Manko v. Steinhardt et al

Filing 10

MEMORANDUM AND ORDER. For the reasons set forth in the attached Memorandum and Order, and as the court previously advised plaintiff in its November 28, 2011 order 3 , the court(1) dismisses plaintiff's complaint and (2) denies as moot 5 plai ntiff's motion for an order directing the United States Marshals Service to serve the summons and complaint upon defendants; 6 plaintiff's motion for access to the PACER system; 7 8 defendants' motion for a pre-motion conference; and plaintiff's motions for an order to show cause, filed on 1/23/2012. The Clerk is respectfully requested to serve a copy of this Memorandum and Order on plaintiff and all parties not represented on ECF; note service in the docket by January 26, 2012; dismiss this action; enter judgment; and close this case. Ordered by Judge Kiyo A. Matsumoto on 1/24/2012. (Chang, Emily)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------X
NELLA MANKO,
Plaintiff,

MEMORANDUM AND ORDER

-against-

11-cv-5430(KAM)(LB)

MARSHA L. STEINHARDT, individually and
in her official capacity as Judge of
the Supreme Court of Kings County;
FITZSIMMONS, individually and in his
official capacity as Clerk of the
Supreme Court of Kings County; WARREN
GLASER, individually and in his official
capacity a Law Secretary of the Supreme
Court of Kings County; EILEEN MCLOUGHLIN,
individually and in her official
capacity as Court Reporter of the
Supreme Court of Kings County; BRUCE M.
BALTER, individually and in his official
capacity as Judge of the Supreme court
of Kings County; SUSAN K. WRIGHT,
individually and in her official
capacity as Court Reporter of the
Supreme Court of Kings County; KINGS
COUNTY SUPREME COURT OF THE STATE OF
NEW YORK, ADMINISTRATIVE JUDGE,
individually and in her/his official
capacity as Administrative Justice of
the Supreme Court of Kings County; KINGS
COUNTY CLERK’S OFFICE; NANCY T. SUNSHINE,
individually and in her official
capacity as Clerk of the Kings County
Clerk’s Office; ANNA R. SCHWARTZ, Esq.,
in her individual and professional
capacities; ANTHONY LUGARA, Esq., in his
individual and professional capacities;
JOSHUA R. COHEN, Esq., in his individual
and professional capacities; GARSON
DECORATO & COHEN, LLP, in its individual
and professional capacities; GARSON
GERSPACH DECORATO & COHEN, LLP, in
its individual and professional
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capacities; LAW OFFICES OF DAVID GABAY,
in its individual and professional
capacities; DAVID A. GABAY, Esq., in his
individual and professional capacities;
BERNARD H. BROOME, Esq., in his
individual and professional capacities;
LAW OFFICE OF BERNARD H. BROOM, PLLC.,
Defendants.
----------------------------------------X
MATSUMOTO, United States District Judge:
On October 31, 2011, pro se plaintiff Nella Manko
filed this action1 pursuant to 42 U.S.C. §§ 1983, 1985, 1986 and
1988, alleging that Marsha L. Steinhardt, individually and in
her official capacity as Judge of the Supreme Court of Kings
County; Fitzsimmons,2 “individually and in his official capacity
as Clerk of the Supreme Court of Kings County”; Warren Glaser,
individually and in his official capacity as a Law Secretary of
the Supreme Court of Kings County; Eileen McLoughlin,
individually and in her official capacity as Court Reporter of
the Supreme Court of Kings County; Bruce M. Balter, individually
and in his official capacity as Judge of the Supreme Court of
Kings County; Susan K. Wright, individually and in her official
capacity as Court Reporter of the Supreme Court of Kings County;

1

On October 17, 2011, two weeks before filing the instant action, plaintiff
applied for leave to proceed in forma pauperis in a separate action in this
court (the “First Action,” Docket No. 11-cv-5103), which was dismissed on
January 24, 2012. All six defendants named in plaintiff’s complaint in the
First Action appear as named defendants in plaintiff’s complaint in the
instant action as well.
2
Plaintiff provides only the surname for this individual.

