         12-2760
         Ashmore v. Prus



                                 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 TO 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 for the Second Circuit, held at the
 2       Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
 3       31st day of January, two thousand thirteen.
 4
 5       PRESENT:
 6                   GUIDO CALABRESI,
 7                   DEBRA ANN LIVINGSTON,
 8                   GERARD E. LYNCH,
 9                         Circuit Judges.
10       _____________________________________
11
12       Benjamin J. Ashmore, Sr.,
13
14                                Plaintiff-Appellant,
15
16                         v.                                                12-2760-cv
17
18       Eric I. Prus, et al.,
19
20                         Defendants-Appellees.
21       _____________________________________
22
23       FOR PLAINTIFF-APPELLANT:                             Benjamin J. Ashmore, Sr., pro se, Ramsey,
24                                                            NJ.
25
26       FOR DEFENDANTS-APPELLEES:                            Barbara D. Underwood, Cecelia C. Chang,
27                                                            David Lawrence, III, Eric. T. Schneiderman,
28                                                            New York State Office of the Attorney
29                                                            General, New York, NY.
30
31
 1          Appeal from a judgment of the United States District Court for the Eastern District of

 2   New York (Gleeson, J.).

 3          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 4   DECREED that the judgment is AFFIRMED.

 5          Appellant Benjamin J. Ashmore, Sr., proceeding pro se, appeals from the district court’s

 6   dismissal of his civil rights complaint. The district court dismissed Ashmore’s complaint for

 7   lack of subject matter jurisdiction and on the ground that the defendants are immune from suit.

 8   We assume the parties’ familiarity with the underlying facts, the procedural history of the case,

 9   and the issues on appeal.

10          On appeal from a judgment dismissing a complaint for lack of subject matter jurisdiction

11   pursuant to Fed. R. Civ. P. 12(h)(3), we review the district court’s factual findings for clear error

12   and its legal conclusions de novo. Maloney v. Soc. Sec. Admin., 517 F.3d 70, 74 (2d Cir. 2008)

13   (per curiam); Chase Manhattan Bank, N.A. v. Am. Nat’l Bank & Trust Co., 93 F.3d 1064, 1070

14   (2d Cir. 1996) (holding that this Court “review[s] de novo a district court’s legal conclusion with

15   respect to subject matter jurisdiction”). In addition, a district court has the inherent authority to

16   sua sponte dismiss a complaint as frivolous “where it lacks an arguable basis either in law or in

17   fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). We have not yet decided whether review

18   of sua sponte dismissals is de novo or for an abuse of discretion. We need not do so now,

19   however, for we conclude that the district court's decision here “easily passes muster under the

20   more rigorous de novo review.” Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362,

21   364 n.2 (2d Cir. 2000) (per curiam).

22



                                                        2
 1          The district court correctly concluded that the State of New York is immune from suit

 2   under the Eleventh Amendment. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,

 3   100–01 (1984) (holding that a nonconsenting state has Eleventh Amendment immunity against

 4   monetary damages or declaratory relief).

 5          Ashmore’s claims against the defendant state judges were likewise appropriately

 6   dismissed. To the extent Ashmore seeks injunctive or declaratory relief pertaining to the

 7   admission of specific testimony in the state custody proceedings to which he was a party, his

 8   claims are barred by collateral estoppel. Under 28 U.S.C. § 1738, we must give state court

 9   judgments whatever preclusive effect the courts of that state would give them, see Allen v.

10   McCurry, 449 U.S. 90, 96 (1980) (applying collateral estoppel from a state court judgment to a

11   federal § 1983 claim), and New York “precludes a party from relitigating in a subsequent action

12   or proceeding an issue clearly raised in a prior action or proceeding and decided against that

13   party, whether or not the tribunals or causes of action are the same.” Parker v. Blauvelt

14   Volunteer Fire Co., Inc., 93 N.Y.2d 343, 349 (1999) (alteration omitted). To the extent Ashmore

15   seeks injunctive or declaratory relief pertaining to the admission of evidence in New York State

16   custody proceedings other than those described in his complaint, Ashmore lacks standing. He

17   has alleged no real or immediate threat that hearsay testimony other than that already specifically

18   deemed admissible by the New York courts will be introduced against him in future proceedings.

19   See City of Los Angeles v. Lyons, 461 U.S. 95, 101–02 (1983). If Ashmore does find himself in

20   another proceeding in which the opposing party seeks to submit hearsay testimony from an

21   expert witness, he is free to raise his due process argument at that time.

22



                                                      3
 1          The district court also did not err in denying Ashmore leave to amend. District courts

 2   should generally not dismiss a pro se complaint without granting the plaintiff leave to amend.

 3   See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). However, leave to amend is not

 4   necessary when it would be futile. Id. (finding leave to replead would be futile where the

 5   complaint, even when read liberally, did not “suggest[] that the plaintiff has a claim that she has

 6   inadequately or inartfully pleaded and that she should therefore be given a chance to reframe”).

 7   Here, granting leave to amend would be futile as the barriers to relief for Ashmore’s claims

 8   cannot be surmounted by reframing the complaint. See id..

 9          We have considered all of Ashmore’s remaining arguments and find them to be without

10   merit. We expressly decline to address whether the domestic relations exception to federal

11   subject matter jurisdiction applies to federal question actions.

12          For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

13                                                 FOR THE COURT:
14                                                 Catherine O’Hagan Wolfe, Clerk
15
16




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