Bankhead v. Kelly et al

Filing 5

MEMORANDUM & ORDER: Plaintiff's request to proceed in forma pauperis, (Dkt. 2), is granted solely for the purpose of this Order. The complaint filed in forma pauperis is DISMISSED for failure to state a claim on which relief may be granted and because it is frivolous. Leave to amend is not granted. Furthermore, the court notifies Plaintiff that if he files any further frivolous in forma pauperis actions, the court shall enter an Order barring Plaintiff from filing future in forma pauperis complaints without first obtaining leave of the court to do so..Ordered by Judge Nicholas G. Garaufis on 11/14/2013. (c/m to pro se) (Lee, Tiffeny)

D/F
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------------------)(
WILLIAM F. BANKHEAD,
Plaintiff,
-against-

MEMORANDUM & ORDER

RAY KELLY, Commissioner, NYPD;
MICHAEL BLOOMBERG, NYC Mayor;
CHARLES HYNES, Kings County District
Attorney; MICHAEL CARDOZA, NYC
Corporation Counsel; NEW YORK CITY
POLICE DEPARTMENT; NEW YORK
DEPARTMENT OF FINANCE; UNITED
STATES INTERNAL REVENUE SERVICES;
UNITED STATES SOCIAL SECURITY
ADMINISTRATION; 1

13-CV-04577 (NGG) (LB)

Defendants.

---------------------------------------------------------------------){

NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiff William Bankhead, proceeding prose, brings this action pursuant to 42 U.S.C.

§ 1983, alleging that he was issued summonses by the New York City Police Department on the
basis of his race in violation of the Equal Protection Clause of the United States Constitution.
Plaintiffs request to proceed in forma pauperis, (Dkt. 2), is granted solely for the purpose of this
Order. The Amended Complaint is DISMISSED, and Plaintiff is warned against filing future
frivolous in forma pauperis complaints.

Parties Cueny (Tax #921248), John/Jane Doe (Tax #93227), John J. McHugh (Shield #24708), City of New
York, and Cruz (Tax #948831) named in the Complaint, are not named in the Amended Complaint. Plaintiffs
Amended Complaint, filed August 30, 2013, supersedes and replaces the original complaint filed on August 12,
2013. See Moore v. City of New York, No. 09-CV-2449 (RRM), 2009 WL 2244735, at* I (E.D.N.Y. July 28,
2009). Thus, these parties are no longer defendants to the action.

I

I.

DISCUSSION
A.

Standard of Review

Under 28 U .S.C. § 1914, the filing fee to commence a civil action is $350 plus an
additional cost of $50, for a total of $400. The federal in forma pauperis statute, enacted in 1892
and presently codified as 28 U.S.C. § 1915, is designed to ensure that indigent litigants have
meaningful access to the federal courts. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S.
331, 342-43 (1948). Toward this end,§ l 915(a) allows a litigant to commence a civil or criminal
action in federal court in forma pauperis by filing in good faith an affidavit stating, inter alia, that
he is unable to pay the costs of the lawsuit.
Congress recognized, however, that a litigant whose filing fees and court costs are
assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from
filing frivolous, malicious, or repetitive lawsuits. "[T]he benefit of§ 1915 is a privilege, not a
right, and that the court's extra measure of authority in dealing with§ 1915 actions is necessary
because frivolous suits unduly burden the courts, sometimes obscuring meritorious claims,
occasion significant expenditures of public monies, and are a means by which plaintiffs can use
the federal government to harass individual defendants." Anderson v. Coughlin, 700 F.2d 37, 42
(2d Cir. 1982) (internal quotation marks and citations omitted). To prevent such abusive or
captious litigation,§ 1915(e)(2)(B) authorizes federal courts to dismiss a claim filed in forma
pauperis where it 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."

2

Because Plaintiff brings this action pro se, his pleadings should be held "to less stringent
standards than formal pleadings drafted by lawyers." Estelle v. Gamble, 429 U.S. 97, 106 (1976)
(internal quotation marks omitted); accord Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). A pro
se complaint should not be dismissed without granting the plaintiff leave to amend "at least once
when a liberal reading of the complaint gives any indication that a valid claim might be stated."
Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir.1999) (per curiam).
Nonetheless, a complaint must plead "enough facts to state a claim to relief that is
plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has
facial plausibility 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. Igbal,
556 U.S. 662, 663 (2009) (citation omitted). While "detailed factual allegations" are not
required, "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the
elements of a cause of action will not do."' Id. at 678 (quoting Twombly, 550 U.S. at 555).
Similarly, a complaint is insufficient to state a claim "if it tenders 'naked assertion[s]' devoid of
'further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 557).

B.

Plaintiff's Pending Complaint

The in forma pauperis statute allows the court to examine Plaintiffs complaint prior to an
Answer in order not to overburden the court with frivolous, malicious or repetitive lawsuits. 28
U.S.C. § 1915(e)(2)(B). For the reasons set for the below, the instant action is dismissed as
frivolous and because it fails to state a claim on which relief may be granted pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii).

3

Plaintiff files this action, alleging, in the Amended Complaint, that he has been targeted
by the police because of his race. The Amended Complaint does not allege the time or date of
his alleged arrests or summonses, but Plaintiff's original complaint attaches four summonses, the
most recent of which is dated July 23, 2013. He names as parties to the action the Mayor of
New York City (Bloomberg), the New York City Police Commissioner (Kelly), the Corporation
Counsel for the City of New York (Cordoza), the Kings County District Attorney (Hynes), the
New York City Police Department, the New York Department of Finance, the Internal Revenue
Service, and the Social Security Administration. He alleges multiple causes of action: false
arrest, malicious prosecution, false imprisonment, and various state law claims including,
intentional infliction of emotional distress, abuse of process, and negligence.2 He seeks damages
of six hundred million dollars, declaratory and injunctive relief. 3
Federal Rule of Civil Procedure 8 requires that Plaintiff provide a short, plain statement
of claim against each Defendant named so they have adequate notice of the claims against them.
Iqbal, 556 U.S. at 678 (Rule 8 "demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation."). The Amended Complaint contains no facts suggesting that
Defendants took any actions that harmed Plaintiff. The Complaint is rife with "labels and
conclusions," id., cast in the form of factual allegations, but Plaintiff has failed to allege any facts
sufficient to allow each Defendant to have a fair understanding of the alleged wrongdoing and to

2

Plaintiff has evidently created his own form complaint for filing similar claims against police officers.
Under the "Incidents" section, however, he failed to provide the date of the incident and the name of the police
officer, see Am. Compl. 4114116a-6b, and at one point the Amended Complaint references incidents relating to Red
Bank County New Jersey, not New York City, see id. 41141158-59.
3
To the extent Plaintiff seeks prosecution of a defendant for violation of federal criminal statutes, see Am.
Comp!. at 14-19, he fails to state a claim on which relief may be granted because "a private citizen lacks a judicially
cognizable interest in the prosecution or nonprosecution of another." Leeke v. Timmerman, 454 U.S. 83, 85-86
( 1981) (internal quotation marks and citations omitted).

4

know whether there is a legal basis for recovery. See Simmons v. Abruzzo, 49 F.3d 83 (2d Cir.
1995) (defining "fair notice" as "that which will enable the adverse party to answer and prepare
for trial, allow the application of res judicata, and identify the nature of the case so that it may be
assigned the proper form of trial").
For example, Plaintiff concludes that Defendants are members of racist groups and that,
since 1996, NYPD officers have stalked him, falsely arrested him, and prosecuted him, at times
because they had mistaken him for another person named William Bankhead but always based
on his race and Defendant's enforcement of the "Jim Crow Law." See, e.g., Am. Compl. ~~ 5-7.
Although Plaintiff repeats this argument throughout his complaint-that he brings this claim
because he has been repeatedly arrested in contravention of his constitutional rights-he fails to
supply the court or Defendants with any facts in support of such a naked assertion. The only
inkling of a factual basis for his current claim are the four summonses attached to the initial
4

complaint but omitted from his Amended Complaint. Otherwise, the submissions are bereft of
facts: Plaintiff claims his recurring arrests are due to racial profiling but provides no dates,
locations, or descriptions of the arrests or the discriminatory treatment. Plaintiff points to no
facts which evidence the existence of a "Jim Crow" policy allegedly practiced by the NYPD or
that his arrests are based on racial animus. His argument is simply that he is African-American
and he has been issued a summons, therefore he was issued a summons because of his race.
This is merely a conclusion, unsupported by facts, and it cannot sustain a claim in this court.

4

Plaintiff was issued a summons on January 18, 2009, for urinating in public view, and was issued
summonses on August 18, 2011, November 13, 2011, and July 23, 2013, for consumption of alcohol in public.
Comp!. at 20-23. The August 18, 2011, summons was the subject of Bankhead v. Arrunatugui, l l-CV-4920 (NGG)
(dismissed without prejudice for failure to prosecute); the November 13, 2011, summons was the subject of
Bankhead v. Cruz, l l-CV-5706 (NGG) (same).

5

Despite its length, the complaint is merely "an unadorned, the-defendant-unlawfully-harmed-me
accusation," Iqbal, 556 U.S. at 678, against all Defendants. Therefore the Amended Complaint
is dismissed for failure to state a claim on which relief may be granted. 28 U.S.C. §
l 915(e)(2)(B)(ii).
Furthermore, this action is repetitive. Despite Plaintiff's settlement in 2000 in which he
agreed not to raise new claims against NYPD officers for "the future detention, issuance of
summons, or arrest for possession and/or consumption of alcoholic beverage in public,"
Bankhead v. City of New York, OO-CV-3429 (NGO), (Settlement Agreement), he repeatedly
returns to courts in this Circuit with vague claims of mistreatment related to the issuance of
summonses. For example, in 2011, Plaintiff filed a trio of cases in this court: Bankhead v. Police
Officer Erwin Arrunatugui, l l-CV-4920 (NGO); Bankhead v. Cruz, l l-CV-5706 (NGO); and
Bankhead v. NYPD Police Officer(s) Jane Does #1, l l-CV-6045 (NGO). In these cases,
Plaintiff made the same allegations as those raised here: that the police issued summonses for
open container violations to him because of his race. Furthermore two of the summonses
attached to the Complaint in this case were the subject of these prior actions. The three 2011
cases were consolidated for discovery and motion practice, and defendant City of New York
filed a motion to dismiss the complaints. Despite an extension of time in which to do so,
Plaintiff filed no opposition papers to the motion nor did he respond to the court's order to
inform the court in writing whether he wished to proceed with these actions. Having received no
communication from Plaintiff, the court dismissed the actions without prejudice by Order dated
January 28, 2013.

6

In these prior actions, the court expended significant judicial resources in an effort to
move Plaintiffs claims forward, but Plaintiff failed to prosecute them. He now brings the same
and similar claims. Plaintiffs repetitive invocation of the court's resources, especially when he
has previously stated no claim or when he has allowed prior claims to languish, is an abuse of the
in forma pauperis statute and will not be tolerated. See In re McDonald, 489 U.S. 180, 184
(1989) ("Every paper filed with the Clerk of this Court, no matter how repetitious or frivolous,
requires some portion of the institution's limited resources. A part of the court's responsibility is
to see that these resources are allocated in a way that promotes the interests of justice."); Butler
v. Dep't of Justice, 492 F.3d. 440, 444 (D.C. Cir. 2007) ("(A] prisoner who files repeated actions
or appeals only to allow them to languish can present a burden to the courts similar to the
problems addressed by the three strikes provision of the PLRA [which bars prisoners from
proceeding in forma pauperis after three or more previous claims have been dismissed as
frivolous, malicious or for failing to state a claim]"); Anderson v. Coughlin, 700 F.2d at 42.
Thus, Plaintiffs Amended Complaint is "frivolous" within the meaning of 28 U.S.C. §
1915(e)(2)(B)(i) and must be dismissed.

II. FILING INJUNCTION
A.

Applicable Law

The ability to litigate in forma pauperis is regarded as a privilege and may be denied if
abused. In re Anderson, 511 U.S. 364 (1994); In re Sindram, 498 U.S. 177, 179-80 (1991) ("In
order to prevent frivolous petitions for extraordinary relief from unsettling the fair administration
of justice, the court has a duty to deny in forma pauperis status to those individuals who have
abused the system."); Polanco v. Hopkins, 510 F.3d 152, 156 (2d Cir. 2007) (The ability to

