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HUMPHERYS v. NAGER

April 17, 1997

MARIE CHARLES HUMPHERYS, Plaintiff, against SANFORD NAGER, 25-35 TENNIS ASSOCIATES, GOVERNOR PATAKI, Governor of New York State; RUDOLPH GIULIANI, Mayor of New York City; GUY JAMES MANGANO, Adminisstrative Judge of Appellate Division, Second Department; HONORABLE EDWIN KASSOFF, New York State Supreme Court Judge; HONORABLE MICHELLE WATSON PATTERSON, New York State Supreme Court Judge; JUDGE LAU, Judge of the Civil Court, Landlord and Tenant; JUDGE CAMMETT, Chief Judge of the Civil Court; OFFICE OF COURT ADMINISTRATION; and FEDERAL HOME LOAN MORTGAGE CORPORATION, Defendants.


The opinion of the court was delivered by: TRAGER

 TRAGER, District Judge:

 Plaintiff Marie Humpherys, an attorney appearing pro se, seeks forty million dollars in damages based on alleged violations of her constitutional rights. She has alleged a potpourri of violations, claiming that the defendants have conspired to violate her 13th and 14th amendment rights, as well as her rights under the Civil Rights Act of 1886, Title VII of the 1964 Civil Rights Act, the 1991 Civil Rights Act, and the New York State Constitution. Plaintiff has named the following as defendants: Sanford Nager, 25-35 Tennis Associates, Governor George Pataki, Mayor Rudolph Guiliani, Appellate Division Justice Guy James Mangano, Appellate Term Justice Edwin Kassoff, State Supreme Court Justice Michelle Weston Patterson (sued as "Honorable Michelle Watson Patterson"), New York City Civil Court Judge Laurie Lynn Lau, Justice in Charge of the New York City Civil Court, Kings County, Margaret Cammer (sued as "Judge Cammet"), Office of Court Administration, and Federal Home Loan Mortgage Corporation ("Freddie Mac"). Defendants Pataki, Mangano, Kassoff, Patterson, Lau, Cammer, Office of Court Administration (the "State defendants"), as well as defendant Freddie Mac now separately move pursuant to Fed. R. Civ. P. 12(b)(6) for dismissal for failure to state a cause of action. *fn1"

 Background

 This case arises out of litigation between Humpherys and defendant 25-35 Tennis Associates ("Tennis Associates") in New York City Housing court. *fn2" On September 28, 1993, Tennis Associates's predecessor in interest, Frontenac Associates, commenced a non-payment proceeding against Humpherys. A trial was held on November 9, 1994 before Housing Court Judge Lau, who entered a decision on January 31, 1994 ordering Humpherys to pay $ 28,745.52, which represented all rent owing for her apartment through December 31, 1993. *fn3" On April 20, 1994, after motions for a new trial and a stay of execution of the judgment had been denied by the Appellate Term, plaintiff and Tennis Associates entered into a stipulation which was "so ordered" by Judge Lau. See Order at 4. The stipulation amended the January 31 judgment to include all rents owing through April 30, 1994. Plaintiff apparently failed to comply with the terms of this stipulation because Nager brought yet another non-payment summary proceeding. Plaintiff subsequently moved to dismiss the Housing Court proceeding, arguing that the stipulation should be set aside because it was entered into under duress. Plaintiff also argued that the stipulation she signed was actually for rent through April 1997 (future rent). Judge Lau rejected both arguments, and in a twelve page opinion, wrote:

 
Respondent [Humpherys] has offered no reason for this court to set aside the Stipulation. There was nothing to suggest that respondent was tricked or coerced into signing the stipulation. Rather, as in the past, in negotiating the Stipulation, respondent was able to negotiate paying less than she otherwise would have had to pay in exchange for withdrawal of civil cases and pending DHCR proceedings and a course of conduct for repair complaints.
 
. . .

 Order at 9-10. Judge Lau further addressed Humpherys' second argument that the stipulation included payment of future rents: "It is beyond comprehension how the respondent could now claim, as she does, that the Stipulation involved payment of future rents. The Stipulation was clear. So too was this court's discussion of it, word-by-word, with the parties." Id. at 10. Judge Lau found Humpherys' arguments frivolous and imposed sanctions pursuant to 22 NYCRR § 130. Plaintiff then commenced this action. *fn4"

 Discussion

 The moving defendants maintain that the suit against them must be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted. In pro se civil rights actions the allegations of the complaint are to be liberally construed. See Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972). Although it is not at all clear why this principle should apply when the pro se is an attorney, nevertheless, the court will treat the complaint as if it has been filed by a non-lawyer. See Thomson v. Olson, 866 F. Supp. 1267, 1270 (D.N.D. 1994), aff'd, 56 F.3d 69 (8th Cir. 1995) (taking notice, on motion to dismiss complaint, of the fact that pro se plaintiff had completed two years of law school and "possesses the capacity to adequately set forth relevant facts and applicable law.").

 District courts should "construe pro se complaints liberally and . . . apply a more flexible standard in determining the sufficiency of a pro se complaint than they would in reviewing a pleading submitted by counsel." Platsky v. Central Intelligence Agency, 953 F.2d 26, 28 (2d. Cir. 1991) (citations omitted). Also, in considering the motion to dismiss, the allegations in the complaint must be construed in the light most favorable to the plaintiff. See Walker v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). Because of the number of defendants, claims, and defenses raised, the court will first discuss the motion to dismiss as it pertains to Freddie Mac, and then turn to the State defendants' motion.

 1. Freddie Mac's Motion to Dismiss

 Freddie Mac makes two arguments in support of its motion. First, Freddie Mac argues that the complaint violates Fed. R. Civ. P. 8(a) because it fails to provide a short statement of the facts showing that the plaintiff is entitled to relief. Second, Freddie Mac argues that the complaint is deficient because it fails to allege the elements of a conspiracy between the defendants to deprive Humpherys of a constitutional right. Additionally, the question of whether the named private parties can be said to be state actors will also be considered here.

 A. Violation of Rule 8(a)

 Fed. R. Civ. P. 8(a) requires a plaintiff to set forth in her complaint a "short and plain statement of the claim showing that the [plaintiff] is entitled to relief." The complaint must at least "sufficiently appraise a defendant of the charges asserted against it." Gould v. Russi, 830 F. Supp. 139, 143 (N.D.N.Y. 1993) (citation omitted). In Humpherys' complaint, Freddie Mac is mentioned twice: in the caption, and in paragraph nine, where Freddie Mac is identified as a federal corporation. The complaint does not provide any facts to indicate how Freddie Mac could have injured Humpherys. "The courts have consistently held that, where the complaint names a defendant in the caption but contains no allegations indicating how the defendant violated the law or injured the plaintiff, a motion to dismiss the complaint in regard to that defendant should be granted." Morabito v. Blum, 528 F. Supp. 252, 262 (S.D.N.Y. 1981) (citations omitted) (granting 12(b)(6) motion to dismiss where defendant was named only in caption and noting that complaint fails to meet standard of Fed. R. Civ. P. 8(a)). Therefore, Humpherys' complaint fails to meet the minimal threshold of notice pleading established by Rule 8(a). However, in light of Humpherys's pro se status, rather than dismiss for failure to comply with Rule 8(a), the sufficiency of the complaint itself will be considered. See Salahuddin v. Cuomo, 861 F.2d 40, 42-43 (2d Cir. 1988) (discussing dismissal of complaints pursuant to Rule 8(a)).

 B. State Action by the Named Private Parties

 To state a valid claim under § 1983, a plaintiff "must allege conduct under color of state law that deprived [her] of rights secured by the Constitution or laws of the United States." Katz v. Klehammer, 902 F.2d 204, 206 (2d Cir. 1990) (citation omitted); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). Thus, complaints alleging § 1983 violations "must contain specific allegations of fact which indicate a deprivation of constitutional rights; allegations which are nothing more than broad, simple and conclusory ...


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