The Honorable Timothy C. Stanceu, of the United States *

Court of International Trade, sitting by designation.

Judge Robert A. Katzmann, originally a member of this **

panel, recused himself from this case. The remaining two

members of the panel, who are in agreement, decide this case

in accordance with Second Circuit Internal Operating

Procedure (“IOP”) E. 

08-4732-cv

Peterec-Tolino 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 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. 

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

4 New York, on the 8 day of February, two thousand ten. th

5

6 PRESENT:

7 GERARD E. LYNCH,

8 Circuit Judges,

9 TIMOTHY C. STANCEU,

*

10 Judge, U.S. Court of International Trade.**

11 _____________________________________

12

13 John L. Peterec-Tolino,

14

15 Plaintiff-Appellant,

16

17 v. 08-4732-cv

18

19 The State of New York, et al.,

20

21 Defendants-Appellees.

22 ______________________________________

23 

24
2

1 FOR APPELLANT: John L. Peterec-Tolino, pro se, Rock

2 Hill, New York.

3

4 FOR APPELLEES: No appearance. 

5

6

7 Appeal from orders of the United States District Court

8 for the Southern District of New York (Scheindlin, J.).

9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

10 AND DECREED that the orders of the district court are

11 AFFIRMED.

12 Appellant John L. Peterec-Tolino, pro se, appeals an

13 order of the district court sua sponte dismissing his

14 complaint brought pursuant to 42 U.S.C. § 1983 and the

15 Racketeer Influenced and Corrupt Organizations Act (“RICO”),

16 and an order denying his motion for reconsideration. We

17 assume the parties’ familiarity with the underlying facts,

18 the procedural history of the case, and the issues on

19 appeal. 

20 This Court reviews a district court’s dismissal of a

21 complaint pursuant to Fed. R. Civ. P. 12(b)(6) de novo,

22 “construing the complaint liberally, accepting all factual

23 allegations in the complaint as true, and drawing all

24 reasonable inferences in the plaintiff’s favor.” Chambers

25 v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). 
3

1 Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), a complaint may

2 be dismissed “at any time” if the court determines that the

3 action fails to state a claim on which relief may be

4 granted. While we understand why Appellant might feel

5 aggrieved at the district court’s dismissal of his complaint

6 sua sponte without awaiting the defendants’ response, such

7 an action is permissible if the complaint fails to state a

8 claim for relief. See McEachin v. McGuinnis, 357 F.3d 197,

9 201 (2d Cir. 2004). 

10 A complaint must plead “enough facts to state a claim

11 to relief that is plausible on its face.” Bell Atlantic

12 Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has

13 facial plausibility “when the plaintiff pleads factual

14 content that allows the court to draw the reasonable

15 inference that the defendant is liable for the misconduct

16 alleged.” Id. In the case of a pro se complaint, a court

17 must construe the complaint liberally, see Harris v. Mills,

18 572 F.3d 66, 72 (2d Cir. 2009), and should not dismiss it

19 without granting the plaintiff leave to amend “at least once

20 when a liberal reading of the complaint gives any indication

21 that a valid claim might be stated.” Gomez v. USAA Fed.

22 Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999). When a
4

1 complaint is dismissed prior to the service of process and

2 the defendants’ answers, the issue is whether the plaintiff

3 is entitled to offer evidence to support his claims. See

4 McEachin, 357 F.3d at 201.

5 To establish a claim pursuant to 42 U.S.C. § 1983, a

6 plaintiff must show that the defendants, acting under the

7 color of state law, deprived him of a constitutional or

8 federal statutory right. See Rodriguez v. Phillips, 66 F.3d

9 470, 473 (2d Cir. 1995). Here, Appellant has abandoned his

10 claims against the State of New York, conceding at oral

11 argument that such claims are barred by the Eleventh

12 Amendment. Appellant’s § 1983 claims against the Office of

13 Court Administration of the Unified Court System were

14 properly dismissed because these claims against an arm of

15 the State of New York are equally proscribed by the Eleventh

16 Amendment. See Pennhurst State School & Hosp. v. Halderman,

17 465 U.S. 89, 100 (1984). Appellant’s § 1983 claims against

18 Jeffrey S. Eisenberg and against Eisenberg and Associates

19 were properly dismissed because these defendants are private

20 actors who cannot be sued under § 1983. See American Mfrs.

21 Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999) (§ 1983

22 actions do not reach purely private conduct).
5

1 Appellant’s § 1983 claims against the employees of the

2 Departmental Disciplinary Committee of the Unified Court

3 System (“DDC”) were properly dismissed because Appellant has

4 no legally cognizable interest in attorney disciplinary

5 proceedings. See Application of Phillips, 510 F.2d 126, 126

6 (2d Cir. 1975) (per curiam). In other words, even if

7 Appellant’s allegations of misconduct on the part of DDC

8 employees were not largely speculative, any failure on the

9 part of public officials entrusted with the task of attorney

10 discipline to pursue valid cases does not violate any

11 constitutional rights of complainants. Id. Moreover,

12 Appellant failed to show his entitlement to prospective

13 injunctive relief, pursuant to Ex Parte Young, 209 U.S. 123,

14 155-56 (1908), because his complaint did not allege any

15 ongoing violation of federal law. See State Employee

16 Bargaining Agent Coalition v. Rowland, 494 F.3d 71, 95 (2d

17 Cir. 2007). 

18 The district court also properly dismissed Appellant’s

19 civil RICO claims because Appellant’s complaint did not

20 plead sufficient facts to sustain a claim that the

21 defendants were engaged in an “enterprise” pursuant to RICO,

22 i.e., that they were associated with one another for a
6

1 common purpose. See First Capital Asset Management, Inc. V.

2 Satinwood, Inc., 385 F.3d 159, 173 (2d Cir. 2004).

3 Because all the federal claims were properly dismissed,

4 the district court did not abuse its discretion in declining

5 to exercise supplemental jurisdiction over Appellant’s state

6 law claims against Eisenberg and his law firm. See 

7 Travelers Ins. Co. v. Keeling, 996 F.3d 1485, 1490 (2d Cir.

8 1993). Because Peterec-Tolino did not identify any facts or

9 law that the district court overlooked in its dismissal of

10 his complaint, the district court did not abuse its

11 discretion in denying Appellant’s motion for

12 reconsideration. See Transaero, Inc. v. La Fuerza Aerea

13 Boliviana, 162 F.3d 724, 729 (2d Cir. 1998). 

14 Finally, while leave to amend a complaint ordinarily

15 should be freely given, Ellis v. Chao, 336 F.3d 114, 127 (2d

16 Cir. 2003), particularly when dismissing a pro se complaint

17 sua sponte, we conclude that the district court did not

18 abuse its discretion in dismissing the case sua sponte

19 without leave to amend. Any amendment would be futile

20 because Peterec-Tolino simply cannot sue the defendants in

21 federal court for the federal claims discussed above, and

22 has not alleged or suggested that he could allege any other
7

1 facts that would establish that he suffered a wrong that

2 could be remedied in federal district court. See id.

3 We have reviewed Appellant’s remaining arguments and

4 find them to be without merit. 

5 For the foregoing reasons, the orders of the district

6 court are hereby AFFIRMED.

7 FOR THE COURT: 

8 Catherine O’Hagan Wolfe, Clerk

9