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 -47 32 -cv Peterec-Tolino v. The Stateof New York 

### UNITE D STATES COURT OF AP PEALS FOR T HE SE COND CIRCU IT 

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECE DENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PE RMITTED 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 

### GER ARDE. LYNCH , 8 

### Circui t J udges , 9 

### TIMOTHY C . S TANCEU , * 10 

### Judge, U. S. Court of Int ern ati ona l T rade. ** 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

______________________________________ 23 242 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 . 1 2 Appellant John L. Peterec-Tolino, pro se , appeals an 1 3 order of the district court sua sponte dismissing his 1 4 complaint brought pursuant to 42 U.S.C. § 1983 and the 1 5 Racketeer Influenced and Corrupt Organizations Act (“RICO”), 1 6 and an order denying his motion for reconsideration. We 1 7 assume the parties’ familiarity with the underlying facts, 1 8 the procedural history of the case, and the issues on 1 9 appeal. 2 0 This Court reviews a district court’s dismissal of a 2 1 complaint pursuant to Fed. R. Civ. P. 12(b)(6) de novo, 2 2 “construing the complaint liberally, accepting all factual 2 3 allegations in the complaint as true, and drawing all 2 4 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). 1 0 A complaint must plead “enough facts to state a claim 1 1 to relief that is plausible on its face.” Bell Atlantic 12 Corp. v. Twombly , 550 U.S. 544, 570 (2007). A claim has 1 3 facial plausibility “when the plaintiff pleads factual 1 4 content that allows the court to draw the reasonable 1 5 inference that the defendant is liable for the misconduct 1 6 alleged.” Id . In the case of a pro secomplaint, a court 1 7 must construe the complaint liberally, see Harris v. Mills , 1 8 572 F.3d 66, 72 (2d Cir. 2009), and should not dismiss it 1 9 without granting the plaintiff leave to amend “at least once 2 0 when a liberal reading of the complaint gives any indication 2 1 that a valid claim might be stated.” Gomez v. USAA Fed. 22 Sav. Bank , 171 F.3d 794, 795 (2d Cir. 1999). When a4 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 1 0 claims against the State of New York, conceding at oral 1 1 argument that such claims are barred by the Eleventh 1 2 Amendment. Appellant’s § 1983 claims against the Office of 1 3 Court Administration of the Unified Court System were 1 4 properly dismissed because these claims against an arm of 1 5 the State of New York are equally proscribed by the Eleventh 1 6 Amendment. See Pennhurst State School & Hosp. v. Halderman , 1 7 465 U.S. 89, 100 (1984). Appellant’s § 1983 claims against 1 8 Jeffrey S. Eisenberg and against Eisenberg and Associates 1 9 were properly dismissed because these defendants are private 2 0 actors who cannot be sued under § 1983. See American Mfrs. 21 Mut. Ins. Co. v. Sullivan , 526 U.S. 40, 49-50 (1999) (§ 1983 2 2 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 1 0 discipline to pursue valid cases does not violate any 1 1 constitutional rights of complainants. Id . Moreover, 1 2 Appellant failed to show his entitlement to prospective 1 3 injunctive relief, pursuant to Ex Parte Young , 209 U.S. 123, 1 4 155-56 (1908), because his complaint did not allege any 1 5 ongoing violation of federal law. See State Employee 16 Bargaining Agent Coalition v. Rowland , 494 F.3d 71, 95 (2d 1 7 Cir. 2007). 1 8 The district court also properly dismissed Appellant’s 1 9 civil RICO claims because Appellant’s complaint did not 2 0 plead sufficient facts to sustain a claim that the 2 1 defendants were engaged in an “enterprise” pursuant to RICO, 2 2 i.e., that they were associated with one another for a6 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 1 0 his complaint, the district court did not abuse its 1 1 discretion in denying Appellant’s motion for 1 2 reconsideration. See Transaero, Inc. v. La Fuerza Aerea 13 Boliviana , 162 F.3d 724, 729 (2d Cir. 1998). 1 4 Finally, while leave to amend a complaint ordinarily 1 5 should be freely given, Ellis v. Chao , 336 F.3d 114, 127 (2d 1 6 Cir. 2003), particularly when dismissing a pro secomplaint 17 sua sponte , we conclude that the district court did not 1 8 abuse its discretion in dismissing the case sua sponte 1 9 without leave to amend. Any amendment would be futile 2 0 because Peterec-Tolino simply cannot sue the defendants in 2 1 federal court for the federal claims discussed above, and 2 2 has not alleged or suggested that he could allege any other7 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