Opinion
22-CV-4676 (LGS) (JLC)
11-08-2023
JOHN J. OTROMPKE, J.D., Plaintiff, v. THE FIRST DEPARTMENT COMMITTEE ON CHARACTER AND FITNESS, et al., Defendants.
REPORT & RECOMMENDATION
JAMES L. COTT, United States Magistrate Judge.
To the Honorable Lorna G. Schofield, United States District Judge:
John J. Otrompke, J.D. (“Otrompke” or “plaintiff”), proceeding pro se, brings this action challenging certain New York State bar admission procedures against the following individuals in their official capacities: Rolando Acosta, former Presiding Justice of the Appellate Division of the Supreme Court of the New York First Department; John J. McAlary, Executive Director of the New York Board of Law Examiners; Robert Wolff, William Garcia, and Paul Hart, Commissioners of the First Department Committee on Character and Fitness (“Committee”); Committee Attorney Veronica Guerrero (“Guerrero”), in her individual and official capacities; and other unknown and unnamed members of the Committee (together “defendants”). Pending before the Court are defendants' motion to dismiss the Third Amended Complaint (“TAC”) pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, and plaintiff's motions for leave to amend the Third Amended Complaint, to file a sur-reply, and to supplement his opposition to defendants' motion to dismiss. For the reasons set forth below, defendants' motion should be granted, plaintiff's motions should be denied, and the Third Amended Complaint should be dismissed with prejudice.
Justice Acosta served as the Presiding Justice of the Appellate Division, First Department from 2017 until June 2023. Justices of the Court, App. Div., First Jud. Dep't, Sup. Ct. of the State of N.Y., https://perma.cc/W6K3-P2UV (last updated July 2019).
I. BACKGROUND
Familiarity with the prior proceedings in this case, including the Court's prior orders, is assumed. Additional information is included here to provide context for the pending motions.
The following facts are alleged in the Third Amended Complaint (Dkt. No. 39) and accepted as true for purposes of the pending motion. See, e.g., Smolen v. Wesley, No. 16-CV-2417 (KMK), 2019 WL 4727311, at *4 (S.D.N.Y. Sept. 25, 2019) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)).
Otrompke graduated from law school in 2000. TAC ¶ 28. In late 2000, he applied to the Illinois bar and when he was “called before the Committee on Character and Fitness . . . in Cook County, Illinois [(“Illinois Committee”)], [he] was afraid the [Illinois] Committee would discriminate against [him] as a political dissident who associated with anarchists.” Id. ¶ 29. Around this time, Otrompke hired a lawyer to help him prepare for his meeting with the Illinois Committee and, he claims that on advice of counsel, he lied to the Illinois Committee, violating the Illinois Rules of Professional Conduct, and was subsequently denied admission to the Illinois bar. Id. ¶¶ 32-37.
Otrompke also alleges that he associated with “some religious Pacifist anarchists” as recently as December 2021, “and would like to do so again.” TAC ¶ 30.
Following multiple legal challenges to his Illinois bar admission denial and separately against the Indiana Board of Law Examiners and the Indiana Attorney General, Otrompke took and passed the Uniform Bar Exam in New York in July 2017, and in June 2018, he passed the New York Law Exam. Id. ¶¶ 39-40. He then submitted his New York State bar application in July 2019. Id. ¶ 41. While this application was pending, he filed a federal action in this District challenging the bar admission process, which Judge Stanton dismissed for lack of standing because “the Committee had not received all of the documents for his bar application” at the time of filing. Id. ¶ 2 (citing Otrompke v. First Dep't Comm. on Character & Fitness, No. 20-CV-3839 (LLS), 2020 WL 4287991, at *3 (S.D.N.Y. July 23, 2020), aff'd sub nom. Otrompke v. The First Dep't Comm. on Character & Fitness, No. 20-4107, 2021 WL 5764221 (2d Cir. Dec. 6, 2021)).
