Leathersich v. Cohen

Filing 9

DECISION AND ORDER granting 3 Defendant's Motion to Dismiss; denying 4 Plaintiff's Motion to Amend or Correct. Clerk is directed to close this case. (Copy of this Decision and Order sent by first class mail to Plaintiff.). Signed by Hon. Michael A. Telesca on 7/23/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JEFFREY C. LEATHERSICH,
Plaintiff,
-v-

18-cv-6363
DECISION AND ORDER

HONORABLE J. DENNIS COHEN,
Defendant.

INTRODUCTION
Pro se plaintiff Jeffrey C. Leathersich (“Plaintiff”) filed
the instant action on May 15, 2018.

Docket No. 1.

Plaintiff

alleges that defendant the Honorable J. Dennis Cohen (“Defendant”
or “Judge Cohen”), a Livingston County Family Court Judge, violated
Plaintiff’s constitutional rights in connection with divorce and
custody proceedings. Plaintiff seeks an injunction ordering that:
(1) Judge Cohen recuse himself from any future Family Court or
divorce proceedings involving Plaintiff; (2) Plaintiff’s Family
Court and divorce proceedings be moved to the Monroe County Courts;
(3)

the

Livingston

County

attorney-for-the-children,

Robert

Campbell, be removed from Plaintiff’s Family Court and divorce
proceedings; and (4) the Monroe County Court grant a new hearing on
the matter of custody and visitation of Plaintiff’s minor children.
On May 29, 2018, Defendant filed a motion to dismiss the
complaint on the basis of absolute judicial immunity, among other
reasons.

Docket No. 3.

Thereafter, on June 13, 2018, Plaintiff

filed a motion for leave to amend his complaint. Docket No. 4.

The

Court has considered each of these motions and, for the reasons
detailed below, Defendant’s motion to dismiss the complaint is
granted and Plaintiff’s motion for leave to amend is denied.
FACTUAL BACKGROUND
As set forth above, Plaintiff’s complaint arises out of Judge
Cohen’s handling of custody and divorce proceedings involving
Plaintiff.

Plaintiff identifies four specific occasions on which

Judge Cohen allegedly violated his constitutional rights.

First,

Plaintiff alleges that Judge Cohen violated his right to due
process on June 2, 2015, by denying him the right to be heard
regarding

a

petition

for

an

order

Plaintiff’s wife.

alleges

protection

filed

by

Docket No. 1 at 3.

Second,

of

Plaintiff

Constitution’s

supremacy

that

clause

by

Judge

Cohen

threatening

violated
to

the

withhold

overnight visits with Plaintiff’s children unless Plaintiff signed
a

release

form

under

the

Health

Insurance

Portability

and

Accountability Act of 1996 (“HIPAA”) allowing his wife’s attorney
and the attorney-for-the-children to speak to his psychiatrist and
mental health counselor.

Id. at 4.

Third, Plaintiff alleges that he appeared pro se at a hearing
on May 30, 2017, and that Judge Cohen was “visibly angry” at
Plaintiff and, “[b]ecause he appeared without an attorney and for
no other reason,” cut Plaintiff’s visitation time from six hours
per week to four hours per week, in violation of Plaintiff’s right
to self-representation.

Id.

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Fourth, Plaintiff alleges that Judge Cohen violated his First
Amendment right to freedom of speech and freedom of the press by
stating that he should not make disparaging comments or electronic
postings about his wife.

Id. at 4-5.

Based on the foregoing allegations, Plaintiff asserts that
Judge Cohen has “demonstrated a clear and continuous bias against”
Plaintiff.

Id.

Plaintiff further alleges that Livingston County

Judge Robert Wiggins, although he is “a good man and an honorable
judge who [Plaintiff] trust[s],” is compromised by his personal
relationship with Judge Cohen and his prior experiences with
Plaintiff, and therefore “should not be put in the position of
hearing” Plaintiff’s divorce and custody proceedings, necessitating
that those matters be moved to the Monroe County Courts.
With respect to Livingston County attorney-for-the-children
Robert Campbell, Plaintiff alleges that Mr. Campbell was “poisoned
against” Plaintiff by Plaintiff’s marriage counselor, with whom he
spoke pursuant to the HIPAA release Plaintiff claims was unlawfully
obtained.

