Maddox Order and Opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ALTON H. MADDOX, JR.,
Plaintiff, 04 CV 5444 (ARR)(LB)
-against -
A. GAIL PRUDENTI as Presiding Justice of the
APPELLATE DIVISION, SECOND JUDICIAL
DEPARTMENT; DAVID S. RITTER, MYRIAM J.
ALTMAN, NANCY E. SMITH, FRED T. SANTUCCI,
ANITA R. FLORIO,HOWARD MILLER, STEPHEN G.
CRANE, THOMAS A. ADAMS, DANIEL F. LUCIANO,
GABRIEL M. KRAUSMAN, SONDRA MILLER,
GLORIA GOLDSTEIN, ROBERT W. SCHMI
STEVEN W. FISHER, ROBERT A. SPOLZINO,
WILLIAM F. MASTRO, BARRY A. COZIER,
REINALDO E. RIVERA, PETER B. SKELOS, ROBERT
A. LIFSON, as Associate Justices of the Appellate
Division, Second Judicial Department, OPINION AND ORDER
Defendants.
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ROSS, United States District Judge:
Plaintiff pro se Alton H. Maddox, Jr., commenced the instant action with the filing of a complaint on December 15,2004. In his Amended and Supplemental Complaint ("Compl."),
served on defendants on May I, 2006, plaintiff names as defendants several justices of the Appellate Division of the New York State Supreme Court for the Second Judicial Department I 1 According to the Second Department's website, several of the defendants are no longer justices of the Appellate Division. Myriam J. Altman died on January 29,2005. Nancy E. Smithwas "[d]esignated an Associate Justice of the Appellate Division, Fourth Department, effective November 23,2004." Barry A. Cozier "[r]esigned effective January 27,2006, to resume the active practice of law." (See http://www.courts.state.ny.us/courts/ad2/iustices.shtml.)
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and seeks declaratory and injunctive relief. Now pending before the court is defendants' motion to dismiss. For the reasons set forth below, the court grants defendants' motion in part, denies defendants' motion in part, and grants plaintiff permission to re-plead his First Amendment retaliation claim within twenty days of the date of this order.
BACKGROUND
The following factual allegations are drawn from plaintiffs complaint. For the purposes of a motion to dismiss, all facts alleged in the complaint are presumed to be true.
Plaintiff was admitted to practice law in the State of New York on March 15, 1976.
(Compl. ~ 8.) In October 1988, then Attorney General Robert Abrams filed a complaint with the
Grievance Committee for the Second and Eleventh Judicial Districts alleging that plaintiff had "engaged in serious professional misconduct in connection with the highly publicized Tawana Brawley matter and his representation of Ms. Brawley with respect thereto." In re Alton H.Maddox, 157 A.D.2d 244,245 (App. Div. 2d Dep't 1990) (per curiam). (See Compl. ~ 12.)
Plaintiff refused to cooperate with the Grievance Committee's investigation. (Compl. ~ 12; Maddox v. Mollen, No. 89 Civ. 4181, 1990WL 39869, at *2 (E.D.N.Y. Mar. 28, 1990).) On May 21, 1990, the Appellate Division, Second Department, (hereinafter the "Appellate Division"), suspended plaintiff from the practice of law until further order of the court, but permitted plaintiff to complete his representation of Alfred C. Sharpton, then a defendant in a pending criminal trial. 157 A.D.2d at 250. The New York Court of Appeals denied plaintiffs motion for leave to appeal this suspension order. 76 N.Y.2d 705 (1990). By order dated December 27, 1990, the United States District Court for the Eastern District of New York suspended plaintiff from the practice of law in this court during the period of his suspension by
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the Appellate Division. (PI. Aff. Ex. A-I.)
On August 1, 1994, the Appellate Division confirmed the Special Referee's report
sustaining two allegations of professional misconduct against plaintiff. 201 A.D.2d 24 (App. Div. 2d Dep't 1994) (per curiam). The specific charges sustained against plaintiff were: (1) violating the Code of Professional Responsibility DR 1-102(A)(5) and (8) (former (7)) (22 N.Y.C.R.R. § 1200.3 [a][5], [8]), for refusing to appear before the Grievance Committee and refusing to cooperate with its investigation; and
(2) violating those same provisions by failing to file with the Clerk of the court an affidavit showing compliance with the court's 1990 suspension
order and the Rules ofthe court. 201 A.D.2d at 25-26. As a result of these violations, the Appellate Division suspended plaintiff from the practice of law for a period of five years "and continuing until the further order of this Court, with leave to the respondent to apply for reinstatement. . . ." 201 A.D.2d at 29-30. On October 12, 1994, the Appellate Division denied plaintiff s motion for reargument of the order of suspension. (See Decision & Order on Motion, Nov. 25, 2003, PI. Aff. Ex. E.) On December 1, 1994, the New York Court of Appeals denied
plaintiffs motion for leave to appeal. 84 N.Y.2d 948 (1994).
On July 21,2003, plaintiff petitioned the Appellate Division for an order "allowing for the immediate, automatic and unconditional reinstatement of Alton H. Maddox, Jr., a suspended attorney to the practice of law based on newly-dtscovered evidence, fraud, prosecutorial misconduct and misrepresentation." (Compl.' 28.) Plaintiffs basis for this petition seems to have been a September 11,2000, affidavit from a member of the grand jury empanelled to investigate the charges made by Ms. Brawley. (See PI. Aff. , 5; PI. Aff. Ex. C.) The grand juror states that the grand jury's report was not authored by members of the grand jury and that
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dissenting grandjurors were not infonned of any right to fashion a dissent to the grand jury report. (PI. Aff. Ex. C.) According to plaintiff, the Grievance Committee responded to his petition on August 18,2003. (PI. Opp'n Mem. 7.) The excerpts of the Grievance Committee's opposition quoted in plaintiff s brief to this court indicate that the Committee argued that plaintiffs petition was not properly made pursuant to 22 N.Y.C.R.R. § 691.11, which sets forth the Appellate Division's special rules for reinstatement following suspension. The excerpts indicate that the Committee further argued that if the Appellate Division opted to entertain plaintiff s "motion in its present fonn, the Court should note that a review of the files of the Grievance Committee. . . reveals no complaints against respondent since his suspension which
have resulted in a finding of professional misconduct." (PI. Opp'n Mem. 7.)
By Decision and Order dated November 25,2003, the Appellate Division, "[u]pon the
papers filed in support of the motion and the papers filed in response thereto," denied plaintiffs motion. (PI. Aff. Ex. E.)In January and February 2006, plaintiff wrote opinion columns in the New York Amsterdam News "stating that Judge William Erlbaum had given jury instructions in People v.Maddox to the effect that plaintiff was guilty of obstructing governmental administration."(Compi. ~ 49-50.) Judge Erlbaum, according to plaintiff, had presided over the 1985 prosecution
of plaintiff for obstructing governmental administration. (PI. Opp'n Mem. 10.) Plaintiff states that he had unsuccessfully objected to Judge Erlbaum's jury instruction. Nevertheless, the jury acquitted plaintiff on all counts. (PI. Opp'n Mem. 10.) In response to plaintiffs opinion columns, defendants "initiated a sua sponte investigation" infonning plaintiff by letters dated February 7 and 22, 2006, and demanding "that plaintiff produce evidence including a jury charge
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to prove the claims expressed in the articles,,2and infonning plaintiff that his failure to cooperate with the investigation "would constitute an independent ground of professional misconduct" and therefore a basis to discipline plaintiff. (Compi. ~ 51-52; PI. Opp'n Mem. 10-11.) Plaintiff states that he "provided two lengthy responses," which "the Grievance Committee arbitrarily found. . .unsatisfactory." (PI. Opp'n Mem. 11.) Plaintiff states that by letter "dated June 29, 2006, the
Grievance Committee infonned plaintiff that it had issued an admonition" and "that any further professional misconduct may negatively affect plaintiffs current legal status." (PI. Opp'n Mem.
11.) "An admonition is discipline imposed without a hearing." 22 N.Y.C.R.R. § 691.6.
On December 15, 2004, plaintiff commenced the instant lawsuit in this court, seeking
declaratory and injunctive relief. Plaintiff now seeks declaratory and injunctive relief on the grounds that (1) defendants' failure to fashion procedures for post-disciplinary relief based on newly discovered evidence, fraud, prosecutorial misconduct and misrepresentation, such as New York law provides civil litigants, see N.Y. C.P.L.R. § 5015, and criminal defendants, see N.Y.