See Otrompke v. Chairman of the Comm. on Character & Fitness for the First Jud. Dist. of Ill., No. 03-C-7198, 2005 WL 3050618, at *2 (N.D. Ill. Nov. 7, 2005) (summary judgment granted against Otrompke on Eleventh Amendment and claim preclusion grounds); Otrompke v. Hill, 28 F.Supp.3d 772, 781 (N.D. Ill.) (granting motion to dismiss against Otrompke for failure to state a claim), aff'd, 592 Fed.Appx. 495, 497 (7th Cir. 2014); see also Otrompke v. Skolnik, No. 14-CV-296 (REM) (JEM), 2015 WL 4470673 (N.D. Ind. July 21, 2015), aff'd, 826 F.3d 999 (7th Cir. 2016) (affirming dismissal on standing grounds because Otrompke had not filed Indiana bar application).
Otrompke submitted a completed bar application on June 30, 2021, TAC ¶ 3, and on November 3, 2021, “received an email informing him that [defendant] Robert Wolff, an official interviewer with the Committee, had recommended further review of his bar application.” Id. ¶ 4. On January 28, 2022, Otrompke received a Notice of Hearing from defendant Guerrero, the Committee's attorney, informing him that a hearing on his application would be conducted before three members of the Committee by videoconference on April 5, 2022. Id. ¶ 5. He was also informed that the Committee intended to ask him about his efforts to repay back taxes that he owed, and for which he had hired counsel to help him negotiate repayment terms in May 2022. Id. ¶¶ 6-7.
As of the date of this Report and Recommendation, there is nothing in the record to establish that Otrompke has attended a hearing on his application. In the Third Amended Complaint, Otrompke alleges only that “if the . . . [C]ourt[] rule[s] that [he] must participate in a state court or Committee proceeding to get a New York attorney's license,” he will do so. Id. ¶ 17. Nonetheless, he alleges that certain New York State procedures governing bar admission-such as the interview by members of the Committee on Character and Fitness-are unconstitutional and he fears unfavorable treatment by the Committee. Id. ¶¶ 56-57, 59, 63.
Otrompke brings facial and as-applied challenges to Section 90 of the New York State Judiciary Law, and other state statutes governing New York bar admissions, under the Privileges and Immunities Clause of Article IV, Section 2; the First, Fifth, and Fourteenth Amendments; and the Ex Post Facto and Bill of Attainder clauses of the United States Constitution. Id. at 1, 10. He also brings claims against Guerrero, in her individual and official capacities, pursuant to 42 U.S.C § 1983. Id. ¶¶ 5-6, 18-23, 51. Otrompke seeks nominal and other damages, including filing fees and court costs. Id. at 10.
The only reference to Section 1983 in the Third Amended Complaint appears on the first page as a heading. TAC at 1. Otrompke does, however, elaborate on his Section 1983 claim against Guerrero in his opposition to the motion to dismiss. See Pl. Mem. at 40-41.
B. Procedural History
Otrompke brought this action pro se on June 3, 2022. Dkt. No. 2. On July 11, 2022, Chief Judge Swain dismissed the original complaint and judgment was entered. Order of Dismissal (“July 2022 Order”), Dkt. No. 6; Civil Judgment, Dkt. No. 7. Otrompke then moved for relief from final judgment under Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure, Dkt. Nos. 8-14, and for reconsideration. Dkt. Nos. 17-20. On October 17, 2022, Chief Judge Swain granted plaintiff's motion, vacating the July 2022 Order and Judgment, and allowing Otrompke to replead his claims. Dkt. No. 21. Plaintiff filed the First Amended Complaint on November 15, 2022. Dkt. No. 27. He then filed a motion to amend the First Amended Complaint on November 23, 2022, Dkt. No. 28, and before a decision was made on a proposed Second Amended Complaint, he moved to file the Third Amended Complaint on January 12, 2023. Dkt. No. 31. The Court granted Otrompke's motion to file the Third Amended Complaint on March 6, 2023. Dkt. No. 38. The case was referred to me for general pretrial supervision and for dispositive motions on June 2, 2023. Dkt. No. 72.
On June 19, 2023, Otrompke again moved to amend the complaint to add a defendant, First Department Presiding Justice Dianne T. Renwick, and four paragraphs describing recent injuries and occurrences, Dkt. Nos. 81 & 81-1 (revised proposed amended complaint), which the Court took under advisement in an Order dated June 22, 2023. Dkt. No. 84. On June 28, 2023, defendants moved to dismiss the Third Amended Complaint. Notice of Motion, Dkt. No. 88; Memorandum of Law in Support of Defendants' Motion to Dismiss (“Defs. Mem.”), Dkt. No. 89. Plaintiff filed an opposition (“Pl. Mem.”) on July 20, 2023. Dkt. No. 96. Defendants filed their reply papers (“Defs. Reply”) on August 17, 2023. Dkt. No. 105. On August 18 and September 25, 2023, Otrompke moved to file a sur-reply (“Pl. Sur-Reply”) without court authorization, and to supplement his opposition, respectively. Dkt. Nos. 106-07.
