Sun et al v. Katzmann et al

Filing 7

MEMORANDUM AND ORDER: The complaint is dismissed as frivolous. The Court declines to grant leave to amend as it would be futile. Furthermore, this Court will not tolerate abusive, vexatious and frivolous litigation. As this is Plaintiffs second frivo lous action, he is hereby cautioned that if he continues to file similar actions, he may be subject to restrictions, upon notice and opportunity to be heard, including but not limited to, the imposition of a leave-to-file requirement and monetary san ctions. See Hong Mai Sa v. Doe, 406 F.3d 155, 158 (2d Cir. 2005) (courts may impose sanctions, including restrictions on future access to the judicial system, if a litigant has a history of filing vexatious, harassing, or duplicative lawsuits); Moate s v. Barkley, 147 F.3d 207, 208 (2d Cir. 1998) (per curiam) (a district court may enjoin parties from filing further lawsuits upon notice and an opportunity to be heard); MLE Realty Assocs. v. Handler, 192 F.3d 259, 261 (2d Cir. 1999) (same); Safir v . U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986) (outlining factors to be considered in imposing filing injunction). Although Plaintiff has paid the filing fee to commence this action, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) tha t any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (a district court may deny leave to appeal informa pau peris pursuant to 28 U.S.C. § 1915(a) if the trial court certifies in writing that the appeal is not taken in good faith). The Clerk of Court is directed to enter judgment dismissing this action. (See Attachment for further details). (Basnight, Jasmine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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

NOT FOR PUBLICATION

){IU JIAN SUN,

Plaintiff,
-againstROBERT A. KATZMANN, CATHERINE
O'HAGAN WOLFE, ERIC N. VITALIANO,
CHERYLL. POLLAK, DOUGLAS C.
PALMER, JANET HAMILTON, ERNEST J.
CAVALLO, AKWEI OKO ACQUAYE,
TIMOTHY J. DUFFICY, WILLIAM A. VISCOVICH,
JAGESHWAR SHARNA, MICHELLE WESTON J.P.,
THOMAS P. ALIOTTA, DAVID ELLIOT, JJ,
PAUL KENNY, MICHAEL L. PESCE, P.J.,
MARTIN M. SOLOMON JJ, ANGELA G.
IANNACCI, J.P.; ANTHONY MARANO;
JERRY GARGUILO, JJ, FRANCESCA E.
CONNOLLY, JJ, PETER J. O'DONOGHUE
DICCIA T. PINEDA-KIRWAN, LEONARD
LIVOTE, ALLAN B. WEISS, EDGAR G.
WALKER, WILLIAM F. MASTRO, J.P.,
REINALDO E. RIVERA, JOHN M. LEVENTHAL,
COLLEEN D. DUFFY JJ, BETSY BARROS, JJ,
PETER B. SKELOS, J.P., RUTH C. BALKIN,
THOMAS A. DICKERSON, HECTOR D.
LASALLE, JJ, APRILANNE AGOSTINO,
DAVID S. SHOTTEN, LEN BROWN,
VINCENT J. MARTORANA, ZACHARY
CARTER, AARON M. BLOOM, New York
City Law Department Office of Corporation
Counsel, DAVID LAWRENCE, III, New York
State Office of the Attorney General,
DANIELE DEZAGO, JAMES W. TUFFIN,
Law Offices of SANTANGELO, BENVENUTO
& SLATTERY, JONES HIRSCH CONNORS
MILLER & BULL P.C., MICHAEL P. KELLY,
ESQ., JAMES P. CONNORS, ESQ., CHARLES
T. GURA, ESQ., ANGELA M. EVANGELISTA,
ESQ., MARSHALL DENNEHEY WARNER
COLEMAN & GOGGIN, WILLIAM YEUNG,
Law Office of YEUNG & WANG PLLC,

MEMORANDUM
AND ORDER
16-CV-3937 (LDH) (LB)

CHRISTOPHER J. BAUM, THOMAS BAILEY,
BAUM & BAILEY, P.C., D. STAN O'LOUGHLIN,
Attorney General's Office of ERIC T.
SCHNEIDERMAN, Attorney General of State of
New York ERIC T. SCHNEIDERMAN, Office
of the Attorney General, Division of Appeals &
Opinions, STEPHEN MULLKOFF, ESQ.,
DEMIDCHK LAW FIRM PLLC, BILL & LYNNE
BAILEY, DICK BAILEY SERVICE INC.,
PHILIP 0. OHENE, Attorney from PHILLIP 0.
OHENEESQ.,
Defendants.

-------------------------------------------------------------)(
LASHANN DEARCY HALL, United States District Judge:
On July 15, 2016, plaintiff )(iu Jian Sun, identifying as "the spiritual Adam," filed this

pro se action against numerous defendants, most of whom are judges in various state and federal
courts. Plaintiff paid the statutory filing fee to commence this action. For the reasons set forth
below, the action is dismissed.

BACKGROUND
Plaintiff does not provide any facts against any of the defendants named herein. Rather,
Plaintiff makes the following statements:
Jehovah - the Lord of the host, sent the messenger said to servant: "Woe unto the
Pharisees and the lawyers."
Jehovah - the Lord god of host gives the words to servant (Plaintiff) in the temple he
made, "Trial with god's law. Apply for jury to prevent insult and unfair behavior."
(Compl. at 16, ECF No. 1). Plaintiff does not state the relief he seeks but requests a Mandarin
Chinese court interpreter. (Id) The instant complaint is similar to a prior complaint that Plaintiff
filed on March 4, 2016. See Xiu Jin Sun v. Cavallo, et al., No. 16-CV-1083 (ENV) (CLP). By
Order dated March 19, 2016, that action was dismissed as frivolous. (Memorandum and Order,
No. 16-cv-1083 (ENV) (CLP), ECF No. 39.)
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,,.

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), and "allow[] 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). At the pleading stage of the proceeding, the Court must assume
the truth of "all well-pleaded, nonconclusory factual allegations" in the complaint. Kiobel v.

Royal Dutch Petroleum Co., 621F.3d111, 123 (2d Cir. 2010) (citing Iqbal, 556 U.S. at 678).
Although all allegations in the complaint are assumed to be true, this tenet is "inapplicable to
legal conclusions." Iqbal, 556 U.S. at 678. In addition, a prose complaint is "to be liberally
construed," Ahlers v. Rabinowitz, 684 F.3d 53, 60 (2d Cir. 2012), and interpreted "to raise the
strongest arguments that they suggest," Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996).
Nonetheless, a district court may dismiss a prose action sua sponte, even if the plaintiff
has paid the Court's filing fee, if it determines that the action is frivolous or that the Court lacks
subject matter jurisdiction. See Fitzgerald v. First East Seventh Street Tenants Corp., 221 F .3d
362, 363-64 (2d Cir. 2000) (affirming sua sponte dismissal of frivolous prose complaint where

prose plaintiff had paid the required filing fee); Fed. R. Civ. P. 12(h)(3) ("If the court
determines at any time that it lacks subject matter jurisdiction, the court must dismiss the
action."). An action is frivolous when "either (1) 'the factual contentions are clearly baseless,
such as when allegations are the product of delusion or fantasy;' or (2) 'the claim is based on an
indisputably meritless legal theory."' Livingston v. Adirondack Beverage Co., 141F.3d434, 437
(2d Cir. 1998) (quoting Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam)). A
finding of frivolousness is appropriate "when the facts alleged rise to the level of the irrational or
the wholly incredible, whether or not there are judicially noticeable facts available to contradict
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them." Denton v. Hernandez, 504 U.S. 25, 33 (1992).

DISCUSSION
In light of the rudimentary nature of Plaintiffs pleadings, the Court would ordinarily
afford Plaintiff an opportunity to amend the complaint to provide a statement of claim that would
comply with Rule 8 of the Federal Rules of Civil Procedure. However, the Court declines to
afford plaintiff such an opportunity given that this is Plaintiff's second action and because
nothing in the complaint gives any indication that Plaintiff has a valid claim against any of the
numerous Defendants named. It is unclear what harm Plaintiff allegedly suffered, what acts by
the Defendants allegedly caused that harm, and what federal rights were allegedly infringed. To
the extent Plaintiff complains that any of the Defendants violated some religious tenet, such a
claim is not enforceable in federal court. Moreover, to the extent Plaintiff sues state and federal
judges for actions taken in their judicial capacity, those claims are dismissed as these judges
would be entitled to absolute immunity. See, e.g., Mireles v. Waco, 502 U.S. 9, 11 (1991) (per
curiam) (stating that "judicial immunity is an immunity from suit, not just from the ultimate
assessment of damages") (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)); Bliven v. Hunt,
579 F.3d 204, 209 (2d Cir. 2009) ("It is well settled that judges generally have absolute
immunity from suits for money damages for their judicial actions.").
Accordingly, the complaint is dismissed as frivolous, see Montero v. Travis, 171 F.3d
757, 761-62 (2d Cir. 1999) (per curiam) and because the judicial officers named herein would be
entitled to absolute immunity for any actions related to their judicial duties. Tapp v. Champagne,
164 F. App'x 106 (2d Cir. 2006) (summary order) (affirming sua sponte dismissal of claims
against judges protected by absolute immunity).

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'
CONCLUSION
The complaint is dismissed as frivolous. The Court declines to grant leave to amend as it
would be futile. Furthermore, this Court will not tolerate abusive, vexatious and frivolous
litigation. As this is Plaintiffs second frivolous action, he is hereby cautioned that if he
continues to file similar actions, he may be subject to restrictions, upon notice and opportunity to
be heard, including but not limited to, the imposition of a leave-to-file requirement and monetary
sanctions. See Hong Mai Sa v. Doe, 406 F .3d 155, 158 (2d Cir. 2005) (courts may impose
sanctions, including restrictions on future access to the judicial system, if a litigant has a history
of filing vexatious, harassing, or duplicative lawsuits); Moates v. Barkley, 147 F.3d 207, 208 (2d
Cir. 1998) (per curiam) (a district court may enjoin parties from filing further lawsuits upon
notice and an opportunity to be heard); MLE Realty Assocs. v. Handler, 192 F.3d 259, 261 (2d
Cir. 1999) (same); Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986) (outlining factors to
be considered in imposing filing injunction).
Although Plaintiff has paid the filing fee to commence this action, 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 the purpose of an appeal. Coppedge v.

United States, 369 U.S. 438, 444-45 (1962) (a district court may deny leave to appeal informa
pauperis pursuant to 28 U.S.C. § 1915(a) if the trial court certifies in writing that the appeal is
not taken in good faith). The Clerk of Court is directed to enter judgment dismissing this action.

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SO ORDERED.

s/ LaShann DeArcy Hall

LASH
United States District Judge
Dated: Brooklyn, New York
July
, 2016

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