The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK NOT FOR PUBLICATION
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NELLIE D. GADSON,
Plaintiff,
MEMORANDUM AND ORDER
- against-
19-CV-4799 (AMD) (LB)
KINGS SUPREME COURT,
AMOS FINANCIAL LLC, FILED
WARNER & SCHEUERMAN, and IN CLERK'S OFFICE
TROYDEN C. SARGEANT, US DISTRICT COURT E.D.N.Y.
Defendant. SEP 20 □
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ANN M. DONNELLY, United States District Judge: BROOKLYN OFFICE
The pro se plaintiff, Nellie D. Gadson, filed this action seeking damages related to a
foreclosure proceeding in a New York State court. The Court grants the plaintiff's request to
proceed in forma pauperis under 28 U.S.C. Section 1915. For the reasons discussed below, the
complaint is dismissed. The plaintiff is granted leave to submit an amended complaint within 30
days of the date of this order.
BACKGROUND
The following factual allegations are taken from the complaint (ECF No. 1), and are
assumed to be true for the purpose of this order. The plaintiff resides at 28 Rochester Avenue in
Brooklyn, New York, and has been paying property taxes and maintaining the property at that
address. (/d. at 7.') The plaintiff has been attempting to take the property by adverse possession
from its owner, Contact Holding Corp., since 2016. (/d. at 38.)
While the plaintiff was waiting for a response from Contact Holding Corp., “Mortgage
Scammers” obtained a lien against the property by filing a foreclosure action against the former
' The Court refers to the page numbers assigned by the Electronic Case Filing (“ECF”) System.
owner of the property, Troyden C. Sargeant. (/d. at 7.) The foreclosure action was filed in the
Kings County Supreme Court, and captioned Amos Financial LLC as assignee af FDIC AS
RECEIVER FOR AMTRUST BANK v. Troyden C Sargeant et al, 519173/2016.?
The plaintiff has attempted to intervene several times in the foreclosure action, but has
been unsuccessful. On August 8, 2019, the plaintiff appeared before “Judge I. Joseph” of the
Supreme Court to request a hearing for a motion to intervene on September 25, 2019, but the
judge set a hearing for August 15, 2019, which did not allow the plaintiff reasonable time to
serve her papers. (/d.) The judge rejected her motions to intervene. (/d. at 29-31.) Further, a
“supervisor in room 295 refused to log” the plaintiff on to a computer on three occasions. The
plaintiff intended to use the computer to “show someone is making a claim of Mortgage Fraud
against Index # 519173/2016.” (/d. at 7.)
The plaintiff alleges that the judicial actions in the “Kings County Court” violated her
right to due process. (/d. at 5S.) She claims that she has had problems eating and sleeping “in
fear of attack” and “ill-legal lockout,” and has expended large amounts of time filing paperwork.
(id. at 8.) She seeks $50,000 in damages. (/d.)
On August 26, 2019, the plaintiff filed a letter with the Court stating: “On August 19,
2019 I was ill-legal lock out by Amos Financial and on going harassment by Trayden C.
Sargeant Sean Sargeant and another relative first name ‘Ed’” [sic]. (ECF No. 4.) On September
3, 2019, the plaintiff filed a letter providing her new phone number and the address for Amos
Financial LLC. (ECF No. 5.)
? The Court takes judicial notice of the filings in the foreclosure action. Kramer v. Time Warner Inc.,
937 F.2d 767, 774 (2d Cir. 1991).
DISCUSSION
A complaint must plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face
when the plaintiff “pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556). Pro se complaints are held to less stringent standards
than pleadings prepared by attorneys; the court must read a pro se litigant’s complaint liberally
and interpret it to raise the strongest arguments it suggests. Erickson v. Pardus, 551 U.S. 89, 94
(2007); Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 191-93 (2d Cir. 2008).
Nevertheless, a district court must dismiss an in forma pauperis action where it is satisfied that
the action “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted;
or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §
1915(e)(2)(B).
The plaintiff's complaint alleges that the defendants violated her constitutional right to
due process. (ECF No. | at 5.) “Section 1983 provides a federal remedy for ‘the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws.’” Golden State
Transit Corp v. City of Los Angeles, 493 U.S. 103, 105 (1989) (quoting 42 U.S.C. § 1983). In
order to maintain a Section 1983 action, a plaintiff must allege two elements: first, “the conduct
complained of must have been committed by a person acting under color of state law,” and
second, “the conduct complained of must have deprived a person of rights, privileges or
immunities secured by the Constitution or laws of the United States.” Pitchell vy. Callan, 13 F.3d
545, 547 (2d Cir. 1994).
The plaintiff names the Supreme Court of New York, Kings County, Amos Financial
LLC, Warner & Scheuerman, and Troyden C. Sargeant as the defendants in this action. For the
following reasons, the plaintiff cannot sustain a Section 1983 action against any of these
defendants.
The Eleventh Amendment of the United States Constitution prohibits lawsuits against
states, state agencies, and state officials acting in their official capacity, unless the state consents
to be sued or Congress enacts a statute that waives the state’s sovereign immunity. See
Pennhurst States School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Board of Trustees of
Univ. of Alabama v. Garrett, 531 U.S. 356, 363 (2001). “[T]he New York State Unified Court
System is unquestionably an arm of the State, and is entitled to Eleventh Amendment sovereign
immunity.” Gollomp v. Spitzer, 568 F.3d 355, 368 (2d Cir. 2009) (internal quotation marks and
citation omitted). Further, the State of New York has not consented to suit in federal court, see
generally Edelman v. Jordan, 415 U.S. 651, 673 (1974), and Section 1983 does not override
state sovereignty. Quern v. Jordan, 440 U.S. 332 (1979). Accordingly, the Eleventh
Amendment bars this action against the Supreme Court of New York, Kings County.
Even if the plaintiff named the individual judge and clerk as defendants,’ her action
would still fail because judges have absolute immunity to suits for monetary damages for their
judicial acts. Pierson v. Ray, 386 U.S. 547 (1967); Mireles v. Waco, 502 U.S. 9, 11 (1991).
Absolute judicial immunity extends to court clerks who are performing tasks “which are judicial
in nature and an integral part of the judicial process.” Rodriguez v. Weprin, 116 F.3d 62, 66 (2d
Cir. 1997). The plaintiffs allegations against the judge and clerk relate to the judicial acts
performed within their judicial capacities, including the clerk’s supervising computer use in the
3 The Eleventh Amendment does not bar suits against state officers acting in an “individual capacity.”
Hafer v. Melo, 502 U.S. 21, 25 (1991).
clerk’s office. Because these activities constitute an “integral part of the judicial process,” the
judge and clerk are immune from suit. See Pikulin v. Gonzales, No. 07-CV-0412, 2007 WL
1063353, at *2 (E.D.N.Y. Apr. 5, 2007) (because activities of filing and docketing legal
documents constitute an “integral part of the judicial process,” the Clerk’s Office is shielded
from liability by absolute judicial immunity). For these reasons, all of the plaintiff's claims
against the New York Supreme Court, Kings County, are dismissed pursuant to 28 U.S.C.
Section 1915(e)(2)(B)(iii).
Section 1983 claims against the remaining defendants also must fail because private
entities do not act “under color of state law.” As part of a Section 1983 claim, a plaintiff must
allege that the “conduct complained of [was] committed by a person acting under color of state
law[.]” Pitchell, 13 F.3d at 547. “[T]he under-color-of-state-law element of § 1983 excludes
from its reach merely private conduct, no matter how discriminatory or wrongful.” American
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (citation and internal quotation marks
omitted). The plaintiff names a private financial services company, a private law firm, and a
private individual, as entities and persons that violated her constitutional right to due process.
Because these private entities and persons do not act “under color of state law,” the plaintiff
cannot sue them under Section 1983. Accordingly, the plaintiff's Section 1983 claims against
Amos Financial LLC, Warner & Scheuerman, and Troyden C. Sargeant, are dismissed for failure
to state a claim pursuant to 28 U.S.C. Section 1915(e)(2)(B)(ii).
The plaintiff's allegations that relate to the foreclosure action, legal rights in the
property, and her fears of eviction or harassment, may constitute actionable claims under state
law. The Court does not have subject matter jurisdiction to hear those state law claims because
federal courts hear cases in which a federal question is raised or the parties are diverse—meaning
that they are citizens of different states—and the amount in controversy exceeds $75,000.
CONCLUSION
For the reasons stated above, all of the plaintiff's Section 1983 claims are dismissed
pursuant to 28 U.S.C. Section 1915(e)(2)(B)(i1) and (ii). Any state law claims are dismissed
without prejudice to bring them in state court. The Court grants the plaintiff leave to file an
amended complaint within 30 days of the date of this order. The amended complaint must
consist of actionable claims against government officials and private entities. It cannot name the
Supreme Court of New York as a defendant, and cannot name individual judges or clerks as
defendants unless the plaintiff alleges facts demonstrating that they acted in the “clear absence of
all jurisdiction.” The claims against the private entities must arise under federal law, or, if under
state law, the amended complaint must include allegations that the parties are citizens of
different states, and that the amount in controversy exceeds $75,000. If the plaintiff fails to file
an amended complaint within 30 days, the Complaint will be dismissed and judgment will enter.
No summonses will issue at this time, and all further proceedings will be stayed for 30 days. The
Court certifies pursuant to 28 U.S.C. Section 1915(a)(3) that any appeal would not be taken in
good faith and therefore in forma pauperis status is denied for purpose of an appeal. See
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
s/Ann M. Donnelly
AnnM.Donnelly
United States District Judge
Dated: Brooklyn, New York
September 11, 2019