Finn v. Anderson

592 F. App'x 16

2d Cir.

2014

Check Treatment

Docket

Patricia FINN, Plaintiff-Appellant, v. Gloria J. ANDERSON, individually and in her official capacity as Staff Counsel to the Grievance Committee for the Ninth Judicial District, Defendant-Appellee.

No. 13-4020

United States Court of Appeals, Second Circuit

Nov. 14, 2014

ter in the first instance in light of its own expertise.” Negusie v. Holder, 555 U.S. 511, 517, 129 S.Ct. 1159, 173 L.Ed.2d 20 (2009) (internal quotation marks omitted).

II. CAT Relief

Lastly, the agency did not err in denying CAT relief. Unlike the standards for asylum and withholding of removal, where a finding of past persecution gives rise to a presumption of future persecution, past torture does not give rise to a presumption of future torture for the purpose of CAT eligibility. Instead, evidence of past torture serves only as evidence relevant to the possibility of future torture. See 8 C.F.R. § 1208.16(c)(3). While Seenithamby Rasaiah‘s past treatment was horrific, she has not resided in Sri Lanka for over a decade, and she has not presented any particularized evidence to show that anyone in Sri Lanka seeks to torture her specifically. See 8 C.F.R. § 1208.16(c)(3); Mu Xiang Lin v. U.S. Dep‘t of Justice, 432 F.3d 156, 160 (2d Cir.2005). As a result, substantial evidence supports the agency‘s conclusion that Seenithamby Rasaiah has not established that she will be tortured by or with the acquiescence of the Sri Lankan government. See 8 C.F.R. § 1208.17; Mu Xiang Lin, 432 F.3d at 159.

For the foregoing reasons, the petition for review is GRANTED, in part, with regard to Seenithamby Rasaiah‘s withholding application, and DENIED, in part, with regard to her CAT application. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

PATRICIA FINN, pro se, Piermont, NY, for Plaintiff-Appellant.

VALERIA FIGUEREDO, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Cecelia C. Chang, Special Counsel, on the brief), New York State Office of the Attorney General, New York, NY, for Defendant-Appellee.

PRESENT: JOHN M. WALKER, JR., GERARD E. LYNCH, and DENNY CHIN, Circuit Judges.

SUMMARY ORDER

Appellant Patricia Finn, an attorney proceeding pro se, appeals from the district court‘s dismissal of her complaint against Gloria Anderson, staff counsel to the New York State Grievance Committee for the Ninth Judicial District. Finn claims that the district court erred, first, by ruling that Anderson has absolute immunity against Finn‘s claims that she improperly assisted Finn‘s former client in reinstating a fee dispute arbitration and, second, by dismissing Finn‘s claims that Anderson violated her equal protection and substantive due process rights by helping Finn‘s estranged husband procure pro bono counsel during their divorce proceedings. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

This Court reviews a district court decision dismissing a complaint pursuant to Rule 12(b)(6) de novo. Litwin v. Blackstone Group, L.P., 634 F.3d 706, 715 (2d Cir.2011). We “accept[] all factual allegations as true and draw[] all reasonable inferences in favor of the plaintiff.” Id. (internal quotation marks omitted). To survive a Rule 12(b)(6) motion, 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). While “a court is ordinarily obligated to afford a special solicitude to pro se litigants” in construing their pleadings, Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir.2010), “pro se attorneys typically cannot claim [that] special consideration,” Holtz v. Rockefeller & Co., 258 F.3d 62, 82 n. 4 (2d Cir.2001) (internal quotation marks omitted).

Having reviewed the record and relevant case law in this case, we conclude that the district court properly granted Anderson‘s motion to dismiss on all causes of action.

With regard to Anderson‘s alleged interference in Finn‘s fee dispute arbitration, the district court properly concluded that Anderson was entitled to absolute immunity against all claims. Government officials who “perform functions closely associated with the judicial process,” including “prosecutors, administrative law judges and hearing examiners,” are entitled to absolute immunity for acts taken pursuant to their office. Oliva v. Heller, 839 F.2d 37, 39 (2d Cir.1988) (internal quotation marks omitted). This Court has consistently extended such “quasijudicial” immunity to investigators with attorney grievance committees such as Anderson. See Anonymous v. Ass‘n of the Bar of City of New York, 515 F.2d 427, 433 (2d Cir.1975) (noting that a Grievance Committee “acts as a quasi-judicial body” and thus “is an arm of the Appellate Division“), quoting Wiener v. Weintraub, 22 N.Y.2d 330, 332, 292 N.Y.S.2d 667, 239 N.E.2d 540 (1968); see also, e.g., McKeown v. N.Y. State Comm‘n on Judicial Conduct, 377 Fed. Appx. 121, 124 (2d Cir.2010) (“Prosecutors, hearing examiners, and law clerks are eligible for absolute immunity, and those involved in preparing and adjudicating attorney discipline proceedings share analogous roles.“); Napolitano v. Saltzman, 315 Fed. Appx. 351, 351-52 (2d Cir.2009) (“[Defendant] enjoy[ed] absolute immunity for his actions as counsel to the Grievance Committee, which are ‘quasi-public adjudicatory [or] prosecutorial in nature.‘“) (third alteration in original), quoting Barbara v. N.Y. Stock Exch., Inc., 99 F.3d 49, 58 (2d Cir.1996).

