UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 6th day of October , two thousand.

PRESENT: HON. DENNIS JACOBS, HON. CHESTER J. STRAUB, HON. ROBERT D. SACK, Circuit Judges.

GILBERT LAU, Plaintiff-Appellant, -v.- 99-9363

MARK M. MEDDAUGH, et. al., Defendants-Appellees.

APPEARING FOR APPELLANT: Gilbert Lau, New York, New York pro se Charles F. Sanders, New York, New APPEARING FOR APPELLEE:

York Assistant Attorney General (Mark Meddaugh)

Michael Frey, Liberty, New York (Ira Cohen & Steven Katz)

Appeal from the United States District Court for the Southern District of New York (McMahon, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court and the dismissals of the post-judgment motions be AFFIRMED and the oral order enjoining Lau be VACATED.

Gilbert Lau, pro se, appeals from: (1) a judgment dismissing his civil rights complaint pursuant to 28 U.S.C. §

1915; (2) the denial of his motion for reconsideration under Federal Rules of Civil Procedure 59(e) and 60(b); (3) the denial of his second motion for reconsideration under Rule 60(b); and (4) an oral order enjoining him from filing any action on the same underlying facts in the United States District Court for the Southern District of New York unless he first submits the complaint to a United States Magistrate Judge for vetting. In this summary opinion, we review (and affirm) the judgment and the first two orders; we dispose of the appeal from the injunction in an opinion issued simultaneously. We also warn Lau that if he continues to abuse the judicial process by the instigation of frivolous appeals, sanctions may issue in this Court.

As described in our simultaneous opinion, this appeal is the latest in a series of state and federal cases filed by Lau. In June 1999, Lau brought this action pursuant to 42 U.S.C. 1983, 1985, and 1986 against Mark M. Meddaugh, a Supreme Court Justice in Sullivan County, New York; Ira J.

Cohen, Sullivan County Attorney; and Steven S. Katz, Assistant Sullivan County Attorney. Lau alleged that, in April 1999, the defendants violated his right to due process and participated in a civil conspiracy against him concerning one of his earlier state cases. Lau also filed an amended complaint, which alleged that the defendants had violated his right to privacy by looking at a prior state court judgment denying him in forma pauperis status.

At a pretrial conference, the district court dismissed the complaint sua sponte under 28 U.S.C. § 1915(e)(2)(B)(i)

and (iii) on the grounds that it was brought against state officers for acts for which they enjoy immunity from prosecution and was frivolous on its face. Following dismissal, Lau filed a motion for reconsideration under Rules 59(e) and 60(b), which the district court denied sua sponte.

Lau thereafter filed a second motion for reconsideration under Rule 60(b). The district court also denied this motion sua sponte.

Lau argues that the district court's dismissal of his 1.

complaint was improper because his claims were not frivolous and Justice Meddaugh is not entitled to absolute immunity.

Whether Justice Meddaugh enjoys absolute immunity has no bearing on the outcome, however, because the complaints were properly dismissed against all parties as frivolous.

The district court must dismiss a complaint sua sponte when the action is frivolous. See 28 U.S.C. §

1915(e)(2)(B)(i). A complaint "is frivolous where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Reviewing the dismissal either for abuse of discretion or de novo, we affirm the decision below. See Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998).

To succeed on a § 1983 claim, a plaintiff must show that the defendants, acting under the color of state law, deprived the plaintiff of a constitutional right. See Rodriguez v. Phillips, 66 F.3d 470, 473 (2d Cir. 1995). Lau's contention that the defendants violated his right to privacy by looking at a prior state court judgment denying him in forma pauperis status is frivolous. See Doe v. City of New York, 15 F.3d 264, 268 (2d Cir. 1994) (individuals have no constitutionally protected privacy interest in matters of public record).

Similarly frivolous is Lau's allegation that an ex parte communication between Katz and Justice Meddaugh regarding that judgment violated due process. Assuming (as we do not) that an ex parte communication took place, it would not have deprived Lau of a reasonable opportunity to know of his opponent's arguments and to meet them. See, e.g., In re Paradyne Corp., 803 F.2d 604, 612 (11th Cir. 1986) (per curiam) (ex parte communications are not a per se violation of due process). As Lau's § 1983 claims had no basis in law or fact, the district court properly dismissed them as frivolous.

To succeed on a claim under § 1985(3), a litigant must demonstrate, inter alia, that he was the victim of a conspiracy "motivated by racial or related class-based discriminatory animus." Graham v. Henderson, 89 F.3d 75, 82

(2d Cir. 1996). Lau alleges no racial animus or class-based animus against pro se plaintiffs and provides only conclusory allegations of discriminatory animus against himself as a pro se litigant. Accordingly, his claims under § 1985(3) and §

1986 are frivolous. See Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1088 (2d Cir. 1993) (per curiam) (a §

1986 claim must be predicated upon a valid § 1985 claim).

2. We review a district court's decision regarding a motion for reconsideration for abuse of discretion. See Devlin v. Transportation Communications Int'l Union, 175 F.3d 121, 132

(2d Cir. 1999) (Rule 59(e) motion); Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir. 1998) (Rule 60(b) motion). In his first motion for reconsideration, Lau argued that the injunction should not stand under Rule 60(b)(5) because it was "satisfied" by the district court's prior ruling not to enjoin him in Lau v. Sullivan Cty. Clerk, 99 Civ. 0900 (S.D.N.Y.). This assertion is frivolous because sanctions are based on an individual's litigation history, which in Lau's case had grown longer and thus more deserving of sanction. See Safir v. United States Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986). Lau also asserted that a New York Law Journal article on Judge McMahon's career was newly discovered evidence proving her bias in favor of Justice Meddaugh. If this article were evidence, it would not be newly discovered evidence as contemplated by Rule 60, because it appeared long before Lau filed suit. Finally, Lau argued that he had stated a claim as a matter of law and that Justice Meddaugh was not entitled to absolute judicial immunity. As discussed above, the first argument is frivolous and the second has no bearing on the outcome. The district court's denial of this motion therefore was not an abuse of discretion.

In the second motion for reconsideration, Lau asked the court to consider a proposed second amended complaint that contained revised versions of his original allegations and reiterated his argument regarding judicial immunity. Lau did not set forth any argument justifying relief from the judgments. Thus, the district court's denial of this motion was not an abuse of discretion.

Finally, we revisit the issue of sanctioning Lau. After 3.

surveying Lau's history of vexatious litigation, we warned Lau in March 2000 that future filings in this Court may result in sanctions. See Lau v. Cooke, 208 F.3d 203, 2000 WL 287690 (2d Cir. 2000) (unpublished opinion). Lau filed this appeal prior to that warning. Therefore, for the same reasons as discussed in Lau v. Cooke, we give Lau a second fair warning that, if he continues to abuse the judicial process by the filing of frivolous appeals, an order may be entered directing the Clerk of this Court to refuse to accept submissions from him unless he has first obtained leave of the Court to file such papers.

However, Lau may appeal as of right any sanctions imposed by the district court on remand in this case.

For the reasons set forth above, and in the opinion published simultaneously herewith: (A) the judgment of the district court and its denials of Lau's post-judgment motions are AFFIRMED; (B) the oral order enjoining Lau is VACATED; and (C) Lau is warned that, if he continues to abuse the judicial process by frivolous appeals, sanctions may result.