Opinion
3:24-CV-0074 (TJM/ML)
01-26-2024
DAVID C. LETTIERI, Plaintiff, v. CITY OF BINGHAMTON; CODE ENFORCEMENT; and BINGHAMTON POLICE, Defendants.
DAVID C. LETTIERI Plaintiff, Pro Se
DAVID C. LETTIERI
Plaintiff, Pro Se
ORDER AND REPORT-RECOMMENDATION
MIROSLAV LOVRIC, UNITED STATES MAGISTRATE JUDGE
I. BACKGROUND
A. Procedural History
Plaintiff David C. Lettieri (“Plaintiff”) commenced this civil rights action pro se on January 17, 2024, on a form complaint alleging that his rights were violated by Defendants City of Binghamton, Code Enforcement, and Binghamton Police (collectively “Defendants”). (Dkt. No. 1.) Plaintiff did not pay the filing fee for this action and seeks leave to proceed in forma pauperis (“IFP”). (Dkt. Nos. 2, 3.)
B. Complaint
Construed as liberally as possible, Plaintiff's Complaint appears to allege that on December 31, 2022, squatters-that Defendant Code Enforcement authorized without consent by Plaintiff-burned down Plaintiff's house. (Dkt. No. 1 at 5.) Based on these factual allegations, Plaintiff appears to assert the following three claims: (1) a claim of failure to protect; (2) a claim that his due process rights were violated; and (3) a claim of unlawful search and seizure. (Id. at 3.) As relief, Plaintiff seeks $1,000,000,000 in damages and that “a new house [be] built.” (Id. at 5.)
The court must interpret pro se complaints to raise the strongest arguments they suggest. Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
Plaintiff seeks leave to proceed IFP. (Dkt. No. 2.)
II. PLAINTIFF'S APPLICATION TO PROCEED IFP
Where a plaintiff seeks leave to proceed IFP, the Court must determine whether the plaintiff has demonstrated sufficient economic need to proceed without prepaying, in full, the Court's filing fee of four hundred and five dollars ($405.00). The Court must also determine whether the “three strikes” provision of 28 U.S.C. § 1915(g) (“Section 1915(g)”) bars the plaintiff from proceeding IFP and without prepayment of the filing fee. More specifically, Section 1915(g) provides as follows:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.28 U.S.C. § 1915(g). If the plaintiff is indigent and not barred by Section 1915(g), the Court must consider the sufficiency of the claims stated in the complaint in accordance with 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A.
In this case, Plaintiff has failed to demonstrate economic need through his IFP application, because he failed to answer questions numbered 2 through 6 on the prisoner IFP application. (Dkt. No. 2 at ¶¶ 2-6.) As a result, the undersigned could deny Plaintiff's IFP application without prejudice on this basis alone. However, as will be discussed below, because Plaintiff has three strikes and his Complaint does not allege that he was in imminent danger at the time of filing, his IFP application is denied with prejudice.
Plaintiff has filed the inmate authorization form required in the Northern District of New York. (Dkt. No. 3.) Thus, the Court must determine whether the “three strikes” rule of Section 1915(g) bars Plaintiff from proceeding with this action IFP.
