrants
the grant of a writ of certiorari in the exercise of the
Court’s superintendency role over the federal courts,
the federal system and our constitutional republic to
formulate rules for hearings and motions so that these
rules of practice and procedure provide the litigants
with due process in their reach and result. Klapprott v.
United States, 335 U.S. 601, 611 (1949)(Black, J.) citing
McNabb v. United States, 318 U.S. 332, 341(1943).
1. The Proceedings Below Denied Petitioner Due
Process. The sua sponte dismissal together with the
summary affirmance by the court of appeals denied
petitioner proeedural due process, including a lack of
adequate notice and the denial of a fair hearing on
contested fact issues. See Memphis Light, Gas & Water
Div. v. Craft, 486 U.S. 1,18-14(1978). Withrow v. Larkin,
421 U.S. 35, 46-4701975). Ward v. Monroeville, 409 U.S.
57, 61-62(1972). Willner v. Commattee on Character and
Fitness, 373 U.S. 96, 103-104(1963). As the Court stated
in Societe Internationale Tour Larticipations
industrielles et Commerciales S.A. v. Rogers, 3857 U.S.
197, 209(1958), “[t]here are constitutional limitations
upon the power of courts, even in aid of their own valid
processes, to dismiss an action without affording a
21
party the opportunity for a hearing on the merits of his
case.”
‘{I]n almost every setting where important
decisions turn on questions of fact, due process requires
an opportunity to confront and cross examine adverse
witnesses.” Goldberg v. Kelly, 397 U.S. 254, 269-
270(1970) citing 1CC v. Louisville & N. R. Co., 227 U.S.
88,93-94(1913) and Willner v. Committee on Character
and Fitness, 373 U.S. 96, 103-104(1963). The right to
cross-examine and confront adverse witnesses and their
evidence in this context implies the right to marshal
and adduce one’s own evidence in opposition to the
proposed adverse judicial action or the opportunity to
submit a redrafted, amended complaint alleging with
more particularized facts, if necessary, that
respondents caused petitioner constitutional injury
under § 1983. This due process right carries with it the
right to have all relevant allegations and evidence
adduced on this issue before a decision to dismiss the
allegations is made. Petitioner was denied this right.
Moreover, the sua sponte ruling against
petitioner by the district court----and its ratification by
the court of appeals----has deprived petitioner of the
jury trial guaranteed her on contested fact issues
material to her claim. As Justice Scalia observed in
Blakely v. Washington, 542 U.S8.296, 305-306(2004), the
right to a jury trial in civil cases is no mere procedural
formality but rather a fundamental “reservation of
power in our constitutional structure,” assuring the
people’s ultimate control of the judiciary. /d. citing 2
The Complete Anti-Federalist 315, 320(H. Storing ed.
1981). This guaranty of a jury trial in the Constitution
and the common law traditions it reflects “do not admit
29
the contention that facts are better discovered by
judicial inquisition than by adversarial testing before a
jury.”/d. at 318 citing 3 Blackstone, Commentaries, at
373-374; 379-381. The summary rulings below denied
petitioner her day in court, a due process right.
2. The Eleventh Amendment And The Doctrine
of Judicial Immunity Does Not Justify Dismissal of
Petitioner’s Complaint. In Ashcroft v. Iqbal et al., 556
U.S.___ (2009) and Bell v. Atlantic Corp. v. Twombly,
550 U.S. 544, 555;570(2007), the Court reinterpreted the
standards of Conley v. Gibson, 355 U.S. 41, 45-46(1957)
for dismissing a complaint under Rule 12(b)(6) for
failure to state a claim upon which relief may be
granted. To survive such a motion now, the complaint’s
Jactual—not legal---alleyations are taken as true; and if
the complaint so read contains sufficient factual matter
to state a claim for relief that is plausible on its face,
allowing the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged,
dismissal is not warranted. Jqbal, 556 U.S. at —
Twombly, 550 U.S. at 556-557;570. In the event a
complaint is deemed deficient under this new standard,
Iqbal suggests allowing the plaintiff the opportunity to
amend the complaint to conform to these requirements.
Id. at ___
Petitioner’s allegations in her complaint do not.
consist of naked legal conclusions; they contain facts
which are inconsistent with legal conduct. Consonant
with Twombly and Iqbal, petitioner has alleged facts in
her 57-page complaint which, taken as true, describe
illegal conduct by respondents and she has stated a
ground for relief that is plausible. Petitioner alleged
that the SCJC is’ the disciplinary agency
23
constitutionally charged with the responsibility to
review and _ investigate complaints) of judicial
misconduct in the New York State courts and its
administrative agencies and to enforce the obligations
of judges to observe high standards of conduct.
Furthermore, the SCJC is empowered to make rules so
that it can carry out these responsibilities in a
meaningful and fair way.
However, as petitioner alleged, § 44(1) of New
York’s Judiciary Law grants the SCJC unbridled
discretion to determine which allegations of a complaint
are without merit and to dismiss complaints against
judges for any reason or for nor reason at all. It also
fails to provide any intelligible principle or standard for
the SCJC to ascertain the validity of complaints
brought against judicial officials; it fails to provide for
an appeal process; and it allows the SCJC to deliberate
in secret and engage in capricious, ad _ hoc
decisionmaking. Because § 44(1) of New York’s
Judiciary Law grants a constitutional obligation to an
organization not subject to any review or oversight,
petitioner claims that this statute denies her due
process and the equal protection of the laws.
Petitioner alleges facts describing the same
failings and raising the same constitutional issues with
regard to § 90 of the Judiciary Iaw, the Legislature’s
open-ended grant of power to the DDC to discipline
attorneys. Petitioner seeks to hold accountable the
State of New York and its administrative and judicial
“arms” for the injuries to her federal constitutional
rights which they’ve inflicted upon her by enforcing
arbitrary mechanisms for resolving grievances against
judges and attorneys. Specifically, she seeks to have
OA
as
declared unconstitutional §§ 44(1) and 90 of New York’s
Judiciary Law and to enjoin their enforcement because
those statutory remedies provide no transparency, no
meaningful review process and deny petitioner due
process and equal protection of law in violation of the
Fourteenth Amendment.
Eynjoining prospectively the operation of §§ 44(1)
and 90 of New York’s Judiciary Law as repugnant to
the federal constitution is not barred by the State’s
sovereign immunity. Such a remedy against the State
and State actors for conduct in contravention of the
federal constitution is entirely consistent with our
federal structure; and the idea that States, regardless
of their sovereignty, can act in derogation of its own
citizens’ federal constitutional rights and_ avoid
prospective injunctive relief from such conduct has
been consistently repudiated by this Court. Quern v.
Jordan, 440 U.S. 332, 337(1979). Edelman v. Jordan,
415 U.S. 651, 663011974). Ex parte Young, 209 U.S. 128,
160(1908).
Any other result violates the Supremacy Clause
and runs afoul of Marbury v. Madison, 5 U.S. (1
Cranch) 187, 177(1803); McCulloch v. Maryland, 17
J.S. 316, 48611819); and Ex parte Young, supra. It also
ignores the thrust of 42 U.S.C. § 1983, and the distinctly
federal remedy it has historically provided citizens
harmed by State actors who deprive them of their
federal constitutional mghts. Dennis v. liggins, 498
U.S. 439, 445(1991). Mitchum v. Foster, 407 U.S. 225,
238-239 (1972). Monroe v. Pape, 365 U.S. 167, 180(1961).
United States v. Classic, 313 U.S. 299, 326 (1941). See
Screws v. United States, 325 U.S. 91, 107-108(1945).
25
Nor is judicial immunity a valid defense to
petitioner's allegations that some of the _ judicial
respondents engaged in a conspiracy to ebstruct
justice, to commit perjury and to deprive petitioner of
her rights under the Fourteenth Amendment in
retaliation for petitioner filing complaints against them
for their repeated contempt of the Governor’s executive
orders, judicial directives and for other malfeasance.
Judicial immunity is overcome when suit is brought for
acts which are not judicial or adjudicative in nature,
Forrester v. White, 484 U.S. 219, 229(1988), or when
they are carried out in the absence of any jurisdiction to
do so. Mireles v. Waco, 502 U.S. 9, 11-12(1991), Stump v.
Sparkman, 435 U.S. 349, 356-357(1978). See Briscoe v.
LaHue, 460 U.S. 325, 341 n.26(1983).The criminal acts
here alleged describe conduct which is non-judicial in
character and without any jurisdiction te carry out
these actions.
The court of appeals was therefore wrong to rely
upon the Eleventh Amendment or the doctrine of
judicial immunity to justify the district’s court’s sua
sponte dismissal of petitioner’s complaint.
8. The Rooker-Feldman Doctrine Does Not
Apply To Petitioner’s Allegations. Under Rooker v.
Fidelity Trust Co., 263 U.S. 41301923), only the
Supreme Court, not the lower federal courts, has
jurisdiction to review state court decisions. Jd. at 416.
In strict of Columbia Court of Appeals v. Feldman,
460 U.S. 462(1983), this Court further held that federal]
district courts may not exercise jurisdiction over
facially constitutional issues which are “inextricably
intertwined” with a state court judgment since this
would be tantamount to a federal district court sitting
26
in direct review of the decisions of the state tribunal.
Id. at 476;482 n.16. Thus the Rooker-Feldman doctrine
prohibits federal district courts from adjudicating
actions in which the _ relief requested requires
determining that the state’s decision is wrong or
voiding the state court’s ruling.
In a unanimous opinion in Hxzon Mobil Corp. v.
Saudi Basic Industries Corp., 544 U.S. 280(2005), the
Court sought to simplify the reach of the Fooker-
Feldman doctrine and to rein in any expansive views of
the doctrine which have led lower federal courts to
refuse to hear cases which legitimately invoked their
federal jurisdiction.
Speaking through Ginsburg, J., the Haxon Mobil
Court held that “{t]he Rooker-leldman doctrine...is
confined to...cases brought by state-court losers
complaining of injuries caused by © state-court
judgments rendered before the district court
proceedings commenced and inviting district court
review and rejection of those judgments.” Id. at 283-
284. Hxxon Mobil involved parallel state and federal
litigation and this Court held that Rooker-Feldman is
not triggered simply by the entry of a judgment in
state court. Jd. at 292-293. Disposition of the federal
claim, once the state-court adjudication is complete,
would be governed by regular preclusion law consonant
with the Full Faith and Credit Act, 28 U.S.C. § 1738. Id.
Where petitioners have already dismissed
without prejudice the state-court litigation at the time
they seek to invoke federal jurisdiction under 28 U.S.C.
§ 1332 or § 1343, or where there is no final state court
27
qudgment which a federal court rs being asked to review,
the Exxon Mobil Court stated that
[$ ] 1257 [does not |] stop a district court from
exercising subject- matter jurisdiction .... If a
federal plaintiff “present[s] some independent
claim, albeit one that denies a legal conclusion
that a state court has reached in a case to which
he was a party..., then there 1s jurisdiction....
Id. at 293. See also Lance v. Dennis, 546 U.S. 459(2006)
passim. Moreover, after Mobil Exxon, without a final
state court judgment, feooker-Feldman does not apply
in any event. See Federacion de Maestros de Puerto
Rico v. Junta de Relaciones del Trabajo de Puerto
Rico, 410 F.3rd 17, 23-25Qst Cir. 2005)(“finality” under
Rooker-Feldman analyzed).
