Azeez v. The City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

JAMAL ADEEN AZEEZ,

Plaintiff, MEMORANDUM & ORDER

“Agpihist 16-CV-342 (NGG) (SJB)

CITY OF NEW YORK, WILLIAM J. BRATTON,

and BRETT STRAUSS,

Defendants.

NICHOLAS G. GARAUFIS, United States District Judge.

On August 22, 2018, this court granted Defendants’ motion for

summary judgment against Plaintiff Jamal Adeen Azeez. Follow-

ing that ruling, which was affirmed by the Second Circuit, this

court twice denied his motion for relief from judgment under

Rule 60(b). He then, pro se, sought to appeal the second order

denying such relief, and, in doing so, moved for leave to proceed

in forma pauperis. The Second Circuit has directed this court to

rule on Plaintiffs in forma pauperis status before considering his

appeal. (Mar. 8, 2022 Order of USCA (Dkt. 112).) For the fol-

lowing reasons, Plaintiffs motion is DENIED.

I. BACKGROUND

Plaintiff filed this civil rights action on January 21, 2016 against

the City of New York, New York Police Department Commis-

sioner William J. Bratton, and Police Officer Brett Strauss,

alleging racial and religious discrimination pursuant to 42 U.S.C.

§ 1983 and state law. (Compl. (Dkt. 1).) On August 22, 2018,

the court granted Defendants’ motion for summary judgment as

to all of PlaintifPs claims and denied Plaintiffs motion for sum-

mary judgment. See Ageeg v. City of N.Y., No. 16-CV-342, 2018

WL 4017580 (E.D.N.Y. Aug. 22, 2018) (Dkt. 91). On October 5,

2018, Plaintiff moved to amend the judgment, which the court

leniently construed as a Rule 60(b) motion for relief from the

judgment. (Oct. 5, 2018 Mot. (Dkt. 94).) On October 9, 2018,

Plaintiff also filed an appeal. (Oct. 9, 2018 Not. of Appeal (Dkt.

96).)

On November 2, 2018, the court denied Plaintiffs first Rule

60(b) motion. (Nov. 2, 2018 Order (Dkt, 100).) After denying

Plaintiffs petition for a panel rehearing, or in the alternative, for

rehearing en banc, on January 31, 2020, the Second Circuit af-

firmed summary judgment for Defendants. See Azeez v. City of

N.Y., 790 F. App’x 270 (2d Cir. 2019) (Dkt. 102) (summary or-

der).

On February 26, 2020, Plaintiff filed a second Rule 60(b) motion

for relief from the judgment. (Feb. 26, 2020 Mot. (Dkt. 104).)

Magistrate Judge Bulsara issued a Report and Recommendation

(“R&R”) on August 25, 2020, recommending that this court deny

the motion and impose a filing injunction. (R&R (Dkt. 105).) Af

ter more than fourteen days passed, and no objections were filed,

the court entered an order adopting the R&R in its entirety. See

Azeez v. City of N.Y., No. 16-CV-342, 2020 WL 5554878 (E.D.N.Y.

Sept. 17, 2020) (Dkt. 106). Plaintiff filed objections to the R&R

on the day before it was adopted. (P1’s Obj. (Dkt. 107).)

On November 23, 2020, Plaintiff filed a motion for a ruling on

his objections, maintaining that his objections were timely be-

cause he mailed them on September 3, 2020, which was within

the 14-day window to object. (Nov. 23, 2020 Mot. (Dkt. 109) 19

1-3.) Since the court must liberally construe pro se filings, the

court treated Plaintiffs motion as a motion for reconsideration.

Upon reconsideration, the court again adopted the R&R in full,

See Azeez v. City of N.Y., No. 16-CV-342, 2021 WL 3578500

(E.D.N.Y. Aug. 13, 2021) (Dkt. 110).

On September 17, 2021, Plaintiff filed a notice of appeal on his

motion for reconsideration of his second Rule 60{b} motion.

(Sept. 17, 2021 Not. of Appeal (Dkt. 111).) The Second Circuit

directed this court to first determine whether Plaintiff may pro-

ceed in forma pauperis. (Mar. 8, 2022 Order of USCA.)

