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LEVINE v. LAWRENCE

June 15, 2005.

SAMUEL M. LEVINE, Plaintiff,
v.
RICHARD S. LAWRENCE, and COURT OFFICER JANOSEK, Defendants.



The opinion of the court was delivered by: DENIS HURLEY, District Judge

MEMORANDUM & ORDER

INTRODUCTION

  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.

  BACKGROUND

  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 immunity.

  DISCUSSION

  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 statutory scheme."

  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 mistaken.

  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 ...


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