Given this law, it was an unauthorized expansion
of xxon Mobil for the court of appeals to rely on the
Rovoker-Feldman doctrine to affirm the district court’s
sua sponte dismissal of petitioner’s complaint. First,
petitioner has not “lost” in state court and she is not a
“state court loser;” her § 1983 claims have never been
brought or litigated in state court and this is the first
time petitioner has brought these claims against these
respondents. Second, petitioner is not asking the
federal court to review any State-court judgment; her
facial constitutional challenge to §§ 44 and 90 of the
Judiciary Law under § 1983 is new, has never been
adjudicated in any court and remains unaddressed and
undecided by any court, state or federal. Third,
petitioner’s claims are not “inextricably intertwined”
with the merits of any state court ltigation and does
not invoke the facts of any prior state court suit.
YL
Finally, there was no opportunity for petitioner to
litigate her claims in state court because the rulings of
the SCJC and the DDC under challenge here were
unappealable and could not be reviewed in state court
I any event. For these reasons, the Rooker-Feldman
doctrine cannot justify the dismissal of petitioner’s
complaint.
4. Petitioner Has Alleged Facts Which Show
That Her Federal Rights Under the Constitution Were
Violated by The Unfair and Unequal Enforcement of
Sections 44 and 90 of the Judiciary Law of New York.
Petitioner’s allegations that respondents failed or
refused to investigate and decide disciplinary actions
she pursued against State court judges and State
attorneys, allegedly causing her constitutional injury in
the form of a denial of due process and the equal
protection of the laws, is the allegation of (a) an “injury
in fact,’(b) causally connected to the alleged conduct or
inaction of the State actors which (c) will be redressed
by a favorable decision, all within the requirements of
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-
061(1992).
At the very least, even if petitioner’s complaint
is deemed deficient under this new _ standard of
Twombly, petitioner should have been afforded the
opportunity to amend her complaint to replead her
factual allegations to conform to these new
requirements. /qbal, 556 U.S. at -
29
2. Circuit Judge Wesley Was Bound To Recuse
Ilimself From Hearing This Appeal.
As the majority in Hugh M. Caperton et al. v.
A.T. Massey Coal Company, Inc. et al., 556 U.S. __;
129 S.Ct. 2252(2009) makes clear, due process requires a
neutral and detached judge both at the trial and
appellate level. Hamdi v. Rumsfeld, 542 U.S. 507,
533(2004) quoting Ward v. Vill. of Monroeville, 409 US.
57, 61-62 (1972). Withrow v. Larkin, 421 U.S. 35, 46-
47(1975). In re Murchison, 349 U.S. 1383, 186 (1955). See
Citizens United v. Federal Hlection Commmn., 558 U.S.
mere umpires----in fact, they are the governors of the
proceedings before them----and they cannot become an
advocate or otherwise use their judicial powers to
advantage or disadvantage a party. Quercia v. United
States, 289 U.S. 466, 470(1933). Nor “should [they] give
vent to personal spleen or respond to a _ personal
grievance.” Offutt v. United States, 348 US.
11,14(1954). 28 U.S.C. §§ 455(a) and (b)(1) & (b)(5)Qv).
The Caperton Court established that the due
process clause provides a constitutional floor in
analyzing when recusal of a judge is required, i.e.,
“when the probability of actual bias on the part of the
judge or decision-maker is too high to be
constitutionally tolerable”----when, that is, there is a
“serious, objective risk of actual bias.” 556 U.S. at
__ 3129 S.Ct. at 2257;2265. The objective due process
standards do not require proof of actual bias but instead
ask whether “under a= realistic appraisal of
psychological tendencies and human weakness,” the
interest “poses such a risk of actual bias or
prejudgment that the practice must be forbidden if the
30
guarantee of due process is to be adequately
implemented.” Jd. at 3129 S.Ct. at 2263 quoting
Withrow, 427 U.S. at 47.
Here Judge Wesley was intimately connected
with the allegations of judicial misconduct by State
judicial actors in this and other cases, having sat in the
New York Court of Appeals while some of the relevant
events integral to petitioner’s complaint were
transpiring. He was being asked on this appeal, in
effect, to “second guess” decisions of a state court on
which he sat.
Moreover, one respondent in this case, Hon.
Judith 8S. Kaye, Chief Judge of the New York Court of
Appeals, named in both her official and individual
capacities, is alleged to have negligently supervised
certain judges and negligently supervised certain
attorneys of the DDC in her other duties as Chief
Administrator of the Court. Respondent Judge Kaye
was appointed to the New York Court of Appeals in
1983. Judge Wesley, after being appointed to the
Appellate Division of the Supreme Court, Fourth
Department, in 1994, became a Judge on the Court of
Appeals in 1997 and sat with Judge Kaye on that court
for Six years.
30th Judge Wesley and Judge Kaye were on the
Court of Appeals when petitioner was seeking to have
Judge Kaye exercise her supervisory powers over the
conduct of certain judges and DDC attorneys, as
alleged in her complaint. As such, Judge Wesley had
knowledge of Judge Kaye’s daily activities and how
much time she devoted to either deciding cases or
supervising in her administrative role the judges and
31
ttorneys at DDC. Thus Judge Wesley may be a
materia! witness in this case and should have recused
hirnself from hearing petitioner’s appeal pursuant to 28
YY
U.S.C. § 455(b)(5) Uv).
furthermore, his outburst from the Bench
during oral argument in this case, remarks which
denigrated petitioner and her appeal in open court and
exposed the prejudgment and bias he brought to this
matter, warranted his recusal under Caperton’s
analysis as a matter of law. His failure to do so fatally
contaminated the decisionmaking process of the court
of appeals and itself warrants a remand for a rehearing
of petitioner’s appeal by a different panel as a matter of
due process.
CONCLUSION
For all the reasons identified herein, a writ of
certiorari should issue to review the judgment of the
United States Court of Appeals for the Second Circuit
and, ultimately, to vacate and reverse the swa sponte
dismissal of petitioner’s complaint and remand the
matter to the United States District Court for the
Southern District of New York for further proceedings
including discovery and trial, or provide petitioner with
such other relief as is fair and just in the circumstances
of this case.
Respectfully submitted,
Eleanor Capogrosso, Pro se
122 East 42™ Street, Suite 1616
New York, NY 10168
(212)509-7700
la
(any footnotes trail end of each document)
No. 08-4719-cev
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
ELEANOR CAPOGROSSO, Plaintiff-Appellant,
V.
NEW YORK STATE COMMISSION ON JUDICIAL
CONDUCT, STATE OF NEW YORK, OFFICE OF
COURT ADMINISTRATION, HON. FERN FISHER
BRANDVEEN, IN HER OFFICIAL AND
INDIVIDUAL CAPACITIES, HON. EILEEN
BRANSTEN, IN HER OFFICIAL AND
INDIVIDUAL CAPACITIES, HON.JOHN T.
BUCKLEY, IN BOTH HIS OFFICIAL AND
INDIVIDUAL CAPACITIES, HON. JOAN CAREY,
IN HER OFFICIAL AND INDIVIDUAL
CAPACITIES, SHERRY K. COHEN, IN HER
OFFICIAL AND INDIVIDUAL CAPACITIES,
PAUL CURRAN, IN HIS OFFICIAL AND
INDIVIDUAL CAPACITIES, HON. CAROL R.
KOMEAD, IN HER OFFICIAL AND INDIVIDUAL
CAPACITIES, RAOUL FELDER, IN HIS
OFFICIAL AND INDIVIDUAL CAPACITIES,
HON. JUDITH GISCHE, IN HER OFFICIAL AND
INDIVIDUAL CAPACITIES, SARAH JO
HAMILTON, IN HER OFFICIAL AND
INDIVIDUAL CAPACITIES, HON. DEBRA
JAMES, IN HER OFFICIAL AND INDIVIDUAL
CAPACITIES, HON. JUDITH 8S. KAYE, IN HER
OFFICIAL AND INDIVIDUAL CAPACITIES,
HON. JOAN M. KENNEY, INHER OFFICIAL AND
INDIVIDUAL CAPACITIES, CATHERINE
O'HAGAN WOLFE, IN HER OFFICIAL AND
INDIVIDUAL CAPACITIES, HON. K. JEFFREY
2a
OING, IN HIS OFFICIAL AND INDIVIDUAL
CAPACITIES, HON. EILEEN A. RAKOWER, IN
HER OFFICIAL AND INDIVIDUAL CAPACITIES,
SHERILL SPATZ, IN HER OFFICIAL AND
INDIVIDUAL CAPACITIES, HON. MARTIN A.
SHULMAN, IN HIS OFFICIAL AND INDIVIDUAL
CAPACITIES, HON. GEOFFREY D. WRIGHT, IN
HIS OFFICIAL AND INDIVIDUAL CAPACITIES,
JOHN DOE 1-20, JANE DOE 1-20, THE
APPELLATE DIVISION, FIRST DEPARTMENT,
DEPARTMENTAL DISCIPLINARY COMMITTEE,
THOMAS J. CAHILL, IN HIS OFFICIAL AND
INDIVIDUAL CAPACITIES, Defendants-Appellees.
October 30, 2009, Decided
NOTICE: PLEASE REFER TO FEDERAL RULES
OF APPELLATE PROCEDURE RULE) 82.
GOVERNING THE CITATION TO UNPUBLISHED
OPINIONS.
COUNSEL: For Plaintiff-Appellant: PAUL E.
KERSON, Leavitt, Kerson & Duane, New York, N.Y.
lor Defendants-Appellees: PATRICK J. WALSH, As-
sistant Solicitor General (Michael S. Belohlavek, Senior
Counsel, on the brief), for Barbara D. Underwood, So-
licitor General, Andrew M. Cuomo, Attorney General of
the State of New York, New York, N.Y.
Present: JOHN M. WALKER, JR., GUIDO
CALABRESI, RICHARD C. WESLEY, Circuit
Judges.
SUMMARY ORDER
3a
UPON DUE CONSIDERATION, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the
opinion and order of the district court be AFFIRMED.
Plaintiff-Appellant Eleanor Capogrosso appeals from
an August 8, 2008 opinion and order of the United
States District Court for the Southern District of New
York (Scheindlin, J.) dismissing her claims sua sponte,
and an August 28, 2008 order of that same court deny-
ing reconsideration of her claims.
The Eleventh Amendment to the United States Consti-
tution bars Appellant's claims against the State of New
York and its arms. Moreover, the defendant New York
State judges are afforded absolute judicial immunity, as
are those remaining defendants "who perform functions
closely associated with the judicial process." Oliva v.
Heller, 839 F.2d 37, 39 (2d Cir. 1988).
To the extent that Appellant is effectively asking the
Court to review decisions of the courts of the State of
New York, we lack jurisdiction to address her claims.
See Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S. 280, 283-88, 125 S. Ct. 1517, 161 L. Ed. 2d 454
(2005) (explaining the Rooker-F'eldman doctrine). With
respect to her remaining claims, Appellant fails to al-
lege a deprivation of "a right, privilege, or immunity se-
cured by the Constitution or laws of the United States."
Charles W. v. Maul, 214 F.3d 350, 357 (2d Cir. 2000).
Accordingly, the opinion and order of the district court
dismissing Appellant's action is hereby AFFIRMED.
Any outstanding motions are hereby DENIED as
moot.
4a
07 Civ. 11612 (SAS),08 Civ. 2391 (SAS),08 Civ. 3305
(SAS),08 Civ. 4438 (SAS),08 Civ. 5455 (SAS),08 Civ.
6368 (SAS)
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK
LUISA C. ESPOSITO,
Plaintiff,
- against —
STATE OF NEW YORK, etal,
Defendants.
KEVIN MCKEOWN,
Plaintiff,
- against ~
STATE OF NEW YORK, et al.,
Defendants.
