Gu v. Didonato

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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

FEIFEI GU,

Plaintiff, MEMORANDUM & ORDER

24-cv-5113(EK)(LB)

-against-

HANG CHEN; CHAT MUI CHAN; UNITED

STATES OF AMERICA; RE/MAX REAL ESTATE

PROFESSIONALS,

Defendants.

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

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

FEIFEI GU,

Plaintiff, MEMORANDUM & ORDER

24-cv-5179(EK)(LB)

-against-

ADA VINCENT JAMES DIDONATO, III;

UNITED STATES OF AMERICA,

Defendants.

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

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

FEIFEI GU,

Plaintiff, MEMORANDUM & ORDER

24-cv-4756(EK)(LB)

-against-

HANG CHEN; EMILY HUI CHEN-LIANG;

SUSANA CHONG CHEN; HUI CHEN;

252685 ST LLC; YU YING WU; THE LLC

D/B/A XIAO GUO GROUP INC.;

ATHANASIA DIMAGGIO; CHAT MUI CHAN;

HUGO SALAZAR; RE/MAX REAL ESTATE

PROFESSIONALS; AMY LESSINGER; RE/MAX,

LLC; ERIK CARLSON; RE/MAX HOLDINGS;

VINCENT JAMES DIDONATO, III; ADA JOHN

DOES (1-2); ADA JANE DOE; LAWRENCE

LUSHER; ERIC GONZALEZ; NANCY HOPPACK;

NICOLE CHAVIS; JOSEPH P. ALEXIS;

RICHARD BOYENS; JANET GLEESON; DAVID

KLESTZICK; PATRICIA MCNEILL; FRAN

WEINER; JOSEB GIM; KIN W. NG; LETITIA

JAMES,

Defendants.

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

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

FEIFEI GU,

Plaintiff, MEMORANDUM & ORDER

24-cv-8444 (EK)(LB)

-against-

MARK SALEM; JOY F. CAMPANELLI; ROVENA

BEQIRI; JOSEPH CADMAN; WENDY CIDSCO;

JANE DOE OF KINGS COUNTY SUPREME

COURT EX PARTE PART; STATE OF NEW

YORK,

Defendants.

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

ERIC R. KOMITEE, United States District Judge:

Plaintiff Feifei Gu has filed a series of actions in

federal court arising out of a dispute she had with her

landlord. In the course of that dispute, her landlord accused

her of destroying a security camera on its property. The New

2

York City Police Department arrested her in January 2024 for the

alleged property destruction, and her criminal case remains

pending. Gu has now sued the United States; New York State; New

York City; her landlord, its agents, and their supervisors;

prosecutors; and state judicial personnel. She alleges that in

the course of her criminal prosecution and a related civil

action, defendants violated various of her rights.

The Court consolidates these actions for the purpose

of this Order. The Court also grants Gu’s requests to proceed

in forma pauperis. For the reasons discussed below, however,

Plaintiff’s claims are dismissed in their entirety. In

addition, Plaintiff is ordered to show cause why a filing

injunction should not issue.

I. Background

A. Factual Background

The following facts are taken from Plaintiff’s four

pending federal complaints and the state court documents

appended to them. See Kramer v. Time Warner Inc., 937 F.2d 767,

774 (2d Cir. 1991).

1. Gu’s January 2024 Arrest

Gu rented an apartment in a Brooklyn building that

several of the defendants owned or managed. See Gu v. Chen, No.

24-cv-4756 (“Chen II”), Compl. 1-2, ECF No. 1. She had a

3

dispute with her landlord regarding heat and hot water in her

unit. See id. at 10. This dispute apparently escalated.

Agents of Gu’s landlord “reported to 911 that Plaintiff . . .

destroyed the security camera placed over the door of” her

apartment. Id. In January 2024, the New York City Police

Department arrested Gu for criminal mischief. Id. at 4; 62.

Following her arrest, she was detained for twenty-five hours.

See id. at 4, 18.

2. The Ensuing Prosecution

The Kings County District Attorney pursued the

criminal case, and it remains ongoing as of the date of this

Order. See People v. Gu, No. CR-001793-24KN. Gu contends that

state prosecutors relied on fabricated evidence to support the

prosecution. See Gu v. Salem, No. 24-cv-8444 (“Salem”), Compl.

5-11, ECF No. 1.1 She says that the ADAs presented that

fabricated evidence in court, see id. at 7, though she does not

indicate in what context. She also asserted (in the state

court) that the ADAs violated Brady v. Maryland by failing to

produce the destroyed security camera and “refus[ing] to

disclose” certain video footage until December 10, 2024. Id. at

1 The “prosecutor defendants” are Vincent James Didonato, III; Lawrence

Lusher; ADA John Does (1-2); ADA Jane Doe; Eric Gonzalez; Nancy Hoppack;

Nicole Chavis; Joseph Alexis; Richard Boyens; Janet Gleeson; David Klestzick;

Patricia Mcneill; Fran Weiner; Joseb Gim; and Kin Ng.

4

9. The state has responded to Gu’s Brady allegations, but the

court has yet to rule. See Salem, ECF No. 1-2 at 38-39. She

also claims that she was denied the right to counsel in state

court, though the state docket reflects that she is represented

by an attorney.2

3. Gu’s Landlord’s Civil Action Against Her

Gu’s landlord also sued her civilly in the state

Supreme Court. See 252685 St. LLC v. Gu, No. 505280/2024; Salem

Compl. 3. The civil complaint alleges that Gu and another

tenant made repeated claims that their apartment was pest-ridden

and lacked heat and hot water. See Salem, ECF No. 1-2 at 4.

However, Gu refused the landlord entry into the apartment to

address the alleged defects. Id. Consequently, the landlord

initiated eviction proceedings. Id. Gu then allegedly began a

harassment campaign against the landlord and its agents. Id. at

4-10. The landlord sought injunctive relief, damages, and fees.

See ECF No. 1-2 at 12-21. The civil action is also ongoing as

of the date of this Order.

Stemming from the civil action, Gu alleges misconduct

by New York State, Justice Joy F. Campanelli; her law clerks

Rovena Bequiri, Joseph Cadman, and Wendy Cidsco; Jane Doe, a

2 See New York State Unified Court System, eCourts: WebCriminal, CR-

001793-24KN (last visited Feb. 25, 2025).

5

court clerk; and the landlord’s attorney, Mark Salem. See Salem

Compl. 21.3

B. Procedural Background

Gu filed her first three cases, Gu v. Chen, No. 24-cv-

5113 (“Chen I”); Gu v. Didonato, No. 24-cv-5179 (“Didonato”);

and Chen II, in the Southern District of New York. That court

transferred the cases to this district in June and July 2024.

See ECF No. 5 (on each docket). In each case, Gu moved to

proceed in forma pauperis. These complaints remain pending, and

are addressed in this Order.

In September 2024, Gu filed an additional case in this

district, Gu v. Sher, alleging claims against several of the

same defendants she sued in the three initial cases, but also

against Police Officer Michael Sher, Police Officer Steven

Vitelli, New York State, and New York Governor Kathy Hochul.

See id. at *1-2. Because Plaintiff sought a temporary

restraining order in Sher, this Court turned to it first,

denying the TRO application and dismissing the case in its

entirety. See No. 24-cv-6157, 2024 WL 4252034, at *3 (E.D.N.Y.

Sept. 20, 2024). The Sher order declined Gu’s requests to stay

her state prosecution and to stay an order in her civil case

3 Justice Campanelli, the law clerks, and Jane Doe, court clerk, are

referred to as the “judicial defendants.”

6

forbidding her from destroying her landlord’s property, among

other conditions. Id. at *2-4.

Undeterred by Sher’s dismissal, Gu filed an additional

suit in the Northern District of New York, Gu v. Salem. That

case, too, was transferred to this district. See Docket No. 24-

cv-7933. Gu stipulated to dismiss that action (without

prejudice) in December 2024. See ECF Nos. 12-13. However, Gu

then filed yet another action in this district in December 2024,

also entitled Gu v. Salem.4 In Salem, Gu paid the Court’s filing

fee.

This order addresses Gu’s four surviving cases: the

three originally filed in the Southern District, and Gu v.

Salem. Across the four actions, Gu sues an overlapping set of

defendants, including the United States, New York State, New

York City, Attorney General Leticia James, prosecutors, a

justice and judicial clerks, and private individuals and

corporations.5

Gu invokes — or the Court construes her complaints to

invoke — the Federal Tort Claims Act (“FTCA”), 28 U.S.C.

§ 1346(b); 42 U.S.C. § 1983; and the Declaratory Judgment Act,

4 When this Order refers to Salem, it addresses the action filed in

December 2024.

5 See generally Chen I Compl., ECF No. 1; Didonato Compl., ECF No. 1;

Chen II Compl., ECF No. 1; Salem Compl., ECF No. 1.

