Opinion
5:24-CV-0701 (BKS/ML)
06-04-2024
DAISHAWN-LAVON MILLER, doing business as Daishawn Lavon Miller Living Express Trust, Plaintiff, v. ONONDAGA COUNTY, et al., Defendants.
DAISHAWN-LAVON MILLER Plaintiff, Pro Se
DAISHAWN-LAVON MILLER Plaintiff, Pro Se
ORDER AND REPORT-RECOMMENDATION
MIROSLAV LOVRIC, UNITED STATES MAGISTRATE JUDGE
Plaintiff, who is proceeding pro se, paid the filing fees to commence this action. (Dkt. No. 1.) For the reasons set forth below, I recommend that the Court dismiss the action as frivolous.
I. STANDARD OF REVIEW
The Court has the authority to dismiss a complaint, even when the plaintiff has paid the filing fees, if it determines that the action is frivolous, Fitzgerald v. First E. Seventh Tenants Corp., 221 F.3d 362, 363-64 (2d Cir. 2000) (per curiam) (citing Pillay v. INS, 45 F.3d 14, 16-17 (2d Cir. 1995) (per curiam) (holding that Court of Appeals has inherent authority to dismiss frivolous appeal)), or if the Court lacks subject matter jurisdiction. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999). The Court is obliged, however, to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original).
In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505 F.2d 802, 804 (8th Cir. 1974); see also Pflaum v. Town of Stuyvesant, Columbia Cnty., N.Y., 11-CV-0335, 2016 WL 865296, at *1, n.2 (N.D.N.Y. Mar. 2, 2016) (Suddaby, C.J.) (finding that the Court had the power to address and dismiss additional theories of the plaintiff's retaliation claim sua sponte because those theories were so lacking in arguable merit as to be frivolous).
Rule 8 of the Fed.R.Civ.P. requires a “short and plain statement” of a claim, showing that “the pleader is entitled to relief.” Whitfield v. Johnson, 763 Fed.Appx. 106, 107 (2d Cir. 2019) (quoting Fed.R.Civ.P. 8(a)). Each statement must be “simple, concise, and direct,' and must give ‘fair notice of the claims asserted.” Whitfield, 763 Fed.Appx. at 107 (quoting Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)). A pleading must also contain “a demand for the relief sought[.]” Id. “A complaint may be dismissed under Rule 8 if it is ‘so confused, ambiguous, or otherwise unintelligible that its true substance, if any, is well disguised.'” Id.
Moreover, Rule 10 of the Fed.R.Civ.P. provides that “[a] party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances[.]” Fed.R.Civ.P. 10(b). Rule 10's purpose is to “provide an easy mode of identification for referring to a particular paragraph in a prior pleading[.]” Clervrain v. Robbins, 22-CV-1248, 2022 WL 17517312, at *2 (N.D.N.Y. Dec. 8, 2022) (Stewart, M.J.) (citation omitted), report and recommendation adopted, 2023 WL 3170384 (N.D.N.Y. May 1, 2023) (D'Agostino, J.). A complaint that does not comply with these Rules “presents far too heavy a burden in terms of defendants' duty to shape a comprehensive defense and provides no meaningful basis for the Court to assess the sufficiency of [the plaintiff's] claims,” and may properly be dismissed by the court. Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996) (McAvoy, C.J.).
II. BACKGROUND
Plaintiff Daishawn-Lavon Miller, who writes his name as “Daishawn Lavon Miller Living Express Trust,” identifies himself as a “private citizen.” (Dkt. No. 10 at 1; see generally Dkt. No. 1.)
Plaintiff commenced this action on May 15, 2024, by the filing of a Complaint. (Dkt. No. 1.) On May 26, 2024, Plaintiff filed an unsigned Amended Complaint, which became the operative pleading. (Dkt. No. 6.) Plaintiff's Amended Complaint is 77-pages long of doublespaced unnumbered paragraphs, some of which, span several pages. (Id.)
Plaintiff's action is not clear or well organized, but it appears that this action arises out of a New York State Family Court action that Plaintiff was involved in. (See generally Dkt. No. 6.)
Plaintiff previously brought two actions against several of the Defendants in this action regarding a New York State Family Court action; both actions in this District were dismissed. Miller v. Primo, 23-CV-1051, 2023 WL 7545323 (N.D.N.Y. Nov. 14, 2023) (Sannes, C.J.) (dismissing Plaintiff's Complaint as frivolous) (“Miller II”); miller ex v. Primo, 22-CV-0680, 2022 WL 16551700 (Sannes, C.J.) (dismissing the Complaint for failure to state a claim upon which relief may be granted and based on immunity) (“Miller I”).
III. DISCUSSION
As it currently stands, Plaintiff's Amended Complaint wholly fails to provide fair notice of the claims he attempts to assert. By way of example, the Amended Complaint states:
This is also my formal rebuttal-jus immunitatis of the office of parent as the parent is the surety/obligor for the child-LEGAL ESTATE and I am the Father who is responsible for the offspring altering the relationship as it stands from a public relationship to a private one, my offspring is the fruit of my seed see 2 Timothy 2:6 KJV and I am the first partaker in my harvest-offspring. The overall goal of this lawsuit is to inform, rebut and correct the record, and to recoup/be reimbursed for this inconvenience causing generational damage, physical and mental, emotional stress, pain and suffering and restore a private relationship via private agreement with offspring.(Dkt. No. 6 at 2.)
The Amended Complaint contains a series of run-on sentences containing legal jargon and nonsensical allegations. By way of example, the Amended Complaint states:
The Family Court Act was created by charter not law which is why there must be a perfect storm in order for a court to gain jurisdiction over a private matter no different than before the State can have jurisdiction there has to be a corpus delicti no injured party no jurisdiction. Therefore in order for the court to have jurisdiction there must be elements of neglect, abandonment, or abuse see NY Social Service Law 352/352A and none of this is present in my case. The mere filing does not grant jurisdiction because the way the prayer/petition is filled out and the status of the filer, Due to the intent of the law which protects the people rights to privacy and this is a matter of both privacy and equity/property in which the courts is to protect these rights and enforce when there is no evidence of neglect, abandonment, or abuse.(Dkt. No. 6 at 26.)
Moreover, the Amended Complaint is replete with citations to the Bible and includes a heading that reads “ Relevant Bible Verses, ” then lists approximately twenty verses. (Dkt. No. 6 at 17-18.)
Given its lack of clarity, the undersigned recommends dismissal of the Amended Complaint because it is not acceptable under Rules 8 and 10 of the Fed.R.Civ.P. and because Plaintiff's claim or claims against Defendants are entirely unclear.
Moreover, Plaintiff's claims may be subject to dismissal for the following three reasons. First, to the extent that there are final state court orders or judgments that Plaintiff asks this Court to overturn, those claims are likely barred by the Rooker-Feldman doctrine. Porter v. Nasci, 24-CV-0033, 2024 WL 1142144, at *4 (N.D.N.Y. Mar. 15, 2024) (Dancks, M.J.) (citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 291-92 (2005); Dorce v. City of New York, 2 F.4th 82, 101 (2d Cir. 2021)) (“Under the Rooker-Feldman doctrine, a federal district court lacks authority to review a final state court order or judgment where a litigant seeks relief that invites the federal district court to reject or overturn such a final state court order or judgment.”). Alternatively, “in the event the underlying family court proceedings are pending, such claims are likely barred by the Younger abstention doctrine.” Walker v. O'Connor, 22-CV-0581, 2022 WL 2341420, at *6 (N.D.N.Y. June 29, 2022) (Dancks, M.J.) (citing Younger v. Harris, 401 U.S. 37 (1971); Amato v. McGinty, 21-CV-0860, 2022 WL 226798, at *11 (N.D.N.Y. Jan. 26, 2022) (Dancks, M.J.)), report and recommendation adopted, 2022 WL 2805462 (N.D.N.Y. July 18, 2022) (Hurd, J.). Second, Plaintiff's claims are likely barred pursuant to the domestic relations exception to the jurisdiction of federal courts. Dudley v. Montaque, 24-CV-0223, 2024 WL 1464346, at *4 (N.D.N.Y. Apr. 4, 2024) (Dancks, M.J.) (citing Marshall