17-818 

Roemer v. Booth 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

CORRECTED 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 30th day of January, two thousand eighteen. 

PRESENT: 

ROBERT A. KATZMANN, 

 Chief Judge, 

AMALYA L. KEARSE, 

ROSEMARY S. POOLER,

 Circuit Judges. 

_________________________________________ 

David K. Roemer, 

Plaintiff-Appellant, 

v. 17-818 

Jane E. Booth, Lee Bollinger, President, Columbia 

University, 

Defendants-Appellees, 

Attorney Grievance Committee, 

Defendant. 

_________________________________________ 

FOR PLAINTIFF-APPELLANT: DAVID K. ROEMER, pro se, Brooklyn, NY. 

FOR DEFENDANTS-APPELLEES: Andrew W. Schilling, Caroline K. Eisner, 

Buckley Sandler LLP, New York, NY. 
 

Appeal from orders of the United States District Court for the Southern District of New 

York (Castel, J.). 

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

DECREED that the orders of the district court are AFFIRMED. 

Appellant David Roemer, proceeding pro se, sued the New York Attorney Grievance 

Committee (“State Committee”) as well as Columbia University’s general counsel, Jane Booth, 

and president, Lee Bollinger, under 42 U.S.C. § 1983, claiming violations of the First and 

Fourteenth Amendments. Roemer is a retired high school science teacher who has repeatedly 

offered to give a lecture on the cosmological argument for God’s existence at Columbia University 

(“Columbia”), offers that Columbia repeatedly declined. In October 2016, Booth wrote to 

Roemer advising him that continued efforts to contact members of the Columbia community could 

be considered harassment. Roemer responded by filing an ethics complaint against Booth with 

the State Committee, which was dismissed. Before the district court, Roemer sought injunctive 

relief against the defendants for depriving him of the right to free speech and violating the 

Establishment Clause. The district court sua sponte dismissed the complaint as frivolous. 

Roemer subsequently moved for the district court judge to recuse himself and for default judgment 

against Bollinger. The district court denied the recusal motion, and this appeal followed. We 

assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the 

issues on appeal. 

As an initial matter, Appellees Booth and Bollinger argue that we lack jurisdiction to 

review the underlying dismissal of Roemer’s complaint because his notice of appeal designated 

only the district court’s order denying recusal. We “construe notices of appeal liberally, taking 

the parties’ intentions into account.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 256 (2d Cir. 
 

3

1995). Consistent with this principle, a brief may serve as a notice of appeal required by Federal 

Rule of Appellate Procedure 3 when it is filed within the time specified by Rule 4, Smith v. Barry, 

502 U.S. 244, 248–49 (1992), and parties may file “an amended notice of appeal within the time 

limits set forth by Rule 4,” Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 62 

(2d Cir. 2010). Here, Roemer’s brief—which was filed a mere five days after his notice of appeal 

and within the time specified by Rule 4—operates as an amended notice of appeal. Therefore, the 

issues identified therein are properly before this Court. This conclusion is consistent with the 

purpose of Rule 3’s requirement, which is “to ensure that the filing provides sufficient notice to 

other parties and the courts.” Smith, 502 U.S. at 248. 

On appeal, however, we agree with the district court that Roemer’s complaint was 

frivolous. Roemer provides no legal argument but only cursorily states that he is “certain” that he 

is “right” and that the district court wrongly concluded that he had no cause of action, Appellant 

Br. at 12, and has therefore arguably abandoned his claims. See Tolbert v. Queens Coll., 242 F.3d 

58, 75 (2d Cir. 2001). In any event, his claims are meritless. Neither Columbia employee is a 

state actor. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999) (explaining that an 

action brought under § 1983 must be based on an alleged deprivation by an individual acting under 

color of state law). And Roemer lacks standing to challenge the State Committee’s decision not to 

discipline Booth. See In re Attorney Disciplinary Appeal, 650 F.3d 202, 203–05 (2d Cir. 2011) 

(per curiam). 

Roemer also challenges the district court’s denial of his recusal motion, a decision we 

review for abuse of discretion. United States v. Morrison, 153 F.3d 34, 48 (2d Cir. 1998). A 
 

4

judge should recuse when “a reasonable person, knowing all the facts, would question the judge’s 

impartiality.” United States v. Yousef, 327 F.3d 56, 169 (2d Cir. 2003) (internal quotation marks 

omitted); see also 28 U.S.C. § 455(a). Roemer hypothesizes that the district court’s passing 

reference to his religious and philosophical beliefs demonstrates bias by the court. However, the 

district court merely stated that, in finding Roemer’s legal theories meritless, it “expresse[d] no 

views on Mr. Roemer’s religious and philosophical beliefs.” App. at 18. This statement would 

not lead an “objective, disinterested observer” to question whether the district court judge was 

biased against Roemer, Yousef, 327 F.3d at 169, and the dismissal order itself is insufficient to 

demonstrate bias, see Chen v. Chen Qualified Settlement Fund, 552 F.3d 218, 227 (2d Cir. 2009) 

(per curiam) (observing that “adverse rulings, without more, will rarely suffice to provide a 

reasonable basis for questioning a judge’s impartiality”). Accordingly, we see no abuse of 

discretion. 

Roemer also argues that he was entitled to default judgment against Bollinger. We 

disagree. Although the district court did not explicitly rule on Roemer’s motion for default 

judgment, any error was harmless: the district court had already sua sponte dismissed Roemer’s 

complaint, therefore there was no basis for entry of default judgment. See Fed. R. Civ. P. 61 (“At 

every stage of the proceeding, the court must disregard all errors and defects that do not affect any 

party’s substantial rights.”). And Roemer’s conjecture that Bollinger may have “decided to let 

the court issue whatever injunction it deemed just” finds no support in the record. Appellant Br. at 

10. 
 

5

We have considered Roemer’s remaining arguments and find them to be without merit. 

Accordingly, we AFFIRM the district court’s orders. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court