Huminski v. Connecticut et al
Filing
193
ORDER. As set forth in the attached ruling, the Court dismisses plaintiff's complaint with prejudice and denies all pending motions as moot. The Clerk is directed to close this case. Signed by Judge Michael P. Shea on 4/14/15. (Khan, J)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
SCOTT HUMINSKI,
Plaintiff,
v.
No. 3:14-cv-1390 (MPS)
STATE OF CONNECTICUT, et al.,
Defendants.
MEMORANDUM OF DECISION
I. Introduction
Scott Huminski (“Mr. Huminski”), proceeding pro se, brings this complaint seeking
declaratory and injunctive relief against a large number of defendants based on an alleged
violation of his First Amendment and due process rights. Because Mr. Huminski has failed to
allege facts showing that he has standing to challenge the Massachusetts criminal stalking statute
and the common law of Vermont, this Court dismisses those claims, as it does not have subject
matter jurisdiction to hear them. The Court dismisses Mr. Huminski‟s remaining claims because
they are frivolous.
II. Background
Mr. Huminski alleges that the criminal harassment statutes in Arizona and Connecticut,1
the criminal stalking statute in Massachusetts,2 and the common law in Vermont chill his speech
in violation of the First Amendment, because such laws prevent him from posting “anti-policestate music” online.3 (See, e.g., Compl. ¶¶ 46, 75.) He also alleges that the named defendants, in
1
Mr. Huminski identifies the relevant statutes as Ariz. Rev. Stat. § 13-2921 (Compl. ¶¶ 7, 14), and Conn. Gen. Stat.
§ 53a-183. (Id. ¶¶ 14, 17.)
2
Mr. Huminski identifies the relevant statute as Mass. Gen. Laws c. 265, § 43. (Id. ¶¶ 66-67.)
3
Mr. Huminski has not provided a further description of his music. For purposes of this ruling, the Court will
assume the content is protected political speech, as alleged by Mr. Huminski.
1
both their “individual and official capacities” (id. ¶ 6), have denied Mr. Huminski his First
Amendment and due process rights by preventing him from filing future “probate/estate
litigation” against his brother, and by preventing him from communicating with law enforcement
officials and others in Arizona, due to alleged “threats” Mr. Huminski has received from
“government officials” under the authority of the criminal harassment statutes in Arizona and
Connecticut, and the common law of Vermont. (Id. ¶ 14; see also id. ¶¶ 16, 36, 46, 51, 64.) He
alleges these actions demonstrate that “availing one‟s self to redress in the courts, „the court
process,‟ constitutes per se harassment worthy of retaliation with years of criminal prosecution,”
and that he is therefore unable to file future litigation. (Id. ¶ 39.) In addition, Mr. Huminski
alleges that the Massachusetts criminal stalking statute, Mass. Gen. Laws c. 265, § 43, is
unconstitutionally vague and overbroad because it “targets core political speech.” (Id. ¶ 67.)
Finally, Mr. Huminski seeks declaratory and injunctive relief from this Court on 27 different
issues.
III. Legal Standards
“Article III of the Constitution limits federal courts‟ jurisdiction to certain „Cases‟ and
„Controversies.‟” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1146 (2013). “„One element
of the case-or-controversy requirement‟ is that plaintiffs „must establish that they have standing
to sue.‟” Id. (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)). “To establish Article III
standing, an injury must be „concrete, particularized, and actual or imminent; fairly traceable to
the challenged action; and redressable by a favorable ruling.‟” Id. at 1147 (quoting Monsanto
Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010)). “Although imminence is concededly a
somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the
alleged injury is not too speculative for Article III purposes—that the injury is certainly
2
impending.” Id. “Thus, we have repeatedly reiterated that „threatened injury must be certainly
impending to constitute injury in fact,‟ and that „[a]llegations of possible future injury‟ are not
sufficient.” Id. (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)). The party invoking
federal jurisdiction has the burden of establishing his standing. Cent. State Se. & Sw. Areas
Health & Welfare Fund v. Merck-Medco Managed Care, LLC, 433 F.3d 181, 198 (2d Cir. 2005).
Because “[s]tanding „is an essential and unchanging part of the case-or-controversy
requirement of Article III‟ . . . [i]f plaintiffs lack Article III standing, a court has no subject
matter jurisdiction to hear their claim.” Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992)). “Because the standing issue goes to this Court‟s subject matter jurisdiction, it
can be raised sua sponte.” Id.
Furthermore, district courts possess “inherent authority” to dismiss actions sua sponte as
frivolous even where a pro se plaintiff has paid the filing fee. Fitzgerald v. First East Seventh
Street Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (per curiam). An action is frivolous
where it is “based on an indisputably meritless legal theory” or presents “factual contentions
[which] are clearly baseless.” Neitzke v. Williams, 490 U.S. 319, 327 (1989).
Finally, when reviewing a pro se complaint, the court must assume the truth of the
allegations and construe them liberally to “raise the strongest arguments [they] suggest[].”
Abbas v. Dixson, 480 F.3d 636, 639 (2d Cir. 2007).
IV. Discussion
Even after construing Mr. Huminski‟s complaint to “raise the strongest arguments” it
suggests, this Court finds that Mr. Huminski has failed to allege that he has sufficient Article III
standing as to his Massachusetts and Vermont claims. In addition, Mr. Huminski‟s remaining
claims as to the Connecticut and Arizona statutes must be dismissed as frivolous.
3
A. Mr. Huminski does not have standing to challenge
Massachusetts criminal stalking statute
the
In his claim attacking the constitutionality of the Massachusetts criminal stalking statue
under the First Amendment, Mr. Huminski alleges that he “was threatened with prosecution
under Massachusetts [sic] cyber stalking law, Mass. Gen. Laws c. 265, § 43, by Randy[,]”4 a
private citizen. (Compl. ¶¶ 66, 67.) First, even construed liberally, the complaint does not allege
that “Randy” was a state actor with the authority to prosecute Mr. Huminski under Mass. Gen.
Laws c. 265, § 43, a criminal statute, and Mr. Huminski‟s allegation that “officials from the
Commonwealth of Massachusetts visited [his] websites” does not suggest that a prosecution is
imminent. Mr. Huminski has therefore not alleged that he faces a “certainly impending” threat
of prosecution in Massachusetts as would be required to challenge the statute‟s constitutionality,
because private citizens do not have standing to enforce criminal statutes. Linda R.S. v. Richard
D., 410 U.S. 614, 619 (1973) (“[I]n American jurisprudence at least, a private citizen lacks a
judicially cognizable interest in the prosecution or nonprosecution of another.”); Bunker Hill
Distrib., Inc. v. Dist. Attorney for Suffolk Cnty., 376 Mass. 142, 147 (1978) (“[A]pplication of
criminal statutes in the first sense generally lies with the public prosecutor. . . . Permitting
declaratory or injunctive relief in the absence of a threat of enforcement removes control of
litigation from the prosecutor and subjects limited prosecutorial resources to allocation, not
through the judgment of the appropriately elected official, the district attorney, but at the
instigation of insular interests.”).
B. Mr. Huminski does not have standing to challenge Vermont’s
common law
Mr. Huminski also lacks standing to challenge Vermont‟s common law because he fails
4
Mr. Huminski identifies this individual as “Randy of the Justice for Vinnie website[.]” (Compl. ¶ 66.)
