PERVU v. CITY OF ONEONTA

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________________

MELANIA PERVU and NICOLAE PERVU,

Plaintiffs,

vs. 6:19-CV-00861

(MAD/TWD)

CITY OF ONEONTA

DAVID MERZIG,

Defendants.

____________________________________________

APPEARANCES: OF COUNSEL:

MELANIA PERVU

NICOLAE PERVU

26 Maple Street

Oneonta, New York 13820

Plaintiff pro se

JOHNSON & JOHNSON, LLC APRIL J. LAWS, ESQ.

648 Plank Road, Suite 204 COREY A. RUGGIERO, ESQ.

Clifton Park, New York 12020

Attorneys for Defendants

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On June 17, 2019, pro se plaintiffs Melania and Nicolae Pervu ("Plaintiffs") commenced

this action against Defendants David Merzig and the City of Oneonta ("Defendants"). See Dkt.

No. 1 at 1. In their complaint, Plaintiffs' only remotely cognizable allegation claimed that

Defendants had falsely classified Plaintiffs' apartment building, located at 195 Main Street,

Oneonta, New York 13820, as uninhabitable. See Dkt. No. 1 at 3. However, in their response to

Defendants' motion to dismiss, Plaintiffs asserted a litany of additional claims, despite not seeking

to amend their complaint. These claims include a 42 U.S.C. § 1983 violation for discrimination,

defamation, perjury, false statements, witness tampering, and "a very clear case of judicial

misconduct" during state court proceedings initiated by Defendants. See Dkt. No. 18 at 1-2.

Currently before the Court is Defendants' motion to dismiss pursuant to Federal Rules of

Procedure 8(a) and 12(b)(6). See generally Dkt. No. 16-1.

II. BACKGROUND

Plaintiffs have owned the property formerly known as the Oneonta Hotel since May 22,

2015 (the "Property"), and, until February 2019, ran it as an apartment building for low-income1

residents. See Dkt. No. 1 at 3; Dkt. No 16-1 at 11. The building did not have a Certificate of

Compliance, a prerequisite for rental occupancy, when Plaintiffs purchased it, as it was in some

state of disrepair. See Dkt. No. 16-1 at 7. Plaintiffs failed to remedy the violations preventing

them from obtaining this certificate, and on January 5, 2017, the City of Oneonta's Board of

Public Service (the "Board") deemed the building to be "unsafe" and "order[ed] immediate

repair." Dkt. No. 16-1 at 8. The Board also resolved that if Plaintiffs failed to make the repairs

within thirty days, it would issue an order to vacate the Property. Dkt. No. 16-1 at 8.

On September 14, 2017, more than nine months after the Board's resolutions, the City's

Code Enforcement Officer found multiple violations, including the following: "extensive water

damage (including active water leaks), inoperable carbon monoxide detectors, inoperable and/or

missing smoke detectors, incorrectly located smoke and/or carbon dioxide detectors and

inoperable lights and/or emergency signage." Dkt. No. 16-1 at 9. The Code Enforcement Officer

notified the Board, and on November 2, 2017, the Board moved to order that the building be

1 Information contained in the "Background" section of this Memorandum-Decision and

Order that is not otherwise taken from Plaintiffs' complaint, is taken from the publicly available

information from the ongoing litigation between the parties in Otsego County Supreme Court.

See Index No. EF2018-503.

2

vacated, but agreed not to take further action until after April 30, 2018, "so as to allow the low-

income tenants to find substitute housing" and to give Plaintiffs one last chance to remedy the

violations. Dkt. No. 16-1 at 9. On March 8, 2018, the City of Oneonta circulated a notice to

tenants and funding agencies declaring the building "to be unsafe for occupancy, due to significant

violations of the New York State Housing and Building Code" and advising tenants to vacate the

building "[u]nless the landlord brings the property into full building code compliance by April 30,

2018[.]" Dkt. No. 1 at 5.

On June 26, 2018, after Plaintiffs had continued to rent out the Property in violation of the

Board's May 15, 2018 order to vacate, Defendants filed a petition in Otsego County Supreme

Court pursuant to Sections 302, 303, and 309 of the New York State Multiple Dwelling Law. See

Dkt. No. 16-1 at 10. On August 14, 2018, Plaintiffs answered the petition and brought a

counterclaim against the City of Oneonta for violation of their due process rights under the Fifth

and Fourteenth Amendments. See Dkt. No. 16-1 at 10. On September 7, 2018, the Otsego

County Supreme Court held an evidentiary hearing, and three days later issued an order requiring

Plaintiffs to remedy all code violations by January 11, 2019, or "immediately be in Contempt of

the Court." Dkt. No. 16-1 at 10.

However, after another inspection on January 15, 2019, the City of Oneonta found

"numerous remaining Code violations such as extensive water damage and active leaks and

inoperable or missing smoke detectors, as well as numerous other health and safety violations."

Dkt. No. 16-1 at 11. Accordingly, in a February 5, 2019 hearing, the state court ordered all

tenants to vacate the building by February 7, 2019. See Dkt. No. 16-1 at 11.

According to Plaintiffs, "the city Oneonta attorney David Merzig and his wife Margie

Merzig, Chair of the City Board, decided to act against me, my family, and my tenants." Dkt. No.

3

1 at 3. Indeed, Plaintiffs allege that "[t]he city administration represented by David Merzig us[ed]

false statements, weaponized the code enforcement office and using false pretenses, asked the

court to evict by force my tenants[.]" Dkt. No. 1 at 3. Plaintiffs further allege that these acts,

among others mentioned in the complaint, constitute "discrimination against [their] [immigrant]

status, selective enforcement, defamation, and slander" and thus violate Section 1983. Dkt. No.

18 at 1. Specifically, Plaintiffs claim that Defendants used misleading photographs as evidence to

obtain the warrant of eviction, and that their purpose "has been nothing but discriminatory, as

their real interest was not [t]o work with us but to do everything in order to shut our property

down." Id. at 4.

In their motion to dismiss, Defendants argue that, even under the more liberal pleading

standard granted to pro se plaintiffs, the complaint fails to allege any cognizable injury under

Section 1983. See Dkt. No. 16-1 at 12-13. Further, Defendants assert that Plaintiffs' complaint

fails to include any factual statements or claims that would satisfy Rule 8's pleading standard.

See id. at 14 (quoting Fed. R. Civ. P. 8(a)(2)). Regardless of the complaint's sufficiency,

Defendants also argue that Plaintiffs claims are barred by collateral estoppel because "Plaintiffs

have a full and fair opportunity to litigate their counterclaims in the state court proceeding." Dkt.

No. 19 at 11. In short, Defendants claim that "Plaintiffs are merely unhappy with the rulings by

the state court judge [who] direct[ed] Plaintiffs to either repair the building or vacate the tenants."

Dkt. No. 16-1 at 15.

Currently before the Court is Defendants' motion to dismiss.

III. DISCUSSION

A. Standard of Review

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A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief. See Patane v.

Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation omitted). In considering the legal

sufficiency, a court must accept as true all well-pleaded facts in the pleading and draw all

reasonable inferences in the pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493

F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption of truth, however, does not

extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

Furthermore, "[w]hen deciding a motion to dismiss, the [c]ourt's review is ordinarily

limited to 'the facts as asserted within the four corners of the complaint, the documents attached to

the complaint as exhibits, and any documents incorporated in the complaint by reference.'"

Chamberlain v. City of White Plains, 986 F. Supp. 2d 363, 379 (S.D.N.Y. 2013) (quoting

McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007) and citing Faulkner v.

Beer, 463 F.3d 130, 134 (2d Cir. 2006)). Accordingly, "[w]hen matters outside the pleadings are

presented [in support of or] in response to a 12(b)(6) motion, a district court must either exclude

the additional material and decide the motion on the complaint alone or convert the motion to one

for summary judgment . . . and afford all parties the opportunity to present supporting material."

Friedl v. City of N.Y., 210 F.3d 79, 83 (2d Cir.2000) (alteration and internal quotation marks

omitted). A court may, under appropriate circumstances, "consider material outside of the

pleadings on a motion to dismiss." Chamberlain, 986 F. Supp. 2d at 379 (citing Weiss v. Inc. Vill.

of Sag Harbor, 762 F. Supp. 2d 560, 567 (E.D.N.Y. 2011)). If, for example, the record clearly

demonstrates "that no dispute exists regarding the authenticity or accuracy of the document[s],"

Faulkner, 463 F.3d at 134, then "a court may consider documents upon the terms and effect of

which the complaint relies heavily—that is, 'integral' documents—without converting a motion to

5

dismiss into a summary judgment motion," Chamberlain, 986 F. Supp. 2d at 379 (citing

Chambers, 282 F.3d at 153).

B. Abstention Under Younger v. Harris, 401 U.S. 37 (1971)

Federal courts have "no more right to decline the exercise of jurisdiction which is given,

than to usurp that which is not given." Cohens v. Virginia, 19 U.S. 264, 404 (1821). In Younger,

the Supreme Court recognized a limited exception to this general rule, holding that federal courts

should abstain from exercising jurisdiction over suits to enjoin pending state criminal

proceedings, absent a showing of bad faith, harassment, or a patently invalid state statute. See

Younger v. Harris, 401 U.S. 37, 53-54 (1971) (citation omitted).

Younger is not based on an Article III requirement, but instead is a "prudential limitation

on the court's exercise of jurisdiction grounded in equitable considerations of comity." Spargo v.

New York State Comm'n on Judicial Conduct, 351 F.3d 65, 74 (2d Cir. 2003) (citations omitted).

The rationale behind Younger was set forth by the Second Circuit in Spargo:

"Our Federalism" in its ideal form, as the Supreme Court explained

in Younger, strives towards "a system in which there is sensitivity to

the legitimate interests of both State and National Governments, and

in which the National Government, anxious though it may be to

vindicate and protect federal rights and federal interests, always

endeavors to do so in ways that will not unduly interfere with the

legitimate activities of the States." In recognition of this balance of

interests, Younger generally prohibits courts from "taking

jurisdiction over federal constitutional claims that involve or call

into question ongoing state proceedings" so as to avoid unnecessary

friction. Giving states "the first opportunity ... to correct their own

mistakes" when there is an ongoing state proceeding serves the vital

purpose of "reaffirm[ing] the competence of the state courts," and

acknowledging the dignity of states as co-equal sovereigns in our

federal system.

Spargo, 351 F.3d at 75 (internal quotations and citations omitted).

6

Although Younger itself dealt only with a pending criminal proceeding, the "Younger

abstention has been extended to civil proceedings, ... and state administrative proceedings[.]"

Cecos Int'l, Inc. v. Jorling, 895 F.2d 66, 70 (2d Cir. 1990) (internal citations omitted). As noted

by the Sixth Circuit, "Younger cases generally have a common procedural posture." Devlin v.

Kalm, 594 F.3d 893, 894 (6th Cir. 2010). "In the typical Younger case, the federal plaintiff is a

defendant in ongoing or threatened state court proceedings seeking to enjoin continuation of those

state proceedings. Moreover, the basis for the federal relief claimed is generally available to the

would-be federal plaintiff as a defense in the state proceedings." Id. at 894-95 (quoting Crawley

v. Hamilton Cty. Comm'rs, 744 F.2d 28, 30 (6th Cir. 1984)); see e.g., Pennzoil Co. v. Texaco, Inc.,

481 U.S. 1, 10-11 (1987) (federal plaintiff seeking to enjoin state plaintiff from enforcing a

judgment against him); Moore v. Sims, 442 U.S. 415, 423 (1979) (federal plaintiffs seeking to

enjoin state proceedings against them for child abuse).

To determine whether abstention is appropriate under Younger, district courts must

conduct a three-pronged inquiry: "[a]bstention is mandatory where: (1) 'there is an ongoing state

proceeding; (2) an important state interest is implicated; and (3) the plaintiff has an avenue open

for review of constitutional claims in the state court.'" Glatzer v. Barone, 394 Fed. Appx. 763,

764 (2d Cir. 2010) (quoting Liberty Mutual Ins. Co. v. Hurlbut, 585 F.3d 639, 647 (2d Cir.

2009)). The Supreme Court, however, has stressed that "[c]ircumstances fitting within the

Younger doctrine . . . are 'exceptional'" and include only "'state criminal prosecutions,' 'civil

enforcement proceedings,' and 'civil proceedings involving certain orders that are uniquely in

furtherance of the state courts' ability to perform their judicial functions.'" Sprint Commc'ns, Inc.

v. Jacobs, 571 U.S. 69, 73 (2013) (quoting New Orleans Public Service, Inc. v. Council of City of

New Orleans, 491 U.S. 350, 367-68 (1989)).

7

Furthermore, Second Circuit has recently emphasized that "[c]ivil contempt orders and

orders requiring the posting of bonds on appeal fall into"Younger's third category, i.e., "civil

proceedings involving certain orders uniquely in furtherance of the state courts' ability to perform

their judicial functions." Disability Rights New York v. New York, 916 F.3d 129, 133 (2d Cir.

2019) (citing NOPSI v. Council of City of New Orleans, 491 U.S. 350, 368 (1989)). Indeed, the

Supreme Court has found that "[t]he contempt power lies at the core of the administration of a

State's judicial system," and "stands in aid of the authority of the judicial system, so that its orders

and judgments are not rendered nugatory[,]" and, accordingly, that Younger requires abstention

where federal adjudication would interfere with such authority. Juidice v. Vail, 430 U.S. 327,

335, 336 n.12 (1977)); see also Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14 (1987) (finding that

Younger abstention is appropriate when pending state court proceedings involve enforcing orders

and judgments, as federal courts must exercise proper "respect for the ability of state courts to

resolve federal questions presented in state-court litigation"); Dudla v. P.M. Veglio LLC, No.

1:13-CV-0333, 2016 WL 1068120,*7 (N.D.N.Y. Mar. 15, 2016) (quoting Moore v. Sims, 442

U.S. 415, 423 (1979)) (noting that "the 'presence of such other vital concerns as enforcement of

contempt proceedings'" may justify abstention under Younger).

Similarly, "the 'vindication of important state policies such as safeguarding the fiscal

integrity of [public assistance] programs'" may also put a state court proceeding into Younger's

third category. Dudla v. P.M. Veglio LLC, No. 1:13-CV-0333, 2016 WL 1068120,*7 (N.D.N.Y.

Mar. 15, 2016) (quoting Moore v. Sims, 442 U.S. 415, 423 (1979)). Furthermore, "[i]n the

context of applying the Younger abstention doctrine, courts have found that 'the State has an

important interest in regulating zoning and land use.'" Jureli, LLC v. Schaefer, 53 F. Supp. 3d

8

552, 558 (E.D.N.Y. 2014) (quoting Thomas v. Venditto, 925 F. Supp. 2d 352, 357 (E.D.N.Y.

2013)) (other citation omitted).

1. First Prong

Under Younger's first prong, "[n]ot only must state proceedings be pending[,] . . . the

proceedings must have been initiated 'before any proceedings of substance on the merits have

taken place in the federal court.'" Liberty Mut. Ins. Co. v. Hurlbut, 585 F.3d 639, 647 (2d Cir.

2009) (quoting Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 238 (1984)). Additionally, "a party

... must exhaust his state appellate remedies before seeking relief in the District Court[.]" Glatzer

v. Barone, 394 Fed. Appx. 763, 765 (2d Cir. 2010) (quoting Huffman v. Pursue, Ltd., 420 U.S.

592, 608, 610 (1975)).

In the present matter, Plaintiffs appealed Judge Lambert's October 22, 2019, decision on

November 18, 2019, and their case before the Otsego County Supreme Court remains pending. As

"[a] state action is considered 'pending' for Younger purposes through the completion of the state

appeals process," to the extent that the proceedings in the present matter remain pending before

the state supreme court, they easily qualify as "ongoing" under Younger. See Choi v. Kim, 96-cv-

2086, 1997 WL 722708, *5 (E.D.N.Y. Sept. 25, 1997) aff'd, 166 F.3d 1201 (2d Cir. 1998) (citing

Huffman v. Pursue, Ltd., 420 U.S. 592, 594 (1975)); see also Glatzer v. Barone, 394 Fed. Appx.

763, 765 (2d Cir. 2010) (finding that Younger abstention was warranted when the plaintiff's "state

appellate proceedings were still pending").

Both parties' submissions indicate that their dispute continues before the state court.

While the state court issued a decision on the order to show cause on March 12, 2020, granting the

application and finding Plaintiffs in contempt, Plaintiff still has an appeal pending regarding the

state court's earlier decision and the supreme court matter remains open. Thus, as Plaintiffs face

9

pending proceedings before the state court, those proceedings would qualify as ongoing under

Younger regardless of whether Plaintiffs decide to file an appeal of the March 12, 2020 decision.

See Homere v. Inc. Vill. of Hempstead, 322 F. Supp. 3d 353, 367 (E.D.N.Y. 2018) (holding that

"to the extent there is a pending action against [p]laintiffs in the Village Court, Younger's first

requirement is satisfied").

2. Second Prong

Younger's second prong, requiring that "an important state interest is implicated in that

proceeding[,]" has also been met in the present matter. Diamond "D" Const. Corp. v. McGowan,

282 F.3d 191, 198 (2d Cir. 2002) (citing Grieve v. Tamerin, 269 F.3d 149, 152 (2d Cir. 2001)).

"[D]etermining whether a state interest is 'important' turns not on the narrow outcome of the

particular state court proceeding at hand, but rather on the importance of the generic proceedings

to the state." Homere v. Inc. Vill. of Hempstead, 322 F. Supp. 3d 353, 367 (E.D.N.Y. 2018)

(citing New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 365 (1989);

Grieve, 269 F.3d at 152).

"It has long been held that issues involving public welfare and safety fall squarely within a

state's plenary police powers and therefore implicate important state interests." Homere, 322 F.

Supp. 3d at 367 (citing Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996)). "In the context of

applying the Younger abstention doctrine, courts have found that 'the State has an important

interest in regulating zoning and land use.'" Jureli, LLC v. Schaefer, 53 F. Supp. 3d 552, 558

(E.D.N.Y. 2014) (quoting Thomas v. Venditto, 925 F. Supp. 2d 352, 357 (E.D.N.Y.2013))

(citation omitted); see also Novie v. Vill. of Montebello, No. 10-CV-9436 CS, 2012 WL 3542222,

*12 (S.D.N.Y. Aug. 16, 2012) (collecting cases) (finding that a "state proceeding implicates an

important state interest insofar as it concerns a town land use regulation akin to a zoning

10

requirement"). "[A] local building code is a policy manifestation of that uniquely local interest in

public health, wellness, safety, and comfort[;] ... any enforcement proceedings against [p]laintiffs

initiated for violations of the [v]illage building code satisfy Younger's second requirement."

Homere, 322 F. Supp. 3d at 368.