7

28 U.S.C. § 2201(a). She moves for damages varying from “$1

billion” to “$3000 billion.”6 She seeks certain declarations

that various defendants violated her rights. See Salem Compl.

17, 19-21.

II. Legal Standard

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.” 28

U.S.C. § 1915(e)(2)(B). Similarly, “district courts may dismiss

a frivolous complaint sua sponte even when the plaintiff has

paid the required filing fee.” Fitzgerald v. First E. Seventh

St. Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000). An action

is 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.” Livingston v. Adirondack Beverage Co.,

141 F.3d 434, 437 (2d Cir. 1998).7 Additionally, the Court must

dismiss an action if it determines that it lacks subject matter

6 See Chen I Compl. 10; Chen II Compl. 18, 20-21; Salem Compl. 21;

Didonato Compl. 5.

7 Unless otherwise noted, when quoting judicial decisions this order

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

quotation marks.

8

jurisdiction.

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 allegations contained in a complaint are

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

conclusions.” Iqbal, 556 U.S. at 678.

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). But pro se plaintiffs are not

exempt from “compliance with relevant rules of procedural and

substantive law,” including articulating a basis for this

court’s subject matter jurisdiction and plausibly pleading a

claim for relief. Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.

1983).

9

III. Discussion

A. Section 1983 Claims

Gu asserts claims pursuant to 42 U.S.C. § 1983 against

the prosecutors, the judicial defendants, the state Attorney

General, New York State, New York City, and private individuals

and entities. In several of her cases, Gu expressly invokes

Section 1983.8 In other instances, the Court construes her

complaint to assert a claim pursuant to that statute. See,

e.g., Didonato Compl. 2.

Section 1983 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. Section 1983 “is not itself

a source of substantive rights, but a method for vindicating

federal rights elsewhere conferred by those parts of the United

States Constitution and federal statutes that it describes.”

Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979).

To state a claim under Section 1983, a plaintiff must

8 See, e.g., Salem Compl. 17-21; Chen I Compl. 7-8; Chen II Compl. 16,

19, 22-23.

10

allege: “(1) that the defendants deprived him of a right secured

by the Constitution or laws of the United States; and (2) that

they did so under color of state law.” Giordano v. City of New

York, 274 F.3d 740, 750 (2d Cir. 2001).

1. Official Capacity Claims Against New York State,

Attorney General James, the Prosecutor

Defendants, and the Judicial Defendants

Gu sues New York State and state officials without

specifying whether she has sued in their official or personal

capacities. The Court construes her claims both ways.

Gu seeks money damages from New York State, Attorney

General James, the prosecutor defendants, and the judicial

defendants. To the extent she sues these defendants in their

official capacities, her claims are barred by the Eleventh

Amendment.

“[A]s a general rule, state governments may not be

sued in federal court unless they have waived their Eleventh

Amendment immunity, or unless Congress has abrogated the states’

Eleventh Amendment immunity . . . .” Gollomp v. Spitzer, 568

F.3d 355, 366 (2d Cir. 2009). “The immunity recognized by the

Eleventh Amendment extends beyond the states themselves to state

agents and state instrumentalities that are, effectively, arms

of a state.” Id. New York has not waived its Eleventh

11

Amendment immunity to suit in federal court, and Congress did

not abrogate the states’ immunity in enacting 42 U.S.C. § 1983.

See Trotman v. Palisades Interstate Park Comm’n, 557 F.2d 35, 40

(2d Cir. 1977). Thus, her official capacity claims against the

state and state officials are dismissed for lack of subject

matter jurisdiction. See Long Island Pure Water Ltd. v. Cuomo,

375 F. Supp. 3d 209, 215 (E.D.N.Y. 2019) (quoting Seminole Tribe

of Fla. v. Florida, 517 U.S. 44, 64 (1996)).

2. Personal Capacity Claims Against the Prosecutor

Defendants

Gu fails to state a Section 1983 claim against the

prosecutors in their personal capacities. In Didonato and Chen

II, Gu sues sixteen prosecutors at the Brooklyn District

Attorney’s Office. She alleges that ADA Vincent Didonato

violated her “Fourth and Fourteenth Amendment rights by

initiating and continuing a FAKE CRIMINAL CASE against Plaintiff

with false and forged evidence.” Didonato Compl. 2. She also

alleges that several ADAs — Didonato, Lawrence Lusher, ADA John

Does 1-2, and ADA Jane Doe — conspired with her landlord and its

agents to violate her Fourth and Fourteenth Amendment rights.

