United States District Court, S.D. New York
August 3, 2005.
DENNIS LEE, Plaintiff,
CITY OF NEW YORK, ET AL., Defendants.
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT AND RECOMMENDATION
TO THE HONORABLE RICHARD C. CASEY, UNITED STATES DISTRICT JUDGE
Dennis Lee ("Lee") commenced this action pro se pursuant
to, inter alia, 42 U.S.C. §§ 1983 and 1985, and
20 U.S.C. § 1681, alleging violations of his constitutional rights.
Defendants City of New York ("City"), Orange County, Town of
Chester, Volunteers of America-Greater New York, Inc. ("VOA") and
City College of the City University of New York ("CCNY"), have
moved to dismiss the complaint on the ground that it fails to
comply with the pleading requirements set forth in Rule 8 of the
Federal Rules of Civil Procedure, or, alternatively, fails to
state a claim upon which relief can be granted, pursuant to
In addition, VOA has filed a counterclaim seeking an order
enjoining Lee from filing any further pleadings in this court
without the approval of the court as to form and legal
sufficiency. Also, Lee has requested permission to amend his
complaint to substitute the City University of New York for CCNY, and the Village of Chester for the Town of
Lee has commenced at least five pro se actions in this
court during the past seven years. All of these actions have been
dismissed for failure to prosecute, failure to comply with a
court order, or failure to comply with Fed.R.Civ.P. 8. See
Lee v. City of Buffalo, 98 Civ. 3141 (LAK) (S.D.N.Y. Sept. 9,
1998); Lee v. United States, 98 Civ. 7883, 1999 WL 335830
(S.D.N.Y. May 25, 1999); Lee v. United States, 00 Civ. 4163,
2000 WL 1597852 (S.D.N.Y. Oct. 26, 2000), aff'd, Lee v.
Underhill Wiping Cloth, 2001 WL 792540 (2d Cir. July 11, 2001);
Lee v. United States, 02 Civ. 0095 (GEL) (S.D.N.Y. Jan. 28,
2002), aff'd, 2002 WL 31819609 (2d Cir. Dec. 16, 2002); Lee v.
Volunteers of America, 02 Civ. 9794 (KMW) (S.D.N.Y. Aug. 25,
Plaintiff commenced this action on April 9, 2004, against the
City, Orange County, the Town of Chester, and the VOA. On May 19,
2004, plaintiff amended his complaint to add CCNY as a defendant.
Determining the nature of Lee's claims is difficult. He appears
to believe that he is the victim of a wide-ranging conspiracy to
deprive him of his civil rights. The alleged conspirators include
the City, the New York City Police Department ("NYPD"), the
Department of Homeless Services ("DHS"), Orange County, the Town
of Chester, VOA and CCNY.
Lee's allegations appear to arise out of three separate
incidents. One of these occurred on March 24, 2004. On this
occasion, according to the arresting officer's report, Lee, while
traveling on a DHS bus, assaulted a fellow passenger named Manuel
Santiago ("Santiago"). According to Santiago, the bus had just
arrived at Camp LaGuardia, a homeless shelter located in Orange
County, New York; when Santiago asked Lee to move his bag so that
Santiago could leave the bus, Lee began punching and biting him.
Lee then forced Santiago onto the floor of the bus and refused to release him until the arresting officer
Lee asserts that the fight was "fostered by the DHS and the
VOA's staff in retaliation for attempting to enforce the rights
[of] others in the class [Lee] belongs to. . . ." In contending
that DHS and VOA were acting in retaliation for a previous
action, Lee appears to be referring to a lawsuit in which he
challenged the building of a fence and closing of a pathway near
Camp LaGuardia. Lee also implicates Orange County in the alleged
orchestration of the fight, and accuses the Town of Chester, New
York, of violating his equal protection rights under the
Fourteenth Amendment by requiring five hundred dollars in bail
following Lee's arrest. Lee also contends that, at the time of
his prosecution for the assault, he did not challenge evidence
brought by the prosecutor because he feared that, if he did so,
"the court and prosecutor would become vindictive and violate
[Lee's] due process rights." Lee maintains that after he pled
guilty to the assault charge, the prosecutor and the court
"foreclosed through their efforts an appeal."
The second incident to which Lee refers in his amended
complaint occurred in or about November 2000. At that time, CCNY
asked him to withdraw from a course in which he had enrolled. Lee
claims that this action was the result of a conspiracy among
CCNY, DHS and others, to deprive him of his civil rights. Lee
also contends that CCNY discriminated against him on the basis of
Apparently in support of his claim, Lee has provided letters
from CCNY faculty members. The letters indicate, however, that
Lee was asked to withdraw from the course he was attending because he behaved in a "disorderly manner" in a
library lab, disturbed other students and used profanity.
