Nunez v. Fraser

Background

Javier Nunez, proceeding without a lawyer and without paying filing fees, filed a second amended complaint against Nicole Fraser, Olivia Giegerich, Mark Simon, and Pacheco. The opinion describes Fraser as an employee with the “Human Resources Administration N.Y.C. Employment Agency,” Giegerich as a therapist supervisor, Simon as a therapist, and Pacheco as a police officer.

Nunez alleged that events beginning in 2018 involved his attempts to obtain help from a mental-health clinic, an alleged forced ambulance transport and hospitalization, and treatment by police when he tried to report identity theft. He also alleged that Fraser forced him out of his home and failed to provide services to his father. He sought at least $75,000 to obtain a lease for the Manhattan apartment from which he had been evicted.

Nunez’s first amended complaint sought damages under 42 U.S.C. § 1983, a federal civil-rights statute. The court had previously directed him to amend because the pleading did not adequately allege constitutional violations or the defendants’ personal involvement, two defendants were private actors, some allegations concerned actions involving Nunez’s father, and the § 1983 claims appeared untimely. In the second amended complaint, Nunez instead invoked diversity jurisdiction for state-law claims.

Rulings

The court dismissed the § 1983 claims. It stated that the claims were untimely and that, even if they were timely, Giegerich and Simon could not be held liable under § 1983 because they were private actors. The court dismissed the state-law claims brought under diversity jurisdiction for the same reasons given in its earlier dismissal of a related case.

The court also dismissed claims arising from the Housing Court matter under the Rooker-Feldman doctrine. That doctrine prevents federal district courts from hearing cases that effectively ask them to review or overturn state-court judgments. The court concluded that the second amended complaint sought to obtain the lease to the apartment from which Nunez had been evicted after Housing Court proceedings.

Further Amendment and Filing Restriction

The court denied further leave to amend, meaning it would not allow Nunez to file a third amended complaint. It reasoned that he had already received an opportunity to correct the pleading’s defects and that those defects could not be cured by another amendment.

The court ordered Nunez to show cause within 30 days, by declaration, why he should not be barred from filing future actions in that court without paying filing fees when they arise from the eviction and related matters, unless he first obtains permission from the court. The order did not itself impose that filing restriction; it gave Nunez notice and an opportunity to explain why it should not be imposed. The court stated that the restriction would follow if he failed to submit the declaration on time or failed to show good cause.

Disposition

Judge Laura Taylor Swain dismissed Nunez’s complaint under 28 U.S.C. § 1915(e)(2)(B)(ii), terminated all pending applications for relief, and ordered the 30-day response to the show-cause order. The court certified that an appeal would not be taken in good faith and denied fee-free status for purposes of an appeal.