Sadiq v. Vitacco

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ALI-ABDULLAH SADIQ; ELLEN J.

SADIQ,

Plaintiffs,

-against- MEMORANDUM AND ORDER

22-CV-1064 (RPK) (TAM)

GUY R. VITACCO JR.; HON. ENEDINA

PILAR SANCHEZ, New York City Housing

Court Judge; HON. CLINTON GUTHRIE,

New York City Housing Court Judge;

LETITIA JAMES, New York State Attorney

General; ALAN SMILOWITZ; R.T.N.Y.

REALTY LLC,

Defendants.

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RACHEL P. KOVNER, United States District Judge:

Pro se plaintiffs Ali-Abdullah Sadiq and Ellen Sadiq filed this lawsuit under 42 U.S.C.

§ 1983. Plaintiffs’ request to proceed in forma pauperis is granted, but their complaint is dismissed

for the reasons set out below.

BACKGROUND

Plaintiffs’ complaint appears to allege that plaintiffs suffered financial injury as a result of

an unlawful 2008 foreclosure proceeding in New York state court. See Compl. (Dkt. #1) 6–7.1

Plaintiffs name as defendants Guy R. Vitacco, Jr., a housing court referee; Enedina Pilar Sanchez,

Clinton Guthrie, and Clifton A. Nembhard, New York City Housing Court Judges; Frederick

Sampson, New York Supreme Court Justice; New York Attorney General Letitia James; Melinda

Katz, Queens County District Attorney; Carmencita Gutierrez and James Liander, Assistant

District Attorneys; Alan Smilowitz, a member of R.T.N.Y. Realty LLC; R.T.N.Y. Realty LLC;

1 Page references are to the page numbers assigned by the Court’s Electronic Case Filing (“ECF”) system.

the NYPD and its 103rd Precinct; Antonia Donohue; Jacques Jiha; James Cantanizo; and Eric

Adams, Mayor of New York City.2

Plaintiff Ali Abdullah-Sadiq previously filed a lawsuit against Vitacco and various other

defendants challenging the same foreclosure action under Section 1983 in the Southern District of

New York. The district court dismissed the complaint, holding that Abdullah-Sadiq’s request for

relief from the state foreclosure action judgment was barred by the Rooker-Feldman doctrine and

that Abdullah-Sadiq had not adequately pleaded a claim for money damages under Section 1983.

Abdullah-Sadiq v. Behringer, No. 17-CV-270 (TPG), 2017 WL 5508478, *1–3 (S.D.N.Y. Feb. 27.

2017).

Plaintiffs now challenge the 2008 foreclosure again. While the complaint is difficult to

understand, plaintiffs appear to allege that Vitacco engaged in misconduct as a Housing Court

referee, Compl. 5–7, 34; that Smilowitz and R.T.N.Y. Realty LLC “stole” plaintiffs’ deed, id. at

34; that Judges Pilar Sanchez, Guthrie and Nembhard heard plaintiffs’ underlying New York

foreclosure case without jurisdiction, id. at 5–7; that Attorney General James conspired with others

to harm plaintiffs, id. at 6; that the District Attorney and Assistant District Attorneys (“District

Attorney Defendants”) were involved in a “criminal conspiracy” against plaintiffs and provided a

“misleading” response to their Freedom of Information Act request, id. at 12–13; that Donohue

committed “mortgage theft,” id. at 34; that Jiha and Cantanizo “lied” and committed “fraud,” ibid.;

that Mayor Adams “wouldn’t investigate,” ibid.; and that the NYPD and its 103rd Precinct “failed

to investigate,” ibid.

Plaintiffs seek to “remove [their foreclosure] matter from all NYC, NYS courts,

irrespective of time limits,” and request damages. Id. at 7.

2 Construed liberally, the pro se complaint names this full list of defendants. Compl. 2–4, 32–34.

DISCUSSION

This complaint is dismissed. The Court lacks subject matter jurisdiction over claims that

challenge the 2008 state foreclosure action. And plaintiffs’ remaining claims are dismissed under

Section 1915.

I. The Court Lacks Subject-Matter Jurisdiction Over Plaintiffs’ Claims for Relief from

the New York Foreclosure Action.

