Salis v. Dopico et al
Filing
60
MEMORANDUM DECISION AND ORDER. The plaintiff's claims against the Kings County District Attorney and Reuters are dismissed with prejudice. The plaintiff's claims against the New York Attorney General, the individual defendants, and the Uni ted States Attorney General are dismissed without prejudice for lack of subject matter jurisdiction. The plaintiff's claims against the New York State Bar Association are dismissed without prejudice for failure to prosecute. The Court will not grant the plaintiff the opportunity to amend his complaint. Ordered by Judge Ann M. Donnelly on 3/26/2024. (DG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------- X
:
OWOLABI SALIS,
:
Plaintiff,
: MEMORANDUM DECISION AND
ORDER
– against –
:
23-CV-1816 (AMD) (JRC)
:
JORGE DOPICO, et al.,
:
Defendants.
:
--------------------------------------------------------------- X
ANN M. DONNELLY, United States District Judge:
The pro se plaintiff alleges constitutional violations arising out of the Manhattan District
Attorney’s prosecution of a criminal case against him; the Appellate Division, First Department
Attorney Grievance Committee’s investigation into his misconduct; and the First Department’s
decision to disbar him for professional misconduct including fraudulently filing hundreds of visa
petitions and adjustment-of-status applications. He brings claims against the New York Attorney
General, the United States Attorney General, Thomson Reuters, the Kings County District
Attorney’s Office, the New York State Bar Association, and three New York State employees.
Before the Court are the defendants’ motions to dismiss. For the reasons explained
below, the motions are granted. 1
1
The plaintiff is a disbarred lawyer. Accordingly, the Court does not view his submissions with the
special solicitude due to non-attorney pro se litigants. Keitel v. D’Agostino, No. 21-CV-8537, 2023 WL
3560553, at *4 (S.D.N.Y. May 19, 2023).
BACKGROUND
The following facts are drawn from the complaint and documents attached as exhibits.
The allegations in the complaint are “accepted as true” on a motion to dismiss. Dane v.
UnitedHealthcare Ins. Co., 974 F.3d 183, 188 (2d Cir. 2020) (citation omitted). 2
The Plaintiff’s Disbarment
In 2016, a New York County jury acquitted the plaintiff of charges “involving the filing
of fraudulent immigration petitions.” (ECF No. 2-3 at 3 (Disbarment Order); ECF No. 2 ¶ 45
(Amended Complaint).) In 2017, the Department of Homeland Security (“DHS”) referred the
plaintiff’s conduct to the Appellate Division, First Department Attorney Grievance Committee.
(ECF No. 2-3 at 3; ECF No. 2 ¶ 46.)
Following an investigation, the Committee filed a petition against the plaintiff in the First
Department, accusing him of filing hundreds of fraudulent visa petitions and adjustment-ofstatus applications. (ECF No. 2-3 at 3; ECF No. 2 ¶ 57.) In 2019, the First Department
appointed defendant Donald Zolin as a referee to conduct a hearing. (ECF No. 2-3 at 3; ECF No.
2 ¶¶ 7, 61.)
In 2019, the plaintiff sued various DHS officials alleging violations of his constitutional
rights arising out of the events underlying this lawsuit. (ECF No. 2 ¶ 50.) The action was
eventually dismissed in 2021 for lack of subject-matter jurisdiction. Salis v. Mayorkas, No. 19CV-5153, 2021 WL 972319, at *1 (E.D.N.Y. Feb. 17, 2021), aff’d, No. 21-590, 2021 WL
6425204 (2d Cir. Oct. 21, 2021), cert. denied, 142 S. Ct. 1231 (2022).
2
The Court does not consider any facts or allegations that were not in the complaint. Thus, the Court
does not consider anything the plaintiff claimed in his oppositions to the motions or in the multiple
letters to the Court. See Fac., Alumni, & Students Opposed to Racial Preferences v. N.Y.U. L. Rev., No.
18-CV-9184, 2020 WL 1529311, at *7 (S.D.N.Y. Mar. 31, 2020) (“It is well established in this district
that a plaintiff cannot amend his pleadings in his opposition briefs.”), aff’d, 11 F.4th 68 (2d Cir. 2021);
Bliven v. Hunt, 478 F. Supp. 2d 332, 340 (E.D.N.Y. 2007), aff’d, 579 F.3d 204 (2d Cir. 2009).
