The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________________________________
Natalie J. Oksen,
Plaintiff,
v. 5:25-CV-822
(AJB/MJK)
Fort Drum Mountain Community Homes, LLC., et. al.,
Defendants.
_____________________________________________________________________
Natalie J. Oksen, Pro Se Plaintiff
Mitchell J. Katz, U.S. Magistrate Judge
To the Honorable Anthony J. Brindisi, U.S. District Court Judge:
REPORT- RECOMMENDATION
Oksen began this action on June 25, 2025, by filing a Complaint,
and moving for leave to proceed in forma pauperis (“IFP”). (Dkts. 1, 2).
The Clerk sent her Complaint and IFP application to this Court for
review. (Dkts. 1, 2). After reviewing that Complaint, this Court
recommended the District Court dismiss Complaint in its entirety
without prejudice and with leave to amend. (Dkt. 6). The District Court
adopted that recommendation in its entirety. (Dkt. 8). Months later,
Oksen filed an Amended Complaint, which this Court reviewed for its
sufficiency. (Dkts. 17, 18). In the second report-recommendation, this
Court recommended the District Court dismiss the Amended
Complaint, but allow Oksen leave to amend her Fair Housing Act claim.
(Dkt. 18). The District Court adopted that report-recommendation in its
entirety. (Dkt. 24). Now, Oksen has filed a Second Amended Complaint
(“SAC”). (Dkt. 30). This Court reviews the SAC for sufficiency under 28
U.S.C §1915.
I. BACKGROUND
The parties are familiar with the facts, so the Court does not
include them here.
II. STANDARD OF REVIEW
Courts must consider the sufficiency of the allegations set forth in
a complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A. Section 1915(e)(2)
of Title 28 of the United States Code directs that, when a plaintiff seeks
to proceed in forma pauperis, “the court shall dismiss the case at any
time if the court determines that – . . . (B) the action . . . (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, under 28 U.S.C. § 1915A, a court must review any
“complaint in a civil action in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity”
and must “identify cognizable claims or dismiss the complaint, or any
portion of the complaint, if the complaint . . . is frivolous, malicious, or
fails to state a claim upon which relief may be granted; or . . . seeks
monetary relief from a defendant who is immune from such relief.” 28
U.S.C. § 1915A(b). The term “prisoner” includes pretrial detainees. 28
U.S.C. § 1915A(c) (2006).
Second Circuit jurisprudence suggests that 28 U.S.C.
1915(e)(2)(B)’s review of pro complaints is a two-step inquiry.
At step one, courts apply the traditional special solicitude afforded
to pro se plaintiffs. See, e.g., Rosa v. Doe, 86 F.4th 1001, 1007 (2d Cir.
2023). Indeed, courts are “obligated to afford a special solicitude to pro
se litigants.” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010). “The
solicitude afforded to pro se litigants takes a variety of forms. It most
often consists of liberal construction of pleadings” and “motion papers.”
Id. (cleaned up). So, at step one, courts must ‘“accept all of the facts
alleged in the complaint as true and draw all inferences in the
plaintiff's favor.”’ White v. Schmidt, No. 22-1267, 2024 WL 1266245, at
*2 (2d Cir. Mar. 26, 2024) (summary order) (quoting Harnage v.
Lightner, 916 F.3d 138, 140-41 (2d Cir. 2019)). And once the court has
done so, it must then construe the pro se submission “to raise the
strongest arguments that [it] suggest[s].” Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (emphasis
removed).
At step two, courts subject the liberally construed pleading to Rule
8’s pleading standard. See, e.g., Sykes v. Bank of Am., 723 F.3d 399, 403
(2d Cir. 2013) (citing Twombly Bell Atlantic v. Twombly, 550 U.S. 544,
(2005) and Ashcroft v. Iqbal, 556 U.S. 662 (2009) when affirming a
district court’s dismissal of the plaintiff’s complaint under 28 U.S.C.
1915); see also Edwards v. Erfe, 588 F. App’x 79 (2d Cir. 2015)
(summary order) (citing Sykes and affirming the District Court’s sua
sponte dismissal of a prisoner rights case); Hirsch v. Rochester City
Police Dep’t, 578 F. App’x 49, 50 (2d Cir. 2014) (summary order) (same
in a civil rights case); Sheehy v. Brown, 335 F. App’x 102, 103 (2d Cir.
2009) (summary order) (citing Iqbal and affirming the District Court’s
dismissal of a claim under 20 U.S.C. §1915(e)(2)).
While the Second Circuit has never formally stated that Rule 8’s
pleading standard applies, the Court infers that the Second Circuit has
adopted that position. To arrive at this conclusion, the Court focuses on
two pieces of evidence. First, the Circuit’s citations to Iqbal and
Twombly—which clarified Rule 8s pleading standard. See Sykes, 723
F.3d at 403. Second, the other circuit courts have authorized district
courts to apply Rule 12(b)(6) when reviewing claims under
§1915(e)(2)(B).1 Nothing in the Second Circuit’s jurisprudence leads this
Court to believe that it would break stride with eight other circuit
courts. This evidence, altogether, leads this Court to believe that the
Second Circuit approves of this Court’s application of Rule 12(b)(6)’s
standard to §1915(e)(2)(B) reviews after applying special solicitude to
the pro se submission.
When applying Rule 8 to pleadings, Courts’ must determine if a
claim is facially plausible. See Iqbal, 556 U.S. at 678 (2009) (citing
Twombly, 550 U.S. at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. This means that pro se complaints,
even while liberally construed, “must plead ‘enough facts to state a
1 See Herrera v. Agents of Pennsylvania Bd. of Prob. & Parole, 132 F.4th 248, 254
n.5 (3d Cir. 2025) (applying Rule 12(b)(6)’s standard to §1915(e)(2)(B) review); Martin v.
Duffy, 858 F.3d 239, 248 (4th Cir. 2017) (same); Hale v. King, 642 F.3d 492, 497 (5th Cir.
2011) (same); Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (same); Coleman v. Lab.
& Indus. Rev. Comm’n of Wisconsin, 860 F.3d 461, 468 (7th Cir. 2017) (same); Wilhelm v.
Rotman, 680 F.3d 1113 (9th Cir. 2012) (same) Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir.
2007) (same); Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008) (same).
claim to relief that is plausible on its face.”’ Skyes, 723 F.3d at 403
(quoting Twombly, 550 U.S. at 570). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Iqbal, 556 U.S. at 678. Indeed Rule 8 “demands more
than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Id.
In sum, the Court’s role, when reviewing a Complaint under
§1915(e)(2)(B), is two-fold. First, the Court must draw all inferences in
the pro se plaintiff’s favor and construe their submission to raise the
strongest possible argument. Second, the Court must then review the
Complaint and determine if it plausibly alleges enough facts for the
Court to reasonably infer that the defendant would be liable for the
alleged misconduct.
III. DISCUSSION
Oksen’s Second Amended Complaint plausibly alleges
a §3617 Fair Housing Act discrimination claim.
The Court recommends that the District Court permit Oksen’s
SAC to proceed. Under § 3617 of the Fair Housing Act (“FHA”), parties
are prohibited from, among other things, interfering with a person’s
exercise and enjoyment of the property because of disability. Here,
Oksen alleges Defendants did just that. Considering § 1915’s forgiving
review and without commenting on whether Oksen’s claim would
survive a properly filed dispositive motion, this Court recommends that
the District Court allow Oksen’s SAC to proceed.
It is “unlawful to coerce, intimidate, threaten, or interfere with
any person in the exercise or enjoyment of, or on account of [their]
having exercised or enjoyed, or on account of [their] having aided or
encouraged any other person in the exercise or enjoyment of, any right
granted or protected by section 3603, 3604, 3605, or 3606 of [the Fair
Housing Act (“FHA”)].” 42 U.S.C.A. § 3617. So “[t]o state a retaliation
claim under the FHA,” plaintiffs must plausibly “allege: (1) that [they]
engaged in protected activity by opposing conduct prohibited under the
FHA; (2) that the” defendants were “aware of the protected activity;
(3) that the” defendants “subsequently took adverse action against the
plaintiff; and (4) that there is a causal connection between the protected
activity and the adverse action, i.e., that a retaliatory motive played a
part in the adverse action.” Gokhberg v. 200 Corbin Owners Corp., No.
24-CV-7010, 2025 WL 2782547, at *6 (E.D.N.Y. Sept. 30, 2025) (cleaned
up).
Oksen has plausibly alleged the first element of an FHA claim. In
the Second Amended Complaint, Oksen alleges that “[t]he filing and
active litigation of the instant federal civil action constitutes a protected
activity under 42 U.S.C. §3617.” (SAC, Dkt. 30, at ¶51). She further
alleges that “Defendants’ administrative actions were completely . . .
pretextual.” (Id. at ¶40). Adding to this, Oksen alleges that after she
filed complaints to the “U.S. Access Board regarding” accessibility
issues, “Defendants intentionally escalated the dispute by[,]” among
other things, “executing an early campaign of legal intimidation
designed to chill [her] ongoing statutory reporting and exercise of FHA
rights.” (Id. at ¶¶22, 23). Applying special solicitude to this pleading,
the Court can glean that Oksen is contending that Defendants are
trying to evict her from her residence because she is a person with
disabilities. That is enough to survive § 1915’s forgiving review. See,
e.g., Wentworth v. Hedson, 493 F. Supp. 2d 559, 570 (E.D.N.Y. 2007)
(denying summary judgment were there was evidence that “could lead a
reasonable jury to conclude that the proffered reasons for the
[plaintiff’s] actions were pretextual, and that the real reason was
unlawful discrimination.”).
Oksen has also plausibly alleged the second element of an FHA
claim. Oksen, in her Second Amended Complaint, alleges that
Defendants were aware of her “filing” of “formal administrative
complaints alleging housing discrimination based on disability. . .”.
(SAC, Dkt. 30, at ¶ 24). Likewise, she alleges that Defendants
continued to engage in retaliatory conduct “knowing these exact issues
are actively sub judice in an ongoing federal civil rights lawsuit.” (Id. at
¶42). In fact, Oksen alleges that Defendants’ “retaliatory conduct
significantly intensified and escalated in frequency [and] severity . . .”
(Id. at ¶53). All in all, Oksen has plausibly alleged that Defendants had
notice of her protected activity.
Oksen has also plausibly alleged the third and fourth elements of
an FHA claim. According to Oksen, Defendants relocated her to a
handicap-accessible unit in June 2024. (SAC, Dkt. 30, at ¶22). But, that
apartment had “structural and maintenance deficiencies that
undermined the accessibility of the home, including an improperly
graded shower causing localized flooding, and a failed HVAC system
that Defendants refused to remediate on an emergency basis.” Id.
Because of this, Oksen filed a complaint with the U.S. Access Board. Id.
Nearly a year later, Defendants “utilized their legal representatives to
issue highly adversarial and coercive communications” attempting to
“chill [Oksen’s] ongoing statutory reporting and exercise of FHA rights.”
(Id. at ¶23). In response, Oksen filed “formal administrative complaints
alleging housing discrimination based on disability with the” New York
State Division on Human Rights and the Department of Housing and
Urban Development. (Id. at ¶24). In October of 2025, “immediately
following the closure and resolution of [Oksen’s] protected
accommodation adjustments and HUD administrative filings,
Defendants initiated an aggressive campaign of selective enforcement,
punitive financial assessment, and bad-faith scrutiny.” (Id. at ¶25). This
campaign include several home inspections, two fines for violations of
the pet policy, and threats of eviction. See (id. at ¶¶ 25-42); see also
Gilead Cmty. Servs., Inc. v. Town of Cromwell, 432 F. Supp. 3d 46, 77
(D. Conn. 2019) (“[a]dditionally, as some courts have held, it is
sufficient to state that interference under § 3617 can encompass a
pattern of harassment, invidiously motivated.” (cleaned up)).
Altogether, Oksen has plausibly alleged that Defendants took adverse
action against her even though they were aware of the protected
conduct, and those actions were taken because Oksen reported
Defendant’s conduct.
IV. CONCLUSION
WHEREFORE, based on the above findings, it is
RECOMMENDED that the District Court allow Oksen’s Second
Amended Complaint (Dkt. 30) to proceed and that a response be
required, as it plausibly alleges a Fair Housing Act Retaliation claim, it
is also
ORDERED that the Clerk provide Oksen with copies of the
unpublished decisions cited herein 1n accordance with Lebron v.
Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam); and Oksen is
REMINDED that in accordance with 28 U.S.C. § 636(b)(1), they
have fourteen days within which to file written objections to the
foregoing report. Such objections shall be filed with the Clerk of the
Court. FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW.
Roldan v. Racette, 984 F.2d 85 (2d Cir. 1998) (citing Small v. Sec’y of
Health and Human Servs., 892 F.2d 15 (2d Cir. 1989) (per curiam)); 28
U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 6(a), 6(d), 72.
Dated: July 17, 2026
11 Tran Mitehall | Kate
2024 WL 4870495 claim on which relief may be granted; or (iii) seeks monetary
Only the Westlaw citation is currently available. relief against a defendant who is immune from such relief.” 28
United States District Court, N.D. New York. U.S.C. § 1915(e)(2)(B). Thus, it is a court's responsibility to
determine that a plaintiff may properly maintain his complaint
Matthew H. COLE, Plaintiff, before permitting him to proceed with his action.
v.
Honorable Michael W. SMRTIC, et al. Defendants. Where, as here, the plaintiff proceeds pro se, “the court
must construe his submissions liberally and interpret them
No. 1:24-CV-00847 (MAD/CFH) to raise the strongest arguments that they suggest.” Kirkland
| v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014)
Signed November 21, 2024 (per curiam) (internal quotation marks omitted); see also
Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). As
Attorneys and Law Firms the Second Circuit stated,
MATTHEW H. COLE, 271 Market Street, Amsterdam, New There are many cases in which we have said that a pro
York 12010, Plaintiff pro se. se litigant is entitled to “special solicitude,” that a pro se
litigant's submissions must be construed “liberally,” and
that such submissions must be read to raise the strongest
REPORT-RECOMMENDATION & ORDER arguments that they “suggest[.]” At the same time, our
cases have also indicated that we cannot read into pro se
CHRISTIAN F. HUMMEL, United States Magistrate Judge submissions claims that are not “consistent” with the pro
se litigant's allegations, or arguments that the submissions
I. In Forma Pauperis themselves do not “suggest,” that we should not “excuse
frivolous or vexatious filings by pro se litigants,” and that
*1 Plaintiff pro se Matthew H. Cole (“plaintiff”) pro se status “does not exempt a party from compliance
commenced this action (No. 1:24-CV-00623) on May 6, with relevant rules of procedural and substantive law[.]”
2024, by filing a complaint. See Dkt. No. 1 (“Compl.”).
On September 26, 2024, plaintiff submitted what the Court *2 Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
construes to be a supplement to the complaint.1 See Dkt. No. 477 (2d Cir. 2006) (citations and footnote omitted); see also
Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-92
7. In lieu of paying this Court's filing fees, he submitted an
(2d Cir. 2008).
application for leave to proceed in forma pauperis (“IFP”).
See Dkt. No. 2. The undersigned has reviewed plaintiff's IFP
“The [Second Circuit]’s ‘special solicitude’ for pro se
application and determines that he financially qualifies to
pleadings has its limits, because pro se pleadings still must
proceed IFP.2 Thus, the Court proceeds to its review of the
comply with ... the Federal Rules of Civil Procedure [(‘Fed.
complaint pursuant to 28 U.S.C. § 1915. Plaintiff has also R. Civ. P.’)].” Kastner v. Tri State Eye, No. 19-CV-10668
submitted for the Court's review a Pro Se Application for (CM), 2019 WL 6841952, at *2 (S.D.N.Y. Dec. 13, 2019)
Permission to File Electronically and a Motion to Appoint (quoting Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994)).
Counsel. See Dkt. Nos. 4, 5. Pleading guidelines are provided in the Federal Rules of
Civil Procedure. Specifically, Rule 8 requires the pleading to
include:
II. Initial Review
(1) a short and plain statement of the grounds for the court's
jurisdiction ...;
A. Legal Standards
(2) a short and plain statement of the claim showing that
Section 1915 of Title 28 of the United States Code directs the pleader is entitled to relief; and
that, when a plaintiff seeks to proceed IFP, “the court shall
dismiss the case at any time if the court determines that ... the (3) a demand for the relief sought...
FED. R. CIV. P. 8(a). Although “[n]o technical form is determine that a claim is not legally frivolous before
required,” the Federal Rules make clear that each allegation permitting a pro se plaintiff's complaint to proceed. See, e.g.,
contained in the pleading “must be simple, concise, and Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d
direct.” Id. at 8(d). “The purpose ... is to give fair notice 362, 363 (2d Cir. 2000). “Legal frivolity ... occurs where
of the claim being asserted so as to permit the adverse ‘the claim is based on an indisputably meritless legal theory
party the opportunity to file a responsive answer, prepare an [such as] when either the claim lacks an arguable basis in
adequate defense and determine whether the doctrine of res law, or a dispositive defense clearly exists on the face of the
judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54, complaint.’ ” Aguilar v. United States, Nos. 99-MC-0304, 99-
54 (N.D.N.Y. 1999) (internal quotation marks and citations MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999)3
omitted). Allegations that “are so vague as to fail to give the
(quoting Livingston v. Adirondack Beverage Co., 141 F.3d
defendants adequate notice of the claims against them” are
434, 437 (2d Cir. 1998)); see also Neitzke v. Williams, 490
subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104
U.S. 319, 325 (1989) (“[D]ismissal is proper only if the legal
(2d Cir. 2009) (summary order).
theory ... or factual contentions lack an arguable basis.”).
Further, Fed. R. Civ. P. 10 provides:
B. Complaint
[a] party must state its claims or
Plaintiff's civil cover sheet indicates that he seeks to bring this
defenses in numbered paragraphs,
action pursuant to “Title U.S.C. 18 Section 241, Conspiracy
each limited as far as practicable to
Against Rights & Title U.S.C. 18 Section 242 Deprivation
a single set of circumstances. A later
of rights Under Color of Law.” Dkt. No. 1-1 at 1. The civil
pleading may refer by number to
cover sheet further provides that his cause of action involves,
a paragraph in an earlier pleading.
“Violation of Due process, Speedy Trial Rights, Ineffective
If doing so would promote clarity,
Assistance of Counsel. I feel I am being targeted for being
each claim founded on a separate
black and gay.” Id.
transaction or occurrence – and each
defense other than a denial – must be
Plaintiff's form complaint checks the box indicating that
stated in a separate count or defense.
he seeks to bring this case pursuant to 42 U.S.C. § 1983.
See Compl. at 3. In response to the question in the form
complaint asking in “what federal constitutional or statutory
FED. R. CIV. P. 10(b). This serves the purpose of “provid[ing] right(s) do you claim is/are being violated by state or local
an easy mode of identification for referring to a particular officials,” plaintiff responds, “Due Process, 30.30 Speedy
paragraph in a prior pleading[.]” Flores, 189 F.R.D. at 54 Trial Violation, Ineffective Assistance of counsel.”4 Id. In
(internal quotation marks and citations omitted). A complaint
response to a question asking him to explain “how each
that fails to comply with the pleading requirements “presents
defendant acted under color of state or local law,” plaintiff
far too a heavy burden in terms of a defendant's duty to
states “Each judge deliberately denied me due process, and
shape a comprehensive defense and provides no meaningful
refused to look into the paperwork to see that i was improperly
basis for the Court to assess the sufficiency of their claims.”
denied my speedy trial rights. It was a tean [sic] effort.
Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). As
The ADA/Special Prosecutor withheld potential exculpatory
the Second Circuit has held, “[w]hen a complaint does not
material which was usd [sic] against me. All mentioned
comply with the requirement that it be short and plain, the
actions were done and upheld even after I showed federal law
court has the power, on its own initiative ... to dismiss the
with supportive case law as a pro se litigant.” Id.
complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.
1988) (citations omitted). However, “[d]ismissal ... is usually
Plaintiff provides that his “case is still on appeakl [sic] in
reserved for those cases in which the complaint is so confused,
Appellate Court Third Department. I feel they are guilty,
ambiguous, vague, or otherwise unintelligible that its true
or part of what I call a scandal. I went to them from the
substance, if any, is well disguised.” Id. (citations omitted).
very start with a complaint to the grievance committee,
present” Id. Plaintiff states, “[t]he ineffective assistance of counsel and
The County Court are a matter already mentioned in the
In response to a question that asks plaintiff to state the facts appeal.” Dkt. No. 7 at 2. Plaintiff states that “[t]o get my
underlying his claims, plaintiff states, “Please see attached conviction, I allege judicial and prosecutorial misconduct,
Article 78 that is attached. It was dismissed being in the wrong and ineffective assistance of counsel × 4. That is why I am
court, but is on point.” Id. at 4. Plaintiff did not provide the pro se. I had to protect myself when appointed counsel did
Court with any such attachment and has not submitted any not. It also went through a couple judges which is why they
Article 78 materials. See Compl., Dkt. No. 7. are mentioned in the preliminary complaint/paperwork, and
why I mention bias.” Id. Plaintiff states he can “prove each
In response to the form complaint's question asking about thing I saw not just with my words, but with transcripts5 from
any injuries suffered as a result of the conduct he complains the County Court, and the Adult Drug Court.” Id. Plaintiff
of, plaintiff states, “Sever [sic] depression over 20 years, refers to being drug free for four and a half years and having
irreperable [sic] harm, defamation of charcter [sic] by academic success in college. Id. at 3. He states that he wishes
arguments not legally allowed to give. Loss of income, this Court to hear his case because he believes he will not
inability to gain and keep employment, mental trauma, “see bias” in federal court “like I saw in others.” Id. Plaintiff
instilled disbelief in justice in the legal system, familial states that he “also put in a Notice of Removal in the Federal
traumam [sic] due to my legal battles.” Id. Indicating the relief Court for those criminal charges that led to the Complaint. I
sought, plaintiff states do not trust the assigned appellate attorney. That case too has
Constitutional violations. That case number is 1:24-CR-301
(AMN).” Id.
*4 Petitioner seeks reinstatement
of driving priveldges [sic], and 10
million dollars for damages caused by
conflict of interest, deliberate violation
C. Discussion6
of Due Process, Speedy Trial rights,
Ineffective assistance of counsel, 1. Rule 8
malice, Brady Violation, Petitioner
claims deliberate misconduct and As a threshold issue, plaintiff's complaint fails to meet the
malice in Montgomery County Court, requirements of Rule 8. See FED. R. CIV. P. 8(a)(2). He
the Saratoga Disrict Attorney's Office, does not provide a short and plain statement of the claim
and the Supreme Court Appellate demonstrating why he is entitled to relief. Although he
Division Third department. ** This is makes general references to both an Article 78 proceeding
subject to change if an attorney agrees and a criminal proceeding and unexplained references to
to represent. “Due Process, 30.30 Speedy Trial Violation, Ineffective of
Counsel,” he does not provide factual support or context.
Thus, his complaint does not provide “fair notice” to
Compl. at 5. Although he typed his name, plaintiff does not defendants of the claims against them. See FED. R. CIV. P.
sign the complaint where a signature is indicated. See id. at 8. 8(a)(2).
Plaintiff provides in his supplement that he “removed this
action to district court asserting jurisdiction pursuant to 42 2. Heck v. Humphrey
U.S.C. 1983, and § 1441.” Dkt. No. 7. at 1. Plaintiff states
that he removed this case from Montgomery County Supreme However, there are several substantive concerns that further
Court. See id. He states that he seeks or sought the removal lead the undersigned to recommend dismissal. First, in
because he was told he was “not guarantee counsel” at the referencing to “Due Process, 30.30 Speedy Trial Violation,
state, but that “[i]n Federal Court, there is that option, pending Ineffective of Counsel” and explicitly referencing a criminal
qualification, and I am told, if a lawyer agrees to take it, then conviction, it is clear that plaintiff is attempting to seek
of denying him due process and contends that an unnamed proceedings, conviction, and/or sentence. The claims plaintiff
“ADA/Special Prosecutor withheld potential exculpatory seeks to pursue relate to allegations that he was denied
material which was usd [sic] against me.” Compl. at 4. due process, denied speedy trial rights, and experienced
Plaintiff also references a conviction. See Dkt. No. 7 at 4. ineffective assistance of counsel. Accordingly, plaintiff's
Such claims would be barred by Heck v. Humphrey. claims are barred by Heck unless and until he can demonstrate
favorable termination of his criminal conviction.7
*5 As this Court, citing the District of Connecticut, has set
forth:
In Heck, the Supreme Court held that in order for a 3. Immunities
plaintiff “to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by Plaintiff names as defendants several defendants who are
actions whose unlawfulness would render a conviction immune from suit. Insofar as plaintiff names Hon. Michael
or sentence invalid, a § 1983 plaintiff must prove that W. Smrtic, Interim Montgomery County Judge and Tatiana N.
the conviction or sentence has been reversed on direct Coffinger, “County/Family/Surrogate's Court Judge”8 such
appeal, expunged by executive order, declared invalid by claims would be barred by judicial immunity.
a state tribunal authorized to make such determination, or
called into question by a federal court's issuance of a writ *6 “With minor exceptions, judges are entitled to absolute
of habeas corpus.” Id. at 486-87. The court further held immunity for actions relating to the exercise of their judicial
that “[a] claim for damages bearing that relationship to functions.” Zavalidroga v. Girouard, No. 6:17-CV-682 (BKS/
a conviction or sentence that has not been so invalidated ATB), 2017 WL 8777370, at *8 (N.D.N.Y. July 7, 2017)
is not cognizable under § 1983.” Id. at 487 (emphasis in (citing Mireles v. Waco, 502 U.S. 9, 9-10 (1991) (per
original). curiam)). “Judicial immunity has been created for the public
interest in having judges who are ‘at liberty to exercise
[ ] their functions with independence and without fear of
consequences.’ ” Id. (quoting Huminski v. Corsones, 396
Thus, under Heck and its progeny, if a conviction has not
F.3d 53, 74 (2d Cir. 2004)). “Judicial immunity applies even
been invalidated previously, a Ҥ 1983 action is barred ...
when the judge is accused of acting maliciously or corruptly.”
no matter the target of the prisoner's suit ... if success in
Id. (citation omitted); see Positano v. New York, No. 12-
that action would necessarily demonstrate the invalidity
CV-2288 (ADS/AKT), 2013 WL 880329, at *4 (E.D.N.Y.
of confinement or its duration.” Wilkinson v. Dotson, 544
Mar. 7, 2013) (explaining that the plaintiff may not bring
U.S. 74, 81-82 (2005) (emphasis in original).
action against a judge for actions taken in his judicial capacity,
Ali v. Shattuck, No. 8:24-CV-0128 (DNH/CFH), 2024 even when the actions violated the ADA).