The Rooker-Feldman doctrine bars plaintiffs’ challenges to the 2008 foreclosure action,

including plaintiffs’ request that the Court “remove this matter from all NYC, NYS Courts,

irrespective of time limits,” as a result “of [an] illegal, unlawful foreclosure.” Compl. 7. A court

may dismiss an action sua sponte for lack of subject-matter jurisdiction. Oscar Gruss & Son., Inc.

v. Hollander, 337 F. 3d 186, 193 (2d Cir. 2003); see Fed. R. Civ. P. 12(h)(3). And under the

Rooker-Feldman doctrine, “federal district courts lack [subject-matter] jurisdiction over suits that

are, in substance, appeals from state-court judgments.” Sung Cho v. City of New York, 910 F.3d

639, 644–45 (2d Cir. 2018) (quoting Hoblock v. Albany Cty. Bd. of Elections, 422 F.3d 77, 84 (2d

Cir. 2005)). For a claim to be barred under Rooker-Feldman, “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.” Ibid.

These principles bar plaintiffs’ request that the court remove the foreclosure case from New

York courts. Plaintiffs lost their foreclosure proceeding in state court, see Behringer v. 19407

Linden, LLC, 29 N.Y.S. 3d 816 (2d Dep’t May 11, 2016), leave to appeal denied, 28 N.Y.3d 911

(Dec. 22, 2016); they allege that the state-court judgment caused the injuries they seek to have

redressed; they seek review of the legality of the state-court judgment; and the state-court judgment

at issue was rendered years before this case began, see Behringer, 29 N.Y.S. 3d 816. Accordingly,

the Court lacks subject-matter jurisdiction over plaintiffs’ challenge to the 2008 foreclosure action,

including plaintiffs’ request that the Court “remove this matter from all NYC, NYS Courts,

irrespective of time limits,” as a result “of [an] illegal, unlawful foreclosure.” Compl. 7.

II. Plaintiffs’ Section 1983 Claims Are Dismissed Under Section 1915.

Plaintiffs’ remaining Section 1983 claims are dismissed under 28 U.S.C. § 1915(e)(2)(B).

When a litigant files a lawsuit in forma pauperis, the district court must dismiss the case if it

determines that the complaint “is frivolous or malicious,” “fails to state a claim on which relief

may be granted,” or “seeks monetary relief against a defendant who is immune from such relief.”

28 U.S.C. § 1915(e)(2)(B); see Fed. R. Civ. P. 8(a). To avoid dismissal for failure to state a claim,

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 has facial plausibility 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)

(discussing Fed. R. Civ. P. 8). In applying this standard, a complaint filed by a pro se plaintiff

must be “liberally construed, and . . . held to less stringent standards than formal pleadings drafted

by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quotations and citations

omitted).

A. Attorney General James

Plaintiffs’ Section 1983 claims against Attorney General James are dismissed.

Insofar as those claims are brought against James in her official capacity, they are barred

by sovereign immunity. State governments may not be sued in federal courts by private parties

“unless they have waived their Eleventh Amendment immunity or unless Congress” has abrogated

it. Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009) (citations and quotation marks omitted);

see Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 253–54 (2011). And when a private party

sues a state government employee “for damages in his [or her] official capacity, such a suit is

deemed to be a suit against the state, and the official is entitled to invoke the Eleventh Amendment

immunity belonging to the state.” Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993). No

waiver or abrogation of sovereign immunity has occurred here. See Li v. Lorenzo, 712 F. App’x

21, 22 (2d Cir. 2017). Accordingly, any claims for money damages against James in her official

capacity are dismissed.

Insofar as plaintiffs’ damages claims are brought against Attorney General James in her

personal capacity, plaintiffs fail to state a claim under Section 1983. “It is well settled in this

Circuit that personal involvement of defendants in alleged constitutional deprivations is a

prerequisite to an award of damages under [Section] 1983.” Farid v. Ellen, 593 F.3d 233, 249 (2d

Cir. 2010) (citation and quotation marks omitted). Plaintiffs make only conclusory allegations of

any such involvement on James’s part by alleging that the Attorney General “unequivocally does

not apply law equally to the people in the same situation,” Compl. 14, and that she “played [a role]

in this . . . assault on justice,” id. at 29. Such “‘bald assertions and conclusions of law’ are

insufficient to establish personal involvement.” Chambers v. Toulon, No. 22-CV-5463 (GRB)

(ARL), 2022 WL 11729696, at *3 (E.D.N.Y. Oct. 20, 2022) (quoting Leeds v. Meltz, 85 F.3d 51,

53 (2d Cir. 1996)). Plaintiffs’ claims against James are dismissed.

B. Judges Sampson, Pilar Sanchez, Guthrie, and Nembhard

Judicial immunity bars plaintiffs’ claims against Judges Sampson, Pilar Sanchez, Guthrie,

and Nembhard.

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

damages for their judicial actions.” Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009). That

principle applies to state court and housing court judges. See, e.g., Wiltz v. New York Univ., No.

18-CV-00123 (GHW) (SDA), 2019 WL 721658, at *10 n.23 (S.D.N.Y. Feb. 1, 2019), report and

recommendation adopted, 2019 WL 720700 (S.D.N.Y. Feb. 19, 2019). “There is a two-part test

to determine whether . . . judge[s] may avail [themselves] of [judicial] immunity: (1) that the action

be a judicial act or judicial in nature; and (2) that the judge not act in the clear absence of all

jurisdiction.” Birnbaum v. Rodriguez, No. 94-CV-5180, 1995 WL 745040, *3 (E.D.N.Y. Dec. 4,

1995) (citing Mireless v. Waco, 502 U.S. 9 (1991)).

Here, plaintiffs apparent attempt to challenge the judicial defendants’ handling of

foreclosure proceedings and related appeals challenges “act[ions] . . . related to . . . individual

cases before the” judges, which “are considered judicial in nature.” Grant v. Adult Protective

Serv., No. 22-CV-775 (PKC) (LB), 2022 WL 504409, at *5 (E.D.N.Y. Feb. 18, 2022) (quoting

Bliven, 579 F.3d at 210) (quotation marks omitted). And plaintiffs make no colorable allegation

that the judicial defendants lacked jurisdiction over those matters properly before them.

Accordingly, plaintiffs’ claims against those defendants are barred by judicial immunity and

dismissed as frivolous under Section 1915. See, e.g., Grant, 2022 WL 504409, at *5 (dismissing

claims against a judge under Section 1915 as frivolous because of judicial immunity).

C. R.T.N.Y. Realty LLC, Smilowitz, Donohue, Jiha, and Cantanizo

Plaintiffs’ claims under Section 1983 against R.T.N.Y. Realty LLC, Smilowitz, Donohue,

Jiha, and Cantanizo are dismissed under Section 1915 for failure to state a claim.

Section 1983 permits suit against any person who deprives another of “any rights,

privileges, or immunities secured by the Constitution and laws.” However, “[e]mbedded in our

Fourteenth Amendment jurisprudence is a dichotomy between state action, which is subject to

scrutiny under the Amendment’s Due Process Clause, and private conduct, against which the

Amendment affords no shield, no matter how unfair the conduct may be.” Nat’l Collegiate Athletic

Ass’n v. Tarkanian, 488 U.S. 179, 191 (1988). Accordingly, “[w]hen Congress enacted

[Section] 1983 as the statutory remedy for violations of the Constitution, it specified that the

conduct at issue must have occurred ‘under color of’ state law.” Ibid. (quoting Monroe v. Pape,

365 U.S. 167, 172 (1961)); see Grogan v. Blooming Grove Volunteer Ambulance Corps, 768 F.3d

259, 263–64 (2d Cir. 2014). As a result, suits may be brought against private individuals “if, [and]

only if,” a “close nexus [exists] between the State and the challenged action.” Brentwood Acad.

v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001) (quotation marks omitted). Here,

even when plaintiffs’ complaint is liberally construed considering plaintiffs’ pro se status, see

Erickson, 551 U.S. at 94, plaintiffs do not plausibly allege that R.T.N.Y. Realty LLC, Smilowitz,

Donohue, Jiha, or Cantanizo acted under color of state law in taking any of the actions that

plaintiffs challenge. Plaintiffs’ Section 1983 allegations against these private defendants are

accordingly dismissed under Section 1915 for failure to state a claim.

