In Re: Whitfield

Filing 13

ORDER finding as moot 4 Motion for Leave to Proceed in forma pauperis, DISMISSING the Complaint and Granting Limited Leave to Amend - For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, Plaintiff's claims under 18 U .S.C. §§ 241-242, 28 U.S.C. § 1333, and 12 U.S.C. § 95a(2) as to all defendants and Section 1983 claims against Ms. Lopez, Mr. Burns, and NYCHA are dismissed as frivolous. Plaintiff's request to compel a criminal prosecution against any of the defendants is DENIED as is his request for an order to show cause for a preliminary injunction. In light of Plaintiff's pro se status, Plaintiff is granted leave to file an amended complaint NO LATER THAN NOVEMBER 16, 2015, that complies with the Attached Written Memorandum and Order. If Plaintiff elects to file an amended complaint, it must be submitted to the Court NO LATER THAN NOVEMBER 16, 2015, and bear the same docket number as this Memorandum and Order, 15 -cv-4827(DLI)(LB). For Plaintiff's convenience, "Instructions on How to Amend a Complaint" are attached to this Electronic Order. Plaintiff is advised that the amended complaint will replace the original pleading. All further procee dings shall be stayed for 30 days. If Plaintiff fails to file an amended complaint by November 16, 2015, or if the amended complaint fails to comply with the Attached Written Memorandum and Order, this action will be dismissed summarily with prejudi ce. Although plaintiff paid the filing fee, 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 the purpose of appeal. Coppedg e v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is directed to mail a copy of this Electronic Order and attachments to pro se Plaintiff. SO ORDERED by Judge Dora Lizette Irizarry on 10/16/2015. (Attachments: # 1 Supplement) (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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LORREN WHITFIELD, pro se,
:
:
Plaintiff,
:
:
-against:
MEMORANDUM
:
AND ORDER
ATIA N. LOPEZ, DENNIS BURNS,
:
15-CV-4827 (DLI) (LB)
DEAN TSUTAE KUSAKABE, ROBERT :
EPSTEIN, RICHARD COLODNY, J.
:
WILLIAMS, Supervisor BERKLEY or
:
BARKELY, PHILIP CALANDRILLO,
:
NEAGIA DREW, DENISE
:
BROCKINGTON, NEW YORK
:
HOUSING AUTHORITY,
:
:
Defendants.
:
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DORA L. IRIZARRY, United States District Judge:
On September 16, 2015, plaintiff Lorren Whitfield (“Plaintiff”), appearing pro se, filed this
action against various defendants. Compl., Dkt. Entry No. 3. On September 22, 2015, Plaintiff filed
a “Notice of Preliminary Injunction and Order to Show Cause.” Dkt. Entry No. 5. Although initially
Plaintiff requested to proceed in forma pauperis, on October 2, 2015, Plaintiff paid the statutory
filing fee to commence this action. Dkt. Entry Nos. 4 and 9. For the reasons set forth below, the
complaint is dismissed and Plaintiff is granted leave to amend the complaint NO LATER THAN
NOVEMBER 16, 2015 to the extent indicated in this Memorandum and Order.
BACKGROUND
Plaintiff’s submission is difficult to discern. He strings together various legal theories and
concepts, but provides sparse facts. For example, in the complaint he alleges:
See Bill in Equity. Also, I Whitfield Lorren v. the Chief executor for
the status of Lorren V. Whitfield and [F.W.] have bee[n] trespassed
upon with deprivation of rights and remedy. I have been physically
damaged or injured seriously. I am being refused proper medical care
and compensation.

Compl. at 2. He also alleges “[t]here is misjoinder ex delicto . . . [and] breach of contract with all
parties and trespass, assault and harrassment [sic].” Id.
In addition, Plaintiff includes documents titled “Apostille” from the State of New York,
Department of State, Notices of “Executor Office,” “Demand for Postliminy,” “Affidavit of Mistake
of Identity,” and “Notice and Reminder - Violations of the Lieber Code.” Plaintiff’s request for an
order to show cause includes similar documents along with a transcript of a disciplinary proceeding
dated April 1, 2010 by the New York Housing City Authority (“NYCHA”), Plaintiff’s employer.
Plaintiff seeks an order
enjoining the defendants/tort feasors during the pendency of this
action from the use of the name LORREN WHITFIELD AND F.W.
or any other collective entities thereof. . . . STAY of any unlawful or
meritless attachments of debt and/or orders of performance on a
creditor, unsolicited contact, and administration of the estates of
LORREN WHITFIELD and F.W. or unauthorized constructive trusts
not authorized by the beneficiary, creditor and chief executor
Whifield, Lorren Vincente, in rerum natura to those estates above.
Pl. Notice of Preliminary Injunction and Order to Show Cause at Dkt. Entry No. 6, p.1 (emphasis
in original).1 He also includes the following documents: “Indemnity and Indenture Bond,” a UCC
Financing Statement, “Writ of Scire Facias,” “A Letter Rogatory,” “Complaint by Bill in Equity,”
“Notice of Revocation of Power of Attorney,” “Letter of Demand from the Office of Executor,”
copies of medical records, several “Apostilles,” and an “Affidavit of Facts and Affirmation” (the
“Affidavit”) See Dkt. Entry No. 6-1, pp. 1-37. Plaintiff’s Affidavit alleges that defendant Atia N.
Lopez, the mother of his child, has made false reports of domestic abuse against him that have

1

Because some of Plaintiff’s submissions do not have sequential page numbers, the Court
refers to the page number assigned by the Electronic Filing System (“ECF”) when referencing
Plaintiff’s submissions without page numbers.
2

caused him to be falsely arrested and injured. Affidavit at Dkt. Entry No. 6-1, pp.21-24. He seeks
an order directing that defendant “Lopez and her domestic partner . . . be imprisoned until my
offspring reaches the age of majority of twenty one years and an equitable judgment of sixty million
USD and cost.” See id. at p. 24.
STANDARD OF REVIEW
A complaint must plead “enough facts to state a claim to relief that is plausible on its face.”
Bell Atlantic Corp. 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,
678 (2009). Pro se complaints are held to less stringent standards than pleadings drafted by
attorneys and the Court is required to read the plaintiff’s pro se complaint liberally and interpret it
as raising the strongest arguments it suggests. Erickson v. Pardus, 551 U.S. 89 (2007); Hughes v.
Rowe, 449 U.S. 5, 9 (1980); Sealed Plaintiff v. Sealed Defendant , 537 F.3d 185, 191-93 (2d Cir.
2008). “In addition to liberally construing pro se complaints, a district court should not dismiss a
pro se complaint without granting the plaintiff leave to amend if ‘a liberal reading of the complaint
gives any indication that a valid claim might be stated.’” Andersen v. Young & Rubicam Advertising,
487 Fed. App’x. 675, 676 (2d Cir. 2012) (citations omitted).
Even if a plaintiff has paid the court’s filing fee, a district court may dismiss the action, sua
sponte, if it determines that the action is frivolous, see Fitzgerald v. First East Seventh Street
Tenants Corp., 221 F.3d 263, 363-64 (2d Cir. 2000); see also Hawkins-El III v. AIG Federal Savings
Banks, 224 F. App’x 394, 395 (2d Cir. June 18, 2009) (affirming district court’s sua sponte dismissal
of fee-paid frivolous complaint), or that the court lacks subject matter jurisdiction. Fed. R. Civ. P.
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12(h)(3).
Temporary restraining orders and preliminary injunctions are extraordinary and drastic
remedies, Sussman v. Crawford, 488 F.3d 136, 139 (2d Cir. 2007), which are “never awarded as of
right,” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008), or “as a routine matter.”
JSG Training Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 80 (2d Cir. 1990); D.D. v. New York City Bd.
of Educ., 2004 WL 633222, at *23 (E.D.N.Y. Mar. 30, 2004). To obtain such relief, the moving
party must show “(a) irreparable harm and (b) either (1) likelihood of success on the on the merits,
or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and
a balance of hardships tipping decidedly toward the party seeking preliminary relief.” Citigroup
Global Mkts., Inc. v. VCG Special Opportunities Master Fund, Inc., 598 F.3d 30, 35 (2d Cir. 2010).
DISCUSSION
Plaintiff invokes the Court’s jurisdiction pursuant to 28 U.S.C. § 1333, 42 U.S.C. § 1983,
18 U.S.C. §§ 241-242 and 12 U.S.C. § 95a(2). See Compl. at 2.
A.

42 U.S.C. §1983
Plaintiff is proceeding pursuant to 42 U.S.C. § 1983, which provides, in pertinent part:
Every person who, under color of any statute, ordinance regulation, custom, or usage,
of any State or Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress . . ..

42 U.S.C. § 1983. This statute “creates no substantive rights; it provides only a procedure for redress
for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993).
In order to maintain a § 1983 action, a plaintiff must show that the defendant (a) acted under color

4

of state law (b) to deprive the plaintiff of a right arising under the Constitution or federal law.
Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010); Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir.
1984).
In this case, it is clear that Ms. Lopez and Dennis Burns are not state actors. Section 1983
“constrains only state conduct, not the ‘acts of private persons or entities.’” Hooda v. Brookhaven
Nat. Lab., 659 F.Supp.2d 382, 393 (E.D.N.Y. 2009) (quoting Rendell-Baker v. Kohn, 457 U.S. 830,
837 (1982)); see also Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). Accordingly,
Ms. Lopez and Mr. Burns cannot be sued pursuant to Section 1983, and this claim is dismissed as
to them, with prejudice.
Furthermore, the NYCHA lacks the capacity to be sued. Chapter 17 Section 396 of the New
York City Charter provides that “[a]ll actions and proceedings for the recovery of penalties for the
violation of any law shall be brought in the name of the city of New York and not in that of any
agency, except where otherwise provided by law.” N.Y.C. Charter, Ch. 17 § 396; see also Ximines
v. George Wingate High Sch., 516 F.3d 156, 159-160 (2d Cir. 2008). Therefore, the Section 1983
claim is dismissed, with prejudice, as to the NYCHA.
As to the remaining defendants, Plaintiff fails to provide any facts against these defendants
other than legal conclusions. See Compl. at 2-4. Although all allegations contained in the complaint
are assumed to be true, this tenet is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice,” and pleadings that “are no more than conclusions[] are not entitled to the assumption
of truth.” Id. at 678-79. Pursuant to Rule 8, a complaint must include a “short and plain statement
of the claim showing that the pleader is entitled to relief.” Goonewardena v. State of New York, 475
5

F.Supp.2d 31, 320 (S.D.N.Y. 2007) (quoting Fed. R. Civ. P. 8(a)(2)); Salahuddin v. Cuomo, 861
F.2d 40, 42 (2d Cir. 1988).
Here, Plaintiff’s complaint fails to allege facts against the remaining individual defendants
named in the caption that would support a claim under Section 1983. Therefore, the Court grants
Plaintiff leave to file an amended complaint in compliance with Rule 8, Section 1983, and the
attached instructions.
B.

18 U.S.C. §§ 241-242, 12 U.S.C. § 95a(2), and 28 U.S.C. § 1333
Plaintiff seeks to pursue claims under 18 U.S.C. §§ 241 and 242, which are criminal statutes.

The Second Circuit has held that there is no private right of action under these criminal statutes. Hill
v. Didio, 191 Fed App’x. 13, 14 (2d Cir. 2006) (citing Robinson v. Overseas Military Sales Corp.,
21 F.3d 502, 511 (2d Cir. 1994) (no private suit under Section 242)); Id. (citing Newcomb v. Ingle,
827 F.2d 675, 676 n.1 (10th Cir. 1987) (no private suit under Section 241)); see also Cent. Bank of
Denver v. First Interstate Bank of Denver, 511 U.S. 164, 190 (1994) (refusing to infer a private right
of action from a “bare criminal statute”); Lodrini v. Sebelius, 2014 WL 2446073, at *4 (E.D.N.Y.
May 29, 2014) (18 U.S.C. §§ 241 and 242 do not provide a private cause of action).
Furthermore, “criminal prosecutions are within the exclusive province of the public
prosecutor who has complete discretion over the decision to initiate, continue or cease prosecution.”
Yashaahla v. M.H.A.N.Y, 2006 WL 845586, at *1 (E.D.N.Y. Mar. 29, 2006) (citations omitted). A
private citizen does not have a constitutional right to initiate or to compel the initiation of criminal
proceedings against another individual. See Leeke v. Timmerman, 454 U.S. 83, 86 (1981) (citing
Linda R.S. v. Richard D., 410 U.S. 614 (1973)); Ostrowski v. Mehltretter, 20 F. App’x. 87, 91 (2d
Cir. 2001).
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Finally, Plaintiff does not have a private right of action under either 28 U.S.C. § 1333 or 12
U.S.C. § 95a(2). Respectively, these statutes confer original and exclusive jurisdiction on federal
courts over admiralty, maritime and prize cases, and authorize the President of the United States to
regulate foreign transactions during war time. Therefore, those portions of the complaint seeking
relief under 18 U.S.C. §§ 241-242, 28 U.S.C. § 1333, or 12 U.S.C. § 95a(2) are dismissed as
frivolous, with prejudice.
C.

