Azeez v. The City of New York
Filing
114
MEMORANDUM & ORDER denying Plaintiff's 113 Motion for Leave to Appeal in forma pauperis. So Ordered by Judge Nicholas G. Garaufis on 4/22/2022. (c/m as directed, certified mail article number 7021 2720 0001 2192 8088) (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JAMAL ADEEN AZEEZ,
MEMORANDUM & ORDER
16-CV-342 (NGG) (SJB)
Plaintiff,
-againstCITY OF NEW YORK, WILLIAM J. BRATTON,
and BRETT STRAUSS,
Defendants.
NICHOLAS G. GARAUFIS, United States District Judge.
On August 22, 2018, this court granted Defendants' motion for
summary judgment against Plaintiff Jamal Adeen A:zeez. Following that ruling, which was affirmed by the Second Circuit, this
court twice denied his motion for relief from judgment under
Rule 60(b). He then, prose, sought to appeal the second order
denying such relief, and, in doing so, moved for leave to proceed
in form.a pauperis. The Second Circuit has directed this court to
rule on Plaintiffs informa pauperis status before considering his
appeal. (Mar. 8, 2022 Order of USCA (Dkt. 112) .) For the following reasons, Plaintiffs motion is DENIED.
I.
BACKGROUND
Plaintiff filed this civil rights action on January 21, 2016 against
the City of New York, New York Police Department Commissioner William J. Bratton, and Police Officer Brett Strauss,
alleging racial and religious discrimination pursuant to 42 U.S.C.
§ 1983 and state law. (Compl. (Dkt. 1).) On August 22, 2018,
the court granted Defendants' motion for summary judgment as
to all of Plaintiffs claims and denied Plaintiff's motion for summary judgment. See Azeez v. City of N. Y., No. 16-CV-342, 2018
WL 4017580 (E.D.N.Y. Aug. 22, 2018) (Dkt. 91). On October 5,
2018, Plaintiff moved to amend the judgment, which the court
leniently construed as a Rule 60(b) motion for relief from the
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judgment. (Oct. 5, 2018 Mot. (Dkt. 94).) On October 9, 2018,
Plaintiff also filed an appeal. (Oct. 9, 2018 Not. of Appeal (Dkt.
96).)
On November 2, 2018, the court denied Plaintiff's first Rule
60(b) motion. (Nov. 2, 2018 Order (Dkt. 100).) After denying
Plaintiff's petition for a panel rehearing, or in the alternative, for
rehearing en bane, on January 31, 2020, the Second Circuit affirmed summary judgment for Defendants. See Azeez v. City of
N. Y, 790 F. App'x 270 (2d Cir. 2019) (Dkt. 102) (summary order).
On February 26, 2020, Plaintiff filed a second Rule 60(b) motion
for relief from the judgment. (Feb. 26, 2020 Mot. (Dkt. 104).)
Magistrate Judge Bulsara issued a Report and Recommendation
("R&R") on August 25, 2020, recommending that this court deny
the motion and impose a filing injunction. (R&R (Dkt. 105).) After more than fourteen days passed, and no objections were filed,
the court entered an order adopting the R&R in its entirety. See
Azeezv. CityofN.Y., No.16-CV-342, 2020WL5554878 (E.D.N.Y.
Sept. 17, 2020) (Dkt. 106). Plaintiff filed objections to the R&R
on the day before it was adopted. (Pl.'s Obj. (0kt. 107).)
On November 23, 2020, Plaintiff filed a motion for a ruling on
his objections, maintaining that his objections were timely because he mailed them on September 3, 2020, which was within
the 14-day window to object. (Nov. 23, 2020 Mot. (Dkt. 109) Cf'f
1-3.) Since the court must liberally construe pro se filings, the
court treated Plaintiffs motion as a motion for reconsideration.
Upon reconsideration, the court again adopted the R&R in full.
See Azeez v. City of N.Y., No. 16-CV-342, 2021 WL 3578500
(E.D.N.Y. Aug. 13, 2021) (Dkt. 110).
