Opinion
5:21-CV-265 (GLS/TWD)
04-09-2021
JAIME LUEVANO, Plaintiff, v. IVANKA TRUMP, et al., Defendants.
APPEARANCES: JAIME LUEVANO Plaintiff, pro se Prisoner No. 1655791 Hughes Correctional Facility Rt. 2 Box 4400 Gatesville, Texas 76597
APPEARANCES: JAIME LUEVANO
Plaintiff, pro se
Prisoner No. 1655791
Hughes Correctional Facility
Rt. 2 Box 4400
Gatesville, Texas 76597 THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
Jamie Luevano ("Plaintiff") filed an action against Ivanka Trump and several other individuals (collectively, "Defendants"). (Dkt. No. 1.) Currently before the Court is Plaintiff's application to proceed in forma pauperis ("IFP Application"). (Dkt. No. 5.) 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). After reviewing Plaintiff's IFP Application (Dkt. No. 5), the Court finds Plaintiff meets this standard.
However, a review of public records reveals that Plaintiff "has a long history of filing frivolous and abusive litigation." Yieson v. Akwitti, Civ. A. No. 20-823, 2020 WL 6577504, at *1 (W.D. Tex. Oct. 30, 2020) (citing examples of Plaintiff's prior frivolous filings in a case he attempted to file in the name of another inmate to raise his own claims). Accordingly, federal judges, both inside and outside of Texas, have precluded him from proceeding in forma pauperis pursuant to 28 U.S.C. § 1915(g), and have imposed sanctions and injunctions upon him when he continued to exhibit abusive filing behavior. Luevano v. U.S. Texas Judges, No. 20-CV-5840, 2020 WL 7181058, at *1 (E.D. Pa. Dec. 7, 2020); Luevano v. Skyview Unit Psych Doctors, N.D. Tex. Civ. A. No. 19-2186 (Sept. 17, 2019 Notice re: Application of Prior Sanction Order); Luevano v. U.S. Circuit Judges of D.C., D.D.C. Civ. A. No. 18-1297 (June 14, 2018 Memorandum and Order); Luevano v. Clinton, Civ. A. No. 15-142, 2015 WL 3408123, at *1-*2 (W.D. Tex. May 27, 2015). In addition, this Court has previously found Plaintiff's complaint to be frivolous and dismissed it without prejudice on those grounds. Luevano v. Clinton, No. 5:10-CV-754 GTS/ATB, 2010 WL 3338704, at *1 (N.D.N.Y. July 1, 2010).
Furthermore, it is evident that Plaintiff has amassed more than three strikes and is therefore ineligible to file an action in forma pauperis unless he is in imminent danger of serious physical injury. See 28 U.S.C. § 1915(g). Plaintiff has a multitude of strikes, and several of his cases have been conditionally dismissed based on the three-strikes rule, and subsequently subject to final dismissal after plaintiff failed to pay the filing fee. Luevano v. Clinton, 2010 WL 3338704 at *4 (collecting cases). Because plaintiff has many strikes, his motion to proceed IFP would have to be denied, and plaintiff would be instructed to pay the filing fee or risk dismissal of the action. However, a review of the merits of Plaintiff's complaint shows that the court need not give Plaintiff this option because the action is clearly frivolous and would be dismissed outright even if he paid the filing fee.
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. Id. 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).
Here, Plaintiff's complaint is almost incomprehensible, and he utterly fails to provide sufficient information for the Court to review or for Defendants to have notice of the claims against them. The haphazard collection of allegations in the complaint does not provide any indication of the causes of action Plaintiff intends to assert or whether this Court has jurisdiction over the action. Rather, his complaint is fanciful mélange of allegations that are unhinged with reality. As such, this Court recommends his complaint be dismissed with prejudice and without leave to amend.
ACCORDINGLY, it is
ORDERED that Plaintiff's IFP Application (Dkt. No. 5) is GRANTED solely for purposes of initial review; and it is further
RECOMMENDED that Plaintiff's complaint (Dkt. No. 1) be DISMISSED WITH PREJUDICE AND WITHOUT LEAVE TO AMEND, and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation along with a copy of the unpublished decisions cited herein in accordance with the Second Circuit's decision in 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). Dated: April 9, 2021
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge