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John T. Pickering-George, A/K/A John R. Daley, Jr v. andrew M. Cuomo

December 7, 2010

JOHN T. PICKERING-GEORGE, A/K/A JOHN R. DALEY, JR., PLAINTIFF,
v.
ANDREW M. CUOMO, ATTORNEY GENERAL OF NEW YORK STATE;
ANDREA OSER, DEPUTY SOLICITOR GENERAL OF NEW YORK STATE;
DISTRICT ATTORNIES, A/K/A DISTRICT ATTORNEY OFFICES; AND
PROSECUTING ATTORNIES, DEFENDANTS.



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

DECISION and ORDER

Currently before the Court in this pro se civil rights action, filed by John T. Pickering-George ("Plaintiff"), is Plaintiff's motion to proceed in forma pauperis and motion for various other relief. (Dkt. Nos. 2, 3.) For the reasons discussed below, Plaintiff's motion to proceed in forma pauperis is granted, and his motion for various other relief is denied. In addition, Plaintiff's Complaint is sua sponte dismissed for failure to state a claim upon which relief can be granted and frivolousness, pursuant to 28 U.S.C. §§ 1915(e)(2)(B), unless, within thirty (30) days of the date of this Decision and Order, he files an Amended Complaint that complies with the terms of this Decision and Order.

I. PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS

After carefully reviewing Plaintiff's papers, the Court finds that he qualifies for in forma pauperis status. (Dkt. No. 2.) Plaintiff's motion to proceed in forma pauperis in this action is, therefore, granted. However, the Court reserves the right to conduct an analysis of any "strikes" acquired by Plaintiff, for purposes of 28 U.S.C. § 1915(g), should the Court obtain, at a later time, reason to believe that he had acquired at least three such "strikes" before he filed this action. In addition, Plaintiff should note that, although his motion to proceed in forma pauperis has been granted, he still will be required to pay other fees that he might incur in this action, including copying and/or witness fees.

II. PLAINTIFF'S MOTION FOR VARIOUS OTHER RELIEF

Approximately three months after filing his Complaint in this action, Plaintiff filed an 26-page document described as a "motion." (Dkt. No. 3.) Included within that filing is another motion to proceed in forma pauperis. (Dkt. No. 3, Attach. 1.) Like Plaintiff's original filing, this motion is indecipherable. (Compare Dkt. No. 1 with Dkt. No. 3.) For example, the first page of the document states as follows:

RE: PETITIONER "MOTION" FOR DOCKET NUMBER ALSO STATUS AND MOTION FOR ATTORNEY FEE'S, COSTS FOR FAILURE TO RESPOND IN ACCORDANCE WITH, 5 U.S.C.S. § 552(a)(4)(E) & (F) (FOIA), FREEDOM OF INFORMATION ACT, AND, "ENCLOSED JURISDICTIONS", OF [A], SUBPOENA, CONTEMPT, MANDAMUS, MANDATORY, GENERAL ORDER, MANDATED PROCESS, GENERAL PROVISIONS GOVERNING DUTIES, OBTAINING DOCUMENTS, FORMS, AND APPLICATIONS IMMUNITIES CLAUSE FROM PROSECUTION OR PUNISHMENT, RELEASE-DISMISSAL DOCUMENT FORM, EXEMPT FROM INVESTIGATIONS, INDICTMENT, PROSECUTIONS, PUNISHMENT, PENALTY OR FORFEITURE, SUITS OR OTHER PROCEEDING BEFORE ANY JUDGE OR JUSTICE, COURT OR OTHER TRIBUNAL, CONDUCTING AND INQUIRY FOR LEGAL PROCEEDING RELATING TO THE ACTS OF SAID "AUTHORITIES" WRITTEN ORDER IN THE NAME OF THE CITY, COUNTIES STATE OF NEW YORK. (Dkt. No. 3 at 1.) The second page lists the attorney whom the motion apparently concerns or perhaps to whom it has been sent. (Id. at 2.) For the next 18 pages, Plaintiff lists--as purported relevant authorities--various legal terms and phrases (as well as statutes, rules, and cases). (Id. at 3-21.) On the next page, labeled page "3," Plaintiff begins what appears to be his legal argument in the form of paragraphs, and continues to do so until the end of the document. (Id. at 22-25.) However, the contents of the paragraphs still mostly consist of legal citations, lack any allegations of fact, and simply make no sense.

For all of these reasons, Plaintiff's "motion" is denied based on its non-compliance with the requirements of Fed. R. Civ. P. 7(b)(1)(B),(C) (which requires the movant to "state with particularity the grounds for seeking the order" and "state the relief sought") and Local Rule 7.1(a)(1),(2) of the Local Rules of Practice for this Court (which, depending on the relief sought, requires the movant to accompany the motion with a memorandum of law and affidavit). See Link v. Taylor, 07-CV-338, 2009 WL 127660, at *3 (N.D. Ind. Jan.20, 2009) (denying pro se plaintiff's motion to compel response to a production request where the request was incomprehensible); Wright v. Goord, 04-CV-6003, 2008 WL 2788287, at *3 (W.D.N.Y. July 15, 2008) (denying pro se prisoner's motion to compel based on its incomprehensibility).*fn1

Moreover, to the extent that Plaintiff's motion can somehow be construed as a request for entry of a default judgment with regard to his original filing,*fn2 Plaintiff is advised that Fed. R. Civ. P. 55 provides for entry of default judgment "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend. . . ." Fed. Rule Civ. Proc. 55(a). Here, Plaintiff's motion was served before the Court determined the sufficiency of his Complaint and thus before Defendants were served. As a result, there can be no default in answering or defending. As a result, to the extent that Plaintiff's motion is one for default judgment, it is denied on this alternative ground.

III. SUA SPONTE REVIEW OF PLAINTIFF'S COMPLAINT

Having reviewed Plaintiff's motion to proceed in forma pauperis, the Court must now consider the sufficiency of the allegations set forth in his Complaint in light of 28 U.S.C. § 1915. This is because Section 1915(e)(2)(B) directs that, when a plaintiff seeks to proceed in forma pauperis, "the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).

A. Governing Legal Standards

It has long been understood that a dismissal for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6), may be based on either or both of two grounds: (1) a challenge to the "sufficiency of the pleading" under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the legal cognizability of the claim. Jackson v. Onondaga County, 549 F. Supp.2d 204, 211, nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J. adopting Report-Recommendation on de novo review) [citations omitted].

With regard to the first ground, Fed. R. Civ. P. 8(a)(2) requires that a pleading contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2) [emphasis added]. By requiring this "showing," Fed. R. Civ. P. 8 (a)(2) requires that the pleading contain a short and plain statement that "give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Jackson, 549 F. Supp.2d at 212, n.17 [citations ...


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