Manko v. Steinhardt et al
Filing
9
FINAL JUDGMENT AND FILING INJUNCTION: Accordingly, because neither the 7 "cross-motion" nor its attached exhibits are responsive to the Court's Order to Show Cause, it is hereby ORDERED AND ADJUDGED, that this case is dis missed, and plaintiff shall take nothing of defendants; and it is further ORDERED, ADJUDGED, AND DECREED, for the reasons stated in the Court's 6/20/2012 Order, that (1) plaintiff is permanently enjoined and restrained from filing any new in forma pauperis action in the United States District Court for the Eastern District of New York without first obtaining leave from the Court; (2) the Clerk of Court is directed to return to plaintiff, without filing, any action that is received without an application seeking leave to file; (3) if the court grants plaintiff leave to file a new action, the civil action shall be filed and assigned a civil docket number; and (4) if leave to file is denied, plaintiff's submi ssion shall be filed on the Court's miscellaneous docket. Nothing herein shall be construed to prohibit plaintiff from filing an appeal of this Order; however, the court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. The Clerk of the Court is respectfully requested to serve a copy of this Order on plaintiff and note service on the docket. SO ORDERED by Judge Kiyo A. Matsumoto, on 8/30/2012. C/mailed. (Latka-Mucha, Wieslawa)
FILED
IN CLERK'S OFFICIa
U.S. DISTRICT cOURT i.O.N.Y.
*
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
______________________________x
AUG 30 2012
*
BROOKLYN OFFICE
NELLA MANKO,
FINAL JUDGMENT AND
FILING INJUNCTION
l2-CV-2964 (KAM)(LB)
Plaintiff,
-againstMARSHA L. STEINHARDT, individually and in
her official Capacity as Justice of the N.Y.S.
Supreme Court of Kings County; et aI.,
Defendants.
_________________________________x
MATSUMOTO, United States District Judge:
By Memorandum and Order dated June 20, 2012, pursuant to 28 U.S.c.
§ 19l5(e)(2)(B), the court dismissed this action as frivolous, duplicative, and barred by res
judicata. (See ECF No.4, Memorandum and Order dated 6/20/2012.) In addition to explaining
the reasons for the dismissal, the court summarized pro se plaintiff Nella Manko's history of
litigation in this court and this court's repeated warnings to her against the filing of frivolous and
vexatious lawsuits. (Jd. at 3-5.) The court directed plaintiff to show cause, by July 20,2012,
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. (Jd. at 8.)
By letter dated July 20, 2012, plaintiff requested a thirty-day extension oftime to
respond to the court's order to show cause. (See ECF No.5, Plaintiff's Motion for Extension.)
The court granted plaintiff's motion, and ordered plaintiff to respond to the order to show cause
by August 20, 2012. (See Order dated 7126/2012.) Thereafter, plaintiff filed a sixth action in this
court. See Manko v. Ruchelsman, et ai, 12-cv-4100 (filed 8/13/2012).
1
On August 20,2012, instead of showing cause why the court should not enter an
order barring plaintiff from filing any new actions under the in forma pauperis statute without
first obtaining permission from the court, plaintiff submitted a "Cross-Motion to Order to Show
Cause" with exhibits in excess of550 pages, most of which were copies of papers related to her
state court litigation. (See ECF No.7, Cross-Motion to Order to Show Cause ("Cross-Motion");
ECF No.8, Affidavit In Opposition To Order To Show Cause.) In her cross-motion, plaintiff
seeks: (1) leave to proceed in forma pauperis; (2) leave to file the documentary evidence she
attaches to her cross-motion; (3) an order to disqualifY this court and Judge Lois Bloom in all
cases filed by plaintiff because this court allegedly made "substantial negligent misstatements of
plaintiff's complaints, and false statements about plaintiffs complaints"; and (4) $10,000 for
"costs ofthis Motion." (Cross-Motion at 1-2.)
