Koziol v. King et al
MEMORANDUM-DECISION and ORDER - That State Defendants' 23 motion to dismiss is GRANTED. That Christensen's 36 motion for judgment on the pleadings is GRANTED. That Hawse-Koziol's 39 motion for judgment on the pleadings is GR ANTED. That Koslosky's 25 motion for summary judgment is GRANTED. That Kozio's 41 cross motion for recusal and/or disqualification of the court and for a preliminary injunction is DENIED. That Koslosky's 27 motion for san ctions pursuant to Fed. R. Civ. P. 11 is GRANTED and Koziol is directed to pay a penalty of $1,000 to Koslosky as part of Koslosky's attorneys' fees. That Koziol's complaint is DISMISSED. That the Clerk close this case. Signed by Chief Judge Gary L. Sharpe on 5/22/2015. (jel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
LEON R. KOZIOL, individually
and as natural parent of Child A
and Child B,
DANIEL KING et al.,
FOR THE PLAINTIFF:
Leon R. Koziol
1336 Graffenburg Road
New Hartford, NY 13413
FOR THE DEFENDANTS:
Daniel King; James Gorman; James
Tormey; Robert Rose; John Lahtinen;
Edward Spain; Leslie Stein; Monica
Duffy; Steven Zayas; John Centra
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
Albany, NY 12224
Schmitt & Lascurettes, LLC
1508 Genersee Street, Suite 3
Utica, NY 13502
JUSTIN L. ENGEL
Assistant Attorney General
WILLIAM P. SCHMITT, ESQ.
16 Terrace Hill Drive
New Hartford, NY 13413
Costello, Cooney Law Firm
500 Plum Street
Syracuse, NY 13204
PAUL G. FERRARA, ESQ.
Gary L. Sharpe
MEMORANDUM-DECISION AND ORDER
Plaintiff pro se Leon R. Koziol commenced this action against
defendants Daniel King, James Gorman, James Tormey, Robert Rose,
John Lahtinen, Edward Spain, Leslie Stein, Monica Duffy, Steven Zayas,
John Centra, (collectively, “State Defendants”), Nicole Christensen,
defendant pro se Kelly Hawse-Koziol, and William Koslosky, pursuant to
42 U.S.C. § 1983, alleging violations of his First, Fourth, Ninth, and
Fourteenth Amendment rights, and also asserting a claim of prima facie
tort under New York common law.1 (Compl., Dkt. No. 1.) Pending are
State Defendants’ motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1)
Soon after filing his complaint, Koziol sought a temporary restraining order by order to
show cause, (Dkt. No. 6), which the court denied, (Dkt. No. 7).
and 12(b)(6), (Dkt. No. 23), Koslosky’s motions for summary judgment,
(Dkt. No. 25), and for sanctions pursuant to Fed. R. Civ. P. 11, (Dkt. No.
27), Christensen’s motion for judgment on the pleadings pursuant to Fed.
R. Civ. P. 12(c), (Dkt. No. 36), Hawse-Koziol’s motion for judgment on the
pleadings pursuant to Fed. R. Civ. P. 12(c), (Dkt. No. 39), and Koziol’s
cross motion for disqualification of the court and a preliminary injunction,
(Dkt. No. 41). For the reasons that follow, each of defendants’ motions are
granted, Koziol’s cross motion is denied, and his complaint is dismissed.
Koziol is a suspended attorney and “parental advocate . . . seeking to
reform th[e] child rearing system.” (Compl. ¶¶ 6, 58, 60, 66.) Endeavoring
to comprehend his verbose, disjointed, and vitriolic complaint has been, to
use Koziol’s own words, “a chaotic ordeal.” (Dkt. No. 45, Attach. 1 ¶ 14.)
Nonetheless, the court has waded through all 179 paragraphs, and, after a
painstaking review, has gleaned that Koziol’s gripes derive from two
general sources: (1) divorce, child custody, and chid support proceedings
Although the court appreciates that different standards are used in presenting facts
on motions to dismiss and motions for summary judgment, because all of Koziol’s claims can
be dismissed based on pleading deficiencies, the facts recited are drawn from Koziol’s
complaint, and presented in the light most favorable to him.
in New York Family Court, throughout which various judges have
continuously and systematically violated myriad constitutional rights; and
(2) state court decisions suspending him from the practice of law in New
York, and the various investigations prior and subsequent to those
decisions. (See generally Compl.)
Thus, in this case—his fourth filed in the Northern District of New
York3—Koziol names as defendants eight New York state judges, two
former members of New York’s Committee on Professional Standards
(COPS), a court-appointed Attorney for the Child, a supervisor for the
Oneida County Support Collection Unit, and his ex-wife. (Id.) Against
each of these defendants, he asserts a veritable potpourri of constitutional
and state law infractions: violations of his Fourteenth Amendment
Notably, Koziol has filed three prior lawsuits in this District, and in each, he alleged
similar claims against many of the same defendants named here. Each of those cases were
dismissed, and attorneys’ fees were awarded in one. See Koziol v. Peters, No. 12-CV-823,
2012 WL 4854589, at *1, *10-11 (N.D.N.Y. Oct. 11, 2012) (dismissing complaint in which
claims arose “from his custody and child support proceedings in New York state court, his
subsequent suspension from the practice of law, and his current inability to cure his
suspension,” and were asserted against, among other defendants, Rose, Lahtinen, Spain,
Stein, Koslosky, Duffy, and Zayas, and characterizing Koziol’s complaint as “rambling,
disjointed, and nearly incomprehensible”); Koziol v. Peters, No. 6:12-CV-823, 2012 WL
5986574, at *2-3 (N.D.N.Y. Nov. 29, 2012) (granting the defendant City of Utica’s motion for
attorneys’ fees and describing the claims asserted in the complaint as “without legal
foundation, and . . . baseless”); Parent v. New York, 786 F. Supp. 2d 516, 544-45 (N.D.N.Y.
2011) (dismissing lead case, along with member case—Koziol’s third case filed in this District,
No. 6:10-CV-1361—in which Koziol sued, among other defendants, all of the Justices of the
Appellate Division, Fourth Department, the entire Fifth Judicial District Grievance Committee,
Hawse-Koziol, and Koslosky), aff’d 485 F. App’x 500 (2d Cir. 2012).
substantive and procedural due process and equal protection rights,
Fourth, Ninth, and Tenth Amendment “parental privacy” rights, First
Amendment “free speech, free press, free religion, free association and
judicial access” rights, and state tort law. (Id. ¶¶ 154-68, 174-75.) He also
seeks declaratory and injunctive relief in the form of the following: (1) “[a]
permanent inunction . . . upon interacting processes challenged by this
action and on custody/support orders and license suspensions issued”; (2)
“[a] judgment declaring unconstitutional Section 240(1) of the New York
Domestic Relations Law, the parental classifications enforced in New York,
and a practice of censoring out-of-court criticisms”; (3) “[a] judgment
declaring unconstitutional Section 8.4(d) and (h) of the New York Attorney
Rules of Conduct and the terms of suspension upon [him] which prohibit
opinions and employment related to the law in undefined and wide ranging
contexts”; and (4) “[o]rders restoring [his] law license in this [c]ourt,4
sealing the records and parenting time sufficient to overcome child
alienations.” (Id. at 30.)
With respect to Koziol’s request to restore his law license in the Northern District, the
court, at the outset, denies this relief. This District’s Local Rule 83.4(d) sets forth the
appropriate procedure by which an attorney may seek to modify an order of discipline. Koziol
has not complied with that procedure.
