16-1804 Cinotti v. Adelman 

## 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 JA NUARY 1, 2007, IS PE RMITTED AND IS GOVERNE D 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 (W ITH THE NOTATION A SUMMARY 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 15 th day of September, two thousand seventeen.
PRESENT: ROBERT A KATZMANN, Chief Judge, ROBERT D. SACK, PETER W. HALL, Circuit Judges.

_____________________________________ Lucia Cinotti, Plaintiff-Appellant , v. 16-1804 Gerard I. Adelman, Defendant-Appellee

. *

_____________________________________ FOR APPELLANT: L UCIA C INOTTI , pro se, Shelton, CT.
FOR APPELLEE: M ICHAEL K. S KOLD , Assistant Attorney General, for George Jepsen, Attorney General of the State of Connecticut, Hartford, CT.

* The Clerk of Court is directed to ame nd the official caption as shown above.2 Appeal from a judgment of the United States District Court fo r the District of Connecticut (Thompson, J. ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Lucia Cinotti, pro se, appeals from the distri ct court’s judgment di smissing her complaint against a state court judge. Cinotti alleged that the state judge discriminated against her in her divorce proceeding based on her gender and pro se st atus, purportedly in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. , when he denied her motions to compel payment of $50,500 and ordered her to v acate her marital home on a certain date. The district court granted the state judge’s motion to dismiss, holding that federal question jurisdiction under 28 U.S.C. § 1331 was lacking because Title V II was irrelevant to Cinotti’s claims and, alternatively, that Eleventh Am endment sovereign immunity barre d her claims. We assume the parties’ familiarity with the underlying facts, the procedural hi story of the case, and the issues on appeal. We review de novo the grant of a motion to dismiss, “constru[i ng] the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” Capital Mgmt. Select Fund Ltd. v. Bennett , 680 F.3d 214, 219 (2d Cir. 2012). Courts must liberally construe pro se plea dings, “particularly when they allege civil rights violations.” McEachin v. McGuinnis , 357 F.3d 197, 200 (2d Cir. 2004). “We may affirm . . . on any basis for which there is a r ecord sufficient to permit conclu sions of law, including grounds upon which the district court did not rely.” Leon v. Murphy , 988 F.2d 303, 308 (2d Cir. 1993).3 The district court correctly held that Title VII, an employment disc rimination statute, did not establish a basis for federa l question jurisdiction over Cinotti’s complaint. However, we conclude that, although her pro se complaint does not refer to 42 U.S.C. § 1983, the district court should have construed it libera lly as asserting § 1983 claims, wh ich provide a basis for federal question jurisdiction. A plainti ff asserting a § 1983 violation must show that a person acting under color of state law deprived the plaintiff of a “constitutional or federal statutory right,” Washington v. Cty. of Rockland , 373 F.3d 310, 315 (2d Cir. 2004), a nd Cinotti’s complaint alleges that the state judge violated he r due process and equal protection rights while acting under color of state law, see McEachin , 357 F.3d at 199 n.2 (“[T]he failure in a co mplaint to cite a statute, or to cite the correct one, in no way affects the merits of a claim. Factual allegations alone are what matters.”). Moreover, Cinotti referred to § 1983 in her opposition to the defendant’s motion to dismiss. Although the district court should not have di smissed the complaint fo r lack of jurisdiction, we nevertheless affirm the dismissal because Cino tti’s § 1983 claims fail. To the extent Cinotti seeks injunctive relief agains t the state judge, her claims are barred by the text of § 1983, which provides that, “in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shal l not be granted unless a declaratory decree was violated or declaratory relief was unavailable.” C inotti’s complaint does not suggest that the state judge violated a declaratory decree or th at declaratory relief was unavailable. To the extent Cinotti seeks monetary relief ag ainst the state judge in his official capacity, her claims fail because he is not a “p erson” within the meaning of § 1983. Will v. Mich. Dep’t of4 State Police , 491 U.S. 58, 71 (1989). To the extent Cinotti seeks monetary relief against the state judge in his individual capacity, her claims fail because he is protected by judicial immunity. Mireles v. Waco , 502 U.S. 9, 9–11 (1991) (Per Curiam). We do not decide that the defendant was or was not correct in his actions or did or did not act properly. We mean only that even if the judge’s actions were, as the plai ntiff asserts, incorrect or impr oper, the plaintiff is barred by established law from bringing a laws uit against the judge to correct or obtain compensation for that

error. See Stump v. Sparkman , 435 U.S. 349, 356–57 (1978) (“A judge will not be deprived of immunity because the action he took was in erro r, was done maliciously, or was in excess of his authority . . . .”). We have reviewed the argument s raised by Cinotti on appeal and find in them no basis for reversal. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk