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Ed-George v. Burns

September 8, 2009

ED-GEORGE, FOR THE FAMILY-PARENTEAU, STEWARD FOR THE TRUSTEE PETITIONER, PLAINTIFF,
v.
KATHLEEN BURNS; ANTHONY KALIMERAS; JEFF COHEN; DARRELL DAY; DAVID M. ACKERT; JUSTICE EUGENE J. RIZZO; AMY SHUMAN; DANIEL M. MARTUSCELLO; RAYMOND COSTANTINO; NANCY E. HAMMOND; MICHAEL HORODYSKI; KEVIN BRENIE; PATRICK PHILLIPS; TOWN OF LLOYD; TOWN OF LLYOD POLICE DEPARTMENT; TOWN OF LLOYD JUSTICE COURT; AND PEOPLE OF THE STATE OF NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

DECISION and ORDER

Currently pending before the Court in this pro se civil rights action is a motion filed by Ed Parenteau a/k/a "ed-george [for the family-parenteau]" (hereinafter "Plaintiff") to proceed in forma pauperis. (Dkt. No. 2.) On August 6, 2009, Magistrate Judge Homer issued a Report-Recommendation recommending (1) that Plaintiff's motion be granted, and (2) that certain Defendants named in Plaintiff's Complaint be sua sponte dismissed. (Dkt. No. 4.) For the reasons set forth below, the Report-Recommendation is adopted as modified.

I. RELEVANT BACKGROUND

On July 28, 2009, the Court issued a Decision and Order remanding a New York State criminal proceeding against Plaintiff, which he had improperly removed to federal court. See People of State of New York v. Ed Parenteau, 09-CV-0681, 2009 WL 2256924 (N.D.N.Y. July 28, 2009) (Suddaby, J., adopting Report-Recommendation of Homer, M.J.). The next day, Plaintiff filed this action based on the same criminal prosecution. (Dkt. No. 1.)

More specifically, construed with the utmost of special leniency, Plaintiff's Complaint in this action alleges that, on the morning of March 4, 2009, he was wrongfully arrested for false personation (pursuant to N.Y. Penal Law § 190.23) and trespass (pursuant to N.Y. Penal Law § 140.05) at a property owned by Wells Fargo Bank in the Town of Lloyd, Ulster County, New York. (Id.) The Complaint further alleges that, subsequently, he was wrongfully detained for approximately five hours and prosecuted for these offenses in Lloyd Justice Court in Case Numbers 09030152 and 09030362. (Id.) Finally, he alleges that, due to these events, thirteen individuals and three governmental entities subjected him to, inter alia, unlawful search and seizure, unlawful custodial interrogation, denial of counsel, false arrest, unlawful detention, cruel and unusual punishment, and malicious prosecution, in violation of his rights under the United States Constitution. (Id.)*fn1

These individuals and governmental entities were as follows: (1) five employs of the Town of Lloyd Police Department (Chief David Ackert and Officers Kathleen Burns, Anthony Kalimeras, Jeff Cohen, and Darrell Day); (2) two employees of the Town of Lloyd Justice Court (Justice Eugene Rizzo and his Clerk, Amy Shuman); (3) an assistant district attorney in the Ulster County District Attorney's Office (Daniel Martuscello); (4) five members of the town of Lloyd Council (Supervisor Raymond Costantino, and Council members Nancy Hammond, Michael Horodyski, Kevin Brenie, and Patrick Phillips); (5) the Town of Lloyd Police Department; (6) the Town of Lloyd; and (5) the State of New York (Id.)

On August 6, 2009, Magistrate Judge David R. Homer issued a Report-Recommendation recommending as follows: (1) that Plaintiff's motion to proceed in forma pauperis be granted; (2) that Defendant State of New York be dismissed as per the Eleventh Amendment; (3) that Defendant Judge Eugene J. Rizzo be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and N.D.N.Y.L.R. Rule 5.4(a) because "[j]udges enjoy absolute immunity from personal liability for 'acts committed within their judicial jurisdiction"; (4) that Defendants Raymond Costantino, Nancy E. Hammond, Michael Horodyski, Kevin Brenie and Patrick Phillips be dismissed because, "other than . . . being listed as parties, the Complaint contains no specific allegations of wrongdoing by th[ese] [D]efendants," and "personal involvement . . . is a prerequisite to an award of damages under §1983"; and (5) that the case proceed against the remaining Defendants. (Dkt. No. 4.)

