Vazquez v. St. Mary's Healthcare

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________________

CHRISTOPHER J. VAZQUEZ,

Plaintiff,

1:22-cv-00317

v. (GTS/TWD)

ST. MARY’S HEALTHCARE,

Defendant.

_____________________________________________

APPEARANCES:

CHRISTOPHER J. VAZQUEZ

Plaintiff, pro se

45 Arnold Ave.

Apt 2

Amsterdam, NY 12010

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

ORDER AND REPORT-RECOMMENDATION

Christopher J. Vazquez (“Plaintiff”), proceeding pro se, commenced this action against

St. Mary’s Healthcare (“Defendant”) on April 4, 2022, and, in lieu of paying the Northern

District of New York’s filing fee, seeks leave to proceed in forma pauperis (“IFP). (Dkt. Nos. 1,

3.1)

1 This action was administratively closed on April 4, 2022, due to Plaintiff’s failure to comply

with the filing fee requirements, and Plaintiff was directed to respond within thirty (30) days if

he wished to pursue this action. (Dkt. No. 2.) On May 2, 2022, Glenn T. Suddaby, Chief United

States District Court Judge, 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). In Re: Christopher J.

Vazquez, Respondent, 1:22-PF-0002-GTS (N.D.N.Y.) (filed 05/02/22). Although this matter was

administratively closed at the time Chief Judge Suddaby issued the Order to Show Cause,

I. IFP APPLICATION

Plaintiff declares that he is unable to pay the filing fee for this action. (See Dkt. No. 3.)

The undersigned has reviewed Plaintiff’s IFP application and determines that he financially

qualifies to procced IFP. Therefore, Plaintiff’s IFP application is granted.2

II. SCREENING OF THE COMPLAINT

A. Legal Standard

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, 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

because Plaintiff timely filed an application to proceed IFP (see Dkt. Nos. 2, 3), this action was

reopened and restored to the Court’s active docket. (Dkt No. 4.) Thereafter, Plaintiff failed to

timely respond to the Court’s Order to Show Cause. (See generally 1:22-PF-0002-GTS, Docket

Activity.) On May 23, 2022, Chief Judge Suddaby issued a Pre-Filing Injunction. Id., Dkt. No.

2.

2 Plaintiff is advised that he will still be required to pay any costs and fees that he may incur in

this matter, including, but not limited to, any copying fees or witness fees.

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).

Pleading guidelines are set forth in the Federal Rules of Civil Procedure. Specifically,

Rule 8 provides that a pleading which sets forth a claim for relief shall contain, among other

things, “a short and plain statement of the claim showing that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2). The purpose of this Rule “is to give fair notice of the claim being

asserted so as to permit the adverse party the opportunity to file a responsive answer [and]

prepare an adequate defense.” Hudson v. Artuz, 95 CIV 4768, 1998 WL 832708, at *1

(S.D.N.Y. Nov. 30, 1998) (citations omitted). The statement should be “short and plain” because

“[u]nnecessary prolixity in a pleading places an unjustified burden on the court and the party

who must respond to it because they are forced to select the relevant material from a mass of

verbiage.” Salahuddin v. Cuomo, 861 F.2d 40, 41-42 (2d Cir. 1998) (quoting 5 C. Wright & A.

Miller, Federal Practice and Procedure § 1281, at 365 (1969)). Rule 10 provides, in part:

(b) Paragraphs; Separate Statements. A party must state its claims

or defenses in numbered paragraphs, each limited as far as

practicable to a single set of circumstances.

Fed. R. Civ. P. 10(b). This serves the purpose of “provid[ing] an easy mode of identification for

referring to a particular paragraph in a prior pleading[.]” Flores v. Graphtex, 189 F.R.D. 54, 55

(N.D.N.Y. 1999) (quotation marks and citations omitted).

A complaint that does not comply with these Rules “presents far too a heavy burden in

terms of defendants’ duty to shape a comprehensive defense and provides no meaningful basis

for the Court to assess the sufficiency of [the plaintiff’s] claims,” and may properly be dismissed

by the court. Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). “Dismissal, however, is

usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or

otherwise unintelligible that its true substance, if any, is well disguised.” Artuz, 1998 WL

832708, at *2 (internal quotation marks omitted).

B. Summary of Plaintiff’s Complaint

Plaintiff does not submit a formal complaint in this matter. (See Dkt. No. 1.) His

submission consists of a one-page, handwritten letter that states, in full:

Christopher Javier Vazquez Carbuccia here. I am suing St. Mary’s

Medical Institution for not prescribing me the medication that I

have requested. I have already told them that the medication they

have given me is of no use to me and does not feel well. I demand

that I be given what I have requested. I have already been enrolled

in their reference programs which I have communicated to them as

well.

I need 60,000 USD for the disrespect and to be allowed back-to the

premises, as I did nothing to be discharged. I need a primary care

physician and this is the second one that discharges me due to their

incompetent behavior.

Take Care.

Id. at 13; see also id. at 2 (letter from St. Mary’s Healthcare Amsterdam dated March 30, 2022,

discharging Plaintiff from the practice.4)

3 Page references to documents identified by docket number are to the page numbers assigned by

the CM/ECF docketing system maintained by the Clerk’s Office. Unless noted, excerpts from

the record are reproduced exactly as they appear in the original and errors in spelling,

punctuation, and grammar have not been corrected.

4 See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991) (the complaint is

deemed to include any written instrument attached to it as an exhibit or any statements or

documents incorporated in it by reference).

On May 6, 2022, Plaintiff filed a letter demanding “25 million USD from St. Mary’s

Institution Non-Negotiable.” (Dkt. No. 5.5) Plaintiff also filed a letter motion requesting to “take

an Oath, to insure confidentiality for all courthouse matters.” (Dkt. No. 6.6) He also seeks

“Diplomatic Immunity”. Id.

C. The Court’s Analysis

Initially, Plaintiff’s complaint and submissions fails to meet the pleading standards of

Rules 8 and 10 of the Federal Rules of Civil Procedure. Plaintiff provides almost no context to

his allegations. More importantly, Plaintiff fails to demonstrate this Court’s jurisdiction as he

demonstrates neither federal question jurisdiction nor diversity jurisdiction. See Smith ex. rel.

Bey v. Kelly, 12-CV-2319, 2012 WL 1898944, at *2 (E.D.N.Y. May 24, 2012) (court is obligated

to analyze whether subject matter jurisdiction exists as a part of § 1915(e) initial review and to

dismiss the complaint when subject matter jurisdiction is found lacking); see, e.g., Vazquez v.

Times Union Newspaper, 1:21-cv-1359-DNH-CHH (N.D.N.Y.) (filed 12/20/21; dismissed

03/21/22 on initial review for lack of subject matter jurisdiction).

To properly allege diversity jurisdiction, Plaintiff must allege (1) diversity of citizenship

between the parties, and (2) an amount in controversy that exceeds $75,000. See 28 U.S.C. §

1332(a). Here, Plaintiff cannot establish diversity jurisdiction because Plaintiff and Defendant

are all citizens of the same state, New York. Plaintiff provides that he lives in Amsterdam, New

York, and St. Mary’s Healthcare is located in Amsterdam, New York.

5 Plaintiff also filed this letter in Vazquez v. Hometown Health Center, 1:21-cv-001371-MAD-

CFH (N.D.N.Y.) (Dkt. No. 7).

6 Plaintiff also filed this letter in Vazquez v. Hometown Health Center, 1:21-cv-001371-MAD-

CFH (N.D.N.Y.) (Dkt. No. 7).

In addition, Plaintiff has also failed to establish federal question jurisdiction as he has not

set forth a federal law claim. 28 U.S.C. § 1331 confers onto federal courts subject matter

jurisdiction over all federal questions, or “all civil actions arising under the Constitution, laws, or

treaties of the United States.” Federal question jurisdiction exists where the complaint

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

necessarily depends on a resolution of a substantial question of federal law.” Franchise Tax Bd.

v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983). Even liberally construed,

Plaintiff identifies no statute under which his complaint is brought and the Court can discern

none.

Generally, in cases involving pro se plaintiffs, a court should not dismiss a complaint

without granting leave to amend “at least once” “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). However, an opportunity to amend is not required where “the problem with [the

plaintiff’s] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v.

Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding L.P., 949

F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact sufficient to

support its claim, a complaint should be dismissed with prejudice.”).

Here, the Court recommends the complaint be dismissed because it is not acceptable

under Rules 8 and 10 of the Federal Rules of Civil Procedure and this Court lacks subject matter

jurisdiction. Because lack of subject matter jurisdiction is a substantive defect, Deul v. Dalton,

1:11-CV-0637 (GTS/RFT), 2012 WL 235523, at *8 n.19 (N.D.N.Y. Jan. 25, 2012), the Court

recommends dismissal without prejudice. Hollander v. Garrett, 710 F. App’x 35, 36 (2d Cir.

2018) (“[D]ismissal for subject matter jurisdiction must be without prejudice.”).

