Walker v. Pastoressa

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

KEVIN JAMES WALKER,

MEMORANDUM & ORDER

Plaintiff, 22-CV-00997 (HG) (LGD)

v.

JOSEPH C. PASTORESSA, DANIEL

MCCARTHY, MICHAEL BROXMEYER,

and PLYMOUTH BOARD OF

MANAGERS/FAIRFIELD PROPERTIES,

Defendants.

HECTOR GONZALEZ, United States District Judge:

On March 23, 2022, Plaintiff Kevin James Walker, proceeding pro se, filed this action

against Justice Joseph C. Pastoressa, Daniel McCarthy, Michael Broxmeyer and the Plymouth

Village Board of Managers/Fairfield Properties (the “Defendants”). See ECF No. 1. Pursuant to

the Court’s inherent authority to dismiss claims that are frivolous or inadequately pled, the Court

dismisses the complaint. Plaintiff’s claims against Justice Pastoressa are dismissed with

prejudice, as are his claims to enforce certain federal criminal statutes and any claims to set aside

the foreclosure judgment in Suffolk County Supreme Court related to Plaintiff’s apartment. As

set forth in more detail below, Plaintiff may file an amended complaint on or before September

28, 2022, asserting his remaining claims in either this Court or the United States Bankruptcy

Court for the Eastern District of New York, depending on the nature of those restated claims.

BACKGROUND

Plaintiff’s complaint contains the following statement of his claims:

January 2018 I filed Chapter 7 Bankruptcy in Eastern District

Federal Court. Plymouth Village Board Managers/Fairfield

Property was under the Chapter 7 debt was discharged 4-18-2018

$81,000. They have been since 2019 sending threatening letters to

foreclose. There is a sale date of 4-15-2022 Islip town Hall.

ECF No. 1 at 4. Plaintiff does not describe the relief he seeks. Id. He does, however, identify

the following statutes as providing the basis for the Court’s purported jurisdiction: 18 U.S.C. §§

241, 242, 876, 1341, 1343, and 11 U.S.C. § 524. Id. at 3.

Plaintiff’s complaint attaches various other documents, including documents relating to a

lawsuit commenced against him in the Supreme Court of the State of New York, Suffolk County,

and a bankruptcy proceeding that Plaintiff commenced in the United States Bankruptcy Court for

the Eastern District of New York. ECF No. 1 at 6–21; see also Bd. of Mgrs. of Plymouth Vill.

Condo., No. 613521/2017 (Sup. Ct. Suffolk Cnty. filed July 19, 2017); In re Walker, No. 18-

70377 (Bankr. E.D.N.Y. filed Jan. 17, 2018). Plaintiff’s complaint does not explain why he

included filings from these separate proceedings. However, the Court takes judicial notice,

based on its review of the publicly-available dockets for those proceedings, that the Board of

Managers of Plymouth Village Condominium (the “Board of Managers”) commenced a lawsuit

against Plaintiff on July 19, 2017, seeking a judgment of foreclosure and sale related to the

apartment that Plaintiff has identified as his current address due to Plaintiff’s alleged non-

payment of a debt of more than $78,000.1 See Plymouth Vill. Condo., No. 613521/2017,

NYSCEF No. 1 ¶¶ 37–46. The law firm Schneider Buchel LLP represented the Board of

Managers in the foreclosure action. Id. at 20. Plaintiff’s complaint in this action identifies

Defendant McCarthy as an attorney affiliated with Schneider Buchel LLP and Defendant

Broxmeyer as an “owner” of the Board of Managers. ECF No. 1 at 2.

1 The Court may take judicial notice of dockets from other courts’ proceedings because

they are public records, especially when a plaintiff’s complaint incorporates documents from

those dockets. See Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006).

