Holubar v. Nicolai et al

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 3 Motion for Preliminary Injunction filed by Bjorn Holubar, 19 Report and Recommendations. Mr. Holubar's objections to the R&R are OVERRULED. The Court ADOPTS Judge Lindsay's R&R in its en tirety. Mr. Holubar's motion for a preliminary injunction is DENIED. The Amended Complaint is DISMISSED WITH PREJUDICE. The Clerk of the court is directed to mark this matter CLOSED. ( Ordered by Judge Joanna Seybert on 12/15/2010.) (Fagan, Linda)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------X BJORN HOLUBAR, Plaintiff, -againstFRANCIS NICOLAI,
ET AL.,

MEMORANDUM & ORDER 10-CV-2494 (JS)(ARL)

Defendants. ------------------------------------X APPEARANCES: For Plaintiff: Bjorn Holubar, pro se 4 Childs Lane Setauket, NY 11733 For Defendants1: Ralph Pernick, Esq. New York State Attorney General 200 Old County Road, Suite 240 Mineola, NY 11501 John P. Eiseman, Esq. Office of Court Administration 25 Beaver Street, 11th Floor New York, NY 10004 SEYBERT, District Judge: Pending before the Court is Magistrate Judge Arlene Lindsay's Report and Recommendation ("R&R"), recommending that the Court deny pro se2 Plaintiff Bjorn Holubar's motion for a

1

Mr. Pernick represents Defendants Francis Nicolai and the New York Secretary of State. Mr. Eiseman represents Defendant New York State Office of Court Administration. The remaining Defendants (Ann Pafau, Larraine Cortez Vazquez, and "John & Jane Does") have not appeared.
2

Mr. Holubar is a recently suspended attorney. See Matter of Holubar, 73 A.D.3d 214, 899 N.Y.S.2d 201 (1st Dep't 2010). His suspension is not related to this suit, or the underlying divorce proceedings.

preliminary injunction, and dismiss his Complaint. has objected to Judge Lindsay's R&R.

Mr. Holubar

For the following reasons,

Mr. Holubar's objections are OVERRULED, and Judge Lindsay's R&R is ADOPTED IN ITS ENTIRETY. for a preliminary Consequently, Mr. Holubar's motion is DENIED and this action is

injunction

DISMISSED.3 DISCUSSION The Court presumes familiarity with Judge Lindsay's R&R. See Docket No. 19. In brief, Mr. Holubar is upset over

certain decisions Justice Francis A. Nicolai rendered against him in on-going state court divorce proceedings. Rather than

pursue proper state court channels, Mr. Holubar launched this collateral attack on Justice Nicolai's rulings. putative class action, Mr. Holubar contends Framed as a that Justice

Nicolai's rulings are void because Justice Nicolai is not, in fact, legally a Justice. In this regard, Mr. Holubar claims

that Justice Nicolai vacated his position by failing to file a timely Oath of Office. On June 28, 2010, Judge Lindsay issued her R&R. Judge

Lindsay concluded that Mr. Holubar's motion for a preliminary injunction "should be denied and the complaint dismissed for a

Mr. Holubar amended his Complaint as of right on June 22, 2010, but his substantive allegations do not differ. See Docket No. 18. So the Court considers Magistrate Judge Lindsay's R&R in light of the Amended Complaint.

3

number of reasons," including Eleventh Amendment immunity, the Rooker-Feldman doctrine, the Younger abstention doctrine, and R&R at 3-4. Mr. Holubar So the

the lack of a private right of action.

objects to each of Judge Lindsay's recommendations. Court reviews them de novo. See 28 U.S.C. § 636(b)(1).

Having done so, the Court agrees with Judge Lindsay that, "for a number of reasons," Mr. Holubar neither states a claim nor establishes a right to injunctive relief. R&R at 3-4.

For sake of brevity, however, the Court discusses only one of these reasons at length: the Younger abstention doctrine. In federal the Amended Complaint, on Mr. Holubar predicates of his

question

jurisdiction

alleged

violations

constitutional rights.

Principally, Mr. Holubar contends that,

because Justice Nicolai was (supposedly) not an actual Justice, his rulings violated Mr. Holubar's Younger, equal however, protection the Court and due

process

rights.

Under

should

decline jurisdiction when: (1) state proceedings are pending; (2) an important state interest is implicated in those

proceedings; and (3) the state proceedings afford an avenue open for review of the constitutional claims. 269 F.3d 149, 152 (2d Cir. 2001). See Grieve v. Tamerin,

Here, the divorce proceedings

before Justice Nicolai remain pending, and "New York state has an important interest in administering family law," including determining the legal status of its judicial officers. Finnan

v. Ryan, 357 Fed. Appx. 331, 333 (2d Cir. 2009) (barring suit against state court judges arising out of divorce case).

Finally, N.Y. C.P.L.R. § 7804(i) provides an avenue for Mr. Holubar Justice to raise his legal constitutional status and claims orders, arising by out of Mr.

Nicolai's

enabling

Holubar to commence a special proceeding against him. Mr. notwithstanding Holubar Justice also appears legal to argue his that, orders But

Nicolai's

status,

substantively violated Mr. Holubar's constitutional rights.

these claims also fall under Younger, and for the same reasons. See Finnan, 357 Fed. Appx. at 333. It follows then that the Court should decline to

exercise jurisdiction over Mr. Holubar's claims.

Consquently,

it cannot grant Mr. Holubar any preliminary injunctive relief, and must dismiss this action in its entirety.

CONCLUSION Mr. The Court Holubar's Judge objections Lindsay's to R&R the in R&R its are OVERRULED. Mr. The

ADOPTS

entirety.

Holubar's motion for a preliminary injunction is DENIED. Amended Complaint is DISMISSED WITH PREJUDICE. Court is directed to mark this matter as CLOSED.

The Clerk of the

SO ORDERED. /s/ JOANNA SEYBERT Joanna Seybert, U.S.D.J. Dated: December 15, 2010 Central Islip, New York