Dinsio v. Appellate Division, Third Department

Filing 35

DECISION AND ORDER granting # 33 Plaintiff's Motion to Supplement Pleadings; and granting # 22 Defendant's Motion to Dismiss Plaintiff's Amended Complaint. Signed by Chief Judge Glenn T. Suddaby on 7/14/17. (lmw)(Copy served upon pro se plaintiff via regular mail)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________
AMIL DINSIO,
Plaintiff,

1:16-CV-0324
(GTS/CFH)

v.
APPELLATE DIVISION, THIRD DEPARTMENT,
A State Court of Appeals,
Defendant.
___________________________________________
APPEARANCES:

OF COUNSEL:

AMIL DINSIO, 97-A-5765
Plaintiff, Pro Se
Livingston Correctional Facility
P.O. Box 91
Sonyea, New York 14556
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224

COLLEEN D. GALLIGAN, ESQ.
DENISE P. BUCKLEY, ESQ.
Assistant Attorneys General

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se civil rights action filed by Amil Dinsio
(“Plaintiff”) against the New York State Supreme Court, Appellate Division, Third Judicial
Department (“Defendant” or “Third Department”), are Defendant’s motion to dismiss Plaintiff’s
Amended Complaint for lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1),
and/or for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. No. 22), and
Plaintiff’s motion to “supplement [his] legal filings with additional evidence.” (Dkt. No. 33).

For the reasons set forth below, Plaintiff’s motion to supplement is granted, and Defendant’s
motion to dismiss is granted.
I.

RELEVANT BACKGROUND
A.

Plaintiff’s Amended Complaint

Generally, liberally construed, Plaintiff’s Amended Complaint alleges as follows. (Dkt.
No. 10.)1 In June of 1997, Plaintiff was convicted of armed robbery and kidnapping a police
officer in the Town of East Greenbush, New York. (Dkt. No. 1, ¶¶ 1-2 [Pl.’s Compl.].) Plaintiff
was sentenced to serve 25 years in prison. (Id., ¶ 2.) Thereafter, Plaintiff appealed his
conviction and filed federal habeas corpus petitions regarding his incarceration, which were
denied. (Id., ¶ 4.)
On May 27, 2011, the New York County Court, Rensselaer County (“Rensselaer County
Court”), dismissed Plaintiff’s motions to vacate his convictions, pursuant to N.Y. Crim. Proc.
Law (“CPL”) § 440.10, which were based on various claims regarding the proof offered at trial,
including an allegation that a tape recording of police radio transmissions was fabricated and/or
fraudulent. (Id., ¶ 32; Dkt. No. 1, Attach. 4, at 11 [Pl.’s Ex. “14-14-14”]; Dkt. No. 1, Attach. 15,
at 2 [Pl.’s Ex. “J”].)2
On May 24, 2012, the Third Department issued a Decision and Order denying Plaintiff’s

1

Although the Amended Complaint is the sole operative pleading pursuant to
Local Rule 7.1(a)(4), the Amended Complaint improperly attempts to incorporate by reference
the allegations set forth in the original Complaint. However, out of special solicitude to Plaintiff
as a pro se civil rights litigant, the Court will refer to both pleadings for purposes of reciting the
relevant allegations. (Dkt. No. 1 [Pl.’s Compl.]; Dkt. No. 10 [Pl.’s Am. Compl.].)
2

Page citations refer to the page numbers used on CM/ECF rather than the actual
page numbers contained in Plaintiff’s pleadings.
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application pursuant to CPL § 460.15 for permission to appeal the orders entered by the
Rensselaer County Court, dated September 23, 2010, January 20, 2011, May 27, 2011, and
February 8, 2012, which denied Plaintiff’s attempts to overturn his conviction. (Dkt. No. 1, ¶ 33
[Pl.’s Compl.]; Dkt. No. 1, Attach. 18, at 2 [Pl.’s Ex. “L”].) Justices Robert S. Rose, Elizabeth
A. Garry, Edward O. Spain, Michael E. Kavanagh, and Leslie E. Stein concurred in this
decision. (Dkt. No. 1, Attach. 18, at 2 [Pl.’s Ex. “L”].)3
On June 16, 2012, Plaintiff filed a motion requesting that the Third Department
reconsider its order of May 24, 2012 (Dkt. No. 1, Attach. 51 [Pl.’s Ex. “111”]); and, while this
motion was pending, Plaintiff filed, along with a petition for a writ of mandamus to compel
pursuant to Article 78 of the New York Civil Practice Law and Rules (“CPLR”), a request for an
Order directing the Third Department to show cause “why the Court should not be compelled to
do its CPLR § 5501(c) duties to determine if the tape is fabricated, among other mandatory Court
duties specified by the Plaintiff in his article 78.” (Dkt. No. 1, ¶ 34 [Pl.’s Compl.].)
On October 19, 2012, the Third Department sent a letter to Plaintiff advising him that it
was in receipt of his papers in support of his request for an order to show cause. (Dkt. No. 1,
Attach. 19, at 2 [Pl.’s Ex. “M”].) The Third Department returned these papers to Plaintiff and
suggested that he proceed by notice of petition instead. (Id.; Dkt. No. 1, ¶ 35 [Pl.’s Compl.].) In
addition, the Third Department advised him that any petition filed with the court must be
accompanied by a $315.00 filing fee or a request to proceed as a poor person. (Dkt. No. 1,
Attach. 19, at 2 [Pl.’s Ex. “M”].)

3

The Court takes judicial notice of the fact that Justice Stein now sits on the New
York Court of Appeals and Justices Spain and Kavanagh have retired from the bench.
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On October 26, 2012, Plaintiff wrote to the Clerk of the Third Department and advised
the Clerk that his appeal was late because he attempted to file it with the wrong court and that he
cannot re-write his order to show cause and petition. (Dkt. No. 1, ¶ 36 [Pl.’s Compl.]; Dkt. No.
1, Attach. 20, at 2-3 [Pl.’s Ex. “N”].) Plaintiff insisted that the Third Department accept and file
his papers, while also accusing the court of “attempting to cover up prosecutorial misconduct.”
(Id.)
On November 8, 2012, the Third Department responded to Plaintiff and advised him,
among other things, that no filing fee had been received and that it was returning his motion
papers because a proceeding had not been properly commenced. (Dkt. No. 1, ¶ 37 [Pl.’s
Compl.]; Dkt. No. 1, Attach. 21, at 2 [Pl.’s Ex. “O”].) However, Plaintiff’s original Article 78
papers were not returned at this time, leading Plaintiff to believe that the Third Department had
“stole[n]” them. (Dkt. No. 1, ¶ 38 [Pl.’s Compl.].) Plaintiff requested in subsequent letters that
his motion papers be returned. (Id., ¶¶ 39-40.)
On April 26, 2013, Plaintiff filed a fourth motion for reconsideration4 of the Third
Department’s Decision and Order dated May 24, 2012, which denied Plaintiff’s application
seeking to appeal the Rensselaer County Court’s denial of his motions to vacate his conviction
pursuant to CPL § 440.10. (Dkt. No. 1, Attach. 50, at 35 [Pl.’s Ex. “999”].)
On May 13, 2013, the Third Department advised Plaintiff that it had not received a filing
fee in connection with Case No. 516101. (Id. at 36.) On May 15, 2013, Plaintiff responded to
the Third Department and advised that a filing fee would be sent and that the Third Department