Crim. Proc. Law § 440.10, violates the Due Process and Equal Protection Clauses of the
Fourteenth Amendment; (2) defendants' failure to give reasons for rejecting plaintiffs
application for reinstatement to practice law violates the Due Process Clause; (3) defendants set
conditions upon plaintiff s reinstatement in violation of the Due Process and Equal Protection
Clauses and the Ex Post Facto Clause; (4) defendants' failure to fashion procedures for
2The defendants dispute that the letters demanded that plaintiff produce evidence to
prove the claims expressed in his articles. The defendants contend that the February 7, 2006,
letter stated: "Along with your answer please feel free to submit any material you deem relevant
or helpful, such as a transcript of the jury charge in question." (Def. Mem. 8 n.2.) Neither party
has submitted to this court any of the letters concerning the investigation and admonition of
plaintiff in 2006.
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compulsory process and discovery to assist attorneys in disciplinary proceedings, such as those
the First Judicial Department provides, see 22 N.Y.C.R.R. § 605.17, violates the Due Process
and Equal Protection Clauses; (5) defendants have subjected "attorneys of African ancestry to
terms, conditions, standards and practices to be reinstated to law different from those terms,
conditions, customs, usages, standards and procedures employed under Judiciary Law § 90 and
22 N.Y.C.R.R. § 691.11 to Caucasian attorneys"; and (6) defendants' investigation in response to
plaintiffs newspaper columns constitutes retaliation in violation of the First Amendment.
Defendants move to dismiss on the basis of the Rooker-Feldman doctrine, res judicata,
failure to state a claim under § 1983, the statute oflimitations, and ripeness. (Def. Mem. 2.)
DISCUSSION
A. MOTION TO DISMISS STANDARD
1) Rule 12(b)(I)
When considering a motion to dismiss for lack of subject matter jurisdiction under Rule
12(b)(1), the court may consider affidavits and other materials beyond the pleadings. See
Robinson v. Gov't of Malaysia, 269 F.3d 133, 140-41 & n.6 (2d Cir. 2001). Under Rule
12(b)(I), the court must accept as true all material factual allegations in the complaint, but will
not draw inferences favorable to the party asserting jurisdiction. Shipping Fin. Servs. Corp. v.
Drakos, 140 F.3d 129,131 (2d Cir. 1998). However, the court notes "that the obligation to read
the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments that
they suggest extends to the question of standing no less than it does to any other issue." Lerman
v. Board of Elections, 232 F.3d 135, 142 n.8 (2d Cir. 2000) (internal quotations and citation
omitted). As the party seeking to invoke the jurisdiction of the court, the plaintiff bears the
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burden of demonstrating that subject matter jurisdiction is proper based on facts existing at the
time the complaint was filed. Scelsa v. City Univ. of N.Y., 76 F.3d 37, 40 (2d Cir. 1996).
"While a plaintiffs standing is ordinarily assessed as of the time a lawsuit is brought, immediate
post-filing events may be taken into account where. . . the relief requested is directed at
preventing a future action. . . ." Hakim v. Chertoff, 447 F. Supp. 2d 325,328 (S.D.N.Y. 2006).
2) Rule 12(b)(6)
On a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), the court
should dismiss the complaint only if "it appears beyond doubt that the plaintiff can prove no set
of facts in support of his complaint which would entitle him to relief." King v. Simpson, 189
F.3d 284, 286-87 (2d Cir. 1999) (internal quotation marks and citation omitted). The court must
accept all well-pled factual allegations in the complaint as true and draw all reasonable inferences
in favor of the plaintiff. See Koppel v. 4987 Corp., 167 F.3d 125, 130 (2d Cir. 1999). The
primary inquiry is not whether the plaintiff will ultimately prevail, but whether the plaintiff s
allegations are sufficient to permit him to support his claims with evidence. See Villager Pond.
Inc. v. Town of Darien, 56 F.3d 375,378 (2d Cir. 1995). It should also be noted that courts are
particularly hesitant to dismiss actions filed by pro se litigants, as pro se complaints are held to
"less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S.
519, 520 (1972). "When considering motions to dismiss a pro se complaint such as this, 'courts
must construe [the complaint] broadly, and interpret [it] to raise the strongest arguments that [it]
suggest[s].''' Weixel v. N.Y.C. Bd. of Educ., 287 F.3d 138, 145-6 (2d Cir. 2002) (quoting Cruz
v. Gomez, 202 F.3d 593,597 (2d Cir. 2000)). As a general rule, an action brought pro se "should
not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can
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prove no set of facts in support of his claim which would entitle him to relief." Hughes v. Rowe,
449 U.S. 5,10 (1980). "Nevertheless, the [c]ourt is also aware that pro se status does not exempt
a party from compliance with relevant rules of procedural and substantive law." Iwachiw v.
N.Y.C. Bd. ofEduc., 194 F. Supp. 2d 194,202 (E.D.N.Y. 2002) (citing Traguth v. Zuck, 710
F.2d 90,95 (2d Cir. 1983)).
B. ROOKER-FELDMAN DOCTRINE
Defendants argue that plaintiffs claims are barred by the Rooker-Feldman doctrine.
(Def. Mem. 14-17.) For the reasons that follow, the court concludes that some, but not all of
plaintiff s claims are so barred.
Based on the general principle "that within the federal judicial system, only the Supreme
Court may review state-court decisions," the Rooker-Feldman doctrine holds that "federal district
courts lack jurisdiction over suits that are, in substance, appeals from state-court judgments."
Hoblock v. Albanv County Bd. of Elections, 422 F.3d 77,85,84 (2d Cir. 2005).
In the eponymous Feldman case, the Supreme Court held that the doctrine barred district
court review of "claims that a state court has unlawfully denied a particular applicant admission"
to the state bar, since such particular applications are judicial proceedings in nature and effect,
whereas district courts have jurisdiction to review "general challenges to state bar admission
rules," since state "courts may act in a non-judicial capacity in promulgating rules regulating the
bar." District of Columbia Court of Appeals v. Feldman, 460 U.S. 462,482-86 (1983).
The Supreme Court has recently clarified the narrow scope of the doctrine. See Lance v.
Dennis, 126 S. Ct. 1198, 1201 (2006) (per curiam) ("[O]ur cases since Feldman have tended to
emphasize the narrowness of the Rooker-Feldman rule."); Exxon Mobil Corp. v. Saudi Basic
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Indus. Com., 544 U.S. 280, 283, 291 (2005) (noting that lower courts have extended the doctrine
"far beyond the contours of the Rooker and Feldman cases," and explaining "the limited
circumstances in which this Court's appellate jurisdiction over state-court judgments, 28 U.S.C.
§ 1257, precludes" subject-matter jurisdiction in the district court); Hoblock, 422 F.3d at 85 ("In
Exxon Mobil, the Supreme Court pared back the Rooker-Feldman doctrine to its core. . . .").
While reining in lower courts' extension of the doctrine, the Exxon Mobil Court left Feldman's
holding in tact. See 544 U.S. at 283-87,291-92.
In Hoblock, the Second Circuit examined Exxon Mobil and identified "four requirements
for the application of Rooker-Feldman": (1) "the federal-court plaintiff must have lost in state
court"; (2) "the plaintiff must complain of injuries caused by a state-court judgment"; (3) "the
plaintiff must invite district court review and rejection of that judgment"; (4) "the state-court
judgment must have been rendered before the district court proceedings commenced-i.e.,
Rooker-Feldman has no application to federal-court suits proceeding in parallel with ongoing
state-court litigation." 422 F.3d at 85 (internal quotation marks omitted).
Inthis case, several of plaintiff s claims satisfy these four requirements and are therefore
dismissed for lack of subject matter jurisdiction. Plaintiff s second, third, and, to some extent,
fifth claims for relief meet the requirements of even this "pared back" Rooker-Feldman doctrine.
Plaintiffs second claim alleges that defendants' failure to give reasons for rejecting plaintiffs
application for reinstatement to practice law violates the Due Process Clause. (Compi. ~~33-35,
B.) By this claim, plaintiff seeks to have this court review the Appellate Division's Decision and
Order dated November 25,2003, whereby that court denied plaintiffs motion seeking
reinstatement. (PI. Aff. Ex. E.) Plaintiff was the losing party in state court. He complains of
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injury from the state-court judgment, asserting that the state court's failure to specify its reasons
violates his due process rights. He asks this court to review and reject the state-court order. And
the state-court order was rendered in November 2003, prior to the filing of this action. This
claim is therefore barred by the Rooker-Feldman doctrine.