PAMELA CARVEL,
Plaintiff,
-.against —
-NEW YORK STATE, et al.,
Defendants.
SUZANNE MCCORMICK, Plaintiff,
- against ~
STATE OF NEW YORK, et al.,
Defendants.
ELEANOR CAPOGROSSO,
Plaintiff,
- against ~
THE NEW YORK STATE COMMISSION ON
JUDICIAL CONDUCT, et al.,
5a
Defendants.
JOHN L. PETREC-TOLINO,
Plaintiff,
- against —
THE STATE OF NEW YORK, etal.,
Defendants.
August 8, 2008, Decided
August 8, 2008, Filed
ORDER AND OPINION
SHIRA A. SCHEINDLIN, U.S.D.J.:
i. INTRODUCTION
‘hese actions, all filed as related to Anderson v. State of
New York, ' relate to alleged corruption in the New
York State courts. Each action alleges some underlying
wrongdoing by an attorney, followed by a complaint to
the disciplinary committee, followed by the committee's
failure to take action. The Complaints generally allege
that the disciplinary committee is engaged in a
conspiracy to "whitewash" grievances filed against
prominent attorneys.
As discussed below, the United States Constitution
does not permit this Court to supervise the
departmental disciplinary committees or review the
decisions of the courts of New York State. Regardless
of the possibility of corruption in the courts of the State
of New York, the only federal court that may review
their decisions is the United States Supreme Court.
Plaintiffs must direct their complaints to the state court
system, the Attorney General for the State of New
6a
York, or the appropriate United States Attorney.
Because the Court lacks jurisdiction to review the
decisions of the departmental disciplinary committees,
and for the other reasons stated below, these actions
are dismissed.
Il. BACKGROUND
A. Esposito v. State of New York
In this action, Luisa Esposito alleges that her former
attorney repeatedly sexually harassed and assaulted
her. She also alleges that the New York City Police
Department failed to pursue her criminal complaint
against him and that the New York state court system
failed to pursue her attorney grievance.
1. Facts °
[Xsposito engaged the law firm of Pollack, Pollack, Isaac
& DeCicco to represent her in a lawsuit resulting from
a car accident. In May or June of 2005, that firm
forwarded the relevant files to Gladstein & Isaac. On
July 8, 2005, Esposito went to the offices of Gladstein &
Isaac to meet with one of the attorneys for trial
preparation. * During this meeting, without cause or
provocation, that attorney grabbed Esposito's left
breast. After the meeting, that attorney told Esposito
that if she were to tell anyone what happened, he would
no longer represent her.
The attorney then began a campaign of harassment. He
repeatedly telephoned Esposito, asked her to cornpile a
list of sex acts that she could no longer perform as a
result of the accident, demanded details of her personal
life, and requested that she send him provocative
photos. * Esposito recorded a number of these
Ta
conversations. On another occasion, the attorney
demanded that Esposito try on clothing in front of him,
grabbed her breasts, and told her that he would not
represent her unless she performed oral sex on him. °
Faith Wyckoff witnessed a portion of this episode.
In October or November of 2005, Esposito contacted
the New York County District Attorney and met with
ADA Jennifer Steiner Crowell, who interviewed
Esposito and had her sign medical releases. Crowell
told Esposito she would pursue charges of exicrtion,
coercion, and sexual abuse against the attorney. °
However, Crowell stopped returning Esposito's cails.
On December 23, 2005, Esposito called the Rape Crisis
Hotline and was sent to meet with Detective Arbuiso of
the Manhattan Special Victims Unit. Arbuiso
questioned Esposito and Wyckoff about the assault and
then told them that he would arrest the attorney. '
However, some time later, Arbuiso told Esposito that
he "wantled] to make the arrest" but because "favors"
were called in, he was unable to do so. * He also
explained that "it was ADA Lisa Friel that wasn't
allowing the arrest." ° She also met with Lieutenant
Adam I. Lamboy, but he refused to accept her affidavit.
10
In February of 2006, Esposito was called to meet with
Crowell and Friel. She had brought an attorney, but the
attorney was not permitted in the room. " Friel told
her that the attorney's version of the story was more
credible. The D.A.'s office closed the investigation.
Esposito also hired an attorney, Anthony Denaro, who
sent a letter to Police Commissioner Raymond Kelly
asking that the attorney be arrested. * Appellate
Division, First Department, Departmental Disciplinary
Sa
Committee ("DDC") against the attorney. The
grievance was handled by Naomi Goldstein, an attorney
with the DDC. From 2006 through 2007, Goldstein
conducted telephone interviews of Esposito. The DDC
began hearings in April of 2007. * The Hon. Albert S.
Blinder was the referee on the complaint. At the
hearings, the DDC [*6] produced transcripts of
Esposito's recordings that were inaccurate and refused
to return the original tapes to Esposito. ” It also
refused to allow her attorney to attend the proceedings.
On May 1, 2007, Esposito wrote numerous letters to
various judges of the New York State Courts.
Esposito also complained to Thomas J. Cahill, Chief
Counsel for the DDC. "
2. Claims
Pursuant to section 19838, Esposito claims that all
defendants violated her rights to due process and equal
protection, as well as her First Amendment right to
petition the government for redress of grievances. She
also claims that the City of New York, Kelly, Arbuiso,
and Lamboy violated her rights to due process and
equal protection. Finally, she pleads state law breach of
contract, breach of fiduciary duty, and assault claims
against the attorney; Harvey Gladstein & Partners
I.LC; and Pollack, Pollack, Isaac & DeCicco LLP.
B. McKeown v. State of New York
This action also involves a claim that an attorney's
conduct was unethical and that the New York State
court system refused to investigate.
1. Facts
9a
On September 2, 2008, Kevin McKeown and his sister
Mary Virga engaged the legal services of Joseph F.
McQuade in connection with probate proceedings of
their mother's estate. '9 At the time of her death, their
mother had four living children, one of which, Ronald
McKeown ("Ronald"), had been arrested for stealing
over $ 100,000 from the Red Cross and had several
large outstanding judgments for stolen money. ”
McKeown believed that his mother wanted her estate
to repay the Red Cross, and informed McQuade of this
fact, but his sister and McQuade took steps to prevent
this. 2) McQuade then appeared in a conference in front
of Joseph M. Accetta of the Office of Court
Administration (the "OCA") in which he filed an order
to show cause against McKeown. ~ McKeown alleges
that Accetta and Robert M. DiBella, also an attorney at
the OCA, and Judge Anthony A. Scarpino "failed their
duty as an [sic] attorneys and as OCA employees when
they chose not to report or take any action against
McQuade's breaches of the most fundamental attorney-
2
client obligations."
Some time later, Ronald committed suicide. Shortly
thereafter, Frank W. Streng, Ronald's attorney, filed
an assignment of interest. Accetta; DiBella; Robert A.
Konen, apparently an attorney involved in the case;
McQuade; Michael McQuade ("M. McQuade"), partner of
McQuade; and Judge Scarpino knew that Streng no
longer had authority to file such a document, but
"improperly remained silent and took no corrective
action." 4 Charles and Christine Giulini, attorneys who
were involved in the case, acted in reliance on the
assignment knowing it to be improper. ”
In early 2004, Charles Giulini told McKeown, "[ilf you
don't simply forget about the fucking assignment, and
10a
just stop bringing it up, you'll be fucking destroyed.
You have no idea what the fuck you're up against." *
Indeed, the Giulinis, Scarpino, McQuade, M. McQuade,
Korren, DiBella, and Accetta "retaliated against
plaintiff for raising the issue of the appearance of
impropriety ...." *’
On May 17, 2006, plaintiff filed an ethics complaint with
the DDC against McQuade. On May 15, 2007, the DDC
informed McKeown that the grievance had been
resolved by the Surrogate and the DDC would take no
further action. % Nancy J. Barry, Principal Attorney at
the OCA, then sent a letter to the DDC that "was
intended to improperly influence the DDC by
conveying, displaying and expressing a_ heightened
level of interest by defendants... in plaintiffs ethics
complaint against defendant McQuade." ”
In January of 2008, McKeown met with Sherry K.
Cohen, a supervising attorney at the DDC, who stated
that she was in charge of the grievance and that it had
been resolved. * McKeown contacted Cahill for more
information, but Cahill was unable to tell him anything
more. *
McKeown filed "numerous" grievances with the Second
Department's Ninth Judicial District Grievance
Committee. He alleges that these were "summarily
ignored," though he also alleges that as a result of the
erievances, certain attorneys were admonished. ** The
Grievance Committee also transferred one of the
complaints to an attorney bar association, though Gary
L. Casella and Catherine M. Miklitsch, attorneys
employed by the committee, knew that this was
improper. * Further, Francis A. Nicolai, attorney and
judicial administrator for the Ninth Judicial District,
lla
allegedly improperly protected Streng and refused to
recuse himself. ™
Judge Gail Prudenti of the Appellate Division, Second
Department sent the allegations to the Commission on
Judicial Conduct, which declined to take action. *
McKeown alleges that this Commission is "a partial
arbiter of secreted agendas that provides a grossly
improper disservice to plaintiff, the general public, the
legal community, the system of law and, in fact, the vast
majority of honorable justices of the state's courts." *
He contends that the DDCs and the Commission "are
improperly beholden to political and legal outsiders
[and] advance or thwart selective ethics inquiries
without regard to merit." *”
2. Claims
McKeown alleges that all defendants violated his rights
to petition the government for redress of grievances, to
equal protection, and to due process pursuant to the
First and Fourteenth Amendments. These claims are
brought under section 1983. He also alleges state law
breach of contract and breach of iiduciary duty claims
against the McQuades and their law firm.
C. Carvel v. New York State
In this action, Pamela Carvel, the daughter of ice cream
magnate Tom Carvel, alleges that certain of Tom
Carvel's employees conspired with the attorneys and
judges that were involved in the administration of his
estate. The result of this conspiracy was the theft of
hundreds of millions of dollars from Tom Carvel's
rightful heirs and charitable institutions. *
1. Facts *
12a
Thomas Andreas Carvel as ("Tom Carvel"), founder of
the Carvel Corporation, was born in Athanassos,
Greece in 1906. His family came to the United States in
1910 and settled in New York City in 1920. “ Advised
to leave the City to treat his tuberculosis, he borrowed
money from his future wife, Agnes, built a frozen
custard trailer, and set out to Westchester County,
New York. A flat tire led to the selection of a
permanent location, and by 1939 his business had
become well-established. With Agnes's assistance, Tom
Carvel ran the business for decades, building it into a
national franchise and household name. In 1989, one
year before his death, he sold the business to
Investcorp. *!
