         08-4586-cv
         McKeown 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 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       Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
 3       on the 18th day of May, two thousand ten.
 4
 5       PRESENT:
 6                   JOHN M. WALKER, JR.,
 7                   CHESTER J. STRAUB,
 8                   DEBRA ANN LIVINGSTON,
 9                           Circuit Judges.
10       _____________________________________
11
12       Kevin McKeown,
13                                Plaintiff-Counter-Claimant-Appellant,
14
15                        v.                                                 No. 08-4586-cv
16
17
18       The N.Y. State Commission on Judicial Conduct, The N.Y.S. 1st
19       Dept. Departmental Disciplinary Committee, Gary L. Casella, Francis
20       A. Nicolai, Anthony Scarpino, Robert A. Korren, Jeffrey A.
21       McNamara, Patricia Bave-Planell, Giulini & Giulini, Esqs., Charles
22       A. Giulini, Christine Giulini, Catherine M. Miklitsch, Michael D.
23       McQuade,
24                              Defendants-Appellees,
25
26       The State of New York, The Office of Court Administration of the
27       Unified Court System, Thomas J. Cahill, Sherry Cohen, Nancy J.
28       Barry, Joseph Accetta, Robert M. DiBella, McQuade & McQuade,
29       Esqs., Joseph F. McQuade, John Does 1-20, Jane Does 1-20,
30                             Defendants-Counter-Defendants-Appellees.
31       _____________________________________
1
2                             Kevin McKeown, pro se, New York, NY, for Plaintiff -Appellant.
3
4                             Andrew M. Cuomo, Attorney General of the State of New York; Barbara D.
5                             Underwood, Solicitor General; Michael S. Belohlavek, Senior Counsel;
6                             Patrick J. Walsh, Assistant Solicitor General; New York, NY, for the New
7                             York State Defendants.

8           Appeal from a judgment of the United States District Court for the Southern District of New

9    York (Scheindlin, J.).

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

11   DECREED that the judgment of the district court is AFFIRMED.

12          Appellant Kevin McKeown, proceeding pro se, appeals the district court’s dismissal of his

13   42 U.S.C. § 1983 claims. We assume the parties’ familiarity with the underlying facts, the

14   procedural history of the case, and the issues on appeal.

15          This Court reviews de novo a district court’s dismissal of a complaint pursuant to Federal

16   Rule of Civil Procedure 12(b)(6). Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.

17   2002). A complaint must plead “enough facts to state a claim to relief that is plausible on its face.”

18   Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007). A claim will have facial plausibility

19   “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that

20   the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

21   In the case of a pro se complaint, a court must construe the complaint liberally, see Harris v. Mills,

22   572 F.3d 66, 72 (2d Cir. 2009), and should not dismiss it without granting the plaintiff leave to

23   amend “at least once when a liberal reading of the complaint gives any indication that a valid claim

24   might be stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (per curiam)

25   (quoting Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991)) (internal quotation mark omitted) .


                                                       2
1            Under the Eleventh Amendment, “[a] suit generally may not be maintained directly against

2    the State itself, or against an agency or department of the State, unless the State has waived its

3    sovereign immunity.” Fla. Dep't of State v. Treasure Salvors, Inc., 458 U.S. 670, 684 (1982); see

4    also Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). In this case, Appellant

5    seeks relief against, among others, New York State, the Office of Court Administration of the

6    Unified Court System of New York (“OCA”), the Departmental Disciplinary Committee of the New

7    York Appellate Division, First Department (“DDC”), the New York State Grievance Committee,

8    Ninth Judicial District (“SGC”), and the New York State Commission on Judicial Conduct

9    (“SCJC”), based on the decisions of the latter three to dismiss his complaints. However, because

10   he has offered no evidence that the State has consented to be subject to suit in this context, or that

11   the State's immunity from suit has been otherwise abrogated, the claims against the State are barred

12   by the Eleventh Amendment. The district court also correctly found that the OCA, DDC, SGC, and

13   SCJC are arms of the State of New York. See N.Y. Const. art. 6, § 1 (creating the unified court

14   system); In re Deposit Ins. Agency, 482 F.3d 612, 617 (2d Cir. 2007) (noting that “arm[s] of the

15   State” are immunized from suit (internal quotation marks omitted)). Accordingly, the district court

16   properly dismissed Appellant's claims against the State, OCA, DDC, SGC, and SCJC.

17           With respect to Appellant’s argument that Ex parte Young, 209 U.S. 123 (1908), permits his

18   suit, the district court properly noted that a state official acting in his or her official capacity may

19   be sued only for prospective injunctive relief from ongoing violations of federal law. See Ex parte

20   Young, 209 U.S. at 155-56. The Appellant’s complaint seeks the appointment of a federal monitor

21   to oversee the day-to-day operations of the DDC and SCJC for an indefinite period of time. To the

22   extent this relief is sought based on the dismissal of the Appellant’s attorney grievance complaints


                                                        3
1    against Joseph McQuade and others, however, there is no ongoing violation of federal law.