4
to allege any facts suggesting that he faces a “certainly impending” threat of prosecution by
Vermont law enforcement should he file probate or other litigation, post political videos online,
or take any other action. In fact, Mr. Huminski‟s only allegations concerning the possibility of
prosecution in Vermont are based on the recounting of a concluded proceeding, from 17 years
ago, that does not relate to his proposed activities. (Compl. ¶¶ 32, 34.) Mr. Huminski, a resident
of Florida (id. ¶ 68), has not alleged any ties to Vermont within the last 17 years. And although
Mr. Huminski recounts his prior litigation in Vermont in detail (see id. ¶¶ 27-37), none of these
allegations demonstrate that he has suffered more than a hypothetical or speculative injury, much
less that prosecution from Vermont‟s state officials is “certainly impending” should he file a
lawsuit or post political videos online, or that filing litigation or posting political videos is
prohibited by Vermont common law in any way.5 Therefore, because the “„threatened injury
must be certainly impending to constitute injury in fact,‟ and . . . „[a]llegations of possible future
injury‟ are not sufficient,” Mr. Huminski has failed to allege he has standing. Amnesty Int’l, 133
S. Ct. at 1147; see also id. at 1153 (holding that a plaintiff cannot “establish standing simply by
claiming that [he] experienced a „chilling effect‟ that resulted from a government policy that
does not regulate, constrain, or compel any action on [his] part.”).
C.
Mr. Huminski’s challenges to the Connecticut and Arizona statutes are Frivolous
This Court also dismisses as frivolous Mr. Huminski‟s First Amendment claims against
the Connecticut and Arizona harassment statutes. Mr. Huminski alleges that he received a
5
Mr. Huminski‟s lack of standing here is further illustrated by his two prior Vermont cases, Huminski v. Corsones,
396 F.3d 53 (2d Cir. 2005) and Huminski v. Rutland Cnty., 134 F. Supp. 2d 362 (D. Vt. 2002). Both cases involved
actual prohibitions from Vermont law authorities against Mr. Huminski‟s physical presence at court proceedings.
See Corsones, 396 F.3d at 58 (“Vermont officials . . . prohibited Huminski‟s presence in and around certain state
courthouses.”); Rutland Cnty., 134 F. Supp. 2d at 363 (“Defendants (court personnel, law enforcement officers and
others at the Vermont District Court in Rutland, Vermont) requested and issued notices of trespass prohibiting
Huminski from entering upon the lands or buildings of the Rutland District Court and all courthouses in the state.”).
Here, by contrast, Mr. Huminski has not alleged a “certainly impending” future threat of prosecution, let alone an
actual injury.
5
telephone call from a Wilton, Connecticut, police officer requesting that Mr. Huminski stop
contacting his brother, who is allegedly a police officer in Norwalk, Connecticut. (Compl. ¶ 17.)
Mr. Huminski also alleges he received an email from an Arizona police officer requesting that he
stop contacting Justin M. Nelson, a private actor, deceased as of 2012, and Mr. Nelson‟s attorney
in Arizona. (Id. ¶¶ 8-9, 14.) Mr. Huminski also alleges that a public relations official with the
Maricopa County (Arizona) Sheriff‟s Office sent him an email on July 20, 2011, threatening to
“pursue a legal remedy” if he did not stop sending the sheriff‟s office “harassing emails.” (Id. ¶
21.) Although these allegations are vague—some of the alleged conduct is undated or otherwise
unaccompanied by factual context—the Court, mindful of its obligation to construe the
allegations of a pro se plaintiff liberally, finds that they arguably allege enough facts for
standing. In particular, Mr. Huminski alleges that should he contact these individuals, some of
whom he has tried to contact within the past few years (id.), he faces prosecution under
Connecticut‟s and Arizona‟s respective harassment statutes, and that this threat is chilling further
contacts on his part.
But these claims are frivolous because they are “based on [] indisputably meritless legal
theor[ies.]” Neitzke, 490 U.S. at 327. Mr. Huminski‟s as-applied challenge to these statutes is
meritless because his allegedly inhibited conduct—repeatedly contacting individuals who have
asked or warned him not to do so or who have obtained a protective order against him—is not
constitutionally protected. See e.g., United States v. Osinger, 753 F.3d 939, 944 (9th Cir. 2014)
(upholding constitutionality of interstate stalking statute because “the proscribed acts are tethered
to the underlying criminal conduct and not to speech[]”); United States v. Petrovic, 701 F.3d
849, 856 (8th Cir. 2012) (holding that interstate stalking statute‟s prohibition against criminal
contact “[are] directed toward „course[s] of conduct,‟ not speech, and the conduct it proscribes is
6
„not necessarily associated with speech[]‟”) (quoting 18 U.S.C. § 2261A(2)(A)); State v.
Moulton, 310 Conn 337, 362 (2013) (Conn. Gen. Stat. § 53a-183 constitutionally applies to
conduct and unprotected speech); see also State v. Marsala, 43 Conn. App. 527, 534, 537 (1996)
(finding sufficient evidence to convict defendant under Conn. Gen. Stat. § 53a-183 where
defendant made twenty-five calls to victim in three months and where victim repeatedly asked
defendant to stop calling).
And his overbreadth challenges to the Connecticut and Arizona statutes are frivolous
because neither statute infringes upon protected speech. The highest courts in Arizona and
Connecticut have clearly held the statutes at issue do not apply to speech or conduct protected by
the First Amendment.
State v. Brown, 207 Ariz. 231, 236 (2004) (“In sum, § 13-2921 regulates
neither constitutionally protected speech nor expressive conduct and, thus, does not implicate the
First Amendment.”); Moulton, 310 Conn. at 362 (holding that § 53a-183 applies only to conduct
and speech not protected by the First Amendment). This Court is bound by these interpretations
of the challenged statutes, and it is thus compelled to reject the notion that these laws are chilling
Mr. Huminski‟s protected activity.
Mr. Huminski has made and lost similar arguments previously. See, e.g., Huminski v.
Vermont, No. 2:13-cv-692-JES-DFN, 2014 WL 169848 (M.D. Fla. Jan. 15, 2014). In fact, this
complaint is one of a series of cases that Mr. Huminski has filed based on roughly the same
events. See, e.g., id. (filed Aug. 28, 2013); Huminski v. Vermont, No. 1:13-cv-23099-ASG (S.D.
Fla. filed Aug. 28, 2013); Huminski v. Vermont., No. 2:13-cv-685-JES-DNF (M.D. Fla. filed
Sept. 25, 2013); Huminski v. Heredia, No. 2:11-cv-00896-DGC (D. Ariz filed on May 4, 2011).6
6
A number of the courts above have issued Mr. Huminski warnings regarding sanctions should he continue to
engage in frivolous filings. See, e.g., Huminski v. Heredia, No. CV 11-0896-PHX-DGC, 2012 WL 1940624, at *7
(D. Ariz May 29, 2012); Huminski v. Vermont, No. 2:13-CV-692-FTM-29DNF, 2014 WL 169848, at *5 (M.D. Fla.
Jan. 15, 2014). This Court now issues a similar caution to Mr. Huminski, who has filed over sixty motions in the
7
Mr. Huminski makes no attempt to hide his court hopping, acknowledging in his complaint that
“[m]uch of this document was cut and pasted from Mr. Huminski‟s earlier papers and court
filings.” (Compl. ¶ 70.)
The Second Circuit has upheld the sua sponte dismissal of a pro se plaintiff‟s frivolous
complaint, in similar circumstances, even where that plaintiff paid the filing fee. Fitzgerald, 221
F.3d at 364 (“Accordingly, we hold that district courts may dismiss a frivolous complaint sua
sponte even when the plaintiff has paid the required filing fee[.]”). Like Mr. Huminski, Mr.
Fitzgerald was a serial litigant. Id. at 363; see also id. at 364 n.3 (“It has come to our attention
that Fitzgerald has been an active—and perhaps abusive—litigant[.]”). “[A]s courts of first
instance, district courts are especially likely to be exposed to frivolous actions, and thus have an
even greater need [than Circuit Courts] for inherent authority to dismiss such actions quickly in
order to preserve scarce judicial resources.” Id. at 364. Recognizing this need, and because the
legal grounds underlying the claims are meritless and advance “claims of infringement of [] legal
interest[s] which clearly do[] not exist[],” Neitzke, 490 U.S. at 327, the Court dismisses the
Connecticut and Arizona claims.
