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John T. Pickering-George v. andrew M. Cuomo


May 12, 2011


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


Currently before the Court in this pro se civil rights action, filed by John T. Pickering-George ("Plaintiff"), is Plaintiff's Amended Complaint and motions for various relief. (Dkt. Nos. 7, 8 and 9.) For the reasons discussed below, the Amended Complaint is sua sponte dismissed with prejudice for failure to state a claim upon which relief can be granted, and frivolousness, pursuant to 28 U.S.C. § 1915(e)(2)(B), and his motions are denied.


A. Procedural History

Plaintiff filed his original Complaint in this action on July 8, 2010, along with an application to proceed in forma pauperis. (Dkt. Nos. 1, 2.) He subsequently filed a motion requesting various forms of relief. (Dkt. No. 3.) After review of those submissions, by Decision and Order of December 8, 2010, the Court granted Plaintiff leave to proceed in forma pauperis, denied Plaintiff's other motions, and, pursuant to 28 U.S.C. §§ 1915(3)(2)(B) and 1915A(b), conditionally dismissed Plaintiff's Complaint sua sponte for failure to state a claim and frivolousness.*fn1 (Dkt. No. 4.) In its decision, the Court noted Plaintiff's extensive litigation history and familiarity with the pleading requirements under the Fed. R. Civ. P. 8, 10, and 12, and reminded him of these requirements as well as of the consequences of filing frivolous lawsuits. (Id.) Though skeptical of Plaintiff's ability to state a cognizable claim, in deference to him as a pro se civil rights litigant, the Court allowed him to file an Amended Complaint within thirty days to avoid dismissal of the action. (Id.) Plaintiff timely filed an Amended Complaint along with two separate motions, which are all now before the Court.

B. Summary of Plaintiff's Amended Complaint

Though pared down from twenty-eight pages to eleven, and containing separate and consecutively numbered paragraphs, Plaintiff's Amended Complaint suffers from many of the same infirmities as the original. (Compare Dkt. No. 1 [Plf.'s Compl.] with Dkt. No. 6 [Plf.'s Am. Compl.].) For example, on the first page of his Amended Complaint (and throughout that pleading), Plaintiff refers to his previously filed twenty-four civil actions against various government officials. (See generally Dkt. No. 6.)*fn2 In a single sentence on the first page, Plaintiff then cryptically refers to a "cause of action for internet defamation ("PACER"), federal judiciary's public access to court electronic records, civil conspiracy." (Id. at ¶ 1.) Plaintiff then states that he "seeks the issuance of [a] permanant [sic], mandatory, prospective injunctive relief of 'all' government authority, authorities in lien and infringement associated concepts." (Id. at ¶ 2.) In the section entitled "factual allegations," which is difficult to decipher, Plaintiff makes reference to his release from jail in 2006, (id. at ¶ 2), "many prison violations of [his] constitutional rights," (id.), his filing of numerous lawsuits relating to the past prison setting, (id. at ¶ 8), being falsely accused of criminal conduct, (id. at ¶ 9), and being deprived of "fair judicial proceedings, fair trial, civil-criminal plaintiff's other civil docket cases could not be said to be proven in matters of judgment (formal court decree) 'noun' or award identified as [a] 'noun, verb' with associated concepts. . . ." (Id. at ¶ 11.) The remainder of the fact section of the Amended Complaint identifies his prior lawsuits. (Id. at ¶¶ 10-12.)

Beneath the facts section is a section labeled "cause of action for internet defamation," which consists only of a list of legal terms and phrases unconnected to any facts and stating no identifiable claim for relief. (Id. at ¶¶ 13-19.) Beneath that section, the Complaint purports to set forth, over four and a half pages, two separate "counts," of which the Court is unable to make any sense, save for yet another reference to "damages arising from defendant's wrongful, overt conduct, failure to respond (FOIA) Freedom of Information Act, together with costs, and such other and further claim of relief as is just . . . ." (Id. at ¶¶ 19[d], 22.)


A. Governing Law

The legal principles relevant to the Court's review of Plaintiff's Amended Complaint were fully set forth in the Court's previous Decision and Order. (Dkt. No. 4.) As a result, the Court assumes familiarity with these legal principles, and will therefore not restate them in full this Decision and Order. Rather, the Court will only note briefly that, because Plaintiff has been given permission to proceed in forma pauperis,the Court has a responsibility to determine whether the action may properly be maintained. 28 U.S.C. § 1915(e)(2)(B). More specifically, dismissal is required when the Court finds, "(B) 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." Id. In deciding whether a complaint states a colorable claim, a court must extend special solicitude toward pro se litigants;*fn3 and extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to respond. Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983). There is, nonetheless, an obligation on the part of the district court to determine that a claim is not frivolous before permitting a plaintiff to proceed. See Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (noting that district court may dismiss frivolous complaint sua sponte notwithstanding fact the plaintiff has paid statutory filing fee); Wachtler v. Cnty. of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994) (noting that district court has power to dismiss case sua sponte for failure to state a claim).

