Pickering-George v. The City of NY, et al
Filing
5
ORDER granting 2 Motion for Leave to Proceed in forma pauperis. For the reasons set forth above, Plaintiff's application to proceed in forma pauperis is granted, and the Complaint is sua sponte dismissed with prejudice. Entry of judgment sh all be stayed for thirty (30) days to afford Plaintiff an opportunity to show cause. Plaintiff is directed to show cause within thirty (30) days, why an order barring him from filing any new in forma pauperis action concerning his requests for documents from the Defendants herein or related to any of his prior cases in this Court, without first obtaining leave of court, should not be entered against him. So Ordered by Judge Joanna Seybert on 9/26/2011. C/M (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------X
JOHN PICKERING-GEORGE, (adopted)
JOHN R. DALEY, JR.,
Plaintiff,
ORDER
11-CV-4199 (JS)(ETB)
-againstTHE CITY OF NEW YORK, Human Resource
Administration, FAMILY INDEPENDENCE
ADMINISTRATION, Office of Legal Affairs,
BUREAU OF ADMINISTRATIVE PROCEDURES,
Human Resources Administration,
FAMILY INDEPENDENCE ADMINISTRATION JOB
CENTER AGENCIES LOCATION, et al.,
Defendants.
----------------------------------------X
APPEARANCES:
For Plaintiff:
John Pickering-George, Pro Se
100 W. 174th Street
Apt. 6-D
Bronx, New York 10453
For Defendants:
No appearances
SEYBERT, District Judge:
On August 30, 2011, pro se plaintiff John PickeringGeorge (adopted) John R. Daley, Jr., (“Plaintiff”) filed his
Complaint
against
the
City
of
New
York,
Human
Resource
Administration, Family Independence Administration, Office of Legal
Affairs, Bureau of Administrative Procedures, Human Resources
Administration, and the Family Independence Administration Job
Center
Agencies
Location
(collectively,
“Defendants”).
Accompanying the Complaint is an application to proceed in forma
pauperis.
For
the
reasons
that
follow,
the
Court
grants
Plaintiff's request to proceed in forma pauperis pursuant to 28
U.S.C. § 1915(a), but sua sponte dismisses the Complaint.
I.
Background
Plaintiff, a frequent filer in this Court,1 has filed yet
another incomprehensible Complaint.
According to the Complaint,
Plaintiff’s claims arise under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, in that the Defendants are withholding
certain, unspecified documents from Plaintiff. (Compl. at page 1).
Plaintiff explains that these documents were the subject of one of
his prior lawsuits in this Court, 11-CV-0064(JS)(ETB).
As the
Court can best discern, Plaintiff seeks to re-litigate his FOIA
claims that were sua sponte dismissed by this Court by Order dated
May 31, 2011.
See Dkt. 11-CV-0064(JS)(ETB), Pickering-George v.
City of New York, et al., Order, dated May 31, 2011, Seybert, D.J.
Plaintiff alleges that he filed a “direct appeal to the U.S.
Supreme Court” of the May 31, 2011 Order.
II.
Discussion
A.
In Forma Pauperis Application
Upon review of the Plaintiff’s application, this Court
finds that Plaintiff’s financial status qualifies him to commence
1
Plaintiff’s other pro se in forma pauperis actions in this
Court include 10-CV-1103 (JS)(ETB), which was sua sponte
dismissed with prejudice after affording Plaintiff three
opportunities to file a coherent Complaint; 11-CV-0064
(JS)(ETB), which was sua sponte dismissed for failure to state a
claim upon which relief may be granted pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii); 11-CV-3273 (JS)(ETB), which was also sua
sponte dismissed as frivolous pursuant to 28 U.S.C. §
1915(e)(2)(B)(I); and 11-CV-3636(JS)(ETB) (same).
2
this action without prepayment of the filing fees.
§ 1915(a)(1).
See 28 U.S.C.
Accordingly, Plaintiff’s application to proceed in
forma pauperis is granted.
B.
Application of 28 U.S.C. § 1915
Section 1915 of Title 28 requires a district court to
dismiss an in forma pauperis complaint if the action is frivolous
or malicious; fails to state a claim on which relief may be
granted; or seeks monetary relief against a defendant who is immune
from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i-iii). The Court
is required to dismiss the action as soon as it makes such a
determination.
See id.
Courts are obliged to construe the pleadings of a pro se
plaintiff liberally.
Sealed Plaintiff v. Sealed Defendant, 537
F.3d 185, 191 (2d Cir. 2008); McEachin v. McGuinnis, 357 F.3d 197,
200 (2d Cir. 2004).
