Azkour v. Haouzi et al

Filing 302

OPINION AND ORDER re: 293 FIRST MOTION for Permanent Injunction Barring Plaintiff from Filing New Actions Against Defendants. filed by Frank Maucourt, Franck Macourt, Little Rest Twelve, Inc. For the reasons stated above, this case must be dismissed with prejudice. The Court has attempted to shepherd this case to a final disposition on the merits of Plaintiff's claim, at times declining to impose sanctions when they were obviously called for. But every act of indulgenc e toward Plaintiff is also an imposition on Defendants, their counsel, the Court, and the public, each of whom has a compelling interest in the orderly and respectful resolution of this action. There is a limit to what any court should be forced t o endure in the process of adjudicating a litigant's claim and, more importantly, to the tactics our system of justice must countenance. Plaintiff may not use the legal system to harass and disparage Defendants, their counsel, or the Court, an d the Court is convinced that proceeding with a trial in this action would only serve to demean this institution. Accordingly, IT IS HEREBY ORDERED THAT this action is dismissed with prejudice. The Clerk of Court is respectfully directed to close this case. SO ORDERED. (Signed by Judge Richard J. Sullivan on 1/18/2018) (rj)

of abusive conduct directed toward Defendants, their counsel, and the Court, and the record is
replete with the Court’s attempts to manage Plaintiff’s unruly behavior. 1 As far back as January
13, 2012, the Court issued an order in response to a “series of disturbing and increasingly erratic
letters” received from Plaintiff, in which Plaintiff made “numerous puzzling and at times
incoherent and rambling references to matters that ha[d] nothing to do with this litigation” and
included “an embedded video of a Tennessee state legislator discussing the Koran.” (Doc. No. 19
at 2.) In that order, the Court also addressed several “‘very disturbing and potentially threatening
email[s]’ sent by Plaintiff to Defendants personally and to their counsel.” (Id.) In one of those
emails, Plaintiff referred to Defendants as “coc******rs.” (Id. at 19). In another, he wrote, “I
KNOW YOU BELIEVE I AM COOCOO, BUT I AM NOT,” and “NOBODY IS GOING TO
ABUSE ME ANYMORE. I’D RATHER DIE, THAN BE ABUSED.” (Id. at 17.) The Court
directed Plaintiff “to refrain from any and all threatening and inappropriate communication with
Defendants’ counsel,” and warned Plaintiff that “the Court will have no choice but to consider
imposing sanctions against him” in the event that Plaintiff “is unwilling, or truly unable, to conduct
himself in an appropriate and rational manner . . . .” (Id. at 3.)
Unfortunately, Plaintiff’s harassing communications did not end. In the months that
followed, he continued to send letters to defense counsel containing “wild accusations” and
“insults,” such as one e-mail in which he wrote to defense counsel: “You must have peanuts in
your skull, instead of a brain. . . . You’re a retarded species. I have never seen your like in any
continent.” (April 29, 2012 Letter from Plaintiff.) Plaintiff also filed a series of frivolous motions,
including a motion to hold defense counsel in contempt of court (Doc. No. 52) and a motion to

1

Plaintiff also pursued a related case against the corporate defendant under the Fair Labor Standards Act (the “FLSA
action”). See Azkour v. Little Rest Twelve, Inc. et al., No. 10-cv-4132 (RJS). Although Plaintiff’s conduct during that
litigation was similarly abusive, prompting repeated warnings and even sanctions from the Court, the Court does not
include a full summary of that case here.

