Opinion
24 Civ. 3630 (KPF)
08-02-2024
YI SUN, Plaintiff, v. HUGH H. MO; TSAI CHUNG CHAO; NEW YORK CITY POLICE DEPARTMENT; MAYOR ERIC LEROY ADAMS; THE LAW FIRM OF HUGH H. MO, P.C.; LI DA SUN; THE TOP ASIAN UNIFORMED NYPD OFFICERS, WHO ARE MEMBERS OF THE NYPD ASIAN-AMERICAN POLICE EXECUTIVES COUNCIL, AAPEX; CORRUPT JUDGES IN NEW YORK; NATURO-MEDICAL HEALTH CARE, P.C.; THE CITY OF NEW YORK; DET. STEVEN MATTHEWS; DET. BRYAN TROCKEL; DET. BRUNO VIDAL; SAM TSANG; DETECTIVE OR SUPERVISOR IN 72 PRECINCT; and LIEUTENANT TIMOTHY CAI, Defendants.
ORDER OF SERVICE
KATHERINE POLK FAILLA, UNITED STATES DISTRICT JUDGE
Plaintiff Yi Sun (“Plaintiff”), who is appearing pro se, originally filed the complaint in this action in the United States District Court for the Eastern District of New York on November 22, 2023. (Dkt. #1). On November 27, 2023, Plaintiff filed an amended complaint (the “Amended Complaint”). (Dkt. #4 (“AC”)). By order dated May 8, 2024, the Eastern District ordered that this case be transferred to this District, on account of the fact that
Plaintiff's Amended Complaint (Dkt. #4) is the operative pleading in this action.
Plaintiff has [previously] raised many of the same claims against several of the same defendants in three separate cases before the Southern District. Compare [the Amended Complaint] with Sun v. Chao, No. 19 Civ. 017 (ALC), 2019 WL 13489918 (S.D.N.Y. Jan. 18, 2019);
Yi Sun v. New York City Police Dep't, No. 18 Civ. 11002 (LTS), 2020 WL 4530354 (S.D.N.Y. Aug. 6, 2020); Yi Sun v. Saslovsky, No. []19 Civ. 10858 (LTS), 2020 WL 6828666 (S.D.N.Y. Aug. 6, 2020).(Dkt. #11). On May 10, 2024, the case was transferred into this Court (see Dkt. #12), and on July 30, 2024, it was reassigned from Judge Arun Subramanian to the undersigned (see July 30, 2024 Minute Entry).
Plaintiff asserts claims against the following Defendants:
■ Hugh H. Mo, Esq.;
■ The Law Firm of Hugh H. Mo, P.C. (“Mo's law firm”);
■ Li Da Sun, Plaintiff's ex-husband;
■ “[T]he top Asian uniformed NYPD Officers, who are the members of ‘NYPD Asian-American Police Executives Council' (AAPEX)” (the “AAPEX Officers”);
■ “[T]he corrupt judges in New York”;
■ Tsai Chung Chao, M.D.;
■ Naturo-Medical Health Care, P.C. (“Naturo,” which appears to be Chao's business);
■ The New York City Police Department (“NYPD”);
■ “[T]he six Uniformed NYPD Officers, who had sexual[ly] assault[ed]/abused [] Plaintiff in [the] past”;
■ NYPD Detective Steven Matthews;
■ NYPD Detective Bryan Trockel;
■ NYPD Detective Bruno Vidal;
■ NYPD Police Officer Sam Tsang;
■ Unidentified NYPD Police Detective or Supervisor “who was the detective or supervisor in [the NYPD's] 72[nd] Precinct”;
■ NYPD Lieutenant Timothy Cai;
■ New York City Mayor Eric Adams;
■ The City of New York.(See generally Dkt. #4). Further, Plaintiff seeks: (i) damages; (ii) an Order from the Court directing Chao “to retract his defamatory statement in network”; and (iii) a “temporary protective order” preventing Defendants' “harassment and intimidation etc.” (AC 26).
This appears to be a reference to a state-court judge, Justice Victoria Carmen St. George, who adjudicated one of Plaintiff's previous civil actions in state court, and to Chief Judge Laura Taylor Swain, Judge Andrew L. Carter, Jr., and Magistrate Judge Sarah Netburn of this Court (who have all presided over Plaintiff's previous civil actions in this Court) as well as to Circuit Judge Denny Chin of the United States Court of Appeals for the Second Circuit. (See AC 24-25). Plaintiff also includes, within this reference, the spouses of Circuit Judge Chin (Kathy Hirata Chin, Esq.), who is not a judge, and of Justice Carmen Victoria St. George, who is also a state-court judge (Justice Norman St. George).
In the list of parties in her Amended Complaint, Plaintiff identifies these officers. (AC 67). For this reason, the Court has directed the Clerk of Court to list them separately as defendants in this action's electronic docket caption.
Because Plaintiff alleges that Detective Matthews is deceased (AC 7), the Court understands that Plaintiff is suing the Estate of Detective Matthews.
By order dated May 14, 2024, the Court granted Plaintiff's request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. (Dkt. #14). The Court construes the Amended Complaint as asserting claims under 42 U.S.C. § 1983, Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), and under state law. For the reasons discussed below, the Court: (i) dismisses Plaintiff's claims against the NYPD; (ii) dismisses, on the merits, Plaintiff's claims under Section 1983 that the Court previously adjudicated and that are not possibly eligible for revival under New York's Adult Survivors Act (“ASA”), on account of issue preclusion; (iii) dismisses Plaintiff's claims under Bivens against Chief Judge Swain, Judge Carter, Magistrate Judge Netburn, Circuit Judge Chin, as well as her claims under Section 1983 against Kathy Hirata Chin, Esq., Justice Carmen Victoria St. George, and Justice Norman St. George; (iv) dismisses Plaintiff's claims under Section 1983 against Mayor Adams and against the AAPEX Officers, but without prejudice to Plaintiff's amending her complaint as to those claims; (v) directs service on the remaining identified and existing Defendants whose service addresses are discernable (Detective Trockel, Detective Vidal, Police Officer Tsang, Lieutenant Cai, Mo, Mo's law firm, Chao, Naturo, and the City of New York); and (vi) directs the Corporation Counsel of the City of New York to provide Plaintiff and the Court with the identity, shield number, and service address of the unidentified police Defendant (“the fifth policeman, who was the detective or supervisor in 72 precinct”) (AC 6), as well as the service address of the Estate of Detective Matthews (see id. at 7), and directs Mo to provide Plaintiff and the Court with the service address of his client, Li Da Sun (Plaintiff's ex-husband).
Claims possibly eligible for such revival include those under Section 1983 against individual NYPD personnel arising from allegations of sexual abuse.
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or any portion of such complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction over the claims raised. See Fed.R.Civ.P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But this “special solicitude” in pro se cases, Triestman, 470 F.3d at 475 (citation omitted), has its limits. To state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which rule requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
Specifically, Rule 8 requires a complaint to include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Id. But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal conclusions. Id. (citing Twombly, 550 U.S. at 555). After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id. at 679.
BACKGROUND
Because most of Plaintiff's claims are inextricably linked to Plaintiff's litigation history in this Court, and because Plaintiff appears to invoke the ASA (AC 1-2) to reassert claims under Section 1983 that the Court has previously adjudicated as untimely, as well as claims under state law that the Court has previously declined to consider under its supplemental jurisdiction, the Court will summarize Plaintiff's litigation history in this Court before discussing Plaintiff's allegations in the Amended Complaint.
A. Sun v. N.Y.C. Police Dep't, No. 18 Civ. 11002 (LTS) (SN)
On November 26, 2018, Plaintiff filed a fee-paid pro se civil action in this Court, captioned as Sun v. N.Y.C. Police Dep't, No. 18 Civ. 11002 (LTS) (SN) (“Sun I”), asserting claims under 42 U.S.C. § 1983 and state law; it was assigned, upon filing, to then-District Judge Swain, who referred it for general pretrial matters to Magistrate Judge Netburn. Among the many defendants Plaintiff named in Sun I were: (i) the NYPD; (ii) Mo; and (iii) Mo's law firm; as well as (iv) unidentified “John Doe” police defendants. In an August 6, 2020 Order, Judge Swain granted the NYPD's, Mo's, and Mo's law firm's motions to dismiss under Rules 8(a), 12(b)(1), and 12(b)(6) of the Federal Rules of Civil Procedure as to all of Plaintiff's claims, except those claims under Section 1983 against the “John Doe” police defendants for alleged Fourth Amendment violations arising from a January 20, 2019 incident. See generally Sun v. N.Y.C. Police Dep't, No. 18 Civ. 11002 (LTS) (SN), 2020 WL 4530354 (S.D.N.Y. Aug. 6, 2020).
In that Order, Judge Swain noted that Plaintiff's Sun I claims derived from events that allegedly
occurred over the course of 21 years and arose from her relationships and interactions with: her ex-husband, [Li Da] Sun; ... [her] former physician, ... Chao, and his private counsel, ... Mo and [Mo's law firm]; as well as from [her] interactions with the Doe Defendants, ... the NYPD, and ... [the New York City Administration for Children's Services (“ACS”)].Sun I, 2020 WL 4530354, at *1. Specifically, Plaintiff had alleged, inter alia, that “between 2003 and 2013, [she] was allegedly sexually assaulted and/or raped by six officers from five different precincts of the NYPD.” Id. at *2 (citations omitted). She also claimed that “these officers ‘extorted sex and money from [her] in order for [her] to stay out of jail and keep [her] daughter' in connection with her child custody case.” Id. (citation omitted). Plaintiff further alleged that, on January 13, 2008, her physician, Chao, “allegedly injected her with a narcotic and sexually assaulted her.” Id. (citation omitted). She additionally alleged that Chao “made more than 30 false reports of child abuse against [her], [as a] result of which she was detained at the [NYPD's] 13th Precinct on August 26, 2009, and June 12, 2010.” Id. (citation omitted).
Further, Plaintiff claimed, in a state-court civil action that Plaintiff had brought against Chao arising from the alleged sexual assault, that Mo and Mo's law firm represented Chao, and Mo “‘used a series of tricks to cancel or dismiss the case.''' Sun I, 2020 WL 4530354, at *2 (citation omitted). Plaintiff alleged that Mo “was a ‘former colleague and good friend' of the [state-court] trial judge who ‘always support[ed] him,' regularly sustained his objections, and held ‘closed-door meeting[s] with the attorneys.'” Id. (citations omitted) (second and third alterations in original). Finally, Plaintiff alleged that, on January 20, 2019, in the early morning, she was awakened by the “John Doe” defendants, all NYPD officers, knocking on her door; when she opened her door, they “‘immediately' entered the apartment without explanation and forced [her] to leave ... by ambulance [in order for her to be taken] to the emergency room of Mount Sinai Hospital where she was seen by a doctor for a ‘psychiatric problem.'” Id. (citation omitted).
Judge Swain also granted the motions to dismiss as to “all of Plaintiff's [S]ection 1983 claims for injuries arising from events that took place before November 26, 2015” - three years before Plaintiff filed her Sun I complaint - “because those claims [were] ... untimely.” Sun I, 2020 WL 4530354, at *4. Among those claims were:
[i] Plaintiff's Fourth and Fourteenth Amendment Due Process claims against the City Defendants based on alleged sexual assaults by NYPD officers between 2003 and 2013; [ii] Plaintiff's claims against the City Defendants for violation of the Fourth Amendment based on her detention at the 13th Precinct in 2009; ... [and] [vi] Plaintiff's Fourteenth Amendment Due Process claims against Mo and [Mo's law firm] ... based on conduct during litigation in 2010.Id. (citations omitted).
Judge Swain construed Plaintiff's claims under Section 1983 against the NYPD and ACS, both nonsuable entities, as brought against the City of New York, and dismissed those claims for failure to state a claim because Plaintiff had failed to allege facts sufficient to show municipal liability under Section 1983. Sun I, 2020 WL 4530354, at *4-6. Those claims included the untimely claims under Section 1983 arising from Plaintiff's allegations “that six officers of the NYPD working in five different precincts between the years of 2003 and 2013 raped her and ‘extorted sex and money from [her] in order for [her] to stay out of jail and keep [her] child,'” as well as those arising from her allegations that “members of the NYPD worked to ‘shield other[s] from punishment' for the alleged sexual assaults committed by officers between 2003 and 2013.” Id. (citations omitted) (alterations in original).
Judge Swain also granted the City defendants' motion to dismiss, for failure to state a claim, as to Plaintiff's First Amendment claims under Section 1983 “that the Doe Defendants, and through them[,] the City, forcibly hospitalized her on January 20, 2019, in retaliation for filing [Sun I].” Sun I, 2020 WL 4530354, at *5-6 (footnote omitted). Judge Swain found that Plaintiff had, however, alleged facts sufficient to state a claim against the Doe Defendants arising from their alleged “ent[ry] [into Plaintiff's] apartment in the early morning hours of January 20, 2019, and [their] seiz[ure] [of her,] in violation of the Fourth Amendment, [when] taking her to [a] hospital.” Id. at *7-8. Judge Swain directed the City of New York to provide Plaintiff with those unidentified defendants' identities and with other information in order to have them served with an amended complaint. Id. at *8.
Finally, Judge Swain dismissed Plaintiff's claims of conspiracy against NYPD officers and against Mo and Mo's law firm, under 42 U.S.C. §§ 1983 and 1985(3), for failure to state a claim. Sun I, 2020 WL 4530354, at *8-9. Those claims included any in which “NYPD officers . . .were allegedly involved in the various incidents of sexual assault.” Id. at *9. Judge Swain additionally dismissed, for failure to state a claim, Plaintiff's claims under Section 1983 against Mo and Mo's law firm due to Plaintiff's failure to show “that either Mo or the Law Firm was as state actor within the meaning of [S]ection 1983 at any relevant time.” Id. at *9-10. Judge Swain declined to consider, under the Court's supplemental jurisdiction, Plaintiff's claims under state law. Id. at *11-12.
Plaintiff never filed an amended complaint in Sun I. By order dated July 9, 2021, Judge Swain (who was, by then, Chief Judge) dismissed, without prejudice, under Rule 41(b) of the Federal Rules of Civil Procedure, those claims that she had not already dismissed in the August 6, 2020 memorandum and order. (See Dkt. #166, 18 Civ. 11002). On November 3, 2021, in light of Plaintiff's filing history in Sun I, Chief Judge Swain barred Plaintiff from filing any further requests in Sun I without leave to file. (See Dkt. #185, 18 Civ. 11002). Plaintiff did not appeal post-judgment.
