UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
January 30, 2012
JOHN JAY HUMPHREY, PLAINTIFF,
COURT CLERK FOR THE U.S. SUPREME COURT, DEFENDANT.
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 Jay Humphrey ("Plaintiff") against the Clerk of the United States Supreme Court ("Defendant"), is United States Magistrate Judge Andrew T. Baxter's Order and Report-Recommendation recommending that Plaintiff's Complaint be sua sponte dismissed in its entirety with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). (Dkt. No. 4.) For the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety; Plaintiff's Complaint is sua sponte dismissed in its entirety with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); and 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
A. Plaintiff's Complaint
On August 9, 2011, Plaintiff filed his Complaint in this action. (Dkt. No. 1.) Generally, construed with the utmost of liberality, Plaintiff's Complaint claims that Defendant violated his right to access the courts and/or due process of law under the First and/or Fourteenth Amendments when, acting outside of his official capacity on or about May 18, 2011, he usurped the Supreme Court Justices' exclusive authority by impermissibly denying Plaintiff's motion "to have the court accept [Plaintiff's] writ [of appeal from the Second Circuit's dismissal of his appeal] the way it was," and returning the motion and writ to Plaintiff. (Id. at ¶ 7, 8.) For a more detailed recitation of Plaintiff's claims and supporting factual allegations, the Court refers the reader to the Complaint in its entirety and to Magistrate Judge Baxter's Report-Recommendation. (Dkt. Nos. 1, 4.)
B. Magistrate Judge Baxter's Report-Recommendation
On August 12, 2011, Magistrate Judge Baxter issued an Order and Report-Recommendation granting Plaintiff's motion to proceed in forma pauperis and recommending that Plaintiff's Complaint be sua sponte dismissedin its entirety with prejudice, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(iii), for the following three reasons: (1) frivolousness or maliciousness, (2) failure to state a claim upon which relief can be granted; and (3) seeking monetary relief against a defendant who is immune from such relief. (Dkt. No. 4.) More specifically, Magistrate Judge Baxter found that, according to Plaintiff's own factual allegations, Defendant is entitled to absolute immunity as a matter of law. (Id.)
C. Plaintiff's Failure to File an Objection
The last two pages of Magistrate Judge Baxter's Report-Recommendation specifically advised Plaintiff of the deadline for filing written objections to the Report-Recommendation, and the consequences of failing to do so. (Dkt. No. 4.) Moreover, by the time the Report-Recommendation was issued (on August 11, 2011), Plaintiff had been sent copies of, inter alia, Local Rule of Practice 72.1(c) (which sets forth the procedure and deadline for filing Objections, and the consequences of failing to do so), and page 31 of the District's Pro Se Handbook (which contains similar information). (Dkt. No. 3, at 2.) In addition, at that time, Plaintiff had acquired considerable litigation experience objecting to report-recommendations in pro se civil rights action in federal courts. See, infra, Part III.B. of this Decision and Order.
Nonetheless, Plaintiff elected not to file an Objection to the Report-Recommendation. Instead, on September 2, 2011, Plaintiff filed a documented addressed to the Second Circuit and entitled "Notice of Appeal." (Dkt. No. 5.) Rather than describing the flaws that Plaintiff perceives in the Report-Recommendation, the document merely attaches a copy of the Report-Recommendation. (Dkt. No. 5, Attach. 2.) Because the document contains no specific criticism of Magistrate Judge Baxter's Report-Recommendation, the Court cannot, and does not, even liberally construe it as effectively constituting an Objection to that Report-Recommendation.
The Court notes that Plaintiff's appeal does not deprive the Court of jurisdiction, under the circumstances, given that it is untimely and manifestly defective appeal from a non-appealable order. Nat'l Council of La Raza v. Dep't of Justice, 345 F. Supp.2d 412, 413 (S.D.N.Y.2004), aff'd, 411 F.3d 350 (2d Cir. 2005); cf. Doggett v. Douglas, 95-CV-0013, 1997 WL 642431, at *5 (N.D.N.Y. Oct. 14, 1997) (Pooler, J.) ("The plaintiff improperly attempted to appeal the Order and Report-Recommendation to the Second Circuit Court of Appeals. . . . The appeal was dismissed . . . because there was no final order from which to appeal. ").
