Pacherille v. County of Otsego et al

Filing 35

MEMORANDUM-DECISION and ORDER - That Burns' motion to dismiss (Dkt. Nos. 20,23) is GRANTED. That Pacherille's amended complaint (Dkt. No. 22) is DISMISSED. That Pacherille's letter requesting oral argument (Dkt. No. 12) is DENIED. Signed by Chief Judge Gary L. Sharpe on 7/3/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
TONY PACHERILLE,
Plaintiff,

3:13-cv-789
(GLS/DEP)

v.
BRIAN BURNS,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Office of Frank Policelli
10 Steuben Park
Utica, NY 13501

FRANK POLICELLI, ESQ.

FOR THE DEFENDANT:
Hancock, Estabrook Law Firm
100 Madison Street, Suite 1500
Syracuse, NY 13202

TIMOTHY P. MURPHY, ESQ.
JAMES P. YOUNGS, ESQ.

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Tony Pacherille commenced this action against defendant
Brian Burns,1 individually and as an Otsego County Court Judge, pursuant
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Pacherille’s amended complaint also named as defendants the County of Otsego, the
City of Oneonta, and the City of Oneonta Police Department. (Am. Compl., Dkt. No. 22.)
However, the parties stipulated to dismiss these defendants, and only Judge Burns remains.

to 42 U.S.C. § 1983, alleging violations of his First and Fourth Amendment
rights. (Am. Compl., Dkt. No. 22.) Pending is Judge Burns’ motion to
dismiss the amended complaint, (Dkt. Nos. 20, 23), and Pacherille’s letter
requesting oral argument, (Dkt. No. 12). For the reasons that follow, Judge
Burns’ motion is granted and Pacherille’s request is denied as moot.
II. Background2
The genesis of this action is the New York State criminal case of
Pacherille’s son, Anthony Pacherille, Jr., over which Judge Burns, an
Otsego County Court Judge, presided. (Am. Compl. ¶ 10.) Pacherille Jr.,
then sixteen years old, was charged with, among other things, “attempted
murder in the first degree as a hate crime, as the result of an incident in
which he shot a classmate who was an African American.” People v.
Pacherille, 106 A.D.3d 1136, 1137 (3d Dep’t 2013). 3 On April 29, 2011,

(Dkt. Nos. 33, 34.)
2

Unless otherwise noted, in discussing the background of this action, the court
“confine[s] its consideration to facts stated on the face of the [amended] complaint, in
documents appended to the [amended] complaint or incorporated in the [amended] complaint
by reference, and to matters of which judicial notice may be taken.” Serdarevic v. Centex
Homes, LLC, 760 F. Supp. 2d 322, 328 (S.D.N.Y. 2010) (quoting Leonard F. v. Israel Disc.
Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (internal quotation marks omitted)). The facts
are presented in the light most favorable to Pacherille.
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“A court may take judicial notice of matters of public record, including . . . decisions in
prior state court adjudications.” Johnson v. Pugh, No. 11-CV-385, 2013 WL 3013661, at *2
(E.D.N.Y. June 18, 2013).

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Pacherille Jr. pled guilty to attempted murder in the second degree. Id.;
(Am. Compl. ¶ 10.)
Prior to sentencing, defense counsel requested that Pacherille Jr. be
sentenced as a youthful offender. (Am. Compl. ¶ 10.) In support of that
request, defense counsel submitted sixty-two letters, one of which was
from Pacherille. (Id.) Among other things, Pacherille’s letter pleaded that
Judge Burns, “[a]s a father of a boy Anthony’s age,” consider the
“undeveloped and perplexing” mind of an adolescent boy. (Dkt. No. 22,
Attach. 1 at 1.) In May 2011, also prior to the sentencing, Pacherille helped
create “coophallofshame.com,” a website which “contained numerous
satirical messages highly critical of Judge Burns,” the District Attorney, and
the father of the shooting victim. 4 (Am. Compl. ¶¶ 11-12.) Ultimately, in
July 2011, Judge Burns sentenced Pacherille Jr. as an adult, in accordance
with the plea agreement. (Id. ¶¶ 10, 12); see Pacherille, 106 A.D.3d at
1137.
After the sentencing, Pacherille planned to protest Judge Burns’