Justice Renwick is now the Presiding Justice of the Appellate Division, First Department as of June 2023. Justices of the Court, App. Div., First Jud. Dep't, Sup. Ct. of the State of N.Y., https://perma.cc/JX65-PFJA (last updated Sept. 5, 2023).
The Court gave plaintiff permission to file an opposition brief of up to 35 pages (Dkt. No. 95) and he nonetheless filed a 41-page brief.
While sur-replies and supplements are not permitted without court authorization, and thus motions to file them should otherwise be denied, see, e.g., Preston Hollow Cap. LLC v. Nuveen Asset Mgmt. LLC, 343 F.R.D. 460, 466 (S.D.N.Y. 2023) (collecting cases), the Court has nonetheless considered Otrompke's sur-reply and his motion to supplement because he is pro se and concludes they do not add anything to change the recommended outcome.
II. DISCUSSION
A. Legal Standards
1. Subject Matter Jurisdiction Under Rule 12(b)(1)
“Federal courts are courts of limited jurisdiction, and Rule 12(b)(1) requires dismissal of an action ‘when the district court lacks the statutory or constitutional power to adjudicate it.'” Schwartz v. Hitrons Sols., Inc., 397 F.Supp.3d 357, 364 (S.D.N.Y. 2019) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). “The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence.” Mantena v. Johnson, 809 F.3d 721, 727 (2d Cir. 2015) (quoting Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2012)).
When deciding a motion to dismiss under Rule 12(b)(1) at the pleading stage, “the district court must take all uncontroverted facts in the complaint . . . as true[] and draw all reasonable inferences in favor of the party asserting jurisdiction.” Parker Madison Partners v. Airbnb, Inc., 283 F.Supp.3d 174, 178 (S.D.N.Y. 2017) (emphasis added) (ellipsis in original) (quoting Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014)). “However, ‘jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.'” Id. (quoting Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008)).
“A motion to dismiss for lack of Article III standing challenges the subject matter jurisdiction of a federal court and, accordingly, is properly brought under Fed.R.Civ.P. 12(b)(1).” SM Kids, LLC v. Google LLC, 963 F.3d 206, 210 (2d Cir. 2020) (citing Carter v. Health Port Techs. LLC, 822 F.3d 47, 56 (2d Cir. 2016)). When a defendant moves for dismissal under Rule 12(b)(1) in addition to other grounds, “the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined.” Saint- Armour v. Richmond Org., Inc., 388 F.Supp.3d 277, 286 (S.D.N.Y. 2019). “In resolving a motion to dismiss for lack of subject matter jurisdiction . . ., a district court may [also] refer to evidence outside the pleadings.” Shulman v. Chaitman LLP, 392 F.Supp.3d 340, 350 (S.D.N.Y. 2019) (quoting Cortlandt St. Recovery Corp. v. Hellas Telecomm., S.a.r.l., 790 F.3d 411, 419 n.5 (2d Cir. 2015)). Dismissals based solely on subject matter jurisdiction grounds must be “without prejudice” as a matter of law. See, e.g., Green v. Dep't of Educ. of Cty. of N.Y., 16 F.4th 1070, 1074 (2d Cir. 2021).
2. Failure to State a Claim Under Rule 12(b)(6)
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint may be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion, a plaintiff must plead facts in his complaint that “state a claim to relief that is plausible on its face” and that satisfy Federal Rule of Civil Procedure 8(a)(2). Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Rule 8(a)(2) requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Id. at 677-78 (quoting Fed.R.Civ.P. 8(a)(2)). A claim is facially plausible 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. at 678 (citing Twombly, 550 U.S. at 556).
Nevertheless, this standard requires a plaintiff to sufficiently “nudge his claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. “[A] plaintiff's obligation to provide the grounds of [his] entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555 (cleaned up). Therefore, “[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679; see also Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007) (complaint insufficient when lacking factual allegations necessary “to give the defendant fair notice of what the claim is and the grounds upon which it rests”).