Below, to the extent possible, the court attempts to set forth the
relevant facts pertaining to each defendant.
Judge King is a County Court judge in Lewis County, New York, and,
beginning in 2013, presided over Koziol’s Family Court matters. (Id. ¶¶ 19,
108.) Specifically, Koziol alleges that, in July 2013, his ex-wife, HawseKoziol, filed “specious petitions,” and, subsequently, Judge King issued
several “bad faith orders,” that, among other things, restricted Koziol’s
alcohol consumption during visits with his children and limited the
geographic area in which he could travel with them. (Id. ¶¶ 108-12, 115.)
Koziol further alleges that Judge King imposed additional restrictions
on him when he sought to take his children to an out-of-town wedding. (Id.
¶¶ 119-20.) These restrictions included requiring separate lodging for
Koziol’s children and fiancée and prohibiting alcohol consumption. (Id.)
After the wedding, Judge King “ordered [Koziol] to answer violation
charges,” apparently because Hawse-Koziol alleged that Koziol had
violated the visitation conditions established by Judge King. (Id. ¶¶ 12126.) Thereafter, Koziol claims that Judge King suspended his parenting
time, but that decision was later reversed by the Appellate Division. (Id.
¶¶ 126-28.) Later, “in a decision received on Christmas Eve,” Judge King
“defied the higher court order” and issued “more punitive orders . . . solely
to discredit [Koziol]’s public criticisms monitored outside of court,”
presumably on his website. (Id. ¶¶ 127-28.) Finally, Koziol alleges that, in
January 2014, Judge King conducted a hearing in “contempt of a higher
court order,” during which he “falsely accus[ed Koziol] of objecting to entire
testimony,” “directed [Koziol] to ‘be quiet’ or be ‘removed’ from the court,”
“facilitated false testimony,” and generally converted the proceedings “to a
father-bashing session infected by rumor and innuendo.” (Id. ¶¶ 130-37.)
Magistrate Gorman is a Support Magistrate for Onondaga County,
and, in 2012, was assigned to Koziol’s “child rearing matters.” (Id. ¶¶ 20,
95-96.) Koziol alleges that, after he “secured a position projected to satisfy
accumulating support arrears,” Hawse-Koziol “refused [to] cooperat[e],”
which “forc[ed Koziol] to file for [a] downward adjustment.” (Id. ¶ 95.)
Thereafter, Magistrate Gorman “issued a later conceded unlawful order
with minor temporary relief that failed to advance [Koziol]’s long term
goals.” (Id. ¶ 96.) Magistrate Gorman also appointed Koslosky to
represent Koziol’s children in support proceedings. (Id. ¶¶ 101, 105.)
Additionally, in April 2013, Koziol published a twenty-five page complaint
on his website, which was critical of the “inordinate delays and employment
injury caused by Magistrate Gorman,” and, ten days later, Magistrate
Gorman “issued a four month late decision which reversed his unlawful
order, imposed lawyer fees contrary to record commitments, imputed
income based on a fabricated PhD, and hiked support obligations to
unmanageable levels.” (Id. ¶¶ 103-04.)
Judge Tormey is the Administrative Judge for the Fifth Judicial
District. (Id. ¶ 21.) In this role, Judge Tormey assigned certain judges to
Koziol’s various family law matters, who then often issued decisions and
orders unfavorable to Koziol. (Id. ¶¶ 82, 138.)
Justices Rose, Lahtinen, Spain, and Stein
At the time Koziol filed his complaint, Justices Rose, Lahtinen, Spain,
and Stein5 were Justices of the Supreme Court, Appellate Division, Third
Judicial Department. (Id. ¶ 22.) These defendants are each named only
Justice Stein has since been appointed to the New York Court of Appeals. For the
sake of consistency, the court will refer to her as “Justice” Stein throughout this opinion.
once in Koziol’s complaint. (Id.) Koziol has completely failed to provide
any factual background elucidating why he has named these individuals as
Justice Centra is a Justice of the Supreme Court, Appellate Division,
Fourth Judicial Department. (Id. ¶ 26.) Koziol alleges that, in January
2008, Justice Centra presided over his application for a stay of his divorce
and child custody and support proceedings. (Id. ¶¶ 1-5, 31-38.) Koziol
further alleges that, around the same time, an “ethics prosecution” was
commenced against him, and Justice Centra “directed” the prosecution
“using means outside of established channels and judicial scope.” (Id.
¶¶ 40-41.) According to Koziol, Justice Centra “was offended by [Koziol]’s
criticisms,” and the purpose of the prosecution “was not designed to further
any legitimate ethics objective but to make an example of [Koziol] by
suppressing his accurate criticisms of Family Court and discouraging long
overdue reform.” (Id. ¶¶ 41-44.)
While the court can surmise that these Justices are named as defendants because
they issued decisions unfavorable to Koziol in his disciplinary proceedings, see In re Koziol,
107 A.D.3d 1137 (3d Dep’t 2013); In re Koziol, 76 A.D.3d 1136 (3d Dep’t 2010), it is not the
court’s duty to unearth facts outside of the pleadings, nor is it even appropriate for the court to
Zayas and Duffy
Zayas is a former member of COPS, and Duffy is the former
chairperson and current chief counsel. (Id. ¶¶ 23-24.) Koziol claims that
Zayas and Duffy authorized and led “inquiries” of him and submitted a
“‘secret’ report” opposing his reinstatement to the bar. (Id. ¶¶ 69, 143-44,
Christensen is a supervisor for the Oneida County Support Collection
Unit and is assigned to Koziol’s income and asset executions. (Id. ¶ 25.)
Although far from clear, Koziol appears to allege that Christensen aided
Hawse-Koziol in “impair[ing] driving and employment liberties,” “pursuant to
an unlawful [support] intercept to enforce private debts.” (Id. ¶¶ 98, 100.)
Koslosky was appointed Attorney for the Child for Koziol’s two
children, and, in that role, he “harmed the long term interests of [the
children].” (Id. ¶ 28.) Koziol further claims that Koslosky fabricated and
submitted a sworn statement “claiming that [Koziol] had sought
reinstatement of his law license in Onondaga Family Court in a scam to
fabricate lawyer incompetence” and, together with Hawse-Koziol, “lodged
false claims . . . that [Koziol] had arranged a kidnapping plot in Rio de
Janeiro.” (Id. ¶¶ 71-72, 76-77.) Koziol also alleges that, in July 2013,
Koslosky, again with Hawse-Koziol, filed a “round of specious petitions.”
(Id. ¶ 108.)
Hawse-Koziol is Koziol’s ex-wife and the mother of his two children.
(Id. ¶¶ 27, 32, 37.) Koziol claims that Hawse-Koziol “issued an ultimatum
which called for a surrender of parenting rights in exchange for an end to
child support so that a wealthy, childless substitute could father [Koziol]’s
daughters,” “abuse[d] joint custody rights by orchestrating a series of
career damaging petitions,” filed “false claims,” “motions for contempt,” and
“specious petitions” against Koziol in Family Court—which resulted in
added visitation restrictions, “injury to [Koziol]’s livelihood,” and a general
loss of parenting rights—and “impair[ed Koziol’s] driving and employment
liberties” with the aid of Christensen. (Id. ¶¶ 35-36, 76, 82, 89, 91-92, 9495, 98, 100, 108-13, 115-16, 137.)
III. Standard of Review
The standards of review under Rules 12(b)(1) and 12(b)(6), which
are “substantively identical,” Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128
(2d Cir. 2003), are well settled and will not be repeated. For a full
discussion of those standards, the parties are referred to the court’s
decisions in Unangst v. Evans Law Associates, P.C., 798 F. Supp. 2d 409,
410 (N.D.N.Y. 2011), and Ellis v. Cohen & Slamowitz, LLP, 701 F. Supp.
2d 215, 218 (N.D.N.Y. 2010), respectively. Likewise, the standard of
review pursuant to Fed. R. Civ. P. 56 is also well established and need not
be repeated here. See Wagner v. Swarts, 827 F. Supp. 2d 85, 92
(N.D.N.Y. 2011), aff’d sub nom. Wagner v. Sprague, 489 F. App’x 500 (2d
Furthermore, in general, pro se plaintiffs are “entitled to special
solicitude,” and the court has a duty to read and interpret a pro se party’s
submissions “to raise the strongest arguments that they suggest.”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006)
(internal quotation marks and citations omitted). However, where “a
particular pro se litigant is familiar with the procedural setting as a result of
prior experience such that it is appropriate to charge [him] with knowledge
of . . . particular requirements, it falls well within a district court’s discretion
to lessen the solicitude that would normally be afforded.” Tracy v.
Freshwater, 623 F.3d 90, 102 (2d Cir. 2010) (internal quotation marks and
As an initial matter, because Koziol graduated from law school and,
as he points out, spent “more than two decades” practicing law, (Compl.
¶ 40), he is undeserving of “the leeway afforded to legal neophytes,” NMD
Interactive, Inc. v. Chertok, No. 11 Civ. 6011, 2013 WL 1385213, at *12
(S.D.N.Y. Mar. 18, 2013), vacated on other grounds by Streeteasy, Inc. v.
Chertok, 752 F.3d 298 (2d Cir. 2014). See Parent v. New York, 485 F.
App’x 500, 502-03 (2d Cir. 2012) (declining to afford Koziol the “special
solicitude” afforded to pro se plaintiffs).
Koziol’s Motion For Disqualification of the Court
Invoking due process principles, Koziol seeks the court’s recusal.7
(Dkt. No. 45, Attach. 1 at 2-6; Dkt. No. 45, Attach. 2 at 15, 25-30.) Koziol’s
motion is denied.
“Consistent with a defendant’s due process right to a fair trial, a
district judge must recuse himself ‘in any proceeding in which his
Contemporaneous with the filing of his motion, Koziol filed a Petition for Mandamus
with the Second Circuit, seeking substantially the same relief as he seeks here: the court’s
disqualification and various forms of declaratory and injunctive relief. (See generally Dkt. No.
45, Attach. 2.) He also sought a venue change to the Southern District of New York. (Id.)
The Second Circuit denied the mandamus petition “because [Koziol did] not demonstrate that
exceptional circumstances warrant the requested relief.” (Dkt. No. 46.)
impartiality might reasonably be questioned.’” United States v. Basciano,
384 F. App’x 28, 32 (2d Cir. 2010) (quoting 28 U.S.C. § 455(a)). A recusal
decision rests within the sound discretion of the judge whose recusal is
sought. See United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992).
The standard for recusal is whether “a reasonable person, knowing all the
facts, [would] conclude that the trial judge’s impartiality [might] reasonably
be questioned.” Id. (citation omitted). “Or phrased differently, would an
objective, disinterested observer fully informed of the underlying facts,
entertain significant doubt that justice would be done absent recusal?” Id.
(citation omitted). Notably, recusal is not required where a case “involves
remote, contingent, indirect or speculative interests.” Id. To permit
otherwise would be to “bestow upon litigants the power to force the
disqualification of judges who are not to their liking.” United States v.
Ahmed, 788 F. Supp. 196, 202 (S.D.N.Y. 1992), aff’d, 980 F.2d 161 (2d
First, Koziol contends that recusal is mandated by the court’s prior
adverse rulings, including the court’s denial of his application for a
temporary restraining order by order to show cause, (Dkt. Nos. 6, 7), and
its denial of his motion seeking either reconsideration of that decision or
certification to file an interlocutory appeal, (Dkt. Nos. 19, 44). (Dkt. No.
45, Attach. 2 at 15, 27-30.) Prior adverse rulings, however, are generally
not a basis for disqualification. See Gallop v. Cheney, 645 F.3d 519, 52021 (2d Cir. 2011) (noting that an adverse ruling alone was insufficient to
establish the sort of extreme antagonism required for disqualification); see
also Liteky v. United States, 510 U.S. 540, 555 (1994) (noting that
“opinions formed by the judge on the basis of facts introduced or events
occurring in the course of the current proceedings, or of prior proceedings,
do not constitute a basis for a bias or partiality motion unless they display
a deep-seated favoritism or antagonism that would make fair judgment
impossible”). Equally unpersuasive is Koziol’s insistence that recusal is
necessary because the court has been critical of his consistently
nonsensical and abusive submissions. (Dkt. No. 45, Attach. 1 at 3, 5; Dkt.
No. 45, Attach. 2 at 25.) Indeed, “a judge’s comments during a
proceeding that are ‘critical or disapproving of, or even hostile to, counsel,
the parties, or their cases, ordinarily do not support a bias or partiality
challenge.’” United States v. Carlton, 534 F.3d 97, 100 (2d Cir. 2008)
(quoting Liteky, 510 U.S. at 555).8
Second, Koziol argues that the Second Circuit’s decision in United
States v. Cossey, 632 F.3d 82 (2d Cir. 2011), compels recusal. (Dkt. No.
45, Attach. 1 at 2-4; Dkt. No. 45, Attach. 2 at 25-27.) In Cossey, the
Second Circuit vacated a sentence imposed by this court on a defendant
who pled guilty to one count of possession of child pornography, and held
that this court improperly based the sentence on an unsupported theory
that the defendant was genetically predisposed to recidivism. See 632
F.3d 82. In a Hail Mary attempt to explain how Cossey engenders bias
here, Koziol claims that, “[t]his case focuses upon traits of a father and
mother which refute disparate treatment under current law,” and, as
Koziol also takes issue with two aspects of the court’s September 3, 2014 order
denying his request to supplement his application for a temporary restraining order. (Dkt. No.
17; Dkt. No. 45, Attach. 2 at 27.) First, Koziol argues that the court “utterly ignored” his claims
of mail tampering, which he describes, incredibly, as “ongoing crimes . . . at the core of [his]
case.” (Dkt. No. 45, Attach. 2 at 27.) In fact, in his thirty-page complaint, Koziol uses the
phrase “mail tampering” exactly once, and in reference to “crimes committed by an exsecretary,” who is neither identified nor named as a defendant in this action. (Compl. ¶ 67.)
Thus, his claims of “mail tampering” are tangential at best. Further, aside from the court’s
order denying his application for a temporary restraining order, which he claims he never
received, (Dkt. No. 45, Attach. 2 at 27), Koziol appears to have received every other
communication from this court. Second, Koziol seems to argue that the court improvidently
denied his requests to seal the record and permit him to proceed under a fictional party name,
in contrast to a previous decision from this District granting those requests. (Id.) Again,
Koziol’s accusations ignore reality. The court denied his request to seal documents because
he failed to comply with this District’s Local Rules, and the court also ordered him to comply
with Local Rule 8.1 with respect to certain of his exhibits that contained personal identifiers.
(Dkt. Nos. 7, 17.)
Cossey demonstrates, the court is “presumptively infected by an
undisclosed bias which . . . leads [it] to the discredited sexist conclusion
that mothers are genetically programmed to be superior nurturers and
fathers accordingly resist their subservient roles as money givers.” (Dkt.
No. 45, Attach. 1 at 3; Dkt. No. 45, Attach. 2 at 26.) Simply put, Koziol’s
argument is rejected because Cossey and the matter now before the court
could not be any more different, and to say that Koziol’s assertions rely
upon “remote, contingent, indirect or speculative” theories is an
understatement. Lovaglia, 954 F.2d at 815.9
As the Second Circuit has observed, “where the standards
governing disqualification have not been met, disqualification is not
optional; rather, it is prohibited.” In re Aguinda, 241 F.3d 194, 201 (2d Cir.
2001). Koziol’s cross motion for recusal or disqualification of the court,
(Dkt. No. 41), is therefore denied. Below, the court addresses the relevant
arguments advanced by defendants in support of their motions, Koziol’s
Without any explanation, Koziol also claims that, because “Judge Sharpe’s . . . son is
employed for a federal prosecutor who testified at the subject Moreland Commission[,] . . .
additional bias issues” are triggered. (Dkt. No. 45, Attach. 1 at 4; Dkt. No. 45, Attach. 2 at 27.)
This argument is also rejected. Under 28 U.S.C. § 455(b)(5)(ii), recusal is appropriate when “a
person within the third degree of relationship to [the judge] . . . [i]s acting as a lawyer in the
proceeding.” That is not the case here, as the court has no relation to any of the lawyers in
responses in opposition, and, finally, Koziol’s remaining cross motion.
State Defendants contend that all claims against Judge Tormey and
Justices Rose, Lahtinen, Spain, and Stein must be dismissed because
Koziol has failed to assert any facts supporting their personal involvement.
(Dkt. No. 23, Attach. 1 at 18-19.) Christensen also advances this
argument in her submissions, and seeks dismissal on the same grounds.
(Dkt. No. 36, Attach. 1 at 5-8.) The court agrees.
“‘[P]ersonal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under § 1983.’”
Dyno v. Vill. of Johnson City, 240 F. App’x 432, 434 (2d Cir. 2007)
(quoting Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986)).
Personal involvement “can occur by direct participation in the alleged
violation, a supervisory official’s failure to remedy a wrong, a supervisory
official’s creation of a policy or custom under which unconstitutional acts
occurred, or through a supervisory official’s gross negligence in managing
his subordinates.” Id.; see Ashcroft v. Iqbal, 556 U.S. 662, 683 (2009)
(“[P]etitioners cannot be held liable unless they themselves acted on
account of a constitutionally protected characteristic.”). In order to prevail
on a § 1983 cause of action against an individual, a plaintiff must show “a
tangible connection between the acts of a defendant and the injuries
suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). “To be
sufficient before the law, a complaint must state precisely who did what
and how such behavior is actionable under law.” Hendrickson v. U.S.
Attorney Gen., No. 91 CIV. 8135, 1994 WL 23069, at *3 (S.D.N.Y. Jan.
24, 1994), aff’d, 40 F.3d 1236 (2d Cir. 1994).
Here, Koziol has failed to allege personal involvement with respect
to Justices Rose, Lahtinen, Spain, and Stein, who are each mentioned
only once in the complaint. (Compl. ¶ 22.) Thus, because the court is left
totally in the dark with respect to their wrongdoing, they are dismissed
from this action. Next, with respect to Judge Tormey, all Koziol has
alleged is that Judge Tormey assigned certain judges to his family law
matters, (id. ¶¶ 82, 138), but he has failed to explain how those actions
give rise to any cognizable constitutional or state law claim. Judge
Tormey, therefore, is also dismissed as a defendant. Finally, with respect
to Christensen, a supervisor for the Oneida County Support Collection
Unit, all Koziol has alleged is that she aided Hawse-Koziol in “impair[ing]
driving and employment liberties,” “pursuant to an unlawful [support]
intercept.” (Id. ¶¶ 25, 98, 100.) These are entirely vague allegations,
which leave the court with no understanding of the factual basis for the
claims asserted against Christensen, and she is also dismissed from this
action. Accordingly, Christensen, Judge Tormey, and Justices Rose,
Lahtinen, Spain, and Stein are dismissed for lack of personal involvement.
Next, State Defendants argue that the claims asserted against
Judge King and Magistrate Gorman in their individual capacities must be
dismissed because they are entitled to absolute judicial immunity.10 (Dkt.
No. 23, Attach. 1 at 6-12.) Koziol counters that judicial immunity does not
apply. (Dkt. No. 42, Attach. 3 at 13-14.) The court agrees with State
“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) (citations omitted). This immunity is “from
Judicial immunity shields judges from suit to the extent that they are sued in their
individual capacities. See Ying Jing Gan v. City of N.Y., 996 F.2d 522, 529 (2d Cir. 1993);
Martinez v. Queens Cnty. Dist. Attorney, No. 12-CV-06262, 2014 WL 1011054, at *8 n.8
(E.D.N.Y. Mar. 17, 2014), aff’d, 596 F. App’x 10 (2d Cir. 2015); 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). As further
discussed below, the Eleventh Amendment, on the other hand, shields judges from suit to the
extent that they are sued in their official capacities. See Ying Jing Gan, 996 F.2d at 529.
suit, not just from ultimate assessment of damages.” Mireles v. Waco,
502 U.S. 9, 11 (1991) (citation omitted). A judge is not entitled to this
immunity, however, if he has acted either beyond his judicial capacity, or
“in the complete absence of all jurisdiction.” Id. 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 took was in
error, was done maliciously, or was in excess of his authority.” Id.
(internal quotation marks and citation omitted).
Here, Koziol’s allegations against Judge King relate primarily to
various custody and visitation orders that he issued in matters pending
before him. (Compl. ¶¶ 108-12, 119-20, 127-28.) Koziol also complains
of the way that Judge King managed his courtroom during a hearing. (Id.
¶¶ 130-37.) This conduct is precisely the type that is protected by judicial
immunity. See Davis v. Kushner, No. 1:14-cv-00511, 2014 WL 5308142,
at *5 (N.D.N.Y. Oct. 16, 2014) (holding that family court judge was
protected by judicial immunity where the plaintiff alleged that the judge
“denied him custodial and visitation rights [with his children] because he is
a Muslim”); Ezeh v. VA Med. Ctr., Canandaigua, N.Y., No. 13-CV-06563,
2014 WL 4897905, at *13 (W.D.N.Y. Sept. 29, 2014) (holding that “the
conduct of a hearing, the consideration of evidence, and the rendering of
a decision are all quintessentially judicial acts”); Sargent v. Emons, No.
3:13cv863, 2013 WL 6407718, at *7 (D. Conn. Dec. 9, 2013) (holding that
judge was immune from suit where allegations in complaint stemmed
“from orders issued by [her] during the pendency of the child custody
dispute before her”), aff’d, 582 F. App’x 51 (2d Cir. 2014). Although Koziol
insists that these actions were taken in the absence of Judge King’s
jurisdiction, (Compl. ¶¶ 29-30, 124, 128), that is a legal conclusion, and
simply reciting it does not make it so. See Nielsen v. Rabin, 746 F.3d 58,
62 (2d Cir. 2014) (noting that, in considering a motion to dismiss, courts
“are not required to credit conclusory allegations or legal conclusions
couched as factual . . . allegations” asserted in a plaintiff’s complaint).
