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Arthur Mercer v. andrew Cuomo

August 30, 2011

ARTHUR MERCER, PLAINTIFF,
v.
ANDREW CUOMO, GOVERNOR OF NEW YORK STATE; THOMAS A. KLONICK, JUDICIAL CONDUCT MEMBER; AND ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL FOR THE STATE OF NEW YORK, DEFENDANTS.



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

MEMORANDUM-DECISION and ORDER

Currently before the Court in this pro se civil rights action, filed by Arthur Mercer ("Plaintiff") against the three above-captioned individuals ("Defendants"), are the following: (1) United States Magistrate Judge David R. Homer's Report-Recommendation recommending that Plaintiff's Second Amended Complaint be sua sponte dismissed in its entirety without prejudice pursuant to Fed. R. Civ. P. 16(f)(1)(C) and 37(b)(2)(A)(v) for failure to comply with the Court's Order of March 9, 2011 ("March Order") requiring Plaintiff to file an amended pleading that states a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. No. 9); (2) Plaintiff's Objection to the Report-Recommendation (Dkt. No. 12); (3) Plaintiff's Third Amended Complaint (Dkt. No. 13); and (4) Plaintiff's motion for appointment of counsel (Dkt. No. 13). After carefully considering the matter, the Report-Recommendation is accepted and adopted as modified below; Plaintiff's Second Amended Complaint is sua sponte dismissed in its entirety with prejudice for (1) failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e) and 1915A and Fed. R. Civ. P. 12(b)(6) and, in the alternative, (2) failure to comply with a Court Order pursuant to Fed. R. Civ. P. 16(f)(1)(C) and 41(b); Plaintiff's Third Amended Complaint is struck from the docket as violative of Fed. R. Civ. P. 15(a)(2) and, in the alternative, as futile; and Plaintiff's motion for appointment of counsel is denied as moot and, in the alternative, as without cause.

I. RELEVANT BACKGROUND

A. Procedural History Leading to Plaintiff's Second Amended Complaint

On February 24, 2011, Plaintiff filed his Complaint in this action. (Dkt. No. 1.)*fn1 On that same day, Plaintiff filed a motion to proceed in forma pauperis. (Dkt. No. 2.) On March 9, 2011, Magistrate Judge Homer granted Plaintiff's motion to proceed in forma pauperis, and ordered Plaintiff to file an Amended Complaint that states a claim upon which relief can be granted. (Dkt. No. 4.) In his Order, Judge Homer warned Plaintiff that his "failure to file an amended complaint may result in dismissal of this action." (Id.)

On April 5, 2011, Plaintiff filed an Amended Complaint. (Dkt. No. 7.)

On April 9, 2011, without having obtained prior leave to do so as required by Fed. R. Civ. P. 15(a)(2),*fn2 Plaintiff filed a Second Amended Complaint. (Dkt. No. 8.) In doing so, Plaintiff asserted that his Second Amended Complaint is a "cop[y]" of his Amended Complaint. (Dkt. No. 8 ["Because of the delay in receiving the law library and the typewriter you will receive to [sic] copies of this Amended [C]omplaint[.] [P]lease accept this one and return the other one[.]") However, a comparison of Plaintiff's Amended Complaint (Dkt. No. 7) and his Second Amended Complaint (Dkt. No. 8) reveals that they are in fact different, not only with regard to the wording of Plaintiff's claims against Defendants Cuomo and Schneiderman, but with regard to the substance of his claims against Defendant Klonick. (Compare Dkt. No. 7 [not asserting a Sixth Amendment claim against Defendant Klonick, but requesting the "removal of this judge" as partial relief] with Dkt. No. 8 [asserting a Sixth Amendment claim against Defendant Klonick, but not requesting the "removal of this judge" as partial relief].)

B. Plaintiff's Second Amended Complaint

Out of special solicitude to Plaintiff as a pro se civil rights litigant, the Court has construed with the utmost of special liberality his Second Amended Complaint. Generally, in his Second Amended Complaint, Plaintiff alleges that the three above-captioned Defendants violated his constitutional rights in the following respects: (1) Defendant Cuomo violated his Fourteenth Amendment right to equal protection by "fail[ing] to supervise his subordinates and [acting with] gross negligence in the performance of his duties[,]" which includes his "responsibi[lity] for the conduct of the commission on judicial conduct" and obligation to appoint new members to this commission; (2) Defendant Schneiderman violated his Fourteenth Amendment right to equal protection by "failing to act in accordance with the law" and acting with "gross negligence in the performance of his duties[,]" which include his "responsibility to investigate corruption"; and (3) Defendant Klonick, a member of the New York State Commission on Judicial Conduct, deprived Plaintiff of his Fourteenth Amendment right to due process and his Sixth Amendment right to counsel by failing to remove from the bench, based on his "misconduct," the judge who presided over Plaintiff's criminal action in Ulster County Court. (Dkt. No. 8.)

For a more detailed recitation of the allegations of Plaintiff's Second Amended Complaint, the Court refers the reader to that pleading in its entirety, as well as Magistrate Judge Homer's Report-Recommendation, which accurately describes the allegations of that pleading. (Dkt. Nos. 8, 9.)

C. Magistrate Judge Homer's Report-Recommendation

On April 18, 2011, Magistrate Judge Homer issued a Report-Recommendation recommending that Plaintiff's Second Amended Complaint be dismissed, pursuant to Fed. R Civ. P. 16(f)(1)(C) and 37(b)(a)(A)(v), for failure to comply with the March Order, which required Plaintiff to file an Amended Complaint that states a claim upon which relief can be granted. (Dkt. No. 9.)

D. Plaintiff's Objections to the Report-Recommendation

On June 20, 2011, after an extension of time was granted by the Court, Plaintiff filed his Objections to the Report-Recommendation. (Dkt. No. 12.) In his Objections, Plaintiff restates his claim that the New York State Commission on Judicial Conduct failed to investigate Plaintiff's complaints regarding the Ulster County Court Judge who presided over his criminal trial, thereby allowing this Judge to accept two illegal indictments against Plaintiff, and prosecute Plaintiff "from the bench." (Dkt. No. 12.)

E. Plaintiff's Third Amended Complaint

On June 20, 2011, again without having obtained prior leave to do so as required by Fed. R. Civ. P. 15(a)(2),*fn3 Plaintiff filed a Third Amended Complaint. (Dkt. No. 13.) Generally, Plaintiff's Third Amended Complaint alleges that the New York State Commission on Judicial Conduct violated his Fourteenth Amendment right to equal protection by failing to investigate the conduct of the judge who presided over Plaintiff's criminal action in Ulster County Court, despite Plaintiff's having filed, with that Commission on or about April 4, 2011, a third complaint regarding that judge. (Id.) The Court notes that Plaintiff's Third Amended Complaint differs from his Second Amended Complaint in two ways: (1) his Third Amended Complaint omits any claims against Defendants Cuomo and Schneiderman; and (2) the Third Amended Complaint asserts, for the first time, claims against the other nine members of the New York State Commission on Judicial Conduct. (Compare Dkt. No. 8 with Dkt. No. 13.) The Court notes also that, while Plaintiff's Third Amended Complaint identifies by name the judge who presided over Plaintiff's criminal action in Ulster County Court,*fn4 it does not, even when construed with the utmost of special liberality, attempt to assert a claim against him.*fn5

F. Plaintiff's Motion for Appointment of Counsel

In his Third Amended Complaint, Plaintiff also "request[s] that he be assigned counsel to assist him in the handling of this complaint and the other complaints that [P]laintiff has filed with this Court . . . ." (Id.) Plaintiff's request for counsel is not accompanied by documentation that substantiates his efforts to obtain counsel from the public and private sector. (Id.)

II. STANDARD OF REVIEW

A. Standard of Review Governing a ...


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