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Dzwonczyk v. Hurd

United States District Court, Second Circuit

May 23, 2013

DANA E. DZWONCZYK f/k/a Wlodzimierz Dzwonczyk, Plaintiff,
DAVID N. HURD, Defendant.

Dana E. Dzwonczyk, Pro Se, Syracuse, NY, for the Plaintiff.


GARY L. SHARPE, Chief Judge.

I. Introduction

Plaintiff pro se Dana E. Dzwonczyk commenced this action against defendant United States District Judge David N. Hurd pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and 28 U.S.C. § 455, and Articles III and VI of the United States Constitution.[1] ( See Am. Compl. ¶ 1, Dkt. No. 7, Attach. 1.) Upon commencement, Dzwonczyk filed a motion for leave to proceed in forma pauperis (IFP), and, shortly thereafter, sought leave to amend his Complaint and to place the case "in [Alternative Dispute Resolution (ADR)] track (Assisted Mediation)." (Dkt. No. 5; see Dkt. Nos. 2, 4, 7.)

In an Order and Report-Recommendation (R&R) dated March 5, 2013, Magistrate Judge Andrew T. Baxter granted Dzwonczyk's IFP application and, pursuant to Fed.R.Civ.P. 15(a)(1)(A), adopted the Amended Complaint as the operative pleading and denied his motion to amend as moot.[2] ( See R&R at 1-2, Dkt. No. 9.) Judge Baxter also recommended that: Dzwonczyk's Amended Complaint be dismissed in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B); his motion to place the case into ADR be denied as moot; and the court certify that any appeal taken from this matter would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). ( See R&R at 3-11.) Dzwonczyk filed timely objections to the R&R, followed by four separate motions, requesting: to file a second Amended Complaint; a three-judge court; a temporary stay; and joinder of additional parties. ( See Dkt. Nos. 10, 11, 12, 13, 14.) For the reasons that follow, the R&R is adopted in its entirety, and Dzwonczyk's remaining motions are denied as futile or moot.

II. Standard of Review

Before entering final judgment, this court routinely reviews all report and recommendation orders in cases it has referred to a magistrate judge. If a party has objected to specific elements of the magistrate judge's findings and recommendations, this court reviews those findings and recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No. 04-cv-484, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). In those cases where no party has filed an objection, or only a vague or general objection has been filed, this court reviews the findings and recommendations of the magistrate judge for clear error.[3] See id.

III. Discussion

A. Dzwonczyk's Objections

To the extent that a specific objection can be gleaned from Dzwonczyk's March 11, 2013; submission, it pertains to Judge Baxter's determination that the actions taken by Judge Hurd about which Dzwonczyk complains were protected by absolute immunity. ( See Dkt. No. 9 at 5-7; Dkt. No. 10.) That determination is therefore reviewed de novo, while the remainder of the R&R is reviewed for clear error. See Almonte , 2006 WL 149049, at *6-7.

"It is well settled that judges generally have absolute immunity from suits for money damages for their judicial actions and that even allegations of bad faith or malice cannot overcome judicial immunity." McKeown v. N.Y. State Comm'n on Judicial Conduct, 377 F.Appx. 121, 123 (2d Cir. 2010) (internal quotation marks and citation omitted). Judicial immunity from suit for monetary damages gives way only if: "(1) the actions giving rise to the suit were not taken in the judge's judicial capacity[;] or (2) the suit arises from actions that the judge took in the complete absence of all jurisdiction." Gonzalez v. Sharpe, No. 1:06-CV-1023, 2006 WL 2591065, at *2 (N.D.N.Y. Sept. 8, 2006) (internal quotation marks and citations omitted). "Similarly, [prospective] injunctive relief is not available in an action pursuant to 42 U.S.C. § 1983[, or Bivens, ] against a judicial officer for acts taken in that official's judicial capacity unless a declaratory decree was violated or declaratory relief was unavailable." Id. (internal quotation marks and citations omitted); see McKeown, 377 F.Appx. at 124.

As Judge Baxter noted in the R&R, to the extent that Dzwonczyk's Amended Complaint pertains to Judge Hurd, the sole named defendant, it clearly seeks to challenge his April 28, 2010 Decision and Order in Dzwonczyk v. Suddaby, 5:10-cv-300, dismissing the action against the remaining defendants, Clerk of the Court Lawrence Baerman, and Deputy U.S. Marshal Gordon Doe.[4] ( See Am. Compl.; R&R at 6, 11-13.) Specifically, Dzwonczyk seeks to have Dzwonczyk v. Suddaby reopened, to have all defendants reinstated, and to have certain language used by Judge Hurd in the dismissal order stricken.[5] ( See Am. Compl. at 11-13.)

