     16-1057
     Rolle v. Girardi


                             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 ASUMMARY 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,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
 3   New York, on the 28th day of April, two thousand seventeen.
 4
 5   PRESENT:
 6               JOHN M. WALKER, JR.,
 7               DENNIS JACOBS,
 8               BARRINGTON D. PARKER,
 9                           Circuit Judges.
10   _____________________________________
11
12   Nehemiah Rolle,
13
14                              Plaintiff - Appellant,
15
16                      v.                                                       16-1057
17
18   Joseph Girardi,
19
20                            Defendant – Appellee.
21
22   _____________________________________
23
24
25   FOR APPELLANT:                        Nehemiah Rolle, pro se, New York, New York.
26
27   FOR APPELLEE:                         David Lawrence, III, Assistant Solicitor General
28                                         Eric T. Schneiderman, Attorney General for the
29                                         State of New York, New York, New York.
30
31
 1          Appeal from a judgment of the United States District Court for the Eastern District of New
 2   York (Seybert, J.).
 3
 4           UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
 5   DECREED that the judgment of the district court is VACATED and REMANDED with
 6   instructions to the district court to enter a judgment of dismissal without prejudice.
 7
 8           Nehemiah Rolle, pro se, appeals from the district court’s dismissal of his 42 U.S.C. § 1983
 9   complaint against Nassau County District Court Judge Joseph Girardi, who, Rolle alleged,
10   improperly removed him from a courtroom while he was observing a criminal trial. Rolle also
11   brought claims on behalf of the defendant in the criminal trial, Deborah Joseph, alleging violations
12   of (inter alia) her Sixth Amendment rights. Rolle sought (inter alia), injunctive relief to prevent
13   Judge Girardi from denying Rolle access to future court proceedings; declaratory relief that Judge
14   Girardi had unlawfully removed Rolle from the courtroom and violated Joseph’s constitutional
15   rights at trial; and Judge Girardi’s impeachment. We assume the parties’ familiarity with the
16   underlying facts, the procedural history of the case, and the issues on appeal.
17
18           We review dismissals pursuant to Federal Rule of Civil Procedure 12(b)(6) de novo.
19   Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). When reviewing a decision of
20   the district court, we are free to affirm it on any ground supported by the record, regardless of the
21   ground upon which the trial court relied. See Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400,
22   405 (2d Cir. 2006). Because Rolle sought only injunctive and declaratory relief, the district court
23   erred in dismissing on the basis of judicial immunity. See Pulliam v. Allen, 466 U.S. 522, 541-43
24   (1984). However, dismissal of Rolle’s complaint was nonetheless appropriate because Rolle
25   lacks standing to pursue his claims and the district court therefore lacked subject matter
26   jurisdiction over them.
27
28           Constitutional standing requires plaintiffs to allege an actual case or controversy.
29   Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 344 (1998). “Specifically, a plaintiff must
30   demonstrate that (1) he or she has suffered an injury; (2) the injury is traceable to the defendants’
31   conduct; and (3) a federal court decision is likely to redress the injury.” Id. A plaintiff who
32   seeks injunctive or declaratory relief “cannot rely on past injury to satisfy the injury requirement
33   but must show a likelihood that he or she will be injured in the future.” Id.; see also Marcavage v.
34   City of New York, 689 F.3d 98, 103 (2d Cir. 2012) (“To obtain prospective relief, such as a
35   declaratory judgment or an injunction, a plaintiff must show, inter alia, a sufficient likelihood that
36   he [or she] will again be wronged in a similar way.”) (internal quotation marks, alterations and
37   citations omitted). To show a likelihood of future harm, a plaintiff “must establish how he or she
38   will be injured prospectively and that the injury would be prevented by the equitable relief
39   sought.” Marcavage, 689 F.3d at 103. In this case, there is no plausible allegation that future
40   injury is likely. Rolle has not plausibly alleged that he will observe proceedings before Judge
41   Girardi in the future--including proceedings involving Joseph, whose criminal trial has
42   concluded--or that Judge Girardi will unlawfully order him to leave the courtroom again.
43   Consequently, Rolle lacks standing to bring his claims, and the district court lacked subject matter
44

                                                       2
 1   jurisdiction to entertain them. Los Angeles v. Lyons, 461 U.S. 95, 105-06; see also Marcavage,
 2   689 F.3d at 103.
 3
 4           Rolle also lacks prudential standing to bring claims that Judge Girardi’s rulings and
 5   conduct during Joseph’s trial violated Joseph’s constitutional rights. Under the prudential
 6   standing rule, a plaintiff “must assert his own legal rights and interests, and cannot rest his claim to
 7   relief on the legal rights or interests of third parties.” Rajamin v. Deutsche Bank Nat’l Trust Co.,
 8   757 F.3d 79, 86 (2d Cir. 2014) (citation and internal quotation marks omitted).
 9
10           A dismissal for lack of subject matter jurisdiction must be without prejudice because the
11   court lacks the authority to dismiss with prejudice. See Hernandez v. Conriv Realty Assocs., 182
12   F.3d 121, 123 (2d Cir. 1999).
13
14            We have considered all of Rolle’s arguments and find them to be without merit.
15   Accordingly, we VACATE the challenged judgment and REMAND with instructions to the
16   district court to enter a judgment of dismissal without prejudice.
17
18                                                  FOR THE COURT:
19                                                  Catherine O’Hagan Wolfe, Clerk
20




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