Treistman v. McGinty et al
Filing
22
SUMMARY ORDER - That defendants' motion to dismiss (Dkt. No. 16) is GRANTED. That the Clerk close this case. Signed by Senior Judge Gary L. Sharpe on 8/27/2018. (Copy served via regular and certified mail)(jel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
BEN GARY TREISTMAN,
Plaintiff,
1:16-cv-1403
(GLS/CFH)
v.
ANTHONY MCGINTY et al.,
Defendants.
________________________________
SUMMARY ORDER
Plaintiff pro se Ben Gary Treistman brings this action under 42
U.S.C. §§ 1981, 1983, and 1985(3), alleging that his due process rights
were violated in connection with a child custody hearing in Ulster County
Family Court. (Compl., Dkt. No. 1.) Specifically, he alleges that defendant
Anthony McGinty, the Family Court judge who presided over the custody
hearing involving his minor child; defendant Donna Wiener, the court
secretary; and various unnamed scheduling clerks who “assist[ed] . . .
McGinty during [Treistman]’s [custody proceeding] as to scheduling trial
dates” violated his due process rights1 by allowing the hearing to last
1
Triestman does not specify whether his claims concern his substantive or procedural due
process rights (or both). (See, e.g., Compl. ¶¶ 30, 48.)
longer than ninety days.2 (Id. at 2, 6-8.) He alleges that this violation was
“motivated in part by a discriminatory purpose of gender discrimination.”
(Id. ¶¶ 26, 29, 32, 35, 38, 41, 44.) Furthermore, he alleges that the “[New
York] State Family Court[] [System] permitted the other . . . defendants to
operate in a discriminatory motive and fashion, yet did nothing to correct
those actions.” (Id. ¶ 47.) Treistman seeks monetary damages as well as
injunctive and declaratory relief.3 (Id. ¶¶ 58-73.) Pending is defendants’
motion to dismiss. (Dkt. No. 16.)
I.
Sovereign Immunity
Defendants argue that Treistman’s official capacity claims are barred
by the Eleventh Amendment. (Dkt. No. 16, Attach. 3 at 9-11.)
It is well settled that “absent waiver by the State or valid
congressional override, the Eleventh Amendment bars a damages action
against a State in federal court.” Kentucky v. Graham, 473 U.S. 159, 169
2
Treistman premises his claims on a violation of a New York State regulation. See N.Y. Comp.
R. & Regs. tit. 22, § 205.14 (“In any proceeding brought pursuant to section 467, 651 or 652 of the Family
Court Act to determine temporary or permanent custody or visitation, once a hearing or trial is
commenced, it shall proceed to conclusion within 90 days.”). As alleged, the underlying custody hearing,
which commenced on July 31, 2013 and ended on February 1, 2016, was clearly in excess of ninety
days. (Compl. ¶ 12.) The complaint purports to assert seven counts based on the excessive length of
the proceeding; however, that is only because after outlining the aggregate trial duration, (id. ¶ 25),
Treistman adds a separate count for each “intra-trial” delay exceeding ninety days, (id. ¶¶ 28, 31, 34, 37,
40, 43). It is dubious whether these are separate claims.
3
Treistman does not specify whether his claims are against defendants in their personal or
official capacities (or both).
2
(1985). Because New York has not waived its immunity as to any of the
claims alleged and the New York State Family Court is part of the New
York State Unified Court System, which is an arm of the state, the claims
against it are dismissed. See Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 100 (1984); Gollomp v. Spitzer, 568 F.3d 355, 365-67 (2d Cir.
2009); Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004); Robertson
v. Allen, 1:15-cv-11, 2016 WL 205381, at *9 (N.D.N.Y. Jan. 15, 2016);
McKnight v. Middleton, 699 F. Supp. 2d 507, 521 (E.D.N.Y. 2010); Jones
v. Nat’l Commc’n and Surveillance Networks, 409 F. Supp. 2d 456, 466-67
(S.D.N.Y. 2006), aff’d, 266 F. App’x 31 (2d Cir. 2008). Likewise,
Treistman’s claims against the remaining defendants in their official
capacities as Family Court employees, (Compl. ¶¶ 3-4), are also barred by
the Eleventh Amendment. See Ying Jing Gan v. City of New York, 996
F.2d 522, 529 (2d Cir. 1993) (“To the extent that . . . a claim is asserted
against the state official in his official capacity, he may assert the state’s
Eleventh Amendment immunity against suit.”).4
4
Treistman attempts to circumvent this bar by arguing that sovereign immunity is abrogated by
Title VI of the Civil Rights Act of 1964. (Dkt. No. 21 at 8-9.) However, Title VI only prohibits
discrimination based on “race, color, or national origin,” in connection with “any program or activity
receiving Federal financial assistance.” 42 U.S.C. § 2000d; see Tolbert v. Queens Coll., 242 F.3d 58, 69
(2d Cir. 2001) (“In order to establish a claim based on [Title VI], the plaintiff must show, inter alia, that the
defendant discriminated against him on the basis of race[.]”). Because Treistman alleges that the
conduct he complains of was “motivated in part by a discriminatory purpose of gender discrimination,”
3
II.