Il. PLAINITFF’S MOTION TO PROCEED IN FORMA

PAUPERIS

A. Applicable Law

To appeal in forma pauperis from an order of the district court, a

party must file an affidavit that “(A) shows. .. the party’s inabil-

ity to pay or to give security for fees and costs; (B) claims an

entitlement to redress; and (C) states the issues that the party

intends to present on appeal.” Fed. R. App. P. 24(a)(1). The

statement of issues must sufficiently “apprise the court of the

foundation for [the party’s] appeal or the arguments that he

plans to raise in support of his case.” Purisima v. Tiffany Enter-

tainment, No. 09-CV-3502 (NGG) (LB), 2018 WL 7063128, at *1

(E.D.N.Y. Jan. 25, 2018).! However, even where a party has

made a prima facie case that in forma pauperis status is war-

ranted, “an appeal may not be taken in forma pauperis if the trial

court certifies in writing that it is not taken in good faith.” 28

U.S.C. § 1915(a)(3); United States v. Farley, 238 F.2d 575, 576

(1956) (“[I]f on consideration the trial judge is conscientiously

convinced that there is no substantial question for review and

that an appeal will be futile, or if he is convinced that there is no

reasonable basis for the claims of alleged error, it is the duty of

the trial judge, albeit not a pleasant duty, to certify that the ap-

peal is not taken in good faith.”).

A party demonstrates good faith when the party “seeks appellate

review of any issue not frivolous.” Coppedge v. United States, 369

U.S. 438, 445 (1962). Since this is an objective test, the court

need not inquire into the party’s “subjective point of view.” Id. at

445. Courts in this circuit have consistently found that allowing

1 When quoting cases, and unless otherwise noted, all citations and quota-

tion marks are omitted, and all alterations are adopted.

a party to proceed in forma pauperis is inappropriate where a

party “fail[s] to show that [the] appeal would not simply raise

the same issues that this court has repeatedly deemed to be friv-

olous.” Purisima, 2018 WL 7063128, at *2; see also Garcia v.

Paylock, No. 13-CV-2868 (KAM), 2014 WL 1365478, at *2

(E.D.N.Y. Apr. 7, 2014) (“By merely rehashing his previous, mer-

itless arguments, plaintiff has not presented a good faith basis for

an appeal.”); United Parcel Serv. of Am., Inc. v. The Net, Inc., 470

F. Supp. 2d 190, 194 (E.D.N-Y. 2007) (“The Court finds that an

appeal of this Court’s order would be frivolous and lacking in

good faith. The issues [the party] seeks to raise on appeal have

been previously addressed by the Court.”). Ultimately, the deci-

sion as to whether a party may “proceed in forma pauperis is left

to the District Court’s discretion.” Fridman v. City of N.Y., 195 F.

Supp. 2d 534, 536 (S.D.N-Y. 2002).

B. Discussion

Here, Plaintiff rehashes the same frivolous allegations that have

been repeatedly denied by this court and the Second Circuit.

First, Plaintiff contends that Officer Strauss perjured himself dur-

ing the Department of Motor Vehicles (“DMV”) hearings related

to Plaintiffs traffic infractions, including by allegedly covering up

where he was parked during the traffic stops since it violated the

NYPD Patrol Guide. (See In Forma Pauperis Mot. (“IFP Mot.”)

(Dkt. 113) {| 1-2, 6, 16.) Further, Plaintiff asserts that this court

failed to consider that Officer Strauss lied on multiple occasions,

not just once. (Id. { 1.) Plaintiff has repeatedly raised the issue of

Officer Strauss’s alleged perjury with the court. (See, eg., Mot.

for Summ. J. (Dkt. 58) at 7-12; Feb. 26, 2020 Mot. (providing a

chart comparing Officer Strauss’s inconsistent statements); PI.’s

Obj. at 3-5, 7.)

