Gu v. Police Officer Michael Sher

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

------------------------------------x

Feifei Gu,

Plaintiff, MEMORANDUM & ORDER

24-cv-6157(EK)(LB)

-against-

Police Officer Michael Sher, Police

Officer Steven Vitelli, Governor

Kathy Hochul, State of New York, Hang

Chen, Emily Hui Chen Liang, Susana

Chong Chen,

Defendants.

------------------------------------x

ERIC KOMITEE, United States District Judge:

Plaintiff Feifei Gu filed this action, seeking redress

for the violation of her “constitutional and civil rights,”

including under the First, Fourth and Eighth Amendments to the

Constitution. Proceeding pro se, she also seeks injunctive

relief: specifically, a temporary restraining order “enjoining

the defendant[s] . . . from prosecuting” a pending criminal case

in New York state court. ECF Nos. 1 & 4. The Court grants

plaintiff’s request to proceed in forma pauperis pursuant to 28

U.S.C. § 1915. For the reasons discussed below, however, the

Complaint is dismissed, and Gu’s request for injunctive relief

is denied as moot. See 28 U.S.C. § 1915(e)(2)(B).1

1 As discussed in Section F below, Gu is a repeat filer in this

district. This is her fourth action seeking relief in connection with the

I. Background

The following facts are taken from plaintiff’s

Complaint and the state court documents appended to it. ECF No.

1; see Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir.

1991) (“[C]ourts routinely take judicial notice of documents

filed in other courts . . . to establish the fact of such

litigation and related filings.”).

On or about January 1, 2024, plaintiff was arrested

and charged with criminal mischief. The district attorney

apparently alleges that she destroyed a security camera on the

property at which she is a tenant. ECF No. 1 at 3, 13.2 Gu

brings this action against the arresting officers, Governor

Kathy Hochul, the State of New York, and certain private

individuals. Plaintiff’s criminal action is presently pending

in Kings County Criminal Court. People v. Gu, No. CR-001793-

24KN; see also ECF 1 at 1 (describing the criminal case as

“still pending”).

Gu’s landlord also sued her civilly in New York State

Supreme Court (Kings County). See 252685 St. LLC v. Gu, No.

50580/2024. Gu attached to her complaint a May 10, 2024

decision from that court. The order enjoins her from destroying

same state criminal case. See Gu v. Chen et al., No. 24-cv-4756; Gu v. Chen

et al., No. 24-cv-5113; Gu v. Didonato et al., No. 24-cv-5179.

2 Page citations to the Complaint and Order to Show Cause refer to ECF

pagination.

her landlord’s property, from placing cameras on the landlord’s

property (outside her own apartment), and from publicly posting

any remarks or reviews about the plaintiffs, Re/Max, or the

plaintiffs’ attorneys. ECF No. 1 at 16. She also alleges that

she was enjoined from “initiating Pro Se lawsuits.” ECF 1 at 8.

Plaintiff asserts four claims here.

First, she seeks an order from this Court staying the

state criminal prosecution, on the ground that it violates her

Fourth Amendment rights. ECF No. 1 at 5, 10. The Court

construes this claim as brought under 42 U.S.C. § 1983.

Second, Gu seeks a declaration that the criminal

statute she is accused of violating — New York Penal Law

145.00(1) — is unconstitutional under the Eighth Amendment. Id.

at 7.

Third, Gu seeks a declaration that two orders issued

in her landlord’s civil action are unconstitutional, as well as

a stay of those orders. Id. at 8, 10 (describing the state

injunction as “a clear violation of First Amendment rights”).

Fourth, Gu claims seeks “compensation of $1 Billion

against each Defendant,” asserting that the private defendants

conspired to violate her First Amendment rights. Id. at 9, 10.

The Court also construes this claim under Section 1983.3

3 Because Gu specifies the specific relief she seeks in each of her

first three causes of action, we understand this request for money damages to

II. Standard of Review

A district court must dismiss an in forma pauperis

action that “(i) 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.”4

28 U.S.C. § 1915(e)(2)(B). An action is “frivolous” when

either: (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.” Livingston v. Adirondack Beverage Co., 141 F.3d 434,

437 (2d Cir. 1998).

