         09-2502-cv (L), 09-2880-cv (CON)
         Wilson v. Emond


                                       UNITED STATES COURT OF APPEALS
                                           FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER
     RULINGS BY SUM M ARY O RDER 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 M UST 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 21st day of April, two thousand ten.

 1       PRESENT:
 2                   JOHN M. WALKER, JR.,
 3                   CHESTER J. STRAUB,
 4                   DEBRA ANN LIVINGSTON,
 5                               Circuit Judges.
 6       __________________________________________
 7
 8       TONY A. WILSON,
 9
10                        Plaintiff-Appellant,
11
12                        v.                                                      09-2502-cv (L),
13                                                                                09-2880-cv (CON)
14
15       HOWARD E. EMOND, JR.,
16
17                   Defendant-Appellee.
18       __________________________________________
19
20       FOR APPELLANT:                     Tony A. Wilson, pro se, Milton, DE.
21
22       FOR APPELLEE:                      Richard Blumenthal, Attorney General for the State of
23                                          Connecticut; Robert J. Deichert, Assistant Attorney General,
24                                          Hartford, CT.
25
 1          Appeal from a judgment and orders of the United States District Court for the District of

 2   Connecticut (Kravitz, J.).

 3          UPON DUE CONSIDERATION it is hereby ORDERED, ADJUDGED, AND

 4   DECREED that the judgment and orders of the district court be AFFIRMED.

 5          Plaintiff-Appellant Tony A. Wilson, pro se, appeals from a judgment and orders of the

 6   United States District Court for the District of Connecticut (Kravitz, J.) granting Defendant-Appellee

 7   Howard E. Emond, Jr.’s motion to dismiss Wilson’s 42 U.S.C. § 1983 complaint against him. The

 8   complaint alleged constitutional violations and sought injunctive and declaratory relief, as well as

 9   damages against Emond in his individual capacity, arising out of Emond’s participation in a hearing

10   of the Connecticut Bar Examining Committee (“CBEC”) that resulted in a denial of Wilson’s

11   application for admission to the Connecticut state bar. The district court held that it lacked subject

12   matter jurisdiction over Wilson’s claims for declaratory and injunctive relief pursuant to the

13   abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971), and that Emond was entitled to

14   absolute immunity as to Wilson’s claims for damages. The district court also denied Wilson’s

15   motion for reconsideration of its grant of Emond’s motion to dismiss, as well as Wilson’s motion

16   for relief from judgment pursuant to Fed. R. Civ. P. 60(b). We assume the parties’ familiarity with

17   the underlying facts, the procedural history of the case, and the issues presented for review.

18          Because Younger abstention is mandatory “and its application deprives the federal court of

19   jurisdiction” over the case, we review the district court’s dismissal pursuant to Younger de novo.

20   Diamond “D” Constr. Corp. v. McGowan, 282 F.3d 191, 197 (2d Cir. 2002). Similarly, we review

21   de novo a district court’s dismissal of a complaint pursuant to Fed. R. Civ. P. 12(b)(6), “construing

22   the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all


                                                       2
 1   reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152

 2   (2d Cir. 2002). Finally, we review the district court’s denial of a motion for reconsideration and a

 3   motion under Fed. R. Civ. P. 60(b) for abuse of discretion. See RJE Corp. v. Northville Indus. Corp.,

 4   329 F.3d 310, 316 (2d Cir. 2003) (per curiam) (motion for reconsideration); Transaero, Inc. v. La

 5   Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir. 1998) (Rule 60(b)).

 6          Among other contentions, Wilson argues on appeal that (1) Younger should not bar his

 7   claims because he could not actually have pursued them in state court; (2) his case is covered by both

 8   the “bad faith” and the “extraordinary circumstances” exceptions to Younger abstention; and (3)

 9   Emond is not entitled to absolute immunity concerning testimony he gave because he was a

10   “complaining witness.” Wilson did not raise any of these arguments in response to Emond’s motion

11   to dismiss, and raised them only for the first time in his motions for reconsideration and for Rule

12   60(b) relief. “Generally, we will not consider an argument on appeal that was raised for the first time

13   below in a motion for reconsideration.” Official Comm. of Unsecured Creditors of Color Tile, Inc.

