Filed: Feb. 08, 2010
Latest Update: Mar. 02, 2020
Summary: 08-4732-cv Peterec-Tolino v. The State of New York UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTA
Summary: 08-4732-cv Peterec-Tolino v. The State of New York UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTAT..
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08-4732-cv
Peterec-Tolino v. The State of New York
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 8 th day of February, two thousand ten.
5
6 PRESENT:
7 GERARD E. LYNCH,
8 Circuit Judges,
9 TIMOTHY C. STANCEU,*
10 Judge, U.S. Court of International Trade.**
11 _____________________________________
12
13 John L. Peterec-Tolino,
14
15 Plaintiff-Appellant,
16
17 v. 08-4732-cv
18
19 The State of New York, et al.,
20
21 Defendants-Appellees.
22 ______________________________________
23
24
*
The Honorable Timothy C. Stanceu, of the United States
Court of International Trade, sitting by designation.
**
Judge Robert A. Katzmann, originally a member of this
panel, recused himself from this case. The remaining two
members of the panel, who are in agreement, decide this case
in accordance with Second Circuit Internal Operating
Procedure (“IOP”) E.
1 FOR APPELLANT: John L. Peterec-Tolino, pro se, Rock
2 Hill, New York.
3
4 FOR APPELLEES: No appearance.
5
6
7 Appeal from orders of the United States District Court
8 for the Southern District of New York (Scheindlin, J.).
9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
10 AND DECREED that the orders of the district court are
11 AFFIRMED.
12 Appellant John L. Peterec-Tolino, pro se, appeals an
13 order of the district court sua sponte dismissing his
14 complaint brought pursuant to 42 U.S.C. § 1983 and the
15 Racketeer Influenced and Corrupt Organizations Act (“RICO”),
16 and an order denying his motion for reconsideration. We
17 assume the parties’ familiarity with the underlying facts,
18 the procedural history of the case, and the issues on
19 appeal.
20 This Court reviews a district court’s dismissal of a
21 complaint pursuant to Fed. R. Civ. P. 12(b)(6) de novo,
22 “construing the complaint liberally, accepting all factual
23 allegations in the complaint as true, and drawing all
24 reasonable inferences in the plaintiff’s favor.” Chambers
25 v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).
2
1 Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), a complaint may
2 be dismissed “at any time” if the court determines that the
3 action fails to state a claim on which relief may be
4 granted. While we understand why Appellant might feel
5 aggrieved at the district court’s dismissal of his complaint
6 sua sponte without awaiting the defendants’ response, such
7 an action is permissible if the complaint fails to state a
8 claim for relief. See McEachin v. McGuinnis, 357 F.3d 197,
9 201 (2d Cir. 2004).
10 A complaint must plead “enough facts to state a claim
11 to relief that is plausible on its face.” Bell Atlantic
12 Corp. v. Twombly,
550 U.S. 544, 570 (2007). A claim has
13 facial plausibility “when the plaintiff pleads factual
14 content that allows the court to draw the reasonable
15 inference that the defendant is liable for the misconduct
16 alleged.”
Id. In the case of a pro se complaint, a court
17 must construe the complaint liberally, see Harris v. Mills,
18
572 F.3d 66, 72 (2d Cir. 2009), and should not dismiss it
19 without granting the plaintiff leave to amend “at least once
20 when a liberal reading of the complaint gives any indication
21 that a valid claim might be stated.” Gomez v. USAA Fed.
22 Sav. Bank,
171 F.3d 794, 795 (2d Cir. 1999). When a
3
1 complaint is dismissed prior to the service of process and
2 the defendants’ answers, the issue is whether the plaintiff
3 is entitled to offer evidence to support his claims. See
4 McEachin, 357 F.3d at 201.
5 To establish a claim pursuant to 42 U.S.C. § 1983, a
6 plaintiff must show that the defendants, acting under the
7 color of state law, deprived him of a constitutional or
8 federal statutory right. See Rodriguez v. Phillips,
66 F.3d
9 470, 473 (2d Cir. 1995). Here, Appellant has abandoned his
10 claims against the State of New York, conceding at oral
11 argument that such claims are barred by the Eleventh
12 Amendment. Appellant’s § 1983 claims against the Office of
13 Court Administration of the Unified Court System were
14 properly dismissed because these claims against an arm of
15 the State of New York are equally proscribed by the Eleventh
16 Amendment. See Pennhurst State School & Hosp. v. Halderman,
17
465 U.S. 89, 100 (1984). Appellant’s § 1983 claims against
18 Jeffrey S. Eisenberg and against Eisenberg and Associates
19 were properly dismissed because these defendants are private
20 actors who cannot be sued under § 1983. See American Mfrs.
21 Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 49-50 (1999) (§ 1983
22 actions do not reach purely private conduct).
4
1 Appellant’s § 1983 claims against the employees of the
2 Departmental Disciplinary Committee of the Unified Court
3 System (“DDC”) were properly dismissed because Appellant has
4 no legally cognizable interest in attorney disciplinary
5 proceedings. See Application of Phillips, 510 F.2d 126, 126
6 (2d Cir. 1975) (per curiam). In other words, even if
7 Appellant’s allegations of misconduct on the part of DDC
8 employees were not largely speculative, any failure on the
9 part of public officials entrusted with the task of attorney
10 discipline to pursue valid cases does not violate any
11 constitutional rights of complainants.
Id. Moreover,
12 Appellant failed to show his entitlement to prospective
13 injunctive relief, pursuant to Ex Parte Young,
209 U.S. 123,
14 155-56 (1908), because his complaint did not allege any
15 ongoing violation of federal law. See State Employee
16 Bargaining Agent Coalition v. Rowland,
494 F.3d 71, 95 (2d
17 Cir. 2007).
18 The district court also properly dismissed Appellant’s
19 civil RICO claims because Appellant’s complaint did not
20 plead sufficient facts to sustain a claim that the
21 defendants were engaged in an “enterprise” pursuant to RICO,
22 i.e., that they were associated with one another for a
5
1 common purpose. See First Capital Asset Management, Inc. V.
2 Satinwood, Inc., 385 F.3d 159, 173 (2d Cir. 2004).
3 Because all the federal claims were properly dismissed,
4 the district court did not abuse its discretion in declining
5 to exercise supplemental jurisdiction over Appellant’s state
6 law claims against Eisenberg and his law firm. See
7 Travelers Ins. Co. v. Keeling,
996 F.3d 1485, 1490 (2d Cir.
8 1993). Because Peterec-Tolino did not identify any facts or
9 law that the district court overlooked in its dismissal of
10 his complaint, the district court did not abuse its
11 discretion in denying Appellant’s motion for
12 reconsideration. See Transaero, Inc. v. La Fuerza Aerea
13 Boliviana,
162 F.3d 724, 729 (2d Cir. 1998).
14 Finally, while leave to amend a complaint ordinarily
15 should be freely given, Ellis v. Chao,
336 F.3d 114, 127 (2d
16 Cir. 2003), particularly when dismissing a pro se complaint
17 sua sponte, we conclude that the district court did not
18 abuse its discretion in dismissing the case sua sponte
19 without leave to amend. Any amendment would be futile
20 because Peterec-Tolino simply cannot sue the defendants in
21 federal court for the federal claims discussed above, and
22 has not alleged or suggested that he could allege any other
6
1 facts that would establish that he suffered a wrong that
2 could be remedied in federal district court. See id.
3 We have reviewed Appellant’s remaining arguments and
4 find them to be without merit.
5 For the foregoing reasons, the orders of the district
6 court are hereby AFFIRMED.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
7
