Opinion
1:22-CV-00238 (DNH/TWD)
06-01-2022
PETER E. TASCIOTTI and JOHN DERMGRDICHIAN, Plaintiffs, v. EDMUND V. HAFFMANS, Landlord/Seller of R.E., GLORIA SUN YUN TRUST, GLORIA SUN JUNG YUN, Landlord's Lawyer Private Attorney, JOHN DOE, and JANE DOE, Defendants.
PETER E. TASCIOTTI Plaintiff, Pro Se JOHN DERMGRDICHIAN Plaintiff, Pro Se
PETER E. TASCIOTTI Plaintiff, Pro Se
JOHN DERMGRDICHIAN Plaintiff, Pro Se
REPORT-RECOMMENDATION AND ORDER
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
On March 11, 2022, pro se plaintiffs Peter E. Tasciotti (“Tasciotti”) and John Dermgrdichian (“Dermgrdichian”) (collectively “Plaintiffs”) filed this action alleging that Defendants violated their rights under the Americans with Disabilities Act. (Dkt. No. 1.) Along with their complaint, Plaintiffs filed separate applications to proceed in forma pauperis (“IFP Applications”). (Dkt. Nos. 2, 3.) By Order and Report-Recommendation (“R&R”) filed March 30, 2022, this Court granted Plaintiffs' IFP Applications, reviewed the original complaint pursuant to 28 U.S.C. § 1915(e), and recommended that it be dismissed without prejudice and with leave to amend their pleading in accordance with Rules 8 and 10 of the Federal Rules of Civil Procedure. (Dkt. No. 6.) Plaintiffs filed objections and a “timeline of harm and injury.” (Dkt. Nos. 8, 9.) By Order entered April 22, 2022, U.S. District Judge David N. Hurd accepted and adopted the R&R and Plaintiff's complaint was dismissed with leave to amend. (Dkt. No. 10.) Plaintiffs were afforded thirty days in which to amend their pleading in accordance with the instructions set forth in the R&R and Order. Id.
Plaintiffs have now filed an amended complaint, which has been referred to this Court for review of its pleading sufficiency pursuant to 28 U.S.C. § 1915(e). (Dkt. No. 19.) Plaintiffs name the following as Defendants: Edmund V. Haffmans, Junk Dealer “Sir Edmund the Strange”; Gloria S. Yun, a/k/a Gloria Sun Jung Yun, Private Attorney, Sovereign Citizen Activist; Ron Knowles, Realtor; Central Hudson Gas & Electric Corp., Private Utility Corporation; Fortis Inc., Private Utility Corporation; John Doe; and Jane Doe. Id. at 2, 8. Plaintiffs have checked “federal question” jurisdiction and as relief, seek $90,000,000.00 in compensatory damages and unspecified punitive damages from Defendants, and request injunctive and declaratory relief among other things. Id. at 4.
Although Michelle Anne Bishop (“Bishop”), individually and on behalf of minor children Z.K. and A.K., Samein Capps-Tasciotti (“Capps-Tasciotti”) and Milkyy Media Kyyboa are listed as plaintiffs, Bishop and Capps-Tasciotti have not paid the statutory filing fee nor applied to proceed in forma pauperis on their own behalf. (See Docket Report.) Further, a pro se individual who is not an attorney cannot represent other persons including the individual's children or a business/entity. (See Dkt. No. 23.) Accordingly, the Court reviews the amended complaint filed by Tasciotti and Dermgrdichian only.
Additionally, on May 25, 2022, Plaintiffs filed a document entitled “Motion for leave to add a Statement of Claim in Complaint proclaiming constitutional subject matter jurisdiction”. (Dkt. No. 24.)
For the reasons set forth below, the Court recommends dismissing the amended complaint its entirety without further leave to amend. It is further recommended the motion for leave to add a statement of claim be denied as moot.
II. SUFFICIENCY OF THE AMENDED COMPLAINT
A. Standard of Review
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss a complaint filed in forma pauperis if it determines that 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.” See Allen v. Stringer, No. 20-3953, 2021 WL 4472667, at *1 (2d Cir. Sept. 30, 2021).
To survive dismissal for failure to state a claim, a complaint must plead enough facts to state a claim that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While Rule 8(a) of the Federal Rules of Civil Procedure, which sets forth the general rules of pleading, “does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me accusation.” Id. In determining whether a complaint states a claim upon which relief may be granted, “the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
A pro se litigant's pleadings are held to a less strict standard than attorney drafted pleadings. See Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008) (“Even in the formal litigation context, pro se litigants are held to a lesser pleading standard than other parties.”). Because Plaintiffs are proceeding pro se, the Court construes their pleadings “to raise the strongest arguments that they suggest.” See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (per curiam) (internal quotation marks omitted). However, this “does not exempt [Plaintiffs] from compliance with relevant rules of procedural and substantive law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983).
B. Analysis
Having carefully reviewed Plaintiffs' amended complaint, the Court recommends that it be dismissed in its entirety. (Dkt. No. 19.) Plaintiffs have failed to amend their pleading in accordance with the instructions set forth in the R&R and Order. (See Dkt. Nos. 6, 10.) To that end, the amended complaint is forty-seven (47) pages in length, is not ordered by consecutive paragraph numbers, fails to provide sufficient information for Defendants to have notice of the claims against them, is a piecemeal pleading in that it relies upon and/or incorporates by reference the original complaint and “timeline of events” document previously filed with the Court and, therefore, fails to meet the pleading standards of Rules 8 and 10 of the Federal Rules of Civil Procedure. (See Dkt. No. 19.)
Moreover, even liberally construed, the collection of statements and allegations fails to establish this Court's jurisdiction. See Smith ex. rel. Bey v. Kelly, No. 12-CV-2319, 2012 WL 1898944, at *2 (E.D.N.Y. May 24, 2012) (court is obligated to analyze whether subject matter jurisdiction exists as a part of § 1915(e) initial review and to dismiss the complaint when subject matter jurisdiction is found lacking); see, e.g., Simmonds v. Longo, No. 6:19-CV-1319 (DNH/ML), 2020 WL 1644206, at *4 (N.D.N.Y. Mar. 11, 2020) (recommending dismissal of pro se complaint for lack of subject matter jurisdiction), report-recommendation adopted, 2020 WL 1643394 (N.D.N.Y. Apr. 2, 2020); see also Eckert v. Schroeder, Joseph & Associates, 364 F.Supp.2d 326, 327 (W.D.N.Y. 2005) (“A court shall, sua sponte, dismiss a complaint for lack of subject matter jurisdiction as soon as it is apparent that it lacks subject matter jurisdiction.”) (citing Hughes v. Patrolmen's Benevolent Ass'n of the City of N.Y., Inc., 850 F.2d 876, 881 (2d Cir. 1988), cert. denied, 488 U.S. 967, 109 S.Ct. 495 (1988)).
Here, Plaintiffs state the basis for jurisdiction is as follows:
FOURTH AMENDMENT-SEIZURE OF ONE'S EFFECTS, FIFTH AMENDMENT, FOURTEENTH AMENDMENT - DUE PROCESS CLAUSE, FIRST AMENDMENT, FREEDOM OF SPEECH-RELIGION (REFER TO OUR KYYBOA TRIBE), INALIENABLE RIGHTS, INCLUDING BUT NOT LIMITED TO: LIFE, LIBERTY, PURSUIT OF HAPPINESS. BY ALL THE RIGHTS WE EXERCISE AND DO NOT WAIVE, WHICH WERE NOT ENUMERATED BY THE CONSTITUTION BUT CANNOT BE DENIED.(Dkt. No. 19 at 3.) Because Plaintiffs reference the First, Fourth, Fifth, and Fourteenth Amendments, the Court has considered whether they have alleged facts in the amended complaint stating a claim under 42 U.S.C. § 1983.
