# Walker v. City of Rochester

> District Court, W.D. New York · August 14, 2019

URL: https://www.frixlaw.com/law-library/cases/10361082

## Case

- **Court:** District Court, W.D. New York
- **Decided:** August 14, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10361082

## How later opinions describe it (automated extraction)

- holding that federal courts have no supervisory authority over state courts

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JEYZELL WALKER,
Plaintiff,
DECISION AND ORDER
-vs- No. 6:19-cv-06334(MAT)
CITY OF ROCHESTER, MICHAEL DAVIS,
MONROE COUNTY, MATTHEW BROWN, and
MUHAMMAD MOHAMED, Landlord,
Defendants.
I. Introduction
Proceeding pro se, Jeyzell Walker (“Walker”) instituted this
action by filing a Complaint (Docket No. 1) and Motion for Leave to
Proceed In Forma Pauperis (“IFP Motion”) (Docket No. 2) on May 6,
2019. The Court conducted an initial screening of the Complaint
pursuant to 28 U.S.C. § 1915(e)(2). On June 12, 2019, the Court
issued a Decision and Order (Docket No. 3) granting the IFP Motion
and dismissing the Complaint for lack of jurisdiction. Judgment was
entered in favor of defendants the City of Rochester (“the City”);
Monroe County (“the County”); Matthew Brown, Esq., a County
employee (“Attorney Brown”); Michael Davis, Esq., a City employee
(“Attorney Davis”); and Muhamed Mohamed (“Mohamed”), Walker’s
former landlord, on June 12, 2019 (Docket No. 4). On June 13, 2019,
Walker filed a Motion for Reconsideration with Exhibits (Docket No.
5) seeking reconsideration of the Court’s Decision and Order
-1-
dismissing the Complaint. Additional Exhibits (Docket No. 5-1) from
Walker were received by the Court on June 20, 2019. For the reasons
discussed below, the Court has re-screened the Complaint and finds
that it fails to state a claim upon which relief may be granted and
that amendment would be futile. Accordingly, the Court dismisses
the Complaint without leave to amend. Walker’s Motion for
Reconsideration is denied.
II. Summary of the Evidence Submitted by Walker
The Court first will summarize the information in the Exhibits
(Docket Nos. 5 & 5-1) submitted by Walker in order to give context
to the rather bare-bones allegations in the Complaint.
On February 5, 2018, Walker commenced an action in New York
State Supreme Court, Monroe County (“Monroe County Supreme Court”)
by filing a complaint (“State Court Complaint”) (Docket No. 5, pp.
30-31 of 721). Walker v. Monroe County, et al., Index No.
2018/00913 (Monroe Cty. Sup. Ct.). As defendants, Walker named the
City, the County, and her landlord, Mohamed.2

The State Court Complaint alleged that Walker entered into a
residential lease agreement for 449 Child Street (“the Property”)
with Mohamed in December 2016. According to Walker, the City issued

1
Citations to “p. of #” or “pp. of #” refer to the page numbers at the top
of the page which are automatically assigned by the Court’s electronic filing
system, CM/ECF.
2
Walker identified this individual in the State Court Complaint as “Muhammad
Muhammad a/k/a Mohamed Mohamed.”
-2-
a certificate of occupancy for the Property in November 2016, prior
to her execution of the lease. Walker moved into the Property with
her three children. While living there, she went to college and
studied to be a mechanic.
Walker asserted that after she moved into the Property, it
began to deteriorate and Mohamed failed to make necessary repairs.
In particular, Walker asserted that “the hot water tank went down
with furnace because of toxic of [sic] mess and backed up sewage
from main line[,]” causing her to have to evacuate the house for 24
hours. Docket No. 5, p. 30 of 72. Walker alleged that on December
4, 2017, she contacted the City about the Property, and a building
inspector, Christopher Frank (“Inspector Frank”), “came out a[nd]
stated the roots seen on foundation inside is the deterioration of
property” and further “stated he will be placing violation in the
city public record.” Docket No. 5, p. 28 of 72 (quotation omitted).
Walker alleged that she became sick with “sinusitis and a
respiratory infection” in September 2016, and again on September
11, 2017, as a result of a “large consumption of Mold in [her]
home.” Docket No. 5, p. 31 of 71. She “came into and [sic]

emergency 24 hour evacuation situation from the poor housing
hazarded situation with mold in the property and [she] was very
sick and went to the hospital on Sept, 11, 2016 and was diagnosed
with COPD and [she] didn’t understand why.” Docket No. 5-1, p. 12

