Howery v. Chanis et al

Filing 5

MEMORANDUM & ORDER - For the reasons set forth above, Plaintiffs 2 application to proceed in forma pauperis is GRANTED, however the Complaint is sua sponte DISMISSED WITH PREJUDICE as against Defendants pursuant to 28 U.S.C. § 1915(e)(2)(B)(i i)-(iii). 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 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 Memorandum and Order to the Plaintiff at her last known address and to mark this case CLOSED. So Ordered by Judge Joanna Seybert on 6/26/2017. (Coleman, Laurie) c/m to pro se plaintiff; c/m Judgment Clerk.

FILED
CLERK

4:21 pm, Jun 26, 2017

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
LENORE HOWERY,

U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE

Plaintiff,

MEMORANDUM & ORDER
16-CV-7182(JS)(SIL)

-againstJUDGE ABIGAIL CHANIS, individually
and in her official capacity as
Justice of the NYS Worker’s
Compensation Court of Suffolk County,
New York; and BOARD PANEL EMPLOYEES
LOREN LOBBAN, MARGARET BARBERIS,
and ELLEN O. PAPROCKI,

Defendants.
----------------------------------X
APPEARANCES
For Plaintiff:
Lenore Howery, pro se
6 Ernst Avenue
Hicksville, NY 11801
For Defendants:

No appearances.

SEYBERT, District Judge:
On December 27, 2016, pro se plaintiff Lenore Howery
(“Plaintiff”) filed a Complaint pursuant to 42 U.S.C. § 1983
(“Section 1983”) against Workers’ Compensation Law Judge Abigail
Chanis, Judge of the New York State Workers’ Compensation Court of
Suffolk County, New York (“Judge Chanis”) and three Workers’
Compensation Board Members, Loren Lobban (“Lobban”), Margaret
Barberis

(“Barberis”),

and

Ellen

O.

Paprocki

(“Paprocki”

and

collectively, “Defendants”), accompanied by an application to
proceed in forma pauperis.

Plaintiff seeks to sue Judge Chanis in

her individual and official capacity.1
Upon

review

of

the

declaration

in

support

of

the

application to proceed in forma pauperis, the Court finds that
Plaintiff is qualified to commence this action without prepayment
of the filing fee.

See 28 U.S.C. § 1915(a)(1).

Therefore,

Plaintiff’s request to proceed in forma pauperis is GRANTED.
However, for the reasons that follow, the Complaint is sua sponte
DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)-(iii).
BACKGROUND2
Plaintiff

seeks

to

challenge

the

December

14,

2016

decision of the New York State Workers’ Compensation Board Panel,
which affirmed a determination made by Judge Chanis.3

Plaintiff

1

Plaintiff does not say whether she also seeks to sue Lobban,
Barberis, and Paprocki in their individual capacities. Affording
the pro se Complaint a liberal construction, the Court will
construe Plaintiff’s claims against these Defendants in both
their official and individual capacities.
2

The following facts are taken from Plaintiff’s Complaint and
are presumed to be true for the purpose of this Memorandum and
Order. See, e.g., Rogers v. City of Troy, N.Y., 148 F.3d 52, 58
(2d Cir. 1998) (in reviewing a pro se complaint for sua sponte
dismissal, a court is required to accept the material allegations
in the complaint as true).
3

The procedure for Workers’ Compensation Hearings and Appeals is
set forth on the State of New York’s Website at www.wcb.ny.gov.
According to the information maintained by the State of New York
concerning the Workers’ Compensation Board:
The Board may hold a hearing or hearings before a Workers
Compensation Law Judge. The Judge may take testimony,
review medical and other evidence and will decide whether
the claimant is entitled to benefits. If the claim is
determined to be compensable, the Judge determines the
2

also seeks to challenge the alleged conduct of Judge Chanis during
the

underlying

proceedings

Compensation claim.

concerning

Plaintiff’s

Workers’

Plaintiff alleges that Judge Chanis accused

Plaintiff of, inter alia, “intentionally providing an incorrect
social security number to the NYS Worker’s Compensation Board . .
.”, and potentially committing “fraud” in connection with her claim
for benefits.

(Compl. at 2-3.)