In deciding a Rule 12(b)(6) motion, a court may consider matters of which judicial notice may be taken under Rule 201 of the Federal Rules of Evidence. See, e.g., Kramer v. Time Warner, Inc., 937 F.2d 767, 773-75 (2d Cir. 1991). Such matters include documents that are “publicly available” and whose “accuracy cannot reasonably be questioned.” Apotex, Inc. v. Acorda Therapeutics, Inc., 823 F.3d 51, 60 (2d Cir. 2016).
Notably, unlike subject matter jurisdiction dismissals, dismissals for failure to state a claim are considered to be “with prejudice.” See, e.g., Lynch v. Hanley, No. 21-CV-25 (GTS) (ML), 2021 WL 2309688, at *2 n.4 (N.D.N.Y. June 7, 2021) (collecting cases and holding that dismissal for failure to state a claim viewed as adjudication “on the merits,” and thus dismissal “with prejudice” appropriate).
3. Standards for Pro Se Plaintiffs
A complaint filed by a pro se plaintiff “is to be liberally construed and . . . must be held to less stringent standards than formal pleadings drafted by lawyers.” Bennett v. City of New York, 425 Fed.Appx. 79, 80 (2d Cir. 2011) (cleaned up). Accordingly, pleadings of a pro se party should be read “to raise the strongest arguments they suggest.” Kevilly v. New York, 410 Fed.Appx. 371, 374 (2d Cir. 2010) (cleaned up). The Court may also consider allegations that appear in a pro se plaintiff's opposition papers or other submissions to the Court. See e.g., Henning v. N.Y.C. Dep't of Corr., No. 14-CV-9798 (JPO), 2016 WL 297725, at *3 (S.D.N.Y. Jan. 22, 2016) (“Although this allegation appears in his opposition papers, the Court -consistent with its duty to liberally construe pro se pleadings - will credit Plaintiff's assertion in evaluating the sufficiency of his complaint.”).
Nevertheless, “dismissal of a pro se complaint is appropriate where a plaintiff fails to state a plausible claim supported by more than conclusory factual allegations.” Jones v. City of New York, No. 18-CV-1937 (VSB), 2020 WL 1644009, at *5 (S.D.N.Y. Apr. 2, 2020) (citing Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013)). Even a pro se plaintiff's complaint “must contain factual allegations that sufficiently raise a right to relief above the speculative level.” Ole v. Sauer, No. 19-CV-8865 (NSR), 2022 WL 1204862, at *3 (S.D.N.Y. Apr. 22, 2022) (cleaned up). “[T]he court's duty to construe the complaint liberally is not the equivalent of a duty to re-write it.” Id. (cleaned up). Moreover, the degree of solicitude afforded to a pro se plaintiff “may be lessened where the particular pro se litigant is experienced in litigation and familiar with the procedural setting presented.” Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010) (citation omitted).
B. Analysis
Defendants argue that plaintiff's Third Amended Complaint should be dismissed because (1) plaintiff lacks standing as he has not completed his application process or received a determination as to his admission to the bar; (2) the court lacks jurisdiction under the Younger abstention doctrine; (3) the named defendants are immune from suit under the Eleventh Amendment and the judicial immunity doctrine; and (4) plaintiff fails to state a plausible claim. Defs. Mem. at 2, 6-15. Otrompke counters, inter alia, that (1) he has standing because the injury has “already occurred”; (2) abstention is improper; (3) his suit is not precluded by the Eleventh Amendment or the judicial immunity doctrine; and (4) he has sufficiently stated a claim that the New York State bar procedures are facially unconstitutional. Pl. Mem. at 11-41. For the reasons discussed below, while the Court would ordinarily recommend dismissal without prejudice based on lack of subject-matter jurisdiction, because plaintiff has failed to state a claim, and because additional pleading will be futile, the Court recommends dismissing the Third Amended Complaint with prejudice.
1. Otrompke Lacks Article III Standing
“Article III, Section 2 of the Constitution limits the subject-matter jurisdiction of the federal courts to ‘Cases' and ‘Controversies.'” SM Kids, LLC, 963 F.3d at 211 (citing Dhinsa v. Krueger, 917 F.3d 70, 77 (2d Cir. 2019)). “The standing doctrine, which emerges from Article III, is designed ‘to ensure that federal courts do not exceed their authority as it has been traditionally understood.'” Id. (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)). “The doctrine imposes three requirements: ‘[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.'” Id. (quoting Spokeo, 578 U.S. at 338).
Defendants argue that, as both Judge Stanton and Chief Judge Swain held in their decisions, plaintiff continues to lack standing to bring this lawsuit because he has not yet completed the bar application process. Defs. Mem. at 6-9. As defendants observe, Otrompke does not dispute the fact that he has yet to complete the bar application process and has not yet received a final determination on his bar application. Id. at 7 (citing TAC ¶¶ 26-27). Defendants thus argue that he has suffered no injury in fact and the Third Amended Complaint should be dismissed. Id. at 8-9. Otrompke counters that he has standing because (1) he was injured by the delay between when he first submitted his bar application and when he was offered a hearing; (2) the rules were promulgated by defendants (and thus “traceable” to them); and (3) defendants were “responsible for the delay.” Pl. Mem. at 11-12 (citations omitted). For the following reasons, the Court agrees with defendants.
“To establish injury in fact, a plaintiff must show that he . . . suffered ‘an invasion of a legally protected interest' that is ‘concrete and particularized' and ‘actual or imminent, not conjectural or hypothetical.'” Spokeo, 578 U.S. at 339 (2016) (emphasis added) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Here, however, plaintiff's claims are purely hypothetical-indeed, as he admits, his injuries are “not certain.” Pl. Mem. at 14. As plaintiff alleges in the Third Amended Complaint, he “fears that the Committee will require him to prove ... that he does not suffer from ... ‘alcoholism'” and ‘fear[s] not only explicit disfavorable treatment by the Committee, but also covert, or sub rosa, discrimination ....” TAC ¶¶ 12, 63 (emphasis added). In so pleading, plaintiff asks the Court to accept his assessment that he might be injured or discriminated against at some point in the future by possibly being denied membership to the bar. “That conclusion, however, involves a significant degree of guesswork,” Trump v. New York, 141 S.Ct. 530, 536 (2020) (per curiam), which is insufficient to establish standing. See, e.g., Clapper v. Amnesty Int'l USA, 568 U.S. 398, 414 (2013) (“We decline to abandon our usual reluctance to endorse standing theories that rest on speculation”).
Moreover, plaintiff's arguments that he was injured by the delay in scheduling a hearing are unpersuasive. Otrompke alleges that he was injured by the 25 months between June 2021 (when he filed his application) and July 2023 (when he filed his opposition). Pl. Mem. at 12. However, this timeline is both misleading and inaccurate as there were approximately only five months between when he submitted his application and when he was first informed that the Committee recommended further review of his application, TAC ¶¶ 3-4, approximately seven months between submitting his application and the notice of a hearing, and nine months between submitting his application and the originally scheduled date of the hearing. Id. ¶ 5. Since then, any further delay (and any alleged injuries stemming from that further delay) is (and are) attributable to Otrompke as he declined to sit for the hearing.
For these reasons, plaintiff has failed to meet his burden and his Third Amended Complaint should be dismissed on standing grounds.
2. The Court Should Abstain Under Younger
Having determined that plaintiff lacks standing, the Court need not address the parties' abstention arguments (and the other grounds defendants have advanced in favor of dismissal) but will do so in this Report for completeness.
Under Younger v. Harris, 401 U.S. 37, 43-44 (1971), federal courts are required to abstain from asserting jurisdiction over federal constitutional claims that “undu[ly] interfere[]” with ongoing state proceedings. See, e.g., Sprint Commc'ns, Inc. v. Jacobs (“Sprint”), 571 U.S. 69, 72 (2013) (citation omitted). This does not mean, however, that federal courts should abstain merely because there is a pending court action involving the same subject matter. Id. (citation omitted). Rather, abstention under Younger is required only in “exceptional circumstances”- i.e., in three types of proceedings: “ongoing state criminal prosecutions,” “civil enforcement proceedings” (including, “state civil proceedings . . . akin to criminal prosecutions”), and “civil proceedings involving certain orders that are uniquely in furtherance of the state courts' ability to perform their judicial functions.” Id. at 77-78 (quoting New Orleans Pub. Serv., Inc. v. Council of Cty. of New Orleans (“NOPSI”), 491 U.S. 350, 368 (1989)).
Here, defendants argue the Court should abstain under Younger, as there is an ongoing state proceeding that concerns plaintiff's pending bar admission. See Defs. Mem. at 9-10. Otrompke counters, citing Sprint, that neither the Younger abstention doctrine nor any other abstention doctrine applies because there is “no interference with complex state regulations.” Pl. Mem. at 10. Plaintiff's interpretation of Younger, however, is too broad. While abstention is not required whenever there is an ongoing state proceeding, as Chief Judge Swain noted in her July 2022 Order, courts in this Circuit have considered challenges to state bar admissions to fall “within the third exceptional class of proceedings because an important state interest in the oversight of the legal profession is implicated: an attorney admitted to the state bar is an officer of the court.” July 2022 Order, 2022 WL 2704250 at *5 (first citing Grundstein v. Kasper, No. 5:17-CV-75, 2017 WL 11504217, at *3 (D. Vt. Dec. 20, 2017) (internal quotations omitted), aff'd sub nom, Grundstein v. Vt. Bd. of Bar Exam'rs, 748 Fed.Appx. 425 (2d Cir. 2019); then citing Wilson v. Emond, 373 Fed.Appx. 98, 100 (2d Cir. 2010) (pre-Sprint case affirming dismissal of action challenging denial of bar application on Younger abstention grounds)). Further, as plaintiff does not allege any new facts that would warrant an exception to the Younger doctrine (i.e., bad faith or extraordinary circumstances, see, e.g., Diamond “D” Const. Corp. v. McGowan, 282 F.3d 191 (2d Cir. 2002)), there is no reason not to abstain here.
Accordingly, Younger abstention is warranted and provides a separate ground for dismissal.
Otrompke further argues that abstention is unwarranted under Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941); Burford v. Sun Oil Co., 319 U.S. 315 (1943); and Colorado River v. Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). See Pl. Mem. at 31-35. However, as the Court is recommending dismissal on Younger abstention grounds, it need not reach these other abstention arguments.
3. Otrompke's Claims Are Barred by the Eleventh Amendment and Judicial Immunity Doctrines
The Third Amended Complaint names each defendant in their official capacities, except for Veronica Guerrero, who is named in both her official and individual capacities. Defendants argue that the Eleventh Amendment bars all of plaintiff's claims against defendants in their official capacities, and that claims against Guerrero in her individual capacity are barred by the judicial immunity doctrine. Defs. Mem. at 10-11; Defs. Reply at 7-9. Otrompke responds that under Ex parte Young, 209 U.S. 123 (1908), defendants are not immune from suit in their official capacities and that Guerrero is similarly not immune from his Section 1983 claim against her. Pl. Mem. at 40-41; Pl. Sur-Reply at 2-3. For the following reasons, plaintiff's claims against defendants in their official capacities are barred by the Eleventh Amendment and his claim against Guerrero in her individual capacity is similarly barred by the judicial immunity doctrine.
a. The Eleventh Amendment Bars Plaintiff's Claims Against State Officials In Their Official Capacities
While states are generally immune from suit under the Eleventh Amendment and the doctrine of sovereign immunity, the “narrow exception” in Ex parte Young “allows certain private parties to seek judicial orders in federal court preventing state executive officials from enforcing state laws that are contrary to federal law.” Whole Woman's Health v. Jackson, 595 U.S. 30, 39 (2021) (first citing Alden v. Maine, 527 U.S. 706, 713 (1999); then citing Ex parte Young, 209 U.S. at 159-60)). This exception, however, “does not normally permit federal courts to issue injunctions against state-court judges or clerks” as “those individuals do not enforce state laws as executive officials might ....” Id.; see M.M. v. N.Y. State Ct. of Appeals, No. 21-2924, 2022 WL 1565694, at *2 (2d Cir. May 18, 2022) (post-Whole Women's Health, affirming dismissal of complaint against judicial officers in attorney disciplinary action, noting that while Ex parte Young exception permits suits against state officials, “a Young suit may not be brought even against individual state-court officials” (emphasis added)); see also T.W. v. N.Y. State Bd. of L. Exam'rs, 996 F.3d 87, 101-02 (2d Cir. 2021) (pre-Whole Women's Health, holding board of law examiners was operation of New York Court of Appeals and thus did not waive immunity); T.W. v. N.Y. State Bd. of L. Exam'rs; No. 16-CV-3029 (RJD) (MMH), 2022 WL 2819092, at *8 (E.D.N.Y. July 19, 2022) (on remand, dismissing plaintiff's complaint against board of law examiners and board member defendants on Eleventh Amendment grounds).
