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16-3557-cv 

Sun v. Dillon

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. 

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 1st day of November, two thousand seventeen. 

PRESENT: 

JON O. NEWMAN, 

JOSÉ A. CABRANES,

 Circuit Judges,

 ROBERT N. CHATIGNY,* 

 District Judge. 

_____________________________________ 

XIU JIAN SUN, 

Plaintiff-Appellant, 

v. 16-3557-cv 

MARK C. DILLON, SYLVIA O. HINDS-RADIX,

SHERI S. ROMAN, COLLEEN DUFFY, 

 

*Judge Robert N. Chatigny, of the United States District Court for the District of Connecticut, 

sitting by designation. 

 
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Defendants-Appellees. 

_____________________________________ 

FOR PLAINTIFF -APPELLANT: Xiu Jian Sun, pro se, Flushing, N.Y. 

FOR DEFENDANTS -APPELLEES: Oren L. Zeve, Esq., New York State 

Office of the Attorney General, New 

York, N.Y. 

Appeal from a judgment of the United States District Court for the Eastern District of New 

York (DeArcy Hall, Judge). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the October 13, 2016 judgment of the district court is AFFIRMED. 

Appellant Xiu Jian Sun, proceeding pro se, appeals from the district court’s judgment 

dismissing his complaint, in which he sued four state judges who presided over his two state court 

appeals. We assume the parties’ familiarity with the underlying facts, the procedural history of the 

case, and the issues on appeal. 

District courts have an inherent authority to dismiss a frivolous complaint sua sponte, even 

when the plaintiff has paid the filing fee. Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 

364 (2d Cir. 2000). A claim is frivolous if it presents an “indisputably meritless legal theory” or 

“factual contentions [that] are clearly baseless.” Neitzke v. Williams, 490 U.S. 319, 327 (1989). 

Although we have not decided whether such a dismissal is reviewed de novo or for abuse of 

discretion, the district court’s grounds for dismissing Sun’s complaint “easily pass [] muster” under 

de novo review. See Fitzgerald, 221 F.3d at 364 n.2. 

The district court properly dismissed Sun’s complaint as frivolous, because the complaint 

contained no allegations against any defendant. Moreover, the district court did not abuse its 

discretion by denying leave to amend because none of Sun’s filings (including his brief on appeal) 

give “any indication that a valid claim might be stated.” See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d 

Cir. 2000) (internal quotation marks omitted). Even if Sun were given leave to amend to allege a 

plausible claim, his suit would still be frivolous because the judges would be absolutely immune 

from money damages for any actions taken in their judicial capacities. See Bliven v. Hunt, 579 F.3d 

204, 209 (2d Cir. 2009); Neitzke, 490 U.S. at 327. 

 As this is Plaintiff’s third frivolous action and second frivolous appeal, see No. 16-3103, and 
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he has been warned that if he continues to file similar actions, he might be subject to filing 

restrictions, Sun is hereby ORDERED to show cause within 30 days why he should not be required 

to seek leave of this Court before filing any appeals or other documents. Failure to file a timely 

response will result in the imposition of a leave-to-file-sanction. 

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

Accordingly, we AFFIRM the judgment of the District Court. 

FOR THE COURT: 

Catherine O=Hagan Wolfe, Clerk