Dixon v. Minglon et al

Filing 10

MEMORANDUM & ORDER granting 4 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 for f ailure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). Given the dismissal of Plaintiff's federal claims, the Court declines to exercise supplemental jurisdiction over any remaining state laws claims Plaintiff may have and any such claims are thus DISMISSED WITHOUT PREJUDICE. 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 directed to mail a copy of this Order to Plaintiff and to mark this case CLOSED.So Ordered by Judge Joanna Seybert on 8/18/2017. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
THOMAS DIXON,
Plaintiff,
-against-

MEMORANDUM & ORDER
17-CV-1195(JS)(AKT)

BERNADETTE MINGLON; KIM ROGNON,
Ronkonkoma Train Clerk #29923;
DETECTIVE RICHARD MATTERA Shield
#1009; MTA POLICE SERGEANT O’LEARY
SEAN, MTA Shield #2188; P.O. FINTER,
MICHAEL Shield #2084; L.I.R.R.
CLEANER JOSEPH VEZZA, IBM #23513;
P.O. RINALDI GARY, Shield #312;
MTA POLICE STEVEN KENNEY, Shield
#2127; DETECTIVE KIRSCH ALLEN,
#K-9-17; MTA PANNEBACKER DAVID,
Shield #2195; CAPTAIN BOYLE N.;
MTA P.O. SHERIDAN PATRICK Shield
#2247; LIEUTENANT LASKOWITZ; and
SGT. CONGRO RICHARD, Shield #333;
Defendants.
----------------------------------X
APPEARANCES
For Plaintiff:
Thomas Dixon, pro se
13-A-3136
Sullivan Correctional Facility
P.O. Box 116
Fallsburg, NY 12733-0116
For Defendants:

No appearances.

SEYBERT, District Judge:
On January 30, 2017, incarcerated pro se plaintiff Thomas
Dixon (“Plaintiff”) filed a Complaint pursuant to 42 U.S.C. § 1983
(“Section 1983”) in the United States District Court for the
Western District of New York, together with an application to
proceed in forma pauperis, against Bernadette Minglon (“Minglon”);
Kim Rognon, Ronkonkoma Train Clerk #29923 (“Rognon”); Detective

Richard Mattera, Shield #1009 (“Det. Mattera”); MTA Police Sergeant
Sean O’Leary, MTA Shield #2188 (“Sgt. O’Leary”); P.O. Michael
Finter, Shield #2084 (P.O. Finter”); L.I.R.R. Cleaner Joseph Vezza,
IBM

#23513

(“Vezza”);

P.O.

Gary

Rinaldi,

Shield

#312

(“P.O.

Rinaldi”); MTA Police Steven Kenney, Shield #2127 (“P.O. Kenney”);
Detective Allen Kirsch, #K-9-17 (“Det. Kirsch”); MTA P.O. David
Pannebacker, Shield #2195 (“P.O. Pannebacker”); Captain N. Boyle
(“Capt. Boyle”); MTA P.O. Patrick Sheridan, Shield #2247 (“P.O.
Sheridan”);
Richard

Lieutenant

Congro,

“Defendants”).

Shield

Laskowitz
#333

(“Lt.

(“Sgt.

Laskowitz”);

Congro”

and

and

Sgt.

collectively

By Order dated February 8, 2017, Judge Charles J.

Siragusa transferred the Complaint to the United States District
Court for the Eastern District of New York, and, on March 2, 2017,
it was assigned to the undersigned.
Upon

review

of

the

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 fee.

See 28 U.S.C. § 1915(a)(1).

Therefore,

Plaintiff’s request to proceed in forma pauperis is GRANTED.
However, for the reasons that follow, the Complaint is sua sponte
DISMISSED WITH PREJUDICE for failure to state a claim pursuant to
28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).
BACKGROUND
Plaintiff is no stranger to this Court.
2

On July 13,

2015, Plaintiff filed a Complaint (“Dixon I”) in this Court against
largely

the

same

Defendants

as

the

instant

matter

alleging

substantially similar claims arising from the same event.
I, Case Number 15-CV-4282(JS)(AKT).)

(Dixon

Dixon I was dismissed with

prejudice for failure to state a claim pursuant to 28 U.S.C. §§
1915(e)(2)(B)(ii), 1915A(b)(1). (See Dixon I, Mem. & Order Nov. 5,
2015, Docket Entry 12.)

Plaintiff filed a Notice of Appeal on

December 10, 2015, and by Mandate dated March 8, 2016, the appeal
was dismissed.
The

(See Dixon I, Mandate, Docket Entry 17.)
instant

Complaint

again

seeks

to

challenge

Plaintiff’s underlying state court criminal conviction and also now
challenges the dismissal of Dixon I.

Plaintiff alleges that the

dismissal of Dixon I, including the appeal, was “unfair.”
at 5.)

(Compl.

Plaintiff also claims that he was “uncomfortable” with

“Judge A. Kathleen A. Tomlinson who kept denying me my appeals” and
“protected another Judge Barbara Kahn who sentence[d] me to a
sentence thats not in the Penal Law . . . .”

(Compl. at 5-6.)1

As a result of the foregoing, Plaintiff claims to now take “psyche
medication because its very hard for me to sleep at night”, seeks

1

The Court notes that, although Plaintiff does not name Judges
Tomlinson or Kahn as defendants, given that Plaintiff seeks to
challenge actions undertaken by them in their respective judicial
functions, any claims against these judges would be barred by
absolute judicial immunity. Mireles v. Waco, 502 U.S. 9, 11–12,
112 S. Ct. 286, 116 L. Ed. 2d 9 (1991) (Judges have absolute
immunity from suits for damages arising out of judicial acts
performed in their judicial capacities).
3

to recover a monetary award of $2.5 million, and requests that Det.
Mattera be fired.

(Compl. at 6.)
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
4

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).

III.

Section 1983
Section 1983 provides that
[e]very person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes
to be subjected, any citizen of the United
States . . . to the deprivation of any rights,
privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured . . . .

42 U.S.C. § 1983; accord Rehberg v. Paulk, 566 U.S. 356, 361, 132
S. Ct. 1497, 1501–02, 182 L. Ed. 2d 593 (2012).
under

Section

1983,

a

plaintiff

must

To state a claim

“‘allege

that

(1)

the

challenged conduct was attributable at least in part to a person
who was acting under color of state law and (2) the conduct
deprived the plaintiff of a right guaranteed under the Constitution
of the United States.’”

Rae v. Cty. of Suffolk, 693 F. Supp. 2d
5

217, 223 (E.D.N.Y. 2010) (quoting Snider v. Dylag, 188 F.3d 51, 53
(2d Cir. 1999)).
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) (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
6

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 the Court can best discern, Plaintiff’s claims
against Defendants arise out of the same nucleus of facts that he
alleged in Dixon I and which were dismissed with prejudice on the
merits. See, e.g., Berrios v. N.Y. City Hous. Auth., 564 F.3d 130,
134 (2d Cir. 2009) (“[D]ismissal for failure to state a claim
[under section 1915(e)(2)(B)(ii)] is a final judgment on the merits
and thus has res judicata effects”).

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 Section 1983 claims cannot proceed.

Indeed,

“[o]nce a final judgment has been entered on the merits of a case,
that judgment will bar any subsequent litigation by the same
parties, or those in privity with the parties, concerning the
transaction or series of connected transactions out of which the
first action arose.”

Manko v. Steinhardt, 12-CV-2964, 2012 WL
7

2367092, *2 (E.D.N.Y. June 20, 2012). Accordingly, the 1983 claims
against Defendants are precluded and the Complaint is DISMISSED
WITH PREJUDICE to 28 U.S.C. § 1915(e)(2)(B)(ii).2

Given the

dismissal of Plaintiff’s federal claims, the Court declines to
exercise supplemental jurisdiction over any remaining state laws
claims Plaintiff may have and any such claims are thus DISMISSED
WITHOUT PREJUDICE.

See 28 U.S.C. § 1367(c)(3); see also Carnegie

Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S. Ct. 614, 619,
98 L. Ed. 2d 720 (1988) (a federal court should generally decline
to exercise supplemental jurisdiction over state law claims if, as
is

the

case

here,

the

complaint

asserts

federal

question

jurisdiction but not diversity jurisdiction, and the complaint’s
federal claims are dismissed in the litigation’s ‘early stages.’).
IV.

Leave to Amend
Given

the

Second

Circuit’s

guidance

that

a

pro

se

complaint should not be dismissed without leave to amend unless
amendment would be futile, Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir. 2000), the Court has carefully considered whether leave to
amend is warranted here. Because the defects in Plaintiff’s claims
are substantive and would not be cured if afforded an opportunity

2

Insofar as Plaintiff seeks to challenge the fact and/or
duration of his confinement, the dismissal of his Complaint is
without prejudice to his filing a Petition seeking a Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254. Such a Petition has
strict timeliness and exhaustion requirements and the Court makes
no determination on those issues here.
8

to amend, leave to amend the Complaint is DENIED.
However, insofar as Plaintiff seeks to challenge his
state court criminal conviction, the dismissal of the instant
Complaint is WITHOUT PREJUDICE to his filing a Petition for a Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2254.

Plaintiff is

cautioned that a Petition for a Writ of Habeas Corpus has certain
prerequisites to filing in this Court, such as the exhaustion of
Constitutional claims in state 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 for failure to state a claim
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). Given the
dismissal of Plaintiff’s federal claims, the Court declines to
exercise supplemental jurisdiction over any remaining state laws
claims Plaintiff may have and any such claims are thus DISMISSED
WITHOUT PREJUDICE.
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).

9

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

SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:

August
18 , 2017
Central Islip, New York

10