United States District Court, D. Connecticut
MEMORANDUM OF DECISION
KARI
A. DOOLEY, UNITED STATES DISTRICT JUDGE
Through
this action plaintiff Huey Min Lee (“Lee”) seeks
to challenge the $700 municipal blight fine imposed on her
rental property in 2015 as well as the process by which that
fine was imposed. The defendants are Michael E. Driscoll,
Kimberly Carlson McGee, Brown Jacobson PC, Mark E. Block,
Block Janney & Pascal LLC, George Gardner, the City of
Norwich, and the New London Superior Court (collectively, the
“Defendants”). Each of the Defendants were
involved in some way in the imposition and adjudication of
that fine and the associated judgment and judgment lien. All
Defendants have moved to dismiss this action pursuant to Rule
12 of the Federal Rules of Civil Procedure for lack of
subject matter jurisdiction. The Defendants assert
additional, alternative bases for dismissal as well. Because
many of the issues raised in the various motions overlap
significantly, the Court issues a single Memorandum of
Decision.
For the
reasons set forth in this decision, the Motion to Dismiss
filed by Driscoll, McGee, and Brown Jacobson (ECF No. 69) is
GRANTED. The Motions to Dismiss filed by Block (ECF No. 60)
and Block Janney (ECF No. 64) are GRANTED. The Motion to
Dismiss filed by the New London Superior Court (ECF No. 68)
is GRANTED. The Motion to Dismiss filed by the City of
Norwich and Gardner (ECF No. 52) is GRANTED in part and
DENIED in part.
I.
Background
A.
Factual Allegations [1]
Lee is
the owner of a family residence in Norwich, Connecticut (the
“Property”). (Compl. at ¶ 25, ECF No. 1.)
Lee leased the Property to a third party beginning on March
1, 2015. (Id.) In September 2015, George Gardner, a
building code enforcement officer for the City of Norwich
(“Norwich”), received a complaint from Lee's
tenants concerning the condition of the Property.
(Id. at ¶ 26.) In response to the complaint,
Gardner conducted two inspections of the Property and cited
fifteen violations of the Norwich Property Maintenance Code
(the “Code”). (Id.) Gardner issued
notices for the violations on September 9, 2015 and September
24, 2015. (Id. at ¶ 27.) On November 2, 2015,
Gardner issued three citations, which listed a total of
fourteen violations of the Code and imposed a total fine of
$700. (Id. at ¶ 29.) On November 9, 2015, Lee
requested a hearing concerning the citations, challenging the
legal and factual basis on which they were issued.
(Id. at ¶ 33.)
On
December 11, 2015, a hearing was held before citation hearing
officer Mark E. Block. (Id. at ¶ 34.) Lee
represented to Block that her contractor had gone to the
Property with the violation list for repair in November but
was refused access to the Property by her tenants.
(Id. at ¶ 37.) Block offered Lee an extension
to remediate the Code violations. (Id.) But then, on
December 15, 2015, Block issued a decision finding Lee liable
for the violations listed in the citations issued by Gardner
and entered a $700 assessment. (Id. at ¶¶
39-40.) Lee received the notice of decision on December 16,
2015. (Id. at ¶ 39)
On
January 25, 2016, Block filed the notice of assessment with
the New London Superior Court (“Superior Court”),
pursuant to Conn. Gen. Stat. § 7-152c(f), (the
“Blight Action”) which resulted in a firm
appearance being entered in the matter for Block's firm,
Block Janney & Pascal LLC (“Block Janney”).
City of Norwich v. Lee, No. KNL-CV-16-6025999-S,
Entry No. 100.31 (Conn. Super. Ct. Jan. 25, 2016)
[hereinafter Lee I]; see also (Compl. at
¶ 44). Block further requested a judgment on the
violations on behalf of Norwich so that Norwich could enforce
the $700 assessment. Id. at Entry No. 100.30. On
January 28, 2016, judgment entered in favor of Norwich in the
amount of $700 and court costs of $8 (the “Blight
Judgment”). Lee I, Entry No. 101.00; see
also (Compl. at ¶ 44). On February 17, 2016,
Norwich, represented by Brown Jacobson PC (“Brown
Jacobson”), recorded a judgment lien against the
Property for the sum of $700 in damages and $8 in costs.
(Compl. at ¶ 55; see also Compl., Ex. A at 3,
ECF No. 1-2.) That same day, Kimberly Carlson McGee, an
attorney with Brown Jacobson, sent Lee a copy of the judgment
lien. (Compl., Ex. A at 2.)
On
February 19, 2016, Lee instituted an action in the Superior
Court against Norwich, the Norwich Department of Planning and
Development, Gardner, and Block in which she sought to appeal
Block's decision and assessment (the “Blight
Appeal”). Lee v. City of Norwich, No.
KNL-CV-16-5015046-S, Entry No. 100.30 (Conn. Super. Ct. Feb.
19, 2016) [hereinafter Lee II]. On March 16, 2016,
the defendants moved to dismiss the action, arguing that it
was untimely under Connecticut Practice Book § 23-51 and
Connecticut General Statutes § 7-152c. Id.,
Entry No. 101.00. On April 15, 2016, Lee sought leave to
amend her complaint. Id., Entry No. 101.01. On
August 30, 2016, the court granted the defendants' motion
to dismiss and denied Lee's request to amend.
Id., Entry No. 102.00. With respect to the motion to
dismiss, the court agreed with the defendants that Lee's
appeal was untimely and, as a result, the court lacked
subject matter jurisdiction. Id. The court further
concluded that Lee's request to amend was moot because of
the court's lack of subject matter jurisdiction.
Id. Thereafter, the court entered a judgment of
dismissal. Id., Entry No. 103.00. Lee did not appeal
this decision.
B.
Procedural History
On
August 31, 2018, Lee commenced this twelve-count action
against the Defendants, in which she challenges the
Defendants' authority to institute and prosecute the
Blight Action as well as the propriety and legality of the
Defendants conduct when doing so. For relief, Lee seeks
declarations that the Defendants acted unconstitutionally,
that they are liable for each of the stated causes of action,
and that the Blight Judgement is null and void.
The
Complaint is not a model of clarity, and it is difficult to
determine both the nature of the claims brought and the
defendants at which such claims are directed. Construing this
pro se complaint liberally, the Court determines
that the chart of the claims and defendants set forth below
accurately summarizes the Complaint.[2] Erickson v. Pardus,
551 U.S. 89, 94 (2007) (“A document filed pro
se is to be liberally construed, and a pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by
lawyers.” [citations omitted; internal quotation marks
omitted]).
-
Count
|
Cause of Action
|
Defendants Named
|
1
|
Fraud Upon the Court
|
All defendants except the Superior Court
|
2
|
42 U.S.C. § 1983 (deprivation of due process)
|
Gardner
|
3
|
42 U.S.C. § 1983 (deprivation of due process)
|
All defendants
|
4
|
42 U.S.C. § 1985 (conspiracy to interfere with
civil rights)
|
All defendants
|
5
|
18 U.S.C. § 1341 (mail fraud)
|
All defendants except the Superior Court
|
6
|
18 U.S.C. § 1343 (wire fraud)
|
All defendants except the Superior Court
|
7
|
18 U.S.C. § 1349 (conspiracy to defraud)
|
All defendants except the Superior Court
|
8
|
Fed. R. Civ. P. 60(b) (collateral attack on Blight
Judgment based on fraud)
|
Norwich[3]
|
9
|
Usurpation of Public Office
|
Block, Block Janney, McGee, and Brown Jacobson
|
10
|
42 U.S.C. § 1986 (action for neglect to
prevent)[4]
|
Norwich
|
11
|
18 U.S.C. § 1621 (perjury under oath of
office)
|
Driscoll, Block, McGee, and Gardner
|
12
|
18 U.S.C. § 1346 (honest services
fraud)[5]
|
Norwich and the Superior Court
|
Count
One, fraud upon the court, is based on the named defendants
alleged ultra vires conduct and submission of false
statements and forged documents in order to obtain the Blight
Judgment. Relatedly, in Counts Five, Six, Seven, Eleven and
Twelve, Lee asserts claims under various criminal statutes
for fraud and perjury. Much like Count One, these counts
accuse the named defendants of engaging in illegal and
unlawful conduct to obtain the Blight Judgment. Count Eight
further asserts a “collateral attack” on the
validity of the Blight Judgment pursuant to Rule 60(b) of the
Federal Rules of Civil Procedure based on the fraud
perpetrated by Norwich through the Defendants to obtain the
Blight Judgment. (Compl. at ¶ 107 (“Plaintiff
brings this independent action to attack the void judgment in
[the Blight Action] . . . pursuant to Federal Rules of Civil
Procedure 60. . . .”).)
In
Counts Two, Three, Four, Nine and Ten, Lee asserts a variety
of civil rights claims based on the events surrounding and
leading up to the Blight Action. Count Two asserts a claim
against Gardner under 42 U.S.C. § 1983 based on his
alleged ultra vires inspection of the Property and
issuance of notices and citations, in violation of Lee's
substantive due process and constitutional property rights.
Count Three asserts a procedural due process and equal
protection claim under Section 1983. Count Four asserts a
claim under 42 U.S.C. § 1985 based on the Defendants
alleged conspiracy to deprive Lee of her due process and
constitutional property rights. Count Nine accuses the named
defendants of usurping the duties and authorities of
Norwich's corporation counsel (Driscoll) when prosecuting
the Blight Action, thereby depriving Lee of her civil rights.
Relatedly, Count Ten accuses Norwich of illegally retaining
McGee, Brown Jacobson, Block, and Block Janney as counsel
and, thereby, enabling these and other defendants to
perpetuate their fraudulent scheme to deprive “its
citizen's civil right to private property and to due
process of law.” (Compl. at ¶ 128.)
II.
Standard of Review
To
survive a motion to dismiss filed pursuant to Rule 12(b)(6),
“a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting 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.” Iqbal, 556 U.S. at 678.
“The plausibility standard is not akin to a
‘probability requirement,' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly,
550 U.S. at 557). Legal conclusions and “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, ” are not entitled to a
presumption of truth. Iqbal, 556 U.S. at 678.
Nevertheless, when reviewing a motion to dismiss, the court
must accept well-pleaded factual allegations as true and draw
“all reasonable inferences in the non-movant's
favor.” Interworks Sys. Inc. v. Merch. Fin.
Corp., 604 F.3d 692, 699 (2d Cir. 2010).
“Because
a Rule 12(b)(6) motion challenges the complaint as presented
by the plaintiff, taking no account of its basis in evidence,
a court adjudicating such a motion may review only a narrow
universe of materials. Generally, we do not look beyond facts
stated on the face of the complaint, . . . documents appended
to the complaint or incorporated in the complaint by
reference, and . . . matters of which judicial notice may be
taken.” Goel v. Bunge, Ltd., 820 F.3d 554, 559
(2d Cir. 2016) (citations omitted, internal quotation marks
omitted).
The
appropriate analysis for a facial challenge to subject matter
jurisdiction, like the one raised by the Defendants, is
similar to that required under Rule 12(b)(6). “When the
Rule 12(b)(1) motion is facial, i.e., based solely
on the allegations of the complaint or the complaint and
exhibits attached to it . . ., the plaintiff has no
evidentiary burden.” Carter v. HealthPort Techs.,
LLC, 822 F.3d 47, 56 (2d Cir. 2016). The task of the
district court is to determine whether, after accepting as
true all material factual allegations of the complaint and
drawing all reasonable inferences in favor of the plaintiff,
the alleged facts affirmatively and plausibly suggest that
the court has subject matter jurisdiction. Id. at
56-57. “A plaintiff asserting subject matter
jurisdiction has the burden of proving by a preponderance of
the evidence that it exists.” Makarova v. United
States, 201 F.3d 110, 113 (2d Cir. 2000).
III.
The Motion to Dismiss by the Superior Court (ECF No.
68)
The
Superior Court moves to dismiss all of Lee's claims
against it for lack of subject matter jurisdiction pursuant
to the Rooker-Feldman doctrine[6] and the Eleventh
Amendment to the United States Constitution. As noted above,
the Superior Court is named in Count Three (Section 1983; due
process); Count Four (Section 1985; conspiracy); and Count
Twelve (Section 1346; honest services fraud). Alternatively,
the Superior Court moves to dismiss the Complaint pursuant to
Rule 12(b)(6) for failure to state a claim and Rule 12(b)(5)
for insufficient service of process. Because the Court agrees
that it lacks subject matter jurisdiction over Lee's
claims against the Superior Court, it need not take up the
Superior Court's alternative arguments for dismissal.
A.
Rooker-Feldman Doctrine
Under
the Rooker-Feldman doctrine, federal courts lack
subject matter jurisdiction over claims that, in substance,
challenge state court judgments. Sung Cho v. City of New
York, 910 F.3d 639, 644 (2d Cir. 2018). “[I]n
order for a court to be deprived of jurisdiction under the
Rooker-Feldman doctrine, four requirements must be
met: (1) the federal-court plaintiff must have lost in state
court; (2) the plaintiff must complain of injuries caused by
a state-court judgment; (3) the plaintiff must invite
district court review and rejection of that judgment; and (4)
the state-court judgment must have been rendered before the
district court proceedings commenced.” Id. at
645; see also Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280, 284 (2005). “The first and
fourth of these requirements may be loosely termed
procedural; the second and third may be termed
substantive.” McKithen v. Brown, 481 F.3d 89,
97 (2d Cir. 2007) (citation omitted).
Here,
Lee “lost in state court” when she received an
adverse decision from Block concerning her challenge to the
blight citations and had that decision reduced to a judgment
of the Superior Court and asserted as a judgment
lien.[7] See Mennella v. Carey, 253
Fed.Appx. 125, 127 (2d Cir. 2007) (summary order) (applying
Rooker-Feldman based on adverse decision during
disciplinary hearing and administrative appeal); Pers. v.
White, No. 09-cv-03920 (JS)(ARL), 2010 WL 2723210, at *4
(E.D.N.Y. July 2, 2010) (applying Rooker-Feldman
based on adverse decision before the Workers'
Compensation Board and New York Appellate Decision). Further,
the Blight Judgment entered in the state court prior to the
commencement of this action. Lee I, Entry No. 101.00
(Conn. Super. Ct. Jan. 28, 2016). As such, the first and
fourth requirements of Rooker-Feldman are plainly
met.[8]
Turning
to the second Rooker-Feldman requirement, that the
plaintiff must complain of injuries caused by a state-court
judgment, this requirement is satisfied only as to Counts
Three and Four. In these counts, Lee complains of a single
injury - the issuance of the judgment lien resulting from the
Blight Judgment. In addition, the third
Rooker-Feldman requirement is also met as to these
counts because Lee invites the Court to review and reject the
propriety of the Blight Action and resulting judgment.
Indeed, the only affirmative relief Lee seeks is an order
declaring the Blight Judgement “null and void.”
(Compl., Prayer for Relief). Accordingly,
Rooker-Feldman bars Counts Three and Four. See,
e.g., Worthy-Pugh v. Deustche Bank Nat'l Tr.
Co., No. 3:14- cv-01620 (AWT), 2016 WL 2944535, at *4
(D. Conn. Jan. 29, 2016) (dismissing fraud claims where the
complained of injury was a state-court judgment of strict
foreclosure and plaintiff was inviting the court to review
the propriety of that judgment), aff'd 664
Fed.Appx. 20 (2d Cir.) (summary order). Counts Three and Four
are dismissed with prejudice for lack of subject matter
jurisdiction.
Unlike
Counts Three and Four, Count Twelve does not challenge an
injury caused by a state court judgment, nor does it overtly
seek review and rejection of the Blight Judgment. Instead,
Lee challenges the criminally fraudulent conduct that
resulted in the Blight Judgement. The fact that the Blight
Judgment “ratified, acquiesced in, or left
unpunished” the Superior Court's alleged criminal
conduct does not provide a basis for applying
Rooker-Feldman. Hoblock v. Albany Cty. Bd. of
Elections, 422 F.3d 77, 88 (2d Cir. 2005); see also
Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70,
94-95 (2d Cir. 2015) ...