McKenna v. Gershkoff et al

Filing 21

SUMMARY ORDER granting Defendants' 12 Motion to Dismiss. This case is dismissed without prejudice. So Ordered by Judge Joseph N Laplante (New Hampshire) on 7/3/2013. (Duhamel, John)

UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
Keven A. McKenna
v.

Civil No. 12-cv-904-JNL-LM

Susan Gershkoff, Marc DeSisto,
and David Curtin
SUMMARY ORDER
This action is but the latest front in plaintiff Keven
McKenna’s ongoing battle against the Rhode Island Disciplinary
Board, which is presently investigating McKenna, a practicing
attorney, for alleged violations of the Rhode Island Code of
Professional Conduct.

McKenna asserts that the Board and the

Rhode Island Supreme Court, by regulating the conduct of
attorneys generally and his conduct in particular, are violating
both the separation of powers inherent in Rhode Island’s state
constitution and a number of provisions of the federal
constitution.

He seeks declaratory relief and an injunction

preventing the defendants–-a member of the Board and two
disciplinary counsel appointed to investigate and present the
complaint against McKenna to the Board--from holding their
positions and from enforcing the Code of Professional Conduct
against him.

Because the complaint invokes 42 U.S.C. § 1983,

this court has jurisdiction over this matter pursuant to 28
U.S.C. § 1331 (federal question).

The defendants have moved to dismiss, arguing (among other
things) that, under the doctrine announced in Younger v. Harris,
401 U.S. 37 (1971), this court should abstain from exercising its
jurisdiction because doing so would interfere with the pending
disciplinary proceedings against McKenna.

Under Younger and its

progeny, federal courts must abstain “when the requested relief
would interfere (1) with an ongoing state judicial proceeding;
(2) that implicates an important state interest; and (3) that
provides an adequate opportunity for the federal plaintiff to
advance his federal constitutional challenge.”

Rossi v. Gemma,

489 F.3d 26, 34-35 (1st Cir. 2007).

That doctrine provides an

obvious redoubt for the defendants:

about two months before

McKenna filed this action, this court, relying upon the Younger
line of cases, dismissed without prejudice another action in
which McKenna sought to enjoin the selfsame disciplinary
proceedings at the heart of this case.

McKenna v. DeSisto, No.

11-cv-602, 2012 WL 4486268 (D.R.I. Sept. 27, 2012) (McAuliffe,
J.).

The defendants argue that the principles that guided the

court’s decision in that case are equally applicable here, and
that the same result should obtain.
After the defendants’ motion to dismiss had been fully
briefed on all sides, the Court of Appeals, in a summary
disposition, affirmed this court’s dismissal of McKenna’s prior
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action.
2013).

McKenna v. DeSisto, No. 12-2217 (1st Cir. June 10,
The Court of Appeals concluded that “[t]he district court

correctly found that all the requirements for Younger abstention
were met, making abstention mandatory in the absence of an
applicable exception.”

Id., slip op. at 1.

It further

concluded, as this court had, that “McKenna’s case does not meet
any of the narrowly construed exceptions to Younger abstention.”
Id. (citing Malachowski v. City of Keene, 787 F.2d 704, 709 (1st
Cir. 1986)).

More specifically, the Court of Appeals rejected

McKenna’s arguments that his action was exempt from Younger’s
reach because (a) “the Rhode Island Disciplinary Board and its
Supreme Court are biased against him”; (b) “the delegation of
authority to the Rhode Island Supreme Court and its Disciplinary
Board to oversee attorney conduct is . . . flagrantly
unconstitutional”; and (c) “the state’s forum is inadequate.”
Id. at 1-2.
Those are the same arguments that McKenna has made in his
opposition to the defendants’ motion to dismiss in this action.
McKenna has also argued that the Board’s proceedings are not “an
ongoing state judicial proceeding” under the first prong of the
Younger analysis, an argument that also would appear to be
foreclosed by the Court of Appeals’ opinion.

Nonetheless, so

McKenna would have a full opportunity to explain why this front
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in his battle should remain open notwithstanding that opinion,
this court ordered him to file a memorandum explaining “why [he]
believes the court should not dismiss this dispute for the same
reason set forth in the Court of Appeals’ opinion in DeSisto
case.”

Order of June 14, 2013.

McKenna did not file a memorandum as ordered by the court.
The court takes this as a tacit acknowledgment that McKenna has
no reason to believe the court should not dismiss this action for
the same reasons set forth in the Court of Appeals’ opinion (and
this court’s prior opinion), which are the same reasons the
defendants advance in their motion to dismiss.

After careful

consideration of the pleadings and the parties’ memoranda, the
court shares that view.

Defendants’ motion to dismiss (document

no. 12) is accordingly granted, and the case is dismissed without
prejudice.
SO ORDERED.

____________________________
Joseph N. Laplante
United States District Judge
Dated:
cc:

July 3, 2013

Keven A. McKenna, Esq.
Michael W. Field, Esq.
Rebecca Tedford Partington, Esq.

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