United States District Court, E.D. New York
June 15, 2005.
SAMUEL M. LEVINE, Plaintiff,
RICHARD S. LAWRENCE, and COURT OFFICER JANOSEK, Defendants.
The opinion of the court was delivered by: DENIS HURLEY, District Judge
MEMORANDUM & ORDER
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 procedural errors" by a judge does
not abrogate his absolute immunity from liability. Stump,
435 U.S. at 359. Thus, to avoid dismissal, Levine must allege more
than the mere tortiousness, wrongfulness, maliciousness, or
intentionality of the Defendants' actions.
The Supreme Court has held that absolute judicial immunity is
generally overcome in only two sets of circumstances: "First, a
judge is not immune from liability for nonjudicial actions, i.e.,
actions not taken in the judge's judicial capacity." Mireles,
502 U.S. at 11 (citing Forrester v. White, 484 U.S. 219,
227-229 (1988)); and Stump, 435 U.S. at 360. "Second, a judge
is not immune for actions, though judicial in nature, taken in
the complete absence of all jurisdiction." Id. at 12 (citing
Stump, 435 U.S. at 356-357; and Bradley v. Fisher,
80 U.S. 335, 351 (1871)). Since the present case implicates neither of
these exceptional circumstances, Judge Lawrence is entitled to
absolute judicial immunity, and all claims against him must
therefore be dismissed.
A. Ejecting Levine from the courtroom and summarily holding
him in contempt was a judicial action.
Whether an act is "judicial" depends on "the nature of the act
itself, i.e., whether it is a function normally performed by a
judge," as well as on "the expectations of the parties, i.e.,
whether they dealt with the judge in his judicial capacity."
Stump, 435 U.S. at 362. The Supreme Court has explained that a
reviewing court should not scrutinize the "particular act in
question" in a vacuum, but instead should "look to the particular
act's relation to a general function normally performed by a
judge." Mireles, 502 U.S. at 12-13 (while directing police officers to "carry out a judicial order with excessive force" is
not "a function normally performed by a judge," it is "relat[ed]
to a general function normally performed by a judge," namely
"directing police officers to bring counsel in a pending case
before the court").*fn7
A judge acts in his judicial capacity when he exercises control
over his courtroom, and by extension, when he bars a litigant or
attorney from the courtroom. See Cameron v. Seitz, 38 F.3d 264,
271 (6th Cir. 1994) (citing Sheppard v. Maxwell, 384 U.S. 333,
358 (1966)). More specifically, "[t]he judicial power to punish
through summary criminal contempt adjudication is a firmly
established element in the operation of this country's courts,"
Sandstrom v. Butterworth, 738 F.2d 1200, 1208 (11th Cir. 1984),
and is clearly related to a general function normally performed
by a judge. See, e.g., Bardascini v. Reedy, 381 N.Y.S.2d 151,
152 (App.Div. 1976) (since a judge has authority to punish
contempts summarily, "any errors committed by him in furtherance
of that power would be within the exercise of his judicial
function").*fn8 Nor does the fact a judge's order is carried out by others
somehow transform it "from `judicial' to `executive' in
character." As the Supreme Court has explained, it is the nature
of the function performed, not the identity of the actor who
performed it, that determines whether absolute judicial immunity
is applicable. See Forrester v. White, 484 U.S. 219, 229
(1988). Judge Lawrence's decision to hold Levine in criminal
contempt of court was thus not a "nonjudicial action" that
would be excepted from absolute judicial immunity.
B. Judge Lawrence did not act in the clear absence of
Although Levine's complaint states that "Defendant Lawrence was
without jurisdiction . . . for the wrongful, wilful, and
intentional acts perpetrated on Plaintiff Levine," the facts
alleged in the same complaint indicate otherwise. As noted
previously, "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). And
more specifically, mere conclusory allegations that a judge acted
without jurisdiction are insufficient to trump judicial immunity,
particularly where the plaintiff's own allegations in fact
demonstrate that the judge did have jurisdiction over the
subject matter before him. See Brady v. Marks,
7 F. Supp.2d 247, 251-52 (W.D.N.Y. 1998).
The scope of a judge's jurisdiction "must be construed broadly
where the issue is the immunity of the judge." Stump v.