When reviewing a complaint under 28 U.S.C. § 1915(e), a court may also look to the Federal Rules of Civil Procedure. Rule 8 of the Federal Rules of Civil Procedure provides that a pleading that sets forth a claim for relief shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief [.]" Fed. R. Civ. P. 8(a)(2). The purpose of Fed. R. Civ. P. 8 "'is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer [and] prepare an adequate defense.'" Hudson v. Artuz, 95-CV-4768, 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998) (quoting Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 [N.D.N.Y. 1995]). Although courts are bound to construe the allegations of a pro se complaint with special leniency, they must do so within the confines of the requirements of Fed. R. Civ. P. 8; "some set of facts must be included in the complaint that would support the court's exercise of subject matter jurisdiction and a complaint that falls too far short of this requirement may properly be dismissed." Rahl v. New York Tel. Co., 09-CV-0165, 2010 WL 3338832, at *2 (N.D.N.Y. Aug. 24, 2010) (Sharpe, J.) (dismissing pro se complaint for failure to plead facts sufficient to survive a Fed. R. Civ. P. 12[b][6] motion). As the Court explained in its Decision and Order of December 7, 2010, while the special leniency afforded to pro se civil rights litigants somewhat loosens the procedural rules governing the form of pleadings (as the Second Circuit has observed), it does not completely relieve a pro se plaintiff of the duty to satisfy the pleading standards in Fed. R. Civ. P. 8, 10 and 12. Rather, as both the Supreme Court and Second Circuit have repeatedly recognized, the requirements set forth in Fed. R. Civ. P. 8, 10, and 12 are procedural rules that even pro se civil rights plaintiffs must follow. Stated more plainly, when a plaintiff is proceeding pro se, all normal rules of pleading are not absolutely suspended. (Dkt. No. 4, at 8 [internal quotation marks, footnotes and citations omitted].)

Granted, "[d]ismissal . . . is 'usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.'" Hudson, 1998 WL 832708, at *2 (quotation omitted). Nonetheless, "'where leave to amend has previously been given and the successive pleadings remain prolix and unintelligible . . . or where the substance of the claim pleaded is frivolous on its face,' . . . § 1915(e) permits a district court to dismiss the complaint sua sponte." O'Neil v. Ponzi, 394 F. App'x795,796 (2d Cir. Oct. 1, 2010) (affirming district court's sua sponte dismissal with prejudice of pro se plaintiff's amended complaint ) (quoting Salahuddin v. Cuomo, 861 F.2d 40, 43 [2d Cir. 1988]) [cited in accordance with Fed. R. App. P. 32.1].

B. Application of Governing Law

After carefully reviewing Plaintiff's Amended Complaint, the Court finds itself, once again, completely unable to discern the bases of Plaintiff's claims, or the precise remedy Plaintiff is seeking, even when it construes that Amended Complaint with the utmost of special solicitude. (See generally Dkt. No. 6.) Simply stated, Plaintiff's Amended Complaint is equally as rambling, baffling, and lacking in factual support as the original pleading. (Compare Dkt. No. 6 with Dkt. No. 1.) For these reasons, as well as those set forth in the Court's Decision and Order of December 7, 2010 (Dkt. No. 4, at 11-12), Plaintiff's Amended Complaint is dismissed.

C. Nature of Dismissal

As the Court explained in its Decision and Order of December 7, 2010 (Dkt. No. 4, at 13-14), as the Second Circuit has explained, "[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend." Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) [citations omitted]; accord Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) ("[T]he court need not grant leave to amend where it appears that amendment would prove to be unproductive or futile."); see also Foman v. Davis, 371 U.S. 178, 182 (1962) (finding denial not abuse of discretion where amendment would be futile); Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) ("The problem with Cuoco's causes of action is substantive; better pleading will not cure it. Repleading would thus be futile. Such a futile request to replead should be denied."); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 28 (2d Cir. 1991) ("Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice."); Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990) ("[W]here . . . there is no merit in the proposed amendments, leave to amend should be denied.").*fn4 This rule applies even to pro se plaintiffs. See, e.g., Cuoco, 222 F.3d at 103; Brown, 1997 WL 599355, at *1.

Plaintiff was already afforded the opportunity to cure his defective claims. (Dkt. No. 4.) As a result, and because the Amended Complaint remains prolix and unintelligible, it (and this entire action) is dismissed with prejudice.


Along with the Amended Complaint, Plaintiff filed two separate documents that he has identified as "motions." (Dkt. Nos. 7, 8.) Plaintiff labels the first motion as "motion to vacate decision and order, FRCP. Rule 7(b), and motion to reconsider, 'amend' [a] judicial decision, order: 1:10-CV-077 (GTS/DEP)." (Dkt. No. 7.) On the first page of that motion, Plaintiff requests that the Court vacate its Decision and Order of December 7, 2010, which denied Plaintiff's motions filed on October 22, 2010. (Id.) As the basis for that motion, Plaintiff states as follows: "(1) in adequet [sic] public law libraries--generally, inproper [sic] drafts of pleadings, complaint; (2) thee, amended complaint of plaintiff enclosed and claims and claims of relief, FRCP. Rules 8(a)." (Id.) The remaining three pages of this four-page motion consist of lists of "claims" that, even when construed with the utmost of special leniency, are nonsensical in nature. (Id.)

