Xu v. U.S. Department of Housing and Urban Development

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ZHONGSAI XU,

Plaintiff, MEMORANDUM AND ORDER

22-CV-3539 (KAM)(LB)

-against-

UNITED STATES DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT and CARLOS, Queens

B’nai B’rith House Dev Manager,

Defendants.

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MATSUMOTO, United States District Judge:

On May 25, 2022, pro se Plaintiff, Zhongsai Xu (“Xu”

or “Plaintiff”) commenced this action against the United States

Department of Housing and Urban Development (“HUD”) and the

Development Manager of Queens B’nai B’rith House (“BBH”), who

Plaintiff refers to as “Carlos.”1 In his Complaint, Plaintiff

alleged that Defendant Carlos and Defendant HUD (together,

“Defendants”) either effectuated or failed to address an

increase in his monthly rent, which he contends is a violation

of his right to due process under the Fifth Amendment of the

United States Constitution and a violation of a national policy,

pursuant to Section 202 of the U.S. Housing Act of 1959, 12

U.S.C. § 1701q, which purportedly limits rental payments by

1 Defendant Carlos’s surname is Marrero. (ECF No. 18, Notice of Appearance by

Jeffrey C. Chancas on behalf of Defendant Carlos.) The Court will refer to

this Defendant as Carlos or Marrero.

residents of “elderly housing” to one-third of their monthly

income. Plaintiff seeks relief in the form of a reduction in

his rent.

On February 17, 2023, Defendant HUD moved to dismiss

Plaintiff’s Complaint, pursuant to Fed. R. Civ. P. 12(b)(1) and

12(b)(6). Defendant HUD alleges that Plaintiff failed to

establish standing because there is no causal connection between

Plaintiff’s injury and HUD, that Plaintiff failed to identify a

relevant waiver of sovereign immunity as to HUD, and that

Plaintiff failed to state a claim against HUD. Defendant HUD

also contends that Plaintiff failed to properly serve HUD,

pursuant to Fed. R. Civ. P. 4. By order dated April 6, 2023,

the Court referred Defendant HUD’s motion to dismiss to

Magistrate Judge Lois Bloom for a report and recommendation,

pursuant to 28 U.S.C. § 636(b).

Presently before the Court is the Report and

Recommendation issued on July 20, 2023 by Magistrate Judge

Bloom, recommending that this Court dismiss Plaintiff’s claims

against Defendant HUD for lack of subject matter jurisdiction

pursuant to Fed. R. Civ. P. 12(b)(1). (ECF No. 33, the “R&R”.)

Magistrate Judge Bloom also recommended that the Court dismiss

Plaintiff’s claims against Defendant Carlos, sua sponte, for

lack of subject matter jurisdiction. (R&R at 13.) Also before

the Court are Plaintiff’s timely objections to the R&R (ECF Nos.

34, “July 24, 2023 Ptf. Obj.”; 35, “August 2, 2023 Ptf. Obj.”;

and 36, “August 4, 2023 Ptf. Obj.”; all together, “Plaintiff’s

Objections”) and Defendant HUD’s Response to Plaintiff’s

Objections (ECF No. 38, “Defs. Resp.”) Defendant Carlos has not

filed any response to Plaintiff’s Objections, nor has Carlos

otherwise responded to Plaintiff’s Complaint. For the reasons

stated below, upon de novo review, the Court respectfully

overrules Plaintiff’s Objections, adopts and affirms Magistrate

Judge Bloom’s R&R in its entirety, and accordingly, orders that

Plaintiff’s claims against Defendants be dismissed without

prejudice.

BACKGROUND

The Court assumes the parties’ familiarity with the

extensive facts thoroughly recounted in the R&R. See (R&R at 1

- 5.) The Court has reviewed the facts de novo and adapts the

detailed facts from the R&R.

LEGAL STANDARD

In considering the recommendations of a Magistrate

Judge, as outlined in an R&R, the Court may “accept, reject, or

modify the recommended disposition; receive further evidence; or

return the matter to the Magistrate with instructions.” Fed. R.

Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1). When a party

makes a timely objection to an R&R, the Court must review de

novo those recommendations in the R&R to which the party

objects. See Fed. R. Civ. P. 72(b)(3); United States v. Male

Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). However, even “on de

novo review, [a district court] will ordinarily refuse to

consider arguments, case law and/or evidentiary material which

could have been, but [were] not, presented to the Magistrate

Judge in the first instance.” Haynes v. Quality Markets, No.

02-CV-0250, 2003 WL 23610575, at *3 (E.D.N.Y. Sept. 22, 2003).

As to the portions of the R&R to which no party

objects, the Court “need only satisfy itself that there is no

clear error on the face of the record.” Galvez v. Aspen Corp.,

967 F. Supp. 2d 615, 617 (E.D.N.Y. 2013) (internal quotation

marks and citations omitted). If “the [objecting] party makes

only frivolous, conclusory or general objections, or simply

reiterates [his] original arguments, the Court reviews the

report and recommendation only for clear error.” Velez v. DNF

Assocs., LLC, No. 19-CV-11138, 2020 WL 6946513, at *2 (S.D.N.Y.

Nov. 25, 2020) (internal citations omitted). Furthermore, where

the objections are “merely perfunctory responses, argued in an

attempt to engage the district court in a rehashing of the same

arguments set forth in the original petition, reviewing courts

should review [the R&R] for clear error” only. Chen v. New

Trend Apparel, Inc., 8 F. Supp. 3d 406, 416 (S.D.N.Y. 2014)

(quoting Silva v. Peninsular Hotel, 509 F. Supp. 2d 364, 366

(S.D.N.Y. 2007)).

The Court finds that Plaintiff’s Objections are of a

general nature and largely restate his previously articulated

arguments, which triggers the Court’s review of the R&R for

clear error. Objections that are “conclusory or general

objections, or simply reiterate[] [the objecting party’s]

original arguments” require only clear error review. Barratt v.

Joie, No. 96-CV-0324, 2002 WL 335014, at *1 (S.D.N.Y. Mar. 4,

2002). Nevertheless, because the Court must construe pro se

complaints liberally and interpret the Complaint to raise the

strongest arguments that they suggest, Meadows v. United Servs.,

Inc., 963 F.3d 240, 243 (2d Cir. 2020), the Court applies both

clear error and de novo review to Plaintiff’s Objections.

DISCUSSION

I. Plaintiff’s Claims Against Defendant HUD

A. Article III Standing

Article III of the U.S. Constitution confers

jurisdiction over only “cases” or “controversies” to federal

courts. U.S. Const. art. III, § 2. This limitation on “the

judicial power of the federal courts” requires that plaintiffs

have standing to bring their claims. Bronx Household of Faith

v. Board of Educ. of City of New York, 492 F.3d 89, 110 (2d Cir.

2007) (“Article III of the Constitution limits [] judicial power

. . . to the adjudication of ‘cases’ and ‘controversies.’

Aspects of this generalized limitation are classified in terms

of whether a plaintiff has standing”); see also (R&R at 8)

(“[i]f a plaintiff lacks standing to bring their claims, a

federal court is deprived of subject-matter jurisdiction to

adjudicate those claims”) (internal citations omitted). A

plaintiff has standing to bring suit where they “satisf[y]

Article III’s requirements of injury-in-fact, causation and

redressability.” Keepers, Inc. v. City of Milford, 807 F.3d 24,

42 (2d Cir. 2015).

In her meticulously reasoned R&R, Magistrate Judge

Bloom found that Plaintiff failed to demonstrate either

causation or redressability, and that Plaintiff’s Complaint

should therefore be dismissed for lack of subject matter

jurisdiction. The Court construes Plaintiff’s Objections, which

largely focus on the relationship between Defendant HUD and

Defendant Carlos, to oppose Magistrate Judge Bloom’s findings

with respect to the causation element of Article III standing.

