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United States Court of Appeals, Second Circuit.

David John CARNIVALE, Plaintiff-Appellant, v. The CITY OF NEW YORK, New York City Department of Finance, Defendants-Appellees.


Decided: February 13, 2018

PRESENT: Pierre N. Leval, Guido Calabresi, José A. Cabranes, Circuit Judges. FOR PLAINTIFF-APPELLANT: David John Carnivale, pro se, Staten Island, New York. FOR DEFENDANTS-APPELLEES: Andrew G. Lipkin, Joshua M. Sivin, Andrea M. Chan, of Counsel, for Zachary W. Carter, Corporation Counsel of the City of New York, New York, New York.


Appellant David John Carnivale, proceeding pro se, appeals from the District Court’s judgment dismissing his 42 U.S.C. ' 1983 complaint. Carnivale sued the City of New York and the New York City Department of Finance (“the defendants”) for violations of his Fourth, Fifth, and Fourteenth Amendment rights, seeking an injunction capping the amount that the defendants could raise his property taxes. He alleged that from 2006 to 2016, the defendants had applied certain tax exemptions to his property, although they knew that he had inherited the property and did not personally qualify for the exemptions. In 2016, they removed the exemptions, causing his quarterly property tax bill to become prohibitively high. The District Court sua sponte dismissed the action without prejudice for lack of subject matter jurisdiction, reasoning that the Tax Injunction Act, 28 U.S.C. § 1341, prohibits district courts from exercising jurisdiction over an attempt by a plaintiff to prevent the state from collecting taxes when there is a remedy available in the state courts. On appeal, Carnivale argues that the District Court erred by dismissing the action. He also moves to enjoin the defendants from seizing or placing a lien on his property until the conclusion of this litigation. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We review de novo the District Court’s dismissal of a complaint for lack of subject matter jurisdiction. Norex Petroleum Ltd. v. Access Indus., Inc., 631 F.3d 29, 32 (2d Cir. 2010). The plaintiff bears the burden of proving that subject matter jurisdiction exists by a preponderance of the evidence. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

Here, upon such de novo review, we conclude that the District Court properly dismissed Carnivale’s claims. We affirm for substantially the reasons stated by the District Court in its thorough April 24, 2017 decision.

We have considered Carnivale’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the District Court. Furthermore, we DENY as moot Carnivale’s motion to enjoin the defendants from seizing or placing a lien on his property until the conclusion of this litigation.

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