Bliven v. Hunt, Docket No. 07-1146-cv.

• Decision Date: 28 August 2009
• Docket Number: Docket No. 07-1146-cv.
• Citation: 579 F.3d 204
• Parties: David BLIVEN, Plaintiff-Appellant, v. Hon. John HUNT, both in his individual and official capacity, Hon. Barbara Salinitro, both in her individual and official capacity, Hon. Guy DePhillips, both in his individual and official capacity, Douglas Foreman, both in his individual and official capacity, Julie Stanton, both in her individual and official capacity, Cheryl Joseph-Cherry, both in her individual and official capacity, Hon. Joseph Lauria, both in his individual and official capacity, and City of New York, Defendants-Appellees, "John Does," 1-10, both in their individual and official capacities, the identity and number of whom is presently unknown to the plaintiff, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

579 F.3d 204

David BLIVEN, Plaintiff-Appellant, v. Hon. John HUNT, both in his individual and official capacity, Hon. Barbara Salinitro, both in her individual and official capacity, Hon. Guy DePhillips, both in his individual and official capacity, Douglas Foreman, both in his individual and official capacity, Julie Stanton, both in her individual and official capacity, Cheryl Joseph-Cherry, both in her individual and official capacity, Hon. Joseph Lauria, both in his individual and official capacity, and City of New York, Defendants-Appellees "John Does," 1-10, both in their individual and official capacities, the identity and number of whom is presently unknown to the plaintiff, Defendants.

Docket No. 07-1146-cv.

United States Court of Appeals, Second Circuit.

Argued: October 22, 2008.

Final Briefs Submitted November 7, 2008.

Decided: August 28, 2009.

David Bliven, White Plains, NY, Plaintiff-Appellant pro se.

Diana R.H. Winters, Assistant Solicitor General, New York, N.Y. (Andrew M. Cuomo, Attorney General of the State of New York, Barbara D. Underwood, Solicitor General, Michael S. Belohlavek, Senior Counsel, New York, NY, on the brief), for Individual Defendants-Appellees.

Susan Choi-Hausman, Senior Counsel, New York, N.Y. (Michael A. Cardozo, Corporation Counsel of the City of New York, Pamela Seider Dolgow, Duncan Peterson, New York, NY, on the brief), for Defendant-Appellee City of New York.

Before: KEARSE, SACK, and KATZMANN, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff pro se David Bliven, an attorney who was a member of the public defender panel in New York City, appeals from a judgment entered in the United States District Court for the Eastern District of New York, Sandra J. Feuerstein, Judge, dismissing his action, brought principally under 42 U.S.C. § 1983, alleging that the individual defendants—judges and staff attorneys in the New York State ("State") court system—and the City of New York (the "City") denied him due process by granting him compensation in less than the amount he requested for services he performed as court-appointed counsel, and alleging breach of contract by the City. The district court dismissed the complaint against the individual defendants as frivolous on its face in light of those defendants' entitlement to judicial immunity. It dismissed the federal claims against the City pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim on which relief can be granted. Bliven challenges these rulings on appeal, contending principally (a) that the individual defendants are not entitled to judicial immunity because they were acting in their administrative, not judicial, capacities, and (b) that the City is liable because the individual defendants, in setting his compensation, were municipal policymakers. Finding no merit in Bliven's challenges, we affirm.

I. BACKGROUND

The following description of the events is drawn from Bliven's complaint, whose factual allegations we take as true for purposes of reviewing the dismissal pursuant to Rule 12(b)(6).

A. Bliven's Claims

From 2000 until April 2005, Bliven was a member of New York City's Assigned Counsel Panel, serving as a public defender principally in New York Family Court in Queens County. He was assigned cases in that court by individual family court judges and represented children, as their "law guardian," or adults in cases involving child custody and support, family offenses, juvenile delinquency, and children in need of protection.

Defendants John Hunt, Barbara Salinitro, and Guy DePhillips were judges on the family court; Judge DePhillips was the supervising judge; defendant Joseph Lauria was a State Administrative Judge. Defendants Douglas Foreman, Julie Stanton, and Cheryl Joseph-Cherry were, respectively, staff attorneys for Judges Hunt, Salinitro, and DePhillips.

