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Zavalidroga v. Hester

United States District Court, N.D. New York

January 14, 2020

TOMAS ZAVALIDROGA, individually and as Power of Attorney, Medical proxy, Trustee and Next Friend of MARGARET ZAVALIDROGA, Plaintiff,
v.
SAMUEL HESTER, et al., Defendants.

          TOMAS ZAVALIDROGA Plaintiff, pro se

          ORDER AND REPORT-RECOMMENDATION

          THÉRÈSE WILEY DANCKS, United States Magistrate Judge

         The Clerk has sent to the Court for initial review the pro se complaint of Plaintiff Tomas Zavalidroga (“Plaintiff' or “Zavalidroga”) together with a motion to proceed in forma pauperis (“IFP”) (Dkt. Nos. 1, 2.) As noted herein, the Court grants Plaintiff's IFP motion, necessitating further review relative to whether the pleading meets 28 U.S.C. 1915(e)'s sufficiency standards. For the reasons discussed below, the Court finds Plaintiff's complaint (Dkt. No. 1) fails to state a claim on which relief may be granted, and, therefore, recommends Plaintiff's complaint be sua sponte dismissed in its entirety pursuant to 28 U.S.C. § 1915(e).

         I. BACKGROUND

         On November 15, 2019, Plaintiff filed a civil complaint against Defendants Samuel Hester, Daniel Christmas, Nick Polce, Ted Houseman, Corey E. Kelly, Theresa Girouard, William P. Schmitt, and Heritage Home-The Grand (collectively, “Defendants”) seeking to “redress the loss of constitutionally-protected liberty and property interests as a result of the conspiratorial actions of the Defendants and their privies.” (Dkt. No. 1 at 1.[1])

         By Order filed November 19, 2019, it was determined that this case is directly related to case 6:19-cv-1304 (GTS/TWD), which was voluntarily discontinued by Plaintiff on October 25, 2019, without prejudice pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure. (Dkt. No. 4.) Therefore, in the interest of judicial economy, this case was reassigned to Chief Judge Glenn T. Suddaby and the undersigned. (Id.) A copy of the Text Order was mailed to Plaintiff at his address on file. (See id.)

         On December 19, 2019, before the Court issued its Order on Plaintiff's IFP motion, Plaintiff filed a Notice of Appeal of the November 19, 2019, Order reassigning the case. (Dkt. No. 5.) By Notice dated December 23, 2019, the United States Court of Appeals for the Second Circuit advised:

An appeal in the above-referenced case has been docketed in the Court of Appeals. According to the district court docket sheet or other available information, appellant has moved for leave to proceed in forma pauperis in district court on November 15, 2019 and that motion is pending. The appeal may not move forward until the motion is determined. Please direct the motion to the appropriate judge for determination. Upon the grant or denial of the motion, please enter the order and transmit it to the Court of Appeals.

         (Dkt. No. 7.) On January 13, 2020, Judge Suddaby issued a Text Order directing Plaintiff to show cause in writing, within fourteen (14) days, as to why his complaint should not be sua sponte dismissed without prejudice under Fed.R.Civ.P. 41(b) and Local Rule 41.2(a), (b), for failure to prosecute and comply with Local Rule 10.1(c)(2). (Dkt. No. 9.[2])

         II. IPF MOTION

         As noted above, Plaintiff's IFP motion is pending before the undersigned. A court may grant IFP status if a party “is unable to pay” the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1). After reviewing Plaintiff's IFP motion, the Court finds Plaintiff meets this standard. Therefore, Plaintiff's motion to proceed IFP (Dkt. No. 2) is granted.

         III. SUFFICIENCY OF THE COMPLAINT

         A. Standard of Review

         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 . . . 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) (citation 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 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), cert. denied, 513 U.S. 836 (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. Similarly, allegations that “are so vague as to fail to give the defendants adequate notice of the claims against them” are subject to dismissal. Sheehy v. Brown, 335 Fed.Appx. 102, 104 (2d Cir. 2009).

         A pro se litigant's pleadings are held to a less strict standard than attorney-drafted pleadings. See Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008) (“Even in the formal litigation context, pro se litigants are held to a lesser pleading standard than other parties.”); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Because Plaintiff is proceeding pro se, the Court construes the pleadings “to raise the strongest arguments that they suggest.” See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (per curiam) (internal quotation marks omitted). However, this “does not exempt a [pro se litigant] from compliance with relevant rules of procedural and substantive law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983).

         Generally, 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, 79 (2d Cir. 1999) (citation and internal quotation marks omitted); Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014). 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).

         B. Summary of the Complaint

         According to Plaintiff, “the roots of this action extend back to April 1999, when James Kelley, grandfather of Corey E. Kelley, began encroaching on the lake property now owned by Zavalidroga.” (Dkt. No. 1 at ¶ 4.) Plaintiff, through a series of lawsuits, Zavalidroga “demonstrated the Kelley family's pattern of illegal activity and connection to organized crime.” (Id. at ¶ 5.) Dan Christmas, a local property developer and Director of Christmas & Associates, is a “direct relative” of the Kelley family. (Id.)

         In the early 2000s, Plaintiff's mother, Margaret Zavalidroga (“Margaret”), designated Plaintiff executor of her will and granted him full Power-of-Attorney over her affairs. (Id. at ¶ 6.) In 2006, Plaintiff and Margaret listed for sale the “Forward Road, Annsville property” (the “Zavalidroga property”). (Id. at ¶ 7.) Nick Polce, the Director of Gateway Properties, made multiple offers to purchase the Zavalidroga property. (Id.) According to Plaintiff, “Gateway Properties is known to be one of the many ‘front' land companies set up by Dan Christmas[.]” (Id.) In the past, Dan Christmas and Christmas & Associates were accused of fraudulent land sales, permit fraud, money laundering, and conspiracy. (Id. at ¶ 8.)

         In 2012, Margaret granted Plaintiff “Medical Proxy Powers over her” and, in 2013, she conveyed “rights to all timber on all property that was under her ownership” to Plaintiff. (Id. at ¶ 6.) In June 2014, Margaret conveyed the “real property she owned” to Plaintiff. (Id.)

         Then, in July 2014, Margaret was “abducted from her house and was found by police several days later in nearby woods.” (Id. at ¶ 9.) Plaintiff was falsely accused of being involved in her disappearance and subsequently prosecuted. (Id.) “This prosecution was later used as a pretext to begin a fraudulent Guardianship proceeding against Margaret Zavalidroga, which resulted in both Zavalidrogas losing substantial rights and property.” (Id.) Defendants “had prior knowledge of the 2014 attacks on the Zavalidrogas and knew that these unlawful acts would be used to deprive the Zavalidrogas of their property.” (Id. at ¶ 10.)

         Between 2014 and 2016, Plaintiff “suffered a series of false arrests, ” which were “orchestrated in furtherance of the scheme to deprive him of his possessions and real property.” (Id. at ¶ 11.) Specifically, in September 2014, during an “illegal hearing without any valid justification, ” Theresa Girouard was “named state-appointed Guardian over the person and property of Margaret Zavalidroga, and under color of law, Orders were rendered which purported to negate all contracts between Thomas and Margaret Zavalidroga.” (Id. at ¶ 12.) During the ensuing years of this “illegal Guardianship, ” Theresa Girouard payed herself “exorbitant fees from the assets of both Margaret and Thomas Zavalidroga.” (Id. at ¶ 13.) Theresa Girouard “then set out to methodically loot, destroy or devalue any property she could not harvest to her own benefit or to the benefit of her privies.” (Id.)

         Additionally, “[i]n violation of the Federal 1987 Nursing Home Reform Act and the Federal False Claim Act, Girouard, Heritage Home-The Grand and various medical-provider confederates placed Margaret Zavalidroga in an unnecessarily restrictive environment and severely limited outside contact with Zavalidroga, mainly as a means of covering up their malfeasance and also as a means to prevent Margaret Zavalidroga from testifying as a witness.” (Id. at ¶ 14.) Margaret was “unnecessarily administered heavy doses of mind altering drugs immediately upon entering the Guardianship in order to justify the sham Guardianship and false confinement.” (Id.) “In addition to causing great physical damage to Zavalidroga, her unnecessary and fraudulent confinement resulted in hundreds of thousands of dollars of loss by the state and Federal governments.” (Id.)

         In 2015, at the request of Theresa Girouard, the State Court and police “illegally barred” Plaintiff from his property. (Id. at ¶ 15.) Theresa Girouard “unlawfully allowed” Nick Polce to gain control of Plaintiff's real estate and timber resources. (Id.) “Thousands of dollars of [Plaintiff's] possessions and equipment were seized by the Defendants at this time and remain unaccounted for.” (Id.) By 2017, Theresa Girouard and Nick Polce “allowed the property to deteriorate and lose value.” (Id. at ¶ 16.) William Schmitt, an attorney, was hired by Defendants to oversee the “fraudulent transfer” of the Zavalidroga property into the hands of the Defendants' “confederates.” (Id.)

         Between 2015 and 2019, Nick Polce, Samuel Hester, and Theresa Girouard “knew the Guardianship was also being used as means to launder outside funds of unknown source, mainly through the sham ‘auctioning' of the Plaintiff's timber resources.” (Id. at ¶ 16.) Further, and unbeknownst to Plaintiff, Theresa Girouard, William Schmitt, and Nick Polce “began secret land transfer to their privies in 2018, selling parcels which were appraised for hundreds of thousands of dollars for paltry sums amounting to one tenth their actual worth.” (Id. at ¶ 17.)

         Specifically, Theresa Girouard, William Schmitt, and Nick Polce created “fraudulent deeds” and “transferred several of the Zavalidroga parcels” to Ted Houseman and Corey Kelley “with the words ‘on behalf of Tomas Zavalidroga.'” (Id. at ¶ 18.) Ted Houseman and Corey Kelly “knew” of the “rightful ownership of the parcels and willingly engaged in a conspiracy to defraud.” (Id.) Dan Christmas “was also directly involved in the fraudulent land transfers through his control over the shell company, Gateway Properties, and his dealings with Nick Polce.” (Id.) Moreover, Ted Houseman and Corey Kelly “either stole or destroyed thousands of dollars of equipment and property at [Plaintiff's] homestead between 2016-2019.” (Id.)

         Given this factual backdrop, the complaint seeks monetary, injunctive, and declaratory relief, and asserts seven causes of action: (1) under 42 U.S.C. §§ 1981, 1983, and 1985 for alleged deprivations of his federal rights, property interests, and discrimination; (2) under the Fourteenth Amendment to the U.S. Constitution for alleged deprivations of due process and significant liberty and property interests; (3) under “state law statutes” for false imprisonment, trespass, and conversion of property; (4) under the International Covenant on Civil and Political Rights (“ICCPR”) for alleged violations of “international human rights of the Plaintiff and his privies;” (5) under the False Claim Act (“FCA”) and the Federal Nursing Home Reform Act of 1987 (“FNHRA”) for alleged violation of the “interests of the Plaintiff and his privies and the interests of the Federal government;” (6) under the Racketeer Influenced and Corrupt Organizations Act (“RICO”) for alleged violations of “this section of Federal law;” and (7) under the Fifth Amendment (Takings Clause) to the U.S. Constitution for alleged deprivations of “property rights.” (Id. at ¶¶ 19-25.) For a complete statement, reference is made to the complaint. (Dkt. No. 1.)

         C. Analysis

         As an initial matter, the Court notes Plaintiff has brought many actions in this District, all of which have been dismissed pursuant to § 1915, Fed.R.Civ.P. 12(b)(6), Fed R. Civ. P. 12(c), Fed.R.Civ.P. 41(b), Fed.R.Civ.P. 41(b), Local Rule 41.2(a), (b), and Local Rule 10.1(c)(2). See Zavalidroga v. Cote, No. 6:09-CV-225 (DNH/ATB) (closed 1/19/10);[3]Zavalidroga v. Oneida County Sheriff's Dep't, No. 6:11-CV-277 (NAM/DEP) (closed 6/17/14);[4]Zavalidroga v. Cuomo, No. 6:11-CV-831 (NAM/ATB) (closed 8/1/12);[5]Zavalidroga v. Oneida Cty. Dep't of Adult Protective Svcs., No. 14-CV-1273 (GTS/TWD) (closed ...


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