Quintana v. DuMond

• Decision Date: 23 September 2019
• Docket Number: 3:19-CV-1049 (DNH/ML)
• Parties: JORGE L. QUINTANA, Sr., Plaintiff, v. CRAIG S. DuMOND, Delaware County Sheriff's Office; JOHN PATRICK LOWE, sued in his individual and official capacity; and YVETTE TAYLOR, Bankruptcy Clerk for the Western District of Texas, Defendants.
• Court: U.S. District Court — Northern District of New York

JORGE L. QUINTANA, Sr., Plaintiff, v. CRAIG S. DuMOND, Delaware County Sheriff's Office;JOHN PATRICK LOWE, sued in his individual and official capacity;and YVETTE TAYLOR, Bankruptcy Clerkfor the Western District of Texas, Defendants.

3:19-CV-1049 (DNH/ML)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

September 23, 2019

APPEARANCES:

JORGE L. QUINTANA, Sr.

Plaintiff, Pro Se

23 Railroad Avenue

Stamford, New York 12167

OF COUNSEL:

MIROSLAV LOVRIC, United States Magistrate Judge

ORDER and REPORT-RECOMMENDATION

The Clerk has sent this pro se complaint together with an application to proceed in forma pauperis filed by Jorge L. Quintana, Sr. ("Plaintiff") to the Court for review. (Dkt. Nos. 1 and 2.) For the reasons discussed below, I grant Plaintiff's in forma pauperis application (Dkt. No. 2) and recommend that Plaintiff's Complaint (Dkt. No. 1) be dismissed in its entirety without prejudice to commence an action in a court of competent jurisdiction.

I. BACKGROUND

Construed as liberally¹ as possible, Plaintiff's Complaint alleges that his rights have been violated by an ongoing proceeding in Bankruptcy Court in the Western District of Texas, in which he declared Chapter 7 bankruptcy. (See generally Compl.)² More specifically, Plaintiff's allegations concern the sale of and his eviction from the property located at 23 Railroad Avenue, Stamford, New York (the "Property"), by the bankruptcy trustee. (Id. at 7-8.) Plaintiff names as defendants Craig S. DuMond, Sheriff in Delaware County; John Patrick Lowe, bankruptcy trustee; and Yvette Taylor, Clerk of the Court in the United States Bankruptcy Court for the Western District of Texas (collectively "Defendants"). (See generally id.)

Plaintiff alleges that on August 1, 2019, Defendant Taylor issued a writ of possession related to the Property, which was improper because she has "no authority to issue such wit [of attachment and/or possession] to any officer outside of the state of Texas, nor would any officer outside of the state have authority to execute such writ, even if directed to him." (Id. at 7 [language in brackets included in original].) In addition, Plaintiff alleges that on August 21, 2019, the Delaware County Sheriff's Department served a notice of eviction on him, but that Plaintiff's wife, Libertad Quintana, who is also a party to the Chapter 7 bankruptcy proceeding,is a resident of Texas and has not been personally served with the writ. (Id.) Moreover, Plaintiff alleges that on August 21, 2019, Defendant Lowe conspired with Chief United States Bankruptcy Judge Ronald B. King and requested that Plaintiff be held in federal custody until the sale of the Property. (Id. at 7-8.) Finally, Plaintiff alleges that the full market value of the Property is $81,081.00 but that Defendant Lowe will sell the Property for $45,000.00, which is $36,081.00 less than the fair market value. (Id. at 8.)

Plaintiff's claims are unclear though he appears to assert claims pursuant to New York Real Property Actions and Proceeding Law § 713(1) (id. at 9), due process clause of the Fourteenth Amendment (id. at 2, 9-10), 42 U.S.C. §§ 1982, 1983, and 1985 (id. at 2), New York common law (id. at 2), New York Eviction Law (id. at 9), discrimination (id. at 9), and fraudulent eviction (id. at 11). Plaintiff asserts the following two causes of action: (1) the orders of the United States Bankruptcy Court for the Western District of Texas have no force and effect in New York because the Western District of Texas lacks jurisdiction in New York; and (2) conspiracy to deprive Plaintiff of his rights and New York home in violation of 42 U.S.C. § 1985(3) and New York common law regarding eviction. (See generally id.)

For a more complete statement of Plaintiff's claims, refer to the Complaint. (Dkt. No. 1.)

II. PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS

When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $400, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized, however, to permit a litigant to proceed in forma pauperis status if a party "is unable to pay" the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1).³ After reviewing Plaintiff's informa pauperis application (Dkt. No. 2), the Court finds that Plaintiff meets this standard. Therefore, Plaintiff's application to proceed in forma pauperis is granted.⁴

III. LEGAL STANDARD FOR INITIAL REVIEW OF COMPLAINT

"Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . 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).

"A court shall, sua sponte, dismiss a complaint for lack of subject matter jurisdiction as soon as it is apparent that it lacks subject matter jurisdiction." Eckert v. Schroeder, Joseph & Assoc., 364 F. Supp. 2d 326, 327 (W.D.N.Y. 2005) (citing Hughes v. Patrolmen's Benevolent Assn of the City of N.Y., Inc., 850 F.2d 876, 881 (2d Cir. 1988), cert. denied, 488 U.S. 967 (1988)). "Before deciding any case on the merits, a district court must determine that it has subject matter jurisdiction over the matter." Humphrey v. Syracuse Police Dep't, 758 F. App'x 205, 205-06 (2d Cir. 2019) (citing United States v. Bond, 762 F.3d 255, 263 (2d Cir. 2014)); see also Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 88-89 (1988) (holding that subject matter jurisdiction is a "threshold question that must be resolved . . . before proceeding to the merits."); Koziel v. City of Yonkers, 352 F. App'x 470, 471 (2d Cir. 2009) (summary order) (affirming sua sponte dismissal of complaint on initial review for lack of subject matter); Talley v. LoanCare Serv., Div. of FNF, 15-CV-5017, 2018 WL 4185705, at *5 (E.D.N.Y. Aug. 31,2018) (dismissing on initial review, action challenging state court mortgage foreclosure judgment because the court lacked jurisdiction).

Courts are "obligated to construe a pro se complaint liberally." Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam) (reading the plaintiff's pro se complaint "broadly, as we must" and holding that the complaint sufficiently raised a cognizable claim). "[E]xtreme 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).

IV. ANALYSIS

In addressing the sufficiency of a plaintiff's complaint, the court must construe his pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Having reviewed Plaintiff's Complaint with this principle in mind, I recommend that all causes of action be dismissed.

The Complaint in this case relates directly to ongoing bankruptcy proceedings pending in the United States Bankruptcy Court for the Western District of Texas. In re Quintana, No. 19-50029.⁵ While the precise nature of the allegations in this action are not set forth with precision, Plaintiff clearly objects in this litigation to the sale of, and his removal from, the Property by Defendant Lowe on behalf of the estate. (Dkt. No. 1 at 1, 7-9.) The sale of the Property was requested by Defendant Lowe, the bankruptcy trustee, in part pursuant to 11 U.S.C. §§ 363(b), 363(f), and 704. (In re Quintana, No. 19-50029, Dkt. No. 203 at 1.) In addition, the removal of Plaintiff from the Property was requested by Defendant Lowe because Plaintiff allegedly (a)prevented a surveyor hired by the buyer of the Property from completing the survey, (b) the Sheriff of Delaware County informed the Trustee that for the last ten years, Plaintiff has obtained a stay or order of some kind to defy writs executed by the Sheriff for possession of the Property, and (c) Plaintiff's wife left a voicemail with Mr. Kingman, the local lawyer for the Village of Stamford, New York, advising that Plaintiff threatened to hire someone to kill the Trustee if the Property is sold. (In re Quintana, No. 19-50029, Dkt. No. 362 at 1-2.) The Bankruptcy Court approved the sale of the Property (In re Quintana, No. 19-50029, Dkt. No. 246) and issued the Writ of Attachment to remove Plaintiff from the Property, transport him to the Western District of Texas, San Antonio Division, and hold him in federal custody until the sale of the Property is completed. (In re Quintana, No. 19-50029, Dkt. No. 391.)

Section 363 authorizes a trustee, "after notice and a hearing" to sell "property of the estate." 11 U.S.C. § 363(b). Pursuant to 28 U.S.C. 1334(e), the United States Bankruptcy Court for the Western District of Texas has exclusive jurisdiction: "(1) of all property, wherever located, of the debtor as of the commencement of the case, and of all property of the estate." See also Quintana v. Coldwell Banker Timberland Prop., 19-CV-0644, 2019 WL 3797766, at *2 (N.D.N.Y. Aug. 13, 2019) (Sannes, J., adopting Report-Recommendation on de novo review) (holding that Plaintiff's assertion that "his claims are subject to the 'exclusive jurisdiction in the Northern District of New York' and the Bankruptcy Court 'lacks constitutional authority'" to be "entirely without merit.").

As a result, given that Plaintiff's allegations in the Complaint relate directly to his assertion that the sale and his removal from the Property to affect the sale are improper, it is clear that the claims raised here are subject to exclusive jurisdiction in the Western District of Texas. 28 U.S.C. § 1334(e).

In addition, to the extent that Plaintiff is seeking a review of the orders and decrees of United States Bankruptcy Court for the Western District of Texas, this Court lacks jurisdiction to do so. 28 U.S.C. § 158(a) ("The district courts of the United States...