Sparkman, 435 U.S. 349, 356 (1978). The Second Circuit has
assumed without deciding that judges in courts of limited
jurisdiction are entitled, as are judges in courts of general
jurisdiction, to judicial immunity for all judicial acts not performed in the clear absence of jurisdiction. Tucker v.
Outwater 118 F.3d 930, 937-38 (2d Cir. 1997) (noting that "the
clear weight of authority" has applied absolute immunity to both
types of judges). "Where jurisdiction over the subject-matter is
invested by law in the judge, or in the court which he holds, the
manner and extent in which the jurisdiction shall be exercised
are generally as much questions for his determination as any
other questions involved in the case" Stump, 435 U.S. at 356 n.
6 (citing Bradley v. Fisher, 80 U.S. 335, 351 (1872)). In the
present case, there is no dispute that Judge Lawrence had
jurisdiction over the underlying family law dispute, pursuant to
which Levine appeared in his courtroom.
Even assuming that Judge Lawrence acted in excess of his
authority, that does not mean that he acted in the absence of
all jurisdiction, particularly when his actions are "taken in
the very aid of the judge's jurisdiction over a matter before
him" Mireles v. Waco, 502 U.S. 9, 13 (1991) (by authorizing
police officers to use excessive force to bring attorney into his
courtroom, judge acted in excess of his authority, but not
outside his jurisdiction). Rather, a judge acts in the clear
absence of all jurisdiction only when the matter upon which he
acts is clearly outside the subject matter of the court over
which he presides. See Stump, 435 U.S. at 357 n. 7 (citing
Bradley, 80 U.S. at 352) (were probate judge to try criminal
case, he would act in clear absence of jurisdiction and would not
be immune from liability for his actions; but were criminal court
judge to convict defendant of nonexistent crime, he would merely
act in excess of his authority and would be immune from suit).
Just as judges act within their judicial roles when maintaining
order and decorum in their courtrooms, they also act within their
jurisdiction when doing so. See Huminski v. Corsones, 386 F.3d 116, 140 (2d Cir. 2004). State judges
generally have jurisdiction over contempt proceedings "even when
they fail to comport with procedural niceties." O'Neil v. City
of Lake Oswego, 642 F.2d 367, 370 (9th Cir. 1981); see also
Williams v. Sepe, 487 F.2d 913, 913-14 (5th Cir. 1973) (both
cited in Tucker v. Outwater, 118 F.3d 930, 936 (2d Cir. 1997)).
New York state judges in particular do not act in the clear
absence of all jurisdiction when instituting criminal contempt
proceedings pursuant to Judiciary Law § 750 against parties who
disobey the judges' mandates. See Abrahams v. DiBlasi, No. 02
Civ. 8519, 2003 WL 1846305, at *2 (S.D.N.Y. Apr. 8, 2003)). In
sum, Judge Lawrence clearly acted within his jurisdiction when he
had Levine removed from his courtroom, and when he convicted him
of contempt, and is thus absolutely judicially immune from
IV. Dismissal of Levine's Claims Against Janosek Is
A. Janosek's entitlement to absolute immunity cannot be
determined at the Rule 12(b)(6) stage.
The Defendants argue that Judge Lawrence's absolute judicial
immunity (discussed in Part III, supra) is "logically extended"
to cover Janosek as well. But because certain critical facts are
unclear from the face of Levine's complaint, dismissal of his
claims against Janosek on the basis of absolute immunity is
inappropriate at this juncture.
Absolute immunity is "of a rare and exceptional character,"
Barrett v. U.S., 798 F.2d 565, 571 (2d Cir. 1986), and should
only be applied "sparingly." Burns v. Reed, 500 U.S. 478, 487
(1991). In considering whether absolute immunity applies, federal
courts employ a "functional approach," id. at 486, looking at
"the nature of the function performed, not the identity of the actor who performed it," Forrester v. White,
484 U.S. 219, 229 (1988), and whether there is historical or
common-law support for cloaking the challenged actions with
absolute immunity. Burns, 500 U.S. at 492-93. An official
seeking absolute immunity bears the burden of showing that it is
warranted for the function in question, against a presumption
that qualified immunity affords sufficient protection. Id. at
Because absolute judicial immunity is often "essential to
safeguarding the integrity of the judicial process," it often
"extends to those performing functions closely associated with
that process." Hill v. City of New York, 45 F.3d 653, 660 (2d
Cir. 1995). This "quasi-judicial" absolute immunity may at times
protect various persons who are not judges from any and all
lawsuits arising out of their actions, if (1) such persons are
themselves "integral parts of the judicial process," Briscoe v.
LaHue, 460 U.S. 325, 335 (1983), or (2) their actions are taken
pursuant to a direct judicial order. See Richman v. Sheahan,
270 F.3d 430, 435 (7th Cir. 2001) (citing cases from First,
Fifth, and Ninth Circuits); see also Respass v. New York City
Police Dep't, 852 F. Supp. 173, 177 (E.D.N.Y. 1994) (citing
Roland v. Phillips, 19 F.3d 552 (11th Cir. 1994)). However,
there appears to be no case in this Circuit discussing when
arrests or uses of force by court officers restoring order in a
courtroom or enforcing summary contempt orders fall within the
scope of absolute quasi-judicial immunity, and the other
authorities that have addressed this issue appear to be split.
Some courts have allowed court security personnel to enjoy
absolute quasi-judicial immunity for their actions, where ordered
by the trial judge and related to a judicial function. See
Martin v. Hendren, 127 F.3d 720, 721 (8th Cir. 1997). The Eighth Circuit has noted that "judges frequently encounter disruptive
individuals in their courtrooms," and that "exposing bailiffs and
other court security officers to potential liability for acting
on a judge's courtroom orders could breed a dangerous, even
fatal, hesitation." Id. at 722. Accordingly, the Eighth Circuit
has held that bailiffs and similar court officers generally
cannot be sued for forcibly removing unruly or disruptive
attorneys or litigants from a courtroom at the presiding judge's
direction. See id. Such immunity may also cover court personnel
who, at the direct order of a judge, temporarily confine a
litigant. See Fowler v. Alexander, 478 F.2d 694, 695-96 (4th
Cir. 1973), and Hansen v. Wahl, No. 89 Civ. 4054, 1990 WL 5730,
at *1 (D. Kan. Jan. 16, 1990) (court officer absolutely immune
from liability for enforcing judge's order to remove disruptive
plaintiff from courtroom and incarcerate him for three days).
But "[b]ecause qualified immunity is presumed to be sufficient
to protect public officials in the exercise of their
discretionary duties," and "absolute immunity extends only so far
as necessary to protect the judicial process," Hill v. City of
New York, 45 F.3d 653, 660 (2d Cir. 1995), some courts have been
reluctant to grant court officers absolute immunity for their
actions taken in the course of physically subduing or removing
disruptive individuals. See Richman v. Sheahan, 270 F.3d 430
(7th Cir. 2001); Valdez v. City and County of Denver,
878 F.2d 1285 (10th Cir. 1989); Dudley v. Johnson, No. 95 Civ. 1755,
1995 WL 710916 (E.D. La. Nov. 30, 1995); and Napier v. Jonas,
No. 94 Civ. 630, 1995 WL 454774 (W.D. Mich. Feb. 10, 1995).
While the outcomes of the various cases addressing this issue
have thus varied, most courts seem to agree that absolute quasi-judicial immunity
should not extend to court officers enforcing judicial orders if
either (1) the judge's order is facially invalid, see Penn v.
U.S., 335 F.3d 786, 789 (8th Cir. 2003), and Roland v.
Phillips, 19 F.3d 552, 556-57 (11th Cir. 1994); or (2) the
judge's order is not facially invalid, but the court officer
exceeds the scope of that order, see Cruz v. Bodek, No. 96 Civ.
6989, 1997 WL 55947, at *3 (S.D.N.Y. Feb. 10, 1997) (Koeltl, J.)
(citing Brown v. Costello, 905 F. Supp. 65, 75 (N.D.N.Y. 1995),
Roland v. Phillips, 19 F.3d 552, 555 (11th Cir. 1994), and Cok
v. Cosentino, 876 F.2d 1, 3 (1st Cir. 1989)), or enforces it in
an improper manner. See, e.g., Martin v. Bd. of County Commrs.
of County of Pueblo, 909 F.2d 402, 405 (10th Cir. 1990).
In the latter regard, some courts have held that a bailiff is
only entitled to quasi-judicial absolute immunity where his use
of force to remove a person from the courtroom is within the
scope of a direct judicial order. See Dudley v. Johnson, No. 95
Civ. 1755, 1995 WL 710916, at *2 (E.D. La. Nov. 30, 1995)
(bailiff who used physical force against litigant to restore
order in courtroom is not entitled to absolute immunity if he was
not acting pursuant to direct judicial order). And the Seventh
Circuit has indicated that the scope of such judicial orders must
be interpreted rather narrowly, and that law enforcement
officials are only entitled to absolute immunity for their
actions where their actions were "specifically ordered by the
judge." Richman v. Sheahan, 270 F.3d 430, 436 (7th Cir. 2001)
(emphasis added). In Richman v. Sheahan, following a judge's
order that a disruptive pro se litigant be "restrained," fourteen
deputies "attacked" the litigant, "forced him to the floor," and
"sat on and handcuffed him." 270 F.3d at 433-34. The Seventh
Circuit held that such conduct was not "specifically directed" by the judge, and that the plaintiff was thus
challenging the "manner in which [the deputies] enforced the
judge's order," and not the judge's order itself. Id. at
437-38. Judge Sand similarly suggested this specificity standard
for absolute quasi-judicial immunity in Moss v. Williams, No.
84 Civ. 3793, 1984 WL 1325, at *3 (S.D.N.Y. Dec. 11, 1984)
(refusing to extend absolute immunity to court security officers
who "do not claim that any actions they may have taken were at
the specific direction of a judge").
Thus, where it is unclear from the record whether all of a
court officer's challenged conduct, or the manner in which he
acted was "done under the trial judge's authority and direction,"
the officer is not entitled to absolute quasi-judicial immunity.
See Robinson v. Freeze, 15 F.3d 107, 109 (8th Cir. 1994). As
noted in Part I, supra, this Court is presently limited to the
facts alleged in the complaint and the documents attached
thereto. Because there is no indication from the complaint and
attached documents what, if anything, Judge Lawrence initially
ordered Janosek to do, and what, exactly, Janosek did in
response, it cannot yet be determined whether Janosek's actions,
or the manner in which he executed Judge Lawrence's orders,
exceeded the scope of those orders. Janosek therefore cannot be
granted absolute immunity.
B. Janosek's entitlement to qualified immunity cannot be
determined at the Rule 12(b)(6) stage.
As an alternative to absolute immunity, the Defendants argue
that dismissal of Levine's claims against Janosek are warranted
under the doctrine of qualified immunity. Because this defense
similarly turns on facts not apparent from the face of Levine's
complaint, dismissal on the basis of qualified immunity is premature as
1. Section 1983 and qualified immunity: legal standards
Section 1983, pursuant to which Levine brings his claims,
provides a vehicle for civil suits for damages against any person
who, acting under color of state law, deprives another person of
a right, privilege or immunity secured by the Constitution or the
laws of the United States. See 42 U.S.C. § 1983. When a law
enforcement officer is alleged to have violated a person's
constitutional rights however, the doctrine of qualified immunity
protects that officer from such suits for damages if his "conduct
does not violate clearly established statutory or constitutional
rights of which reasonable [officer] would have known." Kerman
v. City of New York, 261 F.3d 229, 236 (2d Cir. 2001) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Since Section 1983 "is not itself a source of substantive
rights" and only provides "a method for vindicating federal
rights elsewhere conferred," Graham v. Connor, 490 U.S. 386,
393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144, n.
3 (1979)). "[t]he first step in any claim is to identify
the specific constitutional right allegedly infringed." Singer
v. Fulton County Sheriff, 63 F.3d 110, 115 (2d Cir. 1995)
(citations omitted). "The validity of the claim must then be
judged by reference to the specific constitutional standard which
governs that right." Spiegel v. Rabinovitz, 121 F.3d 251, 254
(7th Cir. 1997).
Fairly read, Levine's complaint asserts that Janosek violated
Levine's civil rights through "wrongful, wilful and intentional
acts" of (1) false arrest, and (2) the use of excessive force or an otherwise unreasonable manner of effecting the
arrest.*fn9 In support of this claim, Levine's complaint
alleges the following specific actions by Janosek: "The Court
Officer assaulted Plaintiff Levine by pushing him out of the
[courtroom] doorway, back into the hallway," subsequently
"Janosek came out of the courtroom, assaulted Plaintiff Levine by
grabbing his arms and putting handcuffs around his wrists,"
Levine was "pushed through the hallway" and "treated like a
criminal," and that "Janosek had no probable cause to believe
that a crime had been committed."
The next question is whether, when taken in the light most
favorable to the plaintiff, the facts alleged show that the
defendant officer's conduct violated the alleged constitutional
right at all. See Saucier v. Katz, 533 U.S. 194, 201 (2001).
This is a legal, not factual, inquiry. Genas v. State of N.Y.
Dep't of Corr. Servs., 75 F.3d 825, 830 (2d Cir. 1996). If, even
assuming that all of the allegations in the complaint are true,
the plaintiff has not established the defendant-officer's
violation of any constitutional right, there is no need for
further inquiry; but if the plaintiff has successfully alleged
some violation of his constitutional rights, the court must then
determine whether that right was "clearly established" at the
time of its violation. Saucier v. Katz, 533 U.S. 194, 201
(2001). A right was clearly established if, "in light of the
specific context of the case," it would have been "clear to a reasonable officer that his conduct was unlawful in the situation
he confronted." Id. at 201-02. This is a question of law.
Kerman v. City of New York, 374 F.3d 93, 108-09 (2d Cir. 2004).
There is one final "dimension" to the qualified immunity
inquiry. Even where an officer violates a clearly-established
right, "[i]f the officer's mistake as to what the law requires is
reasonable, however, the officer is entitled to the immunity
defense." Saucier, 533 U.S. at 205. A defendant passes this
"objective reasonableness" test, and is entitled to immunity, if
"officers of reasonable competence could disagree" on the
legality of his actions. Lennon v. Miller, 66 F.3d 416, 420 (2d
Cir. 1995). Thus, in evaluating a qualified immunity defense,
"the inquiry is not whether plaintiff has alleged a violation of
an abstract legal standard, but whether under the particular
circumstances alleged, defendants could have reasonably believed
that they did not violate plaintiff's constitutional rights."
Gittens v. LeFevre, 891 F.2d 38, 42 (2d Cir. 1989). While the
objective reasonableness of a defendant's conduct may be resolved
as a matter of law by the court where there is no dispute as to
the material facts, it is generally a mixed question of law and
fact to be resolved by a factfinder. See Kerman v. City of New
York, 374 F.3d 93, 108-09 (2d Cir. 2004), and Lennon v.
Miller, 66 F.3d 416, 421 (2d Cir. 1995).
A qualified immunity defense may be presented, but "faces a
formidable hurdle" in a Rule 12(b)(6) motion, and is usually not
successful. See McKenna v. Wright, 386 F.3d 432, 434 (2d Cir.
2004). As with any Rule 12(b)(6) dismissal motion, the court must
accept all of the complaint's material allegations as true, and
draw all reasonable inferences in favor of the plaintiff. See
Velez v. Levy, 401 F.3d 75, 100 (2d Cir. 2005). Rule 12(b)(6)
dismissal on qualified immunity grounds is only permitted where the basis
for qualified immunity is established by the face of the
complaint itself, and it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim that would
entitle him to relief. McKenna, 386 F.3d at 435-36 (citing
Green v. Maraio, 722 F.2d 1013, 1019 (2d Cir. 1983), and
Citibank, N.A. v. K-H Corp., 968 F.2d 1489, 1494 (2d Cir.
1992)). That is, "the plaintiff is entitled to all reasonable
inferences from the facts alleged, not only those that support
his claim, but also those that defeat the immunity defense."
McKenna, 386 F.3d at 436.
Section 1983 complaints alleging Fourth Amendment violations in
particular should not be dismissed on qualified immunity grounds
where there are "conflicting plausible interpretations" of the
events surrounding the plaintiff's arrest. Hyde v. Arresting
Officer Caputo, No. 98 Civ. 6722, 2001 WL 521699, at *2
(E.D.N.Y. May 11, 2001) (citing Posr v. Court Officer,
180 F.3d 409, 415 (2d Cir. 1999)).
2. Qualified immunity is premature on Levine's false arrest
While false or unlawful arrest is a state law cause of action,
such a claim rests upon an allegation that the claimant was
arrested without probable cause in violation of the
Fourth Amendment. See Devenpeck v. Alford, 125 S.Ct. 588, 592 (2004).
Such claims are thus commonly brought pursuant to Section 1983,
although federal courts generally look to the law of the state in
which the arrest occurred. See Davis v. Rodriguez,
364 F.3d 424, 433 (2d Cir. 2004).
The Fourth Amendment guarantees citizens the right "to be
secure in their persons . . . against unreasonable . . .
seizures," U.S. CONST. amend. IV. In order to be reasonable (and thus lawful) under the Fourth Amendment, any
"seizure"*fn10 of an individual, including his warrantless
arrest for a misdemeanor or "very minor criminal offense,"
generally must be supported by probable cause. See U.S. v.
Mendenhall, 446 U.S. 544, 554 (1980), and Md. v. Pringle,
540 U.S. 366, 370 (2003) (citations omitted). Infringements of the
Fourth Amendment and its probable cause requirement are the basis
for Section 1983 "false arrest" claims. See Weyant v. Okst,
101 F.3d 845, 852 (2d Cir. 1996). Conversely, at least in New York,
the existence of probable cause to arrest is a complete defense
to a Section 1983 action based on an allegation of false arrest.
Probable cause under the Fourth Amendment exists "where the
facts and circumstances . . . are sufficient unto themselves to
warrant a man of reasonable caution to believe that an offense
has been or is being committed." Berger v. State of N.Y.,
388 U.S. 41, 55 (1967). This standard is, as its plain language
indicates, fact-based. Thus, where a court is unable to determine
from the pleadings that, as a matter of law, it was objectively
reasonable for a defendant-officer to find probable cause,
dismissal of a false arrest claim against that officer is
improper. See Bullard v. City of New York, 240 F. Supp.2d 292,
301 (S.D.N.Y. 2003) (Koeltl, J.). As suggested earlier in this
opinion, the details of what occurred when Levine attempted to
enter Judge Lawrence's courtroom are unclear at this point. It
therefore cannot currently be determined whether Janosek had
probable cause to arrest Levine, and qualified immunity on Levine's false arrest claim is accordingly
3. Qualified immunity on Levine's excessive force claim is
Even assuming that Janosek had probable cause to arrest Levine,
he would not automatically be immune from any and all of Levine's
claims. The Supreme Court and Second Circuit have long and
unequivocally stated that the reasonableness of an arrest or
other seizure depends in part on how it is carried out. See
Tenn. v. Garner, 471 U.S. 1, 8 (1985); and Lauro v. Charles,
219 F.3d 202, 209 (2d Cir. 2000) ("the Fourth Amendment's
proscription of unreasonable searches and seizures not only
prevents searches and seizures that would be unreasonable if
conducted at all, but also ensures reasonableness in the manner
and scope of searches and seizures that are carried out")
(internal quotations and ellipses omitted). Even where a law
enforcement officer has probable cause to seize or arrest a
person, the failure to effectuate the seizure or arrest in an
unreasonable fashion may be grounds for a Section 1983 claim.
See, e.g., Thomas v. Roach, 165 F.3d 137, 143-44 (2d Cir.
1999), and Franklin v. Foxworth, 31 F.3d 873, 875 (9th Cir.
As in other Fourth Amendment contexts, the requisite inquiry in
an unreasonable seizure claim is an objective one: whether an
officer's actions were "objectively reasonable" in light of the
totality of the facts and circumstances that confronted him,
without regard to his underlying intent or motivation. See
Graham v. Connor, 490 U.S. at 397, and Tenn. v. Garner,
471 U.S. at 8-9. This requires "a careful balancing of the nature and
quality of the intrusion on the individual's Fourth Amendment
interests against the countervailing governmental interests at
stake," id. at 396 (internal quotations omitted), and an assessment of the degree to which the officer's actions
furthered the legitimate law enforcement purposes behind those
actions. Lauro, 219 F.3d at 211. In particular, a court should
consider the severity of the underlying crime, whether the
suspect poses a threat to the safety of the officer or others,
and whether he actively is resisting arrest or attempting to
evade arrest by flight. See Graham, 490 U.S. at 396.
In the present case, the "totality of the facts and
circumstances" is entirely unclear; in particular, it is unknown
whether and to what extent Levine was disrupting the underlying
proceedings, threatening the safety of Janosek or other
individuals, or attempting to resist or evade arrest. It is thus
impossible to know, at this early stage of the proceedings,
whether it would have been clear to a reasonable officer in
Janosek's situation that the manner of Levine's arrest violated
the Fourth Amendment. Qualified immunity on Levine's excessive
force claim is thus premature as well.
C. Janosek's other grounds for dismissal lack merit.
In addition to absolute and qualified immunity, the Defendants
argue that Levine's claims should be dismissed for a variety of
other reasons,*fn11 which need only be addressed
1. The Rooker-Feldman doctrine is inapplicable to Levine's
The Defendants argue that under the "Rooker-Feldman doctrine,"
this Court lacks jurisdiction to hear Levine's claims, in particular his claims
that the New York statutory scheme is unconstitutional. However,
the Rooker-Feldman doctrine is inapplicable in the present case.
Under the Rooker-Feldman doctrine, lower federal courts lack
subject matter jurisdiction over cases in which the exercise of
jurisdiction may result in the reversal or modification of a
state court judgment. Hachamovitch v. DeBuono, 159 F.3d 687,
693 (2d Cir. 1998). Instead, "among federal courts, only the
Supreme Court has subject matter jurisdiction to review state
court judgments." Johnson v. Smithsonian Inst., 189 F.3d 180,
185 (2d Cir. 1999). By contrast, however, where a Section 1983
suit "challenges a rule or statute relied upon by the state court
on the grounds that the rule or statute is itself
unconstitutional, then the federal court has the subject matter
jurisdiction to hear the case." Fariello v. Campbell,
860 F. Supp. 54, 66 (E.D.N.Y. 1994) (citing D.C. Court of Appeals v.
Feldman, 460 U.S. 462, 486-88 (1983); and Texaco Inc. v.
Pennzoil Co., 784 F.2d 1133, 1144 (2d Cir. 1986) (rev'd on
other grounds, 481 U.S. 1, 10 (1987)).
In this case, Levine is apparently not seeking to reverse or
modify the underlying contempt judgment; he is only seeking
damages for the Defendants' purportedly "[t]ortious,
unconstitutional conduct," and a declaration that the New York
criminal contempt scheme is unconstitutional. The Rooker-Feldman
doctrine thus does not present a jurisdictional bar to this
Court's consideration of Levine's claims.
2. Levine has adequately alleged an actual injury.
The Defendants argue, somewhat incredibly, that Levine lacks
standing to bring the present lawsuit because he "does not specify any actual or
potential injury, whether physical, emotional, or to [his]
property for which he seeks help." Instead, argue the Defendants,
Levine merely seeks "to have the Government act in accordance
with [the] law."
It is true, as the Defendants suggest, that in order to meet
the constitutional requirement of standing, a federal plaintiff
must establish some "injury in fact," which must be "concrete and
particularized," "actual or imminent," and "not conjectural or
hypothetical." See Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992). However, that does not mean that a
plaintiff's injuries must be earth-shatteringly severe in order
to bestow standing upon him. Even social shame can constitute an
injury-in-fact. See, e.g., A.L.A. v. West Valley City,
26 F.3d 989, 990-91 (10th Cir. 1994) (plaintiff's embarrassment and
depression following defendants' unlawful disclosure of erroneous
but confidential information that he was HIV-positive were "more
than sufficient to satisfy the `injury in fact' requirement for
standing"). A plaintiff whose Fourth Amendment rights were
allegedly violated clearly has standing to seek appropriate
monetary and declaratory relief. See Shain v. Ellison,
356 F.3d 211, 214-15 (2d Cir. 2004). And at the pleading stage, a
plaintiff must merely allege facts sufficient to establish
standing, Lujan, 504 U.S. at 561, and a court must accept "all
facts alleged in the complaint as true and draw? all reasonable
inferences in favor of the plaintiff." Securities Investor
Protection Corp. v. BDO Seidman, LLP, 222 F.3d 63, 68 (2d Cir.
Levine's complaint clearly indicates that he was physically
seized and arrested by Janosek, and then humiliatingly pushed
through the courthouse lobby in handcuffs, in full view of the
public. Levine's allegations amply meet the requirements of
standing. If this treatment was in fact unreasonable and unlawful, as Levine's
complaint indicates and as must be assumed for purposes of the
present motion, then he undeniably suffered a sufficient injury
to have standing to bring the present suit.
3. Collateral estoppel does not bar this action.
The Defendants argue that Levine's claims must be dismissed on
the basis of collateral estoppel, or "issue preclusion." The
Defendants again correctly state a general principle of law
namely that "collateral estoppel principles . . . bar a § 1983
plaintiff from relitigating in federal court an issue which was
previously decided in an action or proceeding brought in State
court." [Emphasis added.] See Colon v. Coughlin, 58 F.3d 865,
869 (2d Cir. 1995). But as the words "previously decided" in
their own quotation should have suggested to the Defendants,
collateral estoppel only applies where the issue for which
preclusion is sought "was actually and necessarily decided in a
prior proceeding." Id. Contrary to the Defendants' suggestion,
it is not sufficient that the party against whom the doctrine
is asserted merely had a full and fair opportunity to litigate
the issue in the first proceeding. Id. Nothing in Levine's
submissions (or even the Defendants') remotely suggests that
Levine's current constitutional arguments were raised before
Judge Lawrence, or in any other state court. The fact that Levine
(arguably) could have raised these arguments does not justify
dismissal on collateral estoppel grounds.
4. Levine's claims are not barred by the Eleventh Amendment.
The Defendant argue that "where a state official is sued for
damages in his official capacity, such suit is deemed an action
against the state, thus entitling that state official to claim immunity from suit under the Eleventh Amendment of the
U.S. Constitution." There is one slight problem with this
argument: the first paragraph of Levine's complaint notes that
his claims are brought against Judge Lawrence and Janosek in
their individual, as well as official, capacities.
The U.S. Supreme Court has unanimously held that the
Eleventh Amendment does not bar Section 1983 actions against state
officials sued in their personal capacities. See Hafer v. Melo,
502 U.S. 21, 31 (1991). Section 1983 actions against state
officials in their personal capacity alleging violations of
federal constitutional rights are not considered actions against
a state, because as a matter of law, acts performed by state
officials that violate federal law cannot be authorized by the
state. See Pennhurst State Sch. and Hosp. v. Halderman,
465 U.S. 89, 102 (1984) (citing Ex parte Young, 209 U.S. 123, 160
Since Levine's complaint clearly states that it is brought
against Judge Lawrence and Janosek in their individual
capacities, and clearly alleges that Janosek violated Levine's
federal constitutional rights, the Eleventh Amendment is no bar
to the present suit.
5. Levine does not fail to state a cause of action against
The Defendants suggest that Levine has failed to allege
sufficient facts to substantiate his claims, specifically
"specific allegations of fact which indicate a deprivation of
constitutional rights." The Defendants' argument, however,
entirely omits any reference to the specific facts that Levine
must allege in support of a Fourth Amendment-based claim for
unlawful arrest or excessive force, and how Levine's complaint is
deficient in this regard.
"The allegations necessary to state [a Fourth Amendment] claim,
as in the case of any other civil action in the federal courts, are not to be
held insufficient unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief." Cohen v. Norris, 300 F.2d 24, 31
(9th Cir. 1962) (citing Conley v. Gibson, 355 U.S. 41 (1957)).
In the present case, Levine's complaint indicates that he was
pushed out of a courtroom, handcuffed, pushed through the
courthouse, arrested, and kept in handcuffs for roughly thirty
minutes but there is little clear indication as to why.
Further, the information contained in the complaint and
supporting papers indicates that Levine was treated rather
roughly in spite of the fact that he is an elderly man, was
almost certainly unarmed and alone, seemingly posed no threat to
the safety of Janosek or anyone else, and did not actively resist
or attempt to evade the arrest in question. When these points are
taken together, it does not appear beyond doubt that Levine can
prove no set of facts in support of his claims that he was
arrested without probable cause and with excessive force. Cf.
Veterans Speakers Alliance v. Fowler, No. 91 Civ. 4459, 1993 WL
69200, at *1-2 (N.D. Cal. March 2, 1993) (plaintiffs' allegations
that they were arrested, handcuffed, and detained for over one
hour after refusing to surrender protest signs at parade
sufficiently alleged fourth amendment violation to survive Rule
12(b)(6) dismissal motion).
For all of the reasons above, the Defendants' motion to dismiss
the complaint 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. The Clerk of Court is directed to remove Judge Lawrence's name from the docket.