Chen II Compl. 16. In addition, Gu alleges that several

supervisory officials at the District Attorney’s Office violated

Section 1983 under a “failure to train, failure to supervise”

12

theory. Id. at 19. These supervisors are defendants Eric

Gonzalez, Nancy Hoppock, Nicole Chavis, Joseph Alexis, Richard

Boye, Janet Gleeson, David Klestizick, Patricia McNeill, Fran

Weiner, Joseb Gim, and Kin Ng.

The doctrine of prosecutorial immunity bars Gu’s

personal-capacity claims against these defendants. “Prosecutors

are absolutely immune from liability in § 1983 lawsuits” brought

based on “prosecutorial actions that are intimately associated

with the judicial phase of the criminal process.” Van de Kamp

v. Goldstein, 555 U.S. 335, 341 (2009). Gu’s suit alleges

wrongdoing in the prosecutors’ charging and evidentiary

decisions, all of which are expressly protected. E.g., Imbler

v. Pachtman, 424 U.S. 409, 431 (1976) (“[I]n initiating a

prosecution and in presenting the State’s case, the prosecutor

is immune from a civil suit for damages under § 1983.”).

Accordingly, each claim against a prosecutor defendant

is dismissed. See Collazo v. Pagano, 656 F. 3d 131, 134 (2d

Cir. 2011) (claims against prosecutors “frivolous,” given

prosecutorial immunity).

3. Personal Capacity Claims Against the Judicial Defendants

To the extent that Gu seeks damages from the judicial

defendants, her claims are barred by judicial immunity.

13

The doctrine of judicial immunity protects judges from

suit for any action taken within the scope of their judicial

responsibilities. Mireles v. Waco, 502 U.S. 9, 11 (1991).

“Even allegations of bad faith or malice cannot overcome

judicial immunity.” Id. Judicial immunity does not apply when

a judge takes action outside her judicial capacity, or action

that, although judicial in nature, is “taken in the complete

absence of all jurisdiction.” Mireles, 502 U.S. at 11-12. And

“the scope of [a] judge’s jurisdiction must be construed broadly

where the issue is the immunity of the judge.” Stump v.

Sparkman, 435 U.S. 349, 356 (1978). Plaintiff sues Justice

Campanelli for acts “aris[ing] out of, or related to, individual

cases” before her; accordingly, she is immune from liability for

those acts. Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009).

The court clerks benefit from a related, though

somewhat less expansive, immunity. Quasi-judicial immunity

extends to personnel who perform functions closely associated

with the judicial process, including acts by administrative

professionals and law clerks “that implement [a judge’s]

judicial decisions or that are performed . . . under the

supervision of” the judge. McKnight v. Middleton, 699 F. Supp.

2d 507, 525 (E.D.N.Y. 2010), aff’d, 434 F. App’x 32 (2d Cir.

14

2011). The claims against the law clerks and the Jane Doe clerk

are thus barred; they clearly arise out of actions taken that

are an integral part of the judicial process.

For these reasons, Gu’s claims against the judicial

defendants are dismissed.

4. Personal Capacity Claims Against the New York

Attorney General

Gu fails to state a claim against Attorney General

James in her personal capacity. In Gu v. Chen II, Gu claims

that Ms. James is liable under Section 1983 for negligent

“fail[ure] to investigate false claims . . . pursuant to the New

York False Claims Act” and for failure to supervise the District

Attorney. Compl. 22.

“It is well settled that, in order to establish a

defendant’s individual liability in a suit brought under § 1983,

a plaintiff must show . . . the defendant’s personal involvement

in the alleged constitutional deprivation.” Grullon v. City of

New Haven, 720 F.3d 133, 138 (2d Cir. 2013). To establish

personal involvement, Plaintiff must plead that “each

Government-official defendant, through the official’s own

individual actions, has violated the Constitution.” Tangreti v.

Bachmann, 983 F.3d 609, 616 (2d Cir. 2020). “Government

officials may not be held liable for the unconstitutional

15

conduct of their subordinates under a theory of respondeat

superior.” Iqbal, 556 U.S. at 676. Gu fails to assert any

facts suggesting that Attorney General James was personally

involved in the events underlying her claims.9

Additionally, Ms. James’s alleged failure to

investigate violations of the New York False Claims Act does not

describe a violation of Section 1983. The Due Process Clause

does not confer a right to government aid. See DeShaney v.

