United States District Court, E.D. New York
February 17, 2004.
MANUEL RAUL REYO PENA GARCIA MONTERO, Petitioner, -against- WILLIAM JEFFERSON CLINTON frm Pres's ALL AMERICAN PREZ et., Respondent[fn1]
The opinion of the court was delivered by: JOHN GLEESON, District Judge
*fn1 Montero names as additional respondents "President George Mw Bush
et frm Pres George Mw Bush Sr frm Unconstitutional Pres Jimmy Carter and
Gerald Ford et All Vice Pres's / INCLUDING THEIR POLITICAL APPt." (Pet.
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).
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