United States District Court, Northern District of New York
August 17, 1990
ROBERT J. NEVILLE, PLAINTIFF,
RAYMOND J. DEARIE, EUGENE H. NICKERSON, GEORGE C. PRATT, ROGER J. MINER, JOHN M. WALKER, J. EDWARD LUMBARD, RICHARD J. CARDAMONE, RALPH K. WINTER, INDIVIDUALLY AND AS UNITED STATES DISTRICT AND CIRCUIT COURT JUDGES, GUY J. MANGANO, WILLIAM C. THOMPSON, LAWRENCE J. BRACKEN, RICHARD A. BROWN, ISAAC RUBIN, CHARLES B. LAWRENCE, GERALDINE T. EIBER, JOSEPH J. KUNZEMAN, SYBIL HART KOOPER, THOMAS R. SULLIVAN, STANLEY HARWOOD, VINCENT R. BALLETTA, ALBERT M. ROSENBLATT, SONDRA MILLER, INDIVIDUALLY AND AS JUSTICES OF THE APPELLATE DIVISION OF THE SUPREME COURT OF THE STATE OF NEW YORK, SECOND JUDICIAL DEPARTMENT, GRIEVANCE COMMITTEE FOR THE TENTH JUDICIAL DISTRICT AND, INDIVIDUALLY, EACH OF ITS MEMBERS AND STAFF, ROBERT ABRAMS, INDIVIDUALLY AND AS ATTORNEY GENERAL OF THE STATE OF NEW YORK, AND PETER CHARUKA, COURT REPORTER, DEFENDANTS.
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.
This lawsuit is the latest in a series of actions commenced
by the plaintiff arising out of the Grievance Committee of the
Tenth Judicial District's ("the Grievance Committee's") refusal
to release to Neville certain confidential information
alleged professional misconduct by attorney Walter D. O'Hearn,
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
The word "local" within the meaning of 28 U.S.C. § 1392(a)
refers to actions involving property, and not to the district
in which the facts giving rise to the complaint occur. Johnson
v. Jumelle, 64 F.R.D. 708, 713 n. 4 (S.D.N.Y. 1974). The
instant case does not involve a dispute over property but
rather alleges, inter alia, deprivation
of various constitutional rights. Thus, it is not "of a local
nature" as that term is used in 28 U.S.C. § 1392(a). Therefore,
the plaintiff has met the first requirement of this statute.
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 in
New York City, which is located in the Southern District of New
York. Therefore, these defendants do not "reside" in the
Northern District of New York for purposes of venue in the
Turning to the defendant Attorney General of New York, Robert
Abrams maintains an official residence in Albany, New York.
See e.g. Procario v. Ambach, 466 F. Supp. 452, 454 (S.D.N Y
1979). Since Albany, New York is located within the Northern
District of New York, venue is proper in the instant action,
and therefore plaintiff's complaint can not be dismissed on the
grounds of improper venue.
(2) Judicial Immunity.
The Federal and Appellate Division defendants have moved to
dismiss plaintiff's complaint on the grounds that, as judges,
they are absolutely immune from Neville's claims.
Judges who perform judicial functions within their
jurisdiction are granted absolute immunity concerning actions
seeking monetary damages which arise out of these actions.
See Dorman v. Higgins, 821 F.2d 133, 137 (2d Cir. 1987).
Therefore, the Federal and Appellate Division defendants'
motion to dismiss that portion of Neville's complaint seeking
monetary relief against any of these defendants must be
granted.*fn2 However, this absolute immunity does not extend
to actions seeking injunctive relief concerning judges. See
id., 821 F.2d at 139 and cases cited therein, Schepp v. Fremont
County, Wyo., 900 F.2d 1448, 1452 (10th Cir. 1990). In the
instant case, Neville's complaint concerning both the Federal
and Appellate Division defendants seeks primarily injunctive
relief. Therefore, the portion of plaintiff's complaint seeking
injunctive relief against these defendants may not be dismissed
solely on the basis of the judge's absolute immunity from the
(3) The doctrine of res judicata.
The Federal and Appellate Division defendants, as well as the
Grievance Committee and Robert Abrams have all moved to dismiss
plaintiff's complaint under the doctrine of res judicata. In
discussing the merits of defendants' arguments, it is helpful
to briefly review how the Second Circuit has interpreted and
applied this doctrine.
In Benjamin v. Traffic Exec. Ass'n. Eastern Railroads,
869 F.2d 107 (2d Cir. 1989), the Second Circuit recently discussed
the doctrine of res judicata. In Benjamin, the Court noted:
"Under res judicata, a final judgment on the
merits bars further claims by parties or their
privies from relitigating issues that were or
could have been raised in that action." Kremer v.
Chemical Construction Corp., 456 U.S. 461, 466-67
n. 6, 102 S.Ct. 1883, 1889-90 n. 6, 72 L.Ed.2d 262
Benjamin, 869 F.2d at 111.
Thus, in the instant case, this court must examine the
complaints filed by Neville in his previous actions and
determine whether his claims in the present action were or
could have been raised by the plaintiff against the defendants
in Neville's earlier lawsuits.
(a) The Grievance Committee and Appellate Division
In the complaint filed by Neville on or about March 30, 1987
in the Eastern District of New York, the plaintiff alleged,
inter alia, that the Grievance Committee and the Appellate
Division defendants had "violated plaintiff's first amendment
rights of access to formal attorney disciplinary proceedings by
refusing to reveal whether a certain formal disciplinary
proceeding" was pending against O'Hearn.*fn3
The relief sought
by Neville concerning this alleged violation included (i) a
declaration of the court finding Judiciary Law § 90(10)
unconstitutional, (ii) an injunction permanently enjoining both
the Grievance Committee and the Appellate Division defendants
from applying this law, (iii) an order directing these same
defendants to permit Neville to attend these disciplinary
proceedings, (iv) an injunction directing both the Grievance
Committee and the Appellate Division defendants to enforce the
disciplinary laws of New York, and (v) both compensatory and
The claims asserted in the first and second causes of action
in the instant proceeding are based upon the same conduct
complained of in Neville's March, 1987 action. Similarly, the
relief sought in the present action is nearly identical to that
requested in plaintiff's March, 1987 Complaint. Since this
earlier complaint was dismissed by Judge Weinstein, which
dismissal was affirmed by the Second Circuit, plaintiff's first
and second causes of action in the present action are barred by
the doctrine of res judicata and must therefore be dismissed.
(b) The Attorney General.
Plaintiff's claim against Robert Abrams allege that Abrams
[U]nfairly prejudiced the courts against plaintiff
and his claims, has facilitated and encouraged the
violation of his right to due process of law and,
in litigation which raises important issues
affecting the public interest, has by his conduct
shown a callous indifference to the interests of
the people of the State of New York.*fn5
A review of plaintiff's March, 1987 action reveals that the
plaintiff has previously claimed that Abrams (i) violated
Neville's constitutional rights*fn6
and (ii) abused his
office, acted in bad faith, and recklessly and maliciously
violated plaintiff's "clearly established legal rights."*fn7
As with his claims asserted against the Grievance Committee
and the Appellate Division defendants, Neville's claim against
Abrams, filed in March of 1987, was dismissed by Judge
Weinstein. This dismissal was affirmed by the Second Circuit.
Since Neville's claim against Abrams in the present action is
based upon the same facts which gave rise to his earlier claim
— a claim which was dismissed — the eighth cause of action in
the instant complaint, asserted against Abrams is barred by the
doctrine of res judicata, and therefore Abrams' motion to
dismiss this claim must be granted.
(c) The Federal Defendants.
Since none of the Federal defendants or their privies were
named defendants in plaintiff's prior actions, their motion to
dismiss plaintiff's claim can not be granted on the doctrine of
(4) The doctrine of collateral estoppel.
In Wilder v. Thomas, 854 F.2d 605 (2d Cir. 1988), cert.
denied 489 U.S. 1053, 109 S.Ct. 1314, 103 L.Ed.2d 583 (1989),
the Second Circuit reiterated New York's requirements for
collateral estoppel. In quoting Schwartz v. Pub. Adm'r. of
Bronx, 24 N.Y.2d 65, 71, 298 N.Y.S.2d 955, 960, 246 N.E.2d 725,
729 (Ct.App. 1969), the Wilder court stated:
New York Law has now reached the point where there
are but two necessary requirements for invocation
of the doctrine of collateral estoppel. There must
be an identity of issue which has necessarily been
decided in the prior action and is decisive of the
present action, and, second, there must have been
a full and fair opportunity to contest the
decision now said to be controlling.
Id. 854 F.2d at 616.
On February 14, 1990, the Second Circuit dismissed Neville's
appeal of an order of Judge Raymond J. Dearie, dated October
27, 1989, which enjoins the plaintiff from filing any actions
in the Eastern District of New York without Judge Dearie's
prior approval. In the present case, Neville's sixth cause of
action challenges the validity of this same order.*fn8
The issue in plaintiff's sixth cause of action — the
validity of the injunction — was necessarily decided against
Neville by the Second Circuit's order of February 14, 1990.
Further, Neville had a full and fair opportunity to contest
this decision in his appeal before the Second Circuit.*fn9
Therefore, the Federal defendant's motion to dismiss
plaintiff's sixth cause of action must be granted under the
doctrine of collateral estoppel.
(5) Failure to state a claim.
(a) Defendant Charuka.
In ¶ 18 of plaintiff's complaint filed in the instant action,
Neville alleges that "United States District Judge Nickerson,
or a person or persons acting on his behalf, caused a
transcript of a [prior] proceeding [involving Neville] to be
altered. . . ." ¶ 19 then claims that:
Defendant court reporter Peter Charuka produced
the altered transcript referred to in paragraph
18, supra, and thereby impaired plaintiff's ability
(a) to demonstrate the denial of due process of law
in the [prior proceeding] and (b) to litigate in
the case which followed (Neville v. Appellate
As a result of Charuka's alleged alteration of the
aforementioned transcript, Neville is seeking both damages and
from this court directing Charuka to provide Neville with a
"true, accurate and certified transcript" of the prior
A liberal reading of Neville's claims against Charuka reveals
that, at most, plaintiff alleges that Charuka has deprived
Neville of the rights afforded him under 42 U.S.C. § 1983. This
section provides, in pertinent part, that:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage of any
State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen
of the United States . . . to the deprivation of
any rights, privileges, or immunities secured by
the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity,
or other proper proceeding for redress.
In this action, Neville claims that Charuka, acting on Judge
Nickerson's behalf, caused a transcript of a courtroom
proceeding to be altered. In Green v. Maraio, 722 F.2d 1013
Cir. 1983), the Second Circuit held that a court reporter
acting at the direction of a judge is immunized from liability
under section 1983 by the defense of qualified immunity for
actions carried out within the scope of those instructions. See
id. at 1018 and cases cited therein. As noted by the Second
[I]t would be manifestly unfair to allow [the
court reporter] to be subjected to liability when
[ ]he was acting within the scope of the judge's
instructions and was simply acting as an arm of
the court in compliance with the exercise of
his judicial authority (emphasis in original).
Green, 722 F.2d at 1019.
Since Charuka is immune from the claims asserted against him
by plaintiff, Neville's complaint against Charuka must be
(b) The Federal Defendants.
The only remaining claims in plaintiff's complaint allege
that (i) Neville's rights were violated when the members of the
Second Circuit refused to recuse themselves from hearing
Neville's appeal, (ii) Judge Eugene H. Nickerson of the Eastern
District of New York "or a person or persons acting in his
behalf caused a transcript of a proceeding" before Judge
Nickerson to be altered and (iii) various judges of the Second
Circuit have denied plaintiff a full and fair opportunity to
litigate his case before them and "have aggravated the
violation of plaintiff's constitutional right of access to the
courts."*fn11 The issue currently before this court is whether
these claims are frivolous and should be dismissed.
In discussing whether a plaintiff's claims are frivolous, the
court in Davis v. Oklahoma Dep't. of Corrections, 516 F. Supp. 5
(W.D.Okla. 1980) noted that:
The test for determining if an action is frivolous
or without merit is whether the plaintiff can make
a rational argument on the law or facts in support
of his claim. Collins v. Cundy, 603 F.2d 825, 828
(10th Cir. 1979).
Davis, 516 F. Supp. at 7. See also Stambler v. Dillon,
288 F. Supp. 646, 649 (S.D.N.Y. 1968) (frivolous claims must be
Since the remaining claims in Neville's complaint appear to
this court to be wholly lacking in merit, not supportable by
any rational argument and frivolous, this court dismisses the
This court does not find Neville's conduct in filing the
instant complaint deserving of sanctions, and also declines to
from filing future complaints in this District at this
Plaintiff's motion for my recusal is based upon possible
friendships this court may have with some of the defendants in
this action, (in particular members of the Second Circuit), my
purported prejudgment of plaintiff's case as well as my alleged
failure to afford Neville adequate time with which to oppose
the defendants' motions to dismiss.
The first two contentions require only the briefest comment.
Acquaintances and friendships between district court and
reviewing circuit court judicial officers play absolutely no
role in decisions rendered by either court. The court has not
herein, nor has it ever "prejudged" any case before it. With
respect to plaintiff's contention that he was given inadequate
time with which to respond to defendants' motion to dismiss,
the Grievance Committee and Appellate Division defendants, as
well as Robert Abrams, filed their motion papers to dismiss
plaintiff's complaint with this court on April 24, 1990.*fn13
The Federal defendants filed their memorandum in support of
their motion to dismiss on May 30, 1990. Peter Charuka, the
only other defendant in this action, filed his motion papers
with this court on June 6, 1990. By letter dated June 7, 1990,
this court stated that "[p]apers in opposition [to these
motions] must be filed with the court on or before June 26,
1990." Thus, Neville was afforded nearly three weeks with which
to file papers in opposition to the defendants' motions to
dismiss. The Northern District of New York's local Rule 10(e)
affords non-moving parties seven days to file memoranda in
response to a moving party's motion. Thus, it is clear that
Neville had ample time with which to respond to defendants'
motions. Accordingly, his motion for my recusal is denied.
Neville's first, second, and eighth causes of action are
dismissed under the doctrine of res judicata. Plaintiff's sixth
cause of action is barred by the doctrine of collateral
estoppel. Plaintiff's fifth cause of action is dismissed
because defendant Charuka is immune from the claim asserted
therein as a court reporter for Judge Nickerson. Neville's
remaining claims are dismissed as frivolous. Defendants' motion
for sanctions and an injunction barring the plaintiff from
filing further lawsuits in this District is denied. Plaintiff's
cross-motions for my recusal and for sanctions are denied.
IT IS SO ORDERED.