MIKE CHOUNLAMONTRY ET AL v. JOSEPH SHORTTALL ET AL (2024)

RULING DENYING THE PLAINTIFFS’ MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND RECOMMENDING THAT THE COMPLAINT BE DISMISSED WITHOUT PREJUDICE

On March 22, 2024, the plaintiffs Mike Chounlamontry and “Arthur of the family Wittenberg Trustee,” proceeding pro se, commenced this action against defendants Joseph M. Shorttall and Stan Moskowitz. (Doc. No. 1).¹ The Complaint alleges that Judge Shortall violated the plaintiffs’ constitutional rights in a state court proceeding by allowing Chounlamontry's home to be foreclosed. (Doc. No. 1 at 4-5).

The same day, Chounlamontry filed a Motion for Leave to Proceed In Forma Pauperis. (Doc. No. 2). On September 9, 2024, the Court (Bolden, J.) referred to the undersigned both the Motion to Proceed In Forma Pauperis and the Complaint for an initial review, pursuant to 28 U.S.C. § 1915. (Doc. No. 7). For the following reasons, the plaintiff's Motion to Proceed In Forma Pauperis is DENIED, and the Court respectfully recommends that the plaintiff's Complaint be DISMISSED in its entirety without prejudice.

I. LEGAL STANDARD

This matter is before the Court for a ruling on the plaintiff's Motion for Leave to Proceed In Forma Pauperis, (Doc. No. 2), pursuant to 28 U.S.C. § 1915, which provides, in pertinent part:

[A]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person who submits an affidavit that ․ [he] is unable to pay such fees or give security therefor.

28 U.S.C. § 1915(a)(1).

The same statute that authorizes the Court to grant in forma pauperis status to an indigent plaintiff also contains a provision that protects against the abuse of this privilege. See 28 U.S.C. § 1915(e). Subsection (e) provides that the Court “shall dismiss the case at any time if [it] determines that ․ the action ․ (i) is frivolous or malicious; (ii) fails to state a claim upon 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)(B). A claim is “frivolous” if it lacks an arguable basis either in law or fact, or when a dispositive defense, such as lack of subject matter jurisdiction, clearly exists on the face of the complaint. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); see also Patterson v. Rodgers, 708 F. Supp. 2d 225, 232 (D. Conn. 2010) (“In analyzing whether Plaintiff's claims are ‘frivolous,’ ‘fail to state a claim upon which relief may be granted,’ or barred by immunity, the Court necessarily determines whether it has subject matter jurisdiction over the action.”). Indeed, “[w]here there is a lack of subject matter jurisdiction, dismissal is mandatory.” See Manway Constr. Co. v. Hous. Auth. of Hartford, 711 F.2d 501, 503 (2d Cir. 1983).

II. FINANCIAL AFFIDAVIT

In civil actions filed by more than one plaintiff, each plaintiff must either submit an application to proceed in forma pauperis or pay the filing fee. Jackson v. Doe Kitchen Manager, No. 3:18-cv-1884 (VAB), 2020 WL 4569859, at *2 (D. Conn. Aug. 8, 2020); Ruffino v. Lantz, No. 3:08-cv-1521 (VLB), 2009 WL 700653, at *3 (D. Conn. Mar. 13, 2009) (“No named plaintiff is excused from tendering the filing fee if he possesses sufficient funds to do so․ Thus, any person seeking to file an action without prepayment of the filing fee must submit a motion to proceed in forma pauperis [under] 28 U.S.C. § 1915(a)(1).”).

Although Chounlamontry has filed a motion to proceed in forma pauperis (see Doc. No. 2), Wittenberg, to the extent that he is a plaintiff, has not. Moreover, Wittenberg has not signed the Complaint as required by Rule 11(a) of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 11(a) (“Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name—or by a party personally if the party is unrepresented. The paper must state the signer's address, e-mail address, and telephone number.”). Additionally, local rule 83.1(d)(1) requires that any pro se party “provide an address where service can be made upon such party.” D. Conn. L. Civ. R. 83.1(d)(1). The address provided by Wittenberg on the face of the Complaint appears to be deficient because it reads “Rural Route Delivery 701 loyola avenue, unit 57867 new orleans, louisans 00000.” (Doc. No. 1 at 3). Because Wittenberg has not signed the Complaint, nor paid the filing fee or filed an application to proceed in forma pauperis, and has not provided a sufficient address, any allegations in the Complaint asserted by Wittenberg are dismissed without prejudice. See Jackson, 2020 WL 4569859, at *3 (citing cases treating noncompliance as failure to prosecute and dismissing pro se complaints).² Thus, Chounlamontry remains the sole plaintiff in this case.

With respect to Chounlamontry, the Court concludes that the plaintiff has not established indigency. (See Doc. No. 2). The Court determines whether an applicant is indigent by reviewing the applicant's assets and expenses as stated on a declaration submitted with the motion to proceed in forma pauperis. As a general matter, applicants seeking IFP status are not required to “demonstrate absolute destitution.” Potnick v. E. State Hosp., 701 F.2d 243, 244 (2d Cir. 1983) (per curiam). Rather, they must establish that they cannot afford to pay for both the necessities of life and the costs of litigation. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). “The decision of whether to grant an application to proceed IFP rests within the sound discretion of the court.” Robert C. v. Kijakazi, No. 3:22-CV-0120 (SRU), 2022 WL 2287600, at *1 (D. Conn. Feb. 10, 2022) (citing Anderson v. Coughlin, 700 F.2d 37, 42 (2d Cir. 1983)). To help plaintiffs make this showing, the District of Connecticut provides a standard-form financial affidavit, which directs the affiant to “[c]omplete all questions in this Affidavit and sign it. Do not leave any blanks: if the answer to a question is ‘0,’ ‘none,’ or ‘not applicable’ (N/A), write that response.” (Doc. No. 2 at 2).

The affidavit filed by Chounlamontry in this case is deficient. First, Chounlamontry failed to sign the financial affidavit. (Id. at 6). The affiant's signature is paramount because “[o]ne who makes this affidavit exposes himself ‘to the pains of perjury in a case of bad faith,’ ” which “constitutes a sanction important in protection of the public against a false or fraudulent invocation of the statute's benefits.” Adkins, 335 U.S. at 338 (quoting Pothier v. Rodman, 261 U.S. 307, 309 (1923)). Second, the affidavit is incomplete because Chounlamontry leaves large portions of pages five and six regarding his financial obligations blank. (Doc. No. 2 at 5-6). Third, the plaintiff lists several monthly expenses but attests that he has a zero-dollar income because he has been unemployed since December 2022 and receives no other income or benefits. (Id. at 2-3, 5). Courts have held such affidavits insufficient because no one can survive on a zero-dollar income. See Pierre v. City of Rochester, No. 16-CV-6428 CJS, 2018 WL 10072449, at *1 (W.D.N.Y. Dec. 13, 2018) (denying in forma pauperis motion where plaintiff claimed no income, assets, or other financial support without “explanation for how he survives day-to-day or how his monthly expenses are paid”); Fridman v. City of New York, 195 F. Supp. 2d 534, 537 (S.D.N.Y. 2002) (“In assessing an application to proceed in forma pauperis, a court may consider the resources that the applicant has or ‘can get’ ․ such as ‘from a spouse, parent, adult sibling or other next friend.”). Fourth, Chounlamontry failed to list the cases he has previously filed in this District, including their case numbers, captions, and dispositions. (Doc. No. 2 at 6). To the Court's knowledge, he has filed at least three other cases in federal court since 2022.

Taken together, the Court finds the deficiencies in the affidavit fatal. Accordingly, the plaintiff's Motion to Proceed In Forma Pauperis is DENIED without prejudice to refiling. By October 28, 2024, Chounlamontry must either (a) pay the filing fee or (b) submit a revised and complete financial affidavit addressing the deficiencies identified in this Recommended Ruling.

III. MERITS OF THE COMPLAINT

Turning to the merits of the complaint, as set forth herein, the Court finds that the complaint fails to allege a legally cognizable claim.

A. Factual Background

The facts of this case as alleged by the plaintiff in the 55-page Complaint are very difficult to understand. The Complaint introduces and often repeats some facts and legal arguments, while introducing additional facts and legal arguments later, making the claims difficult to follow. Nevertheless, the Complaint fundamentally appears to describe the state court proceedings that resulted in the foreclosure of the plaintiff's home. The plaintiff asserts that “the judge unlawfully dismissed the complainant's jurisdictional challenge with an affidavit without forcing the attorneys to prove jurisdiction,” and therefore demands “a Judicial review of the defendant's misconduct for abuse of discretion, as authorized by the US Administrative Procedures Act of 1946.” (Doc. No. 1 at 4).

The Complaint is brought on behalf of Mike Chounlamontry, and “TRUSTEE, Arthur of the family Wittenberg,” whom the Complaint describes as “a Private American National/Non ‘U.S. Citizen,’ Executor, Grantor, Settlor, Agent, and Beneficiary, of the Estate of ARTHUR WITTENBERG ․ MORE IMPORTANT, not the artificial entity known as ARTHUR WITTENBERG, but, the agent thereof.” (Id.). The Complaint names as the defendants Joseph M. Shortall “d/b/a/ Judge,” and Stan Moskowitz. (Id. at 5). The Complaint specifies that Stan Moskowitz is the Chief Financial Officer of Freedom Mortgage Corporation (“FMC”). (Id.).³ The Court understands Joseph M. Shortall to be a judge trial referee in the Connecticut Superior Court.

According to the Complaint, Judge Shortall presided over a civil foreclosure action brought by FMC against the plaintiff in the Superior Court of New Britain. (Id.). The first several pages of the Complaint assert numerous allegations against Judge Shortall regarding the way he handled the case. First, the plaintiff claims that Judge Shortall “stepped outside of his official capacity” and showed “deliberate indifference to the law” by providing “an unfair advantage” to FMC and its lawyers. (Id.). Specifically, the plaintiff alleges that Judge Shortall ignored the plaintiff's “Jurisdictional Challenge with Affidavit” which demonstrates the judge's personal bias and prejudice towards the plaintiff because he could not speak English. (Id. at 6). Further, the plaintiff states that Judge Shortall claimed to rely on documents pertaining to the plaintiff's mortgage that were never filed in the case, including the original promissory note, the original contract, an affidavit from Moskowitz, and a signed agreement among FMC's attorneys. (Id.). The plaintiff additionally claims that he was not able to adequately participate in the foreclosure proceedings because he often received inadequate notice from the Clerk of Court, such as being notified on a Friday about a hearing to be held on a Monday. (Id. at 7). Moreover, the plaintiff alleges Judge Shortall acted without proper subject matter jurisdiction when he granted FMC possession of the plaintiff's home, that the judgment was “based on a manifest error of the law,” and that the judge “willfully and wrongfully applied the law.” (Id. at 6-7). Finally, the plaintiff claims that Judge Shortall abused his authority, violated his oath of office by hearing the case without proper jurisdiction, and ignored evidence that proved FMC's claims false. (Id. at 7). As a result, the plaintiff argues Judge Shortall violated the Administrative Procedure Act of 1946 (“APA”), 5 U.S.C. § 551, et seq.; 42 U.S.C. § 1983 (civil action for deprivation of rights); 18 U.S.C. § 241 (conspiracy against rights); 18 U.S.C. § 242 (deprivation of rights under color of law); 18 U.S.C. § 1505 (obstruction of justice); 18 U.S.C. § 371 (conspiracy to commit offense); and 28 U.S.C. § 535(b) (investigation of crimes involving government officers and employees). (Id. at 3, 6).

The next several pages of the Complaint largely recount the procedural history in the state foreclosure case and repeat the allegations detailed above. (Id. at 8-10). The plaintiff complains that, after the state foreclosure case ended, he mailed FMC and Moskowitz a “notice to claim to interest” several times, but each was ignored. (Id. at 12). Next, the plaintiff argues that Wittenberg “extinguished the alleged debt” arising from the mortgage, such that FMC would be unjustly enriched if it were allowed to retain the physical property and payment of the loan. (Id. at 13). The Complaint then repeats the allegations challenging the Superior Court's subject matter jurisdiction. (Id. at 14-17). Then, the plaintiff argues that (1) his claims establish “detrimental reliance” because he never consented to jurisdiction in the case; (2) he was prejudiced in the state court proceeding when Judge Shortall ignored his documents; and (3) Judge Shortall had a conflict of interest with “Attorneys” because they are “members of a secret society” belonging “to the same professional association.” (Id. at 18-19). In his demand for relief, the plaintiff requests $2.5 million in damages against Judge Shortall and a variety of injunctive relief, including to restrain the defendants from any collection activity, to “cancel or void” any note that could be used against the plaintiff in the future, and to “remove clouds” from the plaintiff's title. (Id. at 21).⁴

