    10-4952-pr(L)
    Ferranti v. Heinemann




                              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 16th day of April, two thousand twelve.

    PRESENT:
                JOHN M. WALKER, Jr.,
                CHESTER J. STRAUB,
                ROSEMARY S. POOLER,
                            Circuit Judges.
    __________________________________________

    JACK FERRANTI,

                          Plaintiff-Appellant,

                   -v.-                                                         10-4952-pr (L);
                                                                                10-4953-pr (con)

    ROBERT C. HEINEMANN, et al.,

                      Defendants-Appellees.
    ___________________________________________

    FOR APPELLANT:                Jack Ferranti, pro se, Glenville, WV.

    FOR APPELLEES:                Loretta E. Lynch, United States Attorney, Eastern District of New
                                  York, Varuni Nelson, John Vagelatos, Assistant United States
                                  Attorneys, Of Counsel, Brooklyn, New York.

        UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND
    DECREED that the district court judgments are AFFIRMED.
       Plaintiff-Appellant Jack Ferranti, pro se, appeals from January 3, 2011 judgments of the
United States District Court for the Eastern District of New York (Weinstein, J.) granting the
appellees’ motions to dismiss. We assume the parties’ familiarity with the underlying facts and
the procedural history of the case.

         This Court reviews de novo a district court decision dismissing a complaint pursuant to
Rule 12(b)(6), “construing the complaint liberally, accepting all factual allegations in the
complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” See Chambers
v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). In evaluating a complaint pursuant to
Rule 12(b)(6), the Court must determine if the complaint pleads “enough facts to state a claim to
relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

       The district court correctly found that Ferranti’s complaints failed to state a claim. The
defendants are not subject to suit under 42 U.S.C. § 1983 as they are not state actors, see
Touraco v. Port Auth. of New York and New Jersey, 615 F.3d 129, 136 (2d Cir. 2010), or under 5
U.S.C. § 702, because the federal courts are not an agency of the government, within the
meaning of the Administrative Procedure Act, see 5 U.S.C. § 701(b)(1)(B).

         To the extent that Ferranti’s damages claim against the United States can be construed as
being brought under the Federal Tort Claims Act (“FTCA”), his claim was properly dismissed
because the FTCA waives the Government’s sovereign immunity only with respect to claims for
injury “where the United States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission occurred,” 28 U.S.C.
§ 1346(b)(1), and New York courts would not recognize a tort claim based on a clerk of the
court’s decision to refer a request for relief to a judge. See Rosenstein v. State, 37 A.D.3d 208,
209 (1st Dep’t 2007) (finding that court clerks were immune from suit based on their alleged
transfer of the plaintiff’s case to a different judge, in collusion with the defendant’s attorney);
Welch v. State, 203 A.D.2d 80, 81 (1st Dep’t 1994) (finding court employees were immune from
suit for claim that they failed to forward a renewal motion to the appropriate judge).

        As to Heinemann, construing Ferranti’s damages claim as having been brought under
Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and
assuming that Ferranti were able to allege the other requirements of a Bivens action, his claim
was properly dismissed because Heinemann is immune from suit. See Lundahl v. Zimmer, 296
F.3d 936, 939 (10th Cir. 2002) (finding that court clerks were entitled to absolute immunity from
suit based on allegation that they improperly referred a party’s request for an entry of default to a
judge). Further, Ferranti is unable to challenge the district court’s failure to recuse itself because
Ferranti never moved for recusal in the district court. See United States v. Yu-Leung, 51 F.3d
1116, 1119-20 (2d Cir. 1995).

       We have considered all of the Ferranti’s arguments and find them to be without merit.

       Accordingly, the judgments of the district court are AFFIRMED.

                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk
