Wynn v. Cassara

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

JAMES |. WYNN, SR.,

Plaintiff, 22-CV-6353 (CJS)

Vs

GERDA B. CASSARA, HOUSING

ADVOCACY SERVICE, INC.,

MARK GREISBERGER, PROVIDENCE

HOUSING DEVELOPMENT CORP.,

ABAR ABSTRACT, SUSAN J. MICHEL

ESQ., ROCHESTER GAS and

ELECTRIC,

Defendants.

INTRODUCTION

On August 22, 2022, James I. Wynn, Sr. (“Plaintiff”), proceeding pro se, filed four lawsuits,

including the subject action, and paid the filing fee. The four actions were: 22-CV-6352 CJS,

Wynn v. Larimer, et al.; 22-CV-6353 CJS, Wynn v. Cassara, ef al.; 22-CV-6354 CJS, Wynn v.

Cassara, et al.; and 22-CV-6355, Wynn v. Larimer, et al.’ All four actions allege that Plaintiff

was cheated out of piece of real estate by a large group of racist conspirators. 2 This Court has

already dismissed two of the aforementioned four actions, 22-CV-6352 CJS, Wynn v. Larimer

and 22-CV-6355 CJS Wynn v Larimer, for failure to state a claim. Additionally, by Decision and

Order filed contemporaneously herewith, the Court is dismissing case number 22-CV-6354 CJS,

also for failure to state a claim. Now before the Court are two motions to dismiss the instant

1 A few days after that, Plaintiff filed a fifth action, 22-CV-6362, Wynn v. Warren et al.

2 In reality, however, Plaintiff lost the property through foreclosure after he failed to pay his property taxes and

then failed to abide by a Chapter 13 Bankruptcy Plan.See, generally, Wynn v. Phillips Lytle LLP, et al,, 22-CV-

6352 (CJS), Decision and Order dated February 22, 2023.

Complaint for failure to state a claim. (ECF Nos. 6 & 7). For the reasons discussed below, one

of those motions (ECF No. 8) is granted, the other (ECF No. 7) is denied as moot, Plaintiff's

remaining claims are dismissed sua sponte as frivolous and vexatious, and Plaintiff is enjoined

from filing further actions concerning this same subject matter without the Court's permission.

BACKGROUND

The lawsuits filed by Plaintiff on August 22, 2022, all allege that Plaintiff was the victim of

an “illegal foreclosure.” The Complaint in this action (ECF No. 1) refers to an attached “Verified

Complaint,” but there is no such attachment. However, Plaintiff filed a “Verified Complaint’ in

related action 22-CV-6355 CJS, ECF No. 1-1, which appears to be the attachment to which the

Complaint refers.4 The gist of the pleading is that Plaintiff lost ownership of certain real estate

through foreclosure following a failed attempt to avoid foreclosure through bankruptcy, and that

Plaintiff blames the events leading to the foreclosure sale on a racist conspiracy involving

lenders, attorneys, state and federal judges, the Chapter 13 Trustee, the foreclosure referee, the

purchaser at the foreclosure sale, the Mayor of Rochester, and the County Executive of Monroe

County.

3 Complaint at p. 1. Plaintiff filed the action using a 7-page form complaint for filing civil actions in federal court.

When asked to state the basis for federal jurisdiction, Plaintiff wrote: “Plaintiff and Defendant reside in Monroe

County.” When asked to state the “nature of the suit,” Plaintiff wrote: “Illegal foreclosure of property at 3840 Lave

Ave. [illegible] order of foreclosure and sale had expired also Plaintiff was still under the protection of the Chapter

7 bankruptcy stay statutes. Scam was also meant to force Plaintiff into bankruptcy to avoid summary order by the

Court of Appeals for the Second Circuit mandate dated November 22, 2019. This was racist + criminal.”

4 In ruling upon the subject motions to dismiss, the Court has considered the Complaint, the “Verified Complaint,”

and other documents of which the Court can take judicial notice, including Plaintiffs Bankruptcy Court records.

See, ¢.g., Chien v. Skystar Bio Pharm. Co., 623 F. Supp. 2d 255, 260 (D. Conn. 2009) (‘“[I]n ruling on a motion to

dismiss, a court is not limited to the factual allegations of the complaint but may consider “documents attached to

the complaint as exhibits or incorporated in it by reference, to matters of which judicial notice may be taken or to

documents either in plaintiffs’ possession or of which plaintiffs had knowledge and relied on in bringing suit.”

Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993). Therefore, in considering a res judicata defense,

a court may judicially notice prior pleadings, orders, judgments, and other items appearing in the court records of

prior litigation that are related to the case before the Court. See, ¢.g., Ambase, 326 F.3d at 72-73; Hackett v.

Storey, 2003 WL 23100328, at *2 (D.Conn.2003)"), aff'd, 378 F. App'x 109 (2d Cir. 2010).

More specifically, this action primarily pertains to 3840 Lake Avenue in Rochester, New

which was formerly owned by Plaintiff, but was sold at a foreclosure sale on April 11,

2022. In or about 2013, American Tax Funding, which had purchased $55,000.00 in tax liens

on the property from Monroe County, commenced an action in New York State Supreme Court,

Monroe County, to foreclose the liens.

Seeking to avoid the foreclosure, Plaintiff considered filing a Chapter 13 Bankruptcy

action and retained an attorney, William Rieth (“Rieth”), for that purpose. Alternatively, Plaintiff

also considered taking out a loan to pay the debt, and mentioned to Rieth that he had applied

for a loan from a particular lender. However, Plaintiff was not granted the loan, and he suspects

that Rieth persuaded the lender to deny the loan application. In that regard, Plaintiff, who is

black, speculates that Rieth was motivated by racial animus and a desire to obtain Plaintiff's

property for himself.

Nevertheless, Plaintiff continued to retain Rieth to file a Chapter 13 bankruptcy petition.

However, according to the Complaint, Rieth “intentionally sabotaged [Plaintiff's] bankruptcy plan

so [that he] would lose everything that [he] owned.” Meanwhile, Bankruptcy Court records

indicate that Plaintiff's Chapter 13 bankruptcy failed because he did not comply with the court-

ordered plan. More specifically, for reasons that are unclear Plaintiff insisted that the Bankruptcy

Court ought to allow him to sell the property free and clear of the existing liens. In any event,

Rieth withdrew from representing Plaintiff. Plaintiff reportedly attempted to retain other attorneys

5 This was a rental property, not Plaintiff's primary residence.

6 Plaintiff's oft-repeated mantra throughout his submissions is, in sum and substance, that everything done to him

is because he is “82 years old and an African American male.” Verified Compl. at [ 1. However, Plaintiff has not

proffered a shred of evidence that Rieth actually influenced the lender, or that he was interested in obtaining

Plaintiff's property.

to represent him in the bankruptcy matter, but was unable to do so, which he also attributes to

a conspiracy against him.

The Honorable Paul Warren, U.S. Bankruptcy Judge, eventually converted Plaintiffs

Chapter 13 to a Chapter 7 liquidation, due to Plaintiff's failure to comply with the Chapter 13

Plan. Notably, when doing so, Judge Warren pointed out, in a Decision and Order dated July

27, 2017, that Plaintiff's persistent allegations of a racist conspiracy against him, which are the

same allegations asserted in this action, were “delusional” and “lacking a foundation rooted in

reality”:

The Court has had numerous opportunities to assess Mr. Wynn's cognitive skills

and his overall ability to understand the bankruptcy process. He has, since just

days after filing this case, persisted in his claim that he is the target of a racially

motivated conspiracy, designed to deprive him of his real estate. That view — which

appears to the Court to be delusional—likely caused the withdrawal of two

experienced attorneys who attempted to represent Mr. Wynn in this case. Both

attorneys also noted that Mr. Wynn refused to take their legal advice. Even a

cursory reading of Mr. Wynn’s many submissions demonstrates that Mr. Wynn's

beliefs are so firmly held, but lacking in a foundation rooted in reality, that it is highly

unlikely he could ever change his focus and move this case forward.

ECF No. 23-9 at pp. 15-16. Plaintiff appealed aspects of the bankruptcy proceeding to the

Honorable David Larimer, Senior U.S. District Judge, who affirmed Judge Warren’s rulings.

Plaintiff also filed numerous unsuccessful appeals to the United States Court of Appeals for the

Second Circuit.

Eventually New York State Supreme Court, Monroe County, issued a Judgment of

Foreclosure and Sale for 3840 Lake Avenue. In April 2022, the court-appointed foreclosure

referee conducted the public sale, and Mark Updegraff (“Updegraff’) purchased the property.

Updegraff's business entity, Ward Redux, was represented by attorney Susan Michel (“Michel”),

though Michel denies that she was involved in the purchase of 3840 Lake Avenue.

On August 22, 2022, Plaintiff filed the subject action proceeding pro se, suing a subset of

the larger group of persons connected to the bankruptcy and foreclosure proceedings. More

specifically, the named defendants are Michel, Gerda Cassara (“Cassara’), Housing Advocacy

Service, Inc. (‘Housing Advocacy Service”), Mark Greisberger (“Greisberger’), Providence

Housing Development Corp. (“Providence”), Abar Abstract Corp. (“Abar”), and Rochester Gas

and Electric (“RG&E”).

The Complaint alleges that Michel was “attorney for Mark Updefraff [(aka Ward Redux

LLC)],” who purchased 3840 Lake Avenue at the foreclosure sale; that Cassara is a former

mortgage holder who “illegally foreclosed” on Plaintiff's property; that Housing Advocacy Service

is “paying rent to illegal property owner”; that Greisberger is the Executive Director of Providence

and is “paying rent [to] illegal owner”; that Abar “fil[ed] false documents for illegal property”; and

that RG&E supplies gas and electric to the current owner of the property.

The Complaint baldly alleges a wide-ranging, racially-based conspiracy against Plaintiff,

beginning with Rieth’s alleged attempt to sabotage Plaintiff, and followed by Judges Warren and

Larimer’s alleged attempts during the bankruptcy proceedings “to cover up for the biased

discriminating [by] William Rieth” and permit the foreclosure action to proceed.’ The Complaint

alleges that Plaintiff should have been allowed to sell the property and avoid the foreclosure, but

Judges Warren and Larimer “refused to allow [him] to sell the properties because it would expose

the racist thing that William Rieth had done.” The Complaint further baldly asserts that the other

Defendants were active participants in the conspiracy. The Complaint offers no facts

whatsoever to support the naked assertion that the foreclosure resulted from a racist conspiracy.

7 See, Plaintiff's Chapter 7 proceeding, /n re Wynn, 13-20304, W.D.N.Y.

On October 18, 2022, Greisberger and Providence filed an Answer with Counterclaim,

ECF No. 4. The counterclaim, titled “Frivolous Claim,” asserts that Plaintiffs claims against

Greisberger and Providence “lack any reasonable basis in law or fact” and have caused

Greisberger and Providence to incur “substantial legal costs in defendant against Plaintiff's

baseless complaint.”

On October 20, 2022, Michel filed a motion (ECF No. 6) to dismiss the Complaint as

“factually and legally frivolous.” Michel further argues that the Court should impose a filing

injunction on Plaintiff and award Michel legal fees incurred in defending “the instant frivolous

litigation.”

On November 8, 2022, Updegraff filed a motion (ECF No. 7) to dismiss the Complaint

pursuant to Fed. R. Civ. P. 12(b)(6). Updegraff contends that Plaintiff's claims allege civil rights

violations under 42 U.S.C. § 1983,® and that Updegraff cannot be liable thereunder since he is

a private citizen who never acted under color of state law. More generally, Updegraff contends

that Plaintiff's factual assertions about the foreclosure being the result of a racist conspiracy are

not only entirely speculative, but also frivolous and demonstrably false, since Plaintiff admittedly

had failed to pay the property taxes on the subject parcel.®

8 See, e.g., ECF No. 7-1 at p. 3 (“Plaintiff's claims appear to sound as claims made under the Due Process and

Equal Protection Clauses of the Fourteenth Amendment in as much as Plaintiff is asserting that the was deprived

of the Property without due process of law because of his race.”) (The reader is advised that the page numbers

assigned by the ECF case-filing system may not correspond to the page numbers in the original document).

9 See, e.g., ECF No. 7-1 at p. 11 (“Plaintiff fails to assert any facts supporting his constitutional claims against

Updegraff. Critically, aside from vague and conclusory statements, Plaintiff asserts that Updegraff deprived him of

his civil rights, due process and Constitutional rights, when Updegraff purchased the

Property at the Foreclosure Sale. Although Plaintiff alleges a form of conspiracy between Updegraff and the other

defendants, he offers no evidence describing the details of such a conspiracy."); see also, id, at pp. 14-15 (“Here,

Plaintiff's claims are devoid of any rational basis for belief, and are the product of Plaintiff's delusions and fantasy,

leaving no reason to liberally construe and interpret Plaintiff's claims as valid claims against Updegraff. Therefore,

the Complaint should be dismissed with prejudice.”).

On December 2, 2022, Plaintiff filed an application that was docketed as a Motion for

Miscellaneous Relief, ECF No. 22, requesting, among other things, a 60-day extension of time

to retain counsel, and permission “to sue for legal fees for counsel and out of pocket expenses.”

On December 16, 2022, the Court issued an order (ECF No. 25) granting Plaintiff's

application for miscellaneous relief (ECF No. 22) in part, by directing that Plaintiff could have

until February 13, 2023, to respond to the pending motions to dismiss. However, Plaintiff never

responded to Defendants’ motions, leaving them unopposed."®

DISCUSSION

Plaintiff's Pro Se Status

Since Petitioner is proceeding pro se, the Court must construe his submissions liberally,

“to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d

Cir.1994).

Standards Applicable to Motions Under Rule 12(b)(6)

The movants seek dismissal of the Complaint pursuant to, inter alia, Fed. R. Civ. P.

12(b)(6) and the standards for such an application are clear:

To survive a motion to dismiss, a complaint must plead “enough facts to state a

claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible

“when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

Progressive Credit Union v. City of New York, 889 F.3d 40, 48 (2d Cir. May 1, 2018).

In its review, the Court is entitled to consider facts alleged in the complaint and

documents attached to it or incorporated in it by reference, documents “integral” to

the complaint and relied upon in it, and facts of which judicial notice may properly

10 The Court has heard nothing from Plaintiff concerning this action since his last submission herein on December

2, 2022, more than five months ago.

be taken under Rule 201 of the Federal Rules of Evidence.

Heckman v. Town of Hempstead, 568 F. App’x 41, 43 (2d Cir. Jun. 3, 2014) (citations and

internal quotation marks omitted).

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need

detailed factual allegations, a plaintiff's obligation to provide the grounds of his

entitlement to relief requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do. Factual allegations must

be enough to raise a right to relief above the speculative level, on the assumption

that all the allegations in the complaint are true (even if doubtful in fact).

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007);

see also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) ("To

survive dismissal, the plaintiff must provide the grounds upon which his claim rests through

factual allegations sufficient ‘to raise a right to relief above the speculative level.’”) (quoting Bell

Atl. Corp. v. Twombly) (footnote omitted).

When applying this “plausibility standard,” the Court is guided by “two working principles”:

First, although a court must accept as true all of the allegations contained in a

complaint, that tenet is inapplicable to legal conclusions, and threadbare recitals

of the elements of a cause of action, supported by mere conclusory statements,

do not suffice. Second, only a complaint that states a plausible claim for relief

survives a motion to dismiss, and determining whether a complaint states a

plausible claim for relief will be a context-specific task that requires the reviewing

court to draw on its judicial experience and common sense.

Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (citations and internal quotation marks omitted).

the well-pleaded facts do not permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged—but it has not shown—that the pleader is entitled to

relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 1950 (2009) (citation omitted); see

also, id. at 556 U.S. at 678 (‘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. 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.”) (citations and internal quotation

marks omitted.)

“IA|s Iqbal makes clear, a plausible claim must come before discovery, not the other way

around.” Angiulo v. Cty. of Westchester, No. 11-CV-7823 CS, 2012 WL 5278523, at *3 (S.D.N.Y.

Oct. 25, 2012) (citation omitted); see also, McBeth v. Porges, 171 F. Supp.3d 216, 236 (S.D.N.Y.

2016) (Observing that pursuant to /qbals pleading standard, “the Federal Rules of Civil

Procedure do ‘not unlock the doors of discovery for a plaintiff armed with nothing more than

conclusions or speculation.”) (quoting /qbal ); see also, In re Myovant Scis. Ltd. Section 16(b)

Litig., 513 F. Supp. 3d 365, 373 (S.D.N.Y. 2021) (‘The plaintiffs claim that discovery of the

relevant disclosure schedule may establish the portion of the purchase price allocated to Movant

shares. ... But “it is only by taking care to require allegations that reach the level suggesting

[a plausible claim] that we can hope to avoid the potentially enormous expense of discovery in

cases with no reasonably founded hope that the [discovery] process will reveal relevant

evidence.” Twombly, 550 U.S. at 559, 127 S.Ct. 1955. Because their unsupported speculation

does not amount to a reasonable foundation, the plaintiffs cannot avoid dismissal by claiming

that discovery will reveal a basis for their claim.”).

It is well settled that “Complaints containing “only conclusory, vague, or general

allegations that the defendants engaged in a conspiracy fail to state a claim.” Eldars v. State

Univ. of New York at Albany, No. 20-2693, 2021 WL 4699221, at *3 (2d Cir. Oct. 8, 2021)

(quoting Ciambriello v. County of Nassau, 292 F.3d 307, 325 (2d Cir. 2002)); see also, Brady v.

IGS Realty Co. L.P., No. 20-3512, 2021 WL 4302737, at *2 (2d Cir. Sept. 22, 2021) (“Brady's

complaint .. . vaguely references a “civil conspiracy” without any facts supporting a meeting of

the minds or alleging discriminatory animus. His allegations of an effort by a state-court justice

and both parties’ attorneys to undermine his litigation do not state a claim for relief that is

‘plausible on its face.’ Twombly, 550 U.S. at 570, 127 S.Ct. 1955.”).

The Complaint Fails to Plausibly State Any Actionable Claim or

Wrongdoing by Any Defendant

Liberally construing Plaintiffs Complaint, it appears Plaintiff is attempting to plead a

conspiracy to violate his civil rights under 42 U.S.C. § 1985(3). “[AJn action will lie under §

1985(3) when a plaintiff is injured by a private conspiracy to interfere with his constitutional rights,

so long as there is ‘some racial, or perhaps otherwise class-based, invidiously discriminatory

animus behind the conspirators’ action.” Colombrito v. Kelly, 764 F.2d 122, 130 (2d Cir. 1985)

(quoting Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798 (1971)). However,

Plaintiff fails to state an actionable claim under § 1985(3).

As a preliminary matter, the Court notes that Updegraff is not named as a defendant in

Plaintiff's Complaint in this action, though he is named as a defendant in other actions filed by

this Plaintiff. Despite that, and for reasons that are unclear to the Court, Updegraff is listed as a

defendant in this action on the Court’s electronic docket, and he filed a motion to dismiss in this

action, ECF No. 7. The Complaint clearly does not state any actionable claim against Updegraff.

However, under the circumstances just described, rather than adding to the confusion by

granting Updegraff's motion, the Court instead denies Updegraff's motion as moot and directs

the Clerk of the Court to terminate Updegraff as a party to this action.

As for Michel’s motion to dismiss, she asserts, in pertinent part, that, the Complaint fails

to plausibly allege any claim against her:

[T]he Complaint is devoid of any allegations of fact which could give rise to an

actionable claim against Defendant Michel. Even in its most favorable light,

Plaintiffs Complaint merely alleges that she is the retained attorney for Ward

10

Redux, LLC, the bona fide purchasers of his former Lake Avenue property. This

claim is patently insufficient to give rise to a cognizable civil action upon which

relief could be granted.

ECF No. 6-10 at p. 5. The Court agrees. Moreover, to the extent Plaintiff is attempting to assert

that Michel somehow participated in the alleged conspiracy against him, the allegations

regarding the conspiracy are themselves entirely implausible and frivolous. Consequently, the

Complaint is dismissed as against Michel.

Additionally, for those same reasons, the Court also sua sponte dismisses the claims

against the remaining non-moving defendants, since, again, the action is clearly frivolous and

vexatious.1 More specifically, the Complaint alleges that Greisberger, Providence, and Housing

Advocacy Service did nothing more than pay rent to the current owner of the property, which

fails to state any type of actionable claim. As for Cassara and Abar, the bald assertion that they

participated in the alleged scheme to wrongfully foreclose on Plaintiffs property is entirely

implausible. Indeed, Plaintiff's factual allegations concerning the alleged conspiracy to steal his

real estate are so utterly conclusory, speculative, paranoid and implausible as to be “clearly

baseless” and “frivolous.”'2. The bald contention that Rieth sabotaged Plaintiff's efforts to

salvage his property, and that the other defendants then conspired to cover up Rieth’s

11 Federal District Courts do not generally conduct sua sponte reviews of actions in which the plaintiff has paid the

filing fee. Nevertheless, “[a] district court has inherent authority to dismiss a frivolous complaint sua sponte even

when the plaintiff has paid the required filing fee. ... An action is considered “frivolous” when: (1) the factual

contentions are clearly baseless, such as when allegations are the product of delusion or fantasy, or (2) the claim

is based on an indisputably meritless legal theory.” Hariprasad v. New York, 722 F. App'x 102, (Mem)-103 (2d

Cir. May 17, 2018) (citations and internal quotation marks omitted). Moreover, here the Court gave Plaintiff an

opportunity to respond to the motions by Michel and Updegraff, and he did not do so.

12 In the Bankruptcy Court Decision and Order issued by Judge Warren on July 27, 2017, mentioned earlier,

Judge Warren observed that Plaintiff's “allegations of a conspiracy against him, while doubtlessly genuine in his

eyes, have no basis in fact, and no evidence is offered in support.” ECF No. 11-8 at p. 3; see also, id. at p. 5

(Referring to Plaintiff having alleged in the Bankruptcy Action “a grand conspiracy orchestrated to cause Mr.

Wynn to lose title to his real estate holdings.”); id. at p. 9 (Noting that Plaintiff had “doubled down on is assertion

that the entire case has been a calculated, racially motivated conspiracy to deprive him of title to his real estate

holdings.”).

11

wrongdoing, all supposedly because of a shared desire to racially discriminate against Plaintiff,

is exactly the type of implausible claim that should be dismissed under the Twombly standard.

