Opinion
5:15-CV-00914 (FJS/TWD)
10-13-2015
ANDRE LEVESQUE, Plaintiff, v. MAGISTRATE PEEBLES, et al., Defendants.
APPEARANCES: ANDRE LEVESQUE Plaintiff pro se Northwest State Correctional Facility Inmate 12857 3649 Lower Newton Road Swanton, Vermont 05488
APPEARANCES: ANDRE LEVESQUE
Plaintiff pro se
Northwest State Correctional Facility
Inmate 12857
3649 Lower Newton Road
Swanton, Vermont 05488
THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
Presently before the Court is a complaint brought by pro se Plaintiff Andre Levesque against Defendants United States Magistrate Judge David E. Peebles, United States Magistrate Judge Christian F. Hummel, United States District Court Judge David N. Hurd, and New York State Supreme Court Justice Robert J. Muller. (Dkt. No. 1.) Plaintiff has not paid the statutory filing fee, and, instead, has filed an Application to proceed in forma pauperis ("IFP Application") and an Inmate Authorization Form. (Dkt. Nos. 3 & 4.) Plaintiff brings this action pursuant to 42 U.S.C. § 1983 (2006). For the reasons discussed below, Plaintiff's motion to proceed in forma pauperis is denied pursuant to 28 U.S.C. § 1915(g), and the Court recommends dismissing this action in its entirety with prejudice pursuant to 28 U.S.C. § 1915A(b).
I. ALLEGATIONS OF THE COMPLAINT
Each of the named Defendants are judges. (Dkt. No. 1 at 1.) Plaintiff alleges that Defendants violated his right to due process and equal protection of the law, and have added to his "distress and the irrepritable [sic] harm" suffered during several judicial proceedings by failing to appoint an attorney, failing to issue restraining orders, dismissing cases, and denying him a trial. Id. at 2-3. Plaintiff seeks substantial monetary relief. Id. at 5.
Plaintiff claims all Defendants "are out of touch to the reality of the serious human rights violations causing immence [sic] distress and irrepritable [sic] harm . . . ." Id. at 4. Plaintiff alleges Defendants have been "biased and discriminating, and failed to follow proper procedure, . . . ." Id. Plaintiff claims that "[a]ll they have done is abuse me for thei [sic] personal gfains [sic] and . . . . have ignored me, . . . . Id. Plaintiff alleges that Judge Muller "has participated by dismissing my claim" in New York State Supreme Court, based on what Judge Peebles, Judge Hummel, and Judge Hurd "have written, effectively denying me due process, and equal protection of the law." Id. Plaintiff alleges Defendants "gave up their immunity and the owner of the dogs so to speak are lyabble [sic] to . . . ." Id.
II. IN FORMA PAUPERIS APPLICATION
A court may grant in forma pauperis status if a party is "unable to pay" the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1). Plaintiff declares he is incarcerated and he is unable to pay the filing fee. (Dkt. Nos. 3 & 4.) Therefore, for purposes of this Report and Recommendation, the Court finds that Plaintiff meets the economic criteria for proceeding in forma pauperis solely for purposes of initial review.
Nevertheless, the Court must also determine whether 28 U.S.C. § 1915(g) bars Plaintiff from proceeding in forma pauperis and without prepayment of the filing fee. Section 1915(g) provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.28 U.S.C. § 1915(g).
A. Determination of Three-Strikes
Previously, a court in this District denied Plaintiff's motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g) "because at least three of plaintiff's previous complaints were dismissed as frivolous and/or for failure to state a claim upon which relief could be granted." Levesque v. State Farm Ins., No. 8:13-CV-0346, 2013 WL 2237827, at *2, 2013 U.S. Dist. LEXIS 71411, at *2 (N.D.N.Y. May 21, 2003). The Court takes judicial notice of this ruling, and after reviewing the cases cited therein, similarly determines that Plaintiff has indeed acquired three or more strikes prior to commencing this action on July 17, 2015. Thus, unless it appears that the imminent danger exception to the three-strikes rule is applicable in this action, Plaintiff may not proceed in forma pauperis.
The Court will provide Plaintiff with copies of unpublished decisions in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76, 76 (2d Cir. 2009) (per curium).
A court performing a "three-strikes" analysis must determine the date on which the plaintiff "brought" the action for purposes of 28 U.S.C. § 1915(g). Under the "prison mailbox rule," the date of filing is deemed to be the date that the prisoner-plaintiff delivered his complaint to a prison guard for mailing to the court, which is presumably to be the date that the complaint was signed. See Houston v. Lack, 487 U.S. 266, 276 (1988); Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001). Here, Plaintiff signed his complaint on July 17, 2015. (Dkt. No. 1 at 5.) Therefore, the Court will presume that Plaintiff "brought" this action for purposes of 28 U.S.C. § 1915(g) on July 17, 2015.
