George v. Kings County Hospital Center
Filing
7
MEMORANDUM & ORDER TO SHOW CAUSE denying 3 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 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. Plainti ff is ORDERED TO SHOW CAUSE BY FILING AN AFFIDAVIT WITHIN THIRTY (30) DAYS WHY AN ORDER BARRING HIM FROM FILING ANY NEW COMPLAINT RELATING TO THE TERMINATION OF HIS EMPLOYMENT WITH DEFENDANT SHOULD NOT BE ENTERED. The Clerk of the Court is DIRECTE D to mail a copy of this Order to Show Cause to Plaintiff at his last known address and to file proof of such service with the Court. 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. So Ordered by Judge Joanna Seybert on 11/29/2016. C/M (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
SUNIL P. GEORGE,
Plaintiff,
MEMORANDUM & ORDER
TO SHOW CAUSE
16-CV-4482(JS)(GRB)
-againstKINGS COUNTY HOSPITAL CENTER,
Defendant.
----------------------------------X
APPEARANCES:
For Plaintiff:
Sunil P. George, pro se
56 Kensington Court
Hempstead, NY 11550
For Defendant:
No appearance.
SEYBERT, District Judge:
On August 10, 2016, 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”
Defendant
or
discriminated
“the
Hospital”),
against
him
based
again
on
alleging
his
that
disability.
Accompanying the Complaint is an application to proceed in forma
pauperis and an application for the appointment of pro bono counsel
to represent him in this case.
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).
Given the
dismissal
of
the
Complaint,
Plaintiff’s
application
for
the
appointment of pro bono counsel is DENIED AS MOOT.
BACKGROUND
Plaintiff
is
no
stranger
to
this
Court.
This
is
Plaintiff’s third civil action against the Defendant challenging
the termination of the Plaintiff’s employment with the Defendant.
THE FIRST COMPLAINT
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.1
his disability was “insanity.”
There, Plaintiff claimed
(See 2011 Compl. at ¶ 7.)
According to the 2011 Complaint, Plaintiff was employed as a
pharmacy technician with 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. Plaintiff alleged that a psychiatrist sent a confidential
report to the Hospital advising that Plaintiff was incapable of
performing his responsibilities, Plaintiff was then notified by his
1
See George v. Kings Cty. Hosp. Ctr., 11-CV-5543, closed on
Jan. 7, 2013.
2
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.
¶ 8 and at 5-6.)
(2011 Compl.
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. (2011 Compl.
at 5.))
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 6.)
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.
(See 11-CV-5543, Def.’s Br., Docket Entry 12-3, 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 Jan. 3, 2013, Mem. & Order,
11-CV-5543,
Docket
reconsideration
of,
Entry
17.)
inter
alia,
Plaintiff
the
Court’s
then
moved
January
3,
for
2013
Memorandum and Order (See 11-CV-5543 Docket Entry 20) and filed a
Notice of Appeal (See 11-CV-5543 Docket Entry 21).
3
By Memorandum and Order dated May 17, 2013, the Court
denied Plaintiff’s motion for reconsideration (see May 17, 2013
Mem. & Order, 11-CV-5543, Docket Entry 22) and, by Mandate issued
on October 22, 2013, Plaintiff’s motion 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 SECOND COMPLAINT
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.2
Like his earlier complaint, Plaintiff
alleged that his employment with the Hospital was terminated on
March 31, 2008.
Plaintiff’s brief complaint did not include the
nature of his claimed disability and alleged 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, regular
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
2
See George v. Kings Cty. Hosp. Ctr., 11-CV-5604, closed on
February 6, 2015.
4
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.
(2014 Compl. ¶ 8.)
By Memorandum and Order dated January 30, 2015, the Court
granted Plaintiff’s application to proceed in forma pauperis and
sua sponte dismissed the 2014 Complaint with prejudice pursuant to
28 U.S.C. § 1915(e)(2)(B)(ii).
Because Plaintiff’s ADA claim
against Defendant in the 2014 Complaint was exactly the same as the
claim he brought in 2011 and which was dismissed with prejudice on
the merits, the Court determined that the ADA claim was precluded
by doctrines of res
judicata
and collateral
estoppel.
