Pappas v. Zimmerman et al, No. 2:2013cv04883 - Document 41 (E.D.N.Y. 2014)

Court Description: MEMORANDUM & ORDER granting 23 Motion to Dismiss for Lack of Jurisdiction; granting 24 Motion to Dismiss for Failure to State a Claim; granting 24 Motion to Dismiss for Lack of Jurisdiction; For the foregoing reasons, Defendants' mo tions are GRANTED. The Court finds that it lacks subject matter jurisdiction pursuant to the domestic relations exception and that Plaintiff cannot sustain his claims against Defendants. Accordingly, Plaintiff's claims are DISMISSED WITH PREJUDI CE. The Court certifies that pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. The Clerk of the Court is directed to mark this matter CLOSED and to mail a copy of this Memorandum and Order to pro se Plaintiff. So Ordered by Judge Joanna Seybert on 8/6/2014. C/M; C/ECF (Valle, Christine)

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Pappas v. Zimmerman et al Doc. 41 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------X ANTHONY PAPPAS, Plaintiff, MEMORANDUM & ORDER 13-CV-4883(JS)(GRB) -againstHOPE SCWARTZ ZIMMERMAN, individually and as acting Supreme Court Judge; ANTHONY FALANGA, individually and as State Supreme Court Judge; STANLEY GARTENSTEIN, individually and as Judicial Hearing Officer, all of the State of New York; HENRY KRUMAN; MARIA PAPPAS; and JOHN DOE, a fictitious entity intended to substitute for parties unknown, Defendants. -------------------------------------X APPEARANCES For Plaintiff: Anthony Pappas, pro se 24-15 24th Street Astoria, NY 11102 For Defendants Judicial Defendants: Ralph Pernick, Esq. New York State Attorney General 200 Old Country Road, Suite 240 Mineola, NY 11501 Kruman & M. Pappas: Henry E. Kruman, Esq. Kruman & Kruman, P.C. 353 Hempstead Avenue Malverne, NY 11565 SEYBERT, District Judge: Pro se plaintiff Anthony Pappas (“Plaintiff”) commenced this action on August 30, 2013 against defendants Hope Schwartz Zimmerman, individually and as acting Supreme Court Judge (“Justice Zimmerman”); Anthony Falanga, individually and Dockets.Justia.com as Supreme Court Judge (“Justice Falanga”); Stanley Gartenstein, individually and as Judicial Hearing Officer of the State of New York (“JHO Gartenstein,” and together with Justices Falanga and Zimmerman, “the Judicial Defendants”); Henry Kruman (“Kruman”); Maria Pappas (“M. Pappas,” and together with Kruman and the Judicial Defendants, “Defendants”); and John Doe alleging claims pursuant to 42 U.S.C. § 1983 (“Section 1983”) for violations of his First and Fourteenth Amendment declaratory and injunctive relief. Court are: (1) a motion to rights, as well as for Currently pending before the dismiss the Complaint filed by Justice Falanga, Justice Zimmerman, and JHO Gartenstein (Docket Entry 23), and (2) a motion to dismiss the Complaint filed by Kruman and M. Pappas (Docket Entry 24). For the following reasons, the motions are GRANTED. BACKGROUND1 This action involves an underlying divorce proceeding commenced by M. Pappas against Plaintiff on December 8, 2004. (Compl. ¶ 11.) In 2004, M. Pappas and Plaintiff’s three children had reached adulthood, obviating any issues of custody and child support. The (Compl. ¶ 11.) Complaint alleges a series of purported constitutional violations stemming from the divorce proceedings. The following facts are drawn from the Complaint and are presumed to be true for the purposes of this Memorandum and Order. 1 2 For example, Plaintiff defendant Kruman, Plaintiff, allowed alleges asserted M. that M. baseless Pappas to Pappas’ attorney, accusations testify to against mistruths, and charged exorbitant fees for which Plaintiff ultimately became responsible. (Compl. ¶¶ 13, 17.) In addition, Plaintiff raises claims against Justice Falanga, JHO Gartenstein, and Justice Zimmerman. It appears from the Complaint that JHO Gartenstein presided over certain aspects of the case until his recusal in 2010. (Compl. ¶ 21.) Justice Falanga then presided over the divorce proceedings until his retirement around December 2011. (Compl. ¶ 21.) Zimmerman then succeeded Justice Falanga. Justice (Compl. ¶ 21.) According to the