Barone v. Laws.' Fund for Client Prot. ( 2023 )

22-58
Barone v. Laws.’ Fund for Client Prot.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,
in the City of New York, on the 14th day of February, two thousand twenty-three.
PRESENT:
AMALYA L. KEARSE,
DENNIS JACOBS,
RICHARD J. SULLIVAN,
Circuit Judges.
_____________________________________
JOSEPH S. BARONE,
Plaintiff-Appellant,
v. No. 22-58
THE LAWYERS’ FUND FOR CLIENT
PROTECTION, SUPREME COURT OF NEW
YORK, APPELLATE DIVISION, THIRD
DEPARTMENT,
Defendants-Appellees.*
_____________________________________
* The Clerk of Court is respectfully directed to amend the official case caption as set forth above.
For Plaintiff-Appellant: Joseph S. Barone, pro se, Myrtle
Beach, SC.
For Defendants-Appellees: Barbara D. Underwood, Solicitor
General, Victor Paladino, Senior
Assistant Solicitor General, Brian
Lusignan, Assistant Solicitor General,
for Letitia James, Attorney General for
the State of New York, Albany, NY.
1
Appeal from a judgment of the United States District Court for the Northern
District of New York (Glenn T. Suddaby, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Joseph Barone, proceeding pro se, appeals from the district court’s dismissal
of various claims he brought against the Lawyers’ Fund for Client Protection (the
“Lawyers’ Fund”) and the Supreme Court of the State of New York, Appellate
Division, Third Department (the “Third Department”; together with the Lawyers’
Fund, the “Defendants”). We assume the parties’ familiarity with the underlying
facts, procedural history, and issues on appeal.
2
Having served as an informant for the Federal Bureau of Investigation (the
“FBI”) for approximately twenty years, Barone was arrested in January 2009 for
conduct that he claims the FBI itself had authorized.1 After his arrest, Barone
hired an attorney, Roy Kulcsar, to represent him. When Kulcsar told Barone that
prosecutors would freeze his assets and thus deny him legal counsel of his
choosing, Barone transferred personal liquid assets to Kulcsar. But after Barone
fired Kulcsar and obtained new representation, Kulcsar failed to return all of
Barone’s funds. Barone was ultimately acquitted and released from custody in
July 2010; Kulcsar was disbarred in June 2012.
In June 2012, Barone filed an application with the Lawyers’ Fund – which
has the power to reimburse clients for “losses caused by the dishonest conduct of
attorneys admitted to practice in [New York] state,” N.Y. Jud. Law § 468-b(2) – for
reimbursement of the assets Kulcsar had stolen from him. The Lawyers’ Fund,
however, denied Barone’s claim, principally because it found he had voluntarily
1 Certain facts recited herein are drawn from Barone’s federal complaint, which we accept as true
for the purposes of this order. See, e.g., M.E.S., Inc. v. Snell, 712 F.3d 666, 671 (2d Cir. 2013).
Other facts recited herein are drawn from state-court documents – of which the district court
permissibly took judicial notice – submitted with the Defendants’ motion to dismiss. See Fed. R.
Evid. 201; Int’l Star Class Yacht Racing Ass’n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir.
1998).
3
transferred the funds to avoid having them seized by prosecutors. Barone then
commenced an Article 78 proceeding in New York Supreme Court, Albany
County, to annul the determination of the Lawyers’ Fund, see N.Y. C.P.L.R. 7801
et seq., which the court denied, finding that the Lawyers’ Fund’s determination
was neither arbitrary and capricious, nor an abuse of discretion. Barone filed a
notice of appeal with the Third Department, but failed to perfect his appeal,
resulting in dismissal.
In February 2021, Barone filed a federal action against the Lawyers’ Fund
and the Third Department, asserting claims for (1) “judgment obtained by fraud”;
(2) “denial of due process”; (3) “denial of equal protection”; and (4) “violations of
the American with Disabilities Act,” presumably related to the post-traumatic
stress disorder (“PTSD”) from which Barone suffers. Dist. Ct. Doc. No. 1 at 19–
25 (capitalization standardized). The Defendants moved to dismiss Barone’s
complaint on various grounds. The district court granted that motion, construing
Barone’s complaint to have raised claims pursuant to 42 U.S.C. § 1983 and Title II
of the Americans with Disabilities Act of 1990 (the “ADA”), 42 U.S.C. § 12131 et
4
seq., but principally concluding that judicial immunity and quasi-judicial
immunity barred the claims against the Defendants. Barone timely appealed.
We review de novo a district court’s ruling on a motion to dismiss based on
judicial immunity. See Butcher v. Wendt, 975 F.3d 236, 241 (2d Cir. 2020). We are,
however, “free to affirm on any ground that finds support in the record, even if it
was not the ground upon which the trial court relied.” Wells Fargo Advisors, LLC
v. Sappington, 884 F.3d 392, 396 n.2 (2d Cir. 2018) (citation omitted). We do so
here, affirming on the basis that Barone’s claims under 42 U.S.C. § 1983 are barred
by the Eleventh Amendment, and that he has failed to state a claim on which relief
can be granted under Title II of the ADA.
The Eleventh Amendment provides immunity from suit in federal court to
states, as well as to “state agents and state instrumentalities that are, effectively,
arms of a state.” See Mary Jo C. v. N.Y. State & Loc. Ret. Sys., 707 F.3d 144, 151–52
(2d Cir. 2013) (citation omitted). In determining whether an entity is an arm of
the state, we consider many factors, including:
(1) how the entity is referred to in its documents of origin; (2) how the
governing members of the entity are appointed; (3) how the entity is
funded; (4) whether the entity’s function is traditionally one of local
or state government; (5) whether the state has a veto power over the
5
entity’s actions; and (6) whether the entity’s financial obligations are
binding upon the state.
Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009) (citation omitted). Eleventh
Amendment immunity, however, can be waived by the state or abrogated by
Congress. Id.Both of the Defendants qualify as state entities eligible for Eleventh
Amendment immunity, subject to waiver or abrogation. As to the Third
Department, we have squarely held that the New York State Unified Court
System – of which the Third Department is a part – is an arm of the state. Id.at 366–68; see also Napolitano v. Saltzman, 315 F. App’x 351, 351 (2d Cir. 2009).
Similarly, we conclude that the Lawyers’ Fund is an arm of the state because it was
created by state law, its trustees are appointed by the New York Court of Appeals
and considered state employees, and its assets are held in the custody of the state
Comptroller. See N.Y. Jud. Law § 468-b; N.Y. State Fin. Law § 97-t. Furthermore,
regulations regarding the Lawyers’ Fund signal that it is an “Ancillary Agenc[y]”
to the state court system, similar to the Board of Law Examiners – an entity we
have previously determined to be an arm of the state. See N.Y. Comp. Codes R.
6
& Regs. tit. 22, § 7200 et seq.; T.W. v. N.Y. State Bd. of L. Exam’rs, 996 F.3d 87, 92 (2d
Cir. 2021).
Having determined that the Defendants are state entities, we see no basis
for concluding that the Defendants’ Eleventh Amendment immunity has been
waived or abrogated as to Barone’s claims under section 1983. Congress did not
abrogate the states’ Eleventh Amendment immunity by enacting 42 U.S.C. § 1983.
See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989). And while a claim
under Title II of the ADA could in theory escape Eleventh Amendment immunity,
Barone cannot state a Title II claim. See Mary Jo C., 707 F.3d at 152.
To make out a prima facie case under Title II of the ADA, Barone must show,
among other things, that he was “denied the opportunity to participate in or
benefit from [D]efendants’ services, programs, or activities, or was otherwise
discriminated against by [D]efendants, by reason of [his] disability.” Dean v.
Univ. at Buffalo Sch. of Med. & Biomedical Scis., 804 F.3d 178, 187 (2d Cir. 2015)
(citation omitted). But Barone’s complaint contains no plausible allegations that
either of the Defendants’ actions were taken by reason of his PTSD, or even that
they were aware of his PTSD. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
7
(2007). As a result, we conclude that dismissal of Barone’s claims against these
Defendants was proper.
We have considered Barone’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
8