Schorr v. Prudenti et al

Filing 44

OPINION. The motion to dismiss the § 1983 action is granted for failure to state a claim. Based on the conclusions set forth in this Opinion, the motion of the Defendants is granted, the SAC is dismissed with prejudice, and costs are granted to the Defendants. It is so ordered. re: 33 MOTION to Dismiss for Lack of Jurisdiction - Notice of Motion - filed by Jorge Dopico, Ernest J. Collazo. (Signed by Judge Robert W. Sweet on 9/7/2016) (rjm)

. USDC SD1'1~

noCU!'4ENT
. .1 ELECfR01"HCALl:Y
UN ITE D STAT ES DI STR I CT COURT
SOUTHERN DISTRICT OF NEW YORK

DOC#: ___--A+==rtrrDATEFilED:

------------------------------------------x
DAVID EVAN SCHORR ,
Plaint i ff ,
- against -

1 5 Ci v.

4054

OPINION

JORGE DOPICO , in his o f fic i a l capac i ty
as Chief Counsel o f the First Jud i cia l
Department Disciplinary Committee in
New York State ; and ERNES T J . COLLAZO ,
i n his offic i a l capac it y as Cha i rman of
the First Judicial Depar t ment
Di sc i p li nary Committee in New York State ,
De f endants .

------ --- - --- - ------ - ---------------- --- --x
A P P E A R A N C E S:
Pr o Se
DAVID E. SCHORR
11 5 E . B7TH Street ,
New York , NY 1 0128

FILED

6A

Attor n eys for Defendants
ERIC T . SCHNEIDERMAN
Attorney General of the State of
New York
1 20 Broadway
New York , NY 10271
By : Anthony J . Tomar i, Esq .

•,

Sweet, D.J.

Jorge Dopico ("Dopico"), in his offic ial capacity as
Chief Counsel of the First Judicial Department Disciplinary
Cammi ttee ("DOC"), and Ernest J. Collazo ("Collazo"), in his
official capacity as Chairman of the First Judicial Department
Disciplinary Committee

(co llectively, "Defendants") have moved

pursuant to Rules 12(b) (1) and (6), F. R. Civ. P. to dismiss the
Second Amended Complaint ("SAC") of plaintiff David Evan Schorr
("S chorr " or the "Plaintiff" ) . Based on the conclusions set
forth below, the motion of the Defendants is granted, and the
SAC is dismissed with prejudice and costs .

Prior Proceedings

Plaintiff commenced this action by the filing of a
comp laint on May 27 , 2015 ; Defendants moved to dismiss on July
17, 2015 and while that motion was pending, and without leave of
court, Plaintiff filed an Amended Complaint on August 4, 2015 .
The Amended Complaint was dismissed on March 15, 20 1 6 . The
Plaintiff filed the SAC on March 23, 2016. The instant motion
was taken on submission and marked fully submitted on June 2 ,
2016.
1

The SAC

The SAC makes the following allegations:

Plaintiff is a United States citizen and a resident of
New York. He is an attorney who has been admitted to practice
law in this state since 2000. SAC

~

6.

Dopico is the Chief Counsel and Collazo, the
"Chairman" of DOC.

SAC~

7. "[I]n their official capacities,

they are charged with overseeing the administration and
operation of [DOC]." Id. "They have the power and authority to
prevent and enjoin improper disciplinary proceedings .

fl

Id. Further, "[i]n all their actions and omissions alleged
herein,

[Defendants] acted under color of state law." Id.

On October 9, 2 013,

Plaintiff was a party in a

matrimonial action. In connection with that action,

Plaintiff

attended a conference in New York State Supreme Court (New York
County) before the Honorable Deborah A. Kaplan ("Justice
Kaplan"). SAC

~

8. Plaintiff allegedly recorded, aurally,

conference on his iPhone.

the

Id. Based on the events so recorded,

2

Plaintiff commenced an action in the Court of Claims , in which
he deposed Justice Kaplan.

Id.

