Babaev et al v. Farinella et al

Filing 8

MEMORANDUM AND ORDER: For the reasons stated above, plaintiffs' complaint is dismissed for failure to state a claim on which relief may be granted. The Court finds that amendment of the complaint would be futile, so the Court need not grant lea ve to amend. See Nielsen v. Rabi n, 746 F.3d 58, 62 (2d Cir. 2014). The Clerk of Court is directed to close the case and to enter judgment accordingly. The Court certifies pursuant to 28 U.S.C. § l 9 l 5(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 445 (1962). Ordered by Judge Carol Bagley Amon on 5/19/2017. (fwd for judgment) (Fernandez, Erica)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

MARKET BABAEV,ZINA BELLA BABAEV,

BROOKLYN OFFICE

DIANA ABRAMSHEV,and DANIELLA
ABRAMSHEV,

Plaintiffs,

NOT FOR PUBLICATION

-against-

MEMORANDUM & ORDER
17-CV-873(CBA)
(LB)

GUS MICHAEL FARINELLA,JUDGE CARLA

E. CRAIG,JOSH S. PEREIRA,ESQ., and
CAMILE T. ALLEN,
Defendants.
X

AMON,United States District Judge:

On February 14,2017, plaintiffs, proceeding pro se. commenced the instant action alleging
violations of their constitutional rights stemming from a bankruptcy action. The Court grants
plaintiffs' request to proceed in forma nauneris pursuant to 28 U.S.C. § 1915. For the reasons
discussed below,the complaint is dismissed.
BACKGROUND

Plaintiffs Markel Babaev ("Markel"), Zina Bella Babaev, Diana Abramshev, and Daniella

Abramshev bring this action pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknovyn Federal
Narcotics Agents. 403 U.S. 388 (1971). Plaintiffs allege their constitutional rights were violated

during the course of plaintiff Markel's bankruptcy proceedings.' Plaintiffs have named the
following individuals as defendants: the Honorable Carla E. Craig, Chief Judge of the United
States Bankruptcy Court for the Eastem District of New York; John S. Pereria, Esq., who was a

trustee in Markel's bankruptcy action; Camile [sic] T. Allen ("Allen"), Markel's attorney in the

'On May 20, 2003, Markel filed a proceeding pursuant to Chapter 7 of the Bankruptcy Code in the United States
Bankruptcy Court for the Eastem District of New York.^In re Babaev. No. 1 -03-16559(CEC)
(Bankr. E.D.N.Y.),
D.E. # 1. The case was closed on January 25, 2010. Id., D.E.# 104. On February 29, 2016, Markel filed a motion to
reopen the action and "to Recover Everything that was Stolen by Trustee." Jd., D.E. # 106. Markel's motion was
denied on March 22, 2016. Id., D.E. dated Mar. 22,2016.
1

bankruptcy proceeding; and Gus Farinella ("Farinella"), an attorney whose relationship to the
plaintiffs is unclear.

Although not a model of clarity, the complaint alleges that Markel was given improper
advice by Allen and as a result, he and his family lost their home and property. (D.E. # 1
("Compl.") at 4, 7.) Plaintiffs accuse defendants of stealing their house,jewelry, and furniture.
(Id at 4,7, 9.)
STANDARD OF REVIEW

Under 28 U.S.C. § 1915(e)(2)(B), the Court is required to dismiss a complaint filed in
forma pauperis if it:(1)"is frivolous or malicious,"(2)"fails to state a claim upon which relief
may be granted," or(3)"seeks monetary relieffrom a defendant who is immune from such relief."
Leave to amend must be granted if a liberal reading of the pleading "gives any indication that a
valid claim might be stated." Cuoco v. Moritsueu. 222 F.3d 99, 112 (2d Cir. 2000)(internal
quotation marks and citations omitted).

At the pleading stage, the Court must assume the truth of"all well-pleaded, nonconclusory
factual allegations in the complaint." Kiobel v. Roval Dutch Petroleum Co.. 621 F.3d 111, 123

(2d Cir. 2010). A complaint must plead "enough facts to state a claim to relief that is plausible on
its face." Bell Atl. Corp. v. Twomblv.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. lobal. 556 U.S. 662,678 (2009).
All allegations contained in the complaint are assumed to be true, but this tenet is "inapplicable to
legal conclusions." Id Although pro se complaints must contain sufficient factual allegations to
meet the plausibility standard,see Harris v. Mills. 572 F.3d 66,72(2d Cir. 2009),the Court reviews

such allegations by reading the complaint with "special solicitude" and interpreting the allegations

to raise the "strongest arguments that they suggest," Triestman v. Fed. Bureau ofPrisons.470 F.3d
471,474-75(2d Cir.2006).
DISCUSSION

I.

Plaintiffs' Claims Against Defendant Attorneys
To state a claim pursuant to Section 1983, a plaintiff must allege:(1) that the challenged

conduct was "committed by a person acting under color of state law," and (2) that such conduct
"deprived [the plaintiff] of rights, privileges, or immunities secured by the Constitution or laws of

the United States." Comeio v. Bell. 592 F.3d 121,127(2d Cir. 2010)(quoting Pitchell v. Callan.
14 F.3d 545, 547(2d Cir. 1994)). "Section 1983 itself creates no substantive rights; it provides

only a procedure for redress for the deprivation ofrights established elsewhere." Svkes v. James.
13 F.3d 515, 519(2d Cir. 1993). The Supreme Court has held that "the under-color-of-state-law
element of [Section] 1983 excludes from its reach merely private conduct, no matter how
discriminatory or wrrongful." American Mfrs. Mut. Ins. Co. v. Sullivan. 526 U.S. 40, 50(1999)
(quoting Blum v. Yarektskv.457 U.S. 991, 1002(1982)).

Plaintiffs allege that Allen advised Markel to file for bankruptcy protection, and that as a

result of Allen's advice, plaintiffs have lost all of their assets. (Compl. at 4, 7.) Plaintiffs'
allegations against Farinella are sparse: they simply allege that Farinella acted against their
interests. (Id. at 4.) It is well-settled that private attorneys—even if the attorney was court
appointed—do not act under color of state law and are not state actors for purposes of § 1983.
Rodriguez v. Wenrin. 116 F.3d 62,65-66(2d Cir. 1997); Licari v. Vooe. 374 F. App'x 230, 231
(2d Cir. 2010). Here,defendants Allen and Farinella are private individuals whose conduct cannot
be fairly attributed to the State. Thus, plaintiffs have failed to state a plausible claim for relief

under § 1983 against defendants Allen and Farinella, and the claims against these defendants are
dismissed. See28U.S.C. § 1915(e)(2)(B).
II.

Plaintiffs' Claims Against Chief Judge Craig and Trustee Pereiera

In Bivens v. Six Unknown Federal Narcotics Agents. 403 U.S. 388 (1971), the Supreme
Court recognized an implied private cause of action for damages against federal officers who
violate a citizen's constitutional rights. See Corr. Servs. Corp. v. Malesko. 534 U.S. 61, 66-67

(2001)(discussing the origins of Bivens claims'). Bivens actions, although not precisely parallel,
are the federal analog to Section 1983 actions against state actors.

It is well-settled that judges have absolute immunity for their judicial acts performed in
their judicial capacities. See, e.g.. Mireles v. Waco. 502 U.S. 9, 11 (1991); Peia v. United States

Bankr. Court.62 F. App'x 394,396(2d Cir. 2003)(the doctrine ofjudicial immunity barred claims
against bankruptcy judge). This absolutejudicial immunity "is not overcome by allegations ofbad

faith or malice," nor can ajudge "be deprived ofimmunity because the action he took was in error

... or was in excess of his authority." Mireles. 502 U.S. at 11 (quoting Stump v. Sparkman. 435
U.S. 349, 362(1978)).

Plaintiffs' claims against Chief Judge Craig arise from her role as the Bankruptcy Judge
assigned to Markel's Chapter 7 proceeding. It is clear that plaintiffs are unhappy about the

outcome of the proceeding. However, plaintiffs' claims against Chief Judge Craig seeking
monetary damages relating to actions taken in her judicial capacity during the course of the
bankruptcy proceeding are barred by the doctrine ofjudicial immunity. Plaintiffs fail to allege any
factual allegations to show that Chief Judge Craig acted outside of her role as a judicial officer.
See Jackson v. Ctv. ofNassau.No. 15-CV-7218(SJF)
(AKT),2016 WL 1452394,at *6(E.D.N.Y.
Apr. 13, 2016)(conclusory allegations are insuffieient to overcome judieial immunity).

Finally, plaintilTs' claims against Trustee Pereria are likewise barred. "[A] trustee will

enjoy absolute immunity so long as he does not act in the clear absence of all jurisdiction, or at
least acts under the supervision of the bankruptcy judge." Gonzalez v. Musso. No. 08-CV-3026
(NOG),2008 WL 3194179, at *2(E.D.N.Y. Aug.6,2008)(quoting Reisncrv. Stoller. 51 F. Supp.
2d 430, 446 (S.D.N.Y. 1999)). Here, plaintiffs fail to allege any facts to show that the actions of
Trustee Pereira in liquidating and selling plaintiffs' assets was completed in the absence of

jurisdiction, or without the supervision and authority of the presiding bankruptcy judge.
CONCLUSION

For the reasons stated above, plaintiffs' complaint is dismissed for failure to state a claim
on which relief may be granted. The Court finds that amendment of the complaint would be
futile, so the Court need not grant leave to amend. ^Nielsen v. Rabin. 746 F.3d 58, 62(2d
Cir. 2014). The Clerk of Court is directed to close the case and to enter judgment accordingly.
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 purpose of an
appeal. See Coppedge v. United States. 369 U.S. 438, 444-45 (1962).
SO ORDERED.

Dated: May
,2017
Brooklyn, New York

s/Carol Bagley Amon
Carol Bagl6y Ai
United States District Judge