Kulmann v. Biolo et al

Filing 10

RECOMMENDED RULING. ORDER granting 2 Motion for Leave to Proceed in forma pauperis and recommending dismissal of the 1 Complaint with prejudice. This is a recommended ruling by a magistrate judge. Fed. R. Civ. P. 72(b)(1); D. Conn. L. Civ. R. 72.1(C). If Plaintiff wishes to object to my recommendation, she must file that objection with the Clerk of the Court within nineteen days (by September 17, 2024). Signed by Judge Maria E. Garcia on 8/29/2024. (Cabral, D) Modified on 8/29/2024 (Gould, K).

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Linda Kulmann
a.k.a. Linda Ceniccola-Kulmann,

Civil No. 3:24-cv-01077-MPS

Plaintiff,
v.
Tracy Biolo, Waterbury Probate Court Chief
Clerk, Americo R. Carchia, Waterbury
Probate Judge

August 29, 2024

Defendants.
RULING ON MOTION AND REPORT AND RECOMMENDATION ON
INITIAL REVIEW
On June 21, 2024, Plaintiff Linda Kulmann 1, representing herself, filed a Complaint
against Defendants Waterbury Probate Court Chief Clerk Tracy Biolo and Waterbury Probate
Judge Americo R. Carchia making claims arising from Ms. Kulmann’s 2023 request to access
court records related to her disabled son. Pending is Plaintiff’s Motion for Leave to Proceed In
Forma Pauperis. IFP Mot., ECF No. 2. This case was referred to me by Chief Judge Michael P.
Shea for review of the Complaint pursuant to 28 U.S.C. § 1915. Referral Order, ECF No. 8.
When a plaintiff requests leave to proceed in forma pauperis, or “IFP,” a statute directs the
court to conduct two inquiries. First, the court examines her financial affidavit and determines
whether she is truly unable to pay the fee. 28 U.S.C. § 1915(a). Second, to ensure that the plaintiff
is not abusing the privilege of filing without prepaying the fee, the court reviews her complaint
and dismisses the case if it determines that “the action . . . is frivolous or malicious . . . [or] fails
to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B).

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Ms. Kulmann indicated in the case caption that she is also known as Linda Ceniccola-Kulmann.

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For the reasons that follow, the Court grants the Motion for Leave to Proceed In Forma
Pauperis and recommends dismissal of the Complaint without prejudice.
I.

The First Inquiry: Plaintiff’s Inability to Pay the Filing Fee
Plaintiff has filed a motion seeking to proceed without payment of fees and costs, along

with a financial affidavit. Plaintiff has fully completed the required information. She asserts that
she cannot afford to pay fees and costs. IFP Mot. at 1. Furthermore, she affirms that she is
unemployed, has no income other than about $200 of monthly assistance from her elderly mother,
receives SNAP benefits, and has only $120 of liquid assets. Id. at 3-5. Such allegations are
sufficient to establish that Plaintiff is unable to pay the ordinary filing fees required by the Court.
28 U.S.C. § 1915(a)(1). Accordingly, Plaintiff’s Motion for Leave to Proceed In Forma Pauperis
is GRANTED.
II.

The Second Inquiry: Review of the Complaint Under 28 U.S.C. § 1915(e)(2)(B)
Pursuant to § 1915(e), courts must review in forma pauperis complaints and dismiss any

complaint that “(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). A complaint is “frivolous” under the law when, among other things, it
“has no arguable basis in law or fact” or “is based on an indisputably meritless legal theory.”
Montero v. Travis, 171 F.3d 757, 759 (2d Cir. 1999). “A complaint will be dismissed as frivolous
when it is clear that the defendants are immune from suit.” Id. at 760 (internal quotation marks and
citations omitted). A complaint “fails to state a claim on which relief can be granted” when it lacks
“sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citation omitted). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

