     15-2219
     Caruso v. Zugibe

                                 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
 2          At a stated term of the United States Court of Appeals for the Second Circuit, held
 3   at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
 4   York, on the 20th day of April, two thousand sixteen.
 5
 6   PRESENT: PIERRE N. LEVAL,
 7                    CHRISTOPHER F. DRONEY,
 8                                    Circuit Judges,
 9                    PAUL A. ENGELMAYER,*
10                                    Judge. 1
11   ----------------------------------------------------------------------
12   PATRIZIA CARUSO,
13                                    Plaintiff-Appellant,
14
15                             v.                                                      No. 15-2219-cv
16
17   THOMAS ZUGIBE, ROCKLAND COUNTY DISTRICT
18   ATTORNEY’S OFFICE, THE ROCKLAND COUNTY COURT
19   AND ITS SENTENCING JUDGE, CHARLES APOTHEKER,

20                                     Defendants-Appellees,
21   CHARLES EDWARDS,
22                                     Defendant.
23   ----------------------------------------------------------------------
24
         FOR PLAINTIFF-APPELLANT:                               MICHAEL D. DIEDERICH, JR., Stony
                                                                Point, NY.

         FOR DEFENDANTS-APPELLEES:                              THOMAS E. HUMBACH, Rockland
                                                                County Department of Law, New City,

     *
         Judge Paul A. Engelmayer, of the Southern District of New York, sitting by designation.
                                                      NY, for Thomas Zugibe and Rockland
                                                      County District Attorney’s Office.

                                                      MARK H. SHAWHAN, for Eric T.
                                                      Schneiderman, Attorney General of the
                                                      State of New York, New York, NY, for
                                                      Rockland County Court and Judge
                                                      Charles Apotheker.

 1          Appeal from the judgment of the United States District Court for the Southern

 2   District of New York (Briccetti, J.), entered on June 23, 2015.

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

 4   AND DECREED that the judgment of the district court is AFFIRMED.

 5          Plaintiff-Appellant Patrizia Caruso appeals from the judgment of the United States

 6   District Court for the Southern District of New York (Briccetti, J.), dismissing her

 7   Complaint. We assume the parties’ familiarity with the underlying facts and the

 8   procedural history of the case and therefore address the facts only as necessary to resolve

 9   the issues presently on appeal.

10          Caruso alleges she was harassed and assaulted by a co-worker, Charles Edwards.

11   Edwards was prosecuted by the Rockland County District Attorney’s Office for his

12   actions and subsequently pled guilty to felony attempted assault. He was sentenced to

13   five years of probation by Rockland County Court Judge Charles Apotheker. Dissatisfied

14   with the prosecution of Edwards, Caruso brought the present action alleging wrongdoing

15   by the Rockland County District Attorney’s Office and Thomas Zugibe, one of the

16   prosecutors handling Edwards’ case. Caruso also asserts that Rockland County Court


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 1   Judge Apotheker denied her certain participatory rights to which she is entitled under

 2   state law as a crime victim. In sum, Caruso alleges violations of her federal and state

 3   constitutional rights including her rights to petition the government, free speech, due

 4   process, and equal protection as well as her state-law rights as a crime victim. Caruso

 5   seeks, among other forms of relief, a declaratory judgment under 42 U.S.C. § 1983

 6   stating that defendants’ conduct was unlawful and an injunction preventing defendants

 7   from engaging in such conduct in the future. Caruso also requests an unwinding of

 8   Edwards’ previous state court conviction so that, at a resentencing, she may participate

 9   more fully than before.

10          In this appeal, Caruso primarily contests the district court’s dismissal of her

11   complaint for lack of standing or for failure to state a claim based on her failure to allege

12   a cognizable injury in fact and as otherwise barred because defendants are immune from

13   such claims. We review a district court’s dismissal of a complaint for lack of standing de

14   novo. Fuentes v. Bd. Of Educ. of City of N.Y., 540 F.3d 145, 148 (2d Cir. 2008).

15          To establish constitutional standing, a plaintiff must allege that (i) she has suffered

16   an injury in fact which is “concrete and particularized” and “actual or imminent, not

17   conjectural or hypothetical,” (ii) there is “a causal connection between the injury and the

18   conduct complained of,” and (iii) it is likely “that the injury will be redressed by a

19   favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)

20   (internal quotation marks and citations omitted). To meet this burden when seeking

21   injunctive or declaratory relief, a plaintiff “cannot rely on past injury to satisfy the injury

                                                   3
 1   requirement but must show a likelihood that he or she will be injured in the future.”

 2   Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 344 (2d Cir. 1998); see also City of

 3   Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) (“Absent a sufficient likelihood that he

 4   will again be wronged in a similar way, [the plaintiff] is no more entitled to an injunction

 5   than any other citizen of Los Angeles; and a federal court may not entertain a claim by

 6   any or all citizens who no more than assert that certain practices of law enforcement

 7   officers are unconstitutional.”).

