DePaoli v. Bivona

Filing 6

ORDER granting 2 Motion for Leave to Proceed in forma pauperis. SO ORDERED that plaintiffs application for leave to proceed in forma pauperis is granted and the complaint is sua sponte dismissed in its entirety with prejudice. The Clerk of the Cou rt is directed to close this case and, pursuant to Rule 77(d)(l) of the Federal Rules of Civil Procedure, to serve notice of entry of this order upon all parties in accordance with Rule 5(b) of the Federal Rules of Civil Procedure, including mailing a copy of this order to plaintiff at his address of record. 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 any appeal. CM to pro se plaintiff. Ordered by Judge Sandra J. Feuerstein on 2/22/2012. (Florio, Lisa)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

------------------------------------------------------------)(
MICHAEL J. DEPAOLI,
Plaintiff,
ORDER
12-CV -0359 (SJF)(ARL)

-againstHON. JOHN C. BIVONA, JSC
Defendant.

------------------------------------------------------------)(
FEUERSTEIN, District Judge:

FILED
IN CLERK'S OFFICE
U S DISTRICT COURT E D NY

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i: c.tl 2 2 2012

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LONG ISLAND OFFICE
I.

INTRODUCTION
On January 24,2012, prose plaintiff Michael J. DePaoli ("plaintiff') filed a complaint in

this Court against defendant, the Honorable John C. Bivona ("Justice Bivona"), Justice of the
New York State Supreme Court, together with an application to proceed in forma pauperis.
Plaintiffs financial status, as set forth in the declaration in support of his application to proceed
in forma pauperis, qualifies him to commence this action without prepayment of the filing fees.
See 28 U.S.C. § 19!5(a)(l). Accordingly, plaintiffs application to proceed in forma pauperis is
granted. However, for the reasons set forth below, the complaint is sua sponte dismissed with
prejudice.

II.

THE COMPLAINT
In his complaint, plaintiff alleges:
"Under the juristiction [sic] of the Supreme Court held by Hon.
John C. Bivona during the proceedings held by him during 20 I 0,
2011 up and until his court order of Jan 20,2012 under index#
36305/2009 this Supreme Court justice violated my US
Constitutional rights under Art. #I with abridgement of speech and

redress of grievances, Art. #4 unreasonable seizures of personal
effects and property and monies and others, Art. #5 deprivation of
property and liberties without due process oflaw, Art. #7 rights of
trial by jury, and others under Art. #9, Art. #10 and Art. #14 in
addition the Hon. John C. Bivona violated my rights under the
Americans with Disabilities Act and other federal rights and civil
rights and also discriminated against me due to my age, race,
religion, ethnicity, gender and socioeconomic status. He also
failed in his judicial fiduciary responsibilities and was biased,
discriminatory, and very partial to the plaintiff and plaintiff's
counsel in all their affairs making his actions unbecoming that of a
NYS Supreme Court Justice."
(Compl. at ~ III(C)). 1
Plaintiff seeks, inter alia, "an immediate injunction against any and all actions, motions
and decrees taken by/made by [Justice Bivona]" and unspecified monetary damages. (Compl., at
~V).

III.

DISCUSSION
A.

The In Forma Pauperis Statute

A district court is required to dismiss an in forma pauperis complaint if the action is
frivolous or malicious; fails to state a claim on which relief may be granted; or seeks monetary
relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B).
It is axiomatic that district courts are required to read prose complaints liberally, see
Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Estelle v.

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Plaintiff filed a nearly identical in forma pauperis complaint against Hon. Carol
Mackenzie, New York State Supreme Court, Suffolk County,~ DePaoli v. Mackenzie, 10-CV3560(SJF)(ARL), which was sua sponte dismissed with prejudice as barred by the doctrine of
judicial immunity. Justice Mackenzie apparently recused herself in the Supreme Court
proceedings in or about December 15,2010, following which the action was reassigned to
Justice Bivona. (Compl., ~ III(B)).
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Gamble, 429 U.S. 97, 106,97 S.Ct. 285,50 L.Ed.2d 251 (1976)); Chavis v. Chappius, 618 F.3d
162, 170 (2d Cir. 20 I 0), and to construe them '"to raise the strongest arguments that [they)
suggest[)."' Chavis, 618 F.3d at 170 (quoting Harris v. Citv ofNew York, 607 F.3d 18,24 (2d Cir.
20 I 0) ). Moreover, at the pleadings stage of the proceeding, the Court must assume the truth of "all
well-pleaded, nonconclusory factual allegations" in the complaint. Kiobel v. Royal Dutch
Petroleum Co., 621 F.3d Ill, 124 (2d Cir. Sept. 2010); see also Jackson v. Birmingham Board of
Education, 544 U.S. 167, 171, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005).

B.