The plaintiff attached several hand-marked exhibits to the Complaint, which are continuously paginated with the Complaint because they were not filed as separate exhibits. The first exhibit is hand-marked “Exhibit A,” which appears to be an “affidavit of citizenship” in which Chounlamontry attests to his United States citizenship. (Id. at 24). The second exhibit, titled “Exhibit A1” appears to be a “Declaration of Status of Arthur:wittenberg” which describes a “restoration of former status from being a public ‘United States’ citizen ․ To Becoming Once Again A Pre-March 9, 1933, Private Citizen of the United States ․” (Id. at 25). The third and fourth exhibits, titled “Exhibit C” and “Exhibit C1” appear to be a screenshot of the docket in the state foreclosure case and the certificate of service, respectively. (Id. at 26-32). The fifth exhibit, titled “Exhibit D,” appears to be the “Jurisdictional Challenge with Affidavit” which the plaintiff complains the state court ignored in the foreclosure case. (Id. at 33-47). The remaining four exhibits, titled Exhibits E-H respectively, appear to include the “notice to claim to interest” the plaintiff sent to FMC after the foreclosure case ended and their respective mailing receipts. (Id. at 48-55).

The only facts alleged in the Complaint as to Moskowitz are that he did not respond to the “notice to claim to interest” the plaintiff sent to him. (Id. at 11-12).

B. Discussion

The plaintiff purports to bring this action pursuant to numerous federal civil and criminal laws. The Court respectfully recommends that the plaintiff's Complaint be dismissed in its entirety, without prejudice. More specifically, the Court finds that (1) it lacks subject matter jurisdiction because the plaintiff's claims are barred by the Rooker-Feldman doctrine and the plaintiff cannot rely on federal criminal statutes to invoke the Court's jurisdiction; and (2) the plaintiff fails to state a cause of action under the APA and § 1983.

1. The Court Lacks Subject Matter Jurisdiction Over the Plaintiff's Claims

i. The Plaintiff's Claims Are Barred By The Rooker-Feldman Doctrine

The federal district courts are courts of limited jurisdiction under Article III, Section 2 of the United States Constitution and, as such, a district court is empowered to hear only those cases over which it can exercise subject matter jurisdiction. See Massad v. Greaves, 554 F. Supp. 2d 163, 166 (D. Conn. 2008). “The Rooker-Feldman doctrine bars federal district courts from hearing cases that in effect are appeals from state court judgments, because the Supreme Court is the only federal court with jurisdiction over such cases.” Dorce v. City of New York, 2 F.4th 82, 101 (2d Cir. 2021) (citing 28 U.S.C. § 1257). “The doctrine ‘is confined to cases of the kind from which [it] acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.’ ” Id. (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283 (2005)). More precisely, “[f]or the Rooker-Feldman doctrine to apply, (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.” Murdock v. Rosen, No. 3:23-CV-0063 (JAM), 2023 WL 3006808, at *2 (D. Conn. Apr. 19, 2023) (citing Sung Cho v. City of New York, 910 F.3d 639, 645 (2d Cir. 2018)).

Here, by his own admission, the plaintiff has commenced this lawsuit in response to the state court judgment entered on January 22, 2024, which decreed a foreclosure by sale of the plaintiff's home. (Doc. No. 1 at 5-7, 15-16, 18-19). This is precisely the sort of “invitation to review and reject a state court judgment” the Rooker-Feldman doctrine forbids. Powell v. Ocwen Loan Servicing, LLC, No. 3:21-CV-01605 (KAD), 2022 WL 4095784, at *2 (D. Conn. Sept. 7, 2022). The plaintiff complains of an injury (the loss of his home), caused by a state court judgment (the decree of foreclosure by sale), which was rendered approximately three months prior to the commencement of this action. See Sung Cho, 910 F.3d at 645. In effect, the plaintiff asks this Court to reverse the state court's judgment, which explicitly decreed foreclosure by sale. Indeed, the plaintiff repeatedly requests this Court's review by stating that “the judge unlawfully dismissed the complainant's jurisdictional challenge,” (Doc. No. 1 at 4), “[t]he complainant demands a Judicial Review of the defendant's misconduct for abuse of discretion,” (id.), and “the judgment [is] based on a manifest error of the law and [Judge Shortall] willfully and wrongfully applied the law.” (Id. at 6-7). Moreover, the plaintiff admits that Judge Shortall advised him at the conclusion of the state court proceedings that his proper recourse was to appeal the judgment. (Id. at 11).

For the foregoing reasons, the Court finds that all of the requirements for the application of the Rooker-Feldman doctrine are met in this case and that the Court lacks subject matter jurisdiction over the plaintiff's claims.

ii. The Plaintiff, As a Private Citizen, Cannot Rely On Federal Criminal Statutes To Invoke This Court's Jurisdiction

It is axiomatic and well established that federal criminal statutes can only be invoked and enforced by the proper authorities of the United States government, and that a private citizen has no authority or standing to initiate a federal prosecution. Howland v. Howland, No. 19-CV-6531 (CJS), 2019 WL 4058991, at *1 (W.D.N.Y. Aug. 28, 2019) (quoting 21 Am. Jur. 2d Criminal Law § 515 (Westlaw 2019)). Indeed, “it is a truism, and has been for many decades, that in our federal system crimes are always prosecuted by the Federal Government, not ․ by private complaints.” Conn. Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 86–87 (2d Cir. 1972); see also Sheehy v. Brown, 335 F. App'x 102, 104 (2d Cir. 2009) (“[F]ederal criminal statutes do not provide private causes of action.”).

To the extent the plaintiff is not seeking review of a state court judgment and instead attempts to prosecute Judge Shortall for his decisions during the state court proceeding, the plaintiff's claims still fail. The plaintiff, a private citizen, may not establish the Court's federal question jurisdiction by invoking federal criminal statutes. Specifically, the plaintiff invokes 18 U.S.C. § 241 (conspiracy against rights); 18 U.S.C. § 242 (deprivation of rights under color of law); 18 U.S.C. § 1505 (obstruction of justice); 18 U.S.C. § 371 (conspiracy to commit offense); and 28 U.S.C. § 535(b) (investigation of crimes involving government officers and employees). (Doc. No. 1 at 6). None of these statutes confers a private cause of action. See Sheehy, 335 F. App'x at 104.

2. The Complaint Fails To State a Claim Under the APA and § 1983

The plaintiff brings his two remaining claims pursuant to the APA and § 1983, but he fails to state a cause of action under either statute.

First, the APA only provides a “limited cause of action for parties adversely affected by agency action.” Trudeau v. Federal Trade Comm'n, 456 F.3d 178, 185 (D.C. Cir. 2006) (emphasis added). Because the APA does not provide a cause of action against judges, such as Judge Shortall, or private individuals, such as Moskowitz, the Complaint fails to state a cause of action under the APA.

Second, to the extent the plaintiff is not seeking review of a state court judgment and instead invokes § 1983 to allege that his constitutional rights were violated, the Complaint fails to state a claim because (1) Stan Moskowitz was not acting under color of law and (2) Judge Shortall is absolutely immune from suit.

“In order to state a claim under § 1983, a plaintiff must allege a violation of rights secured by the Constitution or laws of the United States, and that such violation was committed by a person acting under the color of state law.” Kern v. City of Rochester, 93 F.3d 38, 43 (2d Cir. 1996). “The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’ ” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). Ordinarily, private actors do not act under color of law for § 1983 purposes, unless the private actor was “a willful participant in joint activity with the State or its agents,” Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324 (2d Cir. 2002) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970)), or “conspires with a state official to violate the plaintiff's constitutional rights ․” Fisk v. Letterman, 401 F. Supp. 2d 362, 378 (S.D.N.Y. 2005).

Here, as to Stan Moskowitz, the CFO of FMC, the Complaint alleges only that he failed to respond to the plaintiff's “notices” regarding his interest in his home. (Doc. No. 1 at 5, 9, 11-12). The Complaint does not allege any facts to suggest that Moskowitz was acting under color of state law. Therefore, the Complaint fails to state a claim against Moskowitz under § 1983.

Moreover, it is well established that judges enjoy absolute immunity from suits for money damages for actions taken within their judicial function. See Bliven v. Hunt, 418 F. Supp. 2d 135, 137 (E.D.N.Y. 2005) (“Judges are absolutely immune from liability for judicial acts, however erroneous the act and however evil the motive.”); Stump v. Sparkman, 435 U.S. 349, 355-56 (1978) (“A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or as in excess of his authority.”). “[I]mmunity is overcome in only two sets of circumstances. First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (internal citations omitted). This immunity is purposefully robust to protect “the independent and impartial exercise of judgment vital to the judiciary [which] might be impaired by exposure to potential damages liability.” McKnight v. Middleton, 699 F. Supp. 2d 507, 523 (E.D.N.Y. 2010) (quoting Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435 (1993)). With respect to injunctive relief, under amendments to § 1983, “in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.” 42 U.S.C. § 1983, as amended by Federal Courts Improvement Act of 1996, § 309(c), Pub. L. No. 104-317, 110 Stat. 3847, 3853 (1996); see also Huminski v. Corsones, 396 F.3d 53, 74 (2d Cir. 2005).

Here, the core of the plaintiff's allegations is that Judge Shortall's rulings in the state foreclosure case were “based on a manifest error of the law,” and that he “willfully and wrongfully applied the law.” (Doc. No. 1 at 6-7). But all of Judge Shortall's rulings were made in his judicial capacity, and as a judge trial referee in the Superior Court in New Britain, Connecticut, he clearly had jurisdiction over the plaintiff's foreclosure case. Indeed, “judicial immunity is not stripped based on the propriety of [his] particular rulings, where there is no question as to [his] subject matter jurisdiction over the case.” McKnight, 699 F. Supp. 2d at 524. Further, the plaintiff has not alleged that a declaratory decree was violated or that declaratory relief was unavailable, and consequently, the 1996 amendments to § 1983 bar the plaintiff's claims for injunctive relief. Accordingly, the Complaint fails to state a claim under § 1983 as to Judge Shortall because he is absolutely immune from this suit.

C. Leave to Amend

Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that “[t]he court should freely give leave [to amend] when justice so requires.” However, “[l]eave to amend, though liberally granted, may properly be denied for: undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (internal quotations omitted). “[A] proposed claim is futile if, accepting the facts alleged by the party seeking amendment as true and construing them in the light most favorable to that party, it does not plausibly give rise to an entitlement to relief.” Fraser v. Caribe, No. 3:20-CV-71 (SVN), 2022 WL 1210720, at * 3 (D. Conn. Apr. 25, 2022) (internal quotations and citation omitted).

Here, any amendment of the Complaint would appear to be futile as the Court lacks subject matter jurisdiction over the claims against Judge Shortall and Moskowitz for the reasons articulated above, and no amendment would cure the fundamental defects identified in this ruling. However, because the Court lacks subject matter jurisdiction, it cannot dismiss the Complaint with prejudice. See Hernandez v. Conriv Realty Assocs., 182 F.3d 121, 123 (2d Cir. 1999) (“Article III deprives federal courts of the power to dismiss a case with prejudice where federal subject matter jurisdiction does not exist.”). Accordingly, the Court recommends that the Complaint be dismissed without prejudice, but without leave to amend.

IV. CONCLUSION

For the reasons stated above, the plaintiff's Motion to Proceed In Forma Pauperis (Doc. No. 2) is DENIED without prejudice to refiling. By October 28, 2024, the plaintiff must either (a) pay the filing fee or (b) submit a revised financial affidavit addressing the deficiencies identified in this Recommended Ruling. In that affidavit, he must complete all sections to explain how he supports himself, and if he is supported by another person, he should explain whether that person can or cannot pay the filing fee. The Court further recommends that the Complaint be DISMISSED without prejudice and without leave to amend, as the Court lacks subject matter jurisdiction to adjudicate the claims raised by the plaintiff's complaint, and the plaintiff has failed to state a claim upon which relief could be granted under the APA, § 1983, and federal criminal statutes.

This is a recommended ruling. See Fed. R. Civ. P. 72(b)(1). Any objections to this recommended ruling must be filed with the Clerk of the Court within fourteen (14) days after filing of such order. See D. Conn. L. Civ. R. 72.2(a). Any party receiving notice or an order or recommended ruling from the Clerk by mail shall have five (5) additional days to file any objection. See D. Conn. L. Civ. R. 72.2(a). Failure to file a timely objection will preclude appellate review. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a) & 72; D. Conn. L. Civ. R. 72.2; Impala v. U.S. Dept. of Just., 670 F. App'x 32 (2d Cir. 2016) (summary order) (failure to file timely objection to Magistrate Judge's recommended ruling will preclude further appeal to Second Circuit); Small v. Secretary of H.H.S., 892 F.2d 15 (2d Cir. 1989) (per curiam).

Dated at New Haven, Connecticut, on this 27th day of September 2024.

FOOTNOTES

1.   The Court notes at the outset a discrepancy in the named plaintiffs in the case. The case caption on the docket lists only Chounlamontry as a plaintiff, while the caption in the Complaint lists both Chounlamontry and Arthur Wittenberg as plaintiffs. (Doc. No. 1 at 3). In an effort to construe the Complaint liberally, and because the Complaint refers to Wittenberg as a plaintiff throughout, the Court construes both Chounlamontry and Wittenberg to be plaintiffs in this case.

2.   Even in an effort to read the Complaint liberally, it is not clear how the claims in this lawsuit at all affect Wittenberg, and it does not appear that Wittenberg asserts any allegations on his own behalf. The state foreclosure action in the Superior Court of New Britain that is the subject of this lawsuit was brought against only Mike Chounlamontry and Outtama Chounlamontry. See Freedom Mortg. Corp. v. Chounlamontry, Mike et al., HHB-CV22-6071564-S (Conn. Super. Ct.). Although he was not a party to the state foreclosure case, Wittenberg filed a motion to intervene asserting that he “issued lawful Tender with silver coins and a check in the amount of $211,521.31 to extinguish the debt” underlying the foreclosure proceeding. Motion to Intervene, HHB-CV22-6071564-S, Doc. No. 129 (Conn. Super. Ct. May 5, 2023). However, Judge Shortall denied the motion because “[i]t is impossible to tell ․ that a check in that amount was received by a representative of the plaintiff. Nor does the movant establish that the underlying debt would have been extinguished by payment in that amount.” Order Denying Motion to Intervene, HHB-CV22-6071564-S, Doc. No. 129.01 (Conn. Super. Ct. May 30, 2023).

3.   Although the Complaint occasionally refers to FMC as a defendant (see Doc. No. 1 at 9, 11-12), the Court does not construe the Complaint as asserting claims against FMC. In construing pro se complaints, a party may be considered a defendant despite not being named in the caption or in the list of defendants “when there are adequate factual allegations in the body of the complaints to establish that the plaintiff intended them as defendants.” Burris v. Nassau Cnty. Dist. Att'y, No. 14-CV-5540 (PKC) (ARL), 2023 WL 6450398, at *9 (E.D.N.Y. Sept. 30, 2023) (citing cases liberally construing pro se complaints against defendants not named in caption where body of complaint included specific allegations against them). Here, the Complaint references FMC while recounting the procedural history in the state court case underlying this action but makes no specific allegations about FMC's conduct. (Doc. No. 1 at 9, 11-12). Therefore, the Court does not construe FMC as a defendant.

4.   The Complaint includes other demands that are difficult to understand, including “that subpoena to answer issue against the Defendant and that they be required to answer this bill fully,” “that an attachment issue by order or decree of your Honor and levied against all the above described property of the defendant in which the complainant holds an equitable interest,” and “where the complainants [are] secondarily liable for any debt, they may bring their principal and the creditor into Court, and have a decree against their principal and themselves in favor of the creditor for the debt, and if the creditor has any collateral security, or any lien of any sort, to secure such debt, the complainant may have such collateral or lien applied to the payment of the debt and satisfaction of said decree.” (Doc. No. 1 at 21). The Court interprets these provisions as a general request for relief from the state court judgment.

Robert M. Spector United States Magistrate Judge