D. Mayor Adams

Plaintiffs’ Section 1983 claim against Eric Adams is also dismissed for failure to state a

claim under Section 1915. Plaintiffs’ only allegation against Adams is that he “wouldn’t

investigate.” Compl. 34. But a “failure to investigate is not independently cognizable as a stand-

alone claim under Section 1983.” Buari v. City of New York, 530 F. Supp. 3d 356, 389 (S.D.N.Y.

2021) (citations and internal quotation marks omitted); see Crawford v. Iccari, No. 1:22-CV-1469

(LTS), 2022 WL 767122, at *4 (S.D.N.Y. Mar. 14, 2022) (“Government officials generally have

no federal constitutional duty to investigate”); DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs.,

489 U.S. 189, 195–96 (1989). Plaintiffs’ claim against Adams is accordingly dismissed under

Section 1915 because “plaintiff has not alleged any facts from which the Court could reasonably

construe a plausible Section 1983 claim against” Adams. Davis v. NYS Off. of Child. & Fam.

Servs., No. 20-CV-148 (JMA) (ARL), 2021 WL 1193044, at *4 (E.D.N.Y. Mar. 30, 2021).

E. District Attorney Defendants and Vitacco

Plaintiffs’ claims against the District Attorney Defendants and Guy Vitacco are dismissed

under Section 1915 for failure to state a claim because plaintiffs have not pleaded “enough facts

to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Plaintiffs’ vague

allegations that the Queens County District Attorney’s office has an “on-going criminal

conspiracy” to “take actions against [plaintiffs],” that District Attorney Katz knows of this

conspiracy, and that the District Attorney’s office sent plaintiffs “misleading” information in

response to plaintiffs’ FOIA request because the information “had the wrong date on it,” Compl.

12–13, do not set out “factual content that allows the court to draw the reasonable inference that

the defendant is liable” for a violation of Section 1983, Iqbal, 556 U.S. at 678. Similarly, plaintiffs’

allegation that Vitacco “registered, and recorded[] a [m]echanic’s [l]ien” that plaintiff suggests

was false or fraudulent, Compl. 10-11, do not—without more—plead a claim for a constitutional

violation that is plausible on its face. Accordingly, these claims are dismissed for failure to state

a claim under Section 1915.

F. The NYPD and the 103rd Precinct

Plaintiffs’ claims against the NYPD and its 103rd Precinct are dismissed for failing to state

a claim under Section 1915 because those defendants are non-suable entities. “Under New York

Law, ‘[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall

be brought in the name of the City of New York and not in that of any agency, except where

otherwise provided by law.’” Johnson v. New York City Police Dep’t, 651 F. App’x 58, 60 (2d

Cir. 2016) (citing N.Y.C. Charter Ch. 17). Because the NYPD and its precincts are not suable

entities, plaintiffs’ claims against the 103rd Precinct are dismissed because they fail to state a claim

for relief. See, e.g., Mehmeti v. Brown, No. 20-CV-1493 (MKB), 2020 WL 4350248, at *2

(E.D.N.Y. July 29, 2020) (dismissing claim against the NYPD under Section 1915 for failure to

state a claim).

CONCLUSION

Plaintiffs’ claims are dismissed without prejudice. Plaintiffs may file an amended

complaint within thirty days of this Memorandum and Order correcting the deficiencies identified

herein. All proceedings in this case are stayed for thirty days. If plaintiffs fail to file an amended

complaint, the case will be dismissed. The Court certifies pursuant to 28 U.S.C. § 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). The Clerk of

Court is respectfully directed to mail a copy of this Memorandum and Order to plaintiffs.

Plaintiffs are advised that the Federal Pro Se Legal Assistance Project offers a free service

that provides legal counseling. The project is run by the City Bar Justice Center of the New York

City Bar Association. Plaintiffs may contact the project at (212) 382-4729.

SO ORDERED.

/s/ Rachel Kovner

RACHEL P. KOVNER

United States District Judge

Dated: November 23, 2022

Brooklyn, New York