Winnebago Soc. Servs., 489 U.S. 189, 196 (1989). And beyond

that clause, Gu cites “no case or statute that would require the

Attorney General of [New York] to intervene in the . . .

proceedings at issue here.” Szymonik v. Connecticut, 807 F.

App’x 97, 102 (2d Cir. 2020). Plaintiff’s claims against Ms.

James are, therefore, dismissed.

5. Monell Claim Against New York City

In Chen II, Gu brings a Section 1983 claim against New

York City pursuant to Monell v. Department of Social Services of

the City of New York, 436 U.S. 658, 690 (1978). Gu alleges that

the City is subject to municipal liability under Monell for its

9 Gu’s claim also fails because she has not established the existence of

a supervisory relationship. With few exceptions not relevant here, “the

Legislature has delegated the responsibility for prosecuting persons accused

of crime solely to the District Attorney, the public officer entrusted with

the general prosecutorial authority for all crimes occurring in the county

where elected.” Della Pietra v. New York, 71 N.Y.2d 792, 796–97 (N.Y. 1988).

16

“custom of failure to discipline ADAs who continue prosecuting

fake cases even [when] fully aware of false and forged

evidence.” Chen II Compl. 23.

“Plaintiffs who seek to impose liability on local

governments under § 1983 must prove that action pursuant to

official municipal policy caused their injury. Official

municipal policy includes the decisions of a government’s

lawmakers, the acts of its policymaking officials, and practices

so persistent and widespread as to practically have the force of

law.” Connick v. Thompson, 563 U.S. 51, 60–61 (2011). A

municipality’s failure to train its employees is only an

official policy when it amounts to “deliberate indifference to

the rights of persons with whom the untrained employees come

into contact.” Id. at 61. Beyond her conclusory reference to a

“custom,” Gu does not allege any facts to this end. Thus, she

fails to state a Monell claim.

6. Claims Against the Private Defendants

Across three of the cases, Gu v. Chen I, Gu v. Chen

II, and Gu v. Salem, Gu sues private individuals (and several

private companies). She expressly brings some of these claims

under Section 1983, and the Court construes other claims against

the private defendants under the same statute. See, e.g.,

17

Didonato Compl. 7-8.10

Gu sues three groups of private defendants. First,

she sues her landlord, 252685 St. LLC, and related individuals

and entities. Gu alleges that Hang Chen, her landlord’s agent,

falsely accused her of destroying a security camera and

“violated [her] Fourth and Fourteenth Amendment right[s] . . . ”

Chen I Compl. 1, 7-8. She also alleges a conspiracy to violate

her Fourth and Fourteenth Amendment rights between and among

prosecutors, her landlord, her landlord’s agents (Hang Chen,

Emily Hui Chen-Liang, Susana Chong Chen, Hui Chen) a member of

her landlord’s LLC (Qiubo Li), and a repair company and its

owner (Yu Ying Wu, “the LLC d/b/a Xiao Guo Group Inc.”). Chen

II Compl. 2, 16.11

Second, she sues individuals and companies that

purportedly “supervise” her landlords: Chat Mui Chan; Athanasia

DiMaggio; Hugo Salazar; Amy Lessinger; Erik Carlson; RE/MAX Real

10 To the extent that the Court could construe these complaints to

assert one or more state-law causes of action, we decline to do so for two

reasons. First, Gu has not alleged complete diversity of citizenship in any

case. Second, this Order dismisses all federal claims, and the Court

declines to exercise supplemental jurisdiction over any state law claims

pursuant to 28 U.S.C. § 1367.

11 The Court observes the overlap between some facts alleged in these

cases and in Gu v. Sher. See No. 24-CV-6157, 2024 WL 4252034 (E.D.N.Y. Sept.

20, 2024). But certain facts that are arguably “essential” to these actions

were not present in Sher. SEC v. First Jersey Sec., Inc., 101 F.3d 1450,

1463–64 (2d Cir. 1996). Therefore, the Court considers Plaintiff’s

allegations on the merits, rather than as precluded by res judicata.

18

Estate Professionals; RE/MAX, LLC; and RE/MAX Holdings. Id. at

20-21. She does not describe the nature of any such supervisory

relationship. Still, invoking the language of Section 1983

liability, she claims that the supervisory real estate

defendants are liable for violating her rights under a “failure

to supervise and train” theory. Id.; see also Chen I Compl. 8

(alleging that Chan and the RE/MAX Real Estate Professionals

“authorized” Chen’s actions).12

Third, Gu sues Mark Salem, her landlord’s attorney in

the civil action, alleging that he conspired with the judicial

defendants to violate her First and Fourteenth Amendment rights.

