# Lopez v. 1st Def NYS Superintendent

> District Court, E.D. New York · September 21, 2020

URL: https://www.frixlaw.com/law-library/cases/10304905

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 21, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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LIGIO LOPEZ,

Plaintiff, PREFILING INJUNCTION
ORDER
19-CV-06806 (GRB)(SIL)
-against-

NYS SUPERINTENDENT, NEW YORK STATE,

Defendants.
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GARY R. BROWN, United States District Judge:
By Order dated August 13, 2020, the Court granted the application of incarcerated pro se
plaintiff, Ligio Lopez (“plaintiff”), to proceed in forma pauperis, and sua sponte dismissed the
complaint in its entirety pursuant to 28 U.S.C. §§ 1915(e)(2)(b) and 1915A(b). Docket Entry
(“DE”) 18. Plaintiff was ordered to show cause why a litigation injunction should not be
entered barring plaintiff from filing any new complaint without first seeking leave of Court
relating to his 2003 underlying state criminal conviction. On September 2, 2020 plaintiff
responded to the Order to Show Cause. DE 21.
BACKGROUND
As the Court detailed in its August 13, 2020 Order, plaintiff is no stranger to this Court,
having filed twelve (12) frivolous civil actions relating to his 2003 state court conviction. See
Mem. & Order, DE 18 at 1-2, n. 1.1 Over the past seventeen years, plaintiff has repeatedly

1 See 12-CV-3789(JFB) Lopez v. Supt. (2254 petition denied as time-barred); 14-CV-6856(JFB)
Lopez v. Gazzillo (consolidated with 14-CV-7577(JFB) Lopez v. Gazzillo; 15-CV-2023(JFB)
Lopez v. Gazzillo; 16-CV-2143(JFB) Lopez v. Gazzillo; 16-CV-2446(JFB) Lopez v. Gazzillo; 16-
CV-3520(JFB)(SIL) Lopez v. NYS Suffolk County Court; and 16-CV-6036(JFB)(SIL) Lopez v.
NYS Supt. and deemed withdrawn by Order dated Jan. 11, 2017, D.E. 44); 16-CV-5818 (JFB)

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attempted to attack his state conviction through these actions.
I. State Court Procedural History
By way of background, plaintiff pled guilty before Justice Gazzillo, County Court,
Suffolk County, under Suffolk County Indictment No. 00298-2003 to Criminal Sale of a
Controlled Substance in the Second Degree, a class A-II felony. See Mem. & Order dated Sept.
27, 2013, Lopez v. Supt., 12-CV-3789(JFB), DE 13 at 2. Plaintiff was sentenced on October 29,
2003 to an indeterminate term of imprisonment of five years to life. Id. Plaintiff, with the

assistance of court-appointed counsel, appealed his sentence and moved for a reduction in the
interests of justice. That application was denied. People v. Lopez, 16 A.D.3d 1182 (2d Dept.
2005). Plaintiff sought leave to appeal to the New York State Court of Appeals and that
application was denied on June 29, 2005. See Mem. & Order dated Sept. 27, 2013, 12-CV-
3789(JFB), DE 13 at 2.
Plaintiff then moved on October 21, 2005 in the County Court, Suffolk County, for re-
sentencing under the Drug Law Reform Act of 2005 and that application was denied on January
3, 2006. See People v. Lopez, 49 A.D. 3d 559 (2d Dept. 2008). Plaintiff filed an appeal and
the Appellate Division, Second Department, affirmed the County Court’s decision denying re-
sentencing under the Drug Reform Act of 2005 and finding that there were no nonfrivolous
issues to be raised on appeal. Id. Plaintiff filed a motion for a writ of error coram nobis

(SIL) Lopez v. NYS Supt. (withdrawn); 17-CV-0544(JFB) (SIL) Lopez v. NYS (see DE 11 at 5,
denying unintelligible submission construed as a motion challenging the dismissal of his 2254
petition and warning “should he continue to file unintelligible submissions challenging his 2003
conviction, the Court will consider entry of a filing injunction”); 18-CV-2366 (JFB) (SIL) Lopez
v. NYS Parole Comm. (transferred to 2d Circuit as a successive habeas petition and denied on
January 2, 2019).