The Plaintiff compelled the deposition of Justice
Kaplan and her subsequent recusal as the Justice of his
underlying matrimonial action. The New York State Office of
Court Administration ("OCA" ) and Chief Administrative Judge Gail
Prudenti ("Judge Prudenti") allegedly retaliated against
Plaintiff for:

(i) "stating truthfully that [Justice Kaplan]

gave false testimony under oath";

(ii) "stating truthfully that

[Justice Kap l an] had attempted to orchestrate Plaintiff's false
arrest";

(iii) initiating the Court of Cl aims action;

(iv)

deposing Justice Kaplan in the Court of Claims; and (v) causing
Justice Kaplan to recuse herself from Plaintiff's matrimonial
action. SAC

~~

8-9.

By letter dated November 13, 2014 , Dopico informed
Plaintiff that the First Judicial Department DOC had started an
investigation of Plaintiff for alleged misconduct . SAC
allegations of attorney misconduct include :
Kaplan of giving false testimony under oath;

~

12 . The

(i) accusing Justice
(ii) accusing

Justice Kaplan of attempting to orchestrate Plaintiff's arrest;
and (iii) surreptitiously recording the conference in the
matrimonial proceeding on October 9, 2013. SAC
3

~~

11, 16. In

response to these alleged instances of misconduct,
filed a twenty (20) page response. SAC

~

Plaintiff

15 .

By l etter dated April 17, 2015, the DOC issued a
private admonition to Plaintiff, based upon its conclusion that
Plaintiff violated 22 NYCRR 29 .1 by recording the October 9 ,
2013 conference without prior authorization.

SAC~

17. The DDC's

letter of April 17, 2015 further provided that Plaintiff had the
right to request reconsideration or the institution of formal
proceedings within thirty (30) days. SAC

~

21. Plaintiff

rejected the Private Admonition and requested the institution of
formal proceedings against him . SAC

~

22 .

"The Disciplinary Committee's Principal Staff
Attorney, Kevin Doyle , informed Plaintiff via e -mail

(dated May

14, 2015) , that '[ g]iven your rejection of the admonition and
your request for a formal proceeding, the Committee has reopened the investigation.'"

23. In the same e -mail , the

SAC~

DOC requested that Plaintiff be examined under oath as part of
its re-opened investigation. SAC

~

24. Doyle offered to issue a

subpoena to compel Plaintiff's attendance at his deposition, if
he so required and warned that he would move to suspend
Plaintiff from the practice of law should he fail to cooperate
with the Committee .
4

Plaintiff alleges that by continuing the investigation
of Plaintiff's conduct Defendants are retaliating against
Plaintiff, and in so doing are violating his rights under the
Fifth and Fourteenth Amendments. SAC ii 27 - 38 . The charge that
Plaintiff introduced a recording system into the matrimonial
proceeding on October 9, 2013 "is false" and that " bringing such
charge is unlawfully retaliatory and violate[s) Plaintiff's
rights under the Fifth and Fourteenth Amendments." SAC ii 39 -4 2.

The SAC seeks:

(i) a declaration that any attempt by

the DOC to "reopen" its investigation into Plaintiff 's conduct ,
is "unlawfu l" (SAC ii 27-38);

(i i ) a declaration that any

"formal charge" by DOC against Plaintiff for "covertly
introducing a private recording system" into a courtroom , would
be "unlawful" (SAC ii 39 - 42) ;

(iii) a declaration that a formal

charge by DOC against Plaintiff for vio l ating 22 NYCRR § 29.1
wou l d be "unl awful" ;

(SAC ii 43-47); and (iv) a declaration that

unless DOC brings formal charges aga inst Plaintiff "forthwith",
it would be unlawful for DOC "not to dismiss formally all
allegations in its vacated Private Admonition".
Complaint ii 48-51).

The Applicable Standard
5

(Second Amended

'•

On a motion to dismiss pursuant to Rule 12(b), all
factual allegations in the complaint are accepted as true, and
all inferences are drawn in favor of the pleader.
Polar Molecular Corp ., 12 F.3d 1170, 1174

Mills v .

(2d Cir. 1993).

A

comp laint must contain "sufficient factual matter, accepted as
true, to 'state a c laim to relief that is plausible on its
face.'"

