Opinion
5:22-CV-426 (BKS/ATB)
06-21-2022
ROBERT W. JOHNSON, Plaintiff v. STEWART D. AARON, et al. Defendants.
ROBERT W. JOHNSON, Plaintiff, pro se
ROBERT W. JOHNSON, Plaintiff, pro se
ORDER AND REPORT-RECOMMENDATION
ANDREW T. BAXTER United States Magistrate Judge
The Clerk has sent to the court for review a purported Bivens action, filed by plaintiff Robert Johnson. (Dkt. No. 1) (“Compl.”). Plaintiff has also moved to proceed in forma pauperis (Dkt. No. 2), and for the appointment of counsel (Dkt. No. 3).
I. IFP Application
Plaintiff declares in his IFP application that he is unable to pay the filing fee. (Dkt. No. 2). After reviewing his application, this court finds that plaintiff is financially eligible for IFP status.
However, in addition to determining whether plaintiff meets the financial criteria to proceed IFP, the court must also consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915, which provides that the court shall dismiss the case at any time if the court determines that the action is (i) 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)(i) -(iii).
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). Although the court has a duty to show liberality toward pro se litigants, and must use extreme caution in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and has had an opportunity to respond, the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may dismiss a frivolous complaint sua sponte even when plaintiff has paid the filing fee).
To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Bell Atl. Corp., 550 U.S. at 555).
II. Complaint
Plaintiff's complaint is largely incomprehensible. He has obtained a form Bivens action complaint, and randomly interspersed instruction sheets from the clerk between various pages of hand-written allegations. Plaintiff has named thirty-two defendants in his complaint, including Ulysses S. Grant, the Justices of the United States Supreme Court, various other state and federal judges, the Commissioner of Social Security, the U.S. Department of Justice, the Office of the United States Attorneys, and others.
The body of the complaint contains a myriad of clearly frivolous and nonsensical statements, making no plausible connection to the named defendants. Plaintiff appears to be faulting the defendants for his previously dismissed civil rights actions. In the “facts” section, plaintiff identifies a handful of defendants and merely states that they “denied [plaintiff] due process rights, appeals merits, pro se corporation merits, default judgment merits and U.S. Constitutional Rights for DISMISSED civil rights complaints.” (Compl. at CM/ECF p. 9). For his “causes of action,” plaintiff states that all of the defendants “discriminated” against him, and “abused their immunities, policies, rules and regulations by denying [plaintiff] his human rights.” (Id. at CM/ECF p. 11). He then states that the defendants are in “continuation of cruel and unusual punishment by denying bad faith, bribery, abuse of authority, abuse of immunities, denial of due process violations and appellant merits.” (Id.). Plaintiff seeks $100 million for “punishment,” $100 million for pain and suffering, and “sanctions.” (Id. at CM/ECF p. 12).
The instant complaint is one of many frivolous actions that have been filed by plaintiff in this district, in addition to other venues. As of the date plaintiff filed the instant complaint, he was already subject to numerous bar orders and filing injunctions in the Southern District of New York, District of Connecticut, and Southern District of Ohio. See, e.g., Johnson v. Wolf, 1:19-CV-07337 (S.D.N.Y.) (filed 07/12/20); Johnson v. New York Police Dep't, 1:20-CV-01368 (S.D.N.Y.) (filed 08/13/20); Johnson v. Town of Onondaga, 1:19-CV-11128 (S.D.N.Y.) (filed 04/01/21); Johnson v. Vera House, Inc., 3:22-CV-00314 (D. Conn.) (filed 3/18/22); Johnson v. Coe, 2:19-CV-02428, 2:19-CV-02490, 2:19-CV-02865 (S.D. Ohio) (filed 08/5/2019) (deeming Plaintiff a “vexatious” litigant and barring him from filing new pro se actions without prior leave of court).