Salem Compl. 20-21.

Gu’s claims against these individuals and entities

fail because Section 1983 only applies to state actors. Leeds

v. Meltz, 85 F.3d 51, 54 (2d Cir. 1996). The Constitution does

not regulate the conduct of private parties. See Ciambriello v.

County of Nassau, 292 F.3d 307, 323 (2d Cir. 2002). Indeed,

“private conduct, no matter how discriminatory or wrongful,” is

generally beyond the reach of Section 1983. American

12 Under New York common law, there is a cause of action for negligent

hiring, training, or supervision. See, e.g., Crandall v. Equinox Holdings,

Inc., 231 A.D.3d 472, 472 (N.Y. App. Div. 1st Dep’t 2024). However, as

articulated above, the Court declines supplemental jurisdiction over state

law claims.

19

Manufacturers Mutual Insurance Co. v. Sullivan, 526 U.S. 40, 50

(1999). Rather, “state action may be found [for private actors]

if, though only if, there is such a close nexus between the

State and the challenged action that seemingly private behavior

may be fairly treated as that of the State itself.” Brentwood

Academy v. Tennessee Secondary School Athletic Ass’n, 531 U.S.

288, 295 (2001).

A Section 1983 conspiracy claim requires articulating

a connection between private actors and the state. “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, 292 F.3d at 324.

Gu alleges no facts from which we might plausibly

infer that any of the private defendants are state actors or

conspired with them.13 Additionally, no facts are alleged that

13 In Chen I and Chen II, even if Gu had stated a Section 1983 claim

against Hang Chen, Emily Hui Chen-Liang, Susana Chong Chen, Qiubo Li, Hui

Chen, Yu Ying Wu, and the LLC d/b/a Xiao Guo Group, her Section 1983 claim

20

would plausibly demonstrate a conspiracy between any private

defendant and the state. Therefore, each of Gu’s claims against

the private defendants is dismissed.

B. Claims Against the United States

In Chen I and Didonato, Gu sues the United States

under the FTCA. Chen I Compl. 1, 9; Didonato Compl. 1, 4. She

alleges that the Federal Bureau of Investigation failed to

investigate and “intervene” in “the crimes committed by

Defendant Hang Chen,” her landlord’s agent. Chen I Compl. 9.

She also alleges that she complained to the FBI about ADA

Didonato’s actions in her criminal case, yet the Bureau failed

to act. See Didonato Compl. 4.

Gu’s FTCA claims cannot proceed because they are

barred by sovereign immunity. See Fed. Deposit Ins. Corp. v.

Meyer, 510 U.S. 471, 475 (1994). Absent a waiver of sovereign

immunity, federal courts lack subject matter jurisdiction over

claims against the United States or its agencies. See id. It

is Plaintiff’s burden to demonstrate that sovereign immunity has

been waived. See Makarova v. United States, 201 F.3d 110, 113

(2d Cir. 2000).

against the supervisory real estate professionals and companies would still

fail. Respondeat superior does not apply to 1983 actions; there can be no

liability absent a showing of personal involvement in rights deprivation.

See Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir. 1973).

21

Gu has not carried that burden. In the FTCA, Congress

waived the United States’ sovereign immunity from suits

“resulting from the negligence or wrongful act or omission of

any employee of the Government while acting within the scope of

his office or employment.” 28 U.S.C. § 2679(b)(1); see Dep’t of

Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999) (explaining

narrow scope of FTCA’s sovereign immunity waiver). However, as

noted above, the Due Process Clause does not confer a right to

government aid. See DeShaney, 489 U.S. at 196. More broadly,

“courts within the Second Circuit have determined that there is

. . . no constitutional right to an investigation by government

officials.” Bernstein v. New York, 591 F. Supp. 2d 448, 460

(S.D.N.Y. 2008) (citing cases).

The FTCA also contains a jurisdictional presentment

requirement “permit[ting] an action under the statute to be

filed in federal court only after the agency denies a tort claim

or denial is presumed from the passage of six months from

presentment without a final agency disposition.” Collins v.

United States, 996 F.3d 102, 109 (2d Cir. 2021). In both Chen I

and Didonato, Gu pleads that she submitted online tips to the

FBI on June 30, 2024, and mailed Standard Form 95 to the FBI on

July 2, 2024. See Chen I Compl. 2; Didonato Compl. 7. Form 95

22

can present a claim to an agency if it is sufficiently detailed.

