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Jackson v. New York State

June 30, 2006

DONA J. JACKSON, PLAINTIFF,
v.
NEW YORK STATE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: David E. Peebles U.S. Magistrate Judge

DECISION AND ORDER

Plaintiff Dona J. Jackson, a pro se though not inexperienced litigant, has commenced this civil rights action pursuant to 42 U.S.C. § 1983 alleging deprivation of her constitutional rights. In her complaint, as amended, plaintiff identifies as defendants various individuals, many of whom are past or present New York State Police ("NYSP"), by name, and additionally references several John and Jane Doe defendants whose identities are not currently known to her. Plaintiff's claims have as their genesis defendants' refusal to intervene on her behalf in an ongoing property dispute between Ms. Jackson and her neighbors. According to the plaintiff, the actions of the NYSP defendants and others ultimately escalated from that point, and have since included acts of excessive force and retaliation, taken as part of a conspiracy to deprive her of her constitutional rights. Plaintiff's complaint sets forth a variety of federal and state common law claims, and seeks recovery of compensatory damages of more than $25 million as well as other forms of legal and equitable relief.

Currently pending before the court are several cross-motions. For their part, defendants seek transfer of this matter to the Western District of New York where, they assert, plaintiff has commenced other actions including a closely related case against various defendants growing out of many of the same incidents which form the basis of her claims in this matter. Plaintiff, in turn, requests an order compelling discovery in order to assist her in ascertaining the identity of the unnamed defendants and to serve various of those whose identities, but not addresses, are known to her; an order disqualifying Assistant New York State Attorney General Douglas J. Goglia, Esq. from representing the defendants in the case; and appointment of a special prosecutor and/or convening of a grand jury to investigate her allegations.

For the reasons set forth below, I deny plaintiff's motions to disqualify counsel and for appointment of a special prosecutor and/or convening of a special grand jury. Additionally, finding that the interests of justice and judicial economy would be best served by effectuating such a transfer, in my discretion I will grant defendants' motion to transfer this action to the Western District of New York, which is far better positioned to examine the interplay between plaintiff's claims in this action and those involved in a prior case commenced in that court, but later dismissed based upon her failure to prosecute and to comply with the court's order, and will defer a ruling on plaintiff's motion to compel discovery for review by that court.

I. BACKGROUND*fn1

Plaintiff is and was at all times relevant to her claims a resident of the Town of Conquest, which is located in Cayuga County, and within this district. Third Amended Complaint (Dkt. No. 119) ¶ 35. Plaintiff's complaint describes a course of events extending back over a period of thirteen years, involving various employees of the New York State Police as well as other state and local governmental employees and including conduct occurring both here and in the Western District of New York. At the heart of plaintiff's claims are efforts by her to elicit the assistance of the NYSP in connection with a dispute with her neighbors, beginning in 1993. Id. ¶¶ 88-92. Plaintiff alleges that in March and April of 1995 she met with representatives of the NYSP at barracks located in Wolcott, New York, and within the Western District of New York, to discuss the matter, to no avail. Id. ¶¶ 94-98.

Piecing together the chronology of later relevant events from plaintiff's allegations is difficult. Plaintiff's complaint mentions various more recent incidents, including picketing on June 10, 1999, apparently resulting in her being cited for a violation of N.Y. Vehicle and Traffic Law § 1202 and subjected to resulting criminal proceedings in Wayne County before a Town of Sodus Justice, and leading to a guilty verdict which, she maintains, resulted from a violation of her constitutional rights and should be set aside. Id. ¶¶ 52-63. Plaintiff's complaint also references an arrest, which she maintains was in retaliation for her having exercised protected rights, in or about May of 2001 leading to the filing of criminal charges against her for resisting arrest and criminal contempt in the second degree.*fn2 Third Amended Complaint (Dkt. No. 119) ¶ 64. After being released on bail, according to plaintiff's complaint, those charges were ultimately dismissed as "false & baseless." Third Amended Complaint (Dkt. No. 119) ¶ 66.

On May 17, 2000 plaintiff was confronted by two NYSP officers near the Finger Lakes Mall, located in Auburn, New York. Id. ¶ 75. During the course of that encounter, plaintiff alleges, she was harassed and retaliated against for exercising her First Amendment rights. Id. ¶¶ 75-80.

Lastly, plaintiff's complaint alleges that on or about May 15, 2000 her home was the subject of an unconstitutional search and invasion of privacy at the hands of a named NYSP officer and another unspecified individual. Third Amended Complaint (Dkt. No. 119) ¶¶ 81-82.

Plaintiff's third amended complaint sets forth twelve causes of action including, inter alia, claims 1) for false arrest and malicious prosecution; 2) for retaliation; 3) that defendants engaged in a conspiracy to cover up misconduct and obstruction of justice; 4) under Monell against the municipal defendants;*fn3 5) of assault and battery; 6) of false imprisonment; 7) of intentional infliction of emotional distress; 8) of negligent infliction of emotional distress; 9) of negligent hiring and retention of employees; 10) of fraud and perjury; 11) under the civil provisions of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq.; and 12) grounded in respondeat superior. Plaintiff's amended complaint requests a variety of relief, including compensatory and punitive damages.*fn4

II. PROCEDURAL HISTORY

A. Plaintiff's Western District of New York Action

In 2001 plaintiff commenced a civil rights action in the Western District of New York, entitled Jackson v. Axsmith,01 CV-6382T (W.D.N.Y. filed 2001). A comprehensive, side-by-side comparison of the allegations set forth in plaintiff's complaints in the two actions is difficult for a variety of reasons, including their sheer volumes, lack of cogent organization, and argumentative nature, further complicated by the fact that in Axsmith plaintiff apparently filed several different complaints setting forth allegations with regard to various sets of defendants in the action. It is clear, however, that there is a substantial overlap in both the facts giving rise to her claims in the two actions as well as the defendants and causes of action implicated.*fn5

On November 24, 2002 plaintiff moved in Axsmith for an order directing the United States Marshal to serve process on the various named defendants. See Goglia Decl. (Dkt. No. 123) Exh. M. By order dated October 31, 2001, District Judge Charles J. Siragusa denied that application, directing instead that the plaintiff herself arrange for service of the summons and complaint upon the various defendants within 120 days.

Id. Exh. N. Plaintiff's apparent failure to serve the defendants, as directed in that order, led to the issuance by that court of an order to show cause why the action should not be dismissed based upon her failure to prosecute. Goglia Decl. (Dkt. No. 123) Exh. O. After considering a response to that order, filed by the plaintiff on November 24, 2002, Chief Judge David G. Larimer issued an order dated December 2, 2002 dismissing plaintiff's complaint in that action for failure to comply with Judge Siragusa's order, and to prosecute.*fn6*fn7 Goglia Decl. (Dkt. No. 123) Exhs. P, Q.

B. This Action

Plaintiff, at the time represented by an attorney who has since been relieved as her counsel of record, commenced this action on May 9, 2003. Since the filing of plaintiff's initial complaint the case has not materially progressed past the pleading stage, despite its tortured history. Following the filing by plaintiff of a second amended complaint the defendants thus far served in the action, all represented by the Office of the New York State Attorney General, moved seeking its dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure on a variety of bases. That motion resulted in the issuance on August 11, 2005 of a decision and order by Senior District Judge Howard G. Munson. See Dkt. No. 99. In that order, inter alia,Judge Munson dismissed plaintiff's civil RICO and conspiracy claims as well as all claims purported to be interposed on behalf of plaintiff's son, but denied defendants' dismissal motion in all other regards. Id. In that decision, Judge Munson also rejected an application by plaintiff to disqualify the Office of the New York State Attorney General from acting as counsel for the defendants, pointing out that because they appear to have been sued under 42 U.S.C. § 1983 for acts committed within the scope of their employment, under N.Y. Public Officer's Law § 17 the defendants were entitled to representation by the Attorney General. See Decision and Order (Dkt. No. 99) at 3.

Presently pending before the court are four separate motions. The most recent round of filings was initiated on March 20, 2006 by plaintiff's application for a restraining order and/or a protective order. Dkt. No. 115. In that document plaintiff requests that the court direct the appointment of a special prosecutor and/or impanelment of a federal grand jury to investigate the allegations set forth in her complaint. See id. In a second, separate though somewhat related motion filed on April 5, 2006, plaintiff seeks disqualification of Assistant Attorney General Goglia from representing the defendants based upon his conduct during the course of the litigation. Dkt. No. 120.

The third of the most recent motions to be filed with the court was initiated on April 11, 2006 by defendants' filing of a cross-motion seeking transfer of the case to the Western District of New York, pursuant to 28 U.S.C. ยง 1404(a). Dkt. No. 123. In their motion, defendants argue that consideration of the factors which inform the analysis of whether to transfer a case under section 1404(a) favors the Western District of New York, despite plaintiff's choice of this forum for bringing her suit. See id. The last and final motion now before the court was filed by the plaintiff on May 12, 2006, seeking an order compelling the defendants to identify various of the defendants sued by her as Jane and John Does ...


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