Absolute Judicial Immunity
The Eleventh Amendment does not bar Treistman’s claims against
defendants in their individual capacities. See Ying Jing Gan, 996 F.2d at
529 (“To the extent that . . . a claim is asserted against [a state official] in
his individual capacity, he may assert privileges of absolute or qualified
immunity but may not assert immunity under the Eleventh Amendment.”).
Nonetheless, defendants argue that Judge McGinty and his court clerks
are entitled to absolute judicial immunity for the claims against them in their
individual capacities. (Dkt. No. 16, Attach. 3 at 7-9.) In response,
Treistman argues that neither Judge McGinty nor his court clerks are
entitled to judicial immunity, in sum, because “[t]he docketing and
scheduling of trial dates was not discretionary, and was constrained by the
mandatory statute so as to be scheduled within 90 days of trial
commencement.” (Dkt. No. 21 at 12-18.)
Judges have absolute immunity from liability for their judicial actions,
see Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009), and are subject to
(Compl. ¶ 26), not race, Title VI is inapplicable. Furthermore, Treistman’s alternative argument that “New
York State has also waived its sovereign immunities for its officials under [Section 8 of] the Court of
Claims Act,” (Dkt. No. 21 at 9 n.2), is accurate, but misplaced. See Samuel Adler, Inc., v. Noyes, 285
N.Y. 34, 35 (1941) (“New York has not consented that any action to recover a sum of money may be
brought against it in any of its tribunals other than the Court of Claims.”).
4
liability only for non-judicial actions or judicial actions “taken in the
complete absence of all jurisdiction,” Mireles v. Waco, 502 U.S. 9, 11-12
(1991). Such an immunity “is an immunity from suit, not just from ultimate
assessment of damages.” Id. at 11. Thus, it “operates to shield judges
acting in their official capacity and bars claims against [judicial] defendants
in their individual capacities,” McKnight, 699 F. Supp. 2d at 523 (internal
quotation marks and citations omitted).
[T]he necessary inquiry in determining whether a defendant judge
is immune from suit is whether at the time he took the challenged
action he had jurisdiction over the subject matter before him.
. . . [T]he scope of the judge’s jurisdiction must be construed
broadly where the issue is the immunity of the judge. A judge will
not be deprived of immunity because the action he took was in
error, was done maliciously, or was in excess of his authority;
rather, he will be subject to liability only when he has acted in the
clear absence of all jurisdiction.
Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (footnote, internal
quotation marks, and citation omitted).
Treistman argues that absolute judicial immunity is inapplicable here
because the family court is one of limited jurisdiction and N.Y. Comp. R. &
Regs. tit. 22, § 205.14 removes any discretion from the ministerial act of
scheduling proceedings in such a way that exceeds ninety days. (Dkt. No.
21 at 15-17.)
5
Here, it is abundantly clear that Judge McGinty had jurisdiction over
the underlying child custody proceedings. See N.Y. Fam. Ct. Act § 115.
Even if Judge McGinty’s conduct in allowing the proceedings to exceed
ninety days was motivated by impropriety, as Treistman contends, it does
not mean his actions were taken in the complete absence of all jurisdiction.
See Bliven, 579 F.3d at 209 (holding “allegations of bad faith or malice
cannot overcome judicial immunity”). Additionally, any error in extending
the custody proceeding beyond ninety days did not affect the court’s
jurisdiction:
Where the family court commences a hearing or trial to determine
the issue of custody or visitation (whether permanent or
temporary), [N.Y. Comp. R. & Regs. tit. 22, § 205.14] requires that
the hearing or trial proceed to completion within 90 days. While
this administrative rule is most salutary, there is no express
provision for enforcement of the rule. If the matter is not
completed within 90 days, the court does not lose jurisdiction to
decide the matter; indeed, to require the parties to start over
again would defeat the very purpose of the rule. Rather, the
purpose of the rule would appear to be to give the parties, should
the 90-day deadline approach or be exceeded, the opportunity to
urge both the assigned judge and the local administrative judge
to take steps to assure timely completion of the hearing or trial.
Alan D. Scheinkman, West’s McKinney’s Forms Matrimonial and Family
Law § 20:46 (April 2018) (internal citation omitted). As such, Treistman’s
claims against Judge McGinty in his individual capacity must fail.
6
Additionally, judicial immunity extends to non-judges “who perform
functions closely associated with the judicial process.” Cleavinger v.
Saxner, 474 U.S. 193, 200 (1985). A clerk’s acts that are performed at the
direction or under the supervision of a judicial officer come under the ambit
of judicial immunity. See Bliven, 418 F. Supp. 2d at 138; Oliva v. Heller,
839 F.2d 37, 40 (2d Cir. 1988) (finding that court clerks are entitled to
absolute immunity where their acts are of a judicial nature). “A court’s
inherent power to control its docket is part of its function of resolving
disputes between parties. This is a function for which judges and their
supporting staff are afforded absolute immunity.” Rodriguez v. Weprin,
116 F.3d 62, 66 (2d Cir. 1997).
Here, the complaint alleges that Weiner and other unnamed clerks
“effectuated scheduling of hearing dates” in such a fashion that extended
the custody hearing beyond ninety days, in violation of Treistman’s due
process rights. (Compl. ¶¶ 5, 25.) Treistman’s argument that such acts
were ministerial in nature, (Dkt. No. 21 at 12-13), is not dispositive: “[e]ven
when functions that are more administrative in character have been
undertaken pursuant to the explicit direction of a judicial officer, . . . that
officer’s immunity is also available to the subordinate.” Weprin, 116 F.3d
7
at 67 (internal quotation marks and citation omitted). Accordingly,
defendant court clerks are entitled to absolute immunity for their actions in
controlling the court’s docket, and the claims against them in their
individual capacities are dismissed.
III.
Declaratory and Injunctive Relief
Notwithstanding the foregoing, Treistman contends that he is not
barred from seeking declaratory or injunctive relief because “the complaint
alleges an ongoing . . . violation of [a] mandatory statute, leading to [a]
continuing federal due process violation.” (Dkt. No. 21 at 9 (citing Compl.
¶¶ 63, 65, 70-73).)
Indeed, if a complaint “alleges an ongoing violation of federal law and
seeks relief properly characterized as prospective,” then injunctive or
declaratory relief is not foreclosed by immunity. See Li v. Lorenzo, 712 F.
App’x. 21, 23-24 (2d Cir. 2017) (internal quotation marks and citations
omitted) (collecting cases). However, Treistman concedes that the
underlying child custody hearing “has ended with a dispositive decision.”
(Dkt. No. 21 at 5.) Treistman’s alleged injuries stem from past conduct.
(See generally Compl.) His speculative assertion that he “can re-petition
for a similar type trial at any time, and he will face the same statutory
8
violations with similar illegal delays,” (id. ¶ 73), fails to convince the court
that there is a plausible threat of future violations. The relief Treistman
seeks is therefore entirely retrospective. See Lorenzo, 712 F. App’x. at 2324. Accordingly, Treistman does not have standing to seek an injunction
because there is nothing to enjoin. Likewise, Treistman is not entitled to
declaratory relief because he alleges only past conduct and no ongoing or
impending violation of federal law. See Shtrauch v. Dowd, 651 F. App’x
72, 74 (2d Cir. 2016). Even if a declaration stating that defendants violated
the subject state regulation is arguably prospective in nature, the Eleventh
Amendment would bar the district court from issuing it. See Brown v. New
York, 975 F. Supp. 2d 209, 226 (N.D.N.Y. 2013) (finding that the Eleventh
Amendment “does not permit judgments against state officers declaring
that they violated federal law in the past” and collecting cases) (internal
quotation marks and citations omitted).5 Accordingly, Treistman’s claims
are not saved by the fact that he seeks injunctive or declaratory relief.
5
As for Treistman’s claims against defendants in their individual capacities, claims for
prospective relief against a state officer may be asserted only against the officer in his or her official
capacity. See Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 270 (1997) (“[T]o permit a
federal-court action to proceed in every case where prospective declaratory and injunctive relief is sought
against an officer, named in his individual capacity, would be to adhere to an empty formalism and to
undermine the principle . . . that Eleventh Amendment immunity represents a real limitation on a federal
court’s federal-question jurisdiction. The real interests served by the Eleventh Amendment are not to be
sacrificed to elementary mechanics of captions and pleading.”)
9
IV.
Leave to Amend
Finally, defendants argue that, in light of the substantive defects
discussed above, granting Treistman leave to amend would be futile. (Dkt.
No. 16, Attach. 3 at 14.) It should be noted that Treistman does not seek
leave to file an amended complaint. (Dkt. No. 21.) However, given his pro
se status, the court will consider whether to permit amendment in an
abundance of caution. Ordinarily, a court should not dismiss a suit filed by
a pro se litigant 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.” Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991). However,
an opportunity to amend is not required where “the problem with [the
plaintiff]’s causes of action is substantive” such that “better pleading will
not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Here,
permitting Treistman an opportunity to amend would be futile because the
deficiencies identified above are substantive in nature, and better pleading
could not cure them. As such, the court declines to grant Treistman leave
to amend his complaint.6
6
Given the dispositive nature of the applicable immunities discussed above, the court need not
address defendant’s remaining arguments related to Treistman’s failure to state a claim, (Dkt. No. 16,
Attach. 3 at 11-13), which may have provided alternative avenues for dismissal.
10
Accordingly, it is hereby
ORDERED that defendants’ motion to dismiss (Dkt. No. 16) is
GRANTED; and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this Summary Order to
the parties.
IT IS SO ORDERED.
August 27, 2018
Albany, New York
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