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inference that the defendant is liable for the misconduct alleged.” Id. Furthermore, “a court must
accept as true all of the allegations contained in the complaint [except] legal conclusions.
Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Id.
These rules are interpreted liberally in the case of a plaintiff like Ms. Kulmann who is
proceeding pro se—that is, without a lawyer. “Since most pro se plaintiffs lack familiarity with
the formalities of pleading requirements, we must construe pro se complaints liberally, applying a
more flexible standard to evaluate their sufficiency than we would when reviewing a complaint
submitted by counsel.” Lerman v. Bd. Of Elections, 232 F.3d 135, 139-40 (2d Cir. 2000). Courts
liberally construe pleadings and briefs submitted by self-represented plaintiffs, “reading such
submissions to raise the strongest arguments they suggest.” McLeod v. Jewish Guild for the Blind,
864 F.3d 154, 156 (2d Cir. 2017).
This leeway has limits, however. One limit is that the court may not fill the gaps in a pro
se plaintiff’s complaint by imagining facts that are not alleged. Chavis v. Chappius, 618 F.3d 162,
170 (2d Cir. 2010). If, even with the benefit of a liberal reading, the pro se plaintiff’s complaint
does not give “an indication that a valid claim might be stated” in an amended pleading, the Second
Circuit has advised that it should be dismissed with prejudice, meaning that it should be dismissed
without an opportunity to amend. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (affirming
denial of leave to amend because claims futile). Any claim dismissed on the ground of absolute
judicial immunity need not be given leave to amend. Mills v. Fischer, 645 F.3d 176, 177 (2d Cir.
2011).
A. The Complaint
In the Complaint, Plaintiff asserts intentional infliction of emotional distress claims and
constitutional claims under 42 U.S.C. § 1983 against Chief Clerk Biolo and Probate Judge Carchia,
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acting in their official capacities, alleging violations of her rights arising from her 2023 request to
access court records related to her disabled son. Compl., ECF No. 1. Reading her Complaint to
raise the strongest arguments it suggests, I interpret it to allege that Defendants violated her First
Amendment and common law right to open records by refusing to grant her access to court records
from a case to which she was a party, and that they violated her procedural due process rights by
depriving her of the opportunity to be heard as to her request for court records.
Plaintiff seeks injunctive relief requiring Judge Carchia to grant complimentary electronic
and paper access to the court record within one week, to be completed under penalty of perjury by
Chief Clerk Biolo. Id. at 7. Plaintiff also seeks to recover her legal costs and punitive damages. Id.
The following facts, taken from the Complaint, are accepted as true for the purposes of this
initial review.
On September 11, 2023, as a party to her intellectually disabled son’s case in Waterbury
Probate Court, Plaintiff made a written request for access to the court record. Id. at 4. Plaintiff
contacted the Waterbury Probate Court and was referred to Chief Clerk Biolo who handles
intellectual disability cases. Id. Biolo looked over the request and instructed Plaintiff to cite law to
support that she should be allowed to access the record. Id. Biolo stated the record is “confidential
like a medical record; would you want anyone looking through your medical record?” Id. Biolo
did not file the request. Id.
On September 27, 2023, Plaintiff returned to the Waterbury Probate Court with a new
document requesting the court record and citing case law. Id. The new request cited Probate Court
rules and procedures and Connecticut statutes “that allow [Plaintiff] to access the records.” Id. A
lawyer for the Probate Court addressed the request and required that Plaintiff “clean [the
document] up.” Id. Biolo, again, did not file the request. Id.

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Plaintiff’s third attempt to file a document requesting access to her son’s court record was
successful. Id. However, a hearing was then scheduled for November 10, 2023, on Veteran’s Day,
when the Court was closed. Id.
On February 17, 2024, Plaintiff mailed her request for access to her son’s court record to
the Waterbury Probate Court and sent certified copies to all interested parties. Id. Plaintiff
acknowledges that the certified copy she sent to the Office of Protection Advocacy was returned
due to an unknown address. Id.
The hearing was then rescheduled for April 5, 2024, and was subsequently marked off on
March 26, 2024. Id at 5.
Plaintiff then filed a motion to disqualify and a complaint to the Probate Review Council
for Judicial Misconduct “because judges are ultimately responsible for the staff that they hire to
work there.” Id.
On May 28, 2024, Plaintiff received a decree from Judge Carchia denying her request for
access to the record. Id. There was no hearing held and no statement of decision published. Id.
Plaintiff alleges that Judge Carchia and Ms. Biolo have caused her to experience anxiety and stress
by denying her requests for records and requiring her to cite law supporting her position. Id. at 6.
B. Discussion
1. Rooker-Feldman Doctrine Bars Plaintiff’s Equitable Claims
The Rooker-Feldman doctrine 2 bars federal district courts from hearing “cases that
function as de facto appeals of state-court judgments.” Sung Cho v. City of N.Y., 910 F.3d 639, 644
(2d Cir. 2018). For the Rooker-Feldman doctrine to bar a plaintiff’s claim, “(1) the federal-court
plaintiff must have lost in state court; (2) the plaintiff must complain of injuries caused by a state-

The doctrine is named for two Supreme Court cases, Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
2