On August 19, 2009, Plaintiff filed an Objection to those portions of the Report-Recommendation that recommended the dismissal of various of his claims. (Dkt. No. 8.)

II. ANALYSIS

A. Plaintiff's Motion to Proceed In Forma Pauperis

Plaintiff has requested that the Court allow him to proceed in forma pauperis. (Dkt. No. 2, Part 1.) However, his motion to proceed in forma pauperis is not supported by an affidavit as required by 28 U.S.C. § 1915(a)(1) and Local Rule 5.4(a). (Id.) In particular, Plaintiff's Application is neither notarized nor sworn to pursuant to 28 U.S.C. § 1747. (Id.) Rather, the end of the Application reads as follows: "I declare under penalty under the Laws of The Father In Heaven, Our Creator, YaHaWaH, Matthew 5:37 'But Let your Word 'Yea,' and your 'No' be 'No.' And what goes beyond these is from the wicked one.': that the above information is true and correct and not misleading." (Id. at 2; see also id. at 4 [containing same language with caveat that the foregoing information is "true and correct to the best of my knowledge"].) Such a declaration omits the equivalent of the phrase "under the penalty of perjury under the laws of the United States of America," which is expressly required by 28 U.S.C. § 1746.

Granted, 28 U.S.C. § 1746 requires only that a declaration be "substantially" in the form described above. 28 U.S.C. 1746. As a result, two district courts have held that the language "under the laws of the United States of America" is "not a rigid requirement." Matsuda v. Wada, 101 F. Supp.2d 1315, 1323 (D. Hawaii 1999); see also Ty, Inc. v. MJC-A World of Quality, Inc., 93-CV-3478, 1994 WL 36880, at *2 (N.D. Ill. Feb. 8, 1994) (an omission of the phrase "'under the laws of the United States of America' . . . does not substantially alter the form prescribed by Congress"). As an initial matter, the Court distinguishes the Matsuda and Ty, Inc. cases from the current case because, unlike the current case, the former cases did not involve a declarant who challenged the legal existence and thus authority of the United States. (See generally Dkt. No. 1.) In any event, setting aside that issue, neither case stands for the proposition that the declarant need not use the words, "under penalty of perjury"; to the contrary, both cases hold that such words are required by 28 U.S.C. § 1746. Wada, 101 F. Supp.2d at 1323; Ty, Inc., 1994 WL 36880, at *2. Here, Plaintiff has carefully crafted his certification so as not to use those words. (See Dkt. No. 1, Part 1, at 2.) Simply stated, it is far from clear to the Court that Plaintiff "fully appreciates the consequences[,] or [is] impressed with the solemnity[,] of [his] declarations." Ty, Inc., 1994 WL 36880, at *2.

Ordinarily, the Court might overlook such a fact out of special leniency to Plaintiff as a pro se civil rights litigant. However, in this case, Plaintiff has made certain factual assertions in the Application that appear inconsistent with allegations contained in his Complaint. For example, in his Application, Plaintiff asserts that he does not "own any real estate." (Dkt. No. 2, Part 1, ¶ 5.) The problem is that, in his Complaint, he alleges that various of the Defendants "trespass[ed]" on "private land in possession, ownership and control of [Plaintiff]." (Dkt. No. 1, Part 1, ¶¶ 41, 42.) Moreover, in his Application, Plaintiff asserts that he does not have any monthly income, "cash, checking or savings accounts," or "other assets." (Dkt. No. 2, Part 1, ¶¶ 3-5.) He also asserts, in a Supplemental Application, that he has never had a job. (Id. at Supp. App., ¶ 2.b.) These assertions are confusing at best since, in his Complaint, he alleges facts plausibly suggesting that (1) he rented a van at some point before March 4, 2009, which he presumably used to drive up from New Jersey to the Town of Lloyd, (2) in that van he had stored "personal property," and (3) he was able to pay five hundred dollars ($500) in bail, upon demand, on or about March 10, 2009. (Dkt. No. 1, Part 1, ¶¶ 54, 77-80.) As a result, the Court finds that Plaintiff is being less than truthful regarding his current financial condition.

For all these reasons, Plaintiff is directed to do either of the following two things within thirty (30) days of the date of this Decision and Order: (1) re-submit an IFP application that complies with the requirements of 28 U.S.C. ยง 1746; or (2) pay the Court's filing fee of three hundred and fifty dollars ($350). In the event that Plaintiff chooses not to do one of these two things, his in forma ...


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