20-3676-cv Komatsu v. City of New York UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3 20th day of December, two thousand twenty-one. 4 5 Present: 6 DEBRA ANN LIVINGSTON, 7 Chief Judge, 8 SUSAN L. CARNEY, 9 JOSEPH F. BIANCO, 10 Circuit Judges. 11 _______________________________________ 12 13 TOWAKI KOMATSU, 14 15 Plaintiff-Appellant, 16 17 v. 20-3676-cv 18 19 CUBESMART, DANIELS NORELLI CECERE & TAVEL 20 PC, URBAN PATHWAYS, INC., RONALD ABAD, 21 MARILYN ANDZESKI, ALLISON HEILBRAUN, LISA 22 LOMBARDI, KISHEA PAULEMONT, FREDERICK 23 SHACK, NANCY SOUTHWELL, ERIC TAVEL, 24 25 Defendants-Appellees, 26 27 STEVEN BANKS, KRISTIN BENJAMIN-SOLIS, CITY OF 28 NEW YORK, SHARON COATES, MARIN GERBER, 29 JEFFREY MOSCZYC, ANN MARIE SCALIA, AVRAHAM 30 SCHMEIDLER AND BRENDA S. SPEARS, in her official 31 capacity as a New York City Housing Court judge 32 assigned to the Bronx Housing Court, NANCY M. 33 BANNON, THE NEW YORK STATE OFFICE OF COURT 1 ADMINISTRATION, THE NEW YORK STATE UNIFIED 2 COURT SYSTEM OF THE STATE OF NEW YORK AND 3 WENDELL VAUGHAN, 4 5 Defendants. 6 _______________________________________ 7 8 For Plaintiff-Appellant: Towaki Komatsu, pro se, 9 Bronx, NY. 10 11 For Defendants-Appellees: No appearance.

12 Appeal from a judgment of the United States District Court for the Southern District of

13 New York (Stanton, J.).

14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

15 DECREED that the judgment of the district court is AFFIRMED.

16 Plaintiff-Appellant Towaki Komatsu (“Komatsu”), proceeding pro se, appeals the district

17 court’s October 22, 2020 judgment sua sponte dismissing his amended complaint pursuant to 28

(e)(2). Komatsu sued a storage company, his landlord, the New York state court

19 system, the City of New York (the “City”), and nearly twenty individuals, alleging that these

20 defendants violated his contractual, statutory, and constitutional rights under state and federal law

21 when (1) his landlord, Urban Pathways, Inc. (“Urban”), changed his residential lease, forcing him

22 to live with a violent roommate, and then wrongfully sued him for unpaid rent; (2) the New York

23 City Human Resources Administration (“HRA”) stopped paying rent on his storage unit; and

24 (3) he received adverse rulings in related state agency and court proceedings. Komatsu sought

25 damages and injunctive relief, including an order transferring pending state lawsuits to federal

26 court. For the below reasons, we affirm the district court’s dismissal of Komatsu’s amended

27 complaint and the court’s denial of leave to amend. We assume the parties’ familiarity with the

28 underlying facts, the procedural history of the case, and the issues on appeal.

2 1 * * *

2 We review de novo a district court’s sua sponte dismissal under Section 1915(e)(2).

3 Hardaway v. Hartford Pub. Works Dep’t,

(2d Cir. 2018). The denial of leave

4 to amend is reviewed de novo when it is “based on an interpretation of law, such as futility.” Allen

5 v. Credit Suisse Sec. (USA) LLC,

(2d Cir. 2018) (internal quotation marks

6 omitted). “We liberally construe pleadings and briefs submitted by pro se litigants, reading such

7 submissions to raise the strongest arguments they suggest.” McLeod v. Jewish Guild for the Blind,

8

(2d Cir. 2017) (per curiam) (alteration omitted).

9 Under Section 1915(e), the district court must dismiss a complaint filed in forma pauperis

10 if it determines that the action “(i) is frivolous or malicious; (ii) fails to state a claim on which

11 relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such

12 relief.” § 1915(e)(2)(B). To avoid dismissal, a complaint must plead “enough facts to state a

13 claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

(2007).

14 The district court properly dismissed Komatsu’s amended complaint because it failed to state a

15 plausible claim.

16 Although Komatsu is correct that the district court misstated the HRA’s purported reason

17 for insisting that Komatsu was ineligible for payment of storage expenses, that error had no bearing

18 on the district court’s decision to dismiss his amended complaint. Komatsu also asserts that the

19 district court misstated the procedural posture of his state court actions, but the posture did not

20 affect the court’s evaluation of any claim.

21 Komatsu next argues that the judicial defendants are not entitled to immunity because their

22 actions violated his rights. However, “[a] judge will not be deprived of immunity because the

3 1 action he took was in error, was done maliciously, or was in excess of his authority[,] [but] . . . only

2 when he has acted in the clear absence of all jurisdiction.” Stump v. Sparkman,

,

3 356–57 (1978) (internal quotation marks omitted). Komatsu did not plead facts showing that the

4 judicial defendants lacked jurisdiction when taking the actions alleged in the complaint.

5 Komatsu further argues that the district court erred in determining that Urban was not a

6 state actor, and was thus not subject to

liability. As the district court held, a

7 private entity does not engage in state action for the purposes of Section 1983 merely because it

8 acted pursuant to a public contract. See Rendell-Baker v. Kohn,

(1982) (“Acts

9 of . . . private contractors do not become acts of the government by reason of their significant or

10 even total engagement in performing public contracts.”). Komatsu asserts that the HRA was

11 likely involved in Urban’s misconduct, or engaged in a conspiracy with it, but he does not point to

12 any facts in the complaint from which the district court could have arrived at the conclusion that

13 his assertions were supported by a plausible claim. Likewise, Komatsu argues that the district

14 court erred in concluding that he had not adequately pleaded that he was harmed pursuant to City

15 policy, practice, or custom (as required to state a claim against a municipality under Section 1983),

16 but he does not identify any facts in the complaint from which the existence of such a policy,

17 practice, or custom could plausibly be inferred. See Monell v. Dep’t of Soc. Servs. of City of New

U.S. 658, 690–91 (1978).

19 The district court did not address Komatsu’s request to remove pending state court

20 proceedings to federal court. But such requests must be made through a notice of removal, not a

21 complaint in a new case. See

. In any event, Komatsu had already missed the

22 30-day deadline for removal by the time he initiated this action in August 2020. See

4 1 § 1446(b)(1). Although Komatsu argues that the district court had authority to intervene in state

2 court proceedings under an exception to the Younger doctrine, see Younger v. Harris,

,

3 43–44 (1971), that argument is misplaced because the district court did not deny any relief based

4 on that doctrine.

5 To the extent that Komatsu seeks review of other issues related to the dismissal, we decline

6 to consider them because they are not adequately argued in his appellate brief. See Norton v.

7 Sam’s Club,

(2d Cir. 1998) (“Issues not sufficiently argued in the briefs are

8 considered waived and normally will not be addressed on appeal.”); LoSacco v. City of

9 Middletown,

, 92–93 (2d Cir. 1995) (pro se litigant abandons issue by failing to address

10 it in his appellate brief).

11 A pro se plaintiff should be “grant[ed] leave to amend at least once when a liberal reading

12 of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu,

13

(2d Cir. 2000) (internal quotation marks omitted). The district court did not err

14 in denying leave to amend here because amendment would have been futile.

15 Finally, the lack of service of the amended complaint was harmless because the district

16 court dismissed the amended complaint on other grounds. Komatsu’s judicial bias claim fails

17 because it is based entirely on the district court’s adverse rulings. Chen v. Chen Qualified

18 Settlement Fund,

(2d Cir. 2009).

19 * * *

20

21

5 1 We have considered Plaintiff-Appellant Komatsu’s remaining arguments and find them to

2 be without merit. We AFFIRM the judgment of the district court.

3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk of Court

6