Toure v. New York City et al
ORDER DISMISSING CASE. For the reasons set forth in the attached Memorandum and Order, the pro se complaint, filed in forma pauperis, is dismissed for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(h)(3), and the request for a temporary restraining order is denied. The court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. The Clerk of the Court is respectfully requested to serve a copy of this Memorandum and Order on the pro se plaintiff and note service on the docket. Ordered by Judge Kiyo A. Matsumoto on 04/03/2012. (Ravi, Sagar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
-againstCITY OF NEW YORK; CIVIL COURT OF THE
CITY OF NEW YORK; JUDGE CAROL R. FEINMAN;
JUDGE JANE DOE; HOWARD J. SCHAIN,
New York City marshal; 330 EMPIRE LLC;
SOL MANN; TEDDY MANN; JOHN DOE 1,
son of Sol Mann; JOHN DOE 2, son of
MATSUMOTO, United States District Judge:
On February 8, 2012, Naby Toure (“plaintiff”) filed this
pro se action against the defendants asserting claims pursuant to
42 U.S.C. § 1983 in connection with the alleged illegal eviction of
plaintiff from private commercial rental property.
Complaint (“Compl.”) ¶ 12.)
(See ECF No. 1,
Plaintiff seeks compensatory damages
of $44,000, punitive damages of $1,000,000, and a temporary
(Id. at 5.)
Defendant’s request to proceed in
forma pauperis is granted solely for the purpose of this Order.
the reasons set forth below, the Complaint is dismissed.
The facts described herein are taken from the allegations
in the Complaint.
On March 1, 2004, plaintiff entered into a two-year
lease to rent a store located at 1026 Nostrand Avenue in Brooklyn,
New York from defendants Sol Mann (“Mr. Mann”) and 330 Empire LLC
(“330 Empire”). (See Compl. at 2 & ¶ 2.)
Plaintiff paid a security
deposit of $9,000 and also spent $35,000 for repairs to the property.
(Id. ¶¶ 2, 6.)
There was an agreement among plaintiff, Mr. Mann, and
330 Empire that upon expiration of the two-year lease, plaintiff would
become a partner in an unspecified business and “split the property
(Id. ¶ 2.)
When the two-year lease expired on February
28, 2006, Mr. Mann and 330 Empire did not issue a new lease, but a
“verbal commitment was agreed upon” in which Mr. Mann agreed to
continue to collect $2,500 per month from plaintiff “until the
business became profitable.”
(Id. ¶ 3.)
Plaintiff continued to
operate the business on the premises and make rent payments to Mr.
Mann or his three sons, who at times did not provide the plaintiff
with receipts and also “attempted to get paid twice within a single
On July 22, 2011, plaintiff appeared before the
Landlord-Tenant Part of the Civil Court of the City of New York in
Kings County pursuant to a summons for an eviction proceeding with
respect to the store at 1026 Nostrand Avenue (the “Civil Court
(Id. ¶¶ 4-7.)
Because the petitioning landlords Mr. Mann
and 330 Empire did not appear at the hearing, the matter was dismissed
and a default was declared.
(Id. ¶ 5.)
On November 29, 2011,
plaintiff received a notice of eviction from defendant Howard J.
Schain (“Schain”), a New York City marshal, “stating that there had
been a court warrant issued authorizing [him] to evict.”
(Id. ¶ 7.)
On November 30, 2011, plaintiff appeared in the Civil Court Action
and filed an order to show cause upon defendants Mr. Mann, 330 Empire,
(Id. ¶ 8.) Finally, on December 13, 2011, plaintiff
filed a Notice of Removal seeking to remove the Civil Court Action
to this court. See 330 Empire LLC v. Toure, No. 11-CV-6141(KAM), 2011
U.S. Dist. LEXIS 149103, at *1 (E.D.N.Y. Dec. 28, 2011).
Memorandum and Order dated December 28, 2011, this court found that
removal should not be permitted because the court lacked subject
matter jurisdiction and remanded the case back to the Civil Court
of the City of New York, County of Kings, Index No. 79358/11.
Plaintiff then commenced this action on February 8, 2012
alleging that defendants “conspired to cover up the truth and to hold
an illegal eviction” and that defendants Mr. Mann and 330 Empire
breached their verbal contract with plaintiff.
(Compl. ¶ 12.)
Specifically, plaintiff alleges that an ex parte holdover proceeding
was held in violation of his substantive and procedural due process
rights guaranteed by the Fifth and Fourteenth Amendments of the United
(Id. ¶¶ 7-8, 11.)
alleges that the “illegal [holdover] action was filled with fraud,
perjured reports and false written statements,” which defendant
Judges Carol R. Feinman and Jane Doe relied upon “to render an illegal
decision without affording plaintiff the opportunity to be heard .
. . .”
(Id. ¶¶ 8, 9, 11.)
Finally, plaintiff alleges that the
defendant City of New York “has allowed the New York Civil Court to
operate outside the scope” of the United States Constitution, and
that the City of New York is thus liable under a theory of respondeat
(Id. ¶ 9.)
STANDARD OF REVIEW
A complaint must plead “enough facts to state a claim to
relief that is plausible on its face.”
550 U.S. 544, 570 (2007).
Bell Atl. Corp. v. Twombly,
“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
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949
In reviewing plaintiff’s complaint, the court is mindful
that “a 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 (2007) (quoting Estelle v. Gamble,
429 U.S. 97, 106 (1976)) (internal quotation marks omitted).
Pursuant to the in forma pauperis statute, the court must
dismiss a complaint 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 from a defendant who is immune
from such relief.”
28 U.S.C. § 1915(e)(2)(B).
Additionally, if the
Court “determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”
Fed. R. Civ. P.
12(h)(3); accord Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d
240, 250 (2d Cir. 2008).
Indeed, federal courts have an independent
obligation to determine whether subject matter jurisdiction exists,
even in the absence of a challenge from any party, see Ruhrgas AG
v. Marathon Oil Co., 526 U.S. 574, 583 (1999), and “[w]here
jurisdiction is lacking, . . . dismissal is mandatory,”
Yong Qin Luo v. Mikel, 625 F.3d 772, 775 (2d Cir. 2010).
Subject matter jurisdiction in this case is premised on
federal question jurisdiction pursuant to 28 U.S.C. § 1331.
plaintiff properly invokes § 1331 jurisdiction when [he] pleads a
colorable claim ‘arising under’ the Constitution or laws of the
Arbaugh v. Y & H Corp., 546 U.S. 500, 513 (2006).
Here, plaintiff invokes the court’s federal question jurisdiction
by asserting claims pursuant to 42 U.S.C. § 1983.
To state a Section
1983 claim, a plaintiff must establish that the defendants deprived
him of a federal or constitutional right while acting under color
of state law.
See Colombo v. O’Connell, 310 F.3d 115, 117 (2d Cir.
2002); Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994).
Although plaintiff asserts claims under Section 1983, he
fails to allege a claim arising under that statute.
See S. New
England Tel. Co. v. Global NAPs Inc., 624 F.3d 123, 132 (2d Cir. 2010)
(“[T]he district court has subject matter jurisdiction unless the
purported federal claim is clearly immaterial and made solely for
the purpose of obtaining jurisdiction or is wholly insubstantial and
frivolous.” (internal quotation marks omitted)).
reliance on Section 1983 is misplaced because the gravamen of
plaintiff’s complaint concerns the allegedly “illegal eviction” of
plaintiff from private commercial rental property at 1026 Nostrand
Avenue, which is purely a matter of state law.
Indeed, “it is well
settled that the landlord-tenant relationship is fundamentally a
matter of state law,” Kheyn v. City of New York, Nos. 10-CV-3233(SLT),
10-CV-3234(SLT), 2010 U.S. Dist. LEXIS 77708, at *4 (E.D.N.Y. July
27, 2010) (citing cases), and that “[f]ederal courts do not have
subject-matter jurisdiction over landlord-tenant matters.”
Rosquist v. St. Marks Realty Assoc., LLC, No. 08-CV-2764 (NGG), 2008
U.S. Dist. LEXIS 59483, at *6 (E.D.N.Y. July 31, 2008) (citations
omitted) (finding no subject matter jurisdiction over claims arising
from plaintiff’s disputes with his landlord and an eviction
proceeding); see also Senior v. Univ. Towers Assoc., No. 08-CV-0387
(ENV), 2008 U.S. Dist. LEXIS 18274, at *6-7 (E.D.N.Y. Mar. 4, 2008)
(same); Harris v. Dep’t of Hous. Pres. & Dev., No. 07-CV-0067 (DLI),
2007 U.S. Dist. LEXIS 11730, at *5-6 (E.D.N.Y. Feb. 15, 2007) (same).
Moreover, like the removal action previously filed by
plaintiff in this court, to the extent plaintiff challenges a final
order or judgment from the Civil Court of the City of New York
regarding his eviction from 1026 Nostrand Avenue, the action would
be barred from federal review under the Rooker-Feldman doctrine.
See Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462,
482-84 n.16 (1983), and Rooker v. Fidelity Trust Co., 263 U.S. 413,
Pursuant the Rooker-Feldman doctrine, federal
courts lack jurisdiction over “cases brought by state-court losers
complaining of injuries caused by state-court judgments rendered
before the district court proceedings commenced and inviting
district court review and rejection of those judgments.”
v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 85 (2d Cir. 2005)
(quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,
Accordingly, federal courts lack jurisdiction to stay
or enjoin state court orders of eviction.
See Rossman v. Stelzel,
No. 11-CV-4293 (JS), 2011 U.S. Dist. LEXIS 120174, at *11 (E.D.N.Y.
Oct. 13, 2011) (“[C]ourts within this Circuit routinely hold that
a federal court action seeking to overturn a state court judgment
of foreclosure or eviction is barred by the Rooker-Feldman doctrine.”
If plaintiff seeks to challenge the disposition
of the Civil Court Action, he must pursue his remedies in state court.
Finally, the court notes that, even if this court had
subject matter jurisdiction over plaintiff’s claims, the claims
against Judges Carol R. Feinman and Jane Doe of the Civil Court of
the City of New York, Kings County, must be dismissed as frivolous
because a “judge defending against a section 1983 suit is entitled
to absolute immunity from damages for actions performed in h[er]
Ceparano v. Doe, 404 F. App’x 537, 539 (2d Cir.
2011) (summary order) (quoting Fields v. Soloff, 920 F.2d 1114, 1119
(2d Cir. 1990)); Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999)
(“A complaint will be dismissed as ‘frivolous’ when ‘it is clear that
the defendants are immune from suit.’” (quoting Neitzke v. Williams,
490 U.S. 319, 327 (1989)).
“The absolute judicial immunity of the
court and its members ‘is not overcome by allegations of bad faith
or malice,’ nor can a judge ‘be deprived of immunity because the
action he took was in error . . . or was in excess of his authority.’
This immunity may be overcome only if the court is alleged to have
taken nonjudicial actions or if the judicial actions taken were ‘in
the complete absence of [all] jurisdiction.’”
Rosquist, 2008 U.S.
Dist. LEXIS 59483 at *8 (quoting Mireles v. Waco, 502 U.S. 9, 11-13
Here, plaintiff’s allegations involve the Judges’
handling of the eviction proceedings (see Compl. ¶¶ 8, 9, 11), which
are clearly judicial acts performed within their judicial
Accordingly, defendant Judges Carol R. Feinman and Jane
Doe are each shielded from liability by absolute judicial immunity,
and even if the court had jurisdiction over plaintiff’s claims, any
such claims against them would thus be dismissed as frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
Accordingly, for the reasons set forth above, the pro se
Complaint, filed in forma pauperis, is dismissed for lack of subject
matter jurisdiction pursuant to Federal Rule of Civil Procedure
12(h)(3), and the request for a temporary restraining order is
The court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal from this Order would not be taken in good faith and
therefore in forma pauperis status is denied for the purpose of an
See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of the Court is respectfully requested to serve a copy of
this Memorandum and Order on the pro se plaintiff and note service
on the docket.
Brooklyn, New York
April 3, 2012
KIYO A. MATSUMOTO
United States District Judge
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