         08-4732-cv
         Peterec-Tolino v. The State of New York


                                 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.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 8 th day of February, two thousand ten.
 5
 6       PRESENT:
 7                         GERARD E. LYNCH,
 8                              Circuit Judges,
 9                         TIMOTHY C. STANCEU,*
10                              Judge, U.S. Court of International Trade.**
11       _____________________________________
12
13       John L. Peterec-Tolino,
14
15                         Plaintiff-Appellant,
16
17                         v.                                      08-4732-cv
18
19       The State of New York, et al.,
20
21                Defendants-Appellees.
22       ______________________________________
23
24

                  *
              The Honorable Timothy C. Stanceu, of the United States
         Court of International Trade, sitting by designation.
                  **
               Judge Robert A. Katzmann, originally a member of this
         panel, recused himself from this case. The remaining two
         members of the panel, who are in agreement, decide this case
         in accordance with Second Circuit Internal Operating
         Procedure (“IOP”) E.
1    FOR APPELLANT:         John L. Peterec-Tolino, pro se, Rock
2                           Hill, New York.
3
4    FOR APPELLEES:         No appearance.
5
6
7        Appeal from orders of the United States District Court

8    for the Southern District of New York (Scheindlin, J.).

9        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

10   AND DECREED that the orders of the district court are

11   AFFIRMED.

12       Appellant John L. Peterec-Tolino, pro se, appeals an

13   order of the district court sua sponte dismissing his

14   complaint brought pursuant to 42 U.S.C. § 1983 and the

15   Racketeer Influenced and Corrupt Organizations Act (“RICO”),

16   and an order denying his motion for reconsideration.     We

17   assume the parties’ familiarity with the underlying facts,

18   the procedural history of the case, and the issues on

19   appeal.

20       This Court reviews a district court’s dismissal of a

21   complaint pursuant to Fed. R. Civ. P. 12(b)(6) de novo,

22   “construing the complaint liberally, accepting all factual

23   allegations in the complaint as true, and drawing all

24   reasonable inferences in the plaintiff’s favor.”   Chambers

25   v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).


                                  2
1    Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), a complaint may

2    be dismissed “at any time” if the court determines that the

3    action fails to state a claim on which relief may be

4    granted.    While we understand why Appellant might feel

5    aggrieved at the district court’s dismissal of his complaint

6    sua sponte without awaiting the defendants’ response, such

7    an action is permissible if the complaint fails to state a

8    claim for relief.     See McEachin v. McGuinnis, 357 F.3d 197,

9    201 (2d Cir. 2004).

10       A complaint must plead “enough facts to state a claim

11   to relief that is plausible on its face.”     Bell Atlantic

12   Corp. v. Twombly, 550 U.S. 544, 570 (2007).     A claim has

13   facial plausibility “when the plaintiff pleads factual

14   content that allows the court to draw the reasonable

15   inference that the defendant is liable for the misconduct

16   alleged.”    Id.   In the case of a pro se complaint, a court

17   must construe the complaint liberally, see Harris v. Mills,

18   572 F.3d 66, 72 (2d Cir. 2009), and should not dismiss it

19   without granting the plaintiff leave to amend “at least once

20   when a liberal reading of the complaint gives any indication

21   that a valid claim might be stated.”     Gomez v. USAA Fed.

22   Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999).     When a


                                     3
1    complaint is dismissed prior to the service of process and

2    the defendants’ answers, the issue is whether the plaintiff

3    is entitled to offer evidence to support his claims.     See

4    McEachin, 357 F.3d at 201.

5        To establish a claim pursuant to 42 U.S.C. § 1983, a

6    plaintiff must show that the defendants, acting under the

7    color of state law, deprived him of a constitutional or

8    federal statutory right.     See Rodriguez v. Phillips, 66 F.3d

9    470, 473 (2d Cir. 1995).     Here, Appellant has abandoned his

10   claims against the State of New York, conceding at oral

11   argument that such claims are barred by the Eleventh

12   Amendment.   Appellant’s § 1983 claims against the Office of

13   Court Administration of the Unified Court System were

14   properly dismissed because these claims against an arm of

15   the State of New York are equally proscribed by the Eleventh

16   Amendment.   See Pennhurst State School & Hosp. v. Halderman,

17   465 U.S. 89, 100 (1984).     Appellant’s § 1983 claims against

18   Jeffrey S. Eisenberg and against Eisenberg and Associates

19   were properly dismissed because these defendants are private

20   actors who cannot be sued under § 1983.     See American Mfrs.

21   Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999) (§ 1983

22   actions do not reach purely private conduct).



                                     4
1        Appellant’s § 1983 claims against the employees of the

2    Departmental Disciplinary Committee of the Unified Court

3    System (“DDC”) were properly dismissed because Appellant has

4    no legally cognizable interest in attorney disciplinary

5    proceedings.   See Application of Phillips, 510 F.2d 126, 126

6    (2d Cir. 1975) (per curiam).   In other words, even if

7    Appellant’s allegations of misconduct on the part of DDC

8    employees were not largely speculative, any failure on the

9    part of public officials entrusted with the task of attorney

10   discipline to pursue valid cases does not violate any

11   constitutional rights of complainants.   Id.   Moreover,

12   Appellant failed to show his entitlement to prospective

13   injunctive relief, pursuant to Ex Parte Young, 209 U.S. 123,

14   155-56 (1908), because his complaint did not allege any

15   ongoing violation of federal law.   See State Employee

16   Bargaining Agent Coalition v. Rowland, 494 F.3d 71, 95 (2d

17   Cir. 2007).

18       The district court also properly dismissed Appellant’s

19   civil RICO claims because Appellant’s complaint did not

20   plead sufficient facts to sustain a claim that the

21   defendants were engaged in an “enterprise” pursuant to RICO,

22   i.e., that they were associated with one another for a



                                    5
1    common purpose.    See First Capital Asset Management, Inc. V.

2    Satinwood, Inc., 385 F.3d 159, 173 (2d Cir. 2004).

3        Because all the federal claims were properly dismissed,

4    the district court did not abuse its discretion in declining

5    to exercise supplemental jurisdiction over Appellant’s state

6    law claims against Eisenberg and his law firm.    See

7    Travelers Ins. Co. v. Keeling, 996 F.3d 1485, 1490 (2d Cir.

8    1993).   Because Peterec-Tolino did not identify any facts or

9    law that the district court overlooked in its dismissal of

10   his complaint, the district court did not abuse its

11   discretion in denying Appellant’s motion for

12   reconsideration.    See Transaero, Inc. v. La Fuerza Aerea

13   Boliviana, 162 F.3d 724, 729 (2d Cir. 1998).

14       Finally, while leave to amend a complaint ordinarily

15   should be freely given, Ellis v. Chao, 336 F.3d 114, 127 (2d

16   Cir. 2003), particularly when dismissing a pro se complaint

17   sua sponte, we conclude that the district court did not

18   abuse its discretion in dismissing the case sua sponte

19   without leave to amend.    Any amendment would be futile

20   because Peterec-Tolino simply cannot sue the defendants in

21   federal court for the federal claims discussed above, and

22   has not alleged or suggested that he could allege any other


                                    6
1   facts that would establish that he suffered a wrong that

2   could be remedied in federal district court.   See id.

3       We have reviewed Appellant’s remaining arguments and

4   find them to be without merit.

5       For the foregoing reasons, the orders of the district

6   court are hereby AFFIRMED.

7                                FOR THE COURT:

8                                Catherine O’Hagan Wolfe, Clerk

9




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