WL 2747619, at *3 (N.D.N.Y. May 29, 2024), report-
recommendation adopted sub nom. Ali v. Dow, No. 8:24- “Judicial immunity is immunity from suit, not just immunity
CV-128, 2024 WL 3460745 (N.D.N.Y. July 18, 2024) from the assessment of damages.” Zavalidroga, 2017 WL
(quoting Zografidis v. Richards, No. 3:22-CV-00631 (AVC), 8777370, at *8 (citing Mitchell v. Forsyth, 472 U.S. 511,
2022 WL 21756775, at *7 (D. Conn. July 6, 2022), report and 526 (1985)). “The only two circumstances in which judicial
recommendation adopted (Oct. 7, 2022), aff'd, No. 22-3197, immunity does not apply is when he or she takes action
2023 WL 7538211 (2d Cir. Nov. 14, 2023)). ‘outside’ his or her judicial capacity and when the judge takes
action that, although judicial in nature, is taken ‘in absence
Plaintiff has failed to demonstrate that any criminal charge(s), of jurisdiction.’ ” Id. (quoting Mireles, 502 U.S. at 11-12).
conviction, or sentence has been “reversed on direct appeal, “In determining whether or not a judge acted in the clear
expunged by executive order, declared invalid by a state absence of all jurisdiction, the judge's jurisdiction is ‘to be
tribunal authorized to make such determination, or called into construed broadly, and the asserted immunity will only be
question by a federal court's issuance of a writ of habeas overcome when the judge clearly lacks jurisdiction over the
corpus.” Zografidis, 2022 WL 21756775, at *7. Although subject matter.’ ” Pacherille v. Burns, 30 F. Supp. 3d 159,
plaintiff's complaint wants for detail, the undersigned can 163 (N.D.N.Y. 2014) (quoting Ceparano v. Southampton Just.
the nature of the act [complained of] itself, i.e., whether it Compl.
is a function normally performed by a judge, and [on] the
expectations of the parties, i.e., whether they dealt with the Finally, insofar as plaintiff seeks to sue Prosecutor Samuel V.
judge in his judicial capacity.” Ceparano, 404 F. App'x at 539 Maxwell, Esq., Assistant District Attorney, in addition to the
(internal quotation marks and citation omitted). “Further, if Heck issues noted above, he would be protected by absolute
the judge is performing in his judicial capacity,” he “ ‘will not prosecutorial immunity. As this Court has recently reiterated,
be deprived of immunity because the action he took was in
error, was done maliciously, or was in excess of his authority; Prosecutors enjoy “absolute immunity from § 1983 liability
rather, he will be subject to liability only when he has acted for those prosecutorial activities ‘intimately associated
in the clear absence of all jurisdiction.’ ” Ceparano, 404 F. with the judicial phase of the criminal process.’ ” Barr v.
App'x at 539 (quoting Stump v. Sparkman, 435 U.S. 349, 362 Abrams, 810 F.2d 358, 360-61 (2d Cir. 1987) (citing Imbler
(1978)). “Judges are not, however, absolutely ‘immune from v. Pachtman, 424 U.S. 409, 430 (1976)). This immunity
liability for nonjudicial actions, i.e., actions not taken in the encompasses “virtually all acts, regardless of motivation,
judge's judicial capacity.’ ” Bliven v. Hunt, 579 F.3d 204, 209 associated with [the prosecutor's] function as an advocate.”
(2d Cir. 2009) (quoting Mireles, 502 U.S. at 11). Hill v. City of New York, 45 F.3d 653, 661 (2d Cir.
1995) (internal quotations and citation omitted). Absolute
Thus, as plaintiff names the judicial defendants in relation to immunity applies when a prosecutor's conduct, acting as an
actions or omissions that they took in their roles as judges, advocate during the judicial phase of the criminal process,
their actions are protected by absolute judicial immunity. “involves the exercise of discretion.” Flagler v. Trainor,
To the extent plaintiff names Hon. Felix Catena, “Retired 663 F.3d 543, 547 (2d Cir. 2011) (citing Kalina v. Fletcher,
Administrative Law Judge,” Judge Catena is also protected 522 U.S. 118, 127 (1997)).
by absolute judicial immunity as a judge's retirement, “does
Accordingly, absolute immunity extends to functions such
not impact [his or] her immunity for acts taken in [his or]
as “deciding whether to bring charges and presenting a case
her official capacity before her retirement.” McCray v. Lewis,
to a grand jury or a court, along with the tasks generally
No. 16-CV-3855 (WFK/VMS), 2016 WL 4579081, at *2
considered adjunct to those functions, such as witness
(E.D.N.Y. Aug. 31, 2016). To the extent plaintiff may seek to
preparation, witness selection, and issuing subpoenas.”
sue the judges their official capacities, the suit is barred by the
Simon v. City of New York, 727 F.3d 167, 171 (2d
Eleventh Amendment. See Pacherille v. Burns, 30 F. Supp.
Cir. 2013) (citing Imbler, 424 U.S. at 431 n.33); see
3d 159, 163 n.5 (N.D.N.Y. 2014) (“The Eleventh Amendment
also Flagler, 663 F.3d at 547 (explaining, “the Supreme
shields judges from suit to the extent that they are sued in their
Court has found prosecutors absolutely immune from
official capacities.”).
suit for alleged misconduct during a probable cause
hearing, in initiating a prosecution, and in presenting
*7 In addition, plaintiff also references, exclusively in his
the State's case ... [but] withheld absolute immunity for
“relief” section of the form complaint, “the Supreme Court
conduct unrelated to advocacy, such as giving legal advice,
Appellate Division, Third Department” when stating that he
holding a press conference, or acting as a complaining
experienced “deliberate misconduct and malice.” Compl. at
witness.”). “[O]nce a court determines that challenged
7. He does not name this Court as a defendant anywhere in
conduct involves a function covered by absolute immunity,
the complaint. However, even if plaintiff were to have named
the actor is shielded from liability for damages regardless
the Appellate Division, Third Department as a defendant,
of the wrongfulness of his motive or the degree of injury
such defendant would also need to be dismissed based on
caused ....” Bernard v. Cnty. of Suffolk, 356 F.3d 495, 503
Eleventh Amendment immunity as the Appellate Division “is
(2d Cir. 2004) (citing Cleavinger v. Saxner, 474 U.S. 193,
merely an agency or arm of New York State.” Benyi v. New
199-200 (1985)).
York, No. 3:20-CV-1463 (DNH/ML), 2021 WL 1406649, at
*5 (N.D.N.Y. Mar. 23, 2021), report and recommendation Williams v. Atkins, No. 5:24-CV-0573 (DNH/TWD), 2024
adopted, No. 3:20-CV-1463, 2021 WL 1404555 (N.D.N.Y. WL 3649849, at *5 (N.D.N.Y. June 11, 2024), report
Apr. 13, 2021) (citation omitted). Accordingly, to the extent and recommendation adopted, No. 5:24-CV-573, 2024 WL
a liberal reading of the complaint may suggest that plaintiff 3548760 (N.D.N.Y. July 26, 2024).
seeks to name the Appellate Division as a defendant, such
potentially exculpatory material” that was used against absolute prosecutorial immunity; and it is further
him. Compl. at 4. Beyond the Heck barriers already
discussed, even if plaintiff could amend to provide greater RECOMMENDED, that, to the extent a liberal reading
detail, absolute immunity would extent to even this alleged of the complaint may suggest that plaintiff seeks to name
misconduct as such allegations clearly fall within the scope of the Appellate Division, Third Department, as a defendant
prosecutorial immunity. Accordingly, it is recommended that (Dkt. Nos. 1, 7), such claims be DISMISSED WITH
any claims against ADA Samuel V. Maxwell be dismissed PREJUDICE as barred by Eleventh Amendment immunity,
for absolute prosecutorial immunity. “Furthermore, because and it is
the District Attorney's prosecutorial immunity is substantive
and not something that can be corrected by a better pleading, RECOMMENDED, that plaintiff's pro se motion for
I recommend that the dismissal be with prejudice.” Phillips permission to file electronically (dkt. no. 4) and motion to
v. New York, No. 5:13-CV-927, 2013 WL 5703629, at *5 appoint counsel10 (dkt. no. 5) be DISMISSED AS MOOT
(N.D.N.Y. Oct. 17, 2013) (quoting Cuoco v. Moritsugu, 222 based on the above recommendations, and it is
F.3d 99, 223 (2d Cir. 2000)).9
ORDERED, that the Clerk serve this Report-
Recommendation & Order on plaintiff in accordance with the
Local Rules.
III. Conclusion
IT IS SO ORDERED.
*8 It is ORDERED, that plaintiff's in forma pauperis
application (dkt. no. 2) be GRANTED; and it is
Pursuant to 28 U.S.C. § 636(b)(1), parties have
RECOMMENDED, that plaintiff's section 1983 claims FOURTEEN (14) days within which to file written
against Honorable Michael W. Smrtic; Tatiana N. Coffinger, objections to the foregoing report. Such objections shall be
County/Family/Surrogate's Court Judge; and Felix Catena, filed with the Clerk of the Court. FAILURE TO OBJECT
Retired Administrative Law Judge (Dkt. Nos. 1, 7) be TO THIS REPORT WITHIN FOURTEEN (14) DAYS
DISMISSED WITH PREJUDICE as follows: (1) claims WILL PRECLUDE APPELLATE REVIEW. Roldan v.
brought against them in their personal/individual capacities Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y
for judicial immunity, and (2) claims brought against them in of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see
their official capacities for Eleventh Amendment immunity; also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 72.11
and it is further
RECOMMENDED, that plaintiff's section 1983 claims All Citations
against Assistant District Attorney Samuel V. Maxwell (Dkt.
Not Reported in Fed. Supp., 2024 WL 4870495
Footnotes
1 The submission includes a letter addressed to District Judge D'Agostino, titled, “Requirements for Cases
Removed From State Court,” Dkt. No. 7; a receipt from Montgomery County Clerk dated December 8, 2022;
and a “Notice of Claim” with the caption of Cole v. County of Montgomery, dated December 7, 2022. See
Dkt. No. 7. The undersigned has reviewed this submission in connection with the initial review of plaintiff's
complaint. See Sira v. Morton, 380 F. 3d 57, 67 (2d Cir. 2004).
2 Plaintiff is advised that, although he has been granted IFP status, he is still required to pay all fees and costs
he may incur in this action, including, but not limited to, copying fees, transcript fees, and witness fees.
4 Although plaintiff generally references ineffective assistance of counsel, Compl. at 4, he does not name
any attorney who may have represented him. Any claims against the prosecutor would not be considered
ineffective assistance of counsel because Mr. Maxwell, as the prosecutor, was not plaintiff's attorney.
5 Plaintiff did not provide any transcripts.
6 As a courtesy, the Court has provided plaintiff with copies of any unpublished cases cited within this Report-
Recommendation & Order.
7 The undersigned recognizes that claims that are determined to be barred by Heck are dismissed without
prejudice. However, the undersigned has recommended dismissal with prejudice because plaintiff has only
named defendants who are immune from relief. Accordingly, the undersigned is recommending dismissal of
the claims based on these immunities, rather than a Heck dismissal. The undersigned has included the Heck
review for sake of completeness.
8 Although plaintiff provides no facts regarding any family court proceedings, that he named a family court
judge and makes general reference to that he seeks review over actions taken by a family court judge. Even
if plaintiff were to amend his complaint to provide facts about any possible family court proceedings and
details about any alleged violations of his rights that he believes he faced in that Court, if plaintiff seeks this
Court's review of an order of the family court, such review would be barred by Rooker-Feldman, and if plaintiff
seeks this Court's review or intervention of a currently pending/ongoing Family Court proceeding, such review
would be barred by Younger. See Porter v. Nasci, No. 5:24-CV-0033 (GTS/TWD), 2024 WL 1142144, at
*4 (N.D.N.Y. Mar. 15, 2024) (citations omitted), report and recommendation adopted, 2024 WL 3158645
(N.D.N.Y. June 25, 2024) (“Under the Rooker-Feldman doctrine, a federal district court lacks authority to
review a final state court order or judgment where a litigant seeks relief that invites the federal district court
to reject or overturn such a final state court order or judgment.”); see also Diamond “D” Constr. Corp. v.
McGowan, 282 F.3d 191, 198 (2d Cir. 2002) (“[F]ederal courts [must] abstain from taking jurisdiction over
federal constitutional claims that involve or call into question ongoing state proceedings.”).
9 Plaintiff appears to characterize his submissions as a purported removal to federal court or suggests that
he seeks to remove his case from Montgomery County Court to this Court. See Dkt. No. 7 (citing 28 U.S.C.
§ 1441). However, in addition to the infirmities mentioned above, plaintiff has not demonstrated that any
proceeding related to this complaint has been properly removed to, or is subject to removal to, this Court.
See, e.g., 28 U.S.C. § 1446. Indeed, plaintiff's submissions appear to indicate that plaintiff is the plaintiff in
the County Court action. See id. § 1446(a).
10 The undersigned also notes that plaintiff did not contend that he made any efforts to obtain counsel on his
own, show proof of any attorneys he contacted. See Terminate Control Corp v. Horowitz, 28 F.3d 1335 (2d
Cir. 1994). See Dkt. No. 5.
11 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three (3)
additional days will be added to the fourteen (14) day period, meaning that you have seventeen (17) days from
the date the Report-Recommendation and Order was mailed to you to serve and file objections. FED. R. CIV.
P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline
is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Id. § 6(a)(1)(c).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
588 Fed.Appx. 79 (Mem) ORDERED, ADJUDGED, AND DECREED that the
This case was not selected for judgment and order of the district court are AFFIRMED.
publication in West's Federal Reporter.
RULINGS BY SUMMARY ORDER DO NOT HAVE Appellant M.A. Edwards, proceeding pro se, appeals from
PRECEDENTIAL EFFECT. CITATION TO A the district court's judgment dismissing his 42 U.S.C. §
SUMMARY ORDER FILED ON OR AFTER JANUARY 1983 complaint sua sponte and from the order denying
1, 2007, IS PERMITTED AND IS GOVERNED BY reconsideration of that judgment. We assume the parties'
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 familiarity with the underlying facts and procedural history.
