Opinion
02 Civ. 8198 (SHS).
March 6, 2003
OPINION AND ORDER
Plaintiff brings this action pro se pursuant to 42 U.S.C. § 1983 and other statutes alleging that defendants violated his constitutional rights. For the reasons set forth below, the action is dismissed sua sponte.
Bivens
The complaint appears to address conduct attributed to federal employees at the United States Supreme Court, as well as to that Court itself and the United States. Mindful of the Court's duty to construe pro se actions liberally, this Court interprets plaintiff's complaint, to the extent it asserts a violation of plaintiff's constitutional rights, as an action arising pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 92 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Pursuant toBivens, a claim must allege facts showing that the defendants acted under color of federal law to deprive the plaintiff of a constitutional right.Id. at 389. Federal courts have analogized Bivens claims to claims arising pursuant to 42 U.S.C. § 1983 which require a showing that the defendants acted under color of state law to deprive the plaintiff of a constitutional right. Butz v. Economou, 438 U.S. 478, 498-99, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978); Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995) (per curiam).
Rule 8 of the Federal Rules of Civil ProcedureFed.R.Civ.P. 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief," and Rule 8(e)(1) requires that each averment of a pleading be "simple, concise, and direct." A pleading "does not have to set out in detail the facts on which the claim for relief is based," 2 Moore's Federal Practice ¶ 8.04[1], at 8-22 (3d ed. 2002), but must give the court and the defendant "fair notice of what that plaintiff's claim is and the grounds upon which it rests." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). "The rule also serves to sharpen the issues to be litigated and to confine discovery and the presentation of evidence at trial within reasonable bounds." Chodos v. F.B.I., 559 F. Supp. 69, 71 (S.D.N.Y.), aff'd, 697 F.2d 289 (2d Cir. 1982), cert. denied, 459 U.S. 1111, 103 S.Ct. 741, 74 L.Ed.2d 962 (1983). While the pleading of a pro se litigant should be liberally construed in his favor, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam), a complaint that is prolix or "so confused, ambiguous, vague or otherwise unintelligible that its true substance, if any, is well disguised," fails to comply with Rule 8, and may be dismissed sua sponte. Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988); see also Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995).
This complaint fails to satisfy Rule 8 and cannot be upheld in its present form because plaintiff fails to provide "fair notice of what [his] claim is and the grounds upon which it rests." Conley, 355 U.S. at 47. In the complaint plaintiff clouds the legal issues he may be trying to present with a barrage of legal terms and paperwork, but, through no fault of his own, plaintiff uses legal terms that have no meaning in the context in which they are used. Moreover, the more than 600 pages of exhibits that are attached to the complaint do not constitute a statement of a claim for relief. The exhibits should support the statement of claim, but do not take the place of a clear and concise statement of claim. By presenting a great amount of disjointed information, plaintiff has rendered it impossible to comprehend the basis of his claim. The Court is obligated therefore to dismiss the complaint. See Prezzi v. Schelter, 469 F.2d 691 (2d Cir. 1972); Kampe v. Lefkowitz, No. 90 Civ. 6491, 1990 WL 170335, at *2 (S.D.N.Y. Nov. 1, 1990). Improper Defendants
To the extent the 50-page complaint is comprehensible, it appears that plaintiff may be challenging the U.S. Supreme Court's 1996 rejection of his petition for a writ of certiorari. See Letters from Suter, by Elliot, dated August 9, 1996 and October 16, 1996, attached to the Complaint as Exhibits 1 and 3, respectively. He also may be attempting to challenge a determination concerning his Social Security benefits. See Letter from Social Security Administration to plaintiff, dated December 23, 1993, attached to the Complaint as Exhibit 1. The remainder of the more than 600 pages of exhibits is comprised largely of photocopies of cases and statutes.
