Kenny v. U.S.A. Government et al
Filing
13
MEMORANDUM & ORDER granting 3 Motion for Leave to Proceed in forma pauperis; finding as moot 5 Motion to Change Venue; For the reasons set forth above, Plaintiff's application to proceed in forma pauperis is GRANTED but the Complaint is su a sponte DISMISSED WITH PREJUDICE for failure to state a plausible claim. Given the dismissal of the Complaint, Plaintiff's Motion to Transfer this case to the Brooklyn Courthouse is DENIED as MOOT. The Court certifies pursuant to 28 U.S.C. 7; 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 12/14/2015. C/M (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
JOSEPH A. KENNY,
Plaintiff,
MEMORANDUM & ORDER
15-CV-4619(JS)(AKT)
-againstTHE GOVERNMENT OF THE U.S.A.,
et. al.,
Defendants.
-----------------------------------X
APPEARANCES:
For Plaintiff:
Joseph A. Kenny, pro se
72-21 67th Street
Apt. 3D
Glendale, NY 11385-6911
For Defendants:
No appearances.
SEYBERT, District Judge:
On July 27, 2015, pro se plaintiff Joseph A. Kenny
(“Plaintiff”) filed an unsigned, five-page Complaint against the
“U.S.A.
Government”
and
Congressman
John
Boehner
(together,
“Defendants”), alleging fantastic claims against them together with
an
application
to
proceed
in
forma
pauperis.
By
Notice
of
Deficiency also dated July 27, 2015 (“Notice”), Plaintiff was
instructed to sign and return the enclosed copy of his Complaint
within fourteen (14) days in order to proceed with this case. (See
Notice, Docket Entry 4.)
On August 24, 2015, Plaintiff filed a
signed copy of his Complaint together with a Motion to Transfer
this case to the Brooklyn Courthouse.
(Docket Entry 5, 6.)
Although the signed Complaint was not timely filed, the Court will
accept it.
On October 27, 2015, Plaintiff filed a twenty-five page
Amended Complaint against the original Defendants and an additional
sixteen (16) individuals, all of whom are either past-Presidents of
the United States and/or elected government officials, and many of
whom are deceased.
(Am. compl., Docket Entry 12.)
Also on October 27, 2015, Plaintiff filed a motion to
proceed in forma pauperis.
Upon review of Plaintiff’s application
to proceed in forma pauperis, the Court finds that he is qualified
by his financial status to commence this action without prepayment
of the filing fee. Accordingly, Plaintiff’s application to proceed
in forma pauperis is GRANTED.
However, for the reasons that
follow, the Complaint is DISMISSED WITH PREJUDICE pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) for failure to allege a plausible claim
for relief.
Given the dismissal of the Complaint, the Motion to
Transfer this case to the Brooklyn Courthouse is DENIED as MOOT.
BACKGROUND
Plaintiff’s Amended Complaint is difficult to comprehend
and
his
rambling
nonsensical.
“Nuremberg
allegations
are
fanciful,
disjointed,
and
Plaintiff asserts that his claims arise under the
Alien
Act;
July
Legislation of December 2009.”
1974
and
the
American
(Am. Compl. ¶ II.B.)
Statement of Facts begins:
2
Victory
Plaintiff’s
I ask to be anonymous in disclosing the
Enclosed Civil Law Suit Complaint/Motion
of a Draft Manuscript: Against the U.S.A.
Government’s Former Presidents and today’s
Bi-Legislative Congress for protecting the
ALLIED SUPREME MILITARY TRIBUNAL CONVICT
OF Madelene Joan (Costin) Kenny’s April 6th
1954 Conviction pertaining to Court Case
Docket Document filing number #Q-7:154253Q.807.53: . . . held by then Chief
Executive-Presiding President of the United
States Dwight D. Eisenhower and deposited in
the Camp David Historical Achieve Treasury
on July 31st 1955.
I add - a second
MILITARY SUPREME TRIAL by Fourth Superior
Federal Court Chief Justice John Feuruk . .
. Dated: July 20th, 1959 in Court Case
Docket Documentation filing number #HZ7 9 3 2 8 1 5 6 0 9 3 4 8 2 7 0 9 7 8 4 2 1 UZB.79287416704918407326194-ZBGX . . . The
Government
of
U.S.A.
has
failed
to
successfully prosecute, sentence and punish
the above War Criminal allowing her to live
unabatedly free and formerly employed in the
NY Government and today collecting Social
Security and a NYS Court Pension. . . .
(Compl. ¶ III.C.)
The Amended Complaint continues in this
fashion through page twenty-five and is equally difficult to
comprehend.
As the Court best understands, Plaintiff seeks
retribution for alleged “crimes against humanity” committed by
United States officials and his mother, Madelene Joan (Costin)
Kenny.
(See generally, Am. Compl.)
DISCUSSION
I.
In Forma Pauperis Application
Upon review of Plaintiff’s declaration in support of
3
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
§ 1915(e)(2)(B)(i)-(iii).
from
such
relief.
See
28
U.S.C.
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
Defendant,
537
F.3d
185,
191
(2d
Cir.
2008);
McGuinnis,
357
F.3d
197,
200
(2d
Cir.
2004).
v.
Sealed
McEachin
However,
v.
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
4
the reasonable inference that the defendant is liable for the
misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129
S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (citation omitted).
The
plausibility
standard
requires
“more
than
possibility that a defendant has acted unlawfully.”
a
sheer
Id. at
678; accord Wilson v. Merrill Lynch & Co., 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.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550
U.S. at 555).
Further, a district court has the inherent power to
dismiss a case, sua sponte, if it determines that the action is
frivolous or the court lacks jurisdiction over the matter.
Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362,
363-364 (2d Cir. 2000).
“An action is frivolous if it lacks an
arguable basis in law or fact--i.e., where it is ‘based on an
indisputably
contentions
meritless
[which]
legal
are
theory’
clearly
or
presents
baseless.’”
‘factual
Scanlon
v.
Vermont, 423 F. App’x 78, 79 (2d Cir. 2011) (summary order)
(quoting Neitzke v. Williams, 490 U.S. 319, 327, 109 S. Ct.
1827, 1832, 104 L. Ed. 2d 338 (1989) (alteration in original));
see also Denton v. Hernandez, 504 U.S. 25, 33, 112 S. Ct. 1728,
5
1733,
118
L.
Ed.
2d
340
(1992)
(“[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.”).
In addition, Rule 8 of the Federal Rules of Civil
Procedure provides, in relevant part, that a complaint must
contain: . . . “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
P. 8(a)(2).
provides
a
against it.
“When
a
F ED . R. C IV .
Essentially, Rule 8 ensures that a complaint
defendant
with
sufficient
notice
of
the
claims
See F ED . R. C IV . P. 8; Iqbal, 556 U.S. at 678.
complaint
fails
to
comply
with
these
requirements
[contained in Rule 8], the district court has the power, on
motion or sua sponte, to dismiss the complaint or to strike
such
parts
as
are
redundant
or
immaterial.”
Simmons
v.
Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995) (citing Salahuddin v.
Cuomo, 861 F.2d 40, 42 (2d Cir. 1988)).
Here, as is readily apparent, the Amended Complaint
is nothing more than Plaintiff’s delusions and does not set
forth any cognizable claim.
Given that Plaintiff has filed a
frivolous Amended Complaint, it is sua sponte DISMISSED WITH
PREJUDICE.
Baron v. Complete Mgmt., Inc., 260 F. App’x 399 (2d
6
Cir.
2008)
complaint
(“[D]ismissal
is
a
is
appropriate
‘labyrinthian
where,
prolixity
of
as
here,
unrelated
a
and
vituperative charges that def[y] comprehension.’”) (quoting
Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir. 1972) (second
alteration in original) (per curiam)).
III. Leave to Amend
Rule 15(a)(2) of the Federal Rules of Civil Procedure
provides that a party shall be given leave to amend “when
justice
so
requires.”
F ED . R. C IV . P. 15(a)(2).
“[W]hen
addressing a pro se complaint, a district ‘court should not
dismiss without granting leave to amend at least once when a
liberal reading of the complaint gives any indication that a
valid claim might be stated.’”
Thompson v. Carter, 284 F.3d
411, 416 (2d Cir. 2002) (quoting Branum v. Clark, 927 F.2d 698,
705 (2d Cir. 1991)).
Nevertheless,
“[l]eave
to
amend,
though
liberally
granted, may properly be denied for: ‘undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to
cure
deficiencies
by
amendments
previously
allowed,
undue
prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.’”
Ruotolo v. City of
New York, 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman v.
7
Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222
(1962)).
“If the underlying facts or circumstances relied upon
by a plaintiff may be a proper subject of relief, he ought to
be afforded an opportunity to test his claim on the merits.”
Foman, 371 U.S. at 182.
However, if amendment would be futile,
i.e., if it could not withstand a motion to dismiss pursuant to
Rule 12(b)(6), leave to amend may be denied.
See Lucente v.
Int’l Bus. Mach. Corp., 310 F.3d 243, 258 (2d Cir. 2002).
Construing
liberally,
and
the
Plaintiff’s
interpreting
it
as
Amended
raising
the
Complaint
strongest
arguments it suggests, Burgos v. Hopkins, 14 F.3d 787, 790 (2d
Cir. 1994), the Court finds that Plaintiff’s allegations rise
to
the
level
of
the
irrational.
Accordingly,
the
Court
declines to afford Plaintiff an opportunity to further amend
his Complaint given that the deficiencies therein are not such
that could be cured by further amendment.
IV.
Litigation Injunction
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
8
courts
the
power,
under
certain
circumstances,
parties from filing further lawsuits.”
cases
where
a
litigant
repetitive and frivolous suits.
Educ.,
112
F.3d
69
(2d
enjoin
MLE Realty Assocs. v.
Handler, 192 F.3d 259, 261 (2d Cir. 1999).
include
to
engages
Those circumstances
in
the
filing
of
See Malley v. N.Y. City Bd. of
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
from
parties
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 injunction.
Moates
v.
Barkley,
147
F.3d
207,
208
(2d
Cir.
1998)
(per
curiam).
Plaintiff’s
instant
action,
together
with
docket
number 15-CV-4618, suggest that Plaintiff may file a new action
concerning
against
his
mother’s
humanity.”
(See
alleged
Am.
involvement
Compl.
with
generally
and
“crimes
at
5).
Plaintiff’s continued filing of in forma pauperis complaints
relating to this issue constitutes an abuse of the judicial
9
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) (brackets, internal
quotation marks and citation 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
similar, future complaints will not be tolerated.
that
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
prejudice.
the
Court
may
sua
sponte
dismiss
the
case
with
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
10
to
represented
and
pro
se
litigants . . .”), and should he file another action relating
to the subject of the instant Complaint, it is within the
Court’s authority to consider imposing sanctions upon him.
F ED. R. C IV. P. 11.
(2d
Cir.
1984)
obligation
to
administration
(a
In re Martin-Trigona, 737 F.2d 1254, 1262
district
protect
of
See
court
the
justice
has
from
[a
power
and
public
“the
the
vexatious
and
the
efficient
litigant’s]
litigious propensities”); Safir v. United States Lines, Inc.,
792 F.2d 19, 24 (2d Cir. 1986) (“‘A district court not only may
but should protect its ability to carry out its constitutional
functions against the threat of onerous, multiplicitous, and
baseless litigation.’” (quoting Abdullah v. Gatto, 773 F.2d
487, 488 (2d Cir. 1985) (per curiam)).
CONCLUSION
For
the
reasons
set
forth
above,
Plaintiff’s
application to proceed in forma pauperis is GRANTED but the
Complaint is sua sponte DISMISSED WITH PREJUDICE for failure to
state a plausible claim.
Plaintiff’s
Motion
to
Given the dismissal of the Complaint,
Transfer
Courthouse is DENIED as MOOT.
this
case
to
the
Brooklyn
The Court certifies pursuant to
28 U.S.C. § 1915(a)(3) that any appeal from this Order would
11
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).
The Clerk of the Court is further 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:
December
14 , 2015
Central Islip, New York
12
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