(See
Jan. 30, 2015 Mem. & Order, 14-CV-5604, Docket Entry 10, at 6-8.)
In addition, Plaintiff was warned that similar, future
complaints will not be tolerated.
Plaintiff was apprised that,
pursuant to the All Writs Act, 28 U.S.C. § 1651(a):
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.
(See Jan. 30, 2015 Mem. & Order, 14-CV-5604, at 9.)
5
Undeterred, on August 10, 2016, Plaintiff filed his Third
Complaint against the Defendant.
The Third Complaint
Like Plaintiff’s earlier complaints, the Third Complaint
also
seeks
to
challenge
the
2008
termination
employment at the Hospital under the ADA.
of
Plaintiff’s
Given that Plaintiff
seeks to relitigate claims already decided by the Court, see supra
at 5, Plaintiff’s Third Complaint is again precluded by the
doctrines of res judicata and collateral estoppel for the reasons
that follow.
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
6
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, 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
7
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)
(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.
Austin v. Downs, Rachlin, & Martin
8
Burlington
St.
Johnsbury,
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 and second federal complaints.
In fact, his
claim here is exactly the same as the claim he brought in 2011 and
2014 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 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
9
further lawsuits.”
MLE Realty Assocs. v. Handler, 192 F.3d 259,
261 (2d Cir. 1999).
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 (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).
the
courts
and
parties
Such an injunction, while protecting
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 action, together with docket numbers
11–CV–5543 and 14-CV-5604, suggest that Plaintiff may file a new
action
against
Defendant
claiming
violation
of
the
connection with the termination of his employment.
ADA
in
Plaintiff’s
continued filing of in forma pauperis complaints relating to this
issue constitutes an abuse of the judicial process.
an
“obligation
to
protect
the
public
and
The Court has
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.”
Cir.
2000)
(citation
Lau v. Meddaugh, 229 F. 3d 121, 123 (2d
and
internal
10
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 again warns Plaintiff that
similar, future complaints will not be tolerated.
Given Plaintiff’s litigation history, together with the
fact
that
he
has
been
warned
that
his
continued
filing
of
complaints against Defendant relating to the termination of his
employment may lead to the entry of an order barring the acceptance
of
any
future
complaint
based
on
such
claims
without
first
obtaining leave of Court to do so, the Court now ORDERS PLAINTIFF
TO SHOW CAUSE BY FILING AN AFFIDAVIT WITHIN THIRTY (30) DAYS WHY AN
ORDER BARRING HIM FROM FILING ANY NEW COMPLAINT RELATING TO THE
TERMINATION OF HIS EMPLOYMENT WITH DEFENDANT SHOULD NOT BE ENTERED.
Plaintiff
is
advised
that
failure
to
file
an
affidavit
in
accordance with this Order to Show Cause will lead to the entry of
an order barring Plaintiff from filing any new complaint against
Defendant relating to the termination of his employment and the
Court will direct the Clerk of the Court to return to Plaintiff,
without filing, any such action.
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
11
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.
The
Clerk of the Court is DIRECTED to mail a copy of this Order to Show
Cause to the Plaintiff at his last known address and to file proof
of such service with the Court.
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.
Plaintiff is ORDERED TO SHOW CAUSE BY FILING AN AFFIDAVIT
WITHIN THIRTY (30) DAYS WHY AN ORDER BARRING HIM FROM FILING ANY
NEW COMPLAINT RELATING TO THE TERMINATION OF HIS EMPLOYMENT WITH
DEFENDANT SHOULD NOT BE ENTERED. Plaintiff is advised that failure
to file an affidavit in accordance with this Order to Show Cause
will lead to the entry of an order barring Plaintiff from filing
any new complaint against Defendant relating to the termination of
his employment and the Court will direct the Clerk of the Court to
return to Plaintiff, without filing, any such action. Plaintiff is
cautioned that, should he file another action challenging the
termination of his employment with Defendant, it is within the
12
Court’s authority to consider imposing sanctions upon him pursuant
to Federal Rule of Civil Procedure 11.
The Clerk of the Court is DIRECTED to mail a copy of this
Order to Show Cause to Plaintiff at his last known address and to
file proof of such service with the Court.
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).
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: November
29 , 2016
Central Islip, New York
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