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Levine v. McCabe

September 19, 2006


The opinion of the court was delivered by: Hurley, Senior District Judge



Plaintiff Samuel Levine, a retired Nassau County district judge, has brought the present suit against Defendants Jonathan Lippman, Chief Administrative Judge for the New York State Unified Court System, and Edward G. McCabe, the Administrative Judge of the courts of Nassau County. Levine alleges that Defendants' refusal to appoint him "judicial hearing officer," violated the First Amendment and Title VII. Defendants now move to dismiss Levine's Amended Complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6) for failure to state a claim. Levine opposed the motion and brought a cross-motion to submit a Second Amended Complaint. For the reasons that follow, Defendants' motion is GRANTED in part and DENIEDin part and Levine's motion to amend is DENIED.


The following summary of the facts is drawn from the Court's February 23, 2005 Memorandum and Order, and the most recent submissions by the parties. According to Levine's complaint and the documents attached thereto, Levine has been a practicing attorney in New York since 1950. He has been described as a "gadfly" and a champion of "seemingly hopeless causes." In 1996 he was elected to a term as a Nassau County district court judge for the county's "First District," and as such, apparently automatically became the "President of the Board of Judges" or the "presiding judge" of the Nassau County district courts. The New York Times described Levine as "a perennial Democratic also-ran in predominantly Republican Nassau county," and his election was apparently something of an upset. Levine states that as presiding judge of the Nassau County district courts, he was supposed to be "in charge of the daily operation and administration of the District Court subject to the control and reporting to Defendant McCabe." But according to Levine, McCabe, as a Republican, maneuvered to keep all power and authority in his own hands. Levine also insists that McCabe "ignored and failed to act on many serious problems in the District Court set forth [in] Levine['s] reports and recommendations," and made efforts to prevent Levine from presiding over a politically-charged case. McCabe's motives, insists Levine, were "political retaliation and prejudice" against him.

On December 31, 1999, having apparently reached the age of 70, Levine retired pursuant to the New York Constitution's mandatory judicial retirement provision.*fn1 Shortly prior to his retirement, Levine applied to be designated as a judicial hearing officer, pursuant to the provisions of the New York Judiciary Law. According to Levine, he satisfied the statutory and regulatory requirements, in that he was "well qualified" to be a judicial hearing officer, and his application included an "extraordinary array of supporting documentation" to prove it.

On January 26, 2000, Levine was interviewed by the judicial hearing officer selection advisory committee appointed by Lippman for Nassau County. Levine believes that the committee received and reviewed a report from McCabe recommending that his application be denied, and that the committee recommended the same. In a letter dated March 9, 2000, Lippman informed Levine that his application had been denied. Levine's immediate request for reconsideration of that decision was denied in a subsequent letter from Lippman, dated March 30, 2000. Levine asserts that he was "denied the right and opportunity to receive a copy of [McCabe's] negative report and recommendations," that the Defendants "failed to submit or serve [him with] any written charges or complaints concerning his conduct or services or other facts impacting on the questions of competence, work ethic, experience or judicial temperament," and that he was "denied notice of any such charges or complaints."

On June 30, 2001, Levine submitted a new application to be a judicial hearing officer, this time in Queens County. This application was denied as well, but without any further interview or hearing.

On December 23, 2003, Levine filed the present suit pursuant to 42 U.S.C. § 1983, seeking a declaratory judgment that New York's statutory scheme for appointment of judicial hearing officers is unconstitutional, a declaratory judgment that the Defendants violated various types of his civil rights, as well as $1,200,000 in money damages and $300,000 in costs and fees from Defendants. Defendants moved to dismiss the suit, on the grounds that Levine's Complaint brought claims barred by the applicable statute of limitations, and because Levine had failed to state equal protection and due process claims.

In a February 23, 2005 Memorandum and Order, this Court dismissed, as time-barred, all claims relating to the denial of Levine's first application. The Court similarly dismissed all of Levine's claims asserting equal protection and due process violations. The Court thus dismissed the Complaint in its entirety, but nevertheless granted Levine leave to amend his Complaint because the allegations regarding his second application were not barred by the statute of limitations. (See Feb. 23, 2005 Mem. & Order, at 12.) The Court granted leave to submit an amended complaint with respect to Levine's claim that his second application for appointment as a judicial hearing officer was denied as a result of political retaliation. The Court noted that an employment retaliation claim cannot be raised under the Equal Protection Clause, although it may properly be brought pursuant to the First Amendment or Title VII. (Id. at 24.)

Thereafter, Defendant submitted an Amended Complaint, alleging that the denial of his application for appointment as a judicial hearing officer violated his civil rights pursuant to 42 U.S.C. § 1983 and Title VII, 42 U.S.C. § 2000e, et seq. Defendants now move to dismiss the Amended Complaint, again for failure to state a claim pursuant to Rule 12(b)(6). Levine opposes the motion in his "Memorandum of Law for Second Amended Complaint," which poses arguments both in opposition to Defendants' motion and in support of his motion to submit a Second Amended Complaint. Defendants submitted a letter-brief dated May 16, 2006, in reply to Levine's submissions.


I. Motion to Dismiss

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. Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006). Dismissal under Rule 12(b)(6) is appropriate only if it appears beyond doubt that a 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 ...

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