08-4879-cv
Esposito v. The State of New York
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 8th day of December, two thousand nine.
PRESENT:
AMALYA L. KEARSE,
ROBERT A. KATZMANN,
DEBRA ANN LIVINGSTON,
Circuit Judges.
__________________________________________________
Luisa C. Esposito,
Plaintiff-Appellant,
v. 08-4879-cv
The State of New York, the Office of Court
Administration of the Unified Court System,
Thomas J. Cahill, in his official and
individual capacity, Naomi Goldstein, in her
official and individual capacity, Albert S.
Blinder, in his official and individual
capacity, Harvey Gladstein & Partners LLC,
formerly known as Gladstein & Isaac,
Allan H. Isaac, individually and as a
partner of Harvey Gladstein & Partners LLC,
formerly known as Gladstein & Isaac, the
City of New York, Raymond Kelly, in his
official and individual capacity, Robert
Arbuiso, in his official and individual
capacity, Adam I. Lamboy, in his official
and individual capacity, Arthur Pollack,
individually and as a partner of Pollack,
Pollack, Isaac & DeCicco, LLP, Conrad
Pollack, individually and as a partner of
Pollack, Pollack, Isaac & DeCicco, LLP,
Brian J. Isaac, individually and as a
partner of Pollack, Pollack, Isaac &
Decicco, LLP, Pollack, Pollack, Isaac &
DeCicco, LLP, and Jane and John Does,
Defendants-Appellees.*
__________________________________________________
FOR APPELLANT: Luisa C. Esposito, pro se, West Hempstead,
NY.
FOR APPELLEES: Douglas Langholz (Anthony Daniel Grande, on
the brief), Morgan Melhuish Abrutyn, New
York, NY (for appellees Arthur Pollack,
Conrad Pollack, Brian J. Isaac, and Pollack,
Pollack, Isaac & DeCicco, LLP).
Patrick J. Walsh, Assistant Solicitor General
(Barbara D. Underwood, Solicitor General,
Michael S. Belohlavek, Senior Counsel, on the
brief) for Andrew M. Cuomo, Attorney General
of the State of New York, New York, NY (for
appellees State of New York, Office of Court
Administration of the Unified Court System,
Thomas J. Cahill, Naomi Goldstein, and Albert
S. Blinder).
Diane Krebs (Thomas B. Coppola, on the
brief), Gordon & Rees LLP, New York, NY (for
appellee Allen H. Isaac).
Elizabeth I. Freedman, Assistant Corporation
Counsel (Michael A. Cardozo, Corporation
Counsel, on the brief) New York, NY (for
appellees City of New York, Raymond Kelly,
Robert Arbuiso, and Adam Lamboy).
Traycee Ellen Klein (Eric B. Topel, on the
brief), Epstein Becker & Green, P.C., New
*
The Clerk of the Court is directed to amend the official caption as set forth above.
2
York, NY (for appellee Harvey Gladstein &
Partners LLC).
Appeal from the United States District Court for the
Southern District of New York (Scheindlin, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment and order of the district court are
AFFIRMED.
Appellant Luisa C. Esposito, pro se, appeals from the
judgment of the United States District Court for the Southern
District of New York (Scheindlin, J.), dismissing her claims
under 42 U.S.C. § 1983 and state law, and from the district
court’s order denying her motion for reconsideration pursuant to
Rule 60(b) of the Federal Rules of Civil Procedure. We assume
the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
“We review de novo a district court’s dismissal of a
complaint pursuant to Rule 12(b)(6) [of the Federal Rules of
Civil Procedure], construing the complaint liberally, accepting
all factual allegations in the complaint as true, and drawing all
reasonable inferences in the plaintiff’s favor.” Chambers v.
Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). We review a
district court order denying a Rule 60(b) motion for abuse of
discretion. See Transaero, Inc. v. La Fuerza Aerea Boliviana,
162 F.3d 724, 729 (2d Cir. 1998).
3
To succeed on a § 1983 claim, a plaintiff must show that the
defendants, acting under the color of state law, deprived her of
a constitutional right. Rodriguez v. Phillips, 66 F.3d 470, 473
(2d Cir. 1995). In the instant case, we find that Appellant
failed to show any deprivation of a constitutional right. First,
with regard to her attempts to secure Isaac’s arrest and criminal
prosecution, “a citizen lacks standing to contest the policies of
the prosecuting authority when he himself is neither prosecuted
nor threatened with prosecution.” Linda R.S. v. Richard D., 410
U.S. 614, 619 (1973); see also United States v. Grundhoefer, 916
F.2d 788, 792 (2d Cir. 1990). Private citizens have no legally
cognizable interest in attorney disciplinary proceedings. See
Application of Phillips, 510 F.2d 126, 126 (2d Cir. 1975) (per
curiam). Likewise, Appellant’s First Amendment claim based on
access to the same proceedings fails because she had no
cognizable right to participate in them.
Further, a governmental failure to protect an individual
from private violence does not implicate a victim’s due process
rights unless the state actor created or enhanced the danger to
the victim, which Appellant did not allege. See Okin v. Vill. of
Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 427-28 (2d Cir.
2009) (citing DeShaney v. Winnebago County Dep’t of Soc. Servs.,
489 U.S. 189, 197 (1989); Dwares v. City of New York, 985 F.2d
94, 99 (2d Cir. 1993)(overruled on other grounds by Leatherman v.
Tarrant Co. Narcotics Intelligence & Coordination Unit, 507 U.S.
4
163, 164 (1993)). Nor did Appellant allege any facts to suggest
that she was intentionally discriminated against based on her
gender or that she suffered any treatment disparate from
similarly situated individuals that would support a “class-of-
one” equal protection theory. See Clubside, Inc. v. Valentin,
468 F.3d 144, 159 (2d Cir. 2006). Accordingly, Appellant’s
complaint failed to state a claim and was properly dismissed.
Moreover, it would have been futile to give Appellant leave to
amend her complaint because she had already amended it twice.
See Hayden v. County of Nassau, 180 F.3d 42, 53-54 (2d Cir.
1999). Finally, we find that the district court did not abuse
its discretion in denying Appellant’s Rule 60(b) motion because
she demonstrated no “exceptional circumstances” that would
justify setting aside the dismissal of her complaint. Ruotolo v.
City of New York, 514 F.3d 184, 191 (2d Cir. 2008).
We have carefully considered Appellant’s remaining claims
and find them to be without merit.
For the foregoing reasons, the judgment and order of the
district court are AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
By:___________________________
5