In addition, plaintiff has been warned by the Second Circuit that the continued filing of frivolous appeals in that venue could result in a filing injunction. See Johnson v. Wolfe, 19-3891, 2020 WL 2544909, at *1 (2d Cir. May 7, 2020) (“Appellant has filed several frivolous matters in this Court, including his appeals docketed under 2d Cir. 19-1688, 19-2174, 19-2235, 19-3657, 19-3889, 19-3891, and 19-4062. Appellant has previously been warned against filing new frivolous appeals. See 2d Cir. 19-4062, doc. 22; 2d Cir. 19-3889, doc. 49. Accordingly, Appellant is warned that the continued filing of duplicative, vexatious, or clearly meritless appeals, motions, or other papers could result in the imposition of both a monetary sanction and a sanction that would require Appellant to obtain permission from this Court prior to filing any further submissions in this Court (a “leave-to-file” sanction).”).
Plaintiff's abusive litigation tactics have also since been recognized and addressed in this district. On May 6, 2022, Chief District Judge Glenn T. Suddaby of the Northern District of New York issued an order to show cause, directing the plaintiff to show why he should not be enjoined from filing any future pleadings or documents in this district pro se, without prior permission to do so. See In re Johnson, No. 5:22-PF-0003 (GTS), 2022 WL 1443311, at *4 (N.D.N.Y. May 6, 2022). The order to show cause was issued in response to plaintiff filing forty-five pro se civil rights actions in this district in a period of only ten days, one of which was the complaint presently before this court on initial review. Id. at *2. Judge Suddaby specifically commented that his cursory review of the actions pending before other Northern District courts, including the instant matter, revealed a “cavalier disregard for the Federal Rules of Civil Procedure (including Rules 8, 10, and 12).” Id.
Instead of properly responding to the order to show cause, plaintiff subsequently filed another twenty-two “similarly questionable civil actions pro se. ” See In re Johnson, No. 5:22-PF-0003 (GTS), 2022 WL 1597718, at *1 (N.D.N.Y. May 19, 2022) (listing new actions). Accordingly, on May 19, 2022, Judge Suddaby permanently enjoined plaintiff from filing any pleadings or documents as a pro se plaintiff in this district without prior permission. Id. at *1.
The pre-filing order is not applicable to cases that were already open at the time of its issuance, which includes the above-captioned action. In re Johnson, 2022 WL 1597718, at *1.
This instant complaint is clearly the type that should be dismissed pursuant to Rule 8, in addition to various other bases for dismissal. Plaintiff has not plausibly alleged any form of violation, civil rights or otherwise. Instead, he has provided a litany of incomprehensible grievances which he has associated with a former president, federal agencies, and a myriad of judicial officers. Considering the deficiencies in plaintiff's pleading, coupled with his history of abusive, frivolous filings, this court has no option but to recommend dismissal.
Fed. R. Civ. P. 8 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.'” Id. (quoting Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)). “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.
III. Opportunity to Amend
A. Legal Standards
Generally, before the court dismisses a pro se complaint or any part of the complaint sua sponte, the court should afford the plaintiff the opportunity to amend at least once, however, leave to re-plead may be denied where any amendment would be futile. Rufolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is present when the problem with 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) (citation omitted).
B. Application
Plaintiff is now subject to pre-filing injunctions in multiple districts, including the Northern District, and has been warned of the same consequence by the Second Circuit. In light of plaintiff's abusive litigation history, and considering the frivolous nature of the instant complaint, the court recommends denying leave to amend.
IV. Appointment of Counsel
Because this court has found that plaintiff's complaint should be dismissed under section 1915, his motion for appointment of counsel is moot, and thus denied.
WHEREFORE, based on the findings above, it isORDERED, that plaintiff's motion to proceed IFP (Dkt. No. 2) is GRANTED FOR PURPOSES OF FILING ONLY, and it is
RECOMMENDED, that this action be DISMISSED WITH PREJUDICE, and it is
ORDERED, that plaintiff's motion to appoint counsel (Dkt. No. 3) is DENIED, and it is
ORDERED, that the Clerk of the Court serve a copy of this Order and ReportRecommendation on plaintiff by regular mail.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) 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. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993)(citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72.