7

proceed in forma pauperis "is not a constitutional right, but rather a congressionally created
benefit."). The Second Circuit has held that a district court not only has the authority, but also
the obligation, to deny this benefit to a litigant who has a demonstrated history of filing frivolous
and vexatious claims. See In re Martin-Trigona, 737 F.2d 1254, 1261 (2d Cir. 1984) ("Federal
courts have both the inherent power and the constitutional obligation to protect their jurisdiction
from conduct which impairs their ability to carry out Article III functions."), modified sub nom
Martin-Trigona v. Cohen, 876 F.2d 307, 308 (2d Cir. 1989). The Second Circuit has 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." Lau v. Meddaugh, 229 F.3d 121, 123 (2d Cir. 2000) (per curiam) (internal
quotations and citations omitted); see also Pandozy v. Tobey, 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). However, it is the "[t]he unequivocal rule in this Circuit ... 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 heard." Iwachiw v. N.Y. State Dep't of Motor Vehicles, 396
F.3d 525, 529 (2d Cir. 2005) (quoting Moates v. Barkley, 147 F.3d 207, 208 (2d Cir. 1998)).

B.

Plaintiff's Litigation History

Plaintiff is a self-described civil rights activist and an active and regular litigator in the
local federal and state courts. According to Plaintiff, by 2005, "39 criminal case dismissals [had
been] attributed to plaintiff's civil rights activities" and financial settlements have been reached
in "eight civil rights suit[s]." Bankhead v. Kuo, No. 05-CV-4443 (ERK), (E.D.N.Y. Sept. 6,
2005)

(complaint~

14). Over the years that Plaintiff has been a litigant in this court, the court

8

has occasionally set forth Plaintiffs litigation history, or part of it. See, e.g., Bankhead v. Kuo,
05-CV-4443 (ERK), (E.D.N.Y. Feb. 15, 2006) (memorandum and order of dismissal). What
follows is the court's attempt to summarize all of Plaintiffs litigation in the Second Circuit,
understanding that access to some of the older cases is limited and that there have been cases
filed in which Plaintiff has purported to act as a paralegal on behalf of other pro se litigants. See,
~.Bush

v. NYC Parking Violations Bureau, No. 05-CV-2010 (RJD), (E.D.N.Y. 2005) (in

forma pauperis complaint alleging that parking tickets are issued on a racially motivated basis
dismissed sua sponte as frivolous).
In 1977, Plaintiffs petition for a writ of habeas corpus challenging a 1973 Kings County
conviction on the grounds that court records of his guilty plea had been falsified was denied.
Bankhead v. Lavalee, 430 F. Supp. 156 (E.D.N.Y. 1977). In its opinion, this court noted that
Plaintiff had "filed approximately twenty five other actions in this district, several of which
raised challenges to the petitioner's guilty plea and the alleged withdrawal of that plea by the
State Court." Id. at 157 n.1. The court grappled with how to penalize Plaintiffs abuse of the
judicial system:
Parenthetically the Court observes that if there were a meaningful way of
imposing costs and attorneys fees on the petitioner for frivolous applications and
abuse of process, this Court would do so. The number of petitioner's lawsuits (25)
in this Court alone goes a long way towards demonstrating the litigious nature of
this petitioner and this hearing proved quite conclusively the lack of substance to
his claim at least in this particular case.
Id. at 160.

9

5

Between the years of 1989 and 2010, Plaintiff filed fifteen actions in the Southern
6

District of New York, the last of which was dismissed because Plaintiff failed to serve the
defendants. Bankhead v. Mercandetti, No. 10-CV-4134 (GBD) (S.D.N.Y. 2011). The subject of
that suit, which was transferred from this court to the Southern District, was mistaken identity
and false arrest. Plaintiff named NYPD police officers in Bronx and New York counties.
Bankhead v. Mercandetti, No. 10-CV-154 (NGG) (E.D.N.Y. 2010). In Plaintiff's sole case in
the Northern District of New York, Bankhead v. NYS Div. Parole, No. 91-CV-1228 (NPM)
(W.D.N.Y. 1993), his habeas petition concerning his parole was denied. Plaintiff has also been
an unsuccessful litigant in California and Missouri. See Bankhead v. Los Angeles Dodgers, No.
09-CV-7694 (DMG) (C.D. Cal. Dec. 7, 2010) (order dismissing action for failure to serve
defendants); Bankhead v. Bankhead, No. 06-CV-806 (SWH) (W.D. Mo. Dec 14, 2007) (order
dismissing action on summary judgment).

Before January 3, 1989, records for the Southern District are not electronically accessible from Public
Access to Court Electronic Records (PACER). See "Court information" https://pacer.uspcLuscourts.gov (last
visited October 15, 2013).
6
Plaintiffs fifteen in forma pauperis actions in the Southern District ofNew York are: Bankhead v.
Mercandetti, No. 10-CV-4134 (GDB) (complaint against NYPD officer dismissed for failure to serve pursuant to
Fed. R. Civ. P. 4(m)); Allen et al v. Roth, No. 08-CV-6503 (DLC) (action against landlord ofother four plaintiffs;
Bankhead voluntarily dismissed from action); Bankhead v. Motorola, Inc., No. 07-CV-7542 (KMW) (claim against
three telecommunications companies dismissed pursuant to 28 U.S.C. l 915{e)(2)); Bankhead v. Doe, No. 06-CV3387 (LAP) (case against New York City Department of Homeless Services dismissed with prejudice on motion to
dismiss); Bankhead v. Negro League Traveling Museum, No. 06-CV-3537 (MBM) (transferred to E.D.N.Y);
Bankhead v. New York City Housing Authority, No. 04-CV-10200 (JSR) (complaint dismissed for failure to serve
defendants); Bankhead v. City of New York, No. 97-CV-8419 (DAB) (action against NYPD and four police officers
settled for $1000); Bankhead v. Guiliani, No. 97-CV-1806 (TPG); Bankhead v. Guiliani, No. 97-CV-1807 (TPG);
Bankhead v. Guiliani, No. 97-CV-1808 (TPG) (complaints against police officers who issued summonses to
Plaintiff all dismissed under 28 U.S.C. § l 9 l 5(d)); Bankhead v. Ms. Ellis, No. 94-CV-3456 (DAB) (claim against
NYC Housing Authority employee discontinued by stipulation of both parties); Bankhead v. NYS Parole, No. 92CV-0283 (LBS) (complaint against New York State Division of Parole and two parole officers dismissed);
Bankhead v. NYS Parole, No. 91-CV-7018 (CLB) (transferred to N.D.N.Y.); Bankhead v. Comm'r ofNYS Div.
Parole, No. 90-CV-4578 (CLB) (proceedings unavailable); Bankhead v. Fischbein, No. 90-CV-3872 (RPP) (same).

10

In this court, not only did Plaintiff file multiple actions challenging a criminal conviction
in the l 970's, Plaintiff has been a steady presence since 1999. His nineteen in forrna pauperis
cases since that date are as follows.
An action filed in 1999 against the City of New York and a police officer was settled for
$250, Bankhead v. City of New York, No. 99-CV-03299 (ERK), and five actions filed in 2000
were consolidated by the court and likewise settled for the sum of $250, Bankhead v. City of
New York, No. OO-CV-03249 (NGG); Bankhead v. City of New York, No. OO-CV-03583
(ERK); Bankhead v. City of New York, No. OO-CV-03584 (ERK); Bankhead v. City ofNew
York, No. OO-CV-03755 (ERK); Bankhead v. City ofNew York, No. OO-CV-03696 (ERK). In
these five cases, Plaintiff alleged false arrest claims against New York City Police Officers who
issued him open container summonses. These cases were consolidated, and on October 12,
2002, the court entered a stipulation and Order of Settlement and Dismissal in which the
defendants paid Plaintiff $250 but did not admit to any constitutional violation and Plaintiff
agreed to bring no future claims against the city related to summonses or arrests for open
container violations. Bankhead v. City of New York, No. OO-CV-3249 (NGG) (E.D.N.Y. 2002)
(lead case). The stipulation stated, in relevant part:
[P]laintiff agrees to the dismissal of all the claims against the individually named
defendants and to release all defendants; any present or former employees or
agents of the City of New York and the NYPD; and the City of New York, from
any and all liability, claims, or rights of action arising from and contained in these
actions. Plaintiff agrees that all suits against the aforementioned defendants,
pending or contemplated, for causes of action accruing up to the date of this
settlement will be settled. Plaintiff agrees that he will bring no further lawsuits
against the aforementioned defendants arising from allegations of any kind
contained in the related actions and/or for any future detention, issuance of
summons, or arrest for possession and/or consumption of alcoholic beverage in
public.
11

Id. (stipulation of settlement and dismissal) (emphasis added).
Plaintiffs next wave of cases concerned either housing or baseball memorabilia
(Plaintiffs relative was a Negro League and Major League Baseball pitcher.) See Bankhead v.
Sanabia, No. 04-CV-04573 (ERK) (complaint alleging New York City failed to protect him from
a dangerous tenant at New York City homeless shelter dismissed for failure to respond to the
court's order to amend his complaint); Bankhead v. Renelique, No. 05-CV-2065 (ERK)
(complaint challenging housing conditions at his Brooklyn apartment dismissed for failure to
respond to the court's order to amend his complaint); Bankhead v. Kuo, No. 05-CV-4443 (ERK)
(complaint against police officers, New York City, New York State, prosecutors, and the
Commissioner of the NYPD dismissed for failure to state a claim on which relief may be granted
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) after Plaintiff failed to respond to court's directive to
file an amended complaint); Bankhead v. Negro League Travelling Museum, No. 06-CV-2850
(ERK) (action alleging the unauthorized removal of baseball memorabilia from the home of
Linda Bankhead dismissed for Jack of subject matter jurisdiction); Bankhead v. Bankhead, No.
06-CV-3957 (ERK) (transferred to W.D. Mo.); Bankhead v. Maounis, No. 06-CV-6110 (ERK)
(complaint against his landlord for discrimination against him as a "non-gay male" dismissed for
lack of subject matter jurisdiction); Bankhead v. Legal Aid Society, No. 07-CV-1083 (ERK)
(complaint against New York City, Legal Aid and two of its attorneys, and the NYC Department
of Corrections alleging that he was deprived of essential medication during his incarceration at
Rikers Island dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on
which relief may be granted); Bankhead v. L.A. Dodgers, No. 09-CV-4369 (NGG) (transferred

12

to C.D. Cal.); Bankhead v. McAllister, No. l l-CV-5353 (NGG) (complaint alleging that he was
injured in a fire in Brooklyn, New York, and that his rights were violated in connection with this
incident dismissed for failure to state a claim on which relief may be granted pursuant to 28
U.S.C. § l 915(e)(2)(B)(ii)).
In 2010, Plaintiff resumed bringing claims against New York City and its police officers
alleging racial animus in their issuance of summonses to him. An action against New York City
and police officers who issued Plaintiff summons was settled for $100. Bankhead v. Chu, No.
10-CV-0510 (NGG) (E.D.N.Y. Jan. 18, 2011) (Stipulation and Order of Settlement and
Dismissal). Since the allegations are similar to the instant case and other actions that have been
filed in this Circuit, and are illustrative of the types of allegations Plaintiff repeatedly makes
against the NYPD, its officers and the city ofNew York, the court sets forth the summary of the
facts of that case:
Sometime in 2008, Plaintiffs identification papers were either lost or stolen.
Plaintiff was subsequently arrested on a number of outstanding bench warrants
and charged with numerous crimes. According to Plaintiff, all the charges were
dismissed because the underlying summonses had actually been issued to third
parties who had been using his identification documents. Following these
incidents, Plaintiff began regularly searching court websites for "court posting[ s]
bearing his name." In November 2009, Plaintiff discovered the existence of a
Queens County summons (the "November Summons") issued to a "William
Bankhead" for an open-container violation. Plaintiff wrote a letter to the judge on
the case explaining that his identity papers had been stolen and that the November
Summons was issued to someone else. On January 7, 2010, Plaintiff was arrested
on the Queens County open-container charge while appearing in Kings County
Family Court on an unrelated matter. Plaintiff was arraigned in Queens County
Criminal Court on January 20, 2010. At the arraignment, the Assistant District
Attorney ("ADA") offered Plaintiff an Adjournment in Contemplation of
Dismissal, which he refused by saying that he "would rather sue." The Complaint
does not offer any further details about the arraignment or its outcome. Plaintiff
filed this Complaint on February 8, 2010, alleging a battery of federal and state

