Koger v. Richardson ( 2021 )

20-3117
Koger v. Richardson
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 4th day of June, two thousand twenty-one.
PRESENT: Guido Calabresi,
Barrington D. Parker,
Steven J. Menashi,
Circuit Judges.
____________________________________________
FREDERICK S. KOGER, ROSLYN O. DREW,
AMANDA Z. KOGER, MEGAN E. KOGER,
Plaintiffs-Appellants,
v. No. 20-3117
JUDGE CLARK V. RICHARDSON,
CHIEF JUDGE JANET DIFIORE,
Defendants Appellees. *
____________________________________________
For Plaintiffs-Appellants: Frederick S. Koger, Roslyn O. Drew,
Amanda Z. Koger, Megan E. Koger, pro se,
Chicago, IL.
For Defendants Appellees: No appearance.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Ramos, J.).
Appellants Frederick Koger, Roslyn Drew, Amanda Koger, and Megan
Koger, pro se, appeal from the district court’s orders dismissing their complaint as
frivolous and denying their motion for reconsideration. We assume the parties’
familiarity with the underlying facts, the procedural history of the case, and the
issues on appeal.
Pro se submissions are reviewed with “special solicitude,” and “must be
construed liberally and interpreted to raise the strongest arguments that they
suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006)
(internal quotation marks and emphasis omitted). We construe the appellants’
* The Clerk of Court is directed to amend the caption as shown above.
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complaint as asserting due process and defamation claims and seeking monetary
and injunctive relief. The appellants assert that, in 2019, they found a decision
online dated June 28, 2005, and signed by Judge Clark Richardson. In that decision,
due to the failure of Frederick Koger and Drew to appear before the court, Judge
Richardson held a factfinding hearing by inquest and found by a preponderance
of the evidence that the parents had committed educational neglect. The
appellants argue that this order was defamatory and that it was entered without
any appropriate due process. They request monetary damages and injunctive
relief in the form of removing the opinion from the internet.
Monetary damages against judges are barred by judicial immunity. “It is
well settled that judges generally have absolute immunity from suits for money
damages for their judicial actions.” Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009).
Nor can judges be liable for defamation because “judges of courts of superior or
general jurisdiction are not liable to civil actions for their judicial acts, even when
such acts are in excess of their jurisdiction, and are alleged to have been done
maliciously or corruptly.” Bradley v. Fisher, 80 U.S. 335, 351 (1871); RESTATEMENT
(SECOND) OF TORTS § 585 (JUDICIAL OFFICERS) (1977) (“A judge or other officer
performing a judicial function is absolutely privileged to publish defamatory
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matter in the performance of the function if the publication has some relation to
the matter before him”).
The plaintiffs also seek injunctive relief in the form of removal and retraction
of the family court order. While judicial immunity disposes of their suit for
damages, judges are not immune from suit for injunctive relief. See Heimbach v.
Village of Lyons, 597 F.2d 344, 347 (2d Cir. 1979) (per curiam); see also Pulliam v.
Allen, 466 U.S. 522, 536-37 (1984) (“[J]udicial immunity is not a bar to prospective
injunctive relief against a judicial officer acting in her judicial capacity”); Wood v.
Strickland, 420 U.S. 308, 314 n. 6 (1975) (“[I]mmunity from damages does not
ordinarily bar equitable relief”); Hili v. Sciarrotta, 140 F.3d 210, 215 (2d Cir. 1998).
We affirm the district court’s dismissal on the ground that the plaintiffs’
claims were untimely. See Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993) (“We
may affirm ... on any basis for which there is a record sufficient to permit
conclusions of law, including grounds upon which the district court did not rely”).
“Section 1983 actions filed in New York are ... subject to a three-year statute of
limitations.” Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013). A § 1983 claim
“accrues when the plaintiff knows or has reason to know of the harm.” Eagleston
v. Guido, 41 F.3d 865, 871 (2d Cir. 1994) (internal quotation marks omitted). The
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plaintiffs filed their complaint on September 30, 2019. Therefore, their § 1983
claims must have accrued on September 30, 2016, or later to be timely. 1 But the
plaintiffs complain of an act that occurred in 2005, namely Justice Richardson’s
neglect finding. Although the plaintiffs claim that they were unaware of the 2005
order until 2019, this claim is belied by the date of the order—June 28, 2005—and
the fact that three of the plaintiffs previously sued Justice Richardson for issuing
that order. 2 For the same reasons, we affirm the dismissal of the defamation
claims. In New York, a defamation claim has a one-year statute of limitations. N.Y.
C.P.L.R. § 215(3). The plaintiffs’ defamation claim therefore must have accrued on
September 30, 2018, or later. As noted above it did not, and the defamation claim
1 Although Amanda and Megan Koger were minors in 2005, this does not affect the
timeliness of their complaint. New York tolls the statute of limitations only until the
minor in question turns 18, after which she has three years to commence an action. N.Y.
C.P.L.R. § 105(j) (defining “infant” as a person under 18 years of age), id. § 208(a) (stating
that a person who is considered disabled due to infancy has three years from the date of
their majority status to commence an action that accrued during their infancy). Amanda
turned 18 on August 29, 2010, and Megan turned 18 on August 15, 2013. The latest dates
these plaintiffs could bring § 1983 claims were August 29, 2013, and August 15, 2016,
respectively.
2 We may take judicial notice of the district court decisions dismissing the 2008 and 2013
complaints brought by Frederick, Amanda, and Megan Koger and the related court
filings. See Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991) (“[C]ourts routinely
take judicial notice of documents filed in other courts, again not for the truth of the
matters asserted in the other litigation, but rather to establish the fact of such litigation
and related filings”).
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is untimely.
We also affirm the district court’s denial of reconsideration. We review a
district court decision granting or denying a Federal Rule of Civil Procedure 60(b)
motion for abuse of discretion. Molchatsky v. United States, 713 F.3d 159, 162-63 (2d
Cir. 2013). “A district court abuses its discretion if it bases ‘its ruling on an
erroneous view of the law or on a clearly erroneous assessment of the evidence.’”
Ins. Co. of N. Am. v. Pub. Serv. Mut. Ins. Co., 609 F.3d 122, 127 (2d Cir. 2010) (quoting
Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir. 1998)). The
plaintiffs did not show that the district court had overlooked any facts or
controlling decisions and the district court had already considered all the
arguments and evidence they raised in their motion. Because the plaintiffs sought
reconsideration based on issues already determined by the district court, the
district court did not abuse its discretion by denying the motion. See Shrader v, CSX
Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (“[A] motion to reconsider should not
be granted where the moving party seeks solely to relitigate an issue already
decided”).
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We have considered the appellants’ remaining arguments, which we
conclude are without merit. For the foregoing reasons, we AFFIRM the judgment
of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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