AND THIS COURT'S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT We review a district court's sua sponte dismissal of a
FILED WITH THIS COURT, A PARTY MUST complaint de novo. Sykes v. Bank of Am., 723 F.3d 399, 403
CITE EITHER THE FEDERAL APPENDIX OR AN (2d Cir.2013). Pro se submissions are generally reviewed with
ELECTRONIC DATABASE (WITH THE NOTATION “special solicitude,” and we interpret those submissions to
“SUMMARY ORDER”). A PARTY CITING A raise the strongest claims suggested. Triestman v. Fed. Bureau
SUMMARY ORDER MUST SERVE A COPY OF IT ON of Prisons, 470 F.3d 471, 474–75 (2d Cir.2006) (per curiam).
ANY PARTY NOT REPRESENTED BY COUNSEL. District courts should not dismiss a pro se complaint without
United States Court of Appeals, granting leave to amend unless amendment would be futile.
Second Circuit. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000).
M.A. EDWARDS, Plaintiff–Appellant, Edwards first argues that the district court erred in dismissing
v. his due process claim based on his allegation that he was
ERFE, Warden, Corrigan C.I.; Official, Individual, unlawfully deprived of his property. A prisoner may challenge
LaJoie, Complex Warden; Official, Individual, the deprivation of property in a § 1983 action only if
the State provides no adequate post-deprivation remedy.
Sutherland, Correction Officer; Official and Individual,
Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82
Lynn Milling, PoP Management; Official, Individual,
L.Ed.2d 393 (1984). Connecticut provides inmates with a
Iozzia, Correction Officer; Official and Individual,
remedy for lost or destroyed property. Under Connecticut
Peck, Correction Officer; Official and Individual, Penn, General Statutes § 4–141 et seq., a person may bring
Captain; Official and Individual, Defendants–Appellees. a claim against the State to the Claims Commissioner
unless, inter alia, the law establishes another administrative
No. 14–1597.
remedy for that claim. Conn. Gen.Stat. § 4–142. An
|
inmate's property claim may not be brought directly to the
Jan. 8, 2015.
Claims Commissioner because Connecticut Department of
Appeal from a judgment and order of the United States Corrections (“DOC”) Administrative Directive 9.6(16)(B)
District Court for the District of Connecticut (Alfred V. establishes an administrative remedy for prisoners aggrieved
Covello, J.). by property loss or damage. However, if a prisoner exhausts
his internal administrative remedy and the DOC's Lost
Attorneys and Law Firms Property Board (“LPB”) denies his claim, he may then bring
his claim to the Claims Commissioner, see id. at 9.6(16)(F),
M.A. Edwards, Suffield, CT, pro se. who, as *81 relevant here, may order relief or authorize suit,
see Conn. Gen.Stat. § 4–158.
No Appearance, for Defendants–Appellees.
Present: GERARD E. LYNCH, DENNY CHIN, Circuit The district court properly ruled that Edwards's claim
Judges, EDWARD KORMAN,* District Judge. failed because he did not allege that the above process
was inadequate. Arguably, the district court should not
have dismissed the claim without providing Edwards an
opportunity to amend. See Cuoco, 222 F.3d at 112. However,
SUMMARY ORDER any error is harmless because Edwards's reconsideration
granted the opportunity to amend. See Port Dock & Stone No. 3:08CV1092 (MRK), 2010 WL 3023888, at *5 (D.Conn.
Aug.2, 2010).
Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 127 (2d Cir.2007).
In that motion, Edwards argued that the postdeprivation
Lastly, Edwards contends that his double-bunking with
remedy was inadequate because prison staff told him that the
another inmate violates his Eighth Amendment rights.
LPB required him to prove his ownership with a receipt of
That claim fails because double-bunking is not per se
purchase. That allegation does not demonstrate that Edwards
unconstitutional and Edwards has not alleged that the practice
lacked an adequate state remedy because, irrespective of the
has “lead to deprivations of essential food, medical care, or
LPB's methods of reaching its decision, he could seek relief
sanitation,” or to other conditions that rise to the level of cruel
from the Claims Commissioner, whose consideration of the
issue would have been independent of the LPB's decision. and unusual punishment. Rhodes v. Chapman, 452 U.S. 337,
Edwards suggests no reason, either in his reconsideration 344, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981).
motion or on appeal, why the presentation of his claim to
the Claims Commissioner would have been an inadequate We review the denial of a motion for reconsideration for abuse
remedy if the LPB were to have denied his claim. of discretion. Simon v. City of N.Y., 727 F.3d 167, 171 (2d
Cir.2013). “[R]econsideration will generally *82 be denied
Edwards also asserts that Connecticut's housing of sentenced unless the moving party can point to controlling decisions or
with unsentenced inmates violates his constitutional rights as data that the court overlooked-matters, in other words, that
a sentenced inmate. However, the Fifth Circuit case relied on might reasonably be expected to alter the conclusion reached
by Edwards postulates a due process right of pretrial detainees by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257
not to be housed indiscriminately with sentenced inmates, not (2d Cir.1995). Here, the district court properly declined to
the reverse. See Jones v. Diamond, 636 F.2d 1364, 1374 (5th grant relief because the arguments and allegations raised in
Cir.1981), overruled on other grounds by Int'l Woodworkers the reconsideration motion did not entitled Edwards to relief.
of Am. v. Champion Int'l Corp., 790 F.2d 1174 (5th Cir.1986).
Finally, we note that appellees failed to file a brief in this
Whereas “[d]ue process requires that a pretrial detainee not be
appeal, despite requesting and receiving from this Court
punished,” a “sentenced inmate ... may be punished, although
an extension of time in which to do so. In fact, since
that punishment may not be ‘cruel and unusual’ under the
requesting an extension, appellees have made no filing with
Eighth Amendment.” Bell v. Wolfish, 441 U.S. 520, 535 n. 16,
this Court whatsoever. While an appellee is of course under no
99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Edwards' claim fails
obligation to submit a brief, the views of appellees will often
because he alleges no facts indicating that his housing with
be of assistance to the Court, especially in dealing with claims
unsentenced inmates rather than sentenced inmates amounts
made by uncounseled appellants. Moreover, it is discourteous
to cruel and unusual punishment.
to request an extension only to then cease all communication
without notifying the Court that the party has decided not to
We need not consider whether Connecticut's housing practice
file a brief.
violates the due process rights of pretrial detainees, because
Edwards lacks standing to assert the rights of pretrial
We have considered all of Edwards's remaining arguments
detainees. See Ziemba v. Rell, 409 F.3d 553, 555 (2d
Cir.2005). We note, however, that two recent District of
and find them to be without merit. Accordingly, we AFFIRM
the judgment and order of the district court.
Connecticut decisions have held that this practice does
not violate a pretrial detainee's due process rights “absent
allegations that the pretrial detainee suffered an injury from
All Citations
being housed with one or more convicted inmates, or that
the placement with convicted inmates was intended to punish 588 Fed.Appx. 79 (Mem)
the pretrial detainee.” Silvera v. Conn. Dep't of Corr., 726
Footnotes
* The Honorable Edward Korman, of the United States District Court for the Eastern District of New York,
sitting by designation.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
KeyCite Blue-Striped Flag
Appeal Filed by Gokhberg v. 200 Corbin Owners Corp., 2nd Cir., February 13, 2026
2025 WL 2782547
Only the Westlaw citation is currently available.
United States District Court, E..D. New York.
Yury GOKHBERG and Marat Gokhberg
Vv.
200 CORBIN OWNERS CORP., et al.
No. 24-CV-7010 (RER) (IRC)
Signed September 30, 2025
Attorneys and Law Firms
Yury Gokhberg, Brooklyn, NY, Pro Se.
Marat Gokhberg, Brooklyn, NY, Pro Se.
A. G. Chancellor I, Tromello, McDonnell & Kehoe, Melville, NY, Deborah E. Riegel, Rosenberg & Estis P.C., New York,
NY, for 200 Corbin Owners Corp., Arthur Weiner, Alla Berger, Irene Buch, Israel Odesky, United Management Corp.
Deborah E. Riegel, Rosenberg & Estis P.C., New York, NY, Noah Nunberg, L'Abbate Balkan Colavita & Contini, Melville,
NY, for Rosenberg & Estis, P.C.
Ira N. Glauber, Dilworth Paxson LLP, New York, NY, for Harvey D. Kampton.
Malvina Lin, Malvina Lin, P.C., Brooklyn, NY, for Elton Cohn, Sarah Cohn.
Christina Marie Ricker, Winget Spadafora & Schwartzberg, LLP, New York, NY, for Henry Daley.
Stacey Anne Van Malden, Bronx, NY, for Robert Renzulli.
MEMORANDUM & ORDER
RAMON E. REYES, JR., District Judge:
*1 Pro se plaintiffs Yury and Marat Gokhberg (“Yury” and “Marat,” respectively, and “Plaintiffs” or “Gokhbergs,” collectively)
bring this action against 200 Corbin Owners Corp., Arthur Weiner, Alla Berger, Irene Buch, Israel Odesky, and United
Management Corp. (collectively, the “Co-op Defendants”); Corbin Realty LLC; the corporation's attorneys, Harvey D. Kampton
and Rosenberg & Estis, P.C. (the “Professional Defendants”); Elton Cohn and Sarah Cohn (the “Purchaser Defendants’);
Mannion Auctions, LLC (the “Auction Defendant’); and City Marshals Henry Daley and Robert Renzulli (the “Marshal
Defendants,” and together with the Co-op Defendants, the Professional Defendants, the Purchaser Defendants, and the Auction
Defendant, “Defendants”). Plaintiffs assert claims under the Racketeer Influenced and Corrupt Organizations Act (“RICO”),
18 US.C. §§ 1961-1968, and the Fair Housing Act (“FHA” or “Fair Housing Act”), 42 U.S.C. §§ 3601-3619, along with ten
state-law causes of action.
FHA claims are dismissed for failure to state a claim. Plaintiffs’ remaining state-law claims are dismissed for lack of subject
matter jurisdiction. The Court also dismisses, sua sponte, the claims against Corbin Realty LLC and the Auction Defendant.1
Because the defects are jurisdictional, time-barred, or otherwise incurable, the Court will not grant any further leave to amend.
BACKGROUND
I. Factual Background2
The Gokhbergs have been shareholders in 200 Corbin Owners Corp. for more than twenty years. In April 1997, Yury first became
a 200 Corbin Owners Corp. shareholder by purchasing shares corresponding to apartment 6V, 200 Corbin Place, Brooklyn, New
York. (Amended Complaint, ECF No. 10 (“Amended Complaint”) ¶ 12).3 In October 2000, Yury purchased additional shares
corresponding to apartments 6M and 6N. (Id. ¶ 13). In March 2002, Marat purchased shares corresponding to apartment 3C.
(Id. ¶ 11). Subsequently, Marat and Yury purchased additional shares corresponding to another apartment. (Id. ¶ 14). In April
2012, apartments 6M and 6N were combined into one apartment, 6MN, and the corresponding shares were issued to Yury. (Id. ¶
15). Eight years later, in December 2020, Marat came to hold the shares to apartment 6MN as security for a purported $800,000
mortgage to Yury, which was subsequently registered and recorded as a UCC-1 lien. (Id. ¶ 16).
*2 Beginning in 2017, 200 Corbin Owners Corp. initiated a series of Housing Court proceedings against Yury for unpaid
maintenance under the proprietary lease. (ECF Nos. 37-4, 37-5, 37-6). On March 16, 2022, that court entered a judgment of
possession and eviction against Yury. 200 Corbin Owners Corp. v. Gokhberg, Index No. LT-311514-21/KI (N.Y. Civ. Ct. Kings
Cnty. Mar. 16, 2022), ECF No. 29-29 (the “Housing Court Judgment”). Plaintiffs allege that, in connection with the foreclosure
and eviction, Yury lost personal property valued at more than $200,000, that Marat's asserted lien was disregarded, and that
they were subjected to retaliation and other governance abuses at 200 Corbin. (Am. Compl. ¶¶ 82, 194, 198, 209, 221).
In 2023, Plaintiffs filed a plenary action in Supreme Court, Kings County, against the Co-op, its board members, managing
agent, counsel, purchasers, and auctioneer, raising claims related to the foreclosure, eviction, and auction of Apartment 6MN.
On July 24, 2024, the court dismissed the complaint in its entirety after Plaintiffs failed to submit opposition or appear for
argument. Gokhberg v. 200 Corbin Owners Corp., Index No. 525322/2023 (N.Y. Sup. Ct. Kings Cnty. July 24, 2024), ECF No.
29-8 (the “Kings County Dismissal”). Plaintiffs now assert similar claims in this federal action.
II. Procedural Background
Plaintiffs filed their initial complaint on October 4, 2024, and their Amended Complaint on December 4, 2024. (ECF Nos. 1,
10). After the Amended Complaint, each defendant group moved to dismiss. Marshal Defendant Daley filed the first motion
on December 18, 2024. (ECF No. 12). The Co-op Defendants followed on February 20, 2025. (ECF Nos. 26–27). Professional
Defendant Rosenberg & Estis, P.C. filed its motion the next day, February 21, 2025. (ECF Nos. 28–29). Professional Defendant
Harvey D. Kampton filed his motion on March 5, 2025. (ECF Nos. 31–32). The Purchaser Defendants moved on March 13,
2025. (ECF No. 37). Finally, Marshal Defendant Renzulli filed his motion on April 1, 2025. (ECF No. 38).
