Samodovitz v. Cocchiola

Filing 19

MEMORANDUM-DECISION and ORDER. It is ORDERED that Judge Cocchiola's 7 motion to dismiss is GRANTED and Samodovitz's 1 complaint is DISMISSED. Signed by Judge David N. Hurd on 4/19/2017. (Copy served via regular and certified mail - article #7015 3010 0001 4974 6608) (dpk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
----------------------------------ARTHUR SAMODOVITZ,
Plaintiff,
-v-

3:16-CV-1228

CAROL A. COCCHIOLA,
Defendant.
----------------------------------APPEARANCES:

OF COUNSEL:

ARTHUR SAMODOVITZ
Plaintiff, Pro Se
200 Rano Boulevard, #4C-27
Vestal, NY 13850
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
Attorneys for Defendant
The Capitol
Albany, NY 12224

LOUIS JIM, ESQ.
Ass't Attorney General

DAVID N. HURD
United States District Judge
MEMORANDUM–DECISION and ORDER
I. INTRODUCTION
On October 11, 2016, plaintiff Arthur Samodovitz ("Samodovitz" or "plaintiff"),
proceeding pro se, initially filed this 42 U.S.C. § 1983 action against Carol A. Cocchiola, the
Binghamton City Court Judge presiding over a civil case in which plaintiff is a named
defendant. Plaintiff's § 1983 complaint asserted violations of his Fourteenth Amendment

rights to procedural due process and to equal protection arising from certain aspects of
Judge Cocchiola's conduct in presiding over the pending state action.
On October 31, 2016, Judge Cocchiola, represented by the Attorney General of the
State of New York, moved to dismiss Samodovitz's complaint under Federal Rule of Civil
Procedure ("Rule") 12(b)(6) because plaintiff had failed to state any viable claims. Plaintiff
initially responded in opposition on November 14, 2016.
On December 29, 2016, Samodovitz filed a letter motion requesting leave to amend
his complaint, primarily seeking to add Richard D. Northrup, Jr., a Broome County Court
Judge, as a second defendant in this action. According to plaintiff, Judge Northrup was
responsible for hearing an interlocutory appeal from his pending state court action. Plaintiff
later filed a letter motion requesting that certain exhibits also be included with his proposed
amended complaint.
On February 2, 2017, the Attorney General filed a letter motion requesting that
Samodovitz's exhibits be struck under Rule 12(f). According to this letter, plaintiff's filing
"casts aspersions on Judge Cocchiola's character and judicial conduct by implying that
donations from the law firm of Levin, Gouldin & Thompson, LLP to various campaign
committees, including that of Judge Cocchiola's, influenced Judge Cocchiola's judicial
decisions in a matter pending in Binghamton City Court." At that time, the Attorney General
also pointed out that although plaintiff is proceeding pro se, he is actually admitted to practice
law in the State of Connecticut, making his behavior "especially outrageous."1

1

A search for "Samodovitz" on the State of Connecticut's electronic "Attorney Firm Look-up" tool
reveals that plaintiff is admitted to practice there. See
https://www.jud.ct.gov/attorneyfirminquiry/AttorneyFirmInquiry.aspx.
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The same day, Samodovitz filed a letter motion requesting that Judge Cocchiola
"consent" to the filing of plaintiff's proposed amended complaint under the liberal standard
established in Rule 15(a)(2). Thereafter, plaintiff filed an opposition to the Attorney General's
letter motion to strike. All of these pending motions will be considered on the basis of the
submissions and without oral argument.
II. BACKGROUND2
On October 5, 2010, Samodovitz met with a vascular surgeon employed by United
Medical Associates of Johnson City, New York in an effort to determine the appropriate
treatment for varicose veins in plaintiff's left leg. Am. Compl. ¶ 1. The surgeon
recommended that plaintiff undergo an "ambulatory phlebectomy," a procedure where some
veins are physically removed from the leg, as well as an "RF ablation," a procedure where
other veins are sealed internally without being removed. Id. In preparation for these two
surgical procedures, the surgeon required plaintiff to first have an ultrasonic "vein mapping"
of his left leg. Id. ¶ 2. According to plaintiff, the surgeon recommended that this pre-surgical
procedure take place at United Health Services Hospital ("UHS"). Id.
On January 11, 2011, Samodovitz underwent an ultrasonic vein mapping of his left leg
at UHS. Am. Compl. ¶ 3. The bill from UHS for this procedure was "about $2148, and was
excessive." Id. ¶ 4. According to plaintiff, the procedure was performed by a technician "and
only took about 20 minutes." Id. Nevertheless, plaintiff and his insurer "paid this bill in full
through error." Id. ¶ 5.

2

For reasons that will be explained in greater detail below, the following allegations are taken from
Samodovitz's proposed amended complaint, ECF No. 13-1, and are assumed true for purposes of resolving
the pending motion to dismiss.
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On March 16, 2011, Samodovitz underwent the two surgical procedures described
above at the hands of the surgeon at UHS. Am. Compl. ¶ 6. The bill from UHS this time was
"about $8457, which was excessive." Id. ¶ 7; see also id. ¶¶ 8-13, 18 (setting forth itemized
charges on this bill as well as smaller, related bills invoiced as a result). Plaintiff's medical
insurer paid "about $6,941" toward these services. Id. ¶ 19. However, plaintiff did not pay
the balance remaining—"about $1542"—because "it appeared to plaintiff that UHS
overcharged" for these services. Id. ¶ 20.
Following these two procedures, Samodovitz's surgeon directed him "to get an
ultrasonic vein scan" of his left leg "to check for a clot, even though Plaintiff had no
symptoms of a clot." Am. Compl. ¶ 21. Plaintiff complied even though "[t]his vein scan was
unnecessary." Id. ¶ 22. The bill from UHS for this vein scan was "about $1100, and was
excessive." Id. ¶ 23. Nevertheless, plaintiff and his insurer "paid this bill in full, through
error." Id. ¶ 24.
Thereafter, UHS sued Samodovitz in Binghamton City Court for failing to pay the
remainder of his past due balance. Am. Compl. ¶ 25. Judge Cocchiola is the presiding
judge in that civil action. Id. ¶ 26. Further, UHS also "posted a defamatory notice with one or
more credit agencies that Plaintiff failed to pay an allegedly improper bill." Id. ¶ 27.
During the pendency of this civil action, Judge Cocchiola has "improperly denied"
certain of Samodovitz's motions to compel discovery. Am. Compl. ¶¶ 31-32. According to
plaintiff, Judge Cocchiola has also "improperly delayed 11 months in deciding" UHS's request
for a protective order, id. ¶ 33, only to "improperly grant[ ]" this request later, id. ¶ 34.
As a result of these improprieties, Samodovitz filed an interlocutory appeal to the
Broome County Court, which was assigned to Judge Northrup. Am. Compl. ¶ 35. However,
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Judge Northrup declined to hear the appeal because of a procedural error. Id. Thereafter,
Judge Cocchiola "improperly impeded and delayed" additional discovery requests made by
plaintiff. Id. ¶¶ 36-39. According to plaintiff, Judge Cocchiola "has engaged in a pattern of
improper activity biased toward UHS" to "help cover-up unfair billing practices of
UHS." Id. ¶ 40. Plaintiff has also twice requested that Judge Northrup disqualify Judge
Cocchiola, but Judge Northrup has not responded to these requests. Id. ¶ 42.
III. LEGAL STANDARDS
A. Failure to State a Claim
"To survive a Rule 12(b)(6) motion to dismiss, the '[f]actual allegations must be
enough to raise a right to relief above the speculative level.'" Ginsburg v. City of Ithaca, 839
F. Supp. 2d 537, 540 (N.D.N.Y. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). "Although a complaint need only contain 'a short and plain statement of the claim
showing that the pleader is entitled to relief' (FED. R. CIV. P. 8(A)(2)), more than mere
conclusions are required." Id. "Indeed, '[w]hile legal conclusions can provide the framework
of a complaint, they must be supported by factual allegations.'" Id. (quoting Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009)). "Dismissal is appropriate only where plaintiff has failed to provide
some basis for the allegations that support the elements of his claims." Id.; see also
Twombly, 550 U.S. at 570 (requiring "only enough facts to state a claim to relief that is
plausible on its face").
"When ruling on a motion to dismiss, the court must accept as true all of the factual
allegations contained in the complaint and draw all reasonable inferences in the
non-movant's favor." Faiaz v. Colgate Univ., 64 F. Supp. 3d 336, 344 (N.D.N.Y. 2014)
(Baxter, M.J.). In making this determination, a court generally confines itself to the "facts
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stated on the face of the complaint, . . . documents appended to the complaint or
incorporated in the complaint by reference, and . . . matters of which judicial notice may be
taken." Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (quoting Concord Assocs.,
L.P. v. Entm't Props. Tr., 817 F.3d 46, 51 n.2 (2d Cir. 2016)).
However, in some cases, "a document not expressly incorporated by reference in the
complaint is nevertheless 'integral' to the complaint and, accordingly, a fair object of
consideration on a motion to dismiss." Goel, 820 F.3d at 559. A document is only "integral"
to the complaint "where it relies heavily upon its terms and effect." Id. (quoting Chambers v.
Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)).
In other words, mere notice or possession of the document is not enough; rather, the
plaintiff must have relied on the terms and effect of the document in drafting the
complaint. See Goel, 820 F.3d at 559; see also Nicosia v . Amazon.com, Inc., –F.3d–, 2016
WL 4473225, at *5 (2d Cir. Aug. 25, 2016) (observing that this exception is typically invoked
where the unincorporated material is a "contract or other legal document containing
obligations upon which the plaintiff's complaint stands or falls, but which for some
reason—usually because the document, read in its entirety, would undermine the legitimacy
of the plaintiff's claim—was not attached to the complaint").3
B. Leave to Amend
"Generally, leave to amend should be freely given, and a pro se litigant in particular
should be afforded every reasonable opportunity to demonstrate that he has a valid

