is proper when a complaint pleads a viable legal theory, but is so unclear that the opposing party cannot respond to the complaint. See 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1376, at 576-79 (2d ed. 1990). Thus, a Rule 12(e) motion should only be made, or a Rule 12(b)(6) motion should only be converted to a 12(e) motion, when the complaint states a cause of action and the party seeking dismissal cannot frame an answer. See id.; see also Perkins v. School Bd. of Pinellas County, 152 F.R.D. 227, 228 (M.D. Fla. 1993) (converting 12(b)(6) motion to dismiss into a 12(e) motion). Neither criterion is met here, since the defendants have been able to frame a motion that pleads defenses, and the complaint clearly fails to state a cause of action. Therefore, Freddie Mac's motion to dismiss the complaint as against it is granted.
Moreover, the complaint will be dismissed against all the private defendants, in addition to Freddie Mac. Although only Freddie Mac moved to dismiss, while Nager and Tennis Associates answered the complaint, dismissal is proper for all three private defendants. As discussed above, the arguments made by Freddie Mac in support of dismissal apply with equal force to Nager and Tennis Associates: the complaint fails to allege state action on the part of any of the private defendants, and it similarly fails to allege a conspiracy by any of them. Further, sua sponte dismissal is appropriate in this case because the answer filed by Nager and Tennis Associates also pleads the affirmative defense of failure to state a claim.
Sua sponte dismissal for failure to state a claim is proper when the plaintiff is given notice and an opportunity to be heard. See Wachtler v. County of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994). Here, plaintiff had notice that one of the private defendants, as well as the State defendants, was moving to dismiss her claim. Humpherys responded to these motions with a series of letters, memoranda, and affirmances. Significantly, however, she has not moved to amend her complaint. Because the reasons for the dismissal of the complaint as to Freddie Mac are identical to the reasons for the dismissal of the complaint against Nager and Tennis Associates, Humpherys had notice that the complaint could be dismissed for failure to state a claim. See id. at 82 (upholding sua sponte dismissal of civil rights claim against judge who had not responded to plaintiff's complaint where "plaintiff was given notice that the [other] 'defendants' were moving to dismiss").
Fairness requires that Humpherys be given an opportunity to respond to this dismissal. Therefore, plaintiff has fifteen days from the date of this Order to show good cause why the complaint should not be dismissed against Nager and Tennis Associates. The showing of good cause shall be made in the form of a letter to the court setting forth the factual basis for the action against Nager and Tennis Associates.
2. Defenses to Suit in This Court
The State defendants have moved to dismiss the complaint on several grounds. Humpherys' complaint does not state whether it names the State defendants in their official capacities or individually. In determining whether a suit is brought against officials in their individual or official capacities, courts consider the type of damages sought and the defenses raised by the defendants. See Pinaud v. County of Suffolk, 52 F.3d 1139, 1146-47 (2d Cir. 1995); Shabazz v. Coughlin, 852 F.2d 697, 699-700 (2d Cir. 1988). Here, it appears that Humpherys is seeking both compensatory and punitive damages. The State defendants have raised both official capacity defenses (Eleventh Amendment immunity) and individual capacity defenses (judicial immunity), but not the defense of qualified immunity, suggesting that the State defendants believe suit is brought against the named judges in their individual capacities and the other state defendants in their official capacities. Furthermore, Humpherys' complaint states that the Governor of New York and the Mayor of the City of New York "have acquiesced" in the alleged conduct. Compl. P 11. Thus, it appears that Humpherys' complaint alleges that the named judicial defendants acted in their individual capacities, while the remaining State defendants are alleged to have acted in their official capacities. Nevertheless, the personal involvement of the non-judicial State defendants will also be discussed, in light of the Second Circuit's admonition that "a plaintiff who has not clearly identified in her complaint the capacity in which the defendant is sued should not have the complaint automatically construed as focusing on one capacity to the exclusion of the other." Frank v. Relin, 1 F.3d 1317, 1326 (2d Cir. 1993).
A) Judicial Immunity
A judge has absolute immunity from suit. See Forrester v. White, 484 U.S. 219, 225-28, 98 L. Ed. 2d 555, 108 S. Ct. 538 (1988). This immunity can be overcome in only two types of circumstances. First, a judge may be liable for "actions not taken in the judge's judicial capacity." Mireles v. Waco, 502 U.S. 9, 11, 116 L. Ed. 2d 9, 112 S. Ct. 286 (1991) (citations omitted). Second, a judge may be liable for actions that are judicial in nature, but that are "taken in the complete absence of all jurisdiction." Id. at 12. The Supreme Court has stated that "in determining whether an action is 'judicial,' we consider the nature of the act and whether it is a 'function normally performed by a judge.'" Id. at 14 (quoting Stump v. Sparkman, 435 U.S. 349, 362, 55 L. Ed. 2d 331, 98 S. Ct. 1099 (1978)). Humpherys has failed to allege facts from which an extra-judicial act by any of the judicial defendants could be inferred. To the extent that the basis for Humpherys' complaint is the decision by Judge Lau, her claim must fail, since Humpherys has alleged neither an extra-judicial act, nor facts that could allow an inference that the judge undertook to act "in the clear absence of all jurisdiction." Thus, Judge Lau and any other judges named on the basis of their relationship to Humpherys' case are immune from suit. See Clapp v. LeBoeuf, Lamb, Leiby & MacRae, 862 F. Supp. 1050, 1060-61 (S.D.N.Y. 1994). To the extent that the complaint names these judges for some other reason, no facts are presented that would give rise to a basis for the denial of absolute immunity.
B) Eleventh Amendment Immunity
Absent consent, or an express congressional override, the Eleventh Amendment prohibits suit in federal court for retrospective relief against a state or an agency of the state. See Papasan v. Allain, 478 U.S. 265, 276-77, 92 L. Ed. 2d 209, 106 S. Ct. 2932 (1986); Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984). Suits against state courts are similarly barred. See Zuckerman v. Appellate Division, 421 F.2d 625, 626 (2d Cir. 1970). A state official who is sued in her official capacity is not a person within the meaning of § 1983 because she "assume[s] the identity of the government that employs [her]." Hafer v. Melo, 502 U.S. 21, 27, 116 L. Ed. 2d 301, 112 S. Ct. 358 (1991). Thus, state officials sued in their official capacities can, as here, "invoke the Eleventh Amendment immunity belonging to the state." Ying Jing Gan v. City of New York, 996 F.2d 522, 528 (2d Cir. 1993). To the extent, then, that Humpherys is suing the named non-judicial State defendants in their official capacities for damages, suit against them is barred.
Perhaps in an effort to circumvent the handicap imposed by the dearth of facts in her complaint, Humpherys asserts that the State defendants have engaged in a course of conduct that violated her constitutional rights. This argument must, however, fail. Were this a claim against a municipality, rather than the state, a plaintiff could plead that a municipal policy or custom violated federal law. See Hafer, 502 U.S. at 25 (quoting Kentucky v. Graham, 473 U.S. 159, 166, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985)). Here, where her suit is brought against state, rather than local, officials, Humpherys' assertion is irrelevant, since, as noted above, the Eleventh Amendment bars this action against the State defendants. Moreover, even if such a form of pleading was available against state officials, the mere assertion of a policy is insufficient to withstand a motion to dismiss. See Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993) ("The mere assertion . . . that a municipality has such a custom or policy is insufficient in the absence of allegations of fact to support, at least circumstantially, such an inference.") (citations omitted).
C) Personal Capacity Claims Against the Non-Judicial State Defendants
In contrast to official capacity suits, the Eleventh Amendment does not protect an official who is sued in her personal capacity. See Hafer, 502 U.S. at 30-31. However, in the absence of any facts in the complaint, the fact that the State defendants are "in [ ] high position[s] of authority is an insufficient basis for the imposition of personal liability." McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977) (citing Johnson v. Glick, 481 F.2d 1028, 1034 (2d. Cir. 1973), overruled on other grounds, Graham v. Connor, 490 U.S. 386, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989)). Here, Humpherys has failed to allege any facts that could give rise to an inference that any of the non-judicial State defendants acted under color of law to deprive her of a protected right.
3. Plaintiff's Due Process Claim
Plaintiff's claim that her Fourteenth Amendment rights were violated may be liberally construed to allege a procedural due process violation. Due process merely requires that "some form of hearing is required before an individual is finally deprived of a property interest." Mathews v. Eldridge, 424 U.S. 319, 333, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976). Plaintiff has failed to allege facts that would allow an inference that plaintiff had a protectible interest, much less that, assuming she had such an interest, that the defendants impermissibly infringed upon it.
In her opposition to the motion to dismiss, Humpherys argues that her challenge is to the procedure for appealing a landlord and tenant dispute. Insofar as she is challenging an established state procedure, she may pursue a due process claim under § 1983. See Kraebel v. New York City Dep't Of Housing Preservation and Dev., 959 F.2d 395, 403 (2d. Cir 1992) (holding that the availability of an adequate state remedy does not bar review of a plaintiff's due process claim, when the challenge is to "the state system itself."). Here, fairly construed, plaintiff's claim is an attack on an established state procedure because her complaint speaks of a "course of conduct." See Compl. P 11. Nevertheless, her complaint must be dismissed because it is utterly devoid of facts that would support an inference of a due process violation.
To the extent that Humpherys is petitioning this court to review Judge Lau's Housing Court ruling for legal error under state law, this court lacks subject matter jurisdiction to do so. This Court's jurisdiction is "circumscribed by the principle that a district court may not review final judgments of state courts." Clapp v. LeBoeuf, Lamb, Leiby & MacRae, 862 F. Supp. 1050, 1055 (S.D.N.Y. 1994) (citing Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 68 L. Ed. 362, 44 S. Ct. 149 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476, 483-84 n.16, 75 L. Ed. 2d 206, 103 S. Ct. 1303 (1983)).
5. Plaintiff's Remaining Claims
Plaintiff's remaining claims are without merit because she has failed to allege any facts in support of her assertions. Plaintiff's complaint, insofar as it alleges claims of violations of § 1981 and § 1982 must be dismissed because plaintiff has not alleged that a deprivation occurred because of her race. See Carrero v. New York City Housing Auth., 890 F.2d 569, 575 (2d Cir. 1989). Plaintiff has failed to plead allegations that could give rise to a claim under § 1985(3) because she has not plead facts suggesting a racial or class based animus.
See Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 269, 122 L. Ed. 2d 34, 113 S. Ct. 753 (1993). Because she has not established a § 1985(3) claim, plaintiff cannot establish a § 1986 claim. See Dwares v. City of New York, 985 F.2d 94, 101 (2d Cir. 1993) (citations omitted). Further, plaintiff's Title VII claim must also fail, since there are no facts alleged to raise a claim of employment discrimination.
Plaintiff's claim that her rights under the Thirteenth Amendment were violated similarly must fail. The Thirteenth Amendment is enforceable against private parties in the absence of state action. See Terry Properties, Inc. v. Standard Oil Co. (Ind.), 799 F.2d 1523, 1534 (11th Cir. 1986). Here, too, plaintiff has failed to plead facts that give rise to an inference that any of the named defendants engaged in a practice that could be characterized as creating "badges and incidents of slavery." See City of Memphis v. Greene, 451 U.S. 100, 154 n.18, 67 L. Ed. 2d 769, 101 S. Ct. 1584 (Marshall, J., dissenting) (arguing that the decision to close a street in a white neighborhood could be a violation of the Thirteenth Amendment).
7. Dismissal of Action against Defendant Giuliani
Fed. R. Civ. P. 4(m) states:
If the service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.