Piccone v. New York State Department of Health OPMC et al

Filing 3

MEMORANDUM AND ORDER, For the reasons that follow, Mr. Piccone's 2 requests to proceed in forma pauperis and motion for Leave to File are hereby denied. The Court's order barring him from filing future complaints without leave of the Cour t remains in effect. The Clerk of the Court is directed to return without filing any future complaint submitted by Mr. Piccone that is not accompanied by a request for leave to file. The Court certifies pursuant to 28 USC sec. 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis is denied for purpose of an appeal. (Ordered by Judge William F. Kuntz, II on 2/17/2012) c/m Fwd. for Judgment. (Galeano, Sonia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------JC
VINCENT A. PICCONE,
MEMORANDUM AND ORDER

Plaintiff,

12 MC 92 (WFK)
12 CV 641 (WFK)

-againstNEW YORK STATE DEPARTMENT OF
HEALTH, OPMC; NEW JERSEY STATE
BOARD OF MEDICINE; PENNSYLVANIA
STATE BOARD OF MEDICINE; FEDERAL
BUREAU OF INVESTIGATION; UNITED
STATES SECRET SERVICE,
Defendants.

---------------------------------------------------------)(
KUNTZ, United States District Judge:
On February 1, 2012, Vincent A. Piccone submitted this prose action, along with a request
for leave to file and a request to proceedinformapauperis. Mr. Piccone was previously barred from
filing any new civil action in this Court without first seeking leave of the Court, by Order dated
February 10,2004 in Piccone v. City of New York, No. 03-CV-!645 (FB), slip op. (E.D.N.Y. Feb.
10, 2004). For the reasons that follow, Mr. Piccone's requests to proceed in forma pauperis and for
leave to file are hereby denied.
BACKGROUND
Mr. Piccone continues an unfortunate legacy perhaps best personified by Anthony R. Martin-

Trigona of whom the Second Circuit wrote: "This appeal returns to this Court the efforts of the
District Court for the District of Connecticut to protect the adjudication process from the relentless
efforts of a prose litigant to disrupt the process by vexatious and harrassing litigation." Anthony
R. Martin-Trigona v. Harold Lavien. et al., 763 F .2d 140, 141 (2d Cir. 1985). Mr. Piccone has filed
numerous civil actions in this Court over the past decade, each ultimately dismissed for lack of

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subject matter jurisdiction, as frivolous, or for failure to state claim. Two of those complaints also
named New York and New Jersey state agencies, the Federal Bureau oflnvestigation ("FBI"), and
the United States Secret Service and demanded access to files related to the revocation ofhis medical
license. After numerous warnings about the continued filing of frivolous lawsuits, and having
providing an opportunity to be heard, another judge of this Court enjoined Mr. Piccone from filing
any new action in this Court without first obtaining leave of the Court. See Piccone v. City of New
York, No. 03-CV-1645 (FB), slip op. (E.D.N.Y. Feb. 10, 2004).
Nonetheless, on January 13, 2012, Mr. Piccone submitted the instant complaint, without
seeking leave of the Court to file. In accordance with the February 10, 2004 Order, the Clerk's
Office returned Mr. Piccone's submission to him and sent a letter informing him of the requirement
to seek leave to file. On February 1, 2012, Mr. Piccone resubmitted his papers, along with a request
for leave of the Court to file the instant submission.
The Complaint names the New York State Department of Health's Office of Professional
Medical Conduct ("OPMC"), the New Jersey State Board ofMedicine, the PeiU1Sylvania State Board
of Medicine, the FBI, and the United States Secret Service as defendants and demands the release
of documents pursuant to the federal Freedom oflnformation Act, 5 U.S.C. § 552, et seq. ("FOIA"),
the New York Freedom of Information Law ("FOIL"), and similar laws in Pennsylvania and New
Jersey.

'See Piccone v. United States, eta!., 02-CV-4829 (FB), slip op. (E.D.N.Y. Sept 12,
2002) (dismissed by Order dated for lack of subject matter jurisdiction); Piccone v. Office of
Professional Medical Conduct. eta!., 02-CV-5138 (FB), slip op. (E.D.N.Y. Sept 12, 2002)
(dismissed for failure to state a claim); Piccone v. Office of Professional Medical Conduct, et al.,
02-CV-5151 (FB), slip op. (E.D.N.Y. Sept 12, 2002) (dismissed for failure to state a claim);
Piccone v. Ortho-McNeil Pharmaceutical, et al., 02-CV-5265 (FB) and Piccone v. GLAD, eta!.,
02-CV-5140 (FB), slip op. (E.D.N.Y. Sept 12, 2002) (dismissed for failure to state a claim);
Piccone v. Citv ofNew York. et al., 03-CV-1645 (FB), Piccone v. United States et al., 03-CV1649 (FB), and Piccone v. State ofNew York, eta!., 03-CV-1651 (FB), slip op. (E.D.N.Y. June
18, 2003) (dismissed as frivolous).