2

the Kings County Supreme Court of the State of New York; a
person referred to as “Administrative Judge,” individually and
in her/his official capacity as Administrative Justice of the
Supreme Court of Kings County; the Kings County Clerk’s Office;
Nancy T. Sunshine, individually and in her official capacity as
Clerk of the Kings County Clerk’s Office; Anna R. Schwartz,
Esq., “in her individual and professional capacities”; Anthony
Lugara, Esq., “in his individual and professional capacities”;
Joshua R. Cohen, Esq., “in his individual and professional
capacities”; Garson Decorato & Cohen, LLP, “in its individual
and professional capacities”; Garson Gerspach Decorato & Cohen,
LLP “in its individual and professional capacities”; the Law
Offices of David A. Gabay, “in its individual and professional
capacities”; David A. Gabay, Esq., “in his individual and
professional capacities”; Bernard H. Broome, Esq., “in his
individual and professional capacities; and the Law Office of
Bernard H. Broome, PLLC (collectively “defendants”), violated
her constitutional rights during the course of her state court
medical malpractice action, Kings County Supreme Court Index
Number 30972/2004, and related state court actions (collectively
“State Court Actions”).
(“Compl.”).)

(See generally ECF No. 1, Complaint

Plaintiff also asserts fraud and tort claims

against defendants under state law.

3

(See id. ¶¶ 111–134.)

Plaintiff seeks an injunction ordering Judges
Steinhardt and Balter to recuse themselves in the State Court
Actions; reversal, annulment and vacatur of any orders entered
by Judges Steinhardt or Balter in the State Court Actions; and
punitive and “actual, general, special [and] compensatory
damages.”

(Id. at 36–37.3)
By Memorandum and Order dated November 28, 2011, this

court denied plaintiff’s request to proceed in forma pauperis;
directed plaintiff to pay the $350 filing fee; and informed her
that, even if she paid the fee, the action would be dismissed.
(See ECF No. 3, Memorandum and Order dated 11/28/2011.)

On

December 9, 2011, plaintiff paid the filing fee.
On December 23, 2011, plaintiff moved for an order
directing the United States Marshals Service to serve the
summons and complaint upon defendants.

(See ECF No. 5.)

On

January 5, 2012, plaintiff moved for access to the “interactive
court system: ‘PACER.’”

(See ECF No. 6.)

Plaintiff served

process on defendants Garson Decorato & Cohen, LLP and Garson
Gerspach Decorato & Cohen, LLP on January 10, 2012 (see ECF Nos.
7-8) and on January 23, 2012, defendants Joshua Cohen, Anna
Schwartz, Anthony Lugara and Garson DeCorato & Cohen, LLP moved
for a pre-motion conference in advance of their anticipated

3

These numbers refers to the page numbers assigned by the Electronic Case
Filing (ECF) system.

4

motion to dismiss.

(See ECF No. 9.)

On the same day, plaintiff

filed two motions for an “emergency order to show cause for the
United States Marshals Service to effect service of process” on
the remaining defendants.
For the reasons stated in the court’s November 28,
2011 Order and repeated below, the court dismisses the complaint
in its entirety and denies as moot the parties’ outstanding
motions.
BACKGROUND
Plaintiff’s complaint sets forth the following seven
“counts,” or claims, against defendants:
(1) a claim pursuant to 42 U.S.C. § 1983 (“Section
1983”) against defendants Steinhardt, Fitzsimmons, Warren,
Glaser, Mcloughlin, Balter, Wright, Kings County Supreme Court
of the State of New York, Administrative Judge, Kings County
Clerk’s Office, and Sunshine;
(2) a claim pursuant to 42 U.S.C. § 1983 against the
attorneys and law firms named in the complaint;
(3) a conspiracy claim pursuant to 42 U.S.C. §§ 1983
and 1985(3) (“Section 1985”) against the attorneys and law firms
named in the complaint;
(4) a claim of “fraud by omission or nondisclosure”
against all defendants;

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(5) a “common law conspiracy” claim against all
defendants;
(6) a claim of negligent infliction of emotional
distress against all defendants; and
(7) a claim of intentional infliction of emotional
distress against all defendants.

(See Compl. ¶¶ 80-134.)

STANDARD OF REVIEW
In reviewing plaintiff’s complaint, the court is
mindful that the submissions of a pro se litigant must be
construed liberally and interpreted “to raise the strongest
arguments that they suggest.”

Triestman v. Fed. Bureau of

Prisons, 470 F.3d 471, 474 (2d Cir. 2006).
Plaintiff must, however, establish that the court has
subject-matter jurisdiction over the action.

