    19-230
    Szymonik v. State of CT


                         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.

                 At a stated term of the United States Court of Appeals for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 3rd day of April, two thousand twenty.

    PRESENT:
                DENNIS JACOBS,
                SUSAN L. CARNEY,
                JOSEPH F. BIANCO,
                      Circuit Judges.
    _____________________________________

    Peter T. Szymonik, for himself and as a parent of
    minor children, S.S., A.S., J.S., and stepparent of
    E.S., Monica L. Szymonik, for herself and as
    parent of minor children S.S., E.S. and stepparent
    of A.S. and J.S.,

                              Plaintiffs-Appellants,

                    v.                                                   No. 19-230

    State of Connecticut, Jorge Simon, in his official
    capacity as judge of Superior Court and
    individual capacity, Leslie Olear, in her official
    capacity as Presiding Judge of the Hartford
    Family Court and her individual capacity, Linda
    Prestley, in her official capacity as a Family
    Court Judge and her individual capacity, George
    Jepsen, in his official capacity as Attorney
    General of the State of Connecticut and his
    individual capacity, Keith Yagaloff, in his official
    capacity as an officer of the State of Connecticut
Court System and in his individual capacity,
Grant Miller, in his official capacity as a Family
Court Judge and in his individual capacity,1

                  Defendants-Appellees.
_____________________________________

FOR PLAINTIFFS-APPELLANTS:                             Peter T. Szymonik, Monica L. Szymonik, pro
                                                       se, Glastonbury, CT.

FOR STATE DEFENDANTS-APPELLEES:                        Philip Miller, Assistant Attorney General, for
                                                       William Tong, Attorney General,
                                                       Connecticut Office of the Attorney General,
                                                       Hartford, CT.

FOR DEFENDANT-APPELLEE YAGALOFF: No appearance.



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

(Shea, J.).


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

DECREED that the judgment of the district court is AFFIRMED.

         Peter and Monica Szymonik, husband and wife proceeding pro se, sued four state court

judges, the State of Connecticut, the Connecticut Attorney General, and a private attorney under

42 U.S.C. § 1983, alleging that the state judges violated the Szymoniks’ constitutional rights by

imposing and enforcing a 2012 leave-to-file order (the “2012 State Court Order”) against Peter

Szymonik (“Peter”) issued in his state court divorce proceeding. The Szymoniks allege further

that the Connecticut Attorney General unlawfully failed to intervene in the state proceeding to

protect their rights and that the private attorney conspired with the state court judges.       They



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    The Clerk’s Office is directed to amend the caption as reflected above.

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sought as relief, among other remedies, a declaration that the request-for-leave process violated

Peter’s due process rights and an injunction prohibiting the state court from imposing further

leave-to-file requirements.     The district court granted defendants’ motions to dismiss on a

variety of grounds, including the Rooker-Feldman doctrine, the Eleventh Amendment, absolute

judicial immunity (for the state court judges), quasi-judicial immunity (for the Attorney General),

and failure to state a claim (for the private attorney).   The Szymoniks appealed.   We assume the

parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on

appeal to which we refer only as needed to explain our decision to affirm.

     I.      Standards of Review

           We review de novo a judgment of dismissal, whether dismissal is based on Federal Rules

of Civil Procedure 12(b)(1) or 12(b)(6). Washington v. Barr, 925 F.3d 109, 113 (2d Cir. 2019).

We also review de novo (1) a dismissal made under the Rooker-Feldman doctrine, see Hoblock v.

Albany Cty. Bd. of Elections, 422 F.3d 77, 83 (2d Cir. 2005); and (2) a decision whether a state or

a state official is immune from suit under the Eleventh Amendment, see CSX Transp., Inc. v. N.Y.

State Office of Real Prop. Servs., 306 F.3d 87, 94 (2d Cir. 2002) (state); NAACP v. Merrill, 939

F.3d 470, 475 (2d Cir. 2019) (state official).

     II.     State Court Judges

             A. Rooker-Feldman

           Under the Rooker-Feldman doctrine, federal courts lack jurisdiction over “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 and rejection of those

judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). The



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doctrine applies when the federal court plaintiff: (1) lost in state court, (2) complains of injuries

caused by the state court judgment, (3) invites district court review and rejection of that judgment,

and (4) commenced district court proceedings after the state judgment was rendered.               See

Vossbrinck v. Accredited Home Lenders, Inc., 773 F.3d 423, 426 (2d Cir. 2014).

       The district court determined that the Szymoniks’ complaint was barred by the Rooker-

Feldman doctrine.     [ROA doc. 59]      For this doctrine to apply, however, the federal court

proceedings must have been commenced after the challenged state-court judgment was rendered.

Here, the Szymoniks filed their original federal complaint in February 2018, but some of the state

court orders that they seek to challenge were filed well afterward, as late as July 2018. The district

court, however, considered the federal proceedings to have commenced in August 2018 with the

filing of the second amended complaint and the alleged injury to have been caused only by the

2012 State Court Order imposing the leave-to-file sanction. The correct sequencing of events for

Rooker-Feldman purposes is unclear at this juncture. We need not resolve the sequencing issue,

however, because other grounds support the complaint’s dismissal.

          B. Claims for Prospective Injunctive Relief

       The Szymoniks sought specific declaratory and injunctive relief in their complaint, but the

document’s allegations did not link any of the defendants to those requests. Our consideration of

their pleading suggests that the only named defendants against whom such relief could be sought

are the state court judges.

       Thus, the Szymoniks requested “immediate prejudgment injunction[s]” (1) prohibiting the

family court from requiring Peter or his counsel to request leave before they file any motions; and

(2) ordering that Peter be allowed to engage counsel of his choice in state court.    Am. Compl. at



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24, Szymonik v. Connecticut, No. 18-cv-263, ECF No. 30 (“Am. Compl.”).          These requests are

for prospective relief. In demanding such relief (as their amended complaint declared), the

Szymoniks sought “to correct ongoing violations of constitutional and due process rights . . .

which continue to this day,” and claimed that they were “solely seeking prospective relief in the

form of immediate injunctive relief.” Id. at 5-8.

       We may affirm the district court’s dismissal of these requests for relief on any ground

supported by the record, including grounds upon which the district court did not rely. See Sudler

v. City of New York, 689 F.3d 159, 168 (2d Cir. 2012).    The Anti-Injunction Act (the “Act”), 28

U.S.C. § 2283, provides such a ground.     It “bars a federal court from enjoining a proceeding in

state court unless that action is expressly authorized by Act of Congress, or where necessary in

aid of its jurisdiction, or to protect or effectuate its judgments.” Wyly v. Weiss, 697 F.3d 131,

137 (2d Cir. 2012) (internal quotation marks omitted).     This statute “rests on the fundamental

constitutional independence of the States and their courts” and accordingly, the Supreme Court

has taught that “exceptions [to the Act’s directive] should not be enlarged by loose statutory

construction.” Atl. Coast Line R.R. Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 287 (1970).

“Any doubts as to the propriety of a federal injunction . . . should be resolved in favor of

permitting the state courts to proceed in an orderly fashion to finally determine the controversy.”

Id. at 297.   “Proceedings in state courts[, thus,] should normally be allowed to continue

unimpaired by intervention of the lower federal courts, with relief from error, if any, through the

state appellate courts and ultimately [the Supreme] Court.” Id. at 287.

       Here, no federal statute authorizes the federal courts to enjoin the state proceedings, nor

would such an injunction be necessary to aid the district court’s jurisdiction or to protect or



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effectuate its prior judgments. The 2012 State Court Order and the other state court rulings

challenged by the Szymoniks should remain in place without interference from the district court

because the Act bars the Szymoniks’ requests for prospective injunctive relief against the state

court judges.

          C. Claims for Retrospective Declaratory Relief

       The Szymoniks also asked the district court to declare (1) that the state court’s

request-for-leave process violated Peter’s due process rights; and (2) that the state court

improperly denied Monica Szymonik’s motion to intervene. These requests are retrospective.

Peter asserts due process violations premised on his allegations that, in the past, trial judges “not

assigned to the case” denied his unopposed requests for leave, when the order imposing the

request-for-leave sanction provided that only the presiding judge could consider such requests.

Am. Compl. at 9.    They allege that this “process” (as characterized by the Szymoniks) prevented

the Szymoniks from filing “dozens of motions” and having their grievances heard. Id. at 17, 19.

       Although the Szymoniks purport to focus on the state court process, their allegations in

fact challenge the 2012 State Court Order itself and the denials of particular leave-to-file motions.

Their second request for declaratory relief pertains to the denial in 2017 of Monica Szymonik’s

motion to intervene in the proceedings.

       The Eleventh Amendment bars federal courts from issuing retrospective declaratory relief

against state officials for past violations of federal law. See Green v. Mansour, 474 U.S. 64, 68,

73 (1985); Ward v. Thomas, 207 F.3d 114, 119, 120 (2d Cir. 2000) (declaratory relief unavailable

because “[a]ny declaration could say no more than that Connecticut [and the defendant official]

had violated federal law in the past”); Am. Civil Liberties Union of Mass. v. U.S. Conference of



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Catholic Bishops, 705 F.3d 44, 53 (1st Cir. 2013) (“With limited exceptions, not present here,

issuance of a declaratory judgment deeming past conduct illegal is also not permissible as it

would be merely advisory.”).

           Accordingly, the Szymoniks’ requests for declaratory relief are barred by the Eleventh

Amendment.

    III.     State of Connecticut, Attorney General

           On appeal, the Szymoniks do not challenge the district court’s ruling that the Eleventh

Amendment bars their claims against the State of Connecticut.            Nor do they challenge the

dismissal of individual-capacity claims against the Attorney General.      These claims are therefore

waived. See LoSacco v. City of Middletown, 71 F.3d 88, 92–93 (2d Cir. 1995) (pro se litigant

abandons issues not addressed in appellate brief).

           In addition, the Szymoniks make no objection to the district court’s determination that the

Attorney General was entitled to quasi-judicial immunity for claims against him in his individual

capacity. Instead, they argue that the Attorney General is not entitled to qualified immunity. But

qualified immunity was not a basis for the district court’s decision. Any argument that the

Attorney General is not entitled to quasi-judicial immunity is therefore also waived. Id.

           We affirm the dismissal of the official-capacity claims against the Attorney General.

These claims were retrospective: the Szymoniks alleged that the Attorney General wrongly

refused their request to intervene in Peter’s case, despite his awareness of state court

constitutional and jurisdictional errors. These claims too are barred by the Eleventh Amendment,

which prohibits official-capacity claims against state officials unless the complaint (1) alleges an

ongoing violation of federal law and (2) seeks relief properly characterized as prospective. In re



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Deposit Ins. Agency, 482 F.3d 612, 618 (2d Cir. 2007); see also, e.g., Bd. of Educ. of Pawling

Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 480 (2d Cir. 2002) (noting that complaints seeking

“retrospective relief” against state officials are “precluded by the Eleventh Amendment”).           In

addition, the Szymoniks cite no case or statute that would require the Attorney General of

Connecticut to intervene in the private family court proceedings at issue here. Cf. Mangiafico v.

Blumenthal, 471 F.3d 391, 394–97 (2d Cir. 2006) (Connecticut Attorney General was absolutely

immune from liability in § 1983 case for refusing to exercise discretion to defend state employee

in state lawsuit).

     IV.     Attorney Yagaloff

           The Szymoniks alleged in the district court that the state judges enabled “an officer, agent

and proxy of the court”—Keith Yagaloff, a private attorney who represented Peter’s former wife

—to infringe repeatedly on Peter’s constitutional rights “in a manner which may rise to the level

of conspiracy.” Am. Compl. at 12.

           They asserted that the state court did not impose similar leave-to-file restrictions against

Yagaloff, that Yagaloff was allowed to schedule a hearing, and that Yagaloff committed

misconduct by exploiting the autism of Peter’s child “to self-manufacture claims,” which in turn

influenced matters before the state and federal courts. Id. at 14, 17–18. On appeal, however, the

Szymoniks argue only that Yagaloff operates as a proxy of the court and thus improperly “enjoys

a unique status of privilege and regulation.” Appellants’ Br. at 29.

           The district court correctly held that these allegations fail to state a § 1983 claim against

Yagaloff. To state such a claim, a plaintiff must allege that he was injured by a state actor or a

private party acting under color of state law. See Ciambriello v. Cty. of Nassau, 292 F.3d 307,



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323 (2d Cir. 2002). Yagaloff, as a private attorney, was not a state actor; that he was licensed by

the state to practice law does not render him a state actor. Cf. Rodriguez v. Weprin, 116 F.3d 62,

65–66 (2d Cir. 1997) (court-appointed attorney “performing a lawyer’s traditional functions as

counsel” not state actor under § 1983).

         Nor did the Szymoniks’ conspiracy allegations establish that Yagaloff was acting under

color of state law.    To state a claim for § 1983 conspiracy, a plaintiff must allege “(1) an

agreement between a state actor and a private party; (2) to act in concert to inflict an

unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.”

Ciambriello, 292 F.3d at 324–25.          Conclusory allegations are insufficient; to be viable, a

complaint must allege “specific instances of misconduct.” Id. at 325 (internal quotation marks

omitted).    The Szymoniks’ allegations are only conclusory; their vague speculation that

Yagaloff’s actions “may rise to the level of conspiracy,” am. compl. at 12, fails to state a § 1983

conspiracy claim. Ciambriello. 292 F.3d at 324 (“A merely 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.”). Accordingly, the district court correctly held that the complaint failed to state a claim

against Yagaloff.

    V.      Motion for Injunction

         Although the Szymoniks argue on appeal that the district court should have granted their

motion for injunctive relief, their brief provides no argument in support of that position.

Accordingly, this argument is waived. See Gerstenbluth v. Credit Suisse Secs. (USA) LLC, 728

F.3d 139, 142 n.4 (2d Cir. 2013) (pro se litigant “waived any challenge” to the district court’s

adverse ruling because brief mentioned ruling only “obliquely and in passing.”); Norton v. Sam’s



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Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are

considered waived and normally will not be addressed on appeal.”).

       We have reviewed the remainder of the Szymoniks’ arguments and conclude that they are

without merit.   For the foregoing reasons, the judgment of the district court is AFFIRMED.

                                            FOR THE COURT:
                                            Catherine O’Hagan Wolfe, Clerk of Court




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