Opinion
08 Civ. 9712 (RMB) (KNF).
July 1, 2009
REPORT and RECOMMENDATION
TO THE HONORABLE RICHARD M. BERMAN, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
In this pro se action, brought pursuant to 42 U.S.C. § 1983 ("§ 1983") and § 1988 ("§ 1988"), John Aretakis ("Aretakis"), Father Robert Hoatson ("Hoatson"), and Caroline Nicholson ("Nicholson"), seek relief against the New York State Supreme Court, Appellate Division, Third Department's Committee on Professional Standards ("COPS"); Mark Ochs ("Ochs"), Chief Attorney and Counsel to COPS; Michael Gaynor, an attorney assigned to investigate Aretakis; and William Keniry, an attorney and member of COPS' Executive Committee. Ochs, Gaynor and Keniry are sued in their individual and official capacities. The amended complaint alleges the defendants violated the plaintiffs' constitutional rights by pursuing, for improper reasons, an attorney disciplinary action against Aretakis. Hoatson and Nicholson are identified as "clients" of Aretakis.
In the amended complaint, the plaintiffs assert the following claims: (1) the defendants' investigations, "prosecution," and presentation of charges and/or complaints against Aretakis, for violating his ethical obligations, violate the plaintiffs' rights to "free speech, equal protection, and freedom of association"; (2) the defendants applied the Code of Professional Responsibility ("the Code") so as to restrict Aretakis' ability to "represent clients, freely associate with others and engage in free speech"; (3) the Code contains provisions that are unconstitutionally vague; (4) the Code contains provisions that are unconstitutionally overbroad; (5) the defendants' conduct, and various provisions of the Code, "constitute a form of prior restraint and tort[i]ous interference with . . . Aretakis' business contracts"; (6) the defendants' conduct was, and continues to be, in violation of §§ 1983 and 1988 and the plaintiffs' constitutional rights; (7) the defendants "harmed [Aretakis] by filing Specifications and Charges and additional charges and investigations . . . and have prosecuted and found [Aretakis] guilty of same," resulting in the "illegal[] and improper[] tak[ing] [of] property [from Aretakis] without due process and in violation of constitutional rights"; (8) malicious prosecution, by the defendants; (9) the need for "Article 78 review" of the violation of Aretakis' right to due process, caused by the defendants' provision of "evidence to the Appellate Division by letter[s] dated November 21, 2008 and December 1, 2008," without providing Aretakis an "opportunity to respond or reply"; (10) the defendants inflicted emotional distress on Aretakis, intentionally; (11) the defendants "intended to prosecute [Aretakis] in bad faith and in a manner intended to deny [him] of his civil rights"; and (12) the defendants were negligent, by failing to "follow good and customary procedure in the prosecution of [Aretakis]." The plaintiffs seek "plenary and monetary, declaratory and injunctive relief."
Before the Court is the defendants' motion to dismiss the plaintiffs' complaint, pursuant to Fed.R.Civ.P. 12(b)(1) and (b)(6). The defendants contend dismissal is appropriate because: (1) the court lacks subject matter jurisdiction, per force of the Eleventh Amendment to the United States Constitution, and under the Rooker-Feldman doctrine; (2) the claims asserted against the defendants are barred by the doctrines of res judicata and collateral estoppel; (3) the plaintiffs have failed to state a claim, pursuant to § 1983, against the defendants; (4) abstention is appropriate, pursuant to Younger v. Harris ; and (5) Hoatson and Nicholson lack standing to bring this action.
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S. Ct. 149 (1923).
Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746 (1971).
The defendants' motion is analyzed below.
II. BACKGROUND AND PROCEDURAL HISTORY
In the amended complaint, the plaintiffs allege the defendants violated their constitutional rights "by and through their interpretation" of the Code, and by "unfairly and illegally target[ing] and maliciously prosecut[ing] [Aretakis] with meritless disciplinary charges due to [his] work involving clergy sexual abuse." Hoatson has litigation pending in "New York City [sic] Supreme Court," and Aretakis is "his only counsel." In addition, Aretakis is Nicholson's "only counsel" for "litigation pending in New York State Supreme Court," and Nicholson is "adversely affected" by the disciplinary actions taken against Aretakis, because "she is restrained from using Aretakis out of concern that said association would adversely impact her [case]." Hoatson and Nicholson assert, through their amended complaint, they seek to prevent the continuous, and future, deprivation of "their property and attorney without due process," and to protect "public policy interests concerning free speech and the ability of attorneys to competently and zealously represent clients, without reprisal, and without a prosecutorial body of the State to target select attorneys who are involved in controversial areas of law."
State-Court Disciplinary Proceedings A. Letter of Admonition
In February 2008, a letter was mailed to Aretakis, from COPS, which provided "notice of disciplinary action." Specifically, the letter informed Aretakis that, upon consideration of: (a) inquiries made by "Rev. Carl A. Urban, F. Stanton Ackerman, Esq., and Wayne Kelly"; (b) information revealed by a COPS investigation; and (c) Aretakis' responses, COPS determined that Aretakis engaged in improper conduct for which it intended to admonish him. Aretakis was admitted to practice law in New York by the Appellate Division, Third Department, although Aretakis contends he engages in the practice of law principally in the Appellate Division, First Department. On April 7, 2008, a formal Letter of Admonition was issued against Aretakis, explaining the misconduct in which he engaged, and that such conduct was in violation of Disciplinary Rules § 1-102(A)(4), (5) and (7), and § 7-102(1) of the Code.
Thereafter, Aretakis moved to vacate or dismiss the April 7, 2008 Letter of Admonition, issued against him. The New York State Supreme Court, Appellate Division, Third Department, granted Aretakis' motion, in part, by, inter alia, "vacating so much of the letter which determined that [Aretakis'] conduct violated Disciplinary Rule 1-102(a)(4) of the Code of Professional Responsibility." Aretakis appealed from that determination to the New York Court of Appeals. In December 2008, the New York Court of Appeals dismissed Aretakis' appeal, finding, inter alia, no substantial constitutional question was "directly involved."
B. Charges and Specifications
In March 2008, a Petition of Charges and Specifications was filed in the New York State Supreme Court, Appellate Division, Third Department, by Ochs. By confidential decision, dated October 3, 2008, the New York State Supreme Court, Appellate Division, Third Department, granted a motion by COPS, and, inter alia, declared that "no factual issues are raised by the pleadings in this disciplinary proceeding." By order dated December 11, 2008, the New York State Supreme Court, Appellate Division, Third Department, after having "heard [Aretakis] in mitigation," found him "guilty of professional misconduct as charged and specified in the petition," and determined to suspend Aretakis' license to practice law, for one year. Aretakis' suspension took effect 20 days from the date of the Appellate Division's order. Aretakis moved for permission to appeal, to the New York Court of Appeals. On January 22, 2009, the New York Court of Appeals dismissed Aretakis' application for leave to appeal, "upon the ground that no substantial constitutional question is directly involved."
Alleged Actions by the Defendants
The plaintiffs allege Keniry had a conflict of interest, and should have recused or disqualified himself from voting, as a Member of the COPS Executive Committee, in the disciplinary proceedings against Aretakis. The plaintiffs contend Ochs, in his "sole discretion . . ., may launch an inquiry against an attorney which he has repeatedly done against . . . [Aretakis] . . . in an unfair and selective manner." As to Gaynor, the amended complaint alleges he sent two letters to the New York State Supreme Court, Appellate Division, Third Department, dated November 21 and December 1, 2008, in which he conceded "that [Aretakis] was prosecuted on matters not invoking collateral estoppel and contrary to precedent and established law"; and, furthermore, sent copies of three court decisions to the Appellate Division, involving Aretakis, without providing Aretakis notice, thus depriving Aretakis of the opportunity to defend himself before, or be heard by, that court in connection with the three decisions.
The plaintiffs appended copies of Gaynor's letters to the amended complaint. The November 21, 2008 letter-which was addressed to the New York State Supreme Court, Appellate Division, Third Department-provides the names, and copies, of three decisions regarding sanctions imposed on Aretakis. In it, Gaynor notes these decisions were being provided "in light of Mr. Aretakis' statements to the Court on November 18, 2008 that apparently it is incumbent upon petitioner to provide this information to the Court." There is no mention of collateral estoppel in this letter. A subsequent letter, dated December 1, 2008, also addressed to the New York State Supreme Court, Appellate Division, Third Department, clarified that the "November 21, 2008 letter was submitted to the Court in response to several statements made by Mr. Aretakis at oral argument concerning collateral estoppel," and that the letter "was not submitted with the purpose of supplementing the disciplinary charges against Mr. Aretakis but done to apprise the Court of the status of court decisions sanctioning Mr. Aretakis for frivolous conduct."
The three cases at issue are: (1) Linen v. Hearst Corp., Supreme Court, New York County, Index No. 101144/2007 (Oct. 7, 2008); (2) Zlotnick v. Hubbard, 572 F. Supp. 2d 258 (N.D.N.Y. 2008); and (3) Hoatson v. New York Archdiocese, No. 05 Civ. 10467, 2007 WL 431098, 2007 U.S. Dist. LEXIS 9406 (S.D.N.Y. Feb. 8, 2007).
III. DISCUSSION
Subject Matter Jurisdiction
"A court presented with a motion to dismiss under both Rule 12(b)(1) and 12(b)(6) must decide the jurisdictional question first because a disposition of a Rule 12(b)(6) motion is a decision on the merits, and therefore, an exercise of jurisdiction." Adamu v. Pfizer, Inc., 399 F. Supp. 2d 495, 500 (S.D.N.Y. 2005) (internal quotations and citations omitted). On a motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction, a court must assume all factual allegations in the complaint are true. See Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998).An action may be dismissed, pursuant to Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction, "when [a] district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The plaintiff bears the burden of showing, by a preponderance of the evidence, that subject matter jurisdiction exists. See Makarova, 201 F.3d at 113. Inasmuch as the jurisdiction of a federal court must be shown affirmatively, that showing cannot be made by drawing inferences favorable to the party asserting the court has jurisdiction. See Shipping Fin. Servs. Corp., 140 F.3d at 131. "[A] [Rule] 12(b)(1) motion cannot be converted into a Rule 56 motion. . . ." Kamen v. American Telephone Telegraph, Co., 791 F.2d 1006, 1011 (2d Cir. 1986). However, the court may "consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, but [] may not rely on conclusory or hearsay statements contained in the affidavits." J.S. v. Attica Central Schools, 386 F.3d 107, 110 (2d Cir. 2004). Where, as here, the plaintiffs are proceeding pro se, the Court must construe their complaint liberally and "interpret [it] to raise the strongest arguments it suggests." Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).
Younger Abstention
The defendants contend the amended complaint should be dismissed for lack of subject matter jurisdiction, based upon Younger. However, the Second Circuit Court of Appeals has explained that "Younger is not a jurisdictional bar based on Article III requirements, but instead a prudential limitation on the court's exercise of jurisdiction grounded in equitable considerations of comity." Spargo v. New York State Comm'n on Judicial Conduct, 351 F.3d 65, 74 (2d Cir. 2003).
"Under Younger, federal courts, in the interest of comity, must abstain from enjoining pending state court criminal prosecutions and allow state courts to resolve pending matters within their jurisdiction. Younger abstention also has been extended . . . to state civil . . . and administrative proceedings." Washington v. County of Rockland, 373 F.3d 310, 318 (2d Cir. 2004) (citing Trainor v. Hernandez, 431 U.S. 434, 97 S. Ct. 1911). Younger abstention is required when three conditions are met: (1) there is a pending state proceeding; (2) the proceeding implicates an important state interest; and (3) the state proceeding affords the federal plaintiff an adequate opportunity for judicial review of the federal constitutional claims. See Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 100-01 (2d Cir. 2004); Spargo, 351 F.3d at 75.
The plaintiffs allege, in their memorandum in opposition to the defendants' motion for dismissal, no ongoing state court action exists, and, therefore, the court need not abstain from resolving their claims, based upon Younger. For their part, the defendants maintain that, at the time their motion was filed, Aretakis' application for leave to appeal from the Appellate Division's order suspending his license to practice law was pending with the New York Court of Appeals. However, by order dated January 22, 2009, the New York Court of Appeals denied Aretakis' application for leave to appeal. Therefore, no "pending state proceeding" exists, and the Younger abstention doctrine cannot be applied to this case. See, e.g., Pathways, Inc. v. Dunne, 329 F.3d 108, 114 (2d Cir. 2003) (finding that, "[f]rom [] information provided by the parties, we now know that the lawsuits and litigation efforts initiated by the [defendants] against [the plaintiff] in the state courts have concluded," and, therefore, "there are no longer any pending state proceedings that could implicate Younger . . . concerns").
The Rooker-Feldman Doctrine
The defendants allege the amended complaint should be dismissed because: (1) the Rooker-Feldman doctrine precludes the plaintiffs from challenging a state-court judgment rendered before district court proceedings commenced; and (2) the amended complaint seeks federal review of a state-court judicial proceeding involving attorney discipline.
Under the Rooker-Feldman doctrine, inferior federal courts lack subject-matter jurisdiction "over suits that seek direct review of judgments of state courts, or that seek to resolve issues that are 'inextricably intertwined' with earlier state court determinations." Vargas v. City of New York, 377 F.3d 200, 205 (2d Cir. 2004); see also District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486-87, 103 S. Ct. 1303, 1316-17 (1983); Rooker, 263 U.S. at 415-16, 44 S. Ct. at 150. "[I]nextricably intertwined means, at a minimum, that where a federal plaintiff had an opportunity to litigate a claim in a state proceeding . . ., subsequent litigation will be barred under the Rooker-Feldman doctrine if it would be barred under the principles of preclusion." Vargas, 377 F.3d at 205 (quoting Phifer v. City of New York, 289 F.3d 49, 55-56 (2d Cir. 2002) (internal quotations omitted). "Under New York law, issue preclusion occurs if '(1) the issue in question was actually and necessarily decided in a prior proceeding, and (2) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding.'" Vargas, 277 F.3d at 205-06 (quoting Colon v. Coughlin, 58 F.3d 865, 869 [2d Cir. 1995]).
"[T]here are four requirements for the application ofRooker-Feldman:" (1) "the federal-court plaintiff must have lost in state court"; (2) the plaintiff's injuries must flow from the state-court judgment; (3) the plaintiff must seek federal district court review and rejection of the state-court judgment; and (4) the "state-court judgment must have been 'rendered before the district court proceedings commenced' — i.e., Rooker-Feldman has no application to federal-court suits proceeding in parallel with ongoing state-court litigation." Hoblock v. Albany County Board of Elections, 422 F.3d 77, 85 (2d Cir. 2005).
Turning to the first of the four requirements for application of the Rooker-Feldman doctrine, Aretakis, a federal-court plaintiff, lost his case in state court. As such, theRooker-Feldman doctrine may only bar the claims raised by Aretakis, since Hoatson and Nicholson were not parties to the litigation in state court culminating in the one-year suspension of Aretakis' license to practice law. With regard to the second and third requirements, the only claims, in the amended federal-court complaint, alleging injury flowing from the state-court judgment of suspension, are Aretakis' challenges to the constitutionality of disciplinary code provisions (claims three and four in the amended complaint), and Aretakis' challenge to the filing of charges and specifications against him, contending they amount to a "tak[ing] [of] property . . . without due process and in violation of constitutional rights" (claim seven in the amended complaint). The Rooker-Feldman doctrine bars Aretakis from asserting claims, in this action, that the Code provisions he was found guilty of violating are unconstitutionally vague and overbroad. This is so because, if Aretakis' injury "is the state court's application of an unconstitutional statute, [his] claim is essentially a de facto appeal of a prior state court ruling and[, consequently,] is prohibited by Rooker-Feldman." Mac Pherson v. State Street Bank Trust Co., 452 F. Supp. 2d 133, 139 (E.D.N.Y. 2006). Similarly, Aretakis' attack, on the filing of charges and specifications against him, is a direct challenge to the state-court order suspending his license to practice law. See Hoblock, 422 F.3d at 87. In Hoblock, the Second Circuit provided the following hypothetical scenario:
[s]uppose a state court, based purely on state law, terminates a father's parental rights and orders the state to take custody of his son. If the father sues in federal court for the return of his son on grounds that the state judgment violates his federal substantive due-process rights as a parent, he is complaining of an injury caused by the state judgment and seeking its reversal. This he may not do, regardless of whether he raised any constitutional claims in state court, because only the Supreme Court may hear appeals from state-court judgments.