“To state a valid claim under § 1983, the plaintiff must allege that the challenged conduct (1) was attributable to a person acting under color of state law, and (2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States.” Whalen v. Cty. of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citing Eagleston v. Guido, 41 F.3d 865, 875 76 (2d Cir. 1994)). Thus, § 1983 does not create any independent substantive right, but rather “provides a civil claim for damages” to “redress . . . the deprivation of [federal] rights established elsewhere.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999).
The requirement that the defendant acted under “color of state law” is jurisdictional. Bennett v. Bailey, No. 5:20-CV-0903 (GTS/ATB), 2020 WL 5775940, at *2 (N.D.N.Y. Aug. 17, 2020), report-recommendation adopted, 2020 WL 5775231 (N.D.N.Y. Sept. 28, 2020). Private conduct is simply beyond the reach of § 1983 “‘no matter how discriminatory or wrongful' that conduct may be.” Id. (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999)). Therefore, a plaintiff must establish that the defendant was either a state actor or a private party acting under color of state law. See Ciambriello v. Cty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002); see also United States v. Int'l Broth. of Teamsters, Chauffeurs, Warehousemen & Helpers of America, 941 F.2d 1292, 1295-96 (2d Cir. 1991) (“Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes ‘state action.'”). A private party engages in state action when they are found to be a “willful participant in joint activity with the State or its agents.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970) (citing United States v. Price, 383 U.S. 787, 794 (1966)). “Conduct that is ostensibly private can be fairly attributed to the state only if there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.” White v. Moylan, 554 F.Supp.2d 263, 267 (D. Conn. 2008) (citation omitted).
Here, even applying special solicitude and reading Plaintiffs' amended complaint liberally, the undersigned is unable to discern how Defendants violated their rights under § 1983. Despite Plaintiffs' pro se status, they are still required to set forth with sufficient specificity a pleading that clearly demonstrates the alleged facts and alleged violations of their constitutional rights or other applicable federal laws. The undersigned notes that Plaintiffs' amended complaint fails to establish that any Defendant was either a state actor or a private citizen acting under the color of state law. (See generally Dkt. No. 19.) There is no indication that Defendants, as the owner of real property where Plaintiffs resided, an attorney who resided with Plaintiffs as a “guest” until a falling out, a real estate agent, or a private utility corporation were a “willful participant” in joint activity with the State, or in any way established a “close nexus” with the State. Adickes, 398 U.S. at 152; White, 554 F.Supp.2d at 267. Thus, because Defendants are private citizens and entities, and Plaintiffs' allegations do not involve conduct the Court construes to be joint activity with the State, Plaintiffs have failed to allege a claim pursuant to § 1983, which would raise a federal question.
Nor have Plaintiffs alleged any facts plausibly showing discrimination based on a disability in violation of the Americans with Disabilities Act. (See generally Dkt. No. 19.) The use of “buzz words” such as “discrimination of the disabled” does not demonstrate subject matter jurisdiction. See id. at 10 (“2021-present: discrimination of the Disabled (2 plaintiffs), mockery, disrespect, emotional abuse, refusal to sell.”); see also Barr v. Abrams, 810 F.2d 358, 362 (2d Cir. 1986) (“The Second Circuit has repeatedly held complaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning”). Moreover, because Plaintiffs do not allege facts that the parties are diverse, there is no diversity jurisdiction over Plaintiffs' claims. See 28 U.S.C. § 1332.
Plaintiffs have not alleged, and the Court has not been able to determine, any other basis for federal question jurisdiction. As set forth above, when a court lacks subject matter jurisdiction, dismissal is mandatory. Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006).