Plaintiff also claims that Judge

Chanis silenced her during the April 2016 hearing and did not
permit

Plaintiff

proceeding.

to

consult

(Compl. at 2.)

with

her

attorney

during

the

Thus, Plaintiff claims a deprivation

of her First, Fourth, Fifth, and Fourteenth Amendment rights.
(Compl. ¶ II, and at 2-4.)

amount and duration of the compensation award.
Either side may appeal the decision within 30 days of the
filing of the Judge’s decision. This is done by applying
in writing for Board review. If the application is
granted, a panel of three Board Members will review the
case. This panel may affirm, modify or rescind the
Judge’s decision, or restore the case to the Law Judge
for further development of the record. In the event the
panel is not unanimous, any interested party may make
application in writing for a full Board Review. The full
Board must review and either affirm, modify or rescind
such decision.
Appeals of Board Panel decisions may be taken to the
Appellate Division, Third Department, Supreme Court of
the State of New York, within 30 days. The decision of
the Appellate Division may be appealed to the Court of
Appeals.
See www.wcb.ny.gov/content/main/onthejob/hearings_OTJ.jsp (Last
visited on February 15, 2017).
3

For relief, Plaintiff seeks “injunctive relief commanding
defendant to reverse and/or nullify the Decision of the Board and
have my case removed to another Court” as well as any declaratory
and further “relief as this Court deems appropriate and just”
including the “costs of litigation.”

(Compl. at 5.)

DISCUSSION
I.

In Forma Pauperis Application
Upon review of Plaintiff’s declaration in support of the

application to proceed in forma pauperis, the Court finds that
Plaintiff is qualified 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
Section 1915 of Title 28 requires a district court 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).

The

Court is required to dismiss the action as soon as it makes such a
determination.
Courts are obliged to construe the pleadings of a pro se
plaintiff liberally. See Sealed Plaintiff v. Sealed Defendant, 537
F.3d 185, 191 (2d Cir. 2008); McEachin v. McGuinnis, 357 F.3d 197,
200 (2d Cir. 2004).

However, a complaint must plead sufficient
4

facts to “state a claim to relief that is plausible on its face.”
Bell Atl. 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.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.

Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (citation omitted).

The

plausibility standard requires “more than a sheer possibility that
a defendant has acted unlawfully.”

Id. at 678; accord Wilson v.

Merrill Lynch & Co., 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, 556 U.S.

at 678 (quoting Twombly, 550 U.S. at 555).
III.

Immunity
A.

Eleventh Amendment Immunity
Plaintiff names Judge Chanis, and three Members of the

Workers’ Compensation Board, Lobban, Barberis, and Paprocki, as
Defendants.

Plaintiff seeks to sue these Defendants in their

official and individual capacities.

Insofar as Plaintiff seeks to

recover a monetary award against these Defendants in their official
capacities, they are immune from suit under the Eleventh Amendment.
Papasan v. Allain, 478 U.S. 265, 276, 106 S. Ct. 2932, 2939, 92 L.
Ed. 2d 209 (1986); Pennhurst State Sch. & Hosp. v. Halderman, 465
5

U.S. 89, 98-100, 104 S. Ct. 900, 906-08, 79 L. Ed. 2d 67 (1984).
The Eleventh Amendment bars suits brought by a state’s
own citizens in federal court.

Woods v. Rondout Valley Cent. Sch.

Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006) (citing Alden
v. Maine, 527 U.S. 706, 712, 119 S. Ct. 2240, 2246, 144 L. Ed. 2d
636 (1999)).

As an agency or arm of the State of New York, the New

York State Workers’ Compensation Board, and its employees sued in
their official capacities, are immune from a Section 1983 suit
seeking damages under the Eleventh Amendment.

See Kentucky v.

Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114
(1985);

Maldonado v. N.Y. State Workers Comp. Bd., 05–CV–211A,

2005 WL 1523586, at *1 (W.D.N.Y. June 27, 2005); see also Marmot v.
Bd. of Regents, 367 F. App’x 191, 192 (2d Cir. 2010) (affirming
dismissal of Section 1983 action against New York state agency and
stating that “[i]t is well-established that New York has not
consented to § 1983 suits in federal court”).
Plaintiff’s

claims

for

damages

against

the

state

employees sued in their official capacities are barred by the
Eleventh Amendment.

Graham, 473 U.S. at 165-167, and n.14, (suit

for damages against state officer in official capacity is barred by
the Eleventh Amendment); Darcy v. Lippman, 356 F. App’x 434, 436-37
(2d Cir. 2009) (“Eleventh Amendment likewise bars [plaintiff] from
pursuing a claim for damages against the individual defendants in
their official capacities.”).

As such, Plaintiff’s claims against
6

these Defendants sued in their official capacities are barred by
the Eleventh Amendment to the Constitution, Idaho v. Coeur d’Alene
Tribe of Idaho, 521 U.S. 261, 268, 117 S. Ct. 2028, 2033, 138 L.
Ed. 2d 438 (1997), and are DISMISSED WITH PREJUDICE pursuant to 28
U.S.C. § 1915(e)(2)(b)(ii)-(iii).4
B.