B. Sun v. Chao, No. 19 Civ. 17 (ALC)
On January 2, 2019, Plaintiff filed another fee-paid pro se civil action in this Court, under the Court's federal question jurisdiction, captioned as Sun v. Chao, No. 19 Civ. 17 (ALC) (“Sun II”). Sun II was assigned to Judge Carter. Among the defendants named in Sun II were: (i) Chao; (ii) Naturo; (iii) Mo; and (iv) Justice Carmen Victoria St. George. In her Sun II complaint, “Plaintiff accused Chao of drugging her and sexually assaulting her from 2003 through 2009, while she was his patient.” Sun v. Chao, No. 19 Civ. 17 (ALC), 2019 WL 13489918, at *1 (S.D.N.Y. Jan. 18, 2019). She also “allege[d] that Mo previously represented her ex-husband, [Li Da] Sun, in family and criminal court matters in which she was the complainant or otherwise involved, and that Mo was affiliated with the [NYPD].” Id. Plaintiff further alleged that she lost a state-court civil action against Chao in 2018, in which Mo represented Chao, and “that the defendants involved with [that state-court civil action] were ‘good friends' who conspired to violate her constitutional rights.” Id. In addition, she alleged that the NYPD's Special Victims Squad “failed to investigate her allegations against Chao.” Id.
On January 18, 2019, Judge Carter construed Plaintiff's claims against Mo and Mo's law firm as brought under Section 1983 and dismissed them for failure to state a claim due to Plaintiff's failure to show that they were state actors. Sun II, 2019 WL 13489918, at *2. Judge Carter dismissed Plaintiff's claims under Section 1983 against Justice Carmen Victoria St. George under the doctrine of judicial immunity. Id. at *2-3. Judge Carter also dismissed Plaintiff's claims against, inter alia, the NYPD's Special Victims Squad without prejudice to similar claims that Plaintiff had raised in her then-pending action that was before Judge Swain (Sun I). Id. at *3. Judge Carter declined to consider, under the Court's supplemental jurisdiction, Plaintiff's claims under state law; declined to grant Plaintiff leave to amend her complaint; and dismissed Sun II sua sponte. Id. at *4.
Plaintiff appealed. On August 16, 2019, the United States Court of Appeals for the Second Circuit dismissed the appeal as frivolous. Sun v. Chao, No. 19-269 (2d Cir. Aug. 16, 2019). In that same order, the Second Circuit warned Plaintiff, in light of her litigation history in that Court, “that the continued filing of duplicative, vexatious, or clearly meritless appeals, motions, or other papers could result in the imposition of a sanction that would require [Plaintiff] to obtain permission from [the Second Circuit] prior to filing any further submissions in [that Court] (a “leave-to-file” sanction).” Id. Plaintiff filed an application for an extension of time to file a petition for a writ of certiorari with the Supreme Court of the United States, which Justice Ginsburg granted on October 24, 2019; Plaintiff was granted until March 2, 2020, to file a petition for a writ of certiorari. Sun v. Chao, No. 19A446 (Oct. 24, 2019). There is no indication, however, that she ever did so.
C. Sun v. Saslovsky, No. 19 Civ. 10858 (LTS) (SN)
In September 2019, Plaintiff filed a pro se civil action in the New York Supreme Court, New York County, against, among other defendants: (i) Li Da Sun; (ii) Mo; (iii) Mo's law firm; (iv) Chao; and (v) the NYPD. On November 22, 2019, that action, captioned as Sun v. Saslovsky, No. 19 Civ. 10858 (LTS) (SN) (“Sun III”), was removed to this Court. Then-District Judge Swain accepted the assignment of Sun III as related to Sun I and referred Sun III to Magistrate Judge Netburn for general pretrial matters.
In an Order dated August 6, 2020, Judge Swain dismissed, without prejudice, some of Plaintiff's claims against the NYPD raised in the Sun III amended complaint as duplicative of Plaintiff's claims in then-pending Sun I. Sun v. Saslovsky, No. 19 Civ. 10858 (LTS), 2020 WL 6828666, at *6 (S.D.N.Y. Aug. 6, 2020). Judge Swain construed Plaintiff's remaining claims against the NYPD (as well as Plaintiff's claims against ACS) as brought against the City of New York; dismissed her claims under Section 1983 against the City, sua sponte, for failure to state a claim; but granted Plaintiff leave to file a second amended complaint as to her claims under Section 1983 against the City arising from her allegations that:
[i] NYPD officers retaliated against Plaintiff because of her complaints of alleged sexual assault, in violation of the First Amendment; [ii] ACS caused Plaintiff to be subjected to involuntary psychiatric treatment, in violation of the Fourteenth Amendment; [and] [iii] NYPD officers falsely arrested and detained Plaintiff in the 13th precinct in the summer of 2010, in violation of the Fourth Amendment.Id. (citations omitted).
Judge Swain also dismissed Plaintiff's claims under Section 1983 against, inter alia, Li Da Sun, Mo, Mo's law firm, and Chao for failure to state a claim, but granted Plaintiff leave to replead such claims in a second amended complaint. Sun III, 2020 WL 6828666, at *7. Judge Swain did the same with regard to Plaintiff's claims of conspiracy under Sections 1983 and 1985(3). Id. Judge Swain further declined to consider, under the Court's supplemental jurisdiction, Plaintiff's claims under state law. Id. at *9. While the August 6, 2020 Order was not final, Plaintiff appealed. On December 23, 2020, the Second Circuit dismissed the appeal, effective January 19, 2021, due to Plaintiff's failure to pay the appeal fees or to seek IFP status on appeal. Sun v. Saslovsky, No. 20-3528 (2d Cir. Dec. 23, 2020). By order dated June 17, 2024, Chief Judge Swain dismissed Sun III with prejudice due to Plaintiff's failure to file a second amended complaint. (Dkt. #71, 19 Civ. 10858).
D. The Amended Complaint
Plaintiff, in the present action, and with the exception of her claims against Chief Judge Swain, Judge Carter, Magistrate Judge Netburn, Circuit Judge Chin, Justice Carmen Victoria St. George, Justice Norman St. George, Kathy Hirata Chin, Esq., Mayor Adams and, possibly, her claims against the AAPEX Officers, appears to assert claims under Section 1983 that were previously adjudicated in Sun I, Sun II, and/or Sun III. Plaintiff also appears to assert claims under state law that she previously raised in Sun I, Sun II, and/or in Sun III, but that the Court declined to consider under its supplemental jurisdiction. Such claims, like Plaintiff's claims in her abovementioned previous actions, derive from that events that allegedly “occurred over the course of 21 years and arose from her relationships and interactions with: her ex-husband, [Li Da] Sun; ... [her] former physician, ... Chao, and his private counsel, ... Mo and [Mo's law firm]; as well as from [her] interactions with the Doe Defendants, ... the NYPD, and ... ACS.” Sun I, 2020 WL 4530354, at *1.
DISCUSSION
A. The Court Dismisses Plaintiff's Claims Against the NYPD
The Court, as it has done in Plaintiff's previous lawsuits, must dismiss Plaintiff's claims against the NYPD. The NYPD, which is an agency of the City of New York, is not a separate entity that can be sued. N.Y. City Charter ch. 17, § 396 (“All actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law.”); Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007); see also Emerson v. City of New York, 740 F.Supp.2d 385, 395 (S.D.N.Y. 2010) (“[A] plaintiff is generally prohibited from suing a municipal agency.”). The Court therefore dismisses Plaintiff's claims against the NYPD for failure to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
B. The Court Dismisses Plaintiff's Claims Under Bivens Against Chief Judge Swain, Judge Carter, and Magistrate Judge Netburn, As Well As Plaintiff's Claims Under Section 1983 Against Justice Carmen Victoria St. George
The Court must dismiss Plaintiff's claims under Bivens against Chief Judge Swain, Judge Carter, and Magistrate Judge Netburn of this Court, and her claims under Section 1983 against Justice Carmen Victoria St. George, a state-court judge, under the doctrine of judicial immunity. Judges are absolutely immune from suit for damages in their individual capacities for any actions taken within the scope of their judicial responsibilities. See Mireles v. Waco, 502 U.S. 9, 9-12 (1991) (claims under Section 1983); Andrews v. Hall, Nos. 22-1298, 22-1299, 22-1300, 22-1301, 22-1302, 22-1303, 2023 WL 309609, at *1 (2d Cir. Jan. 19, 2023) (summary order) (discussing application of the doctrine of judicial immunity in the context of claims under Bivens brought against a federal judge); Nieves v. Liman, No. 20 Civ. 7503 (LLS), 2020 WL 7248856, at *2-3 (S.D.N.Y. Dec. 7, 2020) (same). Generally, “acts arising out of, or related to, individual cases before the judge are considered judicial in nature.” Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009). “[E]ven allegations of bad faith or malice cannot overcome judicial immunity.” Id. at 209. This is because, “[w]ithout insulation from liability, judges would be subject to harassment and intimidation.” Young v. Selsky, 41 F.3d 47, 51 (2d Cir. 1994).
In addition, Section 1983, as amended in 1996, provides that “in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.” 42 U.S.C. § 1983. Courts have understood that provision of Section 1983 to apply to federal judges as well as to state judges. See, e.g., Fontil v. Abrams, No. 23 Civ. 4875 (LTS), 2023 WL 3996664, at *2-3 n.3 (S.D.N.Y. June 14, 2023); Nieves, 2020 WL 7248856, at *3; Raghavendra v. Fenn, Nos. 16 Civ. 4118 (JMA), 19 Civ. 53 (JMA), 2019 WL 4963257, at *4 (E.D.N.Y. Oct. 7, 2019); Lasher v. Buchwald, No 18 Civ. 1829 (CM), 2018 WL 11300266, at *3 (S.D.N.Y. Mar. 23, 2018), appeal dismissed, No. 18-981, 2018 WL 11300291 (2d Cir. July 26, 2018) (unpublished opinion); Kampfer v. Scullin, 989 F.Supp. 194, 201-02 (N.D.N.Y. 1997).
Importantly, judicial immunity does not apply when a judge takes action outside his or her judicial capacity, or when the judge takes action that, although judicial in nature, is taken in the absence of all jurisdiction. Mireles, 502 U.S. at 11-12; see also Bliven, 579 F.3d at 210 (describing actions that are judicial in nature). But “the scope of [a] judge's jurisdiction must be construed broadly where the issue is the immunity of the judge.” Stump v. Sparkman, 435 U.S. 349, 356 (1978).
Plaintiff appears to assert claims under Section 1983 against Justice Carmen Victoria St. George, and claims under Bivens against Chief Judge Swain, Judge Carter, and Magistrate Judge Netburn, arising from these judges' alleged actions and/or rulings in her proceedings before them as to her previous civil actions in state court and in this Court. Plaintiff, however, fails to allege any facts showing that, in taking those actions and/or making such rulings, these Defendants acted beyond the scope of their respective judicial responsibilities or outside their respective jurisdiction. See Mireles, 509 U.S. at 11-12. Because Plaintiff sues these Defendants for “acts arising out of, or related to, individual cases before [them],” Bliven, 579 F.3d at 210, the doctrine of judicial immunity applies to Plaintiff's claims under Section 1983 and Bivens against these Defendants. The Court therefore dismisses these claims against these Defendants under the doctrine of judicial immunity, because Plaintiff seeks monetary relief from Defendants who are immune from such relief, see § 1915(e)(2)(B)(iii), and because these claims are frivolous, see § 1915(e)(2)(B)(i); Mills v. Fischer, 645 F.3d 176, 177 (2d Cir. 2011) (“Any claim dismissed on the ground of absolute judicial immunity is ‘frivolous' for purposes of [the IFP statute].”).
“A Bivens action is a judicially-created remedy designed to provide individuals with a cause of action against [individual] federal officials who have violated their constitutional rights.... The only remedy available in a Bivens action is an award for monetary damages from [individual] defendants in their individual capacities.” Higazy v. Templeton, 505 F.3d 161, 169 (2d Cir. 2007). The abovementioned amendment to Section 1983 that allows for injunctive relief against a judge only if a declaratory decree was violated or declaratory relief is unavailable, however, still precludes Plaintiff from seeking injunctive relief against any of these state- or federal-judge defendants. This is so because Plaintiff can seek review and, in at least one case, sought review, of these defendants' actions and/or rulings in the appellate courts. See Berlin v. Meijia, No. 15 Civ. 5308 (JMA), 2017 WL 4402457, at *4 (E.D.N.Y. Sept. 30, 2017) (“Here, no declaratory decree was violated and declaratory relief is available to plaintiffs through an appeal of the state court judges' decisions in state court.”), appeal dismissed, No. 17-3589 (2d Cir. Apr. 18, 2018) (effective May 18, 2018).
C. The Court Dismisses Plaintiff's Claims Under Bivens and Under Section 1983 Against Kathy Hirata Chin, Esq.
To the extent that Plaintiff asserts claims of federal constitutional violations under Bivens and under Section 1983 against Circuit Judge Chin's spouse, Kathy Hirata Chin, Esq., the Court must dismiss those claims. As mentioned above, “[a] Bivens action is a judicially-created remedy designed to provide individuals with a cause of action against [individual] federal officials who have violated their constitutional rights.” Higazy v. Templeton, 505 F.3d 161, 169 (2d Cir. 2007). Plaintiff alleges nothing to suggest that Kathy Hirata Chin, Esq. is a federal official. Thus, the Court dismisses Plaintiff's claims under Bivens against Kathy Hirata Chin, Esq. for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
To state a claim under Section 1983, a plaintiff must allege both that: (i) a right secured by the Constitution or laws of the United States was violated, and (ii) the right was violated by a person acting under the color of state law, or a “state actor.” See West v. Atkins, 487 U.S. 42, 48-49 (1988). “The traditional definition of acting under color of state law requires that the defendant ... exercise[ ] power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” Id. at 49 (internal quotation marks and citation omitted). “Because the United States Constitution regulates only the Government, not private parties, [with respect to a claim brought under Section 1983,] a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes state action.” Flagg v. Yonkers Sav. & Loan Ass'n, 396 F.3d 178, 186 (2d Cir. 2005) (internal quotation marks and citation omitted).