4

Plaintiff’s second motion for reconsideration was filed on September 2, 2012.
(Dkt. No. 1, Attach. 53 [Pl.’s Ex. “222”].) Plaintiff’s third motion for reconsideration was filed
on November 14, 2012. (Dkt. No. 1, Attach. 54 [Pl.’s Ex. “333”].)
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had his original Article 78 petition. (Id. at 37.) On May 23, 2013, the Third Department issued a
Decision and Order in Case No. 516101, which denied Plaintiff’s motions for reconsideration
and transfer. (Id. at 43.) Justices Stein, Spain, Garry, and John A. Lahtinen concurred in the
decision.5 (Id.)
On June 13, 2013, Plaintiff wrote to the Third Department and requested a receipt for his
$315.00 filing fee and complained that CPLR § 506(b) needs to be changed because “I am sure
the Court will never compel itself to do a ministerial court act that it was required to do in the
first place.” (Id. at 38.) On June 18, 2013, the Third Department wrote to Plaintiff
acknowledging that it had received his letter of June 13, 2013, along with his moving papers for
Case No. 516101. (Id. at 13, 39.) The Third Department further advised him that it could not
give him a receipt for a filing fee because it had not received a filing fee from him. (Id.)
On July 20, 2013, Plaintiff wrote to the Third Department and demanded to know what
Justice ordered his Article 78 petition to be filed without having first received the $315.00 filing
fee. (Id. at 40.) Plaintiff also provided a receipt for a money order for Case No. 516101 as
evidence that the filing fee had been received by the Third Department. (Id.) On August 8,
2013, the Third Department wrote to Plaintiff and acknowledged receipt of his July 20, 2013,
letter and explained that a matter could be filed with the court but that it would not be acted upon
without a filing fee. (Id. at 41.) The Third Department repeated its assertion that it had not yet
received a filing fee from Plaintiff. (Id.)

5

The Court takes judicial notice of the fact that Justice Lahtinen has retired from

the bench.
-5-

On September 5, 2013, Plaintiff wrote to the Third Department and advised it that he had
discovered that the court had his filing fee since May 23, 2013, and alleged that the Third
Department was attempting to steal his money. (Id. at 42.) Plaintiff threatened that, if the Third
Department did not “remit the fraud tape issue,” the judges and clerks of the Third Department
could face criminal charges. (Id.) On the same date, Plaintiff signed an amended notice of
petition and verified petition in the Matter of Amil Dinsio v. Third Department, Case No.
517441. (Id. at 3-7.) Through this petition, Plaintiff sought to compel the Third Department to
“process” his Article 78 petition that was filed on October 12, 2012. (Id. at 4.) Plaintiff also
accused the Justices of the Third Department of stealing his original Article 78 petition. (Id. at 5,
¶ 5.)
On September 18, 2013, the Third Department wrote to Plaintiff to acknowledge receipt
of his notice of petition and verified petition. (Id. at 33.) In addition, the Third Department
advised that it did in fact have his filing fee of $315.00, which had been received on May 23,
2013, and deposited into the court’s account on May 28, 2013, but that it had not been properly
noted in the computer file. (Id.) Because Plaintiff’s motions in Case No. 516101 had already
been denied, the Third Department asked Plaintiff whether he would like to have the filing fee
returned to him. (Id.)
On November 18, 2013, Plaintiff signed and filed an amended notice of petition and
amended petition in Matter of Amil Dinsio v. Third Department (Case No. 517441). (Id. at 1628.) Through this petition, Plaintiff once again sought to compel the Third Department to
process his Article 78 petition that was filed on October 12, 2012. (Id. at 17, ¶ 3.) On December
12, 2013, the Third Department wrote to Plaintiff to acknowledge receipt of his amended notice

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of petition. (Id. at 2.) The Third Department further advised that it would be seeking legal
representation from the New York State Office of the Attorney General. (Id.; Dkt. No. 1, ¶ 63
[Pl.’s Compl.].)
On December 31, 2013, Assistant Solicitor General Frank Brady from the Office of the
Attorney General wrote to Plaintiff and the Third Department that he was in receipt of the Third
Department’s letter dated December 12, 2013. (Dkt. No. 1, Attach. 49, at 12; Dkt. No. 1, ¶ 64
[Pl.’s Compl.].) Mr. Brady advised Plaintiff and the Third Department that Plaintiff never
obtained personal jurisdiction over the Third Department and, in any event, his Article 78
petition seeking an order to compel the Third Department to grant him permission to appeal from
the orders of the Rensselaer County Court fails on its merits. (Dkt. No. 1, Attach. 49, at 12-13.)
Specifically, Mr. Brady argued in his letter that “[m]andamus only lies to compel the
performance of acts that are mandatory, not discretionary, and only when there is a clear legal
right to the relief sought.” (Id. at 13.) Mr. Brady argued that the decision whether to grant
permission to appeal an order pursuant to CPL § 460.15 is a discretionary act and Plaintiff does
not have a clear legal right to such permission. (Id.)
On January 10, 2014, the Third Department wrote to Plaintiff to acknowledge receipt of
Mr. Brady’s letter and that it would be treating the letter as a motion to dismiss Case Nos.
516101 and 517441. (Id. at 14; Dkt. No. 1, ¶ 65 [Pl.’s Compl.].) The Third Department advised
Plaintiff to file any papers in opposition by January 24, 2014. (Dkt. No. 1, Attach. 49, at 14.)
On March 4, 2014, Plaintiff opposed the Third Department’s application to dismiss Case
Nos. 516101 and 517441. (Dkt. No. 1, Attach. 61, at 2-22 [Pl.’s Ex. “12-12-12”].) Among other
things, Plaintiff asserted that the Third Department’s motion to dismiss was “a conspiracy

