United States District Court, Southern District of New York
March 28, 2003
BARBARA MORSE A/K/A REBA KALISH, PLAINTIFF,
CITY OF NEW YORK, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Thomas P. Griesa, United States District Judge.
Pro se plaintiff Barbara Morse originally sued 44 defendants, including Mayor Giuliani, Police Commissioner Safir, Fire Commissioner Von Essen, various police officers and other New York City employees (the "City defendants"), District Attorney Morganthau and other defendants associated with his office, a number of state court judges, and other parties.
All defendants except the City defendants moved to dismiss, and the court granted this motion on August 23, 2001. This removed 21 of the 44 defendants. The Court of Appeals dismissed plaintiffs appeal on October 24, 2002.
The pleading now before the court is the amended complaint. The City defendants move to dismiss the amended complaint as to them for failure to prosecute. Alternatively, they urge that the amended complaint should be dismissed because it fails to constitute a short and plain statement of plaintiffs claim as required by Fed.R.Civ.P. 8(a)(2).
The City defendants are correct that the action should be dismissed. This is an abusive and meritless lawsuit. However, the court believes that, although there is some arguable basis for finding a failure to prosecute, this is not an appropriate ground for terminating the action. The real problem is that plaintiffs complaint is such a flagrant misuse of the right to plead in a federal court that the complaint should be dismissed for failure to comply with pleading requirements. Moreover, this is the extraordinary case in which there should be no leave to replead.
The amended complaint in this action is made up of a lengthy introduction followed by 227 numbered paragraphs. It has 14 causes of action and seeks billions of dollars in compensatory and punitive damages, and various forms of declaratory and injunctive relief that have no possible chance of being granted. of course, as already noted, the complaint has been cut down to some extent by virtue of the earlier dismissal of 21 defendants.
The allegations in the complaint arise out of certain disputes between plaintiff and her father, Sam Kalish, with New York City police officers. These incidents occurred on July 24, 1996 and September 3, 1996. Plaintiffs allegations regarding the July 24 incident are described in the August 23, 2001 opinion as follows:
Morse admits that she and her father were in a street
trying to take photographs of an alleged defect in the
street, and that they were requested by the police to
halt this activity. Although Morse alleges that this
request was unjustified, it is apparent from her
pleading that she and her father failed to obey the
police, thus leading to her arrest. Morse claims that
the arrest was improper, and further claims that the
police used unnecessary force, but the occurrence of
an incident in which Morse disobeyed the police is
basically admitted. Complaint pars. 44-51.
The complaint goes on, as indicated in the August 2001 opinion, with plaintiffs allegations of denial of due process in the New York Court system following plaintiffs arrest, and other claims against various parties about mistreatment subsequent to that arrest. The basis for the August 2001 dismissal was uncontested court records, which showed an abundance of due process resulting in plaintiffs conviction by a jury for resisting arrest, after which she served a jail sentence. During the criminal proceedings plaintiff was both dilatory and contumacious.
As to the second incident, which occurred on September 3, 1996, all that is alleged is that, while plaintiff and her father were again in the street taking pictures, police officers, in the words of the complaint, warned them that "it was dangerous to be in the street, while the light was not in their favor," and indicated that they might be arrested again. This is said to be unlawful harassment. Complaint pars. 55 and 64.
It should be noted that plaintiff refers to another arrest in June 1998, and alleges that this was unconstitutional. Complaint pars. 56 and 65. But this arrest occurred after plaintiff had failed to appear for her sentencing in the state court on September 17, 1998, after which a bench warrant was issued for her arrest. This matter is dealt with in the August 2001 opinion.
What is now left in the case following that opinion are the allegations of police misconduct claimed to have occurred during the incidents of July 24 and September 3, 1996. These claims are made against certain police officers and the other City defendants.
Plaintiffs allegations against the City defendants consist of wildly inflammatory characterizations. On the contrary, it cannot be doubted that the police actions were designed to protect the safety of plaintiff and her father. However, plaintiff made the July 24 incident an occasion of confrontation with the police and ended up serving a jail sentence. In her complaint in this action, instead of presenting anything approaching a plain statement of a claim based upon facts, plaintiff has masked and confused whatever might be the true picture by an endlessly verbose, rambling and confused stream of accusations. Numerous constitutional provisions and legal theories are literally thrown into the complaint, often without any semblance of basis for using them.
This is beyond what should be tolerated even under the view that accords leniency to pro se litigants. Furthermore, it is only realistic to say that the problem is not one of form which can be cured. No purpose will be served by giving plaintiff leave to replead.
The amended complaint is dismissed as against the remaining defendants — the City defendants. The court will not allow a repleading.
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