Opinion
04 CV 435 (JG)
February 17, 2004
MEMORANDUM AND ORDER
Petitioner Manuel Montero, currently incarcerated at the United States Penitentiary in Leavenworth, Kansas, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 on January 28, 2004. By order dated February 9, 2004, 1 granted Montero's request to proceed in forma pauperis ("IFF") and directed respondent to show cause why a writ of habeas corpus should not issue. Upon reviewing the petition further, I have determined that it is devoid of merit and does not warrant an answer. Accordingly, the February 9, 2004, Order to Show Cause is hereby vacated, and the petition is dismissed for the following reasons.
Although Montero brings this action under § 2241, his reliance on that statute and his use of a standard § 2241 application form appear to be arbitrary decisions. He provides no grounds to support a petition under § 2241. Instead, Montero provides a few details of his conviction history and his prior habeas corpus petitions filed in Louisiana, concluding: "PEOPLES CONSTITUTIONAL CHALLENGE TO THE ELECTORAL LAW IN EFFECT 1823 et's Pursuant to Article II Sec 1 And the Unanimous Consensus's CONTINENTAL CONGRESS. 1787." (Pet. ¶ IV.) As relief, Montero requests an "Immediate Order of Constitutional Restrain Injunction to The President Exe Unconstitutional Ilegal Autority." (Id. ¶ V.) Below his signature, Montero writes, "[B]y the Way, `those Animals in the Military et' West Point Class of Lee's 1853 Are Out of Legal Argument that amy be the Reason that After the Presidential Vote, / WAS FIX IN FLA. `Sep 11." (Id. at 4.)
Under 28 U.S.C. § 1915(c)(2)(B), a district court shall dismiss an IFP action where it is satisfied that the action is "(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." An action is "frivolous" when either (1) "the `factual contentions are clearly baseless,' such as when allegations 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). The Supreme Court has observed that a "finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Denton v. Hernandez, 504 U.S. 25, 33 (1992). Montero's action is clearly frivolous or malicious within the meaning of Denton and § 1915, and therefore must be dismissed as to all respondents. 28 U.S.C. § 1915(c)(2)(B)(i).
Last year, Montero filed two similar actions before this Court: Montero v. Clinton, 03 CV 0512 (JG) (dismissed as frivolous on February 12, 2003), and Montero v. Clinton, 03 CV 1118 (JG) (dismissed on grounds of res judicata on March 11, 2003). Montero is hereby cautioned that the further filing of meritless complaints, petitions, or applications requesting IFP status may result in the issuance of an order barring the acceptance of any future IFP civil action without first obtaining leave of court to do so. 28 U.S.C. § 1651. Section 1651 "grants district courts the power, under certain circumstances, to enjoin parties from filing further lawsuits." MLE Realty Assocs. v. Handler, 192 F.3d 259, 261 (2d Cir. 1999). Those circumstances include cases where a litigant engages in the filing of repetitive and frivolous suits. Malley v. N.Y. City Bd. of Educ., 112 F.3d 69 (2d Cir. 1997) (per curiam); In re Martin-Trigona 9 F.3d 226, 227-28 (2d Cir. 1993).
Accordingly, the February 9, 2004, Order to Show Cause is hereby vacated and the instant action filed IFP is dismissed as frivolous as against all respondents. 28 U.S.C. § 1915(e)(2)(B)(i). Whereas ordinarily I would grant Montero an opportunity to amend, 1 may decline to do so if I find, as I do, that any amendment would be fufile, see O'Hara v. Weeks Marine, Inc., 294 F.3d 55, 69 (2d Cir. 2002); Cuoco. v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore IFP status is denied for purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
So Ordered.