3

Even then, consideration of such material is only proper if it is clear on the record that no dispute
exists regarding the authenticity or accuracy of the document and that there are no material disputed issues
of fact regarding the material's relevance. Nicosia, 2016 WL 4473225, at *5.
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claim." Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000) (citations and internal q uotation marks
omitted); see also Foman v. Davis, 371 U.S. 178, 182 (1962) ("In the absence of any
apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment, futility of
amendment, etc.—the leave sought should, as the rules require, be 'freely given.'").
Importantly, however, "it is well established that leave to amend a complaint need not
be granted where amendment would be futile." Ellis v. Chao, 336 F.3d 114, 127 (2d Cir.
2003). "A proposed amended is futile where it 'fails to state a claim' or 'where the claim or
defense proposed to be added has no colorable m erit." Corbett v. Napolitano, 897 F. Supp.
2d 96, 119 (E.D.N.Y. 2012) (quoting Ho Myung Moolsan Co. v. Manitou Mineral Water, Inc.,
665 F. Supp. 2d 239, 250 (S.D.N.Y. 2009)). Accordingly, "[a]n amendment to a pleading is
futile if the proposed claim could not withstand a motion to dismiss pursuant to Fed. R. Civ.
P. 12(b)(6)." Lucente v. Int'l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir. 2002).
C. Pro Se Pleadings
The basic pleading requirements set forth above apply to pro se plaintiffs as well as
plaintiffs represented by counsel, but "a pro se complaint, however inartfully pleaded, must
be held to less stringent standards than formal pleadings drafted by lawyers." Ahlers v.
Rabinowitz, 684 F.3d 53, 60 (2d Cir. 2012) (internal quotation marks omitted) (quoting
Erickson v. Pardus, 551 U.S. 89, 94 (2007)). In other words, "[w]here, as here, the complaint
was filed pro se, it must be construed liberally with 'special solicitude' and interpreted to raise
the strongest claims that it suggests." Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013)
(quoting Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)).
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However, "all normal rules of pleading are not absolutely suspended" when a plaintiff
is proceeding pro se. Jackson v. Onondaga Cnty., 549 F. Supp. 2d 204, 214 (N.D.N.Y.
2008) (McAvoy, J.) (internal quotation marks and footnote omitted). Even a pro se plaintiff
must plead sufficient factual allegations to suggest an entitlement to relief. See id. Simply
put, Rule 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation." Iqbal, 556 U.S. at 678 (citations omitted).
IV. DISCUSSION4
Where, as here, "a plaintiff seeks to amend his complaint while a motion to dismiss is
pending, a court 'has a variety of ways in which it may deal with the pending motion to
dismiss, from denying the motion as moot to considering the merits of the motion in light of
the amended complaint." Hamzik v. Office for People with Dev. Disabilities, 859 F. Supp. 2d
265, 273-74 (N.D.N.Y. 2012) (quoting Roller Bearing Co. of Am., Inc. v. Am. Software, Inc.,
570 F. Supp. 2d 376, 384 (D. Conn. 2008)).
In the interest of judicial efficiency, the merits of the pending dismissal motion will be
considered in light of the allegations in Samodovitz's proposed amended complaint as
amplified by his supporting exhibits. See, e.g., Boguslavsky v. Kaplan, 159 F.3d 715, 719
(2d Cir. 1998) ("[C]ourts may look to submissions beyond the complaint to determine what
claims are presented by an uncounseled party.").
Samodovitz brings § 1983 claims based on the Equal Protection and Due Process
clauses of the Fourteenth Amendment. Plaintiff requests that Judge Cocchiola and Judge
Northrup both be disqualified and enjoined from having any further involvement in his state

