Hardie v. The Rehfuss Law Firm, P.C., et al

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________________________________
Thomas Hardie,
Plaintiff,
v. 1:26-CV-538
(ECC/MJK)
Attorney Stephen Rehfuss et. al.,
Defendant.
_____________________________________________________________________
Thomas Hardie, Plaintiff pro se
Mitchell J. Katz, U.S. Magistrate Judge
To the Honorable Elizabeth C. Coombe, U.S. District Judge:
REPORT- RECOMMENDATION
Hardie began this action on April 6, 2026, by filing a Complaint.
(Dkt. 1). Hardie paid the filing fee but also filed a motion requesting the
U.S. Marshal serve his summons and Complaint. (Dkt. 7). The Clerk
sent Hardie’s motion to this Court for review. (Id.). Although Hardie
paid the filing fee, the Court has, on its own, reviewed the Complaint
under 28 U.S.C. §1915. For the reasons below, the Court recommends
the District Court dismiss the Complaint.
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I. BACKGROUND
In April 2018, Hardie began civil case 18-CV-470 in this district.
(Dkt. 1, at pg. 5).1 In June of 2022, the Court denied the defendant, City
of Albany, summary judgment. (Id.). With that decision, Hardie began
searching for a trial attorney. (Id.). Hardie then retained the Office of
Amy Jane Agnew for trial, and she filed a notice of appearance with the
court on December 21, 2022. (Id. at pg. 6). Hardie “diligently advised
both Attorney Agnew, and her assistant Attorney Joshua Morrison of
the foreseeable merits in the case[.]” (Id.). Hardie also identified “a
genuine issue of material fact that was determined by Judge Sharpe,
which pertained to, [his] exculpatory defense evidence.” (Id.).
Attorney Stephen Rehfuss, alleged by plaintiff to be in private
practice in a firm bearing his name, as counsel for the City of Albany,
attended the February 15, 2021 deposition, “and abruptly interfered
with [Hardie’s] question directed to” the booking clerk. (Id. at pg. 7).
“[A]t every stage of [the] . . . proceedings, [Hardie] remained
consistently persistent with showing evidence, and pointing out”
evidence that supported his claim. (Id. at pg. 7).
1 All citations refer to the CM/ECF pagination.
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“When [Agnew] signed on as [Hardie’s] attorney . . . she and her
assistant . . . advised [Hardie] that they would be personally handling
all [trial matters], and that there was no further need of my litigation
pursuance, or [his] presence . . . at the pretrial hearings.” (Id. at pg. 8).
At trial, Hardie learned that the booking clerk was going to testify
and that his attorney failed to enter his exculpatory evidence against
the clerk’s testimony into the trial record. (Id.). This “negatively
impacted the outcome of trial.” (Id.). “Furthermore, [Agnew] and
[Morrison] failed by not objecting or opposing the defendant’s witness,”
the booking clerk. (Id. at pg. 9).
Now, Hardie sues Stphen Rehfuss, Abigail Rehfuss, Amy Jane
Agnew, Joshua Lee Morrison, the Law Office of Amy J. Agnew, and the
Rehfuss law firm (“Defendants”) for “deprivation of procedural due
process,” “arbitrary and capricious conduct” which violated “the due
process clause,” and legal malpractice. (Id. at pgs. 4-5). Hardie seeks
monetary damages for his claims. (Id. at pgs. 11-12).
II. STANDARD OF REVIEW
Courts, under 28 U.S.C. § 1915, can—on their own, at any time—
dismiss a case even where the pro se plaintiff paid the filing fee if the
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court determines that the action is (1) frivolous or malicious; (2) fails to
state a claim on which relief may be granted; or (3) seeks monetary
relief against a defendant who is immune from such relief. See 28
U.S.C. § 1915 (e)(2)(B)(i)-(iii); see also Ford v. New York, 19-CV-0380
(DNH/TWD), 2019 WL 8759423, at *9 (N.D.N.Y. Apr. 29, 2019).
When determining whether an action is frivolous, courts must
consider whether the complaint lacks an arguable basis in law or in
fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on
other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); 28
U.S.C. § 1915. Dismissal of frivolous actions is appropriate to prevent
abuses of court process and to discourage the waste of judicial
resources. Neitzke, 490 U.S. at 327; Harkins v. Eldredge, 505 F.2d 802,
804 (8th Cir. 1974).
To be sure, courts have a duty to show liberality toward pro se
litigants and must use extreme caution when sua sponte dismissing pro
se complaints before adverse parties have been served and had an
opportunity to respond. See Fitzgerald v. First E. Seventh St. Tenants
Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may
dismiss a frivolous complaint sua sponte even when plaintiff has paid
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the filing fee). But courts still have a responsibility to determine that a
claim is not frivolous before permitting a plaintiff to proceed. See id.
III. DISCUSSION
The District Court lacks subject matter jurisdiction to
hear Hardie’s case as currently pleaded.
The District Court should dismiss Hardie’s Complaint without
prejudice and without leave to amend. To plausibly allege a 42 U.S.C.
§1983 violation, the plaintiff must show that the defendant deprived the
plaintiff of their rights under the color of state law. In other words, the
plaintiff must prove that the defendant was a state actor. Here, Hardie
cannot plausibly allege that Defendants are state actors. Thus, the
Court recommend dismissing Hardie’s Complaint.
A §1983 violation occurs when “a person or persons acting under
color of state law deprived a plaintiff of rights, privileges or immunities
secured by the Constitution or laws of the United States.” McDarby v.
Dinkins, 907 F.2d 1334, 1336 (2d Cir.1990). To plausibly allege a §1983
claim, “the conduct at issue must have been committed by a person
acting under color of state law.” DuBois v. Bedford-Flatbush
Chiropractic, P.C., 409 F. Supp. 3d 62, 69 (E.D.N.Y. 2019). “For
purposes of a § 1983 action, a defendant necessarily acts under color of
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state law when he abuses the position given to him by the State.” Lynch
v. Southampton Animal Shelter Found. Inc., 971 F. Supp. 2d 340, 348
(E.D.N.Y. 2013). “Private actors are not liable under section 1983 unless
the conduct allegedly causing the deprivation of a federal right can be
fairly attributable to the State.” Id. (cleaned up). Importantly, plaintiffs
“bears the burden of proof to establish that the acts of private persons
or entities constitute state action.” Omnipoint Commc’ns Inc. v. Comi,
233 F. Supp. 2d 388, 394 (N.D.N.Y. 2002)
Hardie’s Complaint does not establish that the District Court has
subject matter jurisdiction over this case. Hardie is suing Defendants
who are lawyers (who represented him or opposed him) and their law
firms. (Dkt. 1, at pgs. 4-5). In particular, Hardie alleges that
Defendants deprived him of procedural due process and engaged in
legal malpractice. (Id. at pgs. 4-5). But “it is axiomatic that neither
public defenders, such as Legal Aid attorneys, nor court-appointed
counsel, nor private attorneys, act under the color of state law merely
by virtue of their position.” McCluskey v. New York State Unified Ct.
Sys., No. 10-CV-2144, 2010 WL 2558624, at *6 (E.D.N.Y. June 17, 2010)
(Bianco J.). Worse yet, the Complaint is devoid of any statements or
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evidence which plausibly suggest that Defendants were acting under
the color of law. See generally (Dkt. 1). And because they “did not act
under color of state law,” Defendants are “not subject to § 1983
liability.” Kash v. Honey, 38 F. App’x 73, 76 (2d Cir. 2002) (summary
order) (affirming the trial court’s dismissal of plaintiff’s claims against a
private attorney). Because there is no state action, §1983 is not
available to Hardie. And because that is so, there is no federal question
jurisdiction under 28 U.S.C. §1331. Without a federal question—and no
allegations that the parties are diverse and the amount in controversy
exceeds $75,000 establishing diversity jurisdiction—the District Court
has no jurisdiction to hear the case. Indeed, ‘“[f]ederal courts are courts
of limited jurisdiction,’ and may hear cases only where a federal
question exists (‘federal question jurisdiction’) or there is diversity of
the parties (‘diversity jurisdiction’).” Shafik v. Aston Martin Lagonda of
N. Am., Inc., 770 F. Supp. 3d 432, 441 (D. Conn. 2025) (quoting Durant,
Nichols, Houston, Hodgson & Cortese-Costa P.C. v. Dupont, 565 F.3d 56,
62 (2d Cir. 2009)). Thus, the Court recommends the District Court
dismiss the Complaint without prejudice and without leave to amend.
See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it
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lacks subject-matter jurisdiction, the court must dismiss the action.”);
Durant, Nichols, Houston, Hodgson & Cortese-Costa P.C., 565 F.3d at
64 (“Notwithstanding any prior proceedings, it is our obligation to raise
the matter of subject matter jurisdiction whenever it appears from the
pleadings or otherwise that jurisdiction is lacking.”)
