# Gu v. Police Officer Michael Sher

> District Court, E.D. New York · September 20, 2024

URL: https://www.frixlaw.com/law-library/cases/10659465

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 20, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10659465. Public record. Not legal advice.