Opinion
5:22-cv-00463-MAD-TWD 5:22-cv-00464-MAD-TWD 5:22- cv-00465-MAD-TWD 5:22- cv-00466-MAD-TWD 5:22- cv-00467-MAD-TWD
05-10-2022
ROBERT W. JOHNSON, Plaintiff, v. COLLEEN McMAHON, Defendant. ROBERT W. JOHNSON, Plaintiff, v. SHAWN RUSIN, Defendant. ROBERT W. JOHNSON, Plaintiff, v. DAVID E. POWELL, Defendant. ROBERT W. JOHNSON, Plaintiff, v. NEW YORK STATE DIVISION OF HUMAN RIGHTS, Defendant. ROBERT W. JOHNSON, Plaintiff, v. VERA HOUSE, INC, and MARCUS OF VERA HOUSE, INC., Defendants.
REPORT-RECOMMENDATION AND ORDER
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
Plaintiff Robert W. Johnson (“Plaintiff”), proceeding pro se, commenced the five (5) above-captioned actions on April 26, 2022, and, in lieu of paying the Northern District of New York's filing fee, seeks leave to proceed in forma pauperis (“IFP”).
I. IFP APPLICATIONS
Plaintiff declares that he is unable to pay the filing fee for the above-captioned actions. The undersigned has reviewed each of Plaintiff's IFP applications and determines that he financially qualifies to procced IFP. Therefore, Plaintiff's IFP applications are granted.
II. STANDARD OF REVIEW
Under Section 1915(e), the Court must dismiss a complaint filed IFP if it determines that 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 Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint, or portion thereof, when the Court lacks subject-matter jurisdiction. See Fed.R.Civ.P. 12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest, ” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted, emphasis in original).
A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); see also Denton v. Hernandez, 504 U.S. 25, 33 (1992) (holding that “a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible”); Livingston, 141 F.3d at 437 (“[A]n action is ‘frivolous' when either: (1) the factual contentions are clearly baseless . . . or (2) the claim is based on an indisputably meritless legal theory.”) (internal quotation marks and citation omitted).
Having carefully reviewed the operative pleadings, the Court finds that they consist of purported “appeals” from decisions and/or orders recently issued by the United States District Court for the Southern District of New York (“Southern District”) and District of Connecticut. See Johnson v. McMahon, 5:22-cv-00463-MAD-TWD (N.D.N.Y.) (operative pleading consists of a two-page motion for default judgment from the Southern District) (filed 04/26/22); Johnson v. Rusin, 5:22-cv-00464-MAD-TWD (N.D.N.Y.) operative pleading consists of a two-page motion for default judgment from the District of Connecticut) (filed 04/26/22); Johnson v. Powell, 5:22-cv-00465-MAD-TWD (N.D.N.Y.) (operative pleading consists of a two-page motion for default judgment from the District of Connecticut) (filed 04/26/22); Johnson v. Vera House, 5:22-cv-00466-MAD-TWD (N.D.N.Y.) (operative pleading consists of a two-page motion for default judgment from the District of Connecticut) (filed 04/26/22); Johnson v. New York State Division of Human Rights, No. 5:22-cv-00467-MAD-TWD (N.D.N.Y.) (operative pleading consists of an “Appeal for Alleged Injunction” from the District of Connecticut) (filed 04/26/22). At the time of filing, Plaintiff was advised of the impropriety of filing such actions in this District but insisted on doing so anyway.
Plaintiff's extensive and abusive litigation history in the Southern District of New York and District of Connecticut reveals that he is subject to numerous bar orders/filing injunctions. See, e.g., Johnson v. Wolf, 1:19-cv-07337-GHW, Bar Order (S.D.N.Y.) (filed 07/13/20); Johnson v. New York Police Dep't, 1:20-cv-01368-CM, Bar Order (S.D.N.Y.) (filed 08/13/20); Johnson v. Town of Onondaga, 1:19-cv-11128-CM, Bar Order (S.D.N.Y.) (filed 04/01/21); Johnson v. Vera House, Inc., 3:22-CV-00314-SALM, Bar Order (D. Conn) (filed 04/13/22). Plaintiff is also subject to a bar order in the Southern District of Ohio. Johnson v. Coe, Nos. 2:19-CV-02428-EAS, 2:19-CV-02490-EAS, 2:19-CV-02865-EAS, Bar Orders (S.D. Ohio) (filed 08/05/19). He has also been warned by the Second Circuit that the continued filing of frivolous appeals could result in a filing injunction. See Johnson v. Wolfe, 2020 WL 2544909, at *1 (2d Cir. May 7, 2020). Moreover, in Johnson v. Vera House, 3:22-CV-00314-SALM, it was ordered: “If Mr. Johnson files any action in any District Court within the Second Circuit in the future, he must attach a copy of this Order to his Complaint. The District Courts of the Second Circuit are the District of Connecticut; the District of Vermont; and the Eastern, Northern, Southern, and Western Districts of New York.” Johnson v. Vera House, Inc., 3:22-CV-00314-SALM, 2022 WL 829337, at *5 (D. Conn. Mar. 18, 2022) (emphasis in original). Plaintiff has also failed to comply with that Order.
In sum, Plaintiff's attempt to circumvent the bar orders issued by the Southern District of New York and District of Connecticut, and the warning issued by the Second Circuit, by commencing the five (5) above-captioned “appeals” in this District is wholly improper and frivolous. 28 U.S.C. § 1915(e)(2)(B)(i).
Moreover, in Case 5:22-cv-00463-MAD-TWD, Plaintiff names the Honorable Colleen McMahon, Chief United States District Judge of the Southern District of New York, as a defendant because she “abused her immunities” and denied Plaintiff relief. However, claims against judges are barred by the doctrine of judicial immunity. See Mireles v. Waco, 502 U.S. 9, 11 (1991); see, e.g., Parsons v. United States, 20-CV-7231 (LLS), 2020 WL 5634260, at *2 (S.D.N.Y. Sept. 18, 2020) (dismissing claims against Chief Judge McMahon under the doctrine of judicial immunity and as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), (iii)) (citing Mills v. Fischer, 645 F.3d 176, 177 (2d Cir. 2011) (“Any claim dismissed on the ground of absolute judicial immunity is ‘frivolous' for purposes of [the IFP statute].”)); Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999) (“A complaint will be dismissed as ‘frivolous' when ‘it is clear that the defendants are immune from suit.'” (quoting Neitzke v. Williams, 490 U.S. at 327)), appeal dismissed (Dec. 1, 2020).
Based upon the foregoing, the Court recommends that Plaintiff's complaints be dismissed upon initial review under 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
Typically, a court should not dismiss a pro se litigant's complaint without granting leave to amend “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). Inasmuch as the problem with Plaintiff's complaints are substantive and cannot be cured by a better pleading, the Court recommends dismissal without leave to amend. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
ACCORDINGLY, it is hereby
ORDERED that Plaintiff's motions to proceed in forma pauperis are granted for purposes of initial review only; and it is further
RECOMMENDED that Plaintiff's complaints in the five (5) above-captioned actions be DISMISSED WITHOUT LEAVE TO AMEND pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(iii), and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and ReportRecommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
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 . 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)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 72, 6(a).