Silver v. Campbell
DECISION AND ORDER granting # 24 Defendant's motion to dismiss Plaintiff's complaint for lack of subject-matter jurisdiction. Signed by Chief Judge Glenn T. Suddaby on 9/11/17. (lmw) (Copy served upon pro se plaintiff via regular and certified mail)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
EDGAR CAMPBELL, ESQ., in his individual
capacity and his official capacity as a landlord,
Plaintiff, Pro Se
128 Bruceville Road #2
High Falls, NY 12484
LAW OFFICE OF ELIZABETH M. HECHT
Counsel for Defendant
2 Madison Avenue
Valhalla, NY 10595
ELIZABETH M. HECHT, ESQ.
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se civil rights action filed by Cary Silver
(“Plaintiff”) against Edgar Campbell in his individual capacity and in his official capacity as a
landlord (“Defendant”), is Defendant’s motion to dismiss Plaintiff’s Complaint for lack of
subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) and for failure to state a claim
upon which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. No. 24.) For the
reasons set forth below, Defendant’s motion is granted.
Generally, liberally construed, Plaintiff’s Complaint alleges as follows. On October 1,
2012, Plaintiff entered into a one-year lease agreement to rent the top floor of Defendant’s two
family house. (Dkt. No. 1, ¶ 5 [Pl.’s Compl.].) When the lease expired on October 1, 2013,
Plaintiff contacted Defendant to request that his lease be renewed. (Id., ¶ 6.) However,
Defendant rarely returned Plaintiff’s telephone calls and provided Plaintiff with only excuses on
the occasions that they did speak to one another. (Id., ¶ 7.) Ultimately, Defendant advised
Plaintiff that he did not need a lease despite Plaintiff’s insistence that one be executed. (Id., ¶¶
7-8.) Therefore, Plaintiff continued to reside at the rental property for four years without a lease
and he bore all expenses related to repairs because Defendant ignored almost all of Plaintiff’s
telephone calls. (Id., ¶¶ 9-10.)
In January of 2015, Defendant rented the downstairs apartment of the rental property to a
female tenant. (Id., ¶ 11.) Unlike Defendant’s arrangement with Plaintiff, Defendant entered
into a one-year lease with the female tenant as well as a “renewal lease” thereafter. (Id., ¶¶ 1213.) Defendant subjected Plaintiff to disparate treatment based on gender when Defendant
offered a lease to the female tenant but refused to enter into one with him. (Id., ¶¶ 12, 14.)
The Court notes that Plaintiff filed a “rebuttal to Defendant’s Answer,” which
appears to be an Amended Complaint. (Dkt. No. 22.) If intended to be filed as an Amended
Complaint, this document was timely filed as a matter of course on October 28, 2016. (See Dkt.
No. 20 [advising Plaintiff that he had until November 18, 2016, to amend his Complaint as a
matter of course].) However, because the allegations in this document are essentially identical to
those in Plaintiff’s Complaint, and because the Court is not certain whether this document was
intended to amend the Complaint, the Court will treat Plaintiff’s Complaint as the operative
Furthermore, Defendant would complete any repairs that the female tenant reported while
continuing to ignore Plaintiff’s telephone calls. (Id., ¶¶ 15-16.) Defendant’s failure to address
the problems in his apartment constitutes a breach of implied promises of habitability that he
made to Plaintiff. (Id., ¶ 17.)
For example, on January 20, 2016, Plaintiff underwent full-knee replacement surgery and
stayed at home for almost three months to recover. (Id., ¶ 19.) Plaintiff left a message on
Defendant’s telephone explaining his surgery and requested that Defendant fix the handrail on
the left side of the stairwell so that he and his ex-wife, who was assisting Plaintiff during his
recovery, could safely traverse the steps. (Id., ¶¶ 20-22.) Plaintiff also requested permission to
have a handrail installed on the right side of the stairwell at his own expense but Defendant
never returned his calls. (Id., ¶ 22.) Eventually, Defendant made one telephone call to Plaintiff
and assured Plaintiff that he would have both the handrail and steps fixed immediately; however,
nothing was ever done. (Id., ¶ 23.) At one point in time, the female tenant residing in the
downstairs apartment of the rental property remarked to Plaintiff that Defendant treated her very
well and returned all of her telephone calls, and that she believed Defendant “likes women, not
men.” (Id., ¶ 27.) The female tenant offered to call Defendant on Plaintiff’s behalf, but Plaintiff
declined her offer because he needed to speak with Defendant directly. (Id.)