In addition to failing to meet the requirements of Fed.R.Civ.P. 8, the complaint must be dismissed as to defendants Suter and Elliot, clerks at the United States Supreme Court. Judges and their clerks have absolute immunity from suit for judicial acts performed in their judicial capacities. See Mireles v. Waco, 502 U.S. 9, 11, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991) (per curiam) ("[J]udicial immunity is an immunity from suit, not just from the ultimate assessment of damages.") (citation omitted); Forrester v. White, 484 U.S. 219, 225, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988) (judicial immunity protects judicial independence by "insulating judges from vexatious actions prosecuted by disgruntled litigants"); Oliva v. Heller, 839 F.2d 37, 38 (2d Cir. 1988) (judicial immunity extends to law clerks). This absolute "judicial immunity is not overcome by allegations of bad faith or malice[;]" nor can a judge "be deprived of immunity because the action he took was in error . . . or was in excess of his authority." Mireles, 502 U.S. at 11 (citation omitted). Inasmuch as plaintiff claims that the court clerks violated his civil rights by returning his petitions for a writ of certiorari for failure to comply with certain statutory content, form and timing requirements, the court clerks were assisting judges in performing their judicial functions and the actions were discretionary acts of a judicial nature. See Oliva, 839 F.2d at 38 (citing cases where judicial immunity extended to clerks who issued warrants and clerks who fixed bail in misdemeanor cases);Rodriquez v. Weprin, 116 F.3d 62, 66 (2d Cir. 1997) (judicial immunity extended to clerk's management of court calendar). As such, plaintiff's claims against those defendants are thus foreclosed by absolute immunity and must be dismissed.
Plaintiff's claims against the United States itself must be dismissed pursuant to the doctrine of sovereign immunity. "The United States, as sovereign, is immune from suit save as it consents to be sued," and hence may be sued only to the extent that it has waived sovereign immunity by enacting a statute consenting to suit. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed 1058 (1941). There is no waiver of sovereign immunity for actions filed pursuant to Bivens, 42 U.S.C. § 1983 and other civil rights statutes. See Keene Corp. v. United States, 700 F.2d 836, 845 n. 13 (2d Cir. 1983) (Bivens); Morpurgo v. Board of Higher Ed. in City of New York, 423 F. Supp. 704, 714 (S.D.N.Y. 1976) (Section 1983). See also Newsome v. E.E.O.C., 301 F.3d 227, 233 (5th Cir. 2002) (civil rights statutes generally).
In addition, plaintiff's claims against the United States Supreme Court and the United States itself also must be dismissed pursuant to statutory construction. Section 1983 provides that an action may be maintained against a "person" who has deprived another of rights under the "Constitution and laws." 42 U.S.C. § 1983. A court is not a "person" within the meaning of section 1983 or Bivens. See Zuckerman v. Appellate Division, 421 F.2d 625, 626 (2d Cir. 1970); Mathis v. Clerk of First Dep't, Appellate Div., 631 F. Supp. 232, 235 (S.D.N.Y. 1986). Nor is the United States a "person" within the meaning of those actions. See Keene, 700 F.2d at 845 n. 13 (United States cannot be sued pursuant to Bivens);McGann v. United States, 1999 WL 173596, at *4 (S.D.N.Y. March 29, 1999) (following Keene); Morpurgo, 423 F. Supp. at 714 (United States not a "person" under section 1983). The claims against the Supreme Court and the United States therefore cannot be upheld. See Fed.R.Civ.P. 12(b)(6).
Exhaustion of Administrative Remedies
If plaintiff is attempting to challenge a recent determination of his Social Security benefits, the claim must be dismissed for failure to exhaust his administrative remedies. Before plaintiff may file an action in federal court concerning the denial of Social Security disability benefits, he must first exhaust his administrative remedies with the Commissioner of Social Security. There are four steps that must be followed: First, plaintiff must receive an initial determination concerning the disability benefits. Second, if plaintiff is dissatisfied with the initial determination, he may seek reconsideration. Third, if he is dissatisfied with the reconsideration determination, plaintiff may request a hearing before an administrative law judge. Fourth, if plaintiff is dissatisfied with the resulting decision, he may request that the Appeals Council review the decision. See 42 U.S.C. § 405;Schweiker v. Chilicky, 487 U.S. 412, 424, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988); Furlong v. Shalala, 238 F.3d 227, 230 (2d Cir. 2001).
If the decision denying benefits is affirmed by the Appeals Council, he will be issued a letter to that effect. Plaintiff may then seek review of the decision in federal court pursuant to section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g); 20 C.F.R. § 422.210. Plaintiff has 60 days from the date of the receipt of the letter in which to file a civil action in federal court. See 42 U.S.C. § 405(g).
Here, Owens fails to set forth that he has attempted to appeal any recent determination of his Social Security benefits. His case therefore must be dismissed.
Litigation History
Mr. Owens has an extensive history of filing non-meritorious and often incomprehensible complaints in this Court. See Owens v. Social Security Administration, No. 02 Civ. 3752 (JGK) (dismissed for failure to exhaust and comply with Rule 8 and as barred by judicial immunity); Owens v. Keenan, No. 02 Civ. 5621 (JGK) (same); Owens v. Presbyterian Hospital, No. 02 Civ. 702 (MBM) (dismissed pursuant to Rule 8), aff'd, No. 02-7216, 2002 WL 31501552 (2d Cir. Nov. 7, 2002) (ordered to show cause why he should not be enjoined from any further filings in Second Circuit without obtaining leave to file from Chief Judge); Owens v. McCall, No. 99 Civ. 534 (AKH) (dismissed pursuant to Rule 8), aff'd, No. 00-7636, 2001 WL 209871 (2d Cir. Mar. 2, 2001) (warned that further filing of frivolous appeals may result in sanctions); Owens v. State of New York, No. 99 Civ. 8674 (HB) (dismissed pursuant to Rule 8 and Rule 12(b)(6)),aff'd, No. 00-9047, 2001 WL 604938 (2d Cir. May 31, 2001) (warned that filing further frivolous appeals may result in sanctions); Owens v. Chater, No. 98 Civ. 4379 (TPG) (remanded to Commissioner of Social Security); Owens v. New York State Dept. of Soc. Servs., No. 98 Civ. 2207 (LBS) (dismissed pursuant to Rule 8); Owens v. United States, No. 96 Civ. 3794 (LLS) (dismissed pursuant to Rule 8 and Rule 12(b)(1)); Owens v. Presbyterian Hosp., No. 94 Civ. 6004 (RPP) (dismissed pursuant to Rule 12(b)(6)), aff'd, 101 F.3d 682 (2d Cir. 1996), cert. denied, 519 U.S. 1033 (1996), reh'g denied, 519 U.S. 1143 (1997); Owens v. Bellevue Hosp., No. 94 Civ. 6003 (JFK) (dismissed pursuant to Rule 12(b)(6)),aff'd, 101 F.3d 109 (2d Cir. 1996); Owens v. Harris, No. 94 Civ. 5968 (JFK) (dismissed as time-barred), aff'd, 116 F.3d 466 (2d Cir. 1997);Owens v. Shalala, No. 94 Civ. 3788 (LMM) (dismissed for failure to exhaust administrative remedies); Owens v. Goldin, No. 88 Civ. 2713 (CLB) (dismissed without prejudice with leave to file new complaint within reasonable time naming appropriate defendants).
Apparently, all of plaintiff's cases that have been adjudicated to date have been dismissed as non-meritorious or otherwise deficient. Many of those dismissals have been accompanied by judicial warnings that filing further frivolous litigations may result in sanctions. See, supra, Owens v. McCall, No. 00-7636, 2001 WL 209871 (2d Cir. Mar. 2, 2001); Owens v. State of New York, No. 00-9047, 2001 WL 604938 (2d Cir. May 31, 2001);Owens v. Presbyterian Hospital, No. 02 Civ. 702 (MBM) (Jan. 29, 2002),aff'd No. 02-7216, 2002 WL 31501552 (2d Cir. Nov. 7, 2002); Owens v. Social Security Admin., No. 02 Civ. 3752 (JGK); Owens v. Keenan, No. 02 Civ. 5621 (JGK) (consolidated) (S.D.N.Y. Oct. 21, 2002).
Nonetheless, the Court is reluctant to impose an injunction upon plaintiff at this time, but warns plaintiff that further non-meritorious and frivolous filings will result in specific sanctions being imposed upon him.
Conclusion
Accordingly, the complaint is dismissed without prejudice, in its entirety, for failure to comply with Rule 8 of the Federal Rules of Civil Procedure, failure to state a claim upon which relief may be granted and failure to exhaust administrative remedies. See Fed.R.Civ.P. 8, 12(b)(6); 42 U.S.C. § 405(g). Once plaintiff has exhausted his administrative remedies, plaintiff may file an amended complaint that simply, concisely, and directly states a claim upon which relief may be granted.
SO ORDERED.