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court judgment; (3) the plaintiff must invite district court review and rejection of that judgment;
and (4) the state-court judgment must have been rendered before the district court proceedings
commenced.” Id. at 645.
The Rooker-Feldman doctrine applies here to Plaintiff’s request for equitable relief seeking
the production of court records. First, Plaintiff lost in state probate court 3 on May 28, 2024, when
Judge Carchia denied her request for access to the record. Second, she alleges that she was injured
by the state court judgment. Third, the relief she requests seeks review and rejection of the state
court judgment. Fourth, the state court judgment was issued before June 21, 2024, when she filed
this lawsuit.
Accordingly, I conclude that the Rooker-Feldman doctrine precludes the exercise of federal
jurisdiction over Plaintiff’s claims for equitable relief 4 from Judge Carchia’s May 28, 2024 Order,
and I recommend that they be dismissed.
2. Defendant Waterbury Probate Judge Americo R. Carchia has Immunity from Section
1983 Claims Under the Common Law
It is well settled that judges are absolutely immune from suit for any actions taken within
the scope of their judicial responsibilities. See, e.g., Mireles v. Waco, 502 U.S. 9 (1991).
Although unfairness and injustice to a litigant may result on occasion, “it is a
general principle of the highest importance to the proper administration of justice
that a judicial officer, in exercising the authority vested in him, shall be free to act
upon his own convictions, without apprehension of personal consequences to
himself.”

Rooker-Feldman does not apply exclusively to state courts of general jurisdiction. See, e.g., Pelczar v. Kelly,
18-3833 (L), 795 Fed. App’x. 55, 57 (2d Cir. Feb. 11, 2020) (barring plaintiff from seeking an injunction to direct a
New York State Surrogate’s Court judge to undo a ruling admitting a will to probate and finding that certain property
was part of his father’s estate); Niles v. Wilshire Inv. Group, LLC, 859 F. Supp. 2d 308 (E.D.N.Y. 2012) (refusing to
void a stipulation of settlement entered in probate proceedings in New York State Surrogate’s Court).
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The equitable relief Plaintiff seeks is an order granting complimentary electronic and paper access to the
court record within one week, to be completed under penalty of perjury by Chief Clerk Biolo.
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Id. at 10 (quoting Bradley v. Fisher, 80 U.S. 335, 347 (1871)). The protection of immunity is not
pierced by allegations that the judge acted in bad faith or with malice, Pierson v. Ray, 386 U.S.
547, 554, (1967), even though “unfairness and injustice to a litigant may result on occasion,”
Mireles, 502 U.S. at 9. The United States Supreme Court has expressly applied the doctrine of
judicial immunity to actions brought pursuant to 42 U.S.C. § 1983. See Pierson, 386 U.S. at 547.
The Supreme Court has developed a two-part test for determining whether a judge is
entitled to absolute immunity. See Stump v. Sparkman, 435 U.S. 349, 356-57 (1978). First, “[a]
judge will not be deprived of immunity because the action he took was in error, was done
maliciously, or was in excess of his authority; rather, he will be subject to liability only when he
has acted in the ‘clear absence of all jurisdiction.’” Id. at 356-57 (quoting Bradley, 80 U.S. at 351);
see also Maestri v. Jutkolsky, 860 F.2d 50, 51, 53 (2d Cir. 1988) (finding no immunity where town
justice issued arrest warrant for conduct which took place within neither his town nor an adjacent
town, thereby acting in the absence of all jurisdiction).
Stump distinguished between an “excess of jurisdiction” and “the clear absence of all
jurisdiction over the subject matter.” 435 U.S. at 356-57 n.6 (quoting Bradley, 80 U.S. at 351).
Where there is clearly no jurisdiction over the subject-matter any authority
exercised is a usurped authority, and for the exercise of such authority, when the
want of jurisdiction is known to the judge, no excuse is permissible. But where
jurisdiction over the subject-matter is invested by law in the judge, or in the court
which he holds, the manner and extent in which the jurisdiction shall be exercised
are generally as much questions for his determination as any other questions
involved in the case, although upon the correctness of his determination in these
particulars the validity of his judgments may depend.
Id. Stump further explained that “the scope of the judge’s jurisdiction must be construed broadly
where the issue is the immunity of the judge.” Id. at 356.
Second, a judge is immune only for “acts performed in his ‘judicial’ capacity.” Stump, 435
U.S. at 360; see Gregory v. Thompson, 500 F.2d 59, 62 (9th Cir. 1974) (finding no immunity where
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judge assaulted litigant); cf. Idlibi v. Burgdorff, 23-838-cv, 23-7384-cv, 2024 U.S. App. LEXIS
15629, at *7 (2d Cir. June 27, 2024) (summary order) (holding that a judge’s alleged interference
with a parent’s legal filings in a child custody proceeding and alleged failure to properly notify the
parent about the proceedings were “judicial in nature and function” and therefore not subject to
suit).
Courts have applied the doctrine with equal force to both federal law claims and
Connecticut state law claims, as well as to claims involving judges in courts of limited jurisdiction.
Gross v. Rell, 585 F.3d 72 (2d Cir. 2009) (holding that a Connecticut probate judge is entitled to
judicial immunity under Connecticut and federal common law).
Here, Plaintiff takes issue with Judge Carchia’s alleged actions and omissions within the
scope of his duties. The allegations are that Judge Carchia’s Order denying her access to court
records was incorrect, not that he overstepped his jurisdictional authority as a Probate Judge.
Nothing in the Complaint suggests that Judge Carchia acted in the “clear absence of all
jurisdiction” or outside his judicial capacity.
In summary, the doctrine of absolute judicial immunity bars all Section 1983 claims against
Judge Carchia. Therefore, I recommend that the Court dismiss Plaintiff’s Section 1983 claims
against Judge Carchia because they seek monetary relief against a defendant who is immune from
such relief, 28 U.S.C. § 1915(e)(2)(B)(iii), and frivolously state claims against an absolutely
immune defendant, 28 U.S.C. § 1915(e)(2)(B)(i), see also Mills v. Fischer, 645 F.3d 176, 177 (2d
Cir. 2011) (“Any claim dismissed on the ground of absolute judicial immunity is ‘frivolous’ for
purposes of [the in forma pauperis statute]”).