Simply put, Koziol has not alleged any facts that would indicate that Judge
King acted outside of his judicial capacity or in the absence of jurisdiction,
and Judge King is therefore entitled to absolute judicial immunity.
Similarly, Magistrate Gorman is entitled to judicial immunity. Koziol’s
claims against Magistrate Gorman are largely predicated on various
orders and decisions—seemingly related to Koziol’s child support
obligations—which Koziol describes as “unlawful.” (Compl. ¶¶ 95-96, 10304.) Koziol also appears to take issue with the fact that it was Magistrate
Gorman who appointed Koslosky as Attorney for the Child for Koziol’s
children. (Id. ¶¶ 101, 105.) But these actions were taken directly in
connection to matters that were before and assigned to Magistrate
Gorman, and these are the types of acts that are inherently judicial. See
Bliven, 579 F.3d at 210 (noting that “acts arising out of, or related to,
individual cases before the judge are considered judicial in nature”);
Chestnut v. Gabler, No. 06-CV-534E(F), 2007 WL 529556, at *2
(W.D.N.Y. Feb. 13, 2007) (holding that judge defendant was protected
from suit by judicial immunity where the plaintiff challenged support
orders). Further, Koziol does not even allege that Magistrate Gorman
acted in the absence of jurisdiction. Magistrate Gorman, therefore, is also
entitled to absolute judicial immunity.
Finally, Justice Centra is also entitled to judicial immunity. Koziol
alleges that Justice Centra “directed” an “ethics prosecution” against him
“using means outside of established channels and judicial scope,”
because Justice Centra “was offended by [Koziol]’s criticisms.” (Id. ¶¶ 4044.) However, courts in this District have held that a justice’s decisions
regarding disciplinary action “falls squarely within the judicial roles of the
[Appellate Division] justices.” Koziol, 2012 WL 4854589, at *6 (citing 22
N.Y.C.R.R. 100.3(D)(3) (“Acts of a judge in the discharge of disciplinary
responsibilities are part of a judge’s judicial duties.”)); see Bliven, 579 F.3d
at 210 (noting that “disbarring an attorney as a sanction for the attorney’s
contumacious conduct in connection with a particular case” would be
considered an act “judicial in nature”). Accordingly, assuming that Koziol’s
allegations against Justice Centra meet the basic pleading requirements,
Justice Centra is immune from suit.11
Although Judge Tormey has already been dismissed for lack of personal
involvement, supra Part IV.B., the court notes that he would also properly be entitled to judicial
immunity for allegedly assigning Koziol’s family law matters to certain judges who then
State Defendants similarly contend that Zayas and Duffy are
immune from suit under the doctrine of quasi-judicial immunity. (Dkt. No.
23, Attach. 1 at 12-13.) Koziol does not appear to address this argument.
The court again agrees with State Defendants.
“The doctrine of quasi-judicial immunity extends absolute immunity
to ‘certain others who perform functions closely associated with the
judicial process.’” Feng Li v. Rabner, No. 15-cv-2484, 2015 WL 1822795,
at *4 (S.D.N.Y. Apr. 22, 2015) (quoting Cleavinger v. Saxner, 474 U.S.
193, 200 (1985)). Quasi-judicial immunity is absolute if the official’s role
“is ‘functionally comparable’ to that of a judge.” Butz v. Economou, 438
U.S. 478, 513 (1978); see Cleavinger, 474 U.S. at 201 (“Absolute
immunity flows not from rank or title or location within the Government, but
from the nature of the responsibilities of the individual official.” (internal
quotation marks and citation omitted)); Gross v. Rell, 585 F.3d 72, 81 (2d
Cir. 2009) (“Judicial and quasi-judicial immunity are both absolute
rendered decisions unfavorable to Koziol. “[C]ourts have held that the assignment of cases is
a judicial function and is therefore a protected act under judicial immunity.” Neroni v.
Coccoma, No. 3:13-cv-1340, 2014 WL 2532482, at *7 (N.D.N.Y. June 5, 2014), aff’d, 591 F.
App’x 28 (2d Cir. 2015); see Zahl v. Kosovsky, No. 08 Civ. 8308, 2011 WL 779784, at *9
(S.D.N.Y. Mar. 3, 2011) (holding that the alleged manipulation of the case assignment system
is protected by judicial immunity), aff’d, 471 F. App’x 34 (2d Cir. 2012).
immunities.” (citations omitted)). Much like judicial immunity, “[a]
defendant entitled to quasi-judicial immunity loses that privilege only if [he
or] she acts in the clear absence of all jurisdiction.” Finn v. Anderson, 592
F. App’x 16, 19 (2d Cir. 2014) (internal quotation marks and citation
omitted). The scope of a judicial officer’s jurisdiction, however,
must be construed broadly in order to allow [him or]
her to exercise [his or her] functions with
independence and without fear of consequences[;
m]ere evidence that an official’s action was in error,
was done maliciously, or was in excess of [his or her]
authority does not undermine [a] claim to absolute
immunity so long as it did not fall clearly outside all
Id. (internal quotation marks and citations omitted).
Here, Koziol’s claims against Zayas and Duffy—that they authorized
and led “inquiries” of him and submitted a “‘secret’ report” opposing his
reinstatement to the bar, (Compl. ¶¶ 69, 143-44, 146, 150)—are entirely
related to their investigative roles as members of COPS, and the Second
Circuit has “consistently extended quasi-judicial immunity to attorney
disciplinary committees.” Neroni v. Coccoma, 591 F. App’x 28, 30 (2d Cir.
2015) (citing Anonymous v. Ass’n of the Bar of City of N.Y., 515 F.2d 427,
433 (2d Cir. 1975)); see Finn, 592 F. App’x at 19 (affirming the district
court’s holding that a member of a grievance committee was entitled to
quasi-judicial immunity for her investigation of a misconduct complaint
lodged against the plaintiff). Zayas and Duffy, therefore, are entitled to
Eleventh Amendment Immunity
State Defendants next argue that Koziol’s claims against them in
their official capacities must be dismissed because they are entitled to
immunity under the Eleventh Amendment. (Dkt. No. 23, Attach. 1 at 1518.) The court agrees.
The Eleventh Amendment provides a state with sovereign immunity
from suit. See V.A. Office for Prot. & Advocacy v. Stewart, 131 S.Ct.
1632, 1638 (2011) (citation omitted). “[A]bsent waiver or valid abrogation,
federal courts may not entertain a private person’s suit against a State.”
Id. Generally, New York, its agencies, and its agents enjoy sovereign
immunity from suit in federal court under the Eleventh Amendment. See
Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 236
(2d Cir. 2006). Under the doctrine established in Ex Parte Young,
however, a “plaintiff may avoid the Eleventh Amendment bar to suit and
proceed against individual state officers, as opposed to the state, in their
official capacities, provided that his complaint[:] (a) alleges an ongoing
violation of federal law[;] and (b) seeks relief properly characterized as
prospective.” Clark v. DiNapoli, 510 F. App’x 49, 51 (2d Cir. 2013)
(internal quotation marks and citation omitted).
