Maltese v. Brown

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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MARYANN MALTESE,

Plaintiff, MEMORANDUM & ORDER

v. 23-CV-4566 (RPK) (LB)

KEITH BROWN, New York State Assemblyman,

Defendant.

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MARYANN MALTESE,

Plaintiff,

v. 23-CV-4940 (RPK) (LB)

ERIC ADAMS, New York City Mayor;

NYC OFFICE OF LABOR COUNSEL;

RENEE CAMPIONE, Commissioner of NYC

Office of Labor Counsel,

Defendants.

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MARYANN MALTESE,

Plaintiff,

v. 23-CV-6204 (RPK) (LB)

GOVERNOR OF NEW YORK STATE;

KEITH BROWN, New York State Assemblyman;

MARIO MATTERA, New York State Senator,

Defendants.

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RACHEL P. KOVNER, United States District Judge:

Pro se plaintiff filed these three actions alleging, inter alia, that she is owed pension

benefits by New York State, that she is owed reimbursements for losses to a New York City

retirement account, and that she is the victim of an election-law violation. Defendants in each

action move to dismiss the complaints for lack of jurisdiction and failure to state a claim. For the

reasons set forth below, the motions to dismiss are granted.

BACKGROUND

I. Factual Allegations

The operative complaint in each of these three actions consists of hand-written answers to

questions in a form complaint, along with attached exhibits. The factual allegations in plaintiff’s

complaints are assumed true for the purposes of this order.

In the first action, No. 23-CV-4566 (“Maltese I”), plaintiff asserts claims against New York

State Assemblyman Keith Brown.1 According to the complaint, plaintiff was employed by the

New York State Legislature from 1992 to 2013. Maltese I, Compl. 5 (Dkt. #1).2 Plaintiff appears

to allege “employer negligence[] for no[t] issu[ing] [her a] pension.” Ibid. For relief, plaintiff

seeks 31 years of “retroactive corrective earnings with tort interest,” the award of a J.D. and/or

master’s degree, and $30,000 in legal fees. Id. at 6. Hundreds of pages of exhibits are attached to

the complaint, including, inter alia, newspaper articles with handwritten annotations, e-mail

correspondence, and documents from various state-court proceedings.

In the second action, No. 23-CV-4940 (“Maltese II”), plaintiff asserts claims against New

York City Mayor Eric Adams, the New York City Office of Labor Counsel (“OLC”), and OLC

Commissioner Renee Campione. Plaintiff appears to allege that between January and March 2020,

a New York City Deferred Compensation Plan retirement account that she inherited from her

former spouse suffered $40,000 in losses due to a “portal crash[].” Maltese II, Compl. 4 (Dkt. #1).

Plaintiff seeks “$40,000 losses, plus judicial fees . . . [and] interest penalties for 3 years of non-

accountability.” Id. at 5. Hundreds of pages of exhibits are attached to the complaint, including,

1 Plaintiff also asserted claims against Ken Morgulles, Brian Shenker, and Jeff and James Izzo, but the Court

previously dismissed her claims against those defendants for failure to serve. See Maltese I, Aug. 13, 2024 Order

Dismissing Parties.

2 Citations to the complaints follow the ECF pagination. All other citations to documents in the record follow internal

pagination, unless otherwise noted.

inter alia, e-mail correspondence, documents from various state-court proceedings, and scanned

excerpts from former Governor Andrew Cuomo’s memoir.

In the third action, No. 23-CV-6204 (“Maltese III”), plaintiff asserts claims against the

Governor of New York State, New York State Assemblyman Keith Brown, and New York State

Senator Mario Mattera.3 Plaintiff alleges that she was “intentional[ly] den[ied]” “access to the

judiciary, election ballot” in the “special election 2020” on account of “gender bias in [the]

judiciary . . . by Suffolk County.” Maltese III, Compl. 4 (Dkt. #1). She claims this was a

“conspiracy” by Assemblyman Brown and the “defunct” New York State Independence Party.

Ibid. Plaintiff further alleges that she was “den[ied] . . . [the] same right to a hearing” that was

afforded to “male non-incumbents,” which “is [a] violation of affirmative action.” Id. at 5.

Plaintiff does not clearly specify the relief she is seeking. Plaintiff attaches various newspaper

articles, e-mails, state-court filings, and other documents as exhibits.

II. Motions to Dismiss

The Office of the New York State Attorney General responded on behalf of Assemblyman

Brown in Maltese I and the Governor, Assemblyman Brown, and Senator Mattera in Maltese III

(collectively, “the State defendants”). The State defendants move to dismiss plaintiff’s complaints

in Maltese I and Maltese III under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil

Procedure, arguing that the claims against them are barred by the Eleventh Amendment, that the

claims against Assemblyman Brown and Senator Mattera are barred by absolute legislative

immunity, and that plaintiff has not suffered a plausible injury or stated a cause of action. See

Maltese I, Mem. of L. in Supp. of State Defs.’ Mot. to Dismiss (“Mot. to Dismiss”) (Dkt. #33-5);

Maltese III, Mem. of L. in Supp. of State Defs.’ Mot. to Dismiss (“Mot. to Dismiss”) (Dkt. #7-5).

3 Plaintiff also asserted claims against the New York State Board of Elections, but the Court previously dismissed

those claims for lack of jurisdiction. See Maltese III, Dec. 12, 2023 Order Dismissing Party.

The State defendants also note that plaintiff has filed numerous cases in state court “related to her

claim that she is being illegally singled out because no legislator would sponsor a bill, specific to

her alone, granting her pension credit for years in which she did not work,” Maltese I, Mot. to

Dismiss 2 (collecting cases), as well as cases alleging “some type of government conspiracy

against her preventing her from obtaining an underserved pension, winning an election and/or

gender discrimination,” id. at 3 (collecting cases). As a result of plaintiff’s frequent frivolous

filings, a filing injunction was entered against her in state court. See Maltese I, Defs.’ Reply (Dkt.

#37).

In Maltese II, Corporation Counsel of the City of New York responded on behalf of Mayor

Adams, the OLC, and OLC Commissioner Campione (collectively, “the City defendants”). The

City defendants move to dismiss plaintiff’s complaint in Maltese II under Rules 12(b)(1) and

12(b)(6), arguing that plaintiff’s claims are barred by res judicata and collateral estoppel, that the

Court lacks subject-matter jurisdiction over plaintiff’s claims, and that plaintiff’s claims should

have been brought as an Article 78 proceeding in New York state court. See Maltese II, Mem. of

L. in Supp. of City Defs.’ Mot. to Dismiss (“Mot. to Dismiss”) (Dkt. #14-7).

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(1) permits a party to move to dismiss a complaint

for “lack of subject-matter jurisdiction.” “A case is properly dismissed for lack of subject matter

jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power

to adjudicate it.” Lyons v. Litton Loan Servicing LP, 158 F. Supp. 3d 211, 218 (S.D.N.Y. 2016)

(quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). When considering a

motion to dismiss under Rule 12(b)(1), a court takes as true the factual allegations in the complaint

but does not draw inferences favorable to the party asserting jurisdiction. See J.S. ex rel. N.S. v.

Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004). The court may also look beyond the

complaint to such things as affidavits or other documents. See Kamen v. Am. Tel. & Tel. Co., 791

F.2d 1006, 1011 (2d Cir. 1986).

Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss a complaint that “fail[s]

to state a claim upon which relief can be granted.” To survive a motion to dismiss, a complaint

must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The facial “plausibility

standard is not akin to a probability requirement,” but it requires a plaintiff to allege sufficient facts

to allow “the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ibid. (citing Twombly, 550 U.S. at 556–57) (quotation marks omitted). In contrast, a

complaint fails to state a plausible claim when, as a matter of law, “the allegations in a complaint,

however true, could not raise a claim of entitlement to relief,” Twombly, 550 U.S. at 558, or when,

as a matter of fact, “the well-pleaded facts do not permit the court to infer more than the mere

possibility of misconduct,” Iqbal, 556 U.S. at 679. Though the court must accept all facts alleged

in the complaint as true, it need not adopt “[t]hreadbare recitals of the elements of a cause of

action” that are “supported by mere conclusory statements.” Iqbal, 556 U.S. at 678.

When a plaintiff proceeds pro se, her complaint must be “liberally construed,” and

“however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted

by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations and quotation marks omitted).

Pro se status, however, “does not exempt a party from compliance with relevant rules of procedural

and substantive law.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006)

(quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). Moreover, “the policy requiring courts

to liberally construe pro se complaints ‘does not mandate that a court sustain every pro se

complaint even if it is incoherent, rambling, and unreadable.’” Avramham v. New York, No.

20-CV-4441 (LLS), 2020 WL 4001628, at *2 (S.D.N.Y. July 15, 2020) (citation omitted).

DISCUSSION

The State defendants’ motions to dismiss in Maltese I and Maltese III and the City

defendants’ motion to dismiss in Maltese II are granted. Leave to amend is denied because

amendment would be futile.

I. Plaintiff’s complaints in Maltese I and Maltese III are dismissed.

The State defendants’ motions to dismiss the complaints in Maltese I and Maltese III are

granted. Because plaintiff does not specify in what capacity the State defendants are being sued,

the complaints are liberally construed as asserting claims against defendants in both their official

and individual capacities. See Murray v. Dabo, No. 22-CV-4026 (VEC) (GS), 2024 WL 1421119,

at *5 n.6 (S.D.N.Y. Feb. 2, 2024) (collecting cases), report and recommendation adopted, 2024

WL 964599 (S.D.N.Y. Mar. 5, 2024). Sovereign immunity bars any claims against the State

defendants in their official capacities. To the extent plaintiff sues the State defendants in their

individual capacities, those claims are dismissed under Rule 12(b)(6) for failure to state a claim

upon which relief can be granted.

A. Sovereign immunity bars any claims against the State defendants in their official

capacities.

As a general matter, states may not be sued in federal court by private parties “unless they

have waived their Eleventh Amendment immunity” or unless Congress has abrogated it. Gollomp

v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009) (citation and quotation marks omitted); see Va. Off.

for Prot. & Advoc. v. Stewart, 563 U.S. 247, 253–54 (2011). Sovereign immunity extends to

“actions for the recovery of money from the state” against “state agents.” Leitner v. Westchester

Cmty. Coll., 779 F.3d 130, 134 (2d Cir. 2015) (citing Regents of the Univ. of Cal. v. Doe, 519 U.S.

425, 429 (1997); Hans v. Louisiana, 134 U.S. 1, 15 (1890)). A lawsuit brought against officials

of a government entity in their official capacities is “in all respects other than name, to be treated

as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985); see Garcia v. S.U.N.Y.

Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001). When a plaintiff asserts claims for

prospective injunctive relief against state agents in their official capacity, a limited exception to

Eleventh Amendment sovereign immunity exists under the doctrine of Ex parte Young. That

doctrine allows a plaintiff to “avoid the Eleventh Amendment bar to suit and proceed against

individual state officers . . . in their official capacities, provided that [the] complaint (a) alleges an

ongoing violation of federal law and (b) seeks relief properly characterized as prospective.” In re

Deposit Ins. Agency, 482 F.3d 612, 618 (2d Cir. 2007) (citations and quotation marks omitted).

In Maltese I, plaintiff brings claims against Assemblyman Brown seeking 31 years of

“retroactive corrective earnings with tort interest,” the award of a J.D. and/or master’s degree, and

$30,000 in legal fees. Maltese I, Compl. 6. Sovereign immunity bars plaintiff’s claims against

Assemblyman Brown in his official capacity “for the recovery of money from the state.” Leitner,

779 F.3d at 134. To the extent plaintiff seeks injunctive relief for retrospective payments of

money, such claims are equally barred by sovereign immunity because they “in form or substance,

seek compensatory damages (rather than prospective . . . relief) which will be paid with funds from

the state treasury (rather than from the pockets of individual officials).” Sanders v. Parker, No.

22-CV-5141 (PKC) (JRC), 2023 WL 4902496, at *5 (E.D.N.Y. Aug. 1, 2023) (citation and

quotation marks omitted). Sovereign immunity also bars any claim against Assemblyman Brown

in his official capacity seeking the award of a J.D. and/or master’s degree, because plaintiff has

not alleged any facts to suggest that the Ex parte Young exception would apply. The “Eleventh

Amendment prevents federal courts from providing any relief that is not the type of remedy

designed to prevent ongoing violations of federal law,” KM Enters., Inc. v. McDonald, 518 F.

App’x 12, 14 n.1 (2d Cir. 2013) (citation and quotation marks omitted), and plaintiff has failed to

allege how awarding her an academic degree is a remedy designed to prevent any alleged ongoing

violation of federal law.

Sovereign immunity likewise bars plaintiff’s claims in Maltese III against Assemblyman

Brown, Senator Mattera, and the Governor in their official capacities. Though it is unclear what

relief plaintiff seeks in that action, see Maltese III, Compl. 6, any damages claims would be barred

by sovereign immunity, see Leitner, 779 F.3d at 134, and there is no indication that plaintiff seeks

the sort of prospective injunctive relief permitted under Ex parte Young.

B. Plaintiff’s claims against the State defendants in their individual capacities are

dismissed for failure to state a claim.

Sovereign immunity is not a bar to suits for money damages against state officials in their

individual capacities, see Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994), but plaintiff has not

stated a claim against the State defendants in their individual capacities upon which relief could

be granted.

In Maltese I, plaintiff appears to claim that she is owed a pension as a result of employment

with the New York State Legislature from 1992 to 2013. See Maltese I, Compl. 4–5. Though

Assemblyman Brown’s connection to the alleged denial of plaintiff’s pension is unclear, plaintiff

appears to be faulting Assemblyman Brown for not introducing legislation to grant her specific

pension rights, and for failing to personally meet with plaintiff to discuss such legislation. See,

e.g., id. at 47, 53, 93. Plaintiff has not provided any persuasive reason why Assemblyman Brown’s

failure to sponsor legislation or meet with plaintiff would give rise to a legal cause of action, and

the Court is aware of none.

The complaint in Maltese III, similarly difficult to parse, appears to allege that plaintiff

was the victim of an “election law” violation and related “discrimination” and “gender bias.”

Maltese III, Compl. 4–5. Specifically, plaintiff claims that she was “intentional[ly] den[ied]”

“access to the judiciary, election ballot” in the “special election 2020” on account of “gender bias

in [the] judiciary . . . by Suffolk County,” id. at 4, and that she was “den[ied] . . . [the] same right

to a hearing” that was afforded to “male non-incumbents,” which “is [a] violation of affirmative

action,” id. at 5. Plaintiff claims this was a “conspiracy” by Assemblyman Brown and the

“defunct” New York State Independence Party. Id. at 4. These allegations are insufficient to state

a claim against the State defendants. Even assuming arguendo that plaintiff alleged that she

suffered some deprivation of her right to vote or stand for office, or that she suffered unlawful

gender discrimination, plaintiff has failed to allege sufficient facts to support a claim against

Assemblyman Brown, Senator Mattera, or the Governor in particular. While plaintiff alleges that

Assemblyman Brown participated in a conspiracy against her, even in pro se cases “[i]t is well

settled that claims of conspiracy containing only conclusory, vague, or general allegations of

conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss.”

DuBois v. Bedford-Flatbush Chiropractic, P.C., 409 F. Supp. 3d 62, 67 (E.D.N.Y. 2019) (quoting

Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011)). Moreover, it is entirely unclear how

plaintiff’s claims pertain to the other State defendants. The allegations do not seem to implicate

Senator Mattera at all, and plaintiff only mentions the Governor in passing in raising a seemingly

unrelated grievance that in 2020 the Governor “did not modify EO [202] to acknowledge . . . health

care pandemic contagious pathogen.” Maltese III, Compl. 6.

Thus, in Maltese I and Maltese III, plaintiff fails to state a claim against the State defendants

in their individual capacities upon which relief can be granted.

II. Plaintiff’s complaint in Maltese II is dismissed.

The City defendants’ motion to dismiss in Maltese II is also granted. A federal court must

have subject-matter jurisdiction to decide a case. Lyndonville Sav. Bank & Trust Co. v. Lussier,

211 F.3d 697, 700-01 (2d Cir. 2000). Federal jurisdiction only exists when there is “diversity of

citizenship” and the amount in controversy exceeds $75,000, see 28 U.S.C. § 1332, or when a

“federal question” is presented, see id. § 1331.

In Maltese II, neither basis for federal jurisdiction is present. As a threshold matter, the

complaint fails to allege diversity jurisdiction because all parties are citizens of New York. See

Maltese II, Compl. 3. In the form complaint’s jurisdiction section, plaintiff asserts federal question

jurisdiction as the basis for jurisdiction, ibid., but the allegations—which center on investment

losses plaintiff allegedly incurred in a New York City Deferred Compensation Plan retirement

account—fail to present a federal question. Plaintiff appears to claim there is a federal question

because the deferred compensation plan account was formed pursuant to section 457 of the Internal

Revenue Code (“IRC”), 26 U.S.C. § 457. See id. at 3, 118–19, 121–52. But even assuming

plaintiff is asserting a violation of section 457, which is not apparent, “there is no private right of

action to enforce violations of the IRC,” Reynolds v. de Silva, No. 9-CV-9218 (CM), 2010 WL

743510, at *7 (S.D.N.Y. Feb. 24, 2010) (collecting cases). Plaintiff also references “COVID-19

federal . . . emergency rules,” Maltese II, Compl. 3, but does not explain which emergency rules

she intends to invoke or how they would provide a cause of action to recover losses related to a

retirement account from the City defendants. Finally, although plaintiff alleges in passing that the

New York Supreme Court “is discriminatory against women . . . owners of deferred”

compensation plan accounts, id. at 5, the complaint does not contain any specific factual

allegations supporting an inference of discrimination and therefore does not present a question of

federal antidiscrimination law. See George v. JP Morgan Chase Manhattan Bank, 222 F. App’x

84, 85 (2d Cir. 2007) (concluding that a pro se plaintiff “did not demonstrate that his claims raised

a ‘federal question’ because, although his complaint referred to discrimination based on race, it

did not contain any specific allegations of fact that supported an inference of discrimination”).

Accordingly, the Court lacks jurisdiction over plaintiff’s claims in Maltese II, and the

complaint in that action is dismissed for lack of subject-matter jurisdiction. Further, plaintiff’s

pending motion for return of property, which appears to seek the same relief as the complaint, see

Not. of Mot. for Return of Property 2 (Dkt. #19) (moving for “NYC Defendants to return property

of plaintiff $40,000 plus legal fees”), is denied as moot.

III. Leave to amend is denied.

A pro se plaintiff should generally be granted leave to amend a complaint at least once

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

Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (citation omitted). However, “leave to amend

need not be granted when amendment would be futile.” Terry v. Inc. Vill. of Patchogue, 826 F.3d

631, 633 (2d Cir. 2016). Here, a liberal reading of plaintiff’s complaints does not give any

indication that a valid claim might be stated. Moreover, plaintiff has a history of filing frivolous

lawsuits. See Maltese I, Mot. to Dismiss 2–3 (collecting cases); Maltese I, Defs.’ Reply (advising

the Court of a filing injunction against plaintiff in state court). “In light of [plaintiff’s]

unintelligible Complaint[s], along with [her] history of incoherent and frivolous filings, granting

leave to amend would [be] futile.” Owens v. Shields, 34 F. App’x 33, 35 (2d Cir. 2002). Therefore,

notwithstanding plaintiff’s pro se status, plaintiff’s complaints are dismissed without leave to

amend.

CONCLUSION

Defendants’ motions to dismiss in Maltese I, Maltese II, and Maltese III, Nos. 23-CV-4566,

23-CV-4940, and 23-CV-6204, are granted. The complaints in Maltese I and Maltese III, Nos.

23-CV-4566 and 23-CV-6204, liberally construed to assert claims against defendants in their

individual capacities, are dismissed with prejudice and without leave to amend because they fail

to state a claim upon which relief may be granted. The complaint in Maltese II, No. 23-CV-4940,

is dismissed without prejudice and without leave to amend for lack of subject-matter jurisdiction,

and plaintiff’s pending motion for return of property in that action is denied as moot. The Clerk

of Court is respectfully directed to enter judgment in Maltese I and Maltese III, to close all three

cases, and to mail a copy of this order to plaintiff. Although plaintiff paid the filing fees to

commence these actions, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal

from this order would not be taken in good faith and therefore denies in forma pauperis status for

the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962).

SO ORDERED.

/s/ Rachel Kovner

RACHEL P. KOVNER

United States District Judge

Dated: August 19, 2024

Brooklyn, New York