In addition to the problems in Plaintiff’s apartment, Plaintiff alleges that, in April of
2014, he noticed a toxic waste and smell on the front lawn of the rental property. (Id., ¶ 28.)
Plaintiff called Defendant several times about this problem but his telephone calls were never
returned. (Id., ¶¶ 30, 33.) This problem became worse during periods of warm weather and the
sewage on the lawn would linger for longer periods of time. (Id., ¶ 32.) Plaintiff believed the
source of the problem was from either a cracked septic tank or a broken sewage pipe. (Id., ¶ 31.)
On June 20, 2016, Plaintiff’s step-son came to visit him for a few days. (Id., ¶ 37.) The stepson, who had a “tiny cut” on his foot walked across the front lawn wearing sandals and stepped
in a puddle of water. (Id.) Soon thereafter, Plaintiff’s step-son felt like his foot was burning and
was subsequently diagnosed with Mercer disease. (Id.) Plaintiff was also concerned that the
toxic waste was seeping into the ground and contaminating a nearby well, which supplied the
tenants with their drinking water. (Id., ¶ 38.)
On June 28, 2016, after Plaintiff repeatedly complained about the toxic waste, Defendant served
him with a thirty-day notice to vacate the premises. (Id., ¶ 39.)
Based upon the foregoing allegations, Plaintiff claims that Defendant violated his right to
equal protection of the law under the Fourteenth Amendment due to Defendant’s favorable
treatment of the female tenant living below him. (Id., ¶¶ 45-46, 49.) Plaintiff also seeks
damages related to (a) his exposure to toxic substances due to Defendant’s failure to rectify the
problem, and (b) Defendant’s breach of the implied warranty of habitability. (Id., ¶ 49.)
Defendant claims that Plaintiff commenced this action in bad faith and for the illegitimate
purpose of thwarting an eviction action currently pending in Town Court. (Dkt. No. 8, ¶ 66
[Def.’s Answer]; Dkt. No. 24, Attach. 2, at 7 [Def.’s Mem. of Law].) Defendant therefore
requests that the Court award him attorneys’ fees pursuant to 28 U.S.C. § 1927.
The Parties’ Briefing on Defendant’s Motion
Defendant’s Memorandum of Law
Generally, in his memorandum of law, Defendant asserts five arguments. (Dkt. No. 24,
Attach. 2 [Def.’s Mem. of Law].)
First, Defendant argues that Plaintiff has failed to allege facts plausibly suggesting that he
suffered a deprivation of a constitutional or legal right by a person acting under color of state law
as required by 42 U.S.C. § 1983. (Id. at 4-5.)2
Second, Defendant argues that Plaintiff has failed to allege facts plausibly suggesting a
due process claim because (a) the Complaint does not specify the perceived rights that were
violated, (b) Plaintiff’s allegations do not plausibly suggest the deprivation of any rights, and (c)
Defendant was not in a position to cause any such deprivations as a private citizen. (Id. at 5-6.)
Third, Defendant argues that, because Plaintiff has failed to allege facts plausibly
suggesting that he is a state actor, Plaintiff’s equal protection claim must be dismissed. (Id. at 6.)
Fourth, Defendant argues that any attempt by Plaintiff to assert a claim on behalf of
others, such as his step-son or the female tenant, must be dismissed because they are not
cognizable as a matter of law. (Id.)
Fifth, and finally, Defendant requests that the Court award him attorney’s fees pursuant
to 28 U.S.C. § 1927 because this action (a) is groundless, (b) is retaliatory in nature, and (c) was
commenced for the illegitimate purpose of thwarting an eviction action in Town Court. (Id. at
Plaintiff’s Opposition Memorandum of Law
The deadline for responding to Defendant’s motion was January 17, 2017. (Text Notice
Dated December 21, 2016.) To date, Plaintiff has not opposed Defendant’s motion.
Page citations refer to the page numbers used on CM/ECF rather than the actual
page numbers contained in the parties’ respective motion papers.