On Saturday, October 20, 1990, Tom revealed that he
was firing his secretary, Mildred Arcadipane, and his
lawyer, Robert Davis, and that he and his nicce,
plaintiff Pamela Carvel, were to commence an
investigation into collusion between his employees and
attorneys employed by Investcorp. * The next day,
Tom was found dead. * William Griffin, an attorney and
Chairman of Hudson Valley Bank, was colluding with
Arcadipane and Davis to take control of the Carvel
estate. “ Most of the estate's records were transferred
to Hudson Valley Bank, where they were altered,
forged, or destroyed. ” On August 4, 1998, Agnes
Carvel died from a stroke. “*
Pamela Carvel hired Blank Rome to represent the
estate, which was assigned to the Hon. Anthony
Searpino. Blank Rome attorney Eve Markewich
entered into a _ secret agreement with Griffin's
attorneys pursuant to which Markewich would receive
between three and four million in legal fees as long as
she prevented Pamela Carvel and Agnes Carvel's
l3a
estate from obtaining any money from Tom Carvel's
estate. “’ A number of individuals knew of this behavior
and failed to report it. ** Markewich and Leonard Ross,
apparently an associate of Markewich, also colluded to
steal securities that belonged to Pamela Carvel. “
Pamela Carvel then hired Streng, McCarthy, and
Aurnou, attorneys from the law firm of McCarthy
Fingar. Streng failed to disclose that he was employed
by the court system as "Scarpino's advisor in a
‘transition committee' from Supreme Court to
Surrogate's Court.'" °° These attorneys "did nothing to
oppose Markewich's breach of promise to seek timely
reimbursement to Pamela that was the condition of
Blank Rome's employment. * Instead, they aided
Griffin, Judge Scarpino, and Charles Scott, an attorney
employed by OCA. ” Aurnou had apparently been
retained separately and later joined McCarthy Fingar.
b3
Unbeknownst to Pamela Carvel, Scarpino had received
several hundred thousand dollars in loans from Hudson
Valley Bank, which was controlled by Griffin. “ Days
before a response was due opposing certain fee
applications, Streng withdrew as counsel and refused to
return a cash advance. ”
Pamela Carvel also contends that Griffin wrongfully
sold Agnes Carvel's former residence to the brother of
attorney Paul Amicucci, a member of Griffin's law firm
and member of the Hudson Valley Bank Business
Development Board. She alleges that the purchase
price was a small fraction of its fair market value. °°
Pamela Carvel also alleges that Markewich colluded
with Griffin, Streng, McCarthy, Aurnou, Scarpino, and
Scott to prevent Certified Public Accountant Anthony
14a
Vasile from receiving payment for services he
performed for the estate. *’ Vasile was hired to
investigate improper money transfers in the years
following Tom Carvel's death. ™
On August 30, 2005, Pamela Carvel filed a complaint
with the DDC against Markewich and filed a separate
complaint with the grievance committee against
Streng. *’ Both complaints were dismissed on the
ground that they were the subjects of litigation. © By
letter to Cahill, on July 19, 2006, Pamela Carve!
requested that the DDC reconsider its decision. She
believes her complaint was dismissed by Cohen and
Cahill "because of Markewich and Blank Rome's
influential! connections." ®!
The New York State Attorney Gencral'se)ffice also
became involved in the conspiracy. Assistant Attorney
General Laura Werner entered into agreements with
Griffin and the other conspirators. As a result, Werner
took positions during the estate litigation that opposed
those of Pamela Carvel. * Pamela Carvel also alleges
that Werner failed to maintain proper records of the
various charities controlled by Thomas and Agnes
Carvel. ® Deborah McCarthy, a former attorney at
McCarthy Fingar who joined the Attorney General's
Charities Bureau, was also involved in the conspiracy. ™
McCarthy falsified documents to assist McCarthy
lingar in billing over $ 700,000 in legal services to the
estate. ™
2. Claims
Pursuant to section 1983, Pamela Carvel alleges that all
defendants engaged in a conspiracy to deny her rights
to due process and equal protection. She further alleges
15a
that all defendants violated her rights to free speech
and to petition the government for redress of
grievances. IHler remaining claims are state law claims.
D. McCormick v. State of New York
1. Facts ©
Unlike the other plaintiffs, Suzanne McCormick has
provided minimal information as to her underlying
dispute. She hired Winthrop Rutherford, Jr. and David
G. Keyko to represent her in connection with the estate
of her late husband. ™ Rutherford and Keyko altered
court records and committed other acts of misconduct,
culminating in a multi-million dollar fraud. ©
In 2005, McCormick filed a complaint with the DDC and
provided "confirming evidence" of the fraud
perpetrated by Rutherford and Keyko. © Despite
knowledge of Rutherford's and Keyko's fraudulent
activity, the DDC "completely failed their individual
and collective ethical duties as attorneys at law when
they chose not to report or take any action concerning
the [fraud ]." ”
2. Claims
Pursuant to section 1983, McCormick claims that all
defendants violated her rights to due process and equal
protection, as well as her right to petition the
government for redress of grievances. She also alleges
state law breach of contract against all defendants and
that "every defendant [breached] her basic
constitutionally guaranteed right of fiduciary duties of
good faith, loyalty, and care." ”
l6a
kK. Capogrosso v. New York State Commission on
Judicial Conduct
Plaintiff Eleanor Capogrosso, an attorney admitted to
practice in New York, has brought an action that
comprises what appear to be a series of unrelated
disputes. These are described separately. ”
1. The Default Judgment
Capogrosso hired Gentile & Benjamin to defend her ina
fee dispute action brought by attorney Gregory
Calabro. “ A default was awarded against her. She
asked attorney Howard Benjamin to move to vacate
the default, but he refused, promising instead to pay
the judgment. He failed to provide her with evidence
that he did so. “ As a result, the default remained on
her credit record, causing her various financial
problems.
In 2001, Capogrosso filed a grievance with the First
Department DDC against Calabro and Benjamin for
failing to maintain bank records for the requisite period
of time. Sarah Jo Hamilton, First Deputy Chief Counsel
for the DDC, had the action moved to the Fourth
Department DDC, which closed the action. ”
Capogrosso then sued Calabro under the Fair Credit
Reporting Act. The action was assigned to defendant
the Hon. Joan M. Kenney. Capogrosso also filed a new
grievance against Benjamin. Cahill referred the
grievance to mediation. Capogrosso filed an action for
judicial review of the DDC's dismissal of her grievance
with the Appellate Division, but that court declined to
exercise jurisdiction. “ Judge Kenney dismissed the
action, and based on that decision the DDC canceled the
17a
mediation. *’ Capogrosso alleges that Judge Kenney's
decision contains false statements. ”
Capogrosso’'s office was located near the World Trade
Center, and the events of September 11, 2001 disrupted
her ability to work. Following those events, then-
Governor Pataki issued a series of executive orders
that permitted courts to extend any time limits fixed by
statute for directly affected persons. Capogrosso "had
left the country since her office was not functioning?" ”
In what was apparently a separate action filed by
Capogrosso against Benjamin, assigned to the Hon.
Carol R. Edmead, Benjamin moved to dismiss, and
Edmead refused to grant Capogrosso an adjournment
even though she was not in the country. Instead, he
granted Benjamin's motion to dismiss by default. °°
Capogrosso moved to vacate the default, and her
motion was assigned to the Hon. Jeffrey K. Oing, who
upheld the default. *' She filed a motion to reargue this
decision, and it was denied by the Hon. Geoffrey D.
Wright. * Capogrosso then filed an order to show cause
regarding Judge Wright's decision with the Hon.
Martin A. Shulman, who did not take appropriate
action. ™ Capogrosso then notified the Hon. Fern
Fisher Brandveen and the Hon. Joan B. Carey, who
also failed to take appropriate action. “ Capogrosso
notified Carrie Cohen, Chief of the Public Integrity
Unit of the Office of the Attorney General, and copied
Sherill Spatz, Inspector General, but they took no
action. ®
Capogrosso sent more supporting documentation to the
DDC. The DDC attempted to resolve the issue by
obtaining bank copies of the checks used by Benjamin
to pay the judgment, to assist in removing the debt
18a
from her credit report. She did not obtain these checks.
Capogrosso sent a number of iectters to Chief Judge
Judith Kaye concerning the DDC's refusal to pursue
the grievance and other matters, but these letters were
ignored.
On November 8, 2004, Cahill informed Capogrosso that
the DDC had completed the investigation and would
take no action against Benjamin. * She appealed to Paul
Curran, Chairman of the DDC, but he denied
reconsideration. She then wrote letters to Chief Judge
Kaye and to Judge John Buckley, but these went
unanswered.
2. Failure to Adjourn a Conference
On October 10, 2001, Capogrosso appeared before
defendant the Hon. Eileen Rakower in connection with
an action she had filed against the Hospital for Special
Surgery. She had been awarded a default, but the
hospital had moved to open the default and be
permitted to file an answer. Capogrosso requested an
adjournment tc oppose the motion because of the state
of her office. *’ Judge Rakower denied the adjournment
request and granted the motion. *
3. Legal Malpractice
Capogrosso sued a former attorney for malpractice. *
Defendant the Hon. Debra James dismissed this action.
YQ
4. Alleged Animus
Capogrosso alleges that defendant the Hon. Judith
Gische presided over a case that Capogrosso filed and
that she "screamed at counsel, 'Do you know how many
19a
frivolous cases she has? Don't you know that she is a
professional litigant?" % As a result of Judge Gische's
animus, Capogrosso had to settle the case rather than
go to trial, allegedly depriving Capogrosso of her right
to due process. ”
5. Denial of Counsel
In an avparently unrelated action also brought by
Capogrosso, the defendant Hon. Eileen Bransten
granted a motion for Capogrosso's counsel to withdraw,
apparently on the ground that Judge Bransten and the
attorney were friends. “ Judge Bransten then ordered
Capogrosso to appear for a deposition without counsel;
when Capogrosso refused, Judge Bransten caused
Capogrosso to bear the $ 198 court reporter fee and
then dismissed Capogrosso's complaint. ™
6. Claims
Pursuant to section 1983, Capogrosso alleges that
Hamilton, Cohen, Cahill, Curran, Chief Judge Kaye,
and Judge Buckley engaged in a conspiracy to violate
her due process rights. She also alleges that they
engaged in obstruction of justice, conspiracy to obstruct
justice, and deprivation of property. She asserts that
the DDC, Cahill, Judge Buckley, Curran, Chief Judge
Kaye, the State of New York, and the OCA are liable
for negligent supervision. Pursuant to section 1983, she
alleges that Chief Judge Kaye; Spatz; the OCA; the
State Commission on Judicial Conduct (the "SCJC"), the
State of New York; Raoul Felder, Chair of the SCJC;
Carey; and Judges Brandveen, Bransten, Gische,
Shulman, Wright, Oing, Rakower, and Edmead
engaged in a conspiracy "to hinder public and legal
20a
justice in the State of New York ... all in retaliation
because plaintiff filed complaints and letters about the
defendants repeated contempt of Executive orders and
Directives." ® She further alleges that Judge Kenney
made false public statements, specifically, that a certain
lawsuit "appears to be the 35th lawsuit plaintiff has
brought in this court, on her own behalf, as a pro se
litigant, since 1998." ®% She also alleges that Judge
James made false public statements and deprived her of
property and that Judges Bransten and _ Gische
deprived her of her due process rights by failing to
adjudicate her state court actions fairly. Capogrosso
next alleges that Chief Judge Kaye; Judges Rakower,
Edmead, Oing, Wright, Bransten, Gische, Kenney,
James, and Shulman; the SCJC; and the State of New
York engaged in a separate conspiracy to obstruct
justice and that Spatz; the OCA; the State of New
York; Judges Shulman, Brandveen, and Carey; and
Chief Judge Kaye are responsible for negligent
supervision. She further pleads a separate negligent
supervision claim against Felder and the SCJC.
Capogrosso's final cause of action concerns section 44 of
the New York Judiciary Law. Section 44 provides in
relevant part that the SCJC, upon receiving a
complaint as to the conduct of a judge, may dismiss the
complaint "if it determines that the [*25] complaint on
its face lacks merit." % Capogrosso asserts that by
permitting an organization "that is not subject to
review or oversight" to review these complaints, the
law denies (presumably the complainants) due process
and equal protection.
F’. Petree-Tolino v. State of New York
2la
John Petrec-Tolino also asserts that the DDC failed to
address a grievance. His Complaint provides little
information about the underlying dispute.
