10-3011-cv
McCluskey v. New York State Unified Court System

                   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 7th day of September, two thousand eleven.

PRESENT:
            CHESTER J. STRAUB,
            DENNY CHIN,
                           Circuit Judges,
            LORETTA A. PRESKA,
                           Chief District Judge*

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PETER MCCLUSKEY,
          Plaintiff-Appellant,

            -v.-                                      10-3011-cv

NEW YORK STATE UNIFIED COURT SYSTEM,
CHIEF JUDGE JONATHAN LIPPMAN, GABOR &
GABOR, DAVID GABOR, HOPE GABOR,
          Defendants-Appellees.**

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FOR PLAINTIFF-APPELLANT:            PETER MCCLUSKEY, pro se, Lynbrook,
                                    New York.

FOR DEFENDANTS-APPELLEES:           JOAN MARTINO FALEY, L'Abbate,
                                    Balkan, Colavita & Contini, Garden
                                    City, New York, for Gabor & Gabor,
                                    David Gabor, and Hope Gabor.



      *
          The Honorable Loretta A. Preska, United States District
Court for the Southern District of New York, sitting by
designation.
      **
          The Clerk of Court is directed to amend the caption
accordingly.
                              PATRICK J. WALSH, Assistant
                              Solicitor General (Barbara D.
                              Underwood, Solicitor General;
                              Benjamin N. Gutman, Deputy
                              Solicitor General, of counsel, on
                              the brief), for Eric T.
                              Schneiderman, Attorney General for
                              the State of New York, New York,
                              New York.

          Appeal from a judgment of the United States District

Court for the Eastern District of New York (Bianco, J.) entered

on June 22, 2010, dismissing pro se plaintiff-appellant Peter

McCluskey's federal claims and declining to exercise supplemental
jurisdiction over his legal malpractice claims.   The judgment was

entered in accordance with the district court's order filed June

17, 2010, sua sponte dismissing McCluskley's federal claims with

prejudice and declining jurisdiction over his state law claims.
          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

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

          We assume the parties' familiarity with the facts and

procedural history of the case, which we summarize as follows:

          In 1999, Peter McCluskey, a part-time adjunct professor

in the Theater Department at Suffolk County Community College

(the "College"), retained the Garden City law firm of Gabor &

Gabor and lawyers David Gabor and Hope Gabor (collectively

"Gabor") to file a lawsuit against the College.   McCluskey

alleged the College improperly denied him appointment to a full-

time position because of his age.   Gabor filed an age

discrimination suit against the College on behalf of McCluskey in

state court.

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           The relationship between McCluskey and Gabor soured, as

they clashed over litigation strategy and fees.    In March 2006,

the New York Supreme Court, Suffolk County, granted Gabor's

motion to be relieved from representing McCluskey.    McCluskey

elected to proceed pro se at trial.    In July 2006, a jury found

that McCluskey was not denied a full-time position at the College

under circumstances giving rise to an inference of

discrimination, and judgment was entered for the defendants.

           In February 2007, McCluskey, again proceeding pro se,

sued Gabor in New York Supreme Court, Nassau County, for legal

malpractice.     The court granted Gabor partial summary judgment.

Both parties appealed, and the Appellate Division, Second

Department, held that Gabor was entitled to summary judgment on

all issues because McCluskey's claims of legal malpractice were

without merit.     McCluskey then moved for leave to reargue Gabor's

motion for summary judgment before the Supreme Court, Nassau

County.    The court denied the motion, and the Appellate Division,

Second Department, dismissed McCluskey's appeal from this order.

           McCluskey then sought leave to appeal to the Court of

Appeals.   The appeal was dismissed "upon the ground that the

order appealed from does not finally determine the action within

the meaning of the Constitution."

           In May 2010, McCluskey filed this action against the

New York State Unified Court System and Chief Judge Jonathan

Lippman of the New York Court of Appeals (the "State Defendants")

and Gabor.     McCluskey alleged that the state courts and judges

                                 -3-
had violated his Fourteenth Amendment rights to due process and

equal protection by ruling against him.        McCluskey also sought

money damages against Gabor for legal malpractice, in addition to

a declaratory judgment that his constitutional rights were

violated, reinstatement of his state malpractice claims and

judgment in his favor.

