Caldwell v. Pesce

639 F. App'x 38

2d Cir.

2016

Check Treatment

Docket

Ken CALDWELL, Lisa Caldwell, Plaintiffs-Appellants, v. Justice Michael L. PESCE, P.J., Justice Michelle Weston, Justice Martin M. Solomon, J.J., Chief Clerk Paul Kenny, Senior Partner Russell Polirer, Esq., Senior Partner Kenneth Novikoff, Senior Partner Cheryl F. Korman, Esq., Gutman, Mintz, Baker & Sonnenfeldt P.C., Rivkin Radler LLP, Defendants-Appellees.

No. 15-1149-cv.

United States Court of Appeals, Second Circuit.

April 14, 2016.

PRESENT: AMALYA L. KEARSE, JOSÉ A. CABRANES and DENNY CHIN, Circuit Judges.

Ken Caldwell, Lisa Caldwell, pro se, Newark, DE, for Plaintiffs-Appellants. Cheryl F. Korman, Merril S. Biscone, Rivkin Radler LLP, Uniondale, NY., for Defendants-Appellees Polirer; Novikoff; Korman; Gutman, Mintz, Baker & Sonnenfeldt P.C.; and Rivkin Radler LLP.

SUMMARY ORDER

Plaintiffs-appellants Ken and Lisa Caldwell, proceeding pro se, appeal the District Court‘s March 2, 2015, judgment sua sponte dismissing their complaint with prejudice pursuant to 28 U.S.C. § 1915(e)(2). In their complaint, plaintiffs-appellants allege, inter alia, that defendants-appellees—who consist of attorneys, law firms, a state court clerk, and state court judges—violated 42 U.S.C. §§ 1983 and 1985 in connection with prior litigation stemming from a landlord-tenant dispute. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We review de novo a district court‘s dismissal pursuant to 28 U.S.C. § 1915(e)(2). Giano v. Goord, 250 F.3d 146, 149-50 (2d Cir.2001). To survive dismissal, the complaint must plead “enough facts to state a claim to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

Here, based on an independent review of the record, we conclude, substantially for the reasons set forth by the District Court in its thorough and well-reasoned opinion, see Caldwell v. Pesce, 83 F.Supp.3d 472 (E.D.N.Y.2015), that the District Court appropriately dismissed plaintiffs-appellants’ complaint with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)-(iii).

Additionally, we deny plaintiffs-appellants’ motion for sanctions as meritless. Plaintiffs-appellants rely on Federal Rule of Civil Procedure 11 as the basis for the requested sanctions. But “[o]n its face, Rule 11 does not apply to appellate proceedings.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 406, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990); see also Fed. R.Civ.P. 1 (stating that the Federal Rules of Civil Procedure “govern the procedure in all civil actions and proceedings in the United States district courts” (emphasis added)). To the extent plaintiffs-appellants meant to move for sanctions pursuant to Federal Rule of Appellate Procedure 38, 28 U.S.C. § 1927, or the Court‘s inherent authority, the motion is also meritless. Rule 38 does not authorize the imposition of sanctions against an appellee, see Fed. R.App. P. 38, and in the circumstances presented here sanctions are not appropriate under § 1927 or our inherent authority because, based on the record before us, none of the appellees have acted in bad faith, unreasonably, or vexatiously, see 28 U.S.C. § 1927; Ransmeier v. Mariani, 718 F.3d 64, 68 (2d Cir.2013).

CONCLUSION

We have considered all of plaintiffs-appellants’ arguments and find them to be without merit. Accordingly, we AFFIRM the March 2, 2015, judgment of the District Court, and we DENY plaintiffs-appellants’ motion for sanctions.

AMALYA L. KEARSE, JOSÉ A. CABRANES and DENNY CHIN, Circuit Judges.

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