Although six separate motions are pending, Defendants advance overlapping grounds for dismissal. First, they argue that the
Court lacks subject-matter jurisdiction under the Rooker–Feldman doctrine because the relief sought would effectively undo
the March 16, 2022 Housing Court Judgment and the July 24, 2024 Kings County Dismissal. (ECF Nos. 12, 26–27, 28–29,
38). Second, Defendants contend that the RICO claim fails to plead a cognizable enterprise, predicate acts, a pattern, or Rule
9(b) particulars. (Id.) Third, Defendants assert that the FHA section 3617 retaliation claim does not allege protected activity,
causation, or timeliness (ECF Nos. 26–27, 28–29). Fourth, Defendants urge the Court to decline supplemental jurisdiction over
any remaining state-law claims if the federal claims are dismissed. (Id.)
LEGAL STANDARDS
“[F]ederal courts are courts of limited jurisdiction and may not decide cases over which they lack subject matter jurisdiction.”
Lyndonville Sav. Bank & Tr. Co. v. Lussier, 211 F.3d 697, 700 (2d Cir. 2000). Rule 12(b)(1) of the Federal Rules of Civil
Procedure provides for dismissal of a claim when the federal court lacks jurisdiction over the subject matter. Fed. R. Civ. P.
12(b)(1). In reviewing a motion to dismiss under Rule 12(b)(1), courts must “accept as true all material factual allegations in
the complaint,” Shipping Fin. Serv. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998), but refrain from “drawing from the
pleadings inferences favorable to the party asserting [jurisdiction],” APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003). The
plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence. Aurecchione v. Schoolman
Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005).
*3 Rule 12(b)(6) authorizes dismissal where the complaint fails to state a claim upon which relief can be granted. Fed. R. Civ.
P. 12(b)(6). To survive such a motion, 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)). While all factual allegations contained in the
complaint are assumed to be true, this presumption is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.
When a plaintiff proceeds pro se, the court must liberally construe the complaint “as raising the strongest arguments they
suggest”. Lovelace v. Wells Fargo Bank, NA, 762 F. Supp. 3d 186, 189 (E.D.N.Y. 2025) (quoting Graham v. Henderson, 89 F.3d
75, 79 (2d Cir. 1996)); see Sause v. Bauer, 585 U.S. 957, 960 (2018) (per curiam). As a result, the court may accept as true
well pleaded factual allegations in his opposition to a motion to dismiss. See Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir.
2013). This is because the “pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see
also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (concluding that regardless of the holdings of Twombly and Iqbal that the
court is obligated to liberally interpret pro se complaints).
DISCUSSION
Plaintiffs assert twelve causes of action. The Court first addresses the Eleventh Cause of Action, brought under RICO against
all defendants. (Am. Compl. at 32). Second, the Court turns to the Twelfth Cause of Action, brought under the FHA. (Id. at
33). Next, the Court considers whether it has subject matter jurisdiction over the Plaintiffs’ state-law and common-law causes
of action, set out as the First through Tenth Causes of Action, under the Rooker–Feldman doctrine. (Id. at 10–31). Finally, the
Court explains why, even if Rooker–Feldman doctrine does not apply, it would decline to exercise supplemental jurisdiction.
Because the defects are jurisdictional, time-barred, or otherwise incurable, further leave to amend would be futile and is denied.
I. Plaintiffs’ RICO Claim Is Dismissed
RICO makes it unlawful “for any person employed by or associated with any enterprise engaged in, or the activities of which
affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs
through a pattern of racketeering activity or collection of unlawful debt.” 18 U.S.C. § 1962(c). Section 1962(d) further makes it
unlawful for “any person to conspire to violate” Section 1962. Id. § 1962(d). As the Second Circuit has explained, if a plaintiff
fails to “allege a substantive violation of RICO,” a claim alleging a RICO conspiracy under section 1962(d) must fail as well.
Capital Asset Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159, 182 (2d Cir. 2004). Accordingly, the Court begins with the claim
under Section 1962(c).
scrutiny at claims for a civil RICO, given RICO's damaging effects on the reputations of individuals alleged to be engaged in
RICO enterprises and conspiracies.” Spiteri v. Russo, No. 12-CV-2780 (MKB) (RLM), 2013 WL 4806960, at *45 (E.D.N.Y.
Sept. 7, 2013). To state a violation of Section 1962(c), a plaintiff must plead four elements: “(1) conduct, (2) of an enterprise,
(3) through a pattern (4) of racketeering activity.” DeFalco v. Bernas, 244 F.3d 286, 306 (2d Cir.2001); see also S.Q.K.F.C.,
Inc. v. Bell Atl. TriCon Leasing Corp., 84 F.3d 629, 633 (2d Cir. 1996).
*4 Under this framework, a “pattern of racketeering activity” is a prerequisite to a Section 1962(c) claim. Katzman v. Victoria's
Secret Catalogue, 167 F.R.D. 649, 656 (S.D.N.Y. 1996). The statute defines “racketeering activity” by listing specific criminal
acts that may serve as predicate offenses, including “any act or threat involving ... bribery ... which is chargeable under State
law and punishable by imprisonment for more than one year,” as well as “any act which is indictable under ... section 201
(relating to bribery), section 1341 (relating to mail fraud), section 1343 (relating to wire fraud) ... [and] section 1956 (relating
to the laundering of monetary instruments).” 18 U.S.C. § 1961(1). “[F]ailure to plead RICO predicate acts, much less a pattern
of racketeering activity, is itself fatal to [p]laintiff's RICO claim.” Katzman, 167 F.R.D. at 656.
Here, Plaintiffs conclusorily allege that Defendants “used interstate wires and mail to transmit false financial statements and
fraudulent UCC filings,” “transferred misappropriated funds through various entities ... to conceal the illegal source and use of
these funds,” and “engaged in bribery of third parties, including but not limited to city marshals.” (Am Compl. ¶¶ 251–53). The
Court therefore considers, in turn, mail and wire fraud, bribery, and money laundering as potential predicate acts.
A. Mail Fraud and Wire Fraud
Plaintiffs fail to plausibly plead the predicate acts of mail fraud and wire fraud.
A RICO claim alleging mail and wire fraud as predicate acts must show “(1) the existence of a scheme to defraud, (2) defendant's
knowing or intentional participation in the scheme, and (3) the use of interstate mails or transmission facilities in furtherance
of the scheme.” S.Q.K.F.C., Inc. v. Bell Atlantic TriCon Leasing Corp., 84 F.3d 629, 633 (2d Cir. 1996) (citation omitted). “The
term ‘scheme to defraud’ is measured by a non-technical standard reflecting fundamental notions of honesty, fair play and right
dealing.” Aiu Ins. Co. v. Olmecs Med. Supply, Inc., No. CV-04-2934 (ERK), 2005 WL 3710370, at *10 (E.D.N.Y. Feb. 22,
2005) (citing United States v. Trapilo, 130 F.3d 547, 550 (2d Cir.1997)). It has been described as “a plan to deprive a person
‘of something of value by trick, deceit, chicane or overreaching.’ ” Id. (quoting United States v. Autuori, 212 F.3d 105, 115
(2d Cir. 2000)). “The use of the mails need not be essential to the fraudulent scheme as long as the mailing is incident to an
essential part of the scheme.” Zigman v. Giacobbe, 944 F. Supp. 147, 153 (E.D.N.Y.1996) (citing Pereira v. United States, 347
U.S. 1, 8 (1954)).
Furthermore, “[i]n pleading a violation of the mail and wire fraud statutes, Rule 9(b) of the Federal Rules of Civil Procedure
must be satisfied.” In re Sumitomo Copper Litig., 995 F. Supp. 451, 455 (S.D.N.Y. 1998) (citing Mills v. Polar Molecular Corp.,
12 F.3d 1170, 1176 (2d Cir.1993)). Rule 9(b) requires a plaintiff to “state with particularity the circumstances constituting
fraud.” Fed. R. Civ. P. 9(b). Pursuant to this higher pleading standard, a complaint must “specify the statements it claims were
false or misleading, give particulars as to the respect in which plaintiffs contend the statements were fraudulent, state when and
where the statements were made, and identify those responsible for the statements.” Colony at Holbrook, Inc. v. Strata G.C.,
Inc., 928 F. Supp. 1224, 1230 (E.D.N.Y. 1996) (quoting McLaughlin v. Anderson, 962 F.2d 187, 191 (2d Cir. 1992)). “[T]he
‘overwhelming trend’ amongst the lower courts is to apply Rule 9(b) strictly in order to effect dismissal of civil RICO suits.”
In re Sumitomo Copper Litig., 995 F. Supp. at 455 (citations omitted).
Here, Plaintiffs’ allegations fall short of these requirements. In the Amended Complaint, Plaintiffs only assert that Defendants
“used interstate wires and mail to transmit false financial statements [and] fraudulent UCC filings.” (Am. Compl. ¶ 251).
Plaintiffs do not identify any specific misrepresentation, explain why it was false, or otherwise set forth a scheme designed to
deprive them of property by trick or deceit. Although Plaintiffs invoke the mails and wires, they do not allege the circumstances
contend that the “200 Corbin Insider Group”—comprising the cooperative, its board members, the managing agent, outside
counsel, and the city marshals—operated with a common purpose of seizing Apartment 6MN, with each actor playing a discrete
role (board members voting policy, the agent mailing arrears notices, counsel drafting filings, and marshals enforcing them).
(Id.) These generalized and conclusory allegations are wholly insufficient under Rule 9(b) and do not plausibly plead mail or
wire fraud as predicate acts. See Mills, 12 F.3d at 1176 (finding that allegations on mail and wire fraud, when pled as RICO
predicate acts, must satisfy Rule 9(b)).
B. Money Laundering
*5 Plaintiffs’ allegations of money laundering likewise fail to state a predicate act.
To state a claim for money laundering under RICO, a plaintiff must plead: “(1) that the defendant conducted a financial
transaction; (2) that the transaction in fact involved the proceeds of specified unlawful activity as defined in [18 U.S.C.] §
1956(c)(7); (3) that the defendant knew that the property involved in the financial transaction represented the proceeds of some
form of unlawful activity; and (4) that the defendant knew that the financial transaction was designed in whole or in part to
conceal or disguise the source, ownership, control, etc., of those proceeds.” Dale v. Banque SCS Alliance S.A., No. 02 Civ. 3592
(RCC) (KNF), 2005 WL 2347853, at *5 n.2 (S.D.N.Y. Sept. 22, 2005) (citing United States v. Maher, 108 F.3d 1513, 1527–28
(2d Cir. 1997)); see also In re 650 Fifth Ave. & Related Properties, 777 F. Supp. 2d 529, 558–59 (S.D.N.Y. 2011).
Here, Plaintiffs allege that Defendants “transferred misappropriated funds through various entities, including Corbin Realty
LLC, to conceal the illegal source and use of these funds for personal benefit.” (Am. Compl. ¶ 253). This allegation does not
identify a particular financial transaction, let alone facts showing that the transaction involved “proceeds of specified unlawful
activity” under Section 1956(c)(7). Nor does it allege that any Defendant knew the property involved represented such proceeds,
or that the transaction was designed to conceal the source or ownership of those proceeds. Instead, the complaint offers only
conclusory references to laundering money without factual detail as to what occurred, when, by whom, or with what knowledge.
C. Bribery
The Court considers Plaintiffs’ bribery allegations under both federal law and state law. See 18 U.S.C. § 1961(1).
Federal law defines bribery as “giving or attempting to give something of value to a public official to influence an official act,
commit fraud, or to omit any act in violation of his lawful duty, or for a public official to demand something of value to do
the same.” 18 U.S.C. § 201. “Pursuant to 18 U.S.C. § 201 (bribery of a public official), the person receiving the alleged bribe
must be a federal official.” Laverpool v. New York City Transit Auth., 760 F. Supp. 1046, 1058 (E.D.N.Y. 1991). Thus, as a
threshold matter, a bribery predicate requires a suitable federal public official. Here, Plaintiffs allege that Defendants “engaged
in bribery of third parties, including but not limited to city marshals.” (Am. Compl. ¶ 253). But New York City marshals are
not “federal official[s]” within the meaning of § 201(a)(1). See United States v. Aloi, 449 F. Supp. 698, 709 n.14 (E.D.N.Y.
1977) (interpreting Second Circuit precedent to hold that a city official was not a federal public official under § 201); see also
United States v. Hoskins, 520 F. Supp. 410, 414 (N.D. Ill. 1981) (explaining that persons acting on behalf of a state or municipal
government are not “acting for or on behalf of the United States” within § 201).
Nor have Plaintiffs pleaded facts that would plausibly state a violation of New York's bribery statutes, which may serve as
RICO predicates if “chargeable under State law and punishable by imprisonment for more than one year.” 18 U.S.C. § 1961(1).
Bribery is defined under New York Penal Law Sections 180.00–180.55 (bribery not involving public servants) and 200.00–
200.50 (bribery involving public officials). Here, only Sections 200.00–200.50 are relevant. According to Section 200.00 of
the New York Penal Law, “a person is guilty of bribery in the third degree when he confers, or offers or agrees to confer, any
benefit upon a public servant upon an agreement or understanding that such public servant's vote, opinion, judgment, action,
decision or exercise of discretion as a public servant will thereby be influenced.” N.Y. Penal Law § 200.00.
any facts regarding “an agreement or understanding” with a marshal, the “value of the benefit” conferred, or the “official act” to
be influenced. The bare assertion of “bribery” is therefore conclusory and does not plausibly allege a felony chargeable under
New York law. Absent factual allegations satisfying the elements of either federal or state bribery, Plaintiffs have not pleaded
a predicate act for bribery under RICO.
