Cunha v. Moukawsher

Docket Number3:23-cv-37 (VAB)
Decision Date15 January 2024
PartiesNICKOLA CUNHA, Plaintiff, v. THOMAS MOUKAWSHER, in his personal and official capacity, Defendant.
CourtU.S. District Court — District of Connecticut

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NICKOLA CUNHA, Plaintiff,
v.

THOMAS MOUKAWSHER, in his personal and official capacity, Defendant.

No. 3:23-cv-37 (VAB)

United States District Court, D. Connecticut

January 15, 2024


RULING AND ORDER ON MOTION TO DISMISS

VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE

Nickola Cunha (“Plaintiff” or “Ms. Cunha”) brings this pro se Complaint against Thomas Moukawsher (“Defendant” or “Judge Moukawsher”) in his official and personal capacity.

Judge Moukawsher has moved to dismiss this Complaint in its entirety.

For the following reasons, the motion to dismiss is GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

Nickola Cunha is a disbarred attorney, and Judge Moukawsher is a Connecticut Superior Court Judge who allegedly disbarred her on January 25, 2022.[1]Complaint, ECF No. 1 (Jan. 9, 2023) (“Compl.”) ¶ 2.

Ms. Cunha alleges Judge Moukawsher disbarred her “for cause of speech made in zealous advocacy for her client, being a violation of First, Fifth, and Fourteenth Amendment protections, while chilling expression and advocacy, a societal detriment; implicating Connecticut State government for inability to properly select, train, manage justices, to assure the

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proper quality and administration of justice, misuse of federal funds notwithstanding.” Id. Ms. Cunha also alleges that Judge Moukawsher acted with “absolute discretion in personal dislike of zealous advocacy” and that he “cit[ed] unconstitutional authority of practice rule 2-45, to summary [sic] disbar” her. Id. ¶ 9. Ms. Cunha claims “[t]he property interest in a law license demands due process invoked by Fourteenth Amendment, denying Moukawsher the combined roles of accuser, trier, judge, jury, and executioner, of one tyrant in a black robe.” Id. ¶ 14.

Ms. Cunha seeks compensatory damages, declaratory judgment, injunctive relief, punitive damages, attorneys' fees, and other damages deemed just and proper under 42 USC §§ 1983, 1988 for First, Fifth, and Fourteenth Amendment violations and under 18 USC §242 for “criminal mischief[.]” Id. ¶ 4.

The events leading to Ms. Cunha's disbarment are described in an opinion by Judge Moukawsher. See Ambrose v. Ambrose, No. FBTFA196088163S, 2022 WL 620615, at *1 (Conn. Super. Ct. Jan. 25, 2022) (“[finding] that Ms. Cunha repeatedly pressed empty and malicious claims that Judge Gerard Adelman favored Jews, protected pedophiles, and discriminated against the disabled.”). The state trial court found that,

Ms. Cunha repeatedly claimed, starting on page 4 of the Exhibit A transcript that: “Judge Adelman also has a bias against anyone that is not of the Jewish faith.” On that same page she claimed she was making this claim ‘on a significant amount of information that has been sent to me over the last several weeks. And it's really disturbing.” She said on the same page that her belief was ‘a recent belief based on the enormous amount of information and evidence that's come to me.” [ . ] Ms. Cunha had already alleged on page 15 that Judge Adelman was a “racketeer.”

Id. at *1-2. When asked for the basis for her allegations, Ms. Cunha had,

to admit that she didn't have the list she said she was just trying to pull up-the list showing Judge Adelman consistently favoring Jews over non-Jews. Indeed, Ms. Cunha finally gave up pretending after the court waited for a half an hour while she said she was “looking” for the list [ . . . ] When at last the break was over and
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the court returned to the topic of the list of cases where Judge Adelman and Judge Grossman allegedly favored Jews, Ms Cunha's claim of “enormous amount of information and evidence” proved entirely false. By that time, her “enormous” claim had boiled down solely to the list of cases showing a pattern. But, at last, Ms. Cunha admitted the list she said existed in fact never existed.