Id.

Plaintiff thus claims that Mr. Campbell should no

longer be involved in his divorce and custody proceedings.
DISCUSSION
I.

Legal Standard
“To survive a motion to dismiss [made pursuant to Federal Rule

of Civil Procedure 12(b)(6)], a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that
is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678

3

(2009) (internal quotation marks and citation omitted).

“A claim

has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”

Id.

Although a

complaint need not provide “detailed factual allegations,” it
nevertheless must assert “more than labels and conclusions,” and “a
formulaic recitation of the elements of a cause of action” will not
suffice. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007).
The plaintiff must plead facts that “raise a right to relief above
the speculative level on the assumption that all the allegations in
the complaint are true.” Id. (citations omitted). In deciding the
a Rule 12(b)(6) motion, the Court must accept as true all factual
allegations

in

the

complaint,

and

must

inferences in favor of the nonmovant.

draw

all

reasonable

See Atwood v. Cohen &

Slamowitz LLP, 716 F. App’x 50, 52 (2d Cir. 2017).
As a general matter, the Court “afford[s] a special solicitude
to pro se litigants” such as Plaintiff.
F.3d 90, 101 (2d Cir. 2010).

Tracy v. Freshwater, 623

This solicitude “takes a variety of

forms” and may consist of “liberal construction of pleadings [and]
motion papers” or “relaxation on the limitations on the amendment
of pleadings . . . [and] leniency in the enforcement of other
procedural rules.” Id. Ultimately, however, “pro se status does not
exempt a party from compliance with relevant rules of procedural
and substantive law.”

Triestman v. Fed. Bureau of Prisons, 470

F.3d 471, 477 (2d Cir. 2006) (internal quotation omitted).

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II.

Plaintiff’s Claims are Barred by Absolute Judicial Immunity
Judge Cohen seeks dismissal of Plaintiff’s complaint against

him on the basis of absolute judicial immunity.

“[S]tate judges

are absolutely immune from liability for their judicial acts[.]”
Briscoe v. LaHue, 460 U.S. 325, 334 (1983) (citations omitted).
Absolute judicial immunity applies “even when the judge is accused
of acting maliciously and corruptly,” Imbler v. Pachtman, 424 U.S.
409, 419 n.12 (1976), or where “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 [is]
performance of the function of resolving disputes between parties,
or of authoritatively adjudicating private rights.” Burns v. Reed,
500 U.S. 478, 500 (1991) (citation omitted).
Plaintiff’s claims against Judge Cohen fall squarely within
the range of conduct covered by absolute judicial immunity.

Judge

Cohen’s actions in conducting hearings and deciding custody issues
are

all

quintessential

judicial

functions

that,

even

where

performed incompetently or for improper purposes, cannot form the
basis of a suit against the judicial officer.
Plaintiff’s complaint is not saved by the fact that he seeks
injunctive relief.

The Federal Courts Improvement Act of 1996

expressly amended 42 U.S.C. § 1983 (the statutory authority for
actions against state officials for constitutional violations) to
provide that “in any action brought against a judicial officer for

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an act or omission taken in such officer’s judicial capacity,
injunctive relief shall not be granted unless a declaratory decree
was violated or declaratory relief was unavailable.”
§ 1983.

42 U.S.C.

Accordingly, “the doctrine of absolute judicial immunity

now extends to cover suits against judges where the plaintiff seeks
not only monetary relief, but injunctive relief as well, unless
preceded by a declaration, or by a showing that such declaratory
relief is unavailable.”

MacPherson v. Town of Southampton, 664 F.

Supp. 2d 203, 211 (E.D.N.Y. 2009).

Plaintiff has not alleged that

either of the narrow exceptions set forth in 42 U.S.C. § 1983 apply
in this case, and therefore his request for injunctive relief also
falls within the scope of absolute judicial immunity.
Absolute judicial immunity is “an immunity from suit rather
than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S.
511,

526

(1985).