Similarly, plaintiffs third claim alleges that defendants set conditions upon plaintiffs
reinstatement in violation of the Due Process and Equal Protection Clauses and the Ex Post Facto
Clause. (CompI. ~~36-38, C.) It is not clear from plaintiffs complaint what requirements he
alleges to be ex post facto conditions imposed on his reinstatement by defendants. But to the
extent that plaintiff is complaining of the Appellate Division's specific application ofthe
disciplinary rules in his particular case and asking this court to review and reject either the
Appellate Division's denial of reinstatement in 2003 or its orders of 1990 or 1994 suspending
plaintiff, that challenge is barred by Rooker-Feldman.
Plaintiffs fifth claim, to the extent it seeks review of defendants' application of the
disciplinary rules to his particular case by alleging that defendants subjected plaintiff to ex post
facto conditions different from those conditions "that are accorded to Caucasians," (CompI. ~
47), is barred for the same reasons. It is not clear from plaintiff s complaint how the Appellate
Division's punishment of him differed from its application of the disciplinary rules "to Caucasian
attorneys." But it is clear that Rooker-Feldman precludes plaintiff from asking this court to
review and reject the state-court orders suspending him and denying him reinstatement.
As this discussion suggests, however, several of plaintiffs claims are not barred by
Rooker-Feldman. As in Feldman, to the extent that plaintiff makes a general challenge to the
constitutionality of the Appellate Division's disciplinary rules, his claims are not barred by the
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Rooker-Feldman doctrine because they "do not require review of a judicial decision in a
particular case." Feldman, 460 U.S. at 482-87. Plaintiffs first and fourth claims raise general
challenges to the Appellate Division's disciplinary procedures, alleging that the absence from
those procedures of mechanisms to re-open disciplinary orders and to enable compulsory process
and discovery violates the Due Process and Equal Protection Clauses. These claims, as well as
plaintiffs general challenge that the disciplinary procedures violate the Equal Protection Clause
by subjecting African-American attorneys to different conditions than those applied "to
Caucasian attorneys," are therefore not barred by Rooker-Feldman.3 See Mosby v. Ligon, 418
F.3d 927 (8th Cir. 2005) (holding that Rooker-Feldman bars disciplined attorney's claims
challenging particular application of the disciplinary procedures of the Arkansas bar but does not
bar attorney's facial challenges to the rules).
c. STANDING
Although the parties have not addressed the issue of standing, the court raises it sua
sponte because it "goes to this [c]ourt's subject matter jurisdiction." Central States Southeast and
Southwest Areas Health and Welfare Fund v. Merck-Medco Managed Care. L.L.C., 433 F.3d
181,198 (2d Cir. 2005); Henneberry v. Sumitomo Corp. of America, 415 F. Supp. 2d 423,438
(S.D.N.Y. 2006) ("Regardless whether the parties raise standing on their own, the Court may
3 The court notes that the Second Circuit addressed Rooker-Feldman's application to
similar claims raised by a doctor disciplined by New York's Board for Professional Medical
Conduct. See Hachamovitch v. DeBuono, 159 F.3d 687 (2d Cir. 1998). In Hachamovitch, the
court applied this circuit's overly expansive Rooker-Feldman principles to bar a doctor's claim
that he was entitled to exculpatory evidence, while permitting review of the doctor's claim that
the disciplinary proceedings are constitutionally defective due to "the absence of any mechanism
for the reopening of a closed disciplinary proceeding in light of newly discovered evidence." 159
F.3d at 694-96.
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address the issue at any time, sua sponte.").
Before addressing the issue of standing, however, the court disposes of any argument that
standing doctrine would not apply here. In light of the similarities between plaintiff's remaining
claims and those raised in Feldman, where the Supreme Court stated that the district court in that
case "has subject matter jurisdiction over [the general constitutional challenges] of [Feldman's]
complaint[]," 460 U.S. at 487, it may seem odd to suggest that this court lacks subject matter
jurisdiction in this case. Nevertheless, the Supreme Court has cautioned that "[w]hen questions
of jurisdiction have been passed on in prior decisions sub silentio, this Court has never
considered itself bound when a subsequent case finally brings the jurisdictional issue before us."
Hagans v. Lavine, 415 U.S. 528, 535 n.5 (1974); see also Adeleke v. U.S., 355 F.3d 144, 149-50
(2d Cir. 2004); Mosbv v. Ligon, 418 F.3d 927,932-33 & n.2 (8th Cir. 2005) ("But Feldman does
not relieve Mosby of the requirement that she demonstrate Article III standing, and we conclude
that Mosby does not have standing to bring what she describes as her facial challenge.");
Grendell v. Ohio Supreme Court, 252 F.3d 828, 835-37 (6th Cir. 2001) ("[T]he Supreme Court's
determination in Feldman concerning a federal district court's subject matter jurisdiction over a
general constitutional challenge, made without comment as to the standing of the litigants,
cannot be construed as implying that all general constitutional challenges made in recognition of
the Rooker-Feldman doctrine confer standing on those litigants."). In addition, courts in this
Circuit have applied the ordinary standing requirements after dismissing some of plaintiff s
claims on the basis of Rooker-Feldman. See. e.g., International Fidelity Insurance Co. v. City of
New York, 263 F. Supp. 2d 619, 629-35 (E.D.N.Y. 2003) (holding that Rooker-Feldman bars
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several claims and lack of standing bars remaining claims).4
These decisions firmly establish that although plaintiff has successfully avoided the
dismissal of his entire complaint on the basis of Rooker-Feldman, plaintiff, as the party invoking
this court's jurisdiction, nonetheless "bears the burden of establishing the elements of standing."
Luian v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
Under Article III, § 2 ofthe Constitution, plaintiff must show that: "(1) [he] has suffered
an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural
or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant[s]; and
(3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable
decision." Hakim v. Chertoff, 447 F. Supp. 2d 325,327-28 (S.D.N.Y. 2006) (quoting Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)). "A plaintiff
must demonstrate standing for each claim and form of relief sought." Vaughn v. Consumer
Home Mortgage Co., No. 01 Civ. 7937,2006 WL 2239324, at *5 (E.D.N.Y. Aug. 4, 2006)
(internal quotation omitted).
Most significantly for this case, "[a] plaintiff seeking injunctive or declaratory relief
cannot rely on past injury to satisfy the injury requirement but must show a likelihood that he or
she will be injured in the future." Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340,344 (2d
Cir. 1998) (citing City of Los Angeles v. Lvons, 461 U.S. 95,105-06 (1983)). In addition,
"abstract injury is not enough; rather, the injury or threat of injury must be both real and
4 The court further notes an unpublished summary order in which the Second Circuit
side-stepped the difficult question of dismissal on the basis of Rooker-Feldman by holding that
plaintiff "lacks standing to pursue the declaratory relief demanded." Rosenberger v. New York
State Office of Temporary and Disability Assistance, 153 Fed. Appx. 753, 754-55 (2d Cir. 2005).
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immediate, not conjectural or hypothetica1." Shain v. Ellison. 356 F.3d 211, 215 (2d Cir. 2004)
(internal quotations omitted).
Aside from plaintiffs First Amendment retaliation claim, discussed below, plaintiffs
remaining claims raise general challenges to the Appellate Division's disciplinary rules. Plaintiff
argues that the procedures are constitutionally deficient because: (1) they lack a mechanism
whereby a disciplined attorney may re-open and vacate the punishment on the basis of newlydiscovered
evidence or the misconduct of an adverse party; (2) they lack a mechanism for
attorneys in disciplinary proceedings to obtain compulsory process and discovery;5and (3) the
conditions for reinstatement for African-American attorneys differ from those applied "to
Caucasian attorneys."
The court concludes that plaintiff lacks standing to raise these claims because the record
here does not demonstrate that he is likely to suffer from any of these alleged constitutional
deficiencies in the future. Undoubtedly, plaintiff has been injured by his past encounters with the
Appellate Division's disciplinary procedures. In 1988, p.1aintiffwasreprimanded "for his
disrespectful and obstreperous conduct as a defense attorney on July 11, 1984, when he threw his
briefcase in the direction of the Judge's bench, striking the bench." In re Alton H. Maddox, 201
A.D.2d 24, 29, 615 N.Y.S.2d 439, 441 (App. Div. 2d Dep't 1994) (per curiam). In 1990,
plaintiff was suspended. See In re Alton H. Maddox, 157 A.D.2d 244,555 N.Y.S.2d 851 (App.
