Ojeda et al v. Mendez et al

Filing 49

MEMORANDUM & ORDER -- Plaintiffs Michael Angelo Ojeda and Carmen Rosa Torres Ojeda filed this pro se action in August 2020. The Court has reviewed the complaint sua sponte and determined that it names certain defendants who are i mmune from suit and asserts certain claims under statutes that provide no private cause of action. Accordingly, and for the reasons stated, Plaintiffs' claims against Justice Dawn Jimenez-Salta, Justice Sylvia Ash, the State of New York, the Cle rk's Office of the Kings County Supreme Court, the Office of Court Administration, the New York City Police Department and its Internal Affairs Bureau, the New York City Department of Consumer and Worker Protection, Mitu Maruf (a/k/a Maruf Alam), Zaki Isaac Tamir, and Clark Pena are dismissed. This action will proceed at this stage against the remaining defendants. ORDER ATTACHED. Ordered by Judge Eric R. Komitee on 1/7/2021. (Guy, Alicia)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
MICHAEL ANGELO OJEDA and CARMEN
ROSA TORRES OJEDA,
MEMORANDUM & ORDER
20-CV-3910(EK)(LB)

Plaintiffs,
- against ALFONSO MENDEZ, Police Officer,
Badge # 7899; NEW YORK POLICE
DEPARTMENT; INTERNAL AFFAIRS
BUREAU; et al.,
Defendants.
------------------------------------X
ERIC KOMITEE, District Judge:

Plaintiffs Michael Angelo Ojeda and Carmen Rosa Torres
Ojeda filed this pro se action in August 2020.

The Court has

reviewed the complaint sua sponte and determined that it names
certain defendants who are immune from suit and asserts certain
claims under statutes that provide no private cause of action.
Accordingly, and for the reasons stated below, Plaintiffs’
claims against Justice Dawn Jimenez-Salta, Justice Sylvia Ash,
the State of New York, the Clerk’s Office of the Kings County
Supreme Court, the Office of Court Administration, the New York
City Police Department and its Internal Affairs Bureau, the New
York City Department of Consumer and Worker Protection, Mitu
Maruf (a/k/a Maruf Alam), Zaki Isaac Tamir, and Clark Pena are
dismissed.

This action will proceed at this stage against the
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remaining defendants: the City of New York, Mayor Bill de
Blasio, Police Officer Alfonso Mendez, the Police Benevolent
Association of New York City, Bonita E. Zelman, Seth A. Harris,
and Felix W. Ortiz.
I.

Background

This action arises out of the tragic death of
Plaintiffs’ daughter Briana.
in the complaint.

The following facts are as alleged

On August 27, 2010, Briana experienced a

severe asthma attack.

As Ms. Ojeda rushed Briana by car to Long

Island College Hospital in Brooklyn, they encountered Officer
Mendez, who, for reasons that are not clear in the complaint,
stopped Ms. Ojeda and asked what they were doing.

Ms. Ojeda

urged Officer Mendez to perform CPR on Briana; however, he
responded, “I do not know CPR and I don’t do CPR.”

Ms. Ojeda

continued to the hospital, where Briana was pronounced dead.
Following their daughter’s death, Plaintiffs pursued
legal and political efforts to seek redress.

The allegations in

the complaint are somewhat confusing, but it appears that in or
around 2011, Plaintiffs brought a wrongful death action in New
York State court against the City, Officer Mendez and other
defendants, and this action was dismissed in 2016.

Plaintiffs

contend that their attorneys in that action, defendants Bonita
E. Zelman and Seth A. Harris, “r[an] [the] case into the
ground,” including by improperly filing the “Notice of Claim”
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“directly [with] the Comptroller and Legal Counsel for the City
of New York . . . so that [the] case could be put into the
counterfeit system.”

In addition, certain individuals and

entities in the court system allegedly engaged in a “Ponzi
Scheme” and failed “to follow required procedural law.”

The

targets of those allegations are Justice Dawn Jimenez-Salta and
Justice Sylvia Ash of the New York State Supreme Court, who
presided over the proceedings; the Clerk’s Office of the Supreme
Court of Kings County; and the New York State Office of Court
Administration.

In retaliation for the lawsuit, Plaintiffs

allege that defendant New York City Department of Consumer and
Worker Protection (named in the complaint by its former title,
the New York City Department of Consumer Affairs) removed them
from the “DARP program.” 1
Plaintiffs also campaigned for “Briana’s Law,” which
New York State passed in 2017, requiring police officers to be
trained in CPR every two years.

Plaintiffs allege, among other

things, that during this campaign defendants Felix Ortiz, a New
York State Assembly Member, and his aide Mitu Maruf (a/k/a Maruf
Alam), improperly requested “personal favors” from Plaintiffs.
Sometime later, Plaintiffs established a foundation in Briana’s

The Complaint does not explain what the “DARP program” is; however, it
may be a reference to New York City’s Directed Accident Towing Program.