With no adequately pleaded predicate acts, Plaintiffs fail to properly plead a “pattern of racketeering activity,”4 so their Section
1962(c) claim fails; the Section 1962(d) conspiracy claim fails for the same reason. Capital Asset Mgmt., Inc., 385 F.3d at 182.
II. Plaintiffs’ FHA Claim Is Inadequately Pleaded and Untimely
Plaintiffs’ FHA retaliation theory rests on four allegations: (1) that Yury “was deprived of his use of Apt. 6MN ... as a result of
retaliation for raising accounting and legal concerns” (Am. Compl. ¶ 102); (2) that Yury “was deprived of his ability to rent or
sell” due to withheld permission, failure to process a buyer's application, and alleged discrimination against buyers with children
and persons with disabilities (id. ¶ 102); (3) that “defendants have retaliated ... over objections and requests for information” (id.
¶ 127); and (4) that certain defendants “retaliated ... by engaging in discriminatory practices, obstructing [Plaintiffs’] ability
to rent or sell ... and taking adverse actions ... for raising concerns about illegal activities and mismanagement” (id. ¶ 260).
Defendants argue these allegations fail to state a claim and are time-barred (ECF No. 26-3 at 13–19; ECF No. 44 at 7–8); the
Court agrees.
The FHA forbids discrimination in housing because of race, color, religion, sex, familial status, national origin and disability.
See 42 U.S.C. §§ 3604–3606. Section 3617 prohibits retaliation for exercising rights under the FHA. See 42 U.S.C. § 3617;
Favourite v. 55 Halley St., Inc., 381 F. Supp. 3d 266, 278 (S.D.N.Y. 2019). To state a retaliation claim under the FHA, a plaintiff
must allege: (1) that he engaged in protected activity by opposing conduct prohibited under the FHA; (2) that the defendant(s)
was aware of the protected activity; (3) that the defendant(s) subsequently took adverse action against the plaintiff; and (4) that
there is a causal connection between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in
the adverse action.’ ” Favourite, 381 F. Supp. 3d at 278 (quoting Lynn v. Vill. of Pomona, 373 F. Supp. 2d 418, 432 (S.D.N.Y.
2005)). The term “protected activity” refers to “action taken to protest or oppose statutorily prohibited discrimination.” Miller
v. Bd. of Managers of Whispering Pines at Colonial Woods Condo. II, 457 F. Supp. 2d. 126, 131 (E.D.N.Y. 2006) (cleaned up).
*7 Here, Plaintiffs fail to allege that they engaged in any protected activity—action taken to protest or oppose statutorily
prohibited discrimination. Plaintiffs assert retaliation “for raising accounting and legal concerns involving defendants”, or “over
objections and requests for information”, and for “raising concerns about illegal activities and mismanagement” shareholder
disputes—not for opposing or reporting housing discrimination prohibited by the FHA. (Am. Compl. ¶¶ 98, 102, 127, 260). In
their opposition, Plaintiffs further point to a rejected application by a prospective purchaser, Dmitry Basov, and contend that
Yury insisted on fair treatment. (Pls.’ Opp. at 10). Plaintiffs make only general references to alleged discrimination against
prospective buyers “based on the number of children” or against “persons with disabilities,” and these assertions are not tied
to any protected activity by Plaintiffs themselves. (Am. Compl. ¶ 102). Plaintiffs have simply failed to plead that they engaged
in any protected activity.
The claim is also untimely. FHA claims are subject to a two-year statute of limitations. See 42 U.S.C. § 3613(a)(1)(A) (providing
in relevant part that a civil action may be commenced “not later than 2 years after the occurrence or the termination of an
alleged discriminatory housing practice”). For example, in Pantoja v. Scott, the court held that the statute of limitations began
to run when the defendant refused to provide secondary financing, which “occurred or terminated” on the date of the closing,
even though eviction and rescission proceedings followed. No. 96 Civ. 8593 (AJP), 2001 WL 1313358, at *9 (S.D.N.Y. Oct.
26, 2001). The court further explained that the continuing violation doctrine did not apply because the alleged discriminatory
act concluded at the closing, and later events were merely consequences rather than new violations. Id. at 10–11. Likewise
here, any possible FHA violation ended no later than the September 1, 2021 foreclosure sale, when Plaintiffs’ housing interest
in Apartment 6MN was extinguished, even if they continued to feel its effects afterward. (Am. Compl. ¶¶ 76–83). Plaintiffs
is time-barred.
For these reasons, Plaintiffs’ FHA retaliation claim is dismissed.
III. Plaintiffs’ State-Law Claims Are Dismissed under Rooker–Feldman Doctrine
“The Rooker–Feldman doctrine prevents the lower federal courts from exercising jurisdiction over cases brought by ‘state-
court losers’ challenging ‘state-court judgments rendered before the district court proceedings commenced.’ ” Lance v. Dennis,
546 U.S. 459, 460 (2006) (per curiam) (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005));
see also Hoblock v. Albany County Bd. of Elecs.,422 F.3d 77, 85 (2d Cir.2005) (same). The Rooker–Feldman doctrine applies
where the federal-court plaintiff: (1) lost in state court, (2) complains of injuries caused by the state-court judgment, (3) invites
the district court to review and reject the state court judgment, and (4) commenced the district court proceedings after the state-
court judgment was rendered. Hoblock, 422 F.3d at 85; see also Vossbrinck v. Accredited Home Lenders, Inc., 773 F.3d 423,
426 (2d Cir. 2014).
The Court observes that Plaintiffs’ federal complaint is, in substance, an attack on two separate state-court judgments: first, the
March 16, 2022 judgment of eviction entered by the New York City Housing Court (the “Housing Court Judgment”); and second,
the July 24, 2024 dismissal of their action in the New York Supreme Court, Kings County (the “Kings County Dismissal”).
Under Hoblock, two of the four Rooker–Feldman requirements are plainly satisfied. Plaintiffs are “state-court losers” within the
meaning of the doctrine, having lost possession of apartment 6MN in Housing Court and suffered dismissal of their subsequent
claims in Supreme Court.5 Likewise, both judgments were rendered well before the commencement of this action in October
2024, satisfying the timing requirement.6
*8 In determining the second and third requirements, the Court first considers the Kings County Dismissal, then turns to the
Housing Court Judgment.
A. The Kings County Dismissal
The Court begins with the Kings County Dismissal. That order dismissed, in its entirety, Plaintiffs’ claims against 200
Corbin Owners Corp., Arthur Weiner, Alla Berger, Irene Buch, Israel Odesky, United Management Corp., Corbin Realty LLC,
Rosenberg & Estis, P.C., Harvey D. Kampton, Elton and Sarah Cohn, and Mannion Auctions, LLC. (ECF No. 29-8). In this
action, Plaintiffs assert the very same state-law causes of action against those same defendants, and seek relief that would
effectively nullify the Kings County Dismissal.
Federal courts in this Circuit have repeatedly emphasized that the critical inquiry under Rooker–Feldman is whether the injury
complained of was caused by the state court judgment itself. See McKithen v. Brown, 481 F.3d 89, 97–98 (2d Cir. 2007). That
principle applies with equal force to default judgments and dismissals. See Shieh v. Chase Bank USA, N.A., No. 11–CV–5505
(CBA)(SMG), 2012 WL 2678932, at *5 (E.D.N.Y. July 6, 2012) (holding that “[Rooker–Feldman] applies to default judgments
just as it does to other types of judgments,” and that challenges must be brought through state vacatur procedures); Granger
v. Harris, No. CV–05–3607 (SJF)(ARL), 2007 WL 1213416, at *5 (E.D.N.Y. Apr. 24, 2007) (finding that claims of wrongful
service and a resulting lien “in essence, seek to overturn the default judgment entered against Granger in the state court action”).
Here, by reasserting essentially the same claims against the same defendants, Plaintiffs are, in substance, inviting this Court to
undo the injury inflicted by the Kings County Dismissal. The causal link is direct: absent the Kings County Dismissal, Plaintiffs
would still have a vehicle for the relief they now seek. Thus, Plaintiffs’ federal complaint falls squarely within the second and
third prongs of the doctrine, because it both complains of injuries caused by the state-court judgment and invites this Court to
review and reject that judgment.
Accordingly, the state-law claims against the Co-op Defendants, the Professional Defendants, the Purchaser Defendants, Corbin
Realty LLC, and the Auction Defendant are dismissed for lack of subject matter jurisdiction.
B. The Housing Court Judgment
The only defendants not encompassed by the Kings County Dismissal are the Marshal Defendants, and the claims against
them necessarily rise or fall with the Housing Court Judgment. The Amended Complaint alleges that the Marshal Defendants
“facilitated the unlawful seizure and fraudulent transfer of Apartment 6MN” by executing the eviction order. (Am. Compl. ¶
256). But, as the Marshal Defendants themselves argue, their role was limited to carrying out the Housing Court Judgment.
(ECF No. 12-6 at 6).
In Bush v. Danziger, the court held that the plaintiff's alleged injuries—including the lockout by a marshal, the removal of
belongings by movers, and the actions of NYCHA employees—were all “produced by a state-court judgment and not simply
ratified, acquiesced in, or left unpunished by it.” No. 06 Civ. 5529 (PKC), 2006 WL 3019572, at *4 (S.D.N.Y. Oct. 23, 2006).
The Housing Court judgment in favor of NYCHA was the direct legal cause of the eviction, and each downstream injury flowed
from enforcement of that judgment. The court explained that the source of injury was the Housing Court judgment itself, because
without that order none of the alleged injuries would have occurred.
*9 Here, the same reasoning applies. Plaintiffs’ allegations against the Marshal Defendants are not independent of the Housing
Court Judgment but are inseparable from it, because their alleged misconduct consisted entirely of executing the eviction
order. Without the Housing Court Judgment, the Marshal Defendants would have had no authority to act and no injury would
have followed. The injuries Plaintiffs ascribe to the Marshal Defendants were “produced by a state-court judgment,” Hoblock,
422 F.3d at 88. Thus, Plaintiffs’ claims against the Marshal Defendants also satisfy the second and third prongs of Rooker–
Feldman.7
Because the alleged injuries all flow directly from these judgments, the Court lacks subject matter jurisdiction over Plaintiffs’
First through Tenth Causes of Action under the Rooker–Feldman doctrine.8
IV. Supplemental Jurisdiction Over State-Law Claims Is Declined
Even if Rooker–Feldman did not deprive the Court of subject-matter jurisdiction, dismissal of Plaintiffs’ state law claims would
be appropriate. See 28 U.S.C. § 1367(a). “[W]here all the federal claims have been dismissed at a relatively early stage, the
district court should decline to exercise supplemental jurisdiction over pendent state-law claims.” Astra Media Grp., LLC v.
Clear Channel Taxi Media, LLC, 414 F. App'x 334, 337 (2d Cir. 2011); see also Marcus v. AT & T Corp., 138 F.3d 46, 57
(2d Cir.1998). Dismissal is favored because it allows “state courts ... if so called upon, [to] decide for themselves whatever
questions of state law this case may present.” Giordano v. City of N.Y., 274 F.3d 740, 754 (2d Cir. 2001) (citation omitted). After
considering these factors, the Court declines to exercise supplemental jurisdiction over Plaintiffs’ remaining state-law claims.
V. Leave to Amend Will Not Be Granted
Courts in this Circuit often consider whether pro se litigants should be afforded leave to amend upon the dismissal of their
claim. Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795–96 (2d Cir. 1999); Branum v. Clark, 927 F.2d 698, 705 (2d Cir.
1991). However, “[l]eave to amend ... may properly be denied for: ‘undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party
by virtue of allowance of the amendment, futility of amendment, etc.’ ” Ruotolo v. City of New York, 514 F.3d 184, 191 (2d
Cir. 2008) (citation omitted).
untimeliness under the FHA, and substantive pleading deficiencies in the RICO claim9—are not ones that could be cured by
better pleading. Tocker v. Philip Morris Cos., Inc., 470 F.3d 481, 491 (2d Cir. 2006) (holding that “a motion for leave to amend a
complaint may be denied when amendment would be futile.” (citing Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2003))); Wlosinski
v. Smith, No. 17-CV-6865-FPG, 2018 WL 1827671, at *4 (W.D.N.Y. Apr. 17, 2018) (declining to grant leave to amend because
the court did not have subject matter jurisdiction pursuant to the FTCA). Under these circumstances, leave to amend is denied.
CONCLUSION
*10 For the foregoing reasons, Defendants’ motions to dismiss (ECF Nos. 12, 26–27, 28–29, 31–32, 37, 38) are granted. The
Clerk of Court is respectfully directed to enter judgment and close the case.
SO ORDERED.
All Citations
Slip Copy, 2025 WL 2782547
Footnotes
1 Corbin Realty LLC and the Auction Defendant did not file a motion to dismiss. However, the Court addresses the
claims against these parties sua sponte. District courts have the inherent authority to dismiss meritless claims sua sponte.
Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000) (per curiam) (affirming the district
court's conclusion that it had the power to dismiss a frivolous action sua sponte); Wachtler v. Cty. of Herkimer, 35
F.3d 77, 82 (2d Cir. 1994) (“The district court has the power to dismiss a complaint sua sponte for failure to state a
claim.”) (quoting Leonhard v. United States, 633 F.2d 599, 609 n.11 (2d Cir. 1980)). Plaintiffs must be given notice and
an opportunity to be heard, but a court can dismiss claims sua sponte, particularly where a defendant has neither been
served nor appeared. Alki Partners, L.P. v. Vatas Holding GMBH, 769 F. Supp. 2d 478, 499 (S.D.N.Y. 2011) (dismissing,
sua sponte, claims against a non-appearing, non-moving defendant where motions by other defendants put the plaintiff
on notice of the ground for dismissal), aff'd sub nom Alki Partners, L.P. v. Windhorst, 472 F. App'x 7 (2d Cir. 2012)
(summary order).