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3. Defendant Chief Clerk Tracy Biolo has Immunity from Section 1983 Claims Under
the Common Law
Judicial immunity extends beyond judges to also generally preclude claims against judicial
branch employees. See Rodriguez v. Weprin, 116 F.3d 62 (2d Cir. 1997) (holding a state appellate
court’s chief clerk to be absolutely immune from a suit alleging he denied the plaintiff’s right of
access to the courts and court documents in the plaintiff’s criminal case). In Rodriguez, 116 F.3d
at 66, the Second Circuit reasoned that “the same policies underlying immunity for judges also
justify a similar grant of immunity to clerks for performance of tasks which are judicial in nature
and an integral part of the judicial process.”
Biolo, as the chief clerk of the court, is a judicial officer and is thus entitled to immunity
for actions taken in performance of a judicial function. As with Judge Carchia, Plaintiff accuses
Chief Clerk Biolo of violating Plaintiff’s First Amendment and common law right to open records
and her procedural due process rights by depriving her of the opportunity to be heard as to her
request for court records. Specifically, Plaintiff accuses Biolo of failing to file documents which
Plaintiff provided to her.
“A court’s inherent power to control its docket is part of its function of resolving disputes
between parties”, and actions taken by court staff in furtherance of docket control are part of that
judicial function. Id. at 66-67 (holding that a claim that “the court clerks violated [the plaintiff's]
due process rights by failing to properly manage the court calendar” was barred by judicial
immunity”); see also Peker v. Steglich, 07-2379-cv, 324 F. App'x 38, 40 (2d Cir. 2009) (holding
that a clerk’s act of filing exhibits was “basic and integral to the judicial function”); Charles v.
O’Garro, No. 3:18-cv-00729 (SRU), 2018 U.S. Dist. LEXIS 97419 (D. Conn. June 11, 2018)
(holding that a clerk refusing to accept and file a notice of appearance is performing an act “in
furtherance of docket control” and is therefore immune from suit); Argentieri v. Clerk of Court for
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Judge Kmiotek, 420 F. Supp. 2d 162, 164-65 (W.D.N.Y. 2006) (holding that a clerk refusing to
acknowledge a plaintiff’s motions and refusing to schedule his court proceedings was “assisting
judges in performing essential judicial functions” and is therefore entitled to absolute immunity);
Ceparano v. Southampton Justice Court, No. 2:09-cv-00423 (SJF)(AKT), 2010 U.S. Dist. LEXIS
152448, at *8 (E.D.N.Y. Mar. 21, 2010), report and recommendation adopted, 2010 U.S. Dist.
LEXIS 152445 (E.D.N.Y. May 12, 2010), aff’d, 10-2958-pr, 404 F. App’x 537 (2d Cir. Jan. 5,
2011) (holding that a clerk’s act of entering an erroneously-issued warrant into the system was
shielded by judicial immunity). By refusing to disclose medical records from a court’s docket,
Biolo performed a judicial function, and these actions which pertain to docket control are thus
covered by judicial immunity.
For the same reasons as with Judge Carchia, and because they state a claim against a
judicial branch employee for acts which are undertaken in performance of a judicial function, I
recommend that Plaintiff’s claims under Section 1983 against Biolo be dismissed. Plaintiff should
not be granted leave to amend the Complaint because amendment would be futile in the face of
the aforementioned barriers to suit.
4. The Remaining Claims Against Both Defendants for Intentional Infliction of
Emotional Distress Do Not Merit Exercising Supplemental Jurisdiction
Because I recommend dismissing all of the federal claims against both defendants, I also
recommend dismissing the state law claim for intentional infliction of emotional distress. A district
court may, in its discretion, decline to exercise supplemental jurisdiction over a state law claim if
it has dismissed all claims over which it has original jurisdiction. 28 U.S.C. § 1367(c)(3). “Federal
courts most often ought to leave state issues to state courts as readily and as early in a proceeding
as possible.” Cohen v. Postal Holdings, LLC, 873 F.3d 394, 405 (2d Cir. 2017) (Calabresi, J.
concurring).
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There are many reasons why supplemental jurisdiction may appropriately be retained,
however, and the presence of such reasons may justify the exercise of supplemental jurisdiction
after the district court dismisses the federal claims. See Carnegie-Mellon University v. Cohill, 484
U.S. 343, 350 n.7, (1988) (listing “judicial economy, convenience, fairness, and comity” as
“factors to be considered under the [supplemental] jurisdiction doctrine”); Valencia ex rel. Franco
v. Lee, 316 F.3d 299, 308 (2d Cir. 2003) (the “interplay between the responsibilities imposed by
municipal law and those imposed by state law” may pose “complex questions . . . best left to the
courts of the state when the early disposition of all federal claims makes the federal court's
resolution of such state-law claims unnecessary”). “[I]n the usual case in which all federal-law
claims are eliminated before trial, the balance of factors to be considered under the pendent
jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward
declining to exercise jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ.,
484 U.S. at 350 n. 7; accord Kroshnyi v. U.S. Pack Courier Servs., 771 F.3d 93 (2d Cir. 2014); see
also Cohen, 873 F.3d at 405 (Calabresi, J. concurring) (“[A] district court ought not to exercise
supplemental jurisdiction over purely state-law claims [where all federal claims are dismissed]
unless there are strong reasons for doing otherwise.”).
Having concluded that Plaintiff has failed to plausibly allege a viable federal claim
pursuant to 42 U.S.C. § 1983, factors such as judicial economy, convenience, fairness, and comity
militate against the exercise of supplemental jurisdiction. Accordingly, I recommend that the court
decline to exercise supplemental jurisdiction over Plaintiff’s intentional infliction of emotional
distress claims or any other cognizable state law claims pursuant to 28 U.S.C. § 1367(c)(3).