2
In May 2021, Referee Zolin held a hearing on the question of liability, with a sanction
hearing to follow if necessary. (ECF No. 2-3 at 3.) In a March 25, 2022 report, Referee Zolin
recommended that all charges be sustained, finding that the plaintiff violated Rules of
Professional Conduct 3.1 (advancing frivolous claims), 3.3(f) (intentionally and habitually
running afoul of established rules), 7.1(a)(1) (false advertising), 7.1(f) (failing to label website as
“Attorney Advertising”), 8.4(c) (engaging in dishonesty, fraud, deceit, and misrepresentation),
8.4(d) (conduct prejudicial to the administration of justice), and 8.4(h) (acting in a manner
adversely reflecting on his fitness as a lawyer). (Id.)
On May 16, 2022, two days before the scheduled sanction hearing, the plaintiff asked the
First Department for re-argument or reconsideration, and to stay the sanction hearing. (ECF No.
2-2 at 277–79.) On May 18, 2022, Referee Zolin held the sanction hearing, but the plaintiff did
not appear or explain his absence. (ECF No. 2-3 at 3.) Referee Zolin found the plaintiff in
default, and the sanction hearing proceeded. (Id.)
On June 6, 2022, the plaintiff moved in the First Department again for re-argument or
reconsideration of the liability findings, although the court does not appear to have ruled on his
May 16, 2022 motion at that point. (ECF No. 2 ¶ 86; see ECF No. 2-2 at 365.) On June 22,
2022, the First Department denied his motion and declined to stay the sanction hearing. 3 (ECF
No. 2-3 at 4.) The First Department denied the plaintiff’s motion to reargue on August 31, 2022.
(Id.)
“On or about July 25, 2022,” Referee Zolin offered to reopen the sanction hearing; the
Committee did not oppose, but the plaintiff did not respond. (Id.) On August 17, 2022, Referee
3
The plaintiff says that he did not move for a stay of the sanction hearing, which had already occurred,
and that First Department’s decision, which “d[id] not correspond to the motion request,” “raised serious
concerns whether the 5 Justices were actually involved” in the decision. (ECF No. 2 ¶ 87 (emphasis
omitted).)
3
Zolin recommended that the plaintiff be disbarred. (Id.) The Committee moved in the First
Department for an order confirming Referee Zolin’s liability finding and disbarring the plaintiff.
(Id.) The plaintiff cross-moved to disaffirm or dismiss the Referee’s findings. (Id.; see ECF No.
2-1 (Motion to Disaffirm).)
On November 29, 2022, the First Department confirmed Referee Zolin’s report,
sustaining the charges of misconduct against the plaintiff and ordering that the plaintiff be
disbarred. (ECF No. 2-3 at 5.) The plaintiff alleges that “[i]mmediately after the Order or
Judgment, international media, Reuters, the internet, social media, radio and TV was full of the
story to dent the reputation of the Plaintiff and portray the Plaintiff as a fraudulent criminal even
though he is not.” (ECF No. 2 ¶ 103.) The plaintiff asked the First Department to vacate the
Disbarment Order, which the First Department denied on January 26, 2023. In the Matter of
Owolabi M. Salis, No. 2022-04850, 2023 WL 414612 (1st Dep’t Jan. 26, 2023). The New York
Court of Appeals denied the plaintiff’s requests for leave to appeal and for reargument. See
Matter of Salis, 40 N.Y.3d 965, reargument denied, 40 N.Y.3d 1059 (2023). The United States
Supreme Court denied the plaintiff’s petition for certiorari. Salis v. Attorney Grievance Comm.,
No. 23-857, 2024 WL 1241384 (U.S. Mar. 25, 2024).
Procedural History
The plaintiff brought this lawsuit on March 9, 2023 against the New York Attorney
General, the United States Attorney General, Thomson Reuters, the Kings County District
Attorney’s Office, the New York State Bar Association, and three New York State employees
4
(the “individual defendants”), Jorge Dopico, 4 Kevin Doyle, 5 and Donald Zolin. (ECF No. 1.) 6
In the amended complaint, the plaintiff alleges that the individually named defendants violated
his rights to equal protection and due process under the Fourteenth Amendment of the United
States Constitution. (ECF No. 2 ¶ 1; see also id. at 36.) The plaintiff alleges that Referee Zolin
“misinterpret[ed] the laws; the plaintiff also describes at length the evidence and exhibits that
Referee Zolin purportedly ignored in sustaining the charges against the plaintiff. (See, e.g., id.
¶¶ 67–70, 78.) The plaintiff also claims that Referee Zolin violated his due process rights by
holding the sanction hearing in his absence. (Id. ¶ 95.) In addition, the plaintiff asserts that the
First Department did not refer to his arguments in the Disbarment Order, which “rais[es] serious
doubt whether the Justices were fully involved.” (Id. ¶ 102.) The plaintiff further alleges that
the Disbarment Order contains “untruths and/or inaccuracies” (id. ¶¶ 105–110) and does not
address the plaintiff’s arguments about alleged discrimination by DHS (id. ¶¶ 111–113, 118), the
inadequacy of the Committee’s witnesses against him in the disbarment proceedings (id. ¶ 114),
or Referee Zolin’s legal and factual errors and bias (id. ¶¶ 115–116, 119, 121, 123, 125–129,
133–139).
The amended complaint also includes a section entitled “Questions Presented” with
approximately 50 numbered questions about the propriety of the proceedings before Referee
Zolin and his subsequent determinations (id. ¶¶ 146–153, 167–188); whether the plaintiff is
guilty of professional misconduct, (id. ¶¶ 155–156); whether DHS officials—who are not parties
4
Dopico “heads the Grievance Committee” of the First Department. (Id. ¶ 5.)
5
Doyle “work[s] for the Grievance Committee” of the First Department. (Id. ¶ 6.)
6
On August 7, 2023, the plaintiff moved for a temporary restraining order and a preliminary injunction
seeking to enjoin defendant “Kings County District Attorney from arraigning the Plaintiff in the New
York State Criminal Court as planned on August 21, 2023, in matters pertaining to the Civil Right
action pending in this Court.” (ECF No. 44.) This Court denied those motions on August 17, 2023.
(ECF No. 50.)
5
to this lawsuit—violated the plaintiff’s constitutional rights, (id. ¶¶ 160–166); whether the
plaintiff is entitled to reconsideration or re-argument based on purported errors he presented to
the First Department in his Motion to Disaffirm (id. ¶ 189); and whether the Committee made
frivolous arguments against him in the disciplinary proceedings (id. ¶ 194).
The plaintiff also appears to claim violations of his rights under the First, Fourth and
Fifth Amendments—whether the actions of DHS officers not parties to this lawsuit violated
these rights, and whether the First Department erred by not mentioning these constitutional
claims in the disbarment order. (Id. ¶¶ 162–66, 112, 197, 199.)
The plaintiff seeks damages and costs under 42 U.S.C. § 1983. (Id. ¶ 1.)
LEGAL STANDARD
To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a
complaint must contain “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 “detailed factual allegations” are not required, “[a] pleading that offers ‘labels and
conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not do.’” Id.
(quoting Twombly, 550 U.S. at 555). Pleadings are construed in the light most favorable to the
plaintiff. Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010).
“Determining the existence of subject matter jurisdiction is a threshold inquiry,”
Morrison v. Nat’l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008), aff’d, 561 U.S. 247
(2010), and dismissal is proper under Federal Rule of Civil Procedure 12(b)(1) for lack of subject
matter jurisdiction “when the district court lacks the statutory or constitutional power to
6
adjudicate” the claim, Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). “In contrast
to the standard for a motion to dismiss for failure to state a claim under Rule 12(b)(6), a plaintiff
asserting subject matter jurisdiction has the burden of proving by a preponderance of the
evidence that it exists.” Long Island Pure Water Ltd. v. Cuomo, 375 F. Supp. 3d 209, 215
(E.D.N.Y. 2019) (internal quotation marks omitted).
DISCUSSION
Lack of Jurisdiction
The individual defendants, the New York Attorney General, and the United States
Attorney General all move for dismissal for lack of jurisdiction under Federal Rule of Civil
Procedure 12(b)(1).
a.
New York Attorney General and the Individual Defendants
i.
Sovereign Immunity
The New York Attorney General and the individual defendants argue that the plaintiff’s
claims against them are barred by sovereign immunity. The Eleventh Amendment provides that
“[t]he Judicial power of the United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by Citizens of another State,
or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. “The Supreme Court
has long held that the Eleventh Amendment bars suits against a state by one of its own citizens,
unless (1) the state consents to be sued, or (2) Congress validly abrogates the state’s immunity.”
Long Island Pure Water Ltd. v. Cuomo, 375 F. Supp. 3d 209, 215 (E.D.N.Y. 2019) (citations
omitted); see also Steinberg v. Elkman, 666 F. App’x 26, 27 (2d Cir. 2016) (“Sovereign
immunity bars suit against a state official sued in his official capacity, unless Congress has
abrogated that immunity or the state has consented to suit.”).
7
New York has not waived its immunity in this case. See Li v. Lorenzo, 712 F. App’x 21,
22 (2d Cir. 2017). Nor has Congress abrogated it. Id. (affirming dismissal per sovereign
immunity of § 1983 claims against employees of the attorney grievance committee); Truong v.
Marcus, No. 04-CV-6853, 2006 WL 3635319, at *3 (S.D.N.Y. Dec. 12, 2006) (dismissing
claims per sovereign immunity against a state employee who served “as a referee in Plaintiff’s
professional misconduct proceeding”); Smith v. United States, 554 F. App’x 30, 31 (2d Cir.
2013) (affirming dismissal per sovereign immunity of § 1983 claims against the New York
Attorney General).
The plaintiff argues that New York “impliedly” waived sovereign immunity by
participating in this a federal litigation. This argument has no merit. The Supreme Court has
held that a waiver of sovereign immunity cannot be implied. United States v. Mitchell, 445 U.S.
535, 538 (1980); see also Beaulieu v. Vermont, 807 F.3d 478, 488 (2d Cir. 2015) (participating in
a federal litigation does not impliedly waive sovereign immunity).
Accordingly, the plaintiff’s claims against the individual defendants and the New York
Attorney General in their official capacities must be dismissed.
ii.
Absolute Immunity
Even if the Eleventh Amendment did not bar the plaintiff’s claims against the individual
defendants, they have absolute immunity. “Judges are immune from suits regarding actions
taken in their judicial capacity provided that their actions were not taken in the complete absence
of jurisdiction.” Truong, 2006 WL 3635319, at *3. “Absolute immunity bars § 1983 suits
against prosecutors for their role in initiating a prosecution and in presenting the State’s case.”
Ogunkoya v. Monaghan, 913 F.3d 64, 69 (2d Cir. 2019) (internal quotation marks omitted).
“Under the doctrine of quasi-judicial immunity, the scope of absolute immunity encompasses the
8
actions of others ‘who perform functions closely associated with the judicial process.’” Truong,
2006 WL 3635319, at *3–*4 (quoting Cleavinger v. Saxner, 474 U.S. 193, 200 (1985)).
“[O]fficials performing certain functions analogous to those of a prosecutor” may claim absolute
immunity. Butz v. Economou, 438 U.S. 478, 515 (1978). “It is well-settled that referees and
committees appointed by New York state courts to conduct attorney disciplinary hearings have
absolute judicial immunity.” Truong, 2006 WL 3635319, at *4.
There is no question that Zolin was acting “in his official capacity” as a court-appointed
referee. See id. Likewise, Dopico and Doyle were acting in their official capacities as
Committee staff investigating and prosecuting the plaintiff’s professional misconduct. Id. at *3;
Thaler v. Casella, 960 F. Supp. 691, 700 (S.D.N.Y. 1997). Thus, the plaintiff’s claims against
Zolin, Dopico, and Doyle are also barred by absolute immunity.7
b.
Over the United States Attorney General
Similarly, for a claim of damages to proceed against the United States, its agencies, or
federal employees, there must be an “unequivocally expressed” waiver of sovereign immunity or
abrogation by statute. United States v. Nordic Village, Inc., 503 U.S. 30, 33–34 (1992).
The United States has not waived sovereign immunity as to the United States Attorney
General, nor has it been abrogated. Lubrano v. United States, 751 F. Supp. 2d 453, 455
(E.D.N.Y. 2010) (“Section 1983 does not provide an avenue to assert causes of actions against
the federal government or its agents.”), aff’d, 448 F. App’x 159 (2d Cir. 2012); Russo v. Glasser,
279 F. Supp. 2d 136, 141 (D. Conn. 2003) (holding that 28 U.S.C. § 1343 did not supply subjectmatter jurisdiction over claims against federal government actors); Weise v. Syracuse Univ., 522
7
Because the Court lacks jurisdiction over the plaintiff’s claims against the New York Attorney and the
individual defendants due to sovereign immunity and absolute immunity, the Court declines to consider
whether the Rooker-Feldman doctrine also deprives this Court of jurisdiction to consider the plaintiff’s
claims.
