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TUFANO v. ALPERT

June 27, 1997

ALFRED TUFANO, Plaintiff, against HON. BRUCE D. ALPERT, Defendant.


The opinion of the court was delivered by: HURLEY

 HURLEY, District Judge

 Presently pending before the Court in the above captioned-case is the motion of Defendant Hon. Bruce D. Alpert ("Justice Alpert") to dismiss the claims of Plaintiff Alfred Tufano ("Mr. Tufano" or "Plaintiff") pursuant to Federal Rule of Civil Procedure 12(b)(1). For the reasons set forth below, Defendant's motion is granted.

 BACKGROUND

 Plaintiff Mr. Tufano is a defendant in a divorce action commenced by his wife in 1991 in the Supreme Court of the State of New York, County of Nassau ("Nassau County Supreme Court"). Defendant Justice Alpert, a justice of that court, has presided over the case against Mr. Tufano.

 In 1996, Mr. Tufano served a motion to amend his answer in that state court action; his motion was denied by order dated February 29, 1996. In March of 1996, Mr. Tufano's wife filed a motion in Nassau County Supreme Court for permission to file a note of issue and certificate of readiness for trial, which Mr. Tufano opposed.

 By order dated June 7, 1996, Mrs. Tufano's motion to file a note of issue and certificate of readiness was granted. (Compl. Ex. A.) The court directed each party to exchange net worth statements at least fourteen days prior to trial. (Id.) By order dated June 12, 1996, Mr. Tufano's application for leave to amend his answer to assert a counterclaim was denied because of extended delay on the part of Mr. Tufano. (Id. Ex. C.) By order dated July 5, 1996, Mr. Tufano's motion to compel updated net worth statements was denied as moot based upon the court's order of June 7, 1996. (Id. Ex. D.)

 Plaintiff brings the instant action under 42 U.S.C. § 1983 *fn1" , seeking a temporary restraining order and an injunction prohibiting Justice Alpert from proceeding with the case against Mr. Tufano in state court. He also appears to object to Justice Alpert's denial of his motion to amend.

 DISCUSSION

 Defendant has moved to dismiss the instant action claiming, inter alia, that the Court does not have subject matter jurisdiction over Plaintiff's claim. Plaintiff responds that subject matter jurisdiction is properly found here.

 Under 28 U.S.C. § 1331, a federal court has jurisdiction over civil actions "arising under the Constitution, laws, or treaties of the United States." "[A] suit arises under the Constitution and laws of the United States only when the plaintiff's statement of his own cause of action shows that it is based upon those laws or that Constitution." Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152, 53 L. Ed. 126, 29 S. Ct. 42 (1908). *fn2"

 Despite Plaintiff's denomination of the instant case as a civil rights action under 42 U.S.C. § 1983, Plaintiff is in essence seeking a reversal of the decisions of Justice Alpert, especially his decision that Plaintiff's divorce action proceed to trial. Construing the complaint in the light most favorable to the Plaintiff, and reading Plaintiff's papers liberally in light of his pro se status, see Burgos v. Hopkins, 14 F.3d 787 (2d Cir. 1994), the Court concludes that it is without subject matter jurisdiction in the instant case. It is clear from the allegations of the complaint that Plaintiff is not raising an independent civil rights claim, but instead is objecting to Justice Alpert's decisions in the state court case.

 For example, Mr. Tufano alleges in his complaint that Defendant "conspired to issue said wrongful order," (Compl. P 28) and asks the Court to restrain the trial from proceeding, so that he may "perfect [his] appeals" and "produce his evidence." (Pl.'s Mem. at 6.) He claims that he was denied his right to produce evidence -- specifically, supplemental net worth statements -- and that Justice Alpert allowed his "adverse party" to "prematurely" proceed to trial. (Compl. P 14.) Plaintiff further alleges that his action under Section 1983 was brought "on the basis that New York State laws are being applied unconstitutional [sic] by said court upon plaintiff . . . ." (Id. P 19.) In summarizing his complaint, he states that Justice Alpert "denied plaintiff his rights [sic] to produce his evidence . . . by granting the adverse party permission to proceed to trial BEFORE completion of all pretrial proceedings in which it is in direct conflict with New York state rules of court and other regulated statutes." (Id. at 9.)

 A United States district court is not the proper forum for an appeal from a state court decision. In District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 75 L. Ed. 2d 206, 103 S. Ct. 1303 (1983), the Supreme Court addressed this issue at length. Feldman involves a Plaintiff who sought admission to the District of Columbia Bar and was denied admission. Plaintiff appealed the District Bar's decision to the District of Columbia Court of Appeals, where his petition for admission was again ...


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