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CUOCO v. U.S. BUREAU OF PRISONS

August 2, 2004.

JOHN A. CUOCO, Plaintiff,
v.
U.S. BUREAU OF PRISONS; UNITED STATES OF AMERICA; WILLIAM C. HENDERSON, Caption [sic]; K. BITTENBENDER, Lieutenant; and FIVE UNKNOWN NAMED S.O.R.T. MEMBERS, Defendants.



The opinion of the court was delivered by: WILLIAM PAULEY, District Judge

MEMORANDUM and ORDER

This motion concerns an egregious abuse of the in forma pauperis privilege through fraud. Plaintiff pro se, John A. Cuoco*fn1 ("Cuoco"), a serial litigant, seeks an unspecified amount of monetary damages against defendants the United States Bureau of Prisons ("BOP"), the United States of America, Captain William C. Henderson, Lieutenant K. Bittenbender, and five unidentified individuals for excessive force, deprivation of equal protection and negligent destruction of personal property. Cuoco, who is incarcerated at the Federal Medical Center in Rochester, Minnesota, advances federal claims pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Federal Tort Claims Act ("FTCA") 28 U.S.C. § 1346(b), 2671, et seq., 42 U.S.C. § 1985(3) and the Equal Protection Clause.

  By Order dated September 22, 2003 (the "September 2003 Order"), this Court dismissed Cuoco's Bivens claim for failure to exhaust administrative remedies and granted summary judgment to the Government on Cuoco's FTCA assault and battery claim. See Cuoco v. United States Bureau of Prisons, 03 Civ. 9009 (WHP), 2003 WL 22203727 (S.D.N.Y. Sept. 22, 2003). Thereafter, this Court approved a settlement on Cuoco's remaining claim for $218. (Order, dated Oct. 31, 2003.) Currently before this Court are defendants' motion to vacate the partial judgment and their motion to dismiss the entire action. For the reasons set forth below, defendants' motions are granted.

  BACKGROUND

  A. Cuoco's Application to Proceed In Forma Pauperis

  Familiarity with the facts and this Court's previous Memoranda and Orders is presumed.*fn2 Cuoco applied for in forma pauperis ("IFP") status in this case on October 27, 1998. (Declaration of Lisa Zornberg, dated Apr. 23, 2004 ("Zornberg Decl."), Exhibit B: Application to Proceed Without Prepayment of Fees, at 3.) On her IFP application to this Court, Cuoco replied in the affirmative to the following question: "Do you own real estate, stocks, bonds, securities, or other financial instruments, automobiles or any other thing of value?" (Zornberg Decl., Ex. B at 2.) Cuoco explained her answer by stating that she had "sufficient funds in a financial account in the community to pay the $150 fee; however BOP prison officials at ADX Florence [we]re disallowing [her] from receiving, possessing, or using the withdrawal checks to pay the fee." (Zornberg Decl., Ex. B at 2-3.) Cuoco also averred that the BOP "has placed excessive and unreasonable liens on [her] prison account without due process of law, making it unfeasible to have monies deposited" in her prison account and that due to "these extraordinary circumstances beyond h[er] control, plaintiff is `unable to pay'" the filing fee. (Zornberg Decl., Ex. B at 3.) At the time of her IFP application, Cuoco's prison account reflected a negative balance of $558.70 due to an outstanding BOP lien for damage to BOP property. (Declaration of Diana Lee, dated Mar. 26, 2004 ("Lee Decl.") Exhibit C: Letter, dated Feb. 8, 1999 and Attachment, at 1; Zornberg Decl., Ex. B at 4.)

  Cuoco acknowledged her legal obligation to pay the filing fee in this action by signing a Prisoner Authorization form on November 10, 1998 (the "November Authorization form"), which stated: "I understand that by signing and returning this notice to the court, the entire court filing fee of $150 will be paid in installments by automatic deductions from my prison trust fund account even if my case is dismissed." (Zornberg Decl., Ex. B at 5.) Cuoco also stated: "I . . . request and authorize the agency holding me in custody to calculate the amounts specified by 28 U.S.C. § 1915(b), to deduct those amounts from my prison trust fund account and to disburse those amounts to the United States District Court for the Southern District of New York." (Zornberg Decl., Ex. B at 5.) Based on those sworn statements, Cuoco's application for IFP status was granted on December 22, 1998. (Zornberg Decl., Ex. B at 1.)

