18-2499 Morabito v. State of New York 

## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# AMENDED 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 (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 27 th day of February, two thousand twenty. PRESENT: RALPH K. WINTER, JOHN M. WALKER, JR., SUSAN L. CARNEY, Circuit Judges.

_____________________________________ David R. Morabito and Colette M.G. Morabito, Plaintiffs-Appellants , v. No. 18-2499 The State of New York, The State of New York Department of Environmental Conservation, and Basil Seggos, Acting Commissioner, New York State Department of Environmental Conservation, Defendants-Appellees .

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FOR PLAINTIFFS-APPELLANTS: David R. Morabito, Colette M.G. Morabito, pro se, East Rochester, NY.FOR DEFENDANTS-APPELLEES: Claiborne E. Walthall, Assistant Attorney General, Susan L. Taylor, Assistant Attorney General, Frederick A. Brodie, Assistant Solicitor General, Jeffrey W. Lang, Deputy Solicitor General, Barbara D. Underwood, Solicitor General, for Letitia James, Attorney General of the State of NY, Albany, NY. Appeal from a judgment of the United States Di strict Court for the Wes tern District of New York (Telesca, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district cour t dated June 19, 2018, and order dated August 7, 2018, are AFFIRMED

. Appellants David Morabito (a n attorney) and Colette Morabito, proceeding pro se, 1 appeal the district court’s judgment di smissing their 42 U.S.C. § 1983 co mplaint and post-judgment order denying their motion to vacate the judgment. Th e Morabitos sued the State of New York, the New York State Department of Environmental Conservation (“DE C”), and Basil Seggos in his official capacity (as Commissioner of the DEC), claiming that New York ’s regulation banning high-volume hydraulic fracturing (“H VHF”) violated the Takings and Due Process clauses of the Constitution. After defendants moved to dismiss the complaint as barred by Eleventh Amendment immunity, the Morabitos moved to amend. Their proposed amended complaint attempted to circumvent Eleventh Amendment imm unity by suing Seggos in his individual (rather

1 Although it is well-settled that “a court is ordina rily obligated to afford special solicitude to pro se litigants” based on “[t]he rationale . . . that a pro se litigant generally lacks both legal training and experience,” “a lawyer representing himself or dinarily receives no such solicitude at all.” Tracy v. Freshwater , 623 F.3d 90, 101-02 (2d Cir. 2010). Because David Morabito is a licensed attorney, the Morabitos are not entitled to the “sp ecial solicitude” afforded to the typical pro se litigant.3 than official) capacity and by seeking injunctive relief under § 1983, in addition to damages. We assume the parties’ familiarity with the underlying facts, the proc edural history of the case, and the issues on appeal, to which we refer only as necessary to explain our deci sion to affirm.
I. Dismissal We review de novo a judgment of dismissal en tered under either Federal Rules of Civil Procedure 12(b)(1) or 12(b)(6). 2 See Washington v. Barr , 925 F.3d 109, 113 (2d Cir. 2019). In considering whether a government al entity is entitled to Elev enth Amendment immunity, we review a district court’s factual findings fo r clear error and its legal conclusions de novo. See Leitner v. Westchester Cmty. Coll. , 779 F.3d 130, 134 (2d Cir. 2015). “The Eleventh Amendment generally bars su its in federal court by private individuals against non-consenting states.” Id. The Eleventh Amendment also bars damages claims brought against state agencies and individual state defendants in their official capacities. See Kentucky v. Graham , 473 U.S. 159, 169 (1985) (state official s in their official capacities); Gorton v. Gettel , 554 F.3d 60, 62 (2d Cir. 2009) (per cu riam) (state agencies). It is well settled that § 1983 does not override Eleventh Amendment immunity. Dube v. State Univ. of N.Y. , 900 F.2d 587, 594 (2d Cir. 1990). The district court thus correctly held that the Eleventh Amendment barred the Morabitos’ § 1983 suit against New York (a state), the DEC (a stat e agency), and Seggos (a state official) in his official capacit y. Although, as discussed below, th e Morabitos also challenge the