Collins, F.3d at 111. However, Gu initiated both suits on July

2, 2024; she did not wait six months before suing or allege that

she received denials from the FBI. See generally Chen I Compl.;

Didonato Compl.

Thus, the Court lacks jurisdiction over Gu’s FTCA

claims.

C. Requests for Reconsideration

1. Criminal Prosecution in “Bad Faith”

In Gu v. Sher, I determined that Younger v. Harris

required this Court to abstain from reaching Gu’s request to

stay her criminal prosecution. See 2024 WL 4252034, at *3;

Younger v. Harris, 401 U.S. 37 (1971). In Gu v. Salem, her most

recently filed case, Plaintiff continues to challenge that

determination. She alleges that New York is prosecuting her

“with bad faith.” Compl. 5-11. Given the amount of words she

devotes to this assertion, the Court construes the new complaint

as a motion for reconsideration of its prior Order.

Reconsideration is denied. “The standard for granting

such a motion is strict, and reconsideration will generally be

denied unless the moving party can point to controlling

decisions or data that the court overlooked — matters, in other

words, that might reasonably be expected to alter the conclusion

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reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d

255, 257 (2d Cir. 1995). Gu has not met this standard.

2. Justice Campanelli’s Order

In Gu v. Salem, Plaintiff asks this Court to

declare Justice Joy F. Campanelli’s May 10, 2024 order in

her civil case “void and unenforceable.” Compl. 21. The

order enjoins her from destroying her landlord’s property

and publicly posting any remarks or reviews about the

plaintiffs, RE/MAX, or the plaintiffs’ attorneys, among

other conditions. ECF No. 1-2 at 24.

In Gu v. Sher, this Court concluded that Younger

abstention barred Gu’s request for a stay of this same

injunction. See 2024 WL 4252034, at *4. The Court thus

construes this claim, too, as a motion for reconsideration.

That motion is denied. Gu has not articulated any facts or

law that would alter the Court’s prior decision.14

D. Requests for Declaratory Relief

Lastly, Gu seeks a “judgment . . . declaring that”

certain defendants violated her rights. Salem Compl. 21. The

Court construes these claims pursuant to 28 U.S.C. § 2201(a).

14 In Gu v. Sher, plaintiff moved under a First Amendment theory. Gu,

2024 WL 4252034, at *4. Here, she seeks a declaration pursuant to the First

and Fourteenth Amendments. See Salem Compl. 16, 19-21. Gu’s addition of the

Fourteenth Amendment does not change the analysis.

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First, she seeks a declaratory judgment “against defendant the

State of NY” that the judicial defendants violated her First and

Fourteenth Amendment rights. Salem Compl. 19. Among other

allegations, Gu contends that she was denied due process in her

civil case against her landlord because Justice Campanelli “was

never present in Court” during hearings and that she and her

clerks communicated ex parte with Mr. Salem. Id. at 15-16.

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).15 Those factors counsel against the exercise

of such discretion.

The second factor is particularly implicated. It asks

“whether such a judgment would finalize the controversy and

offer relief from uncertainty.” Admiral Ins. Co., 57 F.4th at

15 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.

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100. But the declaratory judgment Gu seeks would do no such

thing — it speaks to past conduct. Asking “the Court only to

recognize a past wrong . . . in the context of declaratory

relief, does not in itself ‘amount to that real and immediate

threat of injury necessary to make out a case or controversy.’”

Morales v. City of New York, 59 F. Supp. 3d 573, 581 (S.D.N.Y.

2014) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 103

(1983)). Based on this and other factors, the Court declines to

entertain Gu’s declaratory judgment request.16

Second, Gu seeks a declaration that the judicial

defendants conspired with Mr. Salem in violation of her First

and Fourteenth Amendment Rights. Salem Compl. 20-21. For the

same reasons, the Court declines to entertain this request as

well.

Third, she seeks a declaration that “Jane Doe of . . .

Kings County Supreme Court conspired with Kings County Supreme

Court [Justice] Larry Martin” to issue “fake orders” denying her

request to proceed as a “Poor Person” in state court. Id. at

17, 21. Jane Doe allegedly told Gu that a “Poor Person

application” she submitted to initiate a lawsuit against a Kings

16 Several of the declaratory judgments that Gu seeks are also barred by

the Eleventh Amendment, which prohibits “federal courts from issuing

retrospective declaratory relief against state officials for past violations

of federal law.” Szymonik, 807 F. App’x at 101.