Id. at *3. The court also found that Ms. Cunha lied about whether a report stated that the defendant had “absolutely” committed sexual assault against his children. Id. at *4 (“[T]he report absolutely did not include any conclusion from a multidisciplinary task [force team] that [the defendant] sexually abused his children. Ms. Cunha wasn't telling the truth about what was in it.”). At a later disciplinary hearing, one held after finding that Ms. Cunha had lied, and in which she was “urged by the court to get her own lawyer, and . . . told in advance of the seriousness of the proceedings,” Id. at 8, Ms. Cunha stated:

Your Honor has engaged in malfeasance, gross malfeasance, I will not be intimidated. I will not be harassed by this Court. I will remind this Court that your so-called historical writing Memorandum of Decision where you touch upon the history that it is, it is a joke, and it is pathetic, and you should be ashamed of yourself for subjecting myself to that type of rhetoric [ . . ] Frankly, Judge, I am ashamed to even be sitting before you[.]

Id. at *6. The court then concluded Ms. Cunha had violated at least seven rules in the Rules of Professional Conduct and issued an opinion disbarring her. Id. at *6-7. Ms. Cunha's Writ of

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Error appealing her disbarment is currently pending at the State of Connecticut Appellate Court. See Mot. to Dismiss Appendix, ECF No. 12-2. (Apr. 24, 2023).

B. Procedural History

On January 9, 2023, Ms. Cunha filed her Complaint. See Compl. ECF No. 1 (Jan. 9, 2023).

On April 24, 2023, Judge Moukawsher filed a Motion to Dismiss. See Mot. to Dismiss, ECF No. 12 (Apr. 24, 2023); Def.'s Mem. in Supp of Mot. to Dismiss, ECF No. 12-1 (April 24, 2023) (“Mem.”).

On May 31, 2023, Ms. Cunha filed her memorandum in opposition to the motion to dismiss. See Mem. in Opp., ECF No. 18 (May 31, 2023) (“Opp.”).

On June 14, 2023, Judge Moukawsher filed his reply. See Reply to Response, ECF No. 19 (Jun. 14, 2023) (“Reply”).

II. STANDARD OF REVIEW

A. Rule 12(b)(1)

“A case is properly dismissed for lack of subject matter jurisdiction under [Federal Rule of Civil Procedure] 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000); FED. R. CIV. P. 12(b)(1). The plaintiff bears the burden of establishing by a preponderance of the evidence that the court has subject matter jurisdiction over the claims. Id.

In every case, a court must determine whether it has subject matter jurisdiction. In evaluating a motion under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, the Court “must accept as true all material factual allegations in the complaint,” but need not draw inferences favorable to the party asserting jurisdiction. Shipping Fin. Servs. Corp. v. Drakos,

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140 F.3d 129, 131 (2d Cir. 1998). A case is properly dismissed under Rule 12(b)(1) where the district court “lacks the statutory or constitutional power to adjudicate the case.” Morrison v. Nat'l Austl. Bank. Ltd., 547 F.3d 167, 170 (2d Cir. 2008).

The burden to prove subject matter jurisdiction generally falls on the plaintiff, but where a “defendant official or government entity asserts the Eleventh Amendment as the basis of the 12(b)(1) motion, the burden falls to that entity to prove its entitlement to dismissal on the grounds of immunity from suit.” Pawlow v. Dep't of Emergency Servs. & Pub. Prot., 172 F.Supp.3d 568, 573 (D. Conn. 2016) (internal quotation marks omitted) (citing Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 239 (2d Cir. 2006)).

B. Rule 12(b)(6)

A complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). Any claim that fails “to state a claim upon which relief can be granted” will be dismissed. Fed.R.Civ.P. 12(b)(6). In reviewing a complaint under Rule 12(b)(6), a court applies a “plausibility standard” guided by “[t]wo working principles.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

First, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” (internal citations omitted)). “[T]he tenet that a court must accept a complaint's allegations as true is inapplicable to threadbare recitals of a cause of action's elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at 663.

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Second, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679. Thus, the complaint must contain “factual amplification . . . to render a claim plausible.” Arista Records LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (quoting Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir. 2009)). “[D]etermining whether a complaint states a plausible claim is context specific, requiring the reviewing court to draw on its experience and common sense. A court considering a motion to dismiss may begin by identifying allegations that, because they are mere conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. 663-64 (citations omitted).

When reviewing a complaint under Federal Rule of Civil Procedure 12(b)(6), the court takes all factual allegations in the complaint as true. Iqbal, 556 U.S. at 678. The court also views the allegations in the light most favorable to the plaintiff and draws all inferences in the plaintiff's favor. Cohen v. S.A.C. Trading Corp., 711 F.3d 353, 359 (2d Cir. 2013); see also York v. Ass'n of the Bar of the City of New York., 286 F.3d 122, 125 (2d Cir. 2002) (“On a motion to dismiss for failure to...

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