B. The Imminent Danger Exception
Congress enacted the imminent danger exception contained in the final phrase of § 1915(g) as a "safety valve" to prevent impending harms to prisoners otherwise barred from proceeding in forma pauperis. Malik v. McGinnis, 293 F.3d 559, 563 (2d Cir. 2002). "[F]or a prisoner to qualify for the imminent danger exception, the danger must be present when he files his complaint - in other words, a three-strikes litigant is not excepted from the filing fee if he alleges a danger has dissipated by the time a complaint is filed." Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009) (citation omitted); see also Polanco v. Hopkins, 510 F.3d 152, 156 (2d Cir. 2007) (imminent danger claims must be evaluated at the time the complaint is filed, rather than at the time of the events alleged). "The exception focuses on the risk that the conduct complained of threatens continuing or future injury, not on whether the inmate deserves a remedy for past misconduct." Nelson v. Spitzer, No. 07-CV-1241, 2008 WL 268215, at *1 n.4, 2008 U.S. Dist. LEXIS 6494, at *3 n.4 (N.D.N.Y. Jan. 29, 2008) (citation omitted).
In addition, "§ 1915(g) allows a three-strikes litigant to proceed [in forma pauperis] only when there exists an adequate nexus between the claims he seeks to pursue and the imminent danger he alleges." Pettus, 554 F.3d at 296. In deciding whether such a nexus exists, the Second Circuit has instructed the courts to consider "(1) whether the imminent danger of serious physical injury that a three-strikes litigant alleges is fairly traceable to unlawful conduct asserted in the complaint, and (2) whether a favorable judicial outcome would redress that injury." Id. at 298-99.
"When determining whether a prisoner has qualified for the 'imminent danger' exception courts look at the non-conclusory allegations in the plaintiff's complaint." Welch v. Charlan, No. 9:06-CV-0061, 2008 WL 5382353, at *1 n.2, 2008 U.S. Dist. LEXIS 101919, *3 n.2 (N.D.N.Y. Dec. 16, 2008). Where the plaintiff is proceeding pro se, his complaint should be liberally construed and interpreted to "raise the strongest arguments that [it] suggest[s]." Harris v. City of New York, 618 F.3d 162, 170 (2d Cir. 2010). "[T]hough [a court] is obligated to draw the most favorable inferences that [a pro se plaintiff's] complaint supports, [the court] cannot invent factual allegations that [the plaintiff] has not pled." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). Thus, "[a] court may find that a complaint does not satisfy the 'imminent danger' exception if the complainant's 'claims of imminent danger are conclusory or ridiculous.'" Id. (quoting Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003)).
Plaintiff has filed this civil rights action alleging that Defendants have denied him due process and equal protection of the law, causing him to suffer "immence" [sic] distress, "irrepritable" [sic] harm, and "overwhelming" pain and suffering. (Dkt. No. 1 at 2.) Even construing his complaint with the leniency that the Court must afford a pro se litigant, Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996), these allegations present no basis for this Court to find that Plaintiff was under imminent danger of serious physical injury at the time that he filed his complaint, and the relief sought, "1 BILLION DOLLARS US FUNDS" would redress no physical injury. (Dkt. No. 1 at 5.) Therefore, the imminent danger exception does not apply to Plaintiff's case and the IFP Application is denied pursuant to 28 U.S.C. § 1915(g).
Generally, when the court denies a plaintiff in forma pauperis status because that litigant has accumulated three-strikes under § 1915(g), the plaintiff would be given the opportunity to pay the filing fee in full or risk dismissal of the action. See Ortiz v. McBride, 380 F.3d 649, 659 n.7 (2d Cir. 2004). However, a review of the merits of Plaintiff's complaint pursuant to 28 U.S.C. § 1915A(b), shows that the Court need not give Plaintiff this option because the action is clearly frivolous, fails to state a claim, and seeks monetary relief from Defendants who are immune from such relief and would be dismissed outright even if Plaintiff paid the filing fee.
Even if Plaintiff was not barred by the three-strikes rule from proceeding in forma pauperis, this Court would still recommend dismissal of this action with prejudice for failure to state a claim pursuant to 28 U.S.C. §§ 1915(A) and 1915(e). When a plaintiff seeks to proceed in forma pauperis, 28 U.S.C. § 1915(e) requires that "the court shall dismiss the case at any time if the court 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)(i)-(iii). See Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (stating that both §§ 1915 and 1915A are available to evaluate prisoner pro se complaints). --------
III. LEGAL STANDARD FOR REIVEW OF THE COMPLAINT
Pursuant to 28 U.S.C. § 1915A(b), a court must review any "complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employees of a governmental entity" and must "identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a defendant who is immune from such relief." 29 U.S.C. § 1915A(b); see also Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999) (per curiam) (holding § 1915A applies to all actions brought by prisoners against government officials regardless of whether prisoner proceeded in forma pauperis or paid the filing fee).
