Gioia v. Patterson, Belknap, Webb, & Tyler

UNITED STATES DISTRICT COURT For Online Publication Only CLERK

EASTERN DISTRICT OF NEW YORK 10/12/2023 1  2:59 pm

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MARIA F. GIOIA, U .S .  D I S T R I CT COURT

EASTERN DISTRICT OF NEW YORK

Plaintiff, LONG ISLAND OFFICE

MEMORANDUM & ORDER

-against- 23-CV-1419 (JMA) (SIL)

SOUTHEND PSYCHIATRY,

Defendant.

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MARIA F. GIOIA,

Plaintiff,

-against- 23-CV-3353 (JMA) (SIL)

PATTERSON, BELKNAP, WEBB & TYLER,

Defendant.

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JOAN M. AZRACK, District Judge:

Before the Court are the renewed in forma pauperis applications filed by pro se plaintiff

Maria F. Gioia (“Plaintiff”) in each of the cases captioned above. (See Docket Entry (“DE”) 11

in 23-CV-1419 and DE 10 in 23-CV-3353.) Upon review, the renewed applications to proceed

in forma pauperis are granted. However, for the reasons that follow, the complaints are dismissed

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii).1

I. BACKGROUND

Plaintiff is no stranger to this Court. These are Plaintiff’s fifth and sixth pro se

1 Plaintiff has also moved for leave to electronically file papers in her case assigned docket number 23-CV-1419.

(See DE 13). Further, Patterson, Belknap, Webb & Tyler, LLP (“PBWT”) has filed a letter motion seeking a pre-

motion conference in anticipation of filing a motion to dismiss the complaint assigned docket number 23-CV-3353.

(See DE 5.) Given the dismissal of the complaints, these applications are now moot and are thus denied.

complaints2 and, like at least three of her prior complaints, relate to prior litigation arising from

alleged side effects of a prescription anti-psychotic medication. See 19-CV-4629, 19-CV-5377,

and 23-CV-1187. The defendant in the prior cases, Janssen Pharmaceuticals, is represented by

PBWT, the defendant in 23-CV-3353.

Plaintiff filed applications to proceed in forma pauperis with each of the present complaints

and, by Order dated May 26, 2023, the Court denied those applications without prejudice and with

leave to renew on the AO 239 Long Form in forma pauperis application. (See DE 10 in 23-CV-

1419 and DE 9 in 23-CV-3353.) Plaintiff timely renewed her applications to proceed in forma

pauperis. (See DE 11 in 23-CV-1419 and DE 10 in 23-CV-3353.) With this context, the Court

addresses the present complaints below.3

A. Gioia v. Southend Psychiatry, 23-CV-1419

Plaintiff, who is alleged to reside in Ronkonkoma, New York, filed a pro se complaint

against South End Psychiatry (“SEP”) and alleges that SEP’s address is in the Bronx, New York.

(Compl., 23-CV-1419, DE 1 at ¶ I.) Plaintiff checked the box to indicate that she seeks to invoke

this Court’s federal question subject matter jurisdiction yet alleges that her claims are for “medical

malpractice” and “negligence” and “abuse of power.” (DE 1 at ¶ II.) Although the form

complaint asks for the “specific federal statutes, federal treaties, and/or provisions of the United

States Constitution that are at issue in this case,” Plaintiff has not provided any. (See id.) In the

2 See 19-CV-4629(JMA)(SIL) Gioia v. Janssen Pharmaceutical (complaint and amended complaint dismissed with

prejudice and affirmed on appeal (see Mandate, 22-53, Docket Entry No. 63) because “it lacks an arguable basis either

in law or in fact.”); 19-CV-5377(JMA)(SIL) Gioia v. Janssen Pharmaceutical (complaint and amended complaint

dismissed with prejudice and appeal dismissed by Mandate, 22-52, Docket Entry No. 55); 20-CV-4014(JMA)(SIL)

Gioia v. AP Singh Main St. Wine and Liquors (sua sponte dismissed for failure to state a claim pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii)); and 23-CV-1187(JMA)(SIL) Gioia v. Janssen Pharmaceutical (pending).

3 Excerpts from the complaints are reproduced here exactly as they appear in the originals. Errors in spelling,

punctuation, and grammar have not been corrected or noted.

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space on the form complaint that calls for the amount in controversy, Plaintiff wrote:

Psychological and mental angush and torment in particularly over the holidays:

friends, family, trauma, PTSD. Lost car and job and apartment was broken into

just because of her malpractice and negligence bused on abuse of power, apathy

and spite.

(Id. ¶ II.3.) In the space that calls for “a short and plain statement of the claim”, Plaintiff wrote:

Wrong test ordered twice and used to blackmale for vital daily medication. She

had a duty to prescribe monthly but insisted bi-weekly and this time around

prescribed the wrong test twice and withheld my medicine.

(Id. ¶ III.) Plaintiff also referenced a typed page annexed to her complaint that alleges, in its

entirety:

My (Maria Gioia) Psychiatric medication Aderal 20mg twice a day was withheld

from prescribing normal 2 week prescription which was supposed to be prescribed

on Dec 19, 2022 however RN or Doctor Hodge whom I’ve been seeing on zoom

every two weeks for this medication prescription refused to prescribe this time

around just before the holidays and insisted an unecessary test be done which I had

to go to Quest Labs to get a urine canister to pee in for 24 hours to test for Heavy

Metal Poisoning, of which I showed absolutely no signs of any such symptoms or

had any exposure so it was an unecsary test especially during the holidays and

especially should not have withheld writing my important psych medication over

this demand. I took the test twice and she kept refusing to call in my prescription

and then went on vacation. I tried calling Quest Labs to get the office the results

however it was Dec 31, 2022 and still no results. I explained to the office secretaries

that even if I tested positive for heavy metal poisoning, that would not alter the

prognosis of my psych meds and there was no reason to keep withholding this

important medicine for my mental health and well being. Finally, on Dec 31, 2022

at around 5:30pm, the leader of the group (I believe) Dr Reagan texted me to call

him so I did and he then said that the doctor gave me the wrong test to do twice and

he proceeded to try to cover things up by saying she should have told me to take a

urine drug test, which the results would have been available immediately and I

would be and still am more than willing to have taken and/or take. This error was

not a technical error and it happened twice that she gave me this unecesary test and

withheld my important psych meds. This cost me my holidays because the mental

anxiety and anguish ruined the holidays I so eagerly love and work hard to enjoy

with my friends, family, and community but was not able to do so due to her

disrespect and negligence and purposeful meanness for control and abuse of

authority and rights to write a prescription against her duty and hippocractic oath

as a physician and at risk of not only the holidays that were ruined but also I lost

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my job, my car, and my aparment was broken into and vandalized. I am suing for

$1 million: $1,000,000.00. See attatched for proof of losing my car, job, and

aparment broken into and robbed. You can only imagine how my holidays went

even beyond these consequences of being off my medication while going into my

favorite number year 2023 and Christmas just due to her arrogance, stubbornness,

and abuse of power.

(Id. at p. 7.)

B. Gioia v. Patterson Belknap Webb & Tyler, 23-CV-3353

Like the complaint assigned docket number 23-CV-1419, this complaint is submitted on

the Court’s general complaint form and also seeks to invoke this Court’s federal question subject

matter jurisdiction. (Compl, 23-CV-3353, DE 1 at ¶¶ I-II.) The sole defendant is PBWT, which

represented Janssen Pharmaceuticals in prior litigation brought by Plaintiff. See 19-CV-4629, 19-

Cv-5377, and 23-Cv-1187. In the space that ask for “the specific federal statutes, federal treaties,

and/or provisions of the United States Constitution that are at issue in this case”, Plaintiff wrote:

abuse of power, bullying, malpractice, denying my civil rights to a fair trial,

negligence, failure to acknowledge and realize facts and failure to do research;

ignoring and bullying Pro Se Plaintiff; lying and cheating for favoritism/easier

channels; manhandling; changing course of plans as and when convenient.

(Id. ¶ II.A.) Plaintiff also completed the section on the form complaint that calls for the

citizenship of the parties and alleges that she and PBWT are both citizens of New York. (Id. ¶ II.

B.) In addition, Plaintiff alleges that the amount in controversy is $32 million. (Id.)

Plaintiff’s Statement of Claim is difficult to decipher. As the Court can best discern,

Plaintiff challenges the representation that PBWT provided to Janssen Pharmaceuticals, Inc.

during litigation beginning in July 2019. (Id. ¶ III.) Initially, Plaintiff complains that PBWT

removed a complaint that she had filed in the New York State Supreme Court, Suffolk County.4

4 The Court understand this to reference her complaint filed in Supreme Court, Suffolk County under Index Number

19-04582 and removed to this Court and assigned Docket number 19-CV-5377.

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(Id.) Plaintiff also alleges that PBWT “failed to realize that Janssen can Not be legally served nor

can they hire lawyers or represent themselves in a legal case on their own initiative.” (Id.)

(emphasis in original). Plaintiff alleges that she served Johnson and Johnson in July 2019 and

“was not allowed to serve Janssen.” (Id.) Plaintiff also alleges that she “even did a ‘Motion to

Remand’ back to the original court.5 Patterson Belknap Webb and Tyler neglected this

continually even if not in best interests of their client as well as being unlawful due to facts and

reality + unspoken promised agreement + merits of my case.” (Id.) Plaintiff complains that

“there was no discovery” in the first 2019 case and alleges that she is “not even sure if my whole

case was uploaded properly.” (Id.) Plaintiff also complains that PBWT “moved it again when

the Supreme Court most likely mistakenly mailed Patterson Belknap Webb and Tyler about e-

filing and not knowing they were going to be involved.” (Id.)6

In addition, on June 27, 2023, Plaintiff filed a motion seeking to change the amount

demanded for relief to $3.14 million and to add four “pages of summary to the complaint.” (See

DE 13.) The first page Plaintiff seeks to add is a single page, incoherent, typed letter dated June

16, 2023 from Plaintiff that provides:

Janssen Pharmaceutical in Titusville, NJ is not legally servable and must forward

all legalities to Johnson and Johnson in New Brunswick, NJ. In addition, litigation

would not be in favor of defendant Janssen Pharm due to agreed upon compensation

for taking my information while pretending to be lawyers to update their website

Invega.com in July 2019. Failure to warn about several side effects of which I

made them aware about in July 2019 and promoting the novel medication in

quantity and without regards to patient population before the proper time went by

as usually done even after passing the first steps of FDA approval. And in

particularly to me and my career: Failure to Warn about overall outcome of

subclinical hypothyroidism (much of which irreversible). Please also see Letter of

5 Plaintiff’s Motion to Remand in 19-CV-5377 was denied by Electronic Order dated October 20, 2020.

6 Though far from clear, it appears that Plaintiff is referencing her other state court complaint that she filed against

Janssen Pharmaceutical and PBWT removed to this Court. See 19-CV-4629, Gioia v. Janssen Pharmaceutical.

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Right to Sue individual pharmaceutical company from EEOC (Equal Employment

Opportunity Comission) included in whole case also please note.

(DE 13 at 9.) The second page Plaintiff seeks to add bears the Supreme Court, Suffolk County’s

caption and is entitled “Affidavit of Due Diligence” and appears to have Plaintiff’s handwritten

annotations reflecting that Janssen Pharmaceuticals is “not legally servable at Titusville, NJ” and

instead Plaintiff provides and address of “1 Johnson and Johnson Plaza New Brunswick, NJ

08901.” (DE 13 at 10.) The third page is difficult to read but appears to be a printout of the

website Invega.com with Plaintiff’s handwritten annotations. (DE 13 at 11.) Finally, the fourth

page is an excerpt from a filing under docket number 19-CV-5377 and appears to be a copy of a

rating from an Internet lawyer rating reflecting that this attorney or firm (presumably PBWT)

received the “highest rating of 10.0 by AVVO, the top Internet Lawyer rating service”, was

“named best lawyer by U.S. News & World Report” and was “selected as a Super Lawyer.” (DE

13 at 12.) The handwritten annotations are largely indecipherable yet appear to allege that PBWT

are “pretending to be lawyers (malintent) and no informed formal consent to take my medical

knowledge to update their website and data.” (Id.)7

II. DISCUSSION

A. In Forma Pauperis Application

Upon review of Plaintiff’s declarations in support of her renewed applications to proceed

in forma pauperis, the Court finds that Plaintiff is qualified to commence these actions without

prepayment of the filing fee. 28 U.S.C. § 1915(a)(1). Therefore, Plaintiff’s renewed

applications to proceed in forma pauperis are granted.

7 PBWT takes no position on whether Plaintiff’s motion to add documents and change the requested demand to $3.14

million. (See DE 14.)

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B. Standard of Review

The in forma pauperis statute requires that a court dismiss an action if it determines that it

“(i) is frivolous or malicious, (ii) fails to state a claim upon which relief may be granted, or (iii)

seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. §

1915(e)(2)(B). The Court must dismiss the action as soon as it makes such a determination.

Pro se submissions are afforded wide interpretational latitude and should be held “to less

stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519,

520 (1972) (per curiam); see also Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997). In

addition, the court is required to read a pro se complaint liberally and interpret it as raising the

strongest arguments it suggests. United States v. Akinrosotu, 637 F.3d 165, 167 (2d Cir. 2011)

(per curiam) (citation omitted); see also Kirkland v. Cablevision Sys., 760 F. 3d 223, 224 (2d Cir.

2014) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)) (the Court must interpret a

pro se plaintiff’s pleadings “to raise the strongest arguments that they suggest.”)

The Supreme Court has held that pro se complaints need not even plead specific facts;

rather the complainant “need only give the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation

marks and citations omitted); cf. Fed. R. Civ. P. 8(e) (“Pleadings must be construed so as to do

justice.”). However, a pro se plaintiff must still plead “enough facts to state a claim to relief that

is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim

has facial plausibility when the plaintiff pleads factual content that allows the court to draw the

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

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556 U.S. 662, 678 (2009) (citations omitted). The plausibility standard requires “more than a

sheer possibility that a defendant has acted unlawfully.” Id. at 678. While “‘detailed factual

allegations’” are not required, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic

recitation of the elements of a cause of action will not do.’” Id. at 678 (quoting Twombly, 550

U.S. at 555).

C. Subject Matter Jurisdiction

Notwithstanding the liberal pleading standard afforded pro se litigants, federal courts are

courts of limited jurisdiction and may not preside over cases if subject matter jurisdiction is

lacking. Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000). Unlike

lack of personal jurisdiction, lack of subject matter jurisdiction cannot be waived and may be raised

at any time by a party or by the Court sua sponte. Id. “If subject matter jurisdiction is lacking, the

action must be dismissed.” Id. at 700-01; see also FED. R. CIV. P. 12(h)(3). The party asserting

jurisdiction bears the burden of proof. DiTolla v. Doral Dental IPA of N.Y., 469 F.3d 271, 275

(2d Cir. 2006).

Section 1331 provides that “district courts shall have original jurisdiction of all civil actions

arising under the Constitution, laws or treaties of the United States.” 28 U.S.C. § 1331. “A case

aris[es] under federal law within the meaning of § 1331 . . . if a well-pleaded complaint establishes

either that federal law creates the cause of action or that the plaintiff’s right to relief necessarily

depends on resolution of a substantial question of federal law.” Empire Healthchoice Assurance,

Inc. v. McVeigh, 547 U.S. 677, 689-90 (2006) (internal quotation marks and citations omitted). A

plaintiff properly invokes Section 1331 jurisdiction when he or she pleads a colorable claim

“arising under” the Constitution or laws of the United States. Arbaugh v. Y & H Corp., 546 U.S.

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500, 513 (2006). A claim alleging federal question jurisdiction “may be dismissed for want of

subject-matter jurisdiction if it is not colorable, i.e., if it is ‘immaterial and made solely for the

purpose of obtaining jurisdiction’ or is ‘wholly insubstantial and frivolous.’” Id. at 513 n.10.

Section 1332 provides that federal jurisdiction may be established where there is a diversity

of citizenship between the parties and the amount in controversy exceeds $75,000. 28 U.S.C. §

1332. To establish diversity jurisdiction, there must be complete diversity of citizenship between

the plaintiff and the defendants. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553

(2005). This means that the plaintiff cannot be a citizen of the same state as any of the defendants.

St. Paul Fire and Marine Ins. Co. v. Universal Builders Supply, 409 F.3d 73, 80 (2d Cir. 2005)

(“Diversity is not complete if any plaintiff is a citizen of the same state as any defendant.”).

Here, although Plaintiff seeks to invoke this Court’s subject matter jurisdiction pursuant to

Section 1331 she has not alleged a colorable federal claim. Indeed, Plaintiff alleges that her

claims against SEP are for “medical malpractice” and “negligence” and “abuse of power” in the

complaint assigned docket number 23-1419. (See Compl., 23-1419, DE 1 at ¶ II.) Similarly,

Plaintiff’s other complaint alleges that PBWT is liable for “abuse of power, bullying, malpractice,

denying my civil rights to a fair trial, negligence, failure to acknowledge and realize facts and

failure to do research; ignoring and bullying Pro Se Plaintiff; lying and cheating for

favoritism/easier channels; manhandling; changing course of plans as and when convenient.” (See

Compl., 23-3353, DE 1 at ¶ II.A.) As is readily apparent, Plaintiff has not alleged a colorable

federal claim and, even affording the allegations a liberal construction given Plaintiff’s pro se

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status, no colorable federal claim could be reasonably construed from the pleadings.8 Thus, this

Court’s subject matter jurisdiction does not lie pursuant to Section 1331.

In an abundance of caution in light of Plaintiff’s pro se status, the Court has also considered

whether subject matter jurisdiction may be invoked pursuant to Section 1332 and finds that it may

not. The parties are not of diverse citizenship, given that Plaintiff, SEP, and PBWT are all alleged

to be New York citizens. 28 U.S.C. § 1332. Because the parties are all domiciled in New York,

diversity of citizenship is not satisfied. See, e.g., Advani Enters., Inc. v. Underwriters at Lloyds,

140 F.3d 157, 160 (2d Cir. 1998) (Diversity is complete when the complaint “demonstrate[s] that

[the plaintiff] does not share citizenship with any of the defendants.”).

Accordingly, Plaintiff’s complaints do not properly invoke subject matter jurisdiction

pursuant to either Section 1331 or 1332 and must be dismissed without prejudice. Although

courts hold pro se complaints “to less stringent standards than formal pleadings drafted by

lawyers,” Hughes v. Rowe, 449 U.S. 5, 9 (1980), pro se litigants must establish subject matter

jurisdiction. See, e.g., Rene v. Citibank N.A., 32 F. Supp. 2d 539, 541-42 (E.D.N.Y. 1999)

(dismissing pro se complaint for lack of subject matter jurisdiction). Given that this Court lacks

8 Although a civil rights deprivation may be properly brought pursuant to 42 U.S.C. § 1983, a federal statute, such a

claim is not colorable here. In order to state a § 1983 claim, a plaintiff must allege two essential elements. First, the

conduct challenged must have been “committed by a person acting under color of state law.” Cornejo v. Bell, 592

F.3d 121, 127 (2d Cir. 2010) (quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)); see also Am. Mfrs. Mut.

Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (“[T]he under-color-of-state-law element of § 1983 excludes from its

reach merely private conduct, no matter how discriminatory or wrongful.”) (internal quotation marks and citation

omitted). Second, “the conduct complained of must have deprived a person of rights, privileges or immunities

secured by the Constitution or laws of the United States.” Id.; see also Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999).

Given that PBWT is a private law firm, and there are no allegations from which the Court could reasonably construe

state action, Plaintiff has not satisfied the state action requirement. Nor has Plaintiff alleged any facts, even if the

state action prong was met, establishing that she was deprived of some constitutional right. Although she claims she

was “denied a fair trial”, the facts as known to this Court belie that allegation. PBWT properly removed her state

court complaints to this Court and this Court denied Plaintiff’s motions to remand. See 19-CV-4629, Gioia v. Janssen

Pharmaceutical, DE 18 and Elec. Order, dated Sept. 28, 2020); 19-CV-5377, Gioia v. Janssen Pharmaceutical, DE

18 and Elec. Order dated Feb. 20, 2020.)

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subject matter jurisdiction under Section 1331 and Section 1332, the complaints are dismissed

without prejudice pursuant to FED. R. CIV. P. 12(h)(3).

D. Leave to Amend

A pro se plaintiff should ordinarily be given the opportunity “to amend at least once when

a liberal reading of the complaint gives any indication that a valid claim might be stated.” Shomo

v. City of New York, 579 F.3d 176 (2d Cir. 2009) (quoting Gomez v. USAA Fed. Sav. Bank, 171

F.3d 794, 795-96 (2d Cir. 1999) (internal quotation marks omitted)). However, while “pro se

plaintiffs are generally given leave to amend a deficient complaint, a district court may deny leave

to amend when amendment would be futile.” Id. (citations omitted).

Here, the Court has carefully considered whether Plaintiff should be granted leave to

amend her complaints. Because the Court lacks subject matter jurisdiction, which could not be

cured even if Plaintiff is afforded an opportunity to amend her complaints, leave to amend the

complaints is denied.

E. 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.

§ 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). Such an injunction, while protecting the courts and parties from frivolous litigation,

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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 instant cases are Plaintiff’s fifth and sixth in this Court and largely relate to the same

subject matter. Plaintiff’s litigation history suggests that she may file a new action here relating

to her prior litigation involving Janssen Pharmaceutical. The Court has an “obligation to protect

the public and the efficient administration of justice from individuals who have a history of

litigation entailing vexation, harassment and needless expense to other parties and an unnecessary

burden on the courts and their supporting personnel.” Lau v. Meddaugh, 229 F. 3d 121, 123 (2d

Cir. 2000) (internal quotation marks, citations, and alteration omitted).

The Court does not find that there are sufficient grounds, at this time, for a litigation

injunction. However, Plaintiff is on notice that future, frivolous lawsuits arising from or relating

to her prior litigation involving Janssen Pharmaceutical will not be tolerated by the Court. In

short, given Plaintiff’s well-documented history of litigation in this Court, Plaintiff is cautioned

that sanctions may be imposed, including in the form of a litigation injunction, should she continue

in this course of conduct. Should Plaintiff file another complaint arising from or relating to her

prior litigation involving Janssen Pharmaceutical, the Court will order Plaintiff to show cause why

a litigation bar should not be entered. Plaintiff is further warned that frivolous complaints

concerning any other subject matter may also result in the Court ordering Plaintiff to show cause

why a litigation bar should not be entered.

Finally, Plaintiff is cautioned that Rule 11 of the Federal Rule of Civil Procedure applies

to pro se litigants, see Maduakolam v. Columbia Univ., 866 F.2d 53, 56 (2d Cir. 1989) (“Rule 11

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applies both to represented and pro se litigants . . .”), and should she file another action relating to

this subject, it is within the Court’s authority to consider imposing sanctions upon her. See FED.

R. CIV. P. 11; In re Martin-Trigona, 737 F.2d 1254, 1262 (2d Cir. 1984) (a district court has “the

power and the obligation to protect the public and the efficient administration of justice from [a

vexatious litigant’s] litigious propensities”); Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir.

1986) (“‘A district court not only may but should protect its ability to carry out its constitutional

functions against the threat of onerous, multiplicitous, and baseless litigation.’”) (quoting Abdullah

v. Gatto, 773 F.2d 487, 488 (2d Cir. 1985) (per curiam)).

III. CONCLUSION

For the reasons stated above, Plaintiff’s renewed applications to proceed in forma pauperis

are GRANTED. However, because the Court lacks subject matter jurisdiction, Plaintiff’s

complaints are DISMISSED WITHOUT PREJUDICE pursuant to Federal Rules of Civil

Procedure 12(h)(3). Leave to amend the complaints would be futile and is thus DENIED.

Given Plaintiff’s litigation history in this Court, Plaintiff is WARNED that her continued

filing of new complaints arising from or relating to her prior litigation involving Janssen

Pharmaceutical will not be tolerated. Should Plaintiff file another complaint arising from or

relating to her prior litigation involving Janssen Pharmaceutical, the Court will order Plaintiff to

show cause why a litigation bar should not be entered. Plaintiff is further warned that frivolous

complaints concerning any other subject matter may also result in the Court ordering Plaintiff to

show cause why a litigation bar should not be entered.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order

would not be taken in good faith and therefore in forma pauperis status is denied for the purpose

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of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

The Clerk of Court shall mail a copy of this Order to the Plaintiff at her address of record.

SO ORDERED.

_____/s/ (JMA)_______________

Dated: October 12, 2023 Joan M. Azrack

Central Islip, New York United States District Judge

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