United States District Court, N.D. New York
DEEPIKA REDDY, Plaintiff, pro se
ORDER AND REPORT-RECOMMENDATION
T. BAXTER UNITED STATES MAGISTRATE JUDGE.
before the court is a pro se complaint which was transferred
from the Southern District of New York. (Complaint
(“Compl.”)) (Dkt. No. 1, 2, 19, 20). Plaintiff
has paid the filing fee. Plaintiff brings this action
pursuant to the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. § 1961
et seq. and various state law causes of action. Defense
counsel has appeared for three of the defendants.
December 6, 2019, Arthur J. Siegel, Esq., counsel for Douglas
M. McRae, Esq. requested an extension of time to respond or
otherwise move in opposition to the complaint. (Dkt. No. 23).
On December 10, 2019, the court granted all defendants an
extension of time to respond to the complaint until January
20, 2020. (Dkt. No. 25). In his December 6, 2019
letter-motion, Attorney Siegel also requested that this court
undertake an initial review of the plaintiff's complaint.
(Id.) Paul G. Ferrara, Esq., counsel for defendant
Joseph M. Finnerty, Esq., subsequently joined in Attorney
Siegel's motion. (Dkt. No. 28).
the court has a duty to show liberality toward pro
se litigants, and must use extreme caution in ordering
sua sponte dismissal of a pro se complaint
before the adverse party or parties have been served and have
had an opportunity to respond, the court still has a
responsibility to determine that a claim is not frivolous
before permitting a plaintiff to proceed, notwithstanding
payment of the filing fee. Fitzgerald v. First East
Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir.
2000) (finding that a district court may dismiss a frivolous
complaint sua sponte even when plaintiff has paid
the filing fee). In determining whether an action is
frivolous, the court must consider whether the complaint
lacks an arguable basis in law or in fact. Neitzke v.
Williams, 490 U.S. 319, 325 (1989). Dismissal of
frivolous actions is appropriate to prevent abuses of court
process as well as to discourage the waste of judicial
resources. Neitzke, 490 U.S. at 327; Harkins v.
Eldridge, 505 F.2d 802, 804 (8th Cir. 1974).
survive dismissal for failure to state a claim, the complaint
must contain sufficient factual matter, accepted as true, to
state a claim that is “plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Id. (citing Bell Atl.
Corp., 550 U.S. at 555). The court will now turn to a
consideration of the plaintiff's complaint under the
very lengthy and confusing complaint, plaintiff alleges
that the defendants, together with non-defendant
conspirators, committed various types of crimes, to cause
plaintiff injury to her and her business. (Compl.
generally). The entire complaint centers around
plaintiff's claim that defendant attorney Gilles Abitbol,
Esq. was an “illegal alien” at the time that he
represented her on various New York State and Federal Court
actions, resulting, inter alia, in those actions becoming
“null and void.” (Compl. Count I, ¶¶
321-25). In addition to damages, plaintiff requests a
declaratory judgment, declaring those “cases”
null and void. (Id.) (citing 28 U.S.C. § 2201,
order to better understand plaintiff's claims in this
action, I will undertake a short description of the
procedural background that has resulted in the present case.
Many of the background facts are clearer when read together
with Judge D'Agostino's March 31, 2015 decision in
Reddy v. Catone, No. 5:13-CV-707, 2015 WL 11023213
(N.D.N.Y. Mar. 31, 2015), aff'd, 630 Fed.Appx.
120 (2d Cir. 2015). I have done so, and have included those
facts as appropriate.
a dentist, licensed to practice in New York State, brought an
action in the Northern District of New York 2013,
which she sued various state officials in connection with
complaints brought against her by some of her
patients. She was represented in her 2013 federal
action by defendant Attorney Gilles Abitbol. Judge
D'Agostino dismissed plaintiff's complaint, finding,
inter alia, that she was not denied due process by the New
York State defendants, and that the individual defendant
dentists did not conspire to violate her constitutional
rights. 2015 WL 11023213, at *14-20. The dismissal of
13-CV-707 was affirmed by the Second Circuit. Reddy v.
Catone, supra. Plaintiff moved to
“vacate” the district court's decision after
the Second Circuit had affirmed. However, Judge
D'Agostino denied plaintiff's motion. Reddy v.
Catone, No. 13-CV-707, 2016 WL 6471226 (N.D.N.Y. Nov. 1,
also brought various New York State lawsuits. In this RICO
complaint, plaintiff states that Attorney Abitbol
“represented [plaintiff] in multiple State Court
Proceedings, including a defamation claim against a local
television station for reporting on Plaintiff's
confidential disciplinary proceedings . . ., [and] in a
malpractice suit against Plaintiff's former attorneys in
the defamation case and in an Eviction and Settlement
proceeding against Igor Melnik a dentist who purchased
Plaintiff's dental practice.” Compl. at 2.
unhappy with Attorney Abitbol's performance in the
above-mentioned law suits, and unhappy with the outcome of
the cases in which he represented her, plaintiff has seized
upon defendant Abitbol's alleged illegal immigrant status
to file this RICO claim. She argues that all the prior law
suits in which she was represented by this attorney are
“null and void.” As defendants in this lawsuit,
in addition to Attorney Gilles Abitbol, plaintiff has named
Attorney Abitbol's brother and sister-in-law (both
attorneys),  who allegedly helped defendant Gilles
Abitbol obtain a visa in 2002 and allegedly made false
representations to the Department of Labor with respect to
Attorney Gilles Abitbol from 2004 until 2007. (Compl. at 3).
Plaintiff has sued Douglas M. McRae, Esq. and his law office
of Bond, Shoeneck, & King for representing defendant
Gilles Abitbol in a New York State Court action brought
against him by the plaintiff. (Compl. ¶¶ 195-289).
Plaintiff has also named Joseph Finnerty, Esq.,
apparently represented WSYR, the radio station, sued by
plaintiff in New York State Court while she was represented
by defendant Gilles Abitbol. (Compl. ¶¶ 128-94).
The caption of the complaint also names “Does
1-10” and Corporations X and Y. However, there are no
facts alleged in the complaint with respect to these
has also named a variety of “Non-Party Government
Entities, ” including the Supreme Court, Appellate
Division, Fourth Department; the Fifth Judicial District
Grievance Committee; the Supreme Court in Onondaga County;
and the United States District Court for the Northern
District of New York. (Compl. ¶¶ 11-14).
Racketeer Influenced and Corrupt Organizations Act