The opinion of the court was delivered by: Neal P. McCurn, Senior District Judge
Memorandum, Decision and Order
Presently before the court are separate motions to dismiss filed by each defendant pursuant to Rule 12 of the Federal Rules of Civil Procedure. Plaintiff, appearing pro se, opposes. Both motions are decided on the papers submitted without oral argument.
II. Procedural Background
Plaintiff, Betty O. Muka ("Muka") initially commenced this action, in which she purports to set forth various federal civil rights claims, solely against defendant, James P. Murphy ("Murphy"). At the time of the filing of the original complaint, Muka contemporaneously filed a motion for a temporary restraining order ("TRO") against Murphy, as well as for an order sealing the complaint. This court summarily denied both motions.
Thereafter, Murphy filed a motion to dismiss the complaint for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2) and for failure to state claims upon which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6). Muka filed her papers in opposition to Murphy's motion to dismiss, and subsequently amended her complaint as a matter of course pursuant to Fed. R. Civ. P. 15(a) in order to add James A. Meggesto ("Meggesto") as a defendant ("the Amended Complaint"). By letter motion, Murphy requested that the court consider his original motion papers as a motion to dismiss the Amended Complaint with the exception of his argument that plaintiff failed to acquire personal jurisdiction, citing his admission that Muka properly served him with the Amended Complaint.
Eventually, Meggesto also filed a motion to dismiss the Amended Complaint, citing Rules 12(b)(1), (2) and (6) as grounds in his Notice of Motion. Plaintiff having timely filed her papers in opposition to Meggesto's motion to dismiss, and Meggesto having declined to file a reply memorandum, said motion is considered fully briefed.
Muka's claims arise from her dealings with defendants Murphy and Meggesto ("Defendants") in state court proceedings, which were commenced against Muka by Ruth P. Matson ("Matson"). Ostensibly, at one time Matson executed a "Durable Power of Attorney" form appointing Muka her "attorney-in-fact." Am. Compl. ¶ 15 ("power of attorney appointment"). In November 2007, Matson commenced an action against Muka in state court ("the state court action") seeking an order compelling Muka to "convey over any and all property belonging to [Matson]," including but not limited to Matson's real property, personal property and bank accounts. Ex. 3 to Am. Compl. Defendant Murphy is the presiding judge in the state court action, and Defendant Meggesto is an attorney who represents the plaintiff in that action. See id.
Shortly after Matson commenced the state court action, she filed a motion seeking interim relief, and Muka filed a cross motion seeking, among other things, dismissal of the complaint. After an initial hearing regarding Matson's motion, Murphy ruled from the bench enjoining Muka from transferring, diminishing, or encumbering any of Matson's assets and, among other things, directing Muka to transfer funds to Meggesto, the sum of which represents the amount due for fees and services related to Matson's residential placement. Murphy thereafter gave written notice to Muka that her papers in response to Matson's motion were to be deemed an answer and that Murphy was sua sponte treating Muka's motion to dismiss as a motion for summary judgment. See Ex. 1 to Am. Compl. Shortly thereafter, Muka sent her written objections to Murphy, but ostensibly at some point filed a cross motion seeking, among other things, an order of recusal and an order vacating Murphy's prior decision. See Ex. 3 to Am. Compl. In addition, Muka filed an answer, which included defenses, counterclaims and third-party complaints.
By court order dated January 10, 2008, Murphy dismissed Muka's third-party complaint, affirmative defenses and counterclaims. Murphy also denied Muka's motion for an order seeking his recusal and to vacate his earlier decision enjoining Muka from transferring, diminishing or encumbering Matson's assets and directing her to transfer funds to Meggesto, as well as his decision to treat Muka's papers in response to Matson's motion as an answer and to treat Muka's motion to dismiss as a motion for summary judgment. In addition, Murphy invalidated the power of attorney appointment, and consequently directed Muka to return all of Matson's assets to Meggesto within twenty days of service of the order. An order setting forth Murphy's decision was issued January 17, 2008.
On April 22, 2008, Muka filed her complaint against Murphy in this court, and two days later filed her motion for a TRO, seeking this court's intervention to, among other things, enjoin Murphy from incarcerating Muka for contempt, ostensibly because she failed to comply with his January 17, 2008 order. This court denied Muka's motion, and thereafter, as previously discussed, Muka amended her complaint to add Meggesto as a defendant.
By her Amended Complaint, Muka claims that Murphy took a number of actions which violate her civil rights. First, Muka claims that Murphy violated her right to contract pursuant to 42 U.S.C. § 1981 when he invalidated the power of attorney appointment. See ¶¶ 22-23. Muka also contends that Murphy acted outside of his jurisdictional authority when he sua sponte converted her motion to dismiss into a motion for summary judgment, deemed her motion to be an answer, and dismissed her third party complaint, counter claims and affirmative defenses, thus depriving her of her right to contract under 42 U.S.C. § 1981 as well as her right to equal protection under the Fourteenth Amendment to the United States Constitution, of which relief is sought ostensibly pursuant to 42 U.S.C. § 1983. See ¶¶ 26-31.
Muka further claims Murphy conspired with Meggesto to violate her civil rights under 42 U.S.C. § 1985 by, among other things, impeding the process of her Article 78 action against Murphy as well as her appeal of Murphy's decision in the state court action, intending to injure Muka and her property, and depriving her and all pro se litigants of their right to equal protection of the laws. See Am. Compl. ¶¶ 44-50. Likewise, Muka contends that Murphy negligently failed to prevent the conspiracy to violate her civil rights under 42 U.S.C. § 1986. See Am. Compl. ¶¶ 51-54. Specifically, Muka alleges that "Murphy, although a private citizen, ... [failed to] influence himself in his capacity as Supreme Court Judge presiding over [the state court action]" to prevent the conspiracy between Murphy and Meggesto to violate her civil rights to contract and to equal protection of the laws. Am. Compl. ¶ 52.
Finally, Muka alleges that the New York State Judiciary, which includes all New York State judges and licensed attorneys, among others, have a custom of violating the civil rights of pro se ...