22-22

Kelsey v. Clark

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 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,

RICHARD J. SULLIVAN,

SARAH A. L. MERRIAM,

Circuit Judges.

_____________________________________

MICHAEL N. KELSEY,

Plaintiff-Appellant,

v. No. 22-22

BERNADETTE T. CLARK, SUPREME COURT 

JUSTICE,

Defendant.*

_____________________________________

* The Clerk of Court is respectfully directed to amend the official case caption as set forth above.
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For Plaintiff-Appellant: Michael N. Kelsey, pro se, Salt 

Point, NY.

For Defendant: No appearance. 

Appeal from a judgment of the United States District Court for the Northern

District of New York (Brenda K. Sannes, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the district court is 

AFFIRMED. 

Michael N. Kelsey, a former attorney proceeding pro se, appeals from the 

district court’s dismissal of his complaint, brought pursuant to 42 U.S.C. § 1983,

alleging that New York State Supreme Court Justice Bernadette T. Clark deprived

him of his constitutional rights. In the complaint, which he filed in forma 

pauperis and while incarcerated following his conviction for sexual abuse of 

minors, Kelsey alleged that Justice Clark had violated his constitutional rights to 

due process and equal protection when she dismissed his underlying state-court 

defamation action on the ground that “his reputation is so low in the eyes of the 

public” as to be “incapable of further injury” – i.e., that Kelsey is “libel[-]proof.” 

App’x at 11–12. The district court sua sponte dismissed Kelsey’s section-1983
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action, reasoning that (1) judicial immunity barred Kelsey from seeking 

retrospective relief against Justice Clark, and (2) to the extent that Kelsey sought 

prospective relief, his allegations of future injury were insufficiently definite and 

concrete to establish standing. We assume the parties’ familiarity with the 

underlying facts, procedural history, and issues on appeal.

We review de novo the district court’s dismissal of a complaint filed in 

forma pauperis. See McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004). 

Under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), a district court must dismiss any 

frivolous complaint brought against a governmental officer by a prisoner seeking 

to proceed in forma pauperis. See Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir. 2004); 

Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000). A 

complaint is frivolous “if it has no arguable basis in law or fact, as is the case if it 

is based on an ‘indisputably meritless legal theory.’” Montero v. Travis, 171 F.3d 

757, 759–60 (2d Cir. 1999) (quoting Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989)). 

Likewise, “[a] complaint will be dismissed as ‘frivolous’ when ‘it is clear that the 

defendant[] [is] immune from suit.’” Id. at 760 (quoting Neitzke, 490 U.S. at 327). 

Kelsey first argues that the district court erred in considering judicial 

immunity sua sponte. This argument is squarely foreclosed by our precedents. 
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We have consistently held that “[a]ny claim” subject to dismissal “on the ground 

of absolute judicial immunity is ‘frivolous’ for purposes of [section 1915],” Mills v. 

Fischer, 645 F.3d 176, 177 (2d Cir. 2011), and may be dismissed sua sponte by the 

court, see, e.g., Deem v. DiMella-Deem, 941 F.3d 618, 621 (2d Cir. 2019) (“Because 

[the defendant, a state-court judge,] was . . . clearly entitled to judicial immunity, 

the district court did not err in sua sponte dismissing the claims against her as 

frivolous.”); Montero, 171 F.3d at 759–61 (affirming sua sponte dismissal of claims 

as barred by judicial immunity). 

Next, Kelsey argues that the relief he seeks is prospective and thus not 

barred by the doctrine of absolute judicial immunity. But while it is true that the 

doctrine of judicial immunity has “never” barred plaintiffs from seeking purely

“prospective [declaratory] relief,” Pulliam v. Allen, 466 U.S. 522, 536 (1984), 

superseded by statute on other grounds, Federal Courts Improvement Act of 1996, 

Pub. L. No. 104–317, 110 Stat. 3847, courts have consistently prohibited plaintiffs

from seeking declarations that a governmental officer’s “prior conduct violated 

federal law,” Green v. Mansour, 474 U.S. 64, 65, 73 (1985) (emphasis added). That 

is because declaratory judgments of this sort could be “offered in state-court 

proceedings as res judicata on the issue of [section-1983] liability,” thereby 
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opening the door to retrospective claims for “damages or restitution” that are 

clearly prohibited. Id. at 73. In other words, because “such a declaration”

would “‘result [in] a partial end[-]run around’ the Eleventh Amendment’s bar on 

retrospective awards of monetary relief,” Ward v. Thomas, 207 F.3d 114, 120 (2d Cir. 

2000) (quoting Green, 474 U.S. at 73), the Supreme Court has forbidden such relief, 

see Green, 474 U.S. at 65–66. Therefore, Kelsey’s claim – seeking a declaration that 

the libel-proof doctrine is unconstitutional and that Justice Clark violated his 

constitutional rights by applying it in a now-concluded state-court action – is clearly 

barred under the Supreme Court’s decision in Green and ours in Ward. 

Kelsey attempts to resist this conclusion by arguing that his motivation for 

seeking a declaratory judgment is not to “disrupt the . . . earlier [decision] by the 

[s]tate [c]ourt,” or to pursue “money damages,” but to “‘permanently retire’ the 

libel[-]proof doctrine” from being “applie[d] to him [or] to others” in “a later case.” 

Kelsey Br. at 11, 14–15 (quoting App’x at 27). This argument fails twice over. To 

begin with, we are aware of no authority for the proposition that the rule of Green 

and Ward is subject to carveouts based on a plaintiff’s subjective motivation for 

seeking a declaratory judgment. And in any event, we agree with the district 

court that, “[t]o the extent” that Kelsey purports to seek a declaratory judgment 
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for the limited purpose of preventing “the potential application of Justice Clark’s 

ruling to himself in other potential cases and the potential application of th[at]

ruling to other litigants,” he cannot “satisfy the case-or-controversy requirement 

of Article III of the Constitution.” App’x at 57 (emphasis in original); see Warth v. 

Seldin, 422 U.S. 490, 499 (1975) (“[A] plaintiff generally must assert his own legal 

rights and interests, and cannot rest his claim to relief on the legal rights or 

interests of third parties.”); Ashcroft v. Mattis, 431 U.S. 171, 172 n.2 (1977)

(“[S]peculation” regarding future contingencies that “might” occur “is insufficient 

to establish the existence of a present, live controversy.”).

We have considered all of Kelsey’s 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