Opinion
No. 04-CV-6240CJS(Fe).
June 4, 2004
ORDER
INTRODUCTION
Plaintiff, Victor A. De Ponceau (De Ponceau), has filed this pro se action seeking relief under 42 U.S.C. § 1983 (Docket No. 1) and has paid the filing fee. Although he names Alex Castrechini, Josephine Langill, Michael Martin, Louis Conyer, and New York Jail (4) Judges as plaintiffs, only De Ponceau has signed any of the papers filed in this action (Docket Nos. 1-5). He has moved for recusal of Judge Siragusa and named the District Court Judges located in Rochester, New York as defendants (Docket No. 2). For the reasons discussed below, the complaint is dismissed with prejudice. The motion to recuse is denied as moot. Further, the Clerk of the Court is directed to not issue Summonses in any new action filed by Victor A. De Ponceau, or to which Victor A. De Ponceau is a plaintiff party, until the complaint has been reviewed.
DISCUSSION
A. PlaintiffsDe Ponceau has drafted and filed this complaint, purportedly on behalf of himself and the other plaintiffs. Nevertheless, only De Ponceau has signed any of the papers filed. As was previously discussed in the order dismissing Civil Action 04-CV-6174L, De Ponceau is not an attorney. To the extent that DePonceau is attempting to raise claims on behalf of the other plaintiffs, such representation is not permitted in federal court. Section 1654 of 28 U.S.C. provides that "[i]n all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein." 28 U.S.C.A. § 1654. Thus, individual plaintiffs may appear " pro se" on their own behalf. Nevertheless, plaintiffs have no statutory nor constitutional right to be represented in federal court by a non-lawyer. See e.g., Phillips v. Tobin, 548 F.2d 408, 411 n. 3 (2d Cir. 1976). Again De Ponceau may, of course, provide whatever personal support he chooses to these other people, in his capacity as a like-minded individual, but he may not file and pursue claims raised on their behalf.
Moreover, in this action, the other named plaintiffs have not signed the complaint. Thus, in this action there is not even an indication that these individuals, acting pro se, intend to raise any of these claims on their own behalf. Accordingly, the claims relating to Alex Castrechini (Castrechini), Josephine V. Langill (Langill), Michael Martin (Martin), Louis Conyer (Conyer) and New York Jail (4) Judges are dismissed, and these plaintiffs are terminated as parties to this action.
B. Jurisdiction and Dismissal
The complaint violates the pleading requirements of the Federal Rules of Civil Procedure, Rules 8 and 10. "When a complaint fails to comply with [the requirements of the Federal Rules of Civil Procedure], the district court has the power, on motion or sua sponte, to dismiss the complaint or to strike such parts as are redundant or immaterial." Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995). Here, the allegations are replete with innuendo, conclusory accusations and unrelated factual assertions. De Ponceau builds a conspiracy out of straws, based on his assessment that virtually everyone to whom he has complained has failed to take up his cause, in violation of his constitutional rights.
For example, De Ponceau names President Bush as a defendant because President Bush has failed to pursue charges against De Ponceau's ex-wife despite the volumes of paper De Ponceau has sent to Washington. (Docket No. 1, First Cause of Action). De Ponceau claims that the United States Court of Appeals, Second Circuit, engaged in the conspiracy because De Ponceau's criminal allegations were not duly considered during his appeal from the dismissal of his civil action. The Honorable Judges Frazee and Kaye allegedly conspired because they served on a judicial committee together. (Docket No. 1, Third Cause of Action). De Ponceau includes vague assertions regarding "other people" involved in [defendant's] shady schemes and scams." (Docket No. 1, Sixth Cause of Action). In short, the complaint fails "to give the adverse party fair notice of the claim asserted so as to enable him to answer and prepare for trial." Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).
Furthermore, De Ponceau has filed three previous actions; De Ponceau v. Bush, et al., (02-CV-6518T); De Ponceau v. State Street Bank and Trust Co., et al. (04-CV-6044CJS); and De Ponceau, et al. v. Pataki, et al. (04-CV-6174L). In 04-CV-6174L, De Ponceau was joined by Castrechini, Langill, and New York Jail (4) Judges (Jail) as the named plaintiffs. Here, the allegations about which De Ponceau has any personal stake or standing were all previously raised and dismissed in De Ponceau v. Bush, et al. and De Ponceau v. State Street Bank and Trust Co., et al. Although this Court liberally construes the pleadings filed by pro se litigants, Haines v. Kerner, 404 U.S. 519 (1972), sua sponte dismissal of duplicative or repetitious litigation of identical causes of action is sometime appropriate. See Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988) (holding that a complaint that repeats pending or previously litigated claims "may be considered abusive and dismissed under the authority of section 1915(e)"); Blake v. Bentsen, 1995 WL 428694, at *2 (E.D.N.Y. 1995) (directing dismissal of repetitious litigation as abusive and malicious). Here, De Ponceau's identical claims would be subject to a clear defense barring re-litigation. "Res judicata and collateral estoppel are related but distinct doctrines that may bar a party from litigating certain claims or issues in a subsequent proceeding." Flaherty v. Lang, 199 F.3d 607, 612 (2d. Cir. 1999) (citing Leather v. Eyck, 180 F.3d 420, 424 (2d Cir. 1999)).
In the dismissal order in 04-CV-6174L, De Ponceau's lack of standing was addressed.
Additionally, De Ponceau's previous actions have been dismissed for lack of subject matter jurisdiction. Each of these actions have, at its core, De Ponceau's heartfelt objections to determinations and proceedings in New York State Courts. In 02-CV-6518T, the United States Court of Appeals, Second Circuit, affirmed the dismissal and dismissed his appeal (USCA# 02-6282). Mere repetition of these claims cannot cure the Court's lack of jurisdiction over De Ponceau's claims.
Appeal is pending in 04-CV-6044CJS, and no notice of appeal has been filed as of yet in 04-CV-6174L.
The claims relating to the other named plaintiffs fare no better. The allegations purportedly raised on behalf of Castrechini and Langell were previously dismissed in De Ponceau, et al. v. Pataki, et al. (04-CV-6174L). The allegations regarding Michael Martin (Martin) and Louis Conyer (Conyer), while not raised in a previous action, still fall short of the requirements of Rule 8. To the extent that any sense can be made of the complaint, Martin's causes of action consist of an incomplete recitation of allegations about a contested custody dispute without such bare necessities as named defendants, dates, name of court, outcome, or complained-of events. The claims relating to Conyer allege that the named-defendant judge was rude over the telephone, and that the judge came to an incorrect conclusion when assessing the facts and law in a divorce proceeding, without providing sufficient detail to identify the state court action. None of the allegations or causes of action relate to any complained-of injury to the organization New York Jail (4) Judges, which apparently is a support group for individuals who believe that they are wronged by judicial decisions.
Furthermore, De Ponceau has been advised in the Orders dismissing his previous actions that, in order to proceed in this court, he has the burden of establishing jurisdiction, the federal district courts do not have subject matter jurisdiction over these claims, and that, as a non-attorney and not admitted to practice in the federal court, he may not file actions on behalf of other litigants.
Finally, to the extent that De Ponceau is seeking to bring criminal charges against any or all of the named defendants, such claims must be dismissed. The law is well settled that no private citizen has a constitutional right to bring a criminal complaint against another individual. Leeke v. Timmerman, 454 U.S. 83 (1981); Linda R.S. v. Richard D., 410 U.S. 614 (1973); Ostrowski v. Mehltretter, 20 Fed.Appx. 87 (2d Cir. 2001).
Accordingly, the complaint is dismissed with prejudice.
C. Sanctions
De Ponceau has been advised of the possibility of sanctions that may be imposed under Rule 11(b) of the Federal Rules of Civil Procedure. See 04-CV-6044CJS, Order filed March 2, 2004. According to Rule 11(b), by filing an action in federal court, a party is certifying
that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, . . .
(2) the claims . . . are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; [and]
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are reasonably based upon information and belief[.]
Rule 11 of the Federal Rules of Civil Procedure permits a court to impose sanctions on a pro se litigant who violates Rule 11(b). See Jones v. City of Buffalo, 1998 WL 214807, ** 3, 4 (W.D.N.Y. April 22, 1998); see also Patterson v. Aiken, 841 F.2d 386, 387 (11th Cir. 1988) (" pro se filings do not serve as an `impenetrable shield [from the application of Fed.R.Civ.P. 11], for one acting pro se has no license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets'") (quoting Farguson v. Mbank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986)). "`[T]he central purpose of Rule 11 is to deter baseless filings in district court and thus . . . streamline the administration and procedure of the federal courts.'" Jones, at *3 (quoting Cooter Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990)); see also Advisory Committee Notes to the 1993 Amendments to Fed.R.Civ.P. 11 ("the purpose of Rule 11 sanctions is to deter rather than to compensate").
The sanctions that a court may impose may be monetary or non-monetary, but the choice should have reference to the conduct which warrants the sanction and must be carefully tailored based on the facts before the Court. "Non-monetary sanctions normally come in the form of an injunction." Jones, at *4, citing In re Martin-Trigona, 737 F.2d 1254, 1262-1263 (2d Cir. 1984). See Fed.R.Civ.P. 11(c)(2) ("[a] sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct); Williams v. Revlon Co., 156 F.R.D. 39, 44 (S.D.N.Y. 1994) ("Rule 11 sanctions must be tailored . . . to the particular facts of the particular case"). Vexatious litigants may be sanctioned in a way which limits the litigant's ability to initiate new actions unless the litigant first complies with certain conditions. Jones, supra. After an examination of the numerous complaints filed by plaintiff, the Court finds that De Ponceau is a vexatious litigant who warrants the imposition of a sanction under Fed.R.Civ.P. 11, as outlined below.
CONCLUSION AND ORDER
The Complaint is dismissed with prejudice. The pending motion is denied as moot. The Clerk of the Court is directed to mail a copy of this order to defendants, as it appears some have already been served.
In addition, the Court finds that the following sanction is warranted: that De Ponceau may not file and serve Summonses and Complaints in any additional actions in this Court without obtaining the prior approval of the Court. Any future submissions to the Court must be accompanied by an affidavit by De Ponceau affirming the following, to the best of his knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
• that the federal district court has jurisdiction over the claims raised;
• that the claims he has set forth in the action are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; and
• that the allegations and other factual contentions have evidentiary support or, if specifically so identified, are reasonably based upon information and belief.
The Clerk of the Court is directed to not file any submissions from De Ponceau until the Court has determined whether the court has jurisdiction over the claims; the allegations in fact are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. If the Court determines that the submission should be accepted for filing, the Court will so direct. In the event a future complaint is determined to be insufficient for lack of subject matter jurisdiction, or to be otherwise frivolous as defined above, the complaint shall be dismissed with prejudice by summary Order citing to this Decision and Order. Only upon a determination that a claim may go forward shall the Court direct the Clerk of the Court to issue Summonses. Unless and until the Court enters an Order directing issuance of Summonses, no defendant shall be required to answer or otherwise respond.
SO ORDERED.