Dzwonczyk insists that his omission of a prayer for money damages, combined with the purportedly unethical nature of Judge Hurd's decision in Dzwonczyk v. Suddaby, strips Judge Hurd of judicial immunity. ( See Dkt. No. 10.) Despite Dzwonczyk's insistence that Judge Hurd's dismissal order was issued in bad faith, the Judge's actions in Dzwonczyk v. Suddaby, including his issuance of the April 28, 2010 Decision and Order, were undoubtedly taken in his judicial capacity, and there is no suggestion that a declaratory decree was violated or that declaratory relief was unavailable. See Jensen v. Farrell Lines, Inc., 625 F.2d 379, 383 (2d Cir. 1980) ("Availability of federal equitable relief to remedy constitutional violations has been presumed by the courts." (citing Bivens, 403 U.S. at 404)). As such, the court agrees with Judge Baxter's conclusion that Judge Hurd is entitled to judicial immunity, and that the case must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). ( See R&R at 5-8.)

Having reviewed the remainder of Judge Baxter's R&R for clear error, and finding none, the court accepts and adopts the R&R in its entirety.

B. Miscellaneous Motions

i. Motions to Strike and for Joinder of Parties

Following the issuance of the R&R, Dzwonczyk moved to "strike" his "proposed [A]mended [C]omplaint, " and for leave to file a second Amended Complaint. (Dkt. No. 11.) Because Dzwonczyk's initial Amended Complaint was permissible as a matter of course under Fed.R.Civ.P. 15(a)(1)(A), it was deemed by Judge Baxter to be the operative pleading. ( See R&R at 1-2.) As such, Dzwonczyk's motion to strike the Amended Complaint and replace it with a newly-provided pleading is treated as a motion to Amend. ( See Dkt. No. 11.)

Although in all cases "[t]he court should freely give leave [to amend] when justice so requires, " Fed.R.Civ.P. 15(a)(2), "a pro se litigant in particular should be afforded every reasonable opportunity to demonstrate that he has a valid claim, " Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000) (internal quotation marks and citations omitted). Leave to amend need not be granted, however, when amendment would be futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Because Dzwonczyk's proposed Second Amended Complaint does not cure the deficiencies which were fatal to his Amended Complaint, his motion to amend is denied as futile. ( Compre Am. Compl., with Dkt. No. 11, Attach. 1.)

In a further attempt to re-litigate his previously-dismissed action, Dzwonczyk also seeks to join Baerman and Gordon as additional defendants. ( See Dkt. No. 14.) In Dzwonczyk v. Suddaby, Judge Hurd dismissed the Complaint against both Baerman and Gordon-there identified as "Gordon Doe"-based on the same factual assertions now posited by Dzwonczyk. ( See Dkt. No. 6, 5:10-cv-300; compare Dkt. No. 1, 5:10-cv-300, with Am. Compl., and Dkt. No. 14.) For the reasons articulated in Dzwonczyk v. Suddaby, it would be futile to permit Dzwonczyk to join Baerman and Gordon as defendants, and his motion is therefore denied. ( See Dkt. No. 6, 5:10-cv-300.)

ii. Remaining Motions

Finally, Dzwonczyk filed two additional motions in which he requested a "Three-Judge Court pursuant to [N.D.N.Y.] L.R. 9.1, " and an order to stay the case during a sixteen-day period that has already expired. (Dkt. No. 12; see Dkt. No. 13.) In light of the foregoing, both motions are denied as moot.[6]

IV. Conclusion

WHEREFORE, for the foregoing reasons, it is hereby

ORDERED that Magistrate Judge Baxter's March 5, 2013 Order and Report-Recommendation (Dkt. No. 9) is ADOPTED in its entirety; and it is further

ORDERED that Dzwonczyk's Amended Complaint is DISMISSED in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii); and it is further

ORDERED that Dzwonczyk's motions to place the case into ADR (Dkt. No. 5), for a three-judge court (Dkt. No. 12), to temporarily stay the case (Dkt. No. 13), and for the recusal of Judge Baxter, are DENIED as moot; and it is further

ORDERED that Dzwonczyk's motions to amend (Dkt. No. 11), and to join additional defendants (Dkt. No. 14), are DENIED as futile; and it is further

CERTIFIED that any appeal taken from this matter would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3); and it is further

ORDERED that the Clerk provide a copy of this Memorandum-Decision and Order to Dzwonczyk by regular and certified mail.


