Opinion
05 Civ. 3819 (BSJ) (GWG).
May 13, 2005
REPORT AND RECOMMENDATION
The amended complaint in this action describes the death of plaintiff's mother in 1964 at Presbyterian Hospital; plaintiff's belief, communicated to the police and/or the Federal Bureau of Investigation in 1980 and 1984, that the death was the result of radiation beamed into her apartment by a publishing company; and plaintiff's conclusion that while the hospital at which his mother died "must be considered primarily responsible for carrying out the killing of [his] mother, the institutions that took ultimate responsibility were Oxford University, The New Yorker, and the British monarchy, or Queen Elizabeth." See Amended Complaint, filed April 19, 2005 (Docket #2), at 2-3.
Plaintiff states that he had not filed suit sooner because he thought he "might be able to achieve results and find out some more facts by pursuing [his] occupation [as] a writer." Id. at 3. He alleges that the actions of the defendants violate both state and federal law and the United States Constitution. See id. at 3-4. Plaintiff concludes in the amended complaint by stating that "[t]he law, I should think, requires that a complete account be made — to me and to the public." See id. at 4.
While this case arises out of a sad event for plaintiff, the complaint is legally frivolous and on its face fails to state any claim. It is settled that "district courts may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee." Fitzgerald v. First E. Seventh Street Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000). While normally dismissal should not occur prior to service of process, that rule applies only where "'a colorable claim is made out.'"McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004) (quoting Benitez v. Wolff, 907 F.2d 1293, 1295 (2d Cir. 1990) (per curiam)). No such claim exists here. Moreover, the face of the complaint reflects that even if there were a colorable claim, it would be barred by the statute of limitations. See generally Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (action is frivolous where "the factual contentions are clearly baseless, such as when allegations are the product of delusion or fantasy," or when "the claim is based on an indisputably meritless legal theory," which includes instances where "a dispositive defense clearly exists on the face of the complaint") (citations and internal quotations omitted).
Normally a court should not dismiss a case without affording a plaintiff the opportunity to be heard in opposition. But that rule does not apply where "it is unmistakably clear that . . . the complaint lacks merit or is otherwise defective." See Snider v. Melindez, 199 F.3d 108, 113 (2d Cir. 1999). This is such a complaint.
In any event, plaintiff in fact is being given notice of this dismissal by means of this Report and Recommendation and thus will have an opportunity to oppose it.
Conclusion
The complaint should be dismissed with prejudice. Given that the problems with plaintiff's complaint are substantive and could not be cured through repleading, leave to replead should not be granted. See, e.g., Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to serve and file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. Barbara S. Jones, 40 Centre Street, New York, New York 10007, and to the undersigned at the same address. Any request for an extension of time to file objections must be directed to Judge Jones. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).