Ashcroft v . Iqbal,

Bell Atl. Corp. v . Twombly,

556 U.S. 662 , 663 (2009)

(quoting

550 U.S. 544, 555, 127 S. Ct. 1955,

1964, 167 L. Ed. 2d 929 (2007)). A claim is facially plausible
when "the p la intiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged."
Twombly,

550 U.S. at 556).

Iqbal,

556 U.S. at 663 (quoting

In other words , the factual

allegations must "possess enough heft to show that the pleader
is ent itled to relief."

Twombly,

550 U.S. at 557

(internal

quot ation marks omitted).

Additionally, wh ile "a plaintiff may plead facts
a lleged upon information and belief ' where the belief is based
on factual inf ormation that makes the inference of cu lpabilit y
plaus ibl e ,' such allegations must be 'a ccompanied by a statement
of the facts upon which the belief is founded.'"
Guess , Inc., No. 12-1312, 2013 WL 1809772, *3
6

Munoz-Nagel v.

(S .D.N.Y. Apr. 30,

'·

2013)

(quoting Arista Records, LLC v . Doe 3,

604 F.3d 110, 120

(2d Cir . 2010) ); Prince v. Madison Square Garden, 427 F. Supp .
2d 372, 384

(S . D.N . Y. 2006) ; Williams v . Calderoni , No. 11 - 3020,

2012 WL 691832 , at *7

(S . D. N.Y. Mar. 1, 2012)).

however , "must contain something more than

The pleadings,
a statement of

facts that mere l y creates a suspicion [of] a legally cognizable
right of action. "

Twombly , 550 U. S . at 555 (citation and

internal quotation omitted) .

Rule 8 (a) ( 2) of the Federal Rules of Civil Procedure
requires that complaints must include "a short and plain
statement of the claim showing that the pleader is entitled to
relief." Fed . R Civ. P. Rule 8 (a) (2) . Under Rule 12 (b) (1) , the
Court must accept as true all material factual allegations in
the complaint but shall not draw inferences favorable to the
party asserting jurisdiction . Shipping Fin . Servs. Corp. v.
Drakos, 140 F.3d 129, 131

(2d Cir . 1998) ; Atl. Mut . Ins.

Co. v.

Balfour Maclaine Int'l Ltd ., 968 F . 2d 196 , 198 (2d Cir. 1992) .

While allegations in a complaint are deemed to be true for the
purposes of a motion to dismiss, this Court need not credit such
allegations where they are wholly conc l usory or rely on
unreasonable inferences and unwarranted deductions. See , Furlong
v . Long Island Coll. Hosp ., 710 F . 2d 922 , 927

7

(2d Cir . 1983)

...

,

1,

(Federal Rules do "not permit conclusory statements to
substitute for minimally sufficient factual allegations")

Younger Abstention Bars this Action

The Second Circuit has found that Younger abstention
is mandatory when:

(i) there is a pending state proceeding;

(ii)

that implicates an important state interest; and (iii) the state
proceeding affords plaintiff an adequate opportunity for
judicial review of his constitutional claims. Spargo v. N.Y.
State Comm'n Judicial Conduct,

351 F.3d 65, 75 (2d Cir. 2003);

Graham v. N.Y. Center for Interpersonal Dev., 2015 U.S. Dist

LEXIS 30598 at *4-5 (E.D.N.Y. March 12, 2015)

("Federal courts

ordinarily must abstain from exercising jurisdiction over
constitutional claims seeking declaratory or injunctive relief
when there is an on-going state proceeding, an important state
interest is implicated, and the plaintiff has an avenue open for
review of the constitutional claims in state court."); Sobel v.
Prudenti, 25 F.Supp.3d 340, 354

(E.D.N.Y. 2014)

("To the extent

Plaintiff seeks injunctive relief pertaining to the Pending
State Court Action, the Younger abstention doctrine and its
progeny prohibit [a federal]

Court from exercising

jurisdiction .... ").