-3-
of 36.3 She has had “medical treatment” including an “inhaler for
breathing and other medication for [her] coughing and back pains
for the situation[,]” which has “change[d] [her] career life and
will like to be compensations [sic] for all pain and suffering and
for housing conditions.” Id. Walker alleged that her respiratory
problems have caused her to be unable to work; she sought $3.7
million in damages. Id. Walker faulted the City because it had “not
applied force for [her] landlord to keep house up to code until the
reports of [her] conditions.” Docket No. 5, p. 31 of 71 (quotation
omitted). Walker accused Mohamed of breaching the lease agreement
for 2016-2017 and 2017-2018 by failing to make necessary repairs
and remedy the unsafe conditions at the Property. See id. The State
Court Complaint contained no allegations of wrongdoing regarding
the County.
The City filed a motion to dismiss the State Court Complaint
pursuant New York Civil Practice Law and Rules (“CPLR”) Article
3211, arguing that Walker had failed to state a cause of action for
negligence against it. See Docket No. 5, pp. 26-28 of 72. The
County also filed a CPLR 3211 motion to dismiss on the basis that

Walker failed to allege any facts for which the County would be
liable to her for the conditions at 449 Child Street. See Docket
3
Walker has submitted a letter dated August 16, 2018, from her primary care
physician, indicating that she has respiratory symptoms consistent with allergic
hypersensitivity likely due to environmental allergens (e.g., grasses, weeds,
and/or molds). The doctor stated that her symptoms are managed with a combination
of prescription and over-the-counter medications but return without the use of
these medications.
-4-
No. 5, pp. 34-35 of 72. In addition, the County asserted, Walker
failed to file a timely Notice of Claim, a prerequisite to suing
the County, and failed to file the State Court Complaint within the
applicable statute of limitations. Id.
On April 18, 2018, Walker sent a letter purporting to oppose
the motions to dismiss. In response, Monroe Supreme Court Justice
Evelyn Frazee sent a letter to Walker informing her that her letter
did not contain any information or statement addressing the
substance of the pending motions to dismiss, and therefore the
letter would not be considered to be in opposition to the motions.
Justice Frazee informed Walker that to oppose the motions, she need
to submit a notarized affidavit; if she did not do so, she would be
in default and the relief requested by the defendant may be
granted.
On April 26, 2018, Justice Frazee held a hearing on the
motions to dismiss. Walker appeared in court and opposed both
motions. Justice Frazee issued a ruling from the bench granting the
respective motions to dismiss filed by the City and the County.
Justice Frazee ordered that the State Court Complaint be dismissed

as to the City and the County only, but the claims against Walker’s
landlord were not dismissed. Justice Frazee issued a written order
on May 9, 2018, memorializing the oral ruling. See Docket No. 5,
pp. 18-19 of 72.
Walker filed a motion for an order settling the record on
-5-
appeal, which was granted by Justice Frazee on March 21, 2019. See
Docket No. 5, pp. 20-21 of 72. Walker then pursued an appeal to the
Appellate Division, Fourth Department, of New York State Supreme
Court (“Appellate Division”). See Walker v. County of Monroe, et
al., Docket No. CA 18-00974 (N.Y. App. Div. 4th Dep’t). Walker
sought and received an extension of time until February 28, 2019,
to perfect her appeal. Docket No. 5-1, p. 5 of 36.4 It appears
that Walker timely perfected her appeal. See Docket No. 5-1, pp. 1-
3 of 36.
Walker filed her Complaint in this Court on May 6, 2019.
III. Procedural Status
Although Walker’s motion is one for reconsideration, the Court
has decided to screen her Complaint anew, without deference to its
original Decision and Order. The Court is following this course for
two reasons. First, Walker is unrepresented. Second, Walker alleges
she received incorrect advice from a Clerk’s Office employee who
informed her that she did not need to submit evidence when she

initially filed her Complaint. According to Walker, she wanted to
submit her evidence (Docket Nos. 5 & 5-1) at the time she filed her
Complaint, but the Clerk’s Office employee stated that she did not
need to file these documents until later in the case. Walker
asserts that had she filed the evidence (Docket Nos. 5 & 5-1) along

4
The Court notes that much of Docket No. 5-1 is duplicative of Docket No.
5 or not factual in nature, i.e., copies of legal research conducted by Walker.
-6-
with her Complaint, then the Court would not have dismissed the
Complaint for lack of jurisdiction. Accordingly, the Court is
treating Docket Nos. 5 and 5-1 as Exhibits to the Complaint (Docket
No. 1) for purposes of re-screening the Complaint.
IV. Standard of Review
Because the Court has granted Walker leave to proceed in forma
pauperis, the screening requirements of 28 U.S.C. §$ 1915(e) apply.
Section 1915(e) (2) provides in pertinent part that
[n]otwithstanding any filing fee, or any portion thereof,
that may have been paid, the court shall dismiss the case
at any time if the court determines that--
(A) the allegation of poverty is untrue; or
(B) the action or appeal--
(1) is frivolous or malicious;
(ii) fails to state a claim on which relief
may be granted; or
(iii) seeks monetary relief against a
defendant who is immune from such relief.
28 U.S.C. § 1915(e) (2) (emphases supplied).
The Supreme Court has held that “[a] document filed pro se is
‘to be liberally construed[.]’” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). [A]
pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers[.]’”
Id. (quoting Estelle, 429 U.S. at 106; internal quotation marks
omitted in original; citing Fed. Rule Civ. Proc. 8(f) (‘All
pleadings shall be so construed as to do substantial justice”)). At
this stage of the proceeding, the Court must “assum[e] all
well-pleaded, nonconclusory factual allegations in the complaint to
-7]-

be true.” Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 124
(2d Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct.
1937, 1949–50 (2009); other citation omitted)).
Notwithstanding a plaintiff’s unrepresented status, a
complaint must plead sufficient 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).
The plausibility standard requires “more than a sheer possibility
that a defendant has acted unlawfully.” Id. “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.”’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 557 (brackets omitted in original).
While “detailed factual allegations” are not required, a pleading

that contains merely “unadorned, the-defendant-unlawfully-harmed-
me-accusation[s]” will not suffice. Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555; other citation omitted).
V. Summary of the Allegations in the Complaint
For her First Claim, Walker alleges as follows:
I been filing brief for a year and tired of the Appellant
excuses I’ve seen Evelyn Frazee Judge Feb. 28 2019 The
Court provided copies of order to be filed with brief and
Eveyln Frazee stated all she need was orders filed and
-8-
she would be ready to proceed I [illegible] for extention
[sic] and the Appellant keep send excuse after excuse
about [illegible] text on what size it is
Docket No. 1, p. 4 of 5. Based on the context, the Court presumes
that by “Appellant,” Walker is referring to the Appellate Division.
When asked to state what she wishes the Court to do, Walker
wrote as follows:
I want the case to be presentented [sic] and Evidence
from Evelyn Frazee on case evidence to be looked and
justice of fairness for my [sic] and children.
Docket No. 1, p. 4 of 5.
For her Second Claim, Walker referenced the City and County
inspections in 2017 finding mold and other violations, her FOIL
request to the County in 2017, and her sickness in September 2017.
See id. When asked what she wishes the Court to do, she stated that
she would like to resolve her case either by having Justice Frazee
or this Court by making a “decision on true facts.” Under “summary
of relief sought,” Walker stated that she wants $3.7 million each
from the City and the County, and $250,000 from Mohamed. She stated
she would “settle for $175,000,” but it is unclear if that is with
regard to all defendants or just Mohamed.
VI. Screening of the Complaint
A. The Complaint’s First Claim
As best as the Court can discern, Walker is frustrated with
the length of time it is taking for her State appeal to be heard by
the Appellate Division. It appears that Walker wants this Court to
-9-
do something to prompt a faster resolution by the Appellate
Division of her appeal.
In essence, Walker is requesting that the Court issue what
amounts to a writ of mandamus.5 Federal mandamus is available only
to “compel an officer or employee of the United States or any
agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C.
§ 1361. “Federal courts have no jurisdiction to issue writs of
mandamus directing a state court and its judicial officers in the
performance of their duties where mandamus is the only relief
sought.” Bailey v. Silberman, 226 F. App’x 922, 924 (11th Cir.
2007) (summary order) (“Because the defendants named in Bailey’s
complaint are not officers or employees of the United States or any
agency thereof, the district court lacked jurisdiction to grant the
only relief Bailey requested. Accordingly, Bailey’s complaint was
properly dismissed as frivolous.”) (citing Moye v. Clerk, DeKalb
County Superior Court, 474 F.2d 1275, 1276 (5th Cir. 1973) (“[A]
federal court lacks the general power to issue writs of mandamus to
direct state courts and their judicial officers in the performance
of their duties where mandamus is the only relief sought.”);