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sanction defendants for “unlawful acts of witness intimidation and subornation of perjury” (Doc.
No. 55). The Court concluded that these “repeated filings constitute[d] an abuse of the [Electronic
Case Filing (“ECF”)] system” and, in an order dated May 2, 2012, revoked Plaintiff’s ECF
account, ordered Plaintiff to “immediately cease all communication with Defendants’ counsel and
the Court that is not narrowly focused on the factual and legal issues properly before the Court”
(id. at 2), and warned that “[f]ailure to comply with this Order will result in sanctions being
imposed against Plaintiff” (id. at 3).
Around the same time in early 2012, Plaintiff filed a motion for the appointment of a
guardian ad litem in which he represented to the Court that he suffered from “mental disabilities.”
(Doc. No. 24.) The magistrate judge to whom the Court referred this case for general pretrial
supervision, Judge Fox, properly denied Plaintiff’s request, noting that there is “no necessary
relationship between mental incompetence of the sort that would warrant the appointment of a
legal representative and various forms of mental derangement or personality disorder that may
cause utterly bizarre and destructive conduct in litigation.” (Doc. No. 86 at 8 (quoting Ferrelli v.
River Manor Health Care Ctr., 323 F.3d 196, 203 (2d Cir. 2003) (internal quotation marks
omitted).) Even so, Plaintiff’s motion injected the recurring issue of his mental health into this
case. See generally Azkour v. Little Rest Twelve, No. 10-cv-4132 (RJS), 2017 WL 1609125, at *1
(S.D.N.Y. Apr. 28, 2017). Since then, Plaintiff has at times claimed to be mentally ill, suffering
from “several mental health disorders” including “Adjustment Disorder,” “Chronic Post Traumatic
Stress Disorder,” and “Major Depression Disorder” (Doc. No. 92 ¶ 121), while at other times he
has denied ever making those statements and attacked the underlying medical reports that he
himself submitted with his guardian ad litem request as false attempts to discredit him (see, e.g.,
Doc. No. 223; Doc. No. 351, No. 10-cv-4132 (“FLSA Doc. No.); Doc. No. 298 at 17:18–19 (“Dec.
18 Tr.”); Doc. No. 300 at 38:15–40:9 (“Jan. 4 Tr.”)).
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On October 7, 2013, Judge Fox denied Plaintiff’s request to file a fourth amended
complaint (Doc. No. 127), prompting Plaintiff to file a motion for reconsideration where he again
made insulting and potentially menacing comments directed toward defense counsel (Doc. No.
131). Among other things, Plaintiff described defense counsel as a “pretentious seventh grade
pupil” who “uses big words without knowing their meaning,” and claimed that he himself
possessed “skills that require federal security clearance,” a strange comment that in context caused
defense counsel unease. (Doc. No. 131 at 19, 20 n.12.) Plaintiff’s motion provoked the Court to
issue an order reminding Plaintiff that the Court had “already addressed in a previous order
Plaintiff’s inappropriate behavior,” warning that “if Plaintiff cannot abide by normal standards of
decorum, the Court must consider sanctions,” and ordering Plaintiff to show cause why he should
not be sanctioned for filing “a harassing submission.” (Doc. No. 133.) Thereafter, on April 2,
2014, the Court declined to sanction Plaintiff, but stressed that the order constituted his “last
warning” before sanctions would be imposed. (Doc. No. 164.) Indeed, the Court advised Plaintiff
that if he “ever again ma[de] any statement targeted towards Defendants’ counsel that could, in
any way, be construed as offensive or threatening, the Court [would] sanction Plaintiff $1,000.”
(Id.)
Just weeks later, on May 1, 2014, Plaintiff again violated the Court’s directive, this time in
his related FLSA action, by filing a submission in which he accused defense counsel of, among
other things, “lack[ing] the required sound judgment and mental capacity for an attorney to
perform his duty.” (FLSA Doc. No. 205.) The Court issued a second order to show cause, which
was met with an even more troubling response from Plaintiff, who accused the Court of “join[ing]
[defense] counsel in his foul play.” (FLSA Doc. No. 221.) Plaintiff went on to “question counsel’s
judgment . . . [and] this Court’s as well”; he also accused Defendants of perjury, accused the Court
of “bias and hostility,” and insisted that his offensive statements about defense counsel were
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factually accurate. (Id.) Plaintiff further maintained that he could not be sanctioned because the
Court had not yet made a finding of “bad faith.” (Id. at 11). In light of Plaintiff’s submissions,
the Court sanctioned Plaintiff $2,000 on June 2, 2014. (See FLSA Doc. No. 224.) The Court also
warned Plaintiff that future violations of this sort – in any “future legal filings” – would result in
sanctions of $5,000. (Id.)
Nevertheless, in light of the Second Circuit’s clear preference to resolve cases on the
merits, see Sec. & Exch. Comm’n v. Setteducate, 419 F. App’x 23, 24 (2d Cir. 2011), the Court –
and Judge Fox – continued to press forward in Plaintiff’s two cases. After granting Plaintiff partial
summary judgment with respect to liability in the FLSA action (FLSA Doc. No. 98), the Court
presided over a jury trial on the issue of damages in July 2014, at which time the jury awarded
Plaintiff twelve weeks of back pay and $50,000 in punitive damages (FLSA Doc. No. 279).
Following post-trial briefing, the Court denied Plaintiff’s motion for judgment as a matter of law
or, in the alternative, for a new trial and Defendants’ motion for judgment as a matter of law on
the issue of back pay. (FLSA Doc. No. 317.) However, in light of Plaintiff’s failure to put on any
evidence, the Court granted Defendants’ motion for judgment as a matter of law as to punitive
damages, an issue for which Plaintiff carried the burden of proof. (Id.) Plaintiff thereafter
appealed the Court’s rulings, which were affirmed by the Second Circuit. Azkour v. Little Rest
Twelve, Inc., 645 F. App’x 98, 100 (2d Cir.), cert. denied, 137 S. Ct. 390 (2016), reh’g denied,
137 S. Ct. 716 (2017).
In this case – the discrimination/retaliation action – Defendants moved for summary
judgment, which was rejected by Judge Fox in a report and recommendation that was ultimately
adopted by the Court. (Doc. Nos. 200, 224.) Nevertheless, before and after these rulings, Plaintiff
persisted in making ad hominem attacks against defense counsel. For example, Plaintiff filed a
number of requests for this Court to sanction counsel (Doc. Nos. 207, 210), disqualify counsel
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(Doc. No. 213), and refer counsel to the District’s Grievance Committee for suspension or
disbarment (Doc. No. 215). Throughout these filings, Plaintiff made spurious and baseless
allegations against defense counsel, including that he had committed criminal acts of perjury (Doc.
No. 213) and engaged in bad-faith “scare tactics” and a “pattern of intimidation” against Plaintiff
(Doc. No. 210 at 5). Plaintiff’s malicious filings required the Court to issue an order, dated
November 18, 2015, denying Plaintiff’s numerous requests for sanctions and other relief. (Doc.
No. 217.) In that order, the Court also made the unambiguous finding that “Plaintiff’s papers
[were] clearly threatening, offensive, and abusive.” (Id. at 11–12.)

After explaining why

Plaintiff’s motions were frivolous, providing a lengthy catalog of Plaintiff’s pattern of abusive
tactics, and elaborating on the Court’s inherent power to sanction recalcitrant litigants, the Court
again put Plaintiff on firm notice that “future filings in violation of this Order may warrant
sanctions and other penalties, including dismissal of this action.” (Id. at 7–13.) Although the
Court declined to impose monetary sanctions at that time, the Court prohibited Plaintiff from filing
any “new submissions . . . without first seeking permission . . . and obtaining an order from the
Court authorizing the filing.” (Id.)
Remarkably, on February 4, 2016, the Court received a letter from defense counsel
notifying the Court of additional offensive statements made by Plaintiff in a letter submitted to the
Second Circuit pertaining to his related FLSA case, which was at that point on appeal. (Doc. No.
218.) Plaintiff’s submission, a request for oral argument, asserted that “not even a mentally
deficient person [could] accept Judge Sullivan’s rulings,” suggested that defense counsel had an
“unhinged mind,” called “into question the sanity of [Defendants] and their counsel,” and accused
defense counsel of “dirty tactics” and “vile attacks” against Plaintiff. (Doc. No. 218-1.) Because
Plaintiff’s submissions to the Second Circuit did not technically violate the Court’s previous order,
which only applied to submissions made by Plaintiff in “this action,” the Court declined to impose
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sanctions. (Doc. No. 219.) Nevertheless, the Court again reminded Plaintiff that the Court would
“not tolerate future frivolous submissions in this case that are primarily intended to harass and
intimidate Defendants, their counsel, or the Court.” (Id. at 2.)
In the fall of 2016, Plaintiff unleashed a new series of letters in the FLSA action that were
full of invective and clearly in violation of the Court’s earlier order requiring Plaintiff to obtain
the Court’s permission before filing any documents. (FLSA Doc. Nos. 349, 351, 352.) In one
such submission – ostensibly seeking reconsideration of the Court’s prior order denying his motion
for judgment as a matter of law – Plaintiff asserted that defense counsel had “maliciously used
[Plaintiff’s] alleged mental health condition to initiate criminal proceedings” against him and
“denied [Plaintiff] access to the courthouse building on false allegations of violence due to mental
illness.” (FLSA Doc. No. 351.) Among the targets of Plaintiff’s tirades was the physician who
signed a report attached to Plaintiff’s own motion for the appointment of a guardian ad litem, who
Plaintiff accused of “fraudulently” diagnosing him with “major depressive disorder,” “posttraumatic stress disorder,” “delusional disorder,” “alcohol disorder,” and “chronic paranoid
schizophrenia.” (Id. at 3; Doc. No. 224 at 25.) Notwithstanding the fact that Plaintiff himself had
introduced these documents into the record, Plaintiff now accused the physician of “fantastically
misrepresenting facts,” deliberately misdiagnosing him, and of being an “unhinged” individual.
(FLSA Doc. No. 351 at 3 & n.6.) In an order dated July 14, 2017, the Court noted that Plaintiff
had continued his pattern of making baseless accusations against third parties, and although the
Court again declined to impose sanctions on Plaintiff, it nevertheless reiterated that “no further
violations of its orders or threatening and insulting submissions of any kind” would be tolerated.
(Doc. No. 224.) The Court warned that failure to comply with the Court’s order would result in
dismissal of this action. (Id.) This marked the seventh time that Plaintiff had been threatened with

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sanctions, including the ultimate sanction of dismissal. (See Doc. Nos. 19, 60, 133, 164, 217, 219,
224.)
II. RECENT EVENTS
On October 24, 2017, the Court issued an order scheduling a trial in this matter to
commence on January 8, 2018. (Doc. No. 234.) Since then, Plaintiff has continued to flout the
Court’s unambiguous orders and make baseless accusations against the Court and defense counsel.
For example, after the deadline for pretrial submissions elapsed, Plaintiff filed more than a dozen
letters requesting various Court actions. Plaintiff also issued trial subpoenas to third parties
previously unidentified in this litigation, thus circumventing the pretrial order’s requirement that
all trial witnesses be identified by November 17, 2017. (Id. at 3.) The Court was forced to hold a
pretrial conference on December 18, 2017 – significantly earlier than originally scheduled –
because Plaintiff’s trial subpoenas not only surprised the Court and defense counsel, but also third
parties who were inappropriately served with such subpoenas.
At the December 18, 2018 conference, the Court ruled on the admissibility of the testimony
of the witnesses subpoenaed by Plaintiff and unambiguously instructed Plaintiff that he would not
be permitted to call expert witnesses who had not been properly noticed during discovery. (Dec.
18 Tr. 18:16–18 (“[W]e’re not going to be having experts in this case because nobody has noticed
any experts in this case.”) The Court also made clear that the parties were not “redoing discovery”
because “discovery is over.” (Id. 30:2.) Even so, Plaintiff insisted on pursuing the issue further,
at which point the Court said, “Again, I thought I made it clear. . . . [T]here is no relevance to
expert testimony in this case. It seems to me that you haven’t given notice of your desire to call

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experts in this case. So for those reasons you’[re] precluded from introducing that evidence, for
both those reasons. . . . There are not going to be any experts testifying.” (Id. 33:22–34:4.) 2
Notwithstanding the Court’s clear – and repeated – rulings, Plaintiff deliberately defied the
Court’s orders.

