Mills v. Noonan et al
DECISION AND ORDER granting 2 Motion for Leave to Proceed in forma pauperis; finding as moot 3 Motion ; finding as moot 11 Motion ; finding as moot 13 Motion; Plaintiffs complaint is dismissed with prejudice, without leave to re-plead; The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. (Clerk to close case.)Copy of this Decision and Order sent by first class mail to Plaintiff.). Signed by Hon. Michael A. Telesca on 4/13/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
-vsROBERT C. NOONAN, Genesee
County, RANDOLPH ZICKL,
WILLIAM ZICKL, ROBERT ZICKL,
LAWRENCE FRIEDMAN, DAVID GANN,
CHARLES ZAMBTIO, JOHN RIZZO,
DAVID MORABITO, STATE OF NEW
YORK (Injunctive Relief)
Pro se plaintiff Richard Mills (“Plaintiff”), an inmate at
Five Points Correctional Facility, has filed a complaint (Dkt #1)
alleging multiple violations of the United States Constitution; the
New York State Constitution; various Federal statutes; and New York
State common law and statutory law. Plaintiff alleges that the
named defendants have repeatedly denied him of his constitutional
rights in relation to his 2004 conviction in Genesee County Court,
as well as various non-criminal state court proceedings in which he
was a party.
Plaintiff also has filed a motion to proceed in forma pauperis
(“F.R.C.P.”) and Rule 5.2 of the Local Rules of Civil Procedure for
the Western District of New York.
The Court has reviewed Plaintiff’s pleadings in view of the
relevant provisions of the Prison Litigation Reform Act, Pub. L.
104–134, 110 Stat. 1321 (“PLRA”), 28 U.S.C. § 1915 et seq. For the
Plaintiff’s complaint is dismissed with prejudice. Plaintiff’s
miscellaneous motions are denied as moot.
THE IFP MOTION
“Prisoner-plaintiffs who have accumulated three strikes are
prohibited by the PLRA from bringing further actions or appeals in
forma pauperis.” Harris v. City of N.Y., 607 F.3d 18, 21 (2d Cir.
2010) (citing 28 U.S.C. § 1915(g)). Plaintiff has been subject to
the three strikes rule, 28 U.S.C. § 1915(g), since at least 2007.1
incarcerated have been dismissed as “frivolous [or] malicious or
[for] fail[ure] to state a claim upon which relief may be granted,”
Plaintiff is ineligible by statute to file in forma pauperis
(“IFP”) “unless [he] is under imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g); see also Pettus v. Morgenthau, 554
F.3d 293, 295 (2d Cir. 2009). In this case, he has filed a motion
to proceed IFP and a Prison Authorization pursuant to 28 U.S.C.
Plaintiff has had at least three cases dismissed by this Court for strike
reasons. (See Order at 2, Dkt #3 in Mills v. Bryan, et al., 1:06-cv-00751-MAT
(W.D.N.Y. May 24, 2007) (citing Mills v. Noonan, et al., No. 1:04-cv-00142A
(W.D.N.Y. May 10, 2004); Mills v. Genesee County, et al., 1:04-cv-00989A
(W.D.N.Y. Oct. 5, 2005); Mills v. Appellate Division Fourth Department, et al.,
1:05-cv-00612A (W.D.N.Y. May 7, 2006))).
§ 1915(a)-(b), but has not attempted to allege that he is in
Nonetheless, in the interest of judicial economy, the Court
will assume arguendo that Plaintiff is entitled to proceed IFP, and
will review the complaint. As discussed further below, the Court
finds that the complaint does not survive initial screening under
28 U.S.C. § 1915A.
Standard of Review under 28 U.S.C. § 1915A
Under 28 U.S.C. § 1915A (“Section 1915A”), a district court
officials or entities as defendants, and it must dismiss such
complaints if certain criteria are met. E.g., Carr v. Dvorin, 171
F.3d 115, 116 (2d Cir. 1999) (per curiam) (discussing 28 U.S.C.
Section 1915A provides that the district court must
See 28 U.S.C. § 1915A (“The court shall review, before docketing,
docketing, a complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of a
Upon initial screening, “the court shall identify cognizable
claims or dismiss the complaint, or any portion of the complaint,
if the complaint-(1) is frivolous, malicious, or fails to state a
claim upon which relief may be granted; or (2) seeks monetary
relief from a defendant who is immune from such relief.” 28 U.S.C.
§ 1915A. “An action is ‘frivolous’ for § 1915(e) purposes if it has
no arguable basis in law or fact, as is the case if it is based on
an ‘indisputably meritless legal theory.’” Montero v. Travis, 171
F.3d 757, 759 (2d Cir. 1999) (quoting Neitzke v. Williams, 490 U.S.
319, 325 (1989)).
“The language of the statute does not distinguish between
prisoners who proceed in forma pauperis and prisoners who pay the
requisite filing fee.” Carr, 171 F.3d at 116.
Parties Sued by Plaintiff
Plaintiff has sued Genesee County (“the County”) and the State
of New York (“the State”). In addition, he has named Honorable
Robert C. Noonan (“Judge Noonan”), whom he states is an Acting
Justice of New York State Supreme Court Judge, Genesee County, and
a Genesee County Court Judge. Plaintiff has sued Randolph Zickl,
Brothers”). He asserts that Randolph Zickl “was the assigned
counsel administrator for Genesee County”; William Zickl “was
and/or is a Assistant District Attorney in Genesee County”; and
Robert Zickl “was and/or is a prosecutor of Genesee County[.]”
(Complaint (“Comp.”) (Dkt #1) (¶¶ 7-9). Plaintiff has sued Lawrence
Friedman (“Friedman”), whom he states “is and/or was the Head
District Attorney” of Genesee County; David Gann (“Gann”), who “was
(“Zambito”), who “was and/or is the Genesee County Attorney”; John
Attorney”; and David Morabito (“Morabito”), who was one of the
attorneys assigned to represent Plaintiff during his 2004 criminal
proceeding. (Comp. ¶¶ 10-14).
The Federal Statutes Cited by Plaintiff
In his “Statement of Jurisdiction,” Plaintiff asserts that his
lawsuit is brought pursuant to 42 U.S.C. § 1981, 42 U.S.C. § 1983,
42 U.S.C. § 1985, and 18 U.S.C. § 1964(d). However, as discussed
below, he has failed to state claims under any of these statutes.
42 U.S.C. § 1981
A § 1981 claim requires a plaintiff to allege facts supporting
the following elements: (1) he is a member of a racial minority;
(2) defendants intentionally discriminated on the basis of race;
and (3) the discrimination occurred in regards to one of § 1981’s
enumerated activities, such as the right to make and enforce
contracts. Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d
1085, 1087 (2d Cir. 1993) (per curiam). Plaintiff has not alleged
that he is a member of a racial minority, nor could he plausibly do
so. Any purported claim under 42 U.S.C. § 1981 is frivolous and
must be dismissed.
42 U.S.C. § 1983
Under § 1983, “‘anyone acting under color of any [state]
statute, ordinance, regulation, custom, or usage,’ who causes a
United States citizen to be deprived ‘of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or other
proper proceeding for redress.’” Sybalski v. Indep. Grp. Home
Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008) (quoting 42
U.S.C. § 1983). A plaintiff seeking relief under § 1983 “must
allege that (1) the challenged conduct was attributable to a person
acting under color of state law, and (2) the conduct deprived the
plaintiff of a right guaranteed under the Constitution.” Snider v.
Dylag, 188 F.3d 51, 53 (2d Cir. 1999) (citation omitted).
The Court now examines the allegations in Plaintiff’s ten
causes of action to determine whether they state any colorable
claim under § 1983.
First Cause of Action
Plaintiff alleges that the County, Rizzo, Zambito,
the Zickl Brothers, and Judge Noonan have “set up a corrupted
Judicial System in Genesee County based upon nepotism.” (Comp.
¶ 45; see also id. ¶¶ 46-64). For instance, Plaintiff alleges,
“Defendants controlled what attorneys were assigned in the Genesee
Courts in entirety, including the Family Court, they controlled the
Judicial Decisions coming from the bench, they controlled each and
every aspect of the judicial system in Genesee County.” (Id. ¶ 52).
Plaintiff then repeats his allegations from his duplicative Rule
60(b) motions that he filed in 2016 in all of his cases in this
Court, regarding the family relations between Judge Noonan and the
foregoing violations and judicial corruptions” by these defendants,
he “has sustained prolonged incarceration, lost [sic] of family
ties, lost [sic] of inheritance, loss of legal fees, lost [sic] of
equity, lost [sic] of personal property, and violations of his
constitutional rights.” (Id. ¶ 62).
Plaintiff has not adequately alleged personal involvement by
violations. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)
(“It is well settled in this Circuit that ‘personal involvement of
defendants in alleged constitutional deprivations is a prerequisite
to an award of damages under § 1983.’”) (quoting Wright v. Smith,
21 F.3d 496, 501 (2d Cir. 1994); further quotation omitted). The
first cause of action must be dismissed as to Rizzo and Zambito on
With regard to the County’s alleged liability, “a municipality
can be sued under § 1983, but it cannot be held liable unless a
municipal policy or custom caused the constitutional injury.”
Leatherman v. Tarrant Cnty. Narcotics Intelligence and Coordination
Unit, 507 U.S. 163, 166 (1993) (citing Monell v. New York City
Dept. of Soc. Servs., 436 U.S. 658 (1978)). Plaintiff does not have
a viable claim against the County because he has failed to allege
any non-conclusory, non-speculative facts showing that there is a
Federal Constitution.” 5 Borough Pawn, LLC v. City of N.Y., 640 F.
Supp.2d 268, 300 (S.D.N.Y. 2009).
Next, Plaintiff’s allegations that the defendants named in
this cause of action established a “corrupt” and “biased” judicial
system in the County are factually vague, fail to ascribe any
particular unconstitutional acts to Friedman, the Zickl Brothers
and Judge Noonan, and consist almost entirely of legal conclusions.
Because “they are no more than conclusions[,]” they “are not
entitled to the assumption of truth[,]” Ashcroft v. Iqbal, 129
S. Ct. 1937, 1950 (2009), by this Court. In other words, the Court
can disregard them in determining whether Plaintiff has stated a
plausible claim—which he has not done. Moreover, Plaintiff does not
allege any particular injury to himself, apart from the fact of his
2004 criminal conviction. In addition to lacking an arguable basis
in law or fact, the first cause of action is barred by the doctrine
of Heck v. Humphrey, 512 U.S. 477 (1994), which requires that a
plaintiff seeking money damages under § 1983 “must prove that the
conviction or sentence has been reversed on direct appeal, expunged
by executive order, declared invalid by a state tribunal authorized
to make such determination, or called into question by a federal
court’s issuance of a writ of habeas corpus.” Heck, 512 U.S. at
486–87 (citations omitted). Plaintiff’s criminal conviction remains
intact, and therefore his contention that it was procured by the
allegedly “corrupt” and “biased” judicial system in the County is
barred by Heck.
The first cause of action lacks an arguable basis in fact or
law and is dismissed.
Second Cause of Action
For his second cause of action (Comp. ¶¶ 65-78), Plaintiff
“incarcerated [Plaintiff] from February 2002 through October 2003
unlawfully, illegally, and with specific malicious intent.” (Id.
¶ 66). He asserts that these defendants “intentionally circumvented
a indictment by securing a waiver of indictment for SCI 02-15 that
[New York Criminal Procedure Law (“C.P.L.”)] § 195.10” given that
Plaintiff, at that time, “was charged with a A-1 felony.” These
litigated repeatedly by Plaintiff in state and federal court: On
March 4, 2002, Plaintiff was charged with attempted first-degree
murder, first-degree reckless endangerment, fourth-degree criminal
possession of a weapon, and second-degree criminal possession of
marijuana, in connection with Plaintiff’s firing of a shotgun
during stand-off between with the police following the repossession
of his propane tank regulator. Through his attorney, Joel Krane,
Esq., Plaintiff waived his right to an indictment and pled guilty
to the lesser included charge of attempted second-degree murder and
second-degree criminal possession of marijuana. He was sentenced on
April 5, 2002, to an aggregate term of 10 years in prison. However,
Plaintiff filed a pro se motion to vacate the judgment pursuant to
C.P.L. § 440.10, arguing that the waiver of the indictment was
invalid. On October 7, 2003, Judge Noonan granted the motion. On
October 23, 2003, Mills was re-indicted on two counts of attempted
first-degree murder, two counts each of attempted first-degree
criminal possession of a weapon; and one count of third-degree
Judge Noonan, Plaintiff was convicted of all charges.
The allegations in support of the second cause of action fail
to state a claim on which relief may be granted for at least two
reasons. First, they are moot, because the waiver of indictment
about which he complains actually was vacated by Judge Noonan, as
noted in the preceding paragraph. Thus, he received all of the
relief he could potentially receive on that claim. See Coble v.
Unger, No. 1:13-CV-00889-MAT, 2017 WL 1153624, at *3 (W.D.N.Y. Mar.
28, 2017) (“Petitioner’s habeas claim based on the trial court’s
sentencing error is moot, because the Appellate Division gave him
all of the relief that he could potentially receive as to this
claim.”) (citation omitted).
information against him somehow tainted the subsequent indictment,
i.e., that he continued to be subjected to malicious prosecution
and false arrest, these claims are barred as a matter of law on at
least two grounds. First, it is clearly established in the Second
Circuit that the existence of probable cause is a complete bar to
claims for malicious prosecution and false arrest. E.g., Jenkins v.
City of N.Y., 478 F.3d 76, 84 (2d Cir. 2007). Where, as here, a
§ 1983 plaintiff was convicted of the crimes for which he was
arrested, that conviction establishes the existence of probable
cause and thereby vitiates any claim for malicious prosecution or
false arrest. See, e.g., Cameron v. Fogarty, 806 F.2d 380, 387
(2d Cir. 1986) (“[T]he common-law rule, equally applicable to
actions asserting false arrest, false imprisonment, or malicious
circumstances recover if he was convicted of the offense for which
he was arrested.”) (citations omitted). Second, the malicious
prosecution and false arrest claims are barred by the doctrine of
Heck, because a judgment in Plaintiff’s favor “would necessarily
imply the invalidity of his conviction or sentence[.]’” Skinner v.
Switzer, 562 U.S. 521, 533 (2011) (quoting Heck, 512 U.S. at 487)).
The Supreme Court has specifically held that success on a malicious
plaintiff’s conviction. Heck, 512 U.S. at 485-87. Additionally,
false arrest claims are barred by Heck. Duamutef v. Morris, 956 F.
Supp. 1112, 1117 (S.D.N.Y. 1997) (holding that the “plaintiff’s
§ 1983 false arrest claim calls into question the validity of his
criminal conviction” and was barred by Heck) (citing Heck, 512 U.S.
at 486–87 & n. 6); accord, e.g., Cameron v. Wise, No. 09 CIV. 967
PKC JLC, 2011 WL 1496341, at *5 (S.D.N.Y. Apr. 20, 2011), rep. and
rec. adopted, No. 09 CIV. 967 PKCJLC, 2011 WL 3479295 (S.D.N.Y.
Aug. 4, 2011).
municipal liability under Monell claim against the County, since
this cause of action is based solely on what occurred in his
particular case. See Gordon v. City of N.Y., No. 10–CV–5148, 2012
WL 1068023, at *4 (E.D.N.Y. Mar. 29, 2012) (“[The plaintiff]’s
complaint does not allege the existence of a municipal policy or
custom at all. In his opposition memorandum, [the plaintiff]
occasionally uses the phrase ‘common policy and practice,’ but this
allegation is unsupported by anything other than the facts of what
occurred in his particular case.”) (citations omitted).
The second cause of action accordingly must be dismissed as
against all defendants as lacking an arguable basis in fact or law.
Third Cause of Action
For his third cause of action (Comp. ¶¶ 79-86), Plaintiff
asserts that Friedman, the Zickl Brothers, Gann, Judge Noonan, the
meaningful access to the courts state and federal” based on the
“deceit, fraud, lies, and misstatements, with factually incorrect
statements, as to how the defendants were actually related alleging
only the Fifth Degree of relations.” (Id. ¶ 81). Plaintiff alleges
that “in reality they were related within the Second and Third
degree of relations,” and therefore Judge Noonan, Friedman, and the
Zickl Brothers “were disqualified and lacked jurisdiction, any
judgment, order, directions, judicial decision, or legal decision
issued by them was completely void for lack of jurisdiction based
on disqualification.” (Id. ¶¶ 82-83).
At the outset, the Court notes that Plaintiff only mentions
Gann, Zambito, and Rizzo in one paragraph in this cause of action,
and otherwise has failed to set forth any allegations whatsoever
constitutional violations. Additionally, the third cause of action
cannot stand against the County because Plaintiff has failed to
sufficiently allege a county-wide policy or custom for purposes of
imposing municipal liability.
Plaintiff’s degree-of-kinship allegations fail to state a claim on
which relief may be granted. It is well settled that “most matters
constitutional level.” Brown v. Doe, 2 F.3d 1236, 1248 (2d Cir.
1993) (quoting FTC v. Cement Institute, 333 U.S. 683, 702 (1948);
second alteration in Brown; citing Tumey v. Ohio, 273 U.S. 510, 523
(1927) (noting that “matters of kinship, personal bias, state
policy, remoteness of interest, would seem generally to be matters
merely of legislative discretion”)). “Mere allegations of judicial
bias or prejudice do not state a due process violation.”
2 F.3d at 1248 (citing Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813,
Plaintiff’s repeated attempts to prevail on his degree-of-kinship
grievance have been unsuccessful in state and federal court.
2008, for instance, the Court (Arcara, D.J./Bianchini, M.J.), found
the New York state judicial disqualification rule
apparently was not even applicable here because the
District Attorney himself (and not the Zickl brothers,
who were assistant district attorneys), tried the case.
Thus, Judge Noonan was not required to recuse himself
under the due process clause merely for an appearance of
impropriety based on relationships that did not even
qualify for recusal under state law.
Mills v. Poole, No. 06-CV-00842A, 2008 WL 2699394, at *20 (W.D.N.Y.
June 30, 2008) (citing Hardy v. United States, 878 F.2d 94, 97
(2d Cir. 1989) (denying similar claim brought by federal habeas
petitioner based on 28 U.S.C. § 455(a)’s “appearance of impropriety
standard” because it did not raise a constitutional claim; “[w]e do
not think that section 455(a)’s appearance of impropriety standard
is mandated by the Due Process Clause, and we doubt that an
appearance of impropriety under section 455(a), without more,
constitutes the type of ‘fundamental defect’ that would justify
vacating an otherwise lawful sentence under [28 U.S.C.] section
2255”) (emphasis omitted)). The Supreme Court has stated that
constitutional validity of a judge’s qualifications is not called
conclusion in a case. Tumey, 273 U.S. at 523. Plaintiff has not
alleged—nor could he plausibly do so—that Judge Noonan has or had
outcome of Plaintiff’s criminal and non-criminal court proceedings.
In short, the degree of relationship between the Zickl Brothers and
Judge Noonan does not give rise to a constitutional claim.
In addition to lacking an arguable basis in law or fact,
Plaintiff’s degree-of-kinship claim cannot provide relief under
§ 1983, because it is barred by the Heck doctrine. Plaintiff’s
Friedman, the Zickl Brothers, and Judge Noonan were involved as
Judge Noonan and the Zickl Brothers clearly call into the question
the validity of his criminal conviction, which has never been
“reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such determination,
or called into question by a federal court’s issuance of a writ of
habeas corpus.” Heck, 512 U.S. at 486–87 (citations omitted). An
additional reason for dismissing the third cause of action is that
it is barred by the Heck doctrine.
Fourth Cause of Action
In the fourth cause of action, Plaintiff accuses the County,
Morabito, and Gann of maliciously prosecuting him “from October
2003 to currently in 2016 without legal jurisdiction or lawful
authority[.]” Plaintiff has failed to state a claim for malicious
prosecution. In order to succeed on a malicious prosecution claim
under § 1983, a plaintiff must establish, inter alia, “termination
of the [criminal] proceeding in [the] plaintiff’s favor.” Jocks v.
Tavernier, 316 F.3d 128, 136 (2d Cir. 2003). Plaintiff cannot
demonstrate that his criminal proceedings terminated favorably to
him, and therefore he lacks an essential element of a malicious
See Fulton v. Robinson, 289 F.3d 188, 196
(2d Cir.2002) (“Where a prosecution did not result in an acquittal,
it is generally not deemed to have ended in favor of the accused,
for the purposes of a malicious prosecution claim, unless its final
disposition is such as to indicate the accused’s innocence.”).
The fourth cause of action must be dismissed because it lacks
an arguable basis in fact or law.
Fifth Cause of Action
For his fifth cause of action, Plaintiff alleges that the
County, Rizzo, Judge Noonan, William Zickl, and Friedman conspired
to deny him “full access to the courts and fraudulently induced a
pretenses” because “[t]he named defendants, knowing all along
[Judge Noonan] was disqualified, and his criminal case, divorce
case, and foreclosure judgments were void for lack of jurisdiction
persuaded [him] to finally settle the three pending civil cases in
the District Court.”
As the Court previously discussed, Judge Noonan was not
Therefore, the Court rejects as legally and factually baseless
Plaintiff’s assertion that the various judgments against him were
void for lack of jurisdiction. Nor has Plaintiff demonstrated that
any of judgments against him were infected by constitutional error,
either as a result of Judge Noonan’s familial relationships with
constitutional right is a natural prerequisite to a claim of
conspiracy to violate such right. Thus, if a plaintiff cannot
sufficiently allege a violation of his rights, it follows that he
cannot sustain a claim of conspiracy to violate those rights.”
Fitzgerald v. City of Troy, N.Y., No. 10–CV–451, 2012 WL 5986547,
at *23 (N.D.N.Y. Nov. 28, 2012) (citing Malsh v. Austin, 901 F.