Moreover, because Plaintiff has a history of filing multiple cases, often making frivolous

allegations, that are dismissed at the screening stage for failure to state a claim, lack of subject-

matter jurisdiction, and or/failure to comply with the filing-fee requirements, see In Re:

Christopher J. Vazquez, Respondent, 1:22-PF-0002 (GTS) (N.D.N.Y.) (filed 05/02/22)

(collecting cases), the Court recommends dismissal without leave to amend.7 See, e.g., Johnson

v. Progressive.com, 19-cv-11202-CM, 2020 WL 589127, at *1 (S.D.N.Y. Feb. 5, 2020)

(declining to grant pro se plaintiff leave to amend in light of the plaintiff’s “abusive litigation

history” and where amendment would be futile).

WHEREFORE, based on the findings above, it is hereby

ORDERED that Plaintiff’s application to proceed IFP (Dkt. No. 3) is GRANTED FOR

PURPOSES OF FILING; and it is further

RECOMMENDED that this action be DISMISSED WITHOUT PREJUDICE AND

WITHOUT LEAVE TO AMEND; and it is further

ORDERED that the Clerk shall file a copy of this Order and Report-Recommendation on

Plaintiff, 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.8 Such objections shall be filed with the Clerk of the

7 In light of the foregoing recommendation, Plaintiff is not prevented from filing his complaint

in an appropriate state court, should he wish to do so. However, the undersigned makes no

finding as to whether Plaintiff can successfully or properly bring the complaint in state court.

8 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

and file objections. Fed. R. Civ. P. 6(d). If the 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).

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).

IT IS SO ORDERED.

Dated: May 25, 2022

Syracuse, New York

a Wiley Dancks :

United States Magistrate Judge

1998 WL 832708 By Judge Rakoff's Order dated April 14, 1998, this case was

Only the Westlaw citation is currently available. referred to me for general pretrial purposes and for a Report

United States District Court, S.D. New York. and Recommendation on any dispositive motion. Presently

pending is defendants' renewed motion to dismiss. Plaintiff

Theodore HUDSON, Plaintiff, filed a reply on July 6, 1998. For the reasons discussed

v. below, plaintiff's complaint is dismissed without prejudice,

Christopher ARTUZ, Warden Philip and plaintiff is granted leave to replead within thirty (30) days

Coombe, Commissioner Sergeant of the date of the entry of this order.

Ambrosino Doctor Manion Defendants.

No. 95 CIV. 4768(JSR). FACTS

|

Nov. 30, 1998. Plaintiff alleges that he was assaulted by four inmates in the

Green Haven Correctional Facility mess hall on March 14,

Attorneys and Law Firms 1995. (Complaint at 4.) He alleges that he was struck with

a pipe and a fork while in the “pop room” between 6:00

Mr. Theodore Hudson, Great Meadow Correctional Facility,

p.m. and 6:30 p.m. (Complaint at 4–5.) Plaintiff contends

Comstock.

that the attack left him with 11 stitches in his head, chronic

Alfred A. Delicata, Esq., Assistant Attorney General, New headaches, nightmares, and pain in his arm, shoulder, and

York. back. (Id.) Plaintiff also states that Sergeant Ambrosino

“failed to secure [the] area and separate” him from his

attackers. (Reply at 5.) Plaintiff's claim against Warden Artuz

is that he “fail [sic] to qualify as warden.” (Complaint at

MEMORANDUM AND ORDER

4.) Plaintiff names Commissioner Coombes as a defendant,

BUCHWALD, Magistrate J. alleging Coombes “fail [sic] to appoint a qualified warden

over security.” (Amended Complaint at 5.) Plaintiff further

*1 Plaintiff Theodore Hudson filed this pro se action alleges that Dr. Manion refused to give him pain medication.

pursuant to 42 U.S.C. § 1983 on April 26, 1995. Plaintiff's (Complaint at 5.) Plaintiff seeks to “prevent violent crimes”

complaint alleges defendants violated his constitutional rights and demands $6,000,000 in damages. (Amended Complaint

while he was an inmate at Green Haven Correctional at 5.)

Facility.1 Plaintiff's complaint was dismissed sua sponte by

Judge Thomas P. Griesa on June 26, 1995 pursuant to 28 Defendants moved to dismiss the complaint, arguing that: (1)

U.S.C. § 1915(d). On September 26, 1995, the Second Circuit the Eleventh Amendment bars suit against state defendants

Court of Appeals vacated the judgment and remanded the case for money damages; (2) the plaintiff's allegations fail to state

to the district court for further proceedings. a claim for a constitutional violation; (3) the defendants are

qualifiedly immune from damages; and (4) plaintiff must

1 Plaintiff is presently incarcerated at Sullivan exhaust his administrative remedies before bringing this suit.

Correctional Facility.

The case was reassigned to Judge Barbara S. Jones on

DISCUSSION

January 31, 1996. Defendants moved to dismiss the complaint

pursuant to Fed.R.Civ.P. 12(c) on November 25, 1996. I find that plaintiff's complaint runs afoul of Rules 8 and

Thereafter, the case was reassigned to Judge Jed S. Rakoff 10 of the Federal Rules of Civil Procedure and dismiss the

on February 26, 1997. On February 26, 1998, Judge Rakoff complaint without prejudice and with leave to amend. Federal

granted defendants' motion to dismiss, but vacated the Rule 8 requires that a complaint contain “a short and plain

judgment on April 10, 1998 in response to plaintiff's motion statement of the claim showing that the pleader is entitled to

for reconsideration in which plaintiff claimed that he never relief.” Fed.R.Civ.P. 8(a)(2). The purpose of this Rule “is to

received defendants' motion to dismiss.

prepare an adequate defense.” Powell v. Marine Midland cases in which the court dismisses a pro se complaint for

Bank, 162 F.R.D. 15, 16 (N.D.N.Y.1995) (quoting Brown v. failure to comply with Rule 8, it should give the plaintiff leave

Califano, 75 F.R.D. 497, 498 (D.D.C.1977)); see Salahuddin to amend when the complaint states a claim that is on its

v. Cuomo, 861 F.2d 40, 42 (2d Cir.1988) (stating that the face nonfrivolous. Simmons v. Abruzzo, 49 F.3d 83, 87 (2d

“principal function of pleadings under the Federal Rules is to Cir.1995).

give the adverse party fair notice of the claim asserted so as

to enable him to answer and prepare for trial”). In determining whether a nonfrivolous claim is stated, the

complaint's allegations are taken as true, and the “complaint

*2 Rule 10 of the Federal Rules of Civil Procedure requires, should not be dismissed for failure to state a claim unless

inter alia, that the allegations in a plaintiff's complaint be it appears beyond doubt that the plaintiff can prove no set

made in numbered paragraphs, each of which should recite, of facts in support of his claim which would entitle him to

as far as practicable, only a single set of circumstances. relief.” Conley v.. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99,

Moore's Federal Practice, Vol. 2A, ¶ 10.03 (1996). Rule 2 L.Ed.2d 80 (1957). The complaint of a pro se litigant is to

10 also requires that each claim upon which plaintiff seeks be liberally construed in his favor when determining whether

relief be founded upon a separate transaction or occurrence. he has stated a meritorious claim. See Haines v. Kerner, 404

Id.2 The purpose of Rule 10 is to “provide an easy mode U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Even if it

of identification for referring to a particular paragraph in a is difficult to determine the actual substance of the plaintiff's

prior pleading.” Sandler v. Capanna, 92 Civ. 4838, 1992 WL complaint, outright dismissal without leave to amend the

392597, *3 (E.D.Pa. Dec.17, 1992) (citing 5 C. Wright & complaint is generally disfavored as an abuse of discretion.

A. Miller, Federal Practice and Procedure, § 1323 at 735 See Salahuddin, 861 F.2d at 42–42; see also Doe v. City of

(1990)). New York, No. 97 Civ. 420, 1997 WL 124214, at *2 (E.D.N.Y.

Mar.12, 1997).

