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Shtrauch v. Dowd

United States District Court, N.D. New York

July 24, 2015

MOSHE SHTRAUCH, Plaintiff,
v.
KEVIN M. DOWD, individually and as the administrator of the Supreme Court building in Norwich, New York Defendant.

DECISION and ORDER

THOMAS J. McAVOY, Senior District Judge.

Plaintiff commenced the instant action, alleging that Defendant violated Plaintiff's constitutional rights by ordering him from the Chenago County, New York, Courthouse. Presently before the Court is Defendant's motion to dismiss the Plaintiff's Amended Complaint. See dkt. # 10. Also before the Court is Plaintiff's motion for leave to file a Second Amended Complaint. See dkt. # 11.

I. BACKGROUND

Plaintiff commenced this action by filing a Complaint on March 29, 2015. See dkt. # 1. The next day, Plaintiff filed an Amended Complaint. See dkt. # 2 ("Amended Cmplt."). According to the Plaintiff's Amended Complaint, at some point in November 2014, Defendant Kevin M. Dowd, a Justice on the Chenango County Supreme Court, "invited" the Plaintiff, who was the defendant in a divorce proceeding, to a meeting in his chambers. (Id. at ¶ 8). Also present was Shtrauch's wife, plaintiff in the divorce suit and her counsel. (Id.). During that meeting, Defendant began "banging on the table with his fist[.]" (Id. at ¶ 11). He "yelled at [Shtrauch] that he does not need anybody to challenge his integrity[.]" (Id.). When Plaintiff "did challenge his integrity, Defendant "called Plaintiff a liar', and a very dangerous person[.]'" (Id.). After that alleged outburst, Defendant recused himself from the divorce proceeding, telling Plaintiff "congratulations, now you won, you can now go and finish your law degree.'" Id . Defendant then "ordered" the armed court attendant to "get [Plaintiff] out of my courthouse.'" (Id.).

Plaintiff further alleges that, shortly before granting the recusal motion, Judge Dowd had "plopped his hand on the file that was in front of him[.]" (Id. at ¶ 12). Plaintiff could see a copy of his motion to recuse. (Id.). Judge Dowd demanded that Plaintiff tell him what the motion was, and Plaintiff responded by asking "isn't it obvious, it's a motion to recuse[.]'" (Id.). Defendant then asked where Plaintiff acquired "pictures of his children playing with Claudette Newman's grandchildren." (Id.). Plaintiff explained that the pictures were from Facebook. (Id.). Defendant responded that "we figured that much[.]'" (Id.). Plaintiff contends that this statement demonstrates that "Judge Dowd knew about it, and was upset that Plaintiff mentioned it." (Id.). Plaintiff also alleges that "[a]t the time Defendant Dowd ordered removal of Plaintiff from the courthouse, Defendant Dowd recused from Plaintiff's divorce proceedings, had no role in the proceedings and was not covered by judicial immunity." (Id. at ¶ 24). Instead, Plaintiff contends, "Defendant Dowd acted under color of state law and using his authority as a state judge and the administrative judge in charge of personnel in the building." (Id. at ¶ 25).

Plaintiff did not want to exit the courthouse when Defendant ordered him to leave. (Id.). He contends that he did not act inappropriately during his conference in Judge Dowd's chambers, and nothing in his conduct served to "warrant forcible removal from the building." (Id. at ¶ 29). Plaintiff states that "the courthouse does not belong to Defendant Dowd" and that a "courthouse is a public building where Plaintiff had a right to be until the closing of the courthouse." (Id. at ¶¶ 13-14). Defendant ordered Plaintiff's removal shortly before noon. (Id. at ¶ 15). Plaintiff tried to stop when he left Defendant's chambers, but the court attendant, who was armed, directed him to "get going, '" while standing behind the Plaintiff's back. (Id. at ¶ 16). Feeling intimidated, Plaintiff left the Courthouse. (Id.). Plaintiff alleges that the court attendant "hover[ed] behind the Plaintiff's back while the Plaintiff was raising himself out of the chair, yelled at Plaintiff when" he turned the wrong way out of his chair, and then followed Plaintiff all the way out of chambers, into the public hallway, and out of the building. (Id. at ¶ 21). He did not permit Plaintiff to stop. (Id.).