Accordingly,

where

(as

in

this

case)

a

plaintiff’s claim is barred by absolute judicial immunity, the
matter must be dismissed. The Court accordingly grants Defendant’s
motion to dismiss the complaint.
III. Plaintiff’s Proposed Amendments are Futile
Plaintiff has filed a motion seeking leave to amend his
complaint.1

In particular, Plaintiff seeks to modify his request

for relief to state that he is “seeking relief in the form of a
1

In violation of Local Rule of Civil Procedure 15(a), Plaintiff failed to
include a copy of his proposed amended complaint with his motion for leave to
amend. However, Plaintiff subsequently submitted a proposed amended complaint
with his reply papers. See Docket No. 7-1. In light of Plaintiff’s pro se
status, the Court has overlooked this procedural violation and has considered
Plaintiff’s motion for leave to amend on the merits.

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declaratory judgment affirming the constitutional rights of the
defendant and the duty of . . . Judge Cohen to afford the plaintiff
these rights . . . in all future court proceedings.”
1 at 13.

Docket No. 7-

The Court finds that this proposed amendment by Plaintiff

would be futile, and therefore denies his motion for leave to
amend.
Pursuant to Federal Rule of Civil Procedure 15(a), leave to
amend

shall

be

given

freely

“when

justice

so

requires.”

Nevertheless, it remains “within the sound discretion of the
district court to grant or deny leave to amend.”

Kim v. Kimm, 884

F.3d 98, 105 (2d Cir. 2018) (internal quotation omitted). In
particular, the Court may deny leave to amend “for good reason,
including futility, bad faith, undue delay, or undue prejudice to
the opposing party.”

McCarthy v. Dun & Bradstreet Corp., 482 F.3d

184, 200 (2d Cir. 2007).

A proposed amendment is futile where it

“fails to state a claim on which relief can be granted.”

Krys v.

Pigott, 749 F.3d 117, 134 (2d Cir. 2014). “The adequacy of a
proposed amended complaint to state a claim is to be judged by the
same

standards

as

those

governing

the

adequacy

of

a

filed

pleading.” Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162,
185 (2d Cir. 2012).
In this case, Plaintiff’s proposed amendments to the complaint
are

futile.

Plaintiff’s

proposed

new

request

for

declaratory

relief, although nominally forward-looking, fails to identify any
ongoing or continuing violation of federal law. Instead, Plaintiff
merely argues that he “anticipates being required to appear before
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Judge Cohen again” in connection with his ongoing Family Court
proceedings and that, as such, additional constitutional violations
“will undoubtably occur in the future.”

Docket No. 7 at 7.

However, “[a]n action for declaratory judgment does not provide an
occasion

for

addressing

a

claim

of

alleged

injury

based

on

speculation as to conduct which may or may not occur at some
unspecified future date.” Abidor v. Napolitano, 990 F. Supp. 2d
260, 272 (E.D.N.Y. 2013).

Accordingly, Plaintiff’s speculative

allegations that Judge Cohen may violate his constitutional rights
at

some

point

in

the

future

is

insufficient

to

sustain

a

declaratory judgment action.
Plaintiff’s claims regarding Judge Cohen’s past conduct also
cannot save his proposed declaratory judgment claims.
judicial

immunity

bars

declaratory

judgment

claims

Absolute
that

“are

retrospective in nature in that they seek a declaration” that a
judge’s past behavior has violated the Constitution. MacPherson v.
Town of Southampton, 664 F. Supp. 2d 203, 211 (E.D.N.Y. 2009); see
also Moore v. City of New York, No. 12-CV-4206 RRM LB, 2012 WL
3704679, at *2 (E.D.N.Y. Aug. 27, 2012) (“Judicial immunity also
bars . . . claims for retrospective declaratory relief.”).
For the reasons set forth above, Plaintiff’s proposed amended
complaint fails to allege a viable claim for declaratory relief.
Moreover,

the claims

for

injunctive

relief

set

forth

in

the

proposed amended complaint fail for the same reasons as those
included in the original complaint.

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Accordingly, it would be

futile for the Court to permit Plaintiff to amend his complaint,
and his request for leave to amend is therefore denied.
CONCLUSION
For the reasons set forth above, Defendant’s motion to dismiss
this action (Docket No. 3) is granted.
leave to amend (Docket No. 4) is denied.

Plaintiff’s motion for
The Clerk of the Court is

instructed to enter judgement in favor of Defendant and to close
the case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

July 23, 2018
Rochester, New York

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