Private parties generally are not state actors, and therefore are not usually liable under Section 1983. Sykes v. Bank of Am., 723 F.3d 399, 406 (2d Cir. 2013) (quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001)). Absent special circumstances suggesting concerted action between an attorney and a state representative, see Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970), a private attorney's legal representation does not constitute state action for the purpose of stating a claim under Section 1983 against that attorney, regardless of whether that attorney is privately retained, court-appointed, or employed as a public defender, see Bourdon v. Loughren, 386 F.3d 88, 90 (2d Cir. 2004) (first citing Polk Cnty. v. Dodson, 454 U.S. 312, 318-19 (1981); and then citing Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997)); see also Shorter v. Rice, No. 12 Civ. 0111, 2012 WL 1340088, at *4 (E.D.N.Y. Apr. 10, 2012) (“[I]t is axiomatic that neither public defenders, such as Legal Aid attorneys, nor court-appointed counsel, nor private attorneys, act under the color of state law merely by virtue of their position.”).
It appears that Kathy Hirata Chin, Esq., Circuit Judge Chin's spouse, is a private attorney. Plaintiff alleges no facts showing that this Defendant has acted as a state actor with regard to Plaintiff's federally protected rights. Thus, the Court dismisses Plaintiff's claims under Section 1983 against Kathy Hirata Chin, Esq. for failure to state a claim on which relief may be granted. See § 1915(e)(2)(B)(ii).
D. The Court Dismisses Plaintiff's Claims Previously Asserted in Sun I , Sun II , or Sun III , With the Exception of Plaintiff's Claims Under Section 1983 That May Be Eligible For Renewal Under the ASA
Plaintiff appears to be reasserting claims under Section 1983 that she previously asserted in Sun I, Sun II, and/or Sun III. The Court dismisses those claims, with the exception of those claims under Section 1983 that may be eligible for revival under the ASA (i.e., those claims under Section 1983 against individual NYPD police personnel arising from Plaintiff's allegations that those individuals sexually abused her), under the doctrine of issue preclusion. This doctrine, also known as “collateral estoppel,” bars relitigation of a specific legal or factual issue in a subsequent proceeding:
where [i] the issues in both proceedings are identical, [ii] the issue in the prior proceeding was actually
litigated and actually decided, [iii] there was [a] full and fair opportunity to litigate in the prior proceeding, and [iv] the issue previously litigated was necessary to support a valid and final judgment on the merits.Grieve v. Tamerin, 269 F.3d 149, 153 (2d Cir. 2001) (citation and internal quotation marks omitted) (alteration in original); accord Seneca Nation v. Hochul, 58 F.4th 664, 668 (2d Cir. 2023). This doctrine “bars successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment, even if the issue recurs in the context of a different claim.” Marcel Fashions Grp., Inc. v. Lucky Brand Dungarees, Inc., 779 F.3d 102, 108 (2d Cir. 2015) (internal quotation marks and citation omitted); Fresh Del Monte Produce Inc. v. Del Monte Foods, Inc., No. 13 Civ. 8997 (JPO), 2016 WL 236249, at *5 (S.D.N.Y. Jan. 20, 2016) (“It is issue preclusion ... [that] permits ‘an issue of fact or law [ ] actually litigated and determined by a valid and final judgment, and ... essential to the judgment' to be ‘conclusive in a subsequent action between the parties, whether on the same or a different claim.'” (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 27, p. 250 (1980) (emphasis in original, alteration in original))); see generally Baker v. Gen. Motors Corp., 522 U.S. 222, 234 (1998) (“We see no reason why the preclusive effects of an adjudication on parties and those ‘in privity' with them, i.e., ... issue preclusion (... collateral estoppel), should differ depending solely upon the type of relief sought in a civil action.” (footnote omitted)).
Moreover, “[a] previous dismissal for failure to state a claim is a decision made on the merits for the purpose of future applications of issue preclusion.” Curcio v. Grossman, No. 22 Civ. 1648 (VB), 2022 WL 767167, at *4 (S.D.N.Y. Mar. 14, 2022), aff'd sub nom. Curcio v. Abrams, No. 22-693, 2023 WL 31183 (2d Cir. Jan. 4, 2023) (summary order); see Clark v. DMV, No. 22 Civ. 86 (JGK), 2022 WL 1471349, at *9 (S.D.N.Y. May 9, 2022) (quoting Curcio, 2022 WL 767167, at *4); Nealy v. Berger, No. 08 Civ. 1322 (JFB), 2009 WL 704804, at *10 (E.D.N.Y. Mar. 16, 2009). The same is true with respect to a dismissal on the grounds of judicial immunity. See Mir v. Kirchmeyer, No. 20-1659, 2021 WL 4484916, at *2 (2d Cir. Oct. 1, 2021) (summary order); Curcio, 2022 WL 767167, at *4 (“[A] previous dismissal of claims because of an immunity defense can be the basis for a subsequent dismissal of claims under the doctrine of issue preclusion.” (citing Mir, 2021 WL 448916, at *2)). The Court may, on its own initiative, raise the defense of issue preclusion. See Thai-Lao Lignite (Thailand) Co., Ltd. v. Gov't of the Lao People's Democratic Republic, 864 F.3d 172, 191 (2d Cir. 2017); Curry v. City of Syracuse, 316 F.3d 324, 331 (2d Cir. 2003) (citing Doe v. Pfrommer, 148 F.3d 73, 80 (2d Cir. 1998)).
In the August 6, 2020 Order in Sun I, the Court considered Plaintiff's claims under Section 1983 arising from Plaintiff's “relationships and interactions with: her ex-husband, [Li Da] Sun; ... [her] former physician, ... Chao, and his private counsel, ... Mo and [Mo's law firm]; as well as from [her] interactions with the Doe Defendants, ... the NYPD, and ... [ACS].” Sun I, 2020 WL 4530354, at *1. The Court dismissed as untimely, for failure to state a claim, “all of Plaintiff's [S]ection 1983 claims for injuries arising from events that took place before November 26, 2015,” which included:
[i] Plaintiff's Fourth and Fourteenth Amendment Due Process claims against the City Defendants based on alleged sexual assaults by NYPD officers between 2003 and 2013; [ii] Plaintiff's claim against the City Defendants for violation of the Fourth Amendment based on her detention at the 13th Precinct in 2009; ... [and] [vi] Plaintiff's Fourteenth Amendment Due Process claim against Mo and [Mo's law firm] ... based on conduct during litigation in 2010.Id. at *4. The Court also dismissed, for failure to state a claim, Plaintiff's Section 1983 claims against the NYPD, ACS, and the City of New York. Id. at *4-6. The Court further dismissed, for failure to state a claim, Plaintiff's First Amendment claims under Section 1983 “that the Doe Defendants, and through them[,] the City, forcibly hospitalized her on January 20, 2019, in retaliation for filing [Sun I].” Id. at *5-6 (footnote omitted). In addition, the Court dismissed, for failure to state a claim, Plaintiff's claims of conspiracy against NYPD officers and against Mo and Mo's law firm, under 42 U.S.C. §§ 1983 and 1985(3), Id. at *8-9, and Plaintiff's claims under Section 1983 against Mo and Mo's law firm due to Plaintiff's failure to show “that either Mo or the Law Firm was as state actor within the meaning of [S]ection 1983 at any relevant time,” Id. at *9-10. Plaintiff never appealed these rulings post-judgment.