After leaving the building, Plaintiff encountered a local attorney in the parking lot and told the attorney what had happened. (Id. at ¶ 17). The attorney promised Plaintiff he would find out the name of the court attendant when he went into the courthouse. (Id.). Later, Plaintiff met with the attorney, who had verified that the attendant was named Ken. (Id. at ¶ 18). The attorney also reported that he had been admitted to the courthouse after Defendant ejected Plaintiff. (Id.). The courthouse did not close until 4:30 p.m. (Id. at ¶ 22). Similarly, though the Defendant threw Plaintiff out, he permitted his wife and her attorney to remain. (Id. at ¶ 19).

Plaintiff alleges that he is Jewish and an Israeli national. (Id. at ¶ 30). He speaks with "a heavy Jewish accent." (Id. at ¶ 31). About a month before Defendant Dowd ordered him to exit the courthouse, Plaintiff alleges that he had complained to the Administrative Judge of the Sixth Judicial District, Robert Mulvey, who is Defendant Dowd's supervisor, of an incident involving a court attendant in Chenango County. (Id. at ¶ 32). That attendant is "regularly present in court proceedings where Plaintiff is and was a party." (Id.). On June 14, 2014, that attendant was working as a registration officer at a community event where police issued identity cards for children in an effort to protect their safety. (Id. at ¶ 33). Plaintiff brought his minor child to the event. (Id. at ¶ 34). Though the court attendant already knew Plaintiff's and his childrens' names from previous court proceedings, he asked for the names again. (Id. at ¶¶ 35-36). The attendant then immediately asked Plaintiff if he knew it was Hitler's birthday (it wasn't). (Id. at ¶ 37). This comment made Plaintiff feel "shaken up and intimidated, " as he had lost many family members in the Holocaust. (Id. at ¶¶ 38-42). Plaintiff complained to Judge Mulvey about this conduct, and his lack of access to his own records in family court. (Id. at ¶ 43-44).

Plaintiff alleges that Judge Mulvey made Judge Dowd aware of Plaintiff's complaint, and that Judge Dowd then chose to use that particular court attendant to remove Plaintiff from the courthouse. (Id. at ¶¶ 46-47).

Plaintiff further alleges that Defendant Dowd's conduct began after Plaintiff "complained against" Defendant "to the N.Y.S. Judicial Conduct Commission, to the 6th Administrative District, Judge Mulvey, and made a motion to recuse Defendant Dowd." (Id. at ¶ 48). Before recusing himself, Defendant allegedly accused Plaintiff of "impugning'" his integrity and declared that Plaintiff's conduct made him a dangerous person. (Id. at ¶ 49).

Plaintiff alleges that his motion to recuse was based on both alleged misconduct by Defendant in the divorce proceedings and Defendant's alleged failure to disclose that his law clerk would be a witness in Plaintiff's divorce proceedings. (Id. at ¶ 50). The law clerk's grandchildren allegedly played at the home of Plaintiff's mother-in-law, his children allegedly visited the law clerk's home, and the children of the law clerk's step daughter played with Plaintiff's children. (Id.).

Plaintiff's Amended Complaint alleges that Defendant Dowd, acting under color of law, violated his rights to access to the courts and courthouse under the First, Fifth and Fourteenth Amendments to the United States Constitution. (Id. at ¶ 62). Plaintiff also alleges that removing him from the courthouse amounted to an unreasonable seizure in violation of the Fourth Amendment. (Id. at ¶ 63). Plaintiff seeks "declaratory, injunctive relief precluding Defendant from ever presiding over Plaintiff's cases and imposing upon Defenant an order of protection preventing Defendant from, directly or indirectly, harass[ing] and/or intimidat[ing] Plaintiff and his family members in any way." He also seeks "actual, nominal and punitive damages[.]" Plaintiff further contends that the circumstances suggest retaliation and intimidation based on Plaintiff's exercise of his First Amendment Rights and because of his national and ethnic origins. Plaintiff seeks $10 million in damages.

After being served with the Amended Complaint, Defendant filed a motion to dismiss, which is presently before the Court. Plaintiff both responded to the motion and moved the Court for leave to file a Second Amended Complaint. ...


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