Here, while Koziol seeks a judgment declaring unconstitutional
§ 240(1) of the New York Domestic Relations Law and §§ 8.4(d) and (h) of
the New York Attorney Rules of Conduct—and this injunctive relief would
be appropriately classified as prospective—the 1996 Congressional
amendments to § 1983 bar injunctive relief against a judicial actor “unless
a declaratory decree was violated or declaratory relief was unavailable or
unless the judge’s conduct was clearly in excess of the judge’s
jurisdiction.” Hodges v. Mangano, 28 F. App’x 75, 77 (2d Cir. 2002)
(internal quotation marks and citation omitted); see McKeown v. N.Y.
State Comm’n on Judicial Conduct, 377 F. App’x 121, 124 (2d Cir. 2010).
Koziol neither alleges that a declaratory order was violated nor that
declaratory relief was unavailable; and, as discussed above, State
Defendants did not act in excess of their jurisdiction. See McKnight, 699
F. Supp. 2d at 523. Thus, State Defendants are also immune from suit to
the extent that they are sued in their official capacities.12 Accordingly,
given that all State Defendants have been dismissed in both their official
and individual capacities, either based on lack of personal involvement or
immunity, no further discussion of Koziol’s claims against them is
The court also notes that declaratory relief, while equitable in nature, is barred by the
Eleventh Amendment “when it would serve to declare only past actions in violation of federal
law: retroactive declaratory relief cannot be properly characterized as prospective.” Kent v.
New York, No. 1:11-CV-1533, 2012 WL 6024998, at *7 (N.D.N.Y. Dec. 4, 2012). Here, much
of the equitable relief that Koziol seeks is retrospective, and does not fall within the Ex Parte
Young exception. (See generally Compl. at 30 (requesting “[a] permanent injunction . . . on
custody/support orders and license suspensions” and “[a] judgment declaring unconstitutional .
. . the terms of suspension upon [his] law license”).
The court does note, however, that Koziol takes great issue with previous courts
dismissing his claims based on the abstention doctrine articulated by the Supreme Court in
Younger v. Harris, 401 U.S. 37 (1971), and argues that the Supreme Court’s recent decision in
Sprint Communications, Inc. v. Jacobs, 134 S.Ct. 584, 588 (2013) proves that abstention was
inappropriate. (Dkt. No. 42, Attach. 3 at 1, 14-20.) At least with respect to Koziol’s claims
regarding his ongoing disciplinary proceedings, the court disagrees, and those claims may still
properly be dismissed based on Younger. In Younger, the Supreme Court held that a federal
court may not enjoin a pending state criminal proceeding in the absence of special
circumstances suggesting bad faith, harassment, or irreparable injury that is both serious and
immediate. See 401 U.S. at 54. That rule was later extended to claims for declaratory relief
and underlying state civil actions. See Middlesex Cnty. Ethics Comm. v. Garden State Bar
Ass’n., 457 U.S. 423, 432 (1982); Hansel v. Town Court for the Town of Springfield, N.Y., 56
F.3d 391, 393 (2d Cir. 1995). In Sprint, however, the Supreme Court reaffirmed that
abstention is appropriate only in three categories of state proceedings: (1) where federal
jurisdiction would intrude on pending state criminal proceedings; (2) in civil enforcement
proceedings that are “akin to criminal prosecutions”; or (3) in “civil proceedings involving
certain orders . . . uniquely in furtherance of the state courts’ ability to perform their judicial
functions.” 134 S. Ct. at 588, 591 (internal quotation marks and citations omitted). Sprint did
not, however, as Koziol suggests, disrupt the notion that abstention from ongoing state
disciplinary proceedings is proper, as pending attorney disciplinary proceedings are among
those “‘civil enforcement’” proceedings expressly authorized by Sprint. Id. at 592 (citing
Middlesex, 457 U.S. at 433-34); Neroni, 595 F. App’x at 94-95. “As the Supreme Court
explained in Sprint, [a] state-initiated disciplinary proceeding[ ] against a lawyer for violation of
state ethics rules, substantiated by a state investigation and the issuance of a formal
complaint, was a noncriminal proceeding[ ] bear[ing] a close relationship to proceedings
Next, Hawse-Koziol and Koslosky seek dismissal of Koziol’s claims
asserted against them on the theory that they are not state actors, and on
the grounds that, to the extent that Koziol has attempted to allege that
they conspired with state actors, those claims also fail. (Dkt. No. 25,
Attach. 57 at 5-9; Dkt. No. 39 at 3-4.) In response, Koziol simply
reasserts the same conslusory statements made in his complaint—that
Hawse-Koziol and Koslosky conspired with each other and state actors to
violate his constitutional rights. (Dkt. No. 45, Attach. 1 at 7-8.) The court
agrees with Hawse-Koziol and Koslosky that they are neither state actors
nor co-conspirators with state actors.
“In order to state a claim under § 1983, a plaintiff must allege that he
was injured by either a state actor or a private party acting under color of
state law.” Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir.
2002) (citation omitted). In order to prove a § 1983 conspiracy claim, a
criminal in nature, such that it merited deference under Younger.” Torres v. DeMatteo Salvage
Co., Inc., 34 F. Supp. 3d 286, 291 (E.D.N.Y. 2014) (internal quotation marks and citations
omitted); see Frelix v. New York, No. 15cv0465, 2015 WL 585857, at *2 (S.D.N.Y. Feb. 4,
2015). Because Koziol’s disciplinary proceeding is the type of proceeding in which the
Younger abstention rule still applies, and he has not adequately alleged why this court should
intervene, the court declines to do so. Therefore, the court also dismisses Koziol’s federal
claims for injunctive and declaratory relief related to his disciplinary proceedings under the
Younger abstention doctrine.
plaintiff must allege: “(1) an agreement between a state actor and a
private party; (2) to act in concert to inflict an unconstitutional injury; and
(3) an overt act done in furtherance of that goal causing damages.” Id. at
324-25. However, “[a] merely conclusory allegation that a private
[individual] acted in concert with a state actor does not suffice to state a
§ 1983 claim against the private [individual].” Id. at 324 (citation omitted).
Instead, a plaintiff must show “a sufficiently close nexus between the State
and the challenged action of the [private] entity so that the action of the
latter may be fairly treated as that of the State itself.” Jackson v. Metro.
Edison Co., 419 U.S. 345, 351 (1974).
Here, despite his vehement contentions to the contrary, Koziol has
failed to establish that Kosolsky and Hawse-Koziol were state actors for
§ 1983 purposes. With respect to Koslosky, the court-appointed attorney
for Koziol’s children, it is black letter law that “[p]rivate law firms and
attorneys . . . are not state actors for section 1983 purposes.” Jaffer v.
Patterson, No. 93 Civ. 3452, 1994 WL 471459, at *2 (S.D.N.Y. Sept. 1,
1994) (citing Polk Cnty. v. Dodson, 454 U.S. 312, 318 (1981)); see
O’Bradovich v. Vill. of Tuckahoe, 325 F. Supp. 2d 413, 419 (S.D.N.Y.
2004) (“[P]rivate attorneys and law firms . . . do not act under color of state
authority.” (citation omitted)). More to the point, it is equally well-settled
that, “although appointed by the state, an attorney for the child or law
guardian is not a state actor because he . . . must exercise independent
professional judgment on behalf of the clients [he] represent[s].” Parent v.