On September 17, 2021, Plaintiff filed a notice of appeal on his
motion for reconsideration of his second Rule 60(b) motion.
(Sept. 17, 2021 Not. of Appeal (Dkt. 111).) The Second Circuit
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directed this court to first determine whether Plaintiff may proceed informa pauperi.s. (Mar. 8, 2022 Order of USCA.)
II. PLAINITFF'S MOTION TO PROCEED IN FORMA
PAUPERIS
A.
Applicable Law
To appeal in forma pauperi.s from an order of the district court, a
party must file an affidavit that "(A) shows ... the party's inability to pay or to give security for fees and costs; (B) claims an
entitlement to redress; and (C) states the issues that the party
intends to present on appeal." Fed. R. App. P. 24(a)(l). The
statement of issues must sufficiently "apprise the court of the
foundation for [the party's] appeal or the arguments that he
plans to raise in support of his case_,, Puri.sima v. Tiffany Entertainment, No. 09-CV-3502 (NGG) (LB), 2018 WL 7063128, at *1
(E.D.N.Y. Jan. 25, 2018). 1 However, even where a party has
made a prima facie case that in forma pauperi.s status is warranted, "an appeal may not be taken in forma pauperis if the trial
court certifies in writing that it is not taken in good faith." 28
U.S.C. § 1915(a)(3); United States v. Farley, 238 F.2d 575, 576
(1956) ("[I]f on consideration the trial judge is conscientiously
convinced that there is no substantial question for review and
that an appeal will be futile, or if he is convinced that there is no
reasonable basis for the claims of alleged error, it is the duty of
the trial judge, albeit not a pleasant duty, to certify that the appeal is not taken in good faith.").
A party demonstrates good faith when the party "seeks appellate
review of any issue not frivolous.', Coppedge v. United States, 369
U.S. 438, 445 (1962). Since this is an objective test, the court
need not inquire into the party's "subjective point of view.', Id. at
445. Courts in this circuit have consistently found that allowing
When quoting cases, and unless otherwise noted, all citations and quotation marks are omitted, and all alterations are adopted.
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a party to proceed in forma pauperi.s is inappropriate where a
party "fail[s] to show that [the] appeal would not simply raise
the same issues that this court has repeatedly deemed to be frivolous." Puri.sima, 2018 WL 7063128, at *2; see al.so Garcia v.
Paylock, No. 13-CV-2868 (KAM), 2014 WL 1365478, at *2
(E.D.N.Y. Apr. 7, 2014) ("By merely rehashing his previous, meritless arguments, plaintiff has not presented a good faith basis for
an appeal."); United Parcel Serv. of Am., Inc. v. The Net, Inc., 470
F. Supp. 2d 190, 194 (E.D.N.Y. 2007) (''The Court finds that an
appeal of this Court's order would be frivolous and lacking in
good faith. The issues [the party] seeks to raise on appeal have
been previously addressed by the Court."). Ultimately, the decision as to whether a party may "proceed in forma pauperis is left
to the District Court's discretion." Fridman v. City of N.Y., 195 F.
Supp. 2d 534, 536 (S.D.N.Y. 2002).
B. Discussion
Here, Plaintiff rehashes the same frivolous allegations that have
been repeatedly denied by this court and the Second Circuit.
First, Plaintiff contends that Officer Strauss perjured himself during the Department of Motor Vehicles ("DMV') hearings related
to Plaintiffs traffic infractions, including by allegedly covering up
where he was parked during the traffic stops since it violated the
NYPD Patrol Guide. (See In Forma Pauperi.s Mot. ("IFP Mot.")
(Dkt. 113) 'l'l 1-2, 6, 16.) Further, Plaintiff asserts that this court
failed to consider that Officer Strauss lied on multiple occasions,
not just once. (Id. '11.) Plaintiff has repeatedly raised the issue of
Officer Strauss's alleged perjury with the court. (See, e.g., Mot.
for Sumrn. J. (Dkt. 58) at 7-12; Feb. 26, 2020 Mot. (providing a
chart comparing Officer Strauss's inconsistent statements); Pl.'s
Obj. at 3-5, 7.)
This court inquired into Plaintiffs allegations of Strauss's perjury
in assessing his claim that the DMV proceedings against him constituted a malicious prosecution. Since lack of probable cause is
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one of the elements of malicious prosecution, the court considered whether Strauss's alleged perjury impacted the probable
cause determination for the DMV proceedings. The court held
that any "fraud that threw the soundness of the DMVs fact-finding into question," would "need[] to be addressed and remedied
by a state court, not by this court on collateral review." Azeez,
2018 WL 4017580, at *9. Thus, even if Officer Strauss had perjured himself, "Plaintiff [was] collaterally estopped from
relitigating whether Strauss had probable cause to cite Plaintiff
for violating the Vehicle & Traffic Law." Id. at *10. Further, Plaintiff did not meet two of the other elements of malicious
prosecution, (1) that the prosecution be criminal, not civil, and
(2) that the proceedings terminate in Plaintiff's favor since he
was twice adjudicated guilty. On appeal, the Second Circuit
found that "there is no legal or factual basis to support Azeez's
contention that Strauss committed perjury during his testimony,"
and that his "statements evince, at most, minor inconsistencies
immaterial to the issue of whether Azeez committed the traffic
violations, for example, the exact location where Strauss may
have been parked before he pulled Azeez over to ticket him,
where Azeez was pulled over, or whether Strauss remembered
any previous contact with Azeez." Azeez, 790 F. App'x at 273.
Because this court and the Second Circuit have considered claims
that Strauss perjured himself multiple times, an appeal of this
issue would not be taken in good faith.
Second, Plaintiff alleges that Officer Strauss refused to reveal
his identity to Plaintiff, including by not putting his name on
the traffic summonses issued to Plaintiff, and has previously
been accused of refusing to reveal his identity. (See IFP Mot. 'f'l
3-4.) Plaintiff also claims that Strauss has been sued for similar
wrongdoing. (Id. 'f 5.) Plaintiff has repeatedly raised this issue
with the court. (See~ e.g., Mot. for Summ. J. at 4 n.3, 5, & 14
n.10; Feb. 26, 2020 Mot. at 8; Pl.'s Obj. at 2, 6-7.) In considering the City's failure to supervise or discipline Officer
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Strauss, the court assessed whether the City acted with deliberate indifference, which would require Plaintiff to show, for
example, repeated civil rights violations. The court found that
there had been only one complaint filed against Officer
Strauss, which was for failure to provide his name and badge
number and was dismissed by the Civilian Complaint Review
Board ("CCRB") as unfounded. Azeez, 2018 WL 4017580, at
*16. Thus, the court held that "[w]ithout more compelling evidentiary support than a single dismissed complaint ... , Plaintiffs
claim that the City failed to supervise or discipline Officer Strauss
must be dismissed." Id. In affirming this court's grant of summary
judgment, the Second Circuit found that the "one-line reference[]" to the ((argument that Strauss's supervisors should have
been held accountable for concealing Strauss's past misconduct .
. . [was] insufficient to preserve the claims on appeal and thus ..
. waived." Azeez, 790 F. App'x. at 272. Because this court and the
Second Circuit have considered Plaintiff's claims related to
Strauss's alleged pattern of refusing to reveal his identity, an appeal on these issues would not be taken in good faith.
Third, Plaintiff alleges this court erred in refusing to permit the
disclosure of Officer Strauss's disciplinary records even after
Plaintiff made a "substantial showing." (See IFP Mot. 'I 15.) A
review of Plaintiffs filings indicates that this alleged "failure" to
disclose disciplinary records was made to the CCRB in the context of a Freedom of Information Law request, not in discovery
in this case. (See Pl.'s Obj. at 7.) The CCRB is not party to this
suit, and its denial of Plaintiff's request for records is outside the
scope of this litigation and thus not a ground for appeal, good
faith or otherwise.
Fourth, Plaintiff contends that Officer Strauss "retaliated" after
(i) Plaintiff asked for his name and badge number at the scene,
and (ii) Plaintiff asked for his address during Strauss's deposition.
(See IFP Mot. 'l'I 7-8.) In his motion for summary judgment,
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Plaintiff raised these claims of retaliation. He alleged that after
he asked for Strauss's badge number, his "constitutionally protected right to bring a complaint was irnpermissibly chilled by
[Strauss,] who intentionally retaliated and subsequently issued
two back-to-back traffic summons[es]." (Mot. for Summ. J. at 6,
12.) However, the court found that there was no First Amendment retaliation because Plaintiff could not show that his speech
was silenced or chilled. Azeez, 2018 WL 4017580, at *12. Plaintiff
also raised claims about Strauss's alleged retaliatory threats during his deposition, such as when Strauss allegedly testified, "[i]f
you show up in my neighborhood, I will call the police." (Id. at
14; see al.so Pl.'s Reply (Dkt. 86) at 13 n.7; Feb. 26, 2020 Mot. at
5.) In affirming this court's grant of summary judgment to Defendants, the Second Circuit held that Az.eez had waived his
retaliation claims. 790 F. App'x at 273. Since Plaintiff has previously raised these same arguments about alleged retaliation, an
appeal would not be taken in good faith.
Fifth, Plaintiff claims that Officer Strauss also retaliated with another summons. Though this alleged third summons was issued
on November 10, 2019, which was after the court's summary
judgment order was issued, Plaintiff contends that it should be
considered at this juncture because "[i]t w[ould] be a waste of
time and money to initiate a new lawsuit." (See IFP Mot. 'I 9.)
However, Plaintiff has already brought this summons to the
court's attention. (See Feb. 26, 2020 Mot. at 6-7.) As Magistrate
Judge Bulsara explained in his R&R, in addition to the fact that
Plaintiff's motion was untimely, events that occur after the entry
of judgment cannot be the basis for Rule 60(b) relief. (See R&R
at 16.) This court has twice adopted Judge Bulsara's R&R; thus,
a further appeal of this decision would not be made in good faith.
Sixth, Plaintiff contends that Strauss, after learning that he was
a convicted sex offender, began to harass Plaintiff by issuing an
additional two summonses in violation of state law. (See IFP Mot.
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'l 17.) In considering the cross-motions for summary judgment,
the court declined to exercise supplemental jurisdiction over the
remaining state law claims since it was the court's first review of
the merits of Plaintiffs amended complaint. Azeez, 2018 WL
4017580, at *17. In affirming the judgment, the Second Circuit
found that Plaintiff failed to challenge this holding, so his state
law claims were waived. Azeez, 790 F. App'x. at 272. Since this
court and the Second Circuit have already rejected Plaintiffs assertion of state law claims, an appeal would not be taken in good
faith.
Finally, in addition to these allegations, Plaintiff submitted a list
of causes of action including "retaliation, discrimination, false arrest from flagrant perjuries, malicious prosecution, slander,
threat to further arrest, defamation by character, violation of civil
rights under the Constitutions of the State of New York, State
ordinances, laws, statutes, codes and rules; and violation of the
United States Constitution under42 USCA 1981, 1983, 1985, 28
USC 1343." (IFP Mot. 'l 16.) However, this laundry list of causes
of action does not present specific issues for the Second Circuit
to review on appeal.
Plaintiff has not raised any new issues appropriate for the Second
Circuit's consideration. Instead, he repeats the same meritless
claims that have now been decided multiple times, which precludes this court from finding that his appeal is taken in good
faith.
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III. CONCLUSION
The court hereby certifies pursuant to 28 U.S.C. § 1915(a) (3)
that Plaintiffs appeal is not taken in good faith. Thus, Plaintiffs
motion for leave to appeal in Jonna pauperi.s (Dkt. 113) is DENIED. The Clerk of Court is respectfully DIRECTED to send a
copy of this order by certified mail, return receipt requested, to
pro se Plaintiff at his address of record.
SO ORDERED.
Dated:
Brooklyn, New York
April-2 J., 2022
s/Nicholas G. Garaufis
.
.GGARAufM
NICHOLAS
United States District Judge
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