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In a sworn deposition, which is attached to the amended complaint, Judge Burns
further stated that he believed that Pacherille “created a fake Facebook page using District
Attorney John Muehl’s name,” on which Judge Burns’ photo was posted, along with “false
statements of a graphic sexual nature of a relationship between” Judge Burns and the District
Attorney. (Dkt. No. 22, Attach. 2.) Judge Burns also noted that a second Facebook page was
created in his name, which was quickly taken down. (Id.)

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decision. (Am. Compl. ¶ 12.) Pacherille picked up a gathering application,
seeking permission from the City of Oneonta to publically protest Judge
Burns’ decision. (Id. ¶ 13.) While reviewing the application, Pacherille
noticed that it required that the place of protest be listed. (Id.) On August
2, 2011, Pacherille went to Judge Burns’ residence to confirm his address
and measure the sidewalk. (Id.; Dkt. No. 22, Attach. 2.) When Pacherille
went to Judge Burns’ residence, only Burns’ wife was home. (Dkt. No. 22,
Attach. 2.) Judge Burns’ wife answered the door, and soon asked that
Pacherille leave her porch. (Id.)
Soon after Pacherille left, Judge Burns called the police, and on
August 5, 2011, he filed a complaint and signed a sworn deposition,
charging Pacherille with harassment and claiming that Judge Burns
believed Pacherille’s behavior “serve[d] no legitimate purpose,” that
Pacherille’s only intentions were to “intimidate, harass[,] and annoy [him],”
and that he feared for himself and his family. (Id.; Am. Compl. ¶¶ 14, 23.)
Pacherille then received a phone call from the Chief of Police, who told him
to stay away from Judge Burns’ house. (Am. Compl. ¶ 23.) On August 3,
2010, Pacherille received a Cease and Desist letter from the New York
State Unified Court System, directing Pacherille to “refrain from any
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harassing, offensive or otherwise disruptive contact or communication with
Judge Burns or any member of his family.” (Dkt. No. 22, Attach. 3.) The
harassment charges were eventually dismissed on February 16, 2012.
(Am. Compl. ¶ 16.)
III. Standard of Review
The standard of review under Fed. R. Civ. P. 12 is well established
and will not be repeated here. For a full discussion of the standard, the
court refers the parties to its decision in Ellis v. Cohen & Slamowitz, LLP,
701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010).
IV. Discussion
Judge Burns argues that Pacherille’s amended complaint must be
dismissed, principally because he is entitled to absolute judicial
immunity—or, at least, qualified immunity. (Dkt. No. 20, Attach. 2 at 3-10;
Dkt. No. 28 at 3-5; Dkt. No. 30 at 1-2.) Pacherille contends that Judge
Burns is entitled to neither absolute nor qualified immunity. (Dkt. No. 29 at
3-6.) The court agrees with Judge Burns.
A.

Absolute Judicial Immunity
“It is well settled that judges generally have absolute immunity from