The court notes as an initial matter that plaintiff's affidavit of support of her
recusal motion is legally insufficient because it does not allege, much less provide facts
supporting a claim, that this court has a "personal bias or prejudice either against [her1or in favor
of any adverse party." See 28 U.S.C. § 144 ("Whenever a party to any proceeding in a district
court makes and files a timely and sufficient affidavit that the judge before whom the matter is
pending has a personal bias or prejudice either against him or in favor of any adverse party, such
judge shall proceed no further therein, but another judge shall be assigned to hear such
proceeding. "). Plaintiff s affidavit simply states that this court "made substantial intentional
misstatements of plaintiff s complaints, substantial negligent misstatements of plaintiff's
complaints, and false statements about plaintiff's complaints." (Manko Aff. at 18.) See Jackson
2
v. Scotts Co., No. 08 Civ. 1064,2009 WL 321010, at *7 (S.D.N.Y. Feb. 10,2009) (finding
affidavit in support of recusal motion legally insufficient because "its factual allegations,
assuming their truth, did not allege the personal bias or prejudice that is essential to a Section 144
recusal motion").
Furthermore, plaintiff appears to complain that the court improperly dismissed
plaintiffs complaint in the instant action on the basis of res judicata. (See Cross-Motion at 18.)
The court dismissed plaintiffs complaint because plaintiff again "raise[d] claims related to
alleged medical malpractice filed in state court under Index Number 30972/2004 (Kings
County)" (see Order dated 6/20/2012 at 5) and the court had previously advised plaintiff on
numerous occasions that her action was barred by the Rooker-Feldman doctrine and by judicial,
quasi-judicial, and Eleventh Amendment immunity. See Manko v. Steinhardt, ll-cv-51 03, 2012
WL 213128 (E.D.N.Y. Jan. 24, 2012); Manko v. Steinhardt, ll-cv-5430, 2012 WL 213715
(E.D.N.Y. Jan. 24, 2012); Manko v. Steinhardt, ll-cv-5430, 2011 WL 601946 (E.D.N.Y. Nov.
28,2011); Manko v. Steinhardt, 11-cv-5103, 2011 WL 5873398 (E.D.N.Y. Nov. 17,2011).
Plaintiff contends, however, that res judicata does not apply because the instant complaint
concerns a medical malpractice action that she filed in state court under Index Number
1050112009. (Cross-Motion at 18.)
Even assuming, arguendo, that the instant action relates to a state court action that
is distinct from the action upon which plaintiff based her previous complaints filed in this court,
the court would dismiss the instant complaint as barred by the Rooker-Feldman doctrine and by
judicial, quasi-judicial and Eleventh Amendment immunity, with which plaintiff should now be
3
familiar, given the court's numerous prior explanations regarding the applicability of these
doctrines. See Manko v. Steinhardt, II-cv-SI03, 2012 WL 213128 (E.D.N.Y. Jan. 24, 2012);
Manko v. Steinhardt, II-cv-S430, 2012 WL 213715 (E.D.N.Y. Jan. 24, 2012); Manko v.
Steinhardt, 11--cv-S430, 2011 WL 601946 (E.D.N.Y. Nov. 28, 2011); Manko v. Steinhardt, 11cv-SI03, 2011 WL 5873398 (E.D.N.Y. Nov. 17,2011).
Accordingly, because neither the "cross-motion" nor its attached exhibits are
responsive to the court's order to show cause, 1 it is hereby
ORDERED AND ADJUDGED, that this case is dismissed, and plaintiff shall take
nothing of defendants; and it is further
ORDERED, ADJUDGED, AND DECREED, for the reasons stated in the court's
June 20, 2012 Order, that (I) plaintiff is permanently enjoined and restrained from filing any
new informa pauperis action in the United States District Court for the Eastern District of New
York without first obtaining leave from the court; (2) the Clerk of Court is directed to return to
plaintiff, without filing, any action that is received without an application seeking leave to file;
(3) if the court grants plaintiff leave to file a new action, the civil action shall be filed and
assigned a civil docket number; and (4) ifleave to file is denied, plaintiff's submission shall be
filed on the court's miscellaneous docket.
Nothing herein shall be construed to prohibit plaintiff from filing an appeal of this
Order; however, the court certifies pursuant to 28 U.S.C. § 19I5(a)(3) that any appeal would not
be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal.
1 Plaintiff's
exhibits and attachments primarily consist of copies of pleadings, motions, and notices of appeal plaintiff
filed in connection with her previous state court actions.
4
See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is
respectfully requested to serve a copy of this Order 0Z'plai~f;"~~e service on the docket.
.
SO ORDERED.
.
/S/
Kiyo A. Matsumoto
United States District Judge
Dated: Brooklyn, New York
~3D
,2012
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