2 Rule 10 states:

Here, plaintiff's pro se complaint fails to satisfy the

(b) Paragraphs; Separate Statements. All

requirements of Federal Rules 8 and 10. The complaint is

averments of claim or defense shall be made in

often illegible and largely incomprehensible, scattering what

numbered paragraphs, the contents of each of

appear to be allegations specific to plaintiff within a forest

which shall be limited as far as practicable to a

of headnotes copied from prior opinions. Defendants have

statement of a single set of circumstances; and

answered with a boilerplate brief, which is perhaps all a

a paragraph may be referred to by number in all

defendant can do when faced with such a complaint. The

succeeding pleadings. Each claim founded upon

Court is left with an insurmountable burden in attempting to

a separate transaction or occurrence and each

make a reasoned ruling on such muddled pleadings.

defense other than denials shall be stated in a

separate count or defense whenever a separation

*3 Although plaintiff's complaint is substantially

facilitates the clear presentation of the matters set

incomprehensible, it appears to plead at least some claims

forth.

that cannot be termed frivolous on their face. For example,

A complaint that fails to comply with these pleading rules plaintiff clearly alleges that inmates assaulted him and that

“presents far too heavy a burden in terms of defendants' Dr. Manion refused to provide him medical attention. He also

duty to shape a comprehensive defense and provides no appears to assert that Sergeant Ambrosino failed to protect

meaningful basis for the Court to assess the sufficiency of” him from the attack or take steps to prevent future attacks.

a plaintiff's claims. Gonzales v. Wing, 167 F.R.D. 352, 355 (Plaintiff's Reply at 5). It is well established that an inmate's

(N.D.N.Y.1996). It may therefore be dismissed by the court. constitutional rights are violated when prison officials act

Id.; see also Salahuddin v. Cuomo, 861 F.2d at 42 (“When with deliberate indifference to his safety or with intent to

a complaint does not comply with the requirement that it cause him harm. Hendricks v. Coughlin, 942 F.2d 109 (2d

be short and plain, the court has the power to, on its own Cir.1991). It is similarly well established that an inmate's

initiative, ... dismiss the complaint”). Dismissal, however, is constitutional rights are violated when a prison doctor denies

“usually reserved for those cases in which the complaint is his request for medical care with deliberate indifference to

so confused, ambiguous, vague, or otherwise unintelligible the inmate's serious medical needs. Estelle v. Gamble, 429

Coughlin, 37 F.3d 63 (2d Cir.1994), cert. denied, 513 U.S. Plaintiff's complaint shall contain the facts specific to the

incidents plaintiff alleges occurred, and not any facts relating

1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (1995). Although

to any case that has been decided previously by a court of law.

plaintiff provides few facts to support his allegations, I

Plaintiff's complaint shall also contain a clear statement of the

disagree with defendants' assertion that outright dismissal is

relief he seeks in addition to monetary damages.

appropriate because it “appears beyond doubt that the plaintiff

can prove no set of facts in support of his claim which would

entitle him to relief.” Defendant's Memorandum at 5 (quoting

Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d CONCLUSION

80 (1957)).

For the reasons set forth above, plaintiff's complaint is

Because plaintiff's complaint does not comply with Rules 8 dismissed without prejudice, and plaintiff is granted leave to

and 10, it is hereby dismissed without prejudice, and plaintiff replead within thirty (30) days of the date of the entry of this

is granted leave to replead within thirty (30) days of the date Order.

of the entry of this Order. In drafting his second amended

complaint, plaintiff is directed to number each paragraph and IT IS SO ORDERED.

order the paragraphs chronologically, so that each incident in

which he alleges a constitutional violation is described in the

All Citations

order that it occurred. Plaintiff is also directed to specifically

describe the actions of each defendant that caused plaintiff Not Reported in F.Supp.2d, 1998 WL 832708

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

2012 WL 1898944 Court can best discern, Plaintiff is defending himself in an

Only the Westlaw citation is currently available. on-going criminal prosecution in the Suffolk County District

United States District Court, Court. According to the Complaint, during an appearance

E.D. New York. before Judge Kelley on May 4, 2012, Plaintiff was ordered

to undergo a mental evaluation. Plaintiff describes that, under

Matthew R. SMITH, ex rel. Kasiin Ali BEY, Plaintiff, the authority of the “Zodiac Constitution,” and in accordance

v. with the “Peace and Friendship Treaty of 1836,” the state

Chris Ann KELLY, Defendant. court lacks jurisdiction over him given that he is a Moorish–

American.

No. 12–CV–2319 (JS)(AKT).

| According to the Complaint, Plaintiff requested that Judge

May 24, 2012. Kelley provide Plaintiff with a “citation of authority to

presume jurisdiction over a Moorish American and to state

Attorneys and Law Firms the court's jurisdiction for the record.” Compl. at ¶ 5. Plaintiff

alleges that Judge Kelley failed to do so and therefore now

Matthew R. Smith, Ex Rel., Kasiin Ali Bey, Central Islip, NY,

Plaintiff “demand[s] [that] all proceedings cease until CHRIS

pro se.

ANN KELLEY properly established jurisdiction for the

No Appearance, for Defendant. record.” Compl. at ¶ 6. Plaintiff seeks to recover $100,000.00

for “libel” as well as $800 .00 for “filing, service and

handling” and “daily interest for enduring encumbrance of the

present libel” of $1,000.00 per day.

ORDER

SEYBERT, District Judge.

DISCUSSION

*1 Before the Court is the fee paid Complaint of pro

se plaintiff Matthew R. Smith, ex rel. Kasiin Ali Bey I. Standard of Review

(“Plaintiff”) filed pursuant to 42 U.S.C. § 1983 against the A district court is required to dismiss a complaint if the action

defendant, Hon. Chris Ann Kelley, Acting County Court is frivolous or malicious; fails to state a claim on which relief

Judge, Suffolk County District Court, 10th Judicial District may be granted; or seeks monetary relief against a defendant

(the “Defendant”).1 Notwithstanding Plaintiff's payment of who is immune from such relief. See 28 U.S.C. § 1915(e)(2)

the filing fee, for the reasons that follow, the Plaintiff's (B) (i-iii); Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir.2007).

Complaint is sua sponte DISMISSED pursuant to 28 U.S.C. Regardless of whether a plaintiff has paid the filing fee, a

§§ 1915(e)(2)(B)(i)-(iii). district court should dismiss a complaint, sua sponte, if it

determines that the action is frivolous. Fitzgerald v. First

1 The correct spelling of Judge Kelley's last name East Seventh Street Tenants Corp., 221 F.3d 362, 363–64 (2d

includes the letter “e” before the “y”. Plaintiff is Cir.2000). The Court is required to dismiss the action as soon

inconsistent in the spelling of this name, sometimes as it makes such a determination. 28 U.S.C. § 1915A(a).

it is “Kelly” and elsewhere it is “Kelley.” To avoid

any confusion, the Court corrects the spelling of An action is “frivolous” when either: (1) “ ‘the factual

Judge Kelley's name in the caption and the Clerk of contentions are clearly baseless,’ such as when allegations

the Court is directed to so amend the caption. are the product of delusion or fantasy,” or (2) “the claim

is ‘based on an indisputably meritless legal theory.’ “

Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437

BACKGROUND (2d Cir.1998) (internal citations omitted). It is axiomatic that

pro se complaints are held to less stringent standards than

Plaintiff, who is alleged to be of Moorish–American pleadings drafted by attorneys and the Court is required to

nationality, seeks to recover monetary damages allegedly read the plaintiff's pro se complaint liberally, Erickson v.

incurred as a result of being ordered by Judge Kelley to submit Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081

S.Ct. 285, 50 L.Ed.2d 251 (1976)); Chavis v. Chappius, 618 Realty, No. 12–CV–1241(ENV), 2012 WL 1634161, *1 n.

F.3d 162 (2d Cir.2010), and to construe them “ ‘to raise the 1 (E.D.N.Y. May 9, 2012) (citing Bey v. Am. Tax Funding,

strongest arguments that [they] suggest [ ].’ “ Chavis, 618 No. 11–CV–6458, 2012 WL 1495368, at *6 (W.D.N.Y. Apr.

F.3d at 170 (quoting Harris v. City of New York, 607 F.3d 27, 2012); Gordon v. Deutsche Bank, No. 11–CV–5090,

18, 24 (2d Cir.2010)). Moreover, at the pleadings stage of 2011 WL 5325399, at *1 n. 1 (E.D.N.Y. Nov. 3, 2011);

the proceeding, the Court must assume the truth of “all well- see, also Bey v. City of Rochester, 2012 WL 1565636, at *8

pleaded, nonconclusory factual allegations” in the complaint. (W.D.N.Y. Apr. 30, 2012) (citing El–Bey v. North Carolina,

Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 124 (2d No. 5:11–CV–0423FL, 2012 WL 368374, at *2 (E.D.N.C.

Cir.2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. Jan. 9, 2012) (unpublished) (“[A]ny claim based on the

1937, 1949–50, 173 L.Ed.2d 868 (2009)); see, also Jackson contention that Plaintiffs are not subject to the laws of North

v. Birmingham Board of Education, 544 U.S. 167, 171, 125 Carolina because of their alleged Moorish nationality and

S.Ct. 1497, 161 L.Ed.2d 361 (2005). the Treaty of Peace and Friendship of 1787 is frivolous.”),

recommendation adopted, 2012 WL 368369 (E.D.N.C. Feb.

*2 Further, “subject matter jurisdiction, because it involves 3, 2012) (unpublished); Bey v. American Tax Funding, No.

the court's power to hear a case, can never be forfeited or 11–CV–6458(CJS), 2012 WL 1498368, at *6 (W.D.N.Y.

waived.” United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. Apr. 27, 2012) (“[Plaintiffs'] purported status as a Moorish–

1781, 152 L.Ed.2d 860 (2002). The subject matter jurisdiction American citizen does not enable him to violate state and

of the federal courts is limited. Federal jurisdiction exists only federal laws without consequence.”); Gordon v. Deutsche

when a “federal question” is presented (28 U.S.C. § 1331), Bank Nat. Trust Co., No. 11–CV–5090 (WFK), 2011 WL

or where there is “diversity of citizenship” and the amount in 5325399, *1, n. 1 (E.D.N.Y. Nov. 3, 2011) (“Plaintiff's

controversy exceeds $75,000.00 (28 U.S.C. § 1332). There is suggestion that as a member of the ‘Moorish–American”

an independent obligation for a federal court to “determine nation he is immune from the laws of the United States is

whether subject matter jurisdiction exists, even in the absence misguided”) (citing Bey v. Bailey, No. 09–CV–8416, 2010

of a challenge from any party.” Arbaugh v. Y & H Corp., WL 1531172, at *4 (S.D.N.Y.Apr.15, 2010) (“petitioner's

546 U.S. 500, 514 (2006) (citation omitted). When a federal claim that he is entitled to ignore the laws of the State of New

court concludes that it lacks subject matter jurisdiction, it York by claiming membership in the ‘Moorish–American’

must dismiss the complaint in its entirety. Fed.R.Civ.P. 12(h) nation is without merit ....”) (add'l citation omitted).