Under the assigned-counsel plan, established pursuant to State law, see N.Y. County Law art. 18-B ("Article 18-B"), §§ 722 and 722-a to 722-f, a municipality is required to compensate attorneys assigned pursuant to Article 18-B at statutory rates—set as of January 2004 at $75 per hour for offenses above the misdemeanor level—"for time expended in court before a magistrate, judge or justice and ... for time reasonably expended out of court," N.Y. County Law § 722-b(l), up to a maximum total of $4,400, see id. § 722-b(2), plus "reimbursement for expenses reasonably incurred," id. § 722-b(l). The attorney's compensation and reimbursement in a given case are to be "fixed by the trial court judge," who, in "extraordinary circumstances ... may provide for compensation in excess of the [statutory] limits." Id. § 722-b(3). Regulations provide that "[r]equests for reconsideration of any order of the trial court fixing compensation" may be "reviewed by the appropriate administrative judge, ... who may modify the award if it is found that the award reflects an abuse of discretion by the trial judge." N.Y. Comp.Codes R. & Regs. tit. 22, §§ 127.3(c), 127.2(b).

Bliven commenced the present action in 2005, alleging principally that, beginning in March 2002, the individual defendants conspired to deny him the compensation to which he was entitled, in retaliation for his having made disfavored motions in approximately 15 child protective and foster care cases in 2001 to compel the disclosure of "the entire caserecord [sic]" (Complaint ¶ 22) maintained by the Administration for Children's Services ("ACS") (see, e.g., id. ¶¶ 22-32, 55). He alleged that between March and September 2002, "nearly every voucher [he] submitted for public defender compensation—at least regarding an ACS or foster care agency case—to Judges Hunt or Salinitro were [sic] reduced by $50-150, all with no oral or written explanation as to why the voucher was reduced" (id.¶ 30), and that Foreman and Stanton told Bliven that his vouchers were reduced because of his filing of the motions to compel disclosure of complete ACS files (see id. ¶¶ 28, 31). Other vouchers submitted by Bliven were reduced by substantially greater amounts (see, e.g., id. ¶¶ 32, 34, 37); the total by which Bliven alleged he was underpaid was $16,637.39 (see id. ¶ 44).

Bliven also alleged that as a result of his complaining about the reductions of his vouchers, he was threatened that the judges would file a grievance against him. He alleged that he was thus forced to withdraw from the public defender panel, thereby losing two-thirds of his usual income. (See id. ¶¶ 46-47.)

The Complaint sought $16,637.39 from the City on a theory of breach of contract. (See id. ¶¶ 39-44.) In addition, it sought, inter alia, $5 million in compensatory damages from all of the defendants on each of seven causes of action on various theories, including hostile work environment (see id. ¶¶ 45-48), conspiracy to deprive Bliven of the compensation to which he was entitled (see id. ¶¶ 49-56), conspiracy to deprive him of equal protection and to deprive persons charged with child neglect and/or child abuse of effective assistance of counsel (see id. ¶¶ 57-61), denial of substantive and procedural due process (see id. ¶¶ 62-69), and failure of the City to train, investigate, and discipline the individual defendants (see id. ¶¶ 79-85). The complaint also sought $25 million on a "Class-Action-Right To Counsel" theory (id. ¶¶ 70-73), and sought injunctive relief (a) prohibiting the State and the City from requiring judicial approval of public defender vouchers, and (b) ordering that any such fee disputes instead be submitted to arbitration (see id., WHEREFORE ¶ D).

B. The Decisions of the District Court

In an Opinion and Order dated December 12, 2005, reported at 418 F.Supp.2d 135, the district court dismissed the complaint against the individual defendants sua sponte. As to Bliven's claims for monetary relief, the court concluded that those defendants were "absolutely immune from liability for judicial acts" because Bliven "does not allege that the judges were acting beyond their judicial capacity or in the clear absence of jurisdiction." Id. at 137-38.

The court also dismissed Bliven's claims for injunctive relief against the individual defendants. It concluded that any such relief was unavailable because "`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,'" and Bliven had failed to allege that a declaratory decree was violated or that declaratory relief was unavailable. Id. at 139 (quoting Federal Courts Improvement Act of 1996, § 309(c), Pub.L. No. 104-317, 110 Stat. 3847, 3853 (1996) (amending 42 U.S.C. § 1983)).

In a subsequent unpublished Opinion and Order dated June 28, 2006, the district court denied a motion by Bliven to amend his complaint to add an allegation that the individual defendants, at the relevant times, were acting not in their judicial capacities but instead in their administrative and/or ministerial capacities. Accepting and adopting the report and recommendation of the magistrate judge to whom the motion had been referred, which reasoned that all of the actions complained of by Bliven and all of his contacts with the individual defendants had been in their judicial capacities, the district court concluded that Bliven's proposed amendment would be futile.

Finally, in an Opinion and Order dated February 9, 2007, reported at 478 F.Supp.2d 332, the district court granted a motion to dismiss the federal claims against the City for failure to state a claim. The court ruled that the individual defendants were not municipal policymakers because (a) they were employees of the State, not the City, see id. at 338-39, and (b) their "[d]eterminations of attorney compensation do not establish municipal policy, but only effectuate the statutory policy established by the State legislature to compensate appointed counsel," id. at 338. The...