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 (2007). A claim is 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.” Matson v. Bd. of Educ., 631 F.3d 57,

63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)). Although all allegations contained in a complaint are

be made in connection with her Fourth Cause of Action (against the private

defendants).

4 Unless otherwise noted, when quoting judicial decisions this order

accepts all alterations and omits all citations, footnotes, and internal

quotation marks.

assumed to be true, this tenet is “inapplicable to legal

conclusions.” Iqbal, 556 U.S. at 678.

Additionally, “if the court determines at any time

that it lacks subject-matter jurisdiction, the court must

dismiss the action.” Fed. R. Civ. P. 12(h)(3). The Court lacks

subject matter jurisdiction when it does not possess the

“statutory or constitutional power” to adjudicate the case.

Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). As

discussed below, certain abstention doctrines may operate to

deprive district courts of jurisdiction.

Pro se complaints are “held to less stringent

standards” than pleadings drafted by attorneys, and the Court

will read a pro se complaint liberally and interpret it to raise

the strongest arguments it suggests. Erickson v. Pardus, 551

U.S. 89, 94 (2007); Sealed Plaintiff v. Sealed Defendant, 537

F.3d 185, 191 (2d Cir. 2008). Still, a pro se plaintiff is not

exempt from “compliance with relevant rules of procedural and

substantive law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.

1983).

III. Discussion

A. Gu’s Fourth Amendment Claim

The Court construes plaintiff’s First Cause of Action

— in which she alleges a Fourth Amendment and asks for this

Court to intervene in her state criminal prosecution — as

brought under Section 1983. That Statute provides, in relevant

part, that: “[e]very person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State . . .

subjects, or causes to be subjected, any citizen of the United

States . . . to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable

to the party injured.” 42 U.S.C. § 1983.

Plaintiff’s claim for injunctive relief is barred

under Younger v. Harris, 401 U.S. 37 (1971), which held that a

federal court may not enjoin a pending state-court criminal

proceeding in the absence of special circumstances suggesting

bad faith, harassment, or irreparable injury that is both

serious and immediate. Id. at 46-49. Plaintiff has alleged no

facts showing bad faith, harassment, or irreparable injury with

respect to her criminal proceedings. The Court cannot,

therefore, intervene in that proceeding. See, e.g., Sumpter v.

Bassett, No. 24-CV-2303, 2024 WL 3938044, at *1 (E.D.N.Y. Aug.

26, 2024); Wilburn v. Nguyen, No. 23-CV-4082, 2023 WL 4163510,

at *2 (E.D.N.Y. June 23, 2023). Therefore, this claim is

dismissed for lack of subject matter jurisdiction. See Diamond

“D” Constr. Corp. v. McGowan, 282 F.3d 191, 198 (2d Cir. 2002)).

(“When Younger applies, abstention is mandatory and its

application deprives the federal court of jurisdiction in the

matter.”).

B. Eighth Amendment Claim

Plaintiff seeks a declaration that the criminal-

mischief statute under which she is being prosecuted, New York

Penal Law 145.00(1), violates the Eighth Amendment. The Court

construes this claim as a request for a declaratory judgment.

See 28 U.S.C. § 2201(a).

District courts have discretion to determine whether

and when to entertain declaratory judgment actions. See Wilton

v. Seven Falls Co., 515 U.S. 277, 282 (1995). The Second

Circuit identified six factors relevant to this determination in

Admiral Ins. Co. v. Niagara Transformer Corp. , 57 F.4th 85, 99–

100 (2d Cir. 2023).5 Those factors counsel against the exercise

of such discretion here.

The fourth factor is particularly implicated here. It

asks “whether the use of a declaratory judgment would increase

friction between sovereign legal systems or improperly encroach

on the domain of a state or foreign court.” Admiral Ins. Co.,

57 F.4th at 100. Plaintiff is essentially asking this Court to

supervise an ongoing criminal prosecution in the state.

5 The six factors are: “(1) whether the declaratory judgment sought will

serve a useful purpose in clarifying or settling the legal issues involved”;

(2) whether such a judgment would finalize the controversy and offer relief

from uncertainty; (3) whether the proposed remedy is being used merely for

procedural fencing or a race to res judicata; (4) whether the use of a

declaratory judgment would increase friction between sovereign legal systems

or improperly encroach on the domain of a state or foreign court; (5) whether

there is a better or more effective remedy; and (6) whether concerns for

judicial efficiency and judicial economy favor declining to exercise

jurisdiction.” Admiral Ins. Co., 57 F.4th at 99–100.