The Court therefore reviews the R&R’s standing analysis de novo,

and addresses injury-in-fact, causation, and redressability in

turn.

i. Injury-in-fact

Plaintiff’s alleged injury is the March 2019 rental

increase from approximately $688 per month to approximately

$1,521 per month. (R&R at 2) (citing Compl. at 8, 14.)

“Injury-in-fact is a ‘low threshold’” that requires only a

showing of “‘a legally protected interest . . . that is concrete

and particularized[.]’” Dennis v. JPMorgan Chase & Co., 343 F.

Supp. 3d 122, 154 (S.D.N.Y. 2018). Plaintiff claims his alleged

injury, the rental increase, constitutes a violation of the

“national policy that the residents of the elderly housing use

one-third of their income that month to pay rent[.]” (Compl. at

12.) Plaintiff points to “Section 202 of the Housing Act of

1959” as the source of this alleged “national policy,” which

supports his assertion of a legally protected interest in

reduced rent. At the motion to dismiss stage, virtually any

“identifiable trifle is enough for standing to fight out a

question of principle” as it relates to an alleged injury-in-

fact. Citizens for Responsibility and Ethics in Washington v.

Trump, 939 F.3d 131, 143 (2d Cir. 2019) (internal quotation

marks and citations omitted). The Court therefore finds that

Plaintiff has alleged an injury-in-fact.

ii. Causation

As to the cause of Plaintiff’s alleged injury,

Magistrate Judge Bloom found that Plaintiff failed to

“demonstrate a causal nexus between the defendant’s conduct and

the injury” alleged, (R&R at 8) (quoting Rothstein v. UBS AG,

708 F.3d 82, 91 (2d Cir. 2013)) because “plaintiff does not

assert any facts establishing a contractual or legally

cognizable relationship between himself and HUD.” (R&R at 9.)

In Plaintiff’s Objections, he asserts that “[t]he real

estate department2 has a certain responsibility for supervision

and inspection” and points to the fact that “[t]he document to

be signed by [Plaintiff] [to certify his income] was a form

uniformly issued in the name of the real estate department” as

evidence of Defendant HUD’s involvement in the allegedly illegal

rent increase. (July 24, 2023 Ptf. Obj. at 1.) Plaintiff,

however, contradicts his own allegations that “the Ministry of

Housing” is the “mastermind behind the scenes” and worked with

others to commit the “joint crime, gang crime and organized

crime” of “defrauding the money of a 65-year-old man,” (Aug. 4,

2023 Ptf. Obj at 1) by repeatedly asserting that Defendant HUD

may not have had knowledge of or any direct involvement in the

rental increase. (July 25, 2023 Ptf. Obj. at 1) (“it may [be

the case that] the real estate department has no direct legal

responsibility”); (Id) (“I can withdraw the lawsuit against the

real estate department); (Aug. 4, 2023 Ptf. Obj. at 1) (“[i]f we

2 Throughout Plaintiff’s Objections, Plaintiff refers to Defendant HUD as the

“real estate department,” the “Ministry of Housing,” and the “Ministry of

Real Estate,” which may relate to translation issues. For the purposes of

this Memorandum and Order, the Court assumes all references to any of these

entities are meant to refer to Defendant HUD.

improperly listed the real estate department as the defendant,

the court could have given technical help.”)

As noted in the R&R, even construing Plaintiff’s

pleadings liberally, Plaintiff fails to point to any facts

supporting his conclusion that Defendant HUD was involved in or

responsible for the rental increase. See Drimal v. Tai, 786

F.3d 219, 223 (2d Cir. 2015) (“[c]ourts are not bound to accept

as true a legal conclusion couched as a factual allegation . . .

[the motion to dismiss standard] demands more than an unadorned,

the defendant-unlawfully-harmed-me accusation”) (internal

citations omitted).

Indeed, Plaintiff cannot provide any facts supporting

his assertion that Defendant HUD was involved in his rental

increase, either directly or indirectly, because Defendant HUD

“plays no role in determining plaintiff’s rent and [] since

2012, [the Queens B’nai B’rith Housing Development Fund Company,

Inc. (“HDFC”), not HUD,] has been exclusively responsible for

annually certifying plaintiff’s income and calculating

plaintiff’s rent[.]” (R&R at 9) (citing ECF No. 29-1, “Mot. to

Dismiss” at 8.) Under the “Section 202 Use Agreement, HDFC [not

Defendant HUD] promised to maintain BBH . . . [and] assumed

responsibility for determining the appropriate rent for each

tenant, working with tenants to certify their income . . . and

collect[] rent.” (R&R at 3 – 4) (citing ECF No. 29-2, “Gioia

Decl.” ¶¶ 3 – 8; ECF No. 29-3, Gioia Decl. Ex. A, Section 202

Use Agreement.)3

Dismissal is appropriate where “it appears beyond

doubt that the plaintiff can prove no set of facts which would

entitle him [] to relief.” Chambers v. Time Warner, Inc., 282

F.3d 147, 152 (2d Cir. 2002) (citing Sweet v. Sheahan, 235 F.3d

80, 83 (2d Cir. 2000)). In light of the fact that non-party

HDFC, not Defendant HUD, is solely responsible for calculating

and collecting Plaintiff’s rent, the fact that Plaintiff was

asked to sign an income verification form bearing the HUD seal

does not support Plaintiff’s conclusion that Defendant HUD was

responsible for, or otherwise involved in, the rental increase.

Plaintiff has not shown that his injury “result[ed] directly [or

indirectly] from the defendant’s actions[.]” Bronx Household of

Faith v. Board of Educ. of City of New York, 492 F.3d 89, 111

(2d Cir. 2007) (citing United States v. Richardson, 418 U.S.

166, 179 – 80 (1974)). The Court, therefore, finds that

Plaintiff has failed to demonstrate that his rental increase was

even “possibly fairly traceable” to Defendant HUD’s direct or

indirect actions. Hoeffner v. D’Amato, 605 F. Supp. 3d 467, 476

3 “In deciding a Rule 12(b)(1) motion, the court may also rely on evidence

outside the complaint.” Cortlandt Street Recovery Cop. V. Hellas

Telecommunications, S.a.r.l., 790 F.3d 411, 417 (2d Cir. 2015) (internal

citations omitted). The Court, therefore, considers the declaration of Louis

J. Gioia, and the attached exhibits, which were submitted in support of

Defendant HUD’s motion to dismiss, because they shed light on the process by

which Plaintiff’s rent is calculated and collected.

(2d Cir. 2022). Where Plaintiff’s injury is “the result of the

independent action of some third party not before this Court—in

this case, HDFC,” causation is lacking and Article III standing

cannot be established. (R&R at 9) (internal citations omitted).

iii. Redressability

With respect to redressability, on de novo review, the

Court agrees with Magistrate Judge Bloom’s conclusion that

Plaintiff fails to establish that “the relief requested, would

in principle, redress the alleged injury.” (R&R at 8 – 9)

(internal citations omitted). Plaintiff “request[s] [that] the

court according to the statutory provisions, [issue a] judgment

[setting Plaintiff’s rent] according to [his] income 1/3 charge

rent[.]” (Compl. at 8.) Because Defendant HUD has “no role in

determining [P]laintiff’s rent,” (R&R at 9) (citing Mot. to

Dismiss at 8) the relief Plaintiff seeks, a decrease in his

monthly rent, cannot be afforded to him by a decision of this

Court against Defendant HUD. See Lujan v. Defenders of

Wildlife, 504 U.S. 555, 571 (1992) (“redress of the only injury

in fact respondents complain of requires action . . . by [non-

parties] and any relief the District Court could have provided

in this suit . . . was not likely to produce that action.”)