See, e.g., Verified Complaint, filed in 22-CV-6355 CJS, ECF No. 1-2 at J] 12 (‘[T]he Bankruptcy

Docket and the District Court Docket will also tell you what happened in this case. Plaintiff

learned fast that this was not about taxes. It was more about racial discrimination and taking

away everything you could from this black elderly man.”); see also, id. at {] 16 (“Judge Warren

and Judge Larimer made sure they used their authority as a judge to not expose a racist

individual.”); J] 22 (“I felt Judge Larimer and Judge Warren had a lot to do with Plaintiff not getting

honest legal representation.”); {| 23 (“If | had to guess, | would say Judge Warren, William Rieth,

George Rieber and Judge Larimer had something to do with John Warner not representing me.”);

25 (“Gerda B. Cassara foreclose[ed] on my property at 3840 Lake Avenue. ... Only Judge

Larimer and Judge Warren could get the Court and City of Rochester and others to falsify their

records to go along with a criminal act such as this.”); [28 (“Plaintiff is not surprised that Gerda

Cassara would conspire with Judge Warren and Judge Larimer and pull an illegal criminal stunt

such as this because even though her mother was a wonderful lady, Gerda Cassara is a racist

biased discriminating back-stabbing lady.”); {| 30 (“The fact remains that even though Judge

Warren has signed the Chapter 7 Discharge on November 26, 2019, it was also meant to be a

trap for the Plaintiff to force Plaintiff back into bankruptcy... . How is Judge Warren being a

judge in bankruptcy court conspiring with others to violate the same statutes he swore to uphold?

This is like the fox guarding the hen house.”).

Leave to Amend is Denied

Plaintiff never responded to Defendants’ motions, and therefore he has not requested

leave to amend in the event the Court were to grant Defendants’ motions. Ordinarily, though, a

12

court will not dismiss a pro se complaint without giving the plaintiff a chance to amend. Here,

however, the Court declines to give Plaintiff an opportunity to amend since it would be futile to

do so for the reasons already discussed. Namely, Plaintiffs allegations are so conclusory, far-

fetched, and unreasonable, that no amount of additional pleading would result in an actionable

claim. See, Hariprasad v. New York, 722 F. App'x 102, 103 (2d Cir. May 17, 2018) (“Ordinarily,

the district court should not dismiss a pro se plaintiff's complaint without granting leave to amend

when a liberal reading of the complaint gives any indication that a valid claim might be stated.

But, here, amendment would be futile, as there is no indication that Hariprasad might plead a

valid claim[.]’); see also, Johnson v. United States, No. 06-CV-4182 (KMK), 2006 WL 1596803,

at *1 (S.D.N.Y. June 8, 2006) (“A plaintiff asserting fantastic or delusional claims should not, by

payment of a filing fee, obtain a license to consume limited judicial resources and put defendants

to effort and expense. Moreover, where a complaint is frivolous or based on delusional claims,

sua sponte dismissal cannot reasonably be said to deprive such a plaintiff of the opportunity of

clarifying his factual allegations so as to conform with the requirements of a valid legal cause of

action.”) (citations and internal quotation marks omitted). According, the dismissal is with

prejudice.

The Request by Michel for a Filing Sanction

Michel further contends that the Court should impose a filing sanction on Plaintiff. See,

ECF No. 6-10 at p. 5 (“[G]iven Plaintiff's established history of engaging in vexatious litigation,

the Court should impose an injunctive order precluding Plaintiff from proceeding with further

lawsuits against Defendant Michel without first obtaining leave from the Court.”).18. The Court

18 See also, id. at p. 16 (“A review of Plaintiff's filings reveals Plaintiff has a propensity to include the same

defendants over and over again in his frivolous actions, even when they have no nexus to the action before the

Court. In turn, one reviewing his current batch of legal filings will see individuals whose last action with Plaintiff

13

will grant that application since it is clear that Plaintiff is indeed a serial vexatious litigant who will

not be deterred by any lesser sanction.

In that regard, the Court notes that it analyzed this same issue in its recent decision

dismissing related case number 22-CV-6352 CJS, Wynn v. Phillips Lytle, et al., ECF No. 35, at

pp. 15-19. In that Decision and Order, which the Court incorporates herein by reference, the

Court ordered Plaintiff to show cause in writing, within thirty days, why the Court should not

impose a filing sanction on him, preventing him from filing any additional actions or claims

relating to matters raised in that lawsuit, which are the same matters raised in this lawsuit.

Plaintiff never responded to that Order, and, consequently, the Court will be entering an order

imposing such a filing sanction in that action, and will grant the same relief in this action.

Michel’s Request for Monetary Sanctions

Finally, Michel asks the Court to impose a monetary sanction on Plaintiff, requiring that

he “pay for her reasonable attorney’s fees in connection with the instant action, as the lawsuit

against her is patently frivolous and not made in good faith.”"5 In support of her request, Michel

accurately and comprehensively sets forth Plaintiffs history of repetitive and vexatious court

As for the procedural mechanism by which Michel maintains the Court should make

was decades ago. Defendant Michel has no reason to believe that, absent court intervention, Plaintiff will not stop

including her in future actions despite having no relevance to the matter before the Court.”).