Finally, the amended complaint refers to an incident that took
place on May 13, 2002. On that date, the NYPD stopped and
searched a bus on which Lee was traveling. According to Lee, the
bus was "surrounded by the police with guns drawn." It appears
that the NYPD was acting on information it had received
concerning the presence on the bus of an escaped rapist. Lee
claims, however, that the bus was stopped as the result of a
conspiracy on the part of the NYPD, VOA and DHS to harass and
intimidate him. Lee appears to believe that this action was taken
in retaliation for his opposition to the construction of a fence
at Camp LaGuardia.
Fed.R.Civ.P. 8 Pleading Requirement
Lee alleges that the defendants have denied him his civil
rights, and conspired to deny him his civil rights, in violation
of 42 U.S.C. §§ 1983 and 1985. Additionally, he claims that CCNY
asked him to withdraw from a course he was attending because of
his gender, in violation of 20 U.S.C. § 1681(a).*fn2 For
their part, the defendants have moved to dismiss Lee's claims on
the ground that his amended complaint fails to meet the pleading
requirements of Fed.R.Civ.P. 8, or, alternatively, fails to
state a claim upon which relief can be granted.
Fed.R.Civ.P. 8(a)(2) requires that a pleading must present
"a short and plain statement of the claim showing that the
pleader is entitled to relief." The principal function of a
pleading under the Federal Rules of Civil Procedure is to give the adverse
party fair notice of the claim asserted. See Simmons v.
Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995). Thus, a plaintiff must
provide sufficient information to permit the defendant to have a
fair understanding of what the plaintiff is complaining about and
to know whether there is a legal basis for recovery. See
Kittay v. Kornstein, 230 F.3d 531, 541 (2d Cir. 2000).
In the instant case, the Court finds that the allegations made
by Lee do not give the defendants fair notice of the basis for
his claims. Absent from Lee's complaint are any statements of
fact that would support his allegations of a conspiracy to deny
him his civil rights. With respect to the fight that occurred on
March 24, 2004, Lee provides no facts that would explain: (i) how
the fight was caused by others; (ii) the basis for his claim that
bail was imposed on him in a discriminatory way; (iii) why he
thought the prosecutor "would become vindictive" if Lee were to
challenge the evidence adduced in connection with the fight; or
(iv) how the prosecutor and the court "foreclosed" an appeal.
Rather, Lee's claims are conclusory and often difficult to
understand. For example, Lee concludes his discussion of his
conspiracy claim by stating that "[t]herefore, the VOA, Orange
County, the city of New York and the Town of Chester [are charged
with violating 42 U.S.C. § 1985] and inflicting wanton and
intentional mental suffering and equal protection clause."
The portion of Lee's amended complaint alleging harassment in
retaliation for his opposition to the construction of a fence at
Camp LaGuardia also is vague and fails to provide any specific
details about the claims made therein. Similarly, with respect to
defendant CCNY, Lee's allegations fail to provide information
that would allow this defendant to determine whether Lee has a
legal basis for recovery. Absent from the amended complaint are
any factual allegations that would support the claim that CCNY and DHS
conspired to violate Lee's civil rights, or that CCNY violated
his civil rights. Nor does Lee provide any facts that are
relevant to his gender discrimination claim, other than to note
that his instructor was female. Consequently, like the other
defendants in this action, CCNY is forced to speculate about the
basis for Lee's claims. This the defendants should not have to
do. See Fed.R.Civ.P. 8.
Under the circumstances, the Court finds that Lee's claims
against the defendants do not meet the pleading requirements set
forth at Fed.R.Civ.P. 8. Accordingly, the defendants' motions
to dismiss the complaint on this ground should be granted.
Furthermore, because the Court finds, based on the preceding
analysis, that Lee's claims against the defendants cannot survive
a motion to dismiss, the Court does not reach the defendants'
alternative proposition: that the amended complaint fails to
state a claim upon which relief can be granted.
Motion to Amend
Following the submission by the defendants of their motions to
dismiss, Lee sought leave to amend his amended complaint by
substituting the City University of New York for defendant CCNY,
and the Village of Chester for defendant Town of Chester.
Rule 15(a) of the Federal Rules of Civil Procedure provides
that "[a] party may amend the party's pleading once as a matter
of course at any time before a responsive pleading is served. . . .
Otherwise a party may amend the party's pleading only by leave
of the court . . . and leave shall be freely given when justice
so requires." Fed.R.Civ.P. 15(a); see also Foman v.
Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230 (1962).
The determination to grant or deny a motion to amend a
complaint is within the discretion of the Court. See New York
State Nat'l Org. for Women v. Cuomo, 182 F.R.D. 30, 36 (S.D.N.Y. 1998). "Undue delay, bad faith or dilatory motive on
the part of the movant . . . undue prejudice to the opposing
party by virtue of allowance of the amendment, [or] futility of
[the] amendment" are valid reasons to deny such a motion.
Foman, 371 U.S. at 182, 83 S. Ct. at 230.
A determination that a proposed claim is futile is made through
an analysis comparable to that employed when considering a motion
to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. See A.V. by Versace, Inc. v. Gianni Versace,
S.p.A., et al., 160 F. Supp. 2d 657, 666 (S.D.N.Y. 2001).
"Therefore, if the proposed claim would be subject to dismissal
under Rule 12(b)(6), the Court should refuse to grant leave to
amend rather than assent and then await a motion to dismiss."
Id. (internal quotes omitted).
In this case, it would be futile for Lee to amend his pleading
further. The Court has determined that the pleading, as it
stands, fails to present "a short and plain statement" of Lee's
claims "showing that he is entitled to relief." This defect in
the pleading cannot be cured simply by substituting one party for
another. Furthermore, the proposed amendment would not alter the
Court's conclusion that Lee's claims fail to comply with
Fed.R.Civ.P. 8. Therefore, plaintiff's request to file a second
amended complaint should be denied.
As noted above, defendant VOA has filed a counterclaim seeking
an order restraining and enjoining Lee from filing "any further
pleadings, writs or applications" in this court unless such
pleading is "approved" by the court for form and legal
The Court's authority to enjoin a vexatious litigant arises
under the All Writs Act, 28 U.S.C. § 1651(a), as well as the
inherent authority of the court. See Safir v. United States
Lines, Inc., 792 F.2d 19, 23-24 (2d Cir. 1986). Further, "the
traditional standards for injunctive relief, i.e., irreparable injury and inadequate remedy at law, do not
apply to the issuance of an injunction against a vexatious
litigant." In re Martin-Trigona, 737 F.2d 1254, 1262 (2d Cir.
1984). Rather, "[a] history of litigation entailing `vexation,
harassment and needless expense to [other parties]' and `an
unnecessary burden on the courts and their supporting personnel'
is enough." Id. (quoting In re Hartford Textile Corp.,
681 F.2d 895, 897 [2d Cir. 1982]).
The Second Circuit has identified five factors which courts
must consider in determining whether to restrict a litigant's
access to the courts: (1) the litigant's history of litigation;
(2) the litigant's motive; (3) whether the litigant is
represented by counsel; (4) whether the litigant has caused
needless expense or burden to the court and other parties; and
(5) whether other sanctions or remedies would suffice to protect
the court and other parties. See Safir, 792 F.2d at 24.
As noted above, Lee has filed at least five previous lawsuits
in this court during the past seven years. All of the lawsuits
have been dismissed. Defendants City, CCNY, Orange County and VOA
are among the defendants named in the previous actions. Further,
although some of the suits filed previously by Lee have been
dismissed for failure to comply with Fed.R.Civ.P. 8, Lee has
failed to remedy this defect in the instant case, even while
presenting claims that are the same as or similar to those raised
earlier. This suggests that Lee does not have a good faith
expectation of prevailing in this action. The expense and burden
incurred by the court and other parties as a result of the
frivolous litigation initiated by Lee has been unnecessary.
Moreover, Lee is not represented by counsel and, thus, bears full
responsibility for bringing these lawsuits. Furthermore, there is
good reason to believe that Lee will continue to file baseless
lawsuits in the absence of an injunction. Finally, because
plaintiff until recently apparently was homeless, it is doubtful that an award of money damages would serve a useful
purpose or effectively restrain his behavior.
Therefore, the Court finds that some restriction on future
litigation is appropriate in this case.*fn3 Accordingly, an
injunction should issue barring Lee from filing any new action
that raises claims that are the same as or similar to the claims
presented in the instant complaint. In addition, Lee should be
required to show the court a copy of the injunction issued in
this case and to obtain the court's permission, before he
attempts to file any future litigation.
For the reasons set forth above, it is recommended that: (a)
defendants' motions to dismiss be granted; (b) Lee's motion to
amend his amended complaint be denied; and (c) defendant VOA's
motion to enjoin Lee from filing any new pleadings in this court
without the court's permission be granted.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties have ten (10) days from
service of the Report to file written objections. See also
Fed.R.Civ.P. 6. Such objections, and any responses to
objections, shall be filed with the Clerk of Court, with courtesy
copies delivered to the chambers of the Honorable Richard C.
Casey, United States District Judge, 500 Pearl St., Room 1350,
New York, New York 10007, and to the chambers of the undersigned,
40 Centre St., Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be
directed to Judge Casey. FAILURE TO FILE OBJECTIONS WITHIN TEN
(10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE
APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985);
IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d
Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992);
Wesolek v. Candair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1998);
McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).