8

Disciplinary proceedings against attorneys fall within
the category of proceedings to which Younger applies. Wilson v.
Emond, 373 Fed. App'x 98 (2d Cir. 2010); Mason v. Dept.
Disciplinary Comm., 894 F.2d 512, 513 (2d Cir. 1990).

There are two "tightly defined exceptions to the
Younger abstention doctrine: the bad faith exception and the
extraordinary circumstances exception". Jackson Hewitt, Inc. v.
Kirkland,
v. Harris,

455 Fed. App'x 16, 18 (2d Cir. 2012)

(citing Younger

401 U.S. 37, 197-98 (1971)). To establish the bad

faith exception to Younger,

a plaintiff must show that the party

bringing the state action "has no reasonable expectation of
obtaining a favorable outcome," but rather brought the
proceeding due to a "retaliatory, harassing, or other
illegitimate motive". Jackson Hewitt,
v. Fliegner,

supra at 18 (citing Cullen

18 F. 3d 96, 103 (2d Cir. 1994)); Diamond "D"

Constr. Corp. v. McGowan,

282 F.3d 191, 197 (2d Cir. 2002)

Moreover, "[a] state proceeding that is legitimate in its
purposes, but unconstitutional in its execution - even when the
violations of constitutional rights are egregious - will not
warrant the application of the bad faith exception". Demartino
v. New York State Dep't of Labor, 2016 U.S. Dist. LEXIS 26354 at
*26 (E.D.N.Y. March 1, 2016). Although the Plaintiff claims the
bad faith exception applies in this instance, it does not.
9

Plaintiff's allegations of bad faith are conclusory.
For example, Plaintiff asserts: " ... there can be no question
that DOC "reopened" [its] completed investigation solely in
retaliation for Plaintiff exercising his legal and
constitutional right to reject the private Admonition"

(see

"Memorandum of Law/Affidavit in Opposition" at 2) and "Solely as
a result of Plaintiff exercising [the right to reject DDC's
private Admonition] the Committee-rather than bring formal
charges ... instead unlawfully retaliated by 're-opening' its
completed investigation." See "Memorandum of Law/Affidavit in
Opposition" at 3. The only remaining instances of bad faith
cited by Plaintiff are the alleged violations of New York Code
of Rules and Regulations

("NYRRC") cited by Plaintiff. As this

Court already noted when considering Plaintiff's allegations in
the March 15, 2016 opinion, "Without specific and plausible
allegations supporting the Complaint's allegation of bad faith,
the case is subject to Younger abstention." March 15 Opinion at
12; Astoria General Contracting Corp. v. New York City
Comptroller, 15 Civ. 1782 (NRB), 2016 WL 369237, at *9 (S.D.N.Y.
January 27, 2016)

("With respect to the 'bad-faith exception',

the federal court's inquiry is centered on 'the subjective
motivation of the state authority in bringing the proceeding'
plaintiffs invoking the exception 'must show that the state
10

proceeding was initiated with and is animated by a retaliatory,
harassing or other illegitimate motive.'")

The Plaintiff could seek to vindicate any injury
arising out of the disciplinary proceeding or reopened
investigation by commencing an Article 78 proceeding under New
York state law. Where such state remedies are available, a
federal court should assume that state procedures are adequate
to provide a remedy to Plaintiff for any perceived bias, and
thus abstain from exercising jurisdiction under Younger. March
15 Opinion at 13; Astoria General v . New York City Comptroller ,
supra. 2016 WL 369237 , at *8

("An Article 78 proceeding

constitutes an aggrieved party's method of reviewing [an] order .
. For Younger purposes, the State 's trials and appeals
process is treated as a unitar y system, and for a federal court
to disrupt its integrity by intervening in mid-process would
demonstrate a lack of respect of the State as Soverign.").

