Ash-Shaheed v. Vaintrub et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Salahudin Ash-Shaheed
v. 	Case No. 19-cv-1037-JL
Irina Vaintrub,
Kenneth Fulginiti, and
Duffy & Partners
REPORT AND RECOMMENDATION
Plaintiff Salahudin Ash-Shaheed, proceeding pro se, is an
inmate at the Federal Correction Institution in Berlin, N.H.,
having pleaded guilty to federal robbery and kidnapping charges
in 2015. 	See United States v. Shaheed, Crim. No. 15-187-2, 2019
U.S. Dist. Lexis 109988 (E.D. Pa. June 28, 2019). 	In 2016,
defendant Irina Vaintrub sued Shaheed and others in Pennsylvania
state court for injuries she suffered in the incident that led
to Shaheed’s conviction. 	That case was settled before trial in
February 2018. 	See Vaintrub v. Shaheed, et al., Case ID No.
160503471, (Phil Ct. Com. Pl., Order of Settlement filed Feb.
13, 2018). 	Plaintiff has now sued Vaintrub and her attorneys,
alleging fraudulent conduct in the Pennsylvania civil case.
Plaintiff’s complaint (Doc. No. 1) has been referred to the
undersigned magistrate judge for preliminary review, pursuant to
LR 4.3(d) and 28 U.S.C. § 1915(e)(2). 	For the reasons that
follow, plaintiff’s complaint should be dismissed.
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Preliminary Review Standard
The magistrate judge conducts a preliminary review of
complaints, like the plaintiff’s, which are filed in forma
pauperis. 	See LR 4.3(d). 	The magistrate judge may recommend to
the district judge that one or more claims be dismissed if,
among other things, the court lacks jurisdiction, a defendant is
immune from the relief sought, or the complaint fails to state a
claim upon which relief may be granted. 	See 28 U.S.C. §
1915(e)(2); LR 4.3(d). 	In conducting its preliminary review,
the court construes pro se complaints liberally. 	See Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). 	The complaint
must contain “sufficient factual matter, accepted as true, to
‘state a claim to relief.’” 	Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citation omitted).
Discussion
Plaintiff’s central allegation is that Vaintrub and her
attorneys perpetuated a fraud in the Pennsylvania action when
Vaintrub exaggerated her injury claims. 	But in the context of a
post-judgment fraud allegation in a civil case, “‘[t]he
principle’ is that . . . ‘relief should ordinarily be sought in
the court that rendered the judgment’ being thus challenged.”
Lundborg v. Phoenix Leasing, Inc., 91 F.3d 265, 272 (1st Cir.
1996) (quoting Restatement (Second), Judgments § 79 cmt. b
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(1982)). 	Moreover, just as the court in Lundborg found it
significant that the state court that issued the underlying
judgment could consider granting relief based on fraud, id. at
272, the plaintiff here can raise his fraud allegation in a
petition to set aside the settlement in the Pennsylvania court.
See Ahab III, Inc. v. Satiro, No. 2249 EDA 2017, 2018 Pa. Super.
Unpub. LEXIS 979, 2018 WL 1516654, at *3 (Pa. Super. Ct. Mar.
28, 2018) (indicating that fraud is a valid basis for setting
aside a settlement) (citing Rago v. Nace, 460 A.2d 337, 339 (Pa.
Super. 1983) (citation omitted)); see also McDonnell v. Ford
Motor Co., 643 A.2d 1102, 1106 (Pa. Super. 1994) (noting that,
under some circumstances, an evidentiary hearing could be
appropriate in matters of contested settlement agreements)
(citing Limmer v. Country Belle Coop. Farmers, 286 A.2d 669, 670
(Pa. Super. 1971)).1
The conclusion reached by our Court of Appeals in Lundborg
is equally applicable here: 	“[I]n the peculiar circumstances of
this case, abstention is appropriate.” 	91 F.3d at 272.
“[R]elief, if available at all, is fully available in the []
state court; indeed, [state] law controls on this issue. 	Id.
Finally the court observed that, as in this case, it was of
“great importance” that neither the federal lawsuit nor the
1The court takes no view on the merits of plaintiff’s fraud
allegations, noting only that it can be pursued in Pennsylvania.
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underlying state case presents a direct federal interest or
issue of federal law. 	Id. 	Accordingly, the district judge
should dismiss this case without prejudice to plaintiff’s
ability to seek relief in Pennsylvania state court.
Conclusion
For the foregoing reasons, the district judge should
dismiss plaintiff’s complaint without prejudice to the plaintiff
re-asserting his claims in the Pennsylvania court that issued
the underlying judgment. 	See 28 U.S.C. § 1915(e)(2). 	Any
objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. 	See Fed. R.
Civ. P. 72(b)(2). 	The fourteen-day period may be extended upon
motion. 	Failure to file specific written objections to the
Report and Recommendation within the specified time waives the
right to appeal the district court’s order. 	See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
April 1, 2020
cc: 	Salahudin Ash-Shaheed, pro se
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