2 Unless otherwise noted, all facts are drawn from the Plaintiffs’ Amended Complaint (ECF No. 10) and are assumed
true for purposes of these motions.
3 The Amended Complaint contains a version that is redlined over the original complaint. (ECF No. 10 at 36-73). The
references herein are to the Amended Complaint appearing at ECF No. 10 pages 1-35, which the Court construes as
the operative pleading.
4 The Court further notes that even if Plaintiffs could adequately allege two predicate acts—which they have not—the
continuity element of a RICO “pattern” can never be satisfied on the facts alleged. A RICO pattern may be established
only through open-ended or closed-ended continuity. Reich v. Lopez, 858 F.3d 55, 60 (2d Cir. 2017). Plaintiffs cannot
show open-ended continuity because the alleged scheme was inherently terminable: it was directed solely at recovering
possession of a single apartment and ended with the Housing Court's judgment of possession and eviction on March 16,
2022. See Cofacrédit, S.A. v. Windsor Plumbing Supply Co., 187 F.3d 229, 244 (2d Cir. 1999); Spool v. World Child Int'l
is not convinced, as disputed arrears in 2015 is at most a billing dispute rather than a statutory predicate act. The earliest
arguable predicate act was the foreclosure in September 2020 and the latest was the March 2022 eviction, a period
of approximately eighteen months. The Second Circuit has “never held a period of less than two years to constitute a
‘substantial period of time’ ” sufficient for closed-ended continuity. Cofacrédit, S.A., 187 F.3d at 242.
5 Plaintiffs contend that only Yury “lost” in state court. (Pls’ Opp. at 5). The record forecloses that contention: whatever
the posture in Housing Court, both Yury and Marat were plaintiffs in the 2023 Kings County action, and that complaint
was dismissed in its entirety on July 24, 2024. (ECF No. 29-8).
6 Plaintiffs argue that the relevant judgment for Rooker–Feldman purposes is the February 6, 2025 order denying vacatur.
(Pls.’ Opp. at 5). That contention is misplaced. The operative judgments are the March 16, 2022 Housing Court judgment
and the July 24, 2024 Kings County dismissal, because those judgments created the injuries of which Plaintiffs complain.
See McKithen v. Brown, 481 F.3d 89, 98 (2d Cir. 2007) (“the applicability of the Rooker–Feldman doctrine turns ... on
the causal relationship between the state-court judgment and the injury of which the party complains in federal court”).
The 2025 vacatur denial did not itself cause any new injury, but merely left the prior judgments undisturbed.
7 The Court also notes that a substantial portion of Plaintiffs’ state-law counts—though styled against non-marshal
defendants—seek relief that would effectively undo the Housing Court Judgment, including challenges to the auction
and share reissuance, the eviction and seizure of property, and subsequent transfers of Apartment 6MN. The remedies
requested, such as quiet title, restoration of possession, reinstatement of liens, invalidation of share/title reissuance, and
disgorgement of sale proceeds, would require review and reject the eviction's operative effect and thus amount to a de
facto appeal.
8 The Marshal Defendants also invoke quasi-judicial immunity. Because the Court dismisses Plaintiffs’ state-law claims
under the Rooker–Feldman doctrine and their federal claims on other grounds, the Court need not reach this argument.
9 The RICO claim fails not merely for lack of factual detail but because the continuity element of a “pattern of racketeering
activity” cannot be satisfied on the facts alleged and cannot be cured even if Plaintiffs were to plead additional details.
See supra note 4.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
578 Fed.Appx. 49
This case was not selected for *50 SUMMARY ORDER
publication in the Federal Reporter.
Not for Publication in West's Federal Reporter. Appellant Nicholas Hirsch, proceeding pro se, appeals from
RULINGS BY SUMMARY ORDER DO NOT HAVE the District Court's judgment dismissing his lawsuit sua
PRECEDENTIAL EFFECT. CITATION TO A sponte and imposing a leave-to-file sanction. We assume the
SUMMARY ORDER FILED ON OR AFTER JANUARY parties' familiarity with the underlying facts, the procedural
1, 2007, IS PERMITTED AND IS GOVERNED BY history of the case, and the issues on appeal.
FEDERAL RULE OF APPELLATE PROCEDURE 32.1
AND THIS COURT'S LOCAL RULE 32.1.1. WHEN We review a district court's sua sponte dismissal of a
CITING A SUMMARY ORDER IN A DOCUMENT complaint de novo. Sykes v. Bank of Am., 723 F.3d 399, 403
FILED WITH THIS COURT, A PARTY MUST (2d. Cir.2013). Pro se submissions are generally reviewed
CITE EITHER THE FEDERAL APPENDIX OR AN with “special solicitude,” and we interpret those submissions
ELECTRONIC DATABASE(WITH THE NOTATION to raise the strongest claims suggested. Triestman v. Fed.
“SUMMARY ORDER”). A PARTY CITING A Bureau of Prisons, 470 F.3d 471, 474–75 (2d Cir.2006)
SUMMARY ORDER MUST SERVE A COPY OF IT ON (per curiam) (quoting Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d
ANY PARTY NOT REPRESENTED BY COUNSEL. Cir.1994)). District courts should generally not dismiss a pro
United States Court of Appeals, se complaint without granting leave to amend. See Cuoco
Second Circuit. v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000). However,
leave to amend is unnecessary if amendment would be
Nicholas J. HIRSCH, Plaintiff–Appellant, futile, see id., or if the plaintiff “is an extremely litigious
v. [litigant] who is quite familiar with the legal system and with
ROCHESTER CITY POLICE pleading requirements,” Davidson v. Flynn, 32 F.3d 27, 31 (2d
Cir.1994).
DEPARTMENT, et al., Defendants–Appellees.
No. 13–3002–cv. Hirsch argues that the District Court erred in dismissing his
| complaint for his failure to respond to its order to show cause
Sept. 22, 2014. because he timely responded. Hirsch is correct, but remand is
unwarranted. Res judicata barred his claims against the City
Appeal from a judgment of the United States District Court of Rochester, the Rochester City Police Department, Officer
for the Western District of New York (Charles J. Siragusa, Michael Johnson, and Officer Samuel Ognibene, as these
Judge.). defendants were all listed in Hirsch's previously-dismissed
UPON DUE CONSIDERATION, IT IS HEREBY complaint. See Second Amended Complaint, Hirsch v. City
ORDERED, ADJUDGED, AND DECREED that the of Rochester, No. 6:11–CV–6381 (W.D.N.Y. Feb. 17, 2012),
judgment of the District Court is AFFIRMED in part, ECF No. 56; see also Monahan v. N.Y.C. Dep't of Corr.,
VACATED in part, and the cause is REMANDED for further 214 F.3d 275, 284–91 (2d Cir.2000) (barring constitutional
proceedings consistent with this order. claims under the doctrine of res judicata). However, although
Hirsch's previous complaint also listed six “John Does,” it
Attorneys and Law Firms did not specifically list Officer Nina Nowack. His claims
against Nowack were therefore not barred by res judicata. Cf.
Nicholas J. Hirsch, Rochester, NY, pro se.
Nagle v. Lee, 807 F.2d 435, 440 (5th Cir.1987) (ruling that
No Appearance. fictitiously named officers were not entitled to benefit of res
judicata where they did not appear in the prior action and were
PRESENT: JOSÉ A. CABRANES and RAYMOND J. never served). Nonetheless, Hirsch's most recent complaint
LOHIER, JR., Circuit Judges, PAUL A. ENGELMAYER,* failed to allege any facts suggesting that Nowack violated his
District Judge. federal or constitutional rights. Moreover, affording Hirsch
an opportunity to amend would have been unnecessary
in light of the litigant's history. The District Court's prior
containing only conclusory legal assertions warrant dismissal. timely objected to the District Court's order to show cause
See Davidson, 32 F.3d at 31. why a leave-to-file sanction should not be imposed. That
objection, however, was mistakenly docketed in another of
Turning to the leave-to-file sanction, we review a sanction Hirch's actions. Pl.'s Resp. & Cover Ltr., Hirsch v. City of
order for an abuse of discretion. See Chambers v. NASCO, Rochester, No. 6:12–CV–6525 (W.D.N.Y. Apr. 15, 2013),
Inc., 501 U.S. 32, 55, 111 S.Ct. 2123, 115 L.Ed.2d 27 ECF Nos. 7–8. Because the District Court did not consider
this objection, the sanction order is vacated, and the cause is
(1991); StreetEasy, Inc. v. Chertok, 752 F.3d 298, 306–07
remanded in order to provide Hirsch with an opportunity to
(2d Cir.2014). As the Supreme Court has noted, “[b]ecause
be heard on this question. Of course, we intimate no view on
of their very potency, inherent powers must be exercised
whether the order would be appropriate in the circumstances
with restraint and discretion.” Chambers, 501 U.S. at 44, 111
presented.
S.Ct. 2123. A court, however, may impose a filing injunction
if confronted with “extraordinary circumstances, such as a
We have considered Hirsch's remaining arguments and find
demonstrated history of frivolous and vexatious litigation ...
or a failure to comply with sanctions imposed for such
them to be without merit. Accordingly, we AFFIRM in
conduct.” Milltex Indus. Corp. v. Jacquard Lace Co., Ltd., 55
part, VACATE in part, and REMAND the cause for further
proceedings consistent with this order.
F.3d 34, 39 (2d Cir.1995) (quoting Richardson Greenshields
Sec., Inc. v. Lau, 825 F.2d 647, 652 (2d Cir.1987)). A “court
may not impose a filing *51 injunction on a litigant sua
All Citations
sponte without providing the litigant with notice and an
opportunity to be heard.” Iwachiw v. N.Y. State Dep't of Motor 578 Fed.Appx. 49
Vehicles, 396 F.3d 525, 529 (2d Cir.2005) (quoting Moates
Footnotes
* The Honorable Paul A. Engelmayer, of the United States District Court for the Southern District of New York,
sitting by designation.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
335 Fed.Appx. 102 for conspiracy to interfere with civil rights. 42
This case was not selected for U.S.C.A. § 1985.
publication in West's Federal Reporter.
434 Cases that cite this headnote
United States Court of Appeals,
Second Circuit.
Sandra SHEEHY, et al., Plaintiffs–Appellants,
v. *103 UPON DUE CONSIDERATION, it is hereby
Thomas P. BROWN, et al., Defendants–Appellees. ORDERED, ADJUDGED AND DECREED that the
judgment of the district court is AFFIRMED.
No. 08–0102–cv.
| Attorneys and Law Firms
June 23, 2009.
Sandra Sheehy, pro se.
Synopsis Robert Sheehy, pro se.
Background: Plaintiffs appealed, pro se, a judgment of the
United States District Court for the Western District of New Patrick Sheehy, pro se.
York, Telesca, J., sua sponte dismissing their complaint.
Bobbi Sheehy, pro se.
Billie Sheehy, pro se.
Holdings: The Court of Appeals held that:
Casey Sheehy, pro se.
[1] plaintiffs failed to establish § 1983 claims arising out of
Sherry Sheehy, pro se.
their allegedly false prosecutions, and
PRESENT: Hon. PIERRE N. LEVAL, Hon. ROSEMARY S.
[2] plaintiffs failed to state a claim for conspiracy to interfere POOLER and Hon. B.D. PARKER, Circuit Judges.
with civil rights.
Affirmed. SUMMARY ORDER
**1 Plaintiffs–Appellants Sandra, Robert, Patrick, Bobbi,
Billie, Casey, and Sherri Sheehy, pro se, appeal from the
West Headnotes (2) judgment of the United States District Court for the Western
District of New York (Telesca, J.), sua sponte dismissing
the complaint, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
[1] Civil Rights Criminal prosecutions We assume the parties' familiarity with the facts, procedural
Plaintiffs failed to allege that their convictions history and issues on appeal.
or sentences were invalidated or otherwise
expunged, as required to establish § 1983 claims Having reviewed de novo the district court's sua sponte
arising out of their allegedly false prosecutions. dismissal under § 1915(e), see Giano v. Goord, 250 F.3d 146,
42 U.S.C.A. § 1983. 149–50 (2d Cir.2001), we conclude that the district court did
not err in dismissing Appellants' complaint.
64 Cases that cite this headnote
[1] First, any 42 U.S.C. § 1981 or § 1983 claim against
[2] Conspiracy Civil rights conspiracies Appellees Lucy or Edward Sherwood, Thomas Fuoco, Mark
Wattenberg, or Steve Presutti was properly dismissed, as
Plaintiffs failed to allege the formation of a
private actors and institutions generally are not proper §
conspiracy, and overt acts in furtherance of
130 (1999) (§ 1983 actions do not reach purely private so vague as to fail to give the defendants adequate notice
of the claims against them, the district court did not err in
conduct). Additionally, for an individual to recover damages
dismissing them.
for an allegedly unconstitutional conviction or imprisonment,
he or she “must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order, **2 [2] Appellants also assert claims under § 1985, for
which a plaintiff must allege: (1) a conspiracy, (2) which has
declared invalid by a state tribunal ... or called into question
an intent or purpose to deprive a person of equal protection
by a federal court's issuance of a writ of habeas corpus....”
of the law; (3) an act in furtherance of the conspiracy; (4)
Heck v. Humphrey, 512 U.S. 477, 486–87, 114 S.Ct. 2364, 129
which results in an injury to a person, or a person's property,
L.Ed.2d 383 (1994). Thus, any § 1983 claims arising out of
or the deprivation of a federal constitutional right. See Mian v.
the allegedly false prosecutions of Sandra, Patrick, or Robert
Sheehy were appropriately dismissed, as Appellants did not Donaldson, Lufkin & Jenrette Securities Corp., 7 F.3d 1085,
allege that their convictions or sentences were invalidated or 1087 (2d Cir.1993) (per curiam). Here, the Appellants' claims
of conspiracy failed to specifically allege (1) the formation
otherwise expunged. Id.
of a conspiracy; or (2) overt acts in furtherance of such
conspiracy. Thus, the district court correctly dismissed any
*104 As for the American Society for the Prevention of
claims brought pursuant to §§ 1985 and 1986.
Cruelty to Animals, the Allegany County Society for the
Prevention of Cruelty to Animals, and Appellee Presutti,
To the extent that Appellants assert claims based on the
claims against these defendants were properly dismissed,
violation of federal criminal statutes, such as 18 U.S.C.
as Appellants did not allege any wrongdoing on their part
§§ 241–242, these claims are not cognizable, as federal
or specify how they were involved in the constitutional
criminal statutes do not provide private causes of action.
violations alleged. See 28 U.S.C. § 1915(e)(2). Next, to the
See Robinson v. Overseas Military Sales Corp., 21 F.3d 502,
extent that Appellants challenge the conduct of county district
511 (2d Cir.1994). In addition, any claim brought under 42
attorneys or state court judges, such actors are entitled to
U.S.C. § 2000d, which prohibits the exclusion of individuals
immunity. Nixon v. Fitzgerald, 457 U.S. 731, 766, 102 S.Ct.
from a federally funded program or activity on the basis of
2690, 73 L.Ed.2d 349 (1982); Imbler v. Pachtman, 424 U.S.
race, color, or national origin, properly was dismissed, as
409, 430–31, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Buckley v.
Appellants did not allege that they were excluded from a
Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d
federally funded program or activity and, thus, no claim exists
209 (1993).
under that statute. Similarly, although former 42 U.S.C. §
13981 authorized a cause of action arising out of a crime of
Appellants also assert § 1983 claims against: (1) county
violence motivated by gender, the Supreme Court has held
sanitation workers for entering the Sheehys' property, in
that statute unconstitutional. See United States v. Morrison,
violation of their property and privacy rights; (2) state
529 U.S. 598, 601, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000).
troopers for use of excessive force and retaliation; and (3)
Allegany County Department of Social Services employees
We have reviewed Appellants' remaining arguments and find
for entering the Sheehys' property and removing the Sheehy
them to be without merit. We also note here that we see
children from their homes, in violation of their First, Fourth,
and Ninth Amendment rights. Under Federal Rule of Civil
no *105 indication in the record that Appellants perfected
service on any of the defendants in this case.
Procedure 8(a)(2), a pleading must contain a “short and
plain statement of the claim showing that the pleader is
Therefore, for the reasons stated above, the judgment of the
entitled to relief.” Rule 8 “demands more than an unadorned,
district court is AFFIRMED.
the-defendant-unlawfully-harmed-me accusation.” Ashcroft
v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 1949, 173 L.Ed.2d
868 (2009). Thus, a pleading that only “tenders naked
All Citations
assertions devoid of further factual enhancement” will not
suffice. Id. (internal citations and alterations omitted). We 335 Fed.Appx. 102, 2009 WL 1762856
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
2024 WL 1266245 convicted in New York state court of grand larceny and fraud,
Only the Westlaw citation is currently available. stemming from a scheme to defraud investors in a North
United States Court of Appeals, Second Circuit. Carolina real estate development. See Spota v. White, No.
29681-12, 2016 WL 6427362, at *2, 4 (N.Y. Sup. Ct. Suffolk
Paul WHITE, Plaintiff-Appellant, Cnty. Oct. 28, 2016) (explaining the background of the
v. criminal case in a decision on a civil forfeiture proceeding).
Sandra SCHMIDT, aka Sandra Kroger Schmidt, The Supreme Court, Suffolk County, awarded $2.975 million
aka Sandra K. Schmidt, Defendant-Appellee, in restitution to his victims, who included Sandra Schmidt,
Teodocia Santos, and Ella and Albert Abney (the “Abneys”).
Pat Doe, (1–10), Defendants.
Id. at *2. White's appeal of the criminal judgment is, as of the
Paul White, Plaintiff-Appellant,
time of writing, still pending.
v.
Teodocia Santos, Ella Abney, Personally In 2014, the Suffolk County District Attorney's Office
and as Executrix of the Estate of Albert brought a civil forfeiture action against White and obtained a
Abney, Pat Doe, Defendants-Appellees.* $2.4 million judgment. Id. at *4, 9. After the judgment was
entered, White retained an attorney who obtained a decision
22-1267, 22-1911 in a North Carolina court, which he claims held that the
| investors had received their bargained-for-benefit, consisting
March 26, 2024 of the validly deeded ownership of the property.
Appeals from judgments of the United States District Court In 2017, White sued Schmidt and the Abneys in the Eastern
for the Northern District of New York (Mae A. D'Agostino, District of New York, claiming that they had provided false
District Judge). statements to the Suffolk County District Attorney's Office
and had testified falsely at grand jury proceedings and at his
UPON DUE CONSIDERATION, IT IS HEREBY
criminal trial, which resulted in their unjust enrichment by
ORDERED, ADJUDGED, AND DECREED that the
virtue of the restitution judgment that had been entered in their
judgments of the district court are AFFIRMED IN PART
favor. In two different orders, the Eastern District dismissed
and VACATED IN PART and REMANDED.
the action, reasoning that the defendants were entitled to
Attorneys and Law Firms witness immunity, and in the alternative, the court lacked
subject matter jurisdiction to entertain the unjust enrichment
FOR PLAINTIFF-APPELLANT: Paul White, pro se, claim under Rooker-Feldman. See generally White v. Abney,
Coxsackie, NY. No. 17-cv-4286, 2020 WL 5848647 (E.D.N.Y. Sept. 30,
2020); White v. Abney, No. 17-cv-4286, 2021 WL 1176218
FOR DEFENDANTS-APPELLEES: No appearance.
(E.D.N.Y. Mar. 29, 2021).
PRESENT: ROBERT D. SACK, WILLIAM J. NARDINI,
MYRNA PÉREZ, Circuit Judges. In 2021, White filed the actions underlying these appeals. He
sued Schmidt in the Northern District of New York, claiming
that the restitution judgment had been satisfied by the North
Carolina decision and that she had been unjustly enriched by
SUMMARY ORDER
a sum that he had separately paid to her. In a separate action,
*1 he sued Santos and the Abneys, raising substantially identical
* * * claims.
Plaintiff-Appellant Paul White, pro se and incarcerated, In 2022, the district court sua sponte dismissed each
appeals from the April 26, 2022, and August 1, 2022, action as barred under the Rooker-Feldman doctrine and,
sua sponte dismissals of two federal lawsuits (Mae A. alternatively, by collateral estoppel or res judicata, based on
D'Agostino, District Judge), each pursuant to the Rooker- the preclusive effect of the Eastern District's earlier Rooker-
Feldman doctrine. White's appeals have been considered in Feldman procedural holding. See generally White v. Schmidt,
White v. Santos, No. 21-cv-417, 2022 WL 3025723 (N.D.N.Y. the North Carolina decision was issued before White initiated
Aug. 1, 2022). White timely appealed. We assume the parties’ White v. Abney, White could have included his current claims
familiarity with the case. for declaratory relief and unjust enrichment against Schmidt
and the Abneys in White v. Abney. Accordingly, White's
*2 We review de novo a sua sponte dismissal of a complaint, claims against Schmidt and the Abneys are barred by res
including a dismissal based on collateral estoppel, res judicata.
judicata, or lack of subject matter jurisdiction under Rooker-
Feldman. Meadows v. United Servs., Inc., 963 F.3d 240, 243 Santos, however, was not included as a defendant in White v.
(2d Cir. 2020) (sua sponte dismissal); Comput. Assocs. Int'l, Abney, so claim preclusion cannot apply to White's current
Inc. v. Altai, Inc., 126 F.3d 365, 368 (2d Cir. 1997) (collateral claims against Santos. See N. Assurance, 201 F.3d at 87.
estoppel and res judicata); Edwards v. McMillen Cap., LLC, We therefore consider whether White's claims against Santos
952 F.3d 32, 35 (2d Cir. 2020) (Rooker-Feldman). When are barred under the Rooker-Feldman doctrine or collateral
reviewing a sua sponte dismissal, we “accept all of the facts estoppel, as the district court found. We determine that they
alleged in the complaint as true and draw all inferences in the are not. Under the Rooker-Feldman doctrine, “federal district
plaintiff's favor.” Harnage v. Lightner, 916 F.3d 138, 140–41 courts lack jurisdiction over suits that are, in substance,
(2d Cir. 2019).1 appeals from state-court judgments.” Hoblock v. Albany Cnty.
Bd. of Elections, 422 F.3d 77, 84 (2d Cir. 2005). For a federal
Recognizing the “special solicitude” this Court must afford court to abstain under Rooker-Feldman,
pro se litigants, see Rosa v. Doe, 86 F.4th 1001, 1007 (2d
Cir. 2023), we nevertheless conclude that White's claims
against Schmidt and the Abneys are barred by res judicata, *3 (1) the federal-court plaintiff must
or claim preclusion. “[C]laim preclusion ... operates in two have lost in state court; (2) the plaintiff
ways: (1) it bars claims that were brought and decided in must complain of injuries caused by a
a prior litigation; and (2) it bars all other claims relating to state-court judgment; (3) the plaintiff
the same transaction against the same defendant that could must invite district court review and
have been brought at that time.” N. Assurance Co. of Am. rejection of that judgment; and (4)
v. Square D Co., 201 F.3d 84, 87 (2d Cir. 2000). White v. the state-court judgment must have
Abney involved claims by White against Schmidt and the been rendered before the district court
Abneys, so claim preclusion bars him from now raising any proceedings commenced.
claims “relating to the same transaction ... that could have
been brought” at the time he filed suit in White v. Abney.
Id. White alleges that the following had occurred before he Plymouth Venture Partners, II, L.P. v. GTR Source, LLC, 988
filed his complaint in White v. Abney: (1) the Suffolk County F.3d 634, 641 (2d Cir. 2021). Here, the relevant state-court
Court entered restitution judgments in favor of Santos, the judgment is the criminal restitution judgment, which White
Abneys, and Schmidt against White, (2) White obtained a alleges has been satisfied, not the civil forfeiture judgment.
decision from the North Carolina Superior Court determining The civil forfeiture court did not address White's challenge to
that the defendants in these cases held valid deeds for the the restitution order, explaining instead that White's challenge
properties at issue, and (3) White paid approximately $31,000 was an improper collateral attack on the criminal conviction,
each to Schmidt and the Abneys in partial satisfaction of the which had to be raised instead on direct criminal appeal.
restitution judgments. See Spota, 2016 WL 6427362, at *4. Thus, if White is
complaining of an injury from a state-court judgment, the
In the present cases, White seeks a declaratory judgment relevant judgment is the criminal restitution judgment.
that the Suffolk County Court restitution judgments against
him were satisfied by the North Carolina decision, and a The application of Rooker-Feldman here was improper
return of the money he has paid to the defendants based on a because the criminal restitution judgment was not final at the
theory of unjust enrichment distinct from the theory of unjust time the federal lawsuit commenced. In Hunter v. McMahon,
enrichment White relied on in White v. Abney. However, 75 F.4th 62, 65, 67, 70–71 (2d Cir. 2023), this Court concluded
because White allegedly paid the defendants a partial
filed, because Rooker-Feldman applies only after state-court do not affirm the judgment based on the preclusive effect that
proceedings have “ended.” Because White's criminal appeal the Rooker-Feldman holding in White v. Abney might have.
remains pending, the relevant state court proceeding had not
concluded before White filed his complaint. Accordingly, the * * *
district court erred by dismissing the complaint based on
Rooker-Feldman. In sum, the district court erred by relying on the Rooker-
Feldman doctrine to sua sponte dismiss White's complaints.
Although the district court alternatively dismissed the We decline to affirm on the alternative grounds of collateral
complaint on the basis of collateral estoppel, we do not estoppel. However, the district court's judgments with respect
affirm on this ground. In White v. Abney, the Eastern to Schmidt and the Abneys can be affirmed on the alternative
District dismissed White's complaint against Schmidt under ground of res judicata. We express no view on the merits
the Rooker-Feldman doctrine. Abney, 2020 WL 5848647, at (or lack thereof) of the underlying suit against Santos,
*7. While collateral estoppel can bar reconsideration even of which is better addressed by the district court in the first
erroneous prior rulings, our decision in Hunter amounted to
instance.2 Therefore, the judgments of the district court
a significant clarification of our law on this fairly significant are AFFIRMED IN PART and VACATED IN PART and
issue of Rooker-Feldman’s proper scope. See Faulkner v. REMANDED for further proceedings.
Nat'l Geographic Enters. Inc., 409 F.3d 26, 37 (2d Cir. 2005)
(“[E]ven where the specified elements of collateral estoppel
All Citations
are present, reexamination of a legal issue is appropriate
where there has been a change in the legal landscape after the Not Reported in Fed. Rptr., 2024 WL 1266245
Footnotes
* The Clerk of Court is directed to consolidate these appeals for purposes of decision.
1 Unless otherwise indicated, case quotations omit all internal quotation marks, alteration marks, footnotes,
and citations.
2 We acknowledge that the district court may decide that a stay is warranted pending the outcome of the
criminal restitution judgment appeal. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 292
(2005) (“Comity or abstention doctrines may, in various circumstances, permit or require the federal court to
stay ... the federal action in favor of the state-court litigation.”).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.