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between the Attorney General’s Office and some Appellate Division Justices” and that “Justices
Rose, Spain, Stein, Kavanagh and Garry are caught up in attempting to cover up the People’s
egregious prosecutorial misconduct[.]” (Id. at 10-11, ¶¶ 32, 34.) Plaintiff also asserted that he
had not filed a notice of petition, dated February 12, 2013, as alleged in the motion to dismiss.
(Id. at 10.)
On April 16, 2014, Plaintiff wrote to the Third Department and acknowledged receipt of
its letter, dated April 7, 2014, which contained a copy of his notice of petition dated February 12,
2013, and stamped “as received in this office on 2/19/13.” (Id. at 24.) On May 30, 2014,
Plaintiff wrote to the Third Department and asked the court to explain why some of his previous
filings were not assigned Case No. 516101 as well as questioning the court’s assertion that it had
not received a money order in the amount of $305.00. (Id. at 31-32; Dkt. No. 1, ¶ 68 [Pl.’s
Compl.].) In addition, Plaintiff threatened that, if he is not released from prison by June 10,
2014, “a federal or state jury will be [giving his case] some very serious thought.” (Dkt. No. 1,
Attach. 61, at 31 [Pl.’s Ex. “12-12-12”].) Plaintiff also threatened that he would be providing the
public with information about his case and how the Third Department stole his pleadings and
filing fee. (Id. at 32.)
On June 2, 2014, Plaintiff filed an “Addendum” to his papers filed in opposition to the
Third Department’s motion to dismiss. (Id. at 26-27.) On June 26, 2014, the Third Department,
upon its own motion, transferred all three actions, entitled Matters of Dinisio v. Supreme Court,
Appellate Division, Third Department (Case Nos. 516101, 517441, and 518363), to the
Appellate Division, Fourth Department (“the Fourth Department”). (Dkt. No. 1, Attach. 46, at 2,
5 [Pl.’s Ex. “U”]; Dkt. No. 1, ¶ 71 [Pl.’s Compl.].) In the Third Department’s letter noting that

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these cases had been transferred, the Third Department stated that these matters “were discussed
previously by Presiding Justice Peters [of the Third Department] and Presiding Justice Scudder
[of the Fourth Department].” (Dkt. No. 1, Attach. 46, at 2 [Pl.’s Ex. “U”]; Dkt. No. 1, ¶ 72 [Pl.’s
Compl.].) Based on this statement, Plaintiff alleges that “Presiding Justices Peters and Scudder
had their plan of fraud all setup before June 26, 2014, when the [Third Department] transferred
the matters to the Fourth Appellate Division.” (Dkt. No. 1, ¶ 73 [Pl.’s Compl.].) Plaintiff further
alleges that his original Article 78 motion was not transferred to the Fourth Department for its
consideration but that this made little difference “because from the beginning of the transferred
matters on June 26, 2014, . . . Justice Scudder was in on the cover up of the (5) Third Appellate
Division Justices stealing the Plaintiff’s original article 78, and its filing fee.” (Id., ¶¶ 73, 8184.)
On February 6, 2015, the Fourth Department dismissed all three special proceedings
Plaintiff had commenced against the Third Department. (Dkt. No. 1, Attach. 4, at 7-10 [Pl.’s Ex.
“14-14-14”].) On March 23, 2015, Plaintiff filed a notice of motion for leave to appeal the
Fourth Department’s decision to the New York State Court of Appeals, which was subsequently
denied on June 9, 2015. (Id. at 2-6.) Based on these allegations, Plaintiff claims that, because
the Third Department stole his original Article 78 petition, he was denied access to a court, in
violation of 42 U.S.C. § 1983, the First Amendment, and his due process rights under the
Fourteenth Amendment. (Dkt. No. 1, at 3, 38 [Pl.’s Compl.].)
Based upon the foregoing allegations and claims, Plaintiff seeks the following five forms
of relief: (1) an Order directing that an evidentiary hearing be held to determine why the Third
Department stole Plaintiff’s original Article 78 petition and his $315.00 filing fee; (2) an Order

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declaring that CPLR §§ 7804(b) and 506(b)(1) are unconstitutional and that CPLR § 506(b)(1)
creates an inherent conflict of interest because it (a) allowed the Justices of the Third Department
to have complete control over the allegations of misconduct contained in Plaintiff’s Article 78
petition, and (b) allowed the Justices to steal Plaintiff’s original Article 78 petition and his filing
fee; (3) an Order directing that a copy of Plaintiff’s original Article 78 petition be served on the
New York State Attorney General, Eric T. Schneiderman, and each of the Justices of the Third
Department; (4) an Order directing Mr. Schneiderman to show cause why his Office “should not
determine what the Plaintiff is asking for in his article 78, at numbers 2 through 12”; and (5) an
Order directing that an evidentiary hearing be held regarding the fact that “the [Rensselaer
County District Attorney] never produced any unquestionable documentary proof evidence to
refute the evidentiary facts set forth in the Plaintiff’s Second [C.P.L §] 440.10 motion’s annexed
affidavit, as required by New York State and Federal Laws.” (Dkt. No. 1, at 38 [Pl.’s Compl.];
Dkt. No. 10, at 4 [Pl.’s Am. Compl.].)
B.

The Parties’ Briefing on Defendant’s Motion
1.

Defendant’s Memorandum of Law

Generally, in its memorandum of law, Defendant asserts four arguments. (Dkt. No. 22
[Def.’s Mem. of Law].)
First, Defendant argues that Plaintiff’s claims are barred by the Rooker-Feldman doctrine
because he is seeking to relitigate claims that have already been decided by the Fourth
Department. (Id. at 12-14.) Specifically, Defendant argues that the Fourth Department (a) found
that the Third Department could not be compelled to determine the issues raised in Plaintiff’s
CPL § 440 motions, and (b) dismissed Plaintiff’s second and third proceedings as moot because

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both proceedings sought a transfer to another court when they had already been transferred to the
Fourth Department. (Id. at 13-14.) Furthermore, the New York Court of Appeals dismissed
Plaintiff’s appeal of the Fourth Department’s decision. (Id. at 14.) Therefore, Defendant argues
that the Rooker-Feldman doctrine is applicable because (a) Plaintiff lost in state court, (b)
Plaintiff claims his due process rights were violated by the state court’s handling of his claims,
(c) Plaintiff is now asking this Court to essentially overrule the Fourth Department’s decision,
and (d) the state court judgment was issued on February 6, 2015, well before the commencement
of this action on March 18, 2016. (Id.)
Second, Defendant argues that Plaintiff’s claims are barred by the Eleventh Amendment
because the sole named Defendant in this action is the Third Department, which is considered an
arm of the State of New York. (Id. at 14-15.)
Third, Defendant argues that, to the extent that Plaintiff’s pleadings can be read to assert
claims against the individual Justices and/or clerks of the Third Department, such claims are
futile because they are barred by the doctrine of judicial immunity. (Id. at 15-18.) Specifically,
Defendant argues that Plaintiff’s claims arise solely from these individuals’ respective decisions
and administrative actions in proceedings before the Third Department and that each individual
was acting in his or her official capacity. (Id. at 18.)
Fourth, and finally, Defendant argues that, to the extent that Plaintiff seeks injunctive
relief against the New York Attorney General, such relief must be denied because (a) the
Attorney General is not a party to this action, and (b) in any event, the Eleventh Amendment
bars such relief for the reasons discussed above. (Id. at 18.)