D. Individual Counts
Mr. Huminski‟s complaint identifies 27 separate “counts” seeking declaratory and, in a
few cases, injunctive relief. Some of these counts appear to relate to his challenge to the
Massachusetts, Vermont, Connecticut and Arizona laws, and some do not. Those that do, of
course, fail for the same reasons those challenges fail—which are discussed above. See, e.g.,
Count One (seeking declaratory judgment that statutes are unconstitutional); Count Four
(seeking injunction against the statutes and Vermont common law); Count Five (seeking
eight months this action has been pending: Further frivolous filings on his part may result in sanctions, including, if
necessary, the imposition of limitations on his ability to file additional actions. Fitzgerald, 221 F.3d at 364 n.3.
8
injunction “against the aforementioned threats from police . . . ”); Count Twelve (seeking
declaration that harassment laws of the states at issue “have obstructed service of this matter and
chilled Huminski‟s expression . . . ”); Counts Thirteen, Eighteen Nineteen, Twenty One, Twenty
Two (seeking various declarations about the harassment laws of the states at issue). To the
extent any of the other “counts” for declaratory judgment or injunctive relief are premised on
other claims, the Court dismisses them as well, for the following reasons.
As discussed above, “[t]o obtain prospective relief, such as a declaratory judgment or an
injunction, a plaintiff must show, inter alia, „a sufficient likelihood that he [or she] will again be
wronged in a similar way.‟” Marcavage v. City of New York, 689 F.3d 98, 103 (2d Cir. 2012)
(quoting City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)). “That is, a plaintiff must
demonstrate a „certainly impending‟ future injury.” Id. (quoting Whitmore, 495 U.S. at 158). In
addition, even if a plaintiff pleads facts demonstrating standing, a court may choose to dismiss an
action for declaratory relief if the relief sought is purely retrospective or would not otherwise
serve a useful purpose. Dow Jones & Co. v. Harrods Ltd., 346 F.3d 357, 359 (2d Cir. 2003)
(declaratory judgment statute is a “broad grant of discretion to district courts to refuse to exercise
jurisdiction over a declaratory action that they would otherwise be empowered to hear.”); Duane
Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 411 F.3d 384, 389 (2d Cir. 2005) (in deciding
whether to entertain an action for declaratory judgment, district court should ask “(1) whether the
judgment will serve a useful purpose in clarifying or settling the legal issues involved; and (2)
whether a judgment would finalize the controversy and offer relief from uncertainty.”); Ippolito
v. Meisel, 958 F. Supp. 155, 165 (S.D.N.Y. 1997) (“[C]ourts are not obliged to entertain actions
for declaratory judgment not seeking prospective relief but merely declaring past wrongs.”);
Springfield Hosp. v. Hoffman, 2010 WL 3322716, at *7 n.4 (D. Vt. 2010) (same).
9
These principles call for dismissal of those of Mr. Huminski‟s requests for declaratory
and injunctive relief relief not already foreclosed by the Court‟s earlier discussion of the
challenges to state harassment laws.
Most of these requests ask the Court to make
pronouncements about various past events, and many also relate to past conduct that the
complaint does not allege—at least with any factual allegations—is likely to recur. Counts Two,
Three, Six through Eleven7 and Sixteen8 fall into both categories.
The remaining requests seek declarations about general propositions that appear to be
unconnected to any matter remaining in controversy.9 This Court lacks jurisdiction to issue
advisory opinions that would have no practical impact. Maryland Casualty Co. v. Pacific Coal
& Oil Co., 312 U.S. 270, 273 (1941) (requiring “a substantial controversy, between parties
having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a
declaratory judgment[]”); Penguin Books USA Inc. v. Walsh, 929 F.2d 69, 72 (2d Cir. 1991) (“A
federal court lacks the power to render advisory opinions and the authority „to decide questions
that cannot affect the rights of litigants in the case before them.‟”) (quoting North Carolina v.
Rice, 404 U.S. 244, 246 (1971)). These claims are therefore dismissed.
E.
7
Leave to Amend
Mr. Huminski includes two Count Elevens, they will be distinguished as Count Eleven(1) and Count Eleven(2).
8
Specifically, Counts Two and Nine through Eleven(1) request declaratory judgments that police officers of the
town of Gilbert, Arizona violated Mr. Huminski‟s constitutional rights, and are based on an arrest in May, 2012
(Compl. ¶ 40). Count Eleven(2) seeks a declaration about the actions of Vermont prosecutors some 17 years ago.
Counts Six and Seven request declaratory judgments that police officers conspired to violate Mr. Huminski‟s rights,
and Counts Three and Eight request declaratory judgments that police officers in the City of Sunrise, Arizona,
obstructed justice and committed fraud, respectively.
9
Counts Twelve, Fifteen, and Eighteen request declaratory judgments that litigation is protected speech. Counts
Seventeen and Nineteen request declaratory judgments that filing litigation violates criminal harassment statutes.
Counts Twenty-Four and Twenty-Five request declaratory judgments that Mr. Huminski‟s music is protected
speech. Count Twenty requests a declaratory judgment that no-contact requests violate the First Amendment.
Count Twenty-Three requests a declaratory judgment that certain people and journalists are “reasonable people.”
Finally, Count Twenty-Six requests a declaratory judgment that the “interception of court papers followed by an
assault is an unconstitutional and illegal retaliation and response to a federal civil rights lawsuit by the Maricopa
County Attorney‟s Office.”
10
Although the Court has concluded that the complaint must be dismissed, it will consider
whether Mr. Huminski may amend his complaint. Under Federal Rule of Civil Procedure 15(a),
“[t]he court should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a).
“Although the rule requires that leave should be granted freely, it is within the sound discretion
of the court whether to grant leave to amend.” John Hancock Mut. Life Ins. Co. v. Amerford Int’l
Corp., 22 F.3d 458, 462 (2d Cir. 1994) (citing Forman v. Davis, 371 U.S. 178, 182 (1962)).
Futility of the amendment is a reason to deny leave, id., and in this case it is a compelling
one. When a plaintiff seeks to amend his complaint, “[l]eave to amend may be denied on
grounds of futility if the proposed amendment fails to state a legally cognizable claim or fails to
raise triable issues of fact.” AEP Energy Servs. Gas Holding Co. v. Bank of America, 626 F.3d
699, 726 (2d Cir. 2010); see also Kallas v. Fiala, 2015 WL 399127, at *1 (2d Cir. 2015) (“Pro se
complaints should be liberally construed, and district courts should generally not dismiss a pro se
complaint without granting the plaintiff leave to amend, unless it would be futile.”) (citing Cuoco
v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)). Since filing his complaint, Mr. Huminski has
filed no fewer than 64 motions, including repetitive motions to amend his complaint. (See ECF
Nos. 43, 88, 89, 104, 105, 132, 190.) This Court has reviewed the bevy of proposed amended
complaints attached to those motions, and finds that, because they suffer from the same problems
as his original complaint, granting Mr. Huminski leave to amend at this point would be futile.
More specifically, the proposed amended complaints, like Mr. Huminski‟s original complaint,
either ask this Court to issue retrospective declaratory and injunctive relief or advisory opinions,
or set forth claims that are frivolous.
Mr. Huminski‟s First Amended Complaint, dated October 1, 2014, asks this Court to
issue a retrospective declaratory judgment stating that government officers in the Town of
11
Wilton, Connecticut, discriminated against the disabled and made statements constituting “hate
speech and defamation.”10
(ECF No. 43.)
Likewise, Mr. Huminski‟s Second Amended
Complaint, dated October 19, 2014, requests a retrospective declaratory judgment that this
Court and others, by taking various actions in response to his filings, have “discriminate[d]”
against the disabled.11 (ECF Nos. 88, 89.) In any event, Mr. Huminski has failed to plead facts
from which the Court might infer a violation of the Americans with Disabilities Act.
