UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
January 30, 2012
EDMON GASAWAY, A/K/A EDMOND GASAWAY, PLAINTIFF,
BERNARD WILLIAMS, SPECIAL AGENT FOR TREASURY INSPECTOR GEN. FOR TAX ADMIN.; AND RANDY SILVIS, SPECIAL AGENT FOR TREASURY INSPECTOR GEN. FOR TAX ADMIN., 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 prisoner action filed by Edmon Gasaway ("Plaintiff") against the two above-captioned federal agents pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., are (1) United States Magistrate Judge Randolph F. Treece's Report-Recommendation of September 21, 2011, recommending that Plaintiff's Complaint be sua sponte dismissed for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a),(b) unless Plaintiff files an Amended Complaint that states an actionable claim, and (2) Plaintiff's Amended Complaint of August 15, 2011. (Dkt. Nos. 6, 8.) For the reasons set forth below, Plaintiff's Amended Complaint is accepted for filing, Magistrate Judge Treece's Report-Recommendation is adopted with modification, and Plaintiff's Amended Complaint is sua sponte dismissed with prejudice for failure to state a claim and frivolousness pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a),(b). In addition, Plaintiff is directed to show cause, within thirty (30) days of this Decision and Order, why this Court should not issue an Order barring him from filing any future pro se actions in this Court without first obtaining leave of the Court.
I. RELEVANT BACKGROUND
Because this Decision and Order is intended primarily for the review of the parties, the Court will not recite in detail Plaintiff's claims and factual allegations, or the procedural history of the action, except where necessary below in Part III of this Decision and Order.
II. APPLICABLE LEGAL STANDARDS
A. Standard of Review Governing a Report-Recommendation
When a specific objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to a de novo review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be "specific," the objection must, with particularity, "identify  the portions of the proposed findings, recommendations, or report to which it has an objection and  the basis for the objection." N.D.N.Y. L.R. 72.1(c).*fn1 When performing such a de novo review, "[t]he judge may . . . receive further evidence. . . ." 28 U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider evidentiary material that could have been, but was not, presented to the magistrate judge in the first instance.*fn2
When only a general objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition.*fn3 Similarly, when an objection merely reiterates the same arguments made by the objecting party in its original papers submitted to the magistrate judge, the Court subjects that portion of the report-recommendation challenged by those arguments to only a clear error review.*fn4 Finally, when no objection is made to a portion of a report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a "clear error" review, "the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Id.*fn5
After conducting the appropriate review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).
B. Legal Authority Permitting Court to Sua Sponte Review Plaintiff's Complaint Under the Circumstances
Because Magistrate Judge Treece correctly recited the authorities that confer upon the Court the power, and the duty, to sua sponte review Plaintiffs' Complaint under the circumstances, the Court will not repeat them here. (See Dkt. No. 6, at 1-2.) The Court would add only that it also possesses the inherent power to sua sponte dismiss pro se complaint based on frivolousness. See, e.g., Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (recognizing that district court has power to sua sponte dismiss pro se complaint based on frivolousnessnotwithstanding fact that plaintiff has paid statutory filing fee).
C. Legal Standard Governing Dismissal Based on Failure to State a Claim
It has long been understood that a dismissal for failure to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one 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 Cnty., 549 F. Supp.2d 204, 211, nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de novo review).
Because Plaintiffs' Complaint is dismissed based on the first ground, a few words regarding that ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure 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]. In the Court's view, this tension between permitting a "short and plain statement" and requiring that the statement "show" an entitlement to relief is often at the heart of misunderstandings that occur regarding the pleading standard established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the "short and plain" pleading standard under Fed. R. Civ. P. 8(a)(2) as "simplified" and "liberal." Jackson, 549 F. Supp.2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has held that, by requiring the above-described "showing," the pleading standard under Fed. R. Civ. P. 8(a)(2) requires that the pleading contain a 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 (citing Supreme Court cases) (emphasis added).
The Supreme Court has explained that such fair notice has the important purpose of "enabl[ing] the adverse party to answer and prepare for trial" and "facilitat[ing] a proper decision on the merits" by the court. Jackson, 549 F. Supp.2d at 212, n.18 (citing Supreme Court cases); Rusyniak v. Gensini, 629 F. Supp.2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing Second Circuit cases). For this reason, as one commentator has correctly observed, the "liberal" notice pleading standard "has its limits." 2 Moore's Federal Practice § 12.34[b] at 12-61 (3d ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding that a pleading has failed to meet the "liberal" notice pleading standard. Rusyniak, 629 F. Supp.2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129 S.Ct. 1937');">129 S. Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an appellate decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court "retire[d]" the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Twombly, 127 S. Ct. at 1968-69. Rather than turn on the conceivability of an actionable claim, the Court clarified, the "fair notice" standard turns on the plausibility of an actionable claim. Id. at 1965-74. The Court explained that, while this does not mean that a pleading need "set out in detail the facts upon which [the claim is based]," it does mean that the pleading must contain at least "some factual allegation[s]." Id. at 1965. More specifically, the "[f]actual allegations must be enough to raise a right to relief above the speculative level [to a plausible level]," assuming (of course) that all the allegations in the complaint are true. Id.
As for the nature of what is "plausible," the Supreme Court explained that "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). "[D]etermining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not show[n]--that the pleader is entitled to relief." Iqbal, 129 S.Ct. at 1950 [internal quotation marks and citations omitted]. However, while the plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully," id., it "does not impose a probability requirement." Twombly, 550 U.S. at 556.
Because of this requirement of factual allegations plausibly suggesting an entitlement to relief, "the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by merely conclusory statements, do not suffice." Iqbal, 129 S. Ct. at 1949. Similarly, a pleading that only "tenders naked assertions devoid of further factual enhancement" will not suffice. Iqbal, 129 S.Ct. at 1949 (internal citations and alterations omitted). Rule 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (citations omitted).
This pleading standard applies even to pro se litigants. 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 set forth in Fed. R. Civ. P. 8, 10 and 12.*fn6
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.*fn7 Stated more simply, when a plaintiff is proceeding pro se, "all normal rules of pleading are not absolutely suspended." Jackson, 549 F. Supp.2d at 214, n.28 [citations omitted].*fn8
Finally, a few words are appropriate regarding what documents are considered when a dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c), the following matters outside the four corners of the complaint may be considered without triggering the standard governing a motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer, (2) documents incorporated by reference in the complaint (and provided by the parties), (3) documents that, although not incorporated by reference, are "integral" to the complaint, or (4) any matter of which the court can take judicial notice for the factual background of the case.*fn9
Moreover, in the Second Circuit, a pro se plaintiff's papers in response to a defendant's motion to dismiss for failure to state a claim may be considered as effectively amending the allegations of his complaint--to the extent those papers are consistent with the allegations in the complaint.*fn10
A. Review of Report-Recommendation
In response to Magistrate Judge Treece's Report-Recommendation, Plaintiff did not file an Objection but an Amended Complaint. (Dkt. No. 8.)*fn11 The complete absence of any specific (or even general) challenge to Magistrate Judge Treece's Report-Recommendation is exemplified by the fact that the beginning of the Amended Complaint states that it was being submitted in "compli[ance]" with the Report-Recommendation. (Id. at 1.) As a result, the Report-Recommendation is subject to only clear-error review (pursuant to the legal standard set forth above in Part II.A. of this Decision and Order).
Of course, to the extent that Plaintiff's Amended Complaint corrects the pleading deficiencies identified in the Report-Recommendation, the Report-Recommendation has been rendered moot. However, to the extent that Plaintiff's Amended Complaint does not correct the pleading deficiencies identified in the Report-Recommendation, the Report-Recommendation is still applicable.
The primary pleading deficiency identified in the Report-Recommendation was that, "[a]ssuming the agency identified . . . is the correct agency and is subject to FOIA, then it is the proper Defendant in this action, and not the individually named Defendants." (Dkt. No. 6, at 3.) In response to the Report-Recommendation, Plaintiff merely dropped Benard Williams and Randy Silvis as Defendants and added the "Inspector General for Tax Administration" as the sole Defendant. (Compare Dkt. No. 1 with Dkt. No. 8.) "The Inspector General for Tax Administration" is a person (i.e., J. Russell George), not an agency. As a result, Plaintiff's Amended Complaint does not correct the pleading deficiency identified in the Report-Recommendation, and the Report-Recommendation is still applicable.
After carefully reviewing all of the papers in this action, including the relevant portion of Magistrate Judge Treece's Report-Recommendation, the Court concludes that the relevant portion of the Report-Recommendation is thorough, well-reasoned and correct. Magistrate Judge Treece employed the proper legal standards, accurately recited the facts, and reasonably applied the law to those facts. As a result, the Court adopts the relevant portion of the Report-Recommendation for the reasons stated therein.