4

Samodovitz's proposed amended complaint appears to contain one or more state law
claims. Those claims will be addressed in the Conclusion.
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case. Plaintiff also requests vacatur of certain prior orders entered in his state case "due to
bias." Finally, plaintiff requests monetary and punitive damages against each defendant.
"The purpose of § 1983 is to deter state actors from using the badge of their authority
to deprive individuals of their federally guaranteed rights and to provide relief to victims if
such deterrence fails." Wyatt v. Cole, 504 U.S. 158, 161 (1992). However, "[s]ection 1983
itself creates no substantive rights; it provides only a procedure for redress for the deprivation
of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir.
1993). Accordingly, to prevail on a § 1983 claim, a plaintiff must show (1) the deprivation of
a right, privilege, or immunity secured by the Constitution and its laws by (2) a person acting
under the color of state law. See 42 U.S.C. § 1983.
Upon review, Samodovitz's claims are improper and will be dismissed. "It is well
settled that judges generally have absolute immunity from suits for money damages for their
judicial actions." Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009) (collecting cases). The
purpose of this judicial immunity is to ensure "that a judicial officer, in exercising the authority
vested in him, shall be free to act upon his own convictions, without apprehension of
personal consequences to himself." Id. (citation omitted). Importantly, "even allegations of
bad faith or malice cannot overcome judicial immunity." Id.
Further, the 1996 Congressional amendments to the text of 42 U.S.C. § 1983 provide
that "in any action brought against a judicial officer for an act or omissions taken in such
officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree
was violated or declaratory relief was unavailable." 42 U.S.C. § 1983.
Of course, the broad sweep of the doctrine of absolute immunity is not without its
outer limits. For instance, it does not shield judges from liability for so-called "nonjudicial
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actions, i.e., actions not taken in the judge's judicial capacity." Mireles v. Waco, 502 U.S. 9,
11 (1991). "In determining whether an act by a judge is 'judicial,' thereby warranting absolute
immunity, we are to take a functional approach, for such 'immunity is justified and defined by
the functions it protects and serves, not by the person to whom it attaches," Bliven, 579 F.3d
at 209-210 (quoting Forrester v. White, 484 U.S. 219, 227 (1988) (emphasis in original).
"[T]he factors determining whether an act by a judge is a 'judicial' one relate to the
nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the
expectations of the parties, i.e., whether they dealt with the judge in his judicial
capacity." Stump v. Sparkman, 435 U.S. 349, 362 (1978).
Ultimately, "if the judge is performing in his judicial capacity, the '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.'" Ceparano v. Southampton Justice Court, 404 F. App'x
537, 539 (summary order) (quoting Stump, 435 U.S. at 356-57).
After carefully reviewing all of Samodovitz's submissions, it is patently clear that the
broad sweep of the doctrine of absolute judicial immunity shields both Judge Cocchiola and
Judge Northrup from all of plaintiff's claims. See Ceparano, 404 F. App'x at 539 ("A judge
defending against a section 1983 suit is entitled to absolute im munity from damages for
actions performed in his judicial capacity."); McKnight v. Middleton, 699 F. Supp. 2d 507, 523
(E.D.N.Y. 2010) (observing that the doctrine of absolute judicial immunity shields judicial
defendants in both their individual and official capacities); Bracci v. Becker, 2013 WL
123810, at *5 (N.D.N.Y. Jan. 9, 2013) (D'Agostino, J.) ("While absolute judicial immunity
does not bar claims for prospective injunctive relief, such relief is not available under § 1983
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absent an allegation of a violation of a prior declaratory decree or that declaratory relief was
unavailable."). Accordingly, Judge Cocchiola's motion to dismiss will be granted and
plaintiff's motion to amend will be denied as futile.
V. CONCLUSION
Samodovitz's submissions fail to state any plausible claims for relief. Although district
courts in this Circuit are generally reluctant to dismiss a pro se plaintiff's action without
permitting leave to replead, the Second Circuit has explained that it is nevertheless
appropriate to do so in cases "[w]here it appears that granting leave to amend is unlikely to
be productive." Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993).
That is certainly the case here, especially given that Samodovitz's additional filings
failed to cure the defects initially identified in the defendant's motion papers. Further, to the
extent that plaintiff's proposed amended pleading might also be construed to assert one or
more claims based on state law, supplemental jurisdiction over any such claims is
declined. See 28 U.S.C. § 1367(c)(3).
Finally, given the well-settled scope of the doctrine of absolute judicial immunity set
forth above and the fact that Samodovitz appears to be an attorney admitted to practice in
the State of Connecticut, plaintiff is advised to read carefully the requirements imposed by
Federal Rule of Civil Procedure 11(b) before making any further representations to this
Court.
Therefore, it is
ORDERED that
1. Judge Cocchiola's motion to dismiss is GRANTED; and
2. Samodovitz's complaint is DISMISSED.
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The Clerk of the Court is directed to terminate all pending motions and close this case.
IT IS SO ORDERED.

Dated: April 19, 2017
Utica, New York.

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