Opinion
21-CV-5065 (AT) (JLC)
06-01-2022
ERIC STEVENSON, Plaintiff, v. MAYOR BILL DE BLASIO,et al., Defendants.
HONORABLE ANALISA TORRES, UNITED STATES DISTRICT JUDGE
REPORT & RECOMMENDATION
JAMES L. COTT, UNITED STATES MAGISTRATE JUDGE.
Eric Stevenson, proceeding pro se, brings this action against Mayor Bill de Blasio, the Council Speaker of the City of New York, the City Council of New York, and the Commissioner of the Board of Elections of the City of New York (collectively, “Defendants”) under 42 U.S.C. § 1983 for alleged violations of his constitutional rights when he was removed from the ballot for the June 2021 primary election in New York City. Defendants have moved to dismiss Stevenson's Amended Complaint in its entirety pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For following reasons, I recommend that the motion be granted and the case be dismissed with prejudice.
The Amended Complaint does not indicate whether de Blasio is named as a defendant in his official or personal capacity. However, based on the nature of the allegations, it appears that this is an official capacity lawsuit. If so, current Mayor Eric Adams should be substituted as the lead defendant pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Alternatively, if he is named in his personal capacity, de Blasio (as well as the Council Speaker) would be entitled to absolute immunity from civil liability for legislative actions, and the Amended Complaint should be dismissed against them in their personal capacities as frivolous. See, e.g. Lewis v. Jacobson, No. 20-CV-7973 (CM), 2020 WL 7321367, at *2 (S.D.N.Y. Dec. 3, 2020) (local legislators sued under civil rights statutes entitled to absolute immunity for legislative activities, and when immunity from suit is clear, complaint dismissed as “frivolous”).
I. BACKGROUND
A. Factual Background
The following facts are taken from Stevenson's Amended Complaint dated July 2, 2021 (“Am. Compl.”), Dkt. No. 12, and are accepted as true for purposes of the pending motion. Smolen v. Wesley, No. 16-CV-2417 (KMK), 2019 WL 4727311, at *4 (S.D.N.Y. Sept. 25, 2019) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)). Because Stevenson is proceeding pro se, the Court also considers allegations made for the first time in his opposition papers to the motion. See, e.g., Saudagar v. Walgreens Co., No. 18-CV-437 (KPF), 2019 WL 498349, at *1 n.1 (S.D.N.Y. Feb. 8, 2019) (“A district court deciding a motion to dismiss may consider factual allegations made by a pro se party in his papers opposing the motion.” (quoting Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013)). The Court additionally considers decisions in previous actions brought in this court and in state courts of which judicial notice may be taken. See Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991) (“courts routinely take judicial notice of documents filed in other courts, . . . not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings”).
Here, the Court takes judicial notice of the following decisions: (1) United States v. Stevenson, 834 F.3d 80 (2d Cir. 2015) (affirming Stevenson's felony conviction); (2) Stevens v. Stevenson, No. 804636/2021E (N.Y. Sup. Co. May 4, 2021) (previous action in which Stevenson raised constitutional claims in connection with the June 2021 election, and in which the state court reached a decision and judgment referred to herein as the “State Court Decision”) (3) Stevens v. Stevenson, No. 21-CV-3590 (GBD), 2021 WL 1645891 (S.D.N.Y. Apr. 27, 2021) (remanding previous action to state court); and (4) Stevens v. Stevenson, 194 A.D.3d 509 (1st Dep't May 12, 2021) (affirming State Court Decision on appeal), as publicly-filed documents properly considered on a motion to dismiss. See Order dated June 14, 2021, Dkt. No. 5 at 4, n.4, n.5; see also, e.g., Bey v. City of New York, No. 99-CV-3873 (LMM) (RLE) (consolidated cases), 2010 WL 3910231, at *4 (S.D.N.Y. Sep. 21, 2010) (docket sheets, complaints, and court decisions associated with plaintiffs' related prior actions properly subject to judicial notice to establish fact of such litigation and related filings) (collecting cases); see also O'Neal v. East Hampton Town, No. 16-CV-579 (JFB) (GRB), 2017 WL 4174788, *1, n.2. (E.D.N.Y. Aug. 28, 2017) (“Judicial notice may be taken of the state court documentation submitted by defendants.”) (collecting cases), adopted by 2017 WL 4162307 (Sep. 19, 2017); One West Bank, FSB v. Levine, No. 16-CV-3126 (SJF) (AKT), 2016 WL 3512200, *1, n.1 (E.D.N.Y. Jun. 22, 2016) (taking judicial notice of information maintained on public electronic docket for New York State Unified Court System).
Stevenson alleges that Defendants deprived him of the opportunity to participate in the City of New York's June 2021 Election when they removed his name from the ballot. Am. Compl. ¶ 1. To that end, he alleges that Defendants improperly cited Chapter 50(a), Section 1139 of the New York City Charter (“Local Law No. 15”) as disqualifying him from participation in the election due to his criminal history, even though the law was passed in February 2021 “while [his] name was [already] on the ballot.” Id. ¶¶ 2-3, 13, 17. He further asserts that his post-conviction status is subject to a proceeding under 28 U.S.C. § 2255 in the Southern District of New York. Id. ¶ 8. Finally, he contends that he did not have an opportunity to be heard by the Commissioner of the Board of Elections with respect to Local Law No. 15, and that he did not have ample time to respond to its passage before it was used to disqualify him from the ballot. Id. ¶¶ 15-16. He seeks declaratory and injunctive relief as well as monetary damages of one million dollars. Id. at 5 (demand for relief).
Stevenson does not refer to the state court proceeding in which he had previously filed a Counter-claim seeking relief on the same claim in his Amended Complaint. However, as previously noted in this litigation and as described further below, the New York Supreme Court, Bronx County (“Bronx County Supreme Court”), declared invalid Stevenson's candidacy in the June 2021 primary election to determine the Democratic Party's candidate for the office of the New York City Council member for the 16th Council District. See Dkt. No. 5; Stevens v. Stevenson, 194 A.D.3d 509 (May 12, 2021). The state court also ordered the New York City Board of Elections to remove Stevenson's name from the primary election ballot. See id.
Local Law No. 15 became effective on February 25, 2021, and provides: “In addition to any disqualifications for holding civil office in section 3 of the public officers law, no person shall be eligible to be elected to, or hold, the office of mayor, public advocate, comptroller, borough president or council member who has been convicted, provided such conviction has not been vacated pursuant to the criminal procedure law or title 28 of the United States code or pardoned by the governor pursuant to section 4 of article IV of the New York state constitution or the president pursuant to section 2 of article 2 of the United States constitution, of a felony, including an attempt or conspiracy to commit a felony, defined in:
1. sections 155.30, 155.35, 155.40, and 155.42 of the penal law, if the property stolen consisted in whole or in part of public funds;
2. section 666 of title 18 of the United States code;
3. section 1001 of title 18 of the United States code, if such felony was committed through the use of, or in connection with, such person's elected office;
4. sections 1341, 1343 and 1346 of title 18 of the United States code; or
5. section 1951 of title 18 of the United States code.”N.Y.C. Charter Chapter 50-A § 1139 (effective Feb. 25, 2021); see also Dkt. No. 5.
The petition was denied after he filed his Amended Complaint. See Stevenson v. United States, 13-CR-161 (LAP), 18-CV-1722 (LAP), 2021 WL 5401658 (S.D.N.Y. Nov. 18, 2021).
In April 2021, Althea Stevens, a candidate in the June 2021 Democratic Party Primary Election for Member of the City Council, filed a Verified Petition and order to show cause in the Bronx County Supreme Court seeking to invalidate Stevenson's candidacy. See Stevens v. Stevenson, No. 21-CV-3590 (GBD), 2021 WL 1645891, at *1 (S.D.N.Y. Apr. 27, 2021); see also Dkt. No. 5. Stevens claimed that Stevenson was ineligible to hold the office of Member of the City Council under Local Law No. 15, which disqualifies individuals with specified felony convictions from running for certain public offices. Id. Stevenson filed a “Counter-claim” in that case to oppose the requested relief and to seek an order declaring Local Law No. 15 unconstitutional. Bronx County Supreme Court Decision and Judgment, Dkt. No. 6-1 (“State Court Decision”) at 2. He claimed that the law violated his federal and state constitutional rights to due process, equal protection, first and fourteenth amendment rights, and that it violated the Voting Rights Act. Id. Stevenson filed a notice of removal to federal court on April 26, 2021, but the case was remanded back to state court for lack of subject-matter jurisdiction because the only federal question in that case was raised in a defense, not in the complaint. See Stevens v. Stevenson, No. 21-CV-3590 (GBD), 2021 WL 1645891, at *2 (S.D.N.Y. Apr. 27, 2021).
Stevenson was convicted in this District in 2014 of (1) conspiracy to commit honest services wire fraud, see 18 U.S.C. § 1349; (2) conspiracy to commit federal programs bribery and to violate the Travel Act, see Id. § 371; (3) accepting bribes, see Id. § 666(a)(1)(B); and (4) extortion under color of official right, see Id. § 1951. See United States v. Stevenson, 834 F.3d 80, 82 (2d Cir. 2015); see also Dkt. No. 5 at 4. The Second Circuit affirmed his conviction in 2016. Id. at 88.
On May 4, 2021, the Bronx County Supreme Court issued a decision and judgment granting the application to invalidate Stevenson's candidacy and dismissing in its entirety Stevenson's “Counter-claim” on both procedural and substantive grounds. State Court Decision at 8. In its judgment, the state court determined that Stevenson's Designating Petition, which purported to designate him as a candidate for office, was filed on March 25, 2021 - one month after Local Law No. 15 was approved by the Mayor. Id. at 1, 3. The court also found that Stevenson “would not prevail on the merits” of his “Counter-claim.” The Appellate Division affirmed the judgment on May 12, 2021, citing in particular the lack of notice to the City. Stevens v. Stevenson, 194 A.D.3d 509, 510-11 (1st Dep't May 12, 2021).
Stevenson now contends that Local Law No. 15 violates the United States Constitution because it: (1) is an ex post facto law, Am. Compl. ¶¶ 4, 9; (2) is a Bill of Attainder in violation of Article 1, id. ¶¶ 5, 9; (3) deprives him of privileges and immunity, due process, and equal protection under the Fourteenth Amendment, id. ¶¶ 11, 14; and (4) violates the First Amendment; id. ¶¶ 10, 16. He also asserts that it violates the Voting Rights Act. Id. at 1; Plaintiff's Opposition to the Motion to Dismiss, Dkt. No. 25, at 3.
B. Procedural History
Stevenson filed his original complaint in this lawsuit on June 7, 2021, in which he brought claims against Mayor Bill de Blasio, the City of New York Council Speaker, the City Council of New York, and the Commissioner of the Board of Elections of the City of New York. On June 14, 2021, the Court directed Stevenson to show cause why the Court should not dismiss his complaint under the Rooker-Feldman doctrine insofar as it seeks the same declaratory and injunctive relief rejected by the state court, and to append a copy of the Bronx County Supreme Court's decision. Dkt. No. 5. Stevenson filed a declaration on June 16, 2021, Dkt. No. 6, and attached the Bronx County Supreme Court's decision and judgment (“State Court Decision”). Dkt. No. 6-1.
The Court dismissed Stevenson's claims for declaratory and injunctive relief for lack of subject-matter jurisdiction under the Rooker-Feldman doctrine on June 21, 2021. Dkt. No. 8. In response, Stevenson filed an Amended Complaint on July 2, 2021, which added New York State Attorney General Letitia James as a defendant. Am. Compl, Dkt. No. 12. The Court dismissed James as a defendant on Eleventh Amendment immunity grounds on July 20, 2021. Dkt. No. 14.
On November 3, 2021, Defendants moved to dismiss the Amended Complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Notice of Motion to Dismiss, Dkt. No. 20; Memorandum of Law (“Def. Mem.”), Dkt. No. 21. After prompting by the undersigned, Stevenson filed an affirmation in opposition to the motion to dismiss on December 28, 2021. Dkt. Nos. 24, 25. Defendants did not file reply papers. The motion was referred to me for a report and recommendation on November 4, 2021. Dkt. No. 23.
II. DISCUSSION
A. Legal Standards
1. Subject Matter Jurisdiction Under Rule 12(b)(1)
“Federal courts are courts of limited jurisdiction, and Rule 12(b)(1) requires dismissal of an action ‘when the district court lacks the statutory or constitutional power to adjudicate it.'” Schwartz v. Hitrons Sols., Inc., 397 F.Supp.3d 357, 364 (S.D.N.Y. 2019) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000)). “The party invoking the Court's jurisdiction bears the burden of establishing jurisdiction exists.” Hettler v. Entergy Enters., Inc., 15 F.Supp.3d 447, 450 (S.D.N.Y. 2014) (citing Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009)). When deciding a motion to dismiss under Rule 12(b)(1) at the pleading stage, “the Court ‘must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor.'” Id. (quoting Conyers, 558 F.3d at 143); see also Doe v. Trump Corp., 385 F.Supp.3d 265, 274 (S.D.N.Y. 2019) (plaintiff asserting subject matter jurisdiction has burden to prove its existence by preponderance of evidence). When a defendant moves for dismissal under Rule 12(b)(1) in addition to other grounds, “the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined.” Saint-Armour v. Richmond Org., Inc., 388 F.Supp.3d 277, 286 (S.D.N.Y. 2019) (cleaned up).
2. Failure to State a Claim Under Rule 12(b)(6)
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint may be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion, a plaintiff must plead facts in his complaint that “state a claim to relief that is plausible on its face” and that satisfy Federal Rule of Civil Procedure 8(a)(2). Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Rule 8(a)(2) requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Id. (quoting Fed.R.Civ.P. 8(a)(2)). A claim is facially plausible when the plaintiff pleads “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
Nevertheless, this standard still requires a plaintiff's pleadings to sufficiently “nudge[ ] [its] claims across the line from conceivable to plausible[.]” Twombly, 550 U.S. at 570. Furthermore, “a plaintiff's obligation to provide the grounds of [his] entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]” Id. at 555 (cleaned up). Therefore, “[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679; see also Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007) (complaint insufficient if it lacks factual allegations necessary “to give the defendant fair notice of what the claim is and the grounds upon which it rests”).