Plaintiff also runs into difficulty with the first Admiral

Insurance factor — whether a declaratory judgment would

helpfully clarify an opaque or unsettled legal issue. The

Eighth Amendment law at issue seems relatively well-settled, at

first blush, and the pleadings suggest no reason that the state

courts cannot apply that law in Gu’s case.6 Id. Based on these

and other factors, the Court declines to entertaining the

request for declaratory judgment.

C. First Amendment Claim

In her Third Cause of Action, Plaintiff seeks a

declaration that “two State Orders” in her Kings County Supreme

Court case are “unconstitutional in violation of the First

Amendment.” ECF No. 1 at 10. She asks this Court to stay the

execution of those orders. Id.

This claim, too, is barred under Younger v. Harris.

In addition to state criminal prosecutions, Younger abstention

is appropriate in civil proceedings “that implicate a State’s

interest in enforcing the orders and judgments of its courts.”

Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 72-73 (2013).

This doctrine honors the “strong federal policy against federal-

court interference with pending state judicial proceedings

6 “The Eighth Amendment’s protection does not apply until after

conviction and sentencing.” United States v. Walsh, 194 F.3d 37, 47 (2d Cir.

1999) (citing Graham v. Connor, 490 U.S. 386, 392 n.6 (1989)).

absent extraordinary circumstances.” Middlesex Cnty. Ethics

Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 431, (1982).

Younger abstention is “mandatory” when “(1) there is a

pending state proceeding, (2) that implicates an important state

interest, and (3) the state proceeding affords the federal

plaintiff an adequate opportunity for judicial review of his or

her federal constitutional claims.” Spargo v. N.Y. State Comm’n

on Judicial Conduct, 351 F.3d 65, 74 (2d Cir. 2003). In the

Second Circuit, a state interest is “important” for the purposes

of Younger abstention when “the state action concerns the

central sovereign functions of state government.” Grieve v.

Tamerin, 269 F.3d 149, 152 (2d Cir.2001)

Plaintiff’s claim falls comfortably within the

category of cases where abstention is mandatory. First, the

state civil case is still pending. See ECF No. 1 at 19

(indicating that plaintiff has a hearing scheduled case on

November 13, 2024).

Second, the state courts’ power to issue and manage

injunctions is undeniably an important sovereign function, and

it would surely impede the state’s ability to exercise that

power if injunctions were effectively subject to interlocutory

appeal to a federal court. The Second Circuit has invoked

Younger in similar circumstances, abstaining from entertaining a

request to vacate a state-issued orders staying certain

foreclosure proceedings. Toczek v. Alvord, 841 F. App’x 263,

266 (2d Cir. 2021). The orders, the Court of Appeals held, were

“uniquely in furtherance of the state courts’ ability to perform

their judicial functions” and implicated the “state’s interest

in enforcing the orders and judgments of its courts.” Id.; see

also Falco v. Justs. of the Matrimonial Parts of Supreme Ct. of

Suffolk Cnty., 805 F.3d 425, 427 (2d Cir. 2015) (Younger

abstention warranted when federal challenge “implicate[d] the

way that New York courts manage their own divorce and custody

proceedings — a subject in which the states have an especially

strong interest”); In re Standard & Poor's Rating Agency Litig.,

23 F. Supp. 3d 378, 410 (S.D.N.Y. 2014) (refusing to intervene

in state consumer-protection actions due to the state’s strong

interest in the earlier-filed litigation).

Third, plaintiff has a full opportunity for judicial

review in the state system — both at the Supreme Court level and

(if needed) at the Appellate Division. See generally Earls v.

N. Carolina Jud. Standards Comm'n, 703 F.Supp.3d 701, 716-17

(M.D.N.C. 2023) (abstaining pursuant to Younger where state

courts afforded an adequate remedy for plaintiff’s First

Amendment claims).

Thus, plaintiff’s claim meets the Spargo conditions.

