Martinez v. Queens County District Attorney et al

Filing 6

MEMORANDUM AND ORDER: For the reasons stated in the attached written Memorandum and Order, the complaint is DISMISSED against Family Court Judges Lash and Cannataro, Judge Schlesinger, the New York Supreme Court and the Berks and Kings County Family Courts for lack of subject matter jurisdiction pursuant to the domestic relations exception. Plaintiffs order to show cause as to these defendants is DENIED on the same ground. The complaint shall proceed as to the remaining defendants. For the r easons above, plaintiffs request for a temporary restraining order as to the alleged conduct of the Kings and Queens District Attorneys Offices and New York Police Department is DENIED. By January 7, 2013, Plaintiff shall serve the r emaining defendants, representatives for the Queens and Kings County District Attorneys Offices and New York City Police Department, a copy of this Order, and plaintiffs request for injunctive relief and all supporting papers, and file proof of such service with the Court. In addition, Plaintiff shall effect service of the summons and complaint upon these defendants pursuant to Rule 4 of the Federal Rules of Civil Procedure. The remaining defendants shall file their opposition to the motion for preliminary injunction by January 15, 2013.The Clerk of Court is directed to send by overnight mail to plaintiff a copy of this Order. Ordered by Judge Roslynn R. Mauskopf on 12/26/2012. (Mauskopf, Roslynn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------X
GILBERT M. MARTINEZ,
Plaintiff,

MEMORANDUM AND ORDER
12-CV-6262 (RRM) (RER)

- against Queens County District Attorney, ADA
DEBRA POMODOR; Kings County District
Attorney; New York City Police Department
(Narcotics Division); New York Supreme
Court, Hon. ALICE SCHLESINGER; Kings
County Family Court, Hon. ANTHONY
CANNATARO; Berks County Family Court,
Hon. SCOTT E. LASH; Berks County Human
Resources; Berks County Social Security
Administration; T-Mobile USA, Inc., Met-Ed
Electric Supplier; Verizon, Berks Community
Health Center, Reading Hospital, Saint Joseph
Hospital and SUNY Downstate Medical Center,
Defendants.
-----------------------------------------------------------X
ROSLYNN R. MAUSKOPF, United States District Judge.

On December 20, 2012, plaintiff Gilbert M. Martinez, appearing pro se, commenced this
action by filing a complaint together with two proposed orders to show cause why a preliminary
injunction and restraining order should not be issued. (Doc. No. 1.) At the time of filing,
plaintiff paid the $350 filing fee required to commence this action. For the reasons below,
plaintiff’s complaint is DISMISSED IN PART, his request for an order to show cause at
Document Number 4 is DENIED, his request for temporary restraining order at Document
Number 3 is DENIED, and his request for an order to show cause why a preliminary injunction
should not issue is GRANTED.

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BACKGROUND
This complaint sets forth several distinct claims. First, plaintiff alleges that he was
falsely arrested and maliciously prosecuted by defendant Debra Pomodor, a prosecutor in the
Queens County District Attorney’s Office, and members of the New York Police Department,
who also are alleged to be engaging in illegal investigatory procedures. (Compl. at 4–5.)
Second, plaintiff challenges decisions entered in cases pending in the Berks and Kings County
Family Courts. (Id. at 5–6.) Third, plaintiff alleges events arising in Berks County,
Pennsylvania where he resides, surrounding his human resources and social security benefits, the
power utility provided to his home, and his treatment at local hospitals. (Id. at 5–8.)
DISCUSSION
I. Family Court Proceedings
In reviewing plaintiff’s complaint, the Court is mindful that, “a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted
by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks omitted). A
complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim will be considered “plausible on
its face” “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). However, if the Court “determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3); accord Cave v. East
Meadow Union Free School Dist., 514 F.3d 240, 250 (2d Cir. 2008). Furthermore, if the Court
determines that the action is frivolous, the Court may dismiss the complaint sua sponte even if

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the plaintiff has paid a filing fee. Fitzgerald v. First East Seventh Street Tenants Corp., 221 F.3d
362, 363–64 (2d Cir. 2000) (per curiam).
It is well-settled that “the whole subject of the domestic relations of husband and wife,
parent and child, belongs to the laws of the States and not to the laws of the United States.” In re
Burrus, 136 U.S. 586, 593–94 (1890). “So strong is [the Supreme Court’s] deference to state
law in this area that [the Supreme Court has] recognized a ‘domestic relations exception’ that
‘divests the federal courts of power to issue divorce, alimony, and child custody decrees.”’ Elk
Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12–13 (2004) (quoting Ankenbrandt v.
Richards, 504 U.S. 689, 703 (1992)); Fischer v. Clark, No. 08 CV 3807, 2009 WL 3063313, at
*2 (E.D.N.Y. Sept. 24, 2009).
Here, plaintiff challenges various decisions entered by Family Court Judges Scott Lash
and Anthony Cannataro in proceedings pending in Berks and Kings County Family Court. He
also challenges the decision of Judge Alice Schlesinger denying Article 78 relief concerning the
same family court decisions. Although plaintiff cites to 42 U.S.C. § 1983, the sum and substance
of his claims concern matters of state domestic relations law. Therefore, claims against Family
Court Judges Lash and Cannataro, Judge Schlesinger, the New York Supreme Court, and the
Berks and Kings County Family Court are dismissed as they are barred by the domestic relations
exception to the jurisdiction of the federal courts. Schottel v. Kutyba, No. 06-1577-cv, 2009 WL
230106 (2d Cir. Feb. 2, 2009); Donahue v. Pataki, 28 F. App’x 59 (2d Cir. 2002); McKnight v.
Middleton, 699 F. Supp. 2d 507, 516–17 (E.D.N.Y. 2010); Puletti v. Patel, No. 05 CV 2293,
2006 WL 2010809, at *4 (E.D.N.Y. Jul. 14, 2006); Rabinowitz v. New York, 329 F. Supp. 2d
373, 376 (E.D.N.Y. 2004); see also Fed. R. Civ. P. 12(h)(3) (“[If the Court] determines at any

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time that it lacks subject-matter jurisdiction, the court must dismiss the action.”); accord Cave,
514 F.3d 240, 250 (2d Cir. 2008).
II. Plaintiff’s Proposed Orders to Show Cause
Plaintiff also seeks immediate relief by two “order[s] to show cause for preliminary
injunction and retraining order.” (Doc. Nos. 3–4.) First, plaintiff seeks an order “Restraining
defendants from unlawfully wire taping [sic] to his cellular phone, home phone, and internet
service, to be further restrained from pursuing petitioner from unlawful stops, and
investigations.” (Doc. No. 3 at 2.) Second, plaintiff seeks an order “Restraining defendant Hon.
Anthony Cannataro from proceeding with hearing and trial in the matter of Custody and
Restraining Order.” (Doc. No 4 at 2.)
“The court may issue a temporary restraining order without written or oral notice to the
adverse party or its attorney only if: specific facts in an affidavit or a verified complaint clearly
show that immediate and irreparable injury, loss, or damage will result to the movant before the
adverse party can be heard in opposition; and the movant’s attorney certifies in writing any
efforts made to give notice and the reasons why it should not be required.” Fed. R. Civ. P.
65(b)(1). “The court may issue a preliminary injunction only on notice to the adverse party.”
Fed. R. Civ. P. 65(a)(1). A party seeking a preliminary injunction must show “(a) irreparable
harm and (2) either (a) likelihood of success on the merits or (b) sufficiently serious questions
going to the merits and a balance of hardships tipping decidedly toward the party seeking the
injunctive relief. Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir. 1992); see also Citigroup Global
Mkts., Inc. v. Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010).
Temporary restraining orders and preliminary injunctions are extraordinary remedies “that
should not be granted as a routine matter.” JSG Training Corp. v. Tray-Wrap, Inc., 917 F.2d 75,

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80 (2d Cir. 1990); see also Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (“A
preliminary injunction is an extraordinary remedy never awarded as of right.”).
Because the Court lacks subject matter jurisdiction over plaintiff’s family court
proceedings and related decisions, plaintiff’s request for an order to show cause why preliminary
relief should not be granted as to those proceedings is denied.
Plaintiff’s request for a temporary restraining order related to the alleged illegal investigation and
prosecution is also denied. Plaintiff did not provide reasons why notice should not be required,
as is necessary under Rule 65. Moreover, the facts alleged in plaintiff’s verified complaint do
not clearly show immediate or irreparable harm that requires action prior to notice.
While Plaintiff is not likely to meet the standard for preliminary injunction for the same
reasons, the Court will require the remaining defendants to respond to the request for preliminary
injunctive relief as detailed further below.
CONCLUSION
Accordingly, the complaint is DISMISSED against Family Court Judges Lash and
Cannataro, Judge Schlesinger, the New York Supreme Court and the Berks and Kings County
Family Courts for lack of subject matter jurisdiction pursuant to the domestic relations exception.
Plaintiff’s order to show cause as to these defendants is DENIED on the same ground. The
complaint shall proceed as to the remaining defendants. For the reasons above, plaintiff’s
request for a temporary restraining order as to the alleged conduct of the Kings and Queens
District Attorney’s Offices and New York Police Department is DENIED.
By January 7, 2013, Plaintiff shall serve the remaining defendants—representatives for
the Queens and Kings County District Attorney’s Offices and New York City Police
Department—a copy of this Order, and plaintiff’s request for injunctive relief and all supporting

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papers, and file proof of such service with the Court. In addition, Plaintiff shall effect service of
the summons and complaint upon these defendants pursuant to Rule 4 of the Federal Rules of
Civil Procedure. The remaining defendants shall file their opposition to the motion for
preliminary injunction by January 15, 2013.
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 the purpose of an appeal. Coppedge v. United
States, 369 U.S. 438, 444–45 (1962).
The Clerk of Court is directed to send by overnight mail to plaintiff a copy of this Order.

SO ORDERED.

Dated: Brooklyn, New York
December 26, 2012

Roslynn R. Mauskopf
________________________________
ROSLYNN R. MAUSKOPF
United States District Judge

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