In order to establish the "bad-faith" exception to the
Younger abstention doctrine, Plaintiff must demonstrate that
"the party bringing the action must have no reasonable
expectation of obtaining a favorable outcome" . Cullen v.
Fliegner,

18 F.3d 96 , 103 (2d Cir . 1994); Demartino v. New York

State Dep't of Labor , supra, 2016 U.S. Dist LEXIS 26354 at *26.
11

As this Court has already noted regarding any formal charges
brought by DOC against Plaintiff for surreptitiously recording a
settlement conference: "because Schorr acknowledges that he
recorded a court proceeding without permission and 22 NYCRR 29.1
forbids any such recording within a New York State courthouse,
it cannot be said that the Disciplinary Committee action against
him has no reasonable expectation of success." March 15 Opinion
at 12-13. Nothing has changed between this Court's Order of
March 15, 2016 dismissing this case and the filing of the Second
Amended Complaint to change this conclusion. Plaintiff has
failed to adequately plead the bad faith exception to the
Younger abstention doctrine and this action is barred.

The § 1983 Claim is Dismissed

Plaintiff's§ 1983 claims against the Defendants are
defective because neither Dopico nor Collazo acting in their
official capacities or are "persons" subject to suit under the
statute. See Will v. Michigan Dep't of State Police,
58, 71

(1989)

491 U.S.

("neither a State nor its officials acting in

their official capacities are 'persons' under 1983"). New York
District Courts have uniformly dismissed § 1983 claims asserted
against officials of the Unified Court System, such as judges or
clerks acting in their respective official capacities, on these
12

grounds. See, e.g., Concey v. N .Y. State Unified Court System,
No. 08 Civ. 8858(PGG), 2011 WL 4549386, at *7

(S.D.N.Y. Sept.

30, 2011); see also Nollet v. Justices of Trial Court of
Commonwealth of Mass.,
aff'd, 248 F.3d 1127

83 F.Supp.2d 204, 211 (D. Mass. 2000),

(1st Cir. 2000)

(an "action taken by a

state court judge solely in his/her adjudicatory role does not
constitute state action" for purposes of

§

1983) . The SAC

contains no allegation that any of the individual named
defendants were acting in anything other than their professional
capacities.

SAC~

7.

In addition, to state a claim for relief under

§

1983

a plaintiff must establish that he was "deprived of a right
secured by the Constitution or laws of the United States, and
that the alleged deprivation was committed under color of state
law." Am. Mfrs. Mut.

Ins.

Co. v.

Sullivan,

526 U.S. 40, 50

(1999). Section 1983 "merely provides 'a method for vindicating
federal rights elsewhere conferred.'" Albright v. Oliver, 510
U.S. 266, 271 (1994). The complaint is bare of sufficient
allegations that the Defendants violated Plaintiff's rights.
Plaintiff does not allege any actual acts taken by the
Defendants that rise to meet the standards for stating a claim
under the First, Fifth and Fourteenth Amendments.

13

Further, Plaintiff fails to allege, or properly plead,
any personal involvement by the Defendants in the alleged
wrongful acts. See, e.g., Rosa R. v. Connelly, 889 F.2d 435,
( 2d Cir. 198 9)

437

(absent allegations that state official was

directly and personally responsible for the purported unlawful
conduct, § 1983 claim did not lie); Alfaro Motors,
814 F.2d 883, 886 (2d Cir. 1987)

Inc. v. Ward,

(complaint dismissed where it

was devoid of allegations that named defendants were directly
and personally responsible for the purported unlawful conduct);
Brewer v. Village of Old Field,

311 F.Supp.2d 390

(E.D.N.Y.

2004) .

The allegation here is that the Plaintiff is the
victim of retaliatory conduct based on his unsupported
conclusion that the Defendants are acting at the behest of the
retired Judge Prudenti for seeking Justice Kaplan's recusal and
for taking her deposition in his Court of Claims Action. SAC

~~

23, 29, 33, 36, 37, 50. However, there is no factual allegation
showing that Judge Prudenti had any knowledge or involvement
concerning the underlying matrimonial action, or the Court of
Claims action.

Therefore, the motion to dismiss the § 1983 action is
granted for failure to state a claim.
14

Conclusion

Based on the conclusions set forth above, the motion
of the Defendants is granted, the SAC is dismissed with
prejudice, and costs are granted to the Defendants.

It is so ordered.

l

New York, NY
September

I

ROBERT W. SWEET
U.S.D.J.

2016

15