Johnson v. New York State Division of Human Rights

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

ROBERT W. JOHNSON,

Plaintiff,

v. 5:22-cv-00463-MAD-TWD

COLLEEN McMAHON,

Defendant.

ROBERT W. JOHNSON,

Plaintiff,

v. 5:22-cv-00464-MAD-TWD

SHAWN RUSIN,

Defendant.

ROBERT W. JOHNSON,

Plaintiff,

v. 5:22-cv-00465-MAD-TWD

DAVID E. POWELL,

Defendant.

ROBERT W. JOHNSON,

Plaintiff,

v. 5:22-cv-00466-MAD-TWD

NEW YORK STATE DIVISION

OF HUMAN RIGHTS,

Defendant.

ROBERT W. JOHNSON,

Plaintiff,

v. 5:22-cv-00467-MAD-TWD

VERA HOUSE, INC, and

MARCUS OF VERA HOUSE, INC.,

Defendants.

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

REPORT-RECOMMENDATION AND ORDER

Plaintiff Robert W. Johnson (“Plaintiff”), proceeding pro se, commenced the five (5)

above-captioned actions on April 26, 2022, and, in lieu of paying the Northern District of New

York’s filing fee, seeks leave to proceed in forma pauperis (“IFP”).1

I. IFP APPLICATIONS

Plaintiff declares that he is unable to pay the filing fee for the above-captioned actions.2

The undersigned has reviewed each of Plaintiff’s IFP applications and determines that he

financially qualifies to procced IFP. Therefore, Plaintiff’s IFP applications are granted.

II. STANDARD OF REVIEW

Under Section 1915(e), the Court must dismiss a complaint filed IFP if it determines that

the action “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted;

or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §

1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998).

The Court must also dismiss a complaint, or portion thereof, when the Court lacks subject-matter

jurisdiction. See Fed. R. Civ. P. 12(h)(3). While the law mandates dismissal on any of these

grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66,

1 The undersigned notes that by Order to Show Cause filed May 6, 2022, Chief United States

District Court Judge Glenn T. Suddaby ordered Plaintiff to show cause why he should not be

enjoined from filing any future pleadings or documents of any kind (including motions) in the

Northern District of New York pro se without prior permission of the Chief Judge or his or her

designee (except pleadings or documents in an action that is open at the time of the issuance of

the Court’s anti-filing injunction or “Pre-Filing Order,” until that action is closed). See In Re:

Robert W. Johnson, No. 22-pf-00003-GTS (N.D.N.Y.) (filed 05/06/22). Between April 26,

2022, and May 5, 2022, a period of only ten (10) days, Plaintiff filed forty-seven (47) pro se civil

rights actions in this District, including the five (5) actions at bar.

2 To that end, in each application to proceed IFP, Plaintiff declares that he is not incarcerated, he

is not employed, he has no take home wages, he has not received other income in the past twelve

months, he has no money in cash or in checking or savings account, he has no items of value, he

has no expenses, and he has no debts or financial obligations.

72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,”

Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation

marks and citations omitted, emphasis in original).

A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v.

Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds by Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007); see also Denton v. Hernandez, 504 U.S. 25, 33 (1992) (holding that “a

finding of factual frivolousness is appropriate when the facts alleged rise to the level of the

irrational or the wholly incredible”); Livingston, 141 F.3d at 437 (“[A]n action is ‘frivolous’

when either: (1) the factual contentions are clearly baseless . . . or (2) the claim is based on an

indisputably meritless legal theory.”) (internal quotation marks and citation omitted).

Having carefully reviewed the operative pleadings, the Court finds that they consist of

purported “appeals” from decisions and/or orders recently issued by the United States District

Court for the Southern District of New York (“Southern District”) and District of Connecticut.

See Johnson v. McMahon, 5:22-cv-00463-MAD-TWD (N.D.N.Y.) (operative pleading consists

of a two-page motion for default judgment from the Southern District) (filed 04/26/22); Johnson

v. Rusin, 5:22-cv-00464-MAD-TWD (N.D.N.Y.) operative pleading consists of a two-page

motion for default judgment from the District of Connecticut) (filed 04/26/22); Johnson v.

Powell, 5:22-cv-00465-MAD-TWD (N.D.N.Y.) (operative pleading consists of a two-page

motion for default judgment from the District of Connecticut) (filed 04/26/22); Johnson v. Vera

House, 5:22-cv-00466-MAD-TWD (N.D.N.Y.) (operative pleading consists of a two-page

motion for default judgment from the District of Connecticut) (filed 04/26/22); Johnson v. New

York State Division of Human Rights, No. 5:22-cv-00467-MAD-TWD (N.D.N.Y.) (operative

pleading consists of an “Appeal for Alleged Injunction” from the District of Connecticut) (filed

04/26/22).3 At the time of filing, Plaintiff was advised of the impropriety of filing such actions

in this District but insisted on doing so anyway.

Plaintiff’s extensive and abusive litigation history in the Southern District of New York

and District of Connecticut reveals that he is subject to numerous bar orders/filing injunctions.

See, e.g., Johnson v. Wolf, 1:19-cv-07337-GHW, Bar Order (S.D.N.Y.) (filed 07/13/20); Johnson

v. New York Police Dep’t, 1:20-cv-01368-CM, Bar Order (S.D.N.Y.) (filed 08/13/20); Johnson v.

Town of Onondaga, 1:19-cv-11128-CM, Bar Order (S.D.N.Y.) (filed 04/01/21); Johnson v. Vera

House, Inc., 3:22-CV-00314-SALM, Bar Order (D. Conn) (filed 04/13/22). Plaintiff is also

subject to a bar order in the Southern District of Ohio. Johnson v. Coe, Nos. 2:19-CV-02428-

EAS, 2:19-CV-02490-EAS, 2:19-CV-02865-EAS, Bar Orders (S.D. Ohio) (filed 08/05/19). He

has also been warned by the Second Circuit that the continued filing of frivolous appeals could

result in a filing injunction. See Johnson v. Wolfe, 2020 WL 2544909, at *1 (2d Cir. May 7,

2020). Moreover, in Johnson v. Vera House, 3:22-CV-00314-SALM, it was ordered: “If Mr.

Johnson files any action in any District Court within the Second Circuit in the future, he must

attach a copy of this Order to his Complaint. The District Courts of the Second Circuit are the

District of Connecticut; the District of Vermont; and the Eastern, Northern, Southern, and

3 The Court notes that a review of the District of Connecticut’s CM/ECF System confirms this

fact. See 3:22-CV-00146-SALM (D. Conn.) (filed 01/25/22; dismissed 02/17/22; notice of

possible anti-filing injunction 02/17/22); 3:22-CV-00256-SALM (D. Conn.) filed 02/14/22;

dismissed 02/17/22; notice of possible anti-filing injunction 02/17/22); 3:22-CV-00233-SALM

(D. Conn.) (filed 02/05/22; dismissed 02/17/22; notice of possible anti-filing injunction

02/17/22); 3:22-CV-00314-SALM (D. Conn.) (filed 02/28/22; dismissed 03/18/22; Order

enjoining Plaintiff from filing future civil actions in the District of Connecticut without leave of

court 03/18/22). In each of the foregoing actions filed in the District of Connecticut, United

States District Judge Sarah A. L. Merriam found that dismissal was required because the Court

lacked subject matter jurisdiction over the matter, Plaintiff’s IFP complaints failed to state a

claim upon which relief could be granted, and/or failed to comply with the requirements of Rule

8 of the Federal Rules of Civil Procedure.

Western Districts of New York.” Johnson v. Vera House, Inc., 3:22-CV-00314-SALM, 2022

WL 829337, at *5 (D. Conn. Mar. 18, 2022) (emphasis in original). Plaintiff has also failed to

comply with that Order.

In sum, Plaintiff’s attempt to circumvent the bar orders issued by the Southern District of

New York and District of Connecticut, and the warning issued by the Second Circuit, by

commencing the five (5) above-captioned “appeals” in this District is wholly improper and

frivolous. 28 U.S.C. § 1915(e)(2)(B)(i).

Moreover, in Case 5:22-cv-00463-MAD-TWD, Plaintiff names the Honorable Colleen

McMahon, Chief United States District Judge of the Southern District of New York, as a

defendant because she “abused her immunities” and denied Plaintiff relief.4 However, claims

against judges are barred by the doctrine of judicial immunity. See Mireles v. Waco, 502 U.S. 9,

11 (1991); see, e.g., Parsons v. United States, 20-CV-7231 (LLS), 2020 WL 5634260, at *2

(S.D.N.Y. Sept. 18, 2020) (dismissing claims against Chief Judge McMahon under the doctrine

of judicial immunity and as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), (iii)) (citing Mills

v. Fischer, 645 F.3d 176, 177 (2d Cir. 2011) (“Any claim dismissed on the ground of absolute

judicial immunity is ‘frivolous’ for purposes of [the IFP statute].”)); Montero v. Travis, 171 F.3d

757, 760 (2d Cir. 1999) (“A complaint will be dismissed as ‘frivolous’ when ‘it is clear that the

4 A review of the Southern District’s CM/ECF System confirms Chief Judge McMahon

dismissed several of Plaintiff’s actions as frivolous. See, e.g., 1:19-cv-02902-CM (S.D.N.Y.)

(filed 03/29/19; dismissed 05/22/19); 1:19-cv-07111-CM (S.D.N.Y.) (filed 07/30/19; dismissed

11/25/19); 1:19-cv-08249-CM (S.D.N.Y.) (filed 09/03/19; dismissed 01/31/20); 1:19-cv-08508-

CM (S.D.N.Y.) (filed 09/10/19; dismissed 11/15/19); 1:19-cv-08662-CM (S.D.N.Y.) (filed

09/18/19; dismissed 11/12/19); 1:19-cv-08832-CM (S.D.N.Y.) (filed 09/20/19; dismissed

12/03/19); 1:19-cv-09336-CM (S.D.N.Y.) (filed 10/07/19; dismissed 11/26/19); 1:19-cv-11127-

CM (S.D.N.Y.) (filed 12/02/19; dismissed 01/24/20); 1:19-cv-11128-CM (S.D.N.Y.) (filed

12/02/19; dismissed 01/27/20); 1:19-cv-11202-CM (S.D.N.Y.) (filed 12/05/19; dismissed

02/05/20); 1:19-cv-11831-CM (S.D.N.Y.) (filed 12/20/19; dismissed 02/14/20); 1:20-cv-01368-

CM (S.D.N.Y.) (filed 02/14/20; dismissed 08/13/20).

defendants are immune from suit.’” (quoting Neitzke v. Williams, 490 U.S. at 327)), appeal

dismissed (Dec. 1, 2020).

Based upon the foregoing, the Court recommends that Plaintiff’s complaints be dismissed

upon initial review under 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

Typically, a court should not dismiss a pro se litigant’s complaint without granting leave

to amend “when a liberal reading of the complaint gives any indication that a valid claim might

be stated.” Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991). Inasmuch as the problem

with Plaintiff’s complaints are substantive and cannot be cured by a better pleading, the Court

recommends dismissal without leave to amend. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d

Cir. 2000).

ACCORDINGLY, it is hereby

ORDERED that Plaintiff’s motions to proceed in forma pauperis are granted for

purposes of initial review only; and it is further

RECOMMENDED that Plaintiff’s complaints in the five (5) above-captioned actions be

DISMISSED WITHOUT LEAVE TO AMEND pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(iii),

and it is further

ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-

Recommendation, along with copies of the unpublished decisions cited herein in accordance

with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file

written objections to the foregoing report.5 Such objections shall be filed with the Clerk of the

5 If you are proceeding pro se and are served with this Order and Report-Recommendation by

mail, three additional days will be added to the fourteen-day period, meaning that you have

seventeen days from the date the Order and Report-Recommendation was mailed to you to serve

Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL

PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing

Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1)

(Supp. 2013); Fed. R. Civ. P. 72, 6(a).

Dated: May 10, 2022 ¢ Lo , 4

Syracuse, New York eel

Theérése Wiley Dancks

United States Magistrate Judge

and file objections. Fed. R. Civ. P. 6(d). Ifthe last day of that prescribed period falls on a

Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day

that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).

2022 WL 829337 York State, et al., 3:22CV00191(SALM) (Jan. 31, 2022);

Only the Westlaw citation is currently available. Johnson v. Kent, et al., 3:22CV00192(SALM) (Jan. 31,

United States District Court, D. Connecticut. 2022); Johnson v. Connell, et al., 3:22CV00207(SALM) (Feb.

7, 2022); Johnson v. McMahon, et al., 3:22CV00230(SALM)

Robert W. JOHNSON (Feb. 9, 2022); Johnson v. Davidson Automotive Group,

v. et al., 3:22CV00231(SALM) (Feb. 9, 2022); Johnson

VERA HOUSE, INC. and Marcus of Vera House, Inc. v. New York State Division of Human Rights, et

al., 3:22CV00232(SALM) (Feb. 9, 2022); Johnson v.

Civ. No. 3:22CV00314(SALM) New York State, et al., 3:22CV00233(SALM) (Feb. 9,

| 2022); Johnson v. Powell, et al., 3:22CV00256(SALM)

Signed 03/18/2022 (Feb. 14, 2022); Johnson v. New York State Insurance

Company, 3:22CV00257(SALM) (Feb. 14, 2022); Johnson

Attorneys and Law Firms v. Moschouris, et al., 3:22CV00313(SALM) (Feb. 28, 2022);

Johnson v. Vera House, Inc., et al., 3:22CV00314(SALM)

Robert W. Johnson, Watertown, NY, Pro Se.

(Feb. 28, 2022).

The Court has now issued Initial Review Orders in

ORDER ENJOINING PLAINTIFF FROM FILING fourteen of these cases. In each instance, the Court has

FUTURE CIVIL ACTIONS IN THE DISTRICT OF found that dismissal was required because the Court

CONNECTICUT WITHOUT LEAVE OF COURT lacked subject matter jurisdiction over the matter, the

Complaint failed to state a claim upon which relief could

SARAH A. L. MERRIAM, UNITED STATES DISTRICT

be granted, or the Complaint failed to comply with the

JUDGE

requirements of Rule 8. See Johnson v. Fenstermaker, et

*1 Self-represented plaintiff Robert W. Johnson al., 3:22CV00101(SALM), at Doc. #12 (Feb. 17, 2022);

(“plaintiff”), a resident of New York State, has filed Johnson v. Hilton, et al., 3:22CV00110(SALM), at Doc.

28 actions in the District of Connecticut since January #11 (Feb. 17, 2022); Johnson v. Utica National Insurance

19, 2022. In each case, he has moved to proceed in Group, et al., 3:22CV00124(SALM), at Doc. #11 (Feb.

forma pauperis. See Johnson v. Fenstermaker, et al., 17, 2022); Johnson v. Chumsky, 3:22CV00145(SALM),

3:22CV00101(SALM) (Jan. 19, 2022); Johnson v. Pathfinder at Doc. #11 (Feb. 17, 2022); Johnson v. Rusin, et al.,

Bank, et al., 3:22CV00109(SALM) (Jan. 20, 2022); 3:22CV00146(SALM), at Doc. #11 (Feb. 17, 2022); Johnson

Johnson v. Hilton, et al., 3:22CV00110(SALM) (Jan. 20, v. Connell, et al., 3:22CV00207(SALM), at Doc. #7 (Feb. 28,

2022); Johnson v. Utica National Insurance Group, et al., 2022); Johnson v. McMahon, et al., 3:22CV00230(SALM),

3:22CV00124(SALM) (Jan. 21, 2022); Johnson v. Sugerman at Doc. #7 (Feb. 17, 2022); Johnson v. Davidson Automotive

Law Firm, et al., 3:22CV00126(SALM) (Jan. 21, 2022); Group, et al., 3:22CV00231(SALM), at Doc. #7 (Feb. 17,

Johnson v. Kim, et al., 3:22CV00138(SALM) (Jan. 25, 2022); 2022); Johnson v. New York State Division of Human Rights,

Johnson v. Brown, et al., 3:22CV00139(SALM) (Jan. 25, et al., 3:22CV00232(SALM), at Doc. #7 (Feb. 17, 2022);

2022); Johnson v. Catalano, 3:22CV00140(SALM) (Jan. 25, Johnson v. New York State, et al., 3:22CV00233(SALM),

2022); Johnson v. Empower Federal Credit Union, et al. at Doc. #7 (Feb. 17, 2022); Johnson v. Powell, et al.,

3:22CV00141(SALM) (Jan. 25, 2022); Johnson v. EMPRO 3:22CV00256(SALM), at Doc. #7 (Feb. 17, 2022); Johnson v.

Insurance, et al., 3:22CV00142(SALM) (Jan. 25, 2022); New York State Insurance Company, 3:22CV00257(SALM),

Johnson v. Comfort Inn Hotel, et al., 3:22CV00143(SALM) at Doc. #7 (Feb. 17, 2022); Johnson v. Moschouris, et al.,

(Jan. 25, 2022); Johnson v. Watertown Savings Bank, et al., 3:22CV00313(SALM), at Doc. #7 (March 18, 2022); Johnson

3:22CV00144(SALM) (Jan. 25, 2022); Johnson v. Chumsky, v. Vera House, Inc., et al., 3:22CV00314(SALM), at Doc. #7

3:22CV00145(SALM) (Jan. 25, 2022); Johnson v. Rusin, (March 18, 2022).

et al., 3:22CV00146(SALM) (Jan. 25, 2022); Johnson v.

Carthage Area Hospital Inc., 3:22CV00154(SALM) (Jan. 27, *2 The Court has also dismissed another ten of plaintiff's

2022); Johnson v. Loewenguth, et al., 3:22CV00167(SALM) cases due to plaintiff's failure to file a sufficient motion to

(Jan. 28, 2022); Johnson v. Michaels & Smolak, P.C., proceed in forma pauperis, or to pay the filing fee, after

without payment of fees and costs was insufficient. See the Court.

Johnson v. Pathfinder Bank, et al., 3:22CV00109(SALM),

at Doc. #10 (Feb. 28, 2022); Johnson v. Sugerman Law

Firm, et al., 3:22CV00126(SALM), at Doc. #9 (Feb. 28, Johnson v. Fenstermaker, et al., 3:22CV00101(SALM),

2022); Johnson v. Kim, et al., 3:22CV00138(SALM), at at Doc. #13 (Feb. 17, 2022); see also Johnson v.

Doc. #9 (Feb. 28, 2022); Johnson v. Brown, et al., Hilton, et al., 3:22CV00110(SALM), at Doc. #12 (Feb 17,

3:22CV00139(SALM), at Doc. #9 (Feb. 28, 2022); Johnson 2022); Johnson v. Utica National Insurance Group, et al.,

v. Catalano, 3:22CV00140(SALM), at Doc. #9 (Feb. 28, 3:22CV00124(SALM), at Doc. #12 (Feb. 17, 2022); Johnson

2022); Johnson v. Empower Federal Credit Union, et al. v. Chumsky, 3:22CV00145(SALM), at Doc. #12 (Feb. 17,

3:22CV00141(SALM), at Doc. #9 (Feb. 28, 2022); Johnson 2022); Johnson v. Rusin, et al., 3:22CV00146(SALM), at

v. EMPRO Insurance, et al., 3:22CV00142(SALM), at Doc. Doc. #12 (Feb. 17, 2022); Johnson v. McMahon, et al.,

#9 (Feb. 28, 2022); Johnson v. Comfort Inn Hotel, et al., 3:22CV00230(SALM), at Doc. #8 (Feb. 17, 2022); Johnson v.

3:22CV00143(SALM), at Doc. #9 (Feb. 28, 2022); Johnson Davidson Automotive Group, et al., 3:22CV00231(SALM),

v. Watertown Savings Bank, et al., 3:22CV00144(SALM), at Doc. #8 (Feb. 17, 2022); Johnson v. New York State

at Doc. #9 (Feb. 28, 2022); Johnson v. Loewenguth, et al., Division of Human Rights, et al., 3:22CV00232(SALM), at

3:22CV00167(SALM), at Doc. #9 (Feb. 28, 2022).1 Doc. #8 (Feb. 17, 2022); Johnson v. New York State, et al.,

3:22CV00233(SALM), at Doc. #8 (Feb. 17, 2022); Johnson

1 In another four of plaintiff's cases, the Court v. Powell, et al., 3:22CV00256(SALM), at Doc. #8 (Feb. 17,

2022).

denied, without prejudice to re-filing, plaintiff's

motions for leave to proceed in forma pauperis,

As the Court observed in the Notice, plaintiff is a resident of

as insufficient. See Johnson v. Carthage Area

New York. His claims to date have primarily been brought

Hospital Inc., 22CV00154(SALM), at Doc. #7

against other parties in New York, relating to events that

(Feb. 17, 2022); Johnson v. Michaels & Smolak,

appear to have occurred in New York. There does not appear

P.C., 22CV00188(SALM), at Doc. #6 (Feb. 17,

to be any arguable connection to the District of Connecticut.

2022); Johnson v. New York State, et al.,

Plaintiff may be filing in alternative districts -- including,

22CV00191(SALM), at Doc. #6 (Feb. 17, 2022);

but not by any means limited to, the District of Connecticut

Johnson v. Kent, et al., 22CV00192(SALM), at

-- because he has been barred from filing in the Southern

Doc. #6 (Feb. 17, 2022). Plaintiff has filed a Notice

District of New York. See Johnson v. Town of Onondaga, No.

of Appeal in three of these cases.

1:19CV11128(CM), at Doc. #7 (S.D.N.Y. Apr. 1, 2021).

On February 17, 2022, the Court issued a Notice to plaintiff

in a number of his dismissed cases, cautioning him that he In addition to the Notice issued by this Court in February,

could be subject to an injunction prohibiting him from filing plaintiff has been previously warned by a number of courts

additional cases in this District without approval of the Court, against filing frivolous matters. See, e.g., Johnson v. Wolfe,

based on his history of filing meritless cases. The Court No. 19-3891, 2020 WL 2544909, at *1 (2d Cir. May

warned: 7, 2020) (cautioning plaintiff that the continued filing of

frivolous appeals could result in a filing injunction); Johnson

v. Coe, Nos. 2:19CV02428(EAS), 2:19CV02490(EAS),

The Court cautions plaintiff that the 2:19CV02865(EAS), 2019 WL 3543542, at *4 (S.D. Ohio

repeated filing of cases that lack Aug. 5, 2019) (order declaring plaintiff a “vexatious litigator”

any arguable legal merit, or fail to and imposing a filing injunction).

state a legitimate claim for relief

under federal law, will result in the *3 After the Court issued its Notice, plaintiff filed a number

imposition of sanctions. Specifically, of appeals, as well as two additional civil matters in this Court.

the Court will enter an injunction See Johnson v. Moschouris, et al., 3:22CV00313(SALM)

prohibiting the filing of further (Feb. 28, 2022); Johnson v. Vera House, Inc., et al.,

3:22CV00314(SALM) (Feb. 28, 2022) Each of those two new

matters, like the 26 that came before them, fails to state a

arguable basis for subject matter jurisdiction. entry of a dismissal order, was dismissed either as a result

of defects in the application to proceed in forma pauperis, or

“Federal courts have both the inherent power and the at the Initial Review stage, as lacking merit. A review of the

constitutional obligation to protect their jurisdiction from national PACER Case Locator reveals that plaintiff has also

conduct which impairs their ability to carry out Article III filed at least 100 cases across the country in the past several

functions.” In re Martin Trigona, 737 F.2d 1254, 1261 (2d Cir. years, including 15 cases in the District of Vermont in the

1984). “The filing of repetitive and frivolous suits constitutes month of February 2022, and at least eight in the District of

the type of abuse for which an injunction forbidding further New Jersey this year. As previously noted, other courts have

litigation may be an appropriate sanction.” Shafii v. British been forced to limit plaintiff's access because of his abuse of

Airways, PLC, 83 F.3d 566, 571 (2d Cir. 1996). the system.

The second factor likewise weighs strongly in favor of a

[A] district court, in determining filing injunction. Plaintiff cannot have an “objective good

whether or not to restrict a litigant's faith expectation of prevailing[.]” Safir, 792 F.2d at 24.

future access to the courts, should In the Initial Review Orders in plaintiff's prior cases, the

consider the following factors: (1) Court articulated the defects in plaintiff's complaints and

the litigant's history of litigation the requirements for pleading in federal court. For example,

and in particular whether it entailed the Court has previously instructed plaintiff that a complaint

vexatious, harassing or duplicative must contain sufficient information to put a defendant on

lawsuits; (2) the litigant's motive in notice of the claims against him. The Court has informed

pursuing the litigation, e.g., does the plaintiff that a complaint must allege concrete harm, and that

litigant have an objective good faith this Court will dismiss frivolous suits. The Court has also

expectation of prevailing?; (3) whether informed plaintiff that any complaint must comply with the

the litigant is represented by counsel; requirements of Rule 8. Despite these prior orders, plaintiff

(4) whether the litigant has caused continues to file facially defective pleadings. Accordingly, the

needless expense to other parties or Court concludes that plaintiff does not have an objective good

has posed an unnecessary burden on faith expectation of prevailing on his claims.

the courts and their personnel; and

(5) whether other sanctions would be *4 The third factor, whether plaintiff is represented by

adequate to protect the courts and counsel, weighs against an injunction, because plaintiff is

other parties. Ultimately, the question self-represented.

the court must answer is whether a

litigant who has a history of vexatious The fourth factor, “whether the litigant has caused needless

litigation is likely to continue to abuse expense to other parties or has posed an unnecessary burden

the judicial process and harass other on the courts and their personnel[,]” Safir, 792 F.2d at 24,

parties. weighs strongly in favor of an injunction. While this Court has

addressed all of plaintiff's claims at the initial review stage,

such that no defendant has been required to appear and answer

Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986). his complaints, the same has not always been true in other

courts. See, e.g., Johnson v. Adams No. 19-4061 (2d Cir. Dec.

Despite ample notice that the filing of frivolous actions will 6, 2019); Johnson v. Performant Recovery, Inc., et al., No.

not be permitted, plaintiff has not been deterred. The Court 4:19CV05789(SBA) (N.D. Cal. Sept. 16, 2019); Johnson v.

therefore considers, in light of the Safir factors, whether an Performant Recovery, Inc., et al., No. 20-15022 (9th Cir. Jan

injunction barring plaintiff from filing further actions without 7, 2020). Thus, plaintiff has caused “needless expense” to

leave of the Court is appropriate. other parties. Safir, 792 F.2d at 24.

The first factor weighs strongly in favor of an injunction. Moreover, even here in the District of Connecticut, where

defendants have not been required to respond because the

failure to pay the required filing fee, plaintiff has undoubtedly PERMANENT INJUNCTION as against plaintiff Robert

“posed an unnecessary burden on the courts and their W. Johnson:

personnel[.]” Id.

Robert W. Johnson is hereby permanently enjoined from

Finally, the fifth factor weighs in favor of an injunction bringing any future case as a self-represented plaintiff in the

because “other sanctions would be [in]adequate to protect District of Connecticut without leave of the Court.

the courts and other parties.” Safir, 792 F.2d at 24. Plaintiff

claims to be indigent; although he spends a great deal of To seek leave of the Court to file a new action in this

money on postage for his court filings, he claims to have no District, Mr. Johnson shall file a motion of no more than

source of financial support and no expenses. Thus, financial three pages captioned “Application Pursuant to Court Order

sanctions would be meaningless and unenforceable. Plaintiff Seeking Leave to File.” He shall attach to this motion as

has been undeterred by the prior orders of this and other “Exhibit 1” the proposed Complaint he seeks to file. He shall

courts. No amount of explanation has affected plaintiff's attach as “Exhibit 2” to the motion a copy of this Order.

determination to continue asserting meritless claims. See

Johnson v. Adams, No. 19-4061, 2020 WL 2968458, at *1 The Clerk of the Court shall not file any future submission

(2d Cir. May 7, 2020) (“Appellant has filed several frivolous from Mr. Johnson of any kind, with the sole exception of a

matters in this Court[.] Appellant has previously been warned Notice of Appeal from this Order, without the approval of

against filing new frivolous appeals. Accordingly, Appellant the assigned judge. If Mr. Johnson files any submission, the

is warned that the continued filing of duplicative, vexatious, Clerk shall provide the submission to the assigned judge to

or clearly meritless appeals, motions, or other papers could determine whether it complies with this Order.

result in the imposition of both a monetary sanction and a

sanction that would require Appellant to obtain permission If Mr. Johnson files any action in any District Court within

from this Court prior to filing any further submissions in the Second Circuit in the future, he must attach a copy

this Court[.]” (citations omitted)); Johnson v. New York of this Order to his Complaint. The District Courts of the

State Ins. Fund, No. 19CV11831(CM), 2020 WL 764036, Second Circuit are the District of Connecticut; the District of

at *2 (S.D.N.Y. Feb. 14, 2020) (noting plaintiff's “pattern Vermont; and the Eastern, Northern, Southern, and Western

of vexatious and frivolous litigation[,]” and the prior orders Districts of New York.

entered in the Southern District of New York which “directed

Plaintiff to show cause why a filing injunction should not Failure to comply with this Order will be sufficient grounds

be imposed[ ]”); Johnson v. May, No. 1:19CV01390(JBM) for this Court to deny any motion by Mr. Johnson for leave

(TSH), at Doc. #4 at 7 (C.D. Ill. Dec. 9, 2019) (“Plaintiff is to file.

cautioned that there must be a basis in law and fact for each of

his claims as well as a basis to allege those claims against the Nothing in this Order shall be construed as having any effect

named defendants. If there is no basis for a claim or a basis to on Mr. Johnson's ability to defend himself in any criminal or

allege a claim against any particular defendant, Plaintiff may civil action brought against him. Nothing in this Order shall be

be sanctioned.”). The Court therefore finds that no sanctions construed as denying Mr. Johnson access to the courts through

short of a filing injunction would be effective. Cf. United the filing of a petition for a writ of habeas corpus or other

States v. McLaughlin, No. 3:17CR00129(MPS), 2019 WL extraordinary writ. Nothing in this Order shall be construed

5538112, at *3 (D. Conn. Oct. 25, 2019); Miller v. Stallworth, as denying Mr. Johnson access to the United States Courts of

No. 3:19CV00484(CSH), 2019 WL 3080913, at *2 (D. Conn. Appeals. Nothing in this Order shall be construed as affecting

Jul. 15, 2019); Tibbetts v. Stempel, No. 3:97CV02561(CFD), any pending action previously brought by Mr. Johnson in any

2005 WL 2146079, at *8 (D. Conn. Aug. 31, 2005), aff'd sub forum.

nom., Tibbetts v. Dittes, 167 F. App'x 851 (2d Cir. 2006); In re

Martin-Trigona, 592 F. Supp. 1566, 1569-70 (D. Conn. 1984), It is so ordered this 18th day of March, 2022, at New Haven,

aff'd, 763 F.2d 140 (2d Cir. 1985). Connecticut.

Slip Copy, 2022 WL 829337

End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works.

2020 WL 2544909 because it “lacks an arguable basis either in law or in fact.”

Only the Westlaw citation is currently available. Neitzke v. Williams, 490 U.S. 319, 325 (1989); see also 28

United States Court of Appeals, Second Circuit. U.S.C. § 1915(e).

Robert W. JOHNSON, Plaintiff-Appellant, Appellant has filed several frivolous matters in this Court,

v. including his appeals docketed under 2d Cir. 19-1688,

Catherine O’Hagan WOLFE, 19-2174, 19-2235, 19-3657, 19-3889, 19-3891, and 19-4062.

et al., Defendants-Appellees. Appellant has previously been warned against filing new

frivolous appeals. See 2d Cir. 19-4062, doc. 22; 2d Cir.

19-3891 19-3889, doc. 49. Accordingly, Appellant is warned that

| the continued filing of duplicative, vexatious, or clearly

May 7, 2020 meritless appeals, motions, or other papers could result in the

imposition of both a monetary sanction and a sanction that

Attorneys and Law Firms would require Appellant to obtain permission from this Court

prior to filing any further submissions in this Court (a “leave-

Robert W. Johnson, Pro Se

to-file” sanction). See In re Martin-Trigona, 9 F.3d 226, 229

S.D.N.Y. – N.Y.C., 19-cv-7337, Woods, J. (2d Cir. 1993); Sassower v. Sansverie, 885 F.2d 9, 11 (2d Cir.

1989) (per curiam).

Present: Pierre N. Leval, Raymond J. Lohier, Jr., Joseph F.

Bianco, Circuit Judges.

All Citations

Opinion

*1 Appellant, pro se, moves for leave to proceed in forma Not Reported in Fed. Rptr., 2020 WL 2544909

pauperis. Upon due consideration, it is hereby ORDERED

End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works.

2020 WL 5634260 of Civil Procedure, which requires a complaint to make a short

Only the Westlaw citation is currently available. and plain statement showing that the pleader is entitled to

United States District Court, S.D. New York. relief.

Tyler Joseph PARSONS, Plaintiff, The Supreme Court has held that under Rule 8, a complaint

v. must include enough facts to state a claim for relief “that

The UNITED STATES of America's, Executive is plausible on its face.” Bell Atl. Corp. v. Twombly, 550

Branch; Judge McMahon, the United States U.S. 544, 570 (2007). A claim is facially plausible if the

plaintiff pleads enough factual detail to allow the Court

of America's Judicial Branch, Defendants.

to draw the inference that the defendant is liable for the

20-CV-7231 (LLS) alleged misconduct. In reviewing the complaint, the Court

| must accept all well-pleaded factual allegations as true.

Signed 09/18/2020 Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does

not have to accept as true “[t]hreadbare recitals of the

Attorneys and Law Firms elements of a cause of action,” which are essentially just legal

conclusions. Twombly, 550 U.S. at 555. After separating legal

Tyler Joseph Parsons, New York, NY, pro se. conclusions from well-pleaded factual allegations, the Court

must determine whether those facts make it plausible – not

merely possible – that the pleader is entitled to relief. Id.

ORDER OF DISMISSAL

LOUIS L. STANTON, United States District Judge:

BACKGROUND

*1 Plaintiff, appearing pro se, brings this action alleging

that Defendants violated his “rights to a speedy and fair Plaintiff Tyler Joseph Parsons, using the Court's general

trial.” (ECF No. 2 at 2.) By order dated September 11, complaint form, brings this complaint, invoking the Court's

2020, the Court granted Plaintiff's request to proceed without federal question jurisdiction.

prepayment of fees, that is, in forma pauperis (IFP).

He alleges the following: “I, Tyler Parsons, was denied my

constitutional rights regarding a fair and speedy trial upon

dismissal of my filed case.” (ECF No. 2 at 5.) He does not

STANDARD OF REVIEW specify the case that he is referencing. In the Relief section of

The Court must dismiss an IFP complaint, or any portion of his complaint, Plaintiff writes:

the complaint, that is frivolous or malicious, fails to state a

claim on which relief may be granted, or seeks monetary relief

from a defendant who is immune from such relief. 28 U.S.C. regarding the original filing, I noted

§ 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., that no more than 1 to 2 hundred

141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss thousand dollars was owed to me.

a complaint when the Court lacks subject matter jurisdiction. After these complications I have filed

See Fed. R. Civ. P. 12(h)(3). to plea for double this amount.

While the law mandates dismissal on any of these grounds, the

Court is obliged to construe pro se pleadings liberally, Harris (Id. at 6.)

v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them

to raise the “strongest [claims] that they suggest,” Triestman A review of the Court's records reveals that on September

v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) 23, 2019, Plaintiff filed a case in this Court against the

(internal quotation marks and citations omitted) (emphasis in “United States of America Federal Government (FL, IL,

original). But the “special solicitude” in pro se cases, id. at NY),” alleging that his rights to “life, liberty, and the pursuit

CV-8828, 2 (S.D.N.Y. Oct. 25, 2019). By order dated October broadly where the issue is the immunity of the judge.” Stump

25, 2019, Chief Judge McMahon dismissed Plaintiff's case as v. Sparkman, 435 U.S. 349, 356 (1978).

frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). Id. at ECF No.

4. Plaintiff's claims against Chief Judge McMahon arise of out

of her rulings and actions while presiding over Parsons,

*2 It appears therefore that Plaintiff brings this new action ECF 1:19-CV-8828; such rulings and actions were within

because he disagrees with Judge McMahon's October 25, the scope of her judicial capacity and jurisdiction. The Court

2019 decision. On November 7, 2019, Plaintiff filed a notice therefore dismisses Plaintiff's claims against Chief Judge

of appeal in that case, but because he failed to pay the filing Colleen McMahon and “The United States of America's

fee or file an application to proceed IFP on appeal, his appeal Judicial Branch” under the doctrine of judicial immunity and

was dismissed. See Parsons v. United States, No. 19-3880 (2d as frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i), (iii); Mills

Cir. Mar. 4, 2020). v. Fischer, 645 F.3d 176, 177 (2d Cir. 2011) (“Any claim

dismissed on the ground of absolute judicial immunity is

‘frivolous’ for purposes of [the in forma pauperis statute].”);

Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999) (“A

DISCUSSION complaint will be dismissed as ‘frivolous’ when ‘it is clear

that the defendants are immune from suit.’ ” (quoting Neitzke

The Court construes Plaintiff's action as an attempt to

v. Williams, 490 U.S. 319, 327 (1989))). Plaintiff's claims

challenge Judge McMahon's October 25, 2019 dismissal of

against “The United States of America's, Executive Branch”

his prior action. See Parsons, ECF 1:19-CV-8828. Plaintiff

are dismissed as barred by sovereign immunity and as

names the Executive Branch of the United States government

frivolous. See United States v. Mitchell, 445 U.S. 535, 538

as a Defendant, but he does not include any allegations against

(1980) (quoting United States v. Sherwood, 312 U.S. 584, 586

any members of the Executive Branch.

(1941)) (“The United States, as sovereign, is immune from

suit save as it consents to be sued ..., and the terms of its

Plaintiff's claims against Chief Judge Colleen McMahon

consent to be sued in any court define that court's jurisdiction

must be dismissed. Judges are absolutely immune from

to entertain the suit.”).

suit for damages for any actions taken within the scope

of their judicial responsibilities. Mireles v. Waco, 502 U.S.

*3 District courts generally grant a pro se plaintiff an

9, 11 (1991). Generally, “acts arising out of, or related to,

opportunity to amend a complaint to cure its defects but leave

individual cases before the judge are considered judicial in

to amend is not required where it would be futile. See Hill v.

nature.” Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009).

Curcione, 657 F.3d 116, 123–24 (2d Cir. 2011); Salahuddin v.

“Even allegations of bad faith or malice cannot overcome

Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Because the defects in

judicial immunity.” Id. (citations omitted). This is because

Plaintiff's complaint cannot be cured with an amendment, the

“[w]ithout insulation from liability, judges would be subject

Court declines to grant Plaintiff leave to amend his complaint.

to harassment and intimidation....” Young v. Selsky, 41 F.3d

47, 51 (2d Cir. 1994). In addition, as amended in 1996, § 1983

provides that “in any action brought against a judicial officer

for an act or omission taken in such officer's judicial capacity, CONCLUSION

injunctive relief shall not be granted unless a declaratory

decree was violated, or declaratory relief was unavailable.” Plaintiff's complaint, filed IFP under 28 U.S.C. § 1915(a)(1),

42 U.S.C. § 1983. is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), (iii).

Judicial immunity does not apply when the judge takes action

SO ORDERED.

“outside” his judicial capacity, or when the judge takes action

that, although judicial in nature, is taken “in absence of All Citations

jurisdiction.” Mireles, 502 U.S. at 9-10; see also Bliven, 579

F.3d at 209-10 (describing actions that are judicial in nature). Slip Copy, 2020 WL 5634260