A. Facts”
Petrec-Tolino's spouse, Sherri Petrec-Tolino, has a
history of mental illness. *” During their engagement,
they hired attorney Jeffrey S. Kisenberg to draft a
document granting Petrec-Tolino power of attorney.
Apparently the relationship soured; in 2004, Petrec-
‘lolino filed a grievance against Eisenberg with the
DDC. 100
On September 11, 2006, Petrec-Tolino filed an action in
small claims court against Eisenberg for breach of
contract. Eisenberg responded with a motion to dismiss
that included a fraudulent contract and falsely alleged
that Petrec-Tolino made threats to his safety. 1°! Judge
Cindy Kern ruled against Petrec-Tolino on his claims
and denied Ejisenberg's counterclaims. "Plaintiff failed
to file a timely 'Notice of Appeal’ due to mercury and
arsenic poisoning.” 1°
Petrec-Tolino then filed a grievance with the DDC
regarding the fraudulent contract. On December 1,
2006, Cahill closed the file, marking it as a fee dispute.
'’ Petrec-Tolino also notified the United States Postal
Inspector, who forwarded the complaint to the
Attorney General for the State of New York. Petrec-
Tolino also complained to Attorney General Eliot
Spitzer.
On June 1, 2007, the DDC agreed to reconsider Petrec-
Tolino's grievance. Eisenberg sent a defamatory and
fraudulent response. '* On December 28, 2007, Cohen
closed the file. '° Petrec-Tolino requested further
22a
reconsideration, but Alan W. Friedberg, also a DDC
administrator, denied this request. '°°
B. Claims
Petrec-Tolino alleges that the DDC, Cahill, Cohen,
Friedberg, and Rebecca Taub, an administrator at the
DDC, '” are liable pursuant to section 1983 for denying
his rights to due process and equal protection, as well
as his night to petition the government for redress of
grievances. He also alleges that all defendants violated
the Racketeer Influenced and Corrupt Organizations
Act ("RICO") in that they "all acted in concert to
conspire and roadblock Plaintiff's due process and equal
protection under the law." '° Petrec-Tolino also alleges
that Eisenberg is liable for witness tampering, "making
an apparently false statement in the first degree," °°
defamation, breach of fiduciary duties, and other state
law violations.
Ill. APPLICABLE LAW
A. Standard of Review
"Federal Rule of Civil Procedure 8(a)(2) requires ... ‘a
short and plain statement of the claim showing that the
pleader is entitled to relief." '° When deciding a
defendant's motion to dismiss under Rule 12(b)(6),
courts must "accept as true all of the factual allegations
contained in the complaint" ' and "draw all reasonable
inferences in laintiffs favor." '" Likewise, when
deciding a motion for judgment on the pleadings, a
court "must accept all allegations in the complaint as
true and draw all inferences in the non-moving party's
favor." "8
23a
Nevertheless, to survive a Rule 12(b)(6) motion to
dismiss, the allegations in the complaint must meet the
standard of "plausibility." | Although the complaint
need not provide "detailed factual allegations," ' it
must "amplify a claim with some factual allegations...
to render the claim plausible." | The test is no longer
whether there is "no set of facts [that plaintiff could
prove] which would entitle him to relief." '!’ Rather, the
complaint must provide “the grounds upon which [the
plaintiff's] claim rests through factual allegations
sufficient ‘to raise a right to relief above the speculative
level."" "5
Although this Court must take the plaintiff's allegations
as true, "the claim may still fail as a matter of law . . . if
the claim is not legally feasible." |’ In addition, "bald
assertions and conclusions of law will not suffice." }¥°
Courts must construe pro se complaints liberally. '”
However, a litigant's pro se status does not exempt him
from compliance with the relevant rules of procedural
and substantive law. !”
B. Rule 8(a)
"(T]he principal function of pleadings under the Federal
Rules is to give the adverse party fair notice of the
claim asserted so as to enable him to answer and
prepare for trial." '* "The statement should be short
because '|[uJnnecessary prolixity in a pleading places an
unjustified burden on the court and the party who must
respond to it because they are forced to select the
relevant material from a mass of verbiage." !*4
If a pleading fails to comply with Rule 8&(a), the court
may strike redundant or immaterial portions or, if "the
complaint is so confused, ambiguous, vague, or
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otherwise unintelligible that its true substance, if any,
is well [*31] disguised," dismiss the complaint entirely.
‘> It is generally an abuse of discretion to deny leave to
amend when a complaint is dismissed for this reason. !°
C. Section 1983
Section 1983 "does not create a federal right or bencfit;
it simply provides a mechanism for enforcing a right or
benefit established elsewhere." '*’ In order to state a
claim under section 1983, a plaintiff must show that the
conduct complained of was committed by a person or
entity acting under color of state law, and that the
conduct deprived a person of rights, privileges, or
immunities secured by the Constitution. !”8
D. Racketeer Influenced and Corrupt Organizations
("RICO")
A plaintiff claiming a civil RICO violation must allege
each of the claim's elements, including "(1) conduct, (2)
of an enterprise, (8) through a pattern (4) of
racketeering activity." In considering civil RICO
claims, a court must be mindful of the devastating effect
such claims may have on defendants. °° Civil RICO
should not be used to transform a "garden variety fraud
or breach of contract case[]... into a vehicle for treble
damages." !*! The statute of limitations for civil RICO
claims is four years. !%
E.. The Right to an Investigation
"(T]he Due Process Clauses generally confer no
affirmative right to governmental aid, even where such
aid may be necessary to secure life, liberty, or property
interests of which the government itself may not
25a
deprive the individual." '* "[C]lourts within the Second
Circuit have determined that ‘[t]here is ... no
constitutional right to an investigation by government
officials."" ' Thus, there is no constitutional violation
where the government refuses to investigate a crime,
allegations of patent fraud, or an attorney ethics
grievance. '°
F. Immunity
1. The Eleventh Amendment
The Eleventh Amendment to the United States
Constitution provides that "|t]he Judicial power of the
United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State,
or by Citizens or Subjects of any Foreign State."
Because the States have sovereign immunity against
claims in federal court, a private citizen cannot sue a
State unless the State has consented or Congress has
abrogated that immunity. ' "This jurisdictional bar
elso immunizes a state entity that is an ‘arm of the
State,' including, in appropriate circumstances, a state
official acting in his or her official capacity." '%
However, under the rule of Ex parte Young, '* "a
plaintiff may sue a state official acting in his official
capacity -- notwithstanding the Eleventh Amendment -
- for prospective, injunctive relief from violations of
federal law." '*° This relief requires that there be an
ongoing violation of federal law. '*°
"Although the Suoreme Court has not specifically ruled
on this burden qi >stion, circuit courts that have done
so have unanimously concluded that ‘the entity
26a
asserting Eleventh Amendment immunity has the
burden to show that it is entitled to immunity."" To
determine whether a state agency is entitled to
immunity under the Eleventh Amendment, the Second
Circuit has prescribed six factors: "'(1) how the entity is
referred to in the documents that created it; (2) how the
governing members of the entity are appointed; (3) how
the entity is funded; (4) whether the entity's function is
traditionally one of local or state government; (5)
whether the state has a veto power over the entity's
actions; and (6) whether the entity's obligations are
binding upon the state." '” If these are not dispositive,
"a court focuses on the twin reasons for the Eleventh
Amendment: (1) protecting the dignity of the state, and
(2) preserving the state treasury." '* "If the outcome
still remains in doubt, then whether a judgment against
the governmental! entity would be paid out of the state
treasury generally determines the application of
Eleventh Amendment immunity."
2. Judicial Immunity
Judges have absolute immunity from suits for acts
performed in their judicial capacities. Even if a judge
acts maliciously, a litigant's remedy is to appeal, not to
sue the judge. Judicial immunity can be overcome only
where a judge completely lacks jurisdiction over the
subject matter. This immunity also extends to the
institution of the court itself, as well as its supporting
offices.
It is "well-established that officials acting in a judicial
capacity are entitled to absolute immunity against §
1983 actions, and this immunity acts as a complete
shield to claims for money damages.” ' "Absolute
immunity extends not only to judges and prosecutors,
27a
but also to officials who perform functions closely
associated with the judicial process, including parole
board officials conducting parole hearings, federal
hearing examiners, administrative law judges, and law
clerks." '*°
Judicial immunity was created “for the benefit of the
public, whose interest it is that the judges should be at
liberty to exercise their functions with independence
and without fear of consequences.” '” "Thus, if the
relevant action is judicial in nature, the judge is
immune so long as it was not taken in the complete
absence of jurisdiction." '° Quasi-judicial immunity
protects administrative officers who act in a judicial
manner. ‘” Attorney disciplinary proceedings are
"judicial in nature," '° so the presiding officers are
protected by absolute immunity. However, neither
judicial immunity nor quasi-judicial immunity bars a
claim for prospective injunctive relief. }°!
3. Qualified Immunity
The doctrine of qualified immunity protects
government officials from civil liability if the officials’
conduct "does not violate clearly established statutory
or constitutional rights of which a reasonable person
would have known." ' Qualified immunity balances
‘the need . . . to hold responsible public officials
exercising their power in a wholly unjustified manner
and .. . [the need] to shield officials responsibly
attempting to perform their public duties in good faith
from having to explain their actions to the satisfaction
of a jury." '* Qualified immunity "provides ample
protection to all but the plainly incompetent or those
who knowingly violate the law." '* Qualified immunity
is “a defense afforded only to individuals -- not
23a
municipalities or municipal agencies." ' "[A]Jn official
sued in his official capacity may not take advantage of a
qualified immunity defense." '°°
There are three steps in a qualified immunity analysis.
The court first must determine whether, "taken in the
light most favorable to the party asserting the injury . .
. the officer's conduct violated a constitutional right...
." §7 Tf there is no constitutional violation, the defendant
is not liable and the court need not proceed further. If,
however, the plaintiff proves a constitutional violation,
the court moves to the second step, which asks whether
or not, at the time of the violation, the law prohibiting
the defendant's conduct was clearly established.-'* If
the violated right was not clearly established, the
officer is immunized from liability. "Clearly established"
means: (1) the law is defined with reasonable clarity,
(2) the Supreme Court or Second Circuit has recognized
the right, and (8) 'a reasonable defendant [would] have
understood from the existing law that [his] conduct was
unlawful." ' If the law prohibiting defendant's conduct
was clearly established, the court moves to the final
step in the analysis, which asks whether or not "it was
objectively reasonable for [the defendant] to believe
that his actions were lawful at the time of the
challenged act.'" '® An official's conduct is objectively
unreasonable, and not eligible for qualified immunity,
"when no officer of reasonable competence could have
made the same choice in similar circumstances." '®!
G. The Rooker-Feldman Doctrine
In Rooker v. Fidelity Trust Co., the Supreme Court
held that federal district courts "lacked the requisite
appellate authority, for their jurisdiction was 'strictly
29a
original.'! Among federal courts, the Rooker Court
clarified, Congress had empowered only [the Supreme
Court] to exercise appellate authority ‘to reverse or
modify’ a state-court judgment." '* In District of
Columbia Court of Appeals v. Feldman, the Court
further clarified that state court proceedings that were
"judicial in nature" were reviewable only by the
Supreme Court or by the highest court of the state. '*
A denial of bar admission to two men who had not
graduated from ABA accredited law schools by the
Court of Appeals for the District of Columbia was
considered a proceeding that was "judicial in nature" by
the Keldman Court, and therefore not reviewable by
the district court. )™
IV. DISCUSSION
A. Immunity
1. The Eleventh Amendment
The State of New York has not consented to be sued in
these actions and Congress has not abrogated state
immunity for plaintiffs' claims. Therefore, this Court
has no jurisdiction to hear any claims against the State.
Similarly, the Appellate Divisions of the New York
State Supreme Court are an arm of the State of New
York. '® All claims against these defendants are
therefore dismissed.
The New York State Legislature has vested the
exclusive jurisdiction to discipline attorneys in the four
departments of the Appellate Division of the Supreme
Court. ' The Departments have delegated to the
Departmental Disciplinary Committees their judicial
function of investigating charges of attorney
30a
misconduct. '*’ Accordingly, each Committee, like the
disciplinary and grievance committees in other
jurisdictions, "is a delegatee of the powers of the
Appellate Division as an aid to that Court in carrying
out its statutory functions." '®* The DDCs are thus arms
of the State. All claims against them are dismissed
because they are immune from suit under the Eleventh
Amendment. Similarly, the OCA; SCJC; and New York
State Grievance Committee, Ninth Judicial! District are
arms of the State of New York. All claims against these
defendants are dismissed as well.
b. Judicial and Quasi-Judicial Immunity
Plaintiffs have alleged that various judges of the New
York court system have failed to uphold their judicial
responsibilitics in various ways, either by acting
negligently or through malicious actions. Even if this
were true, the alleged wrongdoings took place in the
context of judicial proceedings where the courts had at
least arguable jurisdiction over the relevant matters.
Therefore, all suits against judges of the New York
State court system for damages are dismissed.
Further, individuals who are not judges but "who
perform functions closely associated with the judicial
process" are protected by quasi-judicial immunity. '°9
For these reasons, all claims for damages against Cahill,
Cohen, Friedberg, Taub, other members of the DDC,
and surrogates appointed by the court system are
dismissed.
B. Failure to Investigate
Many of the defendants in these suits are accused of
failing Lo investigate var.ous allegations. However, as
discussed above, there is no constitutional right to have
dla
the government’ investigate an_ allegation of
wrongdoing. !° Therefore, all constitutional claims for
failure to investigate or pursue grievances are
dismissed.
C. The Rooker-Feldman Doctrine
Several plaintiffs essentially ask the Court to review
the decisions of the courts of the State of New York.
The Court lacks jurisdiction to do so. Pursuant to the
Rooker-Feldman doctrine, only the Supreme Court has
appellate jurisdiction over state courts. If plaintiffs are
correct that the state courts acted unconstitutionally,
their proper recourse is to appeal to the higher courts
of the state and then, if necessary, to the United States
Supreme Court.
D. Standing
Several of plaintiffs’ claims relate to the alleged failure
of various defendants to take appropriate steps in
various attorney disciplinary procedures. A non-party
generally has no legally protected interest that is
affected by such failure. In the absence of such an
interest, a plaintiff has no standing to assert a claim. )”
Because they have no cognizable interest in having
criminal or civil proceedings brought by the
Government against the various defendants, plaintiffs
cannot state a claim against government officials for
failing to initiate those proceedings.
Capogrosso asserts that section 44 of the New York
Judiciary Law is unconstitutional in that it "violates the
Equal Protection and Due Process clauses of the U.S.
Constitution both on its face and as applied to plaintiff."
'@ However, as_ discussed above, Capogrosso's
32a
constitutional rights have not been violated because she
has no federal constitutional right to have her
grievances investigated. Because Capogrosso has
suffered no injury from this alleged constitutional
violation, she has no standing to assert that the statute
is unconstitutional. This claim is therefore dismissed.
E. Failure to Allege Wrongdoing
{ule 8(a) does not impose a substantial pleading burden
on a plaintiff. The complaint need only state sufficient
facts to put the defendant on notice of the conduct at
issue. However, allegations of fraud must be pled
pursuant to Rule 9b), which imposes a heightened
pleading standard. Plaintiff McCormick, who alleges
that certain defendants have committed fraud, has
failed to meet even the burden imposed by Rule &(a).
Her Complaint names as’ defendants Winthrop
tutherfurd, Jr. and David G. Keyko, who are alleged to
be attorneys admitted to practice in New York. '”
However, it fails to provide specificity as to the actions
they took to incur liability. The only relevant paragraph
States that "Plaintiff obtained confirming evidence
showing an organized and systematic fraud by the
defendants involving more than $ 37 million and the
falsification of official court records." !“ For this reason,
McCormick has failed to state a claim against
Rutherford and Keyko.
Similarly, Petrec-Tolino has failed to identify any action
taken by Taub other than the administrative intake of
his grievance petitions. He fails to allege that she took
any action that infringed on his constitutional rights.
His claims against her are therefore dismissed.
Similarly, Petrec-Tolino fails to allege the existence of
an enterprise other than a description, in the most
30a
nebulous and conclusory terms, of a conspiracy among
Eisenberg and the New York court system. His RICO
claims are therefore dismissed.
F. Supplemental Jurisdiction and Leave to Replead
When a plaintiff has not alleged diversity jurisdiction
and her federal claims fail as a matter of law, courts
generally decline to exercise supplemental jurisdiction
over remaining state law claims. '” In these cases, all
federal law ciaims have been dismissed and there is no
reason to depart from this general rule. I therefore
dismiss plaintiffs' state law claims. Plaintiffs’
underlying disputes are more appropriate for litigation
in state court.
A pro se plaintiff should be permitted to amend her
complaint prior to its dismissal for failure to state a
claim "unless the court can rule out any possibility,
however unlikely it might be, that an amended
complaint would succeed in stating a claim.” }°
However, “it 1s well established that leave to amend a
complaint need not be granted when amendment would
be futile." '” Because plaintiffs have not suffered any
wrongs that can be addressed in federal district court,
leave to replead is denied. '”
V. CONCLUSION
For the reasons stated above, defendants’ motions to
dismiss are granted and certain claims and defendants
are dismissed sua sponte. !” The Clerk of the Court is
directed to close these and related motions (in case no.
07 Civ. 11612, documents no. 41, 46, 49, 51, 65, and 66;
and in case no. 08 Civ. 2391, document no. 19) and these
cases.
/s/ Shira A. Scheindlin
Shira A. Scheindlin
U.S.D.J.
Dated: New York, New York
August &, 2008
Footnotes
1 07 Civ. 9599 (S.D.N.Y. filed Oct. 26, 2007).
2 The facts in this section are taken from Esposito's
Second Amended Complaint ("A’isposzto Compl.") and
are assumed to be true for purposes of this motion.
3 See id. 1120.
4 See id. ¥ 21.
5 See id. J 22.
6 See id. § 23.
7 In October or November of 2005, Esposito filed a
grievance with the 7 See zd. | 25.
8 Id. | 26.
9 Id.
10 See id. 4 29.
11 See id. ¢ 27.
12 See id. | 28.
13 See zd. | 30.
14 Seerd. Ff 34.
15 See ict. ¥ 36.
16 See id. 4 37.
17 See id. § 44.
18 The facts in this section are taken from McKeown's
Complaint ("McKeown Compl.") and are assumed to be
true for purposes of this motion.
19 See id. ¥ 30.
20 See id. ¥ 32.
21 See id. Ff 33
22 See id. J 37. The Complaint does not make clear
what the purpose of this order was.
23 Id. | 41.
24 Id. P 50.
25 See id. J 58.
26 Id. | 61. The Complaint actually reads, "If you don't
simply forget about the fu$ # ing assignment... ."
While the Court appreciates plaintiff's efforts to spare
36a
the parties' sensibilities, such concerns do not outweigh
the importance of accuracy and precision.
27 Id. | 63.
28 See id. Y 67.
29 Id. 4 68.
30 See id. ¥ 73.
31 See id. | 74.
32 Id. YY 77-79.
33 See id. J 81.
34 See id. JJ 69, 71.
35 See id. { 86.
36 Id. § 90.
37 Id. § 101.
38 Issues relating to the estate of Tom Carvel have
been heavily litigated in this and other courts. See, e.g.,
Estate of Carvel ex rel. Carvel v. Ross, 566 f. Supp. 2d
342, 2008 U.S. Dist. LEXIS 54455, 2008 WL 2794805 (D.
Del. 2008); In re Carvel, 49 A.D.3d 877, 853 N.Y.S.2d
902 (2d Dep't 2008); Carvel v. Carvel Found. Inc., 230
Fed. App'x 103 (2d Cir. 2007), cert. denied,__—~U.S. __.,
128 S. Ct. 1658, 170 L. Ed. 2d 356 (2008); Carvel v.
Godley, 939 So. 2d 204 (Fla. App. 4th Dist. 2006); Im re
Carvel, 23 A.D.8d 462, 808 N.Y.S.2d 100 (2d Dep't
37a
2005); In re Carvel, 303 A.D.2d 405, 755 N.Y.S.2d 851
(2d Dep't 2003), leave to appeal denied, 3 N.Y.3d 604,
817 N.E.2d 824, 784 N.Y.S.2d 6 (2004); In re Carvel, 2
A.D.3d 847, 769 N.Y.S.2d 402 (2d Dep't 2003); Carvel v.
Godley, 41 F. Supp. 2d 476 (S.D.N.Y. 1999); In re
Thomas & Agnes Carvel Found., 36 F. Supp. 2d 144
(S.D.N.Y.), app. dismissed, 188 F.3d 85, (2d Cir. 1999);
Carvel v. Arcadipane, 242 A.D.2d 314, 661 N.Y.S.2d 982
(2d Dep't 1997).
39 Except where indicated, the facts in this section are
taken from the Amended Complaint ("Carvel Compl.")
and are assumed to be true for purposes of this motion.
40 See Jeffrey B. Gale, The Smithsonian Institute,
Carvel Ice Cream Records, 1934-1989 (1993), available
at htty://americanhistory.si.edu/archives/d7488.htm.
41 See id.
42 See Carvel Compl. ¥ 49.
43 See id.
44 See id. J 50.
45 See id. ¥ 52.
46 See id. 62.
47 See id. § 64.
48 See id. | 66.
49 Seeid. J 117.
38a
50 1d. J 72
51 ig. ¥ 125.
52 See id. J 126.
53 See id. | 129.
54 See id. | 70.
55 See id. 4 75.
56 See zd. ¥ 84.
57 See id. ¥ 89.
58 See 2d. ¥ 95.
59 See zd. | 101.
60 See id. 4 105.
61 Id. | 108.
62 See id. | 136.
63 See id. | 141.
64 See rd. 1 145.
65 See id. | 150.
66 The facts in this, section are taken from McCormick's
Complaint ("McCormick Compl.") and are assumed to be
true for purposes of this motion.
39a
67 Attorneys Winthrop Rutherford, Jr. and David G.
Keyko were involved with the administration of the
estate of her late husband.
68 See id. ¥ 12.
69 See id. {J 12, 15-16.
70 Id. | 18.
71 Id. ¥ 38.
72 ‘The facts in this section are taken from Capogrosso's
Amended Complaint ("Capogrosso Compl.") and are
assumed to be true for purposes of this motion.
73 Id. [4 31-82.
74 See id. JJ 34-36.
15 See id. | 37-39.
76 See 2d. | 46.
77 See id. ¥ 47.
78 See id. J 75-76.
79 Id. | 92. Capogrosso does not explain why it was
necessary for her to leave the country.
80 See id. ¥ 94.
81 See id. 44 96-99.
40a
82 See id. J 102.
83 See id. 4 106.
84 See id. |] 109, 112.
85 See id. 4 114.
86 See id. 4 67
87 See id. | 79.
88 See id. | 90.
89 See rid. | 121.
90 See zd. ¥ 123.
91 Id. ¥ 78.
92 See id. | 129.
93 See id. | 130 ("Defendant Bransten improperly
granted a motion for plaintiff's counsel to withdraw
that plaintiff was a party [sic] on the basis of her
longstanding friendship with the attorney of record.").