            On appeal, McCluskey argues that the district court

committed reversible error by dismissing his 42 U.S.C. § 1983

claims as barred by judicial immunity, sovereign immunity, and

lack of state action, and by declining to exercise supplemental

jurisdiction over his legal malpractice claims.

            This Court reviews the district court's sua sponte

dismissal of the complaint de novo.       See McEachin v. McGuinnis,

357 F.3d 197, 200 (2d Cir. 2004).        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).          A

claim will have facial plausibility "when the plaintiff pleads

factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct

alleged."   Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).        In

the case of a pro se complaint, a court must construe the

complaint liberally.   See Harris v. Mills, 572 F.3d 66, 72 (2d

Cir. 2009).
     1.     The State Defendants

            The district court correctly dismissed the claims

against the State Defendants.      First, the claims against the

State Defendants are based solely on judicial acts preformed by


                                   -4-
judges in their judicial capacity.    Hence, the claims against

Chief Judge Lippman are barred by the doctrine of judicial

immunity.   Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009).     In

addition, McCluskey's claims for injunctive relief against Judge

Lippman are barred by statutory judicial immunity because

McCluskey did not allege that "a declaratory decree was violated"

or that "declaratory relief was unavailable."   42 U.S.C. § 1983;

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

            Second, the claims against the Unified Court System are

barred by the Eleventh Amendment since it is an arm of the State

of New York.   See Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 100 (1984) ("This jurisdictional bar applies regardless

of the nature of the relief sought."); see also N.Y. Const. art.

6, § 1 (creating the unified court system); In re Deposit Ins.

Agency, 482 F.3d 612, 617 (2d Cir. 2007) ("[The Eleventh

Amendment] jurisdictional bar also immunizes a state entity that

is an arm of the State.") (internal quotation marks omitted);

Zuckerman v. App. Div., Second Dep't, 421 F.2d 625, 626 (2d Cir.

1970) (holding that the Appellate Division was not a person under

§ 1983).    In addition, there is no evidence suggesting any waiver

of sovereign immunity.   See Fla. Dep't of State v. Treasure
Salvors, Inc., 458 U.S. 670, 684 (1982) ("A suit generally may

not be maintained directly against the State itself, or against

an agency or department of the State, unless the State has waived

its sovereign immunity.").




                                -5-
     2.     The Gabor Defendants

            Likewise, the district court correctly dismissed the

claims against the Gabor defendants.     First, private actors are

not proper § 1983 defendants when they do not act under color of

state law.    See Am. Mfrs. Mut. Ins. Co., v. Sullivan, 526 U.S.

40, 49-50 (1999) (explaining that § 1983 actions do not reach

purely private conduct).    "[A] private actor acts under color of

state law when the private actor is a willful participant in

joint activity with the State or its agents."     Ciambriello v.

Cnty. of Nassau, 292 F.3d 307, 324 (2d Cir. 2002) (internal
quotation marks omitted).    A "conclusory allegation that a

private entity acted in concert with a state actor does not

suffice to state a § 1983 claim against the private entity."       Id.

            McCluskey contends that Gabor acted "jointly" with the

Appellate Division by moving to dismiss his appeal for lack of

jurisdiction, a motion which the Appellate Division granted.

This claim is meritless, see Ciambriello, 292 F.3d at 324,

especially as McCluskey concedes that state law permitted Gabor

to move to dismiss the appeal, and the Appellate Division had "no

choice but to apply the reargument procedural rule uniformly."
            Second, to the extent that McCluskey asked the district

court to review state court rulings in favor of Gabor, his

complaint was properly dismissed pursuant to the Rooker-Feldman

doctrine.    Lower federal courts lack subject matter jurisdiction

in "cases brought by state-court losers complaining of injuries
caused by state-court judgments rendered before the district

court proceedings commenced and inviting district court review

                                   -6-
and rejection of those judgments."     Exxon Mobil Corp. V. Saudi

Basic Indus. Corp., 544 U.S. 280, 284 (2005).    As the district

court correctly concluded, McCluskey's allegations against Gabor

largely reiterate the claims made in the original state court

malpractice proceedings, claims that were dismissed on the

merits.
                           CONCLUSION

          We have considered McCluskey’s remaining arguments and

find them to be without merit.    Accordingly, we AFFIRM the

judgment of the district court.



                                 FOR THE COURT:
                                 Catherine O’Hagan Wolfe, Clerk




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