suits for money damages for their judicial actions.” Bliven v. Hunt, 579
5

F.3d 204, 209 (2d Cir. 2009) (citations omitted). This immunity is “from
suit, not just from ultimate assessment of damages.” Mireles v. Waco, 502
U.S. 9, 11 (1991) (citation omitted). The 1996 Congressional amendments
to § 1983 bar injunctive relief, unless a declaratory decree was violated or
declaratory relief was unavailable. See Montero v. Travis, 171 F.3d 757,
761 (2d Cir. 1999). Therefore, a judge is immune from all forms of suit
unless he has acted either beyond his judicial capacity, or “in the complete
absence of all jurisdiction.” Mireles, 502 U.S. at 12.
In determining whether or not a judge acted in the clear absence of
all jurisdiction, the judge’s jurisdiction is “to be construed broadly, and the
asserted immunity will only be overcome when the judge clearly lacks
jurisdiction over the subject matter.” Ceparano v. Southampton Justice
Court, 404 F. App’x 537, 539 (2d Cir. 2011) (internal quotation marks and
citation omitted). “Whether a judge acted in a judicial capacity depends on
the nature of the act [complained of] itself, i.e., whether it is a function
normally performed by a judge, and [on] the expectations of the parties,
i.e., whether they dealt with the judge in his judicial capacity.” Id. (internal
quotation marks and citation omitted). Moreover, if the judge is performing
in his judicial capacity, immunity does not give way even if “the action he
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took was in error, was done maliciously, or was in excess of his authority.”
Id. (internal quotation marks and citation omitted). 5
Here, Judge Burns argues that Huminski v. Corsones, 386 F.3d 116
(2d Cir. 2004) is directly on point. (Dkt. No. 22 at 4-8.) In Huminski, Judge
Corsones presided over Huminski’s criminal case. 386 F.3d at 122. After
the disposition of his criminal case, Huminski, among other things, began
parking his van, which he covered with signs condemning the judicial
system, in the parking lot of the courthouse where Judge Corsones
typically sat. Id. Additionally, on a day when Judge Corsones was
assigned to another courthouse fifty miles away, Huminski parked his van
at that courthouse, and covered his van with signs criticizing her. Id. at
124. Consequently, Judge Corsones, concerned about her safety and the
safety of her family, requested that court personnel contact law
enforcement and have Huminski removed from the courthouse; she also

5

Judicial immunity shields judges from suit to the extent that they are sued in their
individual capacities. See Martinez v. Queens Cnty. Dist. Attorney, No. 12-CV-06262, 2014
WL 1011054, at *8 n.8 (E.D.N.Y. Mar. 17, 2014); McKnight v. Middleton, 699 F. Supp. 2d 507,
521-25 (E.D.N.Y. 2010), aff’d, 434 F. App’x 32 (2d Cir. 2011). The Eleventh Amendment
shields judges from suit to the extent that they are sued in their official capacities. Martinez,
2014 WL 1011054, at *8 n.8. Here, Judge Burns is sued, for only money damages, in both his
official and individual capacities. (Am. Compl.) As discussed at length below, Judge Burns is
entitled to judicial immunity to the extent that he is sued in his individual capacity. Further, to
the extent that he is sued in his official capacity, Judge Burns is immune under the Eleventh
Amendment. See Hilton v. Wright, 928 F. Supp. 2d 530, 546 (N.D.N.Y. 2013).

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requested that he be served with notices of trespass, prohibiting him from
entering onto her personal residence and former law office, where her
then-husband practiced. See id. at 125-27. After receiving the notices of
trespass and leaving the premises without incident, Huminski brought suit
against Judge Corsones, among others, for violation of his First
Amendment rights. Id. at 129.
The Second Circuit concluded that Judge Corsones was entitled to
absolute judicial immunity from any liability arising from her participation in
the decision to issue the trespass notices. Id. at 140-41. The court noted
that, “Corsones engaged in a judicial act because the general nature and
function of her actions were substantially judicial.” Id. at 140 (citing Barrett
v. Harrington, 130 F.3d 246, 257-58 (6th Cir. 1997) (concluding that a
judge was entitled to judicial immunity for actions that included letters she
wrote on judicial letterhead to state and federal prosecutors requesting an
investigation of the plaintiff, against whom she had previously rendered
judgment, after concerns arose for her safety based on the plaintiff’s
actions)). Importantly, the court noted that “[t]here was a nexus between
[Judge Corsones’s] actions . . . and Huminski’s criminal case before her.
Huminksi’s letters, complaints, and protests regarding [Judge] Corsones
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stemmed directly and proximately from . . . his criminal case over which
she presided. And Corsones’s actions regarding the decision to issue the
trespass notices to Huminski stemmed directly from Huminski’s protests.”
Id. at 141. Judge Corsones’s actions, the court held, “were clearly
designed to address . . . [Huminski’s] conduct, and directly related to her
role in adjudicating the case which engendered [Huminski’s] conduct in the
first place.” Id. (internal quotation marks and citation omitted).
The court further concluded that Judge Corsones’s actions were
“essentially in her judicial capacity,” because she presided over Huminksi’s
criminal case, and Huminski’s subsequent complaints and protests
regarding her “derived from and focused on [Judge] Corsones’s judicial
performance in vacating his plea agreement.” Id. Finally, the court noted
that “the principles underlying judicial immunity suggest that Corsones’s
actions should be protected.” Id. Specifically, the court stated that:
[e]xposing [Judge Corsones] to liability for her part in the
decision to issue the trespass notices in response to
Huminski’s activities, which were in response to her judicial
decisions in a case before her, would be inconsistent with
the protection of the independence of her decisionmaking.
A judge cannot be expected regularly and dispassionately
to make decisions adverse to overtly hostile parties if
subsequent actions to protect herself, her staff, and those
in her courthouse from such hostility may result in the rigors
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of defending against—and even the possibility of
losing—lengthy and costly litigation.
Id.
While Huminski is not identical to this case, the court is persuaded by
the factual similarities. 6 Here, although Judge Burns did not preside over
proceedings involving Pacherille as a party, he did preside over
Pacherille’s son’s criminal proceeding, which was the catalyst for
Pacherille’s online criticisms and attempted protests. (Am. Compl. ¶ 15 (“It
was only through his capacity as a County Court Judge that [Judge Burns]
was able to have access to the [pre-sentencing] letter to use it to allege a
course of conduct.”); id. ¶ 26 (“The action of Defendant Burns . . . [was]
only made possible because of the privilege of his employment.”).)
Further, Pacherille was actively involved in the proceeding—as
evidenced by his pre-sentencing letter—and he was extremely vocal and
critical about both the proceedings and Judge Burns, as demonstrated by
his online criticisms of Judge Burns. (Dkt. No. 22, Attach. 1; Dkt. No. 22,
Attach. 2; Am. Compl. ¶¶ 11-12.) Indeed, Pacherille’s “complaints . . . and

6

In an attempt to distinguish Huminski from the case at bar, Pacherille notes that the
court in Huminski found that “the actions of the judge . . . did violate [the defendants’] rights,”
but that “[t]he only reason immunity was granted in that case was because ‘this individual right
was not well-settled at the time of the events at issue.’” (Dkt. No. 29 at 5 (citing Huminksi, 386
F.3d at 121).) Pacherille, however, confuses and conflates Huminski’s discussion of absolute
judicial immunity with its discussion of qualified immunity.

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protests” regarding Judge Burns “stemmed directly and proximately” from
Judge Burns’ decision to sentence Pacherille’s son as an adult. Huminski,
386 F.3d 116 at 141. Moreover, Judge Burns’ actions regarding the
decision to file harassment charges against Pacherille “stemmed directly
from” Pacherille’s protests. Id. Indeed, Judge Burns’ conduct was “directly
related to [his] role in adjudicating the case which engendered [Pacherille’s]
conduct in the first place.” Barrett, 130 F.3d at 259. But for Judge Burns’
involvement and sentencing decision in Pacherille’s son’s criminal trial,
Pacherille would have had no reason to protest Judge Burns in the first
place, and, in turn, Judge Burns would have had no reason to file
harassment charges against Pacherille. In fact, the amended complaint
states that Pacherille intended on specifically protesting Judge Burns’
sentencing decision. (Am. Compl. ¶ 12.) Finally, the principles underlying
judicial immunity, discussed above, are evident here: exposing Judge
Burns to liability for his decision to file harassment charges in response to
Pacherille’s activities, which were in response to Judge Burns’ judicial
decisions in a case before him, would be inconsistent with the protection of
the independence of his decisionmaking. See Huminski, 386 F.3d at 141.
Under these circumstances, it is reasonable to conclude that Judge
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Burns was performing a judicial act and acting in his judicial capacity. 7
Further, construing Judge Burns’ jurisdiction broadly, as the court must, it
cannot be said that he was “clearly lack[ing]” jurisdiction. Ceparano, 404 F.
App’x at 539. Thus, Judge Burns is entitled to absolute judicial immunity.
B.