v. Marshall, 547 U.S. 293, 308 (2006); Oliver v. Punter, 22-CV-3580, 2022 WL 3228272, at *3 (E.D.N.Y. Aug. 10, 2022) (“The domestic relations exception to federal jurisdiction divests the federal courts of power to issue divorce alimony and child custody decrees ....This exception also extends to child support determinations and the enforcement thereof.”) (internal quotations and citations omitted)) (“under the domestic relations exception to the jurisdiction of federal courts, cases involving divorce, alimony, and child custody remain outside this Court's jurisdiction.”). Third, several Defendants are immune from suit, as set forth more fully in the Report and Recommendations in Miller I and Miller II. For example, Defendant Fifth Judicial District is a subset of the New York State Court system and is therefore immune from damages pursuant to the Eleventh Amendment. Moreover, “claims under § 1983 against Defendants DeRue and Domachowski, who acted as support magistrate judges, are barred under the doctrine of judicial immunity.” Miller v. Primo, 23-CV-1051, 2023 WL 6379325, at *6 (N.D.N.Y. Sept. 29, 2023) (Lovric, M.J.). Further, claims pursuant to § 1983 for damages against Defendant Primo and other court employees like Defendants Doerr and Essi for actions they took “integrally related to an on going judicial proceeding” are barred by the doctrine of absolute immunity. Miller, 2023 WL 6379325, at *5.
The Court also notes that Plaintiff's assertions that he is not a “U.S. citizen” but a “private citizen” and arguments that he is entitled to relief as a result have universally been rejected as frivolous. See Miller Ex v. Primo, 22-CV-0680, 2022 WL 16556060, at *3-4 (N.D.N.Y. Sept. 29, 2022) (recommending dismissal of Plaintiff's claims predicated on a “sovereign citizen” theory as having no basis in law). As the Second Circuit has explained, “sovereign citizens are a loosely affiliated group who believe that the state and federal governments lack constitutional legitimacy and therefore have no authority to regulate their behavior.” United States v. Ulloa, 511 Fed.Appx. 105, n.1 (2d Cir. 2013); see United States v. McLaughlin, 949 F.3d 780, 781 (2d Cir. 2019) (cleaned up) (noting that “so-called ‘Sovereign Citizens' seek to clog the wheels of justice and delay proceedings so justice won't ultimately be done. They do so by raising numerous-often frivolous-arguments, many alleging that the Courts or the Constitution lack any authority whatsoever.”); Muhammad v. Smith, 13-CV-0760, 2014 WL 3670609, at *2 (N.D.N.Y. July 23, 2014) (D'Agostino, J.) (“Theories presented by redemptionist and sovereign citizen adherents have not only been rejected by the courts, but also recognized as frivolous and a waste of court resources.”) (collecting cases); see also Balash-Ioannidou v. Contour Mortg. Corp, 22-CV-4506, 2022 WL 3358082, at *1 (E.D.N.Y. Aug. 15, 2022) (rejecting claim that plaintiff “issued a payment through Notary Presentment to Defendants in the amount of $645,300.00” to satisfy her debt, as well as a “Notary Protest” and a “Certificate of Dishonor.”); Tyson v. Clifford, 18-CV-1600, 2018 WL 6727538, at *3 (D. Conn. Dec. 21, 2018) (“Adherents of [redemptionist] claims or defenses ‘believe that they are not subject to government authority and employ various tactics in an attempt to, among other things, avoid paying taxes, extinguish debts, and derail criminal proceedings.'”); Steinkirchner v. Gordon, 19-CV-1241, 2020 WL 549087, at *2 (W.D. Pa. Feb. 4, 2020) (“While the Court is not in the business of issuing general advisory opinions, it can say with confidence that the Plaintiff's one-sided effort to discharge her debts does not create a legal or factual basis for the claims she struggles to assert.”); Stoute v. Navient, 19-CV-11362, 2019 WL 13234780, at *2 (D. Mass. July 2, 2019) (rejecting the plaintiff's claim that Navient could not pursue collection on alleged student loan debt pursuant to U.C.C. § 3-505 because it failed to respond to his correspondence); McKay v. U.S. Bank, 14-CV-0872, 2015 WL 5657110, at *2 (M.D. Ala. Sept. 24, 2015) (denying plaintiffs' request for declaratory judgment that the defendant was not the real mortgage holder and to quiet title based upon their mailing of a “notarial presentment” and a “notarial notice of Dishonor” to the defendant bank).