Two days after the conference, Plaintiff filed a “Notice of Rule 30(b)(6)

Deposition” directed toward an expert witness whose testimony the Court had already explicitly
precluded during the December 18, 2017 pretrial conference. (Doc. No. 269.) The docket also
reflected that, as of December 20, 2017, Plaintiff had requested the issuance of another trial
subpoena by the Pro Se Intake Office. And on December 22, 2017, Plaintiff again subpoenaed
witnesses whose testimony the Court had already precluded at the initial pretrial conference. (Doc.
Nos. 284, 285, 286.) Plaintiff’s December 20, 2017 submission and the Pro Se Intake Office’s
docket entry prompted the Court to issue another order directing Plaintiff to cease subpoenaing
third parties without prior approval from the Court and requiring that Plaintiff file a premotion
letter with the Court prior to filing any additional “motions.” (Doc. No. 273.) 3 This directive was
largely duplicative of the Court’s November 18, 2015 order, which instructed Plaintiff not to file
any “submissions” absent prior approval from the Court. (Doc. No. 217.) The Court also warned
Plaintiff that “[f]ailure to comply with this Order will result in sanctions, including dismissal of
Plaintiff’s case under Rule 16(f), 41(b), and the Court’s inherent sanctioning power.” (Doc. No.
273 at 2.)

2

During the December 18, 2017 conference, the Court also questioned the accuracy of one of Plaintiff’s claims in a
pretrial submission, specifically, Plaintiff’s representation that he had “prevailed” in litigation prosecuted in another
district. After reviewing the docket in that case, the Court determined that Plaintiff’s case had in fact been dismissed
as a sanction for failing to comply with discovery orders – a judgment affirmed by the Third Circuit. See Azkour v.
Aria, 330 F. App’x 373 (3d Cir. 2009). Plaintiff denied that fact and has since continued to insist that he “prevailed”
in that litigation, going so far as to accuse the Court of perpetuating a “fallacy” that is “intended to discredit [him].”
(Doc. No. 278 at 7.) The Court addressed the falsity of Plaintiff’s allegations in its order dated December 29, 2017
(id. at 4–5), and declines to revisit this issue here, except to note that this dispute is simply another example of
Plaintiff’s pattern of making false accusations against the Court (and others) in clear violation of the Court’s orders.

3

The Court’s December 22, 2017 Order was issued before Plaintiff’s affidavits of service for the December 22, 2017
subpoenas were docketed, and therefore the Court was unaware of those subpoenas when it issued its order.

9

On December 26, 2017, the Court received another letter from Plaintiff, this time notifying
the Court that he would, “in good faith,” file “a timely and sufficient affidavit pursuant to 28 U.S.C.
§ 144” – the federal recusal statute – in light of the Court’s “acts of bias and prejudice against
[him].” (Doc. No. 278 at 7.) Plaintiff accused the Court of “intimidating” him “with criminal
investigations,” “communicating ex parte with the [D]efendants and their counsel,” and
“retaliating against [him] for having complained of extrajudicial acts of misconduct to the Second
Circuit’s Chief Judge.” 4 (Id.) Of course, these accusations were not new – Plaintiff made similar
accusations of prejudice in the FLSA action, where he claimed that the Court was engaging in
“foul play” and accused the Court of, inter alia, “bias and hostility.” (FLSA Doc. No. 224.) As
warned in its prior order addressing those accusations, the Court issued an order on December 29,
2017 sanctioning Plaintiff $5,000 in light of Plaintiff’s pattern of making baseless accusations of
“bias and hostility” against the Court. (Doc. No. 278 at 5.) Importantly, the Court gave “special
attention” to Plaintiff’s utterly unsubstantiated charges of bias, prejudice, retaliation, and
intimidation, writing that those kinds of accusations in particular “threaten to undermine the
dignity of the Court and the public’s and potential jurors’ respect for our system of justice.” (Id.)
The Court proceeded to make very clear that should Plaintiff continue making “baseless and
insulting accusations against the Court,” the Court would dismiss this case with prejudice,
notwithstanding that dismissal “is a harsh remedy to be used only in extreme circumstances.” (Id.

4

Specifically, Plaintiff accused the Court of: (1) “den[ying]] [Plaintiff] the right to issue subpoenas to previously
identified witnesses and to file motions in limine in preparation for the trial scheduled on January 8, 2017,” (2)
“threaten[ing] [Plaintiff] with sanctions . . . in retaliation for [his] complaint to the Court that defendant Little Rest
Twelve, Inc. refuses to designate a person to testify and defend on its behalf,” (3) “falsely stat[ing] that Bowery
Residents’ Committee, Inc. [a third party subpoenaed by Plaintiff] is not a previously disclosed witness,” (4)
“misrepresenting . . . that [Plaintiff] mischaracterized facts when [he] claimed that [he] had prevailed in the New
Jersey suits” in an effort “to discredit [him],” and (5) “communicating ex parte with the defendants and their counsel.”
(Doc. No. 278.) Plaintiff also (again) accused the Court of “manifest bias and prejudice,” “retaliation,” “intimidation,”
and of “interfering with [his] constitutional rights to have a fair trial under the Seventh Amendment and the Due
Process Clause of the Fourteenth Amendment to the United States Constitution.” (Id.)