Id. In the case at bar, a state court suspended Aretakis' license to practice law for one year, based solely upon state attorney-conduct rules. Through the amended complaint, Aretakis challenges the filing of charges and specifications against him and the suspension of his law license, based upon his assertion that these actions amounted to a taking, in violation of due process. This challenge, by Aretakis, is tantamount to "complaining of an injury caused by the state judgment and seeking its reversal." Id.
With respect to the fourth requirement, the judgment was final for Rooker-Feldman purposes, even though Aretakis' application for leave to appeal to the New York Court of Appeals was pending at the time he filed his federal court complaint. See Lomnicki v. Cardinal McCloskey Services, No. 04-CV-4548, 2007 WL 2176059, at *6, n. 11, 2007 U.S. Dist. LEXIS 54828, at *19-20, n. 11 (S.D.N.Y. July 26, 2007) (finding (1) the judgment of a lower state court, from which the plaintiff's alleged injury flowed, constituted a final judgment for purposes of Rooker-Feldman, even when an appeal was filed in state court after entry of the lower state court's judgment; and (2) the filing of an amended complaint in a federal court action nullifies any previous complaint filed in the federal court, therefore, if an amended complaint is filed after entry of the lower state court's judgment, the state court judgment is deemed final, even if the original federal complaint was filed before the conclusion of the state court proceeding).
Aretakis' remaining claims relate to injuries flowing from the defendants' conduct, as opposed to injury flowing solely from the state-court judgment; therefore, the second requirement for employing the Rooker-Feldman doctrine is not met, with respect to these remaining claims.
Standing
Article III of the United States Constitution "restricts federal courts to deciding 'Cases' and 'Controversies' and thus imposes what the Supreme Court has described as the 'irreducible constitutional minimum of standing,'-injury-in-fact, causation, and redressability." Baur v Veneman, 352 F.3d 625, 631-32 (2d Cir. 2003) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 2136). "[An] injury-in-fact, [] is a concrete and particularized harm to a legally protected interest." W.R. Huff Asset Mgmt. Co., LLC v. DeLoitte Touche LLP, 549 F.3d 100, 106-07 (2d Cir. 2008) (internal citations, emphasis, and quotations omitted). "[C]ausation [is established by showing] a fairly traceable connection between the asserted injury-in-fact and the alleged actions of the defendant." Id. (internal quotations omitted). "[R]edressability [is] a non-speculative likelihood that the injury can be remedied by the requested relief." Id.
In the present case, Hoatson and Nicholson, as Aretakis' "clients," allege their constitutional rights are violated by Aretakis' suspension, since, for the period of Aretakis' suspension, they are unable to secure the counsel of their choosing (Aretakis). However, Hoatson and Nicholson do not have a "legally protected interest" in being represented by a suspended attorney. A suspended attorney is not authorized to practice law. Accordingly, such an attorney's participation in litigation would be in a pro se status. See Robert v. Dep't of Justice, No. 05-CV-2543, 2005 WL 3371480, at *14, 2005 U.S. Dist. LEXIS 33793, at *41 (E.D.N.Y. Dec. 12, 2005). "[A]ppearance pro se denotes (in law latin) appearance for one's self; so that a person ordinarily may not appear pro se in the cause of another person or entity." Pridgen v. Andresen, 113 F.3d 391, 393 (2d Cir. 1997). Therefore, just as Hoatson and Nicholson have no right to be represented in a legal proceeding by a person who is not an attorney, they do not have a right to be represented by a suspended attorney, whose suspension from the practice of law negates his status as an attorney. Hoatson and Nicholson may endure an "injury-in-fact" by being represented by Aretakis, while his law license is suspended; however, no authority suggests they will suffer an "injury-in-fact" by being barred from securing Aretakis' legal services, during his suspension. Thus, Hoatson and Nicholson lack standing, and the Court finds that granting the defendants' motion, with respect to the claims asserted by these plaintiffs, is warranted.
