17-1659
Carnivale v. The 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.

       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 13th day of February, two thousand eighteen.

PRESENT:           PIERRE N. LEVAL,
                   GUIDO CALABRESI,
                   JOSÉ A. CABRANES,
                          Circuit Judges.


DAVID JOHN CARNIVALE,

                             Plaintiff-Appellant,                   17-1659

                             v.

THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF FINANCE,

                             Defendants-Appellees.


FOR PLAINTIFF-APPELLANT:                                 David John Carnivale, pro se, Staten
                                                         Island, New York.


FOR DEFENDANTS-APPELLEES:                                Andrew G. Lipkin, Joshua M. Sivin,
                                                         Andrea M. Chan, of Counsel, for Zachary
                                                         W. Carter, Corporation Counsel of the
                                                         City of New York, New York, New York.

       Appeal from a judgment of the United States District Court for the Eastern District of New
York (William F. Kuntz, Judge.).

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     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED.

         Appellant David John Carnivale, proceeding pro se, appeals from the District Court’s
judgment dismissing his 42 U.S.C. ' 1983 complaint. Carnivale sued the City of New York and the
New York City Department of Finance (“the defendants”) for violations of his Fourth, Fifth, and
Fourteenth Amendment rights, seeking an injunction capping the amount that the defendants could
raise his property taxes. He alleged that from 2006 to 2016, the defendants had applied certain tax
exemptions to his property, although they knew that he had inherited the property and did not
personally qualify for the exemptions. In 2016, they removed the exemptions, causing his quarterly
property tax bill to become prohibitively high. The District Court sua sponte dismissed the action
without prejudice for lack of subject matter jurisdiction, reasoning that the Tax Injunction Act, 28
U.S.C. § 1341, prohibits district courts from exercising jurisdiction over an attempt by a plaintiff to
prevent the state from collecting taxes when there is a remedy available in the state courts. On
appeal, Carnivale argues that the District Court erred by dismissing the action. He also moves to
enjoin the defendants from seizing or placing a lien on his property until the conclusion of this
litigation. We assume the parties’ familiarity with the underlying facts, the procedural history of the
case, and the issues on appeal.

         We review de novo the District Court’s dismissal of a complaint for lack of subject matter
jurisdiction. Norex Petroleum Ltd. v. Access Indus., Inc., 631 F.3d 29, 32 (2d Cir. 2010). The plaintiff
bears the burden of proving that subject matter jurisdiction exists by a preponderance of the
evidence. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

       Here, upon such de novo review, we conclude that the District Court properly dismissed
Carnivale’s claims. We affirm for substantially the reasons stated by the District Court in its
thorough April 24, 2017 decision.

       We have considered Carnivale’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the District Court. Furthermore, we DENY as moot
Carnivale’s motion to enjoin the defendants from seizing or placing a lien on his property until the
conclusion of this litigation.



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




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