Keefe v. Judge Hope Zimmerman of the State Supreme Court of New York et al
Filing
5
MEMORANDUM & ORDER re: 2 Motion for Leave to Proceed in forma pauperis is GRANTED. The Complaint is sua sponte DISMISSED WITH PREJUDICE as against Parties Daniel Palmieri and Hope Zimmerman and these parties are TERMINATED from this action. Plainti ff's claims against Moroney, Banks, Carlson, LoFrumento, Keefe, and Wahmann are DISMISSED WITHOUT PREJUDICE with leave to replead within 30 days of the date of this Order. If Plaintiff does not timely file an Amended Complaint, the claims will b e dismissed with prejudice and the case will be closed. The Court certifies that any appeal from this Order would not be taken in good faith and in forma pauperis status is DENIED. Ordered by Judge Joanna Seybert on 11/18/2013. (C/M Plaintiff) (Nohs, Bonnie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
KELLY KEEFE,
Plaintiff,
MEMORANDUM & ORDER
13-CV-4447 (JS)(AKT)
-againstJUDGE HOPE ZIMMERMAN OF THE STATE
SUPREME COURT OF NEW YORK, JUDGE
DANIEL PALMIERI OF THE STATE
SUPREME COURT OF NEW YORK, FRANK
MORONEY, SCOTT BANKS, AMANDA
CARLSON ESQ., MICHAEL LOFRUMENTO
ESQ., WILLIAM KEEFE, and AMY
WAHMANN,
Defendants.
-----------------------------------X
APPEARANCES
For Plaintiff:
Kelly Keefe, pro se
260 Whitehall Street
Lynbrook, NY 11563
For Defendants:
No appearances.
SEYBERT, District Judge:
On
August
6,
2013,
pro
se
plaintiff
Kelly
Keefe
(“Plaintiff”) commenced this action pursuant to 42 U.S.C. § 1983
(“Section 1983”) against Judge Hope Zimmerman of the State Supreme
Court of New York (“Judge Zimmerman”), Judge Daniel Palmieri of the
State Supreme Court of New York (“Judge Palmieri”), Frank Moroney
(“Moroney”),
Scott
Banks
(“Banks”),
Amanda
Carlson,
Esq.
(“Carlson”), Michael LoFrumento, Esq. (“LoFrumento”), William Keefe
(“Keefe”),
and
“Defendants”).
Amy
Wahmann
Plaintiff’s
(“Wahmann”
Complaint
is
and
collectively,
accompanied
by
an
application to proceed in forma pauperis.
Upon
review
of
the
declaration
in
support
of
the
application to proceed in forma pauperis, the Court finds that the
Plaintiff’s financial status qualifies her to commence this action
without prepayment of the filing fee.
1915(a)(1).
See 28 U.S.C. §§ 1914(a);
Therefore, Plaintiff’s request to proceed in forma
pauperis is GRANTED.
However, for the reasons that follow, the
Complaint is sua sponte DISMISSED.
BACKGROUND1
Plaintiff alleges that Defendants violated her equal
protection, due process, and 14th Amendment rights in connection
with a matrimonial case (the “State Court Action”).
Specifically,
the Complaint states as follows:
1. Defendant Judge Palmieri allowed Defendant
William Keefe to repeatedly make baseless
allegations and statements that were never
proven as fact and adverse to my character and
which became material to the order of July 1st
2013 that permanently deprived me of custody
of my three minor children.
2. Removal of my children per the order of
July 1st 2013 was not based on factual evidence
against me but the temperament of Judge
Palmieri,
[w]hich
denies
me
of
equal
protection guaranteed by the United States
Constitution.
1
The following facts are taken from Plaintiff’s Complaint and
are presumed to be true for the purposes of this Memorandum and
Order.
2
3.
Defendant Judge Hope Zimmerman did not
rule on or enforce a stipulation of support
signed during the period of June to October
2012.
This enforcement was necessary to
preserve my right of due process and equal
protection.
4.
Defendant Judge Palmieri insisted on
granting Defendant William Keefe an[] order of
support even though Defendant Keefe stated
that he would waive such support.
5. To date Defendant William Keefe is granted
an order of support while I was never granted
one by Judge Palmieri as custodial parent.
6. Defendant Amy Wahmann, a Federal Employee
of Homeland Security and live-in girlfriend of
Defendant William Keefe, personally told me
numerous times prior to Judge Palmieri’s order
of July 1, 2013 that she was “going to have my
children taken away from me and that she would
make sure of that with any and all authority
that she has.”
7. As a result of the actions of the above
Defendants I am and continue to be harmed.
(Compl. ¶¶ 1-7.)
Plaintiff seeks “[a]n order from this Court voiding all
judgments, decisions and orders” that the state court has entered
in
her
state
court
matter,
and
“[a]n
order
restraining
all
Defendants from the transfer, sale, or liquidation of their assets
pending decision of this matter.”
(Id. at 2.)
She also seeks
$12,000,000 (twelve million dollars) in punitive and compensatory
damages (Id.)
3
DISCUSSION
I.
Application to Proceed In Forma Pauperis
Upon review of Plaintiff’s declaration in support of her
application to proceed in forma pauperis, the Court finds that
Plaintiff’s financial status qualifies her to commence this action
without prepayment of the filing fees. See 28 U.S.C. § 1915(a)(1).
Therefore, Plaintiff’s request to proceed in forma pauperis is
GRANTED.
II.
Application of 28 U.S.C. § 1915
A district court is required to dismiss an in forma
pauperis complaint if the action is frivolous or malicious, fails
to state a claim upon 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)(i)-(iii), 1915A(b).
required
to
dismiss
determination.
the
action
as
soon
as
it
The Court is
makes
such
a
See id. § 1915A(b).
Courts are obliged to construe the pleadings of a pro se
plaintiff liberally.
Sealed Plaintiff v. Sealed Defendant, 537
F.3d 185, 191 (2d Cir. 2008); McEachin v. McGuinnis, 357 F.3d 197,
200 (2d Cir. 2004). As stated earlier, at the pleadings stage, 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 111, 124 (2d Cir. 2010), aff’d. --- U.S. -4
--, 133 S. Ct. 1659, 185 L. Ed. 2d 671 (2013) (citing Iqbal, 556
U.S. 662).
However, a complaint must plead sufficient facts to
“state a claim to relief that is plausible on its face.”
Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,
1974, 167 L. Ed. 2d 929 (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.”
Iqbal, 556 U.S. at 678 (citations omitted).
The plausibility standard requires “more than a sheer possibility
that defendant has acted unlawfully.”
Id.;
accord Wilson v.
Merrill Lynch & Co., Inc., 671 F.3d 120, 128 (2d Cir. 2011).
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.’”
Iqbal, at 678
(quoting Twombly, 550 U.S. at 555).
III.
Section 1983
Section 1983 provides that
[e]very person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes
to be subjected, any citizen of the United
States . . . to the deprivation of any rights,
privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured . . . .
42 U.S.C. § 1983; Rehberg v. Paulk, --- U.S. ----, 132 S. Ct. 1497,
5
1501–02, 182 L. Ed. 2d 593 (2012).
To state a claim under Section
1983, a plaintiff must “‘allege that (1) the challenged conduct was
attributable at least in part to a person who was acting under
color of state law and (2) the conduct deprived the plaintiff of a
right guaranteed under the Constitution of the United States.’”
Rae v. Cnty. of Suffolk, 693 F. Supp. 2d 217, 223 (E.D.N.Y. 2010)
(quoting Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999)).
In addition, in order to state a claim for relief under
Section 1983 against an individual defendant, a plaintiff must
allege the personal involvement of the defendant in the alleged
constitutional deprivation.
(2d Cir. 2010).
See Farid v. Elle, 593 F.3d 233, 249
A complaint based upon a violation under Section
1983 that does not allege the personal involvement of a defendant
fails as a matter of law.
(2d Cir. 2010).
See Johnson v. Barney, 360 F. App’x 199
With these standards in mind, the Court considers
the Plaintiff’s claims.
A.
Claims Against Judges Zimmerman and Palmieri
Plaintiff seeks to sue New York State Supreme Court Judge
Zimmerman and Judge Palmieri who were involved in the underlying
State Court Action.
However, Judges Zimmerman and Palmieri are
entitled to absolute judicial immunity. It is well-settled that
judges have generally been accorded absolute immunity for damages
arising out of judicial acts performed in their judicial roles.
6
See Mireles v. Waco, 502 U.S. 9, 11–12, 112 S. Ct. 286, 116 L. Ed.
