06-1373-cv

Madden v. VT. Supreme Court

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED AFTER

JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 0.23 AND FEDERAL RULE OF

APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER, IN EACH

PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX

OR BE ACCOMPANIED BY THE NOTATION: "(SUMMARY ORDER)." UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN

ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE

AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV/), THE PARTY CITING THE SUMMARY ORDER MUST FILE AND SERVE

A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO

COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST

INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS

ENTERED.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,

on the 27th day of June, two thousand and seven.

Present:

HON. ROGER J. MINER,

HON. ROBERT D. SACK,*

Circuit Judges.

John Madden,

Plaintiff-Appellant,

v. No. 06-1373-cv

VT Supreme Court, et al.,

Defendants-Appellees.

John Madden, pro se.

Appearing for Appellant: Appearing for Appellee: No appearance.

UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is hereby AFFIRMED.

Plaintiff-appellant John Madden appeals from a January 2006 order of the United States District Court for the District of Vermont (Murtha, J.) denying his motion for leave to file a complaint against the Vermont Supreme Court, the Vermont Department of Buildings and General Services, and the Vermont Judicial Conduct and Professional Responsibility Boards.

We assume the parties' familiarity with the underlying facts of the case, its procedural history and the arguments on appeal.

To the extent that Madden challenges the district court's June 2005 issuance of the filing injunction, requiring him to move for leave to file before filing a complaint in the district court, such challenge is foreclosed by his failure to bring a direct appeal from that order. See Hong Mai Sa v. Doe, 406 F.3d 155, 158 (2d Cir. 2005). We review de novo the district court's denial of Madden's request to file the complaint in this putative action. After performing that review, we affirm the ruling of the district court. See Giano v. Goord, 250 F.3d 146, 149 (2d Cir. 2001).

The Eleventh Amendment precludes Madden from bringing suit against the state or state agencies, because it deprives the federal courts of subject matter jurisdiction over any action asserted by an individual against a state regardless of the nature of the relief sought. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Zuckerman v. Appellate Div., 421 F.2d 625, 626 (2d Cir. 1970). Although Eleventh Amendment immunity does not bar the suit to the extent it was brought against the Town of New Haven Planning Commission, Selectmen, and Town Clerk, see Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977), it is clear from the record that the proposed complaint failed to state a claim upon which relief could be granted. See Beal v. Stern, 184 F.3d 117, 122 (2d Cir. 1999). To succeed on a 42U.S.C. § 1983 claim, a plaintiff must show that a defendant, acting under the color of state law, deprived the plaintiff of a constitutional right. See Rendell-Baker v. Kohn, 457 U.S.

830, 838 (1982); Rodriguez v. Phillips, 66 F.3d 470, 481 (2d Cir. 1995). Madden has not done so. To the extent that he challenges the decision on behalf of "the over one hundred respondents," an individual may not appear pro se on another's behalf. See Wenger v. Canastota Cent. Sch. Dist., 146 F.3d 123 (2d Cir. 1998); Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998).

For the foregoing reasons, we AFFIRM the judgment of the district court. We further conclude that the attempt to bring this lawsuit was entirely without legal basis and therefore unwarranted. In light of Madden's history of bringing baseless litigation in federal court, we advise Madden, as we have before, see Madden v. Vermont Supreme Court, No. 01-7919-cv (2d Cir. Dec. 19, 2001), that any further filings of appeals to this Court in suits against the state or state agencies, or of suits that are duplicative of claims previously brought, will result in the imposition of a filing injunction in this Court, requiring Madden to request leave from this Court before filing any further appeals.

FOR THE COURT: Catherine O'Hagan Wolfe, Clerk By:

* The Honorable Peter W. Hall has recused himself from consideration of this appeal. Pursuant to Second Circuit Local Rule 0.14(b), the matter is being decided by the two remaining members of the panel.