Qualified Immunity
Qualified immunity generally protects governmental officials from civil

liability “insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). However, even if
the constitutional privileges “are so clearly defined that a reasonable public
official would know that his actions might violate those rights, qualified . . .
immunity might still be available . . . if it was objectively reasonable for the
public official to believe that his acts did not violate those rights.” Kaminsky
v. Rosenblum, 929 F.2d 922, 925 (2d Cir. 1991); see Wagner v. Swarts,
827 F. Supp. 2d 85, 101 (N.D.N.Y. 2011), aff’d sub nom. Wagner v.

7

On the one hand, Pacherille argues that Judge Burns was not acting in his judicial
capacity, and instead was satisfying a personal vendetta, but, on the other hand, Pacherille
discusses Judge Burns’ “official act” of reviewing Pacherille’s sentencing letter, and concedes
that Judge Burns acted “in his capacity as a judge.” (Dkt. No. 29 at 3-4.) While the court
notes, as did the court in Huminski, that “it can be difficult to distinguish between those actions
that are judicial,” and those that are not, 386, F.3d at 138, as discussed above, the nexus
between Judge Burns’ role as a judge and Pacherille’s conduct is sufficiently close to entitle
Judge Burns to judicial immunity.

12

Sprague, 489 F. App’x 500 (2d Cir. 2012).
Here, assuming, without deciding, that Pacherille has demonstrated a
violation of a clearly established right, 8 it is evident from the face of the
complaint9 that it was objectively reasonable for Judge Burns to believe
that his conduct—complaining to the police about a perceived threat to his
and his family’s safety—did not violate Pacherille’s rights. See Rohman v.
N.Y.C. Transit Auth., 215 F.3d 208, 217-18 (2d Cir. 2000) (holding that
transit authority supervisor was entitled to qualified immunity because “it
was objectively reasonable for [him] to believe that he came within the safe
harbor for the ‘mere reporting’ of suspected crime”); Barrett, 130 F.3d at
260 n.22 (holding that judge was entitled to absolute immunity, but noting
that “even if absolute immunity did not apply, qualified immunity would
8

While the court views Pacherille’s complaint in the light most favorable to him, it is far
from clear that he has established violations of his established constitutional rights. For
instance, with respect to his Fourth Amendment malicious prosecution claim, Pacherille must
allege, among other things, that “the defendant initiated a prosecution against [him]” and “a
sufficient post-arraignment liberty restraint to implicate [his] Fourth Amendment rights.”
Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000). Here, the court is not
persuaded that Pacherille has sufficiently alleged that Judge Burns “initiated a prosecution”
against Pacherille for malicious prosecution purposes; “[t]he mere reporting of a crime to police
and giving testimony are insufficient; it must be shown that defendant played an active role in
the prosecution, such as giving advice and encouragement or importuning the authorities to
act.” Id. at 217 (internal quotation marks and citations omitted). Aside from simply providing
information, there is no allegation in the amended complaint that Judge Burns assisted the
prosecution.
9

“[W]e see no reason why even a traditional qualified immunity defense may not be
asserted on a Rule 12(b)(6) motion as long as the defense is based on facts appearing on the
face of the complaint.” McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004).

13

certainly apply to Judge Harrington’s letters to prosecutors”). Thus, Judge
Burns is, at least, entitled to qualified immunity, and his motion to dismiss
must be granted.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Burns’ motion to dismiss (Dkt. Nos. 20, 23) is
GRANTED; and it is further
ORDERED that Pacherille’s amended complaint (Dkt. No. 22) is
DISMISSED; and it is further
ORDERED that Pacherille’s letter requesting oral argument (Dkt.
No. 12) is DENIED, and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
July 3, 2014
Albany, New York

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