See, e.g., Rene v.

Citibank NA, 32 F. Supp. 2d 539, 541-42 (E.D.N.Y. 1999)
(dismissing pro se complaint for lack of subject-matter
jurisdiction).

“[S]ubject-matter jurisdiction . . . can never

be forfeited or waived” because it involves the court’s power to
hear a case.

United States v. Cotton, 535 U.S. 625, 630 (2002).

Notably, courts “have an independent obligation to
determine whether subject-matter jurisdiction exists, even in
the absence of a challenge from any party.”

Arbaugh v. Y & H

Corp., 546 U.S. 500, 514 (2006) (citing Ruhrgas AG v. Marathon
Oil Co., 526 U.S. 574, 583 (1999)).
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Consequently, “[w]here

jurisdiction is lacking . . .

dismissal is mandatory.”

Manway

Constr. Co. Inc. v. Housing Auth. of City of Hartford, 711 F.2d
501, 503 (2d Cir. 1983); see also Fed. R. Civ. P. 12(h)(3) (“If
the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”).
Moreover, even if a plaintiff has paid the filing fee,
a district court may dismiss the case, sua sponte, if it
determines that the action is frivolous.

Fitzgerald v. First

East Seventh Street Tenants Corp., 221 F.3d 362, 363-64 (2d Cir.
2000); see Mallard v. United States District Court, 490 U.S.
296, 307-08 (1989) (noting that “[28 U.S.C. §] 1915(d), for
example, authorizes courts to dismiss a ‘frivolous or malicious’
action, but there is little doubt they would have power to do so
even in the absence of this statutory provision”).

Indeed,

“district courts are especially likely to be exposed to
frivolous actions and, thus, have [a] need for inherent
authority to dismiss such actions quickly in order to preserve
scarce judicial resources.”

Fitzgerald, 221 F.3d at 364.

A cause of action is properly deemed frivolous as a
matter of law when, inter alia, it is “based on an indisputably
meritless legal theory”--that is, when it “lacks an arguable
basis in law . . ., or [when] a dispositive defense clearly
exists on the face of the complaint.”

Livingston v. Adirondack

Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998).
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The court

evaluates each of plaintiff’s claims in light of the foregoing
standards.
DISCUSSION
A.

Claim One
1. Rooker-Feldman Doctrine
Plaintiff’s first claim (see Compl. ¶¶ 80–91) is

barred by the doctrine of Rooker-Feldman.

Under the Rooker-

Feldman doctrine, cases “brought by [a] state-court loser[ ]
complaining of injuries caused by state court judgments rendered
before the district court proceedings commenced and inviting
district court review and rejection of those judgments” are
barred in federal courts, which lack subject-matter jurisdiction
over such actions.

Exxon Mobil Corp. v. Saudi Basic Indus., 544

U.S. 280, 284 (2005).
In Hoblock v. Albany Cnty Bd. of Elections, the Second
Circuit set forth four factors to determine whether the RookerFeldman doctrine applies: (1) plaintiff lost in state court;
(2) plaintiff complains of injury caused by the state court
order; (3) plaintiff seeks this court’s review and rejection of
the state court’s process and determinations; and (4) the state
court determinations in question were rendered before this
action was commenced.

422 F.3d 77, 83 (2d Cir. 2005).

Each of the Hoblock requirements are met as to the
first claim which, in essence, asks this court to review and
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reject a state court judgment.

Accordingly, because the

district court lacks subject-matter jurisdiction over this
claim, the court dismisses it pursuant to Fed. R. Civ. P.
12(h)(3).

See id. at 86.

2. Immunity
Moreover, even if the court had subject-matter
jurisdiction over plaintiff’s first claim, the claim would be
dismissed because each of the named defendants in Claim One are
immune from suit.

First, because the claims against Judges

Steinhardt, Balter and the Administrative Judge of the Supreme
Court of Kings County are based solely on judicial acts
performed in their judicial capacity, the claims against them
are barred by the doctrine of judicial immunity.

Bliven v.

Hunt, 579 F.3d 204, 209-10 (2d Cir. 2009).
Second, the claim against the Kings County Supreme
Court of the State of New York Clerk’s Office is barred by
Eleventh Amendment immunity because it is considered an arm of
the State of New York.

