    08-4879-cv
    Esposito 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 SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.     IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

         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 8th day of December, two thousand nine.

    PRESENT:
                      AMALYA L. KEARSE,
                      ROBERT A. KATZMANN,
                      DEBRA ANN LIVINGSTON,
                           Circuit Judges.

    __________________________________________________

    Luisa C. Esposito,

                      Plaintiff-Appellant,

                      v.                                         08-4879-cv

    The State of New York, the Office of Court
    Administration of the Unified Court System,
    Thomas J. Cahill, in his official and
    individual capacity, Naomi Goldstein, in her
    official and individual capacity, Albert S.
    Blinder, in his official and individual
    capacity, Harvey Gladstein & Partners LLC,
    formerly known as Gladstein & Isaac,
    Allan H. Isaac, individually and as a
    partner of Harvey Gladstein & Partners LLC,
    formerly known as Gladstein & Isaac, the
    City of New York, Raymond Kelly, in his
official and individual capacity, Robert
Arbuiso, in his official and individual
capacity, Adam I. Lamboy, in his official
and individual capacity, Arthur Pollack,
individually and as a partner of Pollack,
Pollack, Isaac & DeCicco, LLP, Conrad
Pollack, individually and as a partner of
Pollack, Pollack, Isaac & DeCicco, LLP,
Brian J. Isaac, individually and as a
partner of Pollack, Pollack, Isaac &
Decicco, LLP, Pollack, Pollack, Isaac &
DeCicco, LLP, and Jane and John Does,

          Defendants-Appellees.*
__________________________________________________

FOR APPELLANT:                Luisa C. Esposito, pro se, West Hempstead,
                              NY.

FOR APPELLEES:                Douglas Langholz (Anthony Daniel Grande, on
                              the brief), Morgan Melhuish Abrutyn, New
                              York, NY (for appellees Arthur Pollack,
                              Conrad Pollack, Brian J. Isaac, and Pollack,
                              Pollack, Isaac & DeCicco, LLP).

                              Patrick J. Walsh, Assistant Solicitor General
                              (Barbara D. Underwood, Solicitor General,
                              Michael S. Belohlavek, Senior Counsel, on the
                              brief) for Andrew M. Cuomo, Attorney General
                              of the State of New York, New York, NY (for
                              appellees State of New York, Office of Court
                              Administration of the Unified Court System,
                              Thomas J. Cahill, Naomi Goldstein, and Albert
                              S. Blinder).

                              Diane Krebs (Thomas B. Coppola, on the
                              brief), Gordon & Rees LLP, New York, NY (for
                              appellee Allen H. Isaac).

                              Elizabeth I. Freedman, Assistant Corporation
                              Counsel (Michael A. Cardozo, Corporation
                              Counsel, on the brief) New York, NY (for
                              appellees City of New York, Raymond Kelly,
                              Robert Arbuiso, and Adam Lamboy).

                              Traycee Ellen Klein (Eric B. Topel, on the
                              brief), Epstein Becker & Green, P.C., New


     *
         The Clerk of the Court is directed to amend the official caption as set forth above.

                                                2
                     York, NY (for appellee Harvey Gladstein &
                     Partners LLC).


     Appeal from the United States District Court for the

Southern District of New York (Scheindlin, J.).

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

DECREED that the judgment and order of the district court are

AFFIRMED.

     Appellant Luisa C. Esposito, pro se, appeals from the

judgment of the United States District Court for the Southern

District of New York (Scheindlin, J.), dismissing her claims

under 42 U.S.C. § 1983 and state law, and from the district

court’s order denying her motion for reconsideration pursuant to

Rule 60(b) of the Federal Rules of Civil Procedure.    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 pursuant to Rule 12(b)(6) [of the Federal Rules of

Civil Procedure], construing the complaint liberally, accepting

all factual allegations in the complaint as true, and drawing all

reasonable inferences in the plaintiff’s favor.”   Chambers v.

Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).    We review a

district court order denying a Rule 60(b) motion for abuse of

discretion.   See Transaero, Inc. v. La Fuerza Aerea Boliviana,

162 F.3d 724, 729 (2d Cir. 1998).

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     To succeed on a § 1983 claim, a plaintiff must show that the

defendants, acting under the color of state law, deprived her of

a constitutional right.   Rodriguez v. Phillips, 66 F.3d 470, 473

(2d Cir. 1995).   In the instant case, we find that Appellant

failed to show any deprivation of a constitutional right.   First,

with regard to her attempts to secure Isaac’s arrest and criminal

prosecution, “a citizen lacks standing to contest the policies of

the prosecuting authority when he himself is neither prosecuted

nor threatened with prosecution.”    Linda R.S. v. Richard D., 410

U.S. 614, 619 (1973); see also United States v. Grundhoefer, 916

F.2d 788, 792 (2d Cir. 1990).   Private citizens have no legally

cognizable interest in attorney disciplinary proceedings.   See

Application of Phillips, 510 F.2d 126, 126 (2d Cir. 1975) (per

curiam).   Likewise, Appellant’s First Amendment claim based on

access to the same proceedings fails because she had no

cognizable right to participate in them.

     Further, a governmental failure to protect an individual

from private violence does not implicate a victim’s due process

rights unless the state actor created or enhanced the danger to

the victim, which Appellant did not allege.   See Okin v. Vill. of

Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 427-28 (2d Cir.

2009) (citing DeShaney v. Winnebago County Dep’t of Soc. Servs.,

489 U.S. 189, 197 (1989); Dwares v. City of New York, 985 F.2d

94, 99 (2d Cir. 1993)(overruled on other grounds by Leatherman v.

Tarrant Co. Narcotics Intelligence & Coordination Unit, 507 U.S.


                                 4
163, 164 (1993)).   Nor did Appellant allege any facts to suggest

that she was intentionally discriminated against based on her

gender or that she suffered any treatment disparate from

similarly situated individuals that would support a “class-of-

one” equal protection theory.   See Clubside, Inc. v. Valentin,

468 F.3d 144, 159 (2d Cir. 2006).    Accordingly, Appellant’s

complaint failed to state a claim and was properly dismissed.

Moreover, it would have been futile to give Appellant leave to

amend her complaint because she had already amended it twice.

See Hayden v. County of Nassau, 180 F.3d 42, 53-54 (2d Cir.

1999).   Finally, we find that the district court did not abuse

its discretion in denying Appellant’s Rule 60(b) motion because

she demonstrated no “exceptional circumstances” that would

justify setting aside the dismissal of her complaint.    Ruotolo v.

City of New York, 514 F.3d 184, 191 (2d Cir. 2008).

     We have carefully considered Appellant’s remaining claims

and find them to be without merit.

     For the foregoing reasons, the judgment and order of the

district court are AFFIRMED.

                                FOR THE COURT:
                                Catherine O’Hagan Wolfe, Clerk

                                By:___________________________




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