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at 6 (citation omitted).) The Court stressed that “Plaintiff is now on notice that the Court will
tolerate no further expressions of disrespect, toward the Court or defense counsel,” and again made
explicit that baseless accusations against the Court would result in dismissal of this case. (Id.)
On the same day that the Court sanctioned Plaintiff, but before the Court’s order was
docketed, Plaintiff filed a formal recusal motion pursuant to 28 U.S.C. § 144 and 455(a)–(b)(1),
again citing the Court’s “bias, prejudice, partiality, violation of the Due Process Clause, and
retaliation” as grounds for his motion. 5 (Doc. No. 279.) Plaintiff also filed a supporting affidavit
(Doc. No. 280), as required by the recusal statute, that made a series of extraordinary claims,
including that the Court had “ordered” a “criminal proceeding” against Plaintiff (id. ¶ 82), that the
Court “harbors extreme animosity towards [Plaintiff] because of [his] race (Arab) and religion
(Muslim)” (id. ¶ 31), and that “in bad faith, [the Court] used mental illness to deny [Plaintiff] due
process and a fair trial” during the related FLSA action (id. ¶ 69). Plaintiff also attributed a series
of statements to Deputy U.S. Marshal Scott Hicks, whom Plaintiff identified as a “criminal
investigator” (id. ¶ 49), claiming that Hicks had “informed [Plaintiff] that the ‘court’ ordered an
investigation on [Plaintiff] based on allegations that [Plaintiff] threatened the ‘court’ and [defense
counsel] with acts of violence,” and that “the ‘court’ also ordered a surveillance of [his] electronic
submissions to the Court.” (Id.) Plaintiff’s affidavit directly quoted Deputy Marshal Hicks as
telling Plaintiff that he “was subjected to bias and prejudice,” that “the ‘person’ who complained
to the Marshals must have a sentiment of deep-seated hatred towards [Plaintiff]” (id. at ¶ 65), that
“‘someone’ tried to prevent [Plaintiff] from accessing the courts,” and that “‘someone’ was also
trying to pick the ‘fruit from the poisonous tree’ to harm [Plaintiff]” (id. at ¶ 64). According to

5

Although Plaintiff’s motion was filed before the Court issued its order sanctioning Plaintiff on December 29, 2017,
the Court did not receive the motion until January 2, 2018.

11

Plaintiff’s affidavit, Deputy Marshal Hicks also “made statements questioning [the Court’s]
impartiality.” (Id. ¶ 80.)
On January 2, 2018, Defendants filed an affidavit in opposition to Plaintiff’s recusal
motion. (Doc. No. 283.) In that submission, Defendants also requested that the Court dismiss this
case in light of Plaintiff’s continued inability to abide by court orders and suggested that the Court
undertake an inquiry as to the truthfulness of the claims asserted in Plaintiff’s affidavit, specifically
urging the Court to question Deputy Marshal Hicks about the statements attributed to him by
Plaintiff. (Id. at 2.)
On January 3, 2017, Plaintiff filed another request – styled as an “affidavit” – seeking
enforcement of a trial subpoena he previously issued to corporate Defendant Little Rest Twelve.
(Doc. No. 288.) That request was in blatant violation of the Court’s December 22, 2017 order
directing Plaintiff not to issue any more subpoenas of the sort. (Doc. No. 273.) On the same day,
Plaintiff also submitted a request to the Clerk of Court – again without providing prior notice or
receiving approval from the Court – for a default judgment against Defendant Little Rest Twelve,
citing as grounds for his request that “Little Rest Twelve, Inc. refuses to appear, testify, and defend
at the January 8, 2018 trial.” (Doc. No. 289.)
On January 4, 2018, minutes before the beginning of the scheduled pretrial conference,
Plaintiff filed a letter requesting that the Court reconsider and vacate its December 29, 2017 order
sanctioning him. (Doc. No. 291.) In that submission, Plaintiff mischaracterized the Court’s order
as “sanctioning [him] $5,000 for allegedly failing to file a timely and sufficient affidavit supporting
[his] December 26, 2017 letter,” and again accused the Court of “retaliat[ing] against [him] for
exercising [his] rights.” (Id.) Plaintiff concluded his letter with yet another accusation: “The
Court’s decision to sanction me $5,000 was not made in good faith. It is an act of pure retaliation
and constitutes manifest injustice.” (Id.)
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In the final episode of this litigation, the Court held a conference on January 4, 2018. That
conference was originally meant to serve as the final pretrial conference, but in light of Plaintiff’s
recusal motion and Defendants’ opposition, including Defendants’ request for a dismissal sanction,
the Court determined that it would address those issues first. The Court began by denying
Plaintiff’s motion to recuse for the reasons stated on the record at that conference. (Jan. 4 Tr.
3:19–7:5.). Briefly, the Court accepted all of Plaintiff’s nonconclusory allegations as true for the
purposes of the motion, as required by longstanding precedent, see Berger v. United States, 255
U.S. 22, 33–35 (1921), but determined that the majority of the claims in Plaintiff’s motion were
untimely, Apple v. Jewish Hosp. & Med. Ctr., 829 F.2d 326, 333–34 (2d Cir. 1987). The Court
further concluded that Plaintiff’s timely allegations – pertaining to the Court’s evidentiary rulings
at the December 18, 2017 conference – were insufficient to warrant recusal, since they merely took
issue with the Court’s pretrial decisions. See Liteky v. United States, 510 U.S. 540, 555 (1994);
Chen v. Chen Qualified Settlement Fund, 552 F.3d 218, 227 (2d Cir. 2009).
Next, the Court turned to Defendants’ sanctions motion and to the issue of Plaintiff’s
affidavit. At that time, the Court called Deputy Marshal Hicks to testify about the statements he
purportedly made to Plaintiff. After being confronted with the various statements attributed to
him, Deputy Marshal Hicks denied making virtually all of them, demonstrating the falsity of
Plaintiff’s affidavit. Equally troubling, however, were Plaintiff’s numerous interruptions of Hicks’
testimony and his insistence on speaking over the witness and the Court during the examination.
Indeed, the Court was forced to admonish Plaintiff several times, but the outbursts continued.
After the Court concluded its questioning, Plaintiff was permitted to examine Deputy Marshal
Hicks, but he elicited no testimony relevant to the veracity of the statements contained in Plaintiff’s
affidavit. Rather, Plaintiff insisted on pursuing alternative, irrelevant lines of questioning –
including with respect to Plaintiff’s mental health – until the Court was forced to intervene and
13

direct Plaintiff to limit his questions to the relevant issues. (Jan. 4 Tr. 32:14–25.) Toward the end
of Plaintiff’s questioning, Plaintiff suggested that all of the statements he attributed to Deputy
Marshal Hicks might have instead been made by another Deputy, notwithstanding Plaintiff’s
assertion at the beginning of Hick’s testimony that “I remember everything I said to him and
everything he said to me.” (Id. 17:3–4.)
Plaintiff thereafter returned to the issue of his mental health and accused defense counsel
of falsely asserting that he suffered from mental illness “to incite [the Court] to sanction [Plaintiff]”
(Id. 38:16-17), and insisted that he did not suffer from mental illness, despite the fact that – as
noted above – Plaintiff himself had submitted, among other filings, a motion for the appointment
of a guardian ad litem that set forth in great detail his claimed mental disabilities. (Doc. No. 24).
Confronted with his own statements, Plaintiff explained that his prior motion for the appointment
of a guardian was really just a “tactical motion” filed in response to defense counsel’s “harassing”
behavior, and that he knew all along that “it was going to be rejected.” (Jan. 4 Tr. 39:16–21.)
When asked by the Court to clarify whether he “knowingly made . . . a baseless motion for tactical
reasons?” Plaintiff responded: “If you want to sanction me for that, your Honor, you may do it.”
(Id. 39:16–40:3.)
Although the Court reserved judgment on Defendants’ motion for sanctions, the Court
nevertheless observed that it was likely to dismiss the case, noting that there was no reason to
believe the Plaintiff – who was already in violation of several Court orders and who was apparently
undeterred by sanctions – would comply with any of the Court’s directives at trial. (Id. 35:12–25.)
III. LEGAL STANDARD
There can be no dispute that the Court has the inherent power to sanction Plaintiff; that
power has long been implied from the nature of the judiciary itself. Chambers v. NASCO, Inc.,
501 U.S. 32, 43 (1991) (quoting United States v. Hudson, 7 Cr. 32, 34 (1812) and Roadway
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Express, Inc. v. Piper, 447 U.S. 752, 764 (1880)); Ex parte Robinson, 9 Wall 505, 510 (1874)
(“The power to punish for contempts is inherent in all courts.”). As the Supreme Court observed
nearly two hundred years ago, “Courts of justice are universally acknowledged to be vested, by
their very creation, with power to impose silence, respect, and decorum, in their presence, and
submission to their lawful mandates.” Chambers, 501 U.S. at 43 (quoting Anderson v. Dunn, 6
Wheat. 204, 227 (1821)). Indeed, that power is “essential to the preservation of order in judicial
proceedings, and to the enforcement of the . . . orders . . . of the courts, and consequently to the
due administration of justice.” Robinson, 9 Wall, at 510.
The Supreme Court has held that the sanctioning power includes the authority “to levy
sanctions in response to abusive litigation practices.” Roadway Exp., 447 U.S. at 765 (citing Link
v. Wabash R. Co., 370 U.S. 626, 632 (1962)). That power is not defined or circumscribed by rule
or statute. Chambers, 501 U.S. at 49 (citing Link, 370 U.S. at 630–31). Indeed, “the fact that
there may be a statute or rule which provides a mechanism for imposing sanctions of a particular
variety for a specific type of abuse does not limit a court’s inherent power to fashion sanctions,
even in situations similar or identical to those contemplated by the statute or rule.” DLC Mgmt.
Corp. v. Town of Hyde Park, 163 F.3d 124, 136 (2d Cir. 1998) (citing Chambers, 501 U.S. at 45–
46). 6 Moreover, the Court may impose sanctions sua sponte. Ransmeier v. Mariani, 718 F.3d 64,
68 (2d Cir. 2013) (citing Chambers, 501 U.S. at 42 n.8).
In light of “their very potency, inherent powers must be exercised with restraint and
discretion,” Chambers, 501 U.S. at 44; a district court effectively plays the role of “accuser, fact

6

Other sources of sanctioning power potentially relevant here include: Federal Rules of Civil Procedure 11 for filing
frivolous motions and pleadings and/or making misrepresentations to the Court; Rule 16(f) for failure to obey a pretrial
order; and 18 U.S.C. § 401 for contempt of court. Because the Court finds that “the conduct sanctionable under the
Rules was intertwined within conduct that only the inherent power could address,” it relies on its inherent power so
as not “to foster extensive and needless satellite litigation, which is contrary to the aim of the Rules themselves.”
Chambers, 501 U.S. at 51.