A. Determination of “Strikes”
Plaintiff is a frequent litigator, having commenced, in addition to this action, at least seventy-seven civil actions in the federal district courts since 2022. See PACER Case Locator <https://pcl.uscourts.gov/pcl/pages/search/findParty.jsf> (last visited January 23, 2024). The following is a list of those actions: (1) Lettieri v. Facebook, No. 23-CV-6554 (N.D. Cal. filed Dec. 20, 2023); (2) Lettieri v. Fed. Bureau of Investigation, (N.D.N.Y. filed Aug. 30, 2023); (3) Lettieri v. Northeast Ohio Corr. Cent., No. 23-CV-1136 (N.D.N.Y. filed Sept. 5, 2023); (4) Lettieri v. Dep't of Justice, No. 23-CV-1272 (N.D.N.Y. filed Oct. 12, 2023); (5) Lettieri v. Garver, No. 23-CV-1421 (N.D.N.Y. filed Nov. 15, 2023); (6) Lettieri v. Brigueal, No. 23-CV-1597 (N.D.N.Y. filed Dec. 18, 2023); (7) Lettieri v. Fed. Bureau of Investigation, No. 23-CV-0309 (W.D.N.Y. filed Apr. 6, 2023); (8) Lettieri v. Fed. Bureau of Investigation, No. 23-CV-0318 (W.D.N.Y. filed Apr. 10, 2023); (9) Lettieri v. United States Fed. Marshals, No. 23-CV-0246 (W.D.N.Y. filed Mar. 20, 2023); (10) Lettieri v. Fed. Marshals, No. 23-CV-0359 (W.D.N.Y. filed Apr. 24, 2023); (11) Lettieri v. Auricchio, No. 23-CV-0441 (W.D.N.Y. filed May 17, 2023); (12) Lettieri v. Fed. Bureau of Investigation, No. 23-CV-0442 (W.D.N.Y. filed May 17, 2023); (13) Lettieri v. Fed. Bureau of Investigation, No. 23-CV-0471 (W.D.N.Y. filed May 30, 2023); (14) Lettieri v. Daniels, No. 23-CV-0487 (W.D.N.Y. filed June 5, 2023); (15) Lettieri v. Fed. Bureau of Investigation, No. 23-CV-0503 (W.D.N.Y. filed June 7, 2023); (16) Lettieri v. Univ. of Rochester, No. 23-CV-0504 (W.D.N.Y. filed June 7, 2023); (17) Lettieri v. Town of Colesville, No. 23-CV-0519 (W.D.N.Y. filed June 9, 2023); (18) Lettieri v. Dep't of Justice, No. 23-CV-0517 (W.D.N.Y. filed June 9, 2023); (19) Lettieri v. New York State Police, No. 23-CV-0518 (W.D.N.Y. filed June 9, 2023); (20) Lettieri v. Fed. Bureau of Investigation, No. 23-CV-0679 (W.D.N.Y. filed July 12, 2023); (21) Lettieri v. Dep't of Justice, No. 23-CV-0697 (W.D.N.Y. filed July 14, 2023); (22) Lettieri v. Dep't of Justice, No. 23-CV-0698 (W.D.N.Y. filed July 14, 2023); (23) Lettieri v. Dep't of Justice, No. 23-CV-0699 (W.D.N.Y. filed July 14, 2023); (24) Lettieri v. Dep't of Justice, No. 23-CV-0696 (W.D.N.Y. filed July 14, 2023); (25) Lettieri v. Dep't of Justic [sic], No. 23-CV-0695 (W.D.N.Y. filed July 14, 2023); (26) Lettieri v. Fed. Bureau of Investigation, No. 23-CV-0708 (W.D.N.Y. filed July 17, 2023); (27) Lettieri v. Dep't of Justice, No. 23-CV-0704 (W.D.N.Y. filed July 17, 2023); (28) Lettieri v. Dep't of Justice, No. 23-CV-0707 (W.D.N.Y. filed July 17, 2023); (29) Lettieri v. Dep't of Justice, No. 23-CV-0705 (W.D.N.Y. filed July 17, 2023); (30) Lettieri v. Fed. Bureau of Investigation, No. 23-CV-0706 (W.D.N.Y. filed July 17, 2023); (31) Lettieri v. Dep't of Justice, No. 23-CV-0721 (W.D.N.Y. filed July 19, 2023); (32) Lettieri v. Dep't of Justice, No. 23-CV-0722 (W.D.N.Y. filed July 19, 2023); (33) Lettieri v. Broome Cnty. Humane Soc'y, No. 23-CV-0747 (W.D.N.Y. filed July 26, 2023); (34) Lettieri v. Dep't of Justice, No. 23-CV-0749 (W.D.N.Y. filed July 26, 2023); (35) Lettieri v. Fed. Public Def., No. 23-CV-0748 (W.D.N.Y. filed July 26, 2023); (36) Lettieri v. Suffolk Cnty. Police, No. 23-CV-0757 (W.D.N.Y. filed July 27, 2023); (37) Lettieri v. Dep't of Justice, No. 23-CV-0762 (W.D.N.Y. filed July 28, 2023); (38) Lettieri v. Dep't of Justice, No. 23-CV-0771 (W.D.N.Y. filed July 31, 2023); (39) Lettieri v. Dep't of Justice, No. 23-CV-0774 (W.D.N.Y. filed Aug. 1, 2023); (40) Lettieri v. W. Dist. of New York, No. 23-CV-0770 (W.D.N.Y. filed July 31, 2023); (41) Lettieri v. Dep't of Justice, No. 23-CV-0788 (W.D.N.Y. filed Aug. 4, 2023); (42) Lettieri v. Daniels, No. 23-CV-0867 (W.D.N.Y. filed Aug. 21, 2023); (43) Lettieri v. Dep't of Justice, No. 23-CV-0865 (W.D.N.Y. filed Aug. 21, 2023); (44) Lettieri v. Dep't of Justice, No. 23-CV-0866 (W.D.N.Y. filed Aug. 21, 2023); (45) Lettieri v. Auricchio, No. 23-CV-0875 (W.D.N.Y. filed Aug. 22, 2023); (46) Lettieri v. Vilardo, No. 23-CV-6498 (W.D.N.Y. filed Aug. 28, 2023); (47) Lettieri v. Four in One, No. 23-CV-0898 (W.D.N.Y. filed Aug. 28, 2023); (48) Lettieri v. Dep't of Justice, No. 23-CV-0897 (W.D.N.Y. filed Aug. 28, 2023); (49) Lettieri v. Olivett Prods., No. 23-CV-0906 (W.D.N.Y. filed Aug. 30, 2023); (50) Lettieri v. Reynolds, No. 23-CV-0925 (W.D.N.Y. filed Sept. 1, 2023); (51) Lettieri v. Bonanno, No. 23-CV-1081 (W.D.N.Y. filed Oct. 6, 2023); (52) Lettieri v. Post Consumer Brands, No. 23-CV-1080 (W.D.N.Y. filed Oct. 6, 2023); (53) Lettieri v. Powell, No. 23-CV-1082 (W.D.N.Y. Oct. 6, 2023); (54) Lettieri v. Aurrichio, No. 23-CV-1121 (W.D.N.Y. Oct. 25, 2023); (55) Lettieri v. Hockwater, No. 23-CV-1123 (W.D.N.Y. Oct. 25, 2023); (56) Lettieri v. City of Binghamton, No. 23-CV-1122 (W.D.N.Y. filed Oct. 25, 2023); (57) Lettieri v. The Broome Cnty. Humane, No. 23-CV-1223 (W.D.N.Y. filed Nov. 22, 2023); (58) Lettieri v. Keefe Grp., No. 23-CV-1224 (W.D.N.Y. filed Nov. 22, 2023); (59) Lettieri v. City of Binghamton, No. 23-CV-1243 (W.D.N.Y. filed Nov. 29, 2023); (60) Lettieri v. Broome Cnty. Humane Soc'y, No. 23-CV-1268 (W.D.N.Y. filed Dec. 7, 2023); (61) Lettieri v. Broome Cnty. Humane Soc'y, No. 23-CV-1270 (W.D.N.Y. filed Dec. 7, 2023); (62) Lettieri v. Wyoming Cnty. Sheriffs, No. 23-CV-1303 (W.D.N.Y. filed Dec. 18, 2023); (63) Lettieri v. Fed. Marshals, No. 23-CV-1305 (W.D.N.Y. filed Dec. 20, 2023); (64) Lettieri v. Gunnip, No. 23-CV-1306 (W.D.N.Y. filed Dec. 20, 2023); (65) Lettieri v. Vilando, No. 23-CV-1660 (N.D. Ohio filed Aug. 25, 2023); (66) Lettieri v. Vilando, No. 23-CV-1686 (N.D. Ohio filed Aug. 29, 2023); (67) Lettieri