RELEVANT LEGAL STANDARDS
Legal Standard Governing Motions to Dismiss for Failure to State a Claim
It has long been understood that a dismissal for failure to state a claim upon which relief
can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds:
(1) a challenge to the “sufficiency of the pleading” under Fed. R. Civ. P. 8(a)(2); or (2) a
challenge to the legal cognizability of the claim. Jackson v. Onondaga Cty., 549 F. Supp. 2d
204, 211, nn.15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de novo
Because such dismissals are often based on the first ground, a few words regarding that
ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a
pleading contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2) [emphasis added]. In the Court’s view, this tension between
permitting a “short and plain statement” and requiring that the statement “show” an entitlement
to relief is often at the heart of misunderstandings that occur regarding the pleading standard
established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the “short and plain”
pleading standard under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F.
Supp. 2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has
held that, by requiring the above-described “showing,” the pleading standard under Fed. R. Civ.
P. 8(a)(2) requires that the pleading contain a statement that “give[s] the defendant fair notice of
what the plaintiff’s claim is and the grounds upon which it rests.” Jackson, 549 F. Supp. 2d at
212, n.17 (citing Supreme Court cases) (emphasis added).
The Supreme Court has explained that such fair notice has the important purpose of
“enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision
on the merits” by the court. Jackson, 549 F. Supp. 2d at 212, n.18 (citing Supreme Court cases);
Rusyniak v. Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing
Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal”
notice pleading standard “has its limits.” 2 Moore’s Federal Practice § 12.34[b] at 12-61 (3d
ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding
that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F. Supp.
2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atl. Corp. v. Twombly, the Supreme Court reversed an appellate
decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1.
Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court “retire[d]” the
famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that “a complaint
should not be dismissed for failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Twombly, 127 S. Ct. at 1968-69. Rather than turn on the conceivability of an actionable claim,
the Court clarified, the “fair notice” standard turns on the plausibility of an actionable claim. Id.
at 1965-74. The Court explained that, while this does not mean that a pleading need “set out in
detail the facts upon which [the claim is based],” it does mean that the pleading must contain at
least “some factual allegation[s].” Id. at 1965. More specifically, the “[f]actual allegations must
be enough to raise a right to relief above the speculative level [to a plausible level],” assuming
(of course) that all the allegations in the complaint are true. Id.
As for the nature of what is “plausible,” the Supreme Court explained that “[a] claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for
relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged–but it has not
show[n]–that the pleader is entitled to relief.” Iqbal, 129 S.Ct. at 1950 [internal quotation marks
and citations omitted]. However, while the plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully,” id., it “does not impose a probability
requirement.” Twombly, 550 U.S. at 556.
Because of this requirement of factual allegations plausibly suggesting an entitlement to
relief, “the tenet that a court must accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949.
Similarly, a pleading that only “tenders naked assertions devoid of further factual enhancement”
will not suffice. Iqbal, 129 S.Ct. at 1949 (internal citations and alterations omitted). Rule 8
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.
This pleading standard applies even to pro se litigants. While the special leniency
afforded to pro se litigants somewhat loosens the procedural rules governing the form of
pleadings (as the Second Circuit has observed), it does not completely relieve a pro se plaintiff
of the duty to satisfy the pleading standards set forth in Fed. R. Civ. P. 8, 10 and 12.3 Rather, as
both the Supreme Court and Second Circuit have repeatedly recognized, the requirements set
forth in Fed. R. Civ. P. 8, 10 and 12 are procedural rules that even pro se plaintiffs must follow.4
Stated more simply, when a plaintiff is proceeding pro se, “all normal rules of pleading are not
absolutely suspended.” Jackson, 549 F. Supp. 2d at 214, n.28 [citations omitted].5
Finally, a few words are appropriate regarding what documents are considered when a
dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal
pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c), the following matters outside the
four corners of the complaint may be considered without triggering the standard governing a
motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer,
See Vega v. Artus, 610 F. Supp. 2d 185, 196 & nn.8-9 (N.D.N.Y. 2009) (Suddaby,
J.) (citing Second Circuit cases); Rusyniak, 629 F. Supp. 2d at 214 & n.34 (citing Second Circuit
See Rosendale v. Brusie, 374 F. App’x 195, 196 (2d Cir. 2010) (“[A]lthough the
courts remain obligated to construe a pro se complaint liberally, . . . the complaint must contain
sufficient factual allegations to meet the plausibility standard.”); Vega, 610 F. Supp. 2d at 196,
n.10 (citing Supreme Court and Second Circuit cases); Rusyniak, 629 F. Supp. 2d at 214 & n.34
(citing Second Circuit cases).
It should be emphasized that Fed. R. Civ. P. 8's plausibility standard, explained in
Twombly, was in no way retracted or diminished by the Supreme Court's decision (two weeks
later) in Erickson v. Pardus, in which (when reviewing a pro se pleading) the Court stated,
"Specific facts are not necessary" to successfully state a claim under Fed. R. Civ. P. 8(a)(2).
Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) [emphasis added]. That statement was merely
an abbreviation of the often-repeated point of law–first offered in Conley and repeated in
Twombly–that a pleading need not "set out in detail the facts upon which [the claim is based]" in
order to successfully state a claim. Twombly, 127 S. Ct. 1965, n.3 (citing Conley, 355 U.S. at 47)
[emphasis added]. That statement did not mean that all pleadings may achieve the requirement
of "fair notice" without ever alleging any facts whatsoever. Clearly, there must still be enough
fact set out (however set out, whether in detail or in a generalized fashion) to raise a right to
relief above the speculative level to a plausible level. See Rusyniak, 629 F. Supp. 2d at 214 &
n.35 (explaining holding in Erickson).
(2) documents incorporated by reference in the complaint (and provided by the parties), (3)
documents that, although not incorporated by reference, are “integral” to the complaint, or (4)
any matter of which the court can take judicial notice for the factual background of the case.6
Legal Standard Governing Motions to Dismiss for Lack of Subject-Matter
“It is a fundamental precept that federal courts are courts of limited jurisdiction.” Owen
Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Generally, a claim may be
properly dismissed for lack of subject-matter jurisdiction where a district court lacks
constitutional or statutory power to adjudicate it. Makarova v. U.S., 201 F.3d 110, 113 (2d Cir.
See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit
to a pleading is a part thereof for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, No. 10573, 2011 WL 2135734, at *1 (2d Cir. June 1, 2011) (explaining that conversion from a motion
to dismiss for failure to state a claim to a motion for summary judgment is not necessary under
Fed. R. Civ. P. 12[d] if the “matters outside the pleadings” in consist of  documents attached
to the complaint or answer,  documents incorporated by reference in the complaint (and
provided by the parties),  documents that, although not incorporated by reference, are
“integral” to the complaint, or  any matter of which the court can take judicial notice for the
factual background of the case); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.
2010) (explaining that a district court considering a dismissal pursuant to Fed. R. Civ. 12(b)(6)
“may consider the facts alleged in the complaint, documents attached to the complaint as
exhibits, and documents incorporated by reference in the complaint. . . . Where a document is
not incorporated by reference, the court may neverless consider it where the complaint relies
heavily upon its terms and effect, thereby rendering the document ‘integral’ to the complaint. . . .
However, even if a document is ‘integral’ to the complaint, it must be clear on the record that no
dispute exists regarding the authenticity or accuracy of the document. It must also be clear that
there exist no material disputed issues of fact regarding the relevance of the document.”)
[internal quotation marks and citations omitted]; Chambers v. Time Warner, Inc., 282 F.3d 147,
152 (2d Cir. 2009) (“The complaint is deemed to include any written instrument attached to it as
an exhibit or any statements or documents incorporated in it by reference.”) (internal quotation
marks and citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72
(2d Cir.1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or
incorporate by reference a [document] upon which it solely relies and which is integral to the
complaint,” the court may nevertheless take the document into consideration in deciding [a]
defendant's motion to dismiss, without converting the proceeding to one for summary
judgment.”) (internal quotation marks and citation omitted).
2000). A district court may look to evidence outside of the pleadings when resolving a motion to
dismiss for lack of subject-matter jurisdiction. Makarova, 201 F.3d at 113. The plaintiff bears
the burden of proving subject-matter jurisdiction by a preponderance of the evidence.
Makarova, 201 F.3d at 113 (citing Malik v. Meissner, 82 F.3d 560, 562 [2d Cir. 1996]). When a
court evaluates a motion to dismiss for lack of subject-matter jurisdiction, all ambiguities must
be resolved and inferences drawn in favor of the plaintiff. Aurecchione v. Schoolman Transp.
Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (citing Makarova, 201 F.3d at 113).
Whether the Court Lacks Subject-Matter Jurisdiction to Adjudicate
After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated by Defendant in his memorandum of law. (Dkt. No. 24, Attach. 2, at 4-6
[Def.’s Mem. of Law].) To those reasons, the Court adds the following analysis.
As stated above in Part 1.C.2. of this Decision and Order, Plaintiff has failed to oppose
Defendant’s motion. In this District, when a non-movant willfully fails to oppose a legal
argument asserted by a movant, the movant’s burden with regard to that argument is lightened,
such that, in order to succeed on that argument, the movant need only show that the argument
possess facial merit, which has appropriately been characterized as a “modest” burden.7 The
Court finds that, at the very least, Defendant has met that modest threshold burden with respect
to their requested relief. In any event, the Court would grant Defendant’s motion even if it were
See N.D.N.Y. L.R. 7.1(b)(3) (“Where a properly filed motion is unopposed and
the Court determined that the moving party has met to demonstrate entitlement to the relief
requested therein . . . .”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1
(N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722,
2009 WL2473509, at *2 & nn.2, 3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases).
to subject it to the more rigorous scrutiny appropriate for a contested motion, for the reasons set
The subject-matter jurisdiction of the federal district courts is limited and is set forth
generally in 28 U.S.C. §§ 1331 and 1332. Under these statutes, federal subject-matter
jurisdiction is available only when a “federal question” is presented or when plaintiff and
defendants are of diverse citizenship and the amount in controversy exceeds $75,000.00. Here,
Plaintiff has indicated that both he and Defendant are citizens of New York. (Dkt. No. 1, ¶¶ 2-3
[Pl.’s Compl.].) Therefore, diversity jurisdiction is inapplicable.
To invoke federal question subject-matter jurisdiction, Plaintiff’s claims must arise
“under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331; see State of
New York v. White, 528 F.2d 336, 338 (2d Cir. 1975) (“Federal question jurisdiction may be
properly invoked only if the plaintiff’s complaint necessarily draws into question the
interpretation or application of federal law.”). Despite granting Plaintiff’s Complaint the liberal
interpretation it is due, Plaintiff’s Complaint fails to invoke this Court’s federal question subjectmatter jurisdiction. This is because “it is well settled that the landlord-tenant relationship is
fundamentally a matter of state law, and federal courts lack subject matter jurisdiction over state
residential landlord-tenant matters.” Ellis v. Sabeini Mitivach Assocs., 14-CV-4441, 2014 WL
5305994, at *2 (E.D.N.Y. Oct. 15, 2014); Haynie v. N.Y.C. Hous. Auth., 14-CV-5633, 2015 WL
502229, at *2 (E.D.N.Y. Feb. 5, 2015) (“It is well-settled that federal courts do not have subject
matter jurisdiction over state eviction actions or other landlord-tenant matters.”) (internal
quotation marks omitted). Although Plaintiff claims that his constitutional rights were violated,
“this Court does not have federal question subject matter jurisdiction over plaintiff’s housing law
claims, even when such claims are dressed in the garb of constitutional claims.” Galland v.
Margules, 05-CV-5639, 2005 WL 1981568, at *1 (S.D.N.Y. Aug. 17, 2005) (Chin, J.); Vill. of
Millbrook v. Forrest, 903 F. Supp. 599, 600 (S.D.N.Y. 1995) (“Where, as here, the [plaintiff’s]
constitutional claim appears to be nothing more than a state court claim recloaked in
constitutional garb, the constitutional claim is insufficient to confer jurisdiction.”) (internal
quotation marks omitted); Southerland v. New York City Hous. Auth., 10-CV-5243, 2011 WL
73387, at *2 (E.D.N.Y. Jan. 7, 2011) (“The sum and substance of plaintiff’s claims are related to
his landlord-tenant matters. Landlord-tenant matters arise under state law and not under federal
law. . . . Plaintiff cannot repackage his landlord-tenant claims as § 1983 claims in order to confer
federal question jurisdiction.”).
In any event, Plaintiff has failed to allege facts plausibly suggesting that Defendant is a
state actor or that he was acting under color of state law during the relevant time periods, which
is required in order to state a § 1983 claim. See Trancredi v. Metro. Life Ins. Co., 316 F.3d 308,
312 (2d Cir. 2003) (“A plaintiff pressing a claim of violation of his constitutional rights under §
1983 is thus required to show state action.”). The Second Circuit has explained that
to satisfy the state action requirement where the defendant is a
private entity, the allegedly unconstitutional conduct must be fairly
attributable to the state. Conduct that is ostensibly private can be
fairly attributed to the state only if there is such a close nexus
between the [s]tate and the challenged action that seemingly
private behavior may be fairly treated as that of the [s]tate itself.
Trancredi, 316 F.3d at 312 (citations and internal quotation marks omitted). Because Plaintiff
has failed to allege facts plausibly suggesting that Defendant was a state actor for the purpose of
§ 1983 when he allegedly violated Plaintiff’s federally protected rights, his claims must be
dismissed. See Quow v. Wallach, 16-CV-3947, 2016 WL 4099107, at *2 (E.D.N.Y. Aug. 2,
2016) (“In this case, the plaintiff has not alleged that the defendant is a state actor or is acting
under color of state law. Accordingly, the plaintiff cannot state a Section 1983 claim against this
private landlord.”). Finally, as stated above, the Complaint alleges that both parties reside in
New York and, therefore, the Court is without jurisdiction to adjudicate Plaintiff’s state law
claim for breach of the implied warranty of habitability on the basis of diversity.
Because the Court lacks subject-matter jurisdiction over Plaintiff’s Complaint, it lacks
the authority to evaluate the pleading sufficiency of his Complaint under Fed. R. Civ. P.
12(b)(6). Moreover, because the Court finds the defects in Plaintiff’s Complaint to be
substantive, it will not afford Plaintiff an opportunity to amend before dismissal.
Whether Defendant is Entitled to Attorneys’ Fees Under 28 U.S.C. § 1927
After carefully considering the matter, the Court answers this question in the negative for
the reasons set forth below.
28 U.S.C. § 1927 provides as follows:
Any attorney or other person admitted to conduct cases in any
court of the United States or any Territory thereof who so
multiplies the proceedings in any case unreasonably and
vexatiously may be required by the court to satisfy personally the
excess costs, expenses, and attorneys’ fees reasonably incurred
because of such conduct.
Importantly, “[t]he Second Circuit has held that § 1927 does not apply to non-attorney pro se
litigants.” In re Swift, 94-BR-10285, 2016 WL 355515, at *9 (Bankr. E.D.N.Y. Jan. 28, 2016)
(citing Sassower v. Field, 973 F.2d 75, 80 [2d Cir. 1992]). “Though § 1927 provides no basis to
sanction a non-attorney pro se litigant, the statute does permit the imposition of sanctions on
licensed attorneys who choose to proceed pro se.” Swift, 2016 WL 355515, at *9. However, §
1927 will not apply if the attorney against whom sanctions are sought is suspended, disbarred, or
has otherwise lost his/her license to practice law. Id. (“Burton is not a licensed attorney.
Though he was once licensed to practice law in New York, he has been unlicensed since 1994. . .
. Thus, in light of Burton’s status as a non-lawyer, he may not be sanctioned under 28 U.S.C. §
1927.”); Farb v. Baldwin Union Free Sch. Dist., 05-CV-0596, 2011 WL 4465051, at *11
(E.D.N.Y. Sept. 26, 2011) (“[S]uspended or disbarred attorney holds approximately the same
status as one who has never been admitted.”) (internal quotation marks and citation omitted); In
re NASDAQ Mkt.-Makers Antitrust Litig., 187 F.R.D. 124, 129 (S.D.N.Y. 1999) (“A disbarred
attorney, however, is by definition not ‘admitted to conduct cases’ in Federal court. [He]
appears in this action as a pro se litigant, and accordingly, he is not subject to sanctions under §
In the present case, Defendant has failed to argue, let alone demonstrate, that Plaintiff is a
licensed attorney. Therefore, sanctions under § 1927 are inapplicable. Nonetheless, the Court
may still impose sanctions pursuant to its inherent power to supervise and control its own
proceedings. However, this requires a party to present “clear evidence that the challenged
actions are entirely without color, and [are taken] for reasons of harassment or delay or for other
improper purposes.” Oliveri v. Thompson, 803 F.2d 1265, 1272 (2d Cir. 1986) (citations and
internal quotation marks omitted). The record does not support Defendant’s assertion that
Plaintiff filed this action in bad faith. Indeed, Plaintiff has attempted to withdraw some of his
requests for relief after he believed that they were no longer necessary. (Dkt. No. 22, ¶¶ 47-48.)
ACCORDINGLY, it is
ORDERED that Defendant’s motion to dismiss Plaintiff’s Complaint for lack of subjectmatter jurisdiction (Dkt. No. 24) is GRANTED.
The Clerk of the Court is directed to enter judgment in favor of Defendant and close this
Dated: September 11, 2017
Syracuse, New York
Hon. Glenn T. Suddaby
Chief U.S. District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?