94 See id. {J 132-133.
95 Id. 4] 167.
96 Id. | 175.
97 N.Y. Jud. L. § 44.
4la
98 The facts in this section are taken from Petrec-
Tolino's Amended Complaint ("Petrec-Tolino Compl.")
and are assumed to be true for purposes of this motion.
99 See id. J 3.
100 See zd. ¥ 17.
101 See id. | 18.
102 Id. | 20.
103 See rd. J 21.
104 See id. 4 26.
105 See id. {| 29.
106 See zd. § 31.
107 See id. J 32 ("By misrepresenting Plaintiff, Cahill,
Cohen and Friedberg are in violation of DR 1-102, as is
Rebecca Taub who intakes all complaints, ete.").
108 Id. J 12.
109 /d. | 18.
110 Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197,
2200, 167 L. Ed. 2d 1081 (2007) (quoting Fed. R. Civ. P.
8(a)(2)). '
111 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 1278S. Ct.
1955, 1964, 167 L. Eid. 2d 929 (2007).
42a
112 Ofori-Tenkorang v. American Int ‘| Group, 460
F.3d 296, 298 (2d Cir. 2006).
113 Patel v. Contemporary Classics of Beverly Hills,
259 F.3d 123, 126 (2d Cir. 2001) (citing Trish Lesbian &
Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998)).
114 Bell Atl., 1278. Ct. at 1970.
115 Jd. at 1964. See also ATSI Commc'ns v. Shaar
Fund, Ltd., 493 F.3d 87, 98 n.2 (2d Cir. 2007) (applying
the standard of plausibility outside Bell Atlantic's anti-
trust context).
116 Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007)
(holding that the plaintiffs complaint adequately
alleged the personal involvement of the Attorney
General because it was plausible that officials of the
Department of Justice would be aware of policies
concerning individuals arrested after the events of
September 11, 2001).
117 Bell Atl, 127 S. Ct. at 1968 (quoting Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80
(1957)).
118 ATSI Comme'ns, 493 F.3d at 98 (quoting Bell Atl.,
127 S. Ct. at 1965).
119 Allaire Corp. v. Okumus
2006).
A33 F.3d 248, 250 (2d Cir
120 Law Offices of Curtis V. V'rinko, L.L.P. v. Bell Atl.
Corp., 309 F.3d 71, 74 (2d Cir. 2002) (quotation omitted).
43a
121 See Lerman v. Board of Hlections in the Carty of
N.Y., 232 F.3d 1385, 140 (2d Cir. 2000). See also Haines
v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d
652 (1972) (providing that courts. should hold
"allegations of [| pro se complaint|s]... to less stringent
standards than formal pleadings drafted by lawyers.").
122 See Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983).
123 Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.
1988).
124 /d. (quoting C. Wright & A. Miller, 5 Federal
Practice and Procedure § 1281 (1969)).
125 Id.
126 See id. (citing Gordon v. Green, 602 F.2d 743, 745-47
(5th Cir. 1979), in which the court ruled that plaintiffs
should have been given leave to amend a 4000-page
complaint) (other citations omitted).
127 Morris-Hayes v. Board of Educ. of Chester Union
Free Sch, Dist., 423 F.3d 158, 159 (2d Cir. 2005) (citing
Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S. Ct.
2427, 85 L. Ed. 2d 791 (1985)).
128 See Palmieri v. Lynch, 392 F.3d 73, 78 (2d Cir.
2004).
129 Anatian v. Coutls Bank (Switzerland) Ltd., 193
I'.3d 85, 88 (2d Cir. 1999) (citing Sedima, S.P.R.L. v.
Imrex Co., 473 U.S. 479, 496, 105 S. Ct. 3275, 87 L. Ed.
2d 346 (1985)).
44a
130 See Kirk v. Heppl, 423 F. Supp. 2d 147, 2006 WL
689510, at *2 (S.D.N.Y. 2006) ("Because the mere
assertion of a RICO claim... has an almost inevitable
sligmatizing effect on those named as defendants, . .
courts should strive to flush out frivolous RICO
allegations at an early stage of the litigation.") (citations
and quotation marks omitted).
131 Goldfine v. Sichenzia, 118 F. Supp. 2d 392, 394
(S.D.N.Y. 2000). Accord Kirk, 423 F. Supp. 2d 147, 2006
WL 689510, at *2 (observing that courts "must be wary
of putative civil RICO claims that are nothing more
than sheep masquerading in wolves’ clothing"); Schmidt
v. kveet Bank, 16 ¥. Supp. 2d 340, 346 (S.D.N.Y. 1998)
(noting that because civil RICO "is an unusually potent
weapon -- the litigation equivalent of a thermonuclear
device ... courts must always be on the lookout for the
putative RICO case that is really nothing more than an
ordinary fraud case clothed in the Emperor's trendy
garb").
132 Agency Holding Corp. v. Malley-Duff & Assocs.,
483 U.S. 148, 156, 107 S. Ct. 2759, 97 L. Ed. 2d 121
(1987).
133 DeShaney v. Winnebago Soc. Servs., 489 U.S. 189,
196, 1O9S. Ct. 998, 108 L. Ed. 2d 249 (1989)
134 Nieves v. Gonzalez, No. 05 Civ. 17, 2006 U.S. Dist.
LEXIS 24302, 2006 WL 758615, at *4 (W.D.N.Y. Mar. 2.
2006) (quoting Bal v. City of New York, No. 94 Civ.
4450, 1995 U.S. Dist. LEXIS 1359, 1995 WL 46700, at *2
(S.D.N.Y. Feb. 7), affd, 99 F.8d 402 (2d Cir. 1995))
(alterations in Nieves).
45a
135 See Longi v. County of Suffolk, No. CV-02-5821,
2008 U.S. Dist. LEXIS 25468, 2008 WL 858997, at *6
(&.D.N.Y. Mar. 27, 2008) ("[T]here is no constitutional
right to an investigation by government officials.").
136 See Seminole Tribe of Fla. v. Florida, 517 U.S. 44,
54,116 8S. Ct. 1114, 1384 L. Ed. 2d 252 (1996). Although
the text of the Amendment suggests that it does not
prohibit a citizen from suing his own state in federal
court, the Supreme Court has explained that the
Amendment clarifies that the States enjoy broad
sovereign immunity, including immunity in federal
court from suits brought by their citizens. See Hans v.
Louisiana, 134 U.S. 1, 10 S. Ct. 504, 33 L. Ed. 842
(1890).
137 In re Deposit Ins. Agency, 482 F.3d 612, 617 (2d Cir.
2007) (citing Northern Ins. Co. of N.Y. v. Chatham
County, Ga., 547 U.S. 189, 126 S. Ct. 1689, 164 L. Ed. 2d
367 (2006); Edelman v. Jordan, 415 U.S. 651, 668, 94 S.
Ct. 1347, 39 L. Ed. 2d 662 (1974)).
38 209 U.S. 123, 2858. Ct. 441, 52 L. Ed. 714 (1908).
139 State Kmployees Bargaining Agent Coal. v.
Rowland, 494 F.3d 71, 95 (2d Cir. 2007) (quoting Jn re
Deposit Ins. Agency, 482 F.3d at 617).
140 See id. at 96 ("We are specifically required by Fx
parte Young to examine whether there exists an
ongoing violation of federal law.") (citing Verizon Md.,
Ine. v. Public Serv. Comm'n of Md., 585 U.S. 635, 645,
228. Ct. 1758, 152 L. Ed. 2d 871 (2002)).
46a
141 Wouds v. Rondout Valley Central School Dist. Bd
of Hduc., 466 F.3d 232, 237 (2d Cir. 2006) (quoting
Gragg v. Kentucky Cabinet for Workforce Dev., 289
F.3d 95%, 963 (6th Cir. 2002) (citations omitted)).
142 Id. at 240 (quoting Mancuso v. New York State
Thruway Auth., 86 F.3d 289, 293 (2d Cir. 1996)).
143 /d. (citing Mancuso, 86 F.3d at 293).
144 /d. at 241.
145 Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999).
146 Roe v. Johnson, 334 F. Supp. 2d 415, 423 (S.D.N.Y.
2004) (citing Cleavinger v. Saxner, 474 U.S. 193, 200,
106 S. Ct. 496, 88 L. Ed. 2d 507 (1985)(hearing
examiners and administrative law judges); Montero,
171 F.8d at 760 (parole board officials); Oliva v. Heller,
839 F.2d 37, 40 (2d Cir. 1988) (law clerks)).
147 Pierson v. Fray, 386 U.S. 547, 554, 87S. Ct. 1213, 18
L. Ed. 2d 288 (1967).
148 Iuminski v. Corsones, 396 F.3d 53, 75 (2d Cir.
2005). Accord Stump v. Sparkman, 435 U.S. 349, 356-
57, 98S. Ct. 1099, 55 L. Ed. 2d 331 (1978) ("A judge will
not be deprived of immunity because the action he took
was in error, was done maliciously, or was in excess of
his authority; rather, he will be subject to liability only
when he has acted in the ‘clear absence of all
Jurisdiction.").
149 See Sassower v. Mangano, 927 F. Supp. 113, 120
(S.D.N.Y. 1996) ("Under the doctrine of quasi-judicial
47a
immunity, absolute immunity extends to administrative
officials performing discretionary acts of a judicial
nature.").
150 Middlesex County Ethics Comm. v. Garden State
Bar Assoc., 457 U.S. 423, 433-34, 102 S. Ct. 2515, 73 L.
Eid. 2d 116 (1982) ("It is clear beyond doubt that the
New Jersey Supreme Court considers its. bar
disciplinary proceedings as ‘judicial’ in nature.").
151 See Pulliam v. Allen, 466 U.S. 522, 541-42, 104 BS.
Ct. 1970, 80 L. Ed. 2d 565 (1984) ("We conclude that
judicial t:mmunity is not a bar to prospective injunctive
relief against a judicial officer acting in her judicial
capacity.").
152 Velez v. Levy, 401 F.3d 75, 100 (2d Cir. 2005)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.
Ct. 2727, 73 L. Ed. 2d 396 (1982)).
153 Locurto v. Safir, 264 F.3d 154, 162-63 (2d Cir. 2001)
(quoting Kaminsky v. Rosenblum, 929 F.2d 922, 924-25
(2d Cir. 1991)).
154 Malley v. Briggs, 475 U.S. 335, 341, 106 5. Ct. 1092,
89 L. Ed. 2d 271 (1986).
155 Williams v. City of Mount Vernon, 428 F. Supp. 2d
146, 153 n.2 (S.D.N.Y. 2006).
156 Mitchell v. Forsyth, 472 U.S. 511, 556 n.10, 105 S.
Ct. 2806, 86 L. Ed. 2d 411 (1985) (Brennan, J.,
concurring in part and dissenting in part) (citing
Brandon v. Holt, 469 U.S. 464, 472-73, 105 S. Ct. 878, 83
L. Ed. 2d 878 (1985)).
48a
157 Saucier v. Katz, 5383 U.S. 194, 201, 121 S. Ct. 2151,
150 L. Ed. 2d 272 (2001).
158 See ad.
159 Anderson v. Recore, 317 F.3d 194, 197 (2d Cir.
2003)(quoting Young v. County of Fulton, 160 F.3d 899,
903 (2d Cir. 1998)) (alterations in Anderson).
160 Anthony v. City of N.Y., 389 F.8d 129, 187 (2d Cir.
2003) (quoting Lennon v. Miller, 66 F.3d 416, 420 (2d
Cir. 1995)).