footnote omitted)); see also Davis v. Lansing, 851 F.2d 72, 74 (2d
Cir. 1988) (holding that “federal courts have no general power to
5
Mandamus is “[a] writ issued by a court to compel performance of a
particular act by a lower court or a court or a governmental body, usu. to
correct a prior action or failure to act.” BLACK’S LAW DICTIONARY, 1046 (Bryan A.
Garner ed., 9th ed. 2009).
-10-
compel action by state officials”); Gurley v. Superior Ct. of
Mecklenburg Cty., 411 F.2d 586, 587-88 & nn. 2-4 (4th Cir. 1969)
(holding that federal courts have no supervisory authority over
state courts).
Walker has provided no factual or legal basis for this Court
to compel action by the Appellate Division, an intermediate
appellate court of New York State. As the Court originally held, it
lacks jurisdiction to compel the Appellate Division to rule on
Walker’s Appeal. The First Claim in the Complaint fails to state a
claim because Walker is not entitled to the relief she seeks as a
matter of law. see Bell Vv. South Carolina, No.
2:17-CV-2176-TMC-MGB, 2017 WL 6767385, at *4 (D.S.C. Aug. 24, 2017)
(dismissing petitioner’s motion for a writ of mandamus seeks to
force the South Carolina Supreme Court to issue him a writ of
certiorari because motion fails to state a claim for relief as a
matter of law), report and recommendation adopted, No. CV
2:17-2176-TMC, 2018 WL 263817 (D.S.C. Jan. 2, 2018), aff’d, 724 F.
App’x 204 (4th Cir. 2018), reh’g denied (July 3, 2018), cert.
denied, No. 18-8679, 2019 WL 2331340 (U.S. June 3, 2019), reh’g
denied, (U.S. Aug. 5, 2019).
B. The Complaint’s Second Claim
1. The Complaint Fails to State a Plausible Claim
Against the County and the City
Title 42 U.S.C., Section 1983 (“S$ 1983”) imposes liability on,
and creates a federal right of action against, anyone who, under
-11-

color of state law, deprives a person “of any rights, privileges,
or immunities secured by the [federal] Constitution and [federal]
laws.” Blessing v. Freestone, 520 U.S. 329, 340 (1997) (quoting 42
U.S.C. § 1983). “To state a claim under § 1983, a plaintiff must
allege that (1) the challenged conduct was attributable at least in
part to a person who was acting under color of state law and (2)
the conduct deprived the plaintiff of a right guaranteed under the
Constitution of the United States.” Snider v. Dylag, 188 F.3d 51,
53 (2d Cir. 1999) (citing Dwares v. City of New York, 985 F.2d 94,
98 (2d Cir. 1993).
“Municipalities may be sued directly under § 1983 for
constitutional deprivations inflicted upon private individuals
pursuant to governmental custom, policy, ordinance, regulation, or
decision.” Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983)
(citing Monell v. Dep’t of Soc. Servs. of City of New York, 436
U.S. 658 (1978)) A municipality such as the City or the County
“cannot be held liable solely because it employs a wrongdoer; in
other words, a municipality cannot be held liable under § 1983 on
a respondeat superior6 theory.” Monell, 436 U.S. at 691 (emphasis