Finally, in deciding a Rule 12(b)(6) motion, a court may consider matters of which judicial notice may be taken under Rule 201 of the Federal Rules of Evidence. See, e.g., Kramer v. Time Warner, Inc., 937 F.2d 767, 773-75 (2d Cir. 1991). Such matters include documents that are “publicly available” and whose “accuracy cannot reasonably be questioned.” Apotex, Inc. v. Acorda Therapeutics, Inc., 823 F.3d 51, 60 (2d Cir. 2016).
3. Standards Applicable to Pro Se Litigants
A complaint filed by a pro se plaintiff “is to be liberally construed and . . . must be held to less stringent standards than formal pleadings drafted by lawyers.” Bennett v. City of New York, 425 Fed.Appx. 79, 80 (2d Cir. 2011) (cleaned up). Accordingly, pleadings of a pro se party should be read “to raise the strongest arguments they suggest.” Kevilly v. New York, 410 Fed.Appx. 371, 374 (2d Cir. 2010) (cleaned up). In addition, as previously noted, the Court may also consider allegations that appear in a pro se plaintiff's opposition papers or other submissions to the Court. See e.g., Henning v. N.Y.C. Dep't of Corr., No. 14-CV-9798 (JPO), 2016 WL 297725, at *3 (S.D.N.Y. Jan. 22, 2016) (“Although this allegation appears in his opposition papers, the Court - consistent with its duty to liberally construe pro se pleadings - will credit Plaintiff's assertion in evaluating the sufficiency of his complaint.”).
Nevertheless, “dismissal of a pro se complaint is appropriate where a plaintiff fails to state a plausible claim supported by more than conclusory factual allegations.” Jones v. City of N.Y., No. 18-CV-1937 (VSB), 2020 WL 1644009, at *5 (S.D.N.Y. Apr. 2, 2020) (citing Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013)). Even a pro se plaintiff's complaint “must contain factual allegations that sufficiently raise a right to relief above the speculative level.” Ole v. Sauer, No. 19-CV-8865 (NSR), 2022 WL 1204862, at *3 (S.D.N.Y. Apr. 22, 2022) (cleaned up). “[T]he court's duty to construe the complaint liberally is not the equivalent of a duty to re-write it.” Id.
4. Section 1983 Claims
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that the challenged conduct (1) was “committed by a person acting under color of state law” and (2) “deprived [the plaintiff] of rights, privileges, or immunities secured by the Constitution or laws of the United States.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)).
Section 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). Under Section 1983, a plaintiff must show that “each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Tangreti v. Bachmann, 983 F.3d 609, 616 (2d Cir. 2020) (quoting Iqbal, 556 U.S. at 676). Because the elements of different constitutional violations vary, “[t]he factors necessary to establish a § 1983 violation will vary with the constitutional provision at issue . . .” Tangreti, 983 F.3d at 618 (quoting Iqbal, 556 U.S. at 676).
B. Analysis
1. Stevenson's Claims for Injunctive and Declaratory Relief are Barred by the Rooker-Feldman Doctrine
As a threshold matter, the Court previously dismissed the claims in Stevenson's Complaint to the extent they sought declaratory and injunctive relief for lack of subject-matter jurisdiction under the Rooker-Feldman doctrine. Dkt. No. 8 at 4. In his Amended Complaint, Stevenson does not allege any additional facts, nor does he posit any new legal theories, that would alter the merits of that decision. Therefore, to the extent that Stevenson continues to seek declaratory or injunctive relief in this lawsuit, Am. Compl. at 5 (demand for relief (a) - (e)), these claims, should once again be dismissed for lack of subject-matter jurisdiction on the same basis.
Other than adding the New York Attorney General as a party, who has since been dismissed, the Amended Complaint is identical to the Complaint, with three exceptions. First, the Complaint - but not the Amended Complaint - asserts that “the election board had certified [Stevenson's] name to be on the ballot then after the certification was complete, the election board withdr[e]w or remove[d] [his] name arbitrarily from the ballot causing [Stevenson] and the public to be prejudice[d] [i]n their voting rights.” Complaint, Dkt. No. 2, ¶ 12. Second, Paragraph 2 of the Complaint includes examples of the types of public office for which Stevenson was purportedly barred from running, while paragraph 2 of the Amended Complaint does not. Finally, the Complaint's paragraphs are misnumbered and skip over number 16, giving the erroneous impression there is an additional paragraph. See Complaint at 4.
Additionally, as discussed below, Stevenson's claims for declaratory and injunctive relief should be dismissed on res judicata grounds.
2. Stevenson's Claims for Damages Should be Dismissed on Res Judicata Grounds
Defendants argue that the remainder of Stevenson's Amended Complaint should be dismissed pursuant to the doctrine of res judicata. Def. Mem. at 8-10. The Court agrees.
“The doctrine of res judicata, or claim preclusion, holds that a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Aloe v. City of New York, No. 18-CV-6090 (DLC), 2021 WL 5566723, at *2 (S.D.N.Y. Nov. 29, 2021) (quoting In re Motors Liquidation Co., 943 F.3d 125, 130 (2d Cir. 2019) (citation omitted)). “A court may consider a res judicata defense on a Rule 12(b)(6) motion to dismiss when the court's inquiry is limited to the plaintiff's complaint, documents attached or incorporated therein, and materials appropriate for judicial notice.” Spoleto Corp. v. Ethiopian Airlines Group, 21-CV-5407 (PAE), 2022 WL 329265, at *5 (S.D.N.Y. Feb. 3, 2022) (quoting TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 498 (2d Cir. 2014) (citation omitted)).
As noted above, the Court takes judicial notice of the docket sheets and court decisions filed in previous relevant actions. See supra n. 2.
“In applying the doctrine of res judicata, [courts] bear in mind that a state court judgment has the same preclusive effect in federal court as the judgment would have had in state court.” Hameed v. Aldana, 296 Fed.Appx. 154, 155 (2d Cir. 2008) (cleaned up). To show that res judicata is a bar to litigation, the party asserting this defense must show that: (a) “the previous action involved an adjudication on the merits;” (b) “the previous action involved the same adverse parties or those in privity with them;” and (c) “the claims asserted in the subsequent action were, or could have been, raised in the prior action.” Mazzei v. The Money Store, 20-CV-3702 (AT), 2020 WL 7774492, at *5 (S.D.N.Y. Dec. 30, 2020) (quoting Marcel Fashions Grp., Inc. v. Lucky Brand Dungarees, Inc., 779 F.3d 102, 108 (2d Cir. 2015)); see also Borrani v. Nationstar Mortgage LLC, 20-CV-1444 (NSR), 2022 WL 837115, at *5 (S.D.N.Y. Mar. 21, 2022).
Here, all three requirements are met.
a. Adjudication on the Merits
The State Court Decision in the action brought against Stevenson invalidating his candidacy constitutes an adjudication on the merits. “Whether a dismissal of a state court claim was on the merits is a matter of state law.” Spoleto, 2022 WL 329265, at *6 (cleaned up). A dismissal is on the merits when a court “intended . . . to bring the action to a final conclusion.” Howard Carr Companies, Inc. v. Cumberland Farms, Inc., 833 Fed.Appx. 922, 923 (2d Cir. 2021) (quoting Yonkers Contracting Co. v. Port Auth. Trans-Hudson Corp., 93 N.Y.2d 375, 380 (1999)). In New York, the judgment “need not contain the precise words ‘on the merits' in order to be given res judicata effect; it suffices that it appears from the judgment that the dismissal was on the merits.” Id. (cleaned up); see also Brady v. Friedlander, No. 20-CV-3515, 2021 WL 5872264, at *2 (2d Cir. Dec. 13, 2021).
Here, Stevenson's “Counter-claim” in the previous action raised the same claims as those alleged in the Amended Complaint. See State Court Decision at 2- 3; infra (c). While the Appellate Division's affirmance was based on procedural defects, Stevens v. Stevenson, 194 A.D.3d at 510-11, the State Court Decision explicitly amounted to both a “decision and judgment” that expressly “dismissed in its entirety” Stevenson's “Counter-claim.” State Court Decision at 8. The state trial court reached its conclusion based in part on the fact that “beyond the procedural defects, [it] [found] that Respondent Stevenson would not prevail on the merits” of his claims. Id. at 6, 8. In fact, the trial court described Stevenson as an individual who “clearly and undisputedly falls into the category of one who is ineligible to be elected to City Office . . .” Id. at 6. Moreover, on the constitutional questions, the state court decision specifically found that “the enactment of [Local Law No. 15] was a proper exercise of the power and authority of the New York City Council.” Id. at 8.
Thus, because the previous decision and judgment in state court “expressly granted or denied all requested forms of relief,” it satisfies the requirement “that it appears from the judgment the dismissal was on the merits.” 5055 Northern Boulevard LLC v. Incorporated Village of Old Brookville, 848 Fed.Appx. 49, 50 (2d Cir. 2021) (state court order that specifically identified and then rejected claims considered judgment on the merits).
b. Privity Among the Parties
Although de Blasio, the Council Speaker, and the City Council of New York were not parties to the previous action, privity nonetheless exists between them and the Board of Elections of the City of New York such that res judicata applies and bars this suit from proceeding. “[L]iteral privity is not a requirement for res judicata to apply.” Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 285 (2d Cir. 2000). Rather, privity “bars relitigation of the same cause of action against” (1) “a new defendant known by a plaintiff at the time of the first suit” (2) “where the new defendant has a sufficiently close relationship to the original defendant to justify preclusion.” Central Hudson Gas & Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359, 367-68 (2d Cir. 1995); see also Marom v. Town of Greenburgh, No. 13-CV-4733 (NSR), 2015 WL 783378, at *4 (S.D.N.Y. Feb. 23, 2015). Both requirements are met here.
First, the City Council, City Council Speaker, and New York City Mayor, as public officials and the legislative body that enacted the law he challenges, were necessarily known to Stevenson - a former public official himself - at the time of the state court proceeding. Moreover, Stevenson argued in the previous action that the City of New York was on notice of the claims because the Board of Elections was a party to that proceeding. State Court Decision at 4. Such a statement appears to acknowledge Stevenson's understanding that the City and its representatives' interests in the matter are intertwined.
Second, Stevenson himself “does not distinguish” among Defendants in his Amended Complaint. Curry-Malcolm v. Rochester City School District, No. 20-CV-2808, 2021 WL 5764534, at *3 (2d Cir. Dec. 6, 2021). In doing so, he “appears to rely on privity to assert” his claims against both the Commissioner of the Board of Elections and the other three Defendants. Id. Further, the Office of Corporation Counsel, which is counsel of record for Defendants in this action, represented the Board of Elections in the previous action, and presented arguments on its behalf in that case. See Def. Mem. at 5; Dkt. No. 15. The fact that all Defendants in the current case are represented by the same attorneys as the party in opposition to Stevenson in the previous action is a factor in favor of finding privity among them. See Ferris v. Cuevas, 118 F.3d 122, 127 (2d Cir. 1997) (in past case, a “finding of privity was based on upon several factors, one of which was that the two parties had had the same attorney”). These considerations demonstrate a “sufficiently close relationship” between the current Defendants and the adverse parties in the previous action. Central Hudson Gas & Elec. Corp., 56 F.3d at 268.
Thus, despite Stevenson's addition of Defendants here not named in the state court proceedings, “there is no question that the same parties are involved in the state and federal actions[.]” Sheffield v. Sheriff of Rockland Cnty Sheriff Dep't, 393 Fed.Appx. 808, 811, 811 n.2 (2d Cir. 2010). Moreover, Stevenson “does not contend otherwise.” Id. Thus, privity exists, and the second prong is met.
c. Claims Raised in Prior Action
Finally, the claims Stevenson raises in his Amended Complaint are the same ones asserted in his “Counter-claim” in the previous action. “When analyzing the same cause of action requirement, [New York courts] look to whether both lawsuits arise from the same transaction, or involve a common nucleus of operative facts.” Horti Americas, LLC v. Jacob's Village Farm Corp., No. 21-CV-915, 2022 WL 38719, at *2 (2d Cir. Jan. 5, 2022) (cleaned up); see also Rafi v. Yale School of Medicine, No. 21-CV-268, 2022 WL 1409577, at *2 (2d Cir. May 4, 2022) (“For claim preclusion purposes, lawsuits “involve the same claim . . . when they arise from the same transaction or involve a common nucleus of operative facts.”) (cleaned up); Mazzei, 2020 WL 7774492, at *6 (claims considered the same where the same evidence is needed to support both claims and facts essential to second were present in the first).
Stevenson's claims in both the current action and the previous action arise from the passage of Local Law No. 15 in February 2021, and his subsequent ineligibility to run for and hold public office in the June 2021 elections. The claims in both actions include that Local Law No. 15 serves as a bill of attainder, that it is an ex post facto law, that it violates Stevenson's due process and equal protection rights under the Fourteenth Amendment, and that it violates the First Amendment of the U.S. Constitution. See State Court Decision at 2-3; Am. Compl. at ¶¶ 4, 5, 9, 10, 11, 16. Thus, the Amended Complaint plainly “consist[s] of identical claims . . . or claims that were based on the same facts” as the “Counter-claim” in the previous action. Borrani, 2022 WL 837115, at *6; see also Dear v. Board of Elections in City of New York, No. 03-CV-3739 (ERK), 2003 WL 22077679, at *5 (E.D.N.Y. Aug. 25, 2003) (motion to dismiss granted when all issues raised in federal action also raised in state court).
In Dear, the state court issued a written decision and order resolving both procedural and substantive issues. Dear, 2003 WL 22077679, at *5. There, the state court: 1) found that the local law barred plaintiff's candidacy; 2) determined that the local law was not an attempt to enact retroactive legislation, because plaintiff was subject to its prohibitions after filing the designating petition, which occurred after the law took effect; and 3) rejected challenges under the First and Fourteenth Amendments to the U.S. Constitution - the same claims raised in the federal action - as no fundamental rights were impaired. Id., at *5-6. Similarly, here, the state court issued a written decision and order resolving both procedural and substantive issues. It also: 1) found that the local law in question barred Stevenson's candidacy, State Court Decision at 6 (“Respondent Stevenson . . . clearly and undisputedly falls into the category of one who is ineligible to be elected to City Office”); 2) determined that Stevenson was only subject to Local Law No. 15's prohibitions after the law took effect, id. at 7 (finding Local Law No. 15 went into effect February 25, 2021, which was prior to March 2, 2021, the first date to circulate designating petitions, and thus Stevenson was disqualified before he circulated petitions); and 3) rejected any contention that the enactment of Local Law No. 15 was not “a proper exercise of the power and authority of the New York City Council.” Id. at 8.
Additionally, in New York's “transactional approach to res judicata,” a claim can be barred even if it “is based on different legal theories or seeks dissimilar or additional relief.” Borrani, 2022 WL 837115, at *5; see also Operaji v. Municipal Credit Union, 19-CV-4034 (AT) (SN), 2020 WL 2217209, at *3 (S.D.N.Y. Jan. 6, 2020) (precluding federal claim that “seeks additional relief not sought in the state proceeding”), adopted as modified by 2020 WL 1155898 (Mar. 10, 2020). Here, even though his state court “Counter-claim” only sought injunctive and declaratory relief, Stevenson's current claim for monetary damages arises “from the same factual grouping that supported [his] defenses” in the previous action. Borrani, 2022 WL 837115, at *6 (cleaned up). All “essential facts” that concern the claims in the current action were present in the previous action. Mazzei, 2020 WL 7774492, at *6. Therefore, the fact that Stevenson seeks “additional relief” in this action does not prevent the application of res judicata. See, e.g., Borrani, 2022 WL 837115, at *5; Operaji, 2020 WL 2217209, at *3.
In sum, the Amended Complaint should be dismissed because Stevenson's claims are barred by res judicata. See Dear, 2003 WL 22077679, at *7 (“a judgment rendered against a candidate by a New York State proceeding ordinarily will bar that candidate from bringing a subsequent civil rights action in federal court . . .”) (citing Golkin v. Abrams, 803 F.2d 55 (2d Cir. 1986)).
3. Stevenson Failed to State a Claim for Relief
Even if the Court were to reach the merits of his Amended Complaint, Stevenson has not stated a cognizable claim for relief. As a threshold matter, Stevenson has not alleged the personal involvement of any of the three individual Defendants: Mayor de Blasio, the Council Speaker of the City of New York, or the Commissioner of the Board of Elections of the City of New York. “An individual may be held liable under . . . § 1983 only if that individual is personally involved in the alleged deprivation.” Marquez v. Hoffman, No. 18-CV-7315 (ALC), 2021 WL 1226981, at *8 (S.D.N.Y. Mar. 31, 2021) (cleaned up); see also Tangreti, 983 F.3d at 616 (“plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution”) (cleaned up). Because Stevenson alleges no facts in the Amended Complaint that refer to any of the three individual Defendants' involvement in the alleged actions, the motion to dismiss should be granted as against them for failure to state a claim.
The court does not need to reach this issue given the recommended dismissal on res judicata grounds, but for purposes of completeness this brief analysis is provided as an alternative ground for dismissal.
With respect to the City Council of New York, Stevenson has not plausibly stated any constitutional violation for four reasons. First, to state a due process claim, Stevenson would need to allege facts to demonstrate that “state action deprived him of a protected property or liberty interest.” Bal v. Manhattan Democratic Party, No. 16-CV-2416 (PKC), 2018 WL 6528766, at *6 (S.D.N.Y. Dec. 12, 2018) (quoting White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1061-62 (2d Cir. 1993)). However, “[t]he right to hold an elected office is not a right protected by the Fourteenth Amendment . . . [as] [a]n individual has no property or liberty interested in an elected office . . . being elected, or in appearing on a ballot.” Id. at *7 (cleaned up) (collecting cases). Here, the only deprivation of which Stevenson complains concerned his ability to appear on the ballot for the 2021 election in New York City. See Am. Compl. ¶¶ 1, 4, 12-13. Thus, because appearing on a ballot is not a right protected by the Fourteenth Amendment, Stevenson has failed to allege any facts that demonstrate the deprivation of a protected interest. Therefore, Stevenson has not stated a due process claim for relief.
Second, the Equal Protection Clause of the Fourteenth Amendment “is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, Tex v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); see also Harlen Assocs. v. Incorporated Village of Mineola, 273 F.3d 494, 499 (2d Cir. 2001). To state an equal protection claim, a plaintiff must show “(1) adverse treatment compared with similarly situated individuals, and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.” Green Haven Prison Preparative Meeting of Religious Society of Friends v. N.Y. State Dep't of Corrections & Community Supervision, No. 18-CV-8497 (KMK), 2022 WL 902933, at *17 (S.D.N.Y. Mar. 28, 2022) (cleaned up). A plaintiff must also plead “discriminatory intent or purpose.” Id. Here, Stevenson “has not identified any protected class of which he was a member.” Marom v. Town of Greenburgh, No. 13-CV-4733 (NSR), 2015 WL 783378, at *9 (S.D.N.Y. Feb. 23, 2015). Even if he had, his only assertions “concerning selective treatment and bad faith,” id., are that Defendants “us[ed]” Local Law No. 15 to “arbitrarily” remove his name from the ballot and did so “as a way to subterfuge him[.]” Am. Compl. ¶¶ 12, 14. Such claims are, at best, “speculative and conclusory.” Marom, 2015 WL 783378, at *9. Because Stevenson has pleaded no facts beyond conclusory statements to allege either his status in a protected class or any discriminatory intent or purpose on the part of Defendants, he has failed to state an equal protection claim.
As noted above, Stevenson does not refer in his Amended Complaint to the fact that, as is clear from the record in this case, the Board of Elections removed him from the ballot pursuant to a state court order. See supra n.3.
Third, Stevenson fails to adequately plead a First Amendment claim. While “denial of ballot access can effect a deprivation of the First Amendment right to free association[,]” Marchant v. N.Y.C. Bd. Of Elections, No. 13-CV-5493 (KPF), 2013 WL 4407098, at *4 (S.D.N.Y. Aug. 16, 2013), here, the Amended Complaint is “devoid of allegations” that the complained-of conduct at issue was premised on Stevenson's “political affiliation, associational conduct, or even [his] speech.” Farquharson v. Lafayette, No. 19-CV-3446 (NSR), 2020 WL 1699985, at *9 (S.D.N.Y. Apr. 7, 2020). Thus, as in Farquharson, a First Amendment claim has not been adequately alleged.
Fourth and finally, Stevenson has not pleaded facts sufficient to state a claim that Local Law No. 15 operates as a bill of attainder or ex post facto law. “A statute can be a bill of attainder only if (1) it determines guilt and inflicts punishment, (2) upon an identifiable individual, and (3) without provision of the protections of a judicial trial.” Consolidated Edison Co. of New York, Inc. v. Pataki, 292 F.3d 338, 346 (2d Cir. 2002) (cleaned up). Here, Stevenson has not alleged that Local Law No. 15 identifies him or any other individual. On the contrary, no identifiable individual is singled out in the text of the statute. See supra n.4. Likewise, in determining whether a law is barred by the ex post facto clause of the U.S. Constitution, “the fundamental question is whether the legislative aim [of the law] was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation.” Hobbs v. Cnty of Westchester, 397 F.3d 133, 157 (2d Cir. 2005) (cleaned up). Stevenson has pleaded no facts to suggest that the legislature, in its passage of Local Law No. 15, “intended to serve the traditional purposes of punishment, which include retribution, rehabilitation, prevention of further crimes by the defendant, and deterrence of the defendant and others who might contemplate committing similar crimes.” Id. at 158. On the contrary, again, the text of the statute itself plainly “has a rational connection to a nonpunitive purpose” which is to bar individuals from public office who have been convicted of crimes related to misconduct in such office. Id. at 157; see supra n.4. Stevenson has not asserted otherwise.
Thus, even when liberally construing his Amended Complaint under the less stringent standards required for pro se pleadings, Bennett, 425 Fed.Appx. at 80, Stevenson has still not pleaded facts sufficient to “nudge[ ] [his] claims across the line from conceivable to plausible[.]” Twombly, 550 U.S. at 570. Stevenson has therefore failed to state a claim for relief, and the Amended Complaint should be dismissed under Rule 12(b)(6) as well.
C. Leave to Amend
In the Second Circuit, “a pro se complaint should not be dismissed without the Court granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015) (cleaned up). Indeed, the Federal Rules of Civil Procedure mandate that leave to amend should be “freely give[n] . . . when justice so requires.” Fed.R.Civ.P. 15(a)(2).
However, a court may dismiss the claims of a pro se litigant without leave to amend when “the substance of the claim pleaded is frivolous on its face,” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (citing Moorish Sci. Temple v. Smith, 693 F.2d 987, 990 (2d Cir. 1982)), or is “based on an indisputably meritless legal theory.” Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (cleaned up).
Here, Stevenson's claims are barred by the Rooker-Feldman doctrine and res judicata. Therefore, “better pleading will not cure their defects, and granting leave to amend would be futile.” Brady v. IGS Realty Co. L.P., No. 19-CV-10142 (PAE), 19-CV-10622 (PAE), 2020 WL 5414683, at *13 (S.D.N.Y. Sep. 8, 2020) (leave to amend futile when claims barred by Rooker-Feldman doctrine, res judicata, collateral estoppel, or some combination thereof) (cleaned up), affirmed by No. 20-CV-3512, 2021 WL 4302737 (2d Cir. Sep. 22, 2021); see also, e.g., MacKinnon v. City of New York/Human Resources Admin., 580 Fed.Appx. 44, 45 (2d Cir. 2014) (no need to grant pro se litigant leave to amend when dismissal based on res judicata is “substantive” and “better pleading will not cure it”) (cleaned up). Thus, because it would be futile, the Court should not grant Stevenson leave to amend.
III. CONCLUSION
For the foregoing reasons, I recommend that Defendants' motion to dismiss be granted, and the Amended Complaint be dismissed with prejudice.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Analisa Torres, United States Courthouse, 500 Pearl Street, New York, NY 10007. Any requests for an extension of time for filing objections must be directed to Judge Torres.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).