A defendant entitled to quasi-judicial immunity loses that privilege only if she acts “in the clear absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978) (internal quotation marks omitted). As we have recognized, the scope of a judicial officer‘s jurisdiction “must be construed broadly” in order to allow her “to exercise [her] functions with independence and without fear of consequences.” Gross v. Rell, 585 F.3d 72, 85 (2d Cir.2009) (internal quotation marks omitted). Mere evidence that an official‘s action “was in error, was done maliciously, or was in excess of [her] authority” does not undermine her claim to absolute immunity so long as it did not fall clearly outside all official authority. Stump, 435 U.S. at 356 (internal quotation marks omitted).

As the district court noted, Anderson became involved in Finn‘s fee dispute arbitration while investigating a professional misconduct claim arising out of the same case on behalf of the Grievance Committee. Furthermore, while Anderson was not currently investigating Finn‘s fee dispute, an attorney‘s refusal to submit to a proper fee dispute arbitration generally qualifies as attorney misconduct within the Grievance Committee‘s jurisdiction. We need not decide whether Anderson “exce[eded]” her official authority by advising Finn‘s former client about reinstating the fee dispute arbitration because, even if she did, the district court correctly concluded that she did not act in the “clear absence of all jurisdiction.” See Stump, 435 U.S. at 357 (internal quotation marks omitted).

With regard to Anderson‘s alleged role in procuring pro bono counsel for Finn‘s estranged husband, the district court properly found that Finn‘s complaint fails to state a claim on any of her causes of action. First, Finn claims that Anderson‘s interference constituted “class-of-one” discrimination in violation of the Equal Protection Clause. “A class-of-one claim exists ‘where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.‘” Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 140 (2d Cir.2010), quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). In order to succeed on such a claim, “plaintiffs must show an extremely high degree of similarity between themselves and the persons to whom they compare themselves.” Ruston v. Town Bd. of Skaneateles, 610 F.3d 55, 59 (2d Cir.2010) (internal quotation marks omitted). Because Finn fails so much as to identify any similarly situated individuals against whom Anderson‘s alleged inter-ference in her matrimonial proceedings may be compared, she cannot state an equal protection claim sufficiently plausible to survive a Rule 12(b)(6) motion.

Second, Finn argues that Anderson‘s interference in her matrimonial proceedings violated her right to substantive due process under the Fifth and Fourteenth Amendments. To state a substantive due process claim, a plaintiff must plead that (1) “a constitutionally cognizable property interest is at stake,” and (2) the defendant‘s alleged actions depriving her of that right were “not merely incorrect or ill-advised,” but “arbitrary, conscience-shocking, or oppressive in the constitutional sense.” Ferran v. Town of Nassau, 471 F.3d 363, 369-70 (2d Cir.2006) (internal quotation marks omitted). Finn‘s complaint alleged that Anderson violated her substantive due process rights by “influ-enc[ing] the decision to assign Mr. Johnson and Mr. Cohen, two of the country‘s most aggressive lawyers, to represent Plaintiff‘s estranged husband in their matrimonial matter.” Compl. 27. Finn argues that this action violated her due process right to marriage and family autonomy, recognized in Supreme Court cases such as Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), and Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). While the right to marry is a fundamental right, see Zablocki v. Redhail, 434 U.S. 374, 384, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978), that right does not entail a fundamental right to pursue divorce proceedings unopposed by pro bono counsel.

Finally, Finn alleges that Anderson conspired with a variety of individuals, including Finn‘s estranged husband and his matrimonial attorneys, to violate Finn‘s due process rights in violation of 42 U.S.C. § 1985. To bring a claim under § 1985, a plaintiff must allege “(1) a conspiracy (2) for the purpose of depriving a person or class of persons of the equal protection of the laws, or the equal privileges and immunities under the laws; (3) an overt act in furtherance of the conspiracy; and (4) an injury to the plaintiff‘s person or property, or a deprivation of a right or privilege of a citizen of the United States.” Thomas v. Roach, 165 F.3d 137, 146 (2d Cir.1999). Because Finn fails to identify any constitutionally cognizable property interests to which her due process rights might attach, she cannot plausibly charge that Anderson participated in a conspiracy to violate those rights.

Accordingly, we AFFIRM the judgment of the district court.

JOHN M. WALKER, JR.

GERARD E. LYNCH

DENNY CHIN

CIRCUIT JUDGES

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