The Court also recommends that the Complaint be dismissed
without leave to amend because any amendment would be futile.
Generally, before courts dismiss a pro se complaint or any part of the
complaint sua sponte, it should afford the plaintiff the opportunity to
amend at least once. See Ruffolo v. Oppenheimer & Co., 987 F.2d 129,
131 (2d Cir. 1993). But leave to re-plead may be denied where any
amendment would be futile. See id. Futility is present when the
problem with plaintiff’s causes of action is substantive such that better
pleading will not cure it. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir. 2000) (citation omitted). No pleading will change the fact that
Defendants are not state actors. So any amendment would be futile.
* * *
Hardie’s motion to have the U.S. Marshal effectuate service is denied
as moot. “The hallmark of a moot case or controversy is that the relief
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sought can no longer be given or is no longer needed.” Martin-Trigoa v.
Shiff, 702 F.2d 380, 386 (2d Cir. 1983). Because the Court recommends
dismissal, there is no longer a controversy. And thus, this Court cannot
compel the U.S. Marshal service to effectuate service.
IV. CONCLUSION
WHEREFORE, based on the findings above, it is
RECOMMENDED that the District Court:
1. DISMISS Hardie’s Complaint (Dkt. 1) in its entirety
WITHOUT PREJUDICE AND WITHOUT LEAVE TO
AMEND, and
2. DENY Hardie’s motion to have the U.S. Marshal effectuate
service (Dkt. 7) as MOOT.
And it is ORDERED that the Clerk of the Court serve a copy of this
Order and Report-Recommendation on Hardie by regular mail.2
In accordance with 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c),
the parties have 14 days within which to file written objections to the
foregoing report. Such objections shall be filed with the Clerk of the
Court. FAILURE TO OBJECT TO THIS REPORT WITHIN 14
DAYS WILL PRECLUDE APPELLATE REVIEW. See Roldan v.
2 The Clerk shall also provide Plaintiff with copies of all unreported decisions
cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per
curiam).
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Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of
Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72.
Dated: May 12, 2026
_______________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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Ford v. New York, Not Reported in Fed. Supp. (2019)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 8759423
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Kavon FORD, also known as Kavon Ford Ttee, Plaintiff,
v.
The State of NEW YORK, New York State Department of Corrections and Community Supervision, and
Anthony Annucci, Commissioner, NYS Department of Corrections and Community Supervision, Defendants.
9:19-CV-0380 (DNH/TWD)
|
Signed 04/29/2019
Attorneys and Law Firms
KAVON FORD, 15-A-2891, Plaintiff, pro se, Southport Correctional Facility, P.O. Box 2000, Pine City, NY 14871.
DECISION and ORDER
DAVID N. HURD, United States District Judge
I. INTRODUCTION
*1 This is an initial review of a civil complaint filed by pro se plaintiff Kavon Ford (“Ford” or “plaintiff”) Dkt. No. 1
(“Compl.”). Plaintiff has not paid the statutory filing fee for this action and seeks leave to proceed in forma pauperis. Dkt. No.
5 (“IFP Application”).
II. DISCUSSION
Where, as here, a plaintiff seeks leave to proceed in forma pauperis, the reviewing court must determine whether the plaintiff
has demonstrated sufficient economic need to proceed without prepaying, in full, the $400.00 filing fee.
“28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court without prepayment of the filing fee
that would ordinarily be charged.” Cash v. Bernstein, No. 09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010).
“Although an indigent, incarcerated individual need not prepay the filing fee ... at the time of filing, he must subsequently pay the
fee, to the extent he is able to do so, through periodic withdrawals from his inmate accounts.” Id. (citing 28 U.S.C. § 1915(b)).
In addition, the court must also determine whether the three-strikes provision of 28 U.S.C. § 1915(g) bars the plaintiff from
proceeding in forma pauperis and without prepayment of the filing fee. Section 1915(g) provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under
this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility,
brought an action or appeal in a court of the United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is
under imminent danger of serious physical injury.
28 U.S.C. § 1915(g).
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Finally, if the plaintiff is indigent and not barred by § 1915(g)’s three-strikes provision, the reviewing court must also consider
whether the causes of action stated in the complaint are, inter alia, frivolous or malicious, or if they fail to state a claim upon
which relief may be granted. 28 U.S.C. § 1915(e)(2)(B); see also 28 U.S.C. § 1915A(b)(1).
Ford has demonstrated sufficient economic need and has filed the inmate authorization form required in the Northern District
of New York. Dkt. Nos. 3, 5. Accordingly, the Court must determine whether plaintiff has three strikes and, if so, whether he
is entitled to invoke the imminent danger exception to that rule. See 28 U.S.C. § 1915(g).
A. Determination of “Three Strikes”
As an initial matter, a court performing a “three strikes” analysis must determine the date on which the plaintiff “brought”
the action for purposes of 28 U.S.C. § 1915(g). Under the “prison mailbox rule,” the date of filing is deemed to be the date
that the prisoner–plaintiff delivered his complaint to a prison guard for mailing. In turn, that date of delivery to a prison guard
is ordinarily presumed to be the date that the complaint was signed. See, e.g., Houston v. Lack, 487 U.S. 266, 276 (1988).
Accordingly, Ford “brought” this action on March 25, 2019.
*2 However, a review of Ford's litigation history reveals that he had already acquired three strikes for purposes of 28 U.S.C.
§ 1915(g) by that date. 1 As relevant here, at least three of plaintiff's previous civil actions were dismissed as frivolous and/or
for failure to state a claim upon which relief could be granted. Ford v. The State of New York, et al., No. 9:16-CV-0237 (MAD/
TWD), Decision and Order, Dkt. No. 7 (N.D.N.Y. April 7, 2016) (dismissing plaintiff's civil rights action for failure to state
a claim upon which relief may be granted) 2 ; Ford v. The City of New York, et al., No. 1:16-CV-6460, Order of Dismissal,
Dkt. No. 9 (S.D.N.Y. Dec. 23, 2016) (dismissing plaintiff's civil rights action for failure to state a claim upon which relief may
be granted); and Ford v. Bluestem Brands Inc., No. 7:18-CV-2695, Opinion & Order, Dkt. No. 29 (S.D.N.Y. March 5, 2019)
(dismissing plaintiff's action for violations of the Fair Debt Collection Practices Act and the Telephone Consumer Protection
Act and breach of contract for failure to state a claim upon which relief may be granted). 3
Therefore, unless it appears that the imminent danger exception to the three strikes rule is applicable in this action, Ford may
not proceed with this action without paying the filing fee.
B. The Imminent Danger Exception
Congress enacted the imminent danger exception as a “safety valve” to prevent impending harms to prisoners otherwise barred
from proceeding in forma pauperis. Malik v. McGinnis, 293 F.3d 559, 563 (2d Cir. 2002).
“[F]or a prisoner to qualify for the imminent danger exception, the danger must be present when he files his complaint—in
other words, a three-strikes litigant is not excepted from the filing fee if he alleges a danger that has dissipated by the time a
complaint is filed.” Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009) (citation omitted); see also Polanco v. Hopkins, 510
F.3d 152, 155 (2d Cir. 2007) (stating that imminent danger claims must be evaluated at the time the complaint is filed, rather
than at the time of the events alleged).
Importantly, though, section 1915(g) allows a three-strikes litigant to proceed in forma pauperis only when there exists an
adequate nexus between the claims he seeks to pursue and the imminent danger he alleges. Pettus, 554 F.3d at 296. In deciding
whether such a nexus exists, the Second Circuit has instructed the courts to consider “(1) whether the imminent danger of
serious physical injury that a three-strikes litigant alleges is fairly traceable to unlawful conduct asserted in the complaint, and
(2) whether a favorable judicial outcome would redress that injury.” Id. at 298-99.
Generally speaking, the allegations relevant to the “imminent danger” inquiry “are those in which [the plaintiff] describes
physical injury, threats of violence, and deprivation of medical treatment.” Chavis v. Chappius, 618 F.3d 162, 165 (2d Cir.
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2010). Under this exception, an inmate who has had three prior strikes must show that he was under imminent danger at the
time of filing in order to proceed in forma pauperis, but the exception does not provide a basis to avoid application of the three
strikes on the basis of past harm. Malik, 293 F.3d at 562–63.
*3 The term “serious physical injury” in section 1915(g) is not defined. However, the Second Circuit has described the nature
of the Court's inquiry regarding imminent danger as follows: “although the feared physical injury must be serious, we should
not make an overly detailed inquiry into whether the allegations qualify for the exception, because § 1915(g) concerns only a
threshold procedural question, while [s]eparate PLRA provisions are directed at screening out meritless suits early on.” Chavis,
618 F.3d at 169-70 (quoting Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007)) (internal quotation marks omitted).
