Opinion
22-2700
01-17-2024
Michael Angelo Ojeda, Carmen Rosa Torres Ojeda, Plaintiffs-Appellants, v. Alfonso Mendez, Police Officer, Badge #7899, Police Benevolent Association, Bill De Blasio, Mayor, City of New York, State of New York, Bonita E Zelman, Esq., Seth A Harris, Esq., Felix W Ortiz, Assembly Member, New York State Assembly District Office, City of New York, New York Police Department, Internal Affairs Bureau, Zaki Isaac Tamir, Esq., Clark Pena, Sylvia Ash, Arrested ex-Judge, Dawn Jimenez-Salta, Judge, Supreme Court of Kings County, Clerk's Office, Court Administration, Mitu Maruf, AKA Maruf Alam, c/o Felix Ortiz, New York City Department of Consumer Affairs, State of New York, Defendants-Appellees.
FOR PLAINTIFFS-APPELLANTS: MICHAEL ANGELO OJEDA (CARMEN ROSA TORRES OJEDA, ON THE BRIEF), PRO SE, BROOKLYN, NY. FOR DEFENDANT-APPELLEE HARRIS: JUDITH F. STEMPLER, HARRIS KEENAN & GOLDFARB PLLC, NEW YORK, NY. FOR DEFENDANT-APPELLEE ZELMAN: MARIAN C. RICE, L'ABBATE, BALKAN, COLAVITA &CONTINI, L.L.P., MELVILLE, NY. FOR DEFENDANTS-APPELLEES ORTIZ, ASH, DAVID LAWRENCE III, JIMINEZ-SALTA, AND STATE OF NEW YORK: ASSISTANT SOLICITOR GENERAL (BARBARA D. UNDERWOOD, SOLICITOR GENERAL, ESTER MURDUKHAYEVA, DEPUTY SOLICITOR GENERAL, ON THE BRIEF), FOR LETITIA JAMES, ATTORNEY GENERAL OF THE STATE OF NEW YORK, NEW YORK, NY. FOR DEFENDANT-APPELLEE POLICE JOHN J.P. HOWLEY, THE BENEVOLENT ASSOCIATION: HOWLEY LAW FIRM P.C., NEW YORK, NY. FOR DEFENDANTS-APPELLEES DE BLASIO, KARIN WOLFE, (CLAUDE MENDEZ, AND CITY OF NEW YORK: S. PLATTON, ON THE BRIEF), ASSISTANT CORPORATION COUNSEL, FOR SYLVIA O. HINDS-RADIX, CORPORATION COUNSEL OF THE CITY OF NEW YORK, NEW YORK, NY. FOR DEFENDANTS-APPELLEES OFFICE OF PEDRO MORALES, OFFICE OF COURT ADMINISTRATION, SUPREME COURT COURT ADMINISTRATION, OF KINGS COUNTY CLERK'S OFFICE: COUNSEL'S OFFICE, NEW YORK STATE UNIFIED COURT SYSTEM, NEW YORK, NY.
UNPUBLISHED OPINION
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 17th day of January, two thousand twenty-four.
Appeal from a judgment of the United States District Court for the Eastern District of New York (Eric Komitee, Judge).
FOR PLAINTIFFS-APPELLANTS: MICHAEL ANGELO OJEDA (CARMEN ROSA TORRES OJEDA, ON THE BRIEF), PRO SE, BROOKLYN, NY.
FOR DEFENDANT-APPELLEE HARRIS: JUDITH F. STEMPLER, HARRIS KEENAN & GOLDFARB PLLC, NEW YORK, NY.
FOR DEFENDANT-APPELLEE ZELMAN: MARIAN C. RICE, L'ABBATE, BALKAN, COLAVITA &CONTINI, L.L.P., MELVILLE, NY.
FOR DEFENDANTS-APPELLEES ORTIZ, ASH, DAVID LAWRENCE III, JIMINEZ-SALTA, AND STATE OF NEW YORK: ASSISTANT SOLICITOR GENERAL (BARBARA D. UNDERWOOD, SOLICITOR GENERAL, ESTER MURDUKHAYEVA, DEPUTY SOLICITOR GENERAL, ON THE BRIEF), FOR LETITIA JAMES, ATTORNEY GENERAL OF THE STATE OF NEW YORK, NEW YORK, NY.
FOR DEFENDANT-APPELLEE POLICE JOHN J.P. HOWLEY, THE BENEVOLENT ASSOCIATION: HOWLEY LAW FIRM P.C., NEW YORK, NY.
FOR DEFENDANTS-APPELLEES DE BLASIO, KARIN WOLFE, (CLAUDE MENDEZ, AND CITY OF NEW YORK: S. PLATTON, ON THE BRIEF),
ASSISTANT CORPORATION COUNSEL, FOR SYLVIA O. HINDS-RADIX, CORPORATION COUNSEL OF THE CITY OF NEW YORK, NEW YORK, NY.
FOR DEFENDANTS-APPELLEES OFFICE OF PEDRO MORALES, OFFICE OF COURT ADMINISTRATION, SUPREME COURT COURT ADMINISTRATION, OF KINGS COUNTY CLERK'S OFFICE: COUNSEL'S OFFICE, NEW YORK STATE UNIFIED COURT SYSTEM, NEW YORK, NY.
PRESENT: GERARD E. LYNCH, WILLIAM J. NARDINI, SARAH A. L. MERRIAM, CIRCUIT JUDGES.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Appellants Michael and Carmen Ojeda (the "Ojedas"), a married couple proceeding pro se, brought this action against a number of politicians, judges, lawyers, and city and state agencies regarding an alleged racketeering and civil rights conspiracy, which was purportedly organized to shield the city and state from liability following the death of the Ojedas' daughter in 2010. The United States District Court for the Eastern District of New York (Eric Komitee, Judge) sua sponte dismissed several defendants because they were immune from suit and dismissed various claims premised on statutes that did not provide private rights of action. Following motions to dismiss, the district judge adopted the magistrate judge's report and recommendation and concluded that the remaining federal claims under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1964(c), and 42 U.S.C. § 1983 were time-barred or otherwise failed to state a claim. The district court declined to exercise supplemental jurisdiction. Accordingly, the district court entered judgment on October 3, 2022. We assume the parties' familiarity with the case.
I. Standard of Review
We review a dismissal for failure to state a claim de novo, including when dismissal is based on the statute of limitations. See Vengalattore v. Cornell Univ., 36 F.4th 87, 101 (2d Cir. 2022); A.Q.C. ex rel. Castillo v. United States, 656 F.3d 135, 140 (2d Cir. 2011). A complaint survives a motion to dismiss if the facts, taken as true and with all reasonable inferences drawn in the plaintiff's favor, state a plausible claim upon which relief could be granted. See MacNaughton v. Young Living Essential Oils, LC, 67 F.4th 89, 95 (2d Cir. 2023). While "the lapse of a limitations period is an affirmative defense that a defendant must plead and prove," a defendant may raise that defense in a 12(b)(6) motion, and a court may dismiss on that ground, if the "complaint clearly shows the claim is out of time." Whiteside v. Hover-Davis, Inc., 995 F.3d 315, 319 (2d Cir. 2021) (internal quotation marks, brackets, and citations omitted).
Pro se submissions are reviewed with "special solicitude," and "must be construed liberally and interpreted to raise the strongest arguments that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks, citation, and emphasis omitted).
II. Claims and Defendants Preserved on Appeal
On appeal, the Ojedas do not address many of the district court's grounds for dismissing certain defendants and claims across its two dismissal orders. Their brief principally argues that corruption is rampant in government, that the continuing wrong doctrine should toll the statute of limitations for their RICO and § 1983 claims (based on New York state law), and that their case should have been transferred to the Southern District of New York. Accordingly, they have forfeited challenges to the district court's conclusions with respect to certain defendants' immunity from suit and whether certain statutes provide a private cause of action. See Gerstenbluth v. Credit Suisse Sec. (USA) LLC, 728 F.3d 139, 142 n.4 (2d Cir. 2013) (concluding that, despite latitude afforded to him, pro se litigant abandoned argument by only mentioning "substance of the District Court's ruling . . . obliquely and in passing").
The remaining causes of action, liberally construed, are civil RICO, § 1983, and state law claims for negligence and intentional infliction of emotional distress, against Officer Mendez, Mayor de Blasio, the City of New York, the Police Benevolent Association, and attorneys Zelman and Harris.
III. Civil RICO
We agree with the district court that the Ojedas' civil RICO claims are time-barred. A civil RICO claim must be brought within four years of accrual, which occurs "when the plaintiff discovers or should have discovered the RICO injury." Cohen v. S.A.C. Trading Corp., 711 F.3d 353, 361 (2d Cir. 2013) (internal quotation marks and citation omitted). Based on the allegations in their amended complaint, the Ojedas' RICO injury accrued in 2012, when they allegedly discovered that the City was retaliating against them by fining Michael Ojeda's towing company under false pretenses. Accordingly, the statute of limitations expired in 2016, well before their 2020 complaint was filed.
The district court also correctly determined that the statute of limitations should not be extended. The doctrine of equitable tolling does not apply here because the Ojedas have not alleged that any of the defendants prevented the Ojedas from timely filing their complaint. See Abbas v. Dixon, 480 F.3d 636, 642 (2d Cir. 2007). Their argument that orders from the district judge and magistrate judge constitute "continuing . . . wrongs" that extend the statute of limitations, see Appellants' Br. at 22, fails because neither the district judge nor the magistrate judge is a defendant.
Accordingly, the district court properly dismissed the Ojedas' civil RICO claims.
IV. Section 1983
We also agree with the district court that the § 1983 claims are time-barred. Claims arising under § 1983 in New York have a three-year statute of limitations, Lucente v. County of Suffolk, 980 F.3d 284, 308 (2d Cir. 2020), which starts "running from the time a plaintiff knows or has reason to know of the injury giving rise to the claim," Milan v. Wertheimer, 808 F.3d 961, 963 (2d Cir. 2015) (internal quotation marks and citation omitted). Here, the Ojedas knew or had reason to know of their § 1983 injury from Officer Mendez and the City of New York in 2010. The limitations period for those claims expired in 2013, seven years before the filing of their complaint. As for any § 1983 claims against Mayor de Blasio, the statute of limitations expired in 2017 at the latest. This is because the Ojedas' claims against Mayor de Blasio were based solely on his role as the New York City Public Advocate-a position he held before his election to Mayor of New York in 2013. Additionally, the Ojedas' arguments regarding equitable tolling and continuing wrongs are unavailing for the same reasons described above.
To the extent that the Ojedas asserted § 1983 claims against the Police Benevolent Association and attorneys Zelman and Harris, they fail due to lack of state action, which requires both "the exercise of some right or privilege created by the State" and the "involvement of a person who may fairly be said to be a state actor." Meadows v. United Servs., Inc., 963 F.3d 240, 243 (2d Cir. 2020) (internal quotation marks omitted).
Accordingly, the Ojedas' § 1983 claims were properly dismissed.
V. Venue
The Ojedas appear to argue that their case should have been transferred to the Southern District of New York, not the Eastern District of New York, from the District of Arizona (where it was originally filed). However, they failed to preserve that challenge because they did not seek a transfer in district court. Cf. SongByrd, Inc. v. Estate of Grossman, 206 F.3d 172, 177 (2d Cir. 2000) (holding that a motion for a retransfer is required to preserve an objection to an improper transfer for appeal). Regardless, venue was proper in the Eastern District of New York as "a substantial part of the events or omissions giving rise to the claim occurred" there. 28 U.S.C. § 1391(b)(2).
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We have considered the Ojedas' remaining arguments and find them unpersuasive. Accordingly, we AFFIRM the judgment of the district court.