582 F. App'x 51
2d Cir.
2014

Mark SARGENT, Plaintiff-Appellant, v. Jane B. EMONS, Judicial Branch, State of Connecticut, Defendants-Appellees.

No. 13-4774-cv.

United States Court of Appeals, Second Circuit.

Nov. 7, 2014.

ror as required under Strickland. In describing the relevant legal inquiry under New York law, the Court of Appeals emphasized that where “a single error or omission . . . was ‘so egregious and prejudicial’ as to deprive defendant of a fair trial,” the representation of counsel cannot be meaningful. J.A. 20 (quoting Turner, 806 N.Y.S.2d 154, 840 N.E.2d at 126) (emphasis added). Moreover, in reaching its conclusion under this standard, the Court of Appeals focused exclusively on the single error alleged: namely, that Cummings‘s counsel failed at the close of the People‘s case to move to dismiss the burglary charge on the grounds that the evidence did not support the conclusion that the precinct was a “dwelling.” To conclude, therefore, that the Court of Appeals looked past the alleged error because it believed that the totality of counsel‘s representation was meaningful is simply not consistent with the text of the decision.

Second, the Court of Appeals‘s application of the prejudice prong was not unreasonable. In the very first paragraph of its decision, the Court of Appeals explained that “[a] building is considered a dwelling, if it is usually occupied by a person lodging therein at night.” J.A. 19 (internal quotation marks and citations omitted). But, the Court continued, “[b]y using the phrase ‘usually occupied’ to define a dwelling the Legislature clearly intended to enact a flexible standard [and a]ccordingly, there is no requirement that the building must always be a home or what would normally be considered a residence.” Id. (internal quotations marks and citations omitted). We are satisfied that this discussion, though brief, demonstrates that the Court of Appeals‘s analysis was not unreasonable because it considered the underlying merits of Cummings‘s dwelling argument. In addition, we find that the conclusion the Court of Appeals reached was not unreasonable because the dormitories in the precinct bore many of the customary indicia of a residence, including that officers “routinely” slept there overnight and that the dormitory rooms were not used for other purposes. J.A. 29; see also People v. Quattlebaum, 91 N.Y.2d 744, 675 N.Y.S.2d 585, 698 N.E.2d 421, 423 (1998) (describing the standard for a “dwelling” under N.Y. Penal Law § 140.00[3]).

For the reasons given, we AFFIRM the judgment of the district court.

Norman A. Pattis, The Pattis Law Firm, LLC, Bethany, CT, for Plaintiff-Appellant.

Philip Miller, Assistant Attorney General, for George Jepsen, Attorney General, Hartford, CT, for Defendants-Appellees.

Present: ROBERT A. KATZMANN, Chief Judge, PETER W. HALL, DEBRA ANN LIVINGSTON, Circuit Judges.

SUMMARY ORDER

Plaintiff-Appellant Mark Sargent appeals from a December 9, 2013 order of the United States District Court for the District of Connecticut (Arterton, J.) denying Sargent‘s motion for a preliminary injunction and dismissing his case in its entirety. We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal.

The district court denied Sargent‘s motion for a preliminary injunction and dismissed Sargent‘s complaint on two alternative grounds: first, that the district court was required to abstain from exercising jurisdiction under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); and second, that the defendants were entitled to immunity from all of Sargent‘s claims. On appeal, Sargent challenges only the first of these determinations and fails to raise any meaningful argument addressing the defendants’ immunity to suit. “We regard as waived any challenges to adverse decisions that are undiscussed.” Lore v. City of Syracuse, 670 F.3d 127, 149 (2d Cir.2012); see also Jackler v. Byrne, 658 F.3d 225, 233 (2d Cir.2011) (“[The plaintiff‘s] brief on appeal contains no argument that any ruling other than the dismissal of his First Amendment retaliation claims was incorrect, and we thus regard all of his other claims as abandoned.“). Accordingly, we find that Sargent has abandoned his claim that the district court erred in finding his action barred by the defendants’ immunity, and we may affirm the district court‘s dismissal of the complaint on this ground alone.

Nonetheless, we also find that the district court correctly concluded that immunity bars Sargent‘s claims against the defendants here. The Eleventh Amendment bars suits by private persons against state governments unless the state waives its sovereign immunity or Congress abrogates it by appropriate legislation. See Virginia Office for Prot. & Advocacy v. Stewart, --- U.S. ---, 131 S.Ct. 1632, 1638, 179 L.Ed.2d 675 (2011). State sovereign immunity under the Eleventh Amendment extends to actions against the state‘s agencies and instrumentalities, see Regents of the Univ. of California v. Doe, 519 U.S. 425, 429, 117 S.Ct. 900, 137 L.Ed.2d 55 (1997), and “applies to a suit seeking an injunction,” Cory v. White, 457 U.S. 85, 91, 102 S.Ct. 2325, 72 L.Ed.2d 694 (1982). Here, the district court correctly found that the Judicial Branch of the State of Connecticut, one of the defendants in this action, is a department of the state and thus shares in its sovereign immunity. See Conn. Gen.Stat. § 51-1a. Moreover, there is no indication that the state has waived its immunity, and it is well established that Congress did not abrogate state sovereign immunity in enacting 42 U.S.C. § 1983, under which all of Sargent‘s claims were brought. See Quern v. Jordan, 440 U.S. 332, 345, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Therefore, the district court correctly found that the Eleventh Amendment bars Sargent‘s suit against the Judicial Branch of the State of Connecticut.

With respect to Judge Emons, the other defendant in these proceedings, the Federal Courts Improvement Act of 1996 amended section 1983 to provide “that in any action brought against a judicial officer for an act or omission taken in such officer‘s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.” Federal Courts Improvement Act of 1996, § 309(c), Pub.L. No. 104-317, 110 Stat. 3847, 3853 (1996) (amending 42 U.S.C. § 1983). Claims for injunctive relief under section 1983 against judges acting in their official capacity are therefore barred by absolute judicial immunity as long as declaratory relief remains available, the judge did not exceed her jurisdiction, and the plaintiff does not allege that a declaratory judgment was violated. See Montero v. Travis, 171 F.3d 757, 761 (2d Cir.1999) (per curiam). Here, Sargent sued Judge Emons solely in her judicial capacity in adjudicating Sargent‘s custody dispute. And, as the district court found, Sargent has not alleged that Judge Emons acted in violation of any declaratory decree or in excess of her jurisdiction. See Conn. Gen.Stat. § 46b-56(a) (granting continuing jurisdiction to the Connecticut Superior Court over custody matters). Nor has Sargent claimed that declaratory relief is unavailable. The district court therefore correctly found that Sargent‘s injunctive claims against Judge Emons under section 1983 are barred by the doctrine of judicial immunity.

Accordingly, we conclude that the district court was correct in finding that immunity bars Sargent‘s claims, a finding that required denial of Sargent‘s motion for a preliminary injunction and dismissal of this action, and so we need not reach the question of whether abstention was required on the facts of this case. We have considered Sargent‘s remaining arguments and find them to be without merit.

For the reasons stated herein, the judgment of the district court is AFFIRMED.

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