(3).

*3 Because the Court is required to dismiss a civil action

“at any time of the court determines that ... the action ...

II. Application is frivolous,” Plaintiff's Complaint is dismissed. The instant

Having carefully reviewed Plaintiff's Complaint, the Court Complaint is clearly frivolous given Plaintiff's claim that he

finds that it fails to state a plausible claim. As a threshold is not subject to the jurisdiction of the New York state court

matter, Plaintiff has not properly invoked this Court's subject because he is a Moorish American. Neitzke v. Williams, 490

matter jurisdiction. Plaintiff has not alleged a federal question U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (a

nor has he satisfied the diversity requirement because claim is “frivolous” if it lacks an arguable basis in either law

Plaintiff, an alleged New York resident, seeks to sue a New or fact). Clearly, the allegations in the instant Complaint are

York Defendant, namely Judge Kelley, Acting County Court based upon an indisputably meritless legal theory and are thus

Judge, Suffolk County District Court, 10th Judicial District. dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)B)

(i).

Even if the Court's subject matter jurisdiction were

established, which it is not, the Complaint must be dismissed Even if the Plaintiff's claims were not frivolous, Plaintiff

because it is frivolous. Liberally read, see Hughes v. Rowe, cannot recover damages from the Defendant, a sitting New

449 U.S. 5, 9, 101 S.Ct. 173, 176, 66 L.Ed. 163 (1980), the York State Court Judge, Suffolk County District Court, since

gravamen of Plaintiff's Complaint is that he is not subject as a judge, she is entitled to absolute judicial immunity

to the jurisdiction of the New York state court and therefore as well Eleventh Amendment Immunity. Mahapatra v.

does not have to comply with the order entered by Judge Comstock, 141 F.3d 1152 (2d Cir.1998) (“[T]he district court

Kelley. The law is clear that Moorish Americans, like all properly dismissed the claims for damages based on absolute

civil damages for judicial acts performed in their judicial U.S. 438, 444–45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).

capacities.”) (citing Mireles v. Waco, 502 U.S. 9, 11–12, 112

S.Ct. 286, 116 L.Ed.2d 9 (1991)); Seminole Tribe of Florida

v. Florida, 517 U.S. 44, 53–55, 116 S.Ct. 1114, 134 L.Ed.2d CONCLUSION

252 (1996); Pennhurst State School & Hosp. v. Halderman,

465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). For the reasons set forth above, the Complaint is sua sponte

dismissed with prejudice. The Clerk of the Court is directed

Given that the Complaint is based on an indisputably to close this case.

meritless legal theory, the Court declines to afford Plaintiff

leave to amend his Complaint, as any amendment would be SO ORDERED.

futile. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000).

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that

All Citations

any appeal from this Order would not be taken in good

faith and therefore in forma pauperis status is denied for the Not Reported in F.Supp.2d, 2012 WL 1898944

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

2012 WL 235523 in connection with various custody proceedings involving

Only the Westlaw citation is currently available. Plaintiff Loriann's minor child, BMD. (Dkt. No. 1 at 4.)

United States District Court,

N.D. New York. More specifically, construed with the utmost of special

liberality, Plaintiffs' Complaint asserts the following six

Loriann DEUEL and Lorraine Deuel, Plaintiffs, claims against Defendants: (1) Defendants New York

v. State Unified Court System and Cholakis violated, and/

Frank T. DALTON; State of New York; New York or conspired to violate, Plaintiffs' due process rights under

State Unified Court System; Philip J. Danaher, the Fourteenth Amendment by, inter alia, improperly (a)

exercising jurisdiction over Plaintiffs during various custody

Esq., as the attorney appointed to act as Law

proceedings from 2002 to 2004, where no such jurisdiction

Guardian for BMD; Catherine Cholakis, as the

existed, (b) failing to notify her of various of those court

presiding justice of the Family Court assigned to

proceedings, (c) holding various of those proceedings in

this proceeding; John & Jane Does 1–100, whose her absence, and (d) awarding Defendant Dalton custody of

identities may or may not be known but necessary BMD, even though Defendant Dalton had not established

parties to these proceedings; ABC Corp's 1–100, those paternity; (2) Defendants New York State Unified Court

entities whose identities are currently unknown, but System and Cholakis violated, and/or conspired to violate,

necessary parties to these proceedings, Defendants. Plaintiffs' equal protection rights under the Fourteenth

Amendment by denying Plaintiffs their parental and familial

No. 1:11–CV–0637 (GTS/RFT). rights; (3) Defendants New York State Unified Court

| System, Cholakis and Danaher committed, and/or conspired

Jan. 25, 2012. to commit, fraud against Plaintiffs; (4) Defendants New York

State Unified Court System, Cholakis and Danaher suborned,

Attorneys and Law Firms and/or conspired to suborn, perjury by Defendant Dalton;

Loriann and Lorraine Deuel, Unionville, TN, pro se. (5) Defendant Cholakis, New York State Family Court

Judge committed judicial misconduct against Plaintiffs; and

(6) Defendant Danaher committed professional misconduct

against Plaintiffs. (Dkt. No. 1 at 30–34.)

DECISION and ORDER

Hon. GLENN T. SUDDABY, District Judge. For a more detailed recitation of Plaintiffs' claims, and the

factual allegations giving rise to those claims, reference is

*1 Currently before the Court, in this pro se civil made to Plaintiffs' Complaint and Magistrate Judge Treece's

rights action filed by Loriann Deuel and Lorraine Report–Recommendation in their entireties. (Dkt.Nos.1, 4.)

Deuel (“Plaintiffs”) against the above-captioned defendants

(together “Defendants”), are (1) United States Magistrate

Judge Randolph F. Treece's Report–Recommendation B. Magistrate Judge Treece's Report–

recommending that Plaintiff's Complaint be dismissed, and Recommendation

(2) Plaintiffs' Objections to that Report–Recommendation. On July 19, 2011, Magistrate Judge Treece issued a Report–

(Dkt.Nos.4, 5.) For the following reasons, the Report– Recommendation recommending that Plaintiffs' Complaint

Recommendation is accepted and adopted, and Plaintiffs' be dismissed for the following reasons: (1) the Court lacks

Complaint is dismissed. subject-matter jurisdiction over domestic relations matters,

including those related to child custody; (2) Plaintiffs' claims

are barred by the applicable statute of limitations; and (3)

I. RELEVANT BACKGROUND Plaintiff has failed to state a claim upon which relief can be

granted pursuant to 28 U.S.C. § 1915(e)(2). (See generally

A. Plaintiffs' Complaint Dkt. No. 4.)

On June 8, 2011, Plaintiffs filed their Complaint in this

action. (Dkt. No. 1.) Generally, in their Complaint, Plaintiffs

C. Plaintiffs' Objections to the Report– the Title VII claim was one sentence on the last

Recommendation page of his objections, where he stated that it was

*2 On August 1, 2011, Plaintiffs filed their Objections to the error to deny his motion on the Title VII claim ‘[f]or

Report–Recommendation. (Dkt. No. 5.) Generally, liberally the reasons set forth in Plaintiff's Memorandum of

construed, Plaintiffs' Objections argue that Magistrate Judge Law in Support of Motion for Partial Summary

Treece made the following errors: (1) the Court does have Judgment.’ This bare statement, devoid of any

subject-matter jurisdiction in this case because the relief reference to specific findings or recommendations

requested does not require the Court to “become enmeshed in to which he objected and why, and unsupported by

factual disputes” (Dkt. No. 5 at 3); (2) Plaintiffs have stated a legal authority, was not sufficient to preserve the

claim under 42 U.S.C. § 1983 because they have adequately Title VII claim.”).

alleged Defendants Dalton and Danaher are state actors (Dkt.

No. 5 at 4); and (3) the action is not barred by the applicable 2 See Paddington Partners v. Bouchard, 34 F.3d

statute of limitations because the state court “matter has been 1132, 1137–38 (2d Cir.1994) (“In objecting to a

ongoing for the past seven years.” (Dkt. No. 5 at 4.) magistrate's report before the district court, a party

has no right to present further testimony when it

In addition, in their Objections, Plaintiffs seek leave to file offers no justification for not offering the testimony

an Amended Complaint, which Plaintiffs purport would do at the hearing before the magistrate.”) [internal

the following: (1) remove Defendant Cholakis from this quotation marks and citations omitted]; Pan Am.

action “pursuant to judicial immunity statutes”; (2) “remove World Airways, Inc. v. Int'l Bhd. of Teamsters,

the habeas corpus request”; and (3) include recent civil 894 F.2d 36, 40, n. 3 (2d Cir.1990) (district

rights violations in an effort “to clear up misunderstandings court did not abuse its discretion in denying

regarding jurisdiction, timeliness, and the statement of plaintiff's request to present additional testimony

claims.” (Dkt. No. 5 at 6.) where plaintiff “offered no justification for not

offering the testimony at the hearing before the

magistrate”); cf. U.S. v. Raddatz, 447 U.S. 667, 676,

II. RELEVANT LEGAL STANDARDS n. 3, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) (“We

conclude that to construe § 636(b)(1) to require the

A. Standard of Review Governing a Report–

district court to conduct a second hearing whenever

Recommendation

either party objected to the magistrate's credibility

When a specific objection is made to a portion of a

findings would largely frustrate the plain objective

magistrate judge's report-recommendation, the Court subjects

of Congress to alleviate the increasing congestion

that portion of the report-recommendation to a de novo

of litigation in the district courts.”); Fed.R.Civ.P.

review. Fed.R.Civ.P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To

72(b), Advisory Committee Notes: 1983 Addition

be “specific,” the objection must, with particularity, “identify

(“The term ‘de novo’ does not indicate that a

[1] the portions of the proposed findings, recommendations,

secondary evidentiary hearing is required.”).

or report to which it has an objection and [2] the basis for

the objection.” N.D.N.Y. L.R. 72.1(c).1 When performing When only a general objection is made to a portion of a

such a de novo review, the Court “may ... receive further magistrate judge's report-recommendation, the Court subjects

evidence....” 28 U.S.C. § 636(b) (1). However, a district court that portion of the report-recommendation to only a clear error

will ordinarily refuse to consider evidentiary material that review. Fed.R.Civ.P. 72(b)(2) and (3); Fed.R.Civ.P. 72(b),

could have been, but was not, presented to the magistrate Advisory Committee Notes: 1983 Addition.3 Similarly,

judge in the first instance.2 when an objection merely reiterates the same arguments

made by the objecting party in its original papers submitted

1 to the magistrate judge, the Court subjects that portion of

See also Mario v. P & C Food Markets, Inc., the report-recommendation to a clear error review.4 Finally,

313 F.3d 758, 766 (2d Cir.2002) (“Although Mario

when a party makes no objection to a portion of a report-

filed objections to the magistrate's report and

recommendation, the Court reviews that portion for clear

recommendation, the statement with respect to his

Title VII claim was not specific enough to preserve

Addition.5 B. Legal Authority for Reviewing a Complaint Sua

Sponte

*3 Under the circumstances, the Court's authority to sua

3

See also Brown v. Peters, 95–CV–1641, 1997 sponte review Plaintiffs' Complaint stems from three separate

WL 599355, at *2–3 (N.D.N.Y. Sept.22, 1997) sources. (1) Fed.R.Civ.P. 12(h)(3), which provides that “[i]f

(Pooler, J.) [collecting cases], aff'd without opinion, the court determines at any time that it lacks subject-matter

175 F.3d 1007 (2d Cir.1999); Vargas v. Keane, jurisdiction, the court must dismiss that action”; (2) 28 U.S.C.

93–CV–7852, 1994 WL 693885, at *1 (S.D.N.Y. § 1915(e)(2) (B), which provides that, when a plaintiff seeks

Dec.12, 1994) (“[Petitioner's] general objection to proceed in forma pauperis, “the court shall dismiss the

[that a] Report ... [did not] redress the constitutional case at any time if the court determines that—... the action (i)

violations [experienced by petitioner] ... is a is frivolous or malicious; (ii) fails to state a claim on which

general plea that the Report not be adopted ... relief may be granted; or (iii) seeks monetary relief against

[and] cannot be treated as an objection within the a defendant who is immune from such relief”; and (3) the

meaning of 28 U.S.C. § 636.”), aff'd, 86 F.3d 1273 Court's inherent power to manage its docket.

(2d Cir.), cert. denied, 519 U.S. 895, 117 S.Ct. 240,

136 L.Ed.2d 169 (1996). With regard to the second of the three above-described

4 authorities, the Court notes that the dismissal of an action as

See Mario, 313 F.3d at 766 (“Merely referring

barred by the applicable statute of limitation may fall within

the court to previously filed papers or arguments

the ambit of the Court's power to dismiss a complaint for

does not constitute an adequate objection under

failure to state a claim pursuant to 28 U.S.C. § 1915(e).6 In

either Fed.R.Civ.P. 72(b) or Local Civil Rule

addition, the dismissal of an action as duplicative has been

72.3(a)(3).”); Camardo v. Gen. Motors Hourly–

found to fall within the ambit of the Court's power to dismiss

Rate Emp. Pension Plan, 806 F.Supp. 380,

a complaint which is frivolous or malicious pursuant to 28

382 (W.D.N.Y.1992) (explaining that court need

not consider objections that merely constitute a

U.S.C. § 1915(e).7

“rehashing” of the same arguments and positions

taken in original papers submitted by the magistrate 6 See Pino v. Ryan, 49 F.3d 51, 54 (2d Cir.1995)

judge); accord, Praileau v. Cnty. of Schenectady, (“Nothing ... suggests that an affirmative defense

09–CV–0924, 2010 WL 3761902, at *1, n. 1 appearing on the face of a complaint may not

(N.D.N.Y. Sept. 20, 2010 (McAvoy, J.); Hickman be the basis for a sua sponte dismissal under

ex rel. M.A.H. v. Astrue, 07–CV–1077, 2010 WL section 1915(d) [section 1915(e) as amended] prior

2985968, at *3 & n. 3 (N.D.N.Y. July 27, 2010) to service of te complaint.”); accord, Pratts v.

(Mordue, C.J.); Almonte v. N.Y.S. Div. of Parole, Coombe, 49 F. App'x 392, 393 (2d Cir.2003).

04–CV–0484, 2006 WL 149049, at *4 (N.D.N.Y.

7

Jan.18, 2006) (Sharpe, J.). See Bailey v. Johnson, 846 F.2d 1019, 1021

(5th Cir.1988) (holding that a complaint that

5

See also Batista v. Walker, 94–CV–2826, 1995 repeats pending or previously litigated claims

WL 453299, at *1 (S.D.N.Y. July 31, 1995) “may be considered abusive” and dismissed under

(Sotomayor, J.) (“I am permitted to adopt those the authority of Section 1915[e] ); Buckenberger

sections of [a magistrate judge's] report to which no v. Reed, 10–CV–0856, 2010 WL 1552672,

specific objection is made, so long as those sections at *1 (E.D.La. Mar.16, 2010) (recommending

are not facially erroneous.” [internal quotations dismissal of complaint asserting claims which

marks omitted.] ). were duplicative of those in a pending action

After conducting the appropriate review, the Court may as “malicious”); Smith v. Ferrell, 09–CV–0466,

“accept, reject, or modify, in whole or in part, the findings or 2010 WL 653798, at *2–3 (S.D.Ala. Feb.18, 2010)

recommendations made by the magistrate judge.” 28 U.S.C. (dismissing action because claims were duplicative

§ 636(b) (1)(C). of those in another pending action); Williams

v. Bunn, 06–CV–0466, 2007 WL 1703816, at

a claim twice brought previously and dismissed for complaint.” Brown v. Plansky, 24 F. App'x 26, 28

plaintiff's failure to serve); Hahn v. Tarnow, 06– (2d Cir.2001).

C JuV ly– 31 12 ,8 21 04 0, 62 )0 (0 d6 is mW iL ss i2 n1 g6 c0 o9 m34 p, l aa it n t* a1 s ( “E re.D pe.M titi ic vh e. , 9 The rule against duplicative litigation is distinct

malicious and frivolous, and duplicative”); Blake from, but related to, the doctrine of claim

v. Bentsen, 95–CV–2227, 1995 WL 428694, at *2 preclusion or res judicata, and the two doctrines

(E.D.N.Y. Jul.11, 1995) (dismissing “repetitious serve some of the same policies. As the Supreme

litigation” as abusive and malicious); Denton v. Court stated over 100 years ago in United States

Hernandez, 504 U.S. 25, 30, 112 S.Ct. 1728, v. The Haytian Republic, 154 U.S. 118, 14 S.Ct.

118 L.Ed.2d 340 (1992) (recognizing Congress's 992, 38 L.Ed. 930 (1894), “[T]he true test of the

concern in 28 U.S.C. § 1915 that “a litigant whose sufficiency of a plea of ‘other suit pending’ in

filing fees and court costs are assumed by the another forum [i]s the legal efficacy of the first suit,

public, unlike a paying litigant, lacks an economic when finally disposed of, as ‘the thing adjudged,’

incentive to refrain from filing frivolous, malicious, regarding the matters at issue in the second suit.”

or repetitive lawsuits.”). Id. at 124.

With regard to the third of the three above-described

C. Legal Standard Governing Dismissal Based on

authorities, it is well settled that a district court has the

Lack of Subject–Matter Jurisdiction

power to sua sponte dismiss pro se complaint based on

Magistrate Judge Treece correctly recited the legal standard

frivolousness. See, e.g., Fitzgerald v. First E. Seventh St.

governing a dismissal based on lack of subject-matter

Tenants Corp., 221 F.3d 362, 363 (2d Cir.2000) (recognizing

jurisdiction in his Report–Recommendation. (Dkt. No. 4 at

that district court has power to sua sponte dismiss pro se

2–3.) As a result, that standard is incorporated herein by

complaint based on frivolousness notwithstanding fact that

reference in this Decision and Order.

plaintiff has paid statutory filing fee). It is also is well settled

that “[a]s part of its general power to administer its docket,

a district court may stay or dismiss a suit that is duplicative D. Legal Standard Governing Dismissal Based on

of another federal court suit.” Curtis v. Citibank, N.A., 226 Expiration of Statute of Limitations

F.3d 133, 138 (2d Cir.2000); see also Colo. River Water *4 Magistrate Judge Treece correctly recited the legal

Conservation Dist. v. United States, 424 U.S. 800, 817, 96 standard governing a dismissal based on the expiration

S.Ct. 1236, 47 L.Ed.2d 483 (1976) (“As between federal of the relevant statute of limitations in his Report–

district courts, ... though no precise rule has evolved, the Recommendation. (Dkt. No. 4 at 3–4.) As a result, that

general principle is to avoid duplicative litigation.”). The standard is incorporated herein by reference in this Decision

power to dismiss a duplicative lawsuit is meant to foster and Order.

judicial economy and the “comprehensive disposition of

litigation.” Kerotest Mfg. Co. v. C–O–Two Fire Equip. Co.,

342 U.S. 180, 183, 72 S.Ct. 219, 96 L.Ed. 200 (1952).8 The E. Legal Standard Governing Dismissal Based on

doctrine is also meant to protect parties from “the vexation of Failure to State a Claim

concurrent litigation over the same subject matter.” Adam v. It has long been understood that a dismissal for failure to

Jacob, 950 F.2d 89, 93 (2d Cir.1991) .9 state a claim upon which relief can be granted, pursuant to

Fed.R.Civ.P. 12(b)(6), can be based on one or both of two

grounds: (1) a challenge to the “sufficiency of the pleading”

8 The Second Circuit affirmed the dismissal of under Fed.R.Civ.P. 8(a)(2); or (2) a challenge to the legal

an action which “substantially duplicate[d]” the cognizability of the claim. Jackson v. Onondaga Cnty., 549

conspiracy claim asserted in a prior action, F.Supp.2d 204, 211, nn. 15–16 (N.D.N.Y.2008) (McAvoy, J.,

notwithstanding the fact that the the conspiracy adopting Report–Recommendation on de novo review).

claim in the first action was dismissed as

insufficiently pleaded and plaintiff was afforded Because Plaintiffs' Complaint is dismissed based on the first

an opportunity to amend, because “[plaintiff's] ground, a few words regarding that ground are appropriate.

recourse is to appeal that decision after judgment is

the claim showing that the pleader is entitled to relief.” the Court clarified, the “fair notice” standard turns on the

Fed.R.Civ.P. 8(a)(2) [emphasis added]. In the Court's view, plausibility of an actionable claim. Id. at 1965–74. The Court

this tension between permitting a “short and plain statement” explained that, while this does not mean that a pleading need

and requiring that the statement “show[ ]” an entitlement to “set out in detail the facts upon which [the claim is based],”

relief is often at the heart of misunderstandings that occur it does mean that the pleading must contain at least “some

regarding the pleading standard established by Fed.R.Civ.P. factual allegation[s].” Id . at 1965. More specifically, the

8(a)(2). “[f]actual allegations must be enough to raise a right to relief

above the speculative level [to a plausible level],” assuming

On the one hand, the Supreme Court has long characterized (of course) that all the allegations in the complaint are true. Id.

the “short and plain” pleading standard under Fed.R.Civ.P.

8(a)(2) as “simplified” and “liberal.” Jackson, 549 F.Supp.2d As for the nature of what is “plausible,” the Supreme Court

at 212, n. 20 (citing Supreme Court case). On the other explained that “[a] claim has facial plausibility when the

hand, the Supreme Court has held that, by requiring the plaintiff pleads factual content that allows the court to draw

above-described “showing,” the pleading standard under the reasonable inference that the defendant is liable for the

Fed.R.Civ.P. 8(a)(2) requires that the pleading contain a misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129

statement that “give[s] the defendant fair notice of what the S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). “[D]etermining

plaintiff's claim is and the grounds upon which it rests.” whether a complaint states a plausible claim for relief ... [is]

Jackson, 549 F.Supp.2d at 212, n .17 (citing Supreme Court a context-specific task that requires the reviewing court to

cases) (emphasis added). draw on its judicial experience and common sense.... [W]here

the well-pleaded facts do not permit the court to infer more

The Supreme Court has explained that such fair notice has than the mere possibility of misconduct, the complaint has

the important purpose of “enabl[ing] the adverse party to alleged-but it has not show[n]-that the pleader is entitled to

answer and prepare for trial” and “facilitat[ing] a proper relief.” Iqbal, 129 S.Ct. at 1950 [internal quotation marks and

decision on the merits” by the court. Jackson, 549 F.Supp.2d citations omitted]. However, while the plausibility standard

at 212, n. 18 (citing Supreme Court cases); Rusyniak v. “asks for more than a sheer possibility that a defendant

Gensini, 629 F.Supp.2d 203, 213 & n. 32 (N.D.N.Y.2009) has acted unlawfully,” id., it “does not impose a probability

(Suddaby, J.) (citing Second Circuit cases). For this reason, as requirement.” Twombly, 550 U.S. at 556.

one commentator has correctly observed, the “liberal” notice

pleading standard “has its limits.” 2 Moore's Federal Practice Because of this requirement of factual allegations plausibly

§ 12.34[1][b] at 12–61 (3d ed.2003). For example, numerous suggesting an entitlement to relief, “the tenet that a court must

Supreme Court and Second Circuit decisions exist holding accept as true all of the allegations contained in the complaint

that a pleading has failed to meet the “liberal” notice pleading is inapplicable to legal conclusions. Threadbare recitals of

standard. Rusyniak, 629 F. Supp .2d at 213, n. 22 (citing the elements of a cause of action, supported by merely

Supreme Court and Second Circuit cases); see also Ashcroft conclusory statements, do not suffice.” Iqbal, 129 S.Ct. at

v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949–52, 173 L.Ed.2d 1949. Similarly, a pleading that only “tenders naked assertions

868 (2009). devoid of further factual enhancement” will not suffice. Iqbal,

129 S.Ct. at 1949 (internal citations and alterations omitted).

*5 Most notably, in Bell Atlantic Corp. v. Twombly, the Rule 8 “demands more than an unadorned, the-defendant-

Supreme Court reversed an appellate decision holding that unlawfully-harmed-me accusation.” Id. (citations omitted).

a complaint had stated an actionable antitrust claim under

15 U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 550 U.S. *6 This pleading standard applies even to pro se litigants.

544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In doing so, While the special leniency afforded to pro se civil rights

the Court “retire[d]” the famous statement by the Court in litigants somewhat loosens the procedural rules governing

Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d the form of pleadings (as the Second Circuit has observed),

80 (1957), that “a complaint should not be dismissed for it does not completely relieve a pro se plaintiff of the duty

failure to state a claim unless it appears beyond doubt that the to satisfy the pleading standards set forth in Fed.R.Civ.P.

plaintiff can prove no set of facts in support of his claim which 8, 10 and 12.10 Rather, as both the Supreme Court and

would entitle him to relief.” Twombly, 127 S.Ct. at 1968–69. Second Circuit have repeatedly recognized, the requirements

that even pro se civil rights plaintiffs must follow.11 Stated the identity of the parties, legal claims, factual allegations

more simply, when a plaintiff is proceeding pro se, “all normal including temporal circumstances, and the relief sought to

rules of pleading are not absolutely suspended.” Jackson, 549 determine if the complaint is repetitive or malicious.” Hahn,

F.Supp.2d at 214, n. 28 [citations omitted].12 2006 WL 2160934, at *3.

It is worth noting that district courts have broad discretion

10

See Vega v. Artus, 610 F.Supp.2d 185, 196 & nn. in determining whether an action should be dismissed as

8–9 (N.D.N.Y.2009) (Suddaby, J.) (citing Second duplicative. Lopez v. Ferguson, 361 F. App'x 225, 226 (2d

Circuit cases); Rusyniak, 629 F.Supp.2d at 214 & Cir.2010) (affirming dismissal of action as duplicative of

n. 34 (citing Second Circuit cases). a pending class action as to which plaintiff fell within the

11

See Vega, 610 F.Supp.2d at 196, n. 10 (citing

certified class).13 There are several approaches to the proper

Supreme Court and Second Circuit cases); disposition of duplicative actions, including stay of the second

Rusyniak, 629 F.Supp.2d at 214 & n. 34 (citing action, dismissal without prejudice, and consolidation. Curtis,

Second Circuit cases). 226 F.3d at 138. In addition, “simple dismissal of the second

suit is another common disposition because plaintiffs have no

12 It should be emphasized that Fed.R.Civ.P. 8's right to maintain two actions on the same subject in the same

plausibility standard, explained in Twombly, was court, against the same defendant at the same time.” Id. at

in no way retracted or diminished by the Supreme 138–39.14

Court's decision (two weeks later) in Erickson

v. Pardus, in which (when reviewing a pro se 13

See also Flemming v. Wurzberger, 322 F. App'x 69,

pleading) the Court stated, “Specific facts are not

71 (2d Cir.2009); Curtis, 226 F.3d at 138.

necessary” to successfully state a claim under

Fed.R.Civ.P. 8(a)(2). Erickson v. Pardus, 551 U.S. 14 See also Zerilli v. Evening News Ass'n, 628 F.2d

89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 217, 222 (D.C.Cir.1980); Walton v. Eaton Corp.,

(2007) [emphasis added]. That statement was 563 F.2d 66, 70 (3d Cir.1977) (en banc ).

merely an abbreviation of the often-repeated point

of law—first offered in Conley and repeated in

G. Legal Standard Governing Dismissal Based on

Twombly—that a pleading need not “set out in

Doctrines of Res Judicata and/or Collateral Estoppel

detail the facts upon which [the claim is based]” Claim preclusion, also sometimes referenced to as res

in order to successfully state a claim. Twombly, judicata, requires that a final judgment of an action on

127 S.Ct. 1965, n. 3 (citing Conley, 355 U.S. at the merits be given preclusive effect, barring parties, as

47) [emphasis added]. That statement did not mean well as those in privity with them, from relitigating claims

that all pleadings may achieve the requirement which were or could have been raised in the prior action.

of “fair notice” without ever alleging any facts Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286–87 (2d

whatsoever. Clearly, there must still be enough Cir.2002); see also Fay v. South Colonie Cent. Sch. Dist.,

fact set out (however set out, whether in detail or 802 F.2d 21, 28 (2d Cir.1986) (citing Federated Dep't Stores

in a generalized fashion) to raise a right to relief v. Moitie, 452 U.S. 394, 398 [1981] ), overruled on other

above the speculative level to a plausible level. See grounds, Taylor v. Vermont Dep't of Educ., 313 F.3d 768 (2d

Rusyniak, 629 F.Supp.2d at 214 & n. 35 (explaining Cir.2002).

holding in Erickson ).

Issue preclusion, a more narrow doctrine often referred to as

F. Legal Standard Governing Dismissal Based on collateral estoppel, bars a party that has had a full and fair

Duplicative Nature of Action opportunity to litigate an issue of fact or law from relitigating

Although no precise test has been articulated for determining the same issue once it has been actually and necessarily

whether actions are duplicative, “the general rule is that decided against that party or its privy. McKithen v. Brown, 481

a suit is duplicative of another suit if the parties, issues F.3d 89, 105 (2d Cir.2007); Marvel, 310 F.3d at 288–89.

and available relief do not significantly differ between the

III. ANALYSIS reasons. For example, to determine whether Plaintiffs' due

*7 As stated above in Part I.C. of this Decision and Order, process rights were violated, the Court would inevitably

Plaintiffs' Objections argue that Magistrate Judge Treece have to engage in a factual inquiry regarding the custodial

made the following errors: (1) the Court does have subject- placement of BMD with Defendant Dalton. The Court might,

matter jurisdiction in this case because the relief requested for example, need to evaluate the same facts the state court did

does not require the Court to “become enmeshed in factual in making its custody determination in the first place. Doing

disputes” (Dkt. No. 5 at 3); (2) Plaintiffs, indeed, stated a so, however, would violate the general rule that domestic

claim under 42 U.S.C. § 1983 because they have adequately relations matters are primarily matters for state courts.

alleged Defendants Dalton and Danaher are state actors (Dkt.

No. 5 at 4); and (3) the action is not time-barred because *8 Third, Plaintiffs' action appears largely duplicative of

the state court “matter has been ongoing for the past seven two previously filed actions: (1) Deuel v. Dalton, 06–CV–

years.” (Dkt. No. 5 at 4.) 0234, Complaint (M.D. Tenn. filed March 23, 2006); and (2)

Deuel v. Dalton, 11–CV–0466, Complaint (M.D. Tenn. filed

In accordance with N.D.N.Y. L.R. 72.1(c), the Court finds May 16, 2011). While the first of these two actions appears

the first and second objections are specific in nature to have been dismissed only without prejudice,15 the second

because Plaintiffs identified the portions of Magistrate

of these two actions is still pending in the Middle District

Judge Treece's Report–Recommendation to which they object

of Tennessee-contributing to the waste of judicial resources,

with particularity, and Plaintiffs cited (albeit improper)

and running the risk of inconsistent rulings and preclusion

legal authority in an effort to support their objections.

(See generally Dkt. No. 5.) As a result, the Court

by collateral estoppel.16 The Court notes that in May 20011

subjects those portions of Magistrate Judge Treece's Report– an Order was issued in the second action, referring the case

Recommendation to which Plaintiffs object to a de novo to a magistrate judge for a review of whether the action is

review. Fed.R.Civ.P. 72(b)(2); 28 U.S.C. § 636(b)(1) (C). frivolous. Deuel v. Dalton, 11–CV–0466, Order (M.D. Tenn.

filed May 18, 2011) (Trauger, J.). As a result, this action is

Plaintiffs' third objection, however, is only general in nature. dismissed based also on this alternative ground.

Although Plaintiffs specifically identify the portion of the

Report–Recommendation to which they object, they fail to 15 Deuel v. Dalton, 06–CV–0234, Memorandum and

provide any legal basis for the objection. (See generally Dkt. Order (M.D. Tenn. filed August 15, 2006) (Trauger,

No. 5 at 4–6 .) As a result, the Court reviews that portion of J.). See also Hernandez v. Conriv Realty Assocs.,

Magistrate Judge Treece's Report–Recommendation to which 182 F.3d 121, 123 (2d Cir.1999) (“[W]here a court

Plaintiffs object for only clear error. Fed.R.Civ.P. 72(b)(2); 28 lacks subject matter jurisdiction, it also lacks the

U.S.C. § 636(b)(1)(C). power to dismiss with prejudice.”).

After carefully subjecting Magistrate Judge Treece's Report– 16 For example, both the second action and the action

Recommendation to the appropriate level of review, the Court before this Court present claims against Frank

finds no error in the Report–Recommendation. Magistrate Dalton, John and Jane Does 1–100, and ABC

Judge Treece employed the proper standards, accurately Corp's 1–100, for violation of the Due Process

recited the facts, and reasonably applied the law to those and Equal Protection Clauses of the Fourteenth

facts. As a result, the Report–Recommendation is accepted Amendment (as well as fraud and conspiracy),

and adopted in its entirety for the reasons stated therein. The arising from, inter alia, the unfavorable rulings

court would add only five brief points. Plaintiff Loriann Deuel received in child-custody

proceedings in New York State court from 2002

First, those portions of Magistrate Judge Treece's Report– to 2004 due to the alleged misconduct of Dalton,

Recommendation that the Court has reviewed only for clear Family Court Judge Catherine Cholakis and Law

error (e.g., the holding that Plaintiffs' claims are barred by the Guardian Phillip J. Danaher. See Deuel v. Dalton,

statute of limitations) would survive even a de novo review. 11–CV–0466, Complaint, at 4–5, 9–12, 15–18, 30–

32 (M.D. Tenn. filed May 16, 2011).

Second, Plaintiff's argument that the Court need not “become

Court System and Cholakis are barred by the Eleventh that it does not have subject matter jurisdiction

Amendment and the doctrine of absolute immunity.17 over this action.”); Chan v. Reno, 916 F.Supp.

Similarly, Plaintiffs' claims against Defendant Danaher are 1289, 1302 (S.D.N.Y.1996) (“An amendment is

barred by the doctrine of qualified immunity (if not also considered futile if the amended pleading fails to

the doctrine of absolute immunity). Moreover, Plaintiffs' state a claim or would be subject to a successful

Complaint does not allege facts plausibly suggesting that motion to dismiss on some other basis. As

Defendant Dalton is a state actor for purposes of 42 U.S.C. § will be discussed herein, [the proposed amended

1983. Furthermore, Plaintiffs' Complaint does not allege facts complaint] ... presents a non-justiciable claim and

plausibly suggesting the personal involvement of Defendants fails to present this Court with subject matter

John and Jane Does 1–100 and ABC Corp's 1–100 in jurisdiction. Therefore, because [the proposed

any of the violations alleged. (See generally Dkt. No. 1.) amended complaint] would be subject to a

Finally, Plaintiffs' Complaint does not allege facts plausibly successful motion to dismiss ..., amendment would

suggesting that Plaintiff Lorraine Deuel has standing to assert be futile.”); Grace v. Rosenstock, 228 F.3d 40, 53

any claims in this action (or even that she bears any familial (2d Cir.2000) ( “Amendment would likely be futile

or custodial relationship to BMD). (Id.)18 Simply stated, if ... the claims the plaintiff sought to add would

be barred by the applicable statute of limitations.”);

additional pleading defects plague Plaintiffs' claims against

accord, In re WorldCom, Inc. Securities Litigation,

each of the Defendants in this action, as well as each of the

303 F.Supp.2d 385, 390 (S.D.N.Y.2004).

claims asserted by Plaintiff Lorraine Deuel. As a result, this

action is dismissed based also on this alternative ground. 20 See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct.