14   v. Coopers & Lybrand, LLP, 322 F.3d 147, 159 (2d Cir. 2003). Nevertheless, even if we do consider

15   these arguments, they are all unavailing.

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

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

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

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

20   review of constitutional claims in the state court.” Liberty Mut. Ins. Co. v. Hurlbut, 585 F.3d 639,

21   647 (2d Cir. 2009) (quoting Philip Morris, Inc. v. Blumenthal, 123 F.3d 103, 105 (2d Cir. 1997))

22   (internal quotation marks omitted). The Supreme Court has recognized two narrow exceptions to


                                                       3
 1   Younger: (1) bad faith—“cases of proven harassment or prosecutions undertaken by state officials

 2   in bad faith without hope of obtaining a valid conviction,” Diamond “D” Constr. Corp., 282 F.3d

 3   at 198 (quoting Perez v. Ledesma, 401 U.S. 82, 85 (1971)) (internal quotation marks omitted); and

 4   (2) extraordinary circumstances—where “‘extraordinary circumstances’ render the state court

 5   incapable of fairly and fully adjudicating the federal issues before it, . . . creating an extraordinarily

 6   pressing need for immediate federal equitable relief,” id. at 201 (quoting Kugler v. Helfant, 421 U.S.

 7   117, 124-25 (1975)).

 8           Wilson’s argument that Younger should not apply because he could not actually pursue his

 9   constitutional claims in state court is without merit. Wilson only argues that he could not raise such

10   claims before the CBEC, but this is irrelevant because the state courts offered the relief Wilson

11   sought. See Spargo v. N.Y. State Comm’n on Judicial Conduct, 351 F.3d 65, 79 (2d Cir. 2003).

12   Nothing precluded Wilson from pleading his constitutional claims in his state court complaint

13   appealing the denial of his bar application (in fact, he did so), and to the extent those claims were

14   dismissed by the Connecticut Superior Court, he was free to appeal that decision.

15           Wilson’s attempt to invoke the two exceptions to Younger also fails. Because it was Wilson

16   himself who filed the bar application that initiated the CBEC proceeding, he cannot demonstrate that

17   “the state proceeding was initiated with and [was] animated by a retaliatory, harassing, or other

18   illegitimate motive” so as to satisfy the “bad faith” exception, Diamond “D” Constr. Corp., 282 F.3d

19   at 199, even if some alleged constitutional violation occurred during that proceeding, see id. (“A

20   state proceeding that is legitimate in its purposes, but unconstitutional in its execution . . . will not

21   warrant the application of the bad faith exception.”). Moreover, because the record shows that

22   Wilson had recourse to state judicial review of the CBEC proceeding and there is no evidence that


                                                         4
 1   the Connecticut Superior Court would not fairly and fully adjudicate his claims, he could not show

 2   that “extraordinary circumstances” justified an exception to Younger abstention. See id. at 202.

 3          Finally, because Emond’s testimony at the CBEC hearing did not serve to initiate the CBEC

 4   proceeding, Emond was not a “complaining witness,” and thus the district court properly determined

 5   that he was entitled to absolute immunity with regard to his testimony. See Sykes v. James, 13 F.3d

 6   515, 520 (2d Cir. 1993).

 7          For the foregoing reasons, the district court properly dismissed all of Wilson’s claims, and,

 8   for this reason, the court did not abuse its discretion by denying Wilson’s motions for reconsideration

 9   and for relief under Rule 60(b). We have considered Wilson’s remaining arguments and conclude

10   that they are without merit. The judgment and orders of the district court are hereby AFFIRMED.

11
12
13                                                  FOR THE COURT:
14                                                  Catherine O’Hagan Wolfe, Clerk
15




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