This court inquired into Plaintiffs allegations of Strauss’s perjury

in assessing his claim that the DMV proceedings against him con-

stituted a malicious prosecution. Since lack of probable cause is

one of the elements of malicious prosecution, the court consid-

ered whether Strauss’s alleged perjury impacted the probable

cause determination for the DMV proceedings. The court held

that any “fraud that threw the soundness of the DMV’s fact-find-

ing into question,” would “need[] to be addressed and remedied

by a state court, not by this court on collateral review.” Azeez,

2018 WL 4017580, at *9. Thus, even if Officer Strauss had per-

jured himself, “Plaintiff [was] collaterally estopped from

relitigating whether Strauss had probable cause to cite Plaintiff

for violating the Vehicle & Traffic Law.” Id. at *10. Further, Plain-

tiff did not meet two of the other elements of malicious

prosecution, (1) that the prosecution be criminal, not civil, and

(2) that the proceedings terminate in Plaintiffs favor since he

was twice adjudicated guilty. On appeal, the Second Circuit

found that “there is no legal or factual basis to support Azeez’s

contention that Strauss committed perjury during his testimony,”

and that his “statements evince, at most, minor inconsistencies

immaterial to the issue of whether Azeez committed the traffic

violations, for example, the exact location where Strauss may

have been parked before he pulled Azeez over to ticket him,

where Azeez was pulled over, or whether Strauss remembered

any previous contact with Azeez.” Azeez, 790 F. App’x at 273.

Because this court and the Second Circuit have considered claims

that Strauss perjured himself multiple times, an appeal of this

issue would not be taken in good faith.

Second, Plaintiff alleges that Officer Strauss refused to reveal

his identity to Plaintiff, including by not putting his name on

the traffic summonses issued to Plaintiff, and has previously

been accused of refusing to reveal his identity. (See IFP Mot.

3-4.) Plaintiff also claims that Strauss has been sued for similar

wrongdoing. (Id. 45.) Plaintiff has repeatedly raised this issue

with the court. (See, e.g., Mot. for Summ. J. at 4n.3, 5, & 14

n.10; Feb. 26, 2020 Mot. at 8; Pl.’s Obj. at 2, 6-7.) In consid-

ering the City’s failure to supervise or discipline Officer

Strauss, the court assessed whether the City acted with delib-

erate indifference, which would require Plaintiff to show, for

example, repeated civil rights violations. The court found that

there had been only one complaint filed against Officer

Strauss, which was for failure to provide his name and badge

number and was dismissed by the Civilian Complaint Review

Board (“CCRB”) as unfounded. Azeez, 2018 WL 4017580, at

*16, Thus, the court held that “[w]Jithout more compelling evi-

dentiary support than a single dismissed complaint .. . , Plaintiffs

claim that the City failed to supervise or discipline Officer Strauss

must be dismissed.” Id. In affirming this court’s grant of summary

judgment, the Second Circuit found that the “one-line refer-

ence[]” to the “argument that Strauss’s supervisors should have

been held accountable for concealing Strauss’s past misconduct .

. . [was] insufficient to preserve the claims on appeal and thus. .

. waived.” Azeez, 790 F. App’x. at 272. Because this court and the

Second Circuit have considered Plaintiffs claims related to

Strauss’s alleged pattern of refusing to reveal his identity, an ap-

peal on these issues would not be taken in good faith.

Third, Plaintiff alleges this court erred in refusing to permit the

disclosure of Officer Strauss’s disciplinary records even after

Plaintiff made a “substantial showing.” (See IFP Mot. 4 15.) A

review of Plaintiffs filings indicates that this alleged “failure” to

disclose disciplinary records was made to the CCRB in the con-

text of a Freedom of Information Law request, not in discovery □

in this case. (See Pl.’s Obj. at 7.) The CCRB is not party to this

suit, and its denial of Plaintiffs request for records is outside the

scope of this litigation and thus not a ground for appeal, good

faith or otherwise.

Fourth, Plaintiff contends that Officer Strauss “retaliated” after

(i) Plaintiff asked for his name and badge number at the scene,

and (ii) Plaintiff asked for his address during Strauss’s deposition.

(See IFP Mot. 7-8.) In his motion for summary judgment,

Plaintiff raised these claims of retaliation. He alleged that after

he asked for Strauss’s badge number, his “constitutionally pro-

tected right to bring a complaint was impermissibly chilled by

[Strauss,] who intentionally retaliated and subsequently issued

two back-to-back traffic summons[es].” (Mot. for Summ. J. at 6,

12.) However, the court found that there was no First Amend-

ment retaliation because Plaintiff could not show that his speech

was silenced or chilled. Azeez, 2018 WL 4017580, at *12. Plaintiff

also raised claims about Strauss’s alleged retaliatory threats dur-

ing his deposition, such as when Strauss allegedly testified, “[ilf

you show up in my neighborhood, I will call the police.” (Id. at

14; see also P1.’s Reply (Dkt. 86) at 13 n.7; Feb. 26, 2020 Mot. at

5.) In affirming this court’s grant of summary judgment to De-

fendants, the Second Circuit held that Azeez had waived his

retaliation claims. 790 F. App’x at 273. Since Plaintiff has previ-

ously raised these same arguments about alleged retaliation, an

appeal would not be taken in good faith.

Fifth, Plaintiff claims that Officer Strauss also retaliated with an-

other summons. Though this alleged third summons was issued

on November 10, 2019, which was after the court’s summary

judgment order was issued, Plaintiff contends that it should be

considered at this juncture because “[i]t w[ould] be a waste of

time and money to initiate a new lawsuit.” (See IFP Mot. § 9.)

However, Plaintiff has already brought this summons to the

court’s attention. (See Feb, 26, 2020 Mot. at 6-7.) As Magistrate

Judge Bulsara explained in his R&R, in addition to the fact that

Plaintiffs motion was untimely, events that occur after the entry

of judgment cannot be the basis for Rule 60(b) relief. (See R&R

at 16.) This court has twice adopted Judge Bulsara’s R&R; thus,

a further appeal of this decision would not be made in good faith.

Sixth, Plaintiff contends that Strauss, after learning that he was

a convicted sex offender, began to harass Plaintiff by issuing an

additional two summonses in violation of state law. (See IFP Mot.

{ 17.) In considering the cross-motions for summary judgment,

the court declined to exercise supplemental jurisdiction over the

remaining state law claims since it was the court’s first review of

the merits of Plaintiffs amended complaint. Azeez, 2018 WL

4017580, at *17. In affirming the judgment, the Second Circuit

found that Plaintiff failed to challenge this holding, so his state

law claims were waived. Azeez, 790 F. App’x. at 272. Since this

court and the Second Circuit have already rejected Plaintiffs as-

sertion of state law claims, an appeal would not be taken in good

faith.

Finally, in addition to these allegations, Plaintiff submitted a list

of causes of action including “retaliation, discrimination, false ar-

rest from flagrant perjuries, malicious prosecution, slander,

threat to further arrest, defamation by character, violation of civil

rights under the Constitutions of the State of New York, State

ordinances, laws, statutes, codes and rules; and violation of the

United States Constitution under 42 USCA 1981, 1983, 1985, 28

USC 1343.” (IEP Mot. 4 16.) However, this laundry list of causes

of action does not present specific issues for the Second Circuit

to review on appeal.

Plaintiff has not raised any new issues appropriate for the Second

Circuit's consideration. Instead, he repeats the same meritless

claims that have now been decided multiple times, which pre-

cludes this court from finding that his appeal is taken in good

faith,

Ii. CONCLUSION

The court hereby certifies pursuant to 28 U.S.C. § 1915(a)(3)}

that Plaintiffs appeal is not taken in good faith. Thus, Plaintiff's

motion for leave to appeal in forma pauperis (Dkt. 113) is DE-

NIED. The Clerk of Court is respectfully DIRECTED to send a

copy of this order by certified mail, return receipt requested, to

pro se Plaintiff at his address of record.

SO ORDERED.

Dated: Brooklyn, New York

April22, 2022

s/Nicholas G. Garaufis

NICHOLAS G. GARAU

United States District Judge