Wang v. Stony Brook University Hospital

Filing 7

MEMORANDUM & ORDER to Show Cause: SO ORDERED that Plaintiff's application to proceed in forma pauperis, (Docket Entry 2), is GRANTED, however the Complaint is sua sponte DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e) (2)(B)(ii). G iven the dismissal of the Complaint, the Motion, (Docket Entry 6), is DENIED. 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 HIS 2004 DISMISSAL FROM THE UNIVERSITY RESIDENCY TRAINING PROGRAM 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 ag ainst Defendant relating his 2004 dismissal from the residency training program 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 his 2 004 dismissal from the SUNY residency training program, it is within the Court's authority to consider imposing sanctions upon him pursuant to Federal Rule of Civil Procedure 11. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that a ny 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. As noted supra n.1, the Clerk of the Court is directed to update the docket to correctly reflect all the defend ants listed in the caption. 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. Ordered by Judge Joanna Seybert on 6/11/2018. (CM to pro se plaintiff) (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
MICHAEL WANG,
Plaintiff,

MEMORANDUM & ORDER
TO SHOW CAUSE
18-CV-2154(JS)(ARL)

-againstSTATE OF NEW YORK; STONY BROOK
UNIVERSITY HOSPITAL; OFFICE OF
PROFESSIONAL MEDICAL CONDUCT; NEW
YORK STATE DEPARTMENT OF HEALTH;
OFFICE OF NEW YORK STATE ATTORNEY
GENERAL; SUSAN M. CONNOLLY,
ASSISTANT ATTORNEY GENERAL OF NEW
YORK STATE; LORI L. PACK, ASSISTANT
ATTORNEY GENERAL OF NEW YORK STATE;
TONI E. LOGUE, ASSISTANT ATTORNEY
GENERAL OF NEW YORK STATE; EDUCATION
COMMISSION FOR FOREIGN MEDICAL
GRADUATES; UNITED STATES MEDICAL
LICENSE EXAMINATION SECRETARIAT;
and MORGAN, LEWIS & BOCKI[U]S,1

Defendants.
----------------------------------X
APPEARANCES:
For Plaintiff:
Michael Wang, pro se
5 Patriot Court
Stony Brook, NY 11790
For Defendants:

No appearances.

SEYBERT, District Judge:
On

April

11,

2018,

pro

se

plaintiff

Michael

Wang

(“Plaintiff”) filed another Complaint pursuant to 42 U.S.C. §§ 1981
(“Section 1981”), 1983 (“Section 1983”), 1985 (“Section 1985”), and
1986 (“Section 1986”), and Title VII of the Civil Rights Act of
1964,

1

as

codified,

(“Title

VII”),

as

codified

in

42

U.S.C.

The Clerk of the Court is directed to update the docket to
correctly reflect all the defendants listed in the caption.

§§ 2000e, accompanied with an application to proceed in forma
pauperis. On May 14, 2018, Plaintiff filed a Motion (“Motion”) for
a Settlement Conference.

(See Mot., Docket Entry 6.)

Plaintiff’s application to proceed in forma pauperis,
(Docket Entry 2), is GRANTED.

However, for the reasons set forth

below, the Complaint is sua sponte DISMISSED WITH PREJUDICE for
failure

to

state

a

§ 1915(e)(2)(B)(ii).

claim

for

relief

pursuant

to

28

U.S.C.

Given the dismissal of the Complaint, the

Motion is DENIED.
BACKGROUND
Plaintiff

is

no

stranger

2

to

this

Court.2

This

is

Since 2002, Plaintiff has filed seven (7) in forma pauperis
Complaints relating to the same facts and against many of the
same Defendants. All of the prior cases have been dismissed.
See Wang v. State Univ. of N.Y. at Stony Brook, et al., 470 F.
Supp. 2d 178 (E.D.N.Y. 2006) (granting Defendants’ summary
judgment motions and dismissing claims in their entirety), aff’d
217 F. App’x 24 (2d Cir. 2007); Wang v. Office of Prof’l Med.
Conduct, et al., 05-CV-0845, Mem. & Order dated Feb. 23, 2006
(granting Defendants’ motions to dismiss) aff’d in part and
vacated in part by 06-1092, 06-1158 (2d Cir. Mar. 28, 2007) and
dismissed on remand by Mem. & Order dated Dec. 7, 2007, aff’d by
Mandate (2d Cir. Jan. 4, 2010); Wang v. U.S. Med. License
Examination Secretariat, 05-CV-1861, Mem. & Order dated Feb. 23,
2006 (granting Defendants’ motions to dismiss), aff’d by Mandate,
06-CV-1084 (2d Cir. Jan. 23, 2007); Wang v. Educ. Comm’n for
Foreign Med. Graduates, 05-CV-1862, 2009 WL 3083527 (E.D.N.Y.
Sept. 17, 2009) (granting Defendant’s summary judgment motion and
dismissing claims in their entirety); Wang v. Logue, 08-CV-0383,
2009 WL 8711620 (E.D.N.Y. Jun. 10, 2009) (sua sponte dismissing
complaint with prejudice for failure to allege a plausible claim
for relief); Wang v. Miller, et al., 09-CV-0183, aff’d 356 F.
App’x 516, 518 (2d Cir. 2009) (affirming dismissal of the
complaint and “reinforc[ing] the District Court’s warning to Wang
regarding duplicative lawsuits. . . . We join the District Court
in cautioning Wang that since his repeated filings relate to
2

Plaintiff’s seventh civil action challenging his discharge from his
medical residency training at Stony Brook University Hospital (the
“University”) in 2001. Like his earlier complaints, Plaintiff, who
is of Asian descent born in the People’s Republic of China, was a
medical resident until the University terminated his residency in
or

about

2001,

allegedly

because

there

regarding Plaintiff’s medical credentials.

were

some

questions

(Compl., Docket Entry

1, at 3-5.)
In May 2004, the Education Commission for Foreign Medical
Graduates (“ECFMG”) revoked Plaintiff’s ECFMG Certificate. (Compl.
at 6-7.)

At some point, the University reported to the New York

State Department of Health, Office of Professional Medical Conduct
(“OPMC”)

that

(Compl. at 6.)

Plaintiff

had

fraudulently

practiced

medicine.

The OPMC then reported the alleged fraud to the

National Practitioner Data Bank, which prevented Plaintiff from
obtaining a medical position.

(Compl. at 6.)

Plaintiff subsequently filed numerous lawsuits against
various entities, including the University, OPMC, and ECFMG.

See

Wang v. State Univ. of N.Y. Health Sciences Ctr. at Stony Brook,

similar facts and issues, some of which have already been
dismissed with prejudice, further filings of any complaint or any
appeal based on the same facts and issues may result in the
issuance of an order prohibiting Wang from filing any future
lawsuits in this Court without first obtaining leave of the
Court. Failure to abide by the terms of this Order, or that of
the District Court, could result in the imposition of
sanctions.”).
3

02-CV-5840(JS)(ARL); Wang v. Office of Prof’l Medical Conduct, N.Y.
State Dep’t of Health, 05-CV-0845 (JS)(ARL); Wang v. Educ. Comm’n
for Foreign Med. Graduates, 05-CV-1862 (JS)(ARL).

Plaintiff also

filed two complaints against defendant Toni E. Logue (“Logue”),
Assistant Attorney General of New York State.

See Wang v. Logue,

08-CV-0383(JS)(ARL) and Wang v. Miller, et al., 09-CV-0183(JS)(ARL)
(the “Logue Complaints”).

In the Logue Complaints, Plaintiff

alleged that Logue, who represented OPMC in Plaintiff’s earlier
actions, made false statements regarding Plaintiff’s qualifications
to practice medicine. The first Logue Complaint was dismissed with
prejudice for failure to state a claim and on immunity grounds.
The second Logue Complaint was dismissed with prejudice as barred
by res judicata.

(See Feb. 1, 2009 Mem. & Order in 09-CV-

0183(JS)(ARL), Docket Entry 6, (the “Order” (a copy of the Order is
annexed hereto)).

The Order also included a warning to Plaintiff

that a filing injunction may be imposed if he continues the
repeated filing of complaints that relate to similar facts and
issues.