Div. 2d Dep't 1990) (per curiam). In 1994,plaintiff was again suspended. 201 A.D.2d 24,615
5 Thecourtnotesthat plaintiff s claimthat the SecondDepartmentAppellateDivision
must provide for discovery similar to that provided by the First Department Appellate Division
under 22 N.Y.C.R.R. § 605.17 may now be moot. Pursuant to the recommendations of the
Krausman Report, (P1.Aff. Ex. D at 14, 25), the Second Department has adopted a rule similar to
the First Department's rule. See 22 N.Y.C.R.R. § 691.5-A.
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N.Y.S.2d 439. And in 2006, according to plaintiff, he was admonished. (PI. Opp'n Mem. 11.)
Although these past punishments can be "evidence bearing on whether there is a real and
immediate threat of repeated injury," City of Los Angeles v. Lvons, 461 U.S. 95, 102 (1983)
(internal quotation omitted), they do not serve to establish the existence of such a threat. Plaintiff
must demonstrate that he faces a concrete and particularized, non-speculative, imminent future
harm. For plaintiff to satisfy his burden of establishing a sufficient likelihood of injury by a
future unconstitutional disciplinary procedure, he would have to show that if he engages in
professional misconduct and if he is investigated by the Grievance Committee and if he is
disciplined and if he obtains newly-discovered evidence which "would probably have produced a
different result" or evidence of misconduct by an adverse party, see N.Y. C.P.L.R. § 5015, he
will be denied an opportunity to present that evidence or he will be denied a means to obtain
necessary evidence by compulsory process or discovery or he will be subjected to different
disciplinary conditions because of his race. As the Second Circuit stated in Shain, "[s]uch an
accumulation of inferences is simply too speculative and conjectural to supply a predicate for
prospective [equitable] relief." Shain, 356 F.3d at 216.
Furthermore, this conclusion comports with opinions in other circuits holding that
disciplined attorneys lack standing to raise general challenges to state disciplinary rules. In
Mosby v. Ligon, the Eighth Circuit dismissed for lack of standing a punished attorney's facial
challenge to the Arkansas Model Rules of Professional Conduct. 418 F.3d 927 (8th Cir. 2005).
The plaintiff in that case, Lori Mosby, alleged that the director of the Arkansas Supreme Court
Committee on Professional Conduct had acted and was likely to act in bad faith and with
deliberate indifference toward Mosby's rights, that he was likely to apply the rules to her in a
15
manner that violated the Equal Protection and Due Process Clauses, and that the Supreme
Court's Justices discriminatorily applied the rules and acted witl1deliberate indifference toward
such discrimination. 418 F.3d at 929-30. The Eighth Circuit held that Mosby lacked standing to
raise such general challenges, stating:
We deem apropos the Supreme Court's observation in O'Shea rv.
Littleton], that "attempting to anticipate whether and when
respondents will be charged with crime. . . takes us into the area of
speculation and conjecture," 414 U.S. at 497, because we have the
same inability to foresee whether Mosby will face future
disciplinary proceedings. The speculative nature of making this
prediction leads us to conclude that the record does not establish a
real or immediate threat of repeated injury. Mosby thus lacks
standing to pursue the injunctive relief that she seeks.
418 F.3d at 933-34.
Similarly, in Grendell v. Ohio Supreme Court, the Sixth Circuit held that attorneys
sanctioned pursuant to Ohio Rule of Civil Procedure 11 lacked standing to argue that the
sanctions rules facially violate the Due Process Clause by failing to afford notice and the
opportunity to be heard. 252 F.3d 828 (6th Cir. 2001). The Sixth Circuit explained that in order
to show a palpable threat of future injury necessary to achieve
standing for declaratory and injunctive relief, Grendell must
present evidence establishing: (I) that he is bringing or highly
likely to bring a lawsuit before the Ohio Supreme Court; (2) that
such lawsuit is allegedly frivolous, exposing him to sanctions
under Rule XIV, § 5; (3) that the Ohio Supreme Court would, in its
discretion, impose such sanctions; and (4) that the imposition of
those sanctions would violate due process. Such a chain of events
is simply too attenuated to establish injury in fact, and to confer the
required standing in this case.
252 F.3d at 833.
Although in light of plaintiff s pro se status the court would ordinarily afford plaintiff an
16
opportunity to amend his complaint to establish standing, in this case the court concludes that it
is beyond a doubt that plaintiff cannot put forth the facts necessary to establish standing. For
these reasons, the court concludes that plaintiff s claims raising general challenges to the
Appellate Division's disciplinary rules and procedures are dismissed for lack of subject matter
jurisdiction.6
D. FIRST AMENDMENT RETALIATION
Defendants argue that plaintiff s First Amendment claim is not ripe for review because
plaintiff has not been "punished, or even threatened with punishment for his admitted
comments." (Def. Mem. 19-21.) Defendants contend that the "Grievance Committee has merely
begun an investigation into Plaintiff s statements." (Def. Reply Mem. 9-11.) Defendants
concede that "[i]fthe Grievance Committee ultimately attempts to discipline Plaintiff for his
speech, Plaintiff is free to" advance his free speech claims in state court. (Def. Reply Mem. 10.)
6 The court further notes an additional basis for concluding that plaintiff lacks standing to
challenge the disciplinary procedure's absence of a mechanism for re-opening a suspension.
Even if plaintiff is correct in arguing that the Constitution requires that the state provide to
disciplined attorneys a mechanism to re-open their punishments similar to that provided to civil
litigants by N.Y. C.P.L.R. § 5015 and to criminal defendants byN.Y. Crim. Proc. § 440.10,
plaintiffs alleged basis for re-opening his suspension appears to be meritless. Under C.P.L.R. §
5015(a)(2), relief from ajudgment may be had if newly-discovered evidence "would probably
have produced a different result." Similarly, under Crim. Proc. Law § 440.10(l)(g), the standard
.- for vacating a judgment requires that new evidence "create a probability that had such evidence
been received at the trial the verdict would have been more favorable to the defendant." The
newly-discovered evidence identified in plaintiff s complaint consists of an affidavit from a
grand juror empanelled to investigate the charges made by Ms. Brawley and relates to the grand
jury report in that investigation. (See PI. Aff. ~ 5; PI. Aff. Ex. C.) Plaintiffs suspensions,
however, were based not on the initial charges of misconduct relating to plaintiffs representation
of Ms. Brawley, but rather on his refusal to cooperate with the Grievance Committee's
investigations and his failure to file an affidavit demonstrating compliance with his suspension.
The affidavit, therefore, has no bearing whatsoever on the conclusion that plaintiff violated the
rules for which he was suspended. Plaintiff is neither injured by the absence of the procedure he
desires nor would any injury be redressed by a favorable decision in this court.
17
Defendants fail to acknowledge, however, that plaintiff has indicated in his brief that the
Grievance Committee, by letter dated June 29, 2006, "informed plaintiff that it had issued an
admonition," (PI. Mem. 11), which is defined as "discipline without a hearing." See 22
N.Y.C.R.R. § 691.6. Because this admonition occurred after plaintiff served his amended and
supplemental complaint on May I, 2006, the complaint obviously omits it.
Plaintiff is therefore permitted to amend his complaint to include this subsequent
allegation of retaliation. Without evaluating plaintiff s claim at this time, the court notes that the
Grievance Committee may be the more appropriate defendant. In re-pleading, plaintiff should
also be careful to set forth, if possible, the elements of a First Amendment retaliation claim
required by Second Circuit precedents regarding criticism of public officials by private citizens.
See. e.g., Gill v. Pidlvpchak, 389 F.3d 379 (2d Cir. 2004) (discussing various formulations of the
elements of First Amendment retaliation claims but opting not to "choose among these various
possibilities to decide the case before us today").
18
CONCLUSION
For the reasons discussed above, the court grants defendants' motion for dismissal in part,denies defendants' motion in part, and grants plaintiff permission to re-plead his First Amendment retaliation claim. Specifically, under the Rooker-Feldman doctrine, the court lacks
subject matter jurisdiction to entertain plaintiffs challenges to the particular application of the
disciplinary rules in the state judicial proceedings against him. To the extent plaintiffs
complaint raises facial challenges to the disciplinary rules and procedures, the court lacks subject
matter jurisdiction because plaintiff lacks standing to bring such challenges. Finally, the court
grants plaintiff permission to re-plead his First Amendment retaliation claim within twenty days
of the date of this order.
SO ORDERED.
Dated: December 14,2006
Brooklyn, New York
19
SERVICELIST:
Plaintiff
Alton H. Maddox, Jr.
16 Court Street, Ste. 1901
Brooklyn, NY 11201
Defendants' Attorney
Anthony J. Tomari
Attorney General, State of New York
120 Broadway, 24th Floor
New York, NY 10271
Magistrate Judge Bloom
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------------- x
ALTON H. MADDOX, JR.,
Plaintiff, 04 CV 5444 (ARR)(LB)
-against -
A. GAIL PRUDENTI as Presiding Justice of the
APPELLATE DIVISION, SECOND JUDICIAL
DEPARTMENT; DAVID S. RITTER, MYRIAM J.
ALTMAN, NANCY E. SMITH, FRED T. SANTUCCI,
ANITA R. FLORIO,HOWARD MILLER, STEPHEN G.
CRANE, THOMAS A. ADAMS, DANIEL F. LUCIANO,
GABRIEL M. KRAUSMAN, SONDRA MILLER,
GLORIA GOLDSTEIN, ROBERT W. SCHMI
STEVEN W. FISHER, ROBERT A. SPOLZINO,
WILLIAM F. MASTRO, BARRY A. COZIER,
REINALDO E. RIVERA, PETER B. SKELOS, ROBERT
A. LIFSON, as Associate Justices of the Appellate
Division, Second Judicial Department, OPINION AND ORDER
Defendants.
--------------------------------------------------------------------- X
ROSS, United States District Judge:
Plaintiff pro se Alton H. Maddox, Jr., commenced the instant action with the filing of a complaint on December 15,2004. In his Amended and Supplemental Complaint ("Compl."),
served on defendants on May I, 2006, plaintiff names as defendants several justices of the Appellate Division of the New York State Supreme Court for the Second Judicial Department I 1 According to the Second Department's website, several of the defendants are no longer justices of the Appellate Division. Myriam J. Altman died on January 29,2005. Nancy E. Smithwas "[d]esignated an Associate Justice of the Appellate Division, Fourth Department, effective November 23,2004." Barry A. Cozier "[r]esigned effective January 27,2006, to resume the active practice of law." (See http://www.courts.state.ny.us/courts/ad2/iustices.shtml.)
1
and seeks declaratory and injunctive relief. Now pending before the court is defendants' motion to dismiss. For the reasons set forth below, the court grants defendants' motion in part, denies defendants' motion in part, and grants plaintiff permission to re-plead his First Amendment retaliation claim within twenty days of the date of this order.
BACKGROUND
The following factual allegations are drawn from plaintiffs complaint. For the purposes of a motion to dismiss, all facts alleged in the complaint are presumed to be true.
Plaintiff was admitted to practice law in the State of New York on March 15, 1976.
(Compl. ~ 8.) In October 1988, then Attorney General Robert Abrams filed a complaint with the
Grievance Committee for the Second and Eleventh Judicial Districts alleging that plaintiff had "engaged in serious professional misconduct in connection with the highly publicized Tawana Brawley matter and his representation of Ms. Brawley with respect thereto." In re Alton H.Maddox, 157 A.D.2d 244,245 (App. Div. 2d Dep't 1990) (per curiam). (See Compl. ~ 12.)
Plaintiff refused to cooperate with the Grievance Committee's investigation. (Compl. ~ 12; Maddox v. Mollen, No. 89 Civ. 4181, 1990WL 39869, at *2 (E.D.N.Y. Mar. 28, 1990).) On May 21, 1990, the Appellate Division, Second Department, (hereinafter the "Appellate Division"), suspended plaintiff from the practice of law until further order of the court, but permitted plaintiff to complete his representation of Alfred C. Sharpton, then a defendant in a pending criminal trial. 157 A.D.2d at 250. The New York Court of Appeals denied plaintiffs motion for leave to appeal this suspension order. 76 N.Y.2d 705 (1990). By order dated December 27, 1990, the United States District Court for the Eastern District of New York suspended plaintiff from the practice of law in this court during the period of his suspension by
2
the Appellate Division. (PI. Aff. Ex. A-I.)
On August 1, 1994, the Appellate Division confirmed the Special Referee's report
sustaining two allegations of professional misconduct against plaintiff. 201 A.D.2d 24 (App. Div. 2d Dep't 1994) (per curiam). The specific charges sustained against plaintiff were: (1) violating the Code of Professional Responsibility DR 1-102(A)(5) and (8) (former (7)) (22 N.Y.C.R.R. § 1200.3 [a][5], [8]), for refusing to appear before the Grievance Committee and refusing to cooperate with its investigation; and
(2) violating those same provisions by failing to file with the Clerk of the court an affidavit showing compliance with the court's 1990 suspension
order and the Rules ofthe court. 201 A.D.2d at 25-26. As a result of these violations, the Appellate Division suspended plaintiff from the practice of law for a period of five years "and continuing until the further order of this Court, with leave to the respondent to apply for reinstatement. . . ." 201 A.D.2d at 29-30. On October 12, 1994, the Appellate Division denied plaintiff s motion for reargument of the order of suspension. (See Decision & Order on Motion, Nov. 25, 2003, PI. Aff. Ex. E.) On December 1, 1994, the New York Court of Appeals denied
plaintiffs motion for leave to appeal. 84 N.Y.2d 948 (1994).
On July 21,2003, plaintiff petitioned the Appellate Division for an order "allowing for the immediate, automatic and unconditional reinstatement of Alton H. Maddox, Jr., a suspended attorney to the practice of law based on newly-dtscovered evidence, fraud, prosecutorial misconduct and misrepresentation." (Compl.' 28.) Plaintiffs basis for this petition seems to have been a September 11,2000, affidavit from a member of the grand jury empanelled to investigate the charges made by Ms. Brawley. (See PI. Aff. , 5; PI. Aff. Ex. C.) The grand juror states that the grand jury's report was not authored by members of the grand jury and that
3
dissenting grandjurors were not infonned of any right to fashion a dissent to the grand jury report. (PI. Aff. Ex. C.) According to plaintiff, the Grievance Committee responded to his petition on August 18,2003. (PI. Opp'n Mem. 7.) The excerpts of the Grievance Committee's opposition quoted in plaintiff s brief to this court indicate that the Committee argued that plaintiffs petition was not properly made pursuant to 22 N.Y.C.R.R. § 691.11, which sets forth the Appellate Division's special rules for reinstatement following suspension. The excerpts indicate that the Committee further argued that if the Appellate Division opted to entertain plaintiff s "motion in its present fonn, the Court should note that a review of the files of the Grievance Committee. . . reveals no complaints against respondent since his suspension which
have resulted in a finding of professional misconduct." (PI. Opp'n Mem. 7.)
By Decision and Order dated November 25,2003, the Appellate Division, "[u]pon the
papers filed in support of the motion and the papers filed in response thereto," denied plaintiffs motion. (PI. Aff. Ex. E.)In January and February 2006, plaintiff wrote opinion columns in the New York Amsterdam News "stating that Judge William Erlbaum had given jury instructions in People v.Maddox to the effect that plaintiff was guilty of obstructing governmental administration."(Compi. ~ 49-50.) Judge Erlbaum, according to plaintiff, had presided over the 1985 prosecution
of plaintiff for obstructing governmental administration. (PI. Opp'n Mem. 10.) Plaintiff states that he had unsuccessfully objected to Judge Erlbaum's jury instruction. Nevertheless, the jury acquitted plaintiff on all counts. (PI. Opp'n Mem. 10.) In response to plaintiffs opinion columns, defendants "initiated a sua sponte investigation" infonning plaintiff by letters dated February 7 and 22, 2006, and demanding "that plaintiff produce evidence including a jury charge
4
to prove the claims expressed in the articles,,2and infonning plaintiff that his failure to cooperate with the investigation "would constitute an independent ground of professional misconduct" and therefore a basis to discipline plaintiff. (Compi. ~ 51-52; PI. Opp'n Mem. 10-11.) Plaintiff states that he "provided two lengthy responses," which "the Grievance Committee arbitrarily found. . .unsatisfactory." (PI. Opp'n Mem. 11.) Plaintiff states that by letter "dated June 29, 2006, the
Grievance Committee infonned plaintiff that it had issued an admonition" and "that any further professional misconduct may negatively affect plaintiffs current legal status." (PI. Opp'n Mem.
11.) "An admonition is discipline imposed without a hearing." 22 N.Y.C.R.R. § 691.6.
On December 15, 2004, plaintiff commenced the instant lawsuit in this court, seeking
declaratory and injunctive relief. Plaintiff now seeks declaratory and injunctive relief on the grounds that (1) defendants' failure to fashion procedures for post-disciplinary relief based on newly discovered evidence, fraud, prosecutorial misconduct and misrepresentation, such as New York law provides civil litigants, see N.Y. C.P.L.R. § 5015, and criminal defendants, see N.Y.
Crim. Proc. Law § 440.10, violates the Due Process and Equal Protection Clauses of the
Fourteenth Amendment; (2) defendants' failure to give reasons for rejecting plaintiffs
application for reinstatement to practice law violates the Due Process Clause; (3) defendants set
conditions upon plaintiff s reinstatement in violation of the Due Process and Equal Protection
Clauses and the Ex Post Facto Clause; (4) defendants' failure to fashion procedures for
2The defendants dispute that the letters demanded that plaintiff produce evidence to
prove the claims expressed in his articles. The defendants contend that the February 7, 2006,
letter stated: "Along with your answer please feel free to submit any material you deem relevant
or helpful, such as a transcript of the jury charge in question." (Def. Mem. 8 n.2.) Neither party
has submitted to this court any of the letters concerning the investigation and admonition of
plaintiff in 2006.
5
compulsory process and discovery to assist attorneys in disciplinary proceedings, such as those
the First Judicial Department provides, see 22 N.Y.C.R.R. § 605.17, violates the Due Process
and Equal Protection Clauses; (5) defendants have subjected "attorneys of African ancestry to
terms, conditions, standards and practices to be reinstated to law different from those terms,
conditions, customs, usages, standards and procedures employed under Judiciary Law § 90 and
22 N.Y.C.R.R. § 691.11 to Caucasian attorneys"; and (6) defendants' investigation in response to
plaintiffs newspaper columns constitutes retaliation in violation of the First Amendment.
Defendants move to dismiss on the basis of the Rooker-Feldman doctrine, res judicata,
failure to state a claim under § 1983, the statute oflimitations, and ripeness. (Def. Mem. 2.)
DISCUSSION
A. MOTION TO DISMISS STANDARD
1) Rule 12(b)(I)
When considering a motion to dismiss for lack of subject matter jurisdiction under Rule
12(b)(1), the court may consider affidavits and other materials beyond the pleadings. See
Robinson v. Gov't of Malaysia, 269 F.3d 133, 140-41 & n.6 (2d Cir. 2001). Under Rule
12(b)(I), the court must accept as true all material factual allegations in the complaint, but will
not draw inferences favorable to the party asserting jurisdiction. Shipping Fin. Servs. Corp. v.
Drakos, 140 F.3d 129,131 (2d Cir. 1998). However, the court notes "that the obligation to read
the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments that
they suggest extends to the question of standing no less than it does to any other issue." Lerman
v. Board of Elections, 232 F.3d 135, 142 n.8 (2d Cir. 2000) (internal quotations and citation
omitted). As the party seeking to invoke the jurisdiction of the court, the plaintiff bears the
6
burden of demonstrating that subject matter jurisdiction is proper based on facts existing at the
time the complaint was filed. Scelsa v. City Univ. of N.Y., 76 F.3d 37, 40 (2d Cir. 1996).
"While a plaintiffs standing is ordinarily assessed as of the time a lawsuit is brought, immediate
post-filing events may be taken into account where. . . the relief requested is directed at
preventing a future action. . . ." Hakim v. Chertoff, 447 F. Supp. 2d 325,328 (S.D.N.Y. 2006).
2) Rule 12(b)(6)
On a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), the court
should dismiss the complaint only if "it appears beyond doubt that the plaintiff can prove no set
of facts in support of his complaint which would entitle him to relief." King v. Simpson, 189
F.3d 284, 286-87 (2d Cir. 1999) (internal quotation marks and citation omitted). The court must
accept all well-pled factual allegations in the complaint as true and draw all reasonable inferences
in favor of the plaintiff. See Koppel v. 4987 Corp., 167 F.3d 125, 130 (2d Cir. 1999). The
primary inquiry is not whether the plaintiff will ultimately prevail, but whether the plaintiff s
allegations are sufficient to permit him to support his claims with evidence. See Villager Pond.
Inc. v. Town of Darien, 56 F.3d 375,378 (2d Cir. 1995). It should also be noted that courts are
particularly hesitant to dismiss actions filed by pro se litigants, as pro se complaints are held to
"less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S.
519, 520 (1972). "When considering motions to dismiss a pro se complaint such as this, 'courts
must construe [the complaint] broadly, and interpret [it] to raise the strongest arguments that [it]
suggest[s].''' Weixel v. N.Y.C. Bd. of Educ., 287 F.3d 138, 145-6 (2d Cir. 2002) (quoting Cruz
v. Gomez, 202 F.3d 593,597 (2d Cir. 2000)). As a general rule, an action brought pro se "should
not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can
7
prove no set of facts in support of his claim which would entitle him to relief." Hughes v. Rowe,
449 U.S. 5,10 (1980). "Nevertheless, the [c]ourt is also aware that pro se status does not exempt
a party from compliance with relevant rules of procedural and substantive law." Iwachiw v.
N.Y.C. Bd. ofEduc., 194 F. Supp. 2d 194,202 (E.D.N.Y. 2002) (citing Traguth v. Zuck, 710
F.2d 90,95 (2d Cir. 1983)).
B. ROOKER-FELDMAN DOCTRINE
Defendants argue that plaintiffs claims are barred by the Rooker-Feldman doctrine.
(Def. Mem. 14-17.) For the reasons that follow, the court concludes that some, but not all of
plaintiff s claims are so barred.
Based on the general principle "that within the federal judicial system, only the Supreme
Court may review state-court decisions," the Rooker-Feldman doctrine holds that "federal district
courts lack jurisdiction over suits that are, in substance, appeals from state-court judgments."
Hoblock v. Albanv County Bd. of Elections, 422 F.3d 77,85,84 (2d Cir. 2005).
In the eponymous Feldman case, the Supreme Court held that the doctrine barred district
court review of "claims that a state court has unlawfully denied a particular applicant admission"
to the state bar, since such particular applications are judicial proceedings in nature and effect,
whereas district courts have jurisdiction to review "general challenges to state bar admission
rules," since state "courts may act in a non-judicial capacity in promulgating rules regulating the
bar." District of Columbia Court of Appeals v. Feldman, 460 U.S. 462,482-86 (1983).
The Supreme Court has recently clarified the narrow scope of the doctrine. See Lance v.
Dennis, 126 S. Ct. 1198, 1201 (2006) (per curiam) ("[O]ur cases since Feldman have tended to
emphasize the narrowness of the Rooker-Feldman rule."); Exxon Mobil Corp. v. Saudi Basic
8
Indus. Com., 544 U.S. 280, 283, 291 (2005) (noting that lower courts have extended the doctrine
"far beyond the contours of the Rooker and Feldman cases," and explaining "the limited
circumstances in which this Court's appellate jurisdiction over state-court judgments, 28 U.S.C.
§ 1257, precludes" subject-matter jurisdiction in the district court); Hoblock, 422 F.3d at 85 ("In
Exxon Mobil, the Supreme Court pared back the Rooker-Feldman doctrine to its core. . . .").
While reining in lower courts' extension of the doctrine, the Exxon Mobil Court left Feldman's
holding in tact. See 544 U.S. at 283-87,291-92.
In Hoblock, the Second Circuit examined Exxon Mobil and identified "four requirements
for the application of Rooker-Feldman": (1) "the federal-court plaintiff must have lost in state
court"; (2) "the plaintiff must complain of injuries caused by a state-court judgment"; (3) "the
plaintiff must invite district court review and rejection of that judgment"; (4) "the state-court
judgment must have been rendered before the district court proceedings commenced-i.e.,
Rooker-Feldman has no application to federal-court suits proceeding in parallel with ongoing
state-court litigation." 422 F.3d at 85 (internal quotation marks omitted).
Inthis case, several of plaintiff s claims satisfy these four requirements and are therefore
dismissed for lack of subject matter jurisdiction. Plaintiff s second, third, and, to some extent,
fifth claims for relief meet the requirements of even this "pared back" Rooker-Feldman doctrine.
Plaintiffs second claim alleges that defendants' failure to give reasons for rejecting plaintiffs
application for reinstatement to practice law violates the Due Process Clause. (Compi. ~~33-35,
B.) By this claim, plaintiff seeks to have this court review the Appellate Division's Decision and
Order dated November 25,2003, whereby that court denied plaintiffs motion seeking
reinstatement. (PI. Aff. Ex. E.) Plaintiff was the losing party in state court. He complains of
9
injury from the state-court judgment, asserting that the state court's failure to specify its reasons
violates his due process rights. He asks this court to review and reject the state-court order. And
the state-court order was rendered in November 2003, prior to the filing of this action. This
claim is therefore barred by the Rooker-Feldman doctrine.