Gollomp v. Spitzer, 568 F. 3d 355, 366

(2d Cir. 2009) (New York state Unified Court System, of which a
county court is a part, is an “arm of the State,” and therefore
entitled to Eleventh Amendment immunity).
Furthermore, clerks of court and law secretaries,
specifically defendants Sunshine, Fitzsimmons and Glaser, are
immune from claims arising from their failure to perform their
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duties and properly manage the court calendar, and plaintiff’s
complaint alleges no facts regarding acts in their individual
capacities.

Rodriguez v. Weprin, 116 F.3d 62, 66 (2d Cir. 1997)

(finding “court’s inherent power to control its docket is part
of its function of resolving disputes between parties” and is
therefore “a function for which judges and their supporting
staff are afforded absolute immunity.”); Oliva v. Heller, 839
F.2d 37, 39 (2d Cir. 1988) (law secretaries to state court
judges benefit from quasi-judicial immunity).

Finally,

McLoughlin and Wright, court reporters, enjoy qualified
immunity.

Green v. Maraio, 722 F.2d 1013, 1018 (2d Cir. 1983).

Accordingly, plaintiff’s first claim is dismissible in the
alternative on grounds of judicial, Eleventh Amendment, and
quasi-judicial immunity.
B.

Claim Two
The court has the authority to dismiss sua sponte a

complaint, or portion thereof, for which a plaintiff has paid
the filing fee, where the plaintiff presents no arguably
meritorious issue.

See Fitzgerald, 221 F.3d at 363.

In order to maintain a claim under Section 1983,
plaintiff must allege that (1) “the conduct complained of [was]
committed by a person acting under color of state law,” and
(2) “the conduct complained of . . . deprived [her] of rights,
privileges or immunities secured by the Constitution or laws of
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the United States.”

Pitchell v. Callan, 13 F.3d 545, 547 (2d

Cir. 1994).
It is well-settled that private attorneys and law
firms, such as the ones named as defendants in plaintiff’s
complaint, do not act under color of state law and are not state
actors for purposes of Section 1983 simply by virtue of their
state-issued licenses to practice law.

See, e.g., Rodriguez,

116 F.3d at 65–66 (private attorney not a state actor law by
virtue of his appointment by the court to represent a defendant
in a state criminal proceeding); Fine v. City of New York, 529
F.2d 70, 74 (2d Cir. 1975) (private attorney not a state actor);
Agron v. Douglas W. Dunham, Esq. & Assocs., No. 02 Civ. 10071,
2004 WL 691682, at *3 (S.D.N.Y. Mar. 31, 2004) (“It is wellestablished that as a matter of law a private attorney is not a
state actor.”); Cunningham v. Fisch, 01 Civ. 1123, 2001 WL
1313518, at *4 (S.D.N.Y. Oct. 26, 2001) (“‘[A] lawyer
representing a client is not, by virtue of being an officer of
the court, a state actor “under color of state law” within the
meaning of [Section] 1983.’”) (quoting Polk Cnty v. Davidson,
454 U.S. 312, 318 (1981)).
Moreover, although the complaint contains bald
assertions that the attorneys and law firms named in the
complaint acted under color of state law, plaintiff has provided
no facts to support such claims and therefore cannot assert the
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state action necessary to state a viable Section 1983 claim.
See Leogrande v. Erie Ins. Co. of New York, No. 11-CV-1320, 2011
WL 1528103, at *4 (E.D.N.Y. Apr. 20, 2011) (holding that
“plaintiff has not (and cannot) allege state action and, thus,
his federal [Section 1983] claim[] should be dismissed sua
sponte as frivolous” where court found it “apparent from the
pleadings . . . that plaintiff is attempting to sue private
[entities] under Section 1983”).

Accordingly, because the

attorneys and law firms named in the complaint are private
parties and are not subject to suit under Section 1983, this
claim lacks any arguable legal basis and is dismissed as
frivolous.

Fitzgerald, 221 F.3d at 363; see Storm-Eggink v.

Gottfried, 409 F. App’x 426, 427 (2d Cir. 2011) (“An action is
frivolous where it lacks an arguable basis either in law or in
fact.”) (internal quotation marks and citation omitted).
C.

Third Claim
In her third claim, plaintiff alleges that the private

attorney defendants and their firms conspired to commit fraud
upon plaintiff and deprived her of her constitutional rights in
violation of Sections 1983 and 1985.