14 The four actions filed on August 22, 2022, were just the latest salvo by Mr. Wynn, who, since 1992, has filed

seventeen civil actions in this Court, along with fifteen bankruptcy-related appeals, many of which involve the

same matters as the instant action. These figures are based on a search of the Court's CM/ECF electronic

docketing system performed on May 17, 2023. A similar search of the Second Circuit's CM/ECF system indicates

that Plaintiff is a party to thirty-two appeals filed since 2014.

18 ECF No. 6-10 at p. 4.

16 ECF No, 6-10 at pp. 5-7, 9; see also, id. at p. 9 (“All of these filings are collateral attacks on the foreclosure and

bankruptcy actions and rely upon the same arguments that have been heard ad nauseam for the last two

decades: Plaintiff is a black man who is the subject of a vast and ongoing conspiracy to deprive him of property, a

conspiracy that includes his own lawyers, the Monroe County Executive, the Rochester City Mayor, various

private business, various private individuals, and multiple State and Federal judges. In submitting the instant

round of lawsuits, Plaintiff has effectively named every person whose name has tangentially appeared in his legal

case over the last two decades as a defendant, including innocent third parties who legitimately have no nexus to

his legal situation, such as Defendant Michel.”).

14

such an award, she asserts that the Court has “discretionary power” to make such an award,

citing the Second Circuit’s decision in Colombrito v. Kelly, cited earlier. In Colombrito, the

Second Circuit discussed a district court’s “common law authority” to award attorney's fees to a

prevailing defendant, stating, in pertinent part:

We start with the premise that under the American Rule, absent statutory

authorization or an established contrary exception, each party bears its own

attorney's fees. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S.

240, 247, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141 (1975). The only pertinent

exception for present purposes is the court's inherent authority to award fees when

a party litigates frivolously or in bad faith. See id. at 258-59, 95 S.Ct. at 1622-23;

Gerena-Valentin v. Koch, 739 F.2d 755, 761 (2d Cir.1984); PRC Harris, Inc. v.

Boeing Co., 700 F.2d 894, 898 (2d Cir.), cert. denied, 464 U.S. 936, 104 S.Ct. 344,

78 L.Ed.2d 311 (1983). The bad faith exception permits an award upon a showing

that the claim is “entirely without color and has been asserted wantonly, for

purposes of harassment or delay, or for other improper reasons.” Browning

Debenture Holders' Committee v. DASA Corp., 560 F.2d 1078, 1088 (2d Cir.1977).

Neither meritlessness alone, see Gerena-Valentin v. Koch, supra, 739 F.2d at 761;

PRC Harris, Inc. v. Boeing Co., supra, 700 F.2d at 898, nor improper motives

alone, see Nemeroff v. Abelson, 620 F.2d 339, 348 (2d Cir.1980), will suffice.

Colombrito v. Kelly, 764 F.2d at 133.

Significantly, this “bad faith exception” allows for an award of attorney's fees against even

a pro se plaintiff. See, Sassower v. Field, 973 F.2d 75, 80-81 (2d Cir. 1992) (‘The Supreme

Court has made clear that a district court has inherent authority to sanction parties appearing

before it for acting in bad faith, vexatiously, wantonly, or for oppressive reasons.”) (affirming

award of attorney's fees against pro se plaintiffs pursuant to the district court’s inherent

authority); see also, Dattner v. Conagra Foods, Inc., 458 F.3d 98, 104 (2d Cir. 2006) (Describing

Sassower v. Field as “holding that district court may, pursuant to its inherent authority, impose

attorney's fees on unsuccessful pro se litigant if litigant acts in bad faith, vexatiously, wantonly,

or for oppressive reasons.”).

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Here, the Court finds it to be a close call whether to award fees against Plaintiff. In that

regard, as already discussed at length, Plaintiff's claims against Michel, and in general, are

definitely “without color.” Additionally, the Court is concerned about what Michel refers to as a

veiled threat against her by Plaintiff.'7 The question in the Court’s mind, however, is whether

Plaintiff acted with the requisite bad faith, meaning whether he acted “wantonly, for purposes of

harassment or delay, or for other improper reasons.” The Court has never met the Plaintiff.