Similarly, Mr. Huminski‟s Supplemental Motion for Leave to Amend, dated November
16, 2014, asks this Court to grant a “declaratory [judgment] stating that reporting of crimes (of
Justine M. Nelson)[—who is allegedly dead—]to the police agencies” is constitutionally
protected speech.12 (ECF No. 105.) Again, the relief sought relates solely to past conduct and
the substance of the claim appears to be related to his challenge to the Arizona statute, which the
Court has already dismissed.
Next, Mr. Huminski‟s Supplemental Motion for leave to Amend, dated December 4,
2014, attempts to add Jeffry Spahr, legal counsel for the City of Norwalk, as a defendant on the
grounds that Mr. Spahr violated Mr. Huminski‟s constitutional rights by failing to provide proper
training to Mr. Huminski‟s brother.13 This amendment is frivolous because no facts are pled
10
Specifically, Mr. Huminski alleges that Wilton government officials discriminated against the disabled because a
Wilton official allegedly stated to Mr. Huminski‟s process server, “They did call „you the crazy guy who got
arrested[.]‟” (First Am. Compl. ¶ 85.)
11
Mr. Huminski‟s added count requests, “A declaration that the Court [and other defendants] discriminate against
the disabled and violate the ADA.” (Second Am. Compl. Count Twenty-Eight.)
12
On the same day, Mr. Huminski filed a document he entered on the docket as a “Motion for Leave to File
Amended Complaint,” but which he labeled as “Reply to Oppositions [sic] to Preliminary Injunction.” (ECF No.
104.) Even if the Court construes this filing as another motion to amend, it denies the motion because it only repeats
the conclusory allegations the Court has already determined are frivolous and does not allege any new claims or
factual allegations.
13
In this amendment, Mr. Huminski alleges that “Mr. Spahr is staff legal counsel for Norwalk and he has failed to
inform [Mr. Huminski‟s brother] that a lifetime arrest threat without expiration and without judicial review that
impacts first amendment conduct is unconstitutional.” (ECF No. 132.)
12
suggesting that Mr. Huminski‟s brother‟s alleged conduct—reporting Mr. Huminski to Wilton
Police—was undertaken in anything but a private capacity. See Miqui v. City of New York, No.
01-CV-4628(FB) (VVP), 2003 WL 22937690, at *4 (E.D.N.Y. Dec. 5, 2003) (“Because § 1983
requires action taken under color of law, „it is clear that personal pursuits of police officers do
not give rise to section 1983 liability[.]‟”) (quoting Screws v. United States, 325 U.S. 91, 111
(1945)). Further, neither the complaint nor the proposed amendment actually alleges facts
suggesting that Norwalk has issued a “lifetime arrest threat” to Mr. Huminski, let alone one that
would infringe on First Amendment rights. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2007) (the
court need accept as true only factual allegations and not conclusory allegations or legal
conclusions); Moulton, 310 Conn. at 362 (Conn. Gen. Stat. § 53a-183 does not apply to speech
or protected conduct); Marsala, 43 Conn. App. at 537 (sufficient evidence to convict under §
53a-183 where defendant‟s conduct included repetitive, unwanted contacts).
Because this
motion would also just add another frivolous claim, leave to amend would be futile.
In addition, Mr. Huminski‟s Supplemental Motions for Leave to Amend, dated
December 26, 201414 and January 14, 2015,15 simply repeat allegations from Mr. Huminski‟s
original complaint and do not make any independent legal claims.
Finally, Mr. Huminski‟s Motion for Leave to Amend, dated April 4, 2015, seeks to add
“tort damages arising out of the death threat received by [Mr.] Huminski on 4/2/2015.” (ECF
No. 190.) This new claim is based on Mr. Huminski‟s “notification of death threat from the
town of Gilbert,” filed on April 2, 2015 (ECF No. 185), which attaches a typed statement,
14
Mr. Huminski alleges that “[his brother] followed the advice of counsel for Norwalk and chose to continue the
lifetime police threats against Huminski[.]” (ECF No. 157.)