(See Order at 9-10.)

The Order cautioned Plaintiff that,

if he continues this course of conduct, the Court may issue an
“order prohibiting him from filing any future lawsuits in this
Court without first obtaining leave of Court.” (Order at 10.) The
Court further ordered that Plaintiff “must annex a copy of this
Order to any complaint, petition, or pleading he seeks to file in
the United States District Court for the Eastern District of New
4

York henceforth.”

(Order at 10.)

Plaintiff was also warned that

his “failure to abide by the terms of this Order could result in
the imposition of sanctions.”

(Order at 10.)

Undeterred, on April

11, 2018, Plaintiff filed his

seventh Complaint concerning these issues and, notwithstanding the
Court’s clear instruction, Plaintiff did not annex a copy of the
Order to his most recent Complaint.
The Seventh Complaint
Like

Plaintiff’s

earlier

complaints,

the

Seventh

Complaint also seeks to challenge his 2001 dismissal from the
University residency training program. Plaintiff again claims that
the University, Logue, and OPMC “conspired to deprive plaintiff
[his] right to seek employment.

OPMC reported falsely to National

Dat[a] Bank that [plaintiff] had practice medicine fraud. . . .”
(Seventh Compl. at 7.)

Plaintiff further alleges that, in June

2004, “co-conspirator SUNY, Logue, and ECFMG conspired to deprive
[plaintiff’s] right to have medical education.
revoked [plaintiff’s] ECFMG[ ] Certificate.”
7.)

ECFMG illegally

(Seventh Compl. at

Given that Plaintiff seeks to relitigate claims already

decided by the Court, see

supra

at 3-4, Plaintiff’s Seventh

Complaint is again precluded by the doctrines of res judicata and
collateral estoppel for the reasons that follow.
DISCUSSION
I.

In Forma Pauperis Application
5

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

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).
6

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

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)

(internal quotation marks and citations omitted). A district court
has not only the power but the obligation to dismiss complaints sua
7

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.
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 is readily apparent, Plaintiff’s claims against
Defendants arise out of the same nucleus of facts that he alleged
in his six prior federal complaints.

In fact, his claims here are

exactly the same as the claims he brought in 2002, 2005, 2008 and
2009, which were all dismissed with prejudice on the merits.
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
claims

cannot

proceed.

Accordingly,

the

federal

claims

are

precluded and the Complaint is DISMISSED WITH PREJUDICE pursuant to
8

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
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 action, together with docket numbers
02-CV-5840, 05-CV-0845, 05-CV-1861, 05-CV-1862, 08-CV-0383, and 09CV-0183, suggest that Plaintiff may file a new action again
relating to his 2004 dismissal from the University residency
training

program.

Plaintiff’s
9

continued

filing

of

in

forma

pauperis complaints relating to this issue 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.” Lau v. Meddaugh, 229 F. 3d
121, 123 (2d Cir. 2000) (internal quotation marks and citation
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 relating to his 2004 dismissal from the University
residency training program 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 HIS 2004 DISMISSAL FROM THE UNIVERSITY RESIDENCY
TRAINING PROGRAM 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
10

filing any new complaint relating to his 2004 dismissal from the
UNIVERSITY residency training program and 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
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 Plaintiff at his last known address and to docket proof of
such service.
CONCLUSION
For the reasons set forth above, Plaintiff’s application
to proceed in forma pauperis, (Docket Entry 2), 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 of the Complaint,
the Motion, (Docket Entry 6), is DENIED.

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 HIS
2004 DISMISSAL FROM THE UNIVERSITY RESIDENCY TRAINING PROGRAM
SHOULD NOT BE ENTERED.

Plaintiff is advised that failure to file
11

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 his 2004 dismissal from the
residency training program 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 his 2004
dismissal from the SUNY residency training program, it is within
the Court’s authority to consider imposing sanctions upon him
pursuant to Federal Rule of Civil Procedure 11.
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).
As noted supra n.1, the Clerk of the Court is directed to
update the docket to correctly reflect all the defendants listed in
the caption.
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.
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: June
11 , 2018
Central Islip, New York
12