Manko v. Steinhardt et al
MEMORANDUM AND ORDER: Plaintiff's 2 request to proceed in forma pauperis is granted solely for the purpose of this Memorandum and Order, and the action is hereby dismissed on the basis of res judicata. 28 U.S.C. § 1915(e)(2)(B)(i). Furthermore, plaintiff is ordered to show cause, within 30 days from the date of this Order, why she should not be barred from filing any new actions under the in forma pauperis statute without first obtaining the Court 9;s permission to do so. 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. The Clerk of the Court is respectfully requested to serve a copy of this Memorandum and Order on plaintiff and note service on the docket. SO ORDERED by Judge Kiyo A. Matsumoto, on 6/20/2012. C/mailed. (Latka-Mucha, Wieslawa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
-against12-CV-2964 (KAM) (LB)
MARSHA L. STEINHARDT, individually and in
her official Capacity as Justice of the
N.Y.S. Supreme Court of Kings County;
MATSUMOTO, United States District Judge:
On June 12, 2012, pro se plaintiff Nella Manko brought
this action 1 pursuant to 42 U.S.C.
1983, alleging that
defendants violated her constitutional rights during the course
of her state court medical malpractice action, Kings County
Supreme Court Index Number 30972/2004 (the "State Court
Action ff ).
Plaintiff also alleges various pendent state law
Plaintiff seeks an injunction ordering the recusal of
Judge Marsha Steinhardt, Judge Gerard Rosenberg, and Judge Bert
Bunyan in the State Court Action; reversal, annulment and
vacatur of the state court's orders in the State Court Action;
and compensatory and punitive damages.
(See ECF No.1, Complaint
Plaintiff's request to proceed in forma
pauperis is granted solely for the purpose of this Memorandum
Plaintiff has previously filed four actions in this court seeking similar
relief against similar parties, arising out of a state court action.
and Order, and the action is hereby dismissed under 28 U.S.C.
1915 (e) (2) (B) .
Plaintiff has filed yet another duplicative
action despite the court's previous warnings that "if
[plaintiff] persists in filing additional actions based on her
dissatisfaction with state court decisions, she will likely be
subject to an injunction against further meritless filings."
See Memorandum and Order dated 4/17/2012 in Manko v. Steinhardt,
No. 12-cv-1472, at 1; see also Manko v. Steinhardt, No. ll-cv5103, 2012 WL 1744836, at *2 (May 15, 2012)
that court would not tolerate her repetitious filings).
Consequently, plaintiff is also directed to show cause why she
should not be barred from filing any new actions under the in
forma pauperis statute without first obtaining the court's
permission to do so.
Standard of Review
Pursuant to 28 U.S.C.
1915(e) (2) (B), a district
court shall dismiss an in forma pauperis action where the court
is satisfied that the action is "(i) 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."
A court must, however, construe a pro se
litigant's pleadings liberally, see Chavis v. Chappius,
162, 171 (2d Cir. 2010), especially when those pleadings allege
civil rights violations.
Erickson v. Pardus, 551
(2007); Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185,
191-93 (2d Cir. 2008).
Plaintiff has filed numerous personal injury, medical
malpractice, and other tort and common law claims in the New
York state courts during the past several years.
In the past
year alone, plaintiff has also filed four cases in this court,
all of which challenge decisions made in state court actions and
allege constitutional violations by judges, attorneys, court
officers, court reporters and the court involved in those state
court actions, and all of which have been dismissed.
v. Steinhardt, No. 12-cv-1472 (E.D.N.Y. filed Mar. 21, 2012,
dismissed Apr. 17, 2012); Manko v. Finkelstein, No. 11-CV-5054
(E.D.N.Y. filed Oct. 14, 2011, dismissed and closed for failure
to pay the filing fee Feb. 10, 2012); Manko v. Steinhardt, No.
11-CV-5103 (E.D.N.Y. filed Oct. 17, 2011, dismissed Jan. 24,
2012); Manko v. Steinhardt, No. 11-CV-5430 (E.D.N.Y. filed Oct.
31, 2011, dismissed Jan. 24, 2012).
Although each of the four actions plaintiff previously
filed in this court names slightly different parties, each seeks
to challenge events that occurred in state court and alleges
that the defendants violated plaintiff's constitutional rights
during the course of the state court proceedings.
instance, plaintiff's case has been dismissed or dismissible on
the bases of the Rooker-Feldman doctrine 2 or judicial and
In addition, in the court's February 7, 2012 Order,
under docket number 11-CV-SOS4, the court requested that the
plaintiff "abstain from filing further duplicative or frivolous
litigation in this court."
Manko v. Finkelstein, No. 11-CV-SOS4,
2012 WL 407092, at *1 (E.D.N.Y. Feb. 7, 2012).
two months later, under docket number 12-CV-1472, the court
"notifie[d] plaintiff that similar future filings will subject
her to a filing injunction."
Manko v. Steinhardt, No. 12-CV-
1472, Order dated April 17, 2012, at 2, 6-7
plaintiff's litigation history and giving notice that similar
future filings will likely subject her to a filing injunction).
Under the Rooker-Feldman doctrine, cases "brought by [aJ state-court
loser[ J complaining of injuries caused by state court judgments rendered
before the district court proceedings commenced and inviting district court
review and rejection of those judgments" are barred in federal courts, which
lack subject-matter jurisdiction over such actions.
Exxon Mobil Corp. v.
Saudi Basic Indus., 544 U.s. 280, 284 (2005).
Plaintiff's case in Manko v. Finkelstein, No. 11-CV-5054, was dismissed
because plaintiff failed to pay the filing fee required to commence an
action in the time allotted.