2d 9 (1991) (“[J]udicial immunity is an immunity from suit . . .
[and] the immunity is overcome only in two sets of circumstances.
First, a judge is not immune from liability for nonjudicial
actions, i.e., actions not taken in the judge’s judicial capacity.
Second, a judge is not immune for actions, though judicial in
nature, taken in the complete absence of all jurisdiction.”)
(internal citations omitted); see also Fields v. Soloff, 920 F.2d
1114, 1119 (2d Cir. 1990) (“A judge defending against a [s]ection
1983 suit is entitled to absolute immunity from damages for actions
performed in his judicial capacity.”) (internal citations omitted).
In addition, the Federal Courts Improvement Act (“FCIA”), Pub.L.
No. 104-317, 110 Stat. 3847 (1996), § 309(c) bars injunctive relief
in any Section 1983 action “against a judicial officer for an act
or omission taken in such officer’s judicial capacity . . . unless
a
declaratory
unavailable.”
decree
was
violated
or
declaratory
relief
was
Id. § 309(c), 110 Stat. at 3853 (amending 42 U.S.C.
§ 1983); see also Huminski v. Corsones, 396 F.3d 53, 74 (2d Cir.
2005); Guerin v. Higgins, 8 F. App’x 31, 32 (2d Cir. 2001).
Here, even liberally construing the Complaint, Plaintiff
alleges no acts performed by Judges Zimmerman and Palmieri that
fall outside the scope of absolute judicial immunity.
Rather,
Plaintiff complains that Judge Palmieri allowed Keefe to make
7
unproven statements in court that slighted Plaintiff’s character,
based his decision in the case upon his own temperament, and
granted Keefe an order of support which Keefe was willing to waive.
(Compl. ¶¶ 1-2, 4.)
Plaintiff also complains that Judge Zimmerman
did not rule on or enforce a necessary stipulation of support.
(Id.
¶
3.)
Hearing
evidence
during
the
course
of
a
legal
proceeding and deciding motions are certainly acts performed within
a
judge’s
“judicial
capacity”
and
such
determinations
undoubtedly entitled to absolute judicial immunity.
are
Accordingly,
Plaintiff’s claims against Judge Zimmerman and Judge Palmieri are
DISMISSED WITH PREJUDICE.
B.
Claims Against Moroney, Banks, Carlson, and LoFrumento
Although Plaintiff names Moroney, Banks, Carlson, and
LoFrumento
as
Defendants,
there
are
no
factual
allegations
concerning them in the Complaint.
Moroney and Banks are not
mentioned anywhere in the Complaint.
In addition, the Complaint’s
only mention of Carlson and LoFrumento is a single, conclusory
allegation
that
they
constitutional rights.
assisted
in
the
(Compl. at 1.)
denial
of
Plaintiff’s
Plaintiff has not provided
any information as to the personal involvement of any of these four
Defendants in the incidents in question.
See Warren v. Goord, 476
F. Supp. 2d 407, 413 (S.D.N.Y. 2007), aff’d. 368 F. App’x 161 (2d
Cir. 2010) (“It is well settled in this Circuit that ‘personal
8
involvement of defendants in alleged constitutional deprivations is
a prerequisite to an award of damages under § 1983.’”) (quoting
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)).
Here, Plaintiff’s Complaint does not include any factual
allegations sufficient to demonstrate any personal involvement by
Defendants Moroney, Banks, Carlson, and LoFrumento.
Accordingly,
Plaintiff’s Section 1983 claims asserted against Moroney, Banks,
Carlson, and LoFrumento are DISMISSED WITHOUT PREJUDICE.
C.
Claims Against Keefe and Wahmann
Plaintiff also names Keefe and Wahmann as Defendants. As
noted earlier, a claim for relief under Section 1983 must allege
facts sufficient to establish that the defendant acted under color
of state law.
See 42 U.S.C. § 1983; Rae, 693 F. Supp. 2d at 223.
Plaintiff
brings
suit
against
Keefe
solely
individual capacity as the father of her three children.
in
his
Wahmann,
alleged to be an employee of the Federal Department of Homeland
Security, is a defendant in this suit only in her personal capacity
as Keefe’s girlfriend. Neither Keefe nor Wahmann are alleged to be
state actors.
Only in limited circumstances will courts recognize that
private individuals may be subject to liability under Section 1983.
“To state a claim against a private [individual] on a section 1983
conspiracy theory, the complaint must allege facts demonstrating
9
that the private [individual] acted in concert with the state actor
to commit an unconstitutional act.”
Ciambriello v. Cnty. of
Nassau, 292 F.3d 307, 324 (2d Cir. 2002) (internal quotation marks
and citation omitted); see also Pangburn v. Culbertson, 200 F.3d
65, 72 (2d Cir. 1999) (stating that a Section 1983 conspiracy
requires (1) an agreement between state and private actors; “(2) to
act in concert to inflict an unconstitutional injury; and (3) an
overt act done in furtherance of that goal causing damages”).
Although
Plaintiff
alleges
that
Defendants
Keefe
and
Wahmann
benefitted from the State Court Action, there are no allegations in
Plaintiff’s Complaint of any conspiracy between Defendants Keefe
and Wahmann and any state actors.
Given that Keefe and Wahmann are not state actors and are
not
alleged
to
have
conspired
with
state
actors
to
deprive
Plaintiff of her constitutional rights or of rights secured by the
laws of the United States, Plaintiff’s Section 1983 claims against
Defendants Keefe and Wahmann are DISMISSED WITHOUT PREJUDICE.
IV.
Leave to Replead
Rule 15(a)(2) of the Federal Rules of Civil Procedure
provides that a party shall be given leave to amend the Complaint
“when justice so requires.”
Nevertheless, “[l]eave to amend,
though liberally granted, may properly be denied for: ‘undue delay,
bad faith or dilatory motive on the part of the movant, repeated
10
failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.’”
Ruotolo v. City of N.Y.,
514 F.3d 184, 191 (2d Cir. 2008) (citing Foman v. Davis, 371 U.S.
178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962)); see also Burch v.
Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008).
“[W]hen addressing a pro se complaint, a district court should not
dismiss without granting leave to amend at least once when a
liberal reading of the complaint gives any indication that a valid
claim might be stated.”
Thompson v. Carter, 284 F.3d 411, 416 (2d
Cir. 2002) (internal quotation marks and citation omitted); see
also Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010).
As
Plaintiff’s
claims
against
Judges
Zimmerman
and
Palmieri are barred by absolute immunity, such claims are DISMISSED
WITH PREJUDICE and without leave to replead.
However, because
Plaintiff may plausibly raise a claim against Defendants Moroney,
Banks, Carlson, LoFrumento, Keefe, and Wahmann, such claims are
DISMISSED
WITHOUT
PREJUDICE
and
with
leave
to
replead.
If
Plaintiff wishes to file an Amended Complaint, she must do so
within thirty (30) days of the date of this Order.
The Amended
Complaint must be titled “Amended Complaint” and bear the same
docket number as this Order, No. 13-CV-4447(JS)(AKT).
Plaintiff’s
Amended Complaint will supercede her original Complaint. Therefore
11
all claims and allegations Plaintiff wishes to pursue should be
included in her Amended Complaint.
If Plaintiff does not file an
Amended Complaint, her claims will be dismissed with prejudice and
the case will be closed.
CONCLUSION
For the reasons set forth above, in forma pauperis status
is GRANTED.
Moreover, the Complaint is sua sponte DISMISSED WITH
PREJUDICE as to Defendants Judge Zimmerman and Judge Palmieri on
the basis on judicial immunity.
Plaintiff’s claims against Defendants Moroney, Banks,
Carlson, LoFrumento, Keefe, and Wahmann are DISMISSED WITHOUT
PREJUDICE and with leave to replead in accordance with this Order.
Plaintiff’s Amended Complaint must be filed within thirty (30) days
of the date this Order is signed.
If Plaintiff does not timely
file an Amended Complaint, her claims against Defendants Moroney,
Banks, Carlson, LoFrumento, Keefe, and Wahmann will be dismissed
with prejudice, and this case will be closed.
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
[THE BOTTOM OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
12
and therefore in forma pauperis status is DENIED for the purpose of
any appeal.
See Coppedge v. United States, 369 U.S. 438, 444-45,
82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
The Clerk of the Court is directed to mail a copy of this
Order to the pro se Plaintiff.
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:
November
18 , 2013
Central Islip, New York
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