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Cowan v. Paulson

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK


February 14, 2009

LINDA A. COWAN, PLAINTIFF,
v.
HENRY PAULSON, JR., U.S. DEPT. OF TREASURY, DEFENDANT.

The opinion of the court was delivered by: William M. Skretny United States District Judge

DECISION and ORDER

On May 13, 2008, the Court (Hon. Charles J. Siragusa)*fn1 entered an Order granting plaintiff permission to proceed in forma pauperis, and dismissing the complaint, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), as frivolous because it was plaintiff's third attempt to re-litigate a previous employment discrimination action that had been dismissed by the Court.*fn2 (Docket No. 4, Order). The Order also, pursuant to Fed.R.Civ.P. 11 and the Court's inherent authority, see In re McDonald , 489 U.S. 180, 184 n. 8, 109 S.Ct. 993, 103 L.Ed. 2d 158 (1989) (citation omitted), enjoined plaintiff from filing any further actions in this Court which, in any way, arose from her employment with the U.S. Department of Treasury, Internal Revenue Service or her previous action in this Court, Cowan v. O'Neil , 00-CV-0315S(Sr). (Docket No. 4, Order, at 2-5).

Plaintiff appealed that Order and on September 11, 2008, the United States Court of Appeals for the Second Circuit issued a Mandate and vacated only that part of the Order that had enjoined plaintiff from filing any further actions in this Court arising out her employment with the U.S. Department of Treasury, Internal Revenue Service, or her previous action in this Court on the basis that the Court had failed to provide plaintiff with notice and opportunity to be heard on the issue of whether and to what extent she should be enjoined from filing any further actions in this Court arising out her employment with the U.S. Department of Treasury, Internal Revenue Service, or her previous action in this Court. (Docket No. 7, Mandate). The Court of Appeals thus remanded this action with instructions to provide plaintiff with such notice and opportunity.

Pursuant to the Mandate, the Court entered an Order instructing plaintiff to show cause, in the form of an affidavit, why she should not be enjoined from filing any further actions in this Court arising out her employment with the U.S. Department of Treasury, Internal Revenue Service, or her previous action in this Court that alleged employment discrimination in relation to her employment with the U.S. Department of Treasury, Internal Revenue Service. (Docket No. 8).

Plaintiff responded to the Order by filing yet another motion to recuse the undersigned, the District Judge who had been assigned to Plaintiff's initial action, 00-CV-0315S(Sr) and all other actions filed by Plaintiff, relief that she has requested repeatedly in her multiple actions filed in this Court. (Docket No. 9). Plaintiff also filed an "Affidavit to Show Cause," which rather than addressing specifically why she should not be enjoined from filing further actions in this Court, again complains about the way in which her original action was handled and attempts to re-litigate that action. (Docket No. 10).

Although the Court can understand a litigant's disappointment in having a case dismissed, such disappointment does not justify this litigant's repeated, misguided attempts to re-litigate, reconsider and re-open an action that has been dismissed by the Court. The Court notes that Plaintiff's appeal from the dismissal of her action was dismissed by the Court of Appeals on the ground that it lacked an arguable basis in fact or law. ( Cowan , 00-CV-0315S(Sr), Docket No. 62, Mandate,). Plaintiff's continued actions and response to the Court's Order upon remand in this action supports again the imposition of a filing injunction against her. Plaintiff has not shown any indication that she will stop filing frivolous actions and motions in an attempt to re-litigate an action that was dismissed by the Court well over seven years ago, and the appeal of which was dismissed by the Court of Appeals now over five years ago. In fact, at the time Plaintiff filed her response herein, she filed yet another motion in the original action to re-open it.

Accordingly, Plaintiff's motion to recuse and for other relief (Docket No. 9) is denied, and for the reasons set forth previously in the Court's Order in the instant action, entered May 13, 2008, (Docket No. 4), plaintiff shall not file any further actions in this Court which, in any way, arise from her employment with the U.S. Department of Treasury, Internal Revenue Service, or her previous action in this Court, Cowan v. O'Neil , 00-CV-0315S(Sr), alleging employment discrimination in relation to her employment with the U.S. Department of Treasury, Internal Revenue Service, and that leave to appeal to the Court of Appeals from this Order as a poor person is denied.

SO ORDERED.


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