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2.

Plaintiff’s Opposition Memorandum of Law6

Generally, in opposition to Defendant’s motion, Plaintiff asserts the following three
arguments. (Dkt. No. 28 [Pl.’s Opp’n Mem. of Law].)
First, Plaintiff argues that his claims are not barred by the Rooker-Feldman doctrine
because he is not a “state court loser.” (Id. at 1.) Specifically, Plaintiff argues that he has alleged
a conspiracy between the Third Department’s five Justices and their three court clerks to steal his
Article 78 petition and filing fee in an attempt to “fix” his CPL § 460.15 appeal application so
that the State of New York could win the appeal. (Id.) Furthermore, Plaintiff argues that the
Fourth Department did not consider his allegations that the Third Department stole his Article 78
petition, nor did the Third Department fulfill its duties to review questions of law and fact under
CPLR § 5501(c) because it did not provide a statement of reasons when they denied his appeal
application (i.e., the Third Department issued an order that simply stated “Application Denied.”).
(Id. at 1-2.)

6

The Court notes that, in his opposition memorandum of law, Plaintiff attempts to
incorporate by reference arguments that he made in a motion (which was filed 17 days after
Defendant filed its motion to dismiss and 4 days before the deadline for Defendant to file a reply
memorandum of law) requesting that the Court appoint him pro bono counsel (Dkt. No. 24).
The Court notes that incorporating arguments by reference is prohibited in this District. See
Topliff v. Wal-Mart Stores East LP, 04-CV-0297, 2007 WL 911891, at *9 n.65 (N.D.N.Y. Mar.
22, 2007) (Lowe, M.J.) (“A party may not articulate a legal argument simply by ‘incorporating
by reference’ the argument presented in another document.”); Nissan Motor Acceptance Corp. v.
Dealmaker Nissan, LLC, 09-CV-0196, 2012 WL 2522651, at *2 n.2 (N.D.N.Y. June 27, 2012)
(Suddaby, J.) (noting that, in addition to the risk that incorporating an argument by reference
“could cause the referring document to violate the District’s rule on page limitations . . . , such a
practice also risks causing the opposing party to inadvertently overlook the attempted
incorporation, and risks confusing the Court as to which ‘incorporated’ arguments are actually
being relied upon”). However, out of special solicitude to Plaintiff, as a pro se civil rights
litigant, the Court has reviewed the arguments set forth in his motion to give additional context
to the arguments he presents in opposition to Defendant’s motion to dismiss.
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Second, Plaintiff argues that the Third Department is not the sole Defendant in this action
because, when he filed his Article 78 petition, he also named Justice Kavanagh as a Defendant
but that, by letter dated October 19, 2012, Justice Kavanagh was removed as a Defendant by the
Third Department and the court was named as a Defendant instead. (Id. at 2.) Therefore,
Plaintiff argues, the Eleventh Amendment does not apply. (Id.)
Third, and finally, Plaintiff appears to argue that, although the New York Attorney
General is not a party to this action, this Court should order that a copy of his stolen Article 78
petition be served on someone and direct that person or entity to show cause why the relief
sought in the Article 78 should not be granted. (Id.; Dkt. No. 24, ¶¶ 18-19.) Plaintiff argues that
the Attorney General “is the legal mouth piece for the five thief Justices” and, therefore, would
be “a logical [choice] to be ordered to show cause” or, alternatively, the New York Court of
Appeals would be another choice. (Dkt. No. 24, ¶ 22.) Plaintiff also appears to argue that CPLR
§ 506(b)(1) is a “sham” because it requires the Third Department to review proceedings that
have been filed against the court and its Justices. (Dkt. No. 28, at 3 [Pl.’s Opp’n Mem. of Law];
Dkt. No. 24, ¶¶ 20-21.)
II.

RELEVANT LEGAL STANDARDS
A.

Legal Standard Governing Motions to Dismiss for Failure to State a Claim

It has long been understood that a dismissal for failure to state a claim upon which relief
can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds:
(1) a challenge to the “sufficiency of the pleading” under Fed. R. Civ. P. 8(a)(2); or (2) a
challenge to the legal cognizability of the claim. Jackson v. Onondaga Cty., 549 F. Supp. 2d
204, 211, nn.15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de novo

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review).
Because such dismissals are often based on the first ground, a few words regarding that
ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a
pleading contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2) [emphasis added]. In the Court’s view, this tension between
permitting a “short and plain statement” and requiring that the statement “show[]” an entitlement
to relief is often at the heart of misunderstandings that occur regarding the pleading standard
established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the “short and plain”
pleading standard under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F.
Supp. 2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has
held that, by requiring the above-described “showing,” the pleading standard under Fed. R. Civ.
P. 8(a)(2) requires that the pleading contain a statement that “give[s] the defendant fair notice of
what the plaintiff’s claim is and the grounds upon which it rests.” Jackson, 549 F. Supp. 2d at
212, n.17 (citing Supreme Court cases) (emphasis added).
The Supreme Court has explained that such fair notice has the important purpose of
“enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision
on the merits” by the court. Jackson, 549 F. Supp. 2d at 212, n.18 (citing Supreme Court cases);
Rusyniak v. Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing
Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal”
notice pleading standard “has its limits.” 2 Moore’s Federal Practice § 12.34[1][b] at 12-61 (3d
ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding

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that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F. Supp.
2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atl. Corp. v. Twombly, the Supreme Court reversed an appellate
decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1.
Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court “retire[d]” the
famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that “a complaint
should not be dismissed for failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Twombly, 127 S. Ct. at 1968-69. Rather than turn on the conceivability of an actionable claim,
the Court clarified, the “fair notice” standard turns on the plausibility of an actionable claim. Id.
at 1965-74. The Court explained that, while this does not mean that a pleading need “set out in
detail the facts upon which [the claim is based],” it does mean that the pleading must contain at
least “some factual allegation[s].” Id. at 1965. More specifically, the “[f]actual allegations must
be enough to raise a right to relief above the speculative level [to a plausible level],” assuming
(of course) that all the allegations in the complaint are true. Id.
As for the nature of what is “plausible,” the Supreme Court explained that “[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,
129 S. Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for
relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to

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infer more than the mere possibility of misconduct, the complaint has alleged–but it has not
show[n]–that the pleader is entitled to relief.” Iqbal, 129 S.Ct. at 1950 [internal quotation marks
and citations omitted]. However, while the plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully,” id., it “does not impose a probability
requirement.” Twombly, 550 U.S. at 556.
Because of this requirement of factual allegations plausibly suggesting an entitlement to
relief, “the tenet that a court must accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949.
Similarly, a pleading that only “tenders naked assertions devoid of further factual enhancement”
will not suffice. Iqbal, 129 S.Ct. at 1949 (internal citations and alterations omitted). Rule 8
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.
(citations omitted).
This pleading standard applies even to pro se litigants. While the special leniency
afforded to pro se litigants somewhat loosens the procedural rules governing the form of
pleadings (as the Second Circuit has observed), it does not completely relieve a pro se plaintiff
of the duty to satisfy the pleading standards set forth in Fed. R. Civ. P. 8, 10 and 12.7 Rather, as
both the Supreme Court and Second Circuit have repeatedly recognized, the requirements set

7

See Vega v. Artus, 610 F. Supp. 2d 185, 196 & nn.8-9 (N.D.N.Y. 2009) (Suddaby,
J.) (citing Second Circuit cases); Rusyniak, 629 F. Supp. 2d at 214 & n.34 (citing Second Circuit
cases).
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forth in Fed. R. Civ. P. 8, 10 and 12 are procedural rules that even pro se plaintiffs must follow.8
Stated more simply, when a plaintiff is proceeding pro se, “all normal rules of pleading are not
absolutely suspended.” Jackson, 549 F. Supp. 2d at 214, n.28 [citations omitted].9
Finally, a few words are appropriate regarding what documents are considered when a
dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal
pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c), the following matters outside the
four corners of the complaint may be considered without triggering the standard governing a
motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer,
(2) documents incorporated by reference in the complaint (and provided by the parties), (3)
documents that, although not incorporated by reference, are “integral” to the complaint, or (4)
any matter of which the court can take judicial notice for the factual background of the case.10
8

See Rosendale v. Brusie, 374 F. App’x 195, 196 (2d Cir. 2010) (“[A]lthough the
courts remain obligated to construe a pro se complaint liberally, . . . the complaint must contain
sufficient factual allegations to meet the plausibility standard.”); Vega, 610 F. Supp. 2d at 196,
n.10 (citing Supreme Court and Second Circuit cases); Rusyniak, 629 F. Supp. 2d at 214 & n.34
(citing Second Circuit cases).
9

It should be emphasized that Fed. R. Civ. P. 8's plausibility standard, explained in
Twombly, was in no way retracted or diminished by the Supreme Court's decision (two weeks
later) in Erickson v. Pardus, in which (when reviewing a pro se pleading) the Court stated,
"Specific facts are not necessary" to successfully state a claim under Fed. R. Civ. P. 8(a)(2).
Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) [emphasis added]. That statement was merely
an abbreviation of the often-repeated point of law–first offered in Conley and repeated in
Twombly–that a pleading need not "set out in detail the facts upon which [the claim is based]" in
order to successfully state a claim. Twombly, 127 S. Ct. 1965, n.3 (citing Conley, 355 U.S. at 47)
[emphasis added]. That statement did not mean that all pleadings may achieve the requirement
of "fair notice" without ever alleging any facts whatsoever. Clearly, there must still be enough
fact set out (however set out, whether in detail or in a generalized fashion) to raise a right to
relief above the speculative level to a plausible level. See Rusyniak, 629 F. Supp. 2d at 214 &
n.35 (explaining holding in Erickson).
10

See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit
to a pleading is a part thereof for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, No. 10-17-

B.

Legal Standard Governing Motions to Dismiss for Lack of Subject-Matter
Jurisdiction

“It is a fundamental precept that federal courts are courts of limited jurisdiction.” Owen
Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Generally, a claim may be
properly dismissed for lack of subject-matter jurisdiction where a district court lacks
constitutional or statutory power to adjudicate it. Makarova v. U.S., 201 F.3d 110, 113 (2d Cir.
2000). A district court may look to evidence outside of the pleadings when resolving a motion to
dismiss for lack of subject-matter jurisdiction. Makarova, 201 F.3d at 113. The plaintiff bears
the burden of proving subject-matter jurisdiction by a preponderance of the evidence.
Makarova, 201 F.3d at 113 (citing Malik v. Meissner, 82 F.3d 560, 562 [2d Cir. 1996]). When a

573, 2011 WL 2135734, at *1 (2d Cir. June 1, 2011) (explaining that conversion from a motion
to dismiss for failure to state a claim to a motion for summary judgment is not necessary under
Fed. R. Civ. P. 12[d] if the “matters outside the pleadings” in consist of [1] documents attached
to the complaint or answer, [2] documents incorporated by reference in the complaint (and
provided by the parties), [3] documents that, although not incorporated by reference, are
“integral” to the complaint, or [4] any matter of which the court can take judicial notice for the
factual background of the case); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.
2010) (explaining that a district court considering a dismissal pursuant to Fed. R. Civ. 12(b)(6)
“may consider the facts alleged in the complaint, documents attached to the complaint as
exhibits, and documents incorporated by reference in the complaint. . . . Where a document is
not incorporated by reference, the court may neverless consider it where the complaint relies
heavily upon its terms and effect, thereby rendering the document ‘integral’ to the complaint. . . .
However, even if a document is ‘integral’ to the complaint, it must be clear on the record that no
dispute exists regarding the authenticity or accuracy of the document. It must also be clear that
there exist no material disputed issues of fact regarding the relevance of the document.”)
[internal quotation marks and citations omitted]; Chambers v. Time Warner, Inc., 282 F.3d 147,
152 (2d Cir. 2009) (“The complaint is deemed to include any written instrument attached to it as
an exhibit or any statements or documents incorporated in it by reference.”) (internal quotation
marks and citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72
(2d Cir.1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or
incorporate by reference a [document] upon which it solely relies and which is integral to the
complaint,” the court may nevertheless take the document into consideration in deciding [a]
defendant's motion to dismiss, without converting the proceeding to one for summary
judgment.”) (internal quotation marks and citation omitted).
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court evaluates a motion to dismiss for lack of subject-matter jurisdiction, all ambiguities must
be resolved and inferences drawn in favor of the plaintiff. Aurecchione v. Schoolman Transp.
Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (citing Makarova, 201 F.3d at 113).
III.

ANALYSIS
As an initial matter, the Court finds several problems with Plaintiff’s motion to

“supplement [his] legal filings with additional evidence.” (Dkt. No. 33.) The motion does not
state the relief sought (i.e., whether that relief is the supplementing of the Amended Complaint
or the supplementing of his papers in opposition to Defendant’s motion to dismiss), nor does the
motion state with particularity the grounds for seeking that relief, as required by Fed. R. Civ. P.
7(b)(1)(B),(C). The motion is not supported by a memorandum of law, as required by Local
Rule 7.1(a)(1). To the extent the motion is one to supplement his Amended Complaint, it
constitutes a cross-motion that is (1) untimely (having been due at the time of the filing of, and
having been required to be part of, his opposition to Defendant’s motion to dismiss) pursuant to
Local Rule 7.1(c), and (2) unsupported by a proposed Supplemental Amended Complaint as
required by Local Rule 7.1(a)(4). However, in the interest of expediency (and out of special
solicitude to Plaintiff as a pro se civil rights litigant), the Court will grant Plaintiff’s motion to
supplement, and will consider the assertions and exhibits proffered by Plaintiff therein, when
construing both his Amended Complaint and his papers in opposition to Defendant’s motion to
dismiss.
Turning to Defendant’s motion, after carefully considering the matter, the Court agrees
with each of the arguments asserted by Defendant in its memorandum of law. (Dkt. No. 22, at
12-18 [Def.’s Mem. of Law].) To those reasons, the Court adds the following analysis.

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A.

Whether the Rooker-Feldman Doctrine Bars Plaintiff’s Claims

“Under the Rooker-Feldman doctrine, federal district courts lack jurisdiction over cases
that essentially amount to appeals of state court judgments.” Vossbrinck v. Accredited Home
Lenders, Inc., 773 F.3d 423, 426 (2d Cir. 2014). The Rooker-Feldman doctrine is applied under
the following circumstances: “(1) the federal-court plaintiff lost in state court; (2) the plaintiff
complains of injuries caused by a state court judgment; (3) the plaintiff invites review and
rejection of that judgment; and (4) the state judgment was rendered before the district court
proceedings commenced.” Vossbrinck, 773 F.3d at 426 (internal quotation marks and alterations
omitted).
Initially, with regard to the first prong of this standard, the Court notes that although
Plaintiff argues that he is not a “state court loser,” it cannot be disputed that the Third
Department denied his CPL § 460.15 appeal application (Dkt. No. 1, Attach. 18, at 2 [Pl.’s Ex.
“L”]) and the Fourth Department dismissed his subsequent Article 78 proceedings against the
Third Department. Dinsio v. Supreme Court, Appellate Division, Third Judicial Dep’t, 125
A.D.3d 1313 (N.Y. App. Div. 4th Dep’t 2015). Furthermore, with regard to the fourth prong, this
action was clearly commenced after Plaintiff’s state court proceedings were concluded.
Therefore, the Court will address the second and third prongs of the Rooker-Feldman doctrine.
With regard to the second and third prongs, the Court notes that Plaintiff presents claims
in this action that were not asserted in his underlying state court proceedings. For example, as
discussed above in Part I.A. of this Decision and Order, Plaintiff alleges that the Third
Department violated his constitutional rights by denying him access to the courts through a
conspiracy to steal his Article 78 petition and filing fee. Claims of conspiracy made in similar

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contexts have been found to fall outside of the Rooker-Feldman doctrine by different U.S. Courts
of Appeal.11
However, “[j]ust presenting in federal court a legal theory not raised in state court . . .
cannot insulate a federal plaintiff’s suit from Rooker-Feldman if the federal suit nonetheless
complains of injury from a state-court judgment and seeks to have that state-court judgment
reversed.” Hoblock v. Albany Cty. Bd. of Elections, 422 F.3d 77, 86 (2d Cir. 2005). Similarly,
“[a] plaintiff cannot overcome Rooker-Feldman merely by incanting the word ‘conspiracy[.]’”
Frierson-Harris v. Kall, 198 F. App’x 529, 530 (7th Cir. 2006).
In this case, it is clear from Plaintiff’s allegations that what he really seeks from this
Court is an order directing a state court to consider and determine the merits of his CPL § 460.15
appeal application, which in turn seeks to have his criminal conviction overturned.12 Indeed,

11

See, e.g., Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159,
172 (3d Cir. 2010) (“Great Western, by alleging a conspiracy between Defendants and the
Pennsylvania judiciary to rule in favor of Rutter and ADR Options, is attacking the state-court
judgments. But . . . Great Western is not merely contending that the state-court decisions were
incorrect or that they were themselves in violation of the Constitution. Instead, Great Western
claims that ‘people involved in the decision violated some independent right,’ that is, the right to
an impartial forum. . . . The alleged agreement to reach a predetermined outcome in a case would
itself violate Great Western’s constitutional rights, independently of the subsequent state-court
decisions.”); Loubser v. Thacker, 440 F.3d 439, 441 (7th Cir. 2006) (“The claim that a defendant
in a civil rights suit ‘so far succeeded in corrupting the state judicial process as to obtain a
favorable judgment’ is not barred by the Rooker-Feldman doctrine.”); Nesses v. Shepard, 68
F.3d 1003, 1005 (7th Cir. 1995) (holding that plaintiff’s allegations of “a massive, tentacular
conspiracy among the lawyers and the judges to engineer [plaintiff’s] defeat by, among other
things, declaring him inexcusably dilatory in complying with a discovery order[,]” did not
implicate Rooker-Feldman because he alleged that “people involved in the decision violated
some independent right of his, such as the right (if it is a right) to be judged by a tribunal that is
uncontaminated by politics”).
12

