The opinion of the court was delivered by: David N. Hurd United States District Judge
On November 3, 2008, pro se plaintiff, Desiree Yagan ("Yagan" or "plaintiff"), filed what she has labeled, "Ex parte TRO Motion and Affidavit in Support of TRO 3-Judge Court." (Dkt. No.1). Plaintiff has filed an application to proceed in forma pauperis (IFP). (Dkt. No. 2). Plaintiff has also filed approximately 200 pages of exhibits to her motion for a TRO. (Dkt. Nos. 1, 6).
A brief review into the background of this case is necessary in order to clarify the facts. This is plaintiff's second attempt at bringing her ex parte TRO application. On October 10, 2008, Yagan sent various documents by facsimile to the chambers of Chief Judge of the Northern District, Norman A. Mordue. Yagan v. Fitzpatrick, et al., 08-CV-1100. Plaintiff herself stated that the documents were "incomplete." The papers were filed in an abundance of caution in order to protect the plaintiff, even though the court does not ordinarily accept documents sent by facsimile, and certainly does not accept documents sent directly to a judge's chambers, unless specifically authorized by the judge. Chief Judge Mordue issued an order dismissing the action without prejudice, stating that plaintiff should file a complete pleading and should not attempt to file papers by facsimile. (Dkt. No. 2, 08-CV-1100). Plaintiff has now filed these motions.*fn1
The TRO motion itself is five pages long and contains seventeen numbered paragraphs. The plaintiff appears to have named all the City Court judges in the Fifth Judicial District, and "including all Judges within the Fifth Judicial District." (TRO at p.1). Plaintiff has also specifically named Judge Stephen Dougherty; Judge Pavone; Judge James Cecile; Judge Kevin Young; Judge James Tormey; Judge Jeffrey Merrill; and Judge Langston McKinney. Id. Finally, Yagan has named William Fitzpatrick, Onondaga County Prosecutor. Once again, the first paragraph of the motion states that plaintiff has filed this action "incomplete," but that she has done so due to the threat of "false arrests." (TRO ¶ 1). Yagan also requests a three judge court.
The TRO motion first states that plaintiff has "incontrovertible proof" that she was falsely arrested on April 11, 2006, because the bench warrant that was issued for her arrest was issued without a "supporting deposition." (TRO ¶¶ 2-3). Plaintiff states that the bench warrant was "punitive, retaliatory, and illegal." Id. Yagan spends the next five paragraphs of her motion attempting to explain why the 2006 bench warrant was improper. (TRO ¶¶ 4-8). She claims that although the arrest was on April 11, 2006, the bench warrant was issued months before, and the execution of the warrant resulted in plaintiff being incarcerated for twenty-two hours. Id.
Plaintiff then states that another bench warrant was issued on the "very same simplified information" by Judge Kevin Young*fn2 on June 15, 2006. (TRO ¶ 9). Although plaintiff states that the bench warrants are "attached," she does not specify to which exhibit she is referring; and in paragraph four of the motion, she states that the bench warrant is located at Exhibit B. (TRO ¶ 4). However, no Exhibit B was filed with the initial TRO motion,*fn3 and the Exhibit B that was filed on November 5, 2008, is entitled "Motion to Recuse and Adjournment of Trial," dated October 10, 2006. Pl. Exh. B (Dkt. No. 6).
The next paragraph of the TRO motion is difficult to decipher, but apparently claims that a decision to "reverse (vacate)" one of plaintiff's convictions was "illegal." (TRO ¶ 10). Although in the preceding paragraphs, plaintiff was referring to incidents in 2006, in paragraph ten, she states that it was error for Judge Jack Shultz not to "force" her to trial pro se on February 11, 2005. Id. Plaintiff states that the action by Judge Shultz was deliberate and an abuse of discretion, taken because plaintiff posted a "legal notice" throughout Syracuse and DeWitt. Id. Plaintiff describes this "legal notice" in paragraph 11.
Plaintiff states that "Associate Judge David Giden"*fn4 did not give plaintiff due process when he signed an "illegal . . . 730.40"*fn5 order to have plaintiff imprisoned for either two and one half or three months in CNYPC,*fn6 a "facility for the criminally insane." (TRO ¶ 12). Plaintiff then states that the "egregious" constitutional violations are recited in detail in a "Motion to Unseal All Court Records." (TRO ¶¶ 13-14). This motion to "unseal" does not appear to be attached to plaintiff's federal court papers. Plaintiff states that she is under "severe duress," that is worsened by the fact that she has carpal tunnel syndrome, and that she is not able to prepare a "Proper TRO." (TRO ¶ 15).
In the next paragraph of her TRO, plaintiff states that the multitude of court documents that are attached to the TRO motion show that the "state courts pose grave and imminent threat of irreparable injury" to plaintiff. (TRO ¶ 16). Plaintiff states that the Exhibit F that she filed on November 2, 2008 supports her claim of irreparable injury. (TRO, Exhibit F-1). Exhibit F-1 is a letter, with exhibits, addressed to Judge Jeffrey Merrill, Supervising Judge of Syracuse City Court. In the letter to Judge Merrill, plaintiff refers to what appears to be other cases against plaintiff that were scheduled to proceed to trial on October 31, 2008, and November 3, 2008. Id.
In the letter to Judge Merrill, dated October 29, 2008, it appears that plaintiff is asking for an adjournment of these cases "due to a series of converging . . . incidents that have occurred." Id. Plaintiff states that these incidents have prevented her from seeking injunctive and declaratory relief in the United States District Court. Id. The letter then complains about the inability to obtain records in Syracuse City Court, and states that she can no longer continue in State court. Id. at p.4. Plaintiff states in her letter to Judge Merrill, that she attempted to show Judge Cecile the notice of her federal court action to "Enjoin the Fifth Judicial District (2 pages incomplete)." Id. at p.5. Finally, plaintiff refers to various exhibits that she has attached to Judge Merrill's letter, including a copy of a complaint, dated December 9, 2006, that plaintiff sent to the United States Attorney's Office. Id. at p.4 & Exh. B to Merrill letter.
2. In Forma Pauperis (IFP)
Plaintiff has filed an application to proceed IFP. (Dkt. No. 2). Pursuant to 28 U.S.C. § 1915(a)(1), the court may authorize the commencement, prosecution, or defense of any suit, action or proceeding without the pre-payment of fees. The individual seeking permission to proceed IFP must file an affidavit which includes a statement of all assets, showing that the individual is unable to pay the fees or give security therefor. Id. The same section, however, states that this determination is "subject to subsection (b)." Id.
Subsection (b) provides that notwithstanding any filing fee or portion of the fee that may have been paid, the court shall dismiss the case at any time if the court determines that the allegation of poverty is untrue, or the action is (I) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief ...