Kim v. Saccento

21-2865
Kim v. Saccento
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 17th day of October, two thousand twenty-two.
PRESENT:
JOHN M. WALKER, JR.,
RICHARD J. SULLIVAN,
Circuit Judges,
COLLEEN MCMAHON,
District Judge.*
_____________________________________________
KAEUN KIM,
Plaintiff-Appellant,
v. No. 21-2865
MICHAEL SACCENTO, JUDGE ALFONSE CIFELLI,
JUDGE MYRA TARANTINO,
Defendants-Appellees,
* Judge Colleen McMahon, of the United States District Court for the Southern District of New
York, sitting by designation.
Theodore Stephens, II, Acting Prosecutor,
Joseph Giordano, Assistant Prosecutor, Mira
Ohm, Assistant Prosecutor, John Strangfeld,
Caroline Feeney,
Defendants. †
_____________________________________________
FOR APPELLANT: Kaeun Kim, pro se, New York, NY.
FOR APPELLEE SACCENTO: Kirsten McCaw Grossman, Kerrie R. Heslin,
Nukk-Freeman & Cerra, P.C., Chatham, NJ.
FOR APPELLEES CIFELLI Michael R. Sarno, Deputy Attorney General,
AND TARANTINO: for Matthew J. Platkin, Acting New Jersey
Attorney General, Trenton, NJ.
Appeal from a judgment of the United States District Court for the Southern
District of New York (George B. Daniels, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Kaeun Kim, proceeding pro se, appeals from the district court’s dismissal of
his claims for wrongful arrest and malicious prosecution under 42 U.S.C. § 1983against New Jersey state prosecutors (the “Prosecutor Defendants”), New Jersey
state judges (the “Judiciary Defendants”), and employees and executives of his
† The Clerk of Court is respectfully directed to amend the official case caption as set forth above.
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former employer, Prudential Insurance Company of America (“Prudential”)
(the “Prudential Defendants”). In his pro se appellate briefs – “construed
liberally and interpreted to raise the strongest arguments that they suggest,”
Meadows v. United Servs., Inc., 963 F.3d 240, 243 (2d Cir. 2020) (citation omitted) –
Kim contends that the district court erred in: (1) finding venue to be improper in
the Southern District of New York (the “SDNY”); (2) dismissing his action rather
than transferring it to a district where proper venue would lie; (3) declining to sua
sponte grant leave to amend his complaint; (4) granting nonparty Prudential’s
motion to quash Kim’s subpoena seeking discovery; and (5) declining to initiate a
criminal proceeding against the Defendants. We assume the parties’ familiarity
with the underlying facts, procedural history of the case, and issues on appeal.
We review de novo the district court’s ruling on venue. Gulf Ins. Co. v.
Glasbrenner, 417 F.3d 353, 355 (2d Cir. 2005). When a case has been filed in an
improper venue, it generally “lies within the sound discretion of the district court”
to decide “[w]hether dismissal or transfer is appropriate.” Minnette v. Time
Warner, 997 F.2d 1023, 1026 (2d Cir. 1993). When the district court’s exercise of
this discretion is based on conclusions of law, however, “[w]e review the legal
conclusions underlying the district court’s decision de novo.” Cayuga Indian
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Nation of N.Y. v. Seneca County, 761 F.3d 218, 220 (2d Cir. 2014). We also review
de novo the district court’s conclusion that a plaintiff failed to state a claim for
which relief can be granted. Butcher v. Wendt, 975 F.3d 236, 241 (2d Cir. 2020).
Finally, we review a district court’s denial of leave to amend and grant of a motion
to quash a subpoena for abuse of discretion. See Green v. Mattingly, 585 F.3d 97,
104 (2d Cir. 2009); Arista Recs., LLC v. Doe 3, 604 F.3d 110, 117 (2d Cir. 2010).
Kim first challenges the district court’s ruling that venue was improper in
the SDNY. Suppl. App’x at 178. But because Kim raised this argument for the
first time in his reply brief, he has waived it. See Moates v. Barkley, 147 F.3d 207,
209 (2d Cir. 1998) (“Although pro se litigants are afforded some latitude in meeting
the rules governing litigation, pursuant to [Federal] Rule [of Appellate
Procedure] 28(a)[,] we need not, and normally will not, decide issues that a party
fails to raise in his [opening] appellate brief.” (internal citations omitted)); LoSacco
v. City of Middletown, 71 F.3d 88, 92–93 (2d Cir. 1995) (deeming issue waived by
virtue of pro se appellant’s failure to address it in his opening brief). Moreover,
even if we were to reach Kim’s challenge to the district court’s venue ruling on the
merits, it would still fail. Although Kim argues that “venue is proper” in the
SDNY because he – the plaintiff – now “is located in New York and a resident of
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New York State,” Reply Br. at 5, a plaintiff’s residence is irrelevant to the venue
inquiry, which instead turns on where the “defendant[s] reside[]” and where “the
events . . . giving rise to the claim occurred.” 28 U.S.C. § 1391(b)(1)–(2) (emphasis
added). Here, the complaint clearly alleges that all the defendants reside in New
Jersey and that all the events that gave rise to the alleged claims occurred there.
The district court was therefore justified in finding a lack of venue in the SDNY.
Kim next challenges the district court’s decision to dismiss his complaint
rather than transfer it to the District of New Jersey, where venue might otherwise
lie. But the district court correctly concluded that Kim could not bring a
cognizable section 1983 claim against any of the defendants, which made dismissal
appropriate. See Shmueli v. City of New York, 424 F.3d 231, 236 (2d Cir. 2005)
(“[T]he absolute immunity defense may be resolved as a matter of law on a motion
to dismiss the complaint.”); Ciambriello v. County of Nassau, 292 F.3d 307, 323–25
(2d Cir. 2002) (affirming dismissal of section 1983 complaint against private entity
for failure to establish state action).
