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Mercier v. Mercier

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


May 25, 2007

GEORGE MERCIER, PLAINTIFF,
v.
GEORGE MERCIER, MICHELLE MERCIER, MICHAEL D. MERCIER, SUSAN MERCIER, THOMAS VOELKLE, SANDRA FRANKEL, PATRICK O'FLYNN, JAMES GODSHEL, PATRICIA MARKS, ELMA A. BELLINI, THOMAS VAN STRYNODONCK, JOHN J. ARK, THE REPUBLIC OF FRANCE, DEFENDANTS.

The opinion of the court was delivered by: Lawrence E. Kahn United States District Judge

DECISION AND ORDER

I. BACKGROUND

Presently before the Court is a civil rights complaint filed pro se by George Mercier ("Plaintiff"). Compl. (Dkt. No. 1). Plaintiff , a resident of Nevada, has also filed an application to proceed in forma pauperis. Dkt. No. 2.

Plaintiff has filed four other actions in this District since 2004. See Mercier v. The Central Intelligence Agency, et al., 5:04-CV-0429; Mercier v. The Governor of the State of New York, 1:06-CV-0350; Mercier v. Pataki, et al., 1:06-CV-0435; Mercier v. Governor of the State of New York, et al., 1:06-CV-0664. All of those actions were dismissed because of Plaintiff's failure to state a claim.*fn1

II. DISCUSSION

Consideration of whether a pro se plaintiff should be permitted to proceed in forma pauperis is a two-step process. First, the Court must determine whether the plaintiff may proceed with the action without pre-paying, in full, the required filing fee. The Court must then consider whether the causes of action stated in the complaint are, inter alia, frivolous or malicious, or if they fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B).

After reviewing the entire file herein, the Court finds that the plaintiff's in forma pauperis application is unclear and cannot be granted. Plaintiff, who is not incarcerated, claims not to have any source of income or means of support. Plaintiff indicates that he has cash, a checking accounting, or a savings account; however, Plaintiff's answer regarding how much money he has is illegible. Dkt. No. 1 at 2. Therefore, the Court finds that Plaintiff has failed to provide sufficient financial information and must be denied in forma pauperis status.

In light of Plaintiff's pro se status, the Court has also considered whether the complaint states a claim upon which relief may be granted. Although the court has the duty to show liberality towards pro se litigants, Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to respond, Anderson v. Counghlin, 700 F.2d 37, 41 (2d Cir. 1983), there is a responsibility on the court to determine that a claim is not frivolous before permitting a plaintiff to proceed.*fn2

A court may dismiss a complaint as factually frivolous if the facts alleged are clearly baseless, a category that includes allegations that are fanciful, fantastic, and delusional. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (citing Neitzke, 490 U.S. at 325-28). Thus, a finding of factual frivolousness is proper when the facts alleged rise to the level of the irrational or the wholly incredible. Denton, 504 U.S. at 33.

Plaintiff's Complaint is certainly frivolous. Plaintiff's Complaint discusses the 1959 French film "Les Quatre Cent Coups" and the use of cobblestones in Parisian streets during the late 1800s and early 1900s. In addition, the Complaint implicates the Central Intelligence Agency and Governor Nelson Rockefeller in President John F. Kennedy's assassination and alleges that Plaintiff's family wants him to visit with UNLV "Coach" Joe Felix. Compl. (Dkt. No. 1) at 3. Additionally, attached to his in forma pauperis application is a statement in which Plaintiff indicates that he has "asked the Aliens for aslym [sic]" as he no longer has an interest in living inside the United States. Dkt. No. 2 at 3.

Plaintiff also alleges that the Brighton Police Department broke into Plaintiff's residence.*fn3 Compl. (Dkt. No. 1) at 3. However, Plaintiff gives no factual support for his allegation and fails to state when or where this action occurred, or whether any of the individuals named as Defendants in this action were directly involved in the incident.*fn4 Accordingly, Plaintiff's action is frivolous and is dismissed with prejudice.

WHEREFORE, it is hereby

ORDERED, that Plaintiff's application to proceed in forma pauperis (Dkt. No. 2) is DENIED; and it is further

ORDERED, that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED IN ITS ENTIRETY; and it is further

ORDERED, that the Clerk serve a copy of this Order on Plaintiff.

IT IS SO ORDERED.


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