 8          Caruso has not plausibly alleged that any harm she has suffered as a result of

 9   Edwards’ plea agreement is likely to recur. To find an injury in fact, we would have to

10   assume that Caruso would again be a victim of a crime, that the perpetrator of that crime

11   would be prosecuted by the Rockland County District Attorney’s Office, that the

12   perpetrator would then negotiate a plea agreement, and that Caruso’s input would not be

13   considered in the court’s acceptance of the plea agreement. This string of possibilities is

14   “simply too speculative” to form an injury in fact redressable through injunctive or

15   declaratory relief. Shain v. Ellison, 356 F.3d 211, 216 (2d Cir. 2004).

16          In addition to declaratory and injunctive relief, Caruso requests that the Rockland

17   County Court’s disposition of People v. Edwards be “annul[ed] and vacat[ed].” Caruso

18   contends, as she did below, that she seeks only prospective relief. The relief requested,

19   however, would require us first to reopen a closed state court proceeding. Undoing the

20   guilty plea entered in People v. Edwards is plainly retrospective. Because Caruso




                                                  4
 1   requests retrospective relief, her claims against the Rockland County Court are prohibited

 2   under the Eleventh Amendment.

 3          As a general rule, “state governments may not be sued in federal court unless they

 4   have waived their Eleventh Amendment immunity.” Woods v. Rondout Valley Cent. Sch.

 5   Dist. Bd of Educ., 466 F.3d 232, 236 (2d Cir. 2006). “The immunity recognized by the

 6   Eleventh Amendment extends beyond the states themselves to ‘state agents and state

 7   instrumentalities’ that are, effectively, arms of a state.” Id. (quoting Regents of the Univ.

 8   of Cal. v. Doe, 519 U.S. 425, 429 (1997)). This Court has previously held that “the New

 9   York State Unified Court System is unquestionably an ‘arm of the State.’” Gollomp v.

10   Spitzer, 568 F.3d 355, 368 (2d Cir. 2009). As part of the New York State Unified Court

11   System, the Rockland County Court is entitled to Eleventh Amendment immunity.

12          Caruso argues, however, that her claim seeking prospective relief is authorized

13   under the Supreme Court’s decision in Ex Parte Young, 209 U.S. 123 (1908). Ex Parte

14   Young held that “private litigants could seek an injunction in federal court against a state

15   official, prohibiting him from enforcing a state law claimed to violate the Federal

16   Constitution.” Va. Office for Prot. and Advocacy v. Stewart, 563 U.S. 247, 267 (2011). In

17   determining whether Ex Parte Young applies, “a court need only conduct a

18   straightforward inquiry into whether the complaint alleges an ongoing violation of federal

19   law and seeks relief properly characterized as prospective.” Verizon Md., Inc. v. Pub.

20   Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (internal quotation marks and citation

21   omitted). Relief that serves to compensate a plaintiff injured in the past by an action of

                                                  5
 1   the state or an arm of the state is barred. Papasan v. Allain, 478 U.S. 265, 278 (1986).

 2   This is true “if the relief is tantamount to an award of damages for a past violation of

 3   federal law, even though styled as something else.” Id. Relief in the form of reopening a

 4   closed criminal case to permit additional victim input at a resentencing, however styled,

 5   is retrospective in nature. It does not fit within the Ex Parte Young exception and the

 6   Rockland County Court is thus entitled to immunity.

 7          The remaining defendants are similarly immune from Caruso’s claims. Caruso has

 8   alleged violations of her constitutional rights by defendants in their official capacities.

 9   “Judges are granted absolute immunity from liability for acts taken pursuant to their

10   judicial power and authority.” Oliva v. Heller, 839 F.2d 37, 39 (2d Cir. 1988). Caruso

11   does not argue that Judge Apotheker acted in a non-judicial role or in the absence of

12   jurisdiction. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (stating that judicial

13   immunity is only overcome in two sets of circumstances: nonjudicial actions and judicial

14   actions taken in the complete absence of jurisdiction). Judge Apotheker therefore has

15   absolute judicial immunity from Caruso’s claims.

16          Thomas Zugibe, the District Attorney, is also immune from Caruso’s claims.

17   “Absolute immunity bars a civil suit against a prosecutor for advocatory conduct that is

18   intimately associated with the judicial phase of the criminal process.” Giraldo v. Kessler,

19   694 F.3d 161, 165 (2d Cir. 2012) (internal quotation marks omitted). Caruso asserts that

20   the District Attorney’s Office did not meaningfully interview her concerning her version

21   of the events and ignored her input when negotiating a plea deal with Edwards. Insofar as

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 1   these allegations concern the District Attorney’s Office’s conduct in the plea bargaining

 2   process, it is absolutely immune. See Taylor v. Kavanagh, 640 F.2d 450, 451-52 (2d Cir.

 3   1981) (a district attorney’s “conduct in the plea bargaining negotiations and the

 4   sentencing proceedings in state court is protected by the doctrine of absolute

 5   prosecutorial immunity”). With respect to the meeting between Caruso and an Assistant

 6   District Attorney, this conduct hews closely to “evaluating evidence and interviewing

 7   witnesses” in preparation for trial, which the Supreme Court has held falls within the

 8   scope of absolute immunity. See Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).

 9   Accordingly, the District Attorney is absolutely immune from Caruso’s claims.

10         We have considered Caruso’s remaining arguments and find them to be without

11   merit. Accordingly, we AFFIRM the judgment of the district court.

12

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




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