9
F.2d 397, 404 (2d Cir. 1975) (same); Doe v. Civiletti, 635 F.2d 88, 94 (2d Cir. 1980) (“Section
1331 is in no way a general waiver of sovereign immunity.”). Accordingly, the claims against
the United States Attorney General are dismissed for lack of subject-matter jurisdiction.
Failure to State a Claim
a.
Against the United States Attorney General
Even if the plaintiff’s claims against the United States Attorney General were not barred
by sovereign immunity, they also fail for deficient pleading under Rule 12(b)(6).
As an initial matter, the amended complaint does not seek specific relief from the United
States Attorney General—only from “Defendants 1, 2, and 3,” which is how the plaintiff refers
to Doyle, Dopico, and Zolin. (See ECF No. 2 at 36.) Courts “have consistently held that, where
the complaint names a defendant in the caption but contains no allegations indicating how the
defendant violated the law or injured the plaintiff, a motion to dismiss the complaint in regard to
that defendant should be granted.” Rene v. Citibank NA, 32 F. Supp. 2d 539, 541 (E.D.N.Y.
1999) (citations omitted); see also Maione v. Zucker, 2022 WL 784483, at *7 (S.D.N.Y. Mar. 15,
2022) (dismissing claims where only mention of defendants were in case caption and paragraphs
describing their “positions and duties”), vacated in part on other grounds, No. 22-782, 2023 WL
4759251, at *1 (2d Cir. July 26, 2023).
Moreover, a defendant can only be held accountable for his own actions under § 1983,
see Iqbal, 556 U.S. at 683, and the plaintiff must show some “tangible connection” between the
constitutional violation alleged and that particular defendant, Bass v. Jackson, 790 F.2d 260, 263
(2d Cir. 1986). The plaintiff has not done so. In the “parties” section of the amended complaint,
the plaintiff states only that the United States Attorney General “is the Chief Law Officer of the
United States and is included to aid their work in the investigation of Civil Rights Complaints
10
and enforcement of the laws of the United States.” (ECF No. 2 ¶ 9.) Even assuming this
statement constitutes an allegation, it cannot survive a 12(b)(6) motion. Moreover, the plaintiff
could not allege any involvement by the United States Attorney General in a New York Attorney
Grievance Committee’s investigation of the plaintiff’s misconduct and a New York court’s
ultimate disbarment of the plaintiff.
The plaintiff’s claims against the United States Attorney General are therefore also
dismissed for failure to state a claim. 8
b.
Against the Kings County District Attorney
For similar reasons, the plaintiff also fails to state a claim against the Kings County
District Attorney (“KCDA”). The plaintiff does not seek specific relief from the KCDA, which
supports dismissal. See Rene, 32 F. Supp. 2d at 541; Maione, 2022 WL 784483, at *7.
Moreover, the plaintiff explicitly alleges that the KCDA is named as a defendant only “to aid
their work.” (ECF No. 2 ¶ 11). This is not an allegation of any wrongdoing against the KCDA,
which was not involved in his investigation or disbarment; accordingly, dismissal is proper. 9
8
Because the plaintiff’s claims against the United States Attorney General are barred by sovereign
immunity and, in any event, fail to state a plausible claim for relief, the Court declines to consider the
United States Attorney General’s argument that the claims against him also fail pursuant to res judicata.
9
It is not clear whether the plaintiff intended to name the Office of the KCDA or the District Attorney
himself as a party. Regardless, his claims fail. “The Kings County District Attorney’s Office is not a
suable entity.” Griffin v. Kings Cnty. Dist. Attorney’s Off., No. 20-CV-2387, 2020 WL 5211049, at *2
(E.D.N.Y. Aug. 31, 2020) (citation omitted). And any allegations against the District Attorney himself
fail for lack of personal involvement. See Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010) (citing
Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006)).
11
c.
Against Reuters
The plaintiff also fails to state a claim against Reuters. Dismissal is proper because the
plaintiff does not seek specific relief from Reuters. See Rene, 32 F. Supp. 2d at 541; Maione,
2022 WL 784483, at *7.
Moreover, the amended complaint does not state a plausible claim for relief against
Reuters. The plaintiff asserts that he is not suing Reuters “in an official capacity,” (ECF No. 2
¶ 13), but that Reuters “is included as Defendant for their information and because they help
spread the News of the Disbarment without knowing the details” (id. ¶ 10), and “was full of the
story to dent the reputation of the Plaintiff and portray the Plaintiff as a fraudulent criminal even
though he is not” (id. ¶ 103). The plaintiff does not contend that Reuters violated 42 U.S.C.
§ 1983, or that Reuters was “acting under color of state law,” West v. Atkins, 487 U.S. 42, 48
(1988). Indeed, it “is well-established that actions by journalists in publishing a newspaper
article do not constitute the requisite ‘state action’ to support state action claims.” Thomas v.
City of New York, No. 17-CV-06079, 2018 WL 5791965, at *14 (E.D.N.Y. Nov. 5, 2018)
(cleaned up). And to the extent the plaintiff is claiming defamation in relation to Reuters’
reporting about his disbarment, defamation alone cannot form the basis of a Section 1983 claim.
See Siegert v. Gilley, 500 U.S. 226, 233 (1991) (explaining in the context of either a Section
1983 or a Bivens claim that “[d]efamation, by itself, is a tort actionable under the laws of most
States, but not a constitutional deprivation”). 10
Accordingly, the plaintiff’s claims against Reuters are dismissed.
10
It is not clear if the plaintiff is asking the Court to order Reuters to investigate or publish anything about
his claims; if he is, the request is denied since it would be unconstitutional. Brady v. Associated Press
Telecom, 2017 WL 111783, at *3–*4 (S.D.N.Y. Jan. 11, 2017) (finding that plaintiff’s request for an
injunction requiring press entities to publish information “would be exactly the type of interference
against which the First Amendment guarantees the freedom of the press and freedom of speech”).
12
d.
Against the New York Attorney General or the Individual Defendants
The plaintiff also fails to state a claim against the New York Attorney General and the
individual defendants, even if sovereign immunity did not bar his claims. As an initial matter,
the plaintiff’s claims against the New York Attorney General are dismissed because he does not
seek specific relief from the New York Attorney General, only the individual defendants. See
Rene, 32 F. Supp. 2d at 541; Maione, 2022 WL 784483, at *7. 11
In any event, the plaintiff’s allegations are insufficient. First, the plaintiff’s claims
against the New York Attorney General and the individual defendants in their official capacities
fail because “neither a State nor its officials acting in their official capacities are ‘persons’ under
§ 1983.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).
Second, the plaintiff did not sufficiently allege that these defendants violated his federal
rights; because his procedural claims are governed by state law, and he did not plausibly allege
that any defendant violated his First, Fourth, or Fifth Amendment rights. Despite his insistence
that his due process rights were violated, the amended complaint establishes that the plaintiff
“had ample notice of the charges against him and an adequate opportunity to be heard and to
rebut them,” including opportunities that he forfeited when he did not appear for hearings or
respond. Javits v. Stevens, 382 F. Supp. 131, 139 (S.D.N.Y. 1974) (dismissing civil rights claim
by executors of deceased attorney’s estate for failure to state due process claim regarding
disciplinary proceedings); Zauderer v. Off. of Disciplinary Couns. of Supreme Ct. of Ohio, 471
U.S. 626, 655 (1985) (due process in the context of attorney disciplinary proceedings is focused
11
The plaintiff does not allege that Dopico, as head of the Attorney Grievance Committee, or the New
York Attorney General, had any personal involvement in his disciplinary proceedings; these claims
thus also fail for lack of personal involvement. See Farid, 593 F.3d at 249 (citing Farrell, 449 F.3d at
484).
13
on whether a respondent attorney is afforded “notice and opportunity to respond”); (see ECF No.
2-3 at 3.)
Moreover, the plaintiff’s “separation of powers” argument is unpersuasive (ECF No. 33
at 18), as attorney disciplinary proceedings are not criminal proceedings, In re Ruffalo, 390 U.S.
544, 551 (1968).
In addition, federal courts have held that a disbarred attorney challenging the merits of a
disbarment proceeding as a violation of due process is attempting “to relitigate the merits of the
State proceedings,” which is in the exclusive jurisdiction of the state courts. Mildner v. Gulotta,
405 F. Supp. 182, 196 (E.D.N.Y. 1975) (citations omitted), aff’d, 425 U.S. 901 (1976). Section
1983 “does not extend the right to relitigate in a federal district court evidentiary questions which
have been adjudicated on the merits in State proceedings.” Id. 12
As to equal protection, the plaintiff does not allege that anyone “intentionally treated
[him] differently from others similarly situated” without any rational basis; accordingly, his
equal protection claim must be dismissed. Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d
135, 140 (2d Cir. 2010) (quoting Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)).
His cursory allegation that the individual defendants intended to “deny [him] equal protection of
laws” (ECF No. 33 at 1, 13, 17, 20) is unsupported by any other facts and thus does not survive a
motion to dismiss.
The plaintiff’s double jeopardy claims are also meritless. “[T]he double jeopardy clause
prohibits merely punishing twice, or attempting a second time to punish criminally, for the same
offense,” and disbarment, or the “revocation of a privilege voluntarily granted,” is not a criminal
12
The plaintiff’s conclusory assertions that Referee Zolin colluded with or was biased in favor of the
Committee (ECF No. 33 at 18, 33), and that the Appellate Division justices did not personally review
the matter or sign the orders (id. at 18) are not “plausible,” Iqbal, 556 U.S. at 678.
14
sanction implicating the Double Jeopardy Clause. Helvering v. Mitchell, 303 U.S. 391, 399 &
n.2 (1938); see In re Jaffe, 585 F.3d 118, 121 (2d Cir. 2009) (noting that “since attorney
disciplinary proceedings are primarily remedial, the Double Jeopardy Clause of the Fifth
Amendment does not apply”).
Accordingly, all of the plaintiff’s allegations against the individual defendants and the
New York Attorney General fail to state a claim. 13
Federal Rule of Civil Procedure 19
At various points in his oppositions to the motions to dismiss, the plaintiff asserts that
each moving defendant is a required party to this lawsuit under Federal Rule of Civil Procedure
19. Rule 19 governs the required joinder of parties, as follows:
(a) Persons Required to Be Joined if Feasible.
(1) Required Party. A person who is subject to service of process
and whose joinder will not deprive the court of subject-matter
jurisdiction must be joined as a party if:
(A) in that person's absence, the court cannot accord complete
relief among existing parties; or
(B) that person claims an interest relating to the subject of the
action and is so situated that disposing of the action in the person's
absence may:
(i) as a practical matter impair or impede the person’s ability to
protect the interest; or
(ii) leave an existing party subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent obligations because of
the interest.
Fed. R. Civ. P. 19. As an initial matter, the plaintiff raises this only in headings of his opposition
to the United States Attorney General’s motion, not in the text of any argument (ECF No. 41 at
3–6); nor did he properly raise it with respect to Reuters, as he mentioned it only in the
13
Moreover, to the extent the plaintiff attempts to raise claims he previously brought against DHS
employees asserting violations of his constitutional rights, these claims were already dismissed for lack
of subject matter jurisdiction and cannot be relitigated here. Moreover, the Eighth Amendment does
not apply, to the extent the plaintiff means to raise it, because the plaintiff has not been convicted of
any crime. See Ingraham v. Wright, 430 U.S. 651, 671 (1977).
15
preliminary statement of the opposition, not in the text of any argument (ECF No. 42 at 12–13),
see Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (“Issues not sufficiently argued in the
briefs are considered waived . . . .” (citation omitted)).
In any event, Rule 19 does not cure any jurisdictional deficiencies, as it cannot provide an
independent source of jurisdiction. If the Court lacks subject matter jurisdiction over a party—as
it does here with respect to the New York Attorney General, the individual defendants, and the
United States Attorney General—the Court cannot gain subject-matter jurisdiction by virtue of
Rule 19. Simons v. Town of Sherman, No. 16-CV-488, 2017 WL 1025169, at *7 n.6 (D. Conn.
Mar. 16, 2017) (rejecting the plaintiff’s argument that “this Court may exercise jurisdiction over
this action on the basis of Fed. R. Civ. P. 19” because “[n]either Rule 19 nor any other Federal
Rule of Civil Procedure confers such jurisdiction.”); Owen Equip. & Erection Co. v. Kroger, 437
U.S. 365, 370 (1978)(“[I]t is axiomatic that the Federal Rules of Civil Procedure do not create or
withdraw federal jurisdiction.”).
Moreover, on the merits, a party is only “indispensable” under Rule 19 if his or her
participation is required for “just adjudication” of the issues before the Court. See, e.g., Liquifin
Aktiengesellschaft v. Brennan, 383 F. Supp. 978, 983–984 (S.D.N.Y. 1974) (holding AG was not
“indispensable” because presence was not required for “just adjudication” of civil rights action
against sheriff and city). The plaintiff does not explain how any of these defendants are required
parties. As to the Kings County District Attorney, Dopico, and the New York Attorney General,
the plaintiff asserts in a cursory fashion that they are required parties under Rule 19 because
“actions and omissions were taken that affect their duties.” (ECF No. 33 at 40.) This vague
statement does not show that any of these parties are “indispensable” under Rule 19. And as to
Reuters, the plaintiff states that Reuters “claims an interest” in this action by reporting on his
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disbarment (ECF No. 42 at 27), which is not the type of interest that renders a party
“indispensable” under Rule 19. See Lovell v. GEICO Gen. Ins. Co., No. 12-CV-00546, 2016
WL 3892868, at *3 (W.D.N.Y. July 13, 2016) (“[F]or a person or entity to be a necessary party
under Rule 19(a)(1)(B), the person or entity must have a legally protected interest in the subject
matter of the litigation.” (citing ConnTech Dev. Co. v. Univ. of Conn. Educ. Props., Inc., 102
F.3d 677, 682–83 (2d Cir. 1996)); see also Caisse Nationale de Credit Agricole v. Bank of
Tokyo-Mitsubishi Tr. Co., No. 97-CV-588, 1997 WL 282274, at *3 (S.D.N.Y. May 28, 1997) (an
interest sufficient for Rule 19 “must be legally protected, not merely a financial interest or
interest of convenience”). Moreover, the only case the plaintiff cites on this issue, Associated
Dry Goods v. Towers Financial Corp., 920 F.2d 1121 (2d Cir. 1990), is not to the contrary. The
purported indispensable party in that case was not a news organization; rather, it was a building’s
landlord. The defendant in the case had argued the landlord was indispensable in a case
involving a dispute over a sublease agreement between the parties. See id. at 1122. This case is
inapplicable to Reuters.
Accordingly, the plaintiff’s Rule 19 arguments against the defendants fail.
Failure to Prosecute the New York State Bar Association
Any claims against the unserved defendant, the New York State Bar Association, are
dismissed without prejudice for failure to prosecute. See Fed. R. Civ. P. 4(m); Chen Chao v.
Holder, No. 10-CV-2432, 2013 WL 4458998, at *1 (E.D.N.Y. Aug. 16, 2013) (dismissing
claims against a defendant where it was “unclear whether [that defendant] had been individually
served with a complaint,” and that defendant had never appeared).
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CONCLUSION
For these reasons, the defendants’ motions to dismiss are granted in their entirety. The
plaintiff’s claims against the Kings County District Attorney and Reuters are dismissed with
prejudice. The plaintiff’s claims against the New York Attorney General, the individual
defendants, and the United States Attorney General are dismissed without prejudice for lack of
subject matter jurisdiction. Evans v. Adams, No. 22-CV-3882, 2024 WL 306240, at *5
(E.D.N.Y. Jan. 26, 2024). The plaintiff’s claims against the New York State Bar Association are
dismissed without prejudice for failure to prosecute.
The Court will not grant the plaintiff the opportunity to amend his complaint. See Harty
v. West Point Realty, 28 F.4th 435, 445 (2d Cir. 2022) (“A dismissal for lack of jurisdiction
without leave to amend is not the same thing as a dismissal with prejudice.”). “[L]eave to amend
may be properly denied if the amendment would be futile.” Monbo v. Nathan, 623 F. Supp. 3d
56, 143 (E.D.N.Y. 2022). A complaint is futile when, as a matter of law, any “proposed
amendments would fail to cure prior deficiencies.” Id. Where the deficiencies are substantive
rather merely the consequence of “inartful” pleading, repleading would be futile and leave to
amend should be denied. Id. at 144. “[L]eave to amend is not warranted ‘where it is clear from
the face of the complaint that the Court lacks subject matter jurisdiction or that a claim cannot be
stated as a matter of law.’” Hardie v. United States, 501 F. Supp. 3d 152, 162 (E.D.N.Y. 2020)
(citations omitted).
Here, the Court lacks subject-matter jurisdiction as to the New York Attorney General,
the United States Attorney General, and the individual defendants. As to the other defendants,
the Kings County District Attorney and Reuters, any repleading would be futile. These
deficiencies are substantive. The amended complaint is dismissed without leave to amend.
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SO ORDERED.
s/Ann M. Donnelly
___________________________
ANN M. DONNELLY
United States District Judge
Dated: Brooklyn, New York
March 26, 2024
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