Plaintiff fails to establish redressability and, accordingly,

“[t]here is no standing.” Id.

In reviewing, de novo, the parties’ submissions,

Plaintiff’s Objections, Defendant HUD’s Response, and the R&R,

the Court agrees with Magistrate Judge Bloom’s finding that

Plaintiff fails to “allege any conduct by HUD that could be []

traceable to plaintiff’s alleged injury,” and further fails to

allege that “the injury will likely be redressed by a favorable

decision” from this Court. (R&R at 8 - 9.) Plaintiff is not

entitled to “try the case,” (Aug. 2, 2023 Ptf. Obj at 3)

precisely because of this finding that he lacks standing.

Plaintiff’s claims do not “meet the standing requirement of

Article III,” and his claims must, therefore, be dismissed for

lack of subject matter jurisdiction. (R&R at 9.)

B. Sovereign Immunity

Although a court “need not [] determine[]” or address

other grounds for dismissal if the court finds that it lacks

subject matter jurisdiction, Magistrate Judge Bloom also found

that Plaintiff failed “to demonstrate that HUD waived its

immunity as a sovereign entity.” (R&R at 10) (“[e]ven if

plaintiff had demonstrated standing . . . plaintiff fails to

identify any [] statutory basis for a waiver of HUD’s sovereign

immunity [and] HUD cannot waive immunity through its actions

unless expressly authorized by Congress.”)

In challenging the alleged finding within the R&R that

“‘the court has no power to sue the government’” as “too broad,

too huge and too profound,” (Aug. 2, 2023 Ptf Obj. at 2)

Plaintiff presumably references Magistrate Judge Bloom’s legally

sound conclusion that “‘the United States may not be sued

without its consent’” and that “[a] waiver of sovereign immunity

. . . ‘must be unequivocally expressed’ in the statue’s text” in

order to demonstrate the requisite consent. (R&R at 10.)

Accordingly, the Court liberally construes Plaintiff’s objection

to Magistrate Judge Bloom’s conclusion that Plaintiff failed to

articulate a sovereign immunity waiver that would permit his

claims against Defendant HUD, and also reviews the section of

the R&R pertaining to sovereign immunity de novo.

First, Plaintiff is advised that federal courts are

not authorized to bring suit against any party, including the

government. The Court only has power to hear and adjudicate

“‘cases’ and ‘controversies’” brought by the parties. Bronx

Household of Faith v. Board of Educ. of City of New York, 492

F.3d 89, 110 (2d Cir. 2007). Plaintiff questions the purported

contradiction between the Court’s ability to “accept[] a case”

and inability to “try the case” or “hear[] [the same] case.”

(Aug. 2, 2023 Ptf. Obj. at 3.) However “amorphous [the]

concept[]” of Article III standing [is],” Plaintiff “must allege

personal injury fairly traceable to the defendant’s allegedly

unlawful conduct [that is] likely to be redressed by the

requested relief,” and, in the case that the Defendant is the

United States government, there must be a “statute expressly

waiving the sovereign immunity of the United States [or else]

the court lacks subject matter jurisdiction to adjudicate the

claim.” Tucker v. U.S., No. 96-CV-6039, 1998 WL 708923, at *1

(E.D.N.Y. Jul. 6, 1998). The fact that Plaintiff was able to

file a Complaint and was instructed to effect service upon

Defendants does not mean the Court “accept[ed]” and has

jurisdiction to adjudicate his claims. (Aug. 2, 2023 Ptf. Obj.

at 3.) By the same token, the Court did not “suddenly lose[]

the power” to hear this case. (Id.) As noted by Magistrate

Judge Bloom, “[f]ailure of subject matter jurisdiction . . . may

be raised at any time by a party or by the court sua sponte. If

subject matter jurisdiction is lacking, the action must be

dismissed.” (R&R at 6) (citing Lyndonville Sav. Bank & Trust Co.

v. Lussier, 211 F.3d 697, 700 – 01 (2d Cir. 2000).