New York, 786 F. Supp. 2d 516, 538 (N.D.N.Y. 2011), aff’d 485 F. App’x
500 (2d Cir. 2012); see Elmasri v. England, 111 F. Supp. 2d 212, 221
(E.D.N.Y. 2000) (finding that court appointed legal guardian in custody
proceedings was not a state actor, despite her appointment by a New
York state court and the fact that she was paid by state funds). Thus,
Koslosky is not a state actor for § 1983 purposes.
Further, with respect to Hawse-Koziol, Koziol’s allegations that she
“abuse[d] joint custody rights” and filed “false claims” and “specious
petitions,” at most, amount to a misuse of the family court system.
(Compl. ¶¶ 36, 76, 108, 111.) However, mere use, and even misuse, of
the state courts does not turn private parties into state actors. See
Cramer v. Englert, 93 F. App’x 263, 264 (2d Cir. 2004) (“[T]he mere
invocation of New York legal procedures does not satisfy the state actor
requirement under § 1983.” (internal quotation marks and citation
omitted)); Dahlberg v. Becker, 748 F.2d 85, 89-90 (2d Cir. 1984)
(dismissing § 1983 action because allegations of “misuse of a state
statute” did not give rise to a § 1983 action). Hawse-Koziol, therefore, is
not a state actor for § 1983 purposes.
Finally, Koziol also has failed to allege facts giving rise to a
conspiracy claim. First, Koziol seemingly attempts to allege that Koslosky
and Hawse-Koziol conspired against him to deprive him of parenting rights
by “lodg[ing] false claims” and filing “specious petitions,” (Compl. ¶¶ 7677, 108), but it is beyond cavil that two private citizens, acting together, do
not give rise to a conspiracy. See Ciambriello, 292 F.3d at 324-25 (noting
that, to prove a conspiracy claim, a plaintiff must allege “an agreement
between a state actor and a private party”). Further, any allegations that
Hawse-Koziol conspired with state actors by providing information to
Judge King regarding Koziol’s website and “monitoring [Koziol’s] protected
activities,” are equally meritless. (Compl. ¶¶ 113, 115; Dkt. No. 45,
Attach. 1 at 7-8.) “[F]urnishing information to [state actors] does not by
itself make someone a joint participant in state action under Section
1983.” Drayton v. Toys ‘R’ Us Inc., 645 F. Supp. 2d 149, 163 (S.D.N.Y.
2009). Simply put, Koziol’s complaint is riddled with “conclusory, vague,
[and] general allegations of a conspiracy,” and such allegations “cannot
withstand a motion to dismiss.” Martinez v. Queens Cnty. Dist. Attorney,
596 F. App’x 10, 13 (2d Cir. 2015) (internal quotation marks and citations
omitted). Accordingly, Koziol’s § 1983 claims against Koslosky14 and
Hawse-Koziol are dismissed.15
State Law Claims
Koziol’s sixth cause of action asserts a prima facie tort claim under
New York common law. (Compl. ¶¶ 174-75.) Having dismissed all of his
Even if the court were to find that Koslosky was a state actor, he would be immune
from suit under the theory of quasi-judicial immunity. See McKnight v. Middleton, 699 F. Supp.
2d 507, 528 (E.D.N.Y. 2010), aff’d, 434 F. App’x 32 (2d Cir. 2011); see also Yapi v.
Kondratyeva, 340 F. App’x 683, 684-85 (2d Cir. 2009); Gardner by Gardner v. Parson, 874
F.2d 131, 146 (3d Cir. 1989) (holding that guardian ad litem received absolute immunity in
acting as an “actual functionary or arm of the court”); Lewittes v. Lobis, No. 04 Civ. 0155, 2004
WL 1854082, at *11-12 (S.D.N.Y. Aug. 19, 2004) (applying New York’s quasi-judicial immunity
to law guardians in a § 1983 action).
The court also notes that, citing Parent v. New York, Koslosky and Hawse-Koziol
also contend that Koziol’s claims are barred by res judicata. (Dkt. No. 25, Attach. 57 at 3-5;
Dkt. No. 39 at 3-4.) As noted above, Koziol’s complaint is difficult to comprehend, but to the
extent that he seeks to reassert the same claims that were raised and decided in Parent, the
court agrees that dismissal on res judicata grounds—and more specifically, claim
preclusion—is also appropriate. “Res judicata embraces two concepts: issue preclusion (also
known as collateral estoppel) and claim preclusion.” Rivera v. City of N.Y., 594 F. App’x 2, 5
(2d Cir. 2014). In order for claim preclusion to apply, three requirements must be met: “(1) the
previous action involved an adjudication on the merits; (2) the previous action involved the
plaintiff or those in privity with [him]; [and] (3) the claims asserted in the subsequent action
were, or could have been, raised in the prior action.” Monahan v. N.Y.C. Dep’t of Corr., 214
F.3d 275, 285 (2d Cir. 2000). Notably, “[e]ven claims based upon different legal theories are
barred provided they arise from the same transaction or occurrence.” L-Tec Elecs. Corp. v.
Cougar Elec. Org., Inc., 198 F.3d 85, 88 (2d Cir. 1999). In Parent, the court dismissed
Koziol’s claims against Koslosky and Hawse-Koziol because they are not state actors and
because Koziol failed to state a claim that they conspired with state actors to deprive him of a
constitutional right. 786 F. Supp. 2d at 538-40, 543. As noted above, this decision was
affirmed by the Second Circuit. See Parent v. New York, 485 F. App’x 500 (2d Cir. 2012).
Thus, to the extent that Koziol asserts the same claims against Hawse-Koziol and Koslosky as
he did in Parent, those claims are also barred by res judicata.
federal claims, the court declines to exercise supplemental jurisdiction of
Koziol’s remaining state law claim.
“In the absence of original federal jurisdiction, the decision of
whether to exercise jurisdiction over pendent state law claims is within the
court’s discretion.” Butler v. LaBarge, No. 9:09-cv-1106, 2010 WL
3907258, at *3 (N.D.N.Y. Sept. 30, 2010) (citing Kolari v. N.Y.
Presbyterian Hosp., 455 F.3d 118, 121-22 (2d Cir. 2006)). Where, as
here, all federal claims have been eliminated before trial, the balance of
factors in deciding whether to exercise jurisdiction over remaining state
law claims leans toward dismissal. See Kolari, 455 F.3d at 122.
Accordingly, the court declines to exercise jurisdiction over Koziol’s state
law claim and it is dismissed from this action.
Leave to Amend
Although a pro se plaintiff’s complaint “should not [be] dismiss[ed]
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,” Shomo
v. City of N.Y., 579 F.3d 176, 183 (2d Cir. 2009) (internal quotation marks
and citation omitted), “leave to amend is not necessary when it would be
futile,” Ashmore v. Prus, 510 F. App’x 47, 49 (2d Cir. 2013). As an initial
matter, as discussed above, supra Part IV, given his legal education and
experience, the court, in its discretion, declines to afford Koziol any
special solicitude. Moreover, Koziol has not requested leave to amend in
any of his submissions. And, in any event, considering the analysis
above, any amended complaint would be just as frivolous, baseless, and
vexatious as his original, and amendment, therefore, would be futile.
Accordingly, Koziol’s complaint is dismissed with prejudice.
Koziol’s Cross Motion
Given that the court has granted defendants’ dispositive motions,
(Dkt. Nos. 23, 25, 36, 39), and dismissed Koziol’s complaint, his cross
motion for a preliminary injunction, (Dkt. No. 41), which seeks essentially
the same relief as that requested in his complaint, is denied as moot.
