09-1933-cv
Johnson v. James


                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH TH IS CO URT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 8 th day of February, two thousand ten.

PRESENT:            GUIDO CALABRESI,
                    REENA RAGGI,
                    RICHARD D. CUDAHY,*
                             Circuit Judges.

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THEODORE F. JOHNSON,
                                                   Plaintiff-Appellant,
                               v.                                                        No. 09-1933-cv

JUDGE DEBRA A. JAMES, NATALIA SWAN, also
known as NATALIA WOLAN, ALTERMAN AND
BOOP, LLP, WILLIAM SCHAAP, ROBERT S.
SIKORSKI, FIDELITY NATIONAL TITLE
INSURANCE COMPANY, YOLANDA CHANG,
Broker, H.P.D. NEW YORK CITY DEPARTMENT
OF FINANCE, et al.,
                            Defendants-Appellees.
--------------------------------------------------------------------------------------




          *
        Circuit Judge Richard D. Cudahy of the United States Court of Appeals for the
Seventh Circuit, sitting by designation.
APPEARING FOR APPELLANT:                THEODORE F. JOHNSON, pro se, Hempstead,
                                        New York.

APPEARING FOR APPELLEES:                DAVID LAWRENCE III, Assistant Solicitor
                                        General (Barbara D. Underwood, Solicitor
                                        General, on the brief), on behalf of Andrew M.
                                        Cuomo, Attorney General of the State of New
                                        York, New York, New York, for Justice Debra A.
                                        James.

                                        ANDREW G. LIPKIN, Assistant Corporation
                                        Counsel, on behalf of Michael A. Cardozo,
                                        Corporation Counsel of the City of New York,
                                        New York, New York, for Department of
                                        Housing Preservation and Development of the
                                        City of New York and New York City Department
                                        of Finance.

                                        JAMES E. SCHWARTZ, Stempel Bennett
                                        Claman & Hochberg, P.C., New York, New York,
                                        for Fidelity National Title Insurance Company.

                                        ANASTASIOS P. TONOREZOS (Thomas W.
                                        Hyland, on the brief), Wilson, Elser, Moskowitz,
                                        Edelman & Dicker LLP, New York, New York,
                                        for Alterman and Boop, LLP.

                                        MARCIA W. BRATHWAITE, New York, New
                                        York, for Yolanda Chang.

                                        Melvin L. Wulf, New York, New York, for
                                        William Schaap.

                                        Robert S. Sikorski, pro se, New York, New York.

      Appeal from the United States District Court for the Southern District of New York

(Paul A. Crotty, Judge).

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

DECREED that the judgment entered on March 27, 2009, is AFFIRMED.


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       Plaintiff Theodore F. Johnson, pro se, appeals from the dismissal of his complaint,

which alleged various claims under, inter alia, 42 U.S.C. §§ 1983 and 1985, and the Fourth,

Fifth, Seventh, and Fourteenth Amendments. We review a judgment of dismissal pursuant

to Federal Rule of Civil Procedure 12(b)(6) de novo, construing the pro se complaint

liberally, accepting its factual allegations as true, and drawing all reasonable inferences in

the plaintiff’s favor. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002);

see also Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). To the

extent the challenged judgment against two of the nine defendants was entered by the court

sua sponte, we are mindful that, notwithstanding any filing fee that may have been paid, 28

U.S.C. § 1915(e)(2) authorizes a district court to dismiss a case at any time if the court

determines that the action fails to state a claim upon which relief can be granted. See

Fitzgerald v. First E. Seventh Street Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000). In

applying these principles, we assume the parties’ familiarity with the facts and record of prior

proceedings, which we reference only as necessary to explain our decision to affirm.

       Our independent review of the record confirms that the district court properly ordered

dismissal. As the district court observed, all of Johnson’s claims against the New York City

Department of Housing Preservation and Development and the Department of Finance are

barred by res judicata, as they arose out of the same transaction upon which Johnson had

previously brought suit on more than one occasion, and at least one of those actions resulted

in a final judgment on the merits. See Cieszkowska v. Gray Line N.Y., 295 F.3d 204, 205

                                               3
(2d Cir. 2002) (“[O]nce a final judgment has been entered on the merits of a case, that

judgment will bar any subsequent litigation by the parties or those in privity with them

concerning the transaction, or series of connected transations, out of which the [first] action

arose.” (internal quotation marks omitted, alteration in original)).      Further, Johnson’s

remaining claims do not satisfy the pleading standard required by Federal Rule of Civil

Procedure 8(a)(2) because he has not “plead[ed] factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft

v. Iqbal, 129 S. Ct. 1937, 1949 (2009); see also Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir.

1995) (“When a complaint fails to comply with [Fed. R. Civ. P. 8], the district court has the

power, on motion or sua sponte, to dismiss the complaint . . . .”). We therefore affirm the

district court’s judgment for substantially the reasons articulated in its thorough and well-

reasoned decision.

       We have considered Johnson’s other arguments on appeal and conclude that they lack

merit. Accordingly, we AFFIRM the judgment of the district court.

                             FOR THE COURT:
                             CATHERINE O’HAGAN WOLFE, Clerk of Court




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