Here, it is undisputed that all defendants in this suit-including Guerrero- are named in their official capacities as (1) First Department, Appellate Division justices, in the case of Acosta and Renwick; (2) Executive Director of the New York Board of Law Examiners (a unit of the New York Court of Appeals and the Committee), in the case of McAlary; (3) members of the Committee (a unit of the New York Appellate Division, First Department), in the case of Wolff, Garcia, and Hart; and (4) counsel for the Committee, in the case of Guerrero. Defs. Mem. at 11 (first citing N.Y. Jud. Law §§ 53, 56, 90(1)(c); then citing N.Y. R. of App. Div., 1st Dep't § 602.1(b)); Defs. Reply at 7 (citing same); see also TAC at 1 (listing defendants' roles as state court officials). Accordingly, these defendants are entitled to Eleventh Amendment immunity and the claims against them should be dismissed on this ground as well.
b. Otrompke's Claim Against Guerrero in her Individual Capacity Is Barred By the Judicial Immunity Doctrine
Otrompke brings a separate claim against Guerrero in her individual capacity. Defendants argue that Guerrero is protected by quasi-judicial immunity and that, as a threshold matter, Otrompke fails to allege how Guerrero personally violated his constitutional rights, which is a requirement for the nominal damages plaintiff seeks against her pursuant to 42 U.S.C. § 1983. Defs. Mem. at 11-12 (citing Spavone v. N.Y. State Dep't of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013)); Defs. Reply at 8. By contrast, plaintiff's only argument against Guerrero “is that she took too long in scheduling [his] hearing, and that she knew or should have known” that the hearing process was unconstitutional. Pl. Mem. at 40. Based on Otrompke's concessions (discussed below), Guerrero is entitled to quasi-judicial immunity.
As defendants observe, suits brought against state officials in their personal or individual capacities “seek to impose individual liability upon a government officer for actions taken under color of state law.” Defs. Mem. at 11 (quoting Hafer v. Melo, 502 U.S. 21, 25 (1991)). The Second Circuit has long held that “[g]overnment officials who ‘perform functions closely associated with the judicial process,' including ‘prosecutors, administrative law judges and hearing examiners,' are entitled to absolute immunity for acts taken pursuant to their office.” Finn v. Anderson, 592 Fed.Appx. 16, 18-19 (2d Cir. 2014) (quoting Oliva v. Heller, 839 F.2d 37, 39 (2d Cir.1988)). “A defendant entitled to quasi-judicial immunity loses that privilege only if she acts “in the clear absence of all jurisdiction.” Id. at 19 (quoting Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (internal quotation marks omitted)).
Despite his allegations in the Third Amended Complaint that Guerrero “should have known” her conduct was allegedly unconstitutional, Otrompke concedes that he alleged no facts suggesting Guerrero personally acted with an improper motive. See Pl. Mem. at 40. Since “personal involvement” is a requirement for a damages award under Section 1983, and Otrompke does not allege that Guerrero ever acted “in the clear absence of jurisdiction” in scheduling his hearing, plaintiff has failed to state a claim against Guerrero and his Section 1983 claim against her should be dismissed.
4. Because Otrompke Has Failed to State Plausible Claims Under Section 1983, the Third Amended Complaint Should be Dismissed with Prejudice
Defendants argue that, even taking plaintiff's allegations as true, the Third Amended Complaint must still be dismissed as Otrompke has failed to state a claim under 42 U.S.C. § 1983. Defs. Mem. at 12-14; Defs. Reply at 9-10. Plaintiff argues that the Third Amended Complaint should not be dismissed, and in the alternative, he should be given leave to amend yet again. Pl. Mem. at 41; see also Dkt. No. 81. Although it need not address the merits given its recommended dismissal on jurisdictional grounds, the Court will briefly consider the parties' Rule 12(b)(6) arguments, as the repeated pleading deficiencies warrant a dismissal of the Third Amended Complaint with prejudice.