(See Compl. ¶¶ 102-110.)

As discussed supra, plaintiff’s Section 1983 claim against these
defendants is dismissed as frivolous because they are private
parties who are not subject to suit under Section 1983.

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Nor does plaintiff’s Section 1985 claim have an
arguable legal basis.

To state a claim for conspiracy under

Section 1985, a plaintiff must allege: (1) a conspiracy; (2) for
the purpose of depriving any person or class of persons equal
protection of the laws; and (3) an act in furtherance of
conspiracy; (4) whereby a person is either injured in her person
or property or deprived of any right or privilege of a United
States citizen.

Cine SK8, Inc. v. Town of Henrietta, 507 F.3d

778, 791 (2d Cir. 2007).
Claims of conspiracy that are vague and provide no
basis in fact must be dismissed.

Polur v. Raffe, 912 F.2d 52,

56 (2d Cir. 1990) (noting that plaintiff impermissibly “relie[d]
on vague, prolix allegations of a conspiracy without pleading
any overt acts or providing a basis in fact for his claim” and
that it was “incumbent on a plaintiff to state more than
conclusory allegations to avoid dismissal of a claim predicated
on a conspiracy to deprive him of his constitutional rights”)
(citing Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir. 1977)).
Here, because plaintiff has failed to allege facts sufficient to
show the existence of any conspiracy designed to deprive her of
her rights, or any overt facts in furtherance of the purported
conspiracy, the court finds that plaintiff’s third claim lacks
an arguable legal basis and dismisses it as frivolous.

13

Fitzgerald, 221 F.3d at 363; Storm-Eggink, 409 Fed. Appx. at
427.
D. Plaintiff’s Remaining State Law Claims
Plaintiff’s remaining claims, claims four to seven,
arise under state law.

(See Compl. ¶¶ 111-34.)

In light of the

court’s dismissal of plaintiff’s federal claims, the court
declines to exercise supplemental jurisdiction over these state
law claims.

28 U.S.C. § 1367(c).

Plaintiff’s state law claims

of fraud, common law conspiracy, and intentional and negligent
infliction of emotional distress, require interpretation of
state law alone, and thus will be more appropriately determined
in a state forum in the interests of comity and efficiency.

See

Carnegie–Mellon Univ v. Cohill, 484 U.S. 343, 357 (1988); United
Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966)
(“Certainly, if the federal claims are dismissed before trial .
. .

the state claims should be dismissed as well.”); Cave v. E.

Meadow Union Free Sch. Dist., 514 F.3d 240, 250 (2d Cir. 2008)
(finding dismissal of state law claims proper because it would
“be clearly inappropriate for the district court to retain
jurisdiction over the state law claims when there is no basis
for supplemental jurisdiction”).

Accordingly, plaintiff’s state

law claims are dismissed without prejudice.
The court has considered whether to permit plaintiff
to amend her complaint and declines to do so because amendment
14

would be futile.
Cir. 2000).

See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d

Typically a court does not dismiss a case without

affording a plaintiff the opportunity to be heard in opposition.
But that rule does not apply where “it is unmistakably clear
that . . . the complaint lacks merit or is otherwise defective.”
See Snider v. Melindez, 199 F.3d 108, 113 (2d Cir. 1999).
CONCLUSION
For the foregoing reasons, the court dismisses without
prejudice plaintiff’s (1) first claim for lack of subject-matter
jurisdiction; (2) second and third claims because they are
frivolous; and (3) remaining state law claims, over which the
court declines to exercise supplemental jurisdiction.

The court

also denies as moot the parties’ outstanding motions.

Although

plaintiff paid the filing fee to commence this action, the court
certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this order would not be taken in good faith and therefore
in forma pauperis status is denied for purpose of an appeal.
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
/
/
/
/
/

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Any appeal must be filed within 30 days after judgment
is entered in this case.

Fed. R. App. P. 4(a)(1)(A).

The Clerk

is respectfully requested to serve a copy of this Memorandum and
Order on plaintiff and all parties not represented on ECF; note
service in the docket by January 26, 2012; dismiss this action;
enter judgment; and close this case.
SO ORDERED.

Dated:

Brooklyn, New York
January 24, 2012

_____________/s/_____________
KIYO A. MATSUMOTO
United States District Judge

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