Plaintiff has demonstrated a consistent pattern of making duplicative, voluminous, and meritless filings, which serve to harass and/or raise frivolous issues. The undersigned hereby warns Plaintiff that he cannot continue to engage in these filing practices. Taking into account Plaintiff's pro se status and his lack of legal training, the undersigned will not recommend the issuance of a pre-filing injunction at this time. However, Plaintiff is strongly cautioned that any further frivolous conduct on his part may result in the recommendation that a filing injunction be issued against him.
IV. OPPORTUNITY TO AMEND
Generally, a court should not dismiss claims contained in a complaint filed by a pro se litigant without granting leave to amend at least once “when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991); see also Fed.R.Civ.P. 15(a)(2) (“The court should freely give leave when justice so requires.”). An opportunity to amend is not required, however, where “the problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.).
See also Carris v. First Student, Inc., 132 F.Supp.3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999)-that the Court should grant leave to amend “unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would be successful in stating a claim”-is likely not an accurate recitation of the governing law after Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev'd on other grounds, 682 Fed.Appx. 30.
In this instance, I conclude that any further amendments to Plaintiff's Amended Complaint would be futile. In this action, Plaintiff has already amended the complaint once as of right pursuant to Fed.R.Civ.P. 15(a)(1). Moreover, Plaintiff brought two prior actions related to the same underlying interaction or occurrences. See generally Miller I; Miller II. Plaintiff's claims and allegations are factually and legally frivolous. Any additional amendments to Plaintiff's Amended Complaint are not likely to be productive and will further clog the wheels of justice. As a result, I recommend that Plaintiff's Amended Complaint be dismissed without leave to amend. See Igarashi v. Skull & Bone, 438 Fed.Appx. 58, 59-60 (2d Cir. 2011) (finding that the district court “properly dismissed the complaint without providing an opportunity to amend because any amendment would have been futile in light of the incredible nature of the allegations.”); Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 168 (2d Cir. 2003) (quoting Dluhos v. Floating & Abandoned Vessel, Known as “New York,” 162 F.3d 63, 69 (2d Cir. 1998)) (finding that the “District Court did not abuse its discretion in denying [the plaintiff] leave to amend the complaint because there was a ‘repeated failure to cure deficiencies by amendments previously allowed.'”); Salinger v. Projectavision, Inc., 972 F.Supp. 222, 236 (S.D.N.Y. 1997) (“Three bites at the apple is enough.”).
V. PLAINTIFF'S LETTER MOTION
In light of the recommended disposition of this case, Plaintiff's motion requesting various relief (including an objection that his “personal cellular device” must be left with United States Marshals upon entry to the federal courthouse) is denied without prejudice. (Dkt. No. 10); see Amato v. McGinty, 17-CV-0593, 2017 WL 9487185, at *11 (N.D.N.Y. June 6, 2017) (Baxter, M.J.) (“Because this court is recommending dismissal at this time, the court will deny [P]laintiff's motion [seeking ancillary relief]. . . without prejudice.”), report and recommendation adopted, 2017 WL 4083575 (N.D.N.Y. Sept. 15, 2017) (D'Agostino, J.); Mahmood v. United States Gov't, 20-CV-0207, 2020 WL 3965125, at *3 (N.D.N.Y. Mar. 17, 2020) (Stewart, M.J.) (same), report and recommendation adopted, 2020 WL 1808206 (N.D.N.Y. Apr. 9, 2020) (D'Agostino, J.).
ACCORDINGLY, it is
ORDERED that Plaintiff's motion requesting various relief (Dkt. No. 10) is DENIED without prejudice; and it is further respectfully
RECOMMENDED that the COURT DISMISS WITHOUT LEAVE TO AMEND Plaintiff's Amended Complaint (Dkt. No. 6) in its entirety pursuant to 28 U.S.C. § 1915(e); and it is further
ORDERED that the Clerk of the Court shall file a copy of this Order and ReportRecommendation on Plaintiff, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit's decision in 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).