Similarly, plaintiffs third claim alleges that defendants set conditions upon plaintiffs
reinstatement in violation of the Due Process and Equal Protection Clauses and the Ex Post Facto
Clause. (CompI. ~~36-38, C.) It is not clear from plaintiffs complaint what requirements he
alleges to be ex post facto conditions imposed on his reinstatement by defendants. But to the
extent that plaintiff is complaining of the Appellate Division's specific application ofthe
disciplinary rules in his particular case and asking this court to review and reject either the
Appellate Division's denial of reinstatement in 2003 or its orders of 1990 or 1994 suspending
plaintiff, that challenge is barred by Rooker-Feldman.
Plaintiffs fifth claim, to the extent it seeks review of defendants' application of the
disciplinary rules to his particular case by alleging that defendants subjected plaintiff to ex post
facto conditions different from those conditions "that are accorded to Caucasians," (CompI. ~
47), is barred for the same reasons. It is not clear from plaintiff s complaint how the Appellate
Division's punishment of him differed from its application of the disciplinary rules "to Caucasian
attorneys." But it is clear that Rooker-Feldman precludes plaintiff from asking this court to
review and reject the state-court orders suspending him and denying him reinstatement.
As this discussion suggests, however, several of plaintiffs claims are not barred by
Rooker-Feldman. As in Feldman, to the extent that plaintiff makes a general challenge to the
constitutionality of the Appellate Division's disciplinary rules, his claims are not barred by the
10
Rooker-Feldman doctrine because they "do not require review of a judicial decision in a
particular case." Feldman, 460 U.S. at 482-87. Plaintiffs first and fourth claims raise general
challenges to the Appellate Division's disciplinary procedures, alleging that the absence from
those procedures of mechanisms to re-open disciplinary orders and to enable compulsory process
and discovery violates the Due Process and Equal Protection Clauses. These claims, as well as
plaintiffs general challenge that the disciplinary procedures violate the Equal Protection Clause
by subjecting African-American attorneys to different conditions than those applied "to
Caucasian attorneys," are therefore not barred by Rooker-Feldman.3 See Mosby v. Ligon, 418
F.3d 927 (8th Cir. 2005) (holding that Rooker-Feldman bars disciplined attorney's claims
challenging particular application of the disciplinary procedures of the Arkansas bar but does not
bar attorney's facial challenges to the rules).
c. STANDING
Although the parties have not addressed the issue of standing, the court raises it sua
sponte because it "goes to this [c]ourt's subject matter jurisdiction." Central States Southeast and
Southwest Areas Health and Welfare Fund v. Merck-Medco Managed Care. L.L.C., 433 F.3d
181,198 (2d Cir. 2005); Henneberry v. Sumitomo Corp. of America, 415 F. Supp. 2d 423,438
(S.D.N.Y. 2006) ("Regardless whether the parties raise standing on their own, the Court may
3 The court notes that the Second Circuit addressed Rooker-Feldman's application to
similar claims raised by a doctor disciplined by New York's Board for Professional Medical
Conduct. See Hachamovitch v. DeBuono, 159 F.3d 687 (2d Cir. 1998). In Hachamovitch, the
court applied this circuit's overly expansive Rooker-Feldman principles to bar a doctor's claim
that he was entitled to exculpatory evidence, while permitting review of the doctor's claim that
the disciplinary proceedings are constitutionally defective due to "the absence of any mechanism
for the reopening of a closed disciplinary proceeding in light of newly discovered evidence." 159
F.3d at 694-96.
11
address the issue at any time, sua sponte.").
Before addressing the issue of standing, however, the court disposes of any argument that
standing doctrine would not apply here. In light of the similarities between plaintiff's remaining
claims and those raised in Feldman, where the Supreme Court stated that the district court in that
case "has subject matter jurisdiction over [the general constitutional challenges] of [Feldman's]
complaint[]," 460 U.S. at 487, it may seem odd to suggest that this court lacks subject matter
jurisdiction in this case. Nevertheless, the Supreme Court has cautioned that "[w]hen questions
of jurisdiction have been passed on in prior decisions sub silentio, this Court has never
considered itself bound when a subsequent case finally brings the jurisdictional issue before us."
Hagans v. Lavine, 415 U.S. 528, 535 n.5 (1974); see also Adeleke v. U.S., 355 F.3d 144, 149-50
(2d Cir. 2004); Mosbv v. Ligon, 418 F.3d 927,932-33 & n.2 (8th Cir. 2005) ("But Feldman does
not relieve Mosby of the requirement that she demonstrate Article III standing, and we conclude
that Mosby does not have standing to bring what she describes as her facial challenge.");
Grendell v. Ohio Supreme Court, 252 F.3d 828, 835-37 (6th Cir. 2001) ("[T]he Supreme Court's
determination in Feldman concerning a federal district court's subject matter jurisdiction over a
general constitutional challenge, made without comment as to the standing of the litigants,
cannot be construed as implying that all general constitutional challenges made in recognition of
the Rooker-Feldman doctrine confer standing on those litigants."). In addition, courts in this
Circuit have applied the ordinary standing requirements after dismissing some of plaintiff s
claims on the basis of Rooker-Feldman. See. e.g., International Fidelity Insurance Co. v. City of
New York, 263 F. Supp. 2d 619, 629-35 (E.D.N.Y. 2003) (holding that Rooker-Feldman bars
12
several claims and lack of standing bars remaining claims).4
These decisions firmly establish that although plaintiff has successfully avoided the
dismissal of his entire complaint on the basis of Rooker-Feldman, plaintiff, as the party invoking
this court's jurisdiction, nonetheless "bears the burden of establishing the elements of standing."
Luian v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
Under Article III, § 2 ofthe Constitution, plaintiff must show that: "(1) [he] has suffered
an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural
or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant[s]; and
(3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable
decision." Hakim v. Chertoff, 447 F. Supp. 2d 325,327-28 (S.D.N.Y. 2006) (quoting Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)). "A plaintiff
must demonstrate standing for each claim and form of relief sought." Vaughn v. Consumer
Home Mortgage Co., No. 01 Civ. 7937,2006 WL 2239324, at *5 (E.D.N.Y. Aug. 4, 2006)
(internal quotation omitted).
Most significantly for this case, "[a] plaintiff seeking injunctive or declaratory relief
cannot rely on past injury to satisfy the injury requirement but must show a likelihood that he or
she will be injured in the future." Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340,344 (2d
Cir. 1998) (citing City of Los Angeles v. Lvons, 461 U.S. 95,105-06 (1983)). In addition,
"abstract injury is not enough; rather, the injury or threat of injury must be both real and
4 The court further notes an unpublished summary order in which the Second Circuit
side-stepped the difficult question of dismissal on the basis of Rooker-Feldman by holding that
plaintiff "lacks standing to pursue the declaratory relief demanded." Rosenberger v. New York
State Office of Temporary and Disability Assistance, 153 Fed. Appx. 753, 754-55 (2d Cir. 2005).
13
immediate, not conjectural or hypothetica1." Shain v. Ellison. 356 F.3d 211, 215 (2d Cir. 2004)
(internal quotations omitted).
Aside from plaintiffs First Amendment retaliation claim, discussed below, plaintiffs
remaining claims raise general challenges to the Appellate Division's disciplinary rules. Plaintiff
argues that the procedures are constitutionally deficient because: (1) they lack a mechanism
whereby a disciplined attorney may re-open and vacate the punishment on the basis of newlydiscovered
evidence or the misconduct of an adverse party; (2) they lack a mechanism for
attorneys in disciplinary proceedings to obtain compulsory process and discovery;5and (3) the
conditions for reinstatement for African-American attorneys differ from those applied "to
Caucasian attorneys."
The court concludes that plaintiff lacks standing to raise these claims because the record
here does not demonstrate that he is likely to suffer from any of these alleged constitutional
deficiencies in the future. Undoubtedly, plaintiff has been injured by his past encounters with the
Appellate Division's disciplinary procedures. In 1988, p.1aintiffwasreprimanded "for his
disrespectful and obstreperous conduct as a defense attorney on July 11, 1984, when he threw his
briefcase in the direction of the Judge's bench, striking the bench." In re Alton H. Maddox, 201
A.D.2d 24, 29, 615 N.Y.S.2d 439, 441 (App. Div. 2d Dep't 1994) (per curiam). In 1990,
plaintiff was suspended. See In re Alton H. Maddox, 157 A.D.2d 244,555 N.Y.S.2d 851 (App.
