Ward v. City of New York ( 2019 )

17-2973
Ward v. City of New York, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 17th day of June, two thousand nineteen.
PRESENT:
DEBRA ANN LIVINGSTON,
GERARD E. LYNCH,
RICHARD J. SULLIVAN,
Circuit Judges.
_______________________________________
Elaine Ward,
Plaintiff-Appellant,
v. 17-2973
City of New York, Scott Stringer, New York City Comptroller, Bill de Blasio, New York City
Mayor, Aisha Norflett, The NYC DOB, Director of Licensing Unit, Rick Chandler, The NYC
Department of Buildings Commissioner, Michael Cardozo, Former Corporation Counsel,
Robert Limandri, Former NYC DOB Commissioner, Drake Colley, NYC Law Department
Sr. Appeals Attorney, Louise Moed, NYC Law Department of Counsel, Richard Paul
Dearing, NYC Law Department Attorney, Luiggy Gomez, NYC Law Department
Messenger, Moses Williams, NYC Law Department Notary, Debra Herlica, NYC Building
Special Investigations Director, Patricia Pena, NYC BSIU Attorney, Zachary W. Carter,
Plumbing Foundation City of New York, Inc., Lawrence Levine, Chairman of the board of
Directors, Licensed Master Plumber of the City of New York, Stewart O'Brien, Executive
Director of the Plumbing Foundation, The Law Offices of Stuart A. Klein, Peter E. Sayer,
Esq., Stuart A. Klein, Esq., Par Plumbing, AKA The PAR Group, LT. Terrance O'Brien,
Assistant Deputy Director of the Plumbing Foundation,
Defendants-Appellees.
_______________________________________
FOR PLAINTIFF-APPELLANT: Elaine Ward, pro se, Flushing, NY.
FOR DEFENDANTS-APPELLEES
City of New York, Scott Stringer, New York City
Comptroller, Bill de Blasio, New York City
Mayor, Aisha Norflett, The NYC DOB, Director
of Licensing Unit. Rick Chandler, The NYC
Department of Buildings Commissioner, Michael
Cardozo, Former Corporation Counsel, Robert
LiMandri, Former NYC DOB Commissioner,
Drake Colley, NYC Law Department Sr.
Appeals Attorney, Louise Moed, NYC Law
Department of Counsel, Richard Paul Dearing,
NYC Law Department Attorney, Luiggy
Gomez, NYC Law Department Messenger,
Moses Williams, NYC Law Department Notary, Jane L. Gordon, Diana Lawless, of
Debra Herlica, NYC Building Special Counsel, for Zachary W. Carter,
Investigations Director, Patricia Pena, NYC Corporation Counsel of the City of New
BSIU Attorney, and Zachary W. Carter: York, New York, NY.
FOR DEFENDANTS-APPELLEES
The Law Offices of Stuart A. Klein, Peter E. Christopher M. Slowik, Klein Slowik
Sayer, Esq., and Stuart A. Klein, Esq.: PLLC, New York, NY.
FOR DEFENDANT-APPELLEE Don R. Sampen, Hillary A. Fraenkel,
Par Plumbing Co., Inc.: Clausen Miller, P.C., Florham Park, NJ.
FOR DEFENDANTS-APPELLEES
Plumbing Foundation City of New York, Inc.,
Lawrence Levine, Chairman of the Board of
Directors, Licensed Master Plumber of the
City of New York, Stewart O’Brien, Executive
Director of the Plumbing Foundation, and
Terrance O’Brien, Assistant Deputy Director Aislinn S. McGuire, Kauff McGuire &
of the Plumbing Foundation: Margolis, LLP, New York, NY.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Castel, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Elaine Ward (“Ward”), proceeding pro se, appeals the district court’s
judgment sua sponte dismissing her amended complaint, in which she asserted claims under 42
U.S.C. §§ 1983 and 1985, as well as under state law, arising out of the revocation of her master
plumber’s license and subsequent state court litigation. We assume the parties’ familiarity with
the underlying facts, the procedural history of the case, and the issues on appeal.
In reviewing a district court’s dismissal of a complaint for lack of subject matter
jurisdiction, we review factual findings for clear error and legal conclusions de novo, see Maloney
v. Soc. Sec. Admin., 517 F.3d 70, 74 (2d Cir. 2008), and can consider documents attached to the
complaint and matters subject to judicial notice, see Kramer v. Time Warner Inc., 937 F.2d 767,
773 (2d Cir. 1991). Although this Court has not yet determined whether a district court’s sua
sponte dismissal of a complaint as frivolous is reviewed de novo or for abuse of discretion, we
need not make such a determination where the district court’s decision “easily passes muster under
the more rigorous de novo review.” Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d
362, 364 n.2 (2d Cir. 2000). This Court affords pro se litigants “special solicitude” by interpreting
pro se complaints “to raise the strongest claims that [they] suggest[].” Hill v. Curcione, 657 F.3d
116, 122 (2d Cir. 2011) (internal alterations and quotation marks omitted).
Here, the district court properly dismissed most of Ward’s federal claims as untimely.
When filed in New York, section 1983 and 1985 claims are subject to a three-year statute of
limitations, accruing “when the plaintiff knows or has reason to know of the injury which is the
basis of [his or her] action.” Pearl v. City of Long Beach, 296 F.3d 76, 79–80 (2d Cir. 2002)
(internal quotation marks omitted) (Section 1983); Cornwell v. Robinson, 23 F.3d 694, 703 (2d
Cir. 1994) (Section 1985). Although untimeliness is an affirmative defense, a complaint may be
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dismissed on this basis if the defense is plain from the face of the complaint. See Pino v. Ryan,
49 F.3d 51, 53–54 (2d Cir. 1995).
With the exception of some of Ward’s allegations concerning state court proceedings, all
of the events recounted in her complaint occurred and were known to her prior to May 17, 2014,
which was three years before she initiated this action. Thus, most of her claims are untimely in the
absence of equitable tolling. These untimely claims include all her allegations concerning:
discrimination and retaliation in the 1980s and 1990s; the 2011 revocation of Ward’s master
plumber’s license; the alleged misconduct leading to the state court’s April 2014 grant of leave to
appeal; and her former attorney’s April 2014 initiation of a lawsuit against her. Ward’s theory of
equitable tolling is that Defendants-Appellees allegedly concealed their actions from her and
colluded with her former attorney to do so. However, Ward alleged that she knew about the
concealment and her attorney’s improper relationship with the other Defendants-Appellees by
April 2014, which was still more than three years before she filed the original complaint in this
case on May 17, 2017. Thus, even if Ward were entitled to tolling on her claims until April 2014,
most of her claims would still be untimely. See Pearl, 296 F.3d at 79–80; Cornwell, 23 F.3d at
703.
Those of Ward’s claims that are not time-barred are barred by the Rooker-Feldman
doctrine. Under that doctrine, federal courts lack subject matter jurisdiction over claims that, in
effect, challenge state court judgments. See District of Columbia Court of Appeals v. Feldman,
460 U.S. 462, 486–87 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415–16 (1923). A
claim brought in federal court is barred under Rooker-Feldman when (1) the plaintiff lost in state
court; (2) the plaintiff complains of injuries caused by a state court judgment; (3) the plaintiff
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invites the federal court to review and reject that state court judgment; and (4) the state court
judgment was rendered prior to the commencement of proceedings in federal court. Exxon Mobil
Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).
The thrust of Ward’s complaint regarding the events of May 2014 and thereafter is that
Defendants-Appellees, together with state court judges, thwarted her efforts to challenge New
York City’s appeal and to obtain a traverse hearing, which she contends that she was entitled to
based on Defendants-Appellees’ earlier wrongdoing. But each element of Rooker-Feldman is
satisfied here. Ward lost in state court prior to initiating this action. See Ward v. City of New York,
23 N.Y.3d 1046 (2014); Ward v. City of New York, 138 A.D.3d 629 (1st Dep’t 2016). Ward’s
alleged injuries, relating to the loss of her professional license and denial of requested hearings,
are injuries resulting from the state court judgments. And she now seeks reversal of those
judgments, including an order reversing the state court decision not to hold a traverse hearing.
Although Ward contends that she is alleging injuries flowing from Defendants-Appellees’
misconduct before the state court, rather than from the state court judgments themselves, her fraud
claims allege actions predating the state court’s April 2014 grant of leave to appeal. Her
allegations concerning events thereafter are that state court judges (who are not parties to this
action) issued or refused to issue orders knowing that the City was not entitled to appeal. Such
claims “require the federal court to review the state proceedings and determine that the . . . [orders
were] issued in error” and are thus barred by Rooker-Feldman. Vossbrinck v. Accredited Home
Lenders, Inc., 773 F.3d 423, 427 (2d Cir. 2014). Accordingly, the district court properly
dismissed Ward’s amended complaint.1
1
To the extent that Ward’s amended complaint may be construed to also assert state law claims,
Ward abandoned these claims by failing to address in her appellate brief the district court’s
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The district court also did not err in declining to grant Ward leave to file a second amended
complaint. Denials of leave to amend based on futility are reviewed de novo. Hutchison v.
Deutsche Bank Sec. Inc., 647 F.3d 479, 490 (2d Cir. 2011). A pro se plaintiff should be “grant[ed]
leave to amend at least once when a liberal reading of the complaint gives any indication that a
valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (internal
quotation marks omitted). But the district court was not obligated to grant leave to amend a
second time after Ward’s first amended complaint failed to cure the defects that the court identified
in its order to amend. See Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).
Finally, Ward’s claim that the district court was improperly influenced by Defendants-
Appellees and was biased against her is meritless and based entirely on her dissatisfaction at the
court’s adverse rulings. See Chen v. Chen Qualified Settlement Fund, 552 F.3d 218, 227 (2d Cir.
2009).2
We have considered all of Ward’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
decision not to exercise jurisdiction over them. See LoSacco v. City of Middletown, 71 F.3d 88,
92–93 (2d Cir. 1995) (issues not addressed in pro se appellate brief are abandoned).
2
Ward moves to strike the appellees’ briefs, oral argument statements, and various certificates of
service, to disqualify and sanction counsel, and to amend this Court’s docket. These motions are
denied as moot.
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