Shtrauch v. Dowd

15-2727
Shtrauch v. Dowd
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, held at
2 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
3 York, on the 10th day of June, two thousand sixteen.
4
5 PRESENT:
6 ROBERT D. SACK,
7 GERARD E. LYNCH,
8 Circuit Judges,
9 J. GARVAN MURTHA,
10 District Judge.
11 _____________________________________
12
13 MOSHE SHTRAUCH,
14
15 Plaintiff-Appellant,
16
17 v. 15-2727
18
19 KEVIN M. DOWD, Individually and as the
20 administrator of the Supreme Court building
21 in Norwich, NY,
22
23 Defendant-Appellee.
24 _____________________________________
25
26 FOR PETITIONER-APPELLANT: MOSHE SHTRAUCH, pro se, Mount Upton,
27 NY.

The Honorable J. Garvan Murtha, of the United States District Court for the District of Vermont,
sitting by designation.
1 FOR DEFENDANT-APPELLEE: JONATHAN D. HITSOUS, Assistant Solicitor
2 General (Barbara D. Underwood, Solicitor
3 General and Andrew B. Ayers, Senior Assistant
4 Solicitor General, on the brief), for Eric T.
5 Schneiderman, Attorney General of the State of
6 New York, Albany, NY.
7
8 Appeal from a judgment of the United States District Court for the Northern District
9 of New York (Thomas J. McAvoy, J.).
10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
11 AND DECREED that the judgment of the district court is AFFIRMED.
12 Appellant Moshe Shtrauch, proceeding pro se, appeals the district court’s judgment
13 dismissing his 42 U.S.C. § 1983 complaint asserting that Kevin Dowd, a New York state
14 justice, violated his First, Fourth, Fifth, and Fourteenth Amendment rights as barred by
15 judicial immunity.1 We assume the parties’ familiarity with the underlying facts, the
16 procedural history of the case, and the issues on appeal.
17 “It is well settled that judges generally have absolute immunity from suits for
18 money damages for their judicial actions.” Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir.
19 2009). Additionally, “in any action brought against a judicial officer for an act or
20 omission taken in such officer’s judicial capacity, injunctive relief shall not be granted
21 unless a declaratory decree was violated or declaratory relief was unavailable.” 42 U.S.C.
1
Shtrauch also moves to supplement the record on appeal to include the transcript of a state court
proceeding. “[A]bsent extraordinary circumstances, federal appellate courts will not consider . . .
evidence which [is] not part of the [district court] record.” Int'l Bus. Machs. Corp. v. Edelstein, 526
F.2d 37, 45 (2d Cir. 1975). Nevertheless, because it is undisputed that the transcript is accurate,
the inclusion of the transcript does not affect the merits of the case, and we have necessarily
reviewed the transcript in the course of deciding the motion, the motion is granted.
2
1 § 1983. “Judges are not, however, absolutely ‘immune from liability for nonjudicial
2 actions, i.e., actions not taken in the judge’s judicial capacity.’” Bliven, 579 F.3d at 209,
3 quoting Mireles v. Waco, 502 U.S. 9, 11 (1991). Moreover, judicial immunity does not
4 bar a claim for prospective injunctive and declaratory relief. Cf. Pulliam v. Allen, 466
5 U.S. 522, 541-43 (1984).
6 We employ “a ‘functional’ approach” to determine whether an act is “judicial”
7 because judicial “immunity is justified and defined by the functions it protects and serves,
8 not by the person to whom it attaches.” Forrester v. White, 484 U.S. 219, 224, 227 (1988)
9 (emphasis in original). “[T]he factors determining whether an act by a judge is a ‘judicial’
10 one relate to the nature of the act itself, i.e., whether it is a function normally performed by
11 a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his
12 judicial capacity.” Stump v. Sparkman, 435 U.S. 349, 362 (1978). Generally, “acts
13 arising out of, or related to, individual cases before the judge are considered judicial in
14 nature,” Bliven, 579 F.3d at 210, whereas, “[a]dministrative decisions, even though they
15 may be essential to the very functioning of the courts, have not similarly been regarded as
16 judicial acts,” Forrester, 484 U.S. at 228. This Court looks to state law to “inform [the]
17 inquiry as to whether [judges] acted . . . in their judicial capacities.” Huminski v.
18 Corsones, 396 F.3d 53, 76 (2d Cir. 2005).
19 Dowd was entitled to judicial immunity because the act underlying Shtrauch’s
20 claims – the removal of Shtrauch from the courthouse – was a function typically performed
21 by a judge in his judicial capacity and in relation to an individual case. See 22 N.Y.C.R.R.
3
1 § 100.3(B)(2) (providing that a judge in New York “shall require order and decorum in
2 proceedings before” him); People v. Knowles, 88 N.Y.2d 763, 766 (1996) (stating that
3 judges in New York “possess inherent authority” to control the conduct of the trial before
4 them); see also Huminski, 396 F.3d at 79 (concluding that defendant was entitled to
5 judicial immunity for barring litigant from courthouse because she “acted pursuant to
6 Vermont law in ensuring the security of the courthouse”). Moreover, in this case, Dowd
7 ordered Shtrauch removed based on Dowd’s perception – right or wrong – that Shtrauch
8 had behaved improperly during a conference in a case pending before him. Whether
9 Shtrauch is correct in asserting that he did not violate decorum is irrelevant to the question
10 of immunity; by definition, immunity protects wrongful as well as appropriate exercises of
11 a judicial function. See Stump, 435 U.S. at 359.
12 Shtrauch argues that Dowd is not entitled to judicial immunity because Dowd
13 recused himself from Shtrauch’s divorce proceedings prior to ordering that Shtrauch be
14 removed from the courthouse. Dowd’s recusal from Shtrauch’s case, however, does not
15 alter the functional analysis of the underlying act. The removal of a litigant from a
16 courtroom remains conduct typically performed by a judge in his judicial capacity arising
17 directly from an individual case before the judge. The judge’s decision to grant a recusal
18 motion does not deprive the judge of authority to address perceived misbehavior during the
19 proceeding on that motion.
20 Shtrauch is not entitled to injunctive relief because he “allege[d] neither the
21 violation of a declaratory decree, nor the unavailability of declaratory relief.” See
4
1 Montero v. Travis, 171 F.3d 757, 761 (2d Cir. 1999). Nor is Shtrauch entitled to
2 declaratory relief because he alleges only past conduct and does not seek to prevent an
3 ongoing or future violation of federal law. See Blanciak v. Allegheny Ludlum Corp., 77
4 F.3d 690, 698 (3d Cir. 1996) (concluding that relief sought was not prospective where the
5 “specific allegations target[ed] past conduct” and the “remedy [was] not intended to halt a
6 present, continuing violation of federal law”).
7 We have considered all of Shtrauch’s remaining arguments and find them to be
8 without merit. Accordingly, we AFFIRM the judgment of the district court.
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
5