In determining whether an action is frivolous, the court must look to see whether the complaint lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). "An action is frivolous when either: (1) the factual contentions are clearly baseless such as when the claims are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (citations and internal quotation marks omitted). Although extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to respond, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983), the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. See, e.g., Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curiam) (holding that a district court has the power to dismiss a complaint sua sponte if the complaint is frivolous); 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, a complaint must plead enough facts to state a claim that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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 Rule 8(a) of the Federal Rules of Civil Procedure, which sets forth the general rules of pleading, "does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me accusation." Id. In determining whether a complaint states a claim upon which relief may be granted, "the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
Where a plaintiff proceeds pro se, the pleadings must be read liberally and construed to raise the strongest arguments they suggest. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (citation omitted). A pro se complaint should not be dismissed "without giving leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and internal quotation marks omitted). An opportunity to amend is not required 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).
IV. ANALYSIS
Plaintiff's complaint is barred by the doctrine of judicial immunity. Judges are entitled to absolute immunity for actions relating to the exercise of their judicial functions. Mireles v. Waco, 502 U.S. 9, 9-10 (1991). Judicial immunity has been created for the public interest in having judges who are "'at liberty to exercise their functions with independence and without fear of consequences.'" Huminski v. Corsones, 396 F.3d 53, 74 (2d Cir. 2005) (quoting Pierson v. Ray, 386 U.S. 547, 554 (1967)). Judicial immunity applies even when the judge is accused of acting maliciously or corruptly. Imbler v. Pachtman, 424 U.S. 409, 419 n.12 (1976) (citing Pierson, 386 U.S. at 553-554). Judicial immunity is immunity from suit, not just immunity from the assessment of damages. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The only two circumstances in which judicial immunity does not apply is when he or she takes action "outside" his or her judicial capacity and when the judge takes action that, although judicial in nature, is taken "in absence of jurisdiction." Mireles, 502 U.S. at 11-12.
The Supreme Court has "generally concluded that acts arising out of, or related to, individual cases before the judge are judicial in nature." Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009). Judges enjoy absolute immunity even when a plaintiff offers allegations of "bad faith or malice." Mireles, 502 U.S. at 11. A judge cannot "be deprived of immunity because the action he took was in error . . . or was in excess of authority." Id. at 13 (quoting Stump v. Sparkman, 435 U.S. 349, 356 (1978)). "A complaint will be dismissed as 'frivolous' when 'it is clear that the defendants are immune from suit.'" Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999) (per curium) (quoting Neitzke, 490 U.S. at 327).
In the present action, Plaintiff's claims against Judge Peebles, Judge Hummel, Judge Hurd, and Judge Muller arise from the exercise of their judicial functions. (Dkt. No. 1.) Judges are immune from damages for civil liability for acts taken in their judicial capacity. Stump, 435 U.S. at 356. Plaintiffs' allegations clearly fail to implicate either of the exceptions to judicial immunity. (Dkt. No. 1.) Even the most liberal reading of Plaintiff's complaint shows that it is frivolous, fails to state a claim upon which relief may be granted, and seeks monetary relief from Defendants that are immune from such relief. Therefore, the Court recommends that the complaint be dismissed pursuant to 28 U.S.C. § 1915A(b).
Where a pro se complaint fails to state a cause of action, the court generally "should not dismiss 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." Cuoco, 222 F.3d at 112 (internal quotation and citation omitted). However, an opportunity to amend is not required where "the problem with [the plaintiff's] causes of action is substantive" such that "better pleading will not cure it." Id. (citation omitted). Here, better pleading would not cure the defect with Plaintiff's complaint. Therefore, the Court recommends dismissing the complaint with prejudice pursuant to 28 U.S.C. § 1915A(b).
WHEREFORE, it is hereby
ORDERED that Plaintiff's application to proceed in forma pauperis (Dkt. No. 3) is DENIED pursuant to 28 U.S.C. § 1915(g); and it is further
RECOMMENDED that Plaintiff's complaint (Dkt. No. 1) be DISMISSED IN ITS ENTIRETY WITH PREJUDICE pursuant to 28 U.S.C. § 1915A(b); and it is further
ORDERED that the Clerk provide to Plaintiff a copy of this Order and Report-Recommendation, along with copies of all unpublished decisions cited herein.
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); Fed. R. Civ. P. 72. Dated: October 13, 2015
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge