Opinion
No. 04 Civ. 2740 (RCC)(KNF).
August 3, 2005
REPORT AND RECOMMENDATION
TO THE HONORABLE RICHARD C. CASEY, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Dennis Lee ("Lee") commenced this action pro se pursuant to, inter alia, 42 U.S.C. §§ 1983 and 1985, and 20 U.S.C. § 1681, alleging violations of his constitutional rights. Defendants City of New York ("City"), Orange County, Town of Chester, Volunteers of America-Greater New York, Inc. ("VOA") and City College of the City University of New York ("CCNY"), have moved to dismiss the complaint on the ground that it fails to comply with the pleading requirements set forth in Rule 8 of the Federal Rules of Civil Procedure, or, alternatively, fails to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6).
In addition, VOA has filed a counterclaim seeking an order enjoining Lee from filing any further pleadings in this court without the approval of the court as to form and legal sufficiency. Also, Lee has requested permission to amend his complaint to substitute the City University of New York for CCNY, and the Village of Chester for the Town of Chester.
II. BACKGROUND
Lee has commenced at least five pro se actions in this court during the past seven years. All of these actions have been dismissed for failure to prosecute, failure to comply with a court order, or failure to comply with Fed.R.Civ.P. 8. See Lee v. City of Buffalo, 98 Civ. 3141 (LAK) (S.D.N.Y. Sept. 9, 1998); Lee v. United States, 98 Civ. 7883, 1999 WL 335830 (S.D.N.Y. May 25, 1999); Lee v. United States, 00 Civ. 4163, 2000 WL 1597852 (S.D.N.Y. Oct. 26, 2000), aff'd, Lee v. Underhill Wiping Cloth, 2001 WL 792540 (2d Cir. July 11, 2001);Lee v. United States, 02 Civ. 0095 (GEL) (S.D.N.Y. Jan. 28, 2002), aff'd, 2002 WL 31819609 (2d Cir. Dec. 16, 2002); Lee v. Volunteers of America, 02 Civ. 9794 (KMW) (S.D.N.Y. Aug. 25, 2003).
Plaintiff commenced this action on April 9, 2004, against the City, Orange County, the Town of Chester, and the VOA. On May 19, 2004, plaintiff amended his complaint to add CCNY as a defendant. Determining the nature of Lee's claims is difficult. He appears to believe that he is the victim of a wide-ranging conspiracy to deprive him of his civil rights. The alleged conspirators include the City, the New York City Police Department ("NYPD"), the Department of Homeless Services ("DHS"), Orange County, the Town of Chester, VOA and CCNY.
Lee's allegations appear to arise out of three separate incidents. One of these occurred on March 24, 2004. On this occasion, according to the arresting officer's report, Lee, while traveling on a DHS bus, assaulted a fellow passenger named Manuel Santiago ("Santiago"). According to Santiago, the bus had just arrived at Camp LaGuardia, a homeless shelter located in Orange County, New York; when Santiago asked Lee to move his bag so that Santiago could leave the bus, Lee began punching and biting him. Lee then forced Santiago onto the floor of the bus and refused to release him until the arresting officer arrived.
Lee asserts that the fight was "fostered by the DHS and the VOA's staff in retaliation for attempting to enforce the rights [of] others in the class [Lee] belongs to. . . ." In contending that DHS and VOA were acting in retaliation for a previous action, Lee appears to be referring to a lawsuit in which he challenged the building of a fence and closing of a pathway near Camp LaGuardia. Lee also implicates Orange County in the alleged orchestration of the fight, and accuses the Town of Chester, New York, of violating his equal protection rights under the Fourteenth Amendment by requiring five hundred dollars in bail following Lee's arrest. Lee also contends that, at the time of his prosecution for the assault, he did not challenge evidence brought by the prosecutor because he feared that, if he did so, "the court and prosecutor would become vindictive and violate [Lee's] due process rights." Lee maintains that after he pled guilty to the assault charge, the prosecutor and the court "foreclosed through their efforts an appeal."
The second incident to which Lee refers in his amended complaint occurred in or about November 2000. At that time, CCNY asked him to withdraw from a course in which he had enrolled. Lee claims that this action was the result of a conspiracy among CCNY, DHS and others, to deprive him of his civil rights. Lee also contends that CCNY discriminated against him on the basis of his gender.
The amended complaint also refers to a "breach of duty" on CCNY's part, relating to its refund of Lee's course fees. Lee appears to claim that the refund check he was given violates New York's Uniform Commercial Code ("U.C.C."). Upon review of the relevant section of the U.C.C., the Court is unable to determine the significance of this claim.
Apparently in support of his claim, Lee has provided letters from CCNY faculty members. The letters indicate, however, that Lee was asked to withdraw from the course he was attending because he behaved in a "disorderly manner" in a library lab, disturbed other students and used profanity.
Finally, the amended complaint refers to an incident that took place on May 13, 2002. On that date, the NYPD stopped and searched a bus on which Lee was traveling. According to Lee, the bus was "surrounded by the police with guns drawn." It appears that the NYPD was acting on information it had received concerning the presence on the bus of an escaped rapist. Lee claims, however, that the bus was stopped as the result of a conspiracy on the part of the NYPD, VOA and DHS to harass and intimidate him. Lee appears to believe that this action was taken in retaliation for his opposition to the construction of a fence at Camp LaGuardia.
III. DISCUSSION
Fed.R.Civ.P. 8 Pleading Requirement
Lee alleges that the defendants have denied him his civil rights, and conspired to deny him his civil rights, in violation of 42 U.S.C. §§ 1983 and 1985. Additionally, he claims that CCNY asked him to withdraw from a course he was attending because of his gender, in violation of 20 U.S.C. § 1681(a). For their part, the defendants have moved to dismiss Lee's claims on the ground that his amended complaint fails to meet the pleading requirements of Fed.R.Civ.P. 8, or, alternatively, fails to state a claim upon which relief can be granted.
20 U.S.C. § 1681(a) states, in pertinent part:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under an education program or activity receiving Federal financial assistance.
Fed.R.Civ.P. 8(a)(2) requires that a pleading must present "a short and plain statement of the claim showing that the pleader is entitled to relief." The principal function of a pleading under the Federal Rules of Civil Procedure is to give the adverse party fair notice of the claim asserted. See Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995). Thus, a plaintiff must provide sufficient information to permit the defendant to have a fair understanding of what the plaintiff is complaining about and to know whether there is a legal basis for recovery. See Kittay v. Kornstein, 230 F.3d 531, 541 (2d Cir. 2000).
In the instant case, the Court finds that the allegations made by Lee do not give the defendants fair notice of the basis for his claims. Absent from Lee's complaint are any statements of fact that would support his allegations of a conspiracy to deny him his civil rights. With respect to the fight that occurred on March 24, 2004, Lee provides no facts that would explain: (i) how the fight was caused by others; (ii) the basis for his claim that bail was imposed on him in a discriminatory way; (iii) why he thought the prosecutor "would become vindictive" if Lee were to challenge the evidence adduced in connection with the fight; or (iv) how the prosecutor and the court "foreclosed" an appeal. Rather, Lee's claims are conclusory and often difficult to understand. For example, Lee concludes his discussion of his conspiracy claim by stating that "[t]herefore, the VOA, Orange County, the city of New York and the Town of Chester [are charged with violating 42 U.S.C. § 1985] and inflicting wanton and intentional mental suffering and equal protection clause."
The portion of Lee's amended complaint alleging harassment in retaliation for his opposition to the construction of a fence at Camp LaGuardia also is vague and fails to provide any specific details about the claims made therein. Similarly, with respect to defendant CCNY, Lee's allegations fail to provide information that would allow this defendant to determine whether Lee has a legal basis for recovery. Absent from the amended complaint are any factual allegations that would support the claim that CCNY and DHS conspired to violate Lee's civil rights, or that CCNY violated his civil rights. Nor does Lee provide any facts that are relevant to his gender discrimination claim, other than to note that his instructor was female. Consequently, like the other defendants in this action, CCNY is forced to speculate about the basis for Lee's claims. This the defendants should not have to do. See Fed.R.Civ.P. 8.
Under the circumstances, the Court finds that Lee's claims against the defendants do not meet the pleading requirements set forth at Fed.R.Civ.P. 8. Accordingly, the defendants' motions to dismiss the complaint on this ground should be granted. Furthermore, because the Court finds, based on the preceding analysis, that Lee's claims against the defendants cannot survive a motion to dismiss, the Court does not reach the defendants' alternative proposition: that the amended complaint fails to state a claim upon which relief can be granted.
Motion to Amend
Following the submission by the defendants of their motions to dismiss, Lee sought leave to amend his amended complaint by substituting the City University of New York for defendant CCNY, and the Village of Chester for defendant Town of Chester.
Rule 15(a) of the Federal Rules of Civil Procedure provides that "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served. . . . Otherwise a party may amend the party's pleading only by leave of the court . . . and leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a); see also Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230 (1962).
The determination to grant or deny a motion to amend a complaint is within the discretion of the Court. See New York State Nat'l Org. for Women v. Cuomo, 182 F.R.D. 30, 36 (S.D.N.Y. 1998). "Undue delay, bad faith or dilatory motive on the part of the movant . . . undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of [the] amendment" are valid reasons to deny such a motion.Foman, 371 U.S. at 182, 83 S. Ct. at 230.
A determination that a proposed claim is futile is made through an analysis comparable to that employed when considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See A.V. by Versace, Inc. v. Gianni Versace, S.p.A., et al., 160 F. Supp. 2d 657, 666 (S.D.N.Y. 2001). "Therefore, if the proposed claim would be subject to dismissal under Rule 12(b)(6), the Court should refuse to grant leave to amend rather than assent and then await a motion to dismiss."Id. (internal quotes omitted).
In this case, it would be futile for Lee to amend his pleading further. The Court has determined that the pleading, as it stands, fails to present "a short and plain statement" of Lee's claims "showing that he is entitled to relief." This defect in the pleading cannot be cured simply by substituting one party for another. Furthermore, the proposed amendment would not alter the Court's conclusion that Lee's claims fail to comply with Fed.R.Civ.P. 8. Therefore, plaintiff's request to file a second amended complaint should be denied.
VOA's Counterclaim
As noted above, defendant VOA has filed a counterclaim seeking an order restraining and enjoining Lee from filing "any further pleadings, writs or applications" in this court unless such pleading is "approved" by the court for form and legal sufficiency.
The Court's authority to enjoin a vexatious litigant arises under the All Writs Act, 28 U.S.C. § 1651(a), as well as the inherent authority of the court. See Safir v. United States Lines, Inc., 792 F.2d 19, 23-24 (2d Cir. 1986). Further, "the traditional standards for injunctive relief, i.e., irreparable injury and inadequate remedy at law, do not apply to the issuance of an injunction against a vexatious litigant." In re Martin-Trigona, 737 F.2d 1254, 1262 (2d Cir. 1984). Rather, "[a] history of litigation entailing 'vexation, harassment and needless expense to [other parties]' and 'an unnecessary burden on the courts and their supporting personnel' is enough." Id. (quoting In re Hartford Textile Corp., 681 F.2d 895, 897 [2d Cir. 1982]).
The Second Circuit has identified five factors which courts must consider in determining whether to restrict a litigant's access to the courts: (1) the litigant's history of litigation; (2) the litigant's motive; (3) whether the litigant is represented by counsel; (4) whether the litigant has caused needless expense or burden to the court and other parties; and (5) whether other sanctions or remedies would suffice to protect the court and other parties. See Safir, 792 F.2d at 24.
As noted above, Lee has filed at least five previous lawsuits in this court during the past seven years. All of the lawsuits have been dismissed. Defendants City, CCNY, Orange County and VOA are among the defendants named in the previous actions. Further, although some of the suits filed previously by Lee have been dismissed for failure to comply with Fed.R.Civ.P. 8, Lee has failed to remedy this defect in the instant case, even while presenting claims that are the same as or similar to those raised earlier. This suggests that Lee does not have a good faith expectation of prevailing in this action. The expense and burden incurred by the court and other parties as a result of the frivolous litigation initiated by Lee has been unnecessary. Moreover, Lee is not represented by counsel and, thus, bears full responsibility for bringing these lawsuits. Furthermore, there is good reason to believe that Lee will continue to file baseless lawsuits in the absence of an injunction. Finally, because plaintiff until recently apparently was homeless, it is doubtful that an award of money damages would serve a useful purpose or effectively restrain his behavior.
Therefore, the Court finds that some restriction on future litigation is appropriate in this case. Accordingly, an injunction should issue barring Lee from filing any new action that raises claims that are the same as or similar to the claims presented in the instant complaint. In addition, Lee should be required to show the court a copy of the injunction issued in this case and to obtain the court's permission, before he attempts to file any future litigation.
In Lee, 2000 WL 1597852, at *2, the court declined to find that Lee was an "abusive litigant." However, since that case was decided, Lee has filed at least three additional actions, including the instant case, all of which have been dismissed for the reasons discussed earlier in this writing.
IV. RECOMMENDATION
For the reasons set forth above, it is recommended that: (a) defendants' motions to dismiss be granted; (b) Lee's motion to amend his amended complaint be denied; and (c) defendant VOA's motion to enjoin Lee from filing any new pleadings in this court without the court's permission be granted.
V. FILING OF 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 the Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Richard C. Casey, United States District Judge, 500 Pearl St., Room 1350, New York, New York 10007, and to the chambers of the undersigned, 40 Centre St., Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Casey. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985);IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992);Wesolek v. Candair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1998);McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).