Failure to State a Claim
When considering a motion to dismiss, a court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. See Staehr v. Hartford Financial Services Group, Inc., 547 F.3d 406, 424 (2d Cir. 2008). Additionally, when assessing a motion pursuant to Fed.R.Civ.P. 12(b)(6), "consideration is limited to facts stated on the face of the complaint, in documents appended to the complaint or incorporated . . . by reference, and to matters [about] which judicial notice may be taken," as well as "documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit." Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991);Rothman v. Gregor, 220 F.3d 81, 88-89 (2d Cir. 2000) (internal citation omitted).
Eleventh Amendment Immunity
The Eleventh Amendment protects a state against suits brought in federal courts by citizens of that state. See Alabama v. Pugh, 438 U.S. 781, 98 S. Ct. 3057 (1978). This absolute immunity extends to both state agencies and state officials sued for damages in their official capacities, when the essence of the claim involved is such that the state is the real party in interest. See Richards v. State of New York App. Div., Second Dep't, 597 F. Supp. 689, 691 (E.D.N.Y. 1984) (citing Cory v. White, 457 U.S. 85, 102 S. Ct. 2325).
"The New York State Legislature has vested the exclusive jurisdiction to discipline attorneys in the four departments of the Appellate Division of the Supreme Court." Esposito v. State of New York, No. 07 Civ. 11612, et al., 2008 WL 3523910, at *12, 2008 U.S. Dist. LEXIS 61268, at *43-44 (S.D.N.Y. Aug. 8, 2008). "The Committee on Professional Standards of the Third Judicial Department (Committee) is the official body authorized under rules of the Appellate Division, Third Department to investigate allegations of attorney misconduct, to bring charges and to prosecute attorneys when charges are brought." Capoccia v. Committee on Professional Standards, No. 89-CV-866, 1990 WL 211189, at *1, 1990 U.S. Dist. LEXIS 17310, at *2 (N.D.N.Y. Dec. 20, 1990). Accordingly, COPS "'is a delegatee of the powers of the Appellate Division as an aid to that Court in carrying out its statutory functions[,]" is an "arm[] of the State" and "immune from suit under the Eleventh Amendment." Esposito, 2008 WL 3523910, at *12, 2008 U.S. Dist. LEXIS 61268, at *44 (quoting Rappoport v. Departmental Disciplinary Comm. for First Judicial Dep't, No. 88 Civ. 5781, 1989 WL 146264, at *1, 1989 U.S. Dist. LEXIS 13854, at *3-4 (S.D.N.Y. Nov. 21, 1989); see also Barbara v. New York Stock Exchange, Inc., 99 F.3d 49, 58 (2d Cir. 1996) (finding that "the courts have not hesitated to extend the doctrine of absolute immunity to private entities engaged in quasi-public adjudicatory and prosecutorial duties," and "the [federal] courts of appeals have extended absolute immunity to such private actors as . . . members of bar association disciplinary committees") (internal citations omitted).
The plaintiffs sue Ochs, Gaynor and Keniry in their official and individual capacities, for investigating Aretakis, lodging charges of professional misconduct against him, and undertaking conduct that led to the suspension of Aretakis' license to practice law. The plaintiffs allege these defendants acted in violation of the plaintiffs' constitutional rights. COPS, an arm of the state judiciary, and Ochs, Gaynor and Keniry, as state actors, enjoy Eleventh Amendment immunity from suit in federal court. See Esposito, 2008 WL 3523910, at *12, 2008 U.S. Dist. LEXIS 61268, at *44 (citation omitted); see also Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993) ("[t]o the extent that a state official is sued for damages in his official capacity . . . the official is entitled to invoke the Eleventh Amendment immunity belonging to the state").