ANDREW T. BAXTER, United States Magistrate Judge.


On February 20, 2013, plaintiff, Dana E. Dzwonczyk, filed this civil action pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) (Compl.) (Dkt. No. 1). At the same time, plaintiff also filed a motion to proceed in forma pauperis ("IFP"). (Dkt. No. 2). On February 22, 2013, plaintiff filed a motion for "leave to amend" his complaint and a motion for leave to place this case into "ADR" (Alternative Dispute Resolution). (Dkt. Nos. 4-5). On February 27, 2013, plaintiff filed his "proposed amended complaint." (Dkt. No. 7-1).

I. Operative Pleading (Amendment)

Rule 15(a)(1)(A) of the Federal Rules of Civil Procedure provides that a party may amend its pleading once as a matter of course within 21 days after serving it. Fed.R.Civ.P. 15(a)(1)(A). In this case, the original pleading has not even been served because plaintiff's motion to proceed IFP has not yet been decided. Thus, plaintiff was free to amend his complaint without making a motion to do so, and the court will consider plaintiff's proposed amended complaint (Dkt. No. 7-1) in making the IFP determination. The original complaint has been superceded and will not be considered. Plaintiff's motion to amend (Dkt. No. 4) will be denied as moot.

II. IFP Application

The court has reviewed plaintiff's IFP application. (Dkt. No. 2). Based upon the plaintiff's stated financial status, the court finds that the plaintiff is financially eligible to proceed without payment of fees.

In addition to determining whether plaintiff meets the financial criteria to proceed IFP, the court must also consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915, which provides that the court shall dismiss the case at any time if the court determines that the action is (i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505 F.2d 802, 804 (8th Cir. 1974). Although the court has a duty to show liberality toward pro se litigants, and must use extreme caution in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and has had an opportunity to respond, the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may dismiss a frivolous complaint sua sponte even when plaintiff has paid the filing fee).

To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is "plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Bell Atl. Corp., 550 U.S. at 555). The court will now turn to a consideration of the plaintiff's amended complaint under the above standards.

III. Amended Complaint

The court first notes that in addition to bringing this action pursuant to Bivens, supra , plaintiff alleges that he is bringing this action pursuant to 28 U.S.C. § 455 and Articles III and VI of the United States Constitution.[1] The discussion that follows is a narrative beginning with the proposition that Judge Hurd should have recused himself pursuant to 28 U.S.C. § 455 in one of plaintiff's previous lawsuits because Judge Hurd's decision was "partial, biased and prejudicial." (Amended Complaint ("AC") ¶¶ 1, 6). Plaintiff believes that Judge Hurd's order dismissing plaintiff's case in Dzwonczyk v. Suddaby, 5:10-CV-300, 2010 WL 1704722 (N.D.N.Y. April 28, 2010) somehow adversely affected plaintiff's "honor and dignity." (AC ¶ 9).

Plaintiff's amended complaint then attempts to explain why Judge Hurd's decision was incorrect, why the defendants in 10-CV-300 should not have been entitled to immunity, and why Judge Mordue's order barring plaintiff from entering the Federal Courthouse without an escort should be vacated. Plaintiff complains that the Clerk of the Court, Lawrence K. Baerman engaged in fraud and obstruction of justice in addition to other crimes in connection with plaintiff's prior lawsuits.[2] (AC ¶¶ 10, 14, 16). Although the defendant in this action is purportedly Judge Hurd, plaintiff spends most of the amended complaint discussing the allegedly "criminal" actions by the Clerk of the Court and a Deputy United States Marshal that was standing next to Lawrence Baerman in the Clerk's Office and who was apparently watching as the alleged "obstruction of justice" was occurring.

Plaintiff's prayer for relief asks the court to vacate former Chief Judge Mordue's order and allow plaintiff free access to the Federal Courthouse without escort;[3] issue an order vacating the orders of three judges who continued to state that Judge Mordue's order remained in effect even though plaintiff withdrew his other lawsuits "with prejudice;"[4] and issue an order reopening 10-CV-300 in view of "new facts, findings, and conclusions drawn from these findings." (AC "Prayer for Relief" at 11-12). Plaintiff asks the court to strike Judge Hurd's statement certifying that the any appeal in 10-CV-300 would not be taken in good faith. ( Id. at 12). Plaintiff also asks the court to order Judge Hurd "to always apply the law and the supporting evidence that the facts support equally, and without prejudice and bias as we are... equal under law." ( Id. at 13). Finally, plaintiff requests that criminal or civil proceedings be instituted against Lawrence Baerman on "the Court's own Motion." ( Id. )

IV. Judicial Immunity

A. Legal Standards

With minor exceptions, judges are entitled to absolute immunity for actions relating to the exercise of their judicial functions. Mireless v. Waco, 502 U.S. 9, 9-10 (1991). Judicial immunity has been created for the public interest in having judges who are "at liberty to exercise their functions with independence and without fear of consequences." Huminski v. Corsones, 396 F.3d 53, 74 (2d Cir. 2004). Judicial immunity applies even when the judge is accused of acting maliciously or corruptly. Imbler v. Pachtman, 424 U.S. 409, 419 n.12 (1976) (citing Pierson v. Ray, 386 U.S. 547, 554 (1967)). Judicial immunity is immunity from suit, not just immunity from the assessment of damages. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The only two circumstances in which judicial immunity does not apply is when he or she takes action "outside" his or her judicial capacity and when the judge takes action that, although judicial in nature, is taken "in absence of jurisdiction." Mireles, 502 U.S. at 11-12.

B. Application

The only defendant in this action is Judge Hurd. A reading of the entirety of the amended complaint shows that plaintiff is still attempting to challenge Judge Hurd's April 28, 2010 decision, dismissing plaintiff's action against Clerk of the Court Lawrence K. Baerman and Deputy U.S. Marshal Gordon "Doe."[5] Judge Hurd dismissed 10-CV-300 based upon the extension of judicial immunity to the Clerk of the Court, who was performing duties that were "an integral part of the judicial process." Plaintiff argues that 10-CV-300 should be reopened, the Judges should be reinstated as defendants, [6] and the case should proceed. Plaintiff is also very disturbed by Judge Hurd's statement, certifying that any appeal from that order would not be taken in good faith. Plaintiff turns the statement around and takes issue with the implication of his "BAD FAITH." (AC at p.12).

Plaintiff is still attempting to challenge Judge Hurd's order, together with Judge Mordue's unrelated order, barring plaintiff from the Federal Courthouse without an escort. Although plaintiff states that there are "new facts, " the facts that he states in his current amended complaint are the same facts and claims that he attempted to raise in 10-CV-300. Plaintiff argues that Clerk Baerman should not have been afforded absolute immunity, and the case should not have been dismissed against the Deputy Marshal.[7]

Plaintiff cannot challenge Judge Hurd's decision by filing a Bivens action against him. Any action taken by Judge Hurd in plaintiff's previous action would be protected by absolute immunity, and this case must be dismissed. Plaintiff did not appeal Judge Hurd's order, and contrary to his belief, he was not prevented from doing so by Judge Hurd's certification. The fact that Judge Hurd stated that he certified that an appeal would not be taken in "good faith" was not a reflection on plaintiff's sincerity in requesting appellate review. Arnold v. Adams, No. 08-3293, 2010 WL 99863, at *1 (C.D. Ill. Jan. 6, 2010).

Judge Hurd's finding was only an statement for IFP purposes. An appeal taken in "good faith" is an appeal that, "objectively considered, raises non-frivolous colorable isues." Id. This effect of this certification was only that plaintiff would not have been allowed IFP status for his appeal, without further application. Judge Hurd's certification would not have prevented plaintiff from applying to the Second Circuit for a review of that finding. Fed. R. App. 24(a)(3), (5). See also Celske v. Edwards, 164 F.3d 396 (7th Cir. 1999). Plaintiff also could have appealed if he paid the filing fee for the appeal.

Finally, plaintiff states that he is basing this action on 28 U.S.C. § 455, the statute providing bases for the disqualification of a judge. Plaintiff believes that Judge Hurd's decision shows that he was not impartial. Even assuming that plaintiff could request Judge Hurd's disqualification at this point, the Second Circuit has held that prior rulings are generally not a basis for disqualification. Gallop v. Cheney, 645 F.3d 519, 520-21 (2d Cir. 2011) (citation omitted) (adverse ruling alone was insufficient to establish the sort of extreme antagonism required for disqualification).

The Supreme Court, in a case cited by plaintiff himself, stated that absent a "deep-seated favoritism or antagonism that would make fair judgment impossible, " rulings are "[a]lmost invariably... proper grounds for appeal, not recusal." Liteky v. United States, 510 U.S. 540, 555 (1994). There is absolutely no indication that Judge Hurd should have been disqualified or should have disqualified himself in 10-CV-300 based upon any favoritism to another party or antagonism toward plaintiff. The judge's adverse ruling in no way shows partiality.

V. Miscellaneous Requests

The court also notes that in his amended complaint, plaintiff asks for a variety of things, including that Judge Mordue's order requiring plaintiff to have an escort in the Federal Courthouse to be rescinded or vacated. Bringing a Bivens action against Judge Hurd is not the proper vehicle for a request to change Judge Mordue's order. Plaintiff also asks for criminal or civil proceedings to be instituted on the court's own motion against Lawrence Baerman.

The court does not "sua sponte" initiate either civil or criminal proceedings, and a plaintiff has no jurisdiction to request that criminal charges be instituted. It is not the judicial, but the executive branch of the government that initiates criminal prosecutions. Dixon v. Ragland, No. 03 Civ. 826, 2008 WL 5251359, at *4 (S.D.N.Y. Dec. 16, 2008); Osborne v. Kauffmann, No. 84 Civ. 3369, 1985 WL 232, at *2 n.3 (S.D.N.Y. Jan. 30, 1985). An exception exists for civil and criminal contempt proceedings. See S.E.C. v. Am. Bd. of Trade, Inc., 830 F.2d 431, 439 (2d Cir. 1987) (citations omitted) (civil and criminal contempt);18 U.S.C. § 401 (criminal contempt). However, such proceedings are reserved for violations of specific court orders. See id. (judicial power is potent weapon and an order of contempt cannot issue unless the order claimed to be violated is specific and definite). See also See Cintron v. Vaughn, No. 3:69-CV-13578, 2007 WL 4240856, at *8 (D. Conn. Nov. 29, 2007) (discussing both civil and criminal contempt); Booth v. Wilson, No. 96 Civ. 920, 1997 WL 615490, at *2 (S.D.N.Y. Oct. 6, 1997) (civil and/or criminal contempt sanctions may be appropriate where a district court's order has been violated). In this case, Lawrence Baerman is not a party, and in any event, there is no indication that Clerk Baerman violated any order of the court. Neither civil or criminal contempt proceedings are appropriate.

In addition, criminal prosecutions may not be initiated by private parties in a federal lawsuit. Hill v. DiDio, 191 Fed.Appx. 13, 14-15 (2d Cir. 2006) (citing Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 86-87 (2d Cir. 1972)). To conclude otherwise, the party must show that Congress specifically intended to create a private right of action pursuant to the statutes that plaintiff seeks to enforce. Id. Thus, plaintiff cannot obtain any of the relief that he seeks in this case, and the case must be dismissed as frivolous, for failure to state a claim, and because he seeks to name a defendant who has absolute immunity. Plaintiff cannot obtain in this action what he was unable to obtain in his prior action by naming Judge Hurd as a defendant and suing for the same conduct he previously alleged.

WHEREFORE, based on the findings above, it is

ORDERED, that plaintiff's motion for IFP (Dkt. No. 2) be GRANTED FOR PURPOSES OF FILING ONLY, and it is

ORDERED, that plaintiff's motion to amend (Dkt. No. 4) is DENIED AS MOOT, and it is

RECOMMENDED, that plaintiff's complaint be DISMISSED IN ITS ENTIRETY WITH PREJUDICE PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(2) (i)-(iii), and it is

RECOMMENDED, that if the court accepts this recommendation, it further certify that any appeal from this matter would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3), and it is further

ORDERED, that in view of my recommendation of dismissal, plaintiff's motion to place this case into ADR (Dkt. No. 5) is DENIED AS MOOT, and it is

ORDERED, that the Clerk of the Court serve a copy of this Order on plaintiff in accordance with the Local Rules.

Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), & 6(e).

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