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Gross v. State

March 31, 2009

SALLY J. GROSS, PLAINTIFF,
v.
STATE OF NEW YORK, DEFENDANT.



The opinion of the court was delivered by: Neal P. McCurn, Senior District Judge

Memorandum, Decision and Order

I. Introduction

This civil rights action was commenced by pro se plaintiff, Sally J. Gross ("Plaintiff") against the State of New York ("Defendant"), seeking declaratory relief and monetary damages arising from an alleged violation of Plaintiff's rights under the Fourteenth Amendment to the United States Constitution. For various reasons, Defendant moved to dismiss the entire complaint against it, with prejudice. Plaintiff opposes the motion, and Defendant has replied. The pending motion is decided on the papers submitted, without oral argument.

II. Background

In a previous action commenced in New York State Supreme Court, Plaintiff sued her two former business partners. At some point during the course of that litigation, both partners, who were brothers, passed away. According to Plaintiff, the spouse of the executrix of the estate of one of the partners was former criminal court judge, Lester Sachs. Plaintiff alleges the judge presiding over the state court action, John T. Buckley ("Justice Buckley"), was also a former criminal court judge. Plaintiff further alleges that Justice Buckley engaged in several acts of judicial misconduct, and that he violated her due process rights in several ways during the course of the litigation. In particular, Plaintiff alleges that Justice Buckley repeatedly acted with bias toward the estates of her former partners due to the involvement of Justice Sachs.

Ultimately, the matter was decided, ostensibly to Plaintiff's detriment, as she appealed the decision to the New York Appellate Division, Fourth Department. The Appellate Division unanimously affirmed "for reasons stated in decision at Supreme Court, Buckley, J." Sachs v. Gross, 683 N.Y.S.2d 689, 256 A.D.2d 1114 (N.Y. App. Div. 1998). Plaintiff's motion for leave to further appeal was denied by the New York Court of Appeals. See Sachs v. Gross, 717 N.E.2d 1082, 93 N.Y.2d 1000, 695 N.Y.S.2d 745 (1999).

Several years later Plaintiff sought and was denied permission to serve and file a late claim against Defendant in the Court of Claims for the State of New York. See Gross v. State of New York, 819 N.Y.S.2d 848, 11 Misc. 3d 1084(A) (N.Y. Ct. Cl. 2006). Plaintiff thereafter thoroughly exhausted her appeals. First, the Appellate Division, Fourth Department unanimously affirmed "for reasons stated in decision at the Court of Claims." See Gross v. State of New York, 827 N.Y.S.2d 903, 37 A.D.3d 1062 (N.Y. App. Div. 2007). The Court of appeals subsequently denied leave to appeal, see 868 N.E.2d 233, 8 N.Y.3d 811, 836 N.Y.S.2d 550 (2007), and finally, the United States Supreme Court denied Plaintiff's petition for certiorari, see 128 S.Ct. 300 (2007).

On May 20, 2008, Plaintiff commenced this action against Defendant alleging the violation of her rights protected by the Fourteenth Amendment as a predicate to a civil rights claim pursuant to 42 U.S.C. § 1983. Plaintiff seeks a declaratory judgment as well as monetary damages against Defendant. Specifically, Plaintiff seeks four million dollars in compensatory damages, plus interest, as well as punitive damages.

Defendant now moves to dismiss the complaint for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) and for failure to state a claim upon which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6). Defendant contends that subject matter is lacking here as (1) it is not a "person" within the meaning of § 1983; (2) this action is barred by the Eleventh Amendment; (3) the underlying actions of Justice Buckley are protected by absolute immunity; and (4) this action is barred under the Rooker-Feldman doctrine. Defendant contends that in the alternative, the complaint should be dismissed for failure to state a claim upon which relief may be granted because Plaintiff's claim is barred by the applicable statute of limitations.

III. Discussion

A. Legal Standard

When deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must accept the allegations of fact in the complaint as true, drawing all reasonable inferences in the plaintiff's favor. See World Religious Relief, Inc. v. Sirius Satellite Radio, Inc., No. 05-CV-8257, 2007 WL 2261549, at *1 (S.D.N.Y. Aug. 7, 2007) (quoting Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.1994)). A motion to dismiss pursuant to Rule 12(b)(6) may not be granted so long as the complaint includes "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974 (2007).*fn1 The Court of Appeals for the Second Circuit has interpreted the foregoing language to require that lower courts apply "a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible[,]" but does not require a heightened pleading standard for civil rights claims. Iqbal v. Hasty, 490.3d 143, 157-58 (2d Cir.2007) (emphasis in original). In accordance with this standard, the plaintiff is required, "at a bare minimum, . . . [to] provide the grounds upon which his claim rests through factual allegations sufficient 'to raise a right to relief above the speculative level.'" Goldstein v. Pataki, 516 F.3d 50, 56 -57 (2d Cir. 2008) (citing ATSI Commc'ns., Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)) (quoting Twombly, 127 S.Ct. at 1965))).

A motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) is governed by the same standard as a Rule 12(b)(6) motion, "except that a plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Friedlander v. Port Jewish Center, 588 F.Supp.2d 428, 430 (E.D.N.Y. 2008) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000)) (internal quotations omitted).

Finally, the court is mindful of the well-established principle that apro se litigant's papers are to be construed liberally, especially when civil rights violations are alleged. See Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 ( 2d Cir. 2008) (internal citations omitted). Thus, "a pro secomplaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008) (quoting Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200 (2007) (per curiam)). Accordingly, the court must interpret Plaintiff's "submissions to raise the strongest arguments that they suggest." Diaz v. United States, 517 F.3d 608, 613 (2d Cir. 2008) (internal quotation and citation omitted). Further, "when reviewing pro sesubmissions, a district court should ...


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