15
Specifically, Mr. Huminski alleges that “the City of Surprise, Arizona participated in the conspiracy to issue
perpetual summary arrest threats against Huminski with the co-conspirators of Norwalk, Wilton, Gilbert and
employees and officials with those municipalities.” (ECF No. 168.)
13
together with an envelope bearing a stamp and postmark from Phoenix, Arizona, purportedly
from an Officer Ryan Pillar. The statement begins, “Hello Scott. It‟s almost time for you to
die.” (ECF No. 185-1.)16 Officer Pillar is not mentioned in the complaint, and the motion for
leave to amend does not allege any facts about him other than that he is employed by the Town
of Gilbert, Arizona. There are neither allegations suggesting what cause of action Mr. Huminski
seeks to plead against Office Pillar nor allegations suggesting why this Court might have
personal jurisdiction over a police officer in Arizona in connection with a letter sent from
Arizona to Florida. For these reasons, allowing this amendment, too, would be futile, and the
Court declines to do so.
Lastly, to the extent Mr. Huminski claims he is entitled to court-appointed counsel to
argue his case (ECF No. 63), he is incorrect. Federal courts are not required to appoint counsel
in civil cases, let alone for plaintiffs able to afford filing fees. See In re Martin-Trigona, 737
F.2d 1254, 1260 (2d Cir. 1984) (“In non-criminal cases federal courts have the authority to
appoint counsel, but generally they are not required to do so. The determination of whether
appointment of counsel is necessary rests with the discretion of the court.”) (internal citations
omitted); Gustin v. Potter, No. 03-CV-6438L, 2006 WL 3169201, at *1 (W.D.N.Y. Nov. 1,
2006) (“It is well settled that there is no constitutional right to appointed counsel in civil cases.”).
Although Mr. Huminski claims he is indigent, he has submitted no supporting evidence and, in
any event, has elected to proceed by paying the filing fee instead of in forma pauperis. Were
Mr. Huminski proceeding in forma pauperis, the Court would still have broad discretion in
deciding whether to appoint counsel. See 28 U.S.C. § 1915(e)(1) (“The court may request an
attorney to represent any such person unable to employ counsel.”) (emphasis added).
16
After this document was filed, the Court posted a notice advising that it had reviewed the material and concluded
that “[t]his is a law enforcement matter.” (ECF No. 189.) The Court also noted that Mr. Huminski‟s papers include
a statement that he had contacted the FBI. (Id.)
14
Whenever a court evaluates whether to appoint counsel, it must consider the genuine
need for counsel and the potential merit of the plaintiff‟s claim. Given Mr. Huminski‟s extensive
experience with the legal system, the repetitive nature of the legal issues he pursues, see n.6,
supra, and the sheer number and frequency of his filings in this case, this Court finds that Mr.
Huminski does not require counsel to present his case to this Court. See Cooper v. A. Sargenti
Co., 877 F.2d 170, 172 (2d Cir. 1989) (examining “the merits of plaintiff‟s case, the plaintiff‟s
ability to pay for private counsel, his efforts to obtain a lawyer, the availability of counsel, and
the plaintiff‟s ability to gather the facts and deal with the issues if unassisted by counsel[]”).
More importantly, Mr. Huminski‟s repeated failure to state a claim and the frivolous nature of
his claims weigh heavily against this Court‟s appointing counsel on his behalf. See Miller v.
Pleasure, 296 F.2d 283, 285 (2d Cir. 1961) (“The chances of any measure of success for the
plaintiff's claims are so highly dubious that a judge cannot properly ask a member of the bar to
assume this thankless burden.”).
V. Conclusion
For the reasons set forth above, Mr. Huminski‟s complaint is dismissed with prejudice,
leave to amend is denied, and all pending motions are DENIED as moot. The Clerk is directed
to close this case.
IT IS SO ORDERED.
/s/
Michael P. Shea, U.S.D.J.
Dated:
Hartford, Connecticut
April 14, 2015
15
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