Complaint, the Judicial Defendants adopted M. Pappas’ recitation of the facts in various instances and generally favored M. Pappas, placing the “female litigant and her attorney in a win-win situation through never ending litigation.” (Compl. ¶¶ 18, 24.) Moreover, when Plaintiff sought “remedial efforts,” Justice Falanga issued a directive (the “Gag Order”) to Plaintiff on January 19, 2011, stating: I am admonishing you right now, you are not to communicate with anybody inside the court system, outside the court system, about how you feel you were being treated or anything like that. If you feel I am violating your right to free speech, you have the absolute right to feel that way and do whatever you feel is appropriate. If I decide to hold 3 you in contempt, we’ll cross that bridge when we come to it. Do you understand? (Compl. ¶ 19.) Plaintiff’s complaints regarding his divorce proceedings and the judicial process seemingly continued, as he circulated petitions and informational releases on the St. John’s University campus, where he is a professor of finance. (Compl. ¶¶ 1, 20.) Thus, First, he Plaintiff asserts a alleges claim for several violation causes of his of action. free speech rights under the First Amendment, seemingly against the Judicial Defendants: “1) through the imposition of a prior restraint by defendant Judge Anthony Falanga on January 19, 2011 which was neither modified nor vacated to the present day, and 2) punitive measures undertaken expressions made by on a variety plaintiff from of pretexts time to for time offensive during course of this maliciously protracted divorce case.” the (Compl. ¶ 26.) Plaintiff goes on to provide several instances in which he spoken has out about the alleged systemic abuses in the Nassau County divorce courts, including a written communication to JHO Gartenstein, a 2010 petition entitled “Help Me Impeach and Remove Judge Stanley Gartenstein from Office,” and a 2012 newsletter disseminated across the St. John’s University campus. (Compl. ¶ 27.) 4 Second, Plaintiff alleges “retaliation.” that “[d]efendants humiliate and acted destroy in concert the with plaintiff He asserts one another through to excessive unprofessional conduct while mocking him in juvenile ways during formal proceedings.” (Compl. ¶ 30.) Alleged retaliatory acts included, inter alia, actions taken by JHO Gartenstein after receipt of a purported threatening including requiring Plaintiff fees granting M. and to Pappas letter pay more all than from Plaintiff, opposing attorney’s she requested. had (Compl. ¶ 32.) Third, Plaintiff asserts a claim for violation of his due process rights because he was denied “his right to a rational, orderly and timely court proceeding before a neutral and detached magistrate or judge.” (Compl. ¶ 34.) As part of this claim, Plaintiff asserts that Kruman “engaged . . . in baseless fishing expeditions” and caused exorbitant fees. (Compl. ¶ 37.) Fourth, Plaintiff alleges a claim for violation of his equal protection rights because the court system favors female litigants over Plaintiff male seeks litigants. declaratory (Compl. and ¶ 42.) injunctive Finally, relief. Specifically, he requests that this Court vacate prior orders in the divorce proceedings and declare 5 them unconstitutional as well as an injunction to enjoin further divorce proceedings. (Compl. ¶ 46.) DISCUSSION The Judicial Defendants and Kruman and M. Pappas now move to dismiss the action pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). the applicable legal The Court will first discuss standards before addressing Defendants’ motions more specifically. I. Legal Standards A. Standard of Review under Rule 12(b)(1) “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). resolving a motion jurisdiction, materials questions. to the Court beyond the dismiss may for lack consider pleadings to of subject affidavits resolve In matter and other jurisdictional See Morrison v. Nat’l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008). The Court must accept as true the factual allegations contained in the Complaint, but it will not draw argumentative inferences in favor of