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June 22, 1998

PATRICIA D. MARKS, et al., Defendants.

The opinion of the court was delivered by: LARIMER



 Plaintiff, Kevin Patrick Brady, appearing pro se, commenced this action under 42 U.S.C. § 1983, several other federal civil rights statutes, and purportedly under certain federal criminal statutes as well. Plaintiff's claims in this case arise from certain criminal proceedings against him in New York State courts, which stemmed from his alleged violation of a prior Family Court custody order.

 On May 15, 1998, relying on this court's power to dismiss a complaint sua sponte for failure to state a claim, see Wachtler v. County of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994), I ordered plaintiff to show cause in writing why his complaint should not be dismissed for failure to state a claim upon which relief could be granted, since each of the nine defendants appeared to be entitled to absolute immunity from liability with respect to plaintiff's claims. Noting that plaintiff had previously commenced a similar action that was dismissed in part on the ground of absolute judicial immunity, and that plaintiff was subject to a state court order enjoining him from filing any action in any court based on the matters underlying this suit without prior permission from the court, I also ordered plaintiff to show cause why he should not be permanently enjoined from filing further actions in this court relating to his Family Court proceedings without prior leave of court.

 On June 1, 1998, plaintiff filed a motion for summary judgment based on defendants' failure to respond to the complaint. Plaintiff also filed a response to this court's Order to Show Cause on June 4, 1998.

 In large part, plaintiff's response to the Order to Show Cause simply echoes the allegations contained in his complaint: that the New York State court system is corrupt, and that the judges, prosecutors, and probation officer involved in the underlying state court proceedings have flouted New York law and the United States Constitution in a systematic effort to deprive plaintiff of his rights, apparently because of their prejudice against fathers involved in custody disputes.

 After reviewing the record, I conclude that the complaint is plainly meritless on its face, and that it must be dismissed for failure to state a claim upon which relief can be granted. I also find that plaintiff should be enjoined from filing further actions in this court arising out of his Family Court proceedings, or any criminal or other proceedings stemming from his Family Court action. To explain why, some factual background is necessary.


 By virtue of a prior Family Court order, plaintiff has some visitation rights with respect to his daughter, who is in the sole custody of her mother. The incidents that led to plaintiff's arrest occurred when plaintiff arrived at his daughter's house for visitation in March 1996. Apparently there was a confrontation of some sort between plaintiff and John Sober, the girl's maternal grandfather. Someone called the police, and plaintiff was arrested for Harassment in the Second Degree. He was also charged with two counts of Criminal Contempt in the Second Degree based on his alleged violation of the Family Court's custody and visitation order.

 Plaintiff was convicted of contempt after a jury trial and sentenced to four months in jail. The conviction was affirmed on appeal, and plaintiff was denied leave to appeal to the Court of Appeals. In this action, plaintiff has sued all of the judges involved in the proceedings, as well as the assistant district attorneys and the employee of the Monroe County Department of Probation who prepared plaintiff's presentencing report.

 The gist of plaintiff's claims is that the charges placed against him were improper under the law because he believes that only Family Court had jurisdiction to hear a case based on an alleged violation of a Family Court order of protection. Plaintiff also claims that the order of protection is illegal and that therefore the Family Court judge's refusal to vacate the order violates his constitutional rights. Plaintiff further alleges that Monroe County District Attorney Howard Relin and Rochester City Court Judge John R. Schwartz violated his rights by failing to investigate and prosecute his numerous complaints and allegations of criminal conduct against members of the area judiciary.

 Plaintiff seeks a declaratory judgment that the circumstances took place as plaintiff alleges and that he was illegally incarcerated for four months. Plaintiff also seeks an order vacating the order affirming his conviction, or an order directing the State of New York, County of Monroe, to do so. Plaintiff also seeks to enjoin all proceedings by the Perinton Town Court and Monroe County Department of Probation against him and reimbursement of all his legal costs. He states that he leaves any criminal penalties against the defendants to the discretion of the court and the Federal Bureau of Investigation.


 I. Immunity

 Plaintiff's claims against all of the defendants are all based on actions that they undertook in the course of each defendant's respective public position. The defendants are the District Attorney, his Assistant District Attorneys, judges of various courts in which his cases have been heard, and the Probation Department employee charged with providing a sentencing report to the court. For the reasons set forth below, the court finds that all of the defendants are entitled to absolute immunity from liability.

 A. Defendant Judges Kohout, Marks, Ciparik, Klonick and Schwartz

 Plaintiff has brought claims against five judges: Monroe County Family Court Judge Joan S. Kohout, Monroe County Court Judge Patricia Marks, New York State Court of Appeals Judge Carmen Beauchamp Ciparik, Rochester City Court Judge John R. Schwartz, and Perinton Town Court Justice Thomas J. Klonick ("the judicial defendants"). It is well settled that judges are absolutely immune from suit for any actions taken within the scope of their judicial responsibilities. See, e.g., Mireles v. Waco, 502 U.S. 9, 116 L. Ed. 2d 9, 112 S. Ct. 286 (1991).

Although unfairness and injustice to a litigant may result on occasion, "it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself."

 Id. at 10, 112 S. Ct. 287, quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347, 20 L. Ed. 646 (1872). The protection of immunity is not pierced by allegations that the judge acted in bad faith or with malice, Pierson v. Ray, 386 U.S. 547, 554, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967). The United States Supreme Court has expressly applied the doctrine of judicial immunity to actions brought pursuant to 42 U.S.C. § 1983. See Id. at 547.

 The Supreme Court has developed a two-part test for determining whether a judge is entitled to absolute immunity. See Stump v. Sparkman, 435 U.S. 349, 360, 55 L. Ed. 2d 331, 98 S. Ct. 1099 (1978). First, "[a] judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the 'clear absence of all jurisdiction.'" Id. at 356-57 (emphasis added) (quoting Bradley, 80 U.S. (13 Wall.) at 351). Second, a judge is immune only for actions performed in his judicial capacity. 435 U.S. at 360-63; see also Maestri v. Jutkofsky, 860 F.2d 50 (2d Cir.1988) (finding no immunity where town justice issued arrest warrant for conduct which took place neither within nor in a town adjacent to his town, thereby acting in ...

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