1

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name — the “Briana Lives Foundation, Inc.”

However, Plaintiffs

allege that its founders, defendants Zaki Isaac Tamir and Clark
Pena, “hijack[ed]” the organization for their own financial
gain.
In general, throughout the complaint, Plaintiffs
allege that certain defendants — including the New York City
Police Department and its Internal Affairs Bureau, the Police
Benevolent Association of New York City (a union), the City of
New York, the State of New York, and Mayor Bill de Blasio —
conspired with others “[to] cover up” Officer Mendez’s allegedly
criminal conduct.
At the end of the complaint, Plaintiffs set out a
number of counts.

They bring civil claims pursuant to the

Racketeering Influenced and Corrupt Organizations Act (“RICO”),
18 U.S.C. §§ 1961-1968; due process claims under the Fourteenth
Amendment, which the Court construes as brought pursuant to 42
U.S.C. § 1983; claims for “Federal Negligence — United States v.
Carroll Towing” and “46 U.S. Code § 30509 Intentional Infliction
of Emotional Distress,” which the Court construes as state-law
tort claims; 2 and causes of action under numerous criminal
statutes.
2

Plaintiffs purport to bring counts under “46 U.S. Code § 30509
Intentional Infliction of Emotional Distress” and “Federal Negligence —

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II.

Legal Standard

The Court is mindful that “[a] document filed pro se
is to be liberally construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.”
551 U.S. 89, 94 (2007) (cleaned up).

Erickson v. Pardus,

However, a district court

has the inherent power to dismiss sua sponte a case, or a claim,
as frivolous — even if (as is the case here) a pro se plaintiff
has paid the filing fee.

Fitzgerald v. First East Seventh

Street Tenants Corp., 221 F.3d 362, 363-64 (2d Cir. 2000).

A

claim is frivolous when it is “based on an indisputably
meritless legal theory.”

Jordan v. New York State Dep't of

Labor, 811 F. App'x 58, 59 (2d Cir. 2020) (citing Livingston v.
Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir 1998)).

In

addition, a complaint will also be dismissed when “it is clear

United States v. Carroll Towing.” Section 30509 is a maritime statute.
Similarly, United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947),
sets forth the “well-established principles of Second Circuit maritime
negligence law.” See, e.g., In re Nagler, 246 F. Supp. 3d 648, 658 (E.D.N.Y.
2017). Accordingly, the court construes these claims as being brought in
tort law for intentional infliction of emotional distress and negligence.

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that the defendants are immune from suit.”

Montero v. Travis,

171 F.3d 757, 760 (2d Cir. 1999).
III. Discussion
A.

Defendants Immune from Suit
Certain defendants here are clearly immune from suit.

First, judges are accorded absolute immunity from suits for
damages arising out of judicial acts performed in their judicial
capacities.

Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (judges

are immune from suit except for actions taken in a non-judicial
capacity or in the complete absence of jurisdiction).

This

absolute judicial immunity “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.”

Id. at 11, 13.

Plaintiffs’ only claims

against Justices Ash and Jimenez-Salta relate to their official
actions presiding over the state court proceedings — failing to
hold a required “preliminary conference” at one point, and
improperly “resurrect[ing] a case” at another.

These actions

were clearly taken within their judicial capacities.

Thus,

defendants Ash and Jimenez-Salta are immune from suit for
damages, and the claims against them are dismissed.
Second, Plaintiffs name the State of New York and
several of its agencies as defendants.
6

States and their

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agencies possess sovereign immunity, as memorialized in the
Eleventh Amendment.

See Pennhurst State School & Hosp. v.

Halderman, 465 U.S. 89, 100 (1984).

The Eleventh Amendment bars

suits for damages against states and state agencies absent a
state’s consent or a valid abrogation of the state’s sovereign
immunity by an act of Congress.

Id. at 99-100.

Plaintiffs have

not identified any waiver of sovereign immunity that would
permit them to bring suit against the State of New York or any
of its agencies based on Plaintiffs’ state court cases or
legislative efforts.

Indeed, “New York State has not waived its

sovereign immunity from Section 1983 claims, nor did Congress
override that immunity by enacting Section 1983.”

Nolan v.

Cuomo, No. 11-CV-5827, 2013 WL 168674, at *7 (E.D.N.Y. Jan. 16,
2013) (internal citations omitted).

Accordingly, Plaintiffs’

claims against the State of New York, the Clerk’s Office of the
Kings County Supreme Court, and the Office of Court
Administration are dismissed.
Finally, Plaintiffs name multiple New York City
agencies as defendants.

Federal courts look to state law to

decide whether a municipal entity is amenable to suit in federal
court.

Fed. R. Civ. P. 17(b)(3).

Charter is the relevant authority.

Here, the New York City
See, e.g., Ximines v. George

Wingate High Sch., 516 F.3d 156, 160 (2d Cir. 2008).
7

The

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Charter provides that actions and proceedings to recover
penalties for legal violations shall be brought against the City
of New York and not any agency thereof, except where otherwise
provided by law.

N.Y.C. Charter Ch. 17, § 396.

Therefore,

agencies of New York City are not “suable” entities.

See e.g.,

Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir.
2007); Baily v. New York City Police Dept., 910 F. Supp. 116,
117 (E.D.N.Y. 1996).

Accordingly, the New York City Police

Department, the N.Y.P.D.’s Internal Affairs Bureau, and the New
York City Department of Consumer and Worker Protection are
dismissed.
B.

Causes of Action Based in Federal Criminal Laws
Plaintiffs allege that all defendants violated one or

more criminal statutes.

For example, they bring one count

against Officer Mendez for second degree murder, and allege that
certain defendants’ conduct amounts to treason.

Plaintiffs

invoke a multitude of criminal statutes, including 18 U.S.C.
§ 225 (continuing financial crimes enterprise), 18 U.S.C. § 471
(counterfeiting), 18 U.S.C. § 1001 (false statements), 18 U.S.C.
§ 1343 (wire fraud), 18 U.S.C. § 1503 (obstruction of justice),
18 U.S.C. § 1510 (obstruction), 18 U.S.C. § 1511 (obstruction),
18 U.S.C. § 1581 (peonage), 18 U.S.C. § 1951 (interference with
commerce by threats or violence), 18 U.S.C. § 1957 (engaging in
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monetary transactions in property derived from specified
unlawful activity), 18 U.S.C. § 2381 (treason), 18 U.S.C. § 2384
(seditious conspiracy), and murder in the second degree, N.Y.
Penal Law § 125.25.
“It is a truism, and has been for many decades, that
in our federal system crimes are always prosecuted by the
Federal Government, not . . . by private complaints.”
Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d
81, 86–87 (2d Cir. 1972); see also Sheehy v. Brown, 335 Fed.
Appx. 102, 104 (2d Cir. 2009) (“[F]ederal criminal statutes do
not provide private causes of action.”).

Accordingly, all

counts under criminal statutes (except for RICO) are dismissed
because they do not provide a private right of action.

In

addition, defendants Mitu Maruf (a/k/a Maruf Alam), Zaki Isaac
Tamir, and Clark Pena are dismissed from this action, because
the complaint asserts only criminal law causes of action against
them.
Some of the defendants’ alleged conduct, however,
relates to crimes that are also predicate acts to a RICO
violation.

See, e.g., 18 U.S.C. § 1343 (wire fraud), 18 U.S.C.

§ 1503 (obstruction of justice), 18 U.S.C. § 1511 (obstruction
of state or local law enforcement).

As the Court is allowing

the alleged RICO violation(s) to proceed past this stage, those
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allegations may be relevant to one or more surviving claims.
IV.

Conclusion

In sum, the following defendants are dismissed:
Justice Dawn Jimenez-Salta, Justice Sylvia Ash, the State of New
York, the Clerk’s Office of the Kings County Supreme Court, the
Office of Court Administration, the New York City Police
Department and its Internal Affairs Bureau, the New York City
Department of Consumer and Worker Protection, Mitu Maruf (a/k/a
Maruf Alam), Zaki Isaac Tamir, and Clark Pena.
The remaining defendants are the City of New York,
Mayor Bill de Blasio, Officer Alfonso Mendez, the Police
Benevolent Association of New York City, Bonita E. Zelman, Seth
A. Harris, and Felix W. Ortiz.

In addition, the counts brought

under criminal statutes (except for RICO) are dismissed as to
all remaining defendants.
Plaintiffs request an extension of time to serve the
complaint and summonses.

ECF No. 33.

This request is granted

as to the remaining defendants not already served — Officer
Alfonso Mendez, Felix W. Ortiz, and Bonita Zelman.

Plaintiffs

must serve these defendants within forty-five days of the date
of this Order and file proof of service with the Court.
Civ. P. 4(l).

Fed. R.

If proper service against a defendant is not

made, and if Plaintiffs fail to show good cause as to why such
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service has not been made, the defendant may be dismissed.

Fed.

R. Civ. P. 4(m).
In the event that Plaintiffs elect to proceed in forma
pauperis on appeal from this Order, the Court certifies pursuant
to 28 U.S.C. § 1915(a)(3) that any such appeal would not be
taken in good faith and therefore denies in forma pauperis
status.

Coppedge v. United States, 369 U.S. 438, 444–45 (1962).

SO ORDERED.
_/s Eric Komitee____________
ERIC KOMITEE
United States District Judge
Dated:

January 7, 2021
Brooklyn, New York

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