Plaintiff because subject matter jurisdiction must be shown affirmatively. See id.; Atlanta Mut. Ins. Co. v. Balfour Maclaine Int’l Ltd., 968 6 F.2d 196, 198 (2d Cir. 1998); Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists. Makarova, 201 F.3d at 113. Pro se plaintiffs, although entitled to a more liberal pleading standard, must still comport with the procedural and substantive rules of law. See Jedrejcic v. Croatian Olympic Comm., 190 F.R.D. 60, 69 (E.D.N.Y. 1999). B. Standard of Review under Rule 12(b)(6) In Court deciding applies a Rule 12(b)(6) “plausibility “[t]wo working principles.” motions standard,” to which dismiss, is guided the by Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); accord Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009). Court must accept “inapplicable all to allegations legal as First, although the true, conclusions;” this thus, “tenet” is “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” accord Harris, 572 F.3d at 72. Iqbal, 556 U.S. at 678; Second, only complaints that state a “plausible claim for relief” can survive a Rule 12(b)(6) motion to dismiss. Iqbal, 556 U.S. at 679. Determining whether a complaint does so is “a context-specific task that requires the reviewing common sense.” court to draw on its judicial experience Id.; accord Harris, 572 F.3d at 72. 7 and Because Plaintiff is litigating pro se, the Court reads his Complaint liberally, see, e.g., Mancuso v. Hynes, 379 F. App’x 60, 61 (2d Cir. 2010), and interprets his papers to “‘raise the strongest arguments that they suggest,’” Corcoran v. N.Y. Power Auth., 202 F.3d 530, 536 (2d Cir. 1999) (quoting McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999)). II. Analysis A. Subject Matter Jurisdiction Before turning to the substantive merits of the pending motions, the Court must consider whether it has subject matter jurisdiction. that the Court The Judicial Defendants initially asserted lacked subject matter jurisdiction under the doctrines of Rooker-Feldman, the domestic relations exception, and Younger abstention. Judicial Defendants argument. Since filing their brief, however, the have withdrawn (See Docket Entry 40.) their Rooker-Feldman Similarly, Kruman and M. Pappas have also asserted the Court lacks jurisdiction under Rooker-Feldman and Younger abstention. finds that the domestic relations Given that the Court exception applies--thus divesting this Court of subject matter jurisdiction--it will not address Defendants’ additional arguments regarding jurisdiction. The domestic relations exception “‘divests the federal courts of power to issue divorce, alimony, and child custody decrees.’” Sobel v. Prudenti, --- F. Supp. 2d ----, 2014 WL 8 2750364, at *11 (E.D.N.Y. June 18, 2014) (quoting Akenbrandt v. Richards, 504 U.S. 689, 703, 112 S. Ct. 2206, 119 L. Ed. 2d 468 (1992)). The exception “stems from ‘the policy consideration that the states have traditionally adjudicated marital and child custody disputes expertise lack.’” in and therefore adjudicating have such developed matters, competence which federal and courts Id. (quoting Thomas v. N.Y. City, 814 F. Supp. 1139, 1146 (E.D.N.Y. 1993)). Although the exception is narrow, it applies where the gravamen of the plaintiff’s suit involves an issue such as divorce, Schottel v. Kutba, No. 06-CV-1577, 2009 WL 230106, at *1 (2d involves Cir. Feb. 2, issues 2009) or, “directly put related” another to way, the the action state court proceedings and invites the federal court to “re-examine and reinterpret” the evidence, McArthur v. Bell, 788 F. Supp. 706, 709 (E.D.N.Y. 1992). Here, although Plaintiff styles at least some of his claims as Section 1983 claims seeking monetary damages, Plaintiff also makes clear that he requests that this Court vacate various orders in the divorce proceedings, enjoin their enforcement, and Compl. ¶ 46.) declare them unconstitutional. (See, e.g., In fact, in less than twelve months, Plaintiff has sought an Order to Show Cause declaring all orders in the divorce proceedings proceedings, twice void moved for and a 9 enjoining preliminary future divorce injunction, and submitted ten