“[T]hough [a court] is obligated to draw the most favorable inferences that [a pro se plaintiff's] complaint supports, [the court]
cannot invent factual allegations that [the plaintiff] has not pled.” Id. Thus, “[a] court may find that a complaint does not satisfy
the ‘imminent danger’ exception if the complainant's ‘claims of imminent danger are conclusory or ridiculous.’ ” Id. (quoting
Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003)).
Ford's complaint is dated March 25, 2019 (see Compl. at 9) and therefore the claims relevant for the determination of “imminent
danger” are those surrounding this date. See Chavis, 618 F.3d at 171. In his complaint, plaintiff identifies the action as an “in rem
action” seeking relief concerning, inter alia, a maritime vessel under admiralty law. See generally, Compl. Plaintiff identifies
the property that is the subject of the action as the “Kavon Denzel Ford - Private Administrative Trust Estate” comprised of
securities and bonds. Compl. at 3. Plaintiff claims that defendants New York State Department of Community Supervision and
Corrections (“DOCCS”) and Anthony Annucci (“Annucci”) are “garnishees” and possess a lien on his property/estate. Id. at
3-4. Plaintiff seeks to assert his “proprietary right of action to enforce his priority lien against the subject property.” Id. at 8.
Construed liberally with the leniency that must be afforded to a pro se litigant, see Lucas v. Miles, 84 F.3d 532, 535 (2d
Cir. 1996), the allegations in Ford's complaint do not plausibly suggest that he was in imminent danger of serious physical
injury when he filed this action. Plaintiff has failed to plead facts sufficient to place him within the imminent danger exception
provided by Section 1915(g), which is available “[w]hen a threat or prison condition is real and proximate, and when the
potential consequence is ‘serious physical injury.’ ” Flemming v. Kemp, No. 09-CV-1185 (TJM/DRH), 2010 WL 3724031, at
*2 (N.D.N.Y. Aug. 19, 2010). As a result, plaintiff is barred from proceeding with this action in forma pauperis, and his IFP
Application is denied.
III. SUA SPONTE REVIEW OF PLAINTIFF'S COMPLAINT
Ordinarily, this would end the Court's analysis, and the action would be dismissed unless Ford pays the filing fee in full within
thirty (30) days of the date of this Decision and Order.
However, 28 U.S.C. § 1915(e)(2)(B) makes clear that, “[n]otwithstanding any filing fee, or any portion thereof, that may have
been paid, the court shall dismiss the case at any time if the court determines that – ... (B) the action ... (i) is frivolous or
malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
Similarly, Section 1915A(b) directs that a court must review any “complaint in a civil action in which a prisoner seeks redress
from a governmental entity or officer or employee of a governmental entity” and must “identify cognizable claims or dismiss
the complaint, or any portion of the complaint, if the complaint ... is frivolous, malicious, or fails to state a claim upon which
relief may be granted; or ... seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b).
*4 Of course, the Court also possesses the inherent power to sua sponte dismiss pro se complaint based on frivolousness. See,
e.g., Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (recognizing that district court has power
to sua sponte dismiss pro se complaint based on frivolousness notwithstanding fact that plaintiff has paid statutory filing fee).
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A. Standard of Review
When reviewing a complaint, the Court may look to the Federal Rules of Civil Procedure. Rule 8 of the Federal Rules of Civil
Procedure provides that a pleading which sets forth a claim for relief shall contain, inter alia, “a short and plain statement of
the claim showing that the pleader is entitled to relief.” See Fed. R. Civ. P. 8(a)(2).
The purpose of Rule 8 “is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file
a responsive answer, prepare an adequate defense and determine whether the doctrine of res judicata is applicable.” Hudson v.
Artuz, No. 95 Civ. 4768, 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998) (quoting Powell v. Marine Midland Bank, No. 95-
CV-0063 (TJM), 162 F.R.D. 15, 16 (N.D.N.Y. June 23, 1995) (other citations omitted)).
A court should not dismiss a complaint if the plaintiff has stated “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 has 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, 556 U.S. 662, 678 (2009). While the court should construe the factual allegations in the light most favorable
to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550 U.S. at 555). Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-
me accusation.” Id. Thus, a pleading that contains only allegations which “are so vague as to fail to give the defendants adequate
notice of the claims against them” is subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104 (2d Cir. 2009).
B. Summary of the Complaint
The following facts are set forth as alleged by Ford in his Complaint. The within action is described as an “in rem” action to
“enforce a maritime lien as being a lien enforceable in admiralty.” Compl. at 2.
On June 26, 2015, Ford was convicted in Supreme Court, Bronx County of violations of N.Y. Penal Law § 120.07 (attempted
gang assault), § 160.10 (attempted robbery), and § 165.10 (auto stripping). Id. at 10-12. Plaintiff was sentenced to three and a
half years of confinement in DOCCS’ custody. 4 Id. At the time he was sentenced, a “contract of record” was executed resulting
in an encumbrance on Plaintiff's property, a lien, and judgment in favor of defendants DOCCS and Annucci. Id. at 2-3, 7. As
such, defendants are the garnishees and custodians of Plaintiff's property. Compl. at 8. The property is described as the “Kevon
Denzel Ford - Private Administrative Trust Estate” comprised of various securities and bonds. Id. at 3. Plaintiff is the principal
and claims that the trust is “registered as a state owned vessel and financial asset.” Id.
*5 Construed liberally, 5 Ford alleges that he has an “in rem proprietary right and secured claim” against the property and a
priority lien. Compl. at 5, 8. Plaintiff alleges that his property has been “tak[en] and constructively converted.” Id. at 6. Plaintiff
claims that he is entitled to the subject property and also seeks an award of money damages. Id. at 8-9. For a complete statement
of Plaintiff's claims and the facts he relies on in support of those claims, reference is made to the Complaint.
C. Analysis
Ford seeks to invoke federal jurisdiction over his admiralty and maritime claims under 28 U.S.C. § 1333. Compl. at 2.
While Ford refers to the trust as a “vessel,” a “vessel” includes every description of watercraft or other artificial contrivance
used, or capable of being used, as a means of transportation on water. 1 U.S.C.A. § 3. Here, the complaint lacks facts related to
maritime matters or any allegations supporting a maritime claim and thus, is subject to dismissal. See Nunez v. Atkinson, No.
4:13-CV-2744, 2014 WL 12526342, at *1-3 (D.S.C. Feb. 18, 2014) (dismissing prisoner's claims related to his trust and “in rem”
cause of action based upon the constructive taking of his property brought under admiralty law because the complaint lacked
any facts supporting a grounds for a maritime or admiralty claim); see also Scranton v. Dierker, No. 4:18-CV-504, 2018 WL
3643778, at *3 (E.D. Mo. Aug. 1, 2018) (dismissing action by prisoner to obtain possession and control over a trust described as
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the “vessel”); see Harris v. Harris, No. 1:17-CV-261 (TJM/ATB), 2017 WL 2640095, at *4 (N.D.N.Y. Mar. 9, 2017) (dismissing
the claim that the plaintiff's “trust” was a “vessel” in order to obtain federal jurisdiction as “both frivolous and malicious.”).
While pro se plaintiffs are generally afforded the opportunity to amend a complaint, an action is frivolous as a matter of law
when, inter alia, “the factual contentions are clearly baseless, such as when allegations are the product of delusion or fantasy.”
Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (internal quotation and citation omitted). Although
extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been
served and the parties have had an opportunity to respond, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983), the court
still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. See, e.g., Thomas v.
Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curiam) (holding that a district court has the power to dismiss a complaint sua
sponte if the complaint is frivolous).
*6 For the reasons stated supra, and because Ford's allegations are clearly baseless, the Complaint will be dismissed with
prejudice as frivolous under pursuant to 28 U.S.C. §§ 1915A and 1915(e)(2)(B).
IV. CONCLUSION
Therefore, it is
ORDERED that
1. Plaintiff's IFP Application (Dkt. No. 5) is DENIED pursuant to 28 U.S.C. § 1915(g) because plaintiff has “three strikes” and
is not entitled to the “imminent danger” exception;
2. This action is DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(A) for failure to state a claim upon which relief
may be granted, without leave to replead; and
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2019 WL 8759423
Footnotes
1 Ford's litigation history is available for review using the Federal Judiciary's Public Access to Court Electronic Records
(“PACER”) Service. See U.S. Party/Case Index <http://pacer.uspci.uscourts.gov/cgi-bin/dquery.pl> (last visited April
22, 2019).
2 The complaint in this action was dismissed with leave to replead. See Ford, No. 9:16-CV-0237, Dkt. No. 7 at 12. Plaintiff
was afforded the opportunity to submit an amended complaint curing the defects, but failed to do so. Id., Dkt. No. 9.
Dismissal for failure to file an amended complaint constitutes a strike. See Bontemps v. Harper, No. 2:13-CV-0506,
2016 WL 1339577, at *3 (E.D. Ca. April 5, 2016); see also Cruz v. Zwart, No. 9:13-CV-1287 (TJM/DEP), 2014 WL
4771664, at *4 (N.D.N.Y. Sept. 24, 2014).
3 The Court certified that, pursuant to 28 U.S.C. §§ 1915(a)(3), any appeal from the March 4, 2019 Opinion and Order
would not be taken in good faith. See Ford, No. 7:18-CV-2695, Dkt. No. 30; see also Eady v. U.S. Fed. Bureau of
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Ford v. New York, Not Reported in Fed. Supp. (2019)
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Prisons, 207 F. App'x 381 (5th Cir. 2006) (holding that the district court's dismissal of a prisoner's complaint under the
Federal Tort Claims Act counted as a strike under 1915(g)).
4 On August 18, 2017, a warrant was issued to detain Plaintiff for parole violations. Compl. at 13.
5 The Court is mindful of the Second Circuit's instruction that a pleading by a pro se litigant must be construed liberally
and interpreted to raise the strongest arguments that it suggests. See, e.g., Sealed Plaintiff v. Sealed Defendant, 537 F.3d
185, 191 (2d Cir. 2008) (“On occasions too numerous to count, we have reminded district courts” that a pro se plaintiff's
pleadings must be construed liberally); Phillips v. Girdich, 408 F.3d 124, 130 (2d Cir. 2005) (“We leave it for the district
court to determine what other claims, if any, [plaintiff] has raised. In so doing, the court's imagination should be limited
only by [plaintiff's] factual allegations, not by the legal claims set out in his pleadings.”); Burgos v. Hopkins, 14 F.3d
787, 790 (2d Cir. 1994) (“[W]e read [a pro se litigant's] supporting papers liberally, and will interpret them to raise the
strongest arguments that they suggest.”).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:26-cv-00538-ECC-MJK Document 8 Filed 05/12/26 Page 16 of 29

Kash v. Honey, 38 Fed.Appx. 73 (2002)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
38 Fed.Appx. 73
This case was not selected for publication in West's Federal Reporter.
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.
United States Court of Appeals, Second Circuit.
Harvey KASH, Carl Lanzisera, and Julia Gambino, Plaintiffs–Appellants,
v.
Thomas HONEY, Individually and in his Official Capacity, Frank Incantalupo,
Individually and in his Official Capacity, James Catterson, Individually and in his Official
Capacity, Patrick Mercurio, Individually and in his Official Capacity, Defendants,
A. Craig Purcell, Individually and in his Official Capacity, Defendant–Appellee,
Edward Manzello, Individually and in his Official Capacity, Defendant–Counter–Defendant–Appellee.
Docket No. 01–7794
|
April 11, 2002.
Synopsis
Protesters at local bar association's Law Day event brought § 1983 action against bar president and police officer. The United
States District Court for the Eastern District of New York, Thomas G. Platt, J., granted summary judgment for defendants, and
appeal was taken. The Court of Appeals held that: (1) president was not state actor; (2) officer did not use unreasonable force
when removing one protester; (3) officer's accidental elbowing of second protester was not violation of her substantive due
process rights; and (4) officer did not violate protesters' First Amendment rights.
Affirmed.
Procedural Posture(s): On Appeal; Motion for Summary Judgment.
West Headnotes (6)
[1] Civil Rights Attorneys and witnesses
Local bar association president could not be held liable under § 1983 for filing misdemeanor complaint against Law
Day protestor involved in altercation with police officer, absent showing of state action; president was private citizen,
and there was no evidence he conspired or acted jointly with officer. 42 U.S.C.A. § 1983.
4 Cases that cite this headnote
[2] Civil Rights Cooperation with state actor
Private person does not act jointly with state actor, and thus does not incur § 1983 liability, merely by swearing to
affidavit in accusatory instrument. 42 U.S.C.A. § 1983.
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Kash v. Honey, 38 Fed.Appx. 73 (2002)
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17 Cases that cite this headnote
[3] Search, Seizure, and Arrest Particular cases in general
Force used by police officer to restrain and remove protester from public event was objectively reasonable, under
Fourth Amendment, and thus did not give rise to § 1983 liability; officer did not strike protester, even though he
believed protester to be fighting back and attempting to grab his firearm, and he released protester after removing him
from room. U.S.C.A. Const.Amend. 4; 42 U.S.C.A. § 1983.
[4] Constitutional Law Neglect or delay
Municipal, County, and Local Government Arrest and detention; use of force
Police officer's unintentional elbowing of one protester's shoulder while attempting to restrain second protester did
not so shock conscience of court as to amount to substantive due process violation, and thus did not give rise to §
1983 liability. U.S.C.A. Const.Amend. 5; 42 U.S.C.A. § 1983.
1 Case that cites this headnote
[5] Constitutional Law Protests and Demonstrations in General
Municipal, County, and Local Government Police, Law Enforcement, and Public Safety
Police officer who removed protester could not be held liable under § 1983 for First Amendment violation absent
evidence that conflict arose due to protester's attempt to engage in expressive activity; protester claimed that his
movement toward Congressmen, which officer prevented, was not for purpose of speaking to them. U.S.C.A.
Const.Amend. 1; 42 U.S.C.A. § 1983.
[6] Constitutional Law Protests and Demonstrations in General
Municipal, County, and Local Government Arrest and detention; use of force
Police officer who elbowed protester in alleged retaliation for having been embarrassed at prior event could not be
held liable under § 1983 for First Amendment violation; officer's alleged motive was personal revenge, not deterrence
of protester's political expression. U.S.C.A. Const.Amend. 1; 42 U.S.C.A. § 1983.
*74 Appeal from the United States District Court for the Eastern District of New York, Thomas G. Platt, Judge.
Attorneys and Law Firms
Arthur V. Graseck, Jr., Islip Terrace, NY, for Appellant.
Kevin G. McMorrow; Joseph M. O'Connor; Ahmuty, Demers & McManus, Albertson, NY, for Appellee A. Craig Purcell.
Daniel J. Chepatis, Assistant Solicitor General; Michael S. Belohlavek, Deputy Solicitor General, of counsel, for Eliot Spitzer,
Attorney General of the State of New York, New York, NY, for Appellee Edward Manzello.
*75 Present OAKES, SACK, and BRIGHT, * Circuit Judges.
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Kash v. Honey, 38 Fed.Appx. 73 (2002)
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SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of said district
court, entered on February 21, 2001, be, and it hereby is, AFFIRMED.
Plaintiffs Harvey Kash, Carl Lanzisera, and Julia Gambino appeal from a judgment of the United States District Court for
the Eastern District of New York (Thomas G. Platt, Judge ) granting summary judgment to defendants A. Craig Purcell and
Edward Manzello.
The plaintiffs belong to Americans for Legal Reform (“ALR”), an organization that “seeks to bring about reform in the American
legal system through political means.” Compl. ¶ 18. They filed suit against the defendants under 42 U.S.C. § 1983 alleging
violations of their constitutional rights under the First, Fifth, and Fourteenth Amendments.
Kash alleges that on April 29, 1996, at the Suffolk County Bar Association's annual “Law Day,” defendant Edward Manzello,
a security officer employed by the Suffolk County Unified Court System, employed excessive force against him in the course
of preventing him from walking in the direction of Congressmen Rick Lazio and Michael Forbes, speakers at Law Day. He
further alleges that, thereafter, defendant A. Craig Purcell, then president of the Suffolk Bar Association, maliciously caused to
be filed a false misdemeanor complaint against him charging him with disorderly conduct; and that Purcell thereby intended,
inter alia, to penalize Kash for attempting to exercise his First Amendment rights.
Gambino asserts that while attempting to extricate Kash from Manzello's restraint, Manzello elbowed her in the shoulder a few
times. She conceded in her deposition that these strikes were “[n]ot intentional.” Lanzisera alleges that sometime earlier on Law
Day, as he passed by Manzello, Manzello elbowed him intentionally. Lanzisera speculates that Manzello did this because of an
incident that occurred one year earlier. Lanzisera had been demonstrating at a courthouse, and Manzello took his sign. Lanzisera
complained to Manzello's superior, who returned the sign to Lanzisera. This incident, Lanzisera believes, embarrassed Manzello.
The plaintiffs bring their claims under 42 U.S.C. § 1983. They therefore must establish that the defendants deprived them of
rights “secured by the Constitution or laws of the United States,” and that they did so “under color of state law.” American Mfrs.
Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999).
I. The Claim Against Purcell
[1] The plaintiffs' sole allegation against Purcell is that he “maliciously, for purpose or purposes personal to him, including
the purpose of penalizing plaintiff KASH for exercising his First Amendment rights ... falsely charged HARVEY KASH in an
accusatory instrument.” Compl. ¶ 14.
The plaintiffs do not dispute that Purcell is a private attorney or that the Suffolk County Bar Association is a private not-for-
profit organization that receives no governmental funding of any kind. The acts of private attorneys are not deemed to be “under
color of state law,” see *76 Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir.1975), and “an otherwise private person acts ‘under
color of’ state law” only if he or she “conspir[es] with state officials to deprive another of federal rights.” Tower v. Glover, 467
U.S. 914, 920, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984).
The evidence shows that before the Law Day program began, Manzello informed Purcell that he had been assigned to provide
security to certain judges there. No evidence suggests that Purcell conspired or acted jointly with Manzello. No evidence suggests
that Purcell knew that the plaintiffs would be attending the Law Day program. The plaintiffs contend that Manzello and Purcell
discussed ALR before Law Day, but they point to no evidence in the record to support that contention. A conclusory allegation
that a private person acted jointly with a state actor fails to state a claim under § 1983, see Spear v. Town of W. Hartford, 954
F.2d 63, 68 (2d Cir.1992); a fortiori it fails to defeat a motion for summary judgment.
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Kash v. Honey, 38 Fed.Appx. 73 (2002)
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[2] Purcell also did not act jointly with a state actor merely by swearing to an affidavit in an accusatory instrument. Private
misuse of an otherwise valid state statute is not state action. Dahlberg v. Becker, 748 F.2d 85, 90 (2d Cir.1984). Because none
of Purcell's alleged conduct can be deemed “fairly attributable to the State,” Spear, 954 F.2d at 68 (internal quotation marks and
citations omitted), Purcell did not act “under color of state law” and therefore is not subject to § 1983 liability.
II. The Claims Against Manzello
[3] To analyze excessive-force claims, we begin by “identifying the specific constitutional right allegedly infringed by the
challenged application of force.” Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). “ ‘[I]f a
constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must
be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.’ ” County
of Sacramento v. Lewis, 523 U.S. 833, 843, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (quoting United States v. Lanier, 520 U.S.
259, 272 n. 7, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997)).
Because Manzello's alleged use of force against Kash took place during a brief “seizure,” we apply the Fourth Amendment's
“reasonableness” standard and ask whether his “actions [were] ‘objectively reasonable’ in light of the facts and circumstances
confronting [him], without regard to [his] underlying intent or motivation.” Graham, 490 U.S. at 397, 109 S.Ct. 1865.
Manzello, according to a police report he filed, perceived Kash's movement in the direction of Congressmen Forbes and Lazio
as a threat. He responded by obstructing Kash's path with his back turned toward Kash. Kash does not dispute that he found
his path obstructed by Manzello's back. He also does not dispute that after allegedly tapping Manzello on the shoulder and
then speaking to Manzello in a loud voice, he attempted to maneuver himself past Manzello. Manzello then restrained Kash
and removed him from the meeting hall. He did not strike Kash, even though Manzello believed Kash to be fighting back
and attempting to grab his firearm. After successfully removing Kash from the room, Manzello released him. Deferring to the
“judgment of [a] reasonable officer[ ] on the scene,” who “reasonably, but mistakenly, believed that a suspect was likely to fight
back,” Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 2158, 150 L.Ed.2d 272 (2001), no reasonable jury could conclude that
this brief and minimal use of force against Kash was objectively unreasonable.
*77 [4] Manzello's alleged uses of excessive force against Gambino and Lanzisera did not take place during a seizure. We
therefore analyze them under the substantive due-process rubric, see County of Sacramento, 523 U.S. at 843–44, 118 S.Ct. 1708,
and ask whether Manzello's conduct “shocks the conscience,” see id. at 846–47, 118 S.Ct. 1708 (collecting cases). Manzello
unintentionally elbowed Gambino in the shoulder while attempting to restrain Kash. He allegedly also intentionally elbowed
Lanzisera. Neither sustained any injury. No reasonable jury could conclude that this conduct “shocks the conscience.” See id.
[5] [6] Finally, the plaintiffs' First Amendment retaliation claims fail because they introduced no evidence that the alleged
actions of Purcell and Manzello were motivated by their exercise of First Amendment rights. See Curley v. Vill. of Suffern,
268 F.3d 65, 73 (2d Cir.2001). In fact, the plaintiffs do not assert that they intended to or did engage in any expressive activity
at the Law Day program. Kash testified that it was a coincidence that he had been walking in the direction of Congressmen
Forbes and Lazio; he had intended only to get a cup of coffee from the refreshments table, not to speak to them or anyone
else. Lanzisera speculates that Manzello elbowed him to retaliate for the alleged embarrassment that Lanzisera caused him on a
previous occasion. Even if true, this would suggest the motive of personal vengeance. It would not raise a reasonable inference
that Manzello intended to punish Lanzisera in order to deter the expression of ALR's views.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
All Citations
38 Fed.Appx. 73
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Kash v. Honey, 38 Fed.Appx. 73 (2002)
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Footnotes
* Of the United States Court of Appeals for the Eighth Circuit, sitting by designation.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 1:26-cv-00538-ECC-MJK Document 8 Filed 05/12/26 Page 21 of 29

McCluskey v. New York State Unified Court System, Not Reported in F.Supp.2d (2010)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2010 WL 2558624
Only the Westlaw citation is currently available.
This decision was reviewed by West editorial staff and not assigned editorial enhancements.
United States District Court,
E.D. New York.
Peter McCLUSKEY, Plaintiff,
v.
NEW YORK STATE UNIFIED COURT SYSTEM, Chief Judge Hon.
Jonathan Lippman, Gabor & Gabor, David Gabor, Hope Gabor, Defendants.
No. 10–CV–2144 (JFB)(ETB).
|
June 17, 2010.
Attorneys and Law Firms
Peter McCluskey, Lynbrook, NY, pro se.
Anne C. Leahey, New York State Attorney General's Office, Hauppauge, NY, Joan M. Faley, Labatte, Balkan, Colavita &
Contini, LLP, Garden City, NY, for Defendant.
ORDER
JOSEPH F. BIANCO, District Judge.
*1 Pro se plaintiff Peter McCluskey (“plaintiff”) filed a complaint on May 11, 2010 against the defendants, New York State
Unified Court System, Chief Judge Hon. Jonathan Lippman, Gabor & Gabor, David Gabor, and Hope Gabor (collectively
“defendants”). 1 The complaint purports to allege claims for deprivation of due process against the New York State Unified
Court System and claims for malpractice against the Gabor defendants. For the reasons that follow, the Court dismisses the
federal claims sua sponte, with prejudice, and declines to exercise supplemental jurisdiction over any state law claims plaintiff
is attempting to assert.
I. Background
A. Facts
Plaintiff's complaint invokes this Court's federal question jurisdiction pursuant to 28 U.S.C § 1331. Plaintiff's complaint alleges
that the Gabor defendants represented plaintiff in a prior lawsuit against Suffolk County Community College. (Compl.¶¶ 9,
12.) In that underlying suit, the action was dismissed by Justice J. Jones Jr., who held that the “alleged fraud was related to
breach of contract,” and that “a fraud claim could have been maintained if the plaintiff had sought special damages caused by
the fraudulent misrepresentation and not recoverable in a breach of contract.” (Id. ¶ 13.) Accordingly, plaintiff's fraud claims
against Suffolk Community College were dismissed.
Plaintiff thereafter filed a legal malpractice action against the Gabor defendants in the New York Supreme Court, Nassau
County, 07/2978, arising out of the underlying representation. (Id. ¶¶ 9, 14.) The complaint filed by plaintiff against the Gabor
defendants alleged malpractice for their failure to seek special damages and failure to appeal the dismissal of the underlying fraud
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McCluskey v. New York State Unified Court System, Not Reported in F.Supp.2d (2010)
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claim. (Id. ¶ 14.) On January 25, 2008, State Supreme Court Justice Honorable Arthur M. Diamond dismissed the malpractice
claim premised upon the Gabor defendants' failure to seek special damages because Justice Diamond found that “Gabor had
sufficiently submitted evidence of special damages”; however, plaintiff's malpractice claim premised upon the failure to appeal
the dismissal of the fraud claim was not dismissed. (Id. ¶ 16.)