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According to the complaint, Mr. Piccone was licensed to practice medicine in New York
State until his license was revoked by the New York State OPMC in 1995. (Complaint at 4.i Mr.
Piccone states that his license was revoked "for alleged psychiatric conditions and alleged practice
of the medical profession while impaired by a mental disability." (I d.) However, he asserts that the
actual reason for the revocation was his "letter writing to government officials" and "unpopular
positions on politically charged issues." (I4J He also states that he is aware of negative letters and
"false claims" placed in his personnel file at Brooklyn Hospital, including one in which "a woman
made claims that the physician threatened the life of her daughter." Q..Q.,. at 6.) Mr. Piccone alleges
that the state and federal agencies named as defendants in the instant action have maintained records
of proceedings and complaints against him. Mat 4-5.) He now demands access to these records,
including information about the complaints against him and the identities of complainants, on the
grounds that "the physician and others have the right to confront his accuser." Q..Q.. at 6.)
Mr. Piccone states that he requested copies of these records, through the federal FOIA, the
New York FOIL, and similar laws in Pennsylvania and New Jersey.

(!4.. at 5-6.)

He states that the

New York, New Jersey, and Pennsylvania state agencies and the FBI each denied his requests for
certain records on the grounds of stated statutory exemptions to the relevant disclosure laws. (ld.
at 7-8.) Mr. Piccone asserts that these statutory exemptions violate his constitutional rights under the
Fifth and Sixth Amendments. He demands that this Court strike down the laws as unconstitutional
and order the release of the requested records.

(!d.. at 8.)

Mr. Piccone states that the Secret Service

denied his request on the grounds that there were no documents responsive to his request. (I d.) He
alleges that this claim "is contrary to the paper trail left by the secret serve and common sense." (ld.)
2

The pages of the Complaint do not include page numbers, and the Exhibits are not
labeled. The Court refers to the page numbers assigned by the Electronic Case Filing System.
As the documents, including the request for leave to file, were scanned and docketed together,
the actual Complaint begins on page 3.

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He asks this Court to order the release of "all information held by the secret service about the
plaintiff." (!d.)

In support of his claims, Mr. Piccone attaches his correspondence with the agencies named
as defendants. The United States Secret Service asserted that it did not maintain disclosable records
under his name. (Complaint at 19-20, Aug. 17,2010 Letter from Freedom of Information Act &
Privacy Acts Branch Communications Center of the Department ofHome1and Security; Complaint
at 21, Dec. 14, 2010 Letter from Deputy Director Keith L. Prewitt.) The FBI stated that it could not
identify "responsive main tile records" and explained statutory categories of exemptions to FOIA
requests. (Complaint at 24, June 16, 2010 Letter from FBI Records Management Division;
Complaint at 25, Sep. 14, 2010 Letter from Office of Information Policy at the United States
Department of Justice.)
The New York Department ofHea1th's May 14,2010 Letter stated that it enclosed 27 pages
of responsive documents and informed the requester that the agency could not provide records
related to the investigation of possible instances of professional misconduct. (Complaint at 29, May
14, 2010 Letter from the Records Access Office.) In response to Mr. Piccone's appeal, the New
York state agency provided additional documents, but upheld the denial of access to records
"constituting investigative materials," "confidential reports of professional misconduct," "patient
records," and "records where disclosure could endanger the life and safety of any person," pursuant
to specific exemptions provided for in the New York Public Health Law and Public Officers Law.
(Complaint at 31-4, July 16, 2010 Letter from Records Access Appeals Officer.) Mr. Piccone also
filed an Article 78 Proceeding in the Richmond County Supreme Court, which denied his FOIL
requests and dismissed his motion. (Complaint at 35-6, May 31, 2011 Order of the Hon. John A.
Fusco.)

