Unum et al v. Department of Taxation and Finance et al

Filing 14

ORDER adopting Report and Recommendations re 10 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Treece's Report-Recommendation and Order (Dkt. No.10) is ADOPTED in its entirety for the reasons stated therein; and the Court further ORDERS that this action is DISMISSED with prejudice; and the Court further ORDERS that the Clerk of the Court shall close this case; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Order on plaintiffs by regular mail. Signed by U.S. District Judge Mae A. D'Agostino on 8/7/14. [copy mailed to plaintiff] (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
MAZZEO UNUM,
INTERFAITH PARTNERSHIP FOR
THE HOMELESS INCORPORATED,
Plaintiffs,
vs.

1:13-cv-586
(MAD/RFT)

DEPARTMENT OF TAXATION AND
FINANCE, INTERNAL REVENUE
SERVICE, DEPARTMENT OF BANKING
DEPARTMENT OF LABOR,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

MAZZEO UNUM
171-176 Sheridan Ave., Apt. #6
Albany, New York 12210
Plaintiff pro se
INTERFAITH PARTNERSHIP FOR
THE HOMELESS INCORPORATED
176 Sheridan Ave.
Albany, New York 12210
Plaintiff pro se

Mae A. D'Agostino, U.S. District Judge:
ORDER
Plaintiff Mazzeo Unum commenced this action in May 2013 against several New York
State government entities, purporting to allege violations of the Americans with Disabilities Act.
See Dkt. No. 1. The instant complaint is the latest in a string of unintelligible and incoherent
pleadings filed by Plaintiff Unum in this District. As with each of the other complaints, several of
which have been reviewed by the undersigned, here Plaintiff Unum has failed to plausibly allege

any entitlement to relief and this action is accordingly dismissed with prejudice. In addition, in
light of Plaintiff Unum's robust history of frivolous filings, he will be prohibited from making any
future filings in this District without prior leave of the Chief Judge.
In a July 8, 2014, Report-Recommendation and Order, Magistrate Judge Randolph F.
Treece granted Plaintiff Unum's application to proceed in forma pauperis and reviewed the
sufficiency of the complaint. See Dkt. No. 10. Magistrate Judge Treece observed that "the
entirety of the Complaint and Exhibits are nothing short of nonsensical and unintelligible
verbiage by which the Court can discern no rational relationship between the named Defendants
and any purported wrongs committed against Plaintiffs." Id. at 6. Magistrate Judge Treece first
found that Plaintiff Interfaith Partnership for the Homeless Incorporated ("IPH") was a
corporation and, as such, could not represent itself (or be represented by non-attorney Plaintiff
Unum) in federal court. Accordingly, Magistrate Judge Treece recommended dismissing Plaintiff
IPH. Id. In reviewing the sufficiency of the complaint as to Plaintiff Unum, Magistrate Judge
Treece found it "at best, disjointed and confusing." Id. at 7. After "assiduously and painstakingly
reviewing the entire Complaint," Magistrate Judge Treece found that it did not comply with the
pleading requirements under the Federal Rules of Civil Procedure and recommended dismissal.
Id. at 7-8. While noting the policy in this Circuit of affording pro se litigants an opportunity to
amend their pleadings prior to outright dismissal, Magistrate Judge Treece nevertheless
recommended that this action be dismissed without leave to amend. Id. at 8. In addition,
Magistrate Judge Treece undertook a thorough and comprehensive review of each of the prior
cases filed by Plaintiff Unum in this district, all of which (save one) have been dismissed as
frivolous and incomprehensible. See id. at 9-18. As such, Magistrate Judge Treece
"recommend[ed] in addition to dismissal of the within case that, pursuant to 28 U.S.C. 1651(a)
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and the Court's inherent authority to control and manage its own docket so as to prevent abuse in
its proceedings, Plaintiff [Unum] be prohibited from making any future filings in this District
without prior leave of the Chief Judge." Id. at 18. Neither plaintiff has not objected to the
Report-Recommendation.
When a party files specific objections to a magistrate judge's report-recommendation, the
district court makes a "de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However,
when a party files "[g]eneral or conclusory objections or objections which merely recite the same
arguments [that he presented] to the magistrate judge," the court reviews those recommendations
for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16,
2011) (citations and footnote omitted). After the appropriate review, "the court may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1).
A litigant's failure to file objections to a magistrate judge's report and recommendation,
even when that litigant is proceeding pro se, waives any challenge to the report on appeal. See
Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule, a party's failure to
object to any purported error or omission in a magistrate judge's report waives further judicial
review of the point" (citation omitted)). A pro se litigant must be given notice of this rule; notice
is sufficient if it informs the litigant that the failure to timely object will result in the waiver of
further judicial review and cites pertinent statutory and civil rules authority. See Frank v.
Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small v. Sec'y of Health and Human Servs., 892 F.2d
15, 16 (2d Cir. 1989) (holding that a pro se party's failure to object to a report and
recommendation does not waive his right to appellate review unless the report explicitly states
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that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1)
and Rules 72, 6(a), and former 6(e) of the Federal Rules of Civil Procedure).
Having reviewed Magistrate Judge Treece's Report-Recommendation and Order and the
applicable law, the Court finds that Magistrate Judge Treece correctly recommended that the
Court should dismiss Plaintiff's complaint. A review of Plaintiff's complaint makes clear that it
suffers from several deficiencies. Ordinarily, a court should not dismiss a complaint filed by a
pro se litigant without granting leave to amend at least once "when a liberal reading of the
complaint gives any indication that a valid claim might be stated." Branum v. Clark, 927 F.2d
698, 704-05 (2d Cir. 1991). An opportunity to amend, however, is not required where "the
problem with [plaintiff's] causes of action is substantive" such that "better pleading will not cure
it." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation omitted). As the Second
Circuit has explained, "[w]here it appears that granting leave to amend is unlikely to be
productive, . . . it is not an abuse of discretion to deny leave to amend." Ruffolo v. Oppenheimer
& Co., 987 F.2d 129, 131 (2d Cir. 1993). Here, amendment would be futile. Reading the
complaint liberally, there is no "suggest[ion] that the plaintiff has a claim that [he] has
inadequately or inartfully pleaded and . . . should therefore be given a chance to reframe." Cuoco,
222 F.3d at 112. Moreover, the Court agrees with Magistrate Judge Treece that Plaintiff Unum is
"a pestilent litigator who can only be estopped from pursuing frivolous litigation by sanctions
more austere than dismissing his actions." Dkt. No. 10 at 18. As such, Magistrate Judge Treece
correctly recommended that the Court dismiss the complaint with prejudice and that Plaintiff
Unum "or any other derivative aliases, be permanently enjoined from filing any other cases in this
District without leave of the Chief District Judge." Id. at 19.
Accordingly, the Court hereby
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ORDERS that Magistrate Judge Treece's Report-Recommendation and Order (Dkt. No.
10) is ADOPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that this action is DISMISSED with prejudice; and the Court further
ORDERS that the Clerk of the Court shall close this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on plaintiffs by
regular mail.
IT IS SO ORDERED.
Dated: August 7, 2014
Albany, New York

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