The genesis of the present matter lies in Plaintiffs' alleged failure to comply with the City

of Oneonta's housing and building codes, as well as the New York State Multiple Dwelling Law.

See Dkt. No. 16-1 at 10. In its October 22, 2019, decision and order, the Supreme Court found

that Plaintiffs' "proof failed to sufficiently rebut the evidence" of "significant outstanding

violations" of those codes. In fact, that court specifically found that "[t]hese violations were

serious and involve the health and safety of the public." Thus, "[i]t is clear the state interests

implicated in the State action, to wit, the ability of the Town and the State to regulate zoning and

land use, as well as the interest in protecting the health of its citizens and the environment, are

important enough to warrant abstention." Donangelo, Inc. v. Town of Northumberland, No. 03 CV

934, 2005 WL 681494, *2 (N.D.N.Y. Mar. 24, 2005) (collecting cases).

Lastly, the state court action, in addition to enforcing the important state interests

discussed above, "seeks to sanction the Plaintiff for an allegedly wrongful act of violating a court

order" and thus "involves an order uniquely in furtherance of the state court's ability to perform its

judicial functions." Jureli, 53 F. Supp. 3d at 560. Accordingly, the state court's order to show

cause "clearly constitutes a civil enforcement proceeding" that falls under Younger's second

category. Id.; see also Juidice v. Vail, 430 U.S. 327, 335 (1977) (finding that enforcing a state

court's contempt process "is surely an important interest" under Younger because that process is

how the state "vindicates the regular operation of its judicial system"); Dosiak v. Town of

Brookhaven, No. CV 16-6658, 2017 WL 7048912, *7 (E.D.N.Y. Nov. 27, 2017) ("Plaintiffs'

11

claim [challenging a state court's order to show cause] here clearly implicate both civil

enforcement proceedings and New York State's interest in enforcing the orders and judgments of

its courts. . . . Younger abstention is therefore appropriate").

Accordingly, the Court finds that Younger's second prong has been satisfied.

3. Third Prong

Younger's third and final prong requires that "the state proceeding afford[] the federal

plaintiff an adequate opportunity for judicial review of the federal constitutional claims."

Diamond "D" Const. Corp., 282 F.3d at 198 (citing Grieve v. Tamerin, 269 F.3d 149, 152 (2d Cir.

2001)). In the present matter, nothing in the record suggests that the state supreme court or

appellate division is unable to adequately adjudicate Plaintiffs' federal constitutional claims. See

Homere, 322 F. Supp. 3d at 368. In fact, Plaintiffs asserted their federal claims during the state

court proceeding. Specifically, in their answer in the state court proceeding, Plaintiffs brought

counter claims alleging violations of their due process rights under the Fifth and Fourteenth

Amendments.

Accordingly, the Court finds that the third prong under Younger has been satisfied. See

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14 (1987) (finding that "respect for the ability of state

courts to resolve federal questions presented in state-court litigation" mandates Younger

abstention where pending State proceedings involve enforcing orders and judgments); Spargo,

351 F.3d at 77 ("[I]n conducting the Younger inquiry, considerations of comity 'preclude[ ] any

presumption that the state courts will not safeguard federal constitutional rights'") (quoting

Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423, 431 (1982)).

4. Bad Faith Exceptions

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Even when a case has met all three of Younger's prongs, "federal relief is obtainable[,] ...

where the there is a showing of bad faith or harassment in bringing the or conducting the state

proceeding." Wandyful Stadium, Inc. v. Town of Hempstead, 959 F. Supp. 585, 591 (E.D.N.Y.

1997) (citing Younger, 401 U.S. at 50). "[F]or such a showing to be made, generally 'the party

bringing the state action must have no reasonable expectation of obtaining a favorable outcome.'"