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
Under the circumstances, the Court's authority to sua sponte review Plaintiffs' Complaint stems from three separate sources. (1) Fed. R. Civ. P. 12(h)(3), which provides that "[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss that action";*fn6 (2) 28 U.S.C. § 1915(e)(2)(B), which provides 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"; and (3) the Court's inherent power to manage its docket.
With regard to the second of the three above-described authorities, the Court notes that the dismissal of an action as duplicative has been found to fall within the ambit of the Court's power to dismiss a complaint which is frivolous or malicious pursuant to 28 U.S.C. § 1915(e).*fn7
With regard to the third of the three above-described authorities, it is well settled that a district court has the 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). It is also is well settled that "[a]s part of its general power to administer its docket, a district court may stay or dismiss a suit that is duplicative of another federal court suit." Curtis v. Citibank, N.A., 226 F.3d 133, 138 (2d Cir. 2000); see also Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976) ("As between federal district courts, . . . though no precise rule has evolved, the general principle is to avoid duplicative litigation."). The power to dismiss a duplicative lawsuit is meant to foster judicial economy and the "comprehensive disposition of litigation." Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 183 (1952).*fn8 The doctrine is also meant to protect parties from "the vexation of concurrent litigation over the same subject matter." Adam v. Jacob, 950 F.2d 89, 93 (2d Cir. 1991).*fn9
A. Review of Report-Recommendation
Because Plaintiff failed to file an Objection to Magistrate Judge Baxter's Report-Recommendation, the Court need review Magistrate Judge Baxter's Report-Recommendation only for clear error. After carefully reviewing all of the papers in this action, including Magistrate Judge Baxter's Report-Recommendation, the Court concludes that the Report-Recommendation is thorough, well-reasoned and correct. Magistrate Judge Baxter employed the proper legal standards, accurately recited the facts, and reasonably applied the law to those facts. As a result, the Court adopts the Report-Recommendation for the reasons stated therein.
The Court would add only the following four points. First, the
Report-Recommendation would survive even a de novo review. Second,
this action is dismissed on the alternative ground that it is
duplicative of another action filed by Plaintiff, causing a waste of
judicial resources, and an abuse of the judicial system.*fn10
Third, and finally the Court finds it inappropriate to either
sua sponte grant Plaintiffs leave to amend his Complaint before
dismissing it or dismiss his Complaint only without prejudice, because
the pleading defects in Plaintiff's Complaint are
substantive rather than formal,*fn11 and Plaintiff has
engaged in vexatious litigation practices by filing duplicative
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, before filing the current action on August 9, 2011, he filed 19
pro se civil rights actions in this District alone.*fn12
Seventeen of those 19 actions
have resulted in a dismissal for failure to state a claim or
frivolousness.*fn13 For example, three of the 17 cases
were against the state or federal government or one of their
agencies.*fn14 Four were
against judges or court employees.*fn15 Six were
duplicative in nature (asserting claims arising from similar factual
allegations against the same two defendants).*fn16
Although the Court's decision clearly explained the errors in
Plaintiff's claims, he often repeated those errors (e.g., asserting 42
U.S.C. § 1983 claims against individuals with no plausible connection
to the state). Moreover, although several of the Court's decisions
advised Plaintiff that "an appeal of the matter would not be taken in
good faith," Plaintiff nonetheless filed an appeal from each of those
decisions. Not surprisingly, in all 16 of the actions in which
Plaintiff appealed this Court's decisions to the Second Circuit, the
Second Circuit dismissed Plaintiff's appeals (nine times on the
grounds of frivolousness).*fn17 Partially because of
that fact, the Second Circuit issued a
Mandate on April 25, 2011, barring Plaintiff from bringing further
actions against "Defendants Onondaga County Sheriff's Department,
Kimbrook Manor, or the 2002 events giving rise to Appellant's claims"
unless first obtaining leave of the Court.*fn18
Based on this litigation history (and the fact that Plaintiff recently filed a complaint in the Eastern District of Virginia that was virtually identical to the Complaint he filed in this action),*fn19 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 vexatious, harassing or duplicative 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 Magistrate Judge Baxter's Report-Recommendation (Dkt. No. 4) is ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Plaintiff's Complaint (Dkt. No. 2) is sua sponte DISMISSED in its entirety with prejudice; 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 of the Court is directed to enter judgment in favor of Defendant and close this case.
The Court hereby 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.