However, Bankruptcy Judge Warren is apparently quite familiar with Plaintiff, and the Court finds

his description of Plaintiff instructive. More specifically, as set forth earlier, Judge Warren, who

indicated that he had “had numerous opportunities to assess Mr. Wynn's cognitive skills and his

overall ability to understand the bankruptcy process,” described Plaintiff's belief in the alleged

“racially motivated conspiracy” as being both “delusional” and “so firmly held” that it was unlikely

to ever change. See, ECF No. 23-9 at pp. 15-16. (“He has . . . persisted in his claim that he is

the target of a racially motivated conspiracy, designed to deprive him of his real estate. That

view — which appears to the Court to be delusional—likely caused the withdrawal of two

experienced attorneys who attempted to represent Mr. Wynn in this case. ... Mr. Wynn’s beliefs

are so firmly held, but lacking in a foundation rooted in reality, that it is highly unlikely he could

ever change his focus and move this case forward.”). The Court credits Judge Warren's

assessment, and consequently finds that it would not be appropriate at this time to require

17 See, ECF No. 6-10 at pp. 14-15 (“Plaintiffs application has transcended civil discourse and debate and entered

into a realm of veiled threats of violence if he does not get what he demands. In Plaintiff's Complaint, he asserts

that Defendant Michel and her client non-party “Mark Updegraff AKA Ward Redux LLC must have plenty of

nerves and no brains.” (Plaintiff's Complaint at § 28). In explaining what he means by this, Plaintiff states that

“neople have gotten hurt for doing less to a person.” (id.). In other words, Plaintiff is implying that he would be

justified in inflicting violence on Defendant Michel and her legal client, as individuals have “gotten hurt for doing

less.” Making this veiled threat even more troubling is the fact Plaintiff immediately begins the next paragraph by

referencing a firearm. (Plaintiff's Complaint at ] 29). The Court has not seen the document to which Michel refers,

as it apparently was never docketed in this action. The only Complaint filed in this action does not have a J] 29.

See, ECF No. 1.

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Plaintiff to pay Michel’s attorney fees.'® Consequently, Michel’s application for attorneys’ fees

is denied.

The Remaining Counterclaim by Greisberger and Providence

The only remaining claim is the counterclaim by Greisberger and Providence, designated

as acclaim for ““Frivolous Claim.” Regarding such claim, the Court notes that while it agrees

Plaintiff's claim against Greisberger and Providence is frivolous, the Court has already indicated

that it is not inclined to impose monetary sanctions against Plaintiff. Nevertheless, the Court is

also disinclined to dismiss the counterclaim without first giving Greisberger notice and an

opportunity to be heard. Accordingly, the Court will direct that Greisberger and Providence notify

the Court in writing, within fourteen days, whether it intends to pursue this counterclaim.

CONCLUSION

For the reasons discussed above, Updegraff's motion to dismiss (ECF No. 7) is denied

as moot, and the Clerk is directed to terminate Updegraff as a party to this action. The Clerk of

the Court is further directed to amend the docket to reflect the correct spelling of Michel's name.

(The docket presently incorrectly lists her as Susan J. Michael).

Michel’s motion to dismiss (ECF No. 6) is denied as to her request for attorneys’ fees but

is otherwise granted, and all claims against her are dismissed with prejudice. All claims against

the remaining defendants are likewise dismissed with prejudice, sua sponte, as the Complaint

clearly fails to state an actionable claim against any Defendant, including any non-moving

defendant, and is frivolous and vexatious.

18 See, e.g., Lawrence v. City of New York, No. 15CV8947, 2018 WL 3611963, at *7 (S.D.N.Y. July 27, 2018)

(“Courts consider mental illness as a factor in determining sanctions.) (citation omitted).

17

Additionally, the Court grants Michel's application for a filing injunction against the

Plaintiff. Specifically, James |. Wynn, Sr., is hereby barred and enjoined from filing any additional

actions or asserting any new claims in already pending actions relating to the subject matter of

this action, without first obtaining written approval from the undersigned. Specifically, such filing

sanction applies to any action or claim relating to 3840 Lake Avenue, Rochester, New York.

This includes, without limitation, any action or claim relating to the foreclosures of Plaintiff's

ownership interest in such property, or to Plaintiffs continuing claim of ownership in such

property, or to any related bankruptcy proceedings. The Clerk of the Court is directed to notify

the undersigned if Plaintiff attempts to file such an action or claim.

The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order

by Plaintiff would not be taken in good faith, and therefore in forma pauperis status is denied for

the purpose of an appeal. Coppedge v. United States, 369 U.S. 438 (1962).

Finally, within fourteen (14) days of the date of this Decision and Order, Greisberger

and Providence are ordered to either voluntarily discontinue their counterclaim or show

cause in writing why the counterclaim should not be dismissed as moot. In the event that

Greisberger and Providence fail to respond within fourteen days, the Court will dismiss

the counterclaim as moot.

SO ORDERED.

DATED: May 2 3, 2023

Rochester, New York

CHARLES i sna

United States Districtdudge

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