    09-1905-cv
    Glatzer v. Barone



                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN CITING A SUM M ARY
ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY
CITING A SUM M ARY ORDER M UST 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 29th day of September, two thousand ten.

    PRESENT:
                JON O. NEWMAN,
                PETER W. HALL,
                      Circuit Judges,
                JANE A. RESTANI,*
                      Judge.
    _______________________________________________

    Bernard H. Glatzer,

                        Plaintiff-Appellant,

                        v.                                              09-1905-cv


    Hon. John A. Barone, Hon. Larry S. Schachner,
    Hon. Jonathan Lippman,

                Defendants-Appellees.
    _______________________________________________




             *
             Chief Judge Jane A. Restani of the United States Court of International Trade, sitting by
    designation.
FOR APPELLANT:                 Bernard H. Glatzer, pro se, Bronx, NY.

FOR APPELLEES:                 Andrew M. Cuomo, Attorney General of the State of New York;
                               Barbara D. Underwood, Solicitor General; Micheal Belohlavek,
                               Senior Counsel; Sudarsana Srinivasan, Assistant Solicitor General,
                               New York, NY.


       Appeal from a judgment and order of the United States District Court for the Southern

District of New York (Marrero, J.)

       UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment and order of the district court be AFFIRMED.

       Appellant Bernard H. Glatzer, an attorney proceeding pro se, appeals the district court’s

judgment, granting the Defendants’ motion to dismiss his 42 U.S.C. § 1983 complaint for lack of

subject matter jurisdiction, and the district court’s denial of his post-judgment motion for

reconsideration. We assume the parties’ familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.

       We review de novo a district court’s dismissal of a complaint under Fed. R. Civ. P.

12(b)(1) for lack of subject matter jurisdiction, see Scherer v. Equitable Life Assur. Soc’y, 347

F.3d 394, 397 (2d Cir. 2003), and review the district court’s denial of a motion for

reconsideration for abuse of discretion, see RJE Corp. v. Northville Indus. Corp., 329 F.3d 310,

316 (2d Cir. 2003) (per curiam).

       Glatzer argues on appeal that the district court erred by abstaining from exercising

subject matter jurisdiction over his claims pursuant to Younger v. Harris, 401 U.S. 37 (1971).

Under Younger, federal courts must abstain from exercising subject matter jurisdiction over

federal constitutional claims that involve or call into question ongoing state proceedings. See


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Younger, 401 U.S. at 43-44. Abstention is mandatory where: (1) “there is an ongoing state

proceeding; (2) an important state interest is implicated; and (3) the plaintiff has an avenue open

for review of constitutional claims in the state court.” Liberty Mutual Ins. Co. v. Hurlbut, 585

F.3d 639, 647 (2d Cir. 2009) (quoting Philip Morris, Inc. v. Blumenthal, 123 F.3d 103, 105 (2d

Cir. 1997)).

       Glatzer asserts that Younger should not preclude his claims because there was no ongoing

state proceeding, and that New York State courts did not provide him with an opportunity to

raise his federal constitutional claims. He is mistaken. First, the district court’s judgment

dismissing Glatzer’s complaint was entered on March 30, 2009, more than a month before the

New York Appellate Division, First Department, dismissed his state court appeals; the district

court’s May 2009 decision merely clarified the basis for its March 2009 decision. Thus, at the

time the district court entered judgment, his state appellate proceedings were still pending. More

significantly, even assuming, arguendo, that the Appellate Division dismissed his appeals prior

to the district court entering its decision, his state court proceedings were still pending, as he

remained free to appeal to the New York Court of Appeals.

       Fundamental to Younger is the principle that “a party . . . must exhaust his state appellate

remedies before seeking relief in the District Court[;] . . . the considerations of comity and

federalism which underlie Younger permit no truncation of the exhaustion requirement merely

because the losing party in the state court . . . believes that his chances of success on appeal are

not auspicious.” Huffman v. Pursue, Ltd., 420 U.S. 592, 608, 610 (1975). That Glatzer may

believe that an appeal to the Court of Appeals was futile, and that, by consequence, his state

proceedings were effectively completed, is irrelevant. Because he could still seek leave to

appeal to the Court of Appeals at the time the district court entered judgment, the district court
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correctly found that the first Younger criterion was satisfied.

       Second, Glatzer’s challenge to the third Younger prong is unavailing. He maintains that

because the Appellate Division did not explicitly analyze his federal constitutional claims in its

order dismissing his appeals, that demonstrates there was no avenue open for review of his

constitutional claims in the state court. However, “[t]he relevant question under Younger is

whether the state’s procedural remedies could provide the relief sought [not] . . . whether the

state will provide the constitutional ruling which the plaintiff seeks.” Spargo v. New York State

Comm’n on Judicial Conduct, 351 F.3d 65, 79 (2d Cir. 2003) (internal quotation marks and

citations omitted) (emphasis in Spargo). Nothing in the Appellate Division’s order suggests that,

as a procedural matter, that court was incapable of providing the constitutional relief that Glatzer

sought; the order simply indicates that, based on that court’s review of the parties’ filings,

Glatzer was not entitled to relief.

       Finally, insofar as Glatzer seeks an exception to Younger based on the Defendants’

purported egregious conduct, there is no evidence, other than Glatzer’s conclusory allegations, to

support this assertion. Courts have recognized two narrow exceptions to Younger: (1) bad

faith—“cases of proven harassment or prosecutions undertaken by state officials in bad faith

without hope of obtaining a valid conviction”; and (2) extraordinary circumstances—where

“‘extraordinary circumstances’ render the state court incapable of fairly and fully adjudicating

the federal issues before it, . . . creating an extraordinarily pressing need for immediate federal

equitable relief.” Diamond “D” Const. Corp. v. McGowan, 282 F.3d 191, 198-202 (2d Cir.

2002). Glatzer cannot prevail on the first exception because, like the Younger doctrine itself,

“the genesis of the so-called bad faith exception was in the context of criminal prosecutions,”


                                                  4
and thus, to invoke this exception, “a federal plaintiff must show that the state proceeding was

initiated with and is animated by a retaliatory, harassing, or other illegitimate motive.” Id. at

198-99. Here, it was Glatzer, not the state, who initiated all of the relevant state court

proceedings. As to the second exception, although Glatzer repeatedly accuses the Defendants of

bias and “extreme resentment,” he alleged no facts to support these accusations apart from the

fact that the Defendants denied him the relief that he sought.

       We have considered all of Glatzer’s remaining arguments and found them to be without

merit. Accordingly, we AFFIRM the district court’s judgment, and, on that basis, AFFIRM the

district court’s order denying Glatzer’s post-judgment motion.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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