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Said Gssime v. Nassau County Judge Paul Kawanta

August 2, 2012

SAID GSSIME, PLAINTIFF,
v.
NASSAU COUNTY JUDGE PAUL KAWANTA, NASSAU COUNTY COURTHOUSE, NASSAU COUNTY DISTRICT ATTORNEY DENNIS DILLON, NASSAU COUNTY LEGAL AID ATTORNEYS KENNETH ROSS AND WILLIAM JOHNSON, AND DEFENSE ATTORNEY JHON BRAY, DEFENDANTS.



The opinion of the court was delivered by: Seybert, District Judge:

ORDER

By Order dated June 21, 2012, the undersigned conditionally dismissed the in forma pauperis Complaint filed by incarcerated pro se plaintiff Said Gssime ("Plaintiff") on May 14, 2012. Given that Plaintiff had filed nine in forma pauperis Complaints in this Court, five of which had been dismissed for failure to state a claim upon which relief may be granted,*fn1 the Court revoked his in forma pauperis status pursuant to the Prison Litigation Reform Act's "three strikes" provision outlined in 28 U.S.C. § 1915(g). See Gssime v. Wasserman, et al., 09-CV-5674 (Order revoking in forma pauperis status dated August 3, 2012, Seybert, D.J.).

Pursuant to this Court's June 21, 2012 Order, Plaintiff has timely filed the $350.00 filing fee. Plaintiff was cautioned, however, that his payment of the filing fees does not except him from the requirements of 28 U.S.C. § 1915A and that the Court is required to dismiss a complaint if the action is frivolous or malicious; fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief. See Order, dated June 21, 2012, Seybert, D.J.; see also 28 U.S.C. § 1915(e)(2)(B)(i-iii); 28 U.S.C. § 1915A(a) & (b); Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court has reviewed Plaintiff's Complaint and, in accordance with 28 U.S.C. §§ 1915(e)(2)(B)(ii)-(iii) and 1915A, now sua sponte dismisses the Complaint for failure to state a claim upon which relief may be granted and because it seeks monetary relief from Defendants who are immune from such relief.

DISCUSSION I. Standard of Review

Given Plaintiff's pro se status, the Court is mindful that his "pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (internal quotation marks and citations omitted); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). However, a complaint must plead "enough facts to state a claim to relief that is plausible on its face," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953, 173 L. Ed. 2d (2009), and if a liberal reading of the complaint "gives any indication that a valid claim might be stated," the Court must grant leave to amend the complaint. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). However, if amendment of the complaint would not cure the substantive defects of the claim, leave to amend should be denied. Cuoco, 222 F.3d at 112.

Regardless of whether a plaintiff has paid the filing fee, a district court has the inherent power to sua sponte dismiss a frivolous case. Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363-64 (2d Cir. 2000) (a district court may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee); see also Hawkins-El III v. AIG Federal Savings Bank, 334 F. App'x 394, 395 (2d Cir. June 18, 2009) (affirming district court's sua sponte dismissal of fee paid frivolous complaint); Reyes v. Reyes, No. 11-CV-2536 (KAM), 2011 WL 3625562, *2 (E.D.N.Y. Aug. 16, 2011) (dismissing fee paid complaint sua sponte); Gianello v. Port Authority of N.Y. and N.J., No. 11- CV-3829 (JGK), 2011 WL 2436674 (S.D.N.Y. June 16, 2011) ("The Court has the authority to dismiss sua sponte a complaint, or portion thereof, for which a plaintiff has paid the filing fee where the plaintiff presents no arguably meritorious issue.").

The Court is required to dismiss the action as soon as it makes such a determination. See 28 U.S.C. § 1915(e)(2)(B).

II. The Complaint

Plaintiff's Complaint is difficult to comprehend. It appears that Plaintiff seeks to challenge his underlying 1998 criminal conviction in Nassau County Court pursuant to Section 1983.*fn2 The Complaint is largely comprised of a disjointed narrative and diatribe. For example, Plaintiff claims that his "victims were from a [J]ewish decent [sic] [and then-Nassau County District Attorney Denis Dillon] was also from a [J]ewish decent [sic] and Plaintiff, who is a half [F]rench and a half Moroccan [C]hristian decent [sic] was the victim of racial discrimination and that's simply because of his name, race, origins, ethnicity. . . . Compl. at page 8.*fn3 According to the Complaint, the claims

arise "from the acts of [sic] the omissions of the defendants, details of said acts or omissions are as . . . for [u]njust conviction, injustice, abuse of power in violation of the plaintiff's due process of law, and in violation of the State and United States Constitutions." Compl. at page 4. Plaintiff claims that, on April 30, 1997, he "was arrested and [has] wrongfully been placed behind bars for a crime he didn't commit." Id. Prior to May 5, 1997, when Judge Goodman is alleged to have assigned two Legal Aid Attorneys (Defendants Kenneth Ross and William Johnson in this action) to represent the Plaintiff in his pretrial criminal proceedings, Plaintiff claims that he was tortured by unnamed officers at the Nassau County Correctional Center, who are alleged to have been ordered to torture him by then-Nassau County D.A. Dillon. Id. Plaintiff describes that his "top teeth has [sic] been broken there [sic] are so called evidence to prove that the dental surgeon at the Nassau County Medical Center had removed them from the inside gums in small pieces, since Plaintiff was tortured behind the glass and close[d] doors . . . ." Compl. at page 5. Plaintiff further claims that his assigned Legal Aid Attorneys "have illegally signed a waiver of Plaintiff's rights without even visiting with him and without his consent which is fraud, perjury, and discrimination against the Constitutional rights of the Plaintiff. . . ." Id.

According to the Complaint, Justice Kawanta, who is alleged to have presided during Plaintiff criminal trial and pre-trial proceedings, ordered a mental health competency exam of Plaintiff resulting in an examination of Plaintiff by two court-appointed psychiatrists. Compl. at page 7. Plaintiff complains that his attorneys were not notified about the examination. Id. Plaintiff further claims that he "was not represented by an [a]attorney during all pre-trial legal proceedings which is a violation of his due process of law . . . ." Compl. at page 11.

As a result of the foregoing, Plaintiff seeks to recover eighty-five million dollars ($85,000,000.00) as well as his "[i]mmediate relief from his defective and unconstitutional conviction." Compl. at page 16.

III. Immunity

Plaintiff's claims against the Nassau County District Attorney, Justice Kawanta, and the Nassau County ...


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