If a liberal reading of the complaint “gives
any indication that a valid claim might be stated,” courts must
grant leave to amend the complaint.
See Cuoco v. Moritsugu, 222
F.3d 99, 112 (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
3
wholly incredible, whether or not there are judicially noticeable
facts available to contradict them.” Denton v. Hernandez, 504 U.S.
25, 33, 112 S. Ct. 1728, 118 L. Ed. 2d 340 (1992); see also Gelish
v. Social Sec. Admin., No. 10-CV-3713 (JS), 2010 WL 3780372, at *4
(E.D.N.Y. Sept. 17, 2010); McCormick v. Jackson, No. 07-CV-7893
(JSR), 2008 WL 3891260 (S.D.N.Y. Aug. 21, 2008).
As is readily
apparent from a casual reading of the Complaint, the allegations in
this case “rise to the level of the irrational or the wholly
incredible.”
Denton, 504 U.S. at 33.
Accordingly, the Court sua
sponte dismisses Plaintiff’s Complaint with prejudice.
Notwithstanding
the
Second
Circuit’s
preference
for
adjudication of cases on the merits, the Court declines to grant
Plaintiff leave to amend the Complaint because, even affording the
Complaint a liberal reading, there is no indication that a valid
claim might be stated.
Cuoco, 222 F.3d at 112.
LEAVE TO FILE SANCTION
As stated above, Plaintiff is no stranger to this and
other federal courts.2
In addition to this action and the cases
noted in footnote # 1 (supra at 2, note 1), Plaintiff has also been
barred from filing any further in forma pauperis civil complaints
in the Supreme Court of the United States. See Pickering-George v.
2
The Court’s research has revealed that Plaintiff has also filed
frivolous in forma pauperis Complaints in several other district
courts, including the Northern and Southern Districts of New York
as well as the District of Columbia.
4
Holder, et al., 129 S. Ct. 2061, 173 L. Ed. 2d 1131 (2009) (“As
petitioner has repeatedly abused this Court’s process, the Clerk is
directed not to accept any further petitions in noncriminal matters
from petitioner unless the docketing fee required by Rule 38(a) is
paid”).
Similarly, the Second Circuit has entered a leave-to-file
sanction against the Plaintiff requiring that he first obtain leave
of Court before the Clerk of the Court may accept any papers from
him.
See Order, 11-CV-0224 (2d Cir. March 1, 2011).
This Court has previously warned Plaintiff that:
The district courts have the power and
obligation to protect the public and the
efficient administration of justice 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); Moates v. Barkley, 147 F.3d 207,
208
(2d
Cir.
1998)
(per
curiam).3
Having
been
forewarned,
Plaintiff is now directed to show cause, within thirty (30) days,
why an order barring him from filing any new in forma pauperis
action concerning his requests for documents from the Defendants
herein or related to any of his prior cases in this Court, without
first obtaining leave of court, should not be entered against him.
3
See 11-CV-3273(JS)(ETB), Order, dated August 19, 2011 at page 8
and 11-CV-3636(JS)(ETB), Order, dated September 14, 2011 at page
7.
5
Viola v. United States, 307 F. App’x 539 (2d Cir. 2009) (citing
Moates, 147 F.3d at 208)); see also Johnson v. Chairman, New York
City Transit Authority, 377 F. App’x 46, 48 (2d Cir. 2010) (citing
Hong Mai Sa v. Doe, 406 F.3d 155, 158 (2d Cir. 2005)); Iwachi v.
N.Y. State Dep’t of Motor Vehicles, 396 F.3d 525, 529 (2d Cir.
2005); 28 U.S.C. § 1651(a).
Plaintiff shall file an affirmation in response to this
order within thirty (30) days from the entry of this Order.
If
Plaintiff fails to file an affirmation or otherwise respond to this
Order within the time allowed, an Order enjoining Plaintiff from
filing any new in forma pauperis action against the Defendants in
this action or related to any of Plaintiff’s prior cases in this
Court as set forth above shall be entered. Entry of judgment shall
be stayed for thirty (30) days to afford Plaintiff an opportunity
to show cause.
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
purpose of an appeal.
Coppedge v. United States, 369 U.S. 438,
444-45 (1962).
CONCLUSION
For the reasons set forth above, Plaintiff’s application
to proceed in forma pauperis is granted, and the Complaint is sua
sponte dismissed with prejudice.
Plaintiff is directed to show cause within thirty (30)
6
days, why an order barring him from filing any new in forma
pauperis action concerning his requests for documents from the
Defendants herein or related to any of his prior cases in this
Court, without first obtaining leave of court, should not be
entered against him.
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:
September
26 , 2011
Central Islip, New York
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