Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

DUBOYS v. BOMBA

May 2, 2002

LORRAINE DUBOYS, AS NEXT FRIEND OF HOWARD DUBOYS, PLAINTIFF,
V.
MARGARET ANN BOMBA, ALAN E. SILVER, GUY T. PARISI ["LAW DEFENDANTS"], SHELDON MASSER [FIDUCIARY], STATE OF NEW YORK, UNIFIED COURT SYSTEM OFFICE OF COURT ADMINISTRATION [ADMINISTRATIVE AGENCY] DIANE A. LEBEDEFF, WEST PAGE 167 EVE PREMINGER [JUDGES OF THE UNIFIED COURT SYSTEM] "JOHN DOES" 1 THROUGH 5, "JANE DOES" 1 THROUGH 5, "RICHARD ROES" 1 THROUGH 5, "MARY ROES" 1 THROUGH 5, UNITED JEWISH APPEAL AND UNITED JEWISH APPEAL-FEDERATION OF JEWISH PHILANTHROPIES OF NEW YORK, INC. [ALLEGED BENEFICIARIES OF CONVERTED ESTATE], DEFENDANTS



The opinion of the court was delivered by: VICTOR Marrero, United States District Judge.

DECISION AND ORDER

On January 31, 2002, the Court issued a Decision and Order in the above-captioned matter, reported as Duboys v. Bomba, No. 01 Civ. 5448, 2002 WL 146483 (S.D.N.Y. Jan. 31, 2002). (the "Decision" or "Duboys"). The Decision noted a number of critical jurisdictional and threshold legal deficiencies in Duboys's complaint. Nevertheless, the Court identified two specific grounds upon which relief could be predicated in theory, if Duboys had specific knowledge of facts properly asserted in an amended complaint. The Court dismissed the complaint with leave to replead consistent with the detailed instructions in the Decision.

Plaintiff pro se Lorraine Duboys ("Duboys") filing as next friend of Howard Duboys, now returns to the Court with an amended complaint which is roughly twice the length of the original complaint and which largely ignores the specific instructions set forth in the Decision. Rather than adhering to the Court's directions to cure the deficiencies in the aspects of the complaint the Court signaled may be remediable, Duboys added new claims pursuant to 42 U.S.C. § 1985 (3) ("§ 1985(3)") and for declaratory relief that show no more legal sufficiency than the pleadings the Court dismissed. Furthermore, Duboys provided no specific allegations necessary to sustain any of the federal causes of action against the remaining defendants. Arguably, the only notable decision on Duboys's part responsive to the Court's guidance is that she did not replead her legally untenable claims against Allan Silver and the New York State Office of Court Administration, the claims for monetary damages against the State Court Judges for acts taken within the scope of their official duties and the claims against twenty unnamed defendants for conduct not sufficiently specified or linked to the underlying events.

Upon careful review of the allegations in the amended complaint, including the additional causes of action, the Court finds that Duboys's claims continue to lack any cognizable or even arguable basis in law. After exhausting her New York State court appeals in connection with the same matters raised here and after the filing of two jurisdictionally and legally defective complaints, Duboys's action remains frivolous. See Neitzke v. Williams, 490 U.S. 319, 327 n.E (1989) (citations omitted); Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 307-08 (1989); Fitzgerald v. First East Seventh Street Tenants Corp., 221 F.3d 362, 363-64 (2d Cir. 2000). For the reasons set forth below, the amended complaint is dismissed with prejudice.

DISCUSSION

For purposes of the present analysis, the remaining defendants may grouped into two categories. First, Justice Diane A. Lebedeff and Surrogate Eve Preminger are judges in the Supreme Court, New York County and the Surrogate's Court, New York County, respectively. Duboys seeks declaratory relief against the Judges for their orders and judgments issued in connection with two prior state court proceedings. Second, with the exception of Allan Silver, the "Private Individual Defendants" remain as defendants in the amended complaint.*fn1 Duboys asserts claims pursuant to 42 U.S.C. § 1983 ("§ 1983") and § 1985(3) against them for their participation in the guardianship and probate proceedings in state court.

A. THE JUDGES

Although Duboys has abandoned her claim for monetary damages against Justice Lebedeff and Surrogate Preminger, they remain as defendants for purposes of her claim for declaratory relief pursuant to 28 U.S.C. § 2201. Specifically, Duboys seeks a judgment from this Court that New York Civil Practice Law and Rules ("CPLR") § 320 was unconstitutional as applied to the waiver of her jurisdictional challenges.*fn2 Furthermore, Duboys seeks "[v]acatur of all decisions, orders and decree rendered by LEBEDEFF and PREMINGER, which were unauthorized, lacking lawful constitutional and/or statutory jurisdiction initially.*fn3

Whether her claim is couched as one for monetary damages or for declaratory relief is irrelevant because the claims against the Judges, as asserted here, are untenable. The constitutional challenge and the vacatur of the state court decisions and orders would require this Court to review on the merits the proceedings below. The precise issue of the legality of the state court decisions and orders were fully and fairly addressed in the state court proceedings and the subsequent appeals. Therefore, a review in this Court of the decisions and orders below would contravene the bedrock principle of res judicata and the Rooker-Feldman doctrine.

Recently, this Court had occasion to address in depth the scope and nuances of these related doctrines. See Harris v. New York State Department of Health, No. 01 Civ. 3343, 2002 WL 726659 (S.D.N.Y. April 24, 2002). A lengthy repetition of the Court's discussion is unnecessary here, for it suffices to say that the principle of res judicata and the Rooker-Feldman doctrine intersect neatly in the present case and provide alternate grounds for dismissing Duboys's claims against the Judges. See Harris, 2002 WL 726659, at ** 5-17; see also Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Moccio v. New York State Office of Court Administration, 95 F.3d 195, 197 (2d Cir. 1995).

B. § 1983 CLAIMS AGAINST THE PRIVATE INDIVIDUAL DEFENDANTS

As the Court noted in the Decision, private individuals ordinarily are not liable under § 1983 unless plaintiff avers willful joint activity with the state. Duboys, 2002 WL 146483, at *3 To sustain a § 1983 action against private defendants, the Court cautioned Duboys that she would have to aver a "sufficiently close nexus between [the defendants] and the state such that their actions may fairly be treated as those of the state's." Id. Although Duboys's complaint fell far short of establishing the required connection, the Court granted leave to replead for the limited purpose of permitting Duboys to assert facts, to the extent that she had personal knowledge of them, that would establish a close nexus between the Private Individual Defendants and the state sufficient to establish liability under § 1983. Id.

In her amended complaint, Duboys includes a section titled "Nexus" and further alleges that because Masser, and later Parisi, were court-appointed fiduciaries, they assume the character of the state sufficient to confer liability under § 1983.*fn4 With respect to the argument that a court appointment as a fiduciary is sufficient to endow private defendants with the character of the state, there is simply no basis in law for such a proposition. On the contrary, the law in this Circuit consistently holds that a court appointment of a private individual is not sufficient to establish state action. Housand v. Heiman, 594 F.2d 923 (2d Cir. 1979) (court-appointed attorneys are not state actors); Forde v. Mellor, No. 90 CV. 4144, 1990 WL ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.