Kelsey v. Clark ( 2023 )

22-22
Kelsey v. Clark
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 14th day of February, two thousand twenty-three.
PRESENT:
AMALYA L. KEARSE,
RICHARD J. SULLIVAN,
SARAH A. L. MERRIAM,
Circuit Judges.
_____________________________________
MICHAEL N. KELSEY,
Plaintiff-Appellant,
v. No. 22-22
BERNADETTE T. CLARK, SUPREME COURT
JUSTICE,
Defendant.*
_____________________________________
* The Clerk of Court is respectfully directed to amend the official case caption as set forth above.
For Plaintiff-Appellant: Michael N. Kelsey, pro se, Salt
Point, NY.
For Defendant: No appearance.
Appeal from a judgment of the United States District Court for the Northern
District of New York (Brenda K. Sannes, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Michael N. Kelsey, a former attorney proceeding pro se, appeals from the
district court’s dismissal of his complaint, brought pursuant to 42 U.S.C. § 1983,
alleging that New York State Supreme Court Justice Bernadette T. Clark deprived
him of his constitutional rights. In the complaint, which he filed in forma
pauperis and while incarcerated following his conviction for sexual abuse of
minors, Kelsey alleged that Justice Clark had violated his constitutional rights to
due process and equal protection when she dismissed his underlying state-court
defamation action on the ground that “his reputation is so low in the eyes of the
public” as to be “incapable of further injury” – i.e., that Kelsey is “libel[-]proof.”
App’x at 11–12. The district court sua sponte dismissed Kelsey’s section-1983
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action, reasoning that (1) judicial immunity barred Kelsey from seeking
retrospective relief against Justice Clark, and (2) to the extent that Kelsey sought
prospective relief, his allegations of future injury were insufficiently definite and
concrete to establish standing. We assume the parties’ familiarity with the
underlying facts, procedural history, and issues on appeal.
We review de novo the district court’s dismissal of a complaint filed in
forma pauperis. See McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004).
Under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), a district court must dismiss any
frivolous complaint brought against a governmental officer by a prisoner seeking
to proceed in forma pauperis. See Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir. 2004);
Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000). A
complaint is frivolous “if it has no arguable basis in law or fact, as is the case if it
is based on an ‘indisputably meritless legal theory.’” Montero v. Travis, 171 F.3d
757, 759–60 (2d Cir. 1999) (quoting Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989)).
Likewise, “[a] complaint will be dismissed as ‘frivolous’ when ‘it is clear that the
defendant[] [is] immune from suit.’” Id. at 760 (quoting Neitzke, 490 U.S. at 327).
Kelsey first argues that the district court erred in considering judicial
immunity sua sponte. This argument is squarely foreclosed by our precedents.
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We have consistently held that “[a]ny claim” subject to dismissal “on the ground
of absolute judicial immunity is ‘frivolous’ for purposes of [section 1915],” Mills v.
Fischer, 645 F.3d 176, 177 (2d Cir. 2011), and may be dismissed sua sponte by the
court, see, e.g., Deem v. DiMella-Deem, 941 F.3d 618, 621 (2d Cir. 2019) (“Because
[the defendant, a state-court judge,] was . . . clearly entitled to judicial immunity,
the district court did not err in sua sponte dismissing the claims against her as
frivolous.”); Montero, 171 F.3d at 759–61 (affirming sua sponte dismissal of claims
as barred by judicial immunity).
Next, Kelsey argues that the relief he seeks is prospective and thus not
barred by the doctrine of absolute judicial immunity. But while it is true that the
doctrine of judicial immunity has “never” barred plaintiffs from seeking purely
“prospective [declaratory] relief,” Pulliam v. Allen, 466 U.S. 522, 536 (1984),
superseded by statute on other grounds, Federal Courts Improvement Act of 1996,
Pub. L. No. 104–317, 110 Stat. 3847, courts have consistently prohibited plaintiffs
from seeking declarations that a governmental officer’s “prior conduct violated
federal law,” Green v. Mansour, 474 U.S. 64, 65, 73 (1985) (emphasis added). That
is because declaratory judgments of this sort could be “offered in state-court
proceedings as res judicata on the issue of [section-1983] liability,” thereby
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opening the door to retrospective claims for “damages or restitution” that are
clearly prohibited. Id. at 73. In other words, because “such a declaration”
would “‘result [in] a partial end[-]run around’ the Eleventh Amendment’s bar on
retrospective awards of monetary relief,” Ward v. Thomas, 207 F.3d 114, 120 (2d Cir.
2000) (quoting Green, 474 U.S. at 73), the Supreme Court has forbidden such relief,
see Green, 474 U.S. at 65–66. Therefore, Kelsey’s claim – seeking a declaration that
the libel-proof doctrine is unconstitutional and that Justice Clark violated his
constitutional rights by applying it in a now-concluded state-court action – is clearly
barred under the Supreme Court’s decision in Green and ours in Ward.
Kelsey attempts to resist this conclusion by arguing that his motivation for
seeking a declaratory judgment is not to “disrupt the . . . earlier [decision] by the
[s]tate [c]ourt,” or to pursue “money damages,” but to “‘permanently retire’ the
libel[-]proof doctrine” from being “applie[d] to him [or] to others” in “a later case.”
Kelsey Br. at 11, 14–15 (quoting App’x at 27). This argument fails twice over. To
begin with, we are aware of no authority for the proposition that the rule of Green
and Ward is subject to carveouts based on a plaintiff’s subjective motivation for
seeking a declaratory judgment. And in any event, we agree with the district
court that, “[t]o the extent” that Kelsey purports to seek a declaratory judgment
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for the limited purpose of preventing “the potential application of Justice Clark’s
ruling to himself in other potential cases and the potential application of th[at]
ruling to other litigants,” he cannot “satisfy the case-or-controversy requirement
of Article III of the Constitution.” App’x at 57 (emphasis in original); see Warth v.
Seldin, 422 U.S. 490, 499 (1975) (“[A] plaintiff generally must assert his own legal
rights and interests, and cannot rest his claim to relief on the legal rights or
interests of third parties.”); Ashcroft v. Mattis, 431 U.S. 171, 172 n.2 (1977)
(“[S]peculation” regarding future contingencies that “might” occur “is insufficient
to establish the existence of a present, live controversy.”).
We have considered all of Kelsey’s arguments and find them to be without
merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk of Court
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