The opinion of the court was delivered by: DENIS HURLEY, District Judge
Following his arrest and conviction for criminal contempt of
court, Plaintiff Samuel M. Levine brought the present civil
action against New York State Family Court Judge Richard S.
Lawrence, and Court Officer Janosek.*fn1 Levine seeks
monetary damages, as well as a declaratory judgment that New
York's criminal contempt laws are unconstitutional. The Defendants have moved to dismiss Levine's claims pursuant to
Federal Rule of Civil Procedure 12(b)(6). For the reasons that
follow, the Defendants' motion is GRANTED IN PART, as to Levine's
claims against Judge Lawrence and for a declaratory judgment, but
DENIED IN PART as to Levine's claims against Janosek.
According to the complaint and the documents attached thereto,
Levine served as attorney for one Leila Ayers in connection with
the litigation of certain family law matters. On July 24, 2002,
Levine appeared at Nassau County Family Court to argue several
motions on Ayers's behalf. Levine states that he "was allowed
about 40 minutes to make several motions to Judge Lawrence," but
that "[f]ollowing Plaintiff Levine's motions and the commencement
of testimony," Lawrence directed that Levine and Ayers be removed
from the courtroom, without "mak[ing] findings or recit[ing] for
the record any of the factors required to be considered under
[the Uniform Rules for the Family Court,
22 NYCRR §] 205.4.*fn2 The following day, when Levine and Ayers returned for the
scheduled continuation of the hearing, Janosek stopped them from
entering the courtroom, and they were forced to wait in the
hallway until Ayers was summoned to testify. According to Levine,
he attempted to walk into the courtroom with Ayers, but was
stopped by Janosek, who pushed Levine out of the courtroom
doorway and back into the hallway, and then closed the courtroom
door. Levine then "knocked on the courtroom door to gain
entrance," and "stated he wanted to go in to protect the rights
of Leila Ayers." At that point, according to Levine, "Janosek
came out of the courtroom, assaulted Plaintiff Levine by grabbing
his arms and putting handcuffs around his wrists." Two other
Court Officers took Levine's briefcase and files, and he was then
"pushed through the hallway into the main lobby of the
court[house] in plain view of the court officers and members of
the public." Levine was taken to the courthouse basement, read
his Miranda rights, and "in all respects treated as a criminal."
According to Levine, he was subsequently brought back to the
courtroom, still in handcuffs. He informed Lawrence that he had
called an attorney. Lawrence refused Levine's request to the
delay the proceedings, and "made certain statements into the
court record which were an incomplete, inaccurate account of what
transpired," and then "stated for the record that he was proceeding with `Contempt' action against Plaintiff Levine
and imposing a sentence of `time served'" for the thirty minutes
in which Levine was handcuffed and in Janosek's custody. Finally,
Lawrence ordered Levine's handcuffs removed, and ordered Janosek
to "see to it that Plaintiff Levine was removed from the
courtroom and court building."
Levine filed the present lawsuit pursuant to Section 1983 on
April 8, 2003. He seeks a declaratory judgment that the
Defendants violated his civil rights and that the New York
statutory scheme governing summary contempt of court, pursuant to
which Levine was arrested and convicted, is unconstitutional.
Levine also seeks $4 million in compensation from Lawrence and
Janosek for "damages to his person, his reputation and standing
in the community and status as an attorney and former judge." The
Defendants have moved to dismiss the entire complaint, arguing,
inter alia, that the present suit is barred by the doctrine of
absolute judicial immunity or alternatively, qualified official
I. Dismissal: Legal Standards
In considering a motion to dismiss for failure to state a claim
pursuant to Rule 12(b)(6), a district court must limit itself to
the facts stated in the complaint, documents attached to the
complaint as exhibits, and documents incorporated by reference in
the complaint. Hayden v. County of Nassau, 180 F.3d 42, 54 (2d
Cir. 1999). The court must accept the factual allegations
contained in the complaint as true, and view the pleadings in the
light most favorable to the non-moving party, drawing all
reasonable inferences in his favor. Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994), cert.
denied, 513 U.S. 816 (1994).
Dismissal under Rule 12(b)(6) is appropriate only if it appears
beyond doubt that the plaintiff can prove no set of facts
entitling him to relief in support of his claim.
Zerilli-Edelglass v. New York City Transit Auth., 333 F.3d 74,
79 (2d Cir. 2003). The issue is not how likely the plaintiff is
to ultimately prevail, but whether he is entitled to even offer
evidence to support his claims. "Indeed it may appear on the face
of the pleading that a recovery is very remote and unlikely but
that is not the test." Weisman v. LeLandais, 532 F.2d 308, 311
(2d Cir. 1976) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)). These standards apply with particular strictness where,
as here, the complaint alleges civil rights violations. Gant v.
Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995).
However, "conclusory allegations or legal conclusions
masquerading as factual conclusions will not suffice to prevent a
motion to dismiss." Smith v. Local 819 I.B.T. Pension Plan,
291 F.3d 236, 240 (2d Cir. 2002) (internal quotation omitted).
Courts also must normally construe pro se complaints liberally,
Lerman v. Bd. of Elections in City of New York, 232 F.3d 135,
140 (2d Cir. 2000), but practicing attorneys (like Levine) who
choose to represent themselves cannot claim the special
considerations normally afforded to pro se litigants. Harbulak
v. Suffolk County, 654 F.2d 194, 198 (2d Cir. 1981). And a
litigant's pro se status does not exempt him from compliance with
the relevant rules of procedural and substantive law. Traguth v.
Zuck, 710 F.2d 90, 95 (2d Cir. 1983).
II. Levine's Claim for a Declaratory Judgment Is Without
Merit. Levine seeks a declaration that Article 19 of the New York
Judiciary Law ("particularly Sections 750, 751, 752, 753, 754,
and 755"), which governs the imposition of penalties for criminal
contempt of court, is unconstitutional.*fn3 This claim is
utterly without merit and must be dismissed.
According to Levine, the statutory scheme "fail[s] to establish
the necessary requirements to comply with the due process and
equal protection provisions of the Fifth and Fourteenth Amendments," including "[p]roper notice, a right to
know and receive written charges, a right to a due process
hearing with confrontation of witnesses, standards to establish
the proof necessary to sustain civil or criminal contempt
charges, [and] standards and guidelines for determining
punishment and sentence." In particular, Levine argues that the
"`summary contempt' action authorized in Judiciary Law Article
19, allowing judges . . . to act as witness, trial judge,
prosecutor, jury and sentencing judge and without a hearing, or
charges, . . . for actions committed or statements made in the
judge's presence, deprives an attorney of his due process and
equal protection rights." According to Levine, "[t]he
extraordinary, improper, wrongful, willful, unjudicial conduct by
Defendant Lawrence, is sufficient evidence to justify striking
down that Contempt Article, the Sections set forth above, and its
To the extent that Levine is arguing that summary contempt
proceedings inherently offend due process by allowing a judge to
act as "witness, trial judge, prosecutor, jury and sentencing
judge," such arguments have long been rejected by federal and
state courts, in particular the United States Supreme Court and
the New York Court of Appeals. "From the very beginning of this
Nation and throughout its history the power to convict for
criminal contempt has been deemed an essential and inherent
aspect of the very existence of our courts." Morry Levine v.
U.S., 362 U.S. 610, 615 (1960). Generally speaking, all
"contempts committed in the face of a court" may be "instantly
punished without proof or examination." U.S. v. Lumumba,
741 F.2d 12, 16 (2d Cir. 1984). As the Eleventh Circuit has noted,
"summary adjudication and sentencing of contempts occupies a
unique niche in our criminal justice system. Only in this kind of proceeding do the otherwise
inconsistent functions of prosecutor, jury, and judge mesh into
a single individual." Sandstrom v. Butterworth, 738 F.2d 1200,
1209 (11th Cir. 1984) (emphasis added).
These exceptional rules are allowed in part because "[t]here is
no need of evidence or assistance of counsel before punishment,
because the court has seen the offense." In re Katz,
269 N.E.2d 816, 818 (N.Y. 1971) (quoting Cooke v. U.S., 267 U.S. 517, 534
(1925)). But more importantly, "[i]t is the need for the
preservation of the immediate order in the courtroom which
justifies the summary procedure one so summary that the right
and need for an evidentiary hearing, counsel, opportunity for
adjournment, reference to another Judge, and the like, are not
allowable because it would be entirely frustrative of the
maintenance of order." Id. Nor is this rationale limited to the
federal courts. The Supreme Court has long made clear that "[t]he
power to punish for contempt is inherent in all courts," and
"such is the recognized doctrine in reference to the powers of
the courts of the several states." Ex Parte Terry,
128 U.S. 289, 303 (1888) (internal quotations omitted).
The Supreme Court has repeatedly explained that this power,
although admittedly "`arbitrary in its nature and liable to
abuse,'" is "`absolutely essential to the protection of the
courts in the discharge of their functions,'" and thus necessary
for the "functioning of an independent judiciary, which is the
ultimate reliance of citizens in safeguarding rights guaranteed
by the Constitution." Morry Levine, 362 U.S. at 615-16 (quoting
Ex Parte Terry, 128 U.S. at 313). Thus, "due process rights
[are] sacrificed for order in the court and the dignified
maintenance of its processes," U.S. v. Lumumba, 741 F.2d 12, 16
(2d Cir. 1984), and Levine's arguments to the contrary are completely baseless.
Nor does it matter that Levine's allegedly contemptuous
behavior occurred in the context of an attempt to zealously
protect his client's rights and interests. "While a lawyer has a
right and duty to argue vigorously . . . on behalf of his client,
he must obey a direct order of the court, such as an order to
cease argument, no matter how arbitrary he may believe it to be."
U.S. v. Lumumba, 794 F.2d 806, 810 (2d Cir. 1986). So long as
"the directive is clear and counsel understands it, he must obey
even if he feels his obedience may risk prejudicing his client's
substantive case." Id. Where a "ruling is adverse, it is not
counsel's right to resist it or to insult the judge his right
is only to respectfully preserve his point for appeal." Sacher
v. U.S., 343 U.S. 1, 9 (1952). Where an attorney openly defies
direct court rulings or directives, there is no doubt that he may
be summarily held in contempt. See Lumumba, 794 F.2d at 809.
"Any other result would surely create chaos in the courtroom."
Id. at 810.
That is not to say that summary contempt proceedings may always
be conducted without regard to the traditional tenets of due
process. In fact, "due process requires that a lawyer cited for
criminal contempt for conduct occurring during trial must
before being finally adjudicated in contempt at the end of trial
have notice and an opportunity to be heard." U.S. v. Lumumba,
741 F.2d 12, 13, 16-17 (2d Cir. 1984) (citing Mayberry v. Pa.,
400 U.S. 455, 463-64 (1971)). The New York Court of Appeals has
explained that "the power of the hearing or trial court to
maintain order by immediate summary action, if immediate summary
action is required, remains unimpaired," but where the court
"delay[s] the imposition of sanctions until after the hearing or
trial, it may be inferred that there is no immediacy." Matter of Katz v. Murtagh, 269 N.E.2d 816, 818 (N.Y. 1971). In
such cases, contrary to Levine's assertions, New York law imposes
"certain procedural requirements upon a court before someone may
be held in summary criminal contempt. These include warnings or
admonishments, the opportunity to desist, and the opportunity to
make a statement in their defense or in extenuation of their
conduct." See O'Connell v. Taddeo, 662 N.Y.S.2d 722, 725 (Sup.
Ct. 1997) (citations omitted). "Indeed, the failure to adhere to
these procedural requirements has served as a basis, in part, at
least, for a determination of discipline against a
judge."*fn4 Id. at 726.
In sum, Levine's constitutional challenge to New York's
contempt law overlooks a long history of cases explicitly
affirming a summary contempt exception to the traditional
requirements of due process, and also overstates the
applicability of this exception to cases such as his, where the
contemptuous act is temporally separate from the proceedings to
punish it. His due process arguments are accordingly doubly
As a final matter, although Levine's complaint mentions that
New York's summary contempt scheme also offends constitutional
equal protection rights, neither his complaint nor his memorandum
in opposition to the Defendants' dismissal motion offers any explanation of how or why, and none is apparent.*fn5 As the
failure to adequately brief an argument constitutes waiver of
that argument, Levine's equal protection claim is deemed waived,
and will not be considered here. See, e.g., Raniola v. Bratton,
243 F.3d 610, 613 n. 1 (2d Cir. 2001).
III. Judge Lawrence's Absolute Judicial Immunity Mandates
Dismissal of All Claims Against Him.
The Defendants argue that Levine's claims against Judge
Lawrence are barred by the doctrine of absolute judicial
immunity. Levine argues in response that the Judge's acts "were
tortious acts, carried out wrongfully, maliciously and
intentionally," and that Lawrence's status as a judge does not
give him "a license to commit tortious acts on an attorney or
litigant in court." Levine is mistaken: his claims against Judge
Lawrence are barred by absolute immunity.
"It is well settled that judges are absolutely immune from suit
for any actions taken within the scope of their judicial
responsibilities," even if on occasion such immunity may result
in unfairness and injustice to a litigant. Brady v. Marks, 7 F.
Supp.2d 247, 251 (W.D.N.Y. 1998) (citing Mireles v. Waco,
502 U.S. 9 (1991)).*fn6 Under the common law, judges are generally immune from all tort actions, see Dacey v.
New York County Lawyers' Ass'n, 423 F.2d 188, 197 (2d Cir.
1969), and the United States Supreme Court has expressly applied
the doctrine of judicial immunity to actions brought pursuant to
Section 1983. See Pierson v. Ray, 386 U.S. 547, 554-55 (1967).
"[I]t is not for the protection or benefit of a malicious or
corrupt judge, but for the benefit of the public, whose interest
it is that the judges should be at liberty to exercise their
functions with independence and without fear of consequences."
Pierson v. Ray, 386 U.S. 547, 554 (1967) (internal quotation
and citations omitted).
"[J]udicial immunity is an immunity from suit, not just from
ultimate assessment of damages," Mitchell v. Forsyth,
472 U.S. 511, 526 (1985), and is accordingly not "overcome by
allegations of bad faith or malice, the existence of which
ordinarily cannot be resolved without engaging in discovery and
eventual trial." Mireles, 502 U.S. at 11 (citing Pierson,
386 U.S. at 554). A judge will also not be deprived of immunity based
on an incorrect decision, or an action in excess of his
authority. Fields v. Soloff, 920 F.2d 1114, 1119 (2d Cir.
1990). "That the proceeding may have allegedly been conducted in
an irregular or erroneous manner does not abrogate the immunity."
Cogswell v. Rodriguez, 304 F. Supp.2d 350, 356 (E.D.N.Y. 2004)
(citing Stump v. Sparkman, 435 U.S. 349, 363 n. 12 (1978)). Nor
will absolute immunity be overcome by allegations that a judge's
decision was "biased and prejudicial." See Warburton v. Goord,
14 F. Supp.2d 289, 296 (W.D.N.Y. 1998). Even "the commission of grave ...