United States District Court, N.D. New York
HEATHER KELLY, Plaintiff, pro se
ORDER AND REPORT-RECOMMENDATION
T. BAXTER U.S. MAGISTRATE JUDGE
Clerk has sent to the court a civil complaint, together with
an amended application to proceed in forma pauperis
(“IFP”), filed by pro se plaintiff, Heather
Kelly. (Dkt. Nos. 1, 8). The court has reviewed
the plaintiff's amended IFP application and finds that
plaintiff has demonstrated sufficient economic need.
Therefore, plaintiff has met the financial criteria for
in addition to determining whether plaintiff meets the
financial criteria to proceed IFP, the court must also
consider the sufficiency of the allegations set forth in the
complaint in light of 28 U.S.C. § 1915, which provides
that the court shall dismiss the case at any time if the
court determines that the action is (i) 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. §
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). Although 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 has been
served and has 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.
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).
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).
complaint, plaintiff sues Wells Fargo Bank (“Wells
Fargo”); Fremont Investment and Loan
(“Freemont”); and Hon. Joseph F. Cawley, Supreme
Court Judge in Broome County, New York. (Complaint
(“Compl.”) at 1). Plaintiff alleges that she had
a mortgage on real property with Fremont. (Compl. ¶ 4).
Plaintiff states that Fremont “sold” the loan to
Wells Fargo. Plaintiff states that Wells Fargo initiated a
foreclosure proceeding in Supreme Court, Broome County, which
was still pending at the time plaintiff filed this action.
(Compl. ¶ 1, 16).
states several convoluted reasons why the state court lacks
jurisdiction and why defendant Cawley has acted
“negligently” in presiding over the New York
State Court action. (Compl. generally). Plaintiff
asserts that the foreclosure is “illegal.”
(See Compl. ¶ 39). Plaintiff asserts four
“Causes of Action:” (1) Negligence; (2) Gross
Negligence; (3) Wilful Misconduct; and (4) Conspiracy to
Fraudulently Transfer Assets. (Compl. ¶¶ 35-62).
Plaintiff seeks substantial monetary relief.
minor exceptions, judges are entitled to absolute immunity
for actions relating to the exercise of their judicial
functions. Mireles v. Waco, 502 U.S. 9, 9-10 (1991).
Judicial immunity has been created for the public interest in
having judges who are “at liberty to exercise their
functions with independence and without fear of
consequences.” Huminski v. Corsones, 396 F.3d
53, 74 (2d Cir. 2004). Judicial immunity applies even when
the judge is accused of acting maliciously or corruptly.
Imbler v. Pachtman, 424 U.S. 409, 419 n.12 (1976)
(citing Pierson v. Ray, 386 U.S. 547, 554 (1967)).
Judicial immunity is immunity from suit, not just immunity
from the assessment of damages. Mitchell v. Forsyth,
472 U.S. 511, 526 (1985). The only two circumstances in which
judicial immunity does not apply is when he or she takes
action “outside” his or her judicial capacity and
when the judge takes action that, although judicial in
nature, is taken “in absence of jurisdiction.”
Mireles, 502 U.S. at 11-12.
though plaintiff has named Fremont and Wells Fargo as
defendants, her primary issues involve Judge Cawley's
handling of the foreclosure action, which plaintiff alleges
is still pending in New York State Supreme Court. In her
first cause of action, she states that she “declared
the disparities of issue to Defendant, ” but that the
defendant “presided [over], operated, and continued
proceedings after plaintiff's articulation of
disparities.” (Compl. ¶ 36). Clearly, plaintiff is
angry because defendant Cawley continued to
“preside” over the case even after plaintiff
declared that the case should be dismissed. Plaintiff further
states that defendant Cawley “breached his duty to
Plaintiff [by] failing to exercise ordinary care and due
diligence in negligently permitting the circumstances to
exist that would foreseeably [sic] lead to an illegal
eviction.” (Compl. ¶ 38). Plaintiff claims that
Judge Cawley is “guilty of prejudicial and bias
behavior pursuant to 28 U.S.[C. §
second, third, and fourth causes of action similarly focus on
the actions of defendant Cawley, stating inter alia, that on
October 22, 2019, “Defendant continued to supervise
proceedings that were and are improper.” (Compl. ¶
45 - Second Cause of Action). “Defendant knew that
ignoring Plaintiff's motions would result in an illegal
foreclosure.” (Compl. ¶ 50 - Third Cause of
Action). In her fourth cause of action, plaintiff states that
the defendant judge “conspired to exercise jurisdiction
over a property that she [sic] cannot legally rule on”
and accused the defendant of “bias[ed] behavior.”
(Compl. ¶ 60).
Cawley would be entitled to judicial immunity for all the
acts alleged by plaintiff. In the “Background”
section of her complaint, plaintiff describes actions taken
by defendant Cawley and his staff in court. (Compl.
¶¶ 6-13). After describing the scene in the
courtroom and claiming that plaintiff overheard one of the
staff tell the “Court Officer” that the case was
“‘off the record, ...