2    Although Appellant also alleges ongoing misconduct at the DDC and the other disciplinary entities,

3    moreover, his claim still fails with regard to these allegations because he lacks a cognizable legal

4    interest in the disciplinary proceedings. See Application of Phillips, 510 F.2d 126, 126 (2d Cir.

5    1975) (per curiam).

6           To the extent that Appellant’s complaint effectively asked the district court to review the

7    decisions of the New York courts, the complaint was properly dismissed because lower federal

8    courts lack subject matter jurisdiction in “cases brought by state-court losers complaining of injuries

9    caused by state-court judgments rendered before the district court proceedings commenced and

10   inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic

11   Indus. Corp., 544 U.S. 280, 284 (2005). We have specifically determined that federal courts are

12   precluded by the Rooker-Feldman doctrine from reviewing a claim attacking a state court’s decision

13   regarding the discipline of an attorney. See Zimmerman v. Grievance Comm. of the Fifth Judicial

14   Dist., 726 F.2d 85, 86 (2d Cir. 1984) (“The decision in Feldman clearly applies to federal district

15   court challenges to attorney disciplinary orders rendered by state courts in judicial proceedings.”).

16   Appellant’s constitutional claims effectively require review of state court decisions regarding the

17   discipline of McQuade and Frank Streng; therefore, the district court correctly determined that it did

18   not have subject matter jurisdiction over these claims.

19          It is well settled that “judges generally have absolute immunity from suits for money

20   damages for their judicial actions” and that “even allegations of bad faith or malice cannot overcome

21   judicial immunity.” Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009). Judicial immunity protects

22   the actor unless he “acted in the clear absence of all jurisdiction.” Tucker v. Outwater, 118 F.3d


                                                       4
1    930, 933 (2d Cir. 1997) (internal quotation marks and emphasis omitted). As a general matter,

2    judges are not absolutely immune from suits for prospective injunctive relief. Mireles v. Waco, 502

3    U.S. 9, 10 n.1 (1991) (per curiam). Section 1983 provides, however, that “in any action brought

4    against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive

5    relief shall not be granted unless a declaratory decree was violated or declaratory relief was

6    unavailable.”

7           Here, Appellant’s claims against Judge Scarpino were properly dismissed because those

8    claims involved Scarpino’s performance of his judicial function. Specifically, Appellant alleges that

9    Scarpino failed to report the misconduct of attorneys appearing in probate proceedings before him

10   and was biased in favor of those attorneys during those proceedings – actions and omissions that

11   were clearly taken while Scarpino was acting in his judicial role in the probate proceedings.

12   Accordingly, Appellant’s claims for money damages against Scarpino are barred by absolute judicial

13   immunity from suit. To the extent that Appellant seeks injunctive relief against Judge Scarpino,

14   moreover, Appellant does not allege that a declaratory decree was violated or that declaratory relief

15   was unavailable, and so § 1983 relief is not available.

16          Judicial immunity also extends to “certain others who perform functions closely associated

17   with the judicial process.” Oliva v. Heller, 839 F.2d 37, 39 (2d Cir. 1988) (quoting Cleavinger v.

18   Saxner, 474 U.S. 193, 200 (1985)) (internal quotation marks omitted). To determine which persons

19   are covered under quasi-judicial immunity, “the Supreme Court follows a ‘“functional” approach,’

20   under which ‘[a]bsolute immunity flows not from rank or title or “location within the Government,”

21   but from the nature of the responsibilities of the individual officer.’” Id. (alteration in original)

22   (quoting Cleavinger, 474 U.S. at 201). Prosecutors, hearing examiners, and law clerks are eligible


                                                       5
1    for absolute immunity, and those involved in preparing and adjudicating attorney discipline

2    proceedings share analogous roles. See id. at 39-40; see also Anonymous v. Ass’n of the Bar of N.Y.,

3    515 F.2d 427, 433 (2d Cir. 1975) (observing that New York State courts regard disciplinary

4    proceedings as “judicial proceeding[s]” and determining that the state bar association’s grievance

5    committee acted as a quasi-judicial body and an arm of the Appellate Division). Accordingly, the

6    decisions of the OCA attorneys not to initiate disciplinary proceedings against McQuade and Streng

7    are protected by the doctrine of quasi-judicial immunity, and Appellant’s claims against them must

8    fail.

9            Appellant has abandoned on appeal his § 1983 claims against those of the Defendants-

10   Appellees who are attorneys in private practice, as well as his state law claims. See LoSacco v. City

11   of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995) (holding, in civil appeal filed by pro se appellant,

12   that issues not raised in an appellate brief are abandoned). We therefore do not address them.

13           We have considered all of Appellant’s arguments and find them to be without merit.

14   Accordingly, we AFFIRM the judgment of the district court.
15
16                                                 FOR THE COURT:
17                                                 Catherine O’Hagan Wolfe, Clerk
18
19




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