Supp. 757, 763–64 (S.D.N.Y. 1995)); accord Trombley v. O’Neill, 929
F. Supp. 2d 81, 97 (N.D.N.Y. 2013). His allegations that the named
defendants denied him access to the courts and fraudulently induced
him to enter a “contract/settlement” fail to state a cognizable
§ 1983 claim.
Plaintiff’s attack on the validity of his divorce proceeding,
such a claim is barred by “the domestic relations exception, under
which ‘divorce, alimony, and child custody decrees’ remain outside
federal jurisdictional bounds.” Grosso v. Radice, No. 07-CV-3620
JS/WDW, 2009 WL 749906, at *8 (E.D.N.Y. Mar. 16, 2009) (quoting
Marshall v. Marshall, 547 U.S. 293, 308 (2006)).
Plaintiff’s challenge to the legality of his foreclosure
proceeding is barred by the Rooker-Feldman doctrine, which provides
that federal district courts lack jurisdiction over suits that are,
in substance, appeals from state court judgments. Hoblock v. Albany
Cnty. Bd. of Elections, 422 F.3d 77, 84 (2d Cir. 2005). “[T]o apply
Rooker-Feldman, (1) the federal court plaintiff must have lost in
state court; (2) the plaintiff must be complaining of injuries
caused by the state court judgment; (3) the plaintiff’s complaint
must invite the district court’s review and rejection of that state
court determination; and, (4) the state court judgment must have
been rendered prior to the start of district court proceedings.”
McCray v. City of N.Y., No. 03 CIV 10080 DAB, 2007 WL 4352748, at
*11 (S.D.N.Y. Dec. 11, 2007) (citing Hoblock, 422 F.3d at 85). The
face of the complaint makes it clear that all of the prerequisites
to Rooker-Feldman are fulfilled.
Furthermore, the majority of courts in this Circuit have
rejected collateral attacks on state court judgments cloaked in the
guise of federal or constitutional claims, and have held that
claims that a state court judgment was fraudulently procured are
subject to Rooker–Feldman. E.g., Roberts v. Perez, No. 13-CV-5612
JMF, 2014 WL 3883418, at *4 (S.D.N.Y. Aug. 7, 2014) (citing, inter
alia, Millman v. PNC Bank Nat’l Ass’n, No. 97–CV–3097(HB), 1998 WL
635548, at *3 (S.D.N.Y. Sept. 16, 1998) (collecting cases)); see
also Sorenson v. Wolfson, 96 F. Supp.3d 347, 369 (S.D.N.Y. 2015)
(“Courts in this District consistently have held that there is no
doctrine.”) (citing Lajaunie v. Samuels & Son Seafood Co., 68 F.
Supp.3d. 432, 437–39 (S.D.N.Y. 2014) (collecting cases), vacated on
other grounds, 614 F. App’x 33 (2d Cir. 2015)). Moreover, any
“fraudulent procurement” exception would not apply where, as here,
occasions, and rejected each time. See id. (“ state court judgment
cannot reasonably be fraudulently procured when the very grounds
for the alleged fraud were raised by a motion to reconsider in a
state court and rejected.”) (citing Reusser v. Wachovia Bank, N.A.,
525 F.3d 855, 859–60 (9th Cir. 2008)). While the Second Circuit has
not explicitly ruled on the issue, it “has never recognized a
blanket fraud exception to Rooker–Feldman.” Johnson, 189 F.3d at
186–87; see also Castiglione v. Papa, 423 F. App’x 10, (2d Cir.
2011) (summary order) (affirming district court decision that
Rooker–Feldman applied to state law claims related to the allegedly
fraudulent probate of a will); Kropelnicki v. Siegel, 290 F.3d 118,
128 (2d Cir. 2002) (holding that “Kropelnicki’s claim regarding the
misrepresentation made by defendants to Licari [was barred by
Rooker-Feldman because it] is inextricably intertwined with the
state court judgment in the underlying debt collection action
because she had an opportunity to raise this claim on her motion to
open the judgment in state court,” “even accepting as true her
claim that she was kept out of the state court action in the first
instance by the defendants’ misrepresentation to Licari that they
would not advance the litigation without first contacting him”).
To the extent that Plaintiff attempts to assert a claim
sounding in fraudulent inducement of a contract,
this is a purely
state law claim, as he recognizes in his complaint. As such, it
does not provide a cognizable basis for § 1983 relief.
Finally, to the extent he challenges his criminal conviction,
these allegations are barred by the Heck doctrine for the reasons
discussed elsewhere in this Decision and Order.
The fifth cause of action must be dismissed as lacking an
arguable basis in fact or law.
Sixth Cause of Action
Judge Noonan “unlawfully entered two judgments against [him] in
2002, one in a divorce action, and two a foreclosure action on
[his] house.” This cause of action warrants dismissal for multiple
It is beyond debate “that state judges are absolutely immune
[in § 1983 lawsuits] from liability for their judicial acts[.]”
Briscoe v. LaHue, 460 U.S. 325, 334 (1983) (citations omitted). The
Supreme Court has explained that “[i]f judicial immunity means
means that a judge ‘will not be deprived of immunity
because the action he took was in error . . . or was in excess of
his authority.’” Mireles v. Waco, 502 U.S. 9, 12–13 (1991) (quoting
Stump v. Sparkman, 435 U.S. 349, 356 (1978)). “[T]he touchstone for
[judicial immunity’s] applicability was performance of the function
adjudicating private rights.” Burns v. Reed, 500 U.S. 478, 500
Judge Noonan engaged in any conduct, apart from his performance of
his judicial function, that caused Plaintiff injury. Stated another
way, the only wrongful conduct of which Judge Noonan is accused
comprises his actions taken in resolving the disputes between
Plaintiff and the other parties to the divorce and foreclosure
proceedings. As a result, Judge Noonan has absolute immunity, and
(E.D.N.Y. Mar. 27, 2006).
validity of the divorce proceeding is barred by “the domestic
relations exception, under which ‘divorce, alimony, and child
custody decrees’ remain outside federal jurisdictional bounds.”