In the Court's January 18, 2019 order in Sun II, the Court again dismissed Plaintiff's claims under Section 1983 against Mo and Mo's law firm for failure to state a claim, because of Plaintiff's failure to show that those defendants were state actors. Sun II, 2019 WL 13489918, at *2. The Court also dismissed Plaintiff's Sun II claims under Section 1983 against Justice Carmen Victoria St. George under the doctrine of judicial immunity. Id. at *2- 3. Plaintiff's appeal of these rulings was dismissed by the Second Circuit as frivolous. Sun v. Chao, No. 19-269 (2d Cir. Aug. 16, 2019).
In its August 6, 2020 Order in Sun III, the Court dismissed, for failure to state a claim, Plaintiff's Section 1983 claim against the City of New York, but granted her leave to replead her claims under Section 1983 against the City arising from her allegations that:
[i] NYPD officers retaliated against Plaintiff because of her complaints of alleged sexual assault, in violation of the First Amendment; [ii] ACS caused Plaintiff to be subjected to involuntary psychiatric treatment, in violation of the Fourteenth Amendment; [and] [iii] NYPD officers falsely arrested and detained Plaintiff in the 13th precinct in the summer of 2010, in violation of the Fourth Amendment.Sun III, 2020 WL 6828666, at *6. The Court also dismissed, for failure to state a claim, but with leave to replead, Plaintiff's claims under Section 1983 against, inter alia, Li Da Sun, Mo, Mo's law firm, and Chao. Id. at *7. The Court did the same with Plaintiff's claims of conspiracy under Sections 1983 and 1985(3). Thereafter, because Plaintiff failed to file a second amended complaint in response to the Court's August 6, 2020 Order, the Court dismissed Sun III with prejudice. (Dkt. #71, 19 Civ. 10858).
Plaintiff, in her Amended Complaint, asserts these same claims again, which were adjudicated, for the purposes of issue preclusion, on the merits in Sun I, Sun II, and/or Sun III. Accordingly, and with the exception of those claims under Section 1983 that may be eligible for revival under the ASA (i.e., those claims under Section 1983 against individual NYPD police personnel arising from Plaintiff's allegations that those individuals sexually abused her), see N.Y.C.P.L.R. § 214-j, the Court dismisses these claims under the doctrine of issue preclusion (collateral estoppel) for failure to state a claim on which relief may be granted. see 28 U.S.C. § 1915(e)(2)(B)(ii); Wachtmeister v. Swiesz, 59 Fed.Appx. 428, 429 (2d Cir. 2003) (summary order) (concluding that a dismissal for issue preclusion is a dismissal for failure to state a claim on which relief may be granted).
E. The Court Dismisses Plaintiff's Claims Under Section 1983 Against Mayor Adams, the AAPEX Officers, and Justice Norman St. George, and Plaintiff's Claims Under Bivens Against Circuit Judge Chin
To the extent that Plaintiff asserts claims under Section 1983 against Mayor Adams, the AAPEX Officers, and Justice Norman St. George, and to the extent that Plaintiff asserts claims under Bivens against Circuit Judge Chin, the Court must dismiss those claims. To state a claim under Section 1983 against individual state actors, such Adams, the AAPEX Officers, and Justice Norman St. George, a plaintiff must allege facts showing that those individuals were directly and personally involved in an alleged constitutional deprivation. See Spavone v. N.Y. State Dep't of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (“It is well settled in this Circuit that personal involvement of defendants in the alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” (internal quotation marks omitted)); accord Kravitz v. Purcell, 87 F.4th 111, 129 (2d Cir. 2023). An individual state actor defendant may not be held liable under Section 1983 solely because that individual employs or supervises a person who violated the plaintiff's rights. See Iqbal, 556 U.S. at 676 (“Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.”). Rather, “[t]o hold a state official liable under § 1983, a plaintiff must plead and prove the elements of the underlying constitutional violation directly against the official.” Tangreti v. Bachmann, 983 F.3d 609, 620 (2d Cir. 2020). The same requirement applies when a plaintiff asserts a claim under Bivens against a federal officer. See, e.g., Grajales v. Eli Lilly & Co., No. 23 Civ. 6972 (JPO), 2023 WL 6259654, at *3 (S.D.N.Y. Sept. 26, 2023), appeal dismissed, No. 237441 (2d Cir. Feb. 8, 2024) (effective Feb. 29, 2024); Crumble v. United States, No. 23 Civ. 4427 (LTS), 2023 WL 5102907, at *5 (S.D.N.Y. Aug. 7, 2023); Van Stuyvesant v. Crane, No. 23 Civ. 4394 (LTS), 2023 WL 4848404, at *8 (S.D.N.Y. July 27, 2023).
Plaintiff does not show how Mayor Adams, the AAPEX Officers, Justice Norman St. George, or Circuit Judge Chin were directly and personally involved in any of the alleged violations of her federal constitutional rights. The Court therefore dismisses Plaintiff's claims under Section 1983 against Mayor Adams, the AAPEX Officers, and Justice Norman St. George, as well as Plaintiff's claims under Bivens against Circuit Judge Chin, for failure to state a claim on which relief may be granted. see 28 U.S.C. § 1915(e)(2)(B)(ii). In light of Plaintiff's pro se status, however, the Court grants Plaintiff leave to amend her complaint to allege, if she can, facts showing how Mayor Adams and the AAPEX Officers were directly and personally involved in those alleged violations with respect to her claims against those Defendants under Section 1983.
The Court declines to allow Plaintiff leave to amend her claims under Section 1983 against Justice Norman St. George, and her claims under Bivens against Circuit Judge Chin, because Plaintiff alleges nothing to suggest that either judge was involved at all in the alleged violations, and because, even if either or both of them were, such claims would likely be dismissed due to the doctrine of judicial immunity.
F. Service on Specified Defendants
Because Plaintiff has been granted permission to proceed IFP, she is entitled to rely on assistance from the Court and the United States Marshals Service (“USMS”) to effect service. Walker v. Schult, 717 F.3d. 119, 123 n.6 (2d Cir. 2013); see also 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process ... in [IFP] cases.”); Fed.R.Civ.P. 4(c)(3) (the Court must order the Marshals Service to serve if the plaintiff is authorized to proceed IFP).
Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that a summons be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have effected service until the Court reviewed the Amended Complaint and ordered that any summonses be issued. The Court therefore extends the time to serve until 90 days after the date any summonses issue.
To allow Plaintiff to effect service on Detective Trockel, Detective Vidal, Police Officer Tsang, Lieutenant Cai, Mo, Mo's law firm, Chao, Naturo, and the City of New York through the USMS, the Clerk of Court is instructed to fill out a USMS Process Receipt and Return form (“USM-285 form”) for each of these defendants. The Clerk of Court is further instructed to issue summonses for these defendants and deliver to the USMS all the paperwork necessary for the USMS to effect service upon these defendants.
If the Amended Complaint (Dkt. #4) is not served within 90 days after the date summonses are issued, Plaintiff should request an extension of time for service. See Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012) (holding that it is the plaintiff's responsibility to request an extension of time for service).
Plaintiff must notify the Court in writing if her address changes, and the Court may dismiss the action if Plaintiff fails to do so.
G. The Unidentified Defendant, Li Da Sun, and the Estate of Detective Matthews
Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the Court in identifying an unidentified defendant and providing a defendant's service address. 121 F.3d 72, 76 (2d Cir. 1997). In the Amended Complaint, Plaintiff supplies sufficient information to permit the NYPD to identify the unidentified Defendant - “the fifth policeman, who was the detective or supervisor in 72 precinct” (AC 6), who appears to be a member of the NYPD who was either a detective or a supervisor assigned to the NYPD's 72nd Precinct during those periods in which Plaintiff alleges that she was sexually assaulted by NYPD personnel, including in 2008 (see id. at 19) - as well as to provide that Defendant's service address and that of the Estate of Detective Steven Matthews, who was allegedly assigned to the NYPD's 109th Precinct in 2003, and in 2005, and is now deceased (see id. at 5, 7, 12). The Amended Complaint also supplies sufficient information to permit Mo, who is alleged to be Li Da Sun's attorney (see id. at 4-5, 9-10, 13, 24), to provide Li Da Sun's service address. It is therefore ORDERED that the Corporation Counsel of the City of New York, who is the attorney for and agent of the NYPD, must ascertain the identity and shield number of the unidentified defendant, as well as the addresses where that Defendant and the Estate of Detective Matthews may be served. The Corporation Counsel must provide this information to the Court and to Plaintiff within 60 days of the date of this Order. It is further ORDERED that Mo must ascertain the service address for Li Da Sun and provide it to the Court and to Plaintiff within 60 days of the date of his Order.
Within 30 days of receiving this information, Plaintiff is hereby ORDERED to file a second amended complaint naming the currently unidentified Defendant and including that Defendant's, the Estate of Detective Matthew's, and Li Da Sun's service addresses. The second amended complaint will replace, not supplement, Plaintiff's original complaint and the Amended Complaint. A second amended complaint form that Plaintiff should complete is attached to this Order. Once Plaintiff has filed a second amended complaint, the Court will screen it and, if necessary, issue an order directing service on the unidentified Defendant, the Estate of Detective Matthews, and Li Da Sun.
CONCLUSION
The Clerk of Court is directed to mail an information package to Plaintiff.
For the reasons discussed above, the Court hereby: [i] DISMISSES Plaintiff's claims against the NYPD, for failure to state a claim on which relief may be granted, see 28 U.S.C. § 1915(e)(2)(B)(ii); [ii] DISMISSES any of Plaintiff's claims under Section 1983 that the Court previously adjudicated, which are not possibly eligible for revival under New York's Adult Survivors Act, under the doctrine of issue preclusion, for failure to state a claim on which relief may be granted, see id.; [iii] DISMISSES Plaintiff's claims under Bivens against Chief Judge Swain, Judge Carter, and Magistrate Judge Netburn, and her claims under Section 1983 against Justice Carmen Victoria St. George, under the doctrine of judicial immunity and as frivolous, see § 1915(e)(2)(B)(i), (iii), as well as her claims under Bivens against Circuit Judge Chin and her claims under Section 1983 against Kathy Hirata Chin, Esq. and Justice Norman St. George for failure to state a claim on which relief may be granted, see § 1915(e)(2)(ii); [iv] DISMISSES Plaintiff's claims under Section 1983 against Mayor Adams and against the AAPEX Officers for failure to state a claim on which relief may be granted, see id., but without prejudice to Plaintiff's amending her complaint as to those claims; [v] DIRECTS SERVICE on the remaining identified and existing defendants whose service addresses are discernable (Detective Bryan Trockel, Detective Bruno Vidal, Police Officer Sam Tsang, Lieutenant Timothy Cai, Hugh H. Mo, Esq., the Law Firm of Hugh H. Mo, P.C., Tsai Chung Chao, M.D., Naturo-Medical Health P.C., and the City of New York); and [vi] ORDERS the Corporation Counsel of the City of New York to provide Plaintiff and the Court with the identity, shield number, and service address of the unidentified police Defendant (“the fifth policeman, who was the detective or supervisor in 72 precinct”) (AC 6), as well as the service address of the Estate of Detective Matthews (see id. at 7), and directs Mo to provide Plaintiff and the Court with the service address of his client, Li Da Sun (see Id. at 4-5, 9-10, 13, 24).
The Court further directs the Clerk of Court to: [i] issue summonses for Detective Bryan Trockel, Detective Bruno Vidal, Police Officer Sam Tsang, Lieutenant Timothy Cai, Hugh H. Mo, Esq., the Law Firm of Hugh H. Mo, P.C., Tsai Chung Chao, M.D., Naturo-Medical Health Care P.C., and the City of New York; [ii] complete USM-285 forms with the service addresses of each of these defendants; and [iii] deliver all documents necessary to effect service of the summonses and the Amended Complaint (Dkt. #4) on these defendants to the USMS.
The Court also directs the Clerk of Court to mail a copy of this Order and a copy of the Amended Complaint (Dkt. #4) to: (i) the Corporation Counsel of the City of New York at 100 Church Street, New York, New York 10007; and (ii) the Law Firm of Hugh H. Mo, P.C., at 225 Broadway, Suite 2702, New York, New York 10007.
A second amended complaint form is attached to this Order.
The Court certifies, under 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith and, therefore, IFP status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 44445 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).
The Court further directs the Clerk of Court, pursuant to this Order, to terminate the following defendants from this action's electronic docket: (i) the NYPD; and (ii) the “corrupt judges in New York.”
SO ORDERED.
SERVICE ADDRESS FOR EACH DEFENDANT
1. Detective Bryan Trockel
NYPD 72nd Precinct
830 4th Avenue
Brooklyn, New York 11232-1702
2. Detective Bruno Vidal
NYPD 90th Precinct
211 Union Avenue
Brooklyn, New York 11211-7417
3. Officer Sam Tsang
NYPD 61st Precinct
2575 Coney Island
Brooklyn, New York 11223-5027
4. Lieutenant Timothy Cai
NYPD 108 th Precinct
5-47 50th Avenue
Long Island City, New York 11101
5. The City of New York
Law Department
100 Church Street
New York, New York 10007
6. Hugh H. Mo, Esq.
The Law Firm of Hugh H. Mo., P.C.
225 Broadway, Suite 2702
New York, New York 10007
7. The Firm of Hugh H. Mo, P.C.
225 Broadway, Suite 2702
New York, New York 10007
8. Tsai Chung Chao, M.D.
Naturo-Medical Health Care, P.C.
39 East 20th Street
New York, New York 10003
9. Naturo-Medical Health Care, P.C.
39 East 20th Street
New York, New York 10003
SECOND AMENDED COMPLAINT
Do you want a jury trial?
[ ] Yes [ ] No
NOTICE
The public can access electronic court files. For privacy and security reasons, papers filed with the court should therefore not contain: an individual's full social security number or full birth date; the full name of a person known to be a minor; or a complete financial account number. A filing may include only: the last four digits of a social security number; the year of an individual's birth; a minor's initials; and the last four digits of a financial account number. See Federal Rule of Civil Procedure 5.2.
