Opinion
3:24-CV-0477 (BKS/ML)
07-25-2024
KENNARD DESMOND WELLINGTON, sui-juris, an aggrieved man with full life, Plaintiff, v. BROOME COUNTY DISTRICT ATTORNEY'S OFFICE; MICHAEL A. KORCHAK, in his personal capacity, and all successor or assigns; and JOSEPH F. CAWLEY, in his personal capacity, and all successor or assigns, Defendants.
ORDER AND REPORT-RECOMMENDATION
MIROSLAV LOVRIC, UNITED STATES MAGISTRATE JUDGE
The Clerk has sent a pro se complaint in the above captioned action together with (1) an amended application to proceed in forma pauperis, (2) an inmate authorization, (3) an affidavit of obligation, (4) a submission, (5) a submission in support of the Complaint, (6) a “Default Affidavit,” (7) a letter, (8) a motion to dismiss for failure to supply supporting depositions, and (9) a “Truth Affidavit” filed by Kennard Desmond Wellington (“Plaintiff”) to the Court for review. (Dkt. Nos. 1, 4, 7, 8, 9, 10, 11, 12, 13, 14.) For the reasons discussed below, I grant Plaintiff's amended in forma pauperis application, recommend that Plaintiff's Complaint be dismissed in its entirety without prejudice but without leave to amend, and recommend that Plaintiff's motion to dismiss be denied. (Dkt. Nos. 1, 7, 13.)
I. BACKGROUND
Construed as liberally as possible, Plaintiff's Complaint alleges that defendants Broome County District Attorney's Office, Michael A. Korchak, and Joseph F. Cawley (collectively “Defendants”) violated his civil rights. (See generally Dkt. No. 1.)
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)).
The Clerk of the Court is directed to update the docket to reflect the proper spelling of Defendant Michael A. Korchak's name.
Plaintiff's Complaint is rambling, nonsensical, and replete with legal jargon. (Id.) Plaintiff's grievances appear to stem from his interactions with Defendants during his New York State criminal prosecution. (Dkt. No. 1 at 12.) The Complaint appears to allege that Defendant Korchak is the Broome County District Attorney and Defendant Cawley is a Broome County Supreme Court Judge. (Id.)
Plaintiff appears to assert the following twenty-eight causes of action: (1) a claim of “personage/improper joinder”; (2) a claim of “barratry”; (3) a claim of falsification of accounts; (4) a claim of identity theft; (5) a claim of violation of the truth in lending act; (6) a claim of securities fraud; (7) a claim of failure to subrogate and exonerate; (8) a claim of “misprision of felony”; (9) a claim of conspiracy against rights under color of law; (10) a claim of deprivation of the common law; (11) a claim of deprivation of the Sixth Amendment right to know the nature and cause of the action; (12) a claim that Plaintiff's due process rights were violated pursuant to the Fifth Amendment and 42 U.S.C. § 1983; (13) a claim of fraudulent concealment; (14) a claim of misapplication of codes; (15) a claim of prosecution and conviction without jurisdiction; (16) a claim of unconstitutional codes/lacking required enactment clauses; (17) a claim of knowingly representing a plaintiff who had no standing to sue; (18) a claim that Defendants violated the rules of bankruptcy; (19) a claim of involuntary servitude; (20) a claim of dishonest services through scheme or practice to defraud pursuant to 18 U.S.C. § 1346; (21) a claim of conflict of interest; (22) a claim of felony misappropriation of funds/theft by conversion; (23) a claim of sham legal process/fraud upon the court; (24) a claim of racketeering; (25) a claim of felony perjury; (26) a claim of war against the constitution, which is treason; (27) a claim of violation of the oaths to uphold the constitution; and (28) a claim of false imprisonment. (Dkt. No. 1 at 1213.) As relief, Plaintiff seeks damages in the amount of “$10,000 per violation, per actor” and his release from confinement. (Dkt. No. 1 at 8, 12.)
Plaintiff seeks leave to proceed in forma pauperis (“IFP”). (Dkt. No. 7.)
II. PLAINTIFF'S AMENDED APPLICATION TO PROCEED IN FORMA PAUPERIS
“28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court without prepayment of the filing fee that would ordinarily be charged.” Cash v. Bernstein, 09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010). “Although an indigent, incarcerated individual need not prepay the filing fee at the time of filing, he must subsequently pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate accounts.” Cash, 2010 WL 5185047, at *1 (citing 28 U.S.C. § 1915(b); Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)).
Section § 1915(g) prohibits a prisoner from proceeding in forma pauperis where, absent a showing of “imminent danger of serious physical injury,” a prisoner has filed three or more actions that were subsequently dismissed as frivolous, malicious, or failing to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(g). The Court has reviewed Plaintiff's litigation history on the Federal Judiciary's Public Access to Court Electronic Records (“PACER”) Service. See http://pacer.uspci.uscourts.gov. It does not appear from that review that Plaintiff had accumulated three strikes for purposes of 28 U.S.C. § 1915(g) as of the date this action was commenced.