(See ECF No.8, Docket No. 11-CV-5054.) As
the court explained in its January 9, 2012 Memorandum and Order, however,
even if plaintiff had paid the fee, the court would have dismissed the
action pursuant to Rooker-Feldman doctrine and the doctrines of sovereign
and judicial immunity.
(See ECF No.6, Docket No. 11-CV-5054.)
Most recently, in its Order dated May 15, 2012, denying
plaintiff's motion for reconsideration in Manko v. Steinhardt,
No. ll-CV-5103, the court reiterated its warning but did not yet
enjoin plaintiff because she "filed this motion to reconsider on
the same day that the court entered the Memorandum and Order in
the subsequent action, Manko v. Steinhardt, 12-CV-1472."
v. Steinhardt, 2012 WL 1744836, at *2
(E.D.N.Y. May 15, 2012).
III. P1aintiff's C1aim is Barred By Res Judicata
Despite the court's request and multiple warnings,
plaintiff has returned to this court with yet another
Here, plaintiff again raises claims related
to alleged medical malpractice filed in state court under Index
This time she has named as
defendants five judges, three courts, eleven attorneys, five law
firms, one clerk of court and other state officials.
limits to how often the court can be asked to review the same
allegations against the same parties.
That limitation is
recognized under the doctrine of res judicata.
992 F.2d 447, 449 (2d Cir. 1993).
Under the doctrine of res judicata, or claim
preclusion, "a final judgment on the merits of an action
precludes the parties or their privies from relitigating issues
that were or could have been raised in that action."
v. Dyer, 208 F.3d 394, 399 (2d Cir. 2000)
Dep't Stores, Inc. v. Moitie,
452 U.S. 394, 398
also EDP Med. Computer Sys. v. United States,
(2d Cir. 2007).
480 F.3d 621, 624
Once a final judgment has been entered on the
merits of a case, that judgment will bar any subsequent
litigation by the same parties, or those in privity with the
parties, concerning the transaction or series of connected
transactions out of which the first action arose.
The doctrine of res judicata applies to pro se
Yeiser v. GMAC Mortg. Corp., 535 F. Supp. 2d 413,
426 (S.D.N.Y. 2008)
WL 31886175, at *8
(citing Pena v. Travis, No. 01-CV-8534, 2002
(S.D.N.Y. Dec. 27, 2008)); see also
Cieszkowska v. Gray Line N.Y., 295 F.3d 204, 205-06 (2d Cir.
(affirming district court's res judicata dismissal of an
in forma pauperis action previously dismissed for failure to
state a claim under 28 U.S.C.
1915(e) (2) (B) (ii)).
plaintiff has alleged claims that arise out of the same nucleus
of facts as those she alleged in three previous actions, all of
which this court dismissed for lack of subject-matter
jurisdiction, failure to state a claim, and the doctrines of
sovereign and judicial immunity.
See Manko v. Steinhardt, No.
12-CV-1472 (E.D.N.Y. filed Mar. 21, 2012, dismissed Apr. 17,
2012); Manko v. Steinhardt, No. 11-CV-5430
(filed Oct. 31, 2011,
dismissed Jan. 24, 2012), and Manko v. Steinhardt, No. 11-CV5103 (filed Oct. 17, 2011, dismissed Jan. 24, 2012).
this action is barred by the doctrine of res judicata.
Furthermore, even if this action were not barred by
the doctrine of res judicata, it would be dismissed for lack of
subject-matter jurisdiction under the Rooker-Feldman doctrine
and the doctrines of sovereign and judicial immunity.
In Lau v. Meddaugh, 229 F.3d 121, 123 (2d Cir. 2000)
(per curiam), the Second Circuit upheld the district court's
authority to issue a filing injunction when "a plaintiff
abuse[s] the process of the Courts to harass and annoy others
with meritless, frivolous, vexatious or repetitive .
proceedings." (internal quotations and citations omitted).
also Pandozy v.
335 F. App'x 89, 92
(2d Cir. 2009);
Williams v. NYC Hous. Auth., No. 06-CV-5473, 2008 WL 5111105, at
*5 (E.D.N.Y. Dec. 4, 2008).
rule in this circuit
However, it is "[t]he unequivocal
that the district court may not
impose a filing injunction on a litigant sua sponte without
providing the litigant with notice and an opportunity to be
Iwachiw v. New York State Dep't of Motor Vehicles,
F.3d 525, 529 (2d Cir. 2005)
(quoting Moates v. Barkley, 147
In light of plaintiff's litigation history, she is
ordered to show cause in writing by affirmation, within thirty
days of the date of this Memorandum and Order, why she should
not be barred from filing any further in forma pauperis actions
in this court without first obtaining permission from this court
to file her complaint.
Should plaintiff fail to submit her
affirmation within the time directed, or should plaintiff's
affirmation fail to set forth good cause why this injunction
should not be entered, she shall be barred from filing any
further in forma pauperis actions in this court without first
obtaining permission from this court to do so.
Accordingly, plaintiff's complaint filed in forma
pauperis is dismissed on the basis of res judicata.
1915(e) (2) (B) (i)
Furthermore, plaintiff is ordered to show
cause, within thirty (30) days from the date of this Order, why
she should not be barred from filing any new actions under the
in forma pauperis statute without first obtaining the court's
permission to do so.
The court certifies pursuant to 28 U.S.C.
that any appeal from this Order would not be taken in good
See Coppedge v. United States, 369
The Clerk of the court is respectfully requested to
serve a copy of this Memorandum and Order on plaintiff and note
service on the docket.
June O!J;, 2012
Brooklyn, New York
-d~ -------- ~
UnitMd States District Judge
Eastern District of New York
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