Second, Plaintiff’s objection that “the Ministry of

Housing actually participated in and manipulated this case” and

that he was “instructed [] to mail the complaint materials to

the Ministry of Justice and the Ministry of Procuratorate, which

triggered a campaign of word encirclement and suppression by the

Ministry of Housing,” (Aug. 2, 2023 Ptf. Obj at 3) are not

responsive to Magistrate Judge Bloom’s “particular findings”

regarding Defendant HUD’s sovereign immunity. McDonaugh v.

Astrue, 672 F. Supp. 2d 542, 54 (S.D.N.Y. 2009) (a party’s

“objections must be specific and clearly aimed at particular

findings in the magistrate judge’s proposal”) (internal

citations omitted). As discussed earlier, Plaintiff’s

allegations regarding Defendant HUD’s involvement in

effectuating his rental increase, directly or indirectly, do not

meet the causation element of the Article III standing

requirement, much less demonstrate an “unequivocally express”

waiver of sovereign immunity within “[any] statute’s text.”

(R&R at 11) (citing United States v. White Mountain Apache

Tribe, 537 U.S. 465, 472 (2003)).

Plaintiff has not pointed to any statute evincing an

intent by Congress to waive Defendant HUD’s immunity from this

suit. None of the authorities that Plaintiff discusses in the

Complaint, in his opposition to Defendant’s motion to dismiss,

or in Plaintiff’s Objections to the R&R include any reference to

a waiver of sovereign immunity. A review of Section 202 of the

Housing Act of 1959, the Housing Equity Act, “Article 77”, (Aug.

4, 2023 Ptf Obj. at 2) the New York City Senior Citizen Rent

Increase Exemption program (“SCRIE”), and the New York State

Attorney General’s Office Guide to the Rights of Residential

Tenants reveals no explicit waiver of HUD’s sovereign immunity.

Additionally, “a waiver of sovereign immunity must be consented

to by Congress . . . in [a] statute’s text.” (R&R at 10 - 11)

(citing Dept’ of Army v. Blue Fox, Inc., 525 U.S. 255, 260

(1999)). The New York State Attorney General Office Guide and

the New York City SCRIE program, neither of which are statutes

authorized by Congress, cannot constitute a waiver of HUD’s

immunity. Plaintiff states that “after studying for a long

time, [he] came to the conclusion that [he has] no right to sue

the government.” (Aug. 2, 2023 Ptf. Obj. at 3.) As it relates

to Plaintiff’s claims and under the factual circumstances

alleged, Plaintiff is correct. Absent an explicit statutory

waiver of sovereign immunity, “the United States, as sovereign,

is immune from suit.” Cooke v. United States, 918 F.3d 77, 81

(2d Cir. 2019) (internal citations omitted). Plaintiff has

failed to point to any statute waiving Defendant HUD’s sovereign

immunity. Nor could he. No such statutory waiver applicable to

Plaintiff’s claims under the factual circumstances alleged

exists.

II. Plaintiff’s Claims Against Defendant Carlos

With respect to Defendant Carlos, Magistrate Judge

Bloom found that “plaintiff’s claims . . . [also] have no basis

in the law, and therefore plaintiff has no standing to assert

his claims against Carlos[.]” (R&R at 13.) Plaintiff failed to

“point to any statute by which Congress intended to confer

standing to bring his individual claims . . . [and] [e]ven

construing the complaint liberally, the Court cannot find any

federal statutory basis for plaintiff’s claims against Carlos.”

(R&R at 14.)

Plaintiff alleges that “Marrero pretends to be a

government department, dresses himself up as a staff member of

the government department, and keeps claiming that he is a

senior employee of the government department.” (Aug. 2, 2023

Ptf. Obj. at 2.) Plaintiff further alleges that “Marrero

illegally took false administrative actions . . . and forced me

to fill in the contents such as ‘I must pay the rent for the

elderly at the market price’” and that “Marrero is ignorant . .

. [and] is always in a state of knowledge poverty[.]” (Id.)

Plaintiff’s allegations regarding Defendant Carlos’s

intelligence and his disregard for or violation of “national

policy” largely reflect the same allegations made in opposition

to Defendant’s motion to dismiss, which were reviewed and

rejected by Magistrate Judge Bloom in the R&R. See generally

(R&R at 13 – 15); see also Thomas v. Astrue, 674 F. Supp. 2d

507, 511 (S.D.N.Y. 2009) (“if [the opposing] party makes only

conclusory or general objections, or simply reiterates his

original arguments, the Court reviews the [R&R] only for clear

error . . . [because parties] are not to be afforded a second

bite at the apple”) (internal quotation marks and citations

omitted). To the extent Plaintiff raises new claims of criminal

perjury or otherwise, such claims are not permitted at this

stage, and are without merit. See Official Committee of

Unsecured Creditors of Exeter Holding, Ltd. V. Haltman, No. 13-

CV-5475, 2020 WL 2832192, at *2 (E.D.N.Y. Jun. 1, 2020) (“[e]ven

in a de novo review of a party’s specific objections, the court

will not consider ‘arguments, case law and/or evidentiary

material which could have been, but were not, presented to the

magistrate judge in the first instance’”) (internal citations

omitted); see also Lawyers’ Committee for 9/11 Inquiry, Inc. v.

Garland, 43 F.4th 276, 284 (2d Cir. 2022) (“initiat[ing] a

federal prosecution ‘is an executive function within the

exclusive prerogative of the Attorney General’ and the U.S.

Attorneys” such that a “private person[] cannot use [criminal

prosecution]” or an allegation of criminal perjury “for their

own purposes”) (internal citations omitted).

III. Plaintiff’s Remaining Claims

Plaintiff’s Objections, even liberally construed, do

not appear to oppose, or even reference, Magistrate Judge

Bloom’s findings in the R&R regarding his due process claims and

his claim of non bis in idem. Nor do Plaintiff’s Objections

reference Magistrate Judge Bloom’s finding that “plaintiff did

not properly serve defendants under Federal Rule of Civil

Procedure 4.” (R&R at 15, n. 19) Accordingly, the Court finds

that, in light of Magistrate Judge Bloom’s thorough and well-

reasoned conclusions and upon careful review, there is no clear

error in Magistrate Judge Bloom’s reasoning and conclusion that

neither Plaintiff’s due process rights, nor his constitutional

protection against double jeopardy, have been violated by the

Defendants, and that Plaintiff has failed to properly serve the

Defendants pursuant to Fed. R. Civ. P. 4.

CONCLUSION

For the forgoing reasons, the Court adopts and affirms

the well-reasoned and thorough R&R issued by Magistrate Judge

Bloom in its entirety. The Court orders that Defendant HUD’s

motion to dismiss the Complaint be GRANTED and that the

Complaint be DISMISSED, sua sponte, as to Defendant Carlos.

Although the Court is mindful that Plaintiff is pro se

and that “courts should freely give leave [to amend] when

justice so requires,” (Fed. R. Civ. P. 15(a)(2)) the Court

denies Plaintiff leave to amend because any amendment would be

futile, in light of the absence of subject matter jurisdiction.

Plaintiff’s Complaint is accordingly DISMISSED in its entirety.

The Clerk of Court is respectfully requested to enter

judgment in favor of the Defendants, as set forth in Magistrate

Judge Bloom’s R&R, and to close the case. Counsel for Defendant

HUD is respectfully requested to serve a copy of this Memorandum

and Order and the Judgement upon Plaintiff, and to file proof of

service within two (2) business days after the Clerk of Court

enters judgment.

SO ORDERED.

Dated: September 6, 2023 b =

Brooklyn, New York . f? —*~

os ewe

Th A. MATSUMOTO

United States District Judge

Eastern District of New York

20