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Anthony v. Murphy

United States District Court, N.D. New York

April 28, 2015

HON. JAMES P. MURPHY, Defendant.

CHARLES J. ANTHONY, SR. Plaintiff pro se, Clay, New York.



Plaintiff Charles J. Anthony, Sr., submitted a pro se complaint against Defendant New York State Supreme Court Justice James P. Murphy on April 15, 2015. (Dkt. No. 1.) Plaintiff also submitted an application to proceed in forma pauperis ("IFP application"). (Dkt. No. 2.) Before the Court issued its Order and Recommendation on Plaintiff's IFP application and on its initial review of Plaintiff's complaint, Plaintiff filed a superseding amended/supplemental complaint (Dkt. No. 4) and a second IFP application (Dkt. No. 5), which the Clerk has submitted to the Court for review.[1]


Plaintiff's second IFP application is the same application initially submitted. ( See Dkt. Nos. 2 and 5.) It is a New York State court IFP application form rather than the IFP application used in the Northern District of New York.[2] The application reveals monthly Social Security benefits of $1, 802 and a monthly pension payment of $663.92 for an annual income of $29, 591.04. (Dkt. No. 6 at 1.) Plaintiff has listed no income from other sources. Id. Plaintiff has listed a bank account with approximately $27.00. Id. at 2. For all property with an estimated value over $300.00, Plaintiff has listed two real properties in which he has no equity. Id. One of the properties, located at 4268 Gemini Path, Liverpool, New York, is the subject of the underlying foreclosure action. Id.

Unlike the IFP application used in the Northern District of New York, the New York State IFP application requires that only extraordinary out-of-pocket expenses, not housing, utilities, or loan payments, or other regular monthly expenses be disclosed. Therefore, most of the information on expenses required in the federal IFP application has not been included. Id. Plaintiff has indicated in his State IFP application that he is several months behind in utility bills, he cannot work, and the Gemini Path property is in foreclosure. Id.

Because Plaintiff's application is incomplete in that it fails to include information regarding his regular expenses, the Court cannot determine whether his expenses, when considered with his lack of assets and other circumstances, warrant in forma pauperis status despite the regular monthly income disclosed by him. Nonetheless, because the Court will recommend dismissal of the action on initial review under 28 U.S.C. § 1915(e), the Court grants Plaintiff's second IFP application (Dkt. No. 6) solely for purposes of initial review.


Even when a plaintiff meets the financial criteria for in forma pauperis, 28 U.S.C. § 1915(e) directs that when a plaintiff proceeds in forma pauperis, "the court shall dismiss the case at any time if the court determines that... the action... (I) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

In determining whether an action is frivolous, the court must look to see whether the complaint lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). "An action is frivolous when either: (1) the factual contentions are clearly baseless such as when the claims are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (citations and internal quotation marks omitted). Although extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to respond, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983), the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. See, e.g., Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curiam) (holding that a district court has the power to dismiss a complaint sua sponte if the complaint is frivolous).

To survive dismissal for failure to state a claim, a complaint must plead enough facts to state a claim that is "plausible on its face." Bell Atl. Corp. v. Twombly, 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. Iqbal, 556 U.S. 662, 678 (2009). While Rule 8(a) of the Federal Rules of Civil Procedure, which sets forth the general rules of pleading, "does not require detailed factual allegations, ... it demands more than an unadorned, the-defendant-harmed-me accusation." Id. In determining whether a complaint states a claim upon which relief may be granted, "the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

Where a plaintiff proceeds pro se, the pleadings must be read liberally and construed to raise the strongest arguments they suggest. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (citation omitted). A pro se complaint should not be dismissed "without giving leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and internal quotation marks omitted). An opportunity to amend is not required where "the problem with [the plaintiff's] causes of action is substantive" such that "better pleading will not cure it." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).


The Bank of America commenced a mortgage foreclosure action against Plaintiff in the New York State Supreme Court, County of Onondaga, on June 26, 2013. (Dkt. No. 1 at 6.) The Index No. for the state court action is XXXX-XXXX. Id. The property being foreclosed upon in the action is located at 4268 Gemini Path, Liverpool, New York. Id. According to Plaintiff, no payments have been made on the mortgage since 2008, and an earlier foreclosure action, commenced in 2009, was previously dismissed. Id. at 13. Although the details of the state foreclosure action and its present status are not entirely clear from the complaint and amended/supplemental complaint and other submissions, it appears that a default judgment has been entered in the foreclosure action, and that Plaintiff attempted to file a notice of appeal. (Dkt. Nos. 1 at 6, 13-14; 4 at 4-8.)

Justice Murphy was assigned to the state foreclosure action. (Dkt. No. 4 at 1.) He is being sued by Plaintiff for judicial malpractice and treason[3] in connection with his handling of the foreclosure action. Id. Plaintiff contends that Justice Murphy acted in the clear absence of jurisdiction because the Bank of America is incorporated in the State of Delaware where the statute of limitations on a foreclosure action is three years, and Bank of America is bound by the statute of limitations in the state in which it is located. Id. Plaintiff also claims that Justice Murphy committed error in handling a dispute over the adequacy of service of process in the foreclosure action. Id. at 12.


"It is a fundamental precept that federal courts are courts of limited jurisdiction." Owen Equip. & Erec. Co. v. Kroger, 437 U.S. 365, 374 (1978). Federal jurisdiction exists only when a "federal question" is presented (28 U.S.C. § 1331), or where there is "diversity of citizenship" and the amount in controversy exceeds $75, 000.00 (28 U.S.C. § 1332). See Perpetual Sec., Inc. v. Tang, 290 F.3d 132, 136 (2d Cir. 2002). Federal question jurisdiction exists where the "complaint established either that federal law creates the cause of action or that plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Greenberg, Bear, Stearns & Co., 220 F.3d 22, 25 (2d Cir. 2000) (internal quotation marks omitted). There are no allegations in the complaint or amended/supplemental complaint suggesting diversity of citizenship between Plaintiff and Justice Murphy, and even if there were a recognized claim for judicial malpractice, it would be a state law claim over which the federal court is without subject matter jurisdiction.[4]

Furthermore, even if the federal district court had subject matter jurisdiction over Plaintiff's judicial malpractice claim, it is well-established that judges have absolute immunity from suit for acts performed in their judicial capacities. Bradley v. Fisher, 13 Wall 335, 80 U.S. 335 (1871); accord, Mireles v. Waco, 502 U.S. 9, 10 (1991) (per curiam) (holding that "judiciary immunity is an immunity from suit, not just from the ultimate assessment of damages") (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). Immunity from suit is overcome in only two narrow circumstances. "First, a judge is not immune from liability for non-judicial actions, i.e., actions not taken in a judge's judicial capacity." Mireles, 502 U.S. at 11. "Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction." Id.

The Supreme Court has "generally concluded that acts arising out of, or related to, individual cases before the judge are judicial in nature." Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009). Judges enjoy absolute immunity even when a plaintiff offers allegations of "bad faith or malice." Mireles, 502 U.S. at 11. A judge cannot "be deprived of immunity because the action he took was in error... or was in excess of authority." Id. at 13 (quoting Stump v. Sparkman, 435 U.S. 349, 356 (1978)).

Plaintiff claims that because the statute of limitations has expired, Justice Murphy is presiding over the foreclosure action in the clear absence of subject matter jurisdiction and can, therefore, be sued and held liable for damages. (Dkt. No. 1 at 1.) However, a complete absence of jurisdiction means that a court acts "when it does not have any statutory or constitutional power to adjudicate the case." Gross v. Rell, 585 F.3d 72, 84 (2d Cir. 2009).

It is fundamental that Article VI, § 7 of the New York Constitution establishes the State Supreme Court as a court of "general jurisdiction in law and equity." Const. art. VI, §7(a). Under the state constitution's grant of authority, "the Supreme Court is competent to entertain all causes of action unless its jurisdiction has been specifically proscribed." Sohn v. Calderon, 579 N.Y.S.2d 940, 944 (1991). "That [the Supreme Court's] original jurisdiction extends to mortgage foreclosure actions is unquestionable." Bank of America, NA v. Simon, No. 63558/2014, 2015 WL 1343092, at * 1, 2015 U.S. Dist. LEXIS 844, at * 4-5 (N.Y. Sup. Ct. March 24. 2015).

Based upon the foregoing, the Court recommends that Plaintiff's amended/supplemental complaint be dismissed for lack of subject matter jurisdiction, judicial immunity, and failure to state a claim.[5] The Court further recommends that the dismissal be with prejudice inasmuch as the problems with Plaintiff's claim are substantive and cannot be cured by a better pleading.[6]

ACCORDINGLY, it is hereby

ORDERED, that Plaintiff's original IFP application (Dkt. No, 2) is DENIED AS MOOT; and it is further

ORDERED, that Plaintiff's second IFP application (Dkt. No. 5) is GRANTED SOLELY FOR THE PURPOSE OF THIS INITIAL REVIEW; and it is further

ORDERED, that Plaintiff's original complaint (Dkt. No. 1) is superseded by his amended/supplemental complaint (Dkt. No. 4); and it is

RECOMMENDED, that Plaintiff's amended/supplemental complaint (Dkt. No. 4) be DISMISSED WITH PREJUDICE upon initial review under 28 U.S.C. § 1915(e); and it is

ORDERED, that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions in Multani v. U.S. Dept. of Justice Solicitor General-U.S.A., No. 97-CV-628A, 1998 WL 951813 (W.D.N.Y. July 20, 1998) and Bank of America, NA v. Simon, No. 63558/2014, 2015 WL 1343092 (N.Y. Sup. Ct. March 24. 2015) in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.

Slip Copy, 47 Misc.3d 1202(A), 2015 WL 1343092 (N.Y.Sup.), 2015 N.Y. Slip Op. 50363(U)

(Table, Text in WESTLAW), Unreported ...

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