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The New Jersey Government Records Custodian denied Mr. Piccone's request for documents
on the ground that the request was improper and overbroad. (Complaint at 16, December 21,2010
Receipt.) A subsequent appeal to the New Jersey Office of the Attorney General resulted in
disclosure of some documents, and a statement that certain documents remained under legal review.
(Complaint at 14, June 20, 2011 Letter from Records Custodian.) The Pennsylvania Office of Open
Records provided some documents, redacted others, and denied access to investigative records,
citing provisions of the relevant Pennsylvania statute. (Complaint at 37-41, June 23, 20 I 0 Final
Determination; Complaint at 42-52, Aug. 12,2011 Memorandum Opinion of the Commonwealth
Court of Pennsylvania.)
The instant complaint asks this Court to order the defendants to release the requested
documents, to provide an itemized index pursuant to Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.
1973), and to declare unconstitutional certain portions of the federal and state disclosure laws.
Mr. Piccone's request for leave to file summarizes the loss of his medical licenses in New
York, New Jersey, and Pennsylvania in 1995 and 1997 and his futile attempts to reapply for
licensure, explains his straightened financial circumstances, and reiterates his request for disclosure
of records by the defendant agencies. (Request, ECF Entry #1, at 1-2.) Moreover, Mr. Piccone
describes some of the allegations against him that led to the loss ofhis licenses, including allegations
that he threatened various individuals, sexually molested an underage child, and made threats against
the President and shot out the window of a congresswoman's office. (.lll at 2.) He states: "The
plaintiff believes these allegations are untrue." (Id.) Finally, Mr. Piccone states that he "has
exhausted all other options to restore his good name and looks to the Federal Court to correct grave
injustice." (ld.)

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DISCUSSION
The Court has carefully reviewed Mr. Piccone's complaint and his request for leave to file,
and finds that leave to file must be denied. If filed_, the complaint would be dismissed pursuant to
the in forma pauperis statute, which requires the court to dismiss a complaint if it determines that
the action is "(i) frivolous or malicious, (ii) fails to state a claim upon which relief may be granted,

or (iii) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. §
1915(e)(2)(B). A complaint must plead "enough facts to state a claim to relief that is plausible on
its face." Bell Atlantic Com. v. Twombly. 550 U.S. 544, 570 (2007). A claim will be considered
"plausible on its face" "when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556
U.S. 662, 129 S. Ct. 1937, 1949 (2d Cir. 2009). This complaint fails to state a plausible claim for
relief under FOIA or any other provision.
The federal FOIA created a judicially enforceable public right of access to information
collected by executive branch agencies, subject to specified limitations. Federal court jurisdiction
"is dependent upon a showing that an agency has (1) 'improperly;' (2) 'withheld;' (3) 'agency
records."' Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 150 (I 980).
In this case, Mr. Piccone does not allege that the federal agencies improperly withheld the records
he requested. 3 Rather, Mr. Piccone challenges the constitutionality ofthe exemption provisions cited
by the agencies.
The complaint also fails to state a claim against the New York, New Jersey, and Pennsylvania

3

Indeed, his exhibits document that the FBI and the Secret Service responded promptly to
his requests. The Secret Service stated that it did not find records in the requested name.
(Complaint at 19-21.) The FBI denied his requests for certain documents related to law
enforcement investigations on the basis of statutory exemptions to the disclosure provisions. (kl,
at 24-25.)

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state agencies. The federal FOIA applies only to federal agencies, and not to state agencies.

See~

Grand Cent. Partnership. Inc. v. Cuomo, 166 F.3d473, 484 (2d Cir. 1999). Federal courts have no
jurisdiction to enforce the state laws cited by those agencies in their denials of Mr. Piccone's
requests.
For all of these reasons, the Court finds that the complaint fails to state a claim on which
relief may be granted. See 28 U.S.C. § 1915(e)(2)(B). !fit were to be filed, it would be dismissed
under the in forma pauperis statute. Accordingly, Mr. Piccone's request for leave to file the abovecaptioned complaint is denied. The Court's order barring him from filing future complaints without
leave of the Court remains in effect. The Clerk of the Court is directed to return without filing any
future complaint submitted by Mr. Piccone that is not accompanied by a request for leave to file.
The court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be
taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. See
Coppedge v. United States, 369 U.S. 438,444-45 (1962).

SO ORDERED.

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WILLIAM F. K~JT.:I t/United States D / Judge

Dated: Brooklyn, New York
February fi, 2012

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