With regard to this adoption, the Court would add only two points. First, the relevant portion of Magistrate Judge Treece's Report-Recommendation would survive even a de novo review. Second, the Court finds that it would be inappropriate to permit Plaintiff to file a Third Amended Complaint before dismissal. An opportunity to amend is not required where, as here, the plaintiff has already been afforded the opportunity to amend.*fn12 Furthermore, Plaintiff's failure to correct the defect is inexcusable given that (a) Magistrate Judge Treece specifically advised him of the defect, (b) the Court granted Plaintiff an extension of time to correct the defect, and (c) Plaintiff has extensive experience filing pro se civil pleadings in federal court. (See, infra, Part III.B. of this action.)
In the alternative, the Court dismisses Plaintiff's Amended Complaint for two independent reasons. First, based on Plaintiff's own factual allegations, it is clear that his FOIA request was deficient in the following seven regards: (1) it was not addressed to TIGTA's Disclosure Office;*fn13 (2) it was not clearly marked "Freedom of Information Act Request";*fn14 (3) it did not reasonably describe the records sought by the request;*fn15 (4) it did not state whether the requester wishes to inspect the records or desires to have a copy made and furnished without first inspecting them;*fn16 (5) it did not include his agreement to pay fees for search, duplication, and review, if applicable, or include a request for a fee waiver or reduction of fees, along with a justification for such a request indicating which of the following user category is applicable (i.e., commercial, educational institution, scientific institution, news media, or other);*fn17 (6) it was not clearly signed by the person making the request;*fn18 and (7) it did not set forth the address where Plaintiff wanted to be notified about whether or not the request would be granted.*fn19
These deficiencies are material because, to state the FOIA claim in question, a plaintiff must allege facts plausibly suggesting that "an agency has (1) improperly (2) withheld (3) agency records." United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989). Simply stated, the Court cannot conclude that Plaintiff has alleged facts plausibly suggesting that agency records were withheld improperly when he has alleged facts plausibly suggesting that no proper request was made. See 5 U.S.C. § 552(a)(3)(A) ("[E]ach agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person."); Hull v. I.R.S., U.S. Dep't of Treasury, 656 F.3d 1174, 1193, n.10 (10th Cir. 2011) ("While we agree that generally an agency has a duty to search for records responsive to a FOIA request prior to claiming they are exempt, another general FOIA principle dictates an agency only has a duty to search for responsive records upon receipt of a request that complies with the agency's rules and procedures for such requests. 5 U.S.C. § 552(a)(3)(A).").
Second, even if Plaintiff had alleged facts plausibly suggesting that he had properly made his FOIA request, he has alleged facts plausibly suggesting that much, if not all, of the information he is seeking (if it exists) is exempt from disclosure under FOIA. Among the matters exempted from disclosure under FOIA are "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency . . . ." 5 U.S.C. § 552(b)(5). It is difficult to imagine how Plaintiff could have obtained the internal memoranda in question in an action against TIGTA. For example, if Plaintiff brought an action against the relevant TIGTA agents for failure to do their jobs pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971),*fn20 his claims would presumably be dismissed on the ground that (1) an action pursuant to FOIA is the proper remedy,*fn21 and/or (2) negligence is not actionable under Bivens.*fn22 With regard to this last point, it is important to note the underlying complaint lodged by Plaintiff with TIGTA (regarding which Plaintiff requests information about or on his FOIA request) was patently frivolous, further eviscerating any Bivens claim (and accompanying means of discovery) that Plaintiff might have against TIGTA.*fn23
With regard to this issue of frivolousness, some elaboration is appropriate. From Plaintiff's Amended Complaint, it is clear that his underlying complaint to TIGTA concerned the following events. On March 3, 1997, following a conviction for armed robbery, Plaintiff was sentenced to, inter alia, pay $2,009.18 in restitution to two victims, as well as a special assessment of $250 to the court.*fn24 On June 6, 2008, Plaintiff apparently submitted a purported "Promissory Note" and "Bill of Exchange" to the clerk's office in the amount of two billion dollars ($2,000,000,000), in an attempt to satisfy his sentence.*fn25 (According to Plaintiff, the funds resulted from a debt owed by the United States of America and the State of California to Plaintiff for their unauthorized use of his name, which is a "legal fiction," and which he owns exclusively as a "sovereign.")*fn26 The clerk of the court never responded.*fn27 On August 11, 2008, Plaintiff filed a complaint with TIGTA alleging that the Department of Justice's Criminal Investigation Division had failed to investigate the fact that the Eastern District of Texas' Clerk's Office had negotiated the note but failed to credit his account (and release him from prison). (Dkt. No. 8, at 13-16.) Simply stated, this entire case is an exercise in frivolity and a waste of strained judicial resources.*fn28
B. Appropriateness of Bar Order
A review of Plaintiff's litigation history on Federal Judiciary's Public Access to Court Electronic Records ("PACER") Service reveals that, with increasing frequency over the past 10 years, Plaintiff has filed 17 pro se prisoner civil actions (other than this one) in six different federal district courts.*fn29 Eight of these 17 actions have been dismissed based on pleading deficiencies or failure to comply with court directives.*fn30 In addition, he has filed six appeals in civil actions, also with increasing frequency.*fn31 Five of those appeals have been dismissed based on lack of merit or failure to comply with court directives.*fn32 At the core of most, if not all, of Plaintiff's actions and appeals is his theory that (1) both the United States of America and the State of California have incurred a debt to Plaintiff for their unauthorized use of his name, which is a "legal fiction," and which he owns exclusively as a "sovereign," (2) the documents he prepares memorializing that debt (complete with citations to the Uniform Commercial Code) are valid negotiable financial instruments, and (3) his submission of those instruments to a federal court clerk's office mandates his release from prison.
Based on Plaintiff's litigation history, the Court finds that (1) Plaintiff lacks a good-faith expectation in prevailing in his lawsuits, (2) he has proven himself to be vexatious and indeed incorrigible when proceeding pro se, (3) he has caused needless expense to other parties and placed an unnecessary burden on the Court and its personnel, and (4) he has demonstrated that no lesser sanctions (e.g., such as dismissal or chastisement) would be adequate to protect the Court and other parties.
Under such circumstances, a federal district court may impose reasonable filing restrictions on a pro se litigant in that particular court, pursuant to 28 U.S.C. § 1651(a) and its inherent authority to control and manage its own docket so as to prevent abuse in its proceedings. For example, a federal district court may, after providing an appropriate opportunity to be heard, prohibit a vexatious litigant from filing, in that particular court, any action pro se (that is, without counsel), without prior leave of that court.See Hong Mai Sa v. Doe, 406 F.3d 155, 158 (2d Cir. 2005) ("If a litigant has a history of filing vexatious, harassing or duplicative lawsuits, courts may impose sanctions, including restrictions on future access to the judicial system.") [internal quotations and citations omitted]; In re Sassower, 20 F.3d 42, 44 (2d Cir. 1994) (where a pro se plaintiff has demonstrated a "clear pattern of abusing the litigation process by filing vexatious and frivolous complaints," a "leave to file" requirement may be instituted by the court as an appropriate sanction); Moates v. Barkley, 147 F.3d 207, 208 (2d Cir. 1998) ("[T]he district court may not impose a filing injunction on a litigant sua sponte without providing the litigant with notice and an opportunity to be heard."); Azubuko v. Unknown Boston Police Officers, 08-CV-0330, 2008 WL 1767067, at *1 (N.D.N.Y. Apr. 16, 2008) (McCurn, J.).
Because of his history of filing unmerited and indeed vexatious lawsuits, Plaintiff is hereby warned that the Court will not tolerate the filing of frivolous actions by him in the future. As a result, he is directed to show cause, within thirty (30) days, why this Court should not issue an Order barring him from filing any future pro se actions without first obtaining leave of the Court. In the event that Plaintiff fails to show such cause, he will be prohibited from filing, in this Court, anyaction pro se (that is, without counsel), without prior leave of the Court, pursuant to 28 U.S.C. § 1651(a) and the Court's inherent authority to control and manage its own docket so as to prevent abuse in its proceedings.
ACCORDINGLY, it is
ORDERED that the Clerk of the Court shall amend (1) the description of Dkt. No. 8 to reflect that the document filed is Plaintiff's Amended Complaint, and (2) the caption on the docket to reflect the resulting change in Defendants; and it is further
ORDERED that Magistrate Judge Treece's Report-Recommendation (Dkt. No. 6) is ACCEPTED and ADOPTED as modified by this Decision and Order; and it is further
ORDERED that Plaintiff's Amended Complaint (Dkt. No. 8) is sua sponte DISMISSED in its entirety with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a),(b); and it is further
ORDERED that Plaintiff is hereby directed to show cause, within thirty (30) days of this Decision and Order, why this Court should not issue an Order barring him from filing any future pro se actions in this Court without first obtaining leave of the Court. In the event that Plaintiff fails to show such cause, he will be prohibited from filing, in this Court, anyaction pro se (that is, without counsel) without prior leave of the Court, pursuant to 28 U.S.C. § 1651(a) and the Court's inherent authority to control and manage its own docket so as to prevent abuse in its proceedings.
The Clerk's Office is directed to close this action.
The Court certifies, for purposes of 28 U.S.C. § 1915(a)(3), that any appeal taken from this Decision and Order would not be taken in good faith.