The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff Ted A. McCracken ("McCracken"), proceeding pro se, brings this action against R.E. Ginna Nuclear Power Plant, LLC ("Ginna"), Constellation Energy Group, Inc. ("Constellation"), Constellation's President, Mayo A. Shattack, Constellation Energy Nuclear Group, LLC, Rochester Gas & Electric Corp., Energy East Corp., Michael J. Wallace, as the President of Constellation Generation Group and Constellation Commodities Corporation, and a number of John and Jane Doe defendants (collectively, "defendants"). McCracken alleges that the defendants, as owners, operators and/or employees of Ginna at various times, subjected him to personal injuries by exposing him to unlawful levels of ionized gamma radiation in excess of levels permitted by the Atomic Energy Act (42 U.S.C. §2011 et seq.), in violation of the Price-Anderson Act (42 U.S.C. §2210), and other, unidentified federal and state laws.
McCracken alleges that on January 25, 1982, when a "nuclear disaster" occurred at Ginna, the defendants caused unlawful amounts of toxic gamma radiation to contaminate the ambient air and water. McCracken claims that as a New York resident, he was exposed to the resulting "toxic cloud" and "nuclear fall-out," and that these exposures ultimately caused thyroid cancer, with which McCracken was diagnosed on June 21, 2005. (Dkt. #1 at ¶¶1, 17). McCracken asserts several causes of action, generally sounding in negligence.
The defendants now move for dismissal of the complaint pursuant to Fed. R. Civ. Proc. 12(b)(6), on the grounds that McCracken has failed to properly effect service of the complaint in accordance with Fed. R. Civ. Proc. 4(m) and the orders of this Court, that the action is frivolous and McCracken's claims demonstrably false, and that the matter is time-barred in any event. Defendants further request that in light of McCracken's extraordinary history of filing frivolous actions, many similar to this one, that McCracken be enjoined from the filing of further in forma pauperis lawsuits alleging radiation exposure without prior leave of Court. For the reasons set forth below, that motion (Dkt. #6) is granted, the complaint is dismissed, and McCracken is ordered to discontinue the pursuit of in forma pauperis actions alleging unlawful toxic exposures in federal district court without obtaining prior leave of court, at the risk of incurring summary dismissal and/or monetary sanctions.
I. Standard for Dismissal Pursuant to Fed. R. Civ. Proc. 12(b)(6)
In deciding whether a complaint should be dismissed for failure to state a claim pursuant to Fed. R. Civ. Proc. 12(b)(6), a court must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994), citing Ad-Hoc Comm. of Baruch Black & Hispanic Alumni Ass'n v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d Cir. 1987). However, "a plaintiff's obligation . . . requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
II. Defendants' Motion to Dismiss
Initially, this action must be dismissed for failure to timely effect service of process. Rule 4(m) of the Federal Rules of Civil Procedure authorizes the dismissal of an action where a plaintiff has failed to effectuate service of process within 120 days of filing the Complaint. Fed. R. Civ. Proc. 4(m). McCracken filed the complaint in this action on May 19, 2008. By Order dated June 17, 2008, Judge Richard J. Arcara approved McCracken's request for in forma pauperis status and ordered the complaint to be filed and the summons and complaint to be served on defendants by the U.S. Marshals Service. (Dkt. #3). On June 24, 2008, the Marshals Service mailed the requisite service forms and blank summonses to McCracken to be completed and returned. Several months later, McCracken returned the forms, without the summonses, and the Clerk sent new blank summonses to him for completion. Id.
On October 15, 2008, the Clerk issued summonses for the defendants and forwarded them to the U.S. Marshals service. On the same day, McCracken filed a motion for an extension of time to serve the complaint, acknowledging the 120 day time limitation that governed service. (Dkt. #4). By text order dated October 21, 2008, the Court extended McCracken's time to serve the complaint until December 22, 2008. (Dkt. #5). Nine months have elapsed since that deadline, and to date, McCracken has failed to complete the necessary paperwork to permit the Marshals to serve the defendants, or to otherwise effect personal service upon any of them, nor has any defendant elected to waive personal service, despite an attempt to serve them alternatively by mail. See generally Fairman v. Hurley, 373 F. Supp. 2d 227, 232 (W.D.N.Y. 2005) (service by mail is improper where defendant does not return an acknowledgment of service waiving personal service); White v. Murphy, 2008 WL 4757357 at *3 (N.D.N.Y. 2008) (a pro se plaintiff cannot "stand idly by after being notified that efforts by the U.S. Marshals Service to serve a particular defendant have been unsuccessful").
The complaint must therefore be dismissed pursuant to Fed. R. Civ. Proc. 4(m) for failure to timely effect service of the complaint on the defendants, as well as pursuant to Fed. R. Civ. Proc. 41(b), for failure to comply with the Court's Order extending the time for service (Dkt. #5). See generally McCracken v. Nine Mile Point Nuclear Station, LLC, et al., 2009 WL 1697174 (N.D.N.Y. 2009) (dismissing action filed by McCracken on the same day as the instant action, sua sponte, on the grounds of failure to effect timely service upon defendants despite an extension of time to do so).
Even if McCracken had effected timely service of the complaint, this action must also be dismissed because the action is frivolous.
In forma pauperis lawsuits, such as the instant one, are governed by 28 U.S.C. §1915 et seq. While providing indigent litigants with an opportunity to press their claims in federal court, the statute also grants the district court the power to dismiss an action, upon motion or sua sponte, that: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can be granted; or (3) ...