While the state court foreclosure action was pending, Plaintiff filed a petition under

Chapter 7 of the Bankruptcy Code on January 17, 2018. See In re Walker, No. 18-70377, ECF

No. 1. The bankruptcy court issued a discharge order on April 25, 2018, and notice of that order

was sent to both the Board of Managers and Schneider Buchel LLP. See In re Walker, No. 18-

70377, ECF No. 21-1. Before the discharge order was issued, Justice Pastoressa signed an order

dated April 12, 2018, in the state court litigation appointing a referee to calculate the amount of

money Plaintiff owed to the Board of Managers. See Plymouth Vill. Condo., No. 613521/2017,

NYSCEF No. 40. However, the order was not entered on the state court’s docket until May 4,

2018, after Plaintiff’s bankruptcy court discharge had gone into effect. Id. Justice Pastoressa

later signed a judgment of foreclosure ordering the sale of Plaintiff’s apartment on February 4,

2020, which was entered by the Suffolk County Clerk of Court on February 20, 2020. See

Plymouth Vill. Condo., No. 613521/2017, NYSCEF No. 59.

LEGAL STANDARD

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 ‘when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.’” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d

Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

A pro se complaint “must be held to less stringent standards than formal pleadings

drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). The Court’s obligation “to

construe a pro se complaint liberally” continues to apply “[e]ven after Twombly” established the

plausibility standard for assessing pleadings. Newsome v. Bogan, 795 F. App’x 72, 73 (2d Cir.

2020) (quoting Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009)). Nonetheless, “district courts

have inherent power to sua sponte dismiss a complaint as frivolous, even when, as here, the

plaintiff has paid the filing fee” and is not seeking in forma pauperis status. Li v. Dillon, No. 21-

1997-cv, 2022 WL 2661998, at *1 (2d Cir. July 11, 2022) (citing Fitzgerald v. First E. Seventh

St. Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000)). “A complaint is frivolous when ‘(1) the

factual contentions are clearly baseless, . . . or (2) the claim is based on an indisputably meritless

legal theory.’” Id. (quoting Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.

1998)).

DISCUSSION

I. Plaintiff’s Claims Against Justice Pastoressa Are Dismissed with Prejudice

Because He Has Judicial Immunity.

As described above, Justice Pastoressa signed an order appointing a referee and a

judgment of foreclosure in the state court litigation that the Board of Managers filed against

Plaintiff. However, Justice Pastoressa is immune from suit on this basis even if the Board of

Managers’ efforts to collect its alleged debt and to foreclose on Plaintiff’s apartment violated

Plaintiff’s bankruptcy discharge.

“It is well settled that judges generally have absolute immunity from suits for money

damages for their judicial actions.” Butcher v. Wendt, 975 F.3d 236, 241 (2d Cir. 2020).

“Judges are . . . subject to suit only for (1) ‘nonjudicial actions, i.e., actions not taken in the

judge’s judicial capacity’; and (2) ‘actions, though judicial in nature, taken in the complete

absence of all jurisdiction.’” Brady v. Ostrager, 834 F. App’x 616, 618 (2d Cir. 2020) (quoting

Mireles v. Waco, 502 U.S. 9, 11–12 (1991)). The complete absence of jurisdiction requirement

means that “[a] judge will not be deprived of immunity because the action he took was in error,

was done maliciously, or was in excess of his authority.” Gross v. Rell, 585 F.3d 72, 84 (2d Cir.

2009); see also Best v. DiTech Holding Corp., 407 F. Supp. 3d 210, 212 (E.D.N.Y. 2019)

(dismissing claims against judge who allegedly “overlook[ed] fraud and perjury” in state court

foreclosure proceedings (alteration in original)).

Plaintiff’s complaint does not include any allegations related to Justice Pastoressa. See

ECF No. 1. The complaint merely identifies Justice Pastoressa as a defendant and attaches a

document from Plaintiff’s Suffolk County Supreme Court case, over which Justice Pastoressa

presided. Id. at 2, 12–13. Even after giving this complaint the liberal interpretation required by

Plaintiff’s pro se status, Plaintiff has failed to allege that Justice Pastoressa harmed him through

any nonjudicial actions or any actions taken in the complete absence of all jurisdiction. Instead,

the complaint suggests that Plaintiff has sued Justice Pastoressa solely because of “official

actions [he] took during the foreclosure proceedings,” such as “ruling on motions” and “signing

orders.” Weaver v. Schiavo, No. 17-cv-1406, 2020 WL 496301, at *6 (S.D.N.Y. Jan. 30, 2020)

(granting motion to dismiss); see also Soh v. Greco, No. 22-cv-3354, 2022 WL 2441238, at *2

(E.D.N.Y. July 5, 2022) (dismissing claims pursuant to judicial immunity against judge who

“enter[ed] a judgment of foreclosure in the [plaintiff’s] state court foreclosure proceeding”).

