Opinion
03-CV 1774 (ARR)
August 11, 2003
William J. Higgins Glen Cove, NY, for Plaintiff
Glenn Melcher Tax Division United States Department of Justice Washington, DC, for the Defendant
ORDER
Plaintiff pro se William J. Higgins commenced this action on April 11, 2003. Distilling his allegations from his rambling and at times incomprehensible complaint, the court understands plaintiff to allege that defendants tortiously refused to accept his offer in compromise as a complete discharge of the tax liability he owes. The complaint is hereby dismissed. Also, plaintiff is ordered to show cause by September 8, 2003, why he should not be enjoined from commencing future lawsuits without leave of the court.
Plaintiff asserts 27 "counts," sounding in theories ranging from negligence to unlawful discrimination. Compl. ¶ 7. However, the bulk of his complaint makes clear that he intends to proceed against defendants in tort pursuant to the Federal Tort Claims Act. Id. ¶¶ 21-24.
BACKGROUND
Plaintiff commenced an almost identical action against the same defendants, minus Laurence Velazquez, on January 17, 2002, in which he asserted similar claims. Compare Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (holding that the district court properly dismissed a complaint sua sponte. even where the plaintiff paid the filing fee).
Injunction on Future Filings
In a conference held on April 2, 2003, the Honorable Lois Bloom, United States Magistrate Judge, explicitly warned plaintiff against filing this frivolous complaint. After she informed plaintiff that she could not order the IRS to give plaintiff a second appeal, they had the following colloquy:
Plaintiff: Okay. So, do you know where this goes? It goes into another complaint against Mr. Velasquez and we file back into the federal court and —
The Court: No, because when you do that, sir, again, you're creating a pattern of yourself as abusing the litigation process. You don't have jurisdiction to sue the I.R.S. in this case and if you do that because he denied your appeal, you're creating a record for yourself here. . . . You don't like the result and so now you're going to file a claim against him. I'm sorry, on the record I am telling you that if you take that step, that will be a frivolous lawsuit. You cannot sue the officer that gave you a denial because you disagree with that denial.
Apr. 2, 2003, Tr. at 24. Later, Judge Bloom and plaintiff returned to the prospect of further litigation:
Plaintiff: I'm going to spin off another litigation. I will state that here today.
The Court: And I will state for the record that if that comes before the Court —
Plaintiff: I will put it in the Southern District of New York. I don't care.
The Court: If that comes before the Court, Mr. Higgins, you will be found to be abusing the Court's processes; okay? It doesn't matter that you think that this guy [Velazquez] didn't listen to you.
Apr. 2, 2003, Tr. at 32. Plaintiff filed the instant complaint nine days later. Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (holding that the district court properly dismissed a complaint sua sponte. even where the plaintiff paid the filing fee).
Injunction on Future Filings
In a conference held on April 2, 2003, the Honorable Lois Bloom, United States Magistrate Judge, explicitly warned plaintiff against filing this frivolous complaint. After she informed plaintiff that she could not order the IRS to give plaintiff a second appeal, they had the following colloquy:
Plaintiff: Okay. So, do you know where this goes? It goes into another complaint against Mr. Velasquez and we file back into the federal court and —
The Court: No, because when you do that, sir, again, you're creating a pattern of yourself as abusing the litigation process. You don't have jurisdiction to sue the I.R.S. in this case and if you do that because he denied your appeal, you're creating a record for yourself here. . . . You don't like the result and so now you're going to file a claim against him. I'm sorry, on the record I am telling you that if you take that step, that will be a frivolous lawsuit. You cannot sue the officer that gave you a denial because you disagree with that denial.
Apr. 2, 2003, Tr. at 24. Later, Judge Bloom and plaintiff returned to the prospect of further litigation:
Plaintiff: I'm going to spin off another litigation. I will state that here today.
The Court: And I will state for the record that if that comes before the Court —
Plaintiff: I will put it in the Southern District of New York. I don't care.
The Court: If that comes before the Court, Mr. Higgins, you will be found to be abusing the Court's processes; okay? It doesn't matter that you think that this guy [Velazquez] didn't listen to you.
Apr. 2, 2003, Tr. at 32. Plaintiff filed the instant complaint nine days later.
This wholly frivolous lawsuit is but one of nine plaintiff has commenced in the Eastern District of New York. Of these, eight have been dismissed, either for failure to comply with court orders or for failure to assert meritorious causes of action. See Higgins v. CVS Inc. Chairman of the Board, No. 02 Civ. 883; Higgins v. IRS et al., No. 02 Civ. 208; Higgins v. IRS, No. 02 Civ. 499;Higgins v. Saint Francis Hospital Chairman, No. 02 Civ. 782;Higgins v. South Oaks Hospital Chairman, No. 02 Civ. 783;Higgins v. William Penn Life Ins. Co., No. 02 Civ. 784;Higgins v. North Shore University Hospital, No. 02 Civ. 844. As for this action, Judge Bloom explained to plaintiff at length at the April 2, 2003, conference why the court could not grant the relief he is seeking, and she admonished him in no uncertain terms not to file this complaint. Plaintiff heedlessly ignored her warning, demonstrating a profound disregard for her authority and the process of litigation in general.
Considerable public resources are expended each time plaintiff files a lawsuit, taxing scarce judicial resources and clogging the machinery of justice. In circumstances such as those forced upon the court by plaintiff, courts must act "to protect the public and the efficient administration of justice. . . ." In re Martin-Trigona, 737 F.2d 1254, 1262 (2d Cir. 1984). An essential mechanism by which such interests are served is an order enjoining the abusive litigant from filing future lawsuits without leave from the court. See In re Sassower, 20 F.3d 42, 44 (2d Cir. Jud. Council 1994); see also Schwartz v. Nordstrom. Inc., No. 94 Civ. 1005, 1994 U.S. Dist. LEXIS 15203, at *11 (S.D.N.Y. Oct. 25, 1994) (imposing an injunction against future lawsuits where a plaintiff, by repeatedly filing frivolous lawsuits, demonstrates "a deplorable lack of respect for the litigation process"). Such an injunction is appropriate in this case. See Martin-Trigona. 737 F.2d at 1262 (finding that an injunction against future filings is merited when a plaintiff "abuses the process of the Courts to harass and annoy others with meritless, frivolous, vexatious or repetitive . . . proceedings") (internal citations omitted).
Before the court can impose an injunction prohibiting future lawsuits on a particular litigant, the litigant must be given notice and an opportunity to be heard. See Moates v. Barkley, 147 F.3d 207, 209 (2d Cir. 1998). Accordingly, plaintiff is ordered to show cause by September 8, 2003, why the court should not enjoin him from filing any lawsuit in this district without first receiving permission from a magistrate judge.
CONCLUSION
For the reasons given above, plaintiff's complaint is dismissed. Plaintiff must show cause by September 8, 2003, why the court should not enjoin him from commencing future lawsuits in this district without the permission of a magistrate judge. The Clerk of the Court is directed to enter judgment accordingly.