Absolute Quasi-Judicial Immunity
Plaintiff’s Section 1983 claims, including her claims

seeking prospective injunctive relief from the Defendants in their
official

capacities

(which

are

not

barred

by

the

Eleventh

Amendment) are barred by absolute quasi-judicial immunity.

It is

well-established that judges have absolute judicial immunity from
suit for their judicial actions.

Mireles v. Waco, 502 U.S. 9, 11,

112 S. Ct. 286, 287, 116 L. Ed. 2d 9 (1991) (“[J]udicial immunity
is an immunity from suit, not just from ultimate assessment of
damages.”).

This absolute “judicial immunity is not overcome by

allegations of bad faith or malice” nor can a judicial officer be
deprived of immunity “because the action he took was in error or
was in excess of his authority.”

Mireles, 502 U.S. at 11, 13, 112

S. Ct. at 288 (1991) (internal quotation marks and citations

4

The Court notes that Plaintiff’s Section 1983 claims against
Defendants in their official capacities must be dismissed for the
additional reason that “[n]either a state nor one of its agencies
nor an official of that agency sued in his or her official
capacity is a ‘person’ under § 1983.” Spencer v. Doe, 139 F.3d
107, 111 (2d Cir. 1998); see also Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d 45
(1989).
7

omitted).

This immunity may be overcome only if the court is

alleged to have taken nonjudicial actions or if the judicial
actions taken were “in the complete absence of all jurisdiction.”
Id. at 11–12, 112 S. Ct. at 288.
“This immunity also extends to administrative officials
performing functions closely associated with the judicial process
because the role of the hearing examiner or administrative law
judge . . . is functionally comparable to that of a judge.”

Butz

v. Economou, 438 U.S. 478, 513, 98 S. Ct. 2894, 57 L. Ed. 2d 895
(1978) (internal quotation marks and citation omitted); see also
Durant v. N.Y. City Housing Auth., 12-CV-0937, 2012 WL 928343, *2
(E.D.N.Y. Mar. 9, 2012) (“This absolute judicial immunity has been
further applied to non-federal administrative hearing officers.”);
Person v. White, 09-CV-3920, 2010 WL 2723210, *5 at n.4 (E.D.N.Y.
July 2, 2010) (“Plaintiff’s claims stemming from the workers’
compensation proceedings also fail on other grounds. As a Workers’
Compensation

Law

Judge,

Judge

Lerner

enjoys

quasi-judicial

immunity.”) (citing Montero v. Travis, 171 F.3d 757, 760 (2d Cir.
1999); Gyadu v. Workers’ Comp. Comm’r, 930 F. Supp. 738 (D. Conn.
1996)

(state

workers’

compensation

commissioner

entitled

to

absolute immunity), aff’d, *390 129 F.3d 113 (2d Cir. 1997).
Here, Plaintiff complains of conduct allegedly performed
by Defendants in their roles as arbiters of Plaintiff’s workers’
compensation claim and there is nothing in the Complaint from which
8

the Court could reasonably construe that any alleged misconduct
occurred outside of that capacity or that any of the Defendants
lacked jurisdiction over the proceedings.
apparent,
immunity.

Defendants

are

Plaintiff

entitled

may

to

appeal

Thus, as is readily

absolute

the

quasi-judicial

underlying

workers’

compensation proceedings in state court, but she may not subject
Defendants to personal liability in this Court under Section 1983.
Accordingly, Plaintiff’s Section 1983 claims are not plausible and
are

thus

DISMISSED

WITH

PREJUDICE

pursuant

to

28

Circuit’s

guidance

that

a

U.S.C.

§ 1915(e)(2)(B)(ii)-(iii).
IV.

Leave to Amend
Given

the

Second

pro

se

complaint should not be dismissed without leave to amend unless
amendment would be futile, Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir. 2000), the Court has carefully considered whether leave to
amend is warranted here. Because the defects in Plaintiff’s claims
are substantive and would not be cured if afforded an opportunity
to amend, leave to amend these claims is DENIED.
CONCLUSION
For the reasons set forth above, Plaintiff’s application
to proceed in forma pauperis is GRANTED, however the Complaint is
sua sponte DISMISSED WITH PREJUDICE as against Defendants pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii)-(iii).
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
9

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 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
Memorandum and Order to the Plaintiff at her last known address and
to mark this case CLOSED.

SO ORDERED.

/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:

June
26 , 2017
Central Islip, New York

10