In light of Justice Pastoressa’s immunity, the claims against him are dismissed with

prejudice, and Plaintiff may not file an amended complaint naming Justice Pastoressa as a

Defendant. Brady, 834 F. App’x at 619 (affirming denial of leave to amend claims against state

court judge); Soh, 2022 WL 2441238, at *2 (dismissing “with prejudice” claims against state

court judge).

II. Plaintiff Cannot Assert Claims Related to the State Court Judgment of

Foreclosure and Sale.

The Court must also dismiss Plaintiff’s claims to the extent he seeks to use this lawsuit to

set aside the foreclosure judgment entered in the Suffolk County Supreme Court litigation

between him and the Board of Managers. The Rooker-Feldman doctrine deprives this Court of

jurisdiction to grant such relief.

“[T]he Rooker-Feldman doctrine establishes the clear principle that federal district courts

lack jurisdiction over suits that are, in substance, appeals from state-court judgments.” Edwards

v. McMillen Cap., LLC, 952 F.3d 32, 35 (2d Cir. 2020) (internal quotation marks omitted). “For

the doctrine to apply, four requirements must be met: (1) the federal-court plaintiff must have

lost in state court; (2) the plaintiff must complain of injuries caused by a state-court judgment;

(3) the plaintiff must invite district court review and rejection of that judgment; and (4) the state-

court judgment must have been rendered before the district court proceedings commenced.” Id.

(internal quotation marks omitted).

All of these criteria are satisfied with respect to the Suffolk County Supreme Court’s

judgment of foreclosure. Furthermore, the Second Circuit has held that the Rooker-Feldman

doctrine precludes a plaintiff from suing in federal court to determine that a state court

“foreclosure judgment was issued in error” or “to grant him title to his property” sold pursuant to

a foreclosure judgment. Vossbrinck v. Accredited Home Lenders, Inc., 773 F.3d 423, 427 (2d

Cir. 2014). Accordingly, “courts in this circuit routinely dismiss challenges to state court

foreclosure judgments under Rooker-Feldman.” Desir v. Florida Cap. Bank, N.A., 377 F. Supp.

3d 168, 172 (E.D.N.Y. 2019).

III. Plaintiff Cannot Assert Claims Based on Federal Criminal Statutes.

Plaintiff may not use this civil lawsuit to enforce the criminal statutes identified in his

complaint, see ECF No. 1 at 3, and his claims based on those statutes must be dismissed with

prejudice. “The Supreme Court historically has been unreceptive to inferring a private right of

action from a bare criminal statute,” especially when the statute “provide[s] criminal sanctions

for violations but ma[kes] no mention of any private enforcement mechanism.” Schlosser v.

Kwak, 16 F.4th 1078, 1083 (2d Cir. 2021) (internal citations and quotation marks omitted).

The Second Circuit has held that each of the various criminal statutes that Plaintiff cites

provides no such private right of action. See Nath v. Select Portfolio Servicing, Inc., 732 F.

App’x 85, 87 (2d Cir. 2018) (no private right of action under 18 U.S.C. §§ 1341 or 1343); Hill v.

Didio, 191 F. App’x 13, 14 (2d Cir. 2006) (no private right of action under 18 U.S.C. §§ 241 or

242); Dourlain v. Comm’r of Tax’n & Fin., 133 F. App’x 765, 767–68 (2d Cir. 2005) (no private

right of action under 18 U.S.C. § 876). In each of those cases, the Second Circuit affirmed the

district court’s dismissal of the plaintiff’s claims, and this Court likewise dismisses with

prejudice Plaintiff’s claims based on these criminal statutes.