Upon review, the Court finds that Plaintiff has submitted a completed IFP application which has been certified by an appropriate official at his facility (Dkt. No. 7 at 2.), and which demonstrates economic need. See 28 U.S.C. § 1915(a)(2). Plaintiff has also filed the inmate authorization required in the Northern District. (Dkt. No. 4.)
Accordingly, Plaintiff's amended application to proceed with this action IFP is granted. (Dkt. No. 7.)
III. LEGAL STANDARD FOR REVIEW OF THE COMPLAINT
Having found that Plaintiff met the financial criteria for commencing this action in forma pauperis, the Court must consider the sufficiency of the allegations set forth in the Complaint in light of 28 U.S.C. §§ 1915(e). Section 1915(e) of Title 28 of the United States Code directs that, when a plaintiff seeks to proceed in forma pauperis, “the court shall dismiss the case at any time if the court determines that- . . . (B) the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see also 28 U.S.C. 1915A(a) (“The court shall review . . . as soon as practicable . . . a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.”).
To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable basis in either law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Additionally, when reviewing a complaint, a court may also look to the Federal Rules of Civil Procedure. Rule 8 of the Federal Rules of Civil Procedure provides that a pleading which sets forth a claim for relief shall contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” See Fed.R.Civ.P. 8(a)(2). The purpose of Rule 8 “is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer, prepare an adequate defense and determine whether the doctrine of res judicata is applicable.” Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (McAvoy, C.J.) (quoting Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C. 1977)).
A court should not dismiss a complaint if the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), rev'd on other grounds, 682 Fed.Appx. 30. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the court should construe the factual allegations in the light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Rule 8 “demands more than an unadorned the-defendant-unlawfully-harmed-me accusation.” Id. Thus, a pleading that contains only allegations which “are so vague as to fail to give the defendants adequate notice of the claims against them” is subject to dismissal. Sheehy v. Brown, 335 Fed.Appx. 102, 104 (2d Cir. 2009).
IV. ANALYSIS
In addressing the sufficiency of a plaintiff's complaint, the court must construe his pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Having reviewed Plaintiff's Complaint with this principle in mind, I recommend that it be dismissed.
As it currently stands, Plaintiff's Complaint wholly fails to provide fair notice of the claims he attempts to assert. By way of example, the Complaint states:
Respondent judge knows the difference between a living man and a fiction, yet did nothing Respondents knowingly, inten[t]ionally and maliciously conspired to prosecute claimant, a sentient being, under a code that was, by definition of the legislature, meant only for artificial entities. .
..
[I]n order to initiate the above-referenced prosecution, Respondents requested a grant from the U.S. treasury using a GSA form 1193-A, using the claimant's name the treasury sent the court a grant in regard to the above-reference case number(s) for the purpose of discharging the criminal case which the court failed to do. The court stole from the defendant and the federal government when the court sold securities in this regard, and then the debt needed to be settled, the Respondents applied for the funds, therefore, they are liable on the debt, but the court is holding the claimant, the living man who was unlawfully prosecuted as an artificial entity, as surety on the debt, but by what authority?
(Dkt. No. 1 at 15.)
The Complaint continues with run-on sentences containing legal jargon and nonsensical allegations. By way of example, the Amended Complaint states:
Broome County Supreme Court and Broome County district attorney's office are private, for-profit corporate entities having nothing to do with the de jure Republic of the people. The court is merely a for profit corporation as opposed to a de jure court of the people.
(Dkt. No. 1 at 22.)
The Complaint asserts that the legal authority supporting the claims contained therein are pursuant to “universal moral/existential truths/principles, expressed in Judaic (mosaic) orthodox Hebrew/Jewish commercial code, corollary to exodus (chiefly Exodus 20:15, 16). This is the best known commercial process in America.” (Dkt. No. 1 at 33.)
Given its lack of clarity, the undersigned recommends dismissal of the 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.
In the alternative, Plaintiff's claims are subject to dismissal for the following three reasons. First, Defendant Broome County District Attorney's Office is immune from suit. See Campbell v. New York State Police, 23-CV-1337, 2024 WL 1702010 at *5 (N.D.N.Y. Apr. 19, 2024) (Lovric, M.J.) (citing Roark v. New York, 23-CV-1237, 2023 WL 8827185, at *3 (N.D.N.Y. Dec. 21, 2023) (Lovric, M.J.) (citations omitted) (recommending that the plaintiff's claims against the Watertown District Attorney's Office be dismissed as barred by the Eleventh Amendment), report and recommendation adopted by, 2024 WL 125512, at *1 (N.D.N.Y. Jan. 11, 2024) (Hurd, J.)) (recommending dismissal of the plaintiff's claims against defendant Broome County District Attorney's Office), report and recommendation adopted, 2024 WL 3063674 (N.D.N.Y. June 20, 2024) (Nardacci, J.). Second, to the extent that Defendant Korchak is sued in his official capacity, those claims are to be treated as against the Defendant Broome County District Attorney's Office and thus, subject to dismissal based on Eleventh Amendment immunity. See D'Alessandro v. City of New York, 713 Fed.Appx. 1, 8 (2d Cir. 2017) (“[I]f a district attorney or an assistant district attorney acts as a prosecutor, she is an agent of the state, and therefore immune from suit in her official capacity.”); Rich v. New York, 21-CV-3835, 2022 WL 992885, at *5 n.4 (S.D.N.Y. Mar. 31, 2022) (“[A]ny claims Plaintiff may raise against the DA Defendants in their ‘official capacity' would be precluded by immunity under the Eleventh Amendment.”). Moreover, to the extent that Defendant Korchak is sued in his individual capacity and Plaintiff seeks monetary damages, those claims are barred by the doctrine of prosecutorial immunity which “is a form of absolute immunity that shields [a] prosecutor acting in the role of an advocate in connection with a judicial proceeding . . . for all acts intimately associated with the judicial phase of the criminal process.” Carroll v. Trump, 23-CV-1045, 23-CV-1146, 2023 WL 8608724, at *1 n.4 (2d Cir. Dec. 13, 2023) (quoting Simon v. City of New York, 727 F.3d 167, 171 (2d Cir. 2013)) (internal quotation marks omitted). Third, I recommend that any claims against “Defendant Cawley in his official capacity be dismissed pursuant to the Eleventh Amendment.” Campbell v. City of Binghamton, 24-CV-0067, 2024 WL 1701980, at *3 (N.D.N.Y. Apr. 19, 2024) (Lovric, M.J.), report and recommendation adopted, 2024 WL 3063674 (N.D.N.Y. June 20, 2024) (Nardacci, J.). Moreover, I recommend that any “claims against Defendant Cawley in his individual capacity be dismissed based on the doctrine of judicial immunity” which provides absolute immunity to judges “from suit for claims seeking damages for any actions taken within the scope of their judicial responsibilities.” Campbell v. City of Binghamton, 2024 WL 1701980, at *3 (citing Mireles v. Waco, 502 U.S. 9, 11-12 (1991)).
The Court also notes that Plaintiff's assertion that he is a “state national recognized by the United States of America as a clean and proper status a peaceful private American” (Dkt. No. 9 at 9) 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 the 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 is cautioned that he is beginning to demonstrate a 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.
In addition to the voluminous filings Plaintiff has made in this action, he has filed two other actions in this district that were consolidated and dismissed. See Wellington v. Foland, 19-CV-0457, 19-CV-0615, 2020 WL 6822945, at *3 (N.D.N.Y. Nov. 20, 2020) (Suddaby, C.J.) (dismissing Plaintiff's consolidated actions for failure to comply with the Court's orders and his discovery obligations).
V. 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 amendments to Plaintiff's Complaint are not likely to be productive and will further clog the wheels of justice. As a result, I recommend that Plaintiff's 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.”).
VI. PLAINTIFF'S ADDITIONAL FILINGS
Plaintiff filed an affidavit of obligation (Dkt. No. 8), submission dated May 22, 2024 (Dkt. No. 9), submission in support of the Complaint (Dkt. No. 10), a “Default Affidavit” (Dkt. No. 11), letter (Dkt. No. 12), and “Truth Affidavit” (Dkt. No. 14). The undersigned considered these submissions with the Complaint and reached the conclusion set forth above that Plaintiff's filings are frivolous and, in the alternative, that the claims against Defendants should be dismissed based on various immunity doctrines. These filings (Dkt. Nos. 8, 9, 10, 11, 12, and 14) do not appear to seek any relief from the Court and fail to identify the legal grounds for such relief.
Plaintiff also filed a motion to dismiss for “failure to supply supporting depositions.” (Dkt. No. 13.) In light of the recommended disposition of this case, I recommend that Plaintiff's motion be denied. (Dkt. No. 13).
The undersigned also notes that Plaintiff's motion appears to be seeking dismissal of the New York State criminal charges against him. (See generally Dkt. No. 13.)
ACCORDINGLY, it is
ORDERED that Plaintiff's amended application to proceed in forma pauperis (Dkt. No. 7) is GRANTED; and it is further
ORDERED that the Clerk of the Court (1) provide the Superintendent of the facility that Plaintiff has designated as his current location with a copy of Plaintiff's inmate authorization form (Dkt. No. 4) and notify that official that Plaintiff has filed this action and is required to pay the Northern District of New York the entire statutory filing fee of $350.00 in installments, over time, pursuant to 28 U.S.C. § 1915; and (2) provide a copy of Plaintiff's inmate authorization form (Dkt. No. 4) to the Financial Deputy of the Clerk's office; and it is further
ORDERED that the Clerk of the Court update the docket to reflect the correct spelling of Defendant Michael A. Korchak's name; and it is further respectfully
RECOMMENDED that the COURT DISMISS WITHOUT PREJUDICE BUT WITHOUT LEAVE TO AMEND Plaintiff's Complaint (Dkt. No. 1) in its entirety pursuant to 28 U.S.C. § 1915(e); and it is further respectfully
RECOMMENDED that Plaintiff's motion to dismiss (Dkt. No. 13) be DENIED; 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).