Nyamusevya v. Citimortgage Inc et al
Filing
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INITIAL SCREENING AND REPORT AND RECOMMENDATIONS re 3 Complaint filed by Leonard Nyamusevya. 1 MOTION for Leave to Proceed in forma pauperis is GRANTED. It is RECOMMENDED that the complaint be DISMISSED because it fails to state a claim against any defendant but Citimortgage, Inc. - objection due w/in fourteen (14) days. Signed by Magistrate Judge Mark R. Abel on 10/02/2013. (sr1)
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Leonard Nyamusevya,
Plaintiff
:
Citimortgage, Inc., et al.,
Defendants
Civil Action 2:13-cv-0927
:
v.
:
Judge Graham
:
Magistrate Judge Abel
:
Initial Screening Report and Recommendation
Plaintiff Leonard Nyamusevya brings this action arising out of a state court
foreclosure action. Plaintiff seeks to litigate claims that were or could have been
litigated in the foreclosure action. Plaintiffs' motions to proceed without prepayment of
fees and costs are GRANTED.
This matter is before the Magistrate Judge for screening of the complaint under
28 U.S.C. §1915(e)(2) to identify cognizable claims, and to recommend dismissal of the
complaint, or any portion of it, which is frivolous, malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief from a defendant who is immune
from such relief. See, McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). The
Magistrate Judge finds that the complaint is barred by res judicata. Alternatively, the
complaint fails to state claims for relief against defendants Thomas L. Henderson,
Elizabeth Carrullo, Lerner, Sampson & Rothfuss Law Firm, and Consolata Nkurunziza.
Finally, defendant Judge Charles A. Schneider is immune from suit because the claims
against him arise out of his decision in the state court foreclosure action. Accordingly,
the Magistrate Judge recommends dismissal of the complaint.
The complaint alleges that on September 14, 2010 defendant Citimortgage, Inc.
filed a foreclosure action against defendant plaintiff Leonard Nyamusevya, the owner
of residential real estate located at 2064 Worcester Court, Columbus, Ohio 43232. On
October 14, 2010, Nyamusevya filed an answer and counterclaim. The counterclaim
pleaded claims for negligence, wanton and reckless conduct, conversion, violation of
the Consumer Sales Practices Act, and emotional distress. On July 10, 2013, Franklin
County Common Pleas Court Judge Charles A. Schneider granted Citimortgage's
motion for summary judgment on the note and mortgage. He held that Nyamusevya
owes $98,452.56 on the note with interest at the rate of 6.25% per year from May 1, 2010
and that he is in default on the note.
Nyamusevya's federal complaint pleads claims for recoupment and set-off; to
quiet title; RESPA violations; breach of contract; failure to investigate claims;
promissory fraud; professional code violations; fraud and forgery; violations of the
FDCPA; violations of civil RICO; and claims under 42 U.S.C. §§ 1981, 192, 1983, 1985
and 1986.
When considering whether a complaint fails to state a claim under Rule 12(b)(6),
Federal Rules of Civil Procedure, a court must construe it in the light most favorable to
the plaintiff and accept all well-pleaded material allegations in the complaint as true.
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Roth Steel Products v. Sharon Steel Corp., 705
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F.2d 134, 155 (6th Cir. 1983). Rule 8(a), Federal Rules of Civil Procedure provides for
notice pleading. Conley v. Gibson, 355 U.S. 41, 47 (1957). The United States Supreme
Court held in Erickson v. Pardus, 127 S.Ct. 2197 (June 4, 2007):
. . . Rule 8(a)(2) requires only "a short and plain statement of the claim
showing that the pleader is entitled to relief." Specific facts showing that
the pleader is entitled to relief are not necessary; the statement need only
"'give the defendant fair notice of what the . . . claim is and the grounds
upon which it rests.': Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127
S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957).
Moreover, pro se prisoner complaints must be liberally construed. Erickson v. Pardus,
above; Hughes v. Rowe, 449 U.S. 5, 9-10 (1980).
Analysis. The only defendant against who any actionable claims are pleaded
Defendants Henderson, Carrullo, and Lenrner, Sampson & Rothfull Law Firm merely
represented Citimortgage in the foreclosure action. Consolata Nkurunziza was
Nyamusevya's wife. She signed the promissory note but did not engage in any
actionable conduct that harmed Nyamusevya. Judge Schneider is the trial judge in the
case. A judge performing judicial duties is absolutely immune from suit seeking
monetary damages. Mireles v. Waco, 502 U.S. 9, 9-10 (1991); Barnes v. Winchell, 105 F.3d
1111, 1115 (6th Cir. 1997); Collyer v. Darling, 98 F.3d 211, 221 (6th Cir. 1996). Judges are
immune from suit even if they act erroneously, corruptly or in excess of their
jurisdiction. Mireles, 502 U.S. at 11; Barnes, 105 F.3d at 1115-16. Consequently, Judge
Schneider is immune from suit.
As to the claims against Citimortgage, they have been adjudicate or could have
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been adjudicated in the foreclosure suit. The granted Citimortgage's motion for
summary judgment, but that case was removed to this court, apparently before
judgment was entered. A magistrate judge has recommended dismissal of the
foreclosure action as improvidently removed from the common pleas court.
Citimortgage, Inc. v. Nyamusevya, 2:13-cv-0680, July 17, 2013 Report and
Recommendation, Doc. 5. Any claims Nyamusevya has against Citimortgage should be
litigated in the common pleas court foreclosure action.
Accordingly, the Magistrate Judge RECOMMENDS that the complaint be
DISMISSED because it fails to state a claim against any defendant but Citimortgage, Inc.
All claims age Citimortgage, Inc. were or should have been litigated in the state court
foreclosure action. Defendants do not have to respond to the complaint unless the Court
rejects this Report and Recommendation.
IT IS FURTHER ORDERED that plaintiff's application to proceed without
prepayment of fees be GRANTED. The United States Marshal is ORDERED to serve
upon each defendant named in the complaint a copy of the complaint and a copy of this
Order.
If any party objects to this Report and Recommendation, that party may, within
fourteen (14) days, file and serve on all parties a motion for reconsideration by the
Court, specifically designating this Report and Recommendation, and the part thereof
in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),
Fed. R. Civ. P.
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The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District
Judge and waiver of the right to appeal the judgment of the District Court. Thomas v.
Arn, 474 U.S. 140, 150-52 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See
also, Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).
The Clerk of Court is DIRECTED to mail a copy of the complaint and this Report
and Recommendation to each defendant.
s/Mark R. Abel
United States Magistrate Judge
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