As discussed above, to survive a Rule 12(b)(6) motion, a plaintiff must plead facts “that allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged[]” and that sufficiently “nudges [his] claims across the line from conceivable to plausible.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570). Such is not the case here. To the contrary, plaintiff's claims range from speculative to conclusory, but in all events are not cognizable. For example, he alleges a fear of future discrimination based on “the information and belief” that “the character and fitness [process]” “dangerous[ly]” and “insidious[ly]” changed because defendants “attempted to consolidate more tyrannical power, and began to impose on applicants the burden of proving their moral qualifications by clear and convincing evidence.” TAC ¶ 57. However, as defendants point out, it has been long recognized that the applicant bears the burden of establishing good moral character for the bar, in part because the applicant is more likely to have relevant facts at hand. See Defs. Reply at 13-14 (first quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 40-41 (1961); then citing In re Willis, 288 N.C. 1, 15 (1975)). Otrompke has thus failed to plausibly allege a violation of a constitutional right.
Beyond this failure, Otrompke has also failed to plead his Section 1983 claims, as he alleged no facts suggesting Guerrero personally acted with an improper motive. Further, Otrompke fails to establish a Section 1983 claim against defendants because “a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office .... neither a State nor its officials acting in their official capacities are ‘persons' under § 1983.” Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (emphasis added). Accordingly, as plaintiff has not alleged that any cognizable “person” acted under color of state law, the Third Amended Complaint should be dismissed for failure to state a claim.
5. Granting Otrompke Further Leave to Amend Would Be Futile
Finally, because Otrompke has failed to state a plausible claim on which relief can be granted, and because his proposed change to add Justice Renwick as a defendant and to allege more recent injuries would not cure the defects in his pleading, granting him further leave to amend would be futile. See, e.g., Gilot v. Act Blue, No. 19-CV-11256 (CM), 2020 WL 247960, at *2 (S.D.N.Y. Jan. 16, 2020) (“District courts generally grant a pro se plaintiff an opportunity to amend a complaint to cure its defects[] but leave to amend is not required where it would be futile.”). Over the course of multiple lawsuits in different states and in this District, and now in the three pleadings in this case, plaintiff has failed to sufficiently “nudge [his] claims across the line from conceivable to plausible.” Iqbal, 556 U.S. at 678 (citations omitted). In the Third Amended Complaint, Otrompke adds ten additional paragraphs of material, none of which further allege injury in fact or state a cognizable claim. See TAC ¶¶ 55-64. Rather, these paragraphs include, inter alia, information regarding the amount owed on his federally guaranteed student loans at the time of his law school graduation, id. ¶ 44, clarification of the timeline of his second challenge to the Illinois rule in 2014, id. ¶ 58, and a claim that the character and fitness process “changed in a dangerous, quietly insidious, and flagrantly [u]nconstitutional way.” Id. ¶ 57. And while plaintiff lists some of the hardships he has experienced since the present suit, see, e.g., Proposed Fourth Amended Complaint (“PFAC”) ¶¶ 65-68, Dkt. No. 81-1, these injuries are attributable only to his delay, rather than to Guerrero's or another defendant's conduct. Moreover, Otrompke continues to allege his speculative fears of discrimination in each pleading, despite multiple court orders dismissing his claims on just that basis. Otrompke claims that, should he be granted leave to amend again, it would be to add Presiding Justice Renwick, see Plaintiff's Motion to File an Amended Complaint ¶ 1, Dkt. No. 81; PFAC at 1, who, as discussed, would be immune from suit.
Accordingly, because the defects in plaintiff's Third Amended Complaint cannot be cured with further amendment, and in light of his pleading history, the Court should decline to grant him leave to further amend.
III. CONCLUSION
For the foregoing reasons, defendants' motion to dismiss should be granted; plaintiff's motions to amend, to file a sur-reply, and to supplement his opposition, should all be denied; and the Third Amended Complaint should be dismissed with prejudice.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections (plus three days because the Report is being mailed to Plaintiff). See Fed.R.Civ.P. 6(a), (b), (d). 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 Lorna G. Schofield, United States Courthouse, 40 Foley Street, New York, New York 10007-1312. Any requests for an extension of time for filing objections must be directed to Judge Schofield.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).