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NEVILLE v. DEARIE

August 17, 1990

ROBERT J. NEVILLE, PLAINTIFF,
v.
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.

Background

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 regarding alleged professional misconduct by attorney Walter D. O'Hearn, Jr. ("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 of Appeals.

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 plaintiff's case.

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.

Discussion

(1) Venue.

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), which provides:

  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
  districts.

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 York.

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 ...


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