Kenny v. King
Filing
9
MEMORANDUM & ORDER granting 2 Motion for Leave to Proceed in forma pauperis; For the reasons set forth above, Plaintiff's applications to proceed in forma pauperis are GRANTED but the Complaints are sua sponte DISMISSED WITH PREJUDICE for f ailure to state a plausible claim. Plaintiff is warned that should he continue to file frivolous complaints, the Court will require Plaintiff to show cause why leave of Court should not be sought before submitting such filings pursuant to the All Wr its Act. 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. 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 these cases CLOSED. So Ordered by Judge Joanna Seybert on 12/15/2015. C/M (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
JOSEPH A. KENNY,
Plaintiff,
MEMORANDUM & ORDER
15-CV-5642(JS)(SIL)
-againstCONGRESSMAN PETER KING,
Defendant.
----------------------------------X
JOSEPH A. KENNY,
Plaintiff,
-against-
15-CV-5643(JS)(SIL)
CONGRESSMAN STEVE ISRAEL,
Defendant.
----------------------------------X
JOSEPH A. KENNY,
Plaintiff,
-against-
15-CV-5644(JS)(SIL)
FORMER CONGRESSWOMAN CAROL MCCARTHY,
Defendant.
----------------------------------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 September 23, 2015, pro se plaintiff Joseph A. Kenny
(“Plaintiff”) filed three, in forma pauperis Complaints alleging
similar, fantastic claims against each of the Defendants.
First
Complaint
(Docket
No.
15-5642,
“Kenny
Congressman Peter King (“Congressman King”).
I”)
is
The
against
The Second Complaint
(Docket No. 15-5643, “Kenny II”) is against Congressman Steve
Israel (“Congressman Israel”). The Third Complaint (Docket No. 155644, “Kenny III”) is against Former Congresswoman Carolyn McCarthy
(“Congresswoman
McCarthy”
and
collectively,
“Defendants”).
Plaintiff alleges in each of the Complaints that Defendants have
murdered various individuals and are thus “required to go to the
Senior Offices/Courtrooms of the Supervising Federal District Court
and answer complaints.” (Compls. at 1).
Upon review of Plaintiff’s applications to proceed in
forma pauperis, the Court finds that Plaintiff’s financial status
qualifies him to commence these actions without prepayment of the
filing fees.
Accordingly, Plaintiff’s applications to proceed in
forma pauperis are GRANTED.
However, for the reasons that follow,
the Complaints are DISMISSED WITH PREJUDICE pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii) for failure to allege a plausible claim for
relief.
BACKGROUND
Plaintiff’s
three-page
Complaints
in
each
case
are
difficult to comprehend and his rambling allegations are fanciful,
2
disjointed, and clearly baseless.
In Kenny I, Plaintiff alleges:1
Congressman Peter King of the NYS 2nd Congressional
District killed three men in October 19th 1974 when he
was retiring from active U.S. Military Reserve Status. He
killed Vincent J. LaVine; John Germaine and William
Johnson a cornel on Active Duty with the Adjunct Court
Advocate’s Office at West Point. The two other men were
senior members of a U.S. House Intelligence Committee
that oversaw I.R.A. Terrorism in Ireland/Northern Ireland
and accused Peter King of being an infiltrating agent
causing unrest in Ireland and British Spheres of
Influence. He was indicted on the three murders and found
mentally competent to strand trial which saw him
convicted on three counts of murdering a member of the
U.S. Military and two associate members of the House
Intelligence Committee. Peter King’s Court Case Docket
Document filing number from the West Point’s Court
Advocate’s Courtroom is as follows:[IZI.593027864890387I.179328645938701689382409568187938246938746-HIZBK] Dated
December 8th 1974. He was imprisoned in Attica State
Penitentiary and was jailed for almost 8 years until
Governor Mario Cuomo issued a blanket pardon . . . .
Congressman
Peter
King
not
unlike
Carolyn
B.
Maloney/Jenworth is to be apprehended, re-prosecuted and
resentenced for the murder of three men for the
Congressional language of the unanimous bi-legislative
Congresses Authorization of October 19th 2009 clearly
states that the House of Representatives disallows
Gubernatorial Pardons when determining if a Congressperson has lived a life devout to the Law without the
commission of a Crime. Congressman Peter King should be
held accountable for the commission of his crimes and
sentenced to death not unlike my argument against Carolyn
B. Maloney/Jentworth and buried at sea for the killing of
a senior U.S. Military West Point Officer. . . .
(Kenny I Compl. at 1-2.)
1
Excerpts from the Complaints are reproduced here exactly as
they appear in the original Complaints. Errors in spelling,
punctuation, and grammar have not been corrected or noted.
3
In Kenny II, Plaintiff alleges:
Congressman Steve Israel killed four Patrol Officers in
Hauppauge on Dec 1st 1983 and was captured eluding the
Police in an all-out gun battle that left three Officers
wounded; one fatally making the total of Police Officers
killed at five. The five Officers are William Judge; John
Sturgeon (a distant cousin of the Fourth Superior Federal
Appeal Court Chief Justice that was assassinated in
1957.) James Turbine; Jon William II and Stanley Freeman
{the son of my junior varsity basketball guard}. The four
Patrol Officers were sitting watching alittle league game
when Steve Gergain/Steve Israel came up from behind and
used a submachine gun to assassinate the Police Officers
for the strong armed tactics they employed on him
disarming him when he confronted a fellow drunk at a bar.
. . . He [Congressman Israel] was convicted of Murder in
the first degree and injuring accompanying Police
personnel and was sentenced to 150 years for each murder
and 25 years a piece for the wounding of the two Police
Officers. . . .
(Kenny II Compl. at 1.)
In Kenny III, Plaintiff alleges:
Former Congresswoman Carol McCarthy killed her former
husband Frank Reynolds with an axe and pick and took his
gun to protect herself against the responding police. Her
daughter called 911 and Carol Jenkins/McCarthy shot and
killed her own daughter attempting to evade capture. When
the Police arrived she shot the sergeant in the face; a
wound he would eventually succumb to in the following
year. She turned her attention to the Lieutenant a female
Officer and called out: “Go met your Maker for I am going
to blow you to kingdom come.”; which she did and followed
with a volley of shots at Police Lieutenant John Anderson
who was wounded and then shot the future Congresswomen
once in the chest stopping her rampaging assault. But
Carol McCarthy/Jenkins recovered temporarily and shot
John Anderson in the head before shooting two additional
responding Police Officers each of whom died in the
emergency room at Nassau County Medical Center. Carol
McCarthy/Jenkins drank some whiskey and collapsed in pain
and was also taken to the same Hospital where Jim Feurtic
4
and John Admare died of the wounds she inflicted. All in
toll five Police Officers died plus her husband and
daughter for what she woke up to say for no apparent
reason other than I was mad. Carol McCarthy/Jenkins was
convicted of first degree manslaughter in the deaths of
all Police Officers and she pleaded no contest to the
deaths of her husband and daughter.
The Court Case
Docket
Document
filing
number
is
[H.7930654-HG.
980165938276013784758139760297-HIGZ.7983016978476-HIZB].
. . . She is an injustice to the lives of ordinary
Americans and deserves to die via the sentence of
electrocution that the Appellate Division Justice David
Stern {the brother of the Psychiatrist of Madelene Joan
(Costin) Kenny at Creedmoor} stated so eloquently when he
said we give and we taketh and what has been deem
rightous need not the right of the hangman to electrocute
the insidious madwoman Carol Jenkins/McCarthy. I seek
justice for the former congresswoman McCarthy/Jenkins
under the legislation passed unanimously by the bilegislative Congress/Senate and seek the award of
$147,500 to pay my Hospitalization at Nassau County
Medical Center since it took care of me for my Hernia
operation in 1979 and a series of Mental Hospitalizations
Thereafter. . . .
(Kenny III Compl. at 1-2.)
For relief, Plaintiff seeks to recover a monetary award
with which, inter alia, he “plan[s] to pay back the Hospitals that
have given me Psychiatric Mental Health Care . . . .”
(Compls. in
Kenny II and III at 2.)