IV. Plaintiff’s Remaining Claims Are Dismissed with Leave to Amend for

Failure to Comply with Rule 8.

The Court dismisses Plaintiff’s remaining claims without prejudice because they are

inadequately pled. Rule 8 of the Federal Rules of Civil Procedure requires Plaintiff’s complaint

to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2). “To satisfy this standard, the complaint must at a minimum disclose

sufficient information to permit the defendant to have a fair understanding of what the plaintiff is

complaining about and to know whether there is a legal basis for recovery.” Harnage v.

Lightner, 916 F.3d 138, 141 (2d Cir. 2019) (internal quotation marks omitted). “This standard is

not met ‘[b]y lumping all the defendants together in each claim and providing no factual basis to

distinguish their conduct.’” Murray v. Nazareth Reg’l High Sch., No. 20-cv-1471, 2022 WL

3139116, at *1 (E.D.N.Y. Aug. 5, 2022) (quoting Atuahene v. City of Hartford, 10 F. App’x 33,

34 (2d Cir. 2001)). “Rule 8 . . . ‘demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.’” Dettelis v. Sharbaugh, 919 F.3d 161, 163 (2d Cir. 2019) (quoting

Iqbal, 556 U.S. at 678).

The Court has the authority to dismiss “on its own initiative” a complaint that does not

comply with Rule 8, although outright dismissal is reserved for extreme cases. See Harnage,

916 F.3d at 141. Furthermore, “a pro se complaint should not be dismissed without granting

leave to amend at least once,” so long as the Court “cannot rule out any possibility, however

unlikely it might be, that an amended complaint would succeed in stating a claim.” Elder v.

McCarthy, 967 F.3d 113, 132 (2d Cir. 2020) (internal quotation marks omitted).

As discussed above, any claims that Plaintiff might assert against Justice Pastoressa

would fail, as would any claims to enforce federal criminal laws or to set aside the judgment of

foreclosure entered in Suffolk County Supreme Court. A more clearly-drafted complaint could,

however, conceivably assert claims against Defendants McCarthy, Broxmeyer, or the Board of

Managers. Plaintiff’s current complaint demonstrates an intent to assert claims against some or

all of these Defendants related to purported attempts to collect a debt that was discharged in

bankruptcy and to foreclose on Plaintiff’s apartment. See ECF No. 1 at 1. However, Plaintiff’s

complaint does not include “a single allegation specif[ying] which defendant engaged in what

misconduct.” Bardwil Indus. Inc. v. Kennedy, No. 19-cv-8211, 2020 WL 2748248, at *3

(S.D.N.Y. May 27, 2020) (dismissing complaint). The Court will give Plaintiff an opportunity to

provide this information by granting him leave to amend.

Any amended complaint that Plaintiff may file may not, however, rely on 11 U.S.C. §

524 as a basis for jurisdiction in this Court, as Plaintiff’s current complaint does. See ECF No. 1

at 3. The Second Circuit “has never identified a private right of action under section 524.”

Belton v. GE Cap. Retail Bank, 961 F.3d 612, 616 (2d Cir. 2020). Accordingly, violations of a

bankruptcy court’s discharge order “are enforceable only by the bankruptcy court and only by a

contempt citation” authorized by 11 U.S.C. § 105. In re Anderson, 884 F.3d 382, 391 (2d Cir.

2018); see also Costello v. Wells Fargo Bank NA, No. 21-cv-1388, 2022 WL 1912870, at *9 (D.

Conn. June 3, 2022) (dismissing such claims filed directly in district court). Similarly, Plaintiff

may assert only in bankruptcy court any claim he may have that the Board of Managers violated

the Bankruptcy Code’s automatic stay by continuing its state court lawsuit while Plaintiff’s

bankruptcy proceeding was ongoing. See J. J. Cranston Constr. Corp. v. City of New York, No.

20-cv-4902, 2022 WL 1289690, at *3 (E.D.N.Y. Apr. 29, 2022) (holding that “the Court lacks

subject matter jurisdiction over this action” because “under binding Second Circuit precedent, a

claim seeking recovery of damages for willful violations of the automatic stay must be brought

in Bankruptcy Court”). This Court’s decision does not address in any way the merits of such

claims and instead rules only that such claims, to the extent they are meritorious, can only be

brought in bankruptcy court.

Since the Court is dismissing Plaintiff’s complaint, the Court denies as moot Plaintiff’s

request to have the U.S. Marshals Service serve the complaint and a summons on Defendants.

See ECF No. 6. However, for the sake of clarity, Plaintiff is not entitled to such an

accommodation and may not request to serve his amended complaint in this manner. A plaintiff

who has paid the filing fee, rather than receiving leave to proceed in forma pauperis, is not

entitled to have the U.S. Marshals Service effect service on his behalf. See Xi-Amaru v. Saul,

No. 18-cv-7028, 2019 WL 3997467, at *2 (E.D.N.Y. Aug. 23, 2019) (citing Fed. R. Civ. P.

4(c)(3)).

Finally, any amended complaint that Plaintiff files must be signed in his own name or by

an attorney representing him. See Fed. R. Civ. P. 11(a). The Court notes that Plaintiff’s current

complaint is signed using the name Khalid El Ali, yet it identifies Plaintiff as Kevin James

Walker. See ECF No. 1 at 1, 5. Plaintiff’s amended complaint must therefore do one of the

following: (i) contain the signature of Kevin James Walker; (ii) identify Plaintiff as Khalid El

Ali; or (iii) be accompanied by a notice of appearance of Khalid El Ali with sufficient

information demonstrating that Khalid El Ali is an attorney admitted to practice in this District.

CONCLUSION

For the reasons explained above, Plaintiff’s claims against Justice Pastoressa are

dismissed with prejudice. The Court also dismisses with prejudice any claims based on

Defendants’ alleged violations of criminal statutes or to overturn the Suffolk County Supreme

Court’s foreclosure judgment related to Plaintiff’s apartment.

However, in light of Plaintiff’s pro se status, the Court grants plaintiff leave to file an

amended complaint that attempts to assert Plaintiff’s remaining claims in a manner that complies

with Rule 8 of the Federal Rules of Civil Procedure. If Plaintiff elects to file an amended

complaint, he must do so on or before September 28, 2022. If Plaintiff fails to file an amended

complaint within the time allowed or show good cause why he cannot, the Court will dismiss the

action, and the Clerk of Court will enter judgment and close this case.

The amended complaint should be captioned, “Amended Complaint,” and bear the same

docket number as this Order, No. 22-cv-00997 (HG) (AYS). The amended complaint will

replace the original complaint. That is, the amended complaint must stand on its own without

reference to the original complaint. In the amended complaint, Plaintiff must set forth what each

Defendant did or failed to do, what harm he sustained, and the relief he seeks. While Plaintiff

may include exhibits in support of his claims, he cannot rely on exhibits to fulfill his obligation

to provide a short and plain statement of his claims that complies with Rule 8. See, e.g., Irons v.

U.S. Gov’t, No. 21-cv-4683, 2021 WL 4407595, at *2 (E.D.N.Y. Sept. 27, 2021) (“Neither the

court nor defendants should have to parse through the complaint or the attached exhibits to

ascertain the factual basis for plaintiff’s claims.”).

Although Plaintiff paid the filing fee, the Court certifies pursuant to 28 U.S.C. §

1915(a)(3) that any appeal of this Order would not be taken in good faith and therefore in forma

pauperis status is denied for the purpose of an appeal. Coppedge v. United States, 369 U.S. 438,

444–45 (1962).

The Clerk of Court is respectfully directed to mail a copy of this Order to the pro se

Plaintiff and note the mailing on the docket.

SO ORDERED.

/s/ Hector Gonzalez .

HECTOR GONZALEZ

United States District Judge

Dated: Brooklyn, New York

August 29, 2022