Courts have, however, recognized three exceptions to Eleventh Amendment immunity where: (1) the state has consented to suit; (2) the circumstances first recognized in Ex parte Young, 209 U.S. 123, 28 S. Ct. 441 (1908), under which a federal court can compel a state official to comply with federal law by employing prospective injunctive and declaratory relief, apply; or (3) Congress has abrogated the state's immunity. See S M Brands, Inc. v. Cooper, 527 F.3d 500, 507 (6th Cir. 2008). Here, it is not asserted that either the first or third exceptions are implicated, and no indication exists that a violation of a federal law has occurred. Therefore, granting the defendants' motion with respect to all claims for damages made against COPS, and the individual defendants, in their official capacities, is reasonable and appropriate.
Additionally, the claims for monetary relief made against Ochs, Gaynor, and Keniry are barred by the doctrine of quasi-judicial immunity. In Truong v. McGoldrick, Mac Truong ("Truong"), a disbarred attorney, sued the Departmental Disciplinary Committee, for the New York State Supreme Court, Appellate Division, First Department, along with the Committee chairman, and a Committee staff attorney ("Committee defendants"), alleging his constitutional rights to due process and religious freedom were violated and he was defamed. See Truong v. McGoldrick, No. 06 Civ. 1430, 2006 WL 1788960, 2006 U.S. Dist. LEXIS 44372 (S.D.N.Y. June 27, 2006). After noting that, "'if the relevant action is judicial in nature, the judge is immune [from suit] so long as [the judge's actions were] not taken in the complete absence of jurisdiction,'" id. at *3, 2006 U.S. Dist. LEXIS 44372, at *15 (quoting Huminski v. Corsones, 396 F.3d 53, 75 [2d Cir. 2005]), the court explained that "the Supreme Court has already characterized attorney disciplinary proceedings . . . as 'judicial in nature.'" Truong, id., 2006 U.S. Dist. LEXIS 44372, at *16 (quoting Middlesex County Ethics Comm. v. Garden State Bar Assoc., 457 U.S. 423, 433-34, 102 S. Ct. 2515, 2522). With respect to the Committee defendants, the court found:
"Under the doctrine of quasi-judicial immunity, absolute immunity extends to administrative officials performing discretionary acts of a judicial nature." Accordingly, quasi-judicial immunity bars plaintiff's monetary claims against [the] Committee chairman . . . and Committee staff attorney. . . . However, neither judicial immunity nor quasi-judicial immunity bars a claim for prospective injunctive relief.Truong, id. at *4, 2006 U.S. Dist. LEXIS 44372, at *17 (quotingSassower v. Mangano, 927 F. Supp. 113, 120 [S.D.N.Y. 1996] andPulliam v. Allen, 466 U.S. 522, 541-42, 104 S. Ct. 1970, 1981).
In the circumstance of the case at bar, the Court finds that granting the defendants' motion with respect to the claims asserted against Ochs, Gaynor, and Keniry, for monetary relief, for acts they took in connection with COPS, is appropriate, since such claims are barred by the doctrine of quasi-judicial immunity. Truong, id. The plaintiffs' request for prospective injunctive relief, however, is not barred. Id.
Res Judicata and Collateral Estoppel
"Under the doctrine of res judicata, or claim preclusion, [a] final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." St. Pierre v. Dyer, 208 F.3d 394, 399 (2d Cir. 2000) (quoting Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S. Ct. 2424, 2428) (internal quotation marks omitted).
