     09-0480-pr
     Caroselli v. Curci



                               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.



            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 6th day of April, two thousand ten.

     PRESENT:
                 AMALYA L. KEARSE,
                 PETER W. HALL,
                        Circuit Judges,
                 JED S. RAKOFF,*
                        District Judge.
     ___________________________________________________

     Dino Caroselli,

                          Plaintiff-Appellant,

                          v.                                             09-0480-pr

     Michael Curci, Former Kings County Supreme Court Judge;
     Plummer E. Lott, Kings County Supreme Court Judge; Reinaldo
     Rivera, Appellate Division, Second Department Judge; City of
     New York; State of New York; Abraham Friedman, Former Kings
     County Assistant District Attorney; Elizabeth Holtzman; Albert C.
     Aronne, Former Defense Attorney; Patrick Bonammo, Former
     Attorney; Morgan J. Dennehy, Assistant District Attorney; Charles
     Hynes, Kings County District Attorney; David Crow, Appellate
     Attorney, New York State Legal Aid Society; A. Gail Prudenti,

               *
               The Honorable Jed S. Rakoff, of the United States District Court for the Southern
     District of New York, sitting by designation.
Appellate Division, Second Department Judge; Howard Miller,
Appellate Division, Second Department Judge; Robert Schmidt,
Appellate Division, Second Department Judge; Stephen G. Crane,
Appellate Division, Second Department Judge; Susan Phillips Read,
New York State Court of Appeals Judge; in their individual and
official capacity; New York State Legal Aid Society,

            Defendants-Appellees.
____________________________________________________

FOR APPELLANT:                              Dino Caroselli, pro se, Wallkill, New York.

FOR APPELLEES CITY OF
NEW YORK, FRIEDMAN,
HOLTZMAN, DENNEHY, HYNES:                   Michael A. Cardozo, Corporation Counsel of
                                            the City of New York (Karen M. Griffin,
                                            Appeals Division, on the memorandum-brief),
                                            New York, New York.

FOR APPELLEES STATE OF
NEW YORK, LOTT, RIVERA,
PRUDENTI, MILLER, SCHMIDT,
CRANE, READ:                                Andrew M. Cuomo, Attorney General for the
                                            State of New York; Barbara D. Underwood,
                                            Solicitor General (Benjamin N. Gutman,
                                            Deputy Solicitor General, on the
                                            memorandum-brief), New York, New York.

FOR APPELLEES THE NEW YORK
STATE LEGAL AID SOCIETY,
CROW:                                       Rosen Livingston & Cholst LLP (Peter I.
                                            Livingston and Deborah B. Koplovitz, on the
                                            brief), New York, New York.

       Appeal from a judgment of the United States District Court for the Eastern District

of New York (Weinstein, J.). UPON DUE CONSIDERATION, it is hereby

ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be

AFFIRMED.

       Appellant Dino Caroselli appeals a judgment of the district court granting the

Defendants-Appellees’ motions to dismiss his 42 U.S.C. § 1983 complaint. He also moves

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for “reversal of the lower court’s order and judgment.” 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 Rules

12(b)(1) and 12(b)(6), construing the complaint liberally, “‘accepting all factual allegations

in the complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.’”

Shomo v. City of New York, 579 F.3d 176, 182-83 (2d Cir. 2009) (quoting Chambers v.

Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002)). The complaint must plead “enough

facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). The Court

should consider only those facts alleged in the complaint or in documents attached to the

complaint as exhibits or incorporated in the complaint by reference, and matters of which

the court may take judicial notice. See Pani v. Empire Blue Cross Blue Shield, 152 F.3d

67, 75 (2d Cir. 1998).

       With respect to The New York State Legal Aid Society and David Crow, neither is

a state actor amenable to suit under § 1983. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526

U.S. 40, 49-50 (1999); Flagg v. Yonkers Sav. & Loan Ass’n, FA, 396 F.3d 178, 187 (2d

Cir. 2005). Insofar as Caroselli alleges that Legal Aid was engaged in a conspiracy with

state actors, this allegation is wholly conclusory and insufficient to state a plausible

conspiracy claim. See Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d Cir. 1992); see

also Shomo, 579 F.3d at 183.

       With respect to the City of New York, Caroselli has failed to demonstrate the

causation necessary for a § 1983 claim against a municipality. See Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 694 (1978); Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84

                                               3
(1986) (municipal liability attaches only where the deprivation was caused by a policy or

custom of the municipality or by a municipal official “responsible for establishing final

policy.”). With respect to the individually-named prosecutors, the district court determined

that the prosecutors were entitled to qualified immunity; we determine that, insofar as

Caroselli seeks money damages, those claims are barred by absolute prosecutorial

immunity. See Shmueli v. City of New York, 424 F.3d 231, 236-37 (2d Cir. 2005) (citing

Imbler v. Pachtman, 424 U.S. 409, 410, 431 (1976)); see also Van de Kamp v. Goldstein,

129 S. Ct. 855, 861-62 (2009) (prosecutors enjoy absolute immunity for, inter alia,

activities requiring “legal knowledge and the exercise of related discretion”); Shumway v.

United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir. 1997) (“[A]n appellate court may affirm

the judgment of the district court on any ground appearing in the record.”). Insofar as

Caroselli seeks injunctive relief, the allegations of the complaint reveal no basis for such

relief. See Dorman v. Higgins, 821 F.2d 133, 139 (2d Cir. 1987).

         With respect to the State of New York, a state is not a “person” amenable to suit

under § 1983. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989); see also

Huminski v. Corsones, 396 F.3d 53, 70 (2d Cir. 2005). With respect to the state court

judges, insofar as Caroselli seeks money damages, such claims are barred by absolute

judicial immunity. See Stump v. Sparkman, 435 U.S. 349, 355-57 (1978); accord Bliven v.

Hunt, 579 F.3d 204, 209-10 (2d Cir. 2009). Insofar as Caroselli seeks injunctive relief

against the state court judges, such relief is statutorily barred. See 42 U.S.C. § 1983;

Montero v. Travis, 171 F.3d 757, 761 (2d Cir. 1999) (per curiam).

         We have considered all of Caroselli’s arguments and conclude that they are without

merit.

                                               4
      For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

Caroselli’s pending motion is DENIED as moot.

                                          FOR THE COURT:

                                          Catherine O’Hagan Wolfe, Clerk




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