On April 7, 2009, the New York State Appellate Division, Second Department, reversed in part Justice Diamond's order
and dismissed plaintiff's remaining malpractice claim, finding that plaintiff could not establish that the defendants committed
malpractice by failing to take an appeal from that order. McCluskey v. Gabor & Gabor, 61 A.D.3d 646, 876 N.Y.S.2d 162,
164 (App.Div.2009). (Id. § 18.) According to the complaint, Justice Diamond thereafter reversed the Appellate Division's
April 7, 2009 order's finding of law with respect to special damages. Specifically, plaintiff alleges that, on August 28, 2009,
Justice Diamond “adhered to his original determination” that the Gabor defendants had submitted adequate evidence of special
damages. 2 (See id. ¶ 19, 876 N.Y.S.2d 162.) Thus, Justice Diamond denied plaintiff's motion requesting reinstatement of the
claim against the Gabor defendants for failing to seek special damages. (Id. ¶ 20, 876 N.Y.S.2d 162.) Plaintiff appealed the
August 28, 2009 order, but was denied review by the Appellate Division. (Id. ¶¶ 21–22.) Plaintiff thereafter filed a notice
of appeal to the New York Court of Appeals, but the Court of Appeals dismissed that appeal. (Id. ¶ 23, 876 N.Y.S.2d 162.)
Specifically, plaintiff alleges that “[a]t a session of the court of appeals on April 6, 2010, Chief Judge Lippman presiding,
plaintiff's appeal was dismissed by the court on its own motion for the reason that an appeal from the December 23, 2009 order
was not within its jurisdiction”; further, plaintiff contends that Chief Judge Lippman “failed to take any administrative action
pursuant to his policy responsibility to address the alleged unconstitutional discrimination practiced against pro se litigants in
his lower courts.” (Id. ¶¶ 54–55.)
*2 Plaintiff then filed a motion, pursuant to New York C.P.L.R. § 5015(a)(5) and C.P.L.R. § 2221(e), for an order that would
“implement the appellate determination by reinstating the special damages claim.” (Id. ¶ 26, 876 N.Y.S.2d 162.) Plaintiff alleges
that, at the conference held to discuss plaintiff's motion, “Justice Diamond pressured plaintiff by intimidation to withdraw the
motion under the threat of sanctions.” (Id. ¶¶ 27, 29.) Plaintiff's motion was denied on August 28, 2009, on the grounds that the
Gabor defendants had submitted sufficient evidence of special damages in the underlying action. (Id. ¶ 30, 876 N.Y.S.2d 162.)
Plaintiff alleges that this ruling deprived him of due process, and further contends that he was discriminated against throughout
the proceedings because he was a pro se litigant. (Id. ¶¶ 31–36.)
As a second cause of action in the instant complaint, plaintiff alleges negligence and malpractice by the Gabor defendants.
Specifically, plaintiff alleges that the Gabor defendants, representing plaintiff in the underlying state court action, failed to seek
special damages or appeal the dismissal of the fraud allegations. (Id. ¶¶ 60–61.) These are the same claims raised by plaintiff
in his state court action against these defendants.
B. Procedural History
Plaintiff filed the instant action on May 11, 2010. By letter dated May 27, 2010, the Gabor defendants filed a letter requesting
a pre-motion conference in anticipation of filing a motion to dismiss the instant action based on the statute of limitations, res
judicata, and the Rooker–Feldman doctrine. By Order dated May 27, 2010, this Court ordered plaintiff to file a letter with the
Court addressing why the federal claims asserted in his complaint should not be dismissed by the Court sua sponte based on the
absolute immunity of Chief Judge Jonathan Lippman, the sovereign immunity afforded to the New York State Unified Court
System, and the lack of state action upon which to premise liability under 42 U.S.C. § 1983 and the Fourteenth Amendment
for defendants Gabor & Gabor, David Gabor, and Hope Gabor. By letter dated June 8, 2010, defendants Chief Judge Jonathan
Lippman and the New York State Unified Court System also requested a pre-motion conference in order to file a motion to
dismiss based on judicial immunity, sovereign immunity, and the Rooker–Feldman doctrine. Plaintiff responded to the Court's
Order by letter on June 7, 2010. The Court has fully considered plaintiff's submission, as well as the letter submissions of the
defendants.
II. Standard of Review
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McCluskey v. New York State Unified Court System, Not Reported in F.Supp.2d (2010)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
Courts are obliged to construe the pleadings of a pro se plaintiff liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185,
191 (2d Cir.2008); McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir.2004). If a liberal reading of the complaint “gives any
indication that a valid claim might be stated,” courts must grant leave to amend the complaint. Cuoco v. Moritsugu, 222 F.3d
99, 112 (2d Cir.2000).
*3 “An action is ‘frivolous' when either: (1) ‘the factual contentions are clearly baseless, such as when allegations are the
product of delusion or fantasy;’ or (2) ‘the claim is based on an indisputably meritless legal theory.’ ” Olushina v. Gonzalez,
No. 06–CV–4030 (JG), 2006 WL 2927158, at *2 (E.D.N.Y. Oct.11, 2006) (dismissing sua sponte § 1983 claim against defense
attorney for lack of state action) (quoting Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.1998)).
Similarly, a complaint fails to state a claim for which relief can be granted when it does not “allege a plausible set of facts
sufficient ‘to raise a right to relief above the speculative level.’ ” See Operating Local 649 Annuity Trust Fund v. Smith Barney
Fund Mgmt. LLC, 595 F.3d 86, 91 (2d Cir.2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007)). This standard does not require “heightened fact pleading of specifics, but only enough facts to state a
claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see also Peterec–Tolino v. N.Y., No. 08–4732–cv, 2010
WL 445643, at *1–2 (2d Cir. Feb.8, 2010) (summary order) (affirming district court's sua sponte dismissal of § 1983 claims
because, inter alia, certain defendants were not state actors).
“[A]ny party or the court sua sponte, at any stage of the proceedings, may raise the question of whether the court has subject
matter jurisdiction.” United Food & Commercial Workers Union, Local 919, AFL–CIO v. Center Mark Prop. Meriden Square,
Inc., 30 F.3d 298, 301 (2d Cir.1994) (quoting Manway Constr. Co. v. Horn. Auth. of Hartford, 711 F.2d 501, 503 (2d Cir.1983)
(internal quotation omitted)). Courts may also dismiss sua sponte claims that are barred by sovereign immunity or judicial
immunity. Matter of Application of the Camardo Law Firm, P.C. v. Dep't of the Army, No. 5:09–CV–654 (FJS/GHL), 2010 WL
1935868, at *2 (N.D.N.Y. May 11, 2010) (“Although the parties do not address this point, the Court, at any time, can sua sponte
raise the issue of subject matter jurisdiction or sovereign immunity.” (citing Grupo Dataflux v. Atlas Global Group, L.P., 541
U.S. 567, 593, 124 S.Ct. 1920, 158 L.Ed.2d 866 (2004) and Warren v. United States, No. 06–CV–0226S, 2009 WL 1663991,
at *2 (W.D.N.Y. June 15, 2009)). Finally, it is not inappropriate for a court to dismiss a claim under Section 1983 where there
is no conceivable basis to find that the defendant was a state actor. See Sommer v. Rankin, 449 F.Supp. 66, 67 (E.D.N.Y.1978)
(“In this case, the claim of state action, which is essential to the invocation of [§ ] 1983, is clearly frivolous. This court cannot
believe that the Court of Appeals intended that sua sponte dismissal should be avoided even in cases such as this, where there
is no conceivable basis for liability under § 1983. Accordingly, the court is of the opinion that in this particular case, such
dismissal would not be inappropriate.”); see also Walton v. Breeyear, No. 9:05–CV–0194 (LEK/DEP), 2007 WL446010, at *5
n. 12 (N.D.N.Y. Feb. 8, 2007); Mendlow v. Seven Locks Facility, 86 F.Supp.2d 55, 59 n. 1 (D.Conn.2000).
III. Discussion
*4 The Court liberally construes plaintiff's pro se complaint to attempt to assert a Fourteenth Amendment Due Process claim
pursuant to § 1983 against each of the defendants, as well as a state law malpractice and negligence claim against the Gabor
defendants. The Court addresses each in turn.
A. Section 1983 Due Process Claims
Section 1983 of Title 42 of the United States Code provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ...
subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.
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See 42 U.S.C. § 1983.
Thus, to state a claim under Section 1983, a plaintiff must allege two elements: (1) the defendant acted under color of state law;
and (2) as a result of the defendant's actions, the plaintiff suffered a deprivation of his rights or privileges as secured by the
Constitution of the United States. See Annis v. County of Westchester, 136 F.3d 239, 245 (2d Cir.1998). Here, plaintiff alleges due
process violations under the Fourteenth Amendment by New York State Court of Appeals Chief Judge Jonathan Lippman, by
the New York State Unified Court System, and by the Gabor defendants. The Court examines plaintiff's federal claims against
each of these defendants in turn and determines that plaintiff's claims must be dismissed.