2 Although the district court charac terized its dismissal as falling under Rule 12(b)(6), it is more appropriately characterized as a dismissal under Rule 12(b)(1), as it was based on sovereign immunity. See Dube v. State Univ. of N.Y. , 900 F.2d 587, 594 (2d Cir. 1990) (explaining the federal courts “lack jurisdiction” over § 1983 cl aims that are barred by Eleventh Amendment immunity (internal quota tion marks omitted)).4 district court’s holdings dismissing their claims against Seggos in his individual capacity and their request for injunctive relief, th ey do not challenge the district court’s core holding barring their other claims under the Eleventh Amendment.
II. Proposed Amendments We generally review a district court’s denial of leave to amend a complain t for abuse of discretion. See Grochowski v. Phx. Constr. , 318 F.3d 80, 86 (2d Cir. 2003). If a district court denies leave to amend because the proposed am ended complaint does not state a claim upon which relief can be gran ted, however, our review is de novo. Anderson News, L.L.C. v. Am. Media, Inc. , 680 F.3d 162, 185–86 (2d Cir. 2012). “While generally l eave to amend should be freely granted, it may be denied when there is a good reason to do s o, such as futility, bad faith, or undue delay.” Kropelnicki v. Siegel , 290 F.3d 118, 130 (2d Cir. 2002) (interna l citation omitted). The district court correctly held that the Morabitos’ motion to add clai ms against Seggos in his individual capacity and to seek injunctive relief were attemp ts to circumvent Eleven th Amendment immunity and therefore that amendment was futile. First, the district court correctly held that the Morabitos failed to state a claim against Seggos in his individual capacity under § 1983. “It is well settled that, in order to establish a defendant’s individual liab ility in a suit brought under § 1983, a plaintiff must show, inter alia , the defendant’s personal involvement in the alleged constituti onal deprivation.” Grullon v. City of New Haven , 720 F.3d 133, 138 (2d Cir. 2013). As the di strict court observed, the Morabitos failed to allege any personal involvement of Se ggos in their alleged constitutional deprivation. They argue, however, that Seggos is personally invol ved in the deprivation because, as the present Commissioner, he is the only pers on who could modify or abolis h the regulation. Although that5 argument may be sufficient to sustain a claim for prospective relief (theirs fails for a different reason, discussed below), it is insufficient to sustain a § 19 83 damages claim for past alleged constitutional deprivations that occurred on the watch of a different official. The Morabitos did not make any allegations that Seggos had any personal involvement in the creation or enforcement of the operativ e regulation. Cf. Farrell v. Burke , 449 F.3d 470, 484 (2d Cir. 2006) (holding that, where a prior official imposed an allegedly unconstitutional special condition of parole, an allegation that another official not only conti nued that condition but actively enforced it by arresting the plaintiff was suffic ient to show personal involvem ent). Nor—to all appearances— could they, since he assumed th e commissioner’s position only afte r the regulation was adopted. Second, we see no error in the district court’ s ruling that the Morabi tos’ motion to add a request for injunctive relief (as opposed to damages under § 1983) was only a futile attempt to avoid the Eleventh Amendment ba r. If a complaint “alleges an ongoing violation of federal law and seeks relief properly characteri zed as prospective,” the Eleven th Amendment does not bar the proceeding against a state. See Verizon Md. Inc. v. Pub. Serv. Comm’n of Md. , 535 U.S. 635, 645 (2002); see also In re Deposit Ins. Agency , 482 F.3d 612, 617 (2d Cir. 2007) (“[A] pl aintiff may sue a state official acting in his official cap acity—notwithstanding the El eventh Amendment—for prospective injunctive relief from violations of federal law.” (int ernal quotation mark s omitted)). But as the district court ruled, the Morabitos’ clai m for injunctive relief wa s precluded by collateral estoppel. Under the Full Fait h and Credit Act, 28 U.S.C. § 1738, a federal cour t must abide by New York state court judgments, using New York case law to determine the effect of those judgments. See Hoblock v. Albany Cty. Bd. of Elections , 422 F.3d 77, 93 (2d Cir. 2005). “The doctrine of collateral estoppel pr ecludes a party from relitigating an issue which has previously6 been decided against him in a pr oceeding in which he had a fair opportunity to fully litigate the point.” Kaufman v. Eli Lilly & Co. , 65 N.Y.2d 449, 455 (1985) (inter nal quotation marks and citations omitted). Collateral es toppel applies when “the identic al issue necessarily . . . [was] decided in the prior action and [is] decisive of the present action, and . . . th e party to be precluded from relitigating the issue . . . had a full and fair opportunity to contest the prior determination.” Id. ; see also Vargas v. City of New York , 377 F.3d 200, 205–06 (2d Cir. 2004). In an Article 78 proceeding that he pursued in May 2015 in state co urt, David Morabito urged that the state’s HVHF ban was unconstitutional. This is the same ar gument underlying his proposed request for injunctive relief in the present action. 3 The New York courts held that David Morabito lacked standing to challenge the const itutionality of the regulation because he did not demonstrate his own actual or imminent injury-in-fact. Matter of Morabito v. Martens , Dkt. No. 01-15-ST6838 (N.Y. Sup. Ct. 2016), aff’d , 149 A.D.3d 1316, 1316–17 (N.Y. App. Div. 3d Dep’t 2017), leave to appeal denied , 29 N.Y.3d 916 (2017). The standi ng issue was fu lly and fairly litigated in the state courts a nd was necessary to the courts’ decisions. I ndeed, it was the sole holding of those courts. See Morabito , 149 A.D.3d at 1317. Further, the Second Circuit has previously applied collatera l estoppel to preclude pa rties from re-litigating issues of standing that were already decided in New York state court. See Mrazek v. Suffolk Cty. Bd. of Elections , 630 F.2d 890, 896 n.10 (2d Cir. 1980) (holding that, where the New York courts had decided the issue of standing, that decision was bi nding on the federal courts). Thus , the district court owed full

