19-3995
Brady v. Berman
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 ASUMMARY 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 25th day of February, two thousand twenty-one.
PRESENT:
JOHN M. WALKER, JR.,
ROBERT A. KATZMANN,
WILLIAM J. NARDINI,
Circuit Judges.
_____________________________________
James H. Brady,
Plaintiff-Appellant,
v. 19-3995
Geoffrey S. Berman, United States Attorney for the
Southern District of New York,
Defendant-Appellee.
_____________________________________
For Plaintiff-Appellant: JAMES H. BRADY, pro se, Wyckoff, NJ.
For Defendant-Appellee: RACHAEL L. DOUD (Christopher Connolly,
on the brief) Assistant United States
Attorneys, for Audrey Strauss, Acting
United States Attorney for the Southern
District of New York, New York, NY.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Caproni, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED, but the case is REMANDED
with the instruction that the court shall amend its judgment and enter dismissal without prejudice.
Appellant James H. Brady, proceeding pro se, appeals a September 18, 2019, order
dismissing his complaint against Geoffrey Berman, the then-United States Attorney for the
Southern District of New York. Mr. Brady appeals the dismissal as it relates to his claims that
Berman wrongfully refused to investigate and prosecute members of the New York State judiciary
who adjudicated two state court litigations involving Mr. Brady. 1 We assume the parties’
familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
Upon de novo review, see Dubuisson v. Stonebridge Life Insurance Co., 887 F.3d 567, 573
(2d Cir. 2018), we affirm the dismissal of Mr. Brady’s claims for lack of standing. It is well settled
that “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of
another” and thus “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 In re Attorney Disciplinary Appeal, 650 F.3d 202, 204 (2d Cir. 2011).
Mr. Brady may have had a financial interest in the underlying property disputes that were
adjudicated in state court, but that does not give him a judicially cognizable interest in the
1
Mr. Brady also asserted a claim under the Freedom of Information Act. The district court
dismissed that claim, and Mr. Brady does not challenge that dismissal on appeal. Accordingly, any
appeal on that issue is waived. See LoSacco v. City of Middletown, 71 F.3d 88, 92–93 (2d Cir.
1995).
2
investigation or prosecution of individuals who were involved in those litigations. See Linda R.S.,
410 U.S. at 619. And while Mr. Brady is correct that the First Amendment protects his right to
petition the government for redress, see BE & K Const. Co. v. NLRB, 536 U.S. 516, 524–25 (2002),
it does not grant him a right to obtain any such investigation or prosecution of a third party, Linda
R.S., 410 U.S. at 618–19.
We likewise affirm the district court’s denial of leave to amend. Upon de novo review, see
Hutchison v. Deutsche Bank Securities Inc., 647 F.3d 479, 490 (2d Cir. 2011), we agree with the
district court’s conclusion that amendment would be futile. Mr. Brady argues that he could cure
the defects in his complaint by not disclosing the contents of the criminal complaint he wishes to
file and by omitting claims subject to a filing injunction in the Southern District of New York, but
these changes would not cure the underlying lack of standing.
We respectfully disagree, however, with the district court’s decision to dismiss these claims
with prejudice. “[W]here a complaint is dismissed for lack of Article III standing, the dismissal
must be without prejudice, rather than with prejudice.” John v. Whole Foods Mkt. Grp., Inc., 858
F.3d 732, 735 (2d Cir. 2017). While the district court was correct in dismissing Mr. Brady’s claims
on standing grounds, it should have done so without prejudice. We therefore remand with the
instruction that the district court shall amend its judgment and enter dismissal without prejudice.
See Katz v. Donna Karan Co., 872 F.3d 114, 121 (2d Cir. 2017). 2
2
Given Mr. Brady’s lack of standing and the district court’s consequent lack of
jurisdiction, we need not address the district court’s alternative holding that a prior federal court
filing injunction barred a portion of Mr. Brady’s claims.
3
We have considered all of Mr. Brady’s remaining arguments and find them to be without
merit. Accordingly, the judgment of the district court is AFFIRMED, but the case is
REMANDED with the instruction that the district court shall amend its judgment and enter
dismissal without prejudice
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
4