McCluskey v. New York State Unified Court System

10-3011-cv
McCluskey v. New York State Unified Court System
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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 7th day of September, two thousand eleven.
PRESENT:
CHESTER J. STRAUB,
DENNY CHIN,
Circuit Judges,
LORETTA A. PRESKA,
Chief District Judge*
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PETER MCCLUSKEY,
Plaintiff-Appellant,
-v.- 10-3011-cv
NEW YORK STATE UNIFIED COURT SYSTEM,
CHIEF JUDGE JONATHAN LIPPMAN, GABOR &
GABOR, DAVID GABOR, HOPE GABOR,
Defendants-Appellees.**
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FOR PLAINTIFF-APPELLANT: PETER MCCLUSKEY, pro se, Lynbrook,
New York.
FOR DEFENDANTS-APPELLEES: JOAN MARTINO FALEY, L'Abbate,
Balkan, Colavita & Contini, Garden
City, New York, for Gabor & Gabor,
David Gabor, and Hope Gabor.
*
The Honorable Loretta A. Preska, United States District
Court for the Southern District of New York, sitting by
designation.
**
The Clerk of Court is directed to amend the caption
accordingly.
PATRICK J. WALSH, Assistant
Solicitor General (Barbara D.
Underwood, Solicitor General;
Benjamin N. Gutman, Deputy
Solicitor General, of counsel, on
the brief), for Eric T.
Schneiderman, Attorney General for
the State of New York, New York,
New York.
Appeal from a judgment of the United States District
Court for the Eastern District of New York (Bianco, J.) entered
on June 22, 2010, dismissing pro se plaintiff-appellant Peter
McCluskey's federal claims and declining to exercise supplemental
jurisdiction over his legal malpractice claims. The judgment was
entered in accordance with the district court's order filed June
17, 2010, sua sponte dismissing McCluskley's federal claims with
prejudice and declining jurisdiction over his state law claims.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
We assume the parties' familiarity with the facts and
procedural history of the case, which we summarize as follows:
In 1999, Peter McCluskey, a part-time adjunct professor
in the Theater Department at Suffolk County Community College
(the "College"), retained the Garden City law firm of Gabor &
Gabor and lawyers David Gabor and Hope Gabor (collectively
"Gabor") to file a lawsuit against the College. McCluskey
alleged the College improperly denied him appointment to a full-
time position because of his age. Gabor filed an age
discrimination suit against the College on behalf of McCluskey in
state court.
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The relationship between McCluskey and Gabor soured, as
they clashed over litigation strategy and fees. In March 2006,
the New York Supreme Court, Suffolk County, granted Gabor's
motion to be relieved from representing McCluskey. McCluskey
elected to proceed pro se at trial. In July 2006, a jury found
that McCluskey was not denied a full-time position at the College
under circumstances giving rise to an inference of
discrimination, and judgment was entered for the defendants.
In February 2007, McCluskey, again proceeding pro se,
sued Gabor in New York Supreme Court, Nassau County, for legal
malpractice. The court granted Gabor partial summary judgment.
Both parties appealed, and the Appellate Division, Second
Department, held that Gabor was entitled to summary judgment on
all issues because McCluskey's claims of legal malpractice were
without merit. McCluskey then moved for leave to reargue Gabor's
motion for summary judgment before the Supreme Court, Nassau
County. The court denied the motion, and the Appellate Division,
Second Department, dismissed McCluskey's appeal from this order.
McCluskey then sought leave to appeal to the Court of
Appeals. The appeal was dismissed "upon the ground that the
order appealed from does not finally determine the action within
the meaning of the Constitution."
In May 2010, McCluskey filed this action against the
New York State Unified Court System and Chief Judge Jonathan
Lippman of the New York Court of Appeals (the "State Defendants")
and Gabor. McCluskey alleged that the state courts and judges
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had violated his Fourteenth Amendment rights to due process and
equal protection by ruling against him. McCluskey also sought
money damages against Gabor for legal malpractice, in addition to
a declaratory judgment that his constitutional rights were
violated, reinstatement of his state malpractice claims and
judgment in his favor.
On appeal, McCluskey argues that the district court
committed reversible error by dismissing his 42 U.S.C. § 1983claims as barred by judicial immunity, sovereign immunity, and
lack of state action, and by declining to exercise supplemental
jurisdiction over his legal malpractice claims.
This Court reviews the district court's sua sponte
dismissal of the complaint de novo. See McEachin v. McGuinnis,
357 F.3d 197, 200 (2d Cir. 2004). The complaint must plead
"enough facts to state a claim to relief that is plausible on its
face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
claim will have facial plausibility "when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). In
the case of a pro se complaint, a court must construe the
complaint liberally. See Harris v. Mills, 572 F.3d 66, 72 (2d
Cir. 2009).
1. The State Defendants
The district court correctly dismissed the claims
against the State Defendants. First, the claims against the
State Defendants are based solely on judicial acts preformed by
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judges in their judicial capacity. Hence, the claims against
Chief Judge Lippman are barred by the doctrine of judicial
immunity. Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009). In
addition, McCluskey's claims for injunctive relief against Judge
Lippman are barred by statutory judicial immunity because
McCluskey did not allege that "a declaratory decree was violated"
or that "declaratory relief was unavailable." 42 U.S.C. § 1983;
see also Montero v. Travis, 171 F.3d 757, 761 (2d Cir. 1999).
Second, the claims against the Unified Court System are
barred by the Eleventh Amendment since it is an arm of the State
of New York. See Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 100 (1984) ("This jurisdictional bar applies regardless
of the nature of the relief sought."); see also N.Y. Const. art.
6, § 1 (creating the unified court system); In re Deposit Ins.
Agency, 482 F.3d 612, 617 (2d Cir. 2007) ("[The Eleventh
Amendment] jurisdictional bar also immunizes a state entity that
is an arm of the State.") (internal quotation marks omitted);
Zuckerman v. App. Div., Second Dep't, 421 F.2d 625, 626 (2d Cir.
1970) (holding that the Appellate Division was not a person under
§ 1983). In addition, there is no evidence suggesting any waiver
of sovereign immunity. See Fla. Dep't of State v. Treasure
Salvors, Inc., 458 U.S. 670, 684 (1982) ("A suit generally may
not be maintained directly against the State itself, or against
an agency or department of the State, unless the State has waived
its sovereign immunity.").
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2. The Gabor Defendants
Likewise, the district court correctly dismissed the
claims against the Gabor defendants. First, private actors are
not proper § 1983 defendants when they do not act under color of
state law. See Am. Mfrs. Mut. Ins. Co., v. Sullivan, 526 U.S.
40, 49-50 (1999) (explaining that § 1983 actions do not reach
purely private conduct). "[A] private actor acts under color of
state law when the private actor is a willful participant in
joint activity with the State or its agents." Ciambriello v.
Cnty. of Nassau, 292 F.3d 307, 324 (2d Cir. 2002) (internal
quotation marks omitted). A "conclusory allegation that a
private entity acted in concert with a state actor does not
suffice to state a § 1983 claim against the private entity." Id.
McCluskey contends that Gabor acted "jointly" with the
Appellate Division by moving to dismiss his appeal for lack of
jurisdiction, a motion which the Appellate Division granted.
This claim is meritless, see Ciambriello, 292 F.3d at 324,
especially as McCluskey concedes that state law permitted Gabor
to move to dismiss the appeal, and the Appellate Division had "no
choice but to apply the reargument procedural rule uniformly."
Second, to the extent that McCluskey asked the district
court to review state court rulings in favor of Gabor, his
complaint was properly dismissed pursuant to the Rooker-Feldman
doctrine. Lower federal courts lack subject matter jurisdiction
in "cases brought by state-court losers complaining of injuries
caused by state-court judgments rendered before the district
court proceedings commenced and inviting district court review
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and rejection of those judgments." Exxon Mobil Corp. V. Saudi
Basic Indus. Corp., 544 U.S. 280, 284 (2005). As the district
court correctly concluded, McCluskey's allegations against Gabor
largely reiterate the claims made in the original state court
malpractice proceedings, claims that were dismissed on the
merits.
CONCLUSION
We have considered McCluskey’s remaining 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
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