Homere, 322 F. Supp. 3d at 368 (quoting Cullen v. Fliegner, 18 F.3d 96, 103 (2d Cir. 1994))

(citation omitted); see also Kugler, 421 U.S. at 126 n. 6 (noting that bad faith under Younger

"generally means a prosecution has been brought without a reasonable expectation of obtaining a

valid conviction"). Furthermore, "[a] pattern of harassment both before and after institution of the

state prosecution would be probative of the animus that attended the decision to prosecute."

Colonial First Properties, LLC v. Henrico Cty. Virginia, 166 F. Supp. 2d 1070, 1087 n.12 (E.D.

Va. 2001).

In the present matter, Plaintiffs have failed to show that Defendants brought the state

proceedings in bad faith, i.e., with "no reasonable expectation of obtaining a favorable outcome."

Cullen v. Fliegner, 18 F.3d 96, 103 (2d Cir. 1994)). Plaintiffs assert that Defendants acted in bad

faith prior to and throughout the state court proceedings. See Dkt. No. 1 at 3 (stating that

Defendants "never recognized [Plaintiffs'] arduous work" to improve the Property and used "false

statements, weaponized the code enforcement office and us[ed] false pretenses" to evict their

tenants). However, no facts in the record suggest that Defendants had "no reasonable expectation

of obtaining a favorable outcome" in the state proceedings. Cullen, 18 F.3d at 103. Nor does the

record contain sufficient evidence to find that Defendants harassed Plaintiffs in bringing the

proceedings. See Colonial First Properties, 166 F. Supp. 2d at 1089 (finding that the plaintiffs

failed to establish harassment in a police investigation showing no signs of "malice, use of illegal

13

arrest methods, high numbers of repeated arrests and raids[,] or evidence of a concerted effort to

put [the plaintiffs] out of business").

Plaintiffs appear to deny all code violations brought by Defendants. See Dkt. No. 18 at 4

(stating that a January, 2019, inspection had found a "[s]mall number of violations — cosmetic

ones, no hazardous [ones] were found, and corrections were done with pictures sent to my lawyers

... [who] checked everything"). Plaintiffs further allege that Defendants offered misleading

photographs to establish the code violations in the state court. See id. ("the code enforcement

officer ... [was] looking only in storage areas, places that are not for living, taking pictures to use

against us"). Lastly, Plaintiffs also attack the state court judgment for being "jurisdictionally

defective — thus ... not just void-able [sic], but Void, as in []never existed, as in []zero" and for

being "a pure punishment order ... meant from the beginning as a punishment order." However,

these "allegations [of bad faith and harassment] are too conclusory and barebones to serve as the

factual predicate for a plausible finding of bad faith." DeMartino, 167 F. Supp. 3d at 355-56.

Furthermore, Plaintiffs brought a number of the same claims during the state court proceedings,

which the state court rejected.

Accordingly, the Court finds that Plaintiffs have failed to demonstrate that the bad faith

exception to Younger abstention should apply. Therefore, the Court "must abstain from

exercising subject matter jurisdiction over" these claims. See Wilson v. Emond, 373 Fed. Appx.

98, 100 (2d Cir. 2010).

C. Rule 12(b)(6)

Even assuming that this action was not barred by Younger, the complaint is nevertheless

subject to dismissal.

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To survive a motion to dismiss, a party need only plead "a short and plain statement of

the claim," see Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft to 'sho[w] that the pleader is

entitled to relief.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted).

Under this standard, the pleading's "[f]actual allegations must be enough to raise a right of relief

above the speculative level," see id. at 555 (citation omitted), and present claims that are

"plausible on [their] face." Id. at 570. "The plausibility standard is not akin to a 'probability

requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully."

Iqbal, 556 U.S. at 678 (citation omitted). "Where a complaint pleads facts that are 'merely

consistent with' a defendant's liability, it 'stops short of the line between possibility and

plausibility of "entitlement to relief."'" Id. (quoting Twombly, 550 U.S. at 557). Ultimately,

"when the allegations in a complaint, however true, could not raise a claim of entitlement to

relief," Twombly, 550 U.S. at 558, or where a plaintiff has "not nudged [his] claims across the

line from conceivable to plausible, the[ ] complaint must be dismissed." Id. at 570. However, a

complaint filed by a pro se litigant should not be dismissed without granting leave to amend at

least once "when a liberal reading of the complaint gives any indication that a valid claim might

be stated." Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991) (citation omitted).

Additionally, "in a pro se case, the court must view the submissions by a more lenient

standard than that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289

F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972))

(citations omitted). The Second Circuit has directed that the court is obligated to "make

reasonable allowances to protect pro se litigants" from inadvertently forfeiting legal rights

merely because they lack a legal education. Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d

Cir. 1983)).

15

In the present matter, even affording Plaintiffs the special solicitude due to pro se

litigants, the complaint fails to plausibly state any cause of action. In the "complaint," Plaintiffs

complain that they are being charges fees by the City of Oneonta that they believe they have

already paid and that David Merzig and Margie Merzig "continue to destroy [their] business by

removing tenants." Dkt. No. 1 at 2. Further, they claim that federal agencies were instructed "by

David Merzig to stop payment and remove tenants from [their] property." Id. Plaintiffs then

mention the fact that they still have a case pending in Otsego County Supreme Court and that the

lawyers that they had previously retained in the state court litigation have since withdrawn. See

id. Nothing in the complaint even hints at what federal causes of action Plaintiffs are attempting

to assert.

Attached to the complaint are various exhibits that are likewise unhelpful. For example,

the first exhibit is a letter Plaintiff Melania Pervu sent to the Attorney General of the United States

asking for assistance with the issues underlying the state court litigation. See Dkt. No. 1 at 3.

Also attached is a scheduling order from the Otsego County Supreme Court and the various

March 8, 2018 eviction notices sent by the City of Oneonta Department of Law to both tenants

and social services agencies. See id. at 4-9.

As Defendants correctly contend, Plaintiffs have failed to plead any plausible cause of

action. Accordingly, the Court grants Defendants' motion to dismiss on this alternative ground.

D. Leave to Amend

"While pro se plaintiffs are generally given leave to amend a deficient complaint, a district

court may deny leave to amend when amendment would be futile." Hassan v. U.S. Dep't of

Veteran Affairs, 137 Fed. Appx. 418, 420 (2d Cir. 2005) (citing Dluhos v. Floating & Abandoned

Vessel, Known as "New York", 162 F.3d 63, 69–70 (2d Cir. 1998)). "Amendment of a complaint

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is futile where the proposed amended complaint would be unable to withstand a subsequent

motion to dismiss." Tatum v. Oberg, No. 08 Civ. 1251, 2009 WL 5066812, *2 (D. Conn. Dec. 18,

2009) (citing Ricciuti v. N.Y.C. Transit Auth. , 941 F.2d 119, 123 (2d Cir. 1991)).

In the present matter, there is no question that granting Plaintiffs leave to amend would be

an exercise in futility. Any amended complaint, even if it were to plausibly allege claims under

42 U'S.C. § 1983, it would nevertheless be subject to dismissal under Younger. Accordingly,

Plaintiffs’ complaint is dismissed with prejudice.

IV. CONCLUSION

After carefully the parties’ submissions and the applicable law, and for the reasons stated

herein, the Court hereby

ORDERS that Defendants' motion to dismiss is GRANTED; and the Court further

ORDERS that Plaintiffs’ complaint is DISMISSED with prejudice; and the Court further

ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close

this case; and the Court further

ORDERS that the Clerk of the Court shall serve the parties with a copy of this

Memorandum-Decision and Order in accordance with the Local Rules.

IT IS SO ORDERED. □□

Dated: April 2, 2020 Me HF ye Legals Cie

Albany, New York Mae A. D’ Agostino”

U.S. District Judge

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