Srubar v. Rudd, Rosenberg, Mitofsky & Hollender

• Citation: 875 F. Supp. 155
• Decision Date: 09 December 1994
• Docket Number: No. 92 Civ. 8140 (KMW).,92 Civ. 8140 (KMW).
• Parties: Luise SRUBAR, Plaintiff, v. RUDD, ROSENBERG, MITOFSKY & HOLLENDER, Andrew Hoffman, and Onda D'Urso, Defendants.
• Court: U.S. District Court — Southern District of New York

875 F. Supp. 155

Luise SRUBAR, Plaintiff, v. RUDD, ROSENBERG, MITOFSKY & HOLLENDER, Andrew Hoffman, and Onda D'Urso, Defendants.

No. 92 Civ. 8140 (KMW).

United States District Court, S.D. New York.

December 9, 1994.

COPYRIGHT MATERIAL OMITTED

Luise Srubar, pro se.

Mitofsky & Shapiro, New York City, for defendants.

ORDER

KIMBA M. WOOD, District Judge.

Defendants have moved to dismiss plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the ground that plaintiff has failed to state a claim under 42 U.S.C. § 1985, 42 U.S.C. § 1983, the Fourth Amendment, and the Due Process clause of the Fourteenth Amendment. Defendants also seek an order prohibiting plaintiff from filing any additional actions against defendants that are based on the allegations contained in the instant complaint. On December 9, 1994, Magistrate Judge Ellis issued a Report and Recommendation (the "Report") recommending that I dismiss plaintiff's complaint in its entirety, and that I deny the request to enjoin plaintiff from commencing further suits against defendants. On December 15, 1994, plaintiff filed timely objections to the Report. After a de novo review of the Report and of plaintiff's objections, I adopt Magistrate Judge Ellis' recommendation.

Background

Plaintiff's landlord, the Armed Realty Company, instituted a holdover proceeding against plaintiff in the Housing Part of the Civil Court of New York in February of 1992 that eventually resulted in her eviction from her rent-controlled apartment. Plaintiff subsequently commenced the instant lawsuit in November of 1992 against Onda D'Urso and Andrew Hoffman, whom plaintiff describes as partners in Armed Realty, and Rudd, Rosenberg, Mitofsky & Hollender, the law firm that represents Armed Realty. She alleges that defendants conspired to initiate a fraudulent holdover proceeding in order to deprive her of her tenancy in her rent-controlled apartment, and, to this end, attempted to "intimidate" plaintiff by pre-dating the petition prior to the purchase of an index number in Civil Court, New York County. Plaintiff contends that defendants' act constituted "an obstruction of justice" that deprived plaintiff of her civil rights under 42 U.S.C. §§ 1983 and 1985, and under both the Fourth Amendment and the Due Process clause of the Fourteenth Amendment. Complaint at 4.

Using the governing Second Circuit standard for dismissal pursuant to Fed.R.Civ.P. 12(b)(6), Magistrate Judge Ellis reviewed each of plaintiff's claims, and determined that she had failed to state any claim that would entitle her to relief. With respect to the § 1985 claims,¹ the Magistrate Judge held that plaintiff "fails to allege that she is a member of a protected class for the purposes of the statute or to state facts which could establish the existence of invidious motivation for a conspiracy." Report at 7 (citing Gleason v. McBride, 869 F.2d 688 (2d Cir. 1989) and Legal Aid Soc'y v. Association of Legal Aid Attorneys, 554 F.Supp. 758 (S.D.N.Y.1982)); see also Gagliardi v. Village of Pawling, 18 F.3d 188, 194 (2d Cir. 1994). He thus concluded that she failed to allege facts sufficient to state a claim under either clause of § 1985. The Magistrate Judge also determined that plaintiff's failure to allege the existence of state action was fatal to both her § 1983 claim and her Due Process claim. Report at 10, 13. Finally, the Magistrate Judge recommended that the Fourth Amendment claim be dismissed because plaintiff never alleged that an improper search or seizure had occurred. Id. at 11.

Discussion

Plaintiff raises several objections to the Report, although most of the objections merely restate, in conclusory fashion, allegations made in the complaint. I address what I interpret to be the substantive objections.

First plaintiff suggests that Magistrate Judge Ellis did not adhere to the requirement that pro se complaints are to be liberally construed in order to give effect to all possible claims. I disagree. As an initial matter, I note that the Magistrate Judge explicitly recommended that I apply a more liberal standard than would ordinarily be required because plaintiff appears pro se. Citing Williams v. McCausland, 791 F.Supp. 992, 996 (S.D.N.Y.1992), the Magistrate Judge stated that "pro se complaints in particular must be read closely and liberally construed to permit any valid claim." Report at 4. Furthermore, it is evident that the Magistrate Judge applied this standard in the instant case. For example, as noted supra, the Magistrate Judge construed plaintiff's bare § 1985 claim as raising two distinct causes of action under that statute. I find that the Magistrate Judge properly applied the liberal, pro se standard.

Plaintiff also objects to the Magistrate Judge's determination that plaintiff did not allege membership in a protected class for the purposes of her § 1985 claims. She argues that her economic status — evinced by her pro se appearance — qualifies her as a member of a protected group. Pl.Obj. at 4. This objection must be rejected for two reasons. First, plaintiff did not make this claim in her complaint, and, therefore, Magistrate Judge Ellis properly determined that plaintiff's complaint failed to state a claim under § 1985. Second, even had plaintiff included in her complaint the claim that she is a member of a protected class by virtue of her poverty, she offers no authority supporting the position that the poor constitute a protected class for the purposes of a § 1985 claim. See United Bhd. of Carpenters & Joiners, Local 610 v. Scott, 463 U.S. 825, 837, 103 S.Ct. 3352, 3360, 77 L.Ed.2d 1049 (1983) (stating that "we find no convincing support in the legislative history for the proposition that § 1985(3) was intended to reach conspiracies motivated by bias towards others on account of their economic views, status, or activities"); see also Trautz v. Weisman, 819 F.Supp. 282, 290-91 (S.D.N.Y.1993) (noting that "courts have held that protection under § 1985(3) extends to the `discrete and insular' minorities who receive special protection under the equal protection clause because of inherent personal characteristics"); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 24, 93 S.Ct. 1278, 1291, 36 L.Ed.2d 16 (1973) (holding that, "at least where wealth is concerned, the Equal Protection Clause does not require absolute equality or precisely equal advantages"); cf. Harris v. McRae, 448 U.S. 297, 323, 100 S.Ct. 2671, 2691, 65 L.Ed.2d 784 (1980) (observing that "this court has held repeatedly held that poverty, standing alone, is not a suspect classification").

Even assuming arguendo that I were to consider plaintiff to be a member of a protected class, I note that plaintiff has still failed to plead that the alleged conspiracy was undertaken with any class-based discriminatory animus. Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971). Plaintiff has not argued that defendants conspired to evict her from her rent-controlled apartment because she is a member of a protected class. Because class-based animus is an essential element of the § 1985 claims plaintiff raises, these claims must be dismissed. See Bray v. Alexandria Women's Health Clinic, ___ U.S. ___, ___ _ ___, 113 S.Ct. 753, 758-59, 122 L.Ed.2d 34 (1993); Herrmann v. Moore, 576 F.2d 453, 458 (2d Cir.1978).

Finally, plaintiff objects to the Magistrate Judge's determination that plaintiff's failure to show state action requires dismissal of her § 1983 claim. Although, in plaintiff's complaint, she states that defendants conspired to deprive her of her rights "with or without knowledge of the Clerk of the Court," Complaint at 3, she has amplified her claim in her objections, stating that a "state entity acted in concert with private actors who were engaged in a conspiracy against me." Pl.Obj. at 5. However, as the Magistrate Judge noted, § 1983 conspiracy claims must contain more than vague allegations regarding a conspiring state agent in order to survive a motion to dismiss. Report at 10 (citing Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir.1977)); see also Polur v. Raffe, 912 F.2d 52, 56 (2d Cir.1990), cert. denied, 499 U.S. 937, 111 S.Ct. 1389, 113 L.Ed.2d 446 (1991). Because plaintiff has merely reiterated vague allegations of conspiracy, I agree with the Magistrate Judge that she has failed to state a claim under § 1983.

Although Magistrate Judge Ellis has recommended that I grant defendants' motion to dismiss plaintiff's complaint, he also recommended that I deny defendants' request for an order precluding plaintiff from filing further suits related to the events at issue in the instant litigation. The Magistrate Judge determined that "plaintiff's conduct does not rise to the level of abuse of the judicial process." Report at 13 (citing Polur, 912 F.2d at 57). Because I have received no objections from defendants, I adopt the Magistrate Judge's recommendation, and deny defendants the injunctive relief they seek. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) (failure to file timely objections constitutes a waiver of objections).

Conclusion

For the reasons stated above, I adopt the Magistrate Judge's Report, and dismiss plaintiff's complaint. I deny defendants' request for an order directing plaintiff to refrain from filing suit against defendants based on the events at issue in this litigation.

SO ORDERED.

REPORT AND RECOMMENDATION

ELLIS, United States Magistrate Judge.

This is a federal civil rights action alleging a conspiracy by private parties to deprive pro se plaintiff Luise Srubar of her interest in a rent-controlled apartment. Plaintiff invokes the Fourth Amendment, procedural due process, and 42 U.S.C. §§ 1983 and 1985 in her complaint. The case is before the court on defendants' motion for judgment on the pleadings under Rules 12(c) and 12(h)(2), Federal Rules of Civil Procedures, for failure to state a claim upon...