Grosso, 2009 WL 749906, at *8 (quoting Marshall, 547 U.S. at 308).
The sixth cause of action must be dismissed as lacking an
arguable basis in fact or law.
Seventh Cause of Action
For his seventh cause of action (Comp. ¶¶ 127-35), Plaintiff
asserts that Judge Noonan, Friedman, and William Zickl denied him
“meaningful access to the courts and a fair and impartial tribunal
and issued orders without jurisdiction, or that were and are void.”
“William Zickl appeared in front of his Uncle Judge for settlement
of the record in the direct appeal of the 2011 resentence and
subsequently was the attorney for the appeal.” (Id. ¶¶ 129A, 131).
As discussed elsewhere in this Decision and Order, Judge Noonan’s
degree of relationship to William Zickl did not and does not
present a constitutional violation. The seventh cause of action
lacks an arguable basis in law or fact and must be dismissed.
Eighth Cause of Action
For his eighth cause of action, Plaintiff alleges that in
jurisdiction, while disqualified, and denied [him] his rights,” by
“refus[ing] to allow [him] to appear and defend, now knowing why,
because [Judge] Noonan would of [sic] been challenged in open court
on the record about the nepotism relations.” (Comp. ¶¶ 37-38).
Plaintiff pursued a direct appeal of his 2011 resentencing in which
he argued that Judge Noonan violated his statutory right to be
personally present at the time sentence is pronounced, see C.P.L.
§ 380.40(1), by conducting the resentencing in his absence and
Department rejected the claim as outside of its jurisdiction
because Plaintiff was not adversely affected by any error. People
v. Mills, 985 N.Y.S.2d 381, 383 (4th Dep’t 2014) (“Inasmuch as the
adversely affected by any error, because the result, i.e., freedom
from having to serve a term of PRS [with respect to this count of
affirmed the resentence. Id.
“[T]o comply with the Heck rule, a prisoner, as a prerequisite
conviction or sentence has been overturned or invalidated by an
administrative board or a state court or a federal court in a
Jenkins v. Haubert, 179 F.3d 19, 24–25 (2d Cir. 1999). Plaintiff
has not done so. Nor has he alleged that his suit does not
“necessarily imply the invalidity of his conviction or sentence.”
Heck, 512 U.S. at 487. To the contrary, his complaint specifically
asserts the invalidity of his resentencing, which he contends was
performed by a state court that lacked jurisdiction.
The eighth cause of action must be dismissed as lacking an
arguable basis in fact or law.
Ninth Cause of Action
In support of his ninth cause of action, Plaintiff asserts
that Judge Noonan, the County, Zambito, the State, the Zickl
Brothers, and Friedman “are continuing the malicious prosecution,
denial of constitutional rights, nepotism, and trying to further
connection with a C.P.L. § 440.10 motion that Plaintiff filed in
2016. Specifically, Plaintiff contends, there is “no possible way
legally William Zickl should be appearing as a prosecutor” on
opposition to the § 440.10 motion “when he is one of the corrupted
family members and he is only appearing to protect his family’s
personal interest.” (Comp. ¶ 146). Plaintiff asserts that a special
prosecutor should be appointed to replace William Zickl. As already
discussed elsewhere in this Decision and Order, Judge Noonan’s
constitutional impediment to William Zickl representing the People
of the State of New York in opposition to Plaintiff’s C.P.L.
§ 440.10 motion. This cause of action lacks an arguable basis in
law or fact and must be dismissed.
Tenth Cause of Action
Plaintiff, for his tenth cause of action, asserts that “the
County, the State, [and] Judge Noonan, apparently thus far point
blank refuse to appoint a psychiatric expert” to review Plaintiff’s
competency. He contends that the “choice of which psychiatric
defense to present in any retrial is the clients [sic], not the
corrupted attorneys whom Genesee [C]ounty and the State appoint to
assist them in their prosecution.” This claim is legally infirm for
It clearly is barred by the Heck doctrine because success on
the merits would imply the invalidity of Plaintiff’s criminal
conviction, which remains intact.
The County has no Monell liability because Plaintiff has
failed to allege the existence of an unconstitutional county-wide
policy or practice, instead relying solely on what occurred in his
own case. See Jones v. Westchester Cnty., 182 F. Supp.3d 134, 159
(S.D.N.Y. 2016) (dismissing Monell claim where the plaintiff merely
“detail[ed] an incident that [her] finds objectionable,” and “it
does not plead the existence of a municipal policy or custom at
all”) (citing Pittman v. City of N.Y., No. 14–CV–4140, 2014 WL
7399308, at *7 (E.D.N.Y. Dec. 30, 2014) (“A Monell claim cannot go
forward based on conclusory claims regarding a single incident
without more evidence that connects this incident to a municipal
policy or practice.”)).