13

claims ostensibly related to the issuance and enforcement of the November
Summons.
Bankhead v. Chu, No. 10-CV-510 (NGG), 2010 WL 935371, at *2-3 (E.D.N.Y. Mar. 11, 2010)
(internal citations omitted).
In 2011, Plaintiff filed the trio of cases described above in which Plaintiff alleged that the
police issued summonses for open container violations to him because of his race. See Bankhead
v. Arrunatugui, No. l l-CV-4920 (NGG); Bankhead v. Cruz, No. l l-CV-5706 (NGG); Bankhead
v. NYPD Police Officer(s) Jane Does #1, No. l l-CV-6045 (NGG). After consolidation for
discovery and motion practice, and the defendants' filing of a motion of dismiss, the case was
dismissed for failure to prosecute because Plaintiff failed repeatedly to respond to the court's
directive to respond to the court. See Bankhead v. City ofNew York, No. l 1-CV-5706,
(E.D.N.Y. Jan. 28, 2013) (order dismissing action).
From this lengthy history, the court notes the following: Plaintiff has sought in forma
pauperis status in every action. He names the City of New York as a defendant in nearly every
one of his cases and almost always names multiple defendants to his actions, often one or more
city agencies, e.g. New York City Housing Authority or the Traffic Violations Bureau, and
employees of those agencies. Other frequently named defendants are members of his family
(who allegedly deprived him of funds generated by memorabilia of his grandfather who was a
professional baseball player) and landlords (his own or those of his acquaintances or "clients").
Another pattern, relevant to the instant case and the impetus for this exercise in reviewing
Plaintiffs litigation history, has arisen over the past fifteen years: Plaintiff is arrested for an
open container violation or other minor infraction by NYPD officers, Plaintiff files a civil rights

14

action against the officers and the City of New York in the Southern District or this court (often
more than one action over a brief period), and then New York City settles the action for an
amount of $1000 or less to avoid the cost of litigation without admitting liability for a violation
of Plaintiff's constitutional rights. Few would call this pattern the effective administration of
justice; it is more aptly described as a successful scheme to extract nuisance settlements by a
vexatious litigant. It is time to put an end to this litigation abuse.

C.

Warning Against Future Frivolous Filings

The court has considered Plaintiffs litigation history and his persistence in filing
frivolous actions that seek to use the federal court to harass individual defendants or which he
files and then allows to languish. Plaintiff has taxed the resources of this court as "[ e]very paper
[he has] filed with the Clerk of this Court, no matter how repetitious or frivolous, require[ d]
some portion ofthe institution's limited resources." In re McDonald, 489 U.S. at 184. Although
the majority of his actions have been dismissed sua sponte by the court, and those claims did not
survive long enough to require the intervention and expense of a defense, they still burdened the
court. And those cases that Plaintiff allowed to languish by failing to respond to the court's
repeated orders, also taxed judicial resources. Butler, 492 F.3d at 444.
Plaintiff has clearly exceeded the reasonable access to the courts afforded him by the in
forma pauperis statute and "abuse[d] the process of the Courts to harass and annoy others with
meritless, frivolous, vexatious or repetitive ... proceedings." Lau, 229 F.3d at 123. Despite the
Court's "power and the constitutional obligation to protect [its] jurisdiction from conduct which
impairs [its] ability to carry out Article III functions," In re Martin-Trigona, 73 7 F.3d at 1261,
the court declines to issue a filing injunction at this time. This order shall serve as a warning that
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the court hopes will deter Plaintiff from further frivolous filings. The court advises Plaintiff that
any future frivolous, repetitive, malicious, or vexatious filing shall subject him to a filing
injunction. See In re Martin-Trigona, 9 F.3d 226, 227 (2d Cir. 1993) (recognizing that "courts
may resort to restrictive measures ... [with respect to] litigants who have abused their litigation
opportunities," including "subjecting a vexatious litigant to a 'leave of court' requirement with
respect to future filings"); Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986).
CONCLUSION

For the foregoing reasons, the complaint filed in forma pauperis is DISMISSED for
failure to state a claim on which relief may be granted and because it is frivolous. 28 U.S.C. §
1915(e)(2)(B). Even a liberal reading of the Amended Complaint gives no indication that a valid
claim may be asserted if further leave to amend is granted, and Plaintiffs prolific litigation
history further counsels against granting such leave. Accordingly, leave to amend is not granted.
Furthermore, the court notifies Plaintiff that if he files any further frivolous in forma pauperis
actions, the court shall enter an Order barring Plaintiff from filing future in forma pauperis
complaints without first obtaining leave of the court to do so. 28 U.S.C. § 1651. 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. Coppedge
v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.

s/Nicholas G. Garaufis
NiCHOLAS-G~GARAUF!S

Dated: Brooklyn, New York
November l!:I_, 2013

United States District Judge

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