DISCUSSION
I.
In Forma Pauperis Applications
Upon review of Plaintiff’s declarations in support of the
applications to proceed in forma pauperis, the Court finds that
Plaintiff is qualified to commence these actions without prepayment
5
of the filing fees.
See 28 U.S.C. § 1915(a)(1).
Therefore,
Plaintiff’s requests to proceed in forma pauperis are 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 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
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 a sheer possibility that
a defendant has acted unlawfully.”
6
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
meritless
legal
theory’
or
contentions [which] are clearly baseless.’”
presents
‘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, 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
7
contain: . . . a short and plain statement of the claim showing
that the pleader is entitled to relief.”
FED. R. CIV. P. 8(a)(2).
Essentially, Rule 8 ensures that a complaint provides a defendant
with sufficient notice of the claims against it.
P. 8; Iqbal, 556 U.S. at 678.
See FED. R. CIV.
“When a 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 Complaints are nothing
more than Plaintiff’s delusions and do not set forth any cognizable
claims.
Given that Plaintiff has filed frivolous Complaints, they
are sua
sponte
DISMISSED WITH PREJUDICE.
Baron v. Complete
Management, Inc., 260 F. App’x 399 (2d Cir. 2008) (“[D]ismissal is
appropriate
prolixity
where,
of
as
unrelated
here,
and
a
complaint
vituperative
is
a
charges
‘labyrinthian
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.”
FED. R. CIV. P. 15(a)(2).
8
“[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
stated.’”
gives
any
indication
that
a
valid
claim
might
be
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. 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 the Plaintiff’s Complaints liberally, and
interpreting them as raising the strongest arguments they suggest,
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), the Court finds
9
that Plaintiff’s allegations rise to the level of the irrational.
Accordingly, the Court declines to afford Plaintiff an opportunity
to amend his Complaints given that the deficiencies therein are not
such that could be cured by amendment.
VI.
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. N.Y. City Bd. of Educ., 112 F.3d 69, 69 (2d Cir.
1997)
(per
curiam)
(filing
injunction
may
issue
if
numerous
frivolous complaints are filed) (citing In re Martin–Trigona, 737
F.2d 1254, 1261 (2d Cir. 1984) (“injunction is appropriate where
plaintiff ‘abuse[s] the process of the Courts to harass and annoy
others with meritless, frivolous, vexatious or repetitive . . .
proceedings.’”) (alteration and ellipsis in original); see also
Safir v. U.S. 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,
10
multiplicitous, and baseless litigation.’”) (quoting Abdullah v.
Gatto, 773 F.2d 487, 488 (2d Cir. 1985) (per curiam)).
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 injunction. Moates v. Barkley, 147 F.3d 207, 208
(2d Cir. 1998) (per curiam).
Plaintiff’s instant actions, together with docket numbers
15–CV–4618 and 15-CV-4619,2 suggest that Plaintiff may file a new
frivolous action.
Plaintiff’s continued filing of frivolous in
forma pauperis complaints 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.”
123
(2d
Cir.
2000)
(internal
Lau v. Meddaugh, 229 F. 3d 121,
quotation
marks,
citation,
and
brackets omitted).
The Court is especially cognizant of Plaintiff’s pro se
2
See Kenny v. Kenny, 15-CV-4618 (JS)(SIL) (delusional in forma
pauperis complaint dismissed); Kenny v. USA Gov’t, 15-CV-4619
(JS)(SIL) (delusional in forma pauperis complaint dismissed).
11
status and has considered his Complaints 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 Plaintiff to show
cause why leave of Court should not be sought before submitting
such filings pursuant to the All Writs Act. 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.
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 frivolous complaint, 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 applications
to proceed in forma pauperis are GRANTED but the Complaints are sua
sponte DISMISSED WITH PREJUDICE for failure to state a plausible
claim.
Plaintiff is warned that should he continue to file
frivolous complaints, the Court will require Plaintiff to show
12
cause why leave of Court should not be sought before submitting
such filings pursuant to the All Writs Act.
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).
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
these cases CLOSED.
SO ORDERED
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: December
15 , 2015
Central Islip, New York
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