The State is entitled to sovereign immunity under the Eleventh
Amendment, and must be dismissed as a defendant. See Mamot v. Board
well-established that New York has not consented to § 1983 suits in
federal court, and that § 1983 was not intended to override a
Notwithstanding that Plaintiff has “accused [Judge Noonan] of
acting maliciously and corruptly,” Pierson v. Ray, 386 U.S. 547,
“committed within [his] judicial jurisdiction,” id. Therefore,
Judge Noonan is insulated from liability for damages for them. See
The tenth cause of action lacks an arguable basis in fact or
law and is dismissed.
42 U.S.C. § 1985
Title 42 U.S.C., Sections 1985(2) and 1985(3) provide for
causes of action based on conspiracies to violate a plaintiff’s
civil rights. Plaintiff, however, has not identified a particular
subsection of Section 1985 in his complaint. To make out a claim
under Section 1985(2), a plaintiff must show (1) a conspiracy
defeating, in any manner, (3) the due course of justice in any
State, (4) with intent to deny to any citizen the equal protection
of the laws, or to injure him or his property for lawfully
enforcing, or attempting to enforce, the right of any person, or
class of persons, to the equal protection of the laws. 42 U.S.C.
§ 1985(2). A violated constitutional right is a prerequisite to a
claim of conspiracy to violate such right. See Curley v. Vill. of
Suffern, 268 F.3d 65, 72 (2d Cir. 2001) (“Since plaintiff cannot
establish a claim for false arrest or the use of excessive force,
he may not maintain a § 1983 cause of action for conspiracy.”);
Roesch v. Otarola, 980 F.2d 850, 854-55 (2d Cir. 1992) (“Since
Roesch cannot maintain a cause of action under section 1983 against
the state officer, the District Judge, in the circumstances of this
case, properly dismissed the claims that the non-state participants
conspired with the officer to deprive Roesch of his constitutional
rights.”). “Thus, if a plaintiff cannot sufficiently allege a
violation of his rights, it follows that he cannot sustain a claim
of conspiracy to violate those rights.” Fitzgerald v. City of Troy,
N.Y., No. 10–CV–451, 2012 WL 5986547, at *23 (N.D.N.Y. Nov. 28,
2012) (citing Malsh v. Austin, 901 F. Supp. 757, 763–64 (S.D.N.Y.
1995)); Manbeck v. Micka, 640 F. Supp.2d 351, 378 (S.D.N.Y. 2009)
(“[A] claim of conspiracy to violate a constitutional right cannot
be maintained where no constitutional right was violated.”) (citing
Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995)
(“[A]lthough the pleading of a conspiracy will enable a plaintiff
to bring suit against purely private individuals, the lawsuit will
stand only insofar as the plaintiff can prove the sine qua non of
a § 1983 action: the violation of a federal right.”)).
To assert a claim under Section 1985(3), a plaintiff must
allege (1) the existence of a conspiracy; (2) for the purpose of
depriving, either directly or indirectly, him of equal protection
of the laws; (3) and an act in furtherance of the conspiracy;
(4) whereby a person is deprived of any right possessed by a United
States citizen. Brown v. City of Oneonta, N.Y., 221 F.3d 329, 341
motivated by racial animus.” Id. (citation omitted). Plaintiff has
not alleged that any of the defendants were motivated by racial
animus, and therefore he has no plausible Section 1985(3) claim. In
addition, as discussed above, Plaintiff has failed to allege any
violations of his constitutional rights. This is fatal to his
ability to state a Section 1985(3) claim. See Raffaele v. City of
N.Y., 144 F. Supp.3d 365, 375 (E.D.N.Y. 2015) (“[The] plaintiff’s
conspiracy claim based on denial of access to the courts in
underlying violation of his constitutional right to access the
courts.”); Friends of Falun Gong v. Pac. Cultural Enter., Inc., 288
F. Supp.2d 273, 279 (E.D.N.Y. 2003) (citations omitted), aff’d sub
nom. Friends of Gong v. Pac. Culture, 109 F. App’x 442 (2d Cir.
Plaintiff’s claims under Section 1985 lack an arguable basis
in fact or law and are dismissed.
18 U.S.C. § 1964(d)
As one of the bases for this Court’s jurisdiction, Plaintiff
discusses civil remedies available for violations of the Racketeer
Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962
Section 1964(d) in particular provides that “[a] final
judgment or decree rendered in favor of the United States in any
criminal proceeding brought by the United States under this chapter
shall estop the defendant from denying the essential allegations of
the criminal offense in any subsequent civil proceeding brought by
the United States.” 18 U.S.C. § 1964(d). This statutory section has
no applicability to the instant action because there is no criminal
proceeding involving the United States against any of the named
Construing Plaintiff’s complaint broadly, he appears to be
attempting to allege a civil cause of action under RICO. “[A] RICO
claim contains three elements: (1) a violation of 18 U.S.C. § 1962;
(2) injury to plaintiff’s business or property; and (3) causation
of the injury by the violation.” Sky Med. Supply Inc. v. SCS
Support Claims Servs., Inc., 17 F. Supp. 3d 207, 222 (E.D.N.Y.
2014). Plaintiff’s sprinkling the phrase “criminal enterprise”
throughout his complaint is insufficient to state a substantive
violation of Section 1962(c), which requires “(1) conduct, (2) of
an enterprise, (3) through a pattern (4) of racketeering activity.”
Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985). “Because
the RICO conspiracy claim is dependent upon the Section 1962(c)
RICO claim, dismissal of that claim mandates the dismissal of the
RICO conspiracy claim.” FD Prop. Holding, Inc. v. U.S. Traffic
omitted). Moreover, “[b]ecause the core of a RICO civil conspiracy
is an agreement to commit predicate acts, a RICO civil conspiracy
complaint, at the very least, must allege specifically such an
agreement.” Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 25
(2d Cir. 1990). While a plaintiff is not subject to the heightened
conspiracy, see id. at 26 n. 4, “‘a RICO conspiracy claim should be
more than a conclusory add-on at the end of a complaint.’” FD Prop.