161 /d. at 138 (quotation marks omitted).
162 Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S. 280, 284, 125 S. Ct. 1517, 161 L. Ed. 2d 454
(2005)Gnternal citations omitted). Accord Rooker v.
Fidelity Trust Co., 263 U.S. 413, 416, 44 S. Ct. 149, 68 L.
Ed. 3862 (1923).
163 District of Columbia Court of Appeals v. Feldman,
460 U.S. 462, 476, 103 S. Ct. 1303, 75 L. Ed. 2d 206
(1983). Accord H'xxon Mobil, 544 U.S. at 285.
164 Feldman, 460 U.S. at 479-82.
165 See N.Y. Const. art. 6, § 1. Further, neither the
State nor the Appellate Division can be sued under
section 1983 because they are not "persons." See
Zuckerman v. Appellate Div., Second Dep't, Supreme
Court of State of N.Y., 421 F.2d 625, 626 (2d Cir. 1970)
("[I]t is quite clear that the Appellate Division is not a
‘person’ within the meaning of 42 U.S.C. § 1983... .
49a
[T fhe state itself is also not subject to suit under section
1983.") (citation omitted).
166 The Judiciary Law of the State of New York states:
The supreme court shall have power and
control over attorneys and counsellors-at-
law and ali persons practicing or assuming
to practice law, and the appellate division
of the supreme court in each department is
authorized to censure, suspend from
practice or remove from office any attorney
and counsellor-at-law admitted to practice
who is guilty of professional imisconduct,
malpractice, fraud, deceit, crime or
misdemeanor, or any conduct prejudicial to
the administration of justice; and the
appellate division of the supreme court is
hereby authorized to revoke — such
admission for any misrepresentation or
suppression of any _ information in
connection with the = application for
admission to practice.
N.Y. Judiciary Law § 90(2).
167 New York State regulations state as follows:
This court shall appoint a Departmental
Disciplinary Committee for the Judicial
Department, which shall be charged with
the duty and empowered to investigate and
prosecute matters involving alleged
misconduct by attorneys who, and law
firms that, are subject to this Part and to
50a
impose discipline to the extent permitted
by section 603.9 of this Part.
N.Y. Comp. Codes R. & Regs., tit. 22, § 603.4(a).
168 Rapoport v. Departmental Disciplinary Comm. for
First Judicial Dep't, No. 88 Civ. 5781, 1989 U.S. Dist.
LEXIS 13854, 1989 WL 146264, at *1 (S.D.N.Y. Nov.
21, 1989).
169 See Oliva, 839 F.2d at 39.
170 For this reason, these defendants are also entitled
to qualified immunity.
171 See Lujan v. Defenders of Wildlife, 504 U.S. 555,
560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992).
172 Capogrosso Compl. { 249.
173 See McCormick Compl. J 11.
174 Id. J 12.
175 See 28 U.S.C. § 1367(c)(8) (stating that a district
court may decline to exercise supplemental jurisdiction
over a claim if, inter alia, "the district court has
dismissed all claims over which it has original
jurisdiction"). See also Martinez v. Stmonetti, 202 F.3d
625, 636 (2d Cir. 2000) (directing dismissal of state law
claims when no federal claims remained); Adams v.
Intralinks, Inc., No. 03 Civ. 5384, 2004 U.S. Dist.
LEXIS 18678, 2004 WL 1627318, at *8 (S.D.N.Y. July
20, 2004) ("In the usual case in which all federal law
claims are eliminated before trial, the balance of factors
5la
to be considered under the [supplemental] jurisdiction
coctrine-judicial economy, convenience, fairness, and
comity-will point toward declining to exercise
jurisdiction over the remaining state law claims.")
(quotation and citation omitted).
176 Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796
(2d Cir. 1999).
177 Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2008).
178 Normally, McCormick would be permitted to
amend her Complaint to expand her allegations against
Rutherford and Keyko. However, her Complaint does
not suggest that she could raise any cause of action
against these defendants that would be cognizable in
federal court.
179 I note the Second Circuit's warning that "failure to
afford an opportunity to oppose a contemplated sua
sponte dismissal may be, ‘by itself, grounds for
reversal." Abbas v. Dixon, 480 F.3d 636, 640 (2d Cir.
2007) (quoting Acosta v. Artuz, 221 F.3d 117, 124 (2d
Cir. 2000)). However, the Circuit has also noted that it
is not bad practice to do so where "it is unmistakably
clear that the court lacks jurisdiction, or that the
complaint lacks merit or is otherwise defective .. ."" Jd.
(quoting Mojias v. Johnson, 351 F.3d 606, 610-11 (2d
Cir.2003)). For the reasons discussed above, these cases
fall into that category.
5Za
Filed 8/27/08
O08 Civ. 5455 (SAS)
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK
ELEANOR CAPOGROSSO,
Plaintiff,
- against —
THE NEW YORK STATE COMMISSION ON
JUDICIAL CONDUCT, et al.,
Defendants.
ORDER
SHIRR A. SCHEINDLIN, U.S.D..:
By Opinion and Order dated August 8, 2008, this Court
dismissed plaintiff's claims sua sponte. Plaintiff now
moves for reconsideration of that Opinion and Order.
"The standard for granting such a motion is strict, and
reconsideration will generally be denied unless the
moving party can point to controlling decisions or data
that the court overlooked - matters, in other words, -
that might reasonably be expected to alter the
conclusion reached by the court." Plaintiff raises a
number of grounds for reconsideration.
Plaintiff first asserts that defendant judges are not en-
titled to judicial immunity because they committed
crimes, namely obstruction of justice, conspiracy to
obstruct justice, and perjury.’ Plaintiff is incorrect. The
judicial actions that are the subject of plaintiff's Com-
plaint were clearly taken in the context of judicial pro-
53a
ceedings ove. which the defendant judges had clear ju-
risdiction. They are thus entitled to immunity for those
actions. If plaintiff is not satisfied with the decisions
made by a court in a matter in which it has jurisdiction,
her remedy is to appeal, not sue the judge.
Plaintiff next contends that the Court's analysis of de-
fendants' immunity was erroneous because it failed to
apply the exception to sovereign immunity first dis-
cussed in Ex Parte Young, which permits courts to
award injunctive relief in certain circumstances.’ How-
ever, as discussed in the Opinion and Order, plaintiff
failed to identify an ongoing violation of a constitutional
right that could be addressed by this Court through
injunctive relief.
Plaintiff also argues that the Court misapplied the
Rooker-Feldman doctrine. She reasons that the doc-
trine applies only to parties that have "lost" in state
court, and she did not "lose" her constitutional claims in
state court. Plaintiff has confused the requirements of
the doctrine. Rooker-Feldman prevents federal courts
from exercising appellate Jurisdiction over state courts
regardless of the form the action takes. Plaintiff's fed-
eral claims are barred because she asks this Court to
overturn state court decisions, not because the federal
claims themselves were already determined by a state
court. The latter is an example of claim preclusion, not
the Rooker-Feldman doctrine.
Plaintiff also argues that the Rooker-Feldman doctrine
is inapplicable to the State Commission on Judicial
Conduct because it is an administrative body and ar-
gues that the Court has jurisdiction to review the
Commission's decision to dismiss complaints against
54a
various judges.® As discussed in this Court's Opinion
and Order, plaintiff has no standing to raise this claim.‘
Similarly, plaintiff has no standing to challenge the con-
stitutionality of section 44 of the New York Judiciary
Law. &
Plaintiff has not identified any material facts or law
overlooked by the Court. Reconsideration is therefore
denied.
S80 ORDERED:
SHIRR A. SCHEINDLIN, U.S.D.J.
Footnotes
1 Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cw.
1995). Accord In re BDC 56 LLC, 330 F.3d 111, 123 (2d
Cir. 2003); Eisemann v. Greene, 204 F.8d 393, 395 n.2
(2d Cir. 2000) ("To be entitled to reargument, a party
must demonstrate that the Court overlooked control-
ling decisions or factual matters that were put before it
on the underlying motion." (quotation omitted)).
2 See Memorandum in Support of Motion for Reconsid-
eration ("Pl. Mem.") at 2.
8 209 U.S. 123 (1908).
4 See Opinion and Order at 46.
5 See Pl. Mem. at 6.
6 See 1d.
55a
7 See Opinion and Order at 47.
8 See id.
56a
Filed 12/29/2009
No, 08-4719-ev
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
KLEANOR CAPOGROSSO, Plaintiff-Appellant,
Vv.
NEW YORK STATE COMMISSION ON JUDICIAL
CONDUCT, STATE OF NEW YORK, OFFICE OF
COURT ADMINISTRATION, HON. FERN FISHER
BRANDVEEN, IN HER OF FICIAL AND
INDIVIDUAL CAPACITIES, HON. EILEEN
BRANSTEN, IN HER OFFICIAL AND
INDIVIDUAL CAPACITIES, HON. JOHN T.
BUCKLEY, IN BOTH ILIS OFFICIAL AND
INDIVIDUAL CAPACITIES, HON. JOAN CAREY,
IN HER OFFICIAL AND INDIVIDUAL
CAPACITIES, SHERRY K. COHEN, IN HER
OFFICIAL AND INDIVIDUAT, CAPACITIBS,
PAUL CURRAN, IN HIS OFFICIAL AND
INDIVIDUAL CAPACITIES, HON. CAROL R.
KDMEAD, IN HER OFFICIAL AND INDIVIDUAL
CAPACITIES, RAQUL FELDER, IN HIS
OFFICIAL AND INDIVIDUAL CAPACITIES,
HON. JUDITH GISCHE, IN WER OFFICIAL AND
INDIVIDUAL CAPACITIES, SARAH JO
HAMILTON, IN HER OFFICIAL AND
INDIVIDUAL CAPACITIES, HON, DEBRA
JAMES, INHER OFFICIAL AND INDIVIDUAL
CAPACITIES, HON. JUDITH S. KAYE, IN HER
OFFICIAL AND INDIVIDUAL CAPACITIES,
HON. JOAN M. KENNEY, IN HER OFFICIAL AND
INDIVIDUAL CAPACITIES, CATHERINE
O'HAGAN WOLFE, IN HER OFFICIAL AND
INDIVIDUAL CAPACITIES, HON. K. JEFFREY
57a
OING, IN HIS OFFICIAL AND INDIVIDUAL
CAPACITIES, HON. EILEEN A. RAKOWER, IN
HER OFFICIAL AND INDIVIDUAL CAPACITIES,
SHERILL SPATZ, IN HER OFFICIAL AND
INDIVIDUAL CAPACITIES, HON. MARTIN A.
SHULMAN, IN HIS OFFICIAL AND INDIVIDUAL
CAPACITIES, HON. GEOFFREY D. WRIGHT, IN
HIS OFFICIAL AND INDIVIDUAL CAPACITIES,
JOHN DOE 1-20, JANE DOE 1-20, THE
APPELLATE DIVISION, FIRST DEPARTMENT,
DEPARTMENTAL DISCIPLINARY COMMITTEE,
THOMAS J. CAHILL, IN HIS OFFICIAL AND
INDIVIDUAL CAPACITIES, Defendants-Appellees.
Eleanor Capogrosso having filed a petition for panel
rehearing, or, in the alternative, for rehearing en banc,
and the panel that determined the appeal having
considered the request for panel rehearing, and the
active members of the Court having considered the
request for rehearing en banc,
IT IS HEREBY ORDERED that the petition is
denied.
kor the Court,
Catherine O'Hagan Wolfe, Clerk
s/Frank Perez, Deputy Clerk
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.