3 As the district court found, Colette Morabito is in privity with her hus band David Morabito for the purpose of collateral estoppe l, and is therefore bound by our co llateral estoppel ruling against him. On appeal, the Morabito s do not challenge that finding.7 faith and credit to the state courts’ standing holding and correctly applied collateral estoppel to bar the Morabitos’ renewed clai m for injunctive relief. The Morabitos argue that collateral estoppel cannot apply in the federal action because the state courts never decided the meri ts of their constitutional claims. This argument falls short. It appears to confuse the doctrine of collateral estoppel (issue preclusi on) with that of res judicata (claim preclusion); collateral estoppel asks only if the issue (here, standing) was necessarily decided and does not require the prior court to have determined the merits of the claims

. Compare Kaufman , 65 N.Y.2d at 455 (“[C]ollateral estoppel precludes a party from relitig ating an issue which has previously been deci ded against him[.]” (emphasis a dded) (internal quotation marks omitted)), with Matter of Josey v. Goord , 9 N.Y.3d 386, 389 (2007) (“The doctrine of res judicata precludes a party from litigating a claim where a judgment on the merits exists from a prior action between the same parties involving the same subj ect matter.” (emphasis ad ded) (internal quotation marks and citation omitted)). Thus, the district court was bound to apply the state court ruling that the Morabitos did not have standing to seek injunctive relief. The Morabitos also argue that the state courts’ standing determination was incorrect because it was based on their failure to apply for an HVHF permit for use on their property. This argument, however, misconstrues th e state court holdings. Those c ourts ruled that the Morabitos lacked standing because they had not demonstrated an injury-in-fact for several reasons. These included but were not limited to th eir failure to seek a permit. Morabito , 149 A.D.3d at 1317 (“[P]etitioner had not applied for a permit nor offered any proof that he met a ny of the requirements to obtain a permit. He offered no proof of any plans to move forward with the process and conceded that any plans would necessarily involve commitment s by oil and gas exploration8 companies, of which he had none.”). In any event, the Full Faith and Credit Clause precludes this Court from reexamining the state co urts’ standing determination, and the district court did not err in concluding that it must gi ve the decision binding effect. See Hoblock , 422 F.3d at 93. Finally, the Morabitos argue that , because they we re required—under Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City , 473 U.S. 172, 194–96 (1985)— to first exhaust remedies in state court before br inging a Takings Clause claim in federal court, the federal court should not apply coll ateral estoppel to st ate court rulings on their claims. We are not persuaded. The Morabitos are correct that the Supreme Court recently overturned the portion of its Williamson decision that required exhaustion of remedies in state court. Knick v. Twp. of
Scott , 139 S. Ct. 2162, 2177 (2019) (holding, in contrast to Williamson , that a plaintiff asserting a Takings Clause claim need not seek relief in state courts before bringing a claim in federal court). That argument is inapposite, however, because the district court did not di smiss their claims for failure to exhaust st ate remedies (as in Knick ); ultimately, whatever the re ason they did so, the fact is that the Morabitos brought their claims in state court, where they lost. The district court was required by federal law to apply collateral estoppel to issues decided in those proceedings.
III. Rule 59 and 60 Motions Finally, the district court did not abuse its discretion in denying the Morabitos’ motion under Federal Rules of Civil Procedure 59 and 60 for vacatur of the judgment. See Schwartz v. Liberty Mut. Ins. Co. , 539 F.3d 135, 150 (2d Cir. 2008) (Rule 59(e) motion); Transaero, Inc. v. La Fuerza Aerea Boliviana , 162 F.3d 724, 729 (2d Cir. 1998) (Rule 60(b) motion). “[R]econsideration [of a judgment] will generally be denied unless the moving party can point to controlling decisions or data th at the court overlooked. . . .” Shrader v. CSX Transp., Inc. , 709 F.3d 255, 257 (2d Cir. 1995). Reconsideration is not warranted where the pa rty seeks “solely to relitigate . . . issue[s] already decided,” id. , and reconsideration motions are “a mechanism for extraordinary judicial relief invoked only if the moving party demonstrates exceptional circumstances,” Ruotolo v. City of New York , 514 F.3d 184, 191 (2d Cir. 2008) (internal quotation marks omitted). The Morabitos adduced no new data and pointed to no inte rvening decisions that the court overlooked in rendering its fi rst decision. Therefore, we a ffirm the district court’s order for substantially the same reasons as were stated by the district court in its thorough Order of August 7, 2018. We have considered all of the Morabitos’ remaining arguments and conclude that they are without merit. Accordingly, we AFFIRM the judgment and post-judgment order of the district

court. FOR THE COURT: Catherine O = Hagan Wolfe, Clerk of Court