Neroni v. Zayas ( 2016 )

15-2030
Neroni v. Zayas
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 ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
3 New York, on the 29th day of September, two thousand sixteen.
4
5 PRESENT:
6 DENNIS JACOBS,
7 BARRINGTON D. PARKER,
8 DEBRA ANN LIVINGSTON,
9 Circuit Judges.
10 _____________________________________
11
12 Frederick J. Neroni,
13
14 Plaintiff-Appellant,
15
16 v. 15-2030
17
18 Steven D. Zayas, Attorney, Committee of
19 Professional Standards, New York State
20 Supreme Court, Appellate Division, 3rd
21 Judicial Department, In his official and
22 individual capacity, et al.,
23
24 Defendants-Appellees.
25
26 _____________________________________
27
28
29 FOR PLAINTIFF-APPELLANT: Frederick J. Neroni, pro se, Pawleys Island, SC.
30
31 FOR DEFENDANTS-APPELLEES: Andrew B. Ayers, Senior Assistant Solicitor General
32 of Counsel, Andrea Oser, Deputy Solicitor General,
1 Barbara D. Underwood, Solicitor General, Eric T.
2 Schneiderman, Attorney General of the State of New
3 York, Albany, NY.
4
5 Port. L. Kirkwood, County Attorney, Delaware
6 County Attorney’s Office, Delhi, NY.
7
8 Appeal from a judgment of the United States District Court for the Northern District of
9 New York (Kahn, J.).
10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
11 DECREED that the judgment of the district court is AFFIRMED.
12 Appellant Frederick Neroni, a disbarred lawyer appearing pro se, appeals from the district
13 court’s dismissal of his 42 U.S.C. § 1983 complaint, which challenged the proceedings
14 surrounding his disbarment, the state laws that prohibit him from engaging in the unauthorized
15 practice of law, and the denial of access to his disciplinary file. We assume the parties’
16 familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
17 We review the dismissal of a complaint for lack of jurisdiction and failure to state a claim,
18 as well as a grant of judgment on the pleadings, de novo. L-7 Designs, Inc. v. Old Navy, 647 F.3d
19 419, 429 (2d Cir. 2011) (judgment on the pleadings); Jaghory v. N.Y. State Dep’t of Educ., 131
20 F.3d 326, 329 (2d Cir. 1997) (lack of jurisdiction and failure to state a claim). We review the
21 denial of a motion to recuse for abuse of discretion. United States v. Amico, 486 F.3d 764, 773
22 (2d Cir. 2007).
23 I. Rooker-Feldman
24 “Under the Rooker-Feldman doctrine, federal district courts lack jurisdiction over cases
25 that essentially amount to appeals of state court judgments.” Vossbrinck v. Accredited Home
26 Lenders, Inc., 773 F.3d 423, 426 (2d Cir. 2014). The Rooker-Feldman doctrine is applied if: “(1)
1 the federal-court plaintiff lost in state court; (2) the plaintiff complains of injuries caused by a state
2 court judgment; (3) the plaintiff invites review and rejection of that judgment; and (4) the state
3 judgment was rendered before the district court proceedings commenced.” Id. (internal quotation
4 marks and alterations omitted). Rooker-Feldman does not preclude federal court review of
5 “executive . . . determinations made by a state administrative agency.” Verizon Maryland, Inc. v.
6 Pub. Serv. Comm’n, 535 U.S. 635, 644 n.3 (2002). It does, however, preclude federal court
7 review of decisions by “agencies that are appropriately characterized as arms of the state judiciary
8 qua judiciary, either because they exercise powers that are inherent to the judiciary, or because the
9 state has provided mechanisms for judicial review of their determinations that distinguish those
10 determinations from other types of state administrative action.” Mitchell v. Fishbein, 377 F.3d
11 157, 166 (2d Cir. 2004).
12 Upon review, we agree with the district court that Neroni’s challenges to his disbarment are
13 barred by the Rooker-Feldman doctrine. The record shows that Neroni lost in state court, the
14 underlying injury complained of was his disbarment, he invited federal court review of his
15 disbarment order, and he filed his complaint after the state court order was entered. Neroni’s
16 argument that his disbarment was an administrative decision is meritless because attorney
17 discipline is a power inherent to the judiciary. See id. (observing that Rooker-Feldman precluded
18 federal court review of “determination by a state bar committee that an insurance company had
19 engaged in the unauthorized practice of law”); Zimmerman v. Grievance Comm. of the Fifth
20 Judicial Dist. of the State of New York, 726 F.2d 85, 86 (2d Cir. 1984) (concluding that
21 Rooker-Feldman “clearly applies to federal district court challenges to attorney disciplinary orders
22 rendered by state courts in judicial proceedings”).
3
1 II. Unauthorized Practice of Law
2
3 Neroni challenges New York’s law governing the unauthorized practice of law. These
4 claims are non-justiciable. “To be justiciable, a cause of action must be ripe—it must present a
5 real, substantial controversy, not a mere hypothetical question.” Nat’l Org. for Marriage v.
6 Walsh, 714 F.3d 682, 687 (2d Cir. 2013) (internal quotation marks omitted). A litigant is not
7 required “to expose himself to liability before bringing suit to challenge the basis” of a threat of
8 prosecution. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-29 (2007). However, “[a]
9 plaintiff bringing a pre-enforcement facial challenge against a statute” must show that he “has an
10 actual and well-founded fear that the law will be enforced against” him. Vermont Right to Life
11 Comm., Inc. v. Sorrell, 221 F.3d 376, 382 (2d Cir. 2000) (internal quotation marks omitted).
12 Even if a plaintiff shows that he has a well-founded fear of prosecution, he must also establish
13 “prudential ripeness,” which requires “both the fitness of the issues for judicial decision and the
14 hardship to the parties of withholding court consideration.” Walsh, 714 F.3d at 691 (internal
15 quotation marks omitted). “The ‘fitness’ analysis is concerned with whether the issues sought to
16 be adjudicated are contingent on future events or may never occur,” and “[i]n assessing this
17 possibility of hardship, we ask whether the challenged action creates a direct and immediate
18 dilemma for the parties.” Id. (internal quotation marks omitted).
19 Here, the district court concluded that a litany of Neroni’s challenges to New York’s
20 unauthorized practice of law provisions (e.g., his argument that they prevented him from writing
21 about or teaching the law) were non-justiciable because he did not plead a well-founded fear of
22 prosecution. Neroni cannot articulate a well-founded fear of prosecution because he has not
23 “established a basis for concluding that enforcement [of these provisions] against [him] is even
4
1 remotely likely.” Hedges v. Obama, 724 F.3d 170, 202 (2d Cir. 2013). Moreover, even
2 assuming that Neroni could show a well-founded fear of prosecution, he has failed to establish
3 “prudential ripeness” because his claims “are contingent on future events or may never occur” and
4 there is no “direct and immediate dilemma for the parties.” Walsh, 714 F.3d at 691 (internal
5 quotation marks omitted).
6 III. Recusal
7 The district court did not abuse its discretion by denying Neroni’s recusal motion because
8 he failed to show that the district judge was biased against him. Notwithstanding the fact that
9 Neroni’s wife previously sued the district judge and seven other judges on the Northern District,
10 the “evidence establishes no more than that the court ruled against” him. See In re Basciano, 542
11 F.3d 950, 956 (2d Cir. 2008).
12 * * *
13 We have considered all of Neroni’s remaining arguments and find them to be without
14 merit. Accordingly, we AFFIRM the judgment of the district court.
15
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
5