"Whether or not the first judgment will have preclusive effect depends in part on whether the same transaction or connected series of transactions is at issue, whether the same evidence is needed to support both claims, and whether the facts essential to the second were present in the first." Prime Management Co., Inc. v. Steinegger, 904 F.2d 811, 816 (2d Cir. 1990) (internal quotations and citations omitted). "To ascertain whether two actions spring from the same transaction or claim, we look to whether the underlying facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations." Waldman v. Village of Kiryas Joel, 207 F.3d 105, 108 (2d Cir. 2000) (internal quotations and citations omitted). Fragmenting a claim to manufacture different actions and devising new legal theories under which the claim may be pursued, does not create a new claim and, thereby, defeat the doctrine of res judicata. See e.g., id., at 110 ("[A] plaintiff cannot avoid the effects of res judicata by 'splitting' his claim into various suits, based on different legal theories") (citation omitted).
"To prove the affirmative defense [of res judicata,] a party must show that (1) the previous action involved an adjudication on the merits; (2) the previous action involved the plaintiffs or those in privity with them; (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action." Monahan v. New York City Dep't of Corrections, 214 F.3d 275, 285 (2d Cir. 2000).
With respect to the plaintiffs' remaining claims, it is undisputed that the previous action, in state court, involved an adjudication on the merits, and that the state-court action involved Aretakis. Therefore, the doctrine of res judicata will bar Aretakis from prosecuting the remaining claims made in this action, if: (a) these claims arise from the same transaction(s) that gave rise to Aretakis' state-court claims, and, thus, were or could have been raised in the prior litigation; (b) "the same evidence is needed to support [the] claims[;] and [(c)] . . . facts essential to the second [action] were present in the first." Prime Management, 904 F.2d at 816. The Court is mindful that "[i]t is this identity of facts surrounding the occurrence which constitutes the cause of action, not the legal theory" upon which a litigant has chosen to frame a complaint. Woods v. Dunlop Tire Corp., 972 F.2d 36, 39 (2d Cir. 1992).
Here, the pertinent claims arise from the decision of the New York State Supreme Court, Appellate Division, Third Department, to suspend Aretakis' license to practice law, for one year. Therefore, of the remaining claims, Aretakis could have raised the following, in the state court: (1) his constitutional rights were violated, as a result of the investigation, "prosecution," and presentation of charges against him, for violating ethical obligations imposed on him by the Code; (2) the Code was applied to him so as to restrict his ability to "represent clients, freely associate with others and engage in free speech"; (3) the investigation and determination to bring charges against him, and the effect of various provisions of the Code, constituted "a form of prior restraint" on, and "tortious interference" with, his law practice; (4) the investigation and determination to bring charges against him violated §§ 1983 and 1988, and his constitutional rights; (5) he was prosecuted maliciously, and in bad faith; (6) the defendants inflicted emotional distress upon him intentionally; (7) he was investigated, and charges were brought against him, in bad faith, and with the intention to deny him his civil rights; and (8) the investigation and determination to bring charges against him were the product of negligence, as he was not treated reasonably and fairly. The Court finds that all these claims relate to the same transaction, or series of transactions. As a result, absent new factual allegations, that could not have been asserted in the earlier state-court litigation, the plaintiffs' assertion of new legal theories, under which Aretakis might be entitled to relief, does not shield the claims enumerated above, from dismissal, pursuant to the doctrine of res judicata.
In addition, the Court notes that, with respect to the plaintiffs' request for "Article 78 review," this request could have been made properly in state court. See CPLR Art. 78; see also Campo v. New York City Employees' Retirement System, 843 F.2d 96, 101-03 (2d Cir. 1988) (denying the plaintiff's federal claim, that she was denied due process by the state, since, "the State of New York, through Article 78, offered [the plaintiff] a due process hearing at a meaningful time and in a meaningful manner"). In any event, Gaynor's November 21 and December 1, 2008 letters provided the Appellate Division with three court decisions, and noted the decisions were being submitted based upon Aretakis' representation, at a hearing, that the defendants were obligated to provide copies of the decisions to the Appellate Division. As such, it appears that, not only could Aretakis have raised his claim via an Article 78 proceeding in state court, but, he also was provided a hearing, at which he could have raised any arguments pertaining to the three court decisions at issue.
IV. RECOMMENDATION
For the reasons set forth above, the defendants' motion to dismiss, Docket Entry No. 19, should be granted.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Richard M. Berman, 500 Pearl Street, Room 650, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Berman. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).