v. Northeast Ohio Corr. Ctr., No. 23-CV-1690 (N.D. Ohio filed Aug. 29, 2023); (68) Lettieri v. Fed. Marshals, No. 23-CV-1872 (N.D. Ohio filed Sept. 26, 2023); (69) Lettieri v. New York State Troopers, No. 23-CV-2077 (N.D. Ohio filed Oct. 23, 2023); (70) Lettieri v. Fed. Marshals, No. 23-CV-2167 (N.D. Ohio filed Nov. 6, 2023); (71) Lettieri v. Fed. Marshals, No. 23-CV-2202 (N.D. Ohio filed Nov. 30, 2023); (72) Lettieri v. Northeast Ohio Corr. Ctr., No. 24-CV-0032 (N.D. Ohio filed Jan. 5, 2024); (73) Lettieri v. Performance Food Grp., No. 24-CV-0053 (E.D. Va. filed Jan. 18, 2024); (74) Lettieri v. Fed. Marshals, No. 23-CV-3317 (D.D.C. filed Nov. 2, 2023); (75) Lettieri v. The Broome Cnty. Humane Soc'y, No. 23-CV-7777 (E.D.N.Y. filed Oct. 10, 2023); (76) Lettieri v. Quinn, No. 23-CV-7830 (E.D.N.Y. filed Oct. 16, 2023); and (77) Lettieri v. T-Mobile, No. 24-CV-0028 (W.D. Wash. filed Jan. 4, 2024).
This case was transferred to the district court for the Northern District of Ohio, where it was assigned case number 23-CV-2172 (N.D. Ohio filed Nov. 7, 2023).
This case was transferred to the district court for the Western District of New York, where it was assigned case number 23-CV-1279 (W.D.N.Y. filed Dec. 8, 2023).
This case was transferred to the district court for the Northern District of New York, where it was assigned case number 23-CV-1547 (N.D.N.Y. filed Dec. 11, 2023).
This case was transferred to the district court for the Northern District of Ohio, where it was assigned case number 23-CV-1661 (N.D. Ohio filed Aug. 25, 2023).
This case was transferred to the district court for the Northern District of Ohio, where it was assigned case number 23-CV-2028 (N.D. Ohio filed Oct. 16, 2023).
This case was transferred to the district court for the Western District of New York, where it was assigned case number 23-CV-6682 (W.D.N.Y. filed Dec. 1, 2023).
This case was transferred to the district court for the Western District of New York, where it was assigned case number 23-CV-6704 (W.D.N.Y. filed Dec. 11, 2023).
Upon review of these actions, and consistent with the determinations reached by the Honorable Hector Gonzalez in Lettieri v. Broome Cnty. Humane Soc'y, 20-CV-7777, 23-CV-7830, 2023 WL 7017081, at *2 (E.D.N.Y. Oct. 25, 2023), denying recons., 2023 WL 8003478, (E.D.N.Y. Nov. 17, 2023), and the Honorable Lawrence J. Vilardo in Lettieri v. Broome Cnty. Humane Soc'y, 23-CV-1223, 2023 WL 9066861, at *2 (W.D.N.Y. Dec. 4, 2023), and Lettieri v. Auricchio, 23-CV-1121, 2023 WL 9066873, at *2 (W.D.N.Y. Dec. 4, 2023), this Court finds that, as of the date that Plaintiff commenced this action, he had acquired at least three “strikes.”As a result, Plaintiff's IFP Application must be denied unless it appears that the “imminent danger” exception to the “three strikes” rule set forth in Section 1915(g) is applicable to this action.
The actions in which Plaintiff acquired strikes are as follows: (1) Lettieri v. W. Dist. of N.Y., 23-CV-0770 (W.D.N.Y. Sept. 11, 2023), Dkt. No. 7; (2) Lettieri v. U.S. Dep't of Justice, 23-CV-0866 (W.D.N.Y. Sept. 19, 2023), Dkt. No. 3; and (3) Lettieri v. Vilardo, 23-CV-6498 (W.D.N.Y. Sept. 21, 2023), Dkt. No. 3.
B. Applicability of the “Imminent Danger” Exception
The “imminent danger” exception protects a prison inmate exposed to potential serious physical injury from the consequences of his earlier mistakes in filing frivolous litigation. Generally speaking, the allegations relevant to this inquiry “are those in which [plaintiff] describes physical injury, threats of violence, and deprivation of medical treatment.” Chavis v. Chappius, 618 F.3d 162, 165 (2d Cir. 2010). The Second Circuit has described the nature of the Court's inquiry regarding imminent danger as follows: “although the feared physical injury must be serious, we should not make an overly detailed inquiry into whether the allegations qualify for the exception, because § 1915(g) concerns only a threshold procedural question, while [s]eparate PLRA provisions are directed at screening out meritless suits early on.” Chavis, 618 F.3d at 169-70 (quoting Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007)) (internal quotation marks omitted).
“[F]or a prisoner to qualify for the imminent danger exception, the danger must be present when he files his complaint - in other words, a three-strikes litigant is not excepted from the filing fee if he alleges a danger that has dissipated by the time a complaint is filed.” Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009); see also Polanco v. Hopkins, 510 F.3d 152 (2d Cir. 2007); Akassy v. Hardy, 887 F.3d 91, 96 (2d Cir. 2018). However, “allegations of past violence can satisfy the imminent danger exception when, for example, the past harms are part of an ongoing pattern of acts.” Carter v. New York State, 20-CV-5955, 2020 WL 4700902, at *1 (S.D.N.Y. Aug. 12, 2020) (citing Chavis, 618 F.3d at 170 (holding that “[a]n allegation of a recent brutal beating, combined with three separate threatening incidents, some of which involved officers who purportedly participated in that beating, is clearly the sort of ongoing pattern of acts that satisfies the imminent danger exception.”)).
In addition, “§ 1915(g) allows a three-strikes litigant to proceed [IFP] only when there exists an adequate nexus between the claims he seeks to pursue and the imminent danger he alleges.” Pettus, 554 F.3d at 296. In deciding whether such a nexus exists, the Second Circuit has instructed the courts to consider “(1) whether the imminent danger of serious physical injury that a three-strikes litigant alleges is fairly traceable to unlawful conduct asserted in the complaint, and (2) whether a favorable judicial outcome would redress that injury.” Id. at 29899.
In this case, the Complaint alleges that approximately one year before filing this action, Plaintiff's house was burned down by non-party individuals. (Dkt. No. 1 at 5.) These allegations fail to plausibly suggest that Plaintiff was “under imminent danger of serious physical injury” when he signed his complaint on December 18, 2023. Therefore, Plaintiff is barred from proceeding IFP under Section 1915.
III. BAR ORDER
A. Legal Standard
Courts have always recognized that they may resort to restrictive measures when responding to vexatious litigants. In re Martin-Trigona, 9 F.3d 226, 228-29 (2d Cir. 1993) (noting that the Supreme Court and other Circuits have imposed restrictive measures). The Court has the obligation to protect the public and the efficient administration of justice from individuals who have a history of vexatious and harassing litigation because it imposes needless expense on the parties and an unnecessary burden on the court. Lau v. Meddaugh, 229 F.3d 121, 123 (2d Cir. 2000). In this context, courts have accepted the need for permanent injunctions as a result of extraordinary patterns of vexatious, harassing, and baffling litigation practices. In re Aarismaa, 233 B.R. 233, 247 (N.D.N.Y. 1999) (McAvoy, C.J.); Toro v. Depository Trust Co., 97-CV-5383, 1997 WL 752729, at *4 (S.D.N.Y. Dec. 4, 1997) (identifying the All Writs Act as a legal basis to impose sanctions and enjoin a plaintiff who abuses the judicial process).
