Fitzgerald v. First East Seventh St Tenants Corp., PLAINTIFF-APPELLANT

• Citation: 221 F.3d 362
• Decision Date: 01 August 1999
• Docket Number: PLAINTIFF-APPELLANT,DEFENDANTS-APPELLEES,Docket No. 99-9160
• Parties: (2nd Cir. 2000) THOMAS FITZGERALD,, v. FIRST EAST SEVENTH STREET TENANTS CORP., ALLEN BRILL, KELLY GIGANTE, DIANNE GASWORTH, STEPHEN ROXBURGH, WILLIE VIERA, CIVIL COURT OF THE CITY OF NEW YORK, NEW YORK CITY HOUSING PRESERVATION DEP'T, DIVISION OF HOUSING & COMMUNITY RENEWAL, AND NEW YORK CITY BUILDINGS DEP'T,
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 362

221 F.3d 362 (2nd Cir. 2000)

THOMAS FITZGERALD, PLAINTIFF-APPELLANT, v. FIRST EAST SEVENTH STREET TENANTS CORP., ALLEN BRILL, KELLY GIGANTE, DIANNE GASWORTH, STEPHEN ROXBURGH, WILLIE VIERA, CIVIL COURT OF THE CITY OF NEW YORK, NEW YORK CITY HOUSING PRESERVATION DEP'T, DIVISION OF HOUSING & COMMUNITY RENEWAL, AND NEW YORK CITY BUILDINGS DEP'T, DEFENDANTS-APPELLEES.

Docket No. 99-9160

August Term, 1999

UNITED STATES COURT OF APPEALS SECOND CIRCUIT.

Argued: June 7, 2000

Decided: July 27, 2000

Appeal from a judgment of the United States District Court for the Southern District of New York (John F. Keenan, Judge), dismissing sua sponte plaintiff's pro se action under 42 U.S.C. § 1983, the Racketeer Influenced Corrupt Organizations Act, 18 U.S.C. § 1961 et seq., and various other state and federal provisions. We conclude that the District Court possessed the authority to dismiss the action sua sponte, notwithstanding the fact that plaintiff had paid the required filing fee when he initiated the action.

Affirmed.

Thomas Fitzgerald, pro se, New York, Ny.

Allen H. Brill, Brill & Meisel, New York, Ny, for Defendants-Appellees First East Seventh Street Tenants Corp., Allen Brill, Kelly Gigante, Stephen Roxburgh, and Willie Viera.

Alan G. Krams, Assistant Corporation Counsel, City of New York Law Dep't, New York, Ny, for the City Defendants-Appellees.

Charles F. Sanders, Assistant Attorney General of the State of New York (Eliot Spitzer, Attorney General; Edward Johnson, Deputy Solicitor General; Michael S. Belohlavek, Assistant Solicitor General, on the brief), New York, Ny, for the State Defendants- Appellees.

Before: Walker and Cabranes, Circuit Judges, and Hodges, District Judge. ^*

Per Curiam

Plaintiff Thomas Fitzgerald initiated this pro se action on July 29, 1999, remitting the required $150 fee upon filing his complaint. Fitzgerald contends that defendants "began a speculative venture with the intent to illegally function as an apartment coop[e]rative." Defendants allegedly "dec[ei]ved plaintiff by issuing him a `proprietary lease' and a share certificate for 4 shares," and then, after Fitzgerald had discovered the plan and refused to cooperate, "through a series of individual and separate acts involving fraud, mail fraud, fraud on the court, extortion, bribery, [and] abuse of process, conspired to deny plaintiff his property rights and his due process rights, and to coerce him into accepting membership in an illegal apartment cooperative or to evict him from the building." The complaint includes, inter alia, claims under 42 U.S.C. § 1983 and the Racketeer Influenced Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq.

Defendants neither answered nor formally moved to dismiss the complaint. Instead, they sent a letter to the District Court (John F. Keenan, Judge) explaining that "each of the allegations and claims set forth in the complaint w[as] contained in previous actions filed in this Court by Mr. Fitzgerald." Defendants therefore requested that "the Court dismiss the instant action sua sponte against all defendants." In an Opinion and Order dated August 31, 1999, the Court granted this request.

The District Court noted at the outset that the instant action is the third that Fitzgerald has initiated in the Southern District "stemming from the alleged wrongful conversion of an apartment house at 254 East 7th Street into cooperative apartments." Fitzgerald v. First East Seventh St. Tenants Corp., No. 99 CIV. 6051, 1999 WL 675996, at *1 (S.D.N.Y. Aug. 31, 1999). The first action was dismissed sua sponte by Judge Louis L. Stanton for lack of subject matter jurisdiction. See id. (citing Fitzgerald v. Abrams, No. 93 Civ. 8229 (S.D.N.Y. Jan. 13, 1994)). Though Judge Stanton granted leave to replead within twenty-one days, Fitzgerald failed to do so. Instead, he brought another action over two years later, "again based on the conversion of the East 7th Street apartment house into cooperative apartments and events stemming therefrom." Id. Judge Loretta A. Preska sua sponte dismissed the second complaint as frivolous; again, leave to replead within twenty-one days was afforded, and again Fitzgerald failed to take advantage of the opportunity. See id. (citing Fitzgerald v. First East Seventh St. Tenants Corp., No. 96 CIV. 0126 (S.D.N.Y. Mar. 15, 1996)). Instead, he waited over three additional years before filing the instant complaint.

Observing that Fitzgerald "again repeats the allegations contained in his two prior federal actions based on the same conversion of an apartment house at 254 East 7th Street into cooperative apartments," the District Court found that Fitzgerald "is merely reasserting claims already dismissed as frivolous." Id. Stating that a "district court in the Second Circuit may sua sponte dismiss a complaint even if the plaintiff has paid the filing fee," the Court exercised what it believed to be its authority and dismissed the complaint as frivolous. Id.

We conclude that the District Court properly determined that it possessed the power to dismiss the instant action sua sponte, notwithstanding the fact that Fitzgerald had paid the $150 filing fee rather than requesting permission to proceed in forma pauperis. If Fitzgerald had sought to proceed in forma pauperis, dismissal would have been mandatory under 28 U.S.C. § 1915(e)(2). We previously have found-in a case where the unrepresented appellant paid the normal filing fee-that, even in the absence of the statutory authority provided by § 1915 with respect to parties proceeding in forma pauperis, the Court of Appeals would have inherent authority to dismiss a frivolous appeal. See Pillay v. INS, 45 F.3d 14, 16-17 (2d Cir. 1995) (per curiam). ¹ The Pillay decision relied in part on Mallard v. United States District Court, 490 U.S. 296 (1989), in which the Supreme Court stated that "`Section 1915(d) . . . authorizes courts to dismiss a frivolous or malicious action, but there is little doubt they...