Sun et al v. State of New York Office of the Attorney General et al

Filing 4

MEMORANDUM AND ORDER: The plaintiff's complaint is dismissed as frivolous. Leave to amend is denied. The Court further directs the plaintiff to show cause as to why he should not be enjoined from filing any new civil action--whether fee paid or not--without first obtaining the Court's permission, within 30 days of the entry of this Order. All further proceedings shall be stayed for 30 days. Ordered by Judge Ann M. Donnelly on 10/19/2017. (Greene, Donna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

NOT FOR PUBLICATION

XIU JIAN SUN,

MEMORANniJM AND ORDER

Plaintiff,

I7-CV-5916

-against-

IN CLERK'S

"" E

US DISTRICT COU - i L :

STATE OF NEW YORK OFFICE OF THE

5 OCT 1 ? Zfill

ATTORNEY GENERAL,et al..

BROOKL : L

Defendants.

i

-X

ANN M.DONNELLY,United States District Judge.

On October 10,2017,the plaintiff Xiu Jian Sun,identifying himself as"god's servant" and

"the spiritual Adam," commenced this pro se action against over 150 defendants. {See Compl,
ECFNo. 1 atpp.1-21.) The plaintiffhas paid the statutory filing fee to commence this action. For
the reasons set forth below, the complaint is dismissed. The plaintiff is directed to show cause as

to why a filing injunction should not be entered against him within 30 days from the date of this
Order.

BACKGROUND

The complaint does not include any factual allegations, and does not allege violations of
any statutes. Instead,it includes random observations and fragments ofpresumably religious texts,
including the following examples:

1. Jehovah, -the Lord God of host, sent the messenger through angel said
to spiritual Adam: "the robbers, the bandits."[ . . . ]09/19/2017
(Servant then pondering who he is talking to

)

2. In the morning of date of December 10, 2016, when the book of Brief
of the Appellant made near completion. The lord god of hosts sent the
messenger to the spiritual Adam through angel, saying.'The Pharisees
have appropriated widow's possessions.'[...]

3. Prior to Pharisees sent letter to ask servant to modify brief: The Lord

god of hosts sent messenger speaks to spiritual Adam - plaintiff,
through the angel, says; 'Pharisees even swallowed dead people's
bones.'[...]05/2017.

4. Jehovah, -the Lord God of host, sent the messenger through angel said
to spiritual Adam: "Wang Xing Ren."[...]

5. 109 precinct and 2 female enforcement police officer from 109 precinct
3705 Union St., Flushing, NY 11354, 718-321-2250, Index No: 90762015. Jehovah,the Lord god of hosts sent messenger through the angel

said to spiritual Adam: "Bring it to be in front of their king. [...]
6. Jehovah, -the Lord god of host, sends the messenger through the angel
says to spiritual Adam,"Next time, still like this when comes to the
ground."(Says to snake in Eden.).[ - - .]

7. 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."

(ECF No. 1 at

1-7 (omitting Chinese language).) While the plaintiff requests a Mandarin

Chinese court interpreter "for [his] appeal court day," he does not state any cognizable cause of
action, damages or relief. {Id.) In short, there is no cognizable basis for this action.

The plaintiff has already filed seven similar fee-paid complaints against various state and
federal court judges, court personnel, government officials, and lawyers, which have all been
dismissed:

• Xiu Jian Sun v. Supreme Court ofthe State ofNew York County ofQueens, No. 17-cv-

5063(ENV)
(LB)(dismissing fee-paid pro se complaint with prejudice)(terminated Sept.
26, 2017);

• Xiu Jian Sun v. Chow, et a/.. No. 17-cv-5000(ENV)
(LB)(dismissing fee-paid pro

complaint with prejudice)(terminated Sept. 26, 2017);

. XiuJian Sun v. Pollak No. 17-cv-1570(ENV)(LB)(dismissing fee-paid pro s.
complaint with prejudice)(terminated Apr. 11, 2017),

. XiuJian Sun v. Cheung. No. 16-ev-5734(ENV)(CLP)(dismissing fee-paidpro.e

complaint for failure to prosecute)(terminated Apr. 17,2017),
. Xiu Jian Sun v. Dillon, et al. No. 16-CV-5276(LDH)(LB)(dismissing fee-paid pro «

complaint as frivolous and warning the plaintiff against filing similar complaints)
(terminated Oct. 13, 2016);

. XiuJian Sun v. Katzmann. et al. No. 16-CV-3937(LDH)(LB)(dismissing fee-paid pro

se complaint as frivolous and warning the plaintiff against filing similar complaints)
(terminated Aug. 3,2016), appeal dismissed. Mandate No. 16-3103(2d Cir. July 11,
2017);

. Xiu Jian Sun v. Cavallo, No. 16-CV-1083(ENV)(CLP)(dismissing fee-paidpro se

complaint as frivolous)(terminated Mar. 23,2016), appeal dismissed. Mandate No. 16950(2d Cir. July 28, 2016).
DISCUSSION

A federal court must"liberally construe[]" pleadings by pro se parties, who are held to less

stringent standards than attomeys. Erickson v. Pardus,551 U.S. 89,94(2007)(citation omitted);
accord Graham v. Henderson, 89 F.3d 75, 79(2d Cir. 1996). Nevertheless, a district court may

dismiss a pro se action sua sponte-even if the plaintiff has paid the requisite filing fee-if the
action is frivolous. Fitzgerald v. First East Seventh Street Tenants Corp., 221 F.3d 362, 363-64

(2d Cir. 2000). An action is frivolous when "the factual contentions are clearly baseless, such as
when allegations are the product of delusion or fantasy ...." Livingston v. Adirondack Beverage

Co., 141 F.3d 434, 437(2d Cir. 1998)(internal quotations and citations omitted). "[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 v. Hernandez, 504 U.S. 25, 33 (1992); see Scanlon v. Vermont, 423 F. App'x 78, 79(2d

Cir. 2011)(summary order)(quoting

v. Williams, 490 U.S. 319, 327(1989)).

The plaintiff has made a practice of suing any judge, court personnel, government official,

or person with whom he has ever interacted. In addition, the allegations consist entirely of
religious pronouncements. The complaint is therefore dismissed as frivolous. The Court denies

the plaintiff an opportunity to amend the complaint, because there is nothing in the complaint that
suggests that the plaintiff has a valid claim against any of the named defendants.
This is the plaintiffs eighth such action, and the plaintiff has not heeded prior warnings to

stop filing frivolous lawsuits. "The district courts have the power and the obligation to protect the
public and the efficient administration ofjustice from individuals who have a history of litigation
entailing vexation, harassment and needless expense to other parties and an unnecessary burden
on the courts and their supporting personnel." Lau v. Meddaugh,229 F.3d 121,123(2d Cir. 2000)
(internal quotations and citations omitted). "If a litigant has a history offiling vexatious, harassing

or duplicative lawsuits, courts may impose sanctions, including restrictions on future access to the
judicial system." Hong Mai Sa v. Doe,406 F.3d 155, 158(2d Cir. 2005)(quotations and citation
omitted);Safir v. U.S. Lines, Inc.,192 F.2d 19,24(2d Cir. 1986)(outlining factors to be considered
in imposing filing injunction); see also 28 U.S.C. § 1651(a). Prior to issuing such an injunction,
the court must provide the litigant with notice and an opportunity to be heard. See Iwachiw v. N.Y.
State Dep't of Motor Vehicles, 396 F.3d 525, 528-29 (2d Cir. 2005); Ling Li v. Asphalt Green,

Inc., 581 F. App'x 6, 8(2d Cir. 2014)(summary order).
4

Accordingly, the plaintiff is directed to show cause as to why he should not be enjoined
from filing any new action, whether fee-paid or requesting informa pauperis status, without prior
approval from this Court. The plaintiff must file an affirmation in response to this Order within
30 days from the entry ofthis Order. If the plaintiff does not file an affirmation or his affirmation

does not provide a valid basis for why the filing injunction should not issue, the Court will enter
an Order enjoining the plaintiff from filing any new lawsuits in this Court, without first obtaining
the Court's permission.
CONCLUSION

The plaintiffs complaint is dismissed as frivolous. Leave to amend is denied.
The Court further directs the plaintiff to show cause as to why he should not be enjoined
from filing any new civil action—whether fee paid or not—without first obtaining the Court's
permission, within 30 days of the entry of this Order. All further proceedings shall be stayed for
30 days.

Although the 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 informa pauperis status is denied for the purpose of an appeal. Coppedge v.
United States, 369 U.S. 438,444-45 (1962).

SO ORDERED.

s/Ann M. Donnelly
ANN M. DONNELLY

United States District Judge
Dated: Brooklyn, New York
October 19, 2017