1 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. Cita tion to a summary order filed on or after January 1, 2007, is permitted a nd 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 mu st cite either the Federal Appendix or an electronic database (with the notation “summa ry 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 Cour t 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 1 st day of November, two thousand seventeen.

PRESENT: J ON O. N EWMAN , J OSÉ A. C ABRANES , Circuit Judges,
R OBERT N. C HATIGNY ,* District Judge.

_____________________________________

X IU J IAN S UN ,
Plaintiff-Appellant

, v. 16-3557-cv

M ARK C. D ILLON , S YLVIA O. H INDS -R ADIX , S HERI S. R OMAN , C OLLEEN D UFFY ,

*Judge Robert N. Chatigny, of the United Stat es District Court for the District of Connecticut, sitting by designation.2 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 judg ment of the district court is AFFIRMED

. Appellant Xiu Jian Sun, proceeding pro se , appeals from the district court’s judgment dismissing his complaint, in whic h he sued four state judges who pr esided over his two state court appeals. We assume the parties’ familiarity with th e 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 pr esents 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 wh ether such a dismissal is reviewed de novo or for abuse of discretion, the district court’s grounds for dismi ssing 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 comp laint 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). Ev en 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, and3 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 appe als 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 argument s and find them to be without merit. Accordingly, we AFFIRM the judgment of the District Court.

FOR THE COURT: Catherine O = Hagan Wolfe, Clerk