applications. affidavits or affirmations in support of his (See Docket Entries 6-7, 9-13, 20, 28, 36-39.) Thus, the fact that Plaintiff styles his Complaint in terms of constitutional issues is of no moment. See Giovacco v. Hickey, No. 10-CV-5389, 2010 WL 5071493, at *1 (E.D.N.Y. Dec. 7, 2010) (“Although plaintiff invokes his constitutional rights, the allegations in his complaint solely concern a state law domestic relations matter.”); Eisenstein v. Haber, No. 92-CV8061, 1993 WL 37146, at *1, 3 (S.D.N.Y. Feb. 8, 1993) (finding that the exception applied where the plaintiff alleged, inter alia, violations of the First, Fourth, Fifth, Seventh, and Fourteenth Amendments); McArthur, 788 F. Supp. at 709 (finding that the claims domestic directly relations related applied to because child the support plaintiff’s modification proceedings, even though the plaintiff did not seek to alter the support modification require this Court determination). to become His allegations embroiled in the would divorce proceedings and his submissions make clear that he seeks to undo what has occurred with respect to his divorce. See Eisenstein, 1993 WL 37146, at *3. Thus, the Court finds that it lacks subject matter jurisdiction. Although Kruman and M. Pappas have not moved on the domestic relations exception specifically, the Court cannot exercise jurisdiction where there 10 is none. The Judicial Defendants’ motion to dismiss on this basis is GRANTED, and Plaintiff’s claims are DISMISSED WITH PREJUDICE. B. Claims Against Defendants Finally, the Court notes that, even assuming that this Court has jurisdiction, Plaintiff’s claims against the Judicial Defendants fail on the grounds of judicial immunity and the Eleventh Amendment, and his claims against Kruman and M. Pappas fail because they are not state actors. See, e.g., Donohue v. Pataki, 28 F. App’x 59, 60-61 (2d Cir. 2002) (affirming the district court’s conclusion that the domestic relations exception divested it of jurisdiction and that, in any event, the plaintiff brought suit against persons who, inter alia, were not state actors or who were entitled to absolute immunity); McArthur, 788 F. Supp. at 709 (considering the defendants’ Rule 12(b)(6) motion after finding that the domestic relations exception applied, assuming jurisdiction arguendo). 1. The Judicial Defendants The Judicial Defendants argue that Plaintiff’s claims against them are barred by the Eleventh Amendment and absolute judicial immunity. The Court agrees. Under the Eleventh Amendment, “[t]he Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or 11 Subjects of any Foreign State.” Thus, “[p]rivate citizens may not maintain an action in federal court against a State itself, or against sovereign a state immunity agency, . . unless . .” the State Baker v. has Dep’t waived of its Envtl. Conservation of State of N.Y., 634 F. Supp. 1460, 1462 (N.D.N.Y. 1986). Likewise, the Eleventh Amendment bars suits for monetary damages against a state official acting in his or her official capacity. See Salvador v. Lake George Park Comm’n, No. 98-CV- 1987, 2001 WL 1574929, at *2 (N.D.N.Y. Mar. 28, 2001), aff’d 35 F. App’x 7 (2d Cir. 2002). Accordingly, Plaintiff’s claims against the Judicial Defendants in their official capacity are barred.2 Moreover, the Judicial absolute judicial immunity. Defendants are entitled to It is well-settled that judges have generally been accorded absolute immunity for damages arising out of judicial acts performed in their judicial roles. See Mireles v. Waco, 502 U.S. 9, 11-12, 112 S. Ct. 286, 116 L. Ed. 2d 9 (1991). Judicial immunity may be overcome only when a judge takes action not in his or her judicial capacity or the actions at issue were taken “in the complete absence of all jurisdiction.” The Eleventh relief against See N.Y. State State of N.Y., (S.D.N.Y. June 2 Id. at 12, 112 S. Ct. 286. Here, while Amendment also bars retrospective declaratory state officials, such as Plaintiff seeks here. Court Clerks Ass’n v. Unified Court Sys. of the --- F. Supp. 2d ----, 2014 WL 2604106, at *7 9, 2014) (citations omitted). 12 Plaintiff alleges that the Gag Order exceeded Justice Falanga’s authority, this is insufficient. See, e.g., Ceparano v. Southampton Justice Court, 404 F. App’x 537, 539 (2d Cir. 2011) (quoting Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978)); Fields v. Soloff, 920 F.2d 1114, 1119 (2d Cir. jurisdiction 1990). to Clearly, preside the over Judicial the Defendants divorce had proceedings. Accordingly, they are entitled to absolute immunity.3 2. Kruman and M. Pappas Additionally, Plaintiff’s Section Kruman 1983 and claims because they are not state actors. M. Pappas against them assert that cannot stand Again, the Court agrees. To state a claim under Section 1983, a plaintiff must “allege that (1) the challenged conduct was attributable at least in part to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of guaranteed under the Constitution of the United States.” a right Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999); see also Cornejo v. As to injunctive relief, Section 1983 provides that injunctive relief is unavailable against a judicial officer for an act or omission taken in the officer’s judicial capacity “unless a declaratory decree was violated or declaratory relief was unavailable.” 42 U.S.C. § 1983. Moreover, the Court has found that Plaintiff was not entitled to the various preliminary injunctions that he requested and his affidavits in support demonstrate that his request to further enjoin the divorce proceedings pending in “Nassau County Supreme Court Index No. 04-203531” (Compl. ¶ 46) are now moot. (See, e.g., Docket Entry 36.) 3 13 Bell, 592 F.3d 121, 127 (2d Cir. 2010). Only in limited circumstances will courts recognize that a private individual may be subject to liability under Section 1983. Here, Plaintiff’s only basis for asserting that Kruman and M. Pappas allegedly acted conspired under with color state of state actors. law that they state “To is a claim against a private entity on a section 1983 conspiracy theory, the complaint must allege facts demonstrating that the private entity acted in concert unconstitutional act.” with the state actor to commit an Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324 (2d Cir. 2002) (internal quotation marks and citation omitted); see also Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999) (stating that a Section 1983 conspiracy requires (1) an agreement between state and private actors; “(2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages”). “A merely in conclusory allegation that a private entity acted concert with a state actor does not suffice to state a § 1983 claim against the private entity.” Ciambriello, 292 F.3d at 324. Plaintiff’s allegations of a conspiracy, however, are wholly conclusory and the Complaint lacks any allegation that would Goord, plausibly 340 F.3d suggest 105, a “meeting 110-11 (2d 14 of Cir. the minds.” 2003). Webb Rather, v. the Complaint merely suggests that Kruman and M. Pappas presented erroneous arguments during the divorce proceedings and that the Judicial Defendants subsequently rendered decisions that were not favorable to Plaintiff. Wholly devoid from these assertions is an allegation to “plausibly suggest[] that these acts were done in furtherance of an agreed upon conspiracy.” Bermudez v. City of N.Y., No. 11-CV-0750, 2013 WL 593791, at *8 (S.D.N.Y. Feb. 14, 2013). Accordingly, Plaintiff has not sufficiently alleged that Kruman and M. Pappas are state actors or conspired with state actors. CONCLUSION For GRANTED. the The foregoing Court reasons, finds that Defendants’ it lacks motions subject are matter jurisdiction pursuant to the domestic relations exception and that Plaintiff cannot sustain his claims against Defendants. Accordingly, Plaintiff’s claims are DISMISSED WITH PREJUDICE. [BOTTOM OF PAGE INTENTIONALLY LEFT BLANK] 15 The Court certifies that pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962). The Clerk of the Court is directed to mark this matter CLOSED and to mail a copy of this Memorandum and Order to pro se Plaintiff. SO ORDERED. /s/ JOANNA SEYBERT______ Joanna Seybert, U.S.D.J. Dated: August 6 , 2014 Central Islip, NY 16

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