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Kelly v. Wells Fargo Bank National Association

United States District Court, N.D. New York

January 10, 2020

HEATHER KELLY, Plaintiff,
v.
WELLS FARGO BANK NATIONAL ASSOCIATION SECURITIZED ASSET BACKED RECEIVABLE MORTGAGE PASS THROUGH CERTIFICATE - WELLS FARGO 101, et al., Defendants.

          HEATHER KELLY, Plaintiff, pro se

          ORDER AND REPORT-RECOMMENDATION

          ANDREW T. BAXTER U.S. MAGISTRATE JUDGE

         The 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.[1] (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 proceeding IFP.

         However, 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. § 1915(e)(2)(B)(I) -(iii).

         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). 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).

         To 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).

         II. Complaint

         In her 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).

         Plaintiff 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.

         III. Judicial Immunity

         A. Legal Standards

         With 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.

         B. Application

         Even 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.”[2] (Compl. ¶ 38). Plaintiff claims that Judge Cawley is “guilty of prejudicial and bias behavior pursuant to 28 U.S.[C. § 144].”[3]

         Plaintiff's 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).

         Defendant 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, ...


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