Div. 2d Dep't 1990) (per curiam). In 1994,plaintiff was again suspended. 201 A.D.2d 24,615
5 Thecourtnotesthat plaintiff s claimthat the SecondDepartmentAppellateDivision
must provide for discovery similar to that provided by the First Department Appellate Division
under 22 N.Y.C.R.R. § 605.17 may now be moot. Pursuant to the recommendations of the
Krausman Report, (P1.Aff. Ex. D at 14, 25), the Second Department has adopted a rule similar to
the First Department's rule. See 22 N.Y.C.R.R. § 691.5-A.
14
N.Y.S.2d 439. And in 2006, according to plaintiff, he was admonished. (PI. Opp'n Mem. 11.)
Although these past punishments can be "evidence bearing on whether there is a real and
immediate threat of repeated injury," City of Los Angeles v. Lvons, 461 U.S. 95, 102 (1983)
(internal quotation omitted), they do not serve to establish the existence of such a threat. Plaintiff
must demonstrate that he faces a concrete and particularized, non-speculative, imminent future
harm. For plaintiff to satisfy his burden of establishing a sufficient likelihood of injury by a
future unconstitutional disciplinary procedure, he would have to show that if he engages in
professional misconduct and if he is investigated by the Grievance Committee and if he is
disciplined and if he obtains newly-discovered evidence which "would probably have produced a
different result" or evidence of misconduct by an adverse party, see N.Y. C.P.L.R. § 5015, he
will be denied an opportunity to present that evidence or he will be denied a means to obtain
necessary evidence by compulsory process or discovery or he will be subjected to different
disciplinary conditions because of his race. As the Second Circuit stated in Shain, "[s]uch an
accumulation of inferences is simply too speculative and conjectural to supply a predicate for
prospective [equitable] relief." Shain, 356 F.3d at 216.
Furthermore, this conclusion comports with opinions in other circuits holding that
disciplined attorneys lack standing to raise general challenges to state disciplinary rules. In
Mosby v. Ligon, the Eighth Circuit dismissed for lack of standing a punished attorney's facial
challenge to the Arkansas Model Rules of Professional Conduct. 418 F.3d 927 (8th Cir. 2005).
The plaintiff in that case, Lori Mosby, alleged that the director of the Arkansas Supreme Court
Committee on Professional Conduct had acted and was likely to act in bad faith and with
deliberate indifference toward Mosby's rights, that he was likely to apply the rules to her in a
15
manner that violated the Equal Protection and Due Process Clauses, and that the Supreme
Court's Justices discriminatorily applied the rules and acted witl1deliberate indifference toward
such discrimination. 418 F.3d at 929-30. The Eighth Circuit held that Mosby lacked standing to
raise such general challenges, stating:
We deem apropos the Supreme Court's observation in O'Shea rv.
Littleton], that "attempting to anticipate whether and when
respondents will be charged with crime. . . takes us into the area of
speculation and conjecture," 414 U.S. at 497, because we have the
same inability to foresee whether Mosby will face future
disciplinary proceedings. The speculative nature of making this
prediction leads us to conclude that the record does not establish a
real or immediate threat of repeated injury. Mosby thus lacks
standing to pursue the injunctive relief that she seeks.
418 F.3d at 933-34.
Similarly, in Grendell v. Ohio Supreme Court, the Sixth Circuit held that attorneys
sanctioned pursuant to Ohio Rule of Civil Procedure 11 lacked standing to argue that the
sanctions rules facially violate the Due Process Clause by failing to afford notice and the
opportunity to be heard. 252 F.3d 828 (6th Cir. 2001). The Sixth Circuit explained that in order
to show a palpable threat of future injury necessary to achieve
standing for declaratory and injunctive relief, Grendell must
present evidence establishing: (I) that he is bringing or highly
likely to bring a lawsuit before the Ohio Supreme Court; (2) that
such lawsuit is allegedly frivolous, exposing him to sanctions
under Rule XIV, § 5; (3) that the Ohio Supreme Court would, in its
discretion, impose such sanctions; and (4) that the imposition of
those sanctions would violate due process. Such a chain of events
is simply too attenuated to establish injury in fact, and to confer the
required standing in this case.
252 F.3d at 833.
Although in light of plaintiff s pro se status the court would ordinarily afford plaintiff an
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opportunity to amend his complaint to establish standing, in this case the court concludes that it
is beyond a doubt that plaintiff cannot put forth the facts necessary to establish standing. For
these reasons, the court concludes that plaintiff s claims raising general challenges to the
Appellate Division's disciplinary rules and procedures are dismissed for lack of subject matter
jurisdiction.6
D. FIRST AMENDMENT RETALIATION
Defendants argue that plaintiff s First Amendment claim is not ripe for review because
plaintiff has not been "punished, or even threatened with punishment for his admitted
comments." (Def. Mem. 19-21.) Defendants contend that the "Grievance Committee has merely
begun an investigation into Plaintiff s statements." (Def. Reply Mem. 9-11.) Defendants
concede that "[i]fthe Grievance Committee ultimately attempts to discipline Plaintiff for his
speech, Plaintiff is free to" advance his free speech claims in state court. (Def. Reply Mem. 10.)
6 The court further notes an additional basis for concluding that plaintiff lacks standing to
challenge the disciplinary procedure's absence of a mechanism for re-opening a suspension.
Even if plaintiff is correct in arguing that the Constitution requires that the state provide to
disciplined attorneys a mechanism to re-open their punishments similar to that provided to civil
litigants by N.Y. C.P.L.R. § 5015 and to criminal defendants byN.Y. Crim. Proc. § 440.10,
plaintiffs alleged basis for re-opening his suspension appears to be meritless. Under C.P.L.R. §
5015(a)(2), relief from ajudgment may be had if newly-discovered evidence "would probably
have produced a different result." Similarly, under Crim. Proc. Law § 440.10(l)(g), the standard
.- for vacating a judgment requires that new evidence "create a probability that had such evidence
been received at the trial the verdict would have been more favorable to the defendant." The
newly-discovered evidence identified in plaintiff s complaint consists of an affidavit from a
grand juror empanelled to investigate the charges made by Ms. Brawley and relates to the grand
jury report in that investigation. (See PI. Aff. ~ 5; PI. Aff. Ex. C.) Plaintiffs suspensions,
however, were based not on the initial charges of misconduct relating to plaintiffs representation
of Ms. Brawley, but rather on his refusal to cooperate with the Grievance Committee's
investigations and his failure to file an affidavit demonstrating compliance with his suspension.
The affidavit, therefore, has no bearing whatsoever on the conclusion that plaintiff violated the
rules for which he was suspended. Plaintiff is neither injured by the absence of the procedure he
desires nor would any injury be redressed by a favorable decision in this court.
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Defendants fail to acknowledge, however, that plaintiff has indicated in his brief that the
Grievance Committee, by letter dated June 29, 2006, "informed plaintiff that it had issued an
admonition," (PI. Mem. 11), which is defined as "discipline without a hearing." See 22
N.Y.C.R.R. § 691.6. Because this admonition occurred after plaintiff served his amended and
supplemental complaint on May I, 2006, the complaint obviously omits it.
Plaintiff is therefore permitted to amend his complaint to include this subsequent
allegation of retaliation. Without evaluating plaintiff s claim at this time, the court notes that the
Grievance Committee may be the more appropriate defendant. In re-pleading, plaintiff should
also be careful to set forth, if possible, the elements of a First Amendment retaliation claim
required by Second Circuit precedents regarding criticism of public officials by private citizens.
See. e.g., Gill v. Pidlvpchak, 389 F.3d 379 (2d Cir. 2004) (discussing various formulations of the
elements of First Amendment retaliation claims but opting not to "choose among these various
possibilities to decide the case before us today").
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CONCLUSION
For the reasons discussed above, the court grants defendants' motion for dismissal in part,denies defendants' motion in part, and grants plaintiff permission to re-plead his First Amendment retaliation claim. Specifically, under the Rooker-Feldman doctrine, the court lacks
subject matter jurisdiction to entertain plaintiffs challenges to the particular application of the
disciplinary rules in the state judicial proceedings against him. To the extent plaintiffs
complaint raises facial challenges to the disciplinary rules and procedures, the court lacks subject
matter jurisdiction because plaintiff lacks standing to bring such challenges. Finally, the court
grants plaintiff permission to re-plead his First Amendment retaliation claim within twenty days
of the date of this order.
SO ORDERED.
Dated: December 14,2006
Brooklyn, New York
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SERVICELIST:
Plaintiff
Alton H. Maddox, Jr.
16 Court Street, Ste. 1901
Brooklyn, NY 11201
Defendants' Attorney
Anthony J. Tomari
Attorney General, State of New York
120 Broadway, 24th Floor
New York, NY 10271
Magistrate Judge Bloom
posted by Attorney Alton Maddox at 6:28 AM
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