227, 9 L.Ed.2d 222 (1962) (finding that denial

17 The Court notes that, in their Objections and of leave to amend is not abuse of discretion

Complaint, Plaintiffs' acknowledge that (1) their where amendment would be futile); Ruffolo v.

claims against Defendant Cholakis are barred by Oppenheimer & Co., 987 F.2d 129, 131 (2d

the doctrine of absolute immunity, and (2) their Cir.1993) (“Where it appears that granting leave

claims against Defendant New York State Unified to amend is unlikely to be productive, ... it is not

Court System are based on their claims against an abuse of discretion to deny leave to amend.”)

Defendant Cholakis (pursuant to the doctrine of (citations omitted); Cuoco v. Moritsugu, 222 F.3d

respondeat superior). (Dkt. No. 5, at 6; Dkt. No. 1, 99, 112 (2d Cir.2000) (“The problem with Cuoco's

at 31.) causes of action is substantive; better pleading

will not cure it. Repleading would thus be futile.

18 The Court notes that Plaintiffs' argument in their Such a futile request to replead should be denied.”)

Objections that Lorraine Deuel was a party to “a (citation omitted); Cortec Indus., Inc. v. Sum

recent appellate decision” is simply not sufficient Holding L.P., 949 F.2d 42, 48 (2d Cir.1991) (“Of

to state the claims in question. (Dkt. No. 5, at 6.) course, where a plaintiff is unable to allege any fact

Fifth, and finally, Plaintiffs' request for leave to amend their sufficient to support its claim, a complaint should

Complaint is denied because the numerous pleading defects in be dismissed with prejudice.”) (citation omitted);

Plaintiff's Complaint are substantive rather than formal.19 As Health–Chem Corp. v. Baker, 915 F.2d 805, 810

(2d Cir.1990) (“[W]here ... there is no merit in the

a result, the Court sees no need to sua sponte grant Plaintiffs

proposed amendments, leave to amend should be

leave to amend those claims before it dismisses them.20

denied”); Brown v. Peters, 95–CV–1641, 1997 WL

599355, at *1 (N.D.N.Y. Sept.22, 1997) (Pooler,

19 For example, lack of subject-matter jurisdiction J.) (“[T]he court need not grant leave to amend

and the expiration of the statute of limitations where it appears that amendment would prove to be

are substantive defects. See U.S. ex rel. Phipps v. unproductive or futile.”).

Comprehensive Comty. Dev. Corp., 152 F.Supp.2d ACCORDINGLY, it is

443, 455 (S.D.N.Y.2001) (“[I]t is not appropriate

to grant Phipps's request [for leave to amend

Recommendation (Dkt. No. 4) is ACCEPTED and that any appeal taken from this Decision and Order would not

ADOPTED in its entirety; and it is further be taken in good faith.

ORDERED that Plaintiffs' Complaint (Dkt. No. 1) is

All Citations

DISMISSED in its entirety.

Not Reported in F.Supp.2d, 2012 WL 235523

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

2020 WL 589127 contentions are clearly baseless ...; or (2) the claim is based

Only the Westlaw citation is currently available. on an indisputably meritless legal theory.”) (internal quotation

United States District Court, S.D. New York. marks and citation omitted).

Robert W. JOHNSON, Plaintiff,

v. BACKGROUND AND DISCUSSION

PROGRESSIVE.COM, et al., Defendants.

Plaintiff filed this complaint against multiple insurance

19-CV-11202 (CM) companies and other entities, including Progressive, Axxcess

| Insurance Agencies Ltd., New York Automobile Insurance

Signed 02/05/2020 Plan, Global Liberty Insurance Company, Arizona Premium

Finance, Chevrolet, ADESA, Nationwide, Victoria Fire &

Attorneys and Law Firms Casualty Company, Allstate, Geico, and AAA. Plaintiff seeks

Robert W. Johnson, Bronx, NY, pro se. “$999 trillion” in punitive damages, “$999 billion for future

pain and suffering,” and “100% ownership of corporation

assets, bank accounts & equities.” The complaint contains no

facts.

ORDER OF DISMISSAL

COLLEEN McMAHON, Chief United States District Judge: Even when read with the “special solicitude” due pro se

pleadings, Triestman, 470 F.3d at 474-75, Plaintiff's claims

*1 Plaintiff Robert W. Johnson, of the Bronx, New York, rise to the level of the irrational, and there is no legal theory

filed this complaint pro se and in forma pauperis (IFP). The on which he can rely. See Denton, 504 U.S. at 33; Livingston,

Court dismisses this action for the reasons set forth below. 141 F.3d at 437.

District courts generally grant a pro se plaintiff an opportunity

to amend a complaint to cure its defects, but leave to amend is

STANDARD OF REVIEW

not required where it would be futile. See Hill v. Curcione, 657

The Court must dismiss a complaint, or portion thereof, that is F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861

frivolous or malicious, fails to state a claim upon which relief F.2d 40, 42 (2d Cir. 1988). Because the defects in Plaintiff's

may be granted, or seeks monetary relief from a defendant complaint cannot be cured with an amendment, and in light

who is immune from such relief. 28 U.S.C. §§ 1915(e)(2) of Plaintiff's abusive litigation history, discussed below, the

(B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Court declines to grant Plaintiff leave to amend.

Cir. 2007). While the law mandates dismissal on any of these

grounds, the Court is obliged to construe pro se pleadings Plaintiff has filed scores of cases around the country in

liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), connection with a 2017 car accident in Buffalo, New York,

and interpret them to raise the “strongest [claims] that they and this complaint is consistent with his pattern of vexatious

suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, and frivolous litigation. In Johnson v. Wolf, ECF 1:19-

474-75 (2d Cir. 2006) (internal quotation marks and citations CV-7337, 5 (S.D.N.Y. Nov. 5, 2019), Judge Wood, after

omitted) (emphasis in original). discussing Plaintiff's extensive litigation history, dismissed

Plaintiff's action as frivolous, for failure to state a claim upon

A claim is frivolous when it “lacks an arguable basis either which relief may be granted, and for seeking monetary relief

in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 324-25 against Defendants who are immune from such relief; he also

(1989), abrogated on other grounds by Bell Atl. Corp. v. ordered Plaintiff to show cause why he should not be barred

Twombly, 550 U.S. 544 (2007); see also Denton v. Hernandez, from filing any future action IFP in this Court without prior

504 U.S. 25, 32-33 (1992) (holding that “finding of factual permission). Plaintiff did not file a declaration as directed,

frivolousness is appropriate when the facts alleged rise to the but instead, on November 13, 2019, Plaintiff filed a notice of

level of the irrational or the wholly incredible”); Livingston appeal, and that appeal is pending.1

A review of the Public Access to Court Electronic

Records (PACER) system reveals that since

November 5, 2019, Plaintiff has filed ten new CONCLUSION

actions in other federal district courts and,

The Clerk of Court is directed to mail a copy of this order to

including this case, four new actions in this Court.

Plaintiff and note service on the docket.

See Johnson v. New York State Ins. Fund, ECF

1:19-CV-11831, 2 (S.D.N.Y. filed Dec. 20. 2019);

The Court dismisses this action as frivolous. 28 U.S.C. §

Johnson v. Progressive.com, ECF 1:19-CV-11202,

1915(e)(2)(B)(i).

2 (S.D.N.Y. filed Dec. 5, 2019); Johnson v. New

York State Dep't of Trans., ECF 1:19-CV-11127, 2

The Court certifies under 28 U.S.C. § 1915(a)(3) that any

(S.D.N.Y. filed Dec. 2, 2019).

appeal from this order would not be taken in good faith, and

*2 By order dated January 27, 2020, entered in Johnson v. therefore in forma pauperis status is denied for the purpose

Town of Onondaga, ECF 1:19-CV-11128, 4 (CM) (S.D.N.Y. of an appeal. Cf. Coppedge v. United States, 369 U.S. 438,

Jan. 27, 2020), this Court also directed Plaintiff to show cause 444-45 (1962) (holding that an appellant demonstrates good

why a filing injunction should not be imposed. And at least faith when he seeks review of a nonfrivolous issue).

one other court has already barred Plaintiff from filing pro

se complaints without prior permission. See Johnson v. Abel,

No. 19-CV-2685 (E.D. Ohio Aug. 5, 2019) (deeming Plaintiff SO ORDERED.

a “vexatious” litigant and barring him from filing new pro se

All Citations

actions without prior leave of court).

Not Reported in Fed. Supp., 2020 WL 589127

The Court's prior warnings remain in effect.

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