15

finder and sentencing judge” all at once, Wolters Kluwer Fin. Servs., Inc. v. Scivantage, 564 F.3d
110, 113–14 (2d Cir. 2009) (citation and internal quotation marks omitted). Nevertheless, a
“primary aspect” of the discretion to impose sanctions is “the ability to fashion an appropriate
sanction for conduct which abuses the judicial process.” Chambers, 501 U.S. at 43–44. And
although dismissal with prejudice is a harsh sanction, it is incontrovertibly within the Court’s
discretion to impose when justified. Id. at 45 (citing Roadway Exp., 447 U.S. at 765); Mickle v.
Morin, 297 F.3d 114, 125 (2d Cir. 2002).
To that end, before invoking its inherent sanctioning power to dismiss a case with
prejudice, the Court must show that it has employed – or at least “considered” – less drastic
sanctions. S. New. Eng. Tel. Co. v. Global NAPs Inc., 624 F.3d 123, 144 (2d Cir. 2010); but see
id. at 148 (remarking that “district courts are not required to exhaust possible lesser sanctions
before imposing dismissal or default if such a sanction is appropriate on the overall record”).
Courts must also establish that the offending party was provided adequate notice that his conduct
was sanctionable and an opportunity to be heard on the issue. Mickle, 297 F.3d at 126. 7 Finally,
in the Second Circuit at least, the Court must make specific factual findings that a litigant acted in
bad faith. 8 Id. at 114; Sec. & Exch. Comm’n v. Smith, 710 F.3d 87, 97 (2d Cir. 2013); In re Pennie
& Edmonds LLP, 323 F.3d 86, 90 (2d Cir. 2003); but see id. at 90 n.3 (noting that under certain

7

The Supreme Court has held that “the absence of notice as to the possibility of dismissal or the failure to hold an
adversary hearing” does not always “render such a dismissal void.” Link, 370 U.S. at 632. Instead, the “adequacy of
notice and hearing . . . turns, to a considerable extent, on the knowledge which the circumstances show [the litigant]
may be taken to have of the consequences of his own conduct.” Id. Indeed, the Second Circuit has recognized that
sufficiency of notice must be evaluated “in its totality.” Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323,
334 (2d Cir. 1999).

8
The Court notes that this requirement of bad faith is in considerable tension with the Supreme Court’s inherentsanctioning-power jurisprudence. See generally, Chambers, 501 U.S. at 59 (Scalia, J., dissenting) (“[A] ‘bad-faith’
limitation upon the particular sanction of attorney’s fees derives from our jurisprudence regarding the so-called
American Rule[.] . . . We have held . . . in my view as a means of preventing erosion or evasion of the American
Rule[,] [that] fee shifting as a sanction can only be imposed for litigation conduct characterized by bad faith. But that
in no way means that all sanctions imposed under the courts’ inherent authority require a finding of bad faith. They
do not.” (citing Redfield v. Ystalyfera Iron Co., 110 U.S. 174, 176 (1884); Link, 370 U.S. 626)).

16

circumstances, the Court need only find “clear and convincing” evidence that the party violated a
“clear and unambiguous” Court order before imposing sanctions). Thus, sanctions are appropriate
where there is clear evidence that the conduct at issue is “(1) entirely without color and (2)
motivated by improper purposes,” findings that “must be supported by a high degree of specificity
. . . .” Id. In addition, the Second Circuit has suggested that “egregious disrespect for the Court
or judicial process,” Ransmeier, 718 F.3d at 68, and “flagrant violation of the court’s repeated
orders to respect the dignity of the judicial proceeding,” Koehl v. Greene, 424 F. App’x 61, 62 (2d
Cir. 2011), justify the imposition of sanctions, as does “harassment,” DLC Mgmt. Corp., 163 F.3d
at 136 (quoting United States v. Int’l Bhd. of Teamsters, 948 F.2d 1338, 1345 (2d Cir. 1991)).
IV. DISCUSSION
As previously noted, the Court has attempted throughout this litigation to reach a
disposition of Plaintiff’s case on the merits. The Court has already presided over a trial in
Plaintiff’s related action, issued numerous opinions in both cases, and devoted what can only be
described as substantial judicial resources in responding to Plaintiff’s court filings and attempting
to control his abusive conduct toward virtually everyone involved in this litigation. Nevertheless,
Plaintiff’s flagrant disregard of the Court’s directives and increasingly outrageous conduct in the
weeks leading up to the scheduled trial compel dismissal of this action.
A. Lesser Sanctions
The Court has already threatened – and employed – lesser sanctions, and concludes that no
sanction less severe than dismissal with prejudice will effectively address Plaintiff’s conduct.
Early on, the Court sanctioned Plaintiff by removing his access to ECF after he continued to send
harassing communications to defense counsel. (Doc. No. 60). More recently, the Court imposed
a $5,000 monetary sanction against Plaintiff in response to his making baseless and insulting
accusations against the Court. (Doc. No. 278.) And in the related FLSA action, the Court
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sanctioned Plaintiff $2,000 for similar conduct. (FLSA Doc. No. 224.) The record demonstrates
that these lesser sanctions have been wholly ineffective in controlling Plaintiff. (Compare FLSA
Doc. No. 224 (Court order dated June 2, 2014), with Doc. No. 210 (Plaintiff’s submission dated
September 22, 2015); compare Doc. No. 278 (Court order dated December 29, 2017), with Doc.
No. 291 (Plaintiff’s submission dated January 4, 2018).)

