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Dzwonczyk v. Suddaby

April 28, 2010

WLODZIMIERZ J. DZWONCZYK, PLAINTIFF,
v.
GLENN T. SUDDABY; NEAL P. MCCURN; NORMAN A. MORDUE; LAWRENCE K. BAERMAN; JANE& JOHN DOES; AND GORDON DOE, DEFENDANTS.



The opinion of the court was delivered by: David N. Hurd United States District Judge

DECISION and ORDER

Plaintiff, Wlodzimierz J. Dzwonczyk, brings this civil action pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics , 403 U.S. 388 (1971), in addition to various federal statutes. (Compl. ¶ 4) (Dkt. No. 1). Plaintiff has filed a motion to proceed in forma pauperis (IFP). (Dkt. No. 2). On April 1, 2010, plaintiff filed a "motion to stay" in case his action "survives a sua sponte dismissal." (Dkt. No. 3). On April 5, 2010, plaintiff filed a notice consenting to a Magistrate Judge's jurisdiction. (Dkt. No. 4). Finally, on April 7, 2010, plaintiff filed a letter-motion requesting that the judges be dismissed as defendants. (Dkt. No. 5). Plaintiff seeks declaratory, injunctive, and monetary relief. (Compl. ¶¶ 5-6 & p.6).

I. Background

In plaintiff's statement of facts, he recites that he previously filed "two federal Cases" in this district that he withdrew himself, allowing them to be dismissed "with prejudice." (Compl. ¶ 7) (citing 5:07-CV-1239*fn1 (GTS/DEP) and 5:08-CV-557 (NPM/DEP)). On November 13, 2008, Chief Judge Norman A. Mordue issued an order in both of these actions, prohibiting plaintiff from contacting employees of the Clerk's Office for the Northern District of New York or the chambers of any judicial officer in the Northern District by telephone or in person.*fn2 (Dkt. No. 82 in 5:07-CV-1239; Dkt. No. 69 in 5:08-CV-557). Chief Judge Mordue further ordered that any communication with the court by plaintiff be in writing, and plaintiff would not be permitted to enter any buildings "used by" the Court or by the District Court Clerk's Office, without an escort by a Court Security Officer or United States Marshal. Id. at 2.

On March 26, 2009, Magistrate Judge Peebles issued an order in 5:08-CV-557, statistically closing the action because plaintiff's financial and other difficulties were making it impossible for him to communicate with the court or for the court to communicate with him in writing. (Dkt. No. 89). The same order was issued in 5:07-CV-1239. (Dkt. No. 86). Plaintiff subsequently moved to Poland for a brief time. (Dkt. No. 88 in 5:07-CV-1239; Dkt. No. 94 in 5:08-CV-557). On July 31, 2009, Magistrate Judge Peebles issued an order in 5:07-CV-557, based upon a letter he had received from plaintiff dated July 17, 2009 and addressed to Chief Judge Mordue, Magistrate Judge Peebles, and Senior Judge McCurn. Dzwonczyk v. Syr. City Police Dep't , No. 5:08-CV-557. (Dkt. Nos. 98-99 in 5:08-CV-557). Plaintiff's letter was labeled a "complaint," in which he requested inter alia , that "the court" rescind Judge Mordue's order, and that the case be transferred to Binghamton.*fn3 (Dkt. No. 99). Plaintiff also made a number of "complaints" about the Clerk of the Court and his employees in the Clerk's Office in Syracuse as well as members of the United States Marshal's Service. The letter specifically stated that plaintiff was not complaining about the judges, only the Clerk's Office and Marshal's Service employees. Id.

In his July 31, 2009 order, Judge Peebles reminded plaintiff that his case was "closed" until plaintiff requested that it be reopened, and he certified to the court that he was able to fully participate in the proceedings.*fn4 (Dkt. No. 98). Judge Peebles stated that no action would be taken by the court relative to plaintiff's letter until the case was reopened. Id . Judge Peebles further advised plaintiff that if it was his intention to commence a separate suit asserting legal claims against Clerk [sic] Court Lawrence Baerman and/or other members of his staff, then in that event he must submit a formal written complaint in compliance with the requirements of Rules 8 and 10 of the Federal Rules of Civil Procedure, accompanied by either the statutory filing fee . . . or an application to proceed in forma pauperis , naming the individual staff members against whom his complaint is made and setting forth the legal basis upon which his claims are asserted.

Id. at 3.

On September 10, 2009, plaintiff sent a letter to Magistrate Judge Peebles in 5:07-CV-1239 as well as in 5:08-CV-557, requesting various forms of relief, including dismissal of the two actions "with prejudice," requesting dismissal of various Syracuse City Court prosecutions of plaintiff, and requesting that based on his agreement to dismiss the two federal actions, plaintiff be again allowed "free access to all the offices of the US Federal Courthouse . . . ." (Dkt. No. 102 in 5:07-CV-1239; Dkt. No. 107 in 5:08-CV-557).*fn5

On September 23, 2009, plaintiff's September 10, 2009, letter to Magistrate Judge Peebles was addressed by Senior Judge Neal P. McCurn in 5:08-CV-557. (Dkt. No. 109). On September 28, 2009, plaintiff's September 10, letter to Magistrate Judge Peebles was addressed by District Judge Glenn T. Suddaby in 5:07-CV-1239. (Dkt. No. 104).

Both Judges Suddaby and McCurn granted plaintiff's motion to dismiss his cases with prejudice, but declined to vacate or alter Chief Judge Mordue's order prohibiting plaintiff from entering the Courthouse without an escort or from personally contacting Court employees. Id. Plaintiff originally filed this action against Chief Judge Mordue; Judges Suddaby and McCurn; Clerk of the Court, Lawrence Baerman; and John and Jane Doe Court employees, and a "Gordon Doe," who "has a place of business at [sic] United States Marshal [sic] Service." (Compl. at 1) (Dkt. No. 1 in 5:10-CV-300).

II. Facts

The current complaint basically takes the facts that plaintiff stated in his July 17, 2009, letter to Judges Mordue, Peebles, and McCurn and puts them into a "Verified Complaint" form. (Dkt. No. 1). Plaintiff states a variety of bases for this court's jurisdiction.

(Dkt. No. 1 at 2). He states that he is bringing this action under the United States Constitution, Bivens , 28 U.S.C. §§ 1331, 1343, 2201, and 42 U.S.C. § 1983 and 1985. In his statement of facts, plaintiff discusses Judge Mordue's order, and states that Judge Mordue based his order upon "reports from clerk's office employees," sued as "JOHN/JANE DOES," who allegedly told Judge Mordue that plaintiff was calling them using profanity and threats of injury. (Dkt. No. 1 at 2-3, ¶ 8). Plaintiff claims that these reports were completely false and made in order to defame plaintiff, injuring his "integrity, high morals, [and] virtue." Id. ¶¶ 9-10. Plaintiff claims that these defendants were trying to portray him to Judge Mordue as a "crazy person." Id. ¶ 10.

Plaintiff alleges that these defendants conspired to defame plaintiff, in order to unlawfully restrict his "access to the justice system," and to deny him his rights under the First Amendment of the United States Constitution. Id. ΒΆ 11. Plaintiff states that the order restricting him from entering the Courthouse without an escort and other restrictions imposed by Judge Mordue's order caused plaintiff "severe emotional distress." Id. Plaintiff also alleges that the John and Jane Doe Clerk's Office employees failed to send plaintiff Judge Peebles' July 31, 2009, order which, according to plaintiff, was issued to inform plaintiff that instead of filing a letter complaining about the conduct of the Clerks, he could file a separate lawsuit ...


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