Under the All Writs Act, 28 U.S.C. § 1651, a court may sanction a vexatious litigant who abuses the judicial process by enjoining him from pursuing future litigation without leave of the court. Malley v. New York City Bd. of Educ., 112 F.3d 69, 69-70 (2d Cir. 1997); Horoshko v. Citibank, N.A., 373 F.3d 248, 250 (2d Cir. 2004). An enjoinder may be permanent or may impose the less drastic remedy of a “leave to file” requirement. In re Sassower, 20 F.3d 42, 44 (2d Cir. 1994) (noting the court's ability to levy a leave to file requirement); Raffee v. John Doe, 619 F.Supp. 891 (S.D.N.Y. 1985) (granting a permanent injunction restraining the plaintiff from filing any further actions); In re Aarismaa, 233 B.R. at 247 (observing that such “restrictive measure[s] have included foreclosing the filings of pleadings in a particular case or requiring that leave of court first be sought”).
Before regulating a truculent and persistent litigant by restricting future access to the court, a court should consider
(1) the litigant's history of the litigation and in particular whether it entailed vexatious, harassing or duplicative lawsuits; (2) the litigant's motive in pursuing the litigation, and in particular whether the litigant has a good faith expectation of prevailing; (3) whether the litigant is represented by counsel; (4) whether the litigant has caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel; and (5) whether other sanctions would be adequate to protect the courts and other parties.Toro v. Depository Trust Co., 1997 WL 752729, at *4 (citing Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986)).
B. Application
Plaintiff has displayed a perpetual abuse of the judicial process in this District and others. As to the first relevant factor, Plaintiff has filed eight complaints in the Northern District over the past five months. Several of the complaints, like the one currently pending before this court, were filed after Plaintiff received his third strike for purposes of Section 1915. Moreover, on December 4, 2023, Chief United States District Judge Lawrence J. Vilardo in the district court for the Western District of New York (“W.D.N.Y.”) found that Plaintiff engaged in a pattern of abuse of the judicial process and prohibited Plaintiff from filing any future cases in W.D.N.Y. without (1) prepaying the filing fee and administrative fees, or (2) submitting a complete motion for leave to proceed IFP. In re David C. Lettieri, No. 23-MC-0032 (W.D.N.Y. filed Sept. 5, 2023), Dkt. No. 11. On January 19, 2024, Chief Judge Vilardo barred Plaintiff, for one year, from filing any future pro se civil actions in W.D.N.Y. without first obtaining the court's permission. (Id. at Dkt. No. 18.) In addition, Chief Judge Vilardo ordered that Plaintiff be fined in the amount of $500.00 each time the court denies three requests for permission to file a new action and the $500.00 fine must be paid in full before Plaintiff may file additional requests for permission to file a new case. (Id. at 4.) Chief Judge Vilardo noted that “[o]ver the past year, Lettieri's pattern of vexatious filings and baseless appeals has created a backlog of cases and motions.” In re David C. Lettieri, No. 23-MC-0032 (W.D.N.Y. filed Sept. 5, 2023), Dkt. No. 11 at 3. Hence, Plaintiff has an extensive history of filing vexatious, harassing, or duplicative lawsuits.
