The opinion of the court was delivered by: McCURN, Chief Judge.
MEMORANDUM-DECISION AND ORDER
Plaintiff Robert J. Neville, appearing pro se, commenced this
action alleging deprivation of various constitutional rights
and seeking injunctive relief declaring Section 90(10) of the
Judiciary Law of the State of New York unconstitutional. All of
the defendants have moved for dismissal of plaintiff's
complaint on numerous grounds, and certain defendants have
moved for sanctions against Neville as well as a permanent
injunction enjoining Neville from filing future actions in this
District without prior court approval. Plaintiff opposes these
motions, and has filed cross motions seeking recusal of this
court and sanctions.
Neville appealed this decision of the Grievance Committee to
the New York State Appellate Division, Second Department; and
in August, 1985 the plaintiff provided both the Appellate
Division and the Grievance Committee with additional, unrelated
"evidence" of crimes allegedly committed by O'Hearn.
Nevertheless, the Second Department affirmed the Grievance
Committee's refusal to provide Neville with the information
concerning O'Hearn. The Court of Appeals refused to hear
Neville's appeal of this decision.
In February, 1986 plaintiff brought an Article 78 proceeding
seeking this same relief which was denied, and his appeals were
dismissed by both the Appellate Division and the New York Court
In March of 1987, plaintiff brought a civil rights action in
federal court in the Eastern District of New York based on
essentially the same facts as those found in his prior claims.
In this action, Neville sued the Grievance Committee, the
Justices of the Second Department, Appellate Division (the
"Appellate Division defendants") and Robert Abrams, New York's
Attorney General. This complaint was dismissed by Judge
Weinstein, which dismissal was affirmed by the Second Circuit.
The Supreme Court denied certiorari and rehearing of
The plaintiff brought a new action regarding these same
issues in January, 1989 in the Western District of New York.
The court transferred the action to the Eastern District for
lack of venue, and the case was re-assigned to Judge Dearie.
Judge Dearie subsequently dismissed plaintiff's claims under
the doctrine of res judicata. Neville's appeal of this order is
currently pending in the Second Circuit.
Undaunted by all of the prior proceedings surrounding his
claims, Neville filed the instant action on March 22, 1989
alleging the same or similar causes of action against the
Appellate Division defendants*fn1, the Grievance Committee and
Robert Abrams. The plaintiff has also added eight Judges of the
Second Circuit ("the Federal defendants") and Peter Charuka, a
court reporter, as named defendants in this proceeding.
All of the defendants have moved to dismiss plaintiff's
complaint. The grounds asserted by these defendants in support
of their motion include: (1) allegedly improper venue, (2)
absolute judicial immunity, (3) res judicata, (4) collateral
estoppel, (5) failure to state a claim and (6) statute of
limitations. Additionally, the Grievance Committee and
Appellate Division defendants, as well as Robert Abrams, have
moved for sanctions against Neville totalling $1,000.00 and for
an injunction prohibiting the plaintiff from filing any further
actions in the Northern District of New York without the prior
approval of this court.
The first issue this court must resolve is whether this
action is properly filed in the Northern District of New York.
Plaintiff asserts venue in his complaint under 28 U.S.C. § 1392(a),
Any civil action, not of a local nature, against
defendants residing in different districts in the
same State, may be brought in any of such
Thus, if venue is proper in this case, the instant action
must (1) not be of a local nature, (2) be asserted against
defendants residing in different districts, and (3) be brought
against a defendant who resides in the Northern District of New
Additionally, plaintiff's claim is asserted against persons
who reside in different judicial districts in this state. The
individuals whom the plaintiff labels "United States District
and Circuit Court Judge" defendants represent judges who are
currently sitting in the Eastern and Southern federal district
courts of New York, as well as numerous judges of the Second
Circuit. The defendants whom the plaintiff collectively refers
to as the "Justices of the Appellate Division of the Supreme
Court of the State of New York, Second Judicial Department" all
reside in the Eastern District of New York, as do the members
of the Grievance Committee for the Tenth Judicial District as
well as court reporter-defendant Peter Charuka. Thus, the
second prong of 28 U.S.C. § 1392(a) has been met.
The final issue for this court to resolve in determining
whether venue in the Northern District is proper in this case
is whether any of the named defendants "reside" in the Northern
District of New York for purposes of 28 U.S.C. § 1392(a).
The only named defendants in plaintiff's complaint who
arguably "reside" in the Northern District are Roger J. Miner,
Richard J. Cardamone and Robert Abrams.
It is well settled that the residence of public officers
means the "official" and not "actual" residence of the
individual. See Brinbaum v. Blum, 546 F. Supp. 1363, 1366
(S.D.N.Y. 1982), Canaday et al. v. Koch et al., 598 F. Supp. 1139,
1143 (E.D.N.Y. 1984).
In cases involving federal officials, courts have uniformly
held that federal officers can have only one official residence
for purposes of venue. See Michigan State Chamber of Commerce
et al. v. Austin, 577 F. Supp. 651, 654 (E.D.Mich. 1983), rev'd
on other grounds, 788 F.2d 1178 (6th Cir. 1986), Cheeseman v.
Carey, 485 F. Supp. 203, 207 (S.D.N.Y. 1980), remanded on other
grounds, 623 F.2d 1387 (2d Cir. 1980), Canaday, supra, 598
F. Supp. at 1143. This residence is defined as the place where
federal officials, in the instant case, Judges Miner and
Cardamone, perform their official duties. See e.g. Reuben H.
Donnelley Corp. v. F.T.C., 580 F.2d 264, 266-67 (7th Cir.
1978). The official duties of Judges Miner and Cardamone as
Judges of the Second Circuit Court of Appeals are performed ...