Mitchell v The Brooklyn Hospital Center

Filing 50

MEMORANDUM AND ORDER: For the reasons set forth above, Brooklyn Hospitals motion for sanctions 42 is DENIED. The Clerk of Court is respectfully directed to close this case in light of Mitchells stipulation of dismissal and to mail a copy of the Memorandum and Order to plaintiff pro se and note the mailing on the docket. Ordered by Judge Roslynn R. Mauskopf on 8/8/2016. (Taronji, Robert)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------X
BOBBY MITCHELL,
Plaintiff,
MEMORANDUM & ORDER
14-CV-4359 (RRM) (LB)

- against THE BROOKLYN HOSPITAL CENTER,
Defendant.
-----------------------------------------------------------X
ROSLYNN R. MAUSKOPF, United States District Judge.

The issue before this Court is whether plaintiff pro se Bobby Mitchell should be enjoined
from filing any further actions in this Court against defendant The Brooklyn Hospital Center
(“Brooklyn Hospital”) alleging that a pay disparity exists between Mitchell and his co-workers.
(Mot. for Sanctions Pursuant to Rule 11 (Doc. No. 42).) For the reasons set forth herein,
defendant Brooklyn Hospital’s motion for a filing injunction sanction is DENIED.
BACKGROUND
Mitchell began working at Brooklyn Hospital in its Respiratory Care Department in 1976
and worked at the Hospital nearly continuously until at least 2015. 1 (Am. Compl. (“Fourth Am.
Compl.”) (Doc. No. 20).) Mitchell and other employees in the Respiratory Care Department are
parties to a collective bargaining agreement (“CBA”). Memorandum & Order at 3, Mitchell v.
The Brooklyn Hosp. Ctr., No. 01-CV-5393 (CBA), ECF No. 71. (Mem. of Agreement (Doc. No.
44-2).) The CBA sets forth wage scales that provide for respiratory care practitioners to be paid
different hourly wages based on an individual practitioner’s credentials and experience. (Mem.
of Agreement.) The wage scales of individuals who have Registered Respiratory Therapist
Credentials (“RRT Credentials”) are higher than those of individuals who have Certified
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On December 9, 2015, Mitchell filed a letter stating that he would be resigning from Brooklyn Hospital on
December 21, 2015. (Mem. of Law Reply/Decl./Letter of Resignation (“12/9/15 Letter”) (Doc. No. 48).)

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Respiratory Therapy Credentials (“CRT Credentials”), and individuals with CRT Credentials are
paid more than those who do not have credentials. (Id.) Mitchell has CRT Credentials.
(National Board for Respiratory Care Directory Profile for Bobby C. Mitchell (Doc. No. 44-3) at
2.)
Mitchell has been the plaintiff in three suits in this Court against Brooklyn Hospital
alleging discrimination, including pay disparities relating to his credentials, and retaliation.
In 1997, Mitchell sued Brooklyn Hospital alleging discrimination and retaliation based on
his race, color, age, and disability. See Mitchell v. Brooklyn Hosp. Ctr., et al., No. 97-CV-739
(JBW). In that case, one of Mitchell’s claimed grounds for discrimination was that the Hospital
paid Russell Burnett, a respiratory care practitioner with CRT Credentials, at a higher hourly rate
than Mitchell. On October 26, 1999, the Honorable Judge Jack B. Weinstein issued a Stipulation
and Order of Dismissal with Prejudice, dismissing almost all of Mitchell’s claims, including the
Burnett wage claim.
Mitchell again filed suit against Brooklyn Hospital in 2001 based on claims of
discrimination and retaliation. See Mitchell v. The Brooklyn Hosp. Ctr., No. 01-CV-5393
(CBA). He included claims of wage disparities in this suit as well, comparing his salary to that
of Burnett, and another respiratory care practitioner with CRT Credentials, Hector Abarro. On
July 14, 2004, the Honorable Judge Carol B. Amon granted Brooklyn Hospital’s motion for
summary judgement in its entirety, dismissing all of Mitchell’s claims. Memorandum & Order
at 1, Mitchell v. The Brooklyn Hosp. Ctr., No. 01-CV-5393 (CBA), ECF No. 71. The Second
Circuit affirmed this judgment on May 29, 2009. Mitchell v. Brooklyn Hosp. Ctr., 326 F. App’x
44, 45 (2d Cir. 2009).
In the instant case, Mitchell claims for the third time in this Court that Brooklyn Hospital
discriminated and retaliated against him, and that he was the victim of a pay disparity. He filed

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the original complaint pro se in the Supreme Court of the State of New York, Kings County, on
June 17, 2014. (Notice of Removal (Doc. No. 1).) Brooklyn Hospital removed it to this Court
on July 17, 2014. (Id.) Although Mitchell initiated the case pro se, he was represented by
counsel, Lawrence Levine, from September 5, 2014 until the Court granted Levine’s motion to
withdraw as Mitchell’s attorney on September 11, 2015. (Notice of Appearance (Doc. No. 14);
9/11/15 Order.) During the first five months that this case was pending, Mitchell filed four
amended complaints, three of which were filed by counsel. (Pl. Bobby Mitchell Obj. (“First Am.
Compl.”) (Doc. No. 9); 9/30/14 Am. Compl. (“Second Am. Compl.”) (Doc. No. 17); 11/5/14
Am. Compl. (“Third Am. Compl.”) (Doc. No. 18); Fourth Am. Compl.) In these complaints,
Mitchell alleged, inter alia, mistreatment by Brooklyn Hospital through the Director of its
Respiratory Care Department, Mohammed H. Shajahann, in 2012 and 2013. (See, e.g., Fourth
Am. Compl. at ¶¶ 16–19.) Mitchell also alleged that Brooklyn Hospital “further engage[d] in
discriminatory, biased and unfair practices by refusing to recognize Plaintiff’s correct job title
and position and paying him the proper salary commensurate with his licensing and academic
qualifications.” (Id. at ¶ 22.) According to Mitchell, Brooklyn Hospital, “while acknowledging
Plaintiff was grandfather protected under the statute, refused to pay Plaintiff the salary of a
Respiratory Therapist, resulting in Plaintiff earning $5000 to $8000 less per year since 2005 than
respiratory therapists with comparable skills and experience.” (Id. at ¶ 25.)
Brooklyn Hospital filed a letter on December 5, 2014 requesting a pre-motion conference
regarding its proposed motion to dismiss, arguing that, “Mitchell regurgitates the same claims
that he is not being paid ‘as a licensed registered respiratory therapist’ that were dismissed on
summary judgment in 2004 by this Court.” (Letter Mot. for Pre-Mot. Conference (Doc. No.
21).) At the pre-motion conference on February 12, 2015, the Court granted Brooklyn Hospital
leave to file its proposed motion to dismiss and motion for Federal Rule of Civil Procedure

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(“Rule”) 11 sanctions. Following the pre-motion conference, Levine sought to withdraw as
Mitchell’s counsel. (2/13/15 Letter (revised) as Directed by the Court (Doc. No. 27).) Levine
wrote, “Bobby Mitchell and I have mutually agreed to terminate our attorney-client
relationship.” (Id.) He continued, “I have advised Mr. Mitchell to discontinue his discrimination
action against The Brooklyn Hospital Center.” (Id.) On February 19, 2015, this Court denied
Levine’s motion to withdraw and ordered that “[a]s Mr. Levine has advised plaintiff to
discontinue this action, plaintiff is hereby Ordered to file, no later than February 27, 2015, either
a Stipulation of Dismissal, signed both by plaintiff and Mr. Levine, or a letter, also to be signed
by both plaintiff and Mr. Levine, that plaintiff intends to pursue this action.” (2/19/15 Order
Denying Leave to Withdraw.) Levine filed a stipulation of dismissal signed by Mitchell on
March 4, 2015. (Stipulation of Dismissal (Doc. No. 31).) On September 11, 2015, the Court
granted Levine’s motion to withdraw as Mitchell’s attorney. (9/11/15 Order; First Mot. to
Withdraw as Att’y (Doc. No. 29).)
The Hospital moved for sanctions, specifically requesting “an injunction preventing
Plaintiff, who has repeatedly sued his current employer Brooklyn Hospital, from again bringing
the same baseless claim – that a pay disparity exists between Plaintiff and his coworkers (who
have a certification that Plaintiff does not have).” (Mem. in Supp. Mot. for Sanctions Pursuant to
Rule 11 (Doc. No. 43) at 1; accord Mot. for Sanctions Pursuant to Rule 11; Reply in Supp. Mot.
for Sanctions Pursuant to Rule 11 (Doc. No. 46).) Mitchell replied with hundreds of pages
including attachments, arguing that his claims are not frivolous and reflect events that occurred
after the 2004 decision in this Court. (11/13/15 Resp. in Opp’n Mot. for Sanctions Pursuant to
Rule 11 (“11/13/15 Resp. in Opp’n”) (Doc. No. 45) at 6, 17; 12/3/15 Resp. in Opp’n Mot. for
Sanctions Pursuant to Rule 11 (“12/3/15 Resp. in Opp’n”) (Doc. No. 49) at 14–20.) In his
opposition filings, Mitchell requests, inter alia, (1) “a favorable summary [j]udgment in favor of

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the Plaintiff,” (2) that “the Court [] sanction the Defendant to stop all such acts / actions, of
abuse” by Shahajann, (3) “that there be no deliberate retaliatory interference in my retirement
process or benefits: specifically my union pension,” (4) damages, and (5) that “Defendant[] be
ordered to make an upward adjustment in Plaintiff’s salary to be equal or greater than that of the
replacement worker commensurate with the relative experience, seniority and credentials of
Plaintiff and the replacement employee.” (11/13/15 Resp. in Opp’n at 9, 32, 34–35.) Mitchell
also states that “I say/ and agree, to the Court, there will be no more pursuits by Plaintiff
concerning salary of past issues in this case.” (Id. at 30.)
On December 9, 2015, Mitchell filed a letter stating that the actions of Brooklyn Hospital
and its Director of Respiratory Care have “forced [Mitchell] into retirement” and that Mitchell
would no longer be employed at the Hospital as of December 21, 2015. (12/9/15 Letter.) The
letter concludes, “[t]here will be no further action on my part to these matters, this I Bobby
Mitchell do Swear.” (Id.)
STANDARD OF REVIEW
Rule 11(b) provides that any court filing or other representation to the court constitutes a
certification that
to the best of the [filer’s] knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or
by a nonfrivolous argument for extending, modifying, or reversing existing law or
for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified,
will likely have evidentiary support after a reasonable opportunity for further
investigation or discovery;
Fed. R. Civ. P. 11(b).

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Rule 11(c), in turn, permits a court to impose “appropriate” sanctions for violations of
Rule 11(b). Fed. R. Civ. P. 11(c)(1). Sanctions imposed under Rule 11(c) “must be limited to
what suffices to deter repetition of the conduct or comparable conduct by others similarly
situated. The sanction may include nonmonetary directives; an order to pay a penalty into court;
or, if imposed on motion and warranted for effective deterrence, an order directing payment to
the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting
from the violation.” Fed. R. Civ. P. 11(c)(4). “When a court determines that Rule 11 sanctions
are appropriate, it ‘has significant discretion in determining what sanctions, if any, should be
imposed for a violation.’” E. Gluck Corp. v. Rothenhaus, No. 08-CV-3466 (VM), 2008 WL
2944624, at *3 (S.D.N.Y. July 31, 2008) (quoting Fed. R. Civ. P. 11 Advisory Committee Note);
see also Perez v. Posse Comitatus, 373 F.3d 321, 325 (2d Cir. 2004) (“Even if the district court
concludes that the assertion of a given claim violates Rule 11, . . . the decision whether or not to
impose sanctions is a matter for the court’s discretion.”).
In considering a motion for sanctions under Rule 11, this Court applies an “objective
standard of reasonableness.” MacDraw, Inc. v. CIT Grp. Equip. Fin., Inc., 73 F.3d 1253, 1257
(2d Cir. 1996). Moreover, “Rule 11 is violated only when it is patently clear that a claim has
absolutely no chance of success.” Oliveri v. Thompson, 803 F.2d 1265, 1275 (2d Cir. 1986)
(internal quotation marks omitted). Additionally, “[w]hen divining the point at which an
argument turns from merely losing to losing and sanctionable, . . . courts [must] resolve all
doubts in favor of the signer” of the pleading. Rodick v. City of Schenectady, 1 F.3d 1341, 1350
(2d Cir. 1993) (internal quotation marks omitted).
As to filing injunctions, “[t]he district courts have the power and the obligation to protect
the public and the efficient administration of justice from individuals who have a history of
litigation entailing vexation, harassment and needless expense to other parties and an

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unnecessary burden on the courts and their supporting personnel.” Lau v. Meddaugh, 229 F.3d
121, 123 (2d Cir. 2000) (internal quotation marks and alteration omitted); see also Safir v. U.S.
Lines Inc., 792 F.2d 19, 24 (2d Cir. 1986) (“‘A district court not only may but should protect its
ability to carry out its constitutional functions against the threat of onerous, multiplicitous, and
baseless litigation.’” (quoting Abdullah v. Gatto, 773 F.2d 487, 488 (2d Cir. 1985) (per
curiam))).
“The filing of repetitive and frivolous suits constitutes the type of abuse [of the judicial
process] for which an injunction forbidding further litigation may be an appropriate sanction.”
Shafii v. British Airways, PLC, 83 F.3d 566, 571 (2d Cir. 1996); see also Hong Mai Sa v. Doe,
406 F.3d 155, 158 (2d Cir. 2005) (“If a litigant has a history of filing vexatious, harassing or
duplicative lawsuits, courts may impose sanctions, including restrictions on future access to the
judicial system.” (internal quotation marks omitted)); Lau, 229 F.3d at 123 (“The issuance of a
filing injunction is appropriate when a plaintiff abuses the process of the Courts to harass and
annoy others with meritless, frivolous, vexatious or repetitive proceedings.” (internal quotation
marks and alterations omitted)). The following factors should be considered in determining
whether to restrict a litigant’s future access to the courts:
(1) the litigant’s history of litigation and in particular whether it entailed vexatious,
harassing or duplicative lawsuits; (2) the litigant’s motive in pursuing the litigation, e.g.,
does the litigant have an objective good faith expectation of prevailing?; (3) whether the
litigant is represented by counsel; (4) whether the litigation has caused needless expense
to other parties or has posed an unnecessary burden on the courts and their personnel; and
(5) whether other sanctions would be adequate to protect the courts and other parties.
Safir, 792 F.2d at 24. “Ultimately, the question the court must answer is whether a litigant who
has a history of vexatious litigation is likely to continue to abuse the judicial process and harass
other parties.” Id.

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Before imposing a filing injunction, the court must first provide a litigant with notice and
an opportunity to be heard. Lau, 229 F.3d at 123. If imposed, the filing injunction must be
narrowly tailored so as to preserve the litigant’s right of access to the court. See Bd. of Managers
of 2900 Ocean Ave. Condo. v. Bronkovic, 83 F.3d 44, 45 (2d Cir. 1996) (holding that filing
injunctions “must be appropriately narrow”); see also SBC 2010–1, LLC v. Morton, 552 F.
App’x 9, 12–13 (2d Cir. 2013) (summary order) (affirming the district court’s issuance of a filing
injunction on the basis that, inter alia, it was “narrowly crafted”).
DISCUSSION
The Court has carefully considered the relevant factors supporting issuance of an
injunction and concludes that the circumstances of this case do not warrant issuing a filing
injunction as a sanction.
The first two Safir factors favor Brooklyn Hospital. As to the first factor, the litigant’s
history of litigation, Mitchell has filed three actions in this Court bringing the same allegation
that he is the victim of a pay disparity. See Iwachiw v. N.Y.C. Bd. of Educ., 194 F. Supp. 2d 194,
207 (E.D.N.Y. 2002) (“The first factor weighs heavy against the plaintiff. Since June of 1999,
the plaintiff has filed nine separate complaints pro se in the United States District Court for the
Eastern District of New York.”). The second factor, the litigant’s motive in pursuing the
litigation, likewise weighs against Mitchell as his chances of prevailing in this matter appear
slim. Ex’r of N.Y. Estate of Kates v. Pressley & Pressley, P.A., No. 11-CV-3221 (JFB), 2013
WL 495415, at *6 (E.D.N.Y. Feb. 7, 2013) (“[T]his Court is hard-pressed to accept that plaintiffs
here had ‘an objective good faith expectation of prevailing’ when they filed a lawsuit raising
nearly identical claims and arguments as they had filed before, with little or no success” (citing
Buell ex rel. Buell v. Bruiser Ken, No. 97-CV-1131 (EHN), 1999 WL 390642, at *5 (E.D.N.Y.
Mar. 31, 1999))); see also Iwachiw, 194 F. Supp. 2d at 207.

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The third factor, whether the litigant is represented by counsel, favors Mitchell because
although he was represented by counsel during some of the pendency of this action, he initiated
this case pro se and has otherwise proceeded pro se. See Iwachiw, 194 F. Supp. 2d at 208 (“The
third factor . . . favors the plaintiff because he is proceeding pro se.”). However, “a court’s
authority to enjoin vexatious litigation extends equally over pro se litigants and those represented
by counsel, and a court’s special solicitude towards pro se litigants does not extend to the willful,
obstinate refusal to play by the basic rules of the system upon whose very power the plaintiff is
calling to vindicate his rights.” Lipin v. Hunt, 573 F. Supp. 2d 836, 845 (S.D.N.Y. 2008)
(internal quotation marks omitted). Thus, this factor does not weigh heavily in Mitchell’s favor.
The fourth factor, whether the litigant has caused needless expense to other parties and
the courts, weighs against Mitchell. There is no doubt here that the Hospital has already lost
substantial time and resources defending against Mitchell’s filings. As of Mitchell’s filing the
stipulation of dismissal on March 4, 2015, Brooklyn Hospital had incurred $40,802.40 in legal
fees and $4,131.91 in costs. (See Declaration of B. Hoey (Doc. No. 44) at ¶ 8).
Although many of these factors favor injunctive relief, including Mitchell’s repeated use
of the Court system to re-litigate the same claims, on balance, because Mitchell is pro se and
because his complaint included allegations related to events that occurred after his previous cases
were adjudicated, the Court will give Mitchell the benefit of the doubt and not impose sanctions
at this time. See Rodick, 1 F.3d at 1350 (a court considering whether to impose Rule 11
sanctions must “resolve all doubts in favor of the signer”). “Although ignorance of the law is no
excuse, the concept of res judicata and collateral estoppel is often challenging for many attorneys
nonetheless pro se litigants with no legal education or skill.” Commins v. Habberstad BMW, No.
11-CV-2419 (JFB), 2012 WL 956185, at *10 (E.D.N.Y. Mar. 20, 2012) (internal quotation
marks and alteration omitted). In addition, “an injunction is a drastic measure [and] [t]he cases

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in which courts have enjoined parties from bringing suits involve litigants with . . . longer
histories of ‘vexatious litigation’ than plaintiff’s.” Conway v. Brooklyn Union Gas Co., 236 F.
Supp. 2d 241, 253 (E.D.N.Y. 2002) (collecting cases); Safir, 792 F.2d at 20, 24 (affirming
issuance of filing injunction after plaintiff had filed eleven federal lawsuits); Iwachiw v. N.Y.
State Dept. of Motor Vehicles, 396 F.3d 525, 528–29 (2d Cir. 2005) (affirming issuance of filing
injunction after plaintiff had filed more than fifteen lawsuits); In re Martin–Trigona, 737 F.2d
1254, 1259 (2d Cir. 1984) (affirming issuance of filing injunction after plaintiff had “inundated”
the District of Connecticut with his filings); Ex’r of N.Y. Estate of Kates, 2013 WL 495415, at *6
(issuing filing injunction after plaintiffs brought four actions in this District litigating the same
claims and also initiated cases to litigate those claims in multiple state courts).
The Court is certainly not unsympathetic to the time, effort, and expense that Brooklyn
Hospital has spent defending against Mitchell’s repetitive claims and numerous voluminous
filings. However, Mitchell has assured the Court multiple times that he will not bring suit
against Brooklyn Hospital alleging these pay disparity claims again and the Court takes Mitchell
at his word. (11/13/15 Resp. in Opp’n at 30; 12/9/15 Letter.) See Safir, 792 F.2d at 24 (holding
that the ultimate question for a court to consider is “whether a litigant who has a history of
vexatious litigation is likely to continue to abuse the judicial process and harass other parties”).
“Duplicative litigation is, to be sure, clearly impermissible, and plaintiff must understand
that further filing of overlapping pleadings may require sanctions.” Soling v. N.Y. State, 804 F.
Supp. 532, 539 (S.D.N.Y. 1992). The Court thus, in its discretion, declines to impose a filing
injunction or any other sanction under Rule 11 on Mitchell at this time, but issues Mitchell a
warning that any future filings of this nature alleging that a pay disparity exists between Mitchell
and his co-workers will result in such a sanction. Mitchell has now attempted to re-litigate the
same claim in this Court three times, costing Brooklyn Hospital, in this case alone, tens of

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thousands of dollars. The Court will not tolerate such conduct in the future and will not hesitate
to impose sanctions on Mitchell if he brings this claim in this Court for a fourth time. See In re
Martin-Trigona, 737 F.2d at 1262 (a district court has “the power and the obligation to protect
the public and the efficient administration of justice from [a vexatious litigant’s] litigious
propensities”). Such sanctions may include a filing injunction, payment of attorney’s fees, a
fine, or other sanctions within the Court’s discretion. E. Gluck Corp., 2008 WL 2944624, at *3
(Finding that a court has “significant discretion” to determine what Rule 11 sanctions, if any, are
appropriate, and that such sanctions can include “impos[ition of] a fine or penalty, an award of
reasonable expenses and attorney’s fees incurred as a result of the misconduct, or dismiss[al of]
the action.”).
CONCLUSION
For the reasons set forth above, Brooklyn Hospital’s motion for sanctions is DENIED.
The Clerk of Court is respectfully directed to close this case in light of Mitchell’s stipulation of
dismissal and to mail a copy of the Memorandum and Order to plaintiff pro se and note the
mailing on the docket.

SO ORDERED.
Roslynn R. Mauskopf
_______________________
ROSLYNN R. MAUSKOPF
United States District Judge

Dated: Brooklyn, New York
August 8, 2016

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