Holding, Inc., 206 F. Supp.2d at 373 (quotation omitted). Here,
Plaintiff’s alleged RICO claim is just such a “conclusory add-on”.
He does not actually employ the term “conspiracy” anywhere in his
complaint; nor does he allege “facts to show specifically that the
violations.” 4 K & D Corp. v. Concierge Auctions, LLC., 2 F.
Supp.3d 525, 544–45 (S.D.N.Y. 2014); see also, e.g., FD Prop.
Holding, Inc., 206 F. Supp.2d at 373–74 (dismissing RICO conspiracy
claim where plaintiffs alleged that “‘[e]ach of these defendants
agreed to commit each of the two or more predicate acts in which
they were directly involved, as set forth in detail above[,]’” and
holding that the “allegation of an agreement without more is
inadequate to state a claim for RICO conspiracy”) (collecting
Plaintiff’s claims under RICO lack an arguable basis in law or
fact and must be dismissed.
III. Leave to Replead is Inappropriate
Generally speaking, the law in this Circuit is that a district
court should not dismiss a complaint filed by a pro se litigant
without granting leave to amend at least once “when a liberal
reading of the complaint gives any indication that a valid claim
might be stated.” Branum v. Clark, 927 F.2d 698, 704–05 (2d Cir.
1991); see also FED. R. CIV. P. 15(a) (“The court should freely give
leave when justice so requires.”). Permitting amendment is not
required, however, where “the problem with [the litigant’s] causes
of action is substantive” such that “better pleading will not cure
it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Stated
differently, “[w]here it appears that granting leave to amend is
unlikely to be productive, . . . it is not an abuse of discretion
to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d
129, 131 (2d Cir. 1993). In this instance, the deficiencies in
Plaintiff’s claims against the named defendants are substantive in
allegations, even when they “are construed with the utmost of
special liberality[.]” Mercer v. Schneiderman, No. 1:11-CV-0490
(dismissing pro se complaint with prejudice pursuant to 28 U.S.C.
§ 1915(e) for failure to state a claim upon which relief can be
liberality, the defects in [the plaintiff’s] claims are substantive
futile”) (citations omitted).
For purposes of Section 1915(e)(2), “[a] claim is based on an
‘indisputably meritless legal theory’ when either the claim lacks
an arguable basis in law, Benitez v. Wolff, 907 F.2d 1293, 1295
(2d Cir. 1990) (per curiam), or a dispositive defense clearly
exists on the face of the complaint.” Livingston v. Adirondack
Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (citing Pino v.
Ryan, 49 F.3d 51, 53 (2d Cir. 1995)). As discussed above, all of
Plaintiff’s causes of action lack an arguable basis in fact or law,
or are subject to a dispositive defense that is clear from the
Subject Matter Jurisdiction
Lack of subject matter jurisdiction may be raised at any time,
either sua sponte by the court, or by a party. Durant, Nichols,
Houston, Hodgson & Cortese–Costa P.C. v. Dupont, 565 F.3d 56, 62
(2d Cir. 2009). Indeed, it is a court’s “obligation to raise the
matter of subject matter jurisdiction ‘whenever it appears from the
pleadings or otherwise that jurisdiction is lacking.’” Id. (quoting
John Birch Society v. National Broadcasting Co., 377 F.2d 194, 199
(2d Cir. 1967); emphasis in original). When a court finds that it
lacks subject matter jurisdiction, it must dismiss the complaint in
its entirety. Id. (citing FED. R. CIV. P. 12(h)(3)).
While federal district courts have original jurisdiction over
treaties of the United States,]” 28 U.S.C. § 1331, a lawsuit
premised on state law “is not transformed into a suit ‘arising
under’ federal law merely because, to resolve it, the court may
need to interpret federal law.” Sullivan v. Am. Airlines, Inc., 424
Cir. 2005). Thus,
complaint” rule, “federal jurisdiction exists only when a federal
question is presented on the face of the plaintiff’s properly
pleaded complaint.” Beneficial Nat’l Bank v. Anderson, 539 U.S. 1,
12 (2003) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392
All of Plaintiff’s purported causes of action under federal
law have been found to lack an arguable basis in law or fact, and
accordingly have been dismissed with prejudice. The only other
jurisdiction—is lacking here. Diversity jurisdiction gives federal
district courts jurisdiction over suits where the plaintiff and the
defendant are of diverse citizenship. See Bayerische Landesbank,
New York Branch v. Aladdin Capital Mgmt. LLC, 692 F.3d 42, 48
“between, inter alia, ‘citizens of a State and citizens or subjects
of a foreign state’”) (quoting 28 U.S.C. § 1332(a)). Here, however,
Plaintiff’s complaint indicates that he and the named defendants
are all New York domiciliaries, and therefore they are not of
diverse citizenship. The Court accordingly has no basis on which to
retain jurisdiction over Plaintiff’s claims based on the New York
State constitution, New York State common law, and New York State
statutory law. See, e.g., Adames v. Taju, 80 F. Supp.3d 465, 468
(E.D.N.Y. 2015) (court lacked diversity jurisdiction over state-law
breach of contract claim by pro se litigant, where both parties
resided in the same state).
For the foregoing reasons, Plaintiff’s motion for in pauperis
prejudice, without leave to re-plead.
motions are denied as moot. The Clerk of Court is directed to close
this case. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this order would not be taken in good faith.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
April 13, 2017
Rochester, New York.
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