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C. Conclusion
Accordingly, Plaintiff’s Motion for Leave to Proceed In Forma Pauperis is GRANTED
and the Court RECOMMENDS DISMISSAL of the complaint with prejudice pursuant to 28
U.S.C. § 1915(e)(2).
This is a recommended ruling by a magistrate judge. Fed. R. Civ. P. 72(b)(1); D. Conn. L.
Civ. R. 72.1(C). If Plaintiff wishes to object to my recommendation, she must file that
objection with the Clerk of the Court within nineteen days (by September 17, 2024). See Fed.
R. Civ. P. 72(b)(2) (allowing fourteen-day period for objecting to Magistrate Judge recommended
rulings); D. Conn. L. Civ. R. 72.2(a) (allowing five additional days for parties who, like Plaintiff,
receive notice of an order or recommended ruling by mail). If she does not do so, she may not
thereafter assign as error any claimed defect in this recommended ruling. D. Conn. L. Civ. R.
72.2(a). Failure to file a timely objection will also preclude appellate review. See 28 U.S.C. §
636(b)(1); Small v. Sec’y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (“[F]ailure to
object timely to a magistrate’s report operates as a waiver of any further judicial review of the
magistrate’s decision”).

Maria E. Garcia, USMJ
Hon. Maria E. Garcia
United States Magistrate Judge

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