Keyes v. The Department of Social Services et al

Filing 6

MEMORANDUM & ORDER denying 5 Motion to Appoint Counsel; For the reasons set forth above, Plaintiff's New Complaints are sua sponte DISMISSED WITHOUT PREJUDICE pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute. Plain tiff is cautioned that similar, future complaints will not be tolerated. If Plaintiff persists in this course of action, the Court will require, under the All Writs Act, that Plaintiff first seek leave of Court before submitting such filings. Given the DISMISSAL of the New Complaints, Plaintiff's application for the appointment of pro bono counsel to represent her in 17-CV-1784 is DENIED. 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 CLOSE these cases and to mail a copy of this Order to the pro se Plaintiff. So Ordered by Judge Joanna Seybert on 6/30/2017. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
KEYSEAN L. KEYES,
Plaintiff,
MEMORANDUM & ORDER
17-CV-1783(JS)(SIL)

-againstNASSAU COUNTY POLICE DEPARTMENT,
et al.,
Defendants.
----------------------------------X
KEYSEAN L. KEYES,
Plaintiff,
-against-

17-CV-1784(JS)(SIL)

THE DEPARTMENT OF SOCIAL SERVICES,
et al.,
Defendants.
----------------------------------X
APPEARANCES
For Plaintiff:
Keysean L. Keyes, pro se
P.O. Box 1812
Mineola, NY 11501
For Defendants:

No appearances.

SEYBERT, District Judge:
Pro se plaintiff Keysean L. Keyes (“Plaintiff”) filed two
more Complaints in this Court on March 22, 2017 and March 23, 2017
(the “New Complaints”).

Plaintiff has a long history of frivolous

litigation in this Court and has already had at least three in
forma pauperis complaints sua sponte dismissed for failure to state
a claim upon which relief may be granted pursuant to 28 U.S.C. §§
1915(e)(2)(B)(ii), 1915A(b)(1).

See Keyes v. Nassau Cty. Ct. and

Supreme Ct., et al., 16-CV-4016; Keyes v. Sullivan, 16-CV-4989;
Keyes v. Nassau Cty. Sheriff’s Dep’t, et al., 16-CV-5482; Keyes v.
Nassau Cty. Corr. Facility, et al., 16-CV-5483; Keyes v. The Dist.
Att’y, et al., 16-CV-5484; Keyes v.

The People of the State of

N.Y., 16-CV-5485; and Keyes v. Sullivan, 16-CV-5486 all of which
have been dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b).1

On June 13, 2017, Plaintiff filed an incomprehensible

application for the appointment of pro bono counsel to represent
her in 17-CV-1784.

1

The Court notes that Plaintiff filed an additional fourteen
(14) in forma pauperis complaints during the period October 5,
2016 through November 10, 2016. (See Keyes v. Armor Corr.
Health, et al., 16-CV-5747; Keyes v. Nassau Cty. Ct., et al., 16CV-5752; Keyes v. Fed. Dist. Ct., E.D.N.Y., et al., 16-CV-5753;
Keyes v. Michael Sposato, et al., 16-CV-5755; Keyes v. Judge
David Sullivan, et al., 16-CV-5757; Keyes v. Michael Sposato, et
al., 16-CV-5990; Keyes v. Nassau Cty. Sheriff’s Dep’t, et al.,
16-CV-5991; Keyes v. Nassau Cty. Sup. Ct., et al., 16-CV-5992;
Keyes v. Edward Mangano, 16-CV-5993; Keyes v. David Sullivan, 16CV-5994; Keyes v. Nassau Cty. Ct., et al., 16-CV-5995; Keyes v.
Judge David Sullivan, et al., 16-CV-6226; Keyes v. Judge David
Sullivan, et al., 16-CV-6310; and Keyes v. The Dep’t of Soc.
Svcs., 16-CV-6311). By Order dated December 30, 2016 in each
case, the Court denied Plaintiff’s applications to proceed in
forma pauperis because Plaintiff had already accumulated three
strikes and was thus barred from proceeding in forma pauperis.
Each case has since been dismissed for failure to prosecute
because Plaintiff did not remit the Court’s filing fee. See
Order, dated March 28, 2017 in each of the above cases.
2

I.

The New Complaints are Dismissed Without Prejudice for Failure
to Prosecute Pursuant to Federal Rule of Civil Procedure 41(b)
The Prison Litigation Reform Act, 28 U.S.C. § 1915(g)

(“PLRA”), provides:
In no event shall a prisoner bring a civil
action or appeal a judgment in a civil action
or proceeding [in forma pauperis] if the
prisoner has, on 3 or more prior occasions,
while
incarcerated
or
detained
in
any
facility, brought an action or appeal in a
court of the United States that was dismissed
on the grounds that it is frivolous,
malicious, or fails to state a claim upon
which relief may be granted, unless the
prisoner is under imminent danger of serious
physical injury.
However, the PLRA’s three-strikes provision only applies
to complaints filed by plaintiffs while they are incarcerated.
Coleman v. Tollefson, --- U.S. ----, 135 S. Ct. 1759, 1761, 191 L
Ed. 803 (2015) (“[A] special ‘three strikes’ provision prevents a
court from affording in forma pauperis status where the litigant is
a prisoner and he or she ‘has, on 3 or more prior occasions, while
incarcerated . . ., brought an action or appeal in a court of the
United

States

that

was

dismissed

on

the

grounds

that

it

is

frivolous, malicious, or fails to state a claim upon which relief
may be granted.’”) (emphasis added; quoting 28 U.S.C. § 1915(g)).
Here, Plaintiff has provided a P.O. Box address in
Mineola, New York and does not allege that she was incarcerated at

3

th3

time

the

New

Complaints

were

filed.2

Accordingly,

notwithstanding the fact that Plaintiff has already accumulated
three-strikes under the PLRA, she is not barred from filing the New
Complaints in forma pauperis.
However, Plaintiff did not remit the Court’s filing fees,
nor did she file applications to proceed in forma pauperis for the
New Complaints.

Accordingly, by Notice of Deficiency dated March

29, 2017 in each case (the “Notices”), Plaintiff was instructed to
either remit the $400.00 filing fee for each case or to complete
and return the enclosed applications to proceed in forma pauperis
within fourteen (14) days from the date of the Notices.

To date,

the Court’s Notices have not been returned and Plaintiff has not
paid the fees, or filed the applications to proceed in forma
pauperis, nor has she otherwise communicated with the Court about
the New Complaints, other than her June 13, 2017 filing of an
incomprehensible

application

for

the

counsel to represent her in 17-1784.

appointment

of

pro

bono

Accordingly, Plaintiff’s New

Complaints are DISMISSED WITHOUT PREJUDICE pursuant to Federal Rule
of Civil Procedure 41(b) for failure to prosecute.

2

Although Plaintiff indicates that her “[p]lace of present
confinement” is “100 Carmen Street” at paragraph II of the
Complaint in Docket Number 17-CV-1783, given that she also
included a residential and P.O. Box address, and appeared in
person to file the Complaint, the Court finds that Plaintiff was
not incarcerated at the time of the filing of this Complaint.
4

II.

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 (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 actions, together with her twenty-one
(21) prior Complaints filed in 2016 (see supra 1-2 and at note 1),
suggest that Plaintiff may file a new, frivolous in forma pauperis
complaint.

However, Plaintiff’s continued filing of incoherent,

frivolous in forma pauperis complaints is an abuse of the judicial
5

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) (internal quotation marks and citation omitted)
(alteration omitted).
The Court is especially cognizant of Plaintiff’s pro se
status and has considered her New 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 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.
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 she file another incoherent, frivolous action, it is within
the Court’s authority to consider imposing sanctions upon her. See
6

FED. R. CIV. P. 11.
CONCLUSION
For

the

reasons

set

forth

above,

Plaintiff’s

New

Complaints are sua sponte DISMISSED WITHOUT PREJUDICE pursuant to
Federal Rule of Civil Procedure 41(b) for failure to prosecute.
Plaintiff is cautioned that similar, future complaints will not be
tolerated.

If Plaintiff persists in this course of action, the

Court will require, under the All Writs Act, 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.

Further, the Court may impose

sanctions against Plaintiff under Rule 11 of the Federal Rules of
Civil Procedure.

Given the DISMISSAL of the New Complaints,

Plaintiff’s application for the appointment of pro bono counsel to
represent her in 17-CV-1784 is DENIED.
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 directed to CLOSE these cases
7

and to mail a copy of this Order to the pro se Plaintiff.

SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: June
30 , 2017
Central Islip, New York

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