Second, Plaintiff cannot possibly have an objective good-faith expectation of prevailing in his lawsuits. Despite being well informed of his three strikes, Plaintiff continues to check the box on his form complaint that he has not had a case dismissed based on the “three strikes rule.” (Compare Dkt. No. 1 at 8, and Lettieri v. Brigueal, No. 23-CV-1597, Dkt. No. 1 at 8, with Lettieri v. Brigueal, No. 23-CV-1597, 2024 WL 196724, at *2 n.4 (N.D.N.Y. Jan. 17, 2024) (Lovric, M.J.) (noting that Plaintiff accumulated three strikes as of September 21, 2023), In re David C. Lettieri, No. 23-MC-0032 (W.D.N.Y. filed Sept. 5, 2023), Dkt. No. 11 at 2 n.2 (noting that Plaintiff “has had more than three actions dismissed and thus is subject to what is commonly known as the three strikes rule.”), and Lettieri v. Auricchio, 23-CV-1121, 2023 WL 9066873, at *2 (W.D.N.Y. Dec. 4, 2023) (denying Plaintiff's IFP application because he had three strikes and failed to allege facts plausibly suggesting that he faced imminent danger of serious physical injury). Moreover, it appears as though Plaintiff may be filing actions in this district in hopes the Court will not be aware of his three strikes and to circumvent the filing injunction in the W.D.N.Y. See Lettieri v. Garver, No. 23-CV-1421 (N.D.N.Y. filed Nov. 15, 2023), Dkt. No. 4 (transferring action to W.D.N.Y.). Further, Chief Judge Vilardo noted that, in W.D.N.Y., Plaintiff “began filing habeas petitions to circumvent the three strikes rule that applies to section 1983 actions.” In re David C. Lettieri, No. 23-MC-0032 (W.D.N.Y. filed Sept. 5, 2023), Dkt. No. 18 at 4 n.3.
Third, although Plaintiff is a pro se litigant, he has extensive litigation experience in the Northern District of New York, W.D.N.Y., and elsewhere.
Fourth, Plaintiff has posed an unnecessary burden on the court because “every paper [he has] filed with the Clerk of this Court, no matter how repetitious or frivolous, [has] require[d] some portion of the institution's limited resources.” In re McDonald, 489 U.S. 180, 184 (1989).
Fifth, “in light of plaintiff's litigation history, it does not appear that any other sanction, short of an injunction, will be adequate to protect the court from [P]laintiff's insatiable appetite for continued litigation.” Smith v. Jackson, 21-CV-0005, 2021 WL 3518327, at *6 (N.D.N.Y. Jan. 11, 2021) (Lovric, M.J.) (citing Ulysses I & Co., Inc. v. Feldstein, No. 01-CV-3102, 2002 WL 1813851 (S.D.N.Y. Aug. 8, 2002), aff'd sub nom, Bridgewater Operating Corp. v. Feldstein, 346 F.3d 27 (2d Cir. 2003)), report and recommendation adopted, 2021 WL 2775003 (N.D.N.Y. July 2, 2021) (D'Agostino, J.).
Accordingly, pursuant to 28 U.S.C. § 1651(a) and the Court's inherent authority to control and manage its own docket so as to prevent abuse in its proceedings, I recommend that Plaintiff be prohibited from making any future pro se filings in this District without prior leave of the Chief Judge. See Yefimova v. Trustco Bank, 17-CV-0730, 2017 WL 4216987, at *3-4 (N.D.N.Y. July 31, 2017) (Stewart, M.J.) (recommending a bar order where the plaintiff was deemed a persistent, frivolous litigator), report and recommendation adopted, 2017 WL 4157337 (N.D.N.Y. Sept. 18, 2017) (Suddaby, C.J.).
ACCORDINGLY, it is
ORDERED that Plaintiff's IFP application (Dkt. No. 2) is DENIED; and it is further respectfully
RECOMMENDED that should Plaintiff wish to proceed with this action, he be required to pay the $405.00 filing and administrative fees within thirty (30) days from the filing of an Order by the assigned District Judge adopting this Order and Report-Recommendation. It is recommended that should Plaintiff fail to pay the full filing and administrative fees within thirty (30) days of the date of such an order, the case be dismissed without prejudice and without further order of the Court; and it is further respectfully
RECOMMENDED that this matter be REFERRED to Chief Judge Brenda K. Sannes to issue a pre-filing injunction permanently enjoining Plaintiff from filing any other pro se actions in this District without leave of the Chief Judge; and it is further
ORDERED that the Clerk of the Court shall file a copy of this order and report-recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.
The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW . 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).
If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).