Although Plaintiff's motion does not expressly base his "request for . . . reconsider[ation]" on any provision of the Federal Rules of Civil Procedure or the Local Rules of Practice of this Court, the motion (when construed with the utmost of special leniency) is based on Fed. R. Civ. P. 60(b) and/or N.D.N.Y. L.R. 7.1(g).*fn5 Local Rule 7.1(g) provides that "[m]otions for reconsideration or reargument, unless Fed. R. Civ. P. 60 otherwise governs, may be filed and served no later than FOURTEEN CALENDAR DAYS after the entry of the challenged judgment, order, or decree." N.D.N.Y. R. 7.1(g). Under the circumstances, Rule 60 does not "otherwise govern[]," because the Order of which Plaintiff seeks reconsideration is not a final one but an interlocutory one. See Melendez v. Wilson, 04-CV-0073, 2006 WL 2621083, at *1-2 (S.D.N.Y. Sept. 12, 2006) (characterizing appeal from initial order requiring pro se prisoner to file amended complaint as "interlocutory" in nature).*fn6 (Indeed, the Order of which Plaintiff seeks reconsideration conditioned dismissal on Plaintiff's failure to file an Amended Complaint, and he filed that Amended Complaint on the same date on which he filed his motion for reconsideration.) As a result, Local Rule 7.1(g)'s fourteen-calendar-day deadline applies. Here, the Clerk entered the Order to which Plaintiff objects on December 8, 2010; and his motion was filed on December 30, 2010, more than fourteen calendar days later.*fn7 As a result, Plaintiff's motion is time barred. See, e.g., Jackson v. Provost, 09-CV-1864, 2008 WL 4935008, at *1 (N.D.N.Y. Nov. 14, 2008) (Sharpe, J.) (addressing motion for reconsideration of order denying motion for appointment of counsel).

In addition, even assuming that the motion were timely, it would still fail. In this District, reconsideration of an order entered by the court is appropriate only upon a showing of "(1) an intervening change in controlling law, (2) the availability of new evidence not previously available, or (3) the need to correct a clear error of law or prevent manifest injustice." In re C-TC 9th Ave. P'ship, 182 B.R.1, 3 (N.D.N.Y. 1995) (McAvoy, C.J.); see also Cayuga Indian Nation of New York v. Pataki, 188 F. Supp.2d 223, 244 (N.D.N.Y. 2002) (McCurn, S.J.) (citing Sumner v. McCall, 103 F. Supp.2d 555, 558 [N.D.N.Y. 2000] [Kahn, J.]). Applications for reconsideration are also subject to an overarching "clearly erroneous" gauge. Sumner, 103 F. Supp. 2d at 558.

The benchmark for seeking reconsideration of a court's order has been described as "demanding[.]" Id. A motion for reconsideration is not a vehicle through which a losing party may raise arguments that could have been presented earlier but for neglect, nor is it a device "'intended to give an unhappy litigant one additional chance to sway the judge.'" Brown v. City of Oneonta, New York, 858 F. Supp. 340, 342 (N.D.N.Y. 1994) (McAvoy, C.J.) (quoting Durkin v. Taylor, 444 F. Supp. 879, 889 [E.D. Va. 1977]). To qualify for reconsideration, "[t]he moving party [must] point to controlling decisions or data that the court overlooked--matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F. 3d 255, 257 (2d Cir. 1995) (citations omitted). Like the Amended Complaint, Plaintiff's motion is incomprehensible and devoid of any law or facts that might support reconsideration.

For each of these two alternative reasons, Plaintiff's first motion is denied.

Turning to Plaintiff's second motion, that motion is a three-page document filed on December 31, 2010, entitled "motion to reinstate claim, 'amend' FRCP. Rule 55(a) to jurisdiction authority, 28 U.S.C. § 1874 'default' decision and order in accord with FRCP Rule 7 (b)." (Dkt. No. 8.)*fn8 The Court begins by noting that the second page seems to suggest that Plaintiff seeks entry of default judgment against Defendants for failure to answer the Complaint. (Id. at 2.) Plaintiff previously sought a default judgment in this action. (Dkt. No. 3.) That request was denied as premature because 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. R. Civ. P. 55(a). (Dkt. No. 4 at 3-4 [Decision and Order].) As a result, to the extent that his second motion seeks entry of default judgment against Defendants, that motion is denied on the same ground, or, in the alternative, because he has failed to set forth any justification for reconsideration of the Court's prior Order. Finally, to the extent that his second motion seeks any other form of relief, that motion is denied as moot, in light of the Court's dismissal of the action.

ACCORDINGLY, it is ORDERED that Plaintiff's Amended Complaint is sua sponte DISMISSED with prejudice, pursuant to 28 U.S.C. §§1915(e)(2)(B) and 1915A(b); and it is further

ORDERED that Plaintiff's two motions, filed on December 30, 2010 (Dkt. Nos. 7 and 8), are DENIED.

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