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County Housing Court Judge was denied when Justice Martin had,

in fact, signed it. Id. at 17; ECF No. 1-2 at 78-80. Once

again, for the reasons articulated above, the Court declines to

enter this declaratory judgment.

IV. Filing Injunction: Notice

Given Plaintiff’s serial filings on the same issue,

the Court is considering a filing injunction against her. “A

district court may, in its discretion, impose sanctions against

litigants who abuse the judicial process.” Shafii v. British

Airways, PLC, 83 F.3d 566, 571 (2d Cir. 1996). Courts evaluate

the following factors when imposing filing injunctions:

(1) the litigant’s history of litigation and in

particular whether it entailed vexatious, harassing or

duplicative lawsuits; (2) the litigant’s motive in

pursuing the litigation, e.g., does the litigant have

an objective good faith expectation of prevailing?;

(3) whether the litigant is represented by counsel;

(4) whether the litigant has caused needless expense

to other parties or has posed an unnecessary burden on

the courts and their personnel; and (5) whether other

sanctions would be adequate to protect the courts and

other parties.

Duran v. Kiley, 586 F. App’x 598, 600 (2d Cir. 2013).

In its Order dismissing Gu v. Sher, the Court warned

Plaintiff that future frivolous filing may result in the

imposition of a filing injunction. See Gu v. Sher, No. 24-cv-

6157, 2024 WL 4252034, at *5 (E.D.N.Y. Sept. 20, 2024).

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Apparently undeterred by that warning, Gu filed two more cases

related to the January 2024 arrest: Gu v. Salem (24-cv-7933),

and Gu v. Salem (24-cv-8444). This Court has now addressed five

suits on the same topic — a poor use of judicial resources. In

addition to the many related to her arrest, Gu has previously

filed frivolous cases in this Court.17 She cannot have a good

faith basis to believe she will prevail; the Court has dismissed

her prior actions. Other sanctions may be inadequate.

The Court is thus contemplating a filing injunction

that would prevent Plaintiff from:

(1) bringing any future proceedings in the Eastern

District of New York without the Court’s prior

permission and (2) filing any papers in connection

with any other case pending in the Eastern District of

New York, unless prior to any such submission: (a)

Plaintiff files a one-page written application to the

Court for permission to file papers in that case; (b)

in that application, she explains why she should be

permitted to file such papers; (c) the Court grants

her application in a written order; and (d) she

submits a copy of the Court’s order with the papers

she has been allowed to file, unless such papers are

in response to those submitted by her adversary.

See Iwachiw v. New York State Dep’t of Motor Vehicles, 396 F.3d

525, 528 (2d Cir. 2005).

17 See, e.g., Gu v. Zeng, No. 23-cv-4168, 2023 WL 4138519 (E.D.N.Y. June

22, 2023) (consolidating two cases, denying TRO application in each case, and

dismissing Plaintiff’s claims for lack of subject matter jurisdiction),

appeal dismissed sub nom. Gu v. Jimenez, No. 23-1038, 2023 WL 9231563 (2d

Cir. Nov. 22, 2023), cert. denied, 144 S. Ct. 1396 (2024).

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Before the Court imposes a filing injunction, a

litigant must be provided notice and an opportunity to be heard.

Moates v. Barkley, 147 F.3d 207, 208 (2d Cir. 1998). Gu is

therefore directed to show cause why the filing injunction

should not issue, on or before March 17, 2025.

V. Conclusion

Plaintiff’s claims against the United States, New

York, and official capacity claims against the prosecutors,

judicial defendants, and Attorney General James are dismissed

without prejudice. See Fed. R. Civ. P. 12(h)(3). All other

claims are dismissed with prejudice for failure to state a

claim, as frivolous, and because Plaintiff has already made

multiple attempts to plead claims related to these facts. See

28 U.S.C. § 1915(e)(2)(B); Owens v. Shields, 34 Fed. App’x 33,

35 (2d Cir. 2002) (concluding that plaintiff’s history of

frivolous filings merited dismissal without leave to amend).

The Clerk of Court is respectfully directed to enter

judgment dismissing all four cases, mail a copy of this

Memorandum and Order to the Plaintiff, and note the mailing on

the relevant dockets. 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 in forma pauperis status is

29

therefore denied for the purpose of any appeal. See Coppedge v.

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

SO ORDERED

_/s/

ERIC R. KOMITEE

United States District Judge

Dated: February 27, 2025

Brooklyn, New York

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