16-3530-cv
Li v. Lorenzo

                 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
4th day of October, two thousand seventeen.

PRESENT: DENNIS JACOBS,
         JOSÉ A. CABRANES,
         RICHARD C. WESLEY,
              Circuit Judges.
_____________________________________

Feng Li,

                 Plaintiff-Appellant,

            v.                                    16-3530

Faith Lorenzo, sued in her individual capacity
& in her official capacity as deputy chief
of counsel to Grievance Committee for the
Ninth Judicial District, Gary Casella, sued in
his individual capacity & in his official capacity
as Chief Counsel to Grievance Committee for the
Ninth Judicial District, John Doe, employed at the


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Court of Appeals or employed at the Second Department,
Jane Roe, employed at the Court of Appeals or
employed at the Second Department,

              Defendants-Appellees.

_____________________________________

FOR PLAINTIFF-APPELLANT:     Feng Li, pro se, New York, NY.

FOR DEFENDANTS-APPELLEES:     No appearance.


     Appeal from a judgment of the United States District Court
for the Southern District of New York (McMahon, C.J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.

     Appellant Feng Li, an attorney proceeding pro se, sued two
attorneys employed by the attorney grievance committee for the
Ninth Judicial District of New York under 42 U.S.C. § 1983 and
state law. The district court dismissed the action sua sponte
based on Eleventh Amendment immunity and res judicata. Li now
appeals. We assume the parties’ familiarity with the
underlying facts, the procedural history, and the issues on
appeal.

     We review the sua sponte dismissal of a complaint de novo.
McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004).
Although “a court is ordinarily obligated to afford special
solicitude to pro se litigants,” “a lawyer representing himself
ordinarily receives no such solicitude at all.” Tracy v.
Freshwater, 623 F.3d 90, 101–02 (2d Cir. 2010).

  I.   Eleventh Amendment Immunity

     The district court correctly dismissed Li’s claims for
money damages against the defendants in their official
capacities. The Eleventh Amendment precludes suits against
states unless the state expressly waives its immunity or
Congress abrogates that immunity. CSX Transp., Inc. v. N.Y.

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State Office of Real Prop. Servs., 306 F.3d 87, 94–95 (2d Cir.
2002). This includes suits against state officials in their
official capacities. Davis v. New York, 316 F.3d 93, 101–02
(2d Cir. 2002). New York has not waived its immunity, see
Trotman v. Palisades Interstate Park Comm’n, 557 F.2d 35, 38–
40 (2d Cir. 1977), nor has Congress abrogated it, see Dube v.
State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir. 1990).
Accordingly, the Eleventh Amendment bars Li’s claims against
defendants in their official capacities, and these claims were
properly dismissed for lack of jurisdiction.

  II. Absolute Immunity

     Claims against the defendants in their individual
capacities remain. Although the district court determined that
Li’s claims were barred by res judicata, we need not consider
that matter here.

     Absolute immunity is generally extended to those officials
“who perform functions closely associated with the judicial
process . . . [including] prosecutors, administrative law
judges and hearing examiners, grand jurors and witnesses in
judicial proceedings.” Oliva v. Heller, 839 F.2d 37, 39 (2d
Cir. 1988) (citation and quotation omitted). Moreover,
“officials performing certain functions analogous to those of
a prosecutor should be able to claim absolute immunity with
respect to such acts.” Butz v. Economou, 438 U.S. 478, 515
(1978) (emphasis added). “[W]e employ a functional approach,
and look to whether the actions taken by the official are
functionally comparable to that of . . . a prosecutor.”
DiBlasio v. Novello, 344 F.3d 292, 297 (2d Cir. 2003) (citations
and quotations omitted).

     The defendants here held roles functionally comparable to
that of a prosecutor. Li asserted claims against two attorneys
employed by the Ninth Judicial District Attorney Grievance
Committee who litigated disciplinary charges against him. In
New York, the Appellate Divisions are charged with enforcing
attorney discipline for violations of New York rules of
professional conduct. N.Y. Jud. Law. § 90(2). The Appellate
Divisions establish grievance committees to handle attorney

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discipline and appoint chief attorneys and other staff to the
grievance committees as needed. 22 N.Y.C.R.R. §§ 1240.4,
1240.50. The chief attorney investigates and prosecutes
misconduct complaints before the committees. Id. § 1240.7.
If the committee determines that the evidence supports public
discipline, such as suspension, the committee prosecutes the
misconduct allegations in a formal hearing before the relevant
Appellate Division. Id. § 1240.8. By prosecuting the
grievance complaint against Li, the defendants were acting in
their capacity as counsel to the grievance committee, and are
entitled to prosecutorial immunity from suit.

  III. Injunctive or Declaratory Relief

     Finally, while the district court did not discuss Li’s
requests for declaratory and injunctive relief, it correctly
dismissed those claims as well. If a complaint “alleges an
ongoing violation of federal law and seeks relief properly
characterized as prospective,” then such injunctive or
declaratory relief is not barred by immunity. See Verizon Md.
Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002); In
re Deposit Ins. Agency, 482 F.3d 612, 617 (2d Cir. 2007) (“[A]
plaintiff may sue a state official acting in his official
capacity—notwithstanding the Eleventh Amendment—for
prospective injunctive relief from violations of federal law.”)
(citations and quotation marks omitted); Ward v. Thomas, 207
F.3d 114, 120 (2d Cir. 2000); Pulliam v. Allen, 466 U.S. 522,
541-42 (1984) (“[J]udicial immunity is not a bar to prospective
injunctive relief against a judicial officer acting in her
judicial capacity.”); Shmueli v. City of New York, 424 F.3d 231,
239 (2d Cir. 2005) (applying Pulliam to prosecutorial immunity
and reversing and remanding on claims for injunctive and
declaratory relief). Li’s disciplinary proceedings have
ended, however, and he alleged injuries stemming only from past
conduct with no plausible threat of future violations. The
relief Li seeks is therefore not prospective. Further, even
if a declaration stating that the disciplinary committee must
obey state court orders was prospective in nature, the Eleventh
Amendment would bar the district court from issuing it. “[A]
claim that state officials violated state law in carrying out
their official responsibilities is a claim against the State

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that is protected by the Eleventh Amendment.” Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984).
Accordingly, the district court properly dismissed Li’s claims
seeking injunctive or declaratory relief.

     We have considered all of Li’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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