George v. Kings County Hospital Center

Filing 10

MEMORANDUM & ORDER denying 6 Motion to Appoint Counsel; 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, however the Complaint is s ua sponte DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii). Given the dismissal, Plaintiff's motion for the appointment of pro bono counsel to represent him in this case is DENIED as it is now moot. The Court certifi es 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 any appeal. The Clerk of the Court is directed to mail a copy of this Memorandum and Order to the pro se Plaintiff and to mark this case CLOSED. So Ordered by Judge Joanna Seybert on 1/30/2015. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
SUNIL P. GEORGE,
Plaintiff,

MEMORANDUM & ORDER
14-CV-5604(JS)(GRB)

-againstKINGS COUNTY HOSPITAL CENTER,

Defendant.
----------------------------------X
APPEARANCES:
For Plaintiffs:
Sunil P. George, pro se
56 Kensington Court
Hempstead, NY 11550
For Defendant:

No appearance.

SEYBERT, District Judge:
On September 18, 2014, pro se plaintiff Sunil P. George
(“Plaintiff”) filed another Complaint pursuant to the Americans
with Disabilities Act of 1990 (“ADA”), as codified in 42 U.S.C. §§
12112-12117, against his former employer, Kings County Hospital
Center, (“Defendant” or “the Hospital”), again alleging that the
Defendant

discriminated

against

him

based

on

his

disability.

Accompanying the Complaint is an application to proceed in forma
pauperis. Upon review of the declaration in support of Plaintiff’s
application, the Court grants Plaintiff’s request to proceed in
forma pauperis.

However, for the reasons set forth below, the

Complaint is sua sponte dismissed for failure to state a claim for
relief pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).1
1

Given the dismissal of Plaintiff’s Complaint, his application
for the appointment of pro bono counsel to represent him in this
case, filed on October 15, 2014, is DENIED as it is now moot.

BACKGROUND
Plaintiff is no stranger to this Court.

Plaintiff filed

his first in forma pauperis employment discrimination Complaint
against the Hospital in November 2011 alleging that his former
employer violated the ADA by failing to reasonably accommodate
his disability.2
“insanity.”

There, Plaintiff claimed his disability was

(See 2011 Compl. at ¶ 7.)

According to the 2011

Complaint, Plaintiff was employed as a pharmacy technician with the
Defendant from May of 2001 until July 10, 2008, at which time
Plaintiff resigned from his employment. Plaintiff’s resignation is
alleged to have occurred following a disciplinary hearing because
Plaintiff stopped reporting to work.

Plaintiff claims that his

medical condition prevented him from working and that he was
improperly denied a medical leave of absence.

According to the

2011 Complaint, after Plaintiff’s psychiatrist sent a confidential
report to the Hospital advising that Plaintiff was incapable of
performing his responsibilities, Plaintiff was notified by his
union representative to appear for a hearing on July 10, 2008.
Plaintiff claims that although he was too sick to participate in
the hearing, his father took him anyway and had Plaintiff sign a
resignation letter and a stipulation of settlement.

(2011 Compl.

(See Docket Entry 6.).
2

See George v. Kings Cnty. Hosp. Ctr., 11-CV-5543, closed on
Jan. 7, 2013.
2

¶ 8 and at 5-6.)

Plaintiff alleged that he had no idea what he was

signing at the time and that he was “totally confused” and not in
the “right frame of mind” due to his medical condition and the fact
that he was taking Zyprexia, Depakote and Citalopram.

(Id.)

Accordingly, Plaintiff sought to have the settlement declared null
and void due to his “mental unsoundness,” and that he be reinstated
as a pharmacy technician with Defendant. (2011 Compl. at page 6.)

The

Defendant

moved

to

dismiss

Plaintiff’s

2011

Complaint, arguing that: (1) Plaintiff’s claims were barred by
issue preclusion; (2) Plaintiff’s claims were time-barred under the
ADA; and (3) Plaintiff failed to state a plausible claim for
relief.

(11-CV-5543 Docket Entry 12, at 8, 10, 12.)

Finding that

Plaintiff’s claims were time-barred under the ADA, the Court
dismissed the 2011 Complaint without addressing the Defendant’s
additional arguments.

(See Memorandum and Order dated Jan. 3,

2013, Seybert, D.J., 11-CV-5543 Docket Entry 17.)

Plaintiff then

moved for reconsideration of, inter alia, the Court’s January 3,
2013 Memorandum and Order (11-CV-5543 Docket Entry 20) and filed a
Notice of Appeal (11-CV-5543 Docket Entry 21.)
By Memorandum and Order dated May 17, 2013, the Court
denied Plaintiff’s motion for reconsideration (see Memorandum and
Order dated May 17, 2013, Seybert, D.J., 11-CV-5543 Docket Entry
22) and, by Mandate issued on October 22, 2013, Plaintiff’s motion
3

for leave to appeal in forma pauperis was denied and his appeal was
dismissed “because it lack[ed] an arguable basis in law or fact”
(see 11-CV-5543 Mandate, Docket Entry 23).
THE PRESENT COMPLAINT
As noted above, on September 18, 2014, Plaintiff filed
another in forma pauperis Complaint against the Hospital, again
alleging that the Hospital discriminated against him based on his
disability in violation of the ADA.
Plaintiff

alleges

that

his

Like his earlier Complaint,

employment

with

the

Hospital

was

terminated on March 31, 2008. Plaintiff’s brief Complaint does not
include the nature of his claimed disability and alleges the
following as the “facts of my case” in its entirety:
The US Civil Rights Law was violated by my
employer.
During my sick/disability period my employer
terminated me.
Before
my
termination,
my
parents
had
submitted seven sick documents from my doctors
and Social Security Disability Award letter to
my employer [v]ia FAX, Certified mail and hand
delivery. My employer clearly knew that “I am
sick.”
Due to my termination, I lost my
employee
pension
and
other
benefits.
Unemployment benefits and Workmen Compensation
benefits were denied to me.
I don’t know how to file the petition in the
Court properly.
I therefore request the
Honorable Court to provide me a free attorney
to represent me in the Court to file the
petition properly.
I am poor person,
collecting Social Security Disability pension
with Medicare and Medicaid. I cannot afford
to hire [an] attorney.
(Compl. ¶ 8.)
4

DISCUSSION
I.

In Forma Pauperis Application
Upon review of Plaintiff’s declaration in support of the

application to proceed in forma pauperis, the Court finds that
Plaintiff is qualified to commence this action without prepayment
of the filing fees.

See 28 U.S.C. § 1915(a)(1).

Therefore,

Plaintiff’s request to proceed in forma pauperis is GRANTED.
II.

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 upon which relief may be
granted, or seeks monetary relief against a defendant who is immune
from

such

1915A(b).

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. § 1915A(b).

Courts are obliged to construe the pleadings of a pro se
plaintiff liberally. See Sealed Plaintiff v. Sealed Defendant, 537
F.3d 185, 191 (2d Cir. 2008); McEachin v. McGuinnis, 357 F.3d 197,
200 (2d Cir. 2004).

However, a complaint must plead sufficient

facts to “state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,
1974, 167 L. Ed. 2d 929 (2007).

“A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the
5

misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.

Ct. 1937, 173 L. Ed. 2d 868 (2009) (citations omitted).

The

plausibility standard requires “more than a sheer possibility that
a defendant has acted unlawfully.”

Id. at 678; accord Wilson v.

Merrill Lynch & Co., Inc., 671 F.3d 120, 128 (2d Cir. 2011).

While

“‘detailed factual allegations’” are not required, “[a] pleading
that offers ‘labels and conclusions’ or ‘a formulaic recitation of
the elements of a cause of action will not do.’”
at

Iqbal, 556 U.S.

678 (quoting Twombly, 550 U.S. at 555).
A.

Res Judicata and Collateral Estoppel
Notwithstanding the liberal construction afforded to pro

se pleadings, there are limits to how often a court can be asked to
review the same allegations against the same parties or their
privies.

The doctrines of res judicata and collateral estoppel

limit such review.

See Salahuddin v. Jones, 992 F.2d 447, 449 (2d

Cir. 1993) (res judicata); Johnson v. Watkins, 101 F.3d 792, 794-95
(2d Cir. 1996) (collateral estoppel).
Res judicata prevents a party from re-litigating issues
that were or could have been brought in a prior action.

See, e.g.,

Brown v. Felsen, 442 U.S. 127, 131, 99 S. Ct. 2205, 2209, 60 L. Ed.
2d 767, 772 (1979).

Under res judicata, “a final judgment on the

merits of an action precludes the parties or their privies from
relitigating issues that were or could have been raised in that
action.”

Flaherty v. Lang, 199 F.3d 607, 612 (2d Cir. 1999)
6

(citations and internal quotation marks omitted). A district court
has not only the power but the obligation to dismiss complaints sua
sponte on res judicata grounds when the litigation history triggers
it.

Salahuddin, 992 F.2d at 449; Krepps v. Reiner, 377 F. App’x

65, 66-67 (2d Cir. 2010) (Courts have the authority to raise res
judicata issues sua sponte).
Similarly,

“[c]ollateral

estoppel,

like

the

related

doctrine of res judicata, has the dual purpose of protecting
litigants from the burden of relitigating an identical issue with
the same party or his privy and of promoting judicial economy by
preventing needless litigation.”

Parklane Hosiery Co. v. Shore,

439 U.S. 322, 326, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979).
Additionally, the doctrines of res judicata and collateral estoppel
apply to pro se litigants.
Burlington

St.

Johnsbury,

Austin v. Downs, Rachlin, & Martin
270

F.

App’x

52

(2d

Cir.

2008);

Cieszkowska v. Gray Line N.Y., 295 F.3d 204, 205-06 (2d Cir. 2002).
Here, as is readily apparent, Plaintiff’s ADA claim
against Defendant arises out of the same nucleus of facts that he
alleged in his first federal complaint. In fact, his claim here is
exactly the same as the claim he brought in 2011 and which was
dismissed with prejudice on the merits.

See PRC Harris, Inc. v.

Boeing Co., 700 F.2d 894, 896 (2d Cir. 1983) (“The longstanding
rule in this Circuit, however, is that a dismissal for failure to
comply

with

the

statute

of

limitations
7

will

operate

as

an

adjudication on the merits, unless it is specifically stated to be
without prejudice.”) (citations omitted). Because a final judgment
on the merits of a case will bar any subsequent litigation by the
same parties concerning the transaction out of which the first
action arose, Plaintiff’s ADA claim cannot proceed.

Accordingly,

the ADA claim against Defendant is precluded and the Complaint is
DISMISSED WITH PREJUDICE to 28 U.S.C. § 1915(e)(2)(B)(ii).
III. The All Writs Act
Under the All–Writs Act, a federal court “may issue all
writs

necessary

or

appropriate

in

aid

of

their

respective

jurisdictions and agreeable to the usages and principles of law.”
28 U.S.C. § 1651(a). The All–Writs Act “grants district courts the
power, under certain circumstances, to enjoin parties from filing
further lawsuits.”
261 (2d Cir. 1999).

MLE Realty Assocs. v. Handler, 192 F.3d 259,
Those circumstances include cases where a

litigant engages in the filing of repetitive and frivolous suits.
See Malley v. New York City Bd. of Educ., 112 F.3d 69 (2d Cir.
1997)

(per

curiam)

(filing

injunction

may

issue

if

numerous

complaints filed are based on the same events); In re Martin–
Trigona, 9 F.3d 226, 227–28 (2d Cir. 1993).

Such an injunction,

while protecting the courts and parties from frivolous litigation,
should be narrowly tailored so as to preserve the right of access
to the courts.

In addition, the Court must provide plaintiff with

notice and an opportunity to be heard before imposing a filing
8

injunction.

Moates v. Barkley, 147 F.3d 207, 208 (2d Cir. 1998)

(per curiam).
Plaintiff’s instant action, together with docket number
11–CV–5543, suggest that Plaintiff may file a new action against
the Defendant claiming violation of the ADA in connection with the
termination of his employment.

Plaintiff’s continued filing of in

forma pauperis complaints relating to this issue constitutes an
abuse of the judicial process.

The Court has an “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) (citation and internal
quotation marks omitted) (brackets omitted).
The Court is especially cognizant of Plaintiff’s pro se
status and has considered his Complaint in as positive light as
possible.

Nonetheless, the Court warns Plaintiff that similar,

future complaints will not be tolerated.

If Plaintiff persists in

this course of action, the Court will require that Plaintiff first
seek leave of Court before submitting such filings.

In addition,

the Court may direct the Clerk of the Court to return to Plaintiff,
without filing, any such action that is received without a clear
application seeking leave to file, and the Court may sua sponte
dismiss the case with prejudice.
9

Finally, Plaintiff is cautioned that Rule 11 of the
Federal Rule of Civil Procedure applies to pro se litigants, see
Maduakolam v. Columbia Univ., 866 F.2d 53, 56 (2d Cir. 1989) (“Rule
11 applies both to represented and pro se litigants . . .”), and
should he file another action challenging the termination of his
employment with Defendant, it is within the Court’s authority to
consider imposing sanctions upon him.

See FED. R. CIV. P. 11.

CONCLUSION
For the reasons set forth above, Plaintiff’s application
to proceed in forma pauperis is GRANTED, however the Complaint is
sua sponte DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §§
1915(e)(2)(B)(ii). Given the dismissal, Plaintiff’s motion for the
appointment of pro bono counsel to represent him in this case is
DENIED as it is now moot.
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
any appeal.

See Coppedge v. United States, 369 U.S. 438, 444-45,

82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).

[BOTTOM OF PAGE INTENTIONALLY LEFT BLANK]

10

The Clerk of the Court is directed to mail a copy of this
Memorandum and Order to the pro se Plaintiff and to mark this case
CLOSED.

SO ORDERED.

/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: January
30 , 2015
Central Islip, New York

11