In addition, because Plaintiff is

proceeding in forma pauperis, monetary sanctions are largely meaningless since they may be
imposed only against a potential future recovery.
B. Adequacy of Notice
As to the adequacy of prior notice, the Court has warned Plaintiff on many occasions that
his conduct, if continued, would result in the dismissal of his case. (E.g., Doc. Nos. 217 at 13, 224
at 26, 273 at 2, 278 at 6.) Most recently, the Court explained that false accusations against the
Court undermined the dignity of judicial proceedings and warned Plaintiff that if he continued to
make such accusations, his case would be dismissed. (Doc. No. 278.) The Court also warned
Plaintiff that failure to comply with the Court’s orders, including its evidentiary rulings and filing
requirements, would also result in dismissal. (E.g., Doc. No. 273.) Moreover, Plaintiff had ample
opportunity to be heard at the conference on January 4, 2018, where the Court reserved on the
issue of imposing sanctions and engaged in a lengthy dialogue with Plaintiff about his conduct.
C. Sanctionable Conduct
Finally, Plaintiff’s conduct warrants dismissal of his case. Since the Court scheduled trial,
Plaintiff has willfully ignored numerous Court orders by: (1) omitting information required by the
Court’s pretrial order, which was relevant to the Court and defense counsel’s preparation for trial,
(2) ignoring the Court’s evidentiary rulings at the initial pretrial conference and subpoenaing
witnesses whom the Court had already excluded, and (3) flouting the Court’s instruction that he
first obtain permission before making additional filings by submitting, among other things, a
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request for a default judgment premised on an argument the Court already rejected. Each instance
of noncompliance further burdened the Court and demonstrated Plaintiff’s utter lack of respect for
the Court’s authority to manage its proceedings. Although the Second Circuit has instructed that
“pro se litigants may in general deserve more lenient treatment than those represented by counsel,”
the law is clear that “all litigants, including pro ses, have an obligation to comply with court orders.
When they flout that obligation they, like all litigants, must suffer the consequences of their
actions.” Greene, 424 F. App’x at 61 (quotation marks omitted) (quoting McDonald v. Head
Criminal Ct. Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988); see also Minotti v. Lensink,
895 F.2d 100, 103 (2d Cir. 1990).
Although it hardly bears repeating, Plaintiff’s recent offenses are simply the latest
examples of intransigent behavior dating back to the initiation of this action in 2011. The Court
is not required to shield its eyes from prior conduct when fashioning an appropriate sanction. Link,
370 U.S. at 663 (courts properly reviewed “the history of [the] litigation” and “all the
circumstances surrounding counsel’s action in the case” when imposing dismissal sanction); see
also Ransmeier, 718 F.3d at 67 (evaluating “the totality” of litigants’ “behavior”). Such a
cumulative approach is even more fitting in the context of a multi-year litigation like this one. Put
simply, Plaintiff should not be permitted to escape the consequences of his repeated misconduct
simply because the Court often exercised leniency when addressing each isolated instance.
In addition to defying Court orders, Plaintiff has also displayed an enormous lack of respect
for judicial proceedings and a complete unwillingness or inability to control his courtroom
behavior. At the January 4, 2018 conference, Plaintiff frequently interrupted the witness and the
Court. When the Court directed Plaintiff to cease interrupting, Plaintiff simply continued to speak
over the Court. More than once while the Court was questioning Deputy Marshal Hicks, Plaintiff
interrupted with “objections” and proceeded to offer his own version of the facts. This behavior
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prompted the Court to say to Plaintiff, “Just so the record is clear, you have multiple times
interrupted with an objection and then you have launched into your own testimony. You have
done that –,” at which point Plaintiff again interrupted the Court. (Jan. 4 Tr. 19–22.)
Plaintiff’s lack of respect for the judicial process is particularly illustrated by Plaintiff’s
submission of a false affidavit in connection with his recusal motion. Specifically, Plaintiff’s
affidavit claimed that Deputy Hicks told him that (1) “the ‘court’ . . . ordered a surveillance of
[Plaintiff’s] electronic submissions to the ‘court,’” (2) “[Deputy Hicks] reasonably believed . . .
that [Plaintiff] was subjected to bias and prejudice,” and (3) the person who “complained to the
Marshals must have a sentiment of deep-seated hatred towards [Plaintiff].” (Doc. No. 280 at 14–
15.) In addition, Plaintiff affirmed that Deputy Hicks “made statements questioning [the Court’s]
impartiality.” (Id. at 17.) Having conducted an evidentiary hearing at which Deputy Marshal
Hicks was questioned by the Court and by Plaintiff, the Court finds that the statements attributed
to Hicks in Plaintiff’s affidavit were knowingly false. The Court further finds that Plaintiff’s
contentions of judicial “bias,” “hostility,” “prejudice,” “intimidation,” and “retaliation” reflect a
relentless desire to discredit the reputation of the Court whenever he is dissatisfied with the Court’s
rulings. Such tactics are invidious and harmful to this institution; indeed, the Second Circuit has
recognized that false accusations of judicial bias uniquely “undermine the integrity of the judicial
process.” Ransmeier, 718 F.3d at 68–69; see also Gallop v. Cheney, 660 F.3d 580, 584 (2d Cir.
2011) (per curiam), vacated in part on other grounds, 667 F.3d 226, 231 (2d Cir. 2011).
The Court also finds that sanctions are necessary to deter future litigants from similar
misconduct. Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976). Even
though he has been previously sanctioned, Plaintiff has remained undeterred and, it may be argued,
emboldened to further challenge the Court’s authority. Should the Court permit this case to go
forward, it would suggest to other litigants that this is an acceptable way to litigate in the Courts
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