Bussie v. Haley

Filing 4

MEMORANDUM AND ORDER to show cause: Plaintiffs requests to proceed in forma pauperis are granted pursuant to 28 U.S.C. § 1915(a). The Court dismisses the Complaints as frivolous, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Plaintiff is ordere d to show cause, within thirty (30) days from the date of this Memorandum and Order, why he should not be barred from filing any new actions under the in forma pauperis statute without first obtaining the Courts permission to do so. The Court certifi es 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 any appeal. SO Ordered by Judge Margo K. Brodie on 1/27/2017. (Copy of this Order mailed to Pro Se Plaintiff.) (Ramesar, Thameera)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------ANTHONY BUSSIE,
Plaintiff,
v.

MEMORANDUM & ORDER
TO SHOW CAUSE
16-CV-7006 (MKB)

IRS COMISSIONER,
Defendant.
--------------------------------------------------------------ANTHONY BUSSIE,
Plaintiff,
17-CV-157 (MKB)

v.
NIKKI HALEY,
Defendant.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:

On December 16, 2016 and January 4, 2017, Plaintiff Anthony Bussie, proceeding pro se
and currently civilly detained at the Federal Medical Center in Butner, North Carolina, filed the
two above-captioned actions against Defendants Internal Revenue Service (“IRS”)
Commissioner in Kansas City, Missouri and Nikki Haley,1 Governor of South Carolina, who has
been proposed as the United States Ambassador to the United Nations, respectively.2 (Compl.
(“First Compl.”) 1, No. 16-CV-7006, Docket Entry No. 1; Compl. (“Second Compl.”) 1, No. 17CV-157, Docket Entry No. 1.) The actions are consolidated for the purpose of this

1

Plaintiff identifies Haley as a United Nations Ambassador. (Compl. (“Second
Compl.”) 1, No. 17-CV-157, Docket Entry No. 1.)
2

Because the Complaints are not paginated, the Court refers to the electronic document
filing system pagination.

Memorandum and Order. Plaintiff’s requests to proceed in forma pauperis are granted pursuant
to 28 U.S.C. § 1915(a) for the limited purpose of this Memorandum and Order. For the reasons
discussed below, the Court dismisses the Complaints as frivolous and directs Plaintiff to show
cause why he should not be barred from filing any new actions under the in forma pauperis
statute without first obtaining the Court’s permission to do so.
I.

Background
a.

Plaintiff’s personal history

Sometime in or around 2012, Plaintiff was detained and held in federal custody on
criminal allegations that he threatened to harm a member of the United States Congress. See
Bussie v. Mohamed, No. 14-CV-5454, 2014 WL 7338802, at *1 (E.D.N.Y. Dec. 22, 2014)
(citing United States v. Bussie, 12-CR-229 (D.N.J. Jan. 12, 2012)); Bussie v. Boehner, 21
F. Supp. 3d 244, 245 (E.D.N.Y. 2014) (citing Bussie, 12-CR-229). On or about April 2, 2015,
Plaintiff was ordered civilly committed pursuant to 18 U.S.C. § 4246(d). See Order, United
States v. Bussie, No. 14-HC-2186 (E.D.N.C. Apr. 2, 2015), Docket Entry No. 16; see also United
States v. Bussie, 637 F. App’x 102, 102 (4th Cir. 2016) (affirming the district court’s order
civilly committing Plaintiff). A United States district court judge subsequently found Plaintiff
mentally incompetent to stand trial and, on April 16, 2015, dismissed the criminal charges
against Plaintiff without prejudice. See Order, United States v. Bussie, No. 12-CR-229 (D.N.J.
Apr. 16, 2015), Docket Entry No. 43. Plaintiff is currently committed to the Federal Medical
Center in Butner, North Carolina.3 (Second Compl. 1.)

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Although Plaintiff is hospitalized in a federal facility pursuant to 18 U.S.C. § 4246(d),
the circuits courts that have considered this issue have determined that a person committed to the
custody of the Attorney General of the United States under 18 U.S.C. § 4246(d) is not a
“prisoner” under the Prison Litigation Reform Act (“PLRA”). See Hicks v. James, 255 F. App’x
744, 748 (4th Cir. 2007) (finding that Hicks’ detention pursuant to 18 U.S.C. § 4246 “does not
2

b.

Complaint allegations

In the First Complaint, Plaintiff alleges a violation of his Eight Amendment rights,
asserting that the IRS office in Kansas City, Missouri, deducted money from his prison account
to pay federal court filing fees. (First Compl. 2–3.) Plaintiff seeks damages and other relief.
(Id. at 3.) In the Second Complaint, Plaintiff indicates that the “nature of the suit is 440 civil
right[s]” and seeks an order requiring Nikki Haley to bring his “crisis, atrocity and human rights
issue to the United Nations in New York.” (Second Compl. 1, 3.)
c.

Plaintiff’s litigation history

The Complaints are the thirteenth and fourteenth complaints Plaintiff has filed in the
Eastern District of New York, but Plaintiff has filed over 100 actions in federal district courts
across the United States and is under a filing injunction in the District of New Jersey, his preincarceration domicile, preventing him from filing claims based on an alleged intelligence and
war contract with the United States government. See Filing Injunction Order, Conjured Up
Entm’t v. United States, No. 11-CV-2824 (D.N.J. July 26, 2011), Docket Entry No. 9. In the
Eastern District, Plaintiff’s actions have been dismissed for various reasons: as frivolous under

meet the PLRA’s definition of a prisoner) (collecting cases from the Fourth, Eighth, Ninth and
Eleventh Circuits). The PLRA defines a prisoner as “any person incarcerated or detained in any
facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations
of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary
program.” 42 U.S.C. § 1997e(h). Plaintiff’s status has changed from pretrial detainee to an
individual hospitalized pursuant to a Section 4246 commitment order and his appeal seeking
review of his commitment order was denied. See Bussie, 637 F. App’x at 102. Therefore,
Plaintiff is not a prisoner under the PLRA because Plaintiff’s “detention under [Section] 4246 is
not the result of a violation of criminal law and does not relate to conditions of parole, probation,
pretrial release, or a diversionary program.” Hicks, 255 F. App’x at 748. The Court may no
longer apply the PLRA’s three strike provision to deny his request to proceed in forma pauperis.
The Court may, however, review the Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), which
applies to any proceeding in forma pauperis.
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28 U.S.C. §§ 1915A(b)4 or 1915(e)(2)(B)(i);5 for lack of jurisdiction;6 for failure to comply with
filing requirements;7 or as barred by the Prison Litigation Reform Act’s (“PLRA”) three strikes
provision.8
II. Discussion
a.

Standard of review

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 is plausible “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir.
2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). 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. In reviewing a pro se complaint, the court must be mindful that a plaintiff’s

4

See Bussie v. Dep’t of Defense, No. 13-CV-4574, 2013 WL 5348311, at *2 (E.D.N.Y.
Sept. 23, 2013).
5

See Memorandum and Order, Bussie v. Bharara, No. 16-CV-1342 (E.D.N.Y. Aug. 24,
2016), Docket Entry No. 9; Memorandum and Order, Bussie v. Lew, No. 16-CV-2511 (E.D.N.Y.
Aug. 24, 2016), Docket Entry No. 7; Memorandum and Order, Bussie v. Lew, No. 16-CV-3780
(E.D.N.Y. Aug. 24, 2016), Docket Entry No. 6.
6

Memorandum and Order, Bussie v. Fed. Pub. Def. Org., No. 15-CV-4722 (E.D.N.Y.
Nov. 20, 2015), Docket Entry No. 6; Memorandum and Order, Bussie v. United States of
America, No. 14-CV-7010 (E.D.N.Y. Feb. 25, 2015), Docket Entry No. 4.
7

Order, Bussie v. Pelosky, No. 15-CV-6220 (E.D.N.Y. Nov. 19, 2015), Docket Entry
No. 4; Order, Bussie v. Boehner, No. 15-CV-2464 (E.D.N.Y. June 10, 2015), Docket Entry No.
6.
8

See Memorandum and Order, Bussie v. Bharara, No. 15-CV-3237 (E.D.N.Y. June 6,
2016), Docket Entry No. 4; Bussie v. Mohamed, No. 14-CV-5454, 2014 WL 7338802, at *2
(E.D.N.Y. Dec. 22, 2014); Bussie v. Gov. Accountability Office, No. 14-CV-2665, 2014 WL
2178212, at *2 (E.D.N.Y. May 23, 2014); Bussie v. Boehner, 21 F. Supp. 3d 244, 246 (E.D.N.Y.
2014).
4

pleadings should be held “to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S.
97, 104–105 (1976)); see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even after
Twombly, the court “remain[s] obligated to construe a pro se complaint liberally”).
Nevertheless, the Court is required to dismiss sua sponte an in forma pauperis action if the Court
determines it “(i) is 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.”
28 U.S.C. § 1915(e)(2)(B); see also Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).
b.

Actions are dismissed as frivolous

“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., 141 F.3d 434, 437
(2d Cir. 1998) (internal quotation marks omitted) (quoting Nance v. Kelly, 912 F.2d 605, 606 (2d
Cir. 1990) (per curiam)). “A claim is based on an indisputably meritless legal theory when either
the claim lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the
complaint.” Id. (internal quotation marks and citations omitted). The Supreme Court has noted
that:
[T]he in forma pauperis statute, unlike Rule 12(b)(6) [of the
Federal Rules of Civil Procedure] “accords judges not only the
authority to dismiss a claim based on an indisputably meritless
legal theory, but also the unusual power to pierce the veil of the
complaint’s factual allegations and dismiss those claims whose
factual contentions are clearly baseless.”
Denton v. Hernandez, 504 U.S. 25, 32 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 327
(1989)). “[A] finding of factual 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 them.” Denton, 504 U.S. at 33.
5

Here, the factual contentions of the First Complaint are “indisputably meritless.”
Livingston, 141 F.3d at 437. Plaintiff makes no factual allegations that could arguably support a
claim; instead, he makes a generalized allegation that the IRS is “improperly charging his prison
account.” (First Compl. 3). Although he correctly states that he is not a “prisoner” under the
PLRA, see supra n.3, his reference to the alleged collection of fees is not a violation of the
Eighth Amendment and does not establish a basis for any other claim against the IRS
Commissioner. Plaintiff’s allegations in the Second Complaint are similarly “indisputably
meritless.” Livingston, 141 F.3d at 437. Plaintiff does not assert any legal violation, but
indicates “nature of the action 440,” (Second Compl. 1), which is not the basis for a cause of
action. Further, it is unclear what cause of action Plaintiff would have against Haley in her role
as United States Ambassador to the United Nations, particularly since Congress has not yet
confirmed her appointment to that position. Accordingly, the Court dismisses the Complaints as
frivolous.9 28 U.S.C. § 1915(e)(2)(B)(i); Greathouse v. JHS Sec. Inc., 784 F.3d 105, 119 (2d
Cir. 2015) (“Courts have both statutory and inherent authority to sua sponte dismiss frivolous
suits.”).
While the Court would ordinarily allow Plaintiff an opportunity to amend his pleadings,
Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000), it need not afford that opportunity here, where
it is clear from the face of the Complaints that the claims are frivolous. Cuoco v. Moritsugu, 222
F.3d 99, 112 (2d Cir. 2000) (finding that leave to amend would be futile because the complaint,
even when read liberally, did not “suggest[] that the plaintiff has a claim that she has
inadequately or inartfully pleaded . . . .”).

9

Because Plaintiff is proceeding pro se, the Court must liberally construe the allegations
in the Complaints “to raise the strongest arguments they suggest.” Wiley v. Kirkpatrick, 801
F.3d 51, 62 (2d Cir. 2015). However, the Court was unable to make out any other possible
causes of action against the Defendants based on the allegations in the Complaints.
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c.

Filing Injunction

In Lau v. Meddaugh, the Second Circuit 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.” 229 F.3d 121, 123 (2d Cir.
2000) (per curiam) (citation and internal quotation marks omitted); see also Pandozy v. Tobey,
335 F. App’x 89, 92 (2d Cir. 2009); Williams v. N.Y.C. Hous. Auth., No. 06-CV-5473, 2008 WL
5111105, at *5 (E.D.N.Y. Dec. 4, 2008) (citing Meddaugh, 229 F.3d at 123). 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.S. 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)).
Plaintiff is on notice that the district court may impose an injunction because the most
recent dismissal of his action in the Eastern District, a consolidated order dismissing three in
forma pauperis actions,10 included a warning that a filing injunction may be entered if Plaintiff
continued to file non-meritorious actions. In light of Plaintiff’s litigation history and these two
additional frivolous Complaints, he is ordered to show cause in writing by affirmation why he
should not be barred from filing any further in forma pauperis actions in this Court without first
obtaining permission from this Court to do so. See Moates, 147 F.3d at 208–209. Should
Plaintiff fail to timely submit his affirmation, or should Plaintiff’s affirmation fail to set forth
good cause why this injunction should not be entered, he shall be barred from filing any further
in forma pauperis actions in this Court without first obtaining permission to do so.

10

See Memorandum and Order, Bussie v. Bharara, No. 16-CV-1342 (E.D.N.Y. Aug. 24,
2016), Docket Entry No. 9; Memorandum and Order, Bussie v. Lew, No. 16-CV-2511 (E.D.N.Y.
Aug. 24, 2016), Docket Entry No. 7; Memorandum and Order, Bussie v. Lew, No. 16-CV-3780
(E.D.N.Y. Aug. 24, 2016), Docket Entry No. 6.
7

III. Conclusion
For the foregoing reasons, the Court dismisses the Complaints as frivolous, pursuant to
28 U.S.C. § 1915(e)(2)(B)(i). Furthermore, Plaintiff is ordered to show cause, within thirty (30)
days from the date of this Memorandum and Order, why he should not be barred from filing any
new actions under the in forma pauperis statute without first obtaining the Court’s permission to
do so. All future proceedings shall be stayed for thirty days. 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 any appeal. See Coppedge v. United States, 369 U.S.
438, 444–45 (1962).
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: January 27, 2017
Brooklyn, New York

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