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 NO TATION “SUMMARY ORDER”). A PARTY CITING 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 1 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2 2 0 th day of December , two thousand twenty

- one

. 3 4 Present : 5 D EBRA A NN L IVINGSTON , 6 Chief Judge
, 7 S USAN L. C ARNEY , 8 J OSEPH F. B IANCO , 9 Circuit Judges. 10

_____________________________________ __ 11 12 T OWAKI K OMATSU , 13 14 Plaintiff

- Appellant
, 15 16

v. 20

- 3676

- cv 17 18 C UBESMART , D ANIELS N ORELLI C ECERE & T AVEL 19 PC, U RBAN P ATHWAYS , I NC ., R ONALD A BAD , 20 M ARILYN A NDZESKI , A LLISON H EILBRAUN , L ISA 21 L OMBARDI , K ISHEA P AULEMONT , F REDERICK 22 S HACK , N ANCY S OUTHWELL , E RIC T AVEL , 23 24 Defendants

- Appellees
, 25 26 S TEVEN B ANKS , K RISTIN B ENJAMIN

- S OLIS , C ITY OF 27 N EW Y ORK , S HARON C OATES , M ARIN G ERBER , 28 J EFFREY M OSCZYC , A NN M ARIE S CALIA , A VRAHAM 29 S CHMEIDLER AND B RENDA S. S PEARS , in her official 30 capacity as a New York City Housing Court judge 31 assigned to the Bronx Housing Court
, N ANCY M. 32 B ANNON , T HE N EW Y ORK S TATE O FFICE OF C OURT 332 A DMINISTRATION , T HE N EW Y ORK S TATE U NIFIED 1 C OURT S YSTEM OF THE S TATE OF N EW Y ORK AND 2 W ENDELL V AUGHAN , 3 4 Defendants

. 5

_________________________________ __ ____ 6 7 For Plaintiff

- Appel lant : Towaki Komatsu, pro se , 8 Bronx, NY

. 9 10 For Defendants

- Appellees : No appearance

. 11
Appeal from a judgment of the United States District Court for the Southern District of 12

New York ( Stanton
, J

. )

. 13

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

DECREED that the judgment of the district court is AFFIRMED

. 15

Plaintiff

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

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

U

. S.C. § 1915(e)(2). Komatsu sued a storage company, his landlord, the New York state court 18
system, the City of New York (the “City”) , and nearly twenty individuals, alleging that these 19

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

when (1) his landlord, Urban Pathways, Inc. (“Urban”)
, changed his residential lease , forcing him 21
to live with a violent roommate, and then wrongfully sued him for unpaid rent; (2) the N ew York 22
City Human Resources Administration (“HRA”) stopped paying rent on his storage unit; and 23
(3) he received adverse rulings in related state agency and court proceedings. Komatsu sought 24
damages and injunctive relief, including an order transferring pending state lawsuits to federal 25

court. For the below reasons, we affirm the district court’s dismissal of Komatsu’s amended 26
complaint and the court’s denial of leave to amend. We assume the parties’ familiarity with the 27
underlying facts, the procedural history of the case, and the issues on appeal. 283 * * * 1

We review de novo a district court’s sua sponte dismissal under Section 1915(e)(2). 2
Hardaway v. Hartford Pub. Works Dep’t , 879 F.3d 486, 489 (2d Cir. 2018). The denial of leave 3

to amend is reviewed de novo when it is “based on an interpretation of law, such as futility.” Allen 4
v. Credit Suisse Sec. (USA) LLC , 895 F.3d 214, 227 (2d Cir. 2018) (internal quotation marks 5

omitt ed). “We liberally construe pleadings and briefs submitted by pro se litigants, reading such 6
submissions to raise the strongest arguments they suggest

. ” McLeod v. Jewish Guild for the Blind
, 7
864 F.3d 154, 156 (2d Cir. 2017) (per curiam) ( alteration omitted)

. 8

Under Section 1915(e), the district court must dismiss a complaint filed in forma pauperis 9
if it determines that the action “(i) is frivolous or malicious; (ii) fails to state a claim on which 10
relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such 11

relief.” § 1915(e)(2)(B). To avoid dismissal, a complaint must plead “enough facts to state a 12
claim to relief that is plausible on its face.” Bell A tl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). 13
The district court properly dismissed Komatsu’s amended complaint because it failed to state a 14
plausible claim. 15
Although Komatsu is correct that the district court misstated the HRA’s purported reason 16

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

on the district court’s decision to dismiss his amended complaint. Komatsu also asserts that the 18
district court misstated the procedural posture of his state court actions, but the posture did not 19
affect the court’s evaluation of any claim

. 20

Komatsu next argues that the judicial defendants are not entitled to immunity because their 21
actions violated his rights. However, “[a] judge will not be deprived of immunity because the 224 action he took was in error, was done maliciously, or was in excess of his authority [,] [ but ]

. . . only 1
when he has acted in the clear absence of all jurisdiction.” Stump v. Sparkman , 435 U.S. 349, 2

3 56

– 57 (1978) (internal quotation m arks omitted). Komatsu did not plead facts showing that the 3
judicial defendants lacked jurisdiction when taking the actions alleged in the complaint. 4
Komatsu further argues that the district court erred in determining that Urban was not a 5

state actor, a nd was thus not subject to 42 U.S.C. § 1983 liability. A s the district court held, a 6
private entity does not engage in state action for the purposes of Section 1983 merely because it 7
acted pursuant to a public contract. See Rendell

- Baker v. Kohn , 457 U.S. 830, 841 (1982) (“Acts 8

of

. . . private contractors do not become acts of the government by reason of their significant or 9
even total engagement in performing public contracts. ”). Komatsu asserts that the HRA was 10
likely involved in Urban’s misconduct , or engaged in a conspiracy with it, but he does not point to 11
any facts in the complaint from which the district court could have arrived at the conclusion that 12
his assertions were supported by a plausible claim

. Likewise, Komatsu argues that the distric t 13
court erred in concluding that he had not adequately pleaded that he was harmed pursuant to City 14
policy, practice, or custom (as required to state a claim against a municipality under Section 1983), 15
but he does not identify any facts in the complaint fro m which the existence of such a policy, 16
practice, or custom could plausibly be inferred. See Monell v. Dep ’ t of Soc. Servs. of City of New 17

York , 436 U.S. 658, 690

– 91 (1978)

. 18
The district court did not address Komatsu’s request to remove pending state court 19
proceedings to federal court. But such requests must be made through a notice of removal, not a 20
complaint in a new case. See 28 U.S.C. § 1446. In any event, Komatsu had a lready missed the 21

30

- day deadline for removal by the time he initiated this action in August 2020. See id. 225 § 1446(b) (1)

. Although Komatsu argues that the district court had authority to intervene in state 1
court proceedings under an exception to the Young er doctrine, see Younger v. Harris , 401 U.S. 37, 2

43

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

on that doctrine. 4

To the extent that Komatsu seeks review of other issues related to the dismissal, we decline 5
to consider them because they are not adequately argued in his appellate brief. See Norton v. 6

Sam’s Club , 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficient ly argued in the briefs are 7
considered waived and normally will not be addressed on appeal.” ); LoSacco v. City of 8

Middletown , 71 F.3d 88, 92

– 93 (2d Cir. 1995) ( pro se litigant abandons issue by failing to address 9
it in his appellate brief ). 10

A pro se plaint iff should be “grant[ed] leave to amend at least once when a liberal reading 11
of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu
, 12
222 F.3d 99, 112 (2d Cir. 2000) (internal quotation marks omitted). The district court did not err 13

in d enying leave to amend here because amendment would have been futile. Id. 14
Finally, the lack of service of the amended complaint was harmless because the district 15
court dismissed the amended complaint on other grounds. Komatsu’s judicial bias claim fails 16
because it is based entirely on the district court’s adverse rulings. Chen v. Chen Qualified 17

Settlement Fund , 552 F.3d 218, 227 (2d Cir. 2009 ). 18

* * * 19

20

216 We have considered Plaintiff

- Appellant Komatsu’s remaining argument s and find them to 1

be without merit

. W e AFFIRM the judgment of the district court. 2

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