Finally, separate from his summary judgment motion, Koslosky has
moved for sanctions pursuant to Rule 11 of the Federal Rules of Civil
Procedure, arguing that the court should impose sanctions upon Koziol
and issue an order enjoining him from commencing any further litigation
without prior leave of the court, in order to deter Koziol from continuing to
file harassing and frivolous lawsuits against him. (Dkt. No. 27; Dkt. No.
27, Attach. 56 at 2-13.) In response, Koziol reargues the merits of his
claims, reproduces, verbatim, several paragraphs of previous
submissions, and argues that, if anyone should be sanctioned, it is
Koslosky’s attorney. (Dkt. No. 45, Attach. 1 at 8-19.) The court agrees
with Koslosky that sanctions are warranted.
Under Fed. R. Civ. P. 11(b)(2),
By presenting to the court a pleading, written motion,
or other paper . . . an . . . unrepresented party
certifies that to the best of the person’s knowledge,
information, and belief, formed after an inquiry
reasonable under the circumstances . . . the claims
. . . and other legal contentions are warranted by
existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for
establishing new law.
A court has authority to sanction a party under Rule 11(c) if it determines
that the party has made false, misleading, improper, or frivolous
representations to the court in violation of Rule 11(b). See Williamson v.
Recovery Ltd. P’ship, 542 F.3d 43, 51 (2d Cir. 2008). “A claim is legally
frivolous for Rule 11 purposes if, under a standard of objective
reasonableness, it is clear that there is no chance of success and no
reasonable argument to extend, modify, or reverse the law as it stands.”
Friedman v. Self Help Cmty. Servs., No. 11-CV-3210, 2015 WL 1246538,
at *23 (E.D.N.Y. Mar. 17, 2015) (citing Caisse Nationale de Credit
Agricole-CNCA, N.Y. Branch v. Valcorp, Inc., 28 F.3d 259, 264 (2d Cir.
1994)). Procedurally, “[a] motion for sanctions must be made separately
from any other motion,” Fed. R. Civ. P. 11(c)(2), and “the motion must first
be served upon the offending party, who is then given [twenty-one] days to
remedy the sanctionable conduct before the motion may be made to the
court,” Finnan v. Ryan, No. 8:08-CV-259, 2008 WL 4891162, at *7
(N.D.N.Y. Nov. 7, 2008).
Here, as an initial matter, Koslosky complied with the procedural
requirements of Rule 11(c)(2). Indeed, Koslosky served his motion for
sanctions upon Koziol more than twenty-one days prior to filing it, and
requested that Koziol withdraw his complaint. (Dkt. No. 27, Attachs. 54,
55.) After Koziol refused to withdraw his complaint, Koslosky filed his
motion for sanctions separate from his motion for summary judgment.
(Dkt. No. 27.) Substantively, Koslosky has also presented compelling
arguments that support a finding of frivolousness and the imposition of
sanctions. First, as noted above, this is the fourth federal complaint that
Koziol has filed. See supra note 3. In each of these cases, Koziol has
raised similar constitutional challenges to New York’s Domestic Relations
Law and New York’s Rules of Professional Conduct, and named many of
the same defendants. See supra note 3. Moreover, Koziol’s claims
against the defendants in those prior cases were dismissed on many of
the same grounds as his claims were dismissed here—sovereign and
absolute immunity, Younger abstention, lack of personal involvement, and
failure to allege state action. See supra note 3. In one of his prior cases,
the court granted one defendant’s motion for attorneys’ fees, and, in so
doing, found that Koziol’s complaint was “without legal foundation, and . . .
baseless.” Koziol v. Peters, No. 6:12-CV-823, 2012 WL 5986574, at *2-3
(N.D.N.Y. Nov. 29, 2012). In addition, Koslosky has cited several other
actions and petitions filed in state court in which Koziol has raised the
same constitutional claims, also without success. (See, e.g., Dkt. No. 27,
Attachs. 4-5; Dkt. No. 27, Attach. 12; Dkt. No. 27, Attach. 28 at 10-11
(stating that Koziol’s “bare assertions that the Family Court proceedings
have been biased against men is not sufficient to merit constitutional
analysis; indeed, such analysis is impossible because of the vague and
conclusory nature of the allegations”); Dkt. No. 27, Attach. 42 at 4 (noting
that Koziol “has utterly failed to articulate how his constitutional rights
have been violated and the [r]ecord . . . contains a complete dearth of
information from which one could begin to make a thoughtful decision as
to the constitutionality of the statutes asserted to be at issue, or as to any
of [Koziol’s] other asserted constitutional infirmities”).)
Nevertheless, Koziol has relentlessly pressed on, and continues to
file lawsuits in this District, asserting claims that he should know, by now,
are without merit, and naming defendants who he should know, by now,
are immune from suit. This case is no different, and by signing the
complaint, Koziol made “false, misleading, improper, [and] frivolous
representations to the court” in violation of Rule 11(b), thus warranting
sanctions pursuant to Rule 11(c). Williamson, 542 F.3d at 51. Therefore,
pursuant to both Fed. R. Civ. P. 11(c), and the court’s inherent power to
impose sanctions, see Marx v. Gen. Revenue Corp., 133 S.Ct. 1166, 1175
(2013), Koziol is sanctioned in the amount of $1,000, and ordered to pay
this penalty to Koslosky as part of his attorneys’ fees. See Fed. R. Civ. P.
11(c)(4); (Dkt. No. 27, Attach. 56 at 12 (noting that Koslosky has “thus far
expended over $60,000 in unwarranted legal fees defending against
[Koziol]’s baseless . . . [l]awsuits”).) Although the court notes that a full
award of reasonable costs and attorneys’ fees would also constitute an
appropriate sanction here, see Fed. R. Civ. P. 11(c)(4); 42 U.S.C.
§ 1988(b), it is reluctant to impose those sanctions without documentation
upon which the court may quantify those fees. Of course, Koslosky—and
all other represented defendants, as the prevailing parties—are free to
seek attorneys’ fees by subsequent motions.
Finally, the court notes that Koslosky, as part of his motion for
sanctions, has sought what is essentially an anti-filing injunction. (Dkt.
No. 27, Attach. 56 at 8-13.) While the court finds Koslosky’s arguments
persuasive, the court has a separate process for issuing orders of this
sort. Thus, Koslosky’s request is taken under consideration and the court
will separately decide whether an anti-filing injunction is warranted.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that State Defendant’s motion to dismiss (Dkt. No. 23) is
GRANTED; and it is further
ORDERED that Christensen’s motion for judgment on the pleadings
(Dkt. No. 36) is GRANTED; and it is further
ORDERED that Hawse-Koziol’s motion for judgment on the pleadings
(Dkt. No. 39) is GRANTED; and it is further
ORDERED that Koslosky’s motion for summary judgment (Dkt. No. 25)
is GRANTED; and it is further
ORDERED that Koziol’s cross motion for recusal and/or
disqualification of the court and for a preliminary injunction (Dkt. No. 41) is
DENIED; and it is further
ORDERED that Koslosky’s motion for sanctions pursuant to Fed. R.
Civ. P. 11 (Dkt. No. 27) is GRANTED and Koziol is directed to pay a
penalty of $1,000 to Koslosky as part of Koslosky’s attorneys’ fees; and it
ORDERED that Koziol’s complaint is DISMISSED; 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.
May 22, 2015
Albany, New York
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