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arguing that the plea was invalid and, on September 16, 2008, the Appellate Division denied the
motion. See People v. Lopez, 54 A.D.3d 876 (2008). Plaintiff filed another motion for a writ
of error coram nobis in the Appellate Division and that motion was denied on January 31, 2012.
See People v. Lopez, 91 A.D.3d 969 (2012).
II. Federal Court Procedural History
Plaintiff filed his first petition seeking a writ of habeas corpus pursuant to 28 U.S.C. 2254
in this Court on July 30, 2012. See Lopez v. Supt., 12-CV-3789(JFB). By Memorandum and

Order dated September 27, 2013, District Judge Joseph Bianco dismissed the petition as time-
barred. See id. at DE 13. Judge Bianco determined that plaintiff’s conviction became final on
March 4, 2008 and therefore his 2012 filing was untimely. Id. Plaintiff sought reconsideration
and, by Order dated February 28, 2014, the application was denied. Id. at DE 17. Plaintiff
filed a second motion for reconsideration and that application was denied by Order dated
December 13, 2016. Id. at DE 21.
Over the next two years, plaintiff filed seven (7) more in forma pauperis actions that
were construed as challenging his underlying state court conviction and sentence. See 14-CV-
6856(JFB) Lopez v. Gazzillo; 14-CV-7577(JFB) Lopez v. Gazzillo; 15-CV-2023(JFB) Lopez v.
Gazzillo; 16-CV-2143(JFB) Lopez v. Gazzillo; 16-CV-2446(JFB) Lopez v. Gazzillo; 16-CV-
3520(JFB)(SIL) Lopez v. NYS Suffolk County Court; and 16-CV-6036(JFB)(SIL) Lopez v. NYS
Supt. These cases were all consolidated into the earliest case, 14-CV-6856(JFB), and that case

was ultimately deemed withdrawn by Order dated Jan. 11, 2017, DE 44.
Plaintiff filed another case challenging his 2003 criminal conviction and sentence, 16-
CV-5818(JFB)(SIL) Lopez v. NYS Supt., that he voluntarily withdrew. See 16-CV-5818 at DE
9. Plaintiff then filed another action, 17-CV-0544(JFB)(SIL) Lopez v. NYS, that the Court

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construed as a motion challenging the dismissal of his 2254 petition and warning plaintiff that
“should he continue to file unintelligible submissions challenging his 2003 conviction, the Court
will consider entry of a filing injunction.” See 17-CV-0544, DE 11 at 5. Despite the Court’s
warning, plaintiff filed another action, 18-CV-2366(JFB)(SIL) Lopez v. NYS Parole Comm., that

the Court construed as a successive habeas petition challenging his 2003 conviction and
transferred to the Second Circuit Court of Appeals where it was denied on January 2, 2019.
The complaint in this case followed. Like his earlier filings, plaintiff’s submission is
comprised of two (2) typed pages and is largely incomprehensible. Accordingly, because
plaintiff failed to allege a plausible claim for relief, the Court dismissed the complaint in its
entirety pursuant to 28 U.S.C. §§ 1915(e)(2)(b) and 1915A(b). Given plaintiff’s seventeen-year
history of frivolous litigation relating to his 2003 state criminal case, together with the fact that
the Court’s warnings to plaintiff that further filings relating to his 2003 conviction may lead to
the entry of a filing injunction have not deterred plaintiff, the Court ordered “plaintiff to show
cause by filing an affidavit within thirty (30) days from the date of this Opinion and Order to

Show Cause why an order barring him from filing any new complaint relating to his underlying
2003 criminal case without first seeking leave of court should not be entered.” DE 18 at 9. On
September 2, 2020, plaintiff timely filed a response to the Order to Show Cause. DE 21.
Although plaintiff’s submission is not an “affidavit” as required, the Court considers it as though
it had been properly filed.
III. Plaintiff’s Response to the Order to Show Cause
Plaintiff has filed a six (6) page response to the Order to Show Cause that is largely
incoherent and repetitive. Rather than attempt to demonstrate to the Court why plaintiff should

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not be required to seek leave of Court before filing any new action relating to his 2003
conviction, plaintiff has instead requested that: (1) the undersigned be disqualified from
presiding over this case because of partiality; and (2) the Court and/or defendants show cause
why the Court is “not correcting [plaintiff’s] continuing void imprisonment 5 years – yrs to life

Cruel + Unusual Punishment making him suffer fear to do more than 17 years as a continuing
Wrong on a AII drug 1st felony like his is beyond our Penal Law. . . . .”2 DE 21. Plaintiff’s
submission begins:
1) He’s expediting on Our 28 USC § 144, 455 respectfully showing this Court to
answer this Court partial Judge Brown CV 19-6806(GRB)(SIL)’s 8/13-14/20
Orders that are thinking he’s dead to dismiss his 42 U.S.C. § 1983 Federal
Law Question - - Fed L ? amended 3/4/20 continuing 2 complaints that he
sent this Court with his long poor motion, where now he’s asking this Court to
disqualify this Court partial Judge Brown CV 19-6808 (GRB)(SIL)’s 8/13-
14/20 Order + to accept for filing his 42 U.S.C. §1983 Fed/ L. ? amended
8/28/20 continuing 2 complaints enclosed here that is, ‘Why is this US E Dist
Court Jury Trial Hearing Room’s Authority not correcting his continuing
Void Imprisonment . . . .’

DE 21 at 1-2. The balance of plaintiff’s submission continues in this fashion and is difficult to
decipher. Wholly absent, however, is any argument or reason why an order should not be
entered barring plaintiff from filing any new action relating to his 2003 conviction without first
seeking leave of Court. See DE 21, generally.
DISCUSSION
I. The All Writs Act
Under the All Writs Act, a federal court “may issue all writs necessary or appropriate in
aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C.

2 Excerpts from plaintiff’s submission are reproduced here exactly as they appear in the original.

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§ 1651(a). The All-Writs Act “grants district courts the power, under certain circumstances, to
enjoin parties from filing further lawsuits.” MLE Realty Assocs. v. Handler, 192 F.3d 259, 261
(2d Cir. 1999). Those circumstances include cases where a litigant engages in the filing of
repetitive and frivolous suits. See Malley v. N.Y. City Bd. of Educ., 112 F.3d 69 (2d Cir. 1997)

(per curiam) (filing injunction may issue if numerous complaints filed are based on the same
events); In re Martin-Trigona, 9 F.3d 226, 228-29 (2d Cir. 1993). Such an injunction, while
protecting the courts and parties from frivolous litigation, should be narrowly tailored so as to
preserve the right of access to the courts. In addition, the Court must provide plaintiff with notice
and an opportunity to be heard before imposing a filing injunction. Moates v. Barkley, 147 F.3d
207, 208 (2d Cir. 1998) (per curiam). The Second Circuit has instructed district courts to consider
five factors when determining whether such sanctions are appropriate:
(1) the litigant’s history of litigation and in particular whether it entailed vexatious,
harassing or duplicative lawsuits; (2) the litigant’s motive in pursuing the litigation,
e.g., does the litigant have an objective good faith expectation of prevailing?; (3)
whether the litigant is represented by counsel; (4) whether the litigant has caused
needless expense to other parties or has posed unnecessary burden on the courts
and their personnel; and (5) whether other sanctions would be adequate to protect
the courts and other parties.

Eliahu v. Jewish Agency for Israel, 919 F.3d 709, 713-14 (2d Cir. 2019) (citing Iwachiw v. N.Y.
State Dep’t of Motor Vehicles, 396 F.3d 525, 528 (2d Cir. 2005) (per curiam). Ultimately, the
court must determine “whether a litigant who has a history of vexatious litigation is likely to
continue to abuse the judicial process and harass other parties.” Eliahu, 919 F.3d at 713-14
(quoting Safir v. US Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986)).
Here, four of the five factors weigh heavily in favor of imposing such a sanction. As such,
the Court finds that a narrow litigation injunction is warranted. Carrington v. Graden, 18-CV-

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4609(KPF), 2020 WL 5503537, at *6 n.2 (S.D.N.Y. Sept. 11, 2020) (entering a litigation
injunction “with the understanding that such injunctions should be narrowly tailored to the specific
circumstance”) (citing Safir, 792 F.2d at 25). Given that the Court’s warnings to plaintiff that
further filings seeking relief relating to his 2003 conviction may lead to the entry of a filing

injunction have not deterred plaintiff, see, e.g., 17-CV-0544(JFB) (SIL) Lopez v. NYS (DE 11 at
5) (warning that litigation injunction may be entered), plaintiff’s present complaint, together with
his long history of frivolous litigation (see supra pp. 1-4 and note 1), suggest that plaintiff may file
a new, frivolous complaint seeking to challenge his 2003 state court judgment of conviction.
The Court is particularly sensitive to plaintiff’s pro se status and has considered his
response to the Order to Show Cause in the most positive light possible. However, his repetitive
and incoherent submissions have caused an unnecessary burden on the Court and other parties,
and lesser sanctions, involving repeated warnings, have proven unsuccessful. Plaintiff’s
continued filing of frivolous complaints relating to this subject is an abuse of the judicial process.
Indeed, “[e]very paper filed with the . . . Court, no matter how repetitious or frivolous, requires

some portion of the institution’s limited resources. A part of the Court’s responsibility is to see
that these resources are allocated in a way that promotes the interests of justice.” In re McDonald,
489 U.S. 180, 184 (1989) (per curiam).
Given plaintiff’s litigation history, together with the fact that he has been warned that his
continued filing of repetitive complaints relating to his underlying 2003 state criminal conviction
may lead to the entry of an order barring the acceptance of any future complaint based upon such
claims without first obtaining leave of Court to do so, the Court now bars plaintiff from filing any
new complaint relating to his underlying 2003 criminal case without first seeking leave of court.

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The clerk of the court is directed to return to plaintiff, without filing, any new complaint from
plaintiff relating to his 2003 conviction if it is received without a separate application seeking leave
to file.
If plaintiff seeks leave to file a new complaint relating to his 2003 conviction along with a

request for leave to file the complaint, the clerk of court will be directed to open it under a
miscellaneous number.
Further, plaintiff is cautioned that Rule 11 of the Federal Rules of Civil Procedure applies
to pro se litigants, see Maduakolam v. Columbia Univ., 866 F.2d 53, 56 (2d Cir. 1989) (“Rule 11
applies both to represented and pro se litigants . . . .”), and should he file another frivolous action,
it is within the Court’s authority to consider imposing sanctions upon him. See FED. R. CIV. P.
11.
II. Motion to Recuse
Finally, insofar as plaintiff’s response to the Order to Show Cause can be liberally
construed as a motion for recusal, the application is denied. “A judge must recuse himself if his

‘impartiality might be reasonably questioned.’” Buhannic v. TradingScreen Inc., 19-CV-
10650(ER), 2020 WL 4058949, *5 (S.D.N.Y. July 20, 2020) (quoting Cox v. Onondaga Cty.
Sheriff’s Dep’t, 760 F.3d 139, 150 (2d Cir. 2014)). In addition, Section 455(b) lists circumstances
requiring removal, such as when the judge has a personal bias in the proceeding or a financial
interest in the proceeding. See 28 U.S.C. § 455(b). “The propriety of recusal is considered
objectively, with courts asking, ‘[W]ould a reasonable person, knowing all the facts, conclude that
the trial judge’s impartiality could reasonably be questioned?’” Buhannic, 2020 WL 4058949 at
*5 (quoting United States v. Lovaglia, 954 F.3d 811, 815 (2d Cir. 1992). “If the answer to that

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question is ‘no,’ recusal is ‘prohibited.’” Id. at *5 (quoting In re Aguinda, 241 F.3d 194, 201 (2d
Cir. 2001)). Here, plaintiff has not set forth any basis for recusal other than a conclusory
allegation that the undersigned is “partial.” DE 21 at 1-2. Accordingly, in the absence of any
reasonable basis to question this Court’s impartiality, plaintiff’s motion for recusal is denied.

CONCLUSION

For the reasons set forth above, plaintiff is barred from filing any new complaint relating
to his underlying 2003 criminal case without first seeking leave of court. The clerk of the court is
directed to return to plaintiff, without filing, any new complaint from plaintiff relating to his 2003
conviction if it is received without a separate application seeking leave to file.
If plaintiff seeks leave to file a new complaint relating to his 2003 conviction along with a
request for leave to file the complaint, the Clerk of the Court will be directed to open it under a
miscellaneous number.
Plaintiff’s motion for recusal is denied and plaintiff is cautioned that, should he file another
frivolous case, it is within the Court’s authority to consider imposing Rule 11 sanctions upon him.
Although nothing herein shall be construed to prohibit plaintiff from filing an appeal of
this Filing Injunction Order, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that, should
plaintiff seek leave to appeal in forma pauperis, any appeal from this Order would not be taken in
good faith and therefore in forma pauperis status is denied for the purpose of any appeal. See
Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is respectfully
directed to mail a copy of this Order to the pro se plaintiff.
SO ORDERED.

_______________________
The Honorable Gary R. Brown

9
United States District Judge
Dated: September 21, 2020
Central Islip, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10304905. Public record. Not legal advice.