For example, Plaintiff requests that this Court direct the New York Attorney
General to show cause why he should not determine “what the Plaintiff is asking for in his article
78, at numbers 2 through 12[.]” (Dkt. No. 1, at 35 ¶ 4 [Pl.’s Compl.].) A review of Plaintiff’s
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Plaintiff appears to be upset by the fact that, when the Third Department denied his appeal
application, it did so by simply stating “Application Denied” and not by providing him with a
written opinion or statement of reasons explaining its denial, which may have demonstrated to
Plaintiff that the court considered the evidence he submitted and its reasons for not finding it
persuasive. (See, e.g., Dkt. No. 1, ¶ 33 [Pl.’s Compl.] [alleging that, “on May 24, 2012, the
Court denied the Appeal Application by simply saying, ‘Application Denied’”]; Dkt. No. 28, at
1-2 [Pl.’s Opp’n Mem. of Law] [arguing that the Justices of the Third Department did not fulfill
their duties under CPLR § 5501(c) to “review questions of law and questions of fact in all
appeals” and, instead, after “receiving the appeal application, in less than 20 days[,] the five
justices simply said ‘Application Denied.’”].) Plaintiff appears to have inferred that this meant
that the Third Department did not want to confront, or simply ignored, what he believed to be the
indisputable evidence demonstrating his professed innocence because it was “prejudiced” against
him. (See Dkt. No. 1, Attach. 24, at 8 ¶ 5 [Pl.’s Ex. “555”] [stating that Plaintiff “argues the
Justices were prejudice and no matter how overwhelming the evidence is for a reversal or a
remittal, the Justices will ignore indisputable evidence and just say ‘Application Denied,’
knowing that ends an appeal process”]; Dkt. No. 1, Attach. 50, at 19 ¶ 8 [Pl.’s Ex. “999”] [“In
other words the true fact is the Justices did not like the Petitioner filing a mandamus to compel
them to do their ministerial Court duties that the Court should have done in the first place . . . but
were not doing because the Justices wanted to cover up the People’s egregious prosecutorial

Article 78 petition reveals that he sought to compel the Third Department to consider his
substantive arguments made in support of overturning his conviction. (Dkt. No. 1, Attach. 35, ¶¶
2-12 [Pl.’s Ex. “J”].) Similarly, Plaintiff requests that this Court conduct an inquiry into the
sufficiency of the evidence submitted by the Rensselaer County District Attorney in Plaintiff’s
underlying state court proceedings. (Dkt. No. 10, at 4 [Pl.’s Am. Compl.].)
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misconduct that was brought to the Justices’ attention in the Petitioner’s CPL 440.10 appeal
application. So the Justices simply said ‘Application Denied.’”]; Dkt. No. 24, at 9 ¶ 17 [arguing
that, if “the Appellate Division Justices did their CPLR § 5501(c)” duties, “the Plaintiff in May
2013, would have been a state-court winner”].) Therefore, Plaintiff filed an Article 78 petition in
an effort to force the Third Department to address the evidence he had submitted. (See Dkt. No.
1, ¶ 34 [Pl.’s Compl.] [alleging that, “on October 3, 2012, the Plaintiff mailed the Court a CPLR
article § 78, Order to Show Cause with an attached petition for a Writ of Mandamus to Compel,
asking for a Court Order, to Order on the Appellate Court to Show Cause . . . why the Court
should not be compelled to do its CPLR § 5501(c) duties to determine if the tape is fabricated”].)
According to Plaintiff, however, when the Third Department was “faced with the article 78,
order to show cause, [it] apparently didn’t know what to do, so the thief Justices and their 3
clerks . . . simply stole the original article 78, and [his filing fee].” (Dkt. No. 1, ¶ 79 [Pl.’s
Compl.].)
Based upon Plaintiff’s Complaint and his attached exhibits, the Court finds that it is
apparent that the basis for the alleged “conspiracy” reaches no further than the Third
Department’s adverse rulings and not from a dishonest judicial proceeding or a nefarious scheme
to undermine Plaintiff’s attempts to appeal his conviction. See Frierson-Harris, 198 F. App’x at
530 (“[J]udges generally ‘agree’ with one side in litigation when ruling against the other; such
agreements are not corruptions of the judicial process but rather byproducts of it.”); Aldrich v.
Considine, 13-CV-11405, 2013 WL 4679722, at *6 n.4 (D. Mass. Aug. 29, 2013) (“Allegations
that the state court judge agreed with the adverse side does not permit an inference of an
agreement to deprive a litigant of his rights.”). Although Plaintiff is upset that the Third

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Department denied his CPL § 460.15 appeal application by simply stating “Application Denied,”
he fails to point to any authority requiring the Third Department to issue a written opinion or a
statement of reasons explaining its decision. Similarly, the mere fact that the Third Department
issued an order in this fashion does not mean, in and of itself, that it did not review “questions of
law and questions of fact” (as Plaintiff alleges it was obligated to do under CPLR § 5501) before
the order was issued. Moreover, Plaintiff does not allege any facts plausibly suggesting that the
Third Department did not thoroughly review his appeal application before it was denied and/or
that the Third Department summarily denied his appeal application because it was “prejudiced”
against him.
Perhaps most importantly, the Third Department admitted its error to Plaintiff when it
realized his filing fee was not properly documented in its computer system. (Dkt. No. 1, Attach.
50, at 33 [Pl.’s Ex. “999”].) The court offered to refund Plaintiff his money because his motion
in Case No. 516101 had already been denied. (Id.) In any event, even if the Third Department
did steal Plaintiff’s original Article 78 petition, the Fourth Department ruled that “mandamus
does not lie” because the decision to deny Plaintiff’s appeal application was discretionary.
Dinsio, 125 A.D.3d at 1314. Accordingly, under these circumstances, the Court finds that the
second and third prongs of the Rooker-Feldman doctrine have been met because Plaintiff is
really complaining about adverse rulings from state court judgments that he invites this Court to
review and reject. See Brackman v. Indiana, 93 F. App’x 989, 992 (7th Cir. 2004) (holding that
Rooker-Feldman doctrine barred plaintiff’s claims where he alleged that a county circuit court
had conspired to deprive him of access to the courts because plaintiff had “petitioned for and was
denied a writ of mandamus by the state supreme court to compel the circuit court to act on his

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filings. He may not now challenge or seek damages under 42 U.S.C. § 1983 or related statutes on
account of the supreme court’s refusal to compel the circuit court to act”).
B.

Whether, in the Alternative, Plaintiff’s Claims Are Barred by the Eleventh
Amendment and Judicial Immunity

Although the Court has found that it lacks subject-matter jurisdiction to resolve
Plaintiff’s claims under the Rooker-Feldman doctrine, the Court will, for the sake of
completeness, consider this alternative argument.
Defendant correctly argues that, as the sole named Defendant in this case, the Eleventh
Amendment bars Plaintiff’s claims because the Third Department is considered “an arm of the
State of New York.” Zuckerman v. Appellate Division, Second Dep’t, Supreme Court of the State
of N.Y., 421 F.2d 625, 626 (2d Cir. 1970); Bernstein v. New York, 591 F. Supp. 2d 448, 465
(S.D.N.Y. 2008).13 The Court further notes that, although Plaintiff argues that Justice Kavanagh
was removed by the Third Department as a named Defendant in his underlying state court
proceedings, Plaintiff was free to name whomever he wanted as a Defendant when he
commenced the present action; however, he failed to name Justice Kavanagh as a Defendant. In
any event, even if Plaintiff were permitted to amend his Complaint to name the individual
Justices and court clerks of the Third Department as Defendants, his claims would be futile
because they would be barred by the doctrine of judicial immunity.
Specifically, although Plaintiff alleges that the Justices and court clerks of the Third

13

Although this issue is not raised by Defendant, it is worth noting that the Third
Department is not considered a “person” for purposes of 42 U.S.C. § 1983. Zuckerman, 421
F.2d at 626; see also Ajamian v. New York, 13-CV-1316, 2014 WL 3928448, at *6 (N.D.N.Y.
Aug. 11, 2014) (D’Agostino, J.) (holding that the Third Department is not a “person” within the
meaning of Section 1983).
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Department conspired to steal his Article 78 petition and filing fee, such allegations are entirely
speculative and conclusory for the reasons discussed above in Part III.A. of this Decision and
Order. See Baker v. Nesi, 11-CV-11899, 2011 WL 6028069, at *4 (D. Mass. Dec. 2, 2011) (“In
considering whether absolute judicial immunity applies in this case, this Court does not credit
[plaintiff’s] bald allegations. Mere assertions, without more, cannot establish a cognizable legal
claim here, nor can a pure linguistic spin or artful pleading in the use of the term ‘conspiracy’
create a claim, without an underlying factual basis for the assertion. Mere allegations by
[plaintiff] that Justice Nesi agreed with his ex-wife and her attorney do not permit an inference
of an agreement to deprive him of his rights.”). In any event, “judicial immunity [is not] lost by
allegations that a judge conspired with one party to rule against another: ‘a conspiracy between
judge and [a party] to predetermine the outcome of a judicial proceeding, while clearly improper,
nevertheless does not pierce the immunity extended to judges. . . .’” Moore v. Brewster, 96 F.3d
1240, 1244 (9th Cir. 1996) superseded by statute on other grounds (quoting Ashelman v. Pope,
793 F.2d 1072, 1078 [9th Cir. 1986] [en banc]); see also Elder v. Athens-Clarke Cty. Ga.
Through O’Looney, 54 F.3d 694, 695 (11th Cir. 1995) (noting the Eleventh Circuit’s past
precedent that “judges having subject matter jurisdiction of a case are immune from damage
actions under § 1983 even where the claims are based on charges of conspiracy in their rulings”);
Harvey v. Loftus, 505 F. App’x 87, 90 (3d Cir. 2012) (“Judicial immunity attaches even if the act
was done in furtherance of a conspiracy.”).
With respect to the Third Department’s court clerks, “[j]udicial immunity also extends to
certain others who perform functions closely associated with the judicial process.” McKeown v.
N.Y. State Comm’n on Judicial Conduct, 377 F. App’x 121, 124 (2d Cir. 2010) (internal

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quotation marks and citation omitted). This includes “court clerks and law clerks with respect to
discretionary acts that implement judicial decisions or that are performed at the direction or
under the supervision of a judge.” Bliven v. Hunt, 418 F. Supp. 2d 135, 138 (E.D.N.Y. 2005).
However, “where a court clerk performs ‘ministerial, non-judicial duties,’ or ‘purely
administrative tasks,’ only qualified, good faith immunity attaches.” McKnight v. Middleton, 699
F. Supp. 2d 507, 525 (E.D.N.Y. 2010).
Here, it is clear from the letter correspondence between Plaintiff and the Third
Department that the Third Department does not commence proceedings until it receives a filing
fee. (See, e.g., Dkt. No. 1, Attach. 50, at 41 [Pl.’s Ex. “999”] [explaining that a “proceeding
cannot go forward in this Court unless the filing fee is paid or the Court orders a waiver of the
filing fee”].) Therefore, the court clerks are entitled to absolute immunity because, although
there was an error in the court’s computer system that did not properly note that Plaintiff’s filing
fee had been received, the clerks were following established procedure when they proceeded
under the mistaken belief that Plaintiff had not paid his filing fee. See Humphrey v. Court Clerk
of the Second Circuit, 08-CV-0363, 2008 WL 1945308, at *2 (N.D.N.Y. May 1, 2008) (Hurd, J.)
(“Court clerks enjoy absolute immunity even for administrative functions if the task was
undertaken pursuant to the explicit direction of a judicial officer or pursuant to the established
practice of the court.”) (emphasis added); McKnight, 699 F. Supp. 2d at 526 (stating that “the
Clerk’s Office activities of filing and docketing legal documents are an integral part of the
judicial process and are entitled to absolute immunity”) (internal quotation marks omitted);
Rodriguez v. Weprin, 116 F.3d 62, 66 (2d Cir. 1997) (holding that a clerk’s scheduling duties, as
part of “[a] court’s inherent power to control its docket” is subject to absolute immunity).

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C.

Whether CPLR §§ 7804(b) and/or 506(b)(1) Are Unconstitutional

To the extent that Plaintiff requests a declaratory judgment that CPLR §§ 7804(b) and/or
506(b)(1) are unconstitutional (Dkt. No. 1, at 38 ¶ 3 [Pl.’s Compl.]), such relief would amount to
an advisory opinion because the Court has already determined that it lacks subject-matter
jurisdiction to adjudicate Plaintiff’s claims (and has found, in the alternative, that his claims are
barred, as discussed above) and there is no longer a case-or-controversy to resolve. See Ashcroft
v. Mattis, 431 U.S. 171, 172 (1977) (“This suit was brought to determine the police officers’
liability for the death of appellee’s son. That issue has been decided, and there is no longer any
possible basis for a damages claim. Nor is there any possible basis for a declaratory judgment.
For a declaratory judgment to issue, there must be a dispute which calls, not for an advisory
opinion upon a hypothetical basis, but for an adjudication of present right upon established
facts.”) (internal quotation marks omitted); F.X. Maltz, Ltd. v. Morgenthau, 556 F.2d 123, 125
(2d Cir. 1977) (“The use of judicial authority to declare statutes unconstitutional is restricted to
those cases where the exercise of such power is necessary to protect litigants from actual, not
hypothetical, threats of prosecution . . . and where the controversy has ‘sufficient immediacy and
reality’ to warrant the issuance of such a judgment.”).
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion to “supplement [his] legal filings with additional
evidence” (Dkt. No. 33) is GRANTED; and it is further
ORDERED that Defendant’s motion to dismiss Plaintiff’s Amended Complaint (Dkt.
No. 22) is GRANTED.

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The Clerk of the Court is directed to enter Judgment in favor of Defendant and close this
case.
Dated: July 14, 2017
Syracuse, New York
_________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

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