1. The Claims Against Chief Judge Jonathan Lippman
Under the doctrine of absolute judicial immunity, judges are subject to suit only for: (1) “non-judicial actions, i.e., actions not
taken in the judge's judicial capacity;” or (2) “actions, though judicial in nature, taken in the complete absence of all jurisdiction.”
Mireles v. Waco, 502 U.S. 9, 11–12, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991) (internal citations omitted); see Stump v. Sparkman,
435 U.S. 349, 355–56, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). This absolute “judicial immunity is not overcome by allegations
of bad faith or malice,” nor can a judge “ ‘be deprived of immunity because the action he took was in error ... or was in excess
of his authority.’ ” Mireles, 502 U.S. at 11, 12 (quoting Stump, 435 U.S. at 356).
Here, plaintiff fails to allege any actions by Chief Judge Lippman that were performed in his personal capacity or that were
performed outside the scope of his jurisdiction. The only allegations against Chief Judge Lippman in the complaint state that
“[a]t a session of the court of appeals on April 6, 2010, Chief Judge Lippman presiding, plaintiff's appeal was dismissed by the
court on its own motion for the reason that an appeal from the December 23, 2009 order was not within its jurisdiction,” and
that Chief Judge Lippman “failed to take any administrative action pursuant to his policy responsibility to address the alleged
unconstitutional discrimination practiced against pro se litigants in his lower courts.” (Compl.¶¶ 54–55.)
*5 Although plaintiff alleges that the acts of Chief Judge Lippman “were outside the exercise of his judicial functions,” (PL's
Letter at 3), the actions that plaintiff alleges pertaining to Chief Judge Lippman are judicial actions, taken in his judicial capacity
as Chief Judge of the New York State Court of Appeals. In fact, the complaint acknowledges that “[t]he auspices of the Chief
Judge of the State Unified Court System include the supervision, administration and operation of State Courts in accordance
with the New York State Constitution.” (Id. ¶ 4.) Judges have traditionally enjoyed absolute immunity for damages arising out
of judicial acts performed in their judicial capacities. See Mireles v. Waco, 502 U.S. 9, 11–12, 112 S.Ct. 286, 116 L.Ed.2d 9
(1991); Fields v. Soloff, 920 F.2d 1114, 1119 (2d Cir.1990) (“A judge defending against a section 1983 suit is entitled to absolute
immunity from damages for actions performed in his judicial capacity.”); accord Perez v. Cuomo, No. 09–CV–1109 (SLT),
2009 WL 1046137, at *4 (E.D.N.Y. Apr.17, 2009). “[I]f the relevant action is judicial in nature, the judge is immune so long
as [the action] was not taken in the complete absence of jurisdiction.” Huminski v. Corsones, 396 F.3d 53, 75 (2d Cir.2004)
(citing Mireles, 502 U.S. at 11–12). Plaintiff's § 1983 claim against Chief Judge Lippman is plainly barred by the doctrine of
absolute judicial immunity because the claim concerns the Chief Judge's actions while presiding over a session of the Court
of Appeals on April 6, 2010. Specifically, plaintiff merely alleges that the Chief Judge dismissed plaintiff's appeal from the
December 23, 2009 order because it was determined to be outside the Court of Appeals' jurisdiction. Chief Judge Lippman's
actions constituted judicial acts well within his jurisdiction. Given a most liberal reading, plaintiff's claims against the defendant
judge cannot be sustained, and the § 1983 claim is dismissed as to Chief Judge Lippman.
2. The Claims Against the New York State Unified Court System
Plaintiff's complaint does not allege any specific allegations against the New York State Unified Court System. Nonetheless,
the Court construes plaintiff's complaint as attempting to state a claim for violation of his Fourteenth Amendment rights by the
New York State Unified Court System.
The Eleventh Amendment to the United States Constitution provides:
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The 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 Subjects of any Foreign State.
U.S. Const. amend. XI. “The reach of the Eleventh Amendment has ... been interpreted to extend beyond the terms of its text
to bar suits in federal courts against states, by their own citizens or by foreign sovereigns.” State Emples. Bargaining Agent
Coalition v. Rowland, 494 F.3d 71, 95 (2d Cir.2007) (quoting W. Mohegan Tribe & Nation v. Orange County, 395 F.3d 18, 20
(2d Cir.2004)). Absent a state's consent to suit or an express statutory waiver, the Eleventh Amendment bars federal court claims
against states. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). “Sovereign immunity
does not merely constitute a defense to monetary liability or even to all types of liability. Rather, it provides an immunity from
suit.” FMC v. S.C. State Ports Auth., 535 U.S. 743, 766, 122 S.Ct. 1864, 152 L.Ed.2d 962 (2002).
*6 As agencies or arms of the State of New York, its courts are immune from suit under the Eleventh Amendment. See Saint–
Fleur v. City of N.Y., No. 99 Civ. 10433(WHP)(AJP), 2000 WL 280328, at *2 (S.D.N.Y. Mar. 14, 2000) (collecting cases);
Fields v. Walthers, No. 94–CV–1659, 1997 WL 204308, at *2 (N.D.N.Y. Apr. 5, 1997) (“For Eleventh Amendment purposes,
governmental entities of the state that are considered ‘arms of the state’ receive Eleventh Amendment immunity.”). In a case
similar to the instant case, in which a plaintiff alleged several claims against New York state courts, a court in this district held
that sovereign immunity barred the action:
In the present case, New York State has not consented to suit. Moreover, lawsuits against state officers
acting [in] their official capacity and lawsuits against state courts are considered to be lawsuits against
the state. Will v. Mich. Dep't of State Police, 491 U.S. 58, 70–71, 109 S.Ct. 2304, 105 L.Ed.2d 45
(1989); Abrahams, 473 F.Supp.2d at 563 (citing Kentucky v. Graham, 473 U.S. 159, 169, 105 S.Ct. 3099,
87 L.Ed.2d 114 (1985); Al–Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir.1989)). Thus,
plaintiff's claims against New York State, its officers, and its courts may only proceed if they are brought
pursuant to a valid Congressional abrogation of state immunity.
McNamara v. Kaye, No. 06–CV–5169 (DLI)(CLP), 2008 WL 3836024, at *8 (E.D.N.Y. Aug. 13, 2008). This Court agrees with
that analysis. Accordingly, plaintiff's federal claims against the New York State Unified Court System are barred by sovereign
immunity, and must be dismissed. 3
3. The Claims Against the Gabor Defendants
An individual acts under color of state law when he or she exercises power “possessed by virtue of state law and made possible
only because the wrongdoer is clothed with the authority of state law.” Polk County v. Dodson, 454 U.S. 312, 317–18, 102
S.Ct. 445, 70 L.Ed.2d 509 (1981) (quoting United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941)). In the
instant action, it is clear from the allegations of the complaint that the Gabor defendants do not qualify as state actors within the
meaning of § 1983. To that end, it is axiomatic that neither public defenders, such as Legal Aid attorneys, nor court-appointed
counsel, nor private attorneys, act under the color of state law merely by virtue of their position. Polk County, 454 U.S. at 325
(stating that a “public defender does not act under color of state law when performing a lawyer's traditional functions as counsel
to a defendant in a criminal proceeding”); Grant v. Hubert, No. 09–CV–1051, 2009 WL 764559, at *1 (E.D.N.Y. Mar. 20, 2009)
(“It is well settled that private attorneys do not act under color of state law and are not state actors simply by virtue of their
state-issued licenses to practice law.”); see also Rodriguez v. Weprin, 116 F.3d 62, 65–66 (2d Cir.1997) (affirming dismissal
of § 1983 claim against court-appointed appellate attorney for alleged involvement in denial of speedy appeal and noting that
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“it is well-established that court-appointed attorneys performing a lawyer's traditional functions as counsel to defendant do not
act ‘under color of state law’ and therefore are not subject to suit under 42 U.S.C. § 1983” (collecting cases)). Thus, plaintiff's
claim is both frivolous—because the legal theory on which it is based is “indisputably meritless”—and fails to state a claim for
which relief can be granted because plaintiff cannot assert a plausible § 1983 claim against his attorney. See Kash v. Honey, 38 F.
App'x 73, 75–76 (2d Cir.2002) (concluding that there was no state action by a private lawyer who plaintiff alleged “maliciously,
for purpose or purposes personal to him, including the purpose of penalizing [plaintiff] for exercising his First Amendment
rights ... falsely charged [plaintiff] in an accusatory instrument”); Licari v. Voog, No. 08–4920–pr, 2010 WL 1647456, at *1
(2d Cir. Apr.26, 2010) (affirming district court's sua sponte dismissal of § 1983 claim against defense attorney because claim
was frivolous under § 1915(e)(2)(B)(i)).
*7 Plaintiff argues that the complaint does not premise liability for the Gabor defendants under 42 U.S.C. § 1983, but rather
alleges that the action is brought under the Fourteenth Amendment. However, the Fourteenth Amendment “applies to acts of
the states, not to acts of private persons or entities.” Rendell–Baker v. Kohn, 457 U.S. 830, 837–38, 102 S.Ct. 2764, 73 L.Ed.2d
418 (1982). Accordingly, if plaintiff's claims against the Gabor defendants are not brought under § 1983, there is still no basis
for relief. Thus, any purported federal claims against the Gabor defendants are dismissed because none of the Gabor defendants
was a state actor. 4
B. State Law Claims
Having determined that plaintiff's federal claims do not survive defendants' motions to dismiss, the Court concludes that
retaining jurisdiction over any state law claims is unwarranted. 28 U.S.C. § 1367(c)(3); United Mine Workers of Am. v. Gibbs,
383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). “In the interest of comity, the Second Circuit instructs that ‘absent
exceptional circumstances,’ where federal claims can be disposed of pursuant to Rule 12(b)(6) or summary judgment grounds,
courts should ‘abstain from exercising pendent jurisdiction.’ ” Birch v. Pioneer Credit Recovery, Inc., No. 06–CV–6497T, 2007
WL 1703914, at *5 (W.D.N.Y. June 8, 2007) (quoting Walker v. Time Life Films, Inc., 784 F.2d 44, 53 (2d Cir.1986)).
Therefore, in the instant case, the Court, in its discretion, “ ‘decline[s] to exercise supplemental jurisdiction’ “ over plaintiff's
state law claims because “it ‘has dismissed all claims over which it has original jurisdiction.’ “ Kolari v. N.Y.-Presbyterian
Hosp., 455 F.3d 118, 122 (2d Cir.2006) (quoting 28 U.S.C. § 1367(c)(3)); see also Cave v. E. Meadow Union Free Sch. Dist.,
514 F.3d 240, 250 (2d Cir.2008) (“We have already found that the district court lacks subject matter jurisdiction over appellants'
federal claims. It would thus be clearly inappropriate for the district court to retain jurisdiction over the state law claims when
there is no basis for supplemental jurisdiction.”); Karmel v. Claiborne, Inc., No. 99 Civ. 3608(WK), 2002 WL 1561126, at *4
(S.D.N.Y. July 15, 2002) (“Where a court is reluctant to exercise supplemental jurisdiction because of one of the reasons put
forth by § 1367(c), or when the interests of judicial economy, convenience, comity and fairness to litigants are not violated by
refusing to entertain matters of state law, it should decline supplemental jurisdiction and allow the plaintiff to decide whether
or not to pursue the matter in state court.”).
Accordingly, pursuant to 28 U.S.C. § 1367(c)(3), the Court declines to retain jurisdiction over any remaining state law claims
given the absence of any federal claims that survive.
IV. Leave to Replead
The Court has considered affording plaintiff an opportunity to amend the complaint, For man v. Davis, 371 U.S. 178, 182, 83
S.Ct. 227, 9 L.Ed.2d 222 (1962), but declines to do so, finding that the deficiencies therein are not such that could be cured by
amending the complaint. O'Hara v. Weeks Marine, Inc., 294 F.3d 55, 69 (2d Cir.2002).
V. Conclusion
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*8 For the reasons set forth above, plaintiff's federal claims are dismissed sua sponte with prejudice, as they are barred by
the doctrines of judicial immunity, sovereign immunity, and the Rooker–Feldman doctrine. Furthermore, the Court declines to
exercise supplemental jurisdiction over plaintiff's purely state law claims in the absence of any federal claims.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2010 WL 2558624
Footnotes
1 For ease of reference, Gabor & Gabor, David Gabor, and Hope Gabor are referred to collectively as the “Gabor
defendants.”
2 Plaintiff's complaint does not make it clear how Justice Diamond's August 28, 2009 opinion was inconsistent with the
Appellate Division's decision. Upon review of the Appellate Division's opinion, it appears that the Appellate Division
only reversed Justice Diamond's order insofar as it failed to dismiss plaintiff's claims against the Gabor defendants for
failure to pursue an appeal. Justice Diamond's August 28, 2009 Order noted this, specifically: “[c]ontrary to plaintiff's
argument, Justice Jones did not determine that defendants failed to offer evidence of special damages in the underlying
action. Rather, Justice Jones appears to have overlooked the evidence of plaintiff's taking the HB Studios course and its
relevance to the special damages issue. Perhaps because neither Justice Jones nor this court considered the HB Studios
course, the Appellate Division failed to discuss this evidence in granting summary judgment to defendants with respect
to the failure to appeal malpractice claim. Nevertheless, plaintiff has failed to establish that this court overlooked or
misapprehended any matter of fact or law which would change its prior determination with respect to the failure to offer
evidence of special damages malpractice claim.” (Gabor Defs.' Ex. E at 4.) Justice Diamond's opinion further notes “[a]s
a preliminary matter, the court notes that its granting of summary judgment to defendants with respect to the malpractice
claim based upon failure to offer evidence of special damages was not before the Appellate Division.” (Id. at 5.)
3 The cases cited by plaintiff on this issue are inapposite. Plaintiff relies on cases that involve judicial review of agency
factual findings and interpretations of statutes or regulations. See, e.g., Kurcsics v. Merchants Mut. Ins. Co., 49 N.Y.2d
451, 426 N.Y.S.2d 454, 403 N.E.2d 159 (N.Y.1980); N.Y. Times Co. v. City of N.Y. Comm'n on Human Rights, 41 N.Y.2d
345, 393 N.Y.S.2d 312, 361 N.E.2d 963 (N.Y.1977). Moreover, Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25
L.Ed.2d 287 (1970), discusses whether a state that terminates public assistance payments to a particular recipient without
affording him the opportunity for an evidentiary hearing prior to termination denies the recipient procedural due process
in violation of the Fourteenth Amendment. Id. at 255. Here, by contrast, plaintiff was not denied a hearing, but rather
was afforded several opportunities to be heard in court.
4 To the extent that plaintiff attempts to assert some other federal claim against the Gabor defendants, such a claim would
be barred by the Rooker–Feldman doctrine. Pursuant to the Rooker–Feldman doctrine, “lower federal courts lack subject
matter jurisdiction over a case if the exercise of jurisdiction over that case would result in the reversal or modification of
a state court judgment,” Hachamovitch v. DeBuono, 159 F.3d 687, 693 (2d Cir.1998) (discussing Rooker v. Fidelity Trust
Co., 263 U.S. 413, 415–16, 44 S.Ct. 149, 68 L.Ed. 362 (1923); and Dist. of Colombia Court of Appeals v. Feldman, 460
U.S. 462, 476, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983)), or if the federal claim asserted is “inextricably intertwined” with
an earlier state-court judgment, Abrahams v. Appellate Div. of Supreme Court, 473 F.Supp.2d 550, 555 (S.D.N.Y.2007)
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(citations omitted). Second Circuit and Supreme Court precedent instructs that four requirements must be met in order
for the Rooker–Feldman doctrine to apply:
First, the federal-court plaintiff must have lost in state court. Second, the plaintiff must “complain[ ] of injuries
caused by [a] state-court judgment[.]” Third, the plaintiff must “invit[e] district court review and rejection of [that]
judgment[ ].” Fourth, the state-court judgment must have been “rendered before the district court proceedings
commenced”-i.e., Rooker–Feldman has no application to federal-court suits proceeding in parallel with ongoing
state-court litigation.
Hoblock v. Albany County Bd. of Elections, 422 F.3d 77, 85 (2d Cir.2005) (quoting Exxon Mobil Corp. v. Saudi Basic
Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005)). In the present case, plaintiff seeks review of
the state courts' decisions regarding his malpractice claims against the Gabor defendants. Plaintiff's allegations against
the Gabor defendants largely reiterate the claims that plaintiff made against the Gabor defendants in the original state
court malpractice action, which was dismissed on the merits in state court. See McCluskey v. Gabor & Gabor, 61
A.D.3d 646, 876 N.Y.S.2d 162 (App.Div.2009); McCluskey v. Gabor & Gabor, 856 N.Y.S.2d 499 (Sup.Ct.2008); see
also (Gabor Defs.' Ex. E.). These allegations are an attempt by plaintiff to invite this Court to review and reject those
earlier state court judgments. Plaintiff's state law malpractice claims fit squarely within the boundaries of the Rooker–
Feldman doctrine. Accordingly, plaintiff's claims should also be dismissed on this ground.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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