Secured Party Status
Based on Plaintiff’s submission of UCC Financing Statements and references to himself as

a “Secured Party,” see Pl. Notice of Preliminary Injunction at Dkt. Entry No. 6-1, pp. 2-8, and
subsequent documents filed with the Court, see Dkt. Entry Nos. 7 and 10, the Court warns Plaintiff
that such “redemptionist” theory language will not yield results here.2 See, e.g., Greene v. Pryce,
2015 WL 4987893, at *3 (E.D.N.Y. Aug. 18, 2015) (citing Monroe, 536 F.3d at 203); McLaughlin
v. CitiMortgage, Inc., 726 F.Supp.2d 201, 210 (D.Conn. 2010) (citations omitted). “Theories
presented by redemptionists have been rejected by the courts as frivolous arguments.” Greene, 2015
WL 4987893 at *3 (citing Charlotte v. Hanson, 433 F. App’x 660, 661 (10th Cir. 2011); Branton
v. Columbia Cty., 2015 WL 3397949, at *3 (N.D.N.Y. May 26, 2015); Muhammad v. Smith, 2014
WL 3670609, at *2 (N.D.N.Y. July 23, 2014); McLaughlin, 726 F.Supp.2d at 210. Accordingly,
Plaintiff’s UCC claims are dismissed as frivolous.

2

“Redemptionists claim that government has power only over the strawman and not over
the live person, who remains free. [They claim that] individuals can free themselves by filing
UCC financing statements, thereby acquiring an interest in their strawman. Thereafter, the real
person can demand that government officials pay enormous sums of money to use the strawman’s
name or, in the case of prisoners, to keep him in custody.” Monroe v. Beard, 536 F.3d 198, 203 n.
4 (3d Cir. 2008).
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CONCLUSION
For the reasons set forth above, Plaintiff’s claims under 18 U.S.C. §§ 241-242, 28 U.S.C. §
1333, and 12 U.S.C. § 95a(2) are dismissed as frivolous. Plaintiff’s request to compel a criminal
prosecution against any of the defendants is dismissed as frivolous. Plaintiff’s Section 1983 claims
against Ms. Lopez, Mr. Burns, and NYCHA are dismissed as frivolous. As Plaintiff has not met the
standard for obtaining a preliminary injunction, his order to show cause for a preliminary injunction
is denied.
In light of Plaintiff’s pro se status, the Court grants Plaintiff leave to file an amended
complaint to comply with Rule 8 and the requirements of Section 1983 as to the remaining
defendants. If Plaintiff elects to file an amended complaint, it must be submitted to the Court NO
LATER THAN NOVEMBER 16, 2015, and bear the same docket number as this Memorandum and
Order, 15-cv-4827(DLI)(LB). For the convenience of pro se Plaintiff, “Instructions on How to
Amend a Complaint” are attached to this Memorandum and Order. Plaintiff is advised that the
amended complaint will replace the original pleading. All further proceedings shall be stayed for
30 days. If Plaintiff fails to file an amended complaint by November 16, 2015, or if the amended
complaint fails to comply with this Memorandum and Order, this action will be dismissed with
prejudice.
Although plaintiff paid the filing fee, 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 the purpose of appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
Dated: Brooklyn, New York
October 16, 2015

/s/
DORA L. IRIZARRY
United States District Judge
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