  On October 7, 1998, three weeks prior to submitting her application for IFP status in this case, Cuoco accepted an offer of judgment for $10,000 in another action captioned: Cuoco v. United States, 97 Civ. 1268 (RPP) (S.D.N.Y. Oct. 3, 1998) (Zornberg Decl., Exhibit T: Docket and Case Materials, at 5-6.) Additionally, on October 21, 1998, one week prior to submitting her IFP application, Cuoco settled another suit, captioned Cuoco v. United States, 93 Civ. 2806 (AGS) (S.D.N.Y. Oct. 14, 1998) for $3,500. (Zornberg Decl., Exhibit P: Docket and Case Materials, at 12-14.) In November 1998, while Cuoco's IFP application was pending, she separately contacted the two different Assistant United States Attorneys ("AUSAs") handling the settlements and requested that they send the payments to her mother's address in Staten Island rather than to her prison account. (Zornberg Decl., Ex. P at 15, Ex. T at 7-8.) The AUSAs consented to Cuoco's request. On January 26, 1999, the Government sent a $10,000 check to the Staten Island address and another check for $3,500 followed on February 2, 1999. (Zornberg Decl., Ex. T at 9-11, Ex. P at 16-17). Cuoco contends that the $13,500 was sent to Staten Island pursuant to the settlements; however, neither settlement agreement contains such a term. (Pl. Opp. at 12-13; Zornberg Decl., Ex. P at 12-13, Ex. T at 5-6.)

  Additionally, it is undisputed that Cuoco prohibited prison officials from accepting checks on her behalf from July 9, 1997 through August 26, 2000, and again from October 30, 2003 through February 12, 2004 by signing an authorization form stating:

  I hereby do not authorize . . . the . . . Bureau of Prisons . . . to sign my name as endorsement on all checks, money orders, or bank drafts, for deposit to my credit in the Prisoner's Trust Fund Account, as long as I am a prisoner in the Bureau of Prisons. I understand that by not providing this authorization, I will not be able to receive checks . . . while confined. (Lee Decl., Exhibit C: Letter and Authorization Forms, at 3; Exhibit D: Cuoco Authorization Forms, at 1-3.) Consequently, the BOP was prohibited from depositing money into Cuoco's prison trust fund account during these periods. (Lee Decl., Ex. C at 3; Ex. D at 1-3.)

  B. Procedural History

  On September 22, 2003, this Court granted defendants' motion to dismiss Cuoco's Bivens claim as well as their summary judgment motion on Cuoco's FTCA claims. (Zornberg Decl., Ex. A at 7.) Only Cuoco's $218 negligence claim remained. (Zornberg Decl., Ex. A at 7.) On October 31, 2003, the parties settled the negligence claim and consented to entry of a partial judgment for $218. (Zornberg Decl., Ex. A at 14; Ex. G: Transcript of October 23, 2003 conference, at 3-5.) During the October 23 conference, Cuoco requested an additional $150 for the district court filing fee, which Cuoco had not paid. (Zornberg Decl., Ex. G at 5.) Cuoco cited the PLRA's mandate for prisoners to pay filing fees in requesting the additional $150 award.*fn3 (Zornberg Decl., Ex. G at 5-6.) Cuoco has not paid any portion of the $150 filing fee required in this case by the PLRA. (See Declaration of Cindy Barrois, dated Apr. 22, 2004 ("Barrois Decl.") at ¶ 5.)

  In a follow-up letter to AUSA Zornberg, Cuoco requested that the Government send the $218 settlement check to her mother's address in Staten Island, instead of her prison account. (Zornberg Decl., Exhibit H: Letter from Cuoco to AUSA Zornberg, at 1.) In that letter, Cuoco demonstrated her familiarity with the PLRA's mandatory filing fee provision by explaining that "any monies deposited into my prison account that exceed $10.00 are required by the ...


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