     12-227-cv
     Basile v. Connolly

                            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
 2   at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
 3   York, on the 11th day of March, two thousand thirteen.
 4
 5   PRESENT:
 6              BARRINGTON D. PARKER,
 7              RAYMOND J. LOHIER, JR.,
 8                    Circuit Judges,
 9              JOHN G. KOELTL,*
10                    District Judge.
11   _____________________________________
12
13   Christopher Basile,
14
15                         Plaintiff-Appellant,
16
17                    v.                                            12-227-cv
18
19   Francesca Connolly, in her official and
20   individual capacity, John Doe #1, in his
21   individual capacity, Jane Doe #1, in her
22
23
             *
            The Honorable John G. Koeltl, of the United States District Court for the
     Southern District of New York, sitting by designation.
 1   individual capacity, and Jane Doe #2, in her
 2   individual capacity,
 3                        Defendants-Appellees.
 4   _____________________________________
 5
 6   FOR PLAINTIFF-APPELLANT:                         CHRISTOPHER BASILE, pro se, Brooklyn,
 7                                                    NY.
 8
 9   FOR DEFENDANT-APPELLEE
10   JUSTICE CONNOLLY:                                SIMON HELLER, Assistant Solicitor
11                                                    General (Barbara D. Underwood,
12                                                    Solicitor General, and Michael S.
13                                                    Belohlavek, Senior Counsel, on the
14                                                    brief), for Eric T. Schneiderman,
15                                                    Attorney General of the State of New
16                                                    York, New York, NY.
17
18          Appeal from a judgment of the United States District Court for the Southern

19   District of New York (Vincent L. Briccetti, Judge).

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

21   AND DECREED that the judgment of the District Court is AFFIRMED.

22          Christopher Basile appeals from a judgment of the United States District Court for

23   the Southern District of New York sua sponte dismissing Basile’s federal and state law

24   claims for failure to state a claim and lack of supplemental jurisdiction. We assume the

25   parties’ familiarity with the facts and record of the prior proceedings, which we reference

26   only as necessary to explain our decision to affirm.

27   I.     Section 1983 Claims

28          We review de novo the District Court’s sua sponte dismissal of the complaint for

29   failure to state a claim, see Rogers v. City of Troy, 148 F.3d 52, 58 (2d Cir. 1998),

30   accepting as true all factual allegations in the complaint and drawing all reasonable
 1   inferences in Basile’s favor, see Forest Park Pictures v. Universal Television Network,

 2   Inc., 683 F.3d 424, 429 (2d Cir. 2012). The complaint must contain “enough facts to

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

 4   544, 570 (2007). Ordinarily pro se litigants are afforded special solicitude, but “a lawyer

 5   representing himself,” as is the case here, “ordinarily receives no such solicitude at all.”

 6   Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010).

 7          A.     Justice Connolly

 8          The District Court properly dismissed Basile’s claims against Justice Connolly.

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

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

11   overcome judicial immunity.” Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009). A

12   judge is immune “even if [the judge’s] exercise of authority is flawed by the commission

13   of grave procedural errors,” Stump v. Sparkman, 435 U.S. 349, 359 (1978), or if the

14   judge acted “in excess of his or her jurisdiction” or authority, Maestri v. Jutkofsky, 860

15   F.2d 50, 52 (2d Cir. 1988). Judicial immunity may not be invoked, however, when a

16   judge faces liability for non-judicial actions or for actions that were “taken in the

17   complete absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11-12 (1991).

18          Basile asserts that Justice Connolly is not immune from suit because she knew that

19   she had no personal jurisdiction over him when she presided over certain legal

20   proceedings in which Basile was involved. Basile’s argument fails. Even if we accepted

21   his assertion that there was no personal jurisdiction over him in the proceedings in

22   question, Justice Connolly had subject matter jurisdiction over his matrimonial action,

                                                   3
 1   see Higgins v. Higgins, 551 N.Y.S.2d 373, 374 (3d Dep’t 1990), and therefore did not act

 2   in the absence of all jurisdiction, see Maestri, 860 F.2d at 52; Green v. Maraio, 722 F.2d

 3   1013, 1017 (2d Cir. 1983) (“[I]t is apparent that a judge who possesses subject matter

 4   jurisdiction is not within the ‘clear absence of all jurisdiction’ posture which would

 5   deprive [the judge] of the use of the defense of judicial immunity.”) (quoting Stump, 435

 6   U.S. at 357).

 7          To the extent Basile alleges that Justice Connolly lacked jurisdiction because the

 8   matter before her was not active at the time she presided over the allegedly improper

 9   proceedings, his statements are conclusory and insufficient to establish that she acted in

10   the absence of all jurisdiction.

11          B.       Doe Defendants

12          As the District Court noted, the complaint names three John and Jane Doe

13   defendants, but the body of the complaint indicates that Basile intended to assert claims

14   against Sherry Wiggs, John Guttridge, and Anne Mueller. Basile does not suggest

15   otherwise on appeal. The District Court properly dismissed the complaint as to these

16   defendants because there are no facts in the complaint suggesting that they worked for a

17   governmental body, acted under color of state law, or conspired or acted in concert with

18   Justice Connolly to violate Basile’s constitutional rights. See Ciambriello v. Cnty. of

19   Nassau, 292 F.3d 307, 323-24 (2d Cir. 2002).

20   II.    State Law Claims

21          We also affirm the District Court’s dismissal of Basile’s state law claims, because

22   we see no abuse of discretion in the District Court’s refusal to exercise supplemental

                                                  4
1   jurisdiction over these claims. See Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122

2   (2d Cir. 2006).

3         We have considered Basile’s remaining arguments and conclude that they are

4   without merit. For the foregoing reasons, the judgment of the District Court is

5   AFFIRMED.

6                                            FOR THE COURT:
7                                            Catherine O’Hagan Wolfe, Clerk
8




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