This claim, too, will be dismissed for lack of jurisdiction. See

Weiss, 2024 WL 2837623, at *2 (affirming district court’s

Younger dismissal for lack of jurisdiction).

D. First Amendment Conspiracy Claim

In Gu’s Fourth Cause of Action, she alleges that three

defendants, Hang Chen, Emily Hui Hui Chen Liang, and Susana

Chong Chen, “conspired to violate [her] First Amendment rights.”

ECF No. 1 at 9.

Section 1983 only applies to state actors. Leeds v.

Meltz, 85 F.3d 51, 54 (2d Cir. 1996). “To state a claim against

a private entity on a Section 1983 conspiracy theory, the

complaint must allege facts demonstrating that the private

entity acted in concert with the state actor to commit an

unconstitutional act.” Spear v. West Hartford, 954 F.2d 63, 68

(2d Cir. 1992). “A merely conclusory allegation that a private

entity acted in concert with a state actor does not suffice to state a

§ 1983 claim against a private entity.” Ciambriello v. Cnty. of

Nassau, 292 F.3d 307, 324 (2d Cir. 2002).

Gu alleges no facts indicating that any of the

defendants sued pursuant to this claim are state actors. ECF

No. 1 at 1. Additionally, no facts are alleged that would

plausibly demonstrate a conspiracy between the individual

defendants and the State. Therefore, this claim is dismissed.

E. Request for Injunctive Relief

In her “emergency” application for a temporary

restraining order, Plaintiff seeks to enjoin her state court

criminal prosecution. A party seeking injunctive relief must

establish, among other things, some likelihood of success on the

merits. For the reasons discussed above, Plaintiff cannot make

that showing.

Given the dismissal of the complaint, her request for

injunctive relief is denied as moot. See generally Gonzalez v.

Conn. Dept. of Correction, 2021 WL 1923785, at *23 (D. Conn. May

13, 2021) (denying request for injunctive relief as moot after

dismissal of complaint); Word v. Croce, 169 F. Supp. 2d 219, 222

(S.D.N.Y. 2001) (same).

F. Filing Injunction Warning

The Court notes that this is the fourth action that

plaintiff has brought concerning her January 1, 2024 arrest and

subsequent prosecution for criminal mischief. See Gu v. Chen et

al., No. 24-cv-4756; Gu v. Chen et al., No. 24-cv-5113; Gu v.

Didonato et al., No. 24-cv-5179. “The district courts have the

power and the obligation to protect the public and the efficient

administration of justice from individuals who have a history of

litigation entailing vexation, harassment, and needless expense

to other parties and an unnecessary burden on the courts and

their supporting personnel.” Lau v. Meddaugh, 229 F.3d 121, 123

(2d Cir. 2000). Plaintiff is warned that the future filing of

repetitive, vexatious, and frivolous litigation may result in

the imposition of an injunction prohibiting her from making

future filings seeking in forma pauperis status without leave of

the Court. See Hong Mai Sa v. Doe, 406 F.3d 155, 158 (2d Cir.

2005).

IV. Conclusion

For the foregoing reasons, the Complaint is dismissed

in its entirety. Fed. R. Civ. P. 12(h)(3); 28 U.S.C. §

1915(e)(2)(B). Plaintiff’s First Amendment conspiracy and

Eighth Amendment claims are dismissed with prejudice because

amendment would be futile. Grullon v. County of New Haven, 720

F.3d 133, 140 (2d Cir. 2013). Plaintiff’s claims regarding her

state court prosecution and her First Amendment objections to

the state court orders are dismissed without prejudice. See

Katz v. Donna Karan Co., L.L.C., 872 F.3d 114, 116 (2d Cir.

2017) (dismissal for lack of subject matter jurisdiction must be

without prejudice).

The Clerk of Court is respectfully directed to enter

judgment, mail a copy of the Memorandum and Order to the

Plaintiff, note the mailing on the docket, and close this case.

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, in forma pauperis status is denied

for the purpose of any appeal. See Coppedge v. United States,

369 U.S. 438, 444-45 (1962).

SO ORDERED.

/s/ Eric Komitee

ERIC KOMITEE

United State s District Judge

D ated: September 20, 2024

Brooklyn, New York