While the Court is not unsympathetic to Plaintiffs' alleged predicament, even when liberally construed, it appears the amended complaint sounds in state common law claims such as breach of contract, wrongful eviction, and torts. (See, e.g., Dkt. No. 19 at 9 (“This involves a property dispute, as well as contract/agreement, employment.”).) “Federal courts, unlike state courts, have no jurisdiction over landlord-tenant matters.” Burke v. Vonnard, No. 5:15-CV-1133 (MAD/TWD), 2015 WL 13744417, at *5 (N.D.N.Y. Sept. 28, 2015) (citations omitted), reportrecommendation adopted, 2016 WL 3176653 (N.D.N.Y. June 7, 2016); see also Rosen v. Shore Towers Apartments, Inc., No. 11-CV-0752, 2011 WL 2550733, at *5 (E.D.N.Y. June 27, 2011) (noting that courts in this Circuit “routinely dismiss for lack of subject matter jurisdiction” claims concerning eviction) (collecting cases).
Generally, when a district court dismisses a pro se action sua sponte, the plaintiff will be allowed to amend his action. See Gomez v. USAA Fed. Savings Bank, 171 F.3d 794, 796 (2d Cir.1999). However, an opportunity to amend is not required where the plaintiff has already been afforded the opportunity to amend. See Planck v. Schenectady Cty., No. 1:12-CV-0336 (GTS/DRH), 2012 WL 1977972, at *6 (N.D.N.Y. June 1, 2012) (collecting cases). Moreover, an opportunity to amend is not required where “the problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). This rule applies even to pro se plaintiffs. See id. at 103. “[L]ack of subject matter jurisdiction is a substantive defect that cannot be cured by better pleading.” Moran v. Proskauer Rose LLP, No. 1:17-CV-00423 (MAD/TWD), 2017 WL 3172999, at *3 (N.D.N.Y. July 26, 2017); see also Guillory v. Bishop Nursing Home, 21-CV-0410 (MAD/ATB), 2021 WL 2431259, at *3 (N.D.N.Y. June 15, 2021) (dismissing the complaint “without prejudice” and “without leave to amend” because the Court “lack[ed] . . . subject matter jurisdiction”).
In sum, because the Court lacks subject matter jurisdiction over Plaintiffs' claims, it is recommended that the amended complaint be dismissed without prejudice and without further leave to amend.
In light of the foregoing recommendation, Plaintiffs are not prevented from filing a complaint in an appropriate state court, should they wish to do so. However, the undersigned makes no finding as to whether Plaintiffs can successfully or properly bring a complaint in state court.
C. Motion for Leave to Add to Statement of Claim in Complaint Proclaiming Constitutional Subject Matter Jurisdiction
The Court has also reviewed Plaintiffs' motion and it is recommended that it be denied as moot in light of the foregoing recommendation. (Dkt. No. 24.) In any event, to the extent Plaintiffs are attempting to amend their amended complaint, the Court would also recommend not accepting Plaintiffs' piecemeal attempt to do so. Plaintiffs were cautioned that the amended complaint “must be a wholly integrated and complete pleading”. (Dkt. No. 6 at 6 n.3; see also Dkt. No. 10 at 2-3.) This requirement eliminates the confusing nature of “piecemeal” amended complaints, see L.R. 15.1(a), and even were the Court to consider the motion, the document fails to cure the defects identified above, namely this Court lacks subject matter jurisdiction over this dispute. (See e.g., Dkt. No 24 at 3 (explaining this “dispute” stems from an “alleged breach of contract in and around July 2019 to May 2022 [which is when Plaintiffs began purchase-of-real property/home in July and were never given guarantee to title/ownership by purported owner, because it was ‘clouded, thus were defrauded and deprived]”).)
Accordingly, the Court recommends that Plaintiffs' motion (Dkt. No. 24) be denied as moot.
WHEREFORE, based on the foregoing, it is hereby
RECOMMENDED that Plaintiffs' amended complaint (Dkt. No. 19) be DISMISSED WITHOUT PREJUDICE AND WITHOUT FURTHER LEAVE TO AMEND, and it is further
RECOMMENDED that Plaintiffs' motion (Dkt. No. 24) be DENIED AS MOOT, and it is further
ORDERED that the Clerk shall file a copy of this Order and Report-Recommendation on Plaintiffs, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties 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. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 72, 6(a).
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation 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. Fed. R. Civ. 6(a)(1)(C).