in original). Rather, to state a § 1983 claim against a
municipality, a plaintiff must assert that the alleged violations
6
Respondeat superior is “[t]he doctrine holding an employer or principal
liable for the employee’s or agent’s wrongful acts committed within the scope of
the employment or agency.” BLACK’S LAW DICTIONARY, 1426 (Bryan A. Garner ed., 9th
ed. 2009).
-12-
were committed pursuant to an official policy, practice or custom.
Monell, 436 U.S. at 694. “To hold a city liable under § 1983 for
the unconstitutional actions of its employees, a plaintiff is
required to plead and prove three elements: (1) an official policy
or custom that (2) causes the plaintiff to be subjected to (3) a
denial of a constitutional right.” Batista, 702 F.3d at 397. The
existence of a municipal policy or custom may be pleaded in several
ways:
A plaintiff may allege (1) the existence of a formal
policy which is officially endorsed by the municipality;
(2) actions taken or decisions made by municipal
officials with final decision making authority, which
caused the alleged violation of plaintiff’s civil rights;
(3) a practice so persistent and widespread that it
constitutes a custom of which constructive knowledge can
be implied on the part of policymaking officials; or (4)
a failure by policy makers to properly train or supervise
their subordinates, amounting to deliberate indifference
to the rights of those who come in contact with municipal
employees.
Calicchio v. Sachem Cent. Sch. Dist., 185 F. Supp.3d 303, 311
(E.D.N.Y. 2016) (citations omitted).
a. Failure to Allege Denial of a Constitutional
Right
The Court begins with the third element—whether Walker has
plausibly alleged the denial of a constitutional right. See
Batista, 702 F.3d at 397.
The Court notes that the documents submitted as part of Docket
Nos. 5 and 5-1 confirm Walker’s allegations that there were
problematic housing conditions at 449 Child Street. At the same
-13-
time, they demonstrate that City and County officials were
responsive to Walker’s complaints. For instance, there is a
printout dated December 6, 2017, listing “Open Case Violations” at
449 Child Street, i.e., vegetation penetrating the walls from
outside; an infestation of mice and roaches in the interior of the
house, visually confirmed by City Inspector Frank; and leaking
pipes. Docket No. 5, p. 53 of 72. City Inspector Frank issued a
Notice and Order dated August 27, 2018, to Mohamed outlining the
existing code violations at 449 Child Street, including those
documented in December of 2017. See Docket No. 5, pp. 65-70 of 72.
The Notice stated that the failure to correct the potentially
hazardous violations within one day would result in the case being
immediately referred to the enforcement unit for issuance of an
appearance ticket. The Notice also stated that the building must be
vacated at once due to the violations listed. In addition to the
vermin infestation and leaking pipes found in December 2017, on
August 24, 2018, the toilets in both bathrooms were found to be
plugged beyond the ability to be used. Docket No. 5, p. 66 of 72.
There is also a Housing Complaint Investigation Form (Docket

No. 5, p. 64 of 72) completed by Public Health Sanitarian Trainee
Laura Sorenson (“County Inspector Sorenson”) reflecting phone calls
with Walker and visits to 449 Child Street by County Inspector
Sorenson. On December 1, 2017, County Inspector Sorenson found a
large pile of mold in wet sand near the sewer cap that had a smell
-14-
around it. County Inspector Sorenson sent a violation letter to
Mohamed. The last entry on the Investigation Form indicates that
when County Inspector Sorenson followed up with Walker on December
18, 2017, Walker said that “they had done repairs on the wall of
the basement and cleaned up the mold,” but then said “they should
be doing the work on the wall repair.” Id. Accordingly, County
Inspector Sorenson remained “unclear as to whether or not there is
repair work being done on the wall or not” and told Walker she
would get in touch with Mohamed to ask him. Id.
In any event, even assuming that the County and the City may
be held liable on a theory of respondeat superior, which it may
not, none of Walker’s allegations plausibly suggest any wrongdoing
on the part of County Inspector Sorenson (who is not named as a
defendant). Likewise, none of Walker’s allegations plausibly
suggest any wrongdoing on the part of City Inspector Frank (who
also is not named as a defendant) in connection with his site visit
and documentation of various code violations at 449 Child Street in
December 2017. As noted above, City Inspector Frank ultimately
issued a “Notice and Order” dated August 27, 2018, to Mohamed, the

landlord, stating the Property was uninhabitable due to the
unremedied housing code violations. See Docket No. 5, pp. 65-70 of
72. The Notice and Order warned that the failure to correct the
violations within one day of the date of issue “will result in this
case being immediately referred to the enforcement unit for the
-15-
issuance of an appearance ticket.” Docket No. 5, p. 67 of 72
(capital letters omitted). Thus, far from suggesting that there was
a failure by City and County policy makers to properly train or
supervise their subordinates, the documents submitted by Walker
demonstrate that the City and County employees whom Walker
encountered were responsive to her complaints and took appropriate
actions to attempt to force Mohamed to remedy the housing
violations. There is no suggestion of “deliberate indifference” to
Walker’s rights by any municipal employees. Accordingly, the Court
finds that Walker has not plausibly alleged the “constitutional
deprivation” element of a Monell claim.
b. Failure to Allege Causation
The only allegation in the Complaint against the City is that
it issued a certificate of occupancy for 449 Child Street prior to
her moving into the Property in December 2016. Docket No. 1, p. 4
of 5. Walker claims that the City should not have issued the
certificate of occupancy because on December 4, 2017, the City

documented housing code violations including the presence of mold
in the basement. Id.
Walker’s factual allegations undermine the causation element
of a Monell claim because there are no factual allegations implying
that the mold existed at the time the certificate of occupancy was
issued for 449 Child Street in 2016. In fact, the documentation
Walker has submitted suggests that the mold occurred after she
-16-
moved into the Property, around the time her basement flooded. In
her notes documenting her initial inspection on December 1, 2017,
County Inspector Sorenson found a “large pile of mold in wet sand
near the sewer cap,” and “[t]he complainant [i.e., Walker]
explained that her basement had flooded a while ago, which made
them replace the furnace.”7 Docket No. 5, p. 64 of 72. County
Inspector Sorenson said she would follow up with the landlord. Id.
c. Failure to Allege a Municipal Policy
Finallyr, Walker has not alleged any non-conclusory facts that
the City or the County had an official policy or unofficial custom,
pattern, or practice to deny citizens their constitutional rights
in regard to housing. Walker’s belief that the City’s issuance of
a certificate of occupancy was erroneous is based on pure
speculation. Even assuming that the individual who issued the
certificate of occupancy misapplied a City ordinance there is no
basis for inferring that this amounted to a denial of Walker’s
Federal constitutional rights. Finally, a single incident alleged

in a complaint generally does not suffice to show a municipal
policy. Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123
(2d Cir. 1991) (citing City of Canton v. Harris, 489 U.S. 378, 387
(1989); other citation omitted).
7
Walker also has submitted an invoice from Ryan Plumbing and Heating
Service indicating that repair work was done on her furnace (the control board
was replaced) on October 6, 2017. Docket No. 5, p. 10 of 72. This suggests that
the flooding, which led to the mold, occurred somewhere in the October 2017 time-
frame.
-17-
2. The Complaint Fails to State a Plausible Claim
Against Attorney Davis and Attorney Brown
Based on the documents submitted by Walker, Attorney Davis and
Attorney Brown appeared on behalf of the City and the County,
respectively, in connection with Walker’s negligence action in
Monroe County Supreme Court.
“‘[P]ersonal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of
damages under § 1983.’” Back v. Hastings On Hudson Union Free Sch.
Dist., 365 F.3d 107, 122 (2d Cir. 2004) (quoting McKinnon v.
Patterson, 568 F.2d 930, 934 (2d Cir. 1977)). However, the
Complaint contains no allegations against either Attorney Davis or
Attorney Brown plausibly suggesting their personal involvement in
the housing-related complaints by Walker. This failure to plead
personal involvement warrants dismissal of Attorney Davis and
Attorney Brown as defendants as a matter of law.
Furthermore, absolute immunity “protect[s] officials from
personal liability for the performance of certain discretionary
acts[,]” Spear v. Town of W. Hartford, 954 F.2d 63, 66 (2d Cir.
1992), including “government attorneys defending civil suits,” id.
(citing Barrett v. United States, 798 F.2d 565, 572 (2d Cir. 1986)
(State assistant Attorney General who was representing state in
Court of Claims action brought against it for negligence of state
institution enjoyed absolute immunity with respect to later suit
against him for allegedly covering up involvement of Federal
-18-
Government in the actions giving rise to the initial suit)). Here,
Attorney Davis’s and Attorney Brown’s only connection with Walker
is the fact they defended the City and the County, respectively, in
the civil action commenced by Walker in Monroe County Supreme
Court. Accordingly, they are absolutely immune from suit under §
1983, see Barrett, 798 F.2d at 572, and must be dismissed as
defendants on this basis.
3. The Court Cannot Compel the Monroe County Supreme
Court to Rule on Plaintiff’s Claim
To the extent that Walker demands that Monroe County Supreme
Court Justice Frazee hold a trial and award damages on her claims
raised in the State Court Complaint, the Court is without
jurisdiction to order such a remedy. Under the Rooker–Feldman8
doctrine, a Federal district court has no authority to review final
judgments of a State court in judicial proceedings, except for
general constitutional challenges and reviews pursuant to an
application for a writ of habeas corpus. See Kropelnicki v. Siegel,
290 F.3d 118, 128 (2d Cir. 2002) (“The doctrine reflects the
principle set forth in 28 U.S.C. § 1257 that the Supreme Court is
the only federal court that has jurisdiction to review state court
judgments, unless otherwise provided by Congress.”) (internal
citations omitted); Phifer v. City of New York, 289 F.3d 49, 55 (2d

8
The doctrine’s name is derived from Rooker v. Fidelity Trust Co., 263 U.S.
413, 415–16 (1923), and District of Columbia Court of Appeals v. Feldman, 460
U.S. 462, 482–86 (1983).
-19-
Cir.2002). The Supreme Court further held that Federal district
courts are without subject matter jurisdiction “over challenges to
state court decisions in particular cases arising out of judicial
proceedings even if those challenges allege that the state court’s
action was unconstitutional.” Feldman, 460 U.S. at 486.
Thus, under Rooker-Feldman, this Court lacks subject matter
jurisdiction over Walker’s challenge to the decision of the Monroe
County Supreme Court granting the City’s and the County’s motions
to dismiss the State Court Complaint. To challenge such a
determination, Walker must appeal it through the State appellate
courts—which she presently is doing—before she may seek Federal
review, not in a Federal district court, but in the United States
Supreme Court. See 28 U.S.C. § 1257(a). To the extent Walker
challenges the decision of the Monroe County Supreme Court, such a
claim is dismissed for lack of subject matter jurisdiction. See,
e.g., Kropelnicki, 290 F.3d at 128 (plaintiff-debtor’s claim that
misrepresentations allegedly made to her lawyer by creditor’s
attorney and attorney’s office manager violated the Fair Debt
Collection Practices Act was inextricably intertwined with the

State court judgment in the underlying debt collection action and,
as such, was barred from review by the Federal court of appeals by
the Rooker–Feldman doctrine); Conway v. Garvey, No. 03 CIV. 7958
(DC), 2003 WL 22510384, at *4 (S.D.N.Y. Nov. 5, 2003) (holding that
district court did not have subject matter jurisdiction over
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parent’s § 1983 challenge to decision of State family court,
directing plaintiff to attend counseling or lose his unsupervised
visitation sessions with his child; to challenge constitutionality
of such determination, parent was required to appeal it through
State appellate courts before seeking Federal review, not in
Federal district court, but in United States Supreme Court), aff’d,
117 F. App’x 792 (2d Cir. 2004) (summary order) (“We affirm for
substantially the reasons stated by the district court . . . .”).
C. Leave to Amend Is Inappropriate
It is “within the sound discretion of the district court to
grant or deny leave to amend.” McCarthy v. Dunn & Bradstreet Corp.,
482 F.3d 184, 200 (2d Cir. 2007). “Leave to amend, though liberally
granted, may properly be denied for: ‘undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of allowance of the amendment,
futility of amendment, etc.’” Ruotolo v. City of N.Y., 514 F.3d

184, 191 (2d Cir. 2008) (quoting Foman v. Davis, 371 U.S. 178, 182
(1962)).
Here, the Court has considered Walker’s Complaint as well as
all of the proof that she intends to offer at trial in support of
her claims. After carefully reviewing all of the documentation
Walker has submitted, the Court is compelled to conclude that her
claims have no arguable basis in law or fact. The reason for the
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Court’s dismissal of the Complaint is substantive; it is clear
that better pleading would not lead to a different result. See
Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011) (district court
did not err in dismissing claim with prejudice in absence of any
indication plaintiff could or would provide additional allegations
leading to different result); Cuoco v. Moritsugu, 222 F.3d 99, 112
(2d Cir. 2000) (leave to amend should be denied as futile where
problem with complaint is substantive and better pleading would not
cure it). Therefore, because any amendment would be futile, the
Court declines to grant Walker leave to amend.
D. The Court Declines to Exercise Supplemental Jurisdiction
Over Any Potential State Law Claims Against Mohamed and
the Other Defendants
Walker has not specifically asserted any State law based
claims in her Complaint. However, the Court notes that she has
asserted negligence claims against all of the named defendants in
State court. It appears that her negligence claim against Mohamed
is still pending in Monroe County Supreme Court, and she has
appealed Justice Frazee’s dismissal of her negligence claims
against the City and the County.
Under 28 U.S.C. § 1367(c)(3), it is well settled that “[i]n
general, where the federal claims are dismissed before trial, the
state claims should be dismissed as well.” Marcus v. AT & T Corp.,
138 F.3d 46, 57 (2d Cir. 1998). Here, the Court is dismissing the
Complaint with prejudice; thus, there are no longer any claims over
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which this Court could potentially exercise original jurisdiction.
Furthermore, “judicial economy will be disserved” by this Court
assuming jurisdiction over any State law claims given that there is
a “well-advanced” pending parallel State court action involving the
same factual circumstances. Brooklyn Heights Ass’n v. Nat'l Park
Serv., 818 F. Supp.2d 564, 571 (E.D.N.Y. 2011) (citation omitted).
Accordingly, to the extent that Walker asserts any State law claims
in this Complaint, the Court will decline to exercise supplemental
jurisdiction over them. Such claims are dismissed without
prejudice. Id. at 572 (citing Benjamin v. New York City Dept. of
Health, 144 F. App’x 140, 143 (2d Cir. 2005) (unpublished opn.)).
VII. Conclusion
For the reasons discussed above, upon re-screening of the
Complaint (Docket No. 1) and the Exhibits (Docket Nos. 5 & 5-1)
pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court finds that it
fails to state a claim upon which relief may be granted and that
amendment would be futile. Accordingly, the Court dismisses the

Complaint with prejudice, without leave to amend. Walker’s Motion
for Reconsideration (Docket No. 5) is denied with prejudice.
SO ORDERED
s/ Michael A. Telesca

HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED: August 14, 2019
Rochester, New York
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10361082. Public record. Not legal advice.