I. BASIS FOR JURISDICTION
Federal courts are courts of limited jurisdiction (limited power). Generally, only two types of cases can be heard in federal court: cases involving a federal question and cases involving diversity of citizenship of the parties. Under 28 U.S.C. § 1331, a case arising under the United States Constitution or federal laws or treaties is a federal question case. Under 28 U.S.C. § 1332, a case in which a citizen of one State sues a citizen of another State or nation, and the amount in controversy is more than $75,000, is a diversity case. In a diversity case, no defendant may be a citizen of the same State as any plaintiff.
What is the basis for federal-court jurisdiction in your case?
[ ] Federal Question
[ ] Diversity of Citizenship
A. If you checked Federal Question
Which of your federal constitutional or federal statutory rights have been violated?
B. If you checked Diversity of Citizenship
1. Citizenship of the parties
Of what State is each party a citizen?
The plaintiff, (Plaintiff's name)____, is a citizen of the State of_____(State in which the person resides and intends to remain.) or, if not lawfully admitted for permanent residence in the United States, a citizen or subject of the foreign state of ____.
If more than one plaintiff is named in the complaint, attach additional pages providing information for each additional plaintiff.
If the defendant is an individual:
The defendant, (Defendant's name)__, is a citizen of the State of or, if not lawfully admitted for permanent residence in the United States, a citizen or subject of the foreign state of ____.
If the defendant is a corporation:
The defendant,____, is incorporated under the laws of the State of _____ and has its principal place of business in the State of ____ or is incorporated under the laws of (foreign state)____ and has its principal place of business in____.
If more than one defendant is named in the complaint, attach additional pages providing information for each additional defendant.
II. PARTIES
A. Plaintiff Information
Provide the following information for each plaintiff named in the complaint. Attach additional pages if needed.
First Name ____Middle Initial___Last Name
Street Address___
County, City____State___Zip Code
Telephone Number ____Email Address (if available)___
B. Defendant Information
To the best of your ability, provide addresses where each defendant may be served. If the correct information is not provided, it could delay or prevent service of the complaint on the defendant. Make sure that the defendants listed below are the same as those listed in the caption. Attach additional pages if needed.
Defendant 1: First Name__Last Name____
Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City ____State___Zip Code___
Defendant 2: First Name__Last Name____
Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City ____State_____Zip Code____
Defendant 3: First Name__Last Name____
Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City_____State___Zip Code____
Defendant 4: First Name__Last Name____
Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City_____State___Zip Code____
III. STATEMENT OF CLAIM
Place(s) of occurrence:____
Date(s) of occurrence:____
FACTS:____
State here briefly the FACTS that support your case. Describe what happened, how you were harmed, and what each defendant personally did or failed to do that harmed you. Attach additional pages if needed.
INJURIES:
If you were injured as a result of these actions, describe your injuries and what medical treatment, if any, you required and received.
IV. RELIEF
State briefly what money damages or other relief you want the court to order.
V. PLAINTIFF'S CERTIFICATION AND WARNINGS
By signing below, I certify to the best of my knowledge, information, and belief that: (1) the complaint is not being presented for an improper purpose (such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law or by a nonfrivolous argument to change existing law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil Procedure 11.
I agree to notify the Clerk's Office in writing of any changes to my mailing address. I understand that my failure to keep a current address on file with the Clerk's Office may result in the dismissal of my case.
Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to proceed without prepayment of fees, each plaintiff must also submit an IFP application.
Dated____
Plaintiff's Signature___
First Name___ Middle Initial____Last Name
Street Address___County, City____State__Zip Code
Telephone Number____Email Address (if available)
I have read the Pro Se (Nonprisoner) Consent to Receive Documents Electronically:
[ ] Yes [ ] No
If you do consent to receive documents electronically, submit the completed form with your complaint. If you do not consent, please do not attach the form.
Pro Se (Nonprisoner) Consent to Receive Documents Electronically
Parties who are not represented by an attorney and are not currently incarcerated may choose to receive documents in their cases electronically (by e-mail) instead of by regular mail. Receiving documents by regular mail is still an option, but if you would rather receive them only electronically, you must do the following:
1. Sign up for a PACER login and password by contacting PACER at www.pacer.uscourts.gov or 1-800-676-6856;
2. Complete and sign this form.
Public Access to Court Electronic Records (PACER) (www.pacer.uscourts.gov) is an electronic public access service that allows users to obtain case and docket information from federal appellate, district, and bankruptcy courts, and the PACER Case Locator over the internet.
If you consent to receive documents electronically, you will receive a Notice of Electronic Filing by e-mail each time a document is filed in your case. After receiving the notice, you are permitted one “free look” at the document by clicking on the hyperlinked document number in the e-mail. Once you click the hyperlink and access the document, you may not be able to access the document for free again. After 15 days, the hyperlink will no longer provide free access. Any time that the hyperlink is accessed after the first “free look” or the 15 days, you will be asked for a PACER login and may be charged to view the document. For this reason, you should print or save the document during the “free look” to avoid future charges.
You must review the Court's actual order, decree, or judgment and not rely on the description in the email notice alone. See ECF Rule 4.3
IMPORTANT NOTICE
Under Rule 5 of the Federal Rules of Civil Procedure, Local Civil Rule 5.2, and the Court's Electronic Case Filing Rules & Instructions, documents may be served by electronic means. If you register for electronic service:
1. You will no longer receive documents in the mail;
2. If you do not view and download your documents during your “free look” and within 15 days of when the court sends the e-mail notice, you will be charged for looking at the documents;
3. This service does not allow you to electronically file your documents;
4. It will be your duty to regularly review the docket sheet of the case.
The docket sheet is the official record of all filings in a case. You can view the docket sheet, including images of electronically filed documents, using PACER or you can use one of the public access computers available in the Clerk's Office at the Court. 500 PEARL STREET | NEW YORK, NY 10007 300 QUARROPAS STREET |WHITE PLAINS, NY 10601 PRO SE INTAKE UNIT: 212-805-0175
CONSENT TO ELECTRONIC SERVICE
I hereby consent to receive electronic service of notices and documents in my case(s) listed below. I affirm that:
1. I have regular access to my e-mail account and to the internet and will check regularly for Notices of Electronic Filing;
2. I have established a PACER account;
3. I understand that electronic service is service under Rule 5 of the Federal Rules of Civil Procedure and Rule 5.2 of the Local Civil Rules, and that I will no longer receive paper copies of case filings, including motions, decisions, orders, and other documents;
4. I will promptly notify the Court if there is any change in my personal data, such as name, address, or e-mail address, or if I wish to cancel this consent to electronic service;
5. I understand that I must regularly review the docket sheet of my case so that I do not miss a filing; and
6. I understand that this consent applies only to the cases listed below and that if I file additional cases in which I would like to receive electronic service of notices of documents, I must file consent forms for those cases.
Civil case(s) filed in the Southern District of New York:
Note: This consent will apply to all cases that you have filed in this court, so please list all of your pending and terminated cases. For each case, include the case name and docket number (for example, John Doe v. New City, 10-CV-01234).
Name (Last, First, MI)____
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Pro Se Intake Unit (Room 200)
500 Pearl Street
New York, NY 10007