As to the Judicial Defendants, it is well-settled law that “judges of [state]
courts of superior or general jurisdiction are not liable to civil actions [seeking
money damages] for their judicial acts, even when such acts are in excess of their
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jurisdiction, and are alleged to have been done maliciously or corruptly.” Stump
v. Sparkman, 435 U.S. 349, 355–56 (1978). Instead, judges are subject to suit only
for (1) “nonjudicial actions, i.e., actions not taken in the judge’s judicial capacity”;
and (2) “actions, though judicial in nature, taken in the complete absence of all
jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11–12 (1991). Here, the actions that Kim
complains of – adverse decisions in a criminal proceeding – are plainly judicial in
nature. See Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009) (“[A]cts . . . related to[]
individual cases before the judge are considered judicial in nature.”) And Kim
nowhere suggests that the Judiciary Defendants rendered those decisions “in the
complete absence of jurisdiction.” Huminski v. Corsones, 396 F.3d 53, 75 (2d Cir.
2005). Thus, the district court properly concluded that the Judiciary Defendants
were entitled to absolute immunity.
Prosecutors are similarly protected by absolute immunity with respect to
their “prosecutorial functions,” which extends to their “acti[ons] as advocates”
and “conduct involv[ing] the exercise of discretion,” such as “alleged misconduct”
in “initiating a prosecution” or “in presenting the State’s case.” Flagler v. Trainor,
663 F.3d 543, 547 (2d Cir. 2011) (citing Kalina v. Fletcher, 522 U.S. 118, 125, 127
(1997); Burns v. Reed, 500 U.S. 478, 492 (1991); Imbler v. Pachtman, 424 U.S. 409, 431
6
(1976)). Here, all of the alleged misconduct that Kim attributes to the Prosecutor
Defendants – in pursuing charges, opposing a discovery request, and seeking a
restraining order in the context of plea negotiations – squarely “falls within the
zone” of “prosecutorial functions” for which they are “absolutely immune.” Id.As for the Prudential Defendants, the district court properly concluded that
Kim could not “state a claim for relief . . . under [section] 1983” because the
Prudential Defendants cannot “fairly be said to be . . . state actor[s]” or to have
“committed [a deprivation of his constitutional rights] under color of state law.”
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999) (emphasis added).
While “an otherwise private person” may “act[] ‘under color of’ state law when
engaged in a conspiracy with state officials to deprive another of federal rights,”
Kim has not plausibly alleged that the Prudential Defendants were engaged in any
such “conspiracy” here. Tower v. Glover, 467 U.S. 914, 920 (1984). To do so, he
would have needed to plead “facts demonstrating that the [Prudential Defendants]
acted in concert with the [Judiciary and Prosecutor Defendants] to commit an
unconstitutional act,” Ciambriello v. County of Nassau, 292 F.3d 307, 324 (2d Cir. 2002)
(internal quotation marks omitted) – that is, “a meeting of the minds, such that
[the] defendants entered into an agreement, express or tacit, to achieve the
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un[constitutional] end,” Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2003) (internal
quotation marks omitted). Kim’s complaint alleged no such “meeting of the
minds” or “agreement.” Id. Instead, he relied solely on vague and
unsubstantiated assertions of “conflict[s] of interest” stemming from the fact that
some of the Judiciary and Prosecutor Defendants shared “the same Italian lineage
as [some of] the Prudential [Defendants]” and that “Essex County prosecutors and
courts” have historically received “donations and contributions” from Prudential.
Suppl. App’x at 86. Such “speculative” and “[b]road allegations of conspiracy are
insufficient,” Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir. 2009) (citation omitted), to
transform the Prudential Defendants’ “merely private conduct” – reporting Kim’s
alleged criminal conduct to local law enforcement authorities – into state action
for purposes of section 1983, Am. Mfrs. Mut. Ins., 526 U.S. at 50.
Kim next argues that the district court erred by not granting him leave to
amend his complaint. But there is nothing in the record to suggest that Kim ever
asked the district court for leave to amend. The “contention that the [d]istrict
[c]ourt abused its discretion in not permitting an amendment that was never
requested is frivolous.” Horoshko v. Citibank, N.A., 373 F.3d 248, 249–50 (2d Cir.
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2004); see also Anatian v. Coutts Bank (Switz.) Ltd., 193 F.3d 85, 89 (2d Cir.
1999) (holding same).
Kim also contends that the district court abused its discretion in quashing
his subpoena seeking security-camera footage from Prudential’s Newark, New
Jersey headquarters. But the district court did not quash Kim’s subpoena until
after it had already “dismissed [Kim’s complaint] in its entirety.” Suppl. App’x
at 179 & n.3. That “rendered moot” all of Kim’s pending discovery motions,
Weiss v. United States, 199 F.2d 454, 455 (2d Cir. 1952); see also Cooper v. Salomon
Bros., 1 F.3d 82, 87 (2d Cir. 1993), including his underlying motion to enforce the
subpoena that Prudential had moved to quash. Since the district court did not err
in dismissing Kim’s complaint, it did not abuse its discretion by quashing a
subpoena that had itself become moot.
Finally, Kim argues that the district court abused its discretion by declining
to initiate a criminal proceeding against the Defendants. This argument is
nonsensical, since Kim, as “a private citizen[,] lacks a judicially cognizable interest
in the prosecution or nonprosecution of another,” Linda R.S. v. Richard D., 410 U.S.
614, 619 (1973), and it is “the Executive Branch” – not the courts – that “has
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exclusive authority and absolute discretion to decide whether to prosecute a case,”
United States v. Nixon, 418 U.S. 683, 693 (1974).
We have considered all of Kim’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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