Immunity from Suit

Plaintiffs claims seeking retroactive relief, including monetary damages, are barred by
the doctrine of absolute judicial immunity, which allows such claims to proceed against judges
only for: (I) "non-judicial actions, i.e., actions not taken in the judge's judicial capacity;" or (2)
"actions, though judicial in nature, taken in the complete absence of all jurisdiction." Mireles v.
Waco, 502 U.S. 9, 11-12, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991) (internal citations omitted);~
Stump v. Sparkman, 435 U.S. 349,356,98 S.Ct. 1099,55 L.Ed.2d 331 (1978). This absolute
"judicial immunity is not overcome by allegations of bad faith or malice," nor can a judge "be
deprived of immunity because the action he took was in error ... or was in excess of his
authority." Mireles, 502 U.S. at II, 112 S.Ct. 286 (quoting Stump, 435 U.S. at 356, 98 S. Ct.
1099).
Moreover, plaintiff's claim seeking injunctive relief is barred by statutory judicial
immunity under Section 1983. See Montero v. Travis, 171 F.3d 757, 761 (2d Cir. 1999); see also
McKnight v. Middleton, 699 F.Supp.2d 507, 524-25 (E.D.N.Y. 2010), aff'd, 434 Fed. Appx. 32

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(2d Cir. Oct. 5, 2011 ). Section 1983 provides, in relevant part, that "in any action brought
against a judicial officer for an act or omission taken in such officer's judicial capacity,
injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief
was unavailable." See Jacobs v. Mostow, 271 Fed. Appx. 85, 88 (2d Cir. Mar. 27, 2008) (holding
that claims for prospective injunctive relief against a judicial officer are not available under
Section 1983 absent an allegation of a violation of a prior declaratory decree).
Since, inter alia: (1) all of plaintiffs claims relate to actions taken in Justice Bivona's
judicial capacity and (2) plaintiff does not allege (a) that Justice Bivona acted outside of his role
as a judicial officer, without jurisdiction or in violation of a declaratory decree or (b) that
declaratory relief is unavailable, the complaint is dismissed in its entirety with prejudice.

C.

The All Writs Act

As noted above, plaintiff commenced this second action against a New York State
Supreme Court Justice notwithstanding that his prior action, against the previously-assigned
justice in his state court proceeding, was dismissed with prejudice as barred by absolute judicial
immunity. Under the All-Writs Act, a federal district court "may issue all writs necessary or
appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of
law." 28 U.S.C. § 1651(a). The All-Writs Act "grants district courts the power, under certain
circumstances, to enjoin parties from filing further lawsuits," MLE Realty Assocs. v. Handler,
192 F.3d 259,261 (2d Cir. 1999); see also Safirv. U.S. Lines, Inc., 792 F.2d 19,23-4 (2d Cir.
1986), including circumstances in which a litigant engages in the filing of repetitive and frivolous
lawsuits.

See,~

Malley v. New York City Board ofEduc., 112 F.3d 69 (2d Cir. 1997)
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(~

curiam) (affirming the imposition of a filing injunction after the plaintiff filed numerous
complaints based upon the same events which were repetitively dismissed); In re Martin-Trigona,
9 F.3d 226, 227-28 (2d Cir. 1993). Such an injunction may not be imposed, however, unless the
Court provides the party to be enjoined with notice and an opportunity to be heard. See Moates
v. Barkley, 147 F.3d 207,208 (2d Cir. 1998) (ill<! curiam); MLE Realtv, 192 F.3d at 261.
Plaintiff is hereby advised that his repeated filing of in forma pauperis complaints against
New York State Supreme Court Justices presiding over state court proceeding(s) to which he is a
party is deemed to be an abuse of the judicial process. The Court has an "obligation to protect
the public and the efficient administration of justice from individuals who have a history of
litigation entailing vexation, harassment and needless expense to other parties and an
unnecessary burden on the courts and their supporting personnel." Lau v. Meddaugh, 229 F.3d
121, 123 (2d Cir. 2000) (internal citations, alterations and punctuation omitted). Accordingly,
plaintiff is cautioned that any future frivolous filings against any New York State Supreme Court
Justice presiding over a state court proceeding to which plaintiff is a party will not be tolerated
and may result in sanctions being imposed against him, including an injunction against future
Court filings without first seeking leave of Court.'

VI.

CONCLUSION
For the reasons set forth above, plaintiffs application for leave to proceed in forma

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In the event such a filing injunction is imposed, the Clerk of the Court will be directed
to return to plaintiff, without filing, any filing received by plaintiff without a clear application
seeking leave to file and, in the event any such action is commenced without leave of Court, the
Court will sua sponte dismiss such action with prejudice and without further notice to plaintiff.
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pauperis is granted and the complaint is sua sponte dismissed in its entirety with prejudice. The

Clerk of the Court is directed to close this case and, pursuant to Rule 77(d)(l) of the Federal
Rules of Civil Procedure, to serve notice of entry of this order upon all parties in accordance with
Rule 5(b) of the Federal Rules of Civil Procedure, including mailing a copy of this order to
plaintiff at his address of record pursuant to Rule 5(b )(2)(C).
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 any appeal. See Copjledge v. United States, 369 U.S. 438,444-45, 82 S. Ct. 917, 8 L. Ed.2d
21 (1962).

SO ORDERED.

Dated:

s/ Sandra J. Feuerstein
Sandra J. Feuerstein
United States District Judge

Febru~~Ol2
Central Islip, New York

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