Rogers v. Borkowsky ( 2019 )

18-2447
Rogers v. Borkowsky
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.
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 12th day of March, two thousand nineteen.
PRESENT:
ROBERT D. SACK,
REENA RAGGI,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
Patricia Rogers,
Plaintiff-Appellant,
v. 18-2447
Mitchell T. Borkowsky, Carolyn Mazzu
Genovesi,
Defendants-Appellees.
_____________________________________
FOR PLAINTIFF-APPELLANT: Patricia Rogers, pro se, Reading, PA.
FOR DEFENDANTS-APPELLEES: Andrew W. Amend, David Lawrence III,
Assistant Solicitors General, for Letitia A.
James, Attorney General of the State of New
York, New York, NY.
Appeal from a judgment of the United States District Court for the Eastern District of New
York (Matsumoto, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court entered on August 1, 2018, is AFFIRMED.
Appellant Patricia Rogers, proceeding pro se, sued the chief and assistant counsel to the
New York State Grievance Committee for the Tenth Judicial District (“Grievance Committee”) for
wrongs under the Federal Tort Claims Act and for violations of her constitutional rights. She
alleged that the Grievance Committee wrongfully declined to investigate a grievance that she filed
against her former attorney. The District Court dismissed the complaint under Federal Rule of
Civil Procedure 12(b)(1) for lack of standing. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal, to which we refer only
as needed to explain our decision to affirm.
On de novo review of the District Court’s dismissal, Rajamin v. Deutsche Bank Nat’l Trust
Co., 757 F.3d 79, 84–85 (2d Cir. 2014), we identify no error. To have standing, a plaintiff must
show that (1) she has an injury in fact, (2) there is a causal connection between the injury and
conduct of which she complains, and (3) “it [is] ‘likely,’ as opposed to merely ‘speculative,’ that
[her] injury will be ‘redressed by a favorable decision.’” Lujan v. Defenders of Wildlife, 504 U.S.
555, 560–61 (1992) (citation omitted). Injury in fact consists of “an invasion of a legally protected
interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.”
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (citation omitted). The requirement sets “a
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low threshold, . . . which helps to ensure that the plaintiff has a personal stake in the outcome of the
controversy.” John v. Whole Foods Mkt. Grp., Inc., 858 F.3d 732, 736 (2d Cir. 2017).
We have consistently held that “a private citizen generally lacks standing ‘to contest the
policies of the prosecuting authority when he himself is neither prosecuted nor threatened with
prosecution.’” United States v. Grundhoefer, 916 F.2d 788, 792 (2d Cir. 1990) (quoting Linda
R.S. v. Richard D., 410 U.S. 614, 619 (1973)). This principle precludes an individual from
challenging an attorney disciplinary committee’s decision not to discipline his or her former
attorney. In re Attorney Disciplinary Appeal, 650 F.3d 202, 204 (2d Cir. 2011). Just as crime
victims “have not suffered an Article III direct injury” from a prosecutor’s decision not to pursue
criminal charges against their assailants, Grundhoefer, 916 F.2d at 791 (emphasis added), a person
who files a grievance with an attorney disciplinary committee suffers no direct injury from that
committee’s decision not to pursue discipline. In re Attorney Disciplinary Appeal, 650 F.3d at
204; see also Doyle v. Okla. Bar Ass’n, 998 F.2d 1559, 1566–67 (10th Cir. 1993) (affirming
dismissal for lack of standing because grievant could not assert any cognizable legal interest in
disciplinary commission’s decision).
Rogers alleged that the Grievance Committee violated her constitutional rights by declining
to investigate her grievance against her former attorney. But under the precedent cited above, she
has not alleged an interest in the Grievance Committee’s proceedings sufficient to satisfy Article
III standing. See In re Attorney Disciplinary Appeal, 650 F.3d at 204; Doyle, 998 F.2d at 1566–
67.
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We have reviewed Rogers’s remaining arguments and conclude that they have no merit.
For the foregoing reasons, the judgment of the District Court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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