ANDRE R. LEVESQUE, Plaintiff,
CLINTON COUNTY, et al., Defendants.
ANDRE R. LEVESQUE, Pro Se, Clinton County Jail, Plattsburgh, New York. for Plaintiff.
GREGG T. JOHNSON, ESQ., APRIL J. LAWS, ESQ., LEMIRE JOHNSON LLC, Malta, New York. for Defendants.
REPORT AND RECOMMENDATION
DAVID E. PEEBLES, Magistrate Judge.
This case was commenced by pro se plaintiff Andre Levesque against defendants Clinton County and various, unidentified "John Does" generally alleging that his rights under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., were violated during his incarceration at the Clinton County Correctional Facility. Dkt. No. 1. Since the commencement of this action on July 1, 2010, defendants' motion for judgment on the pleadings has been granted in part, and the only remaining cause of action in this case is plaintiff's Title II ADA claim. Dkt. No. 89.
After a series of frivolous or harassing submissions by plaintiff, and a succession of warnings issued by the court in response, on April 16, 2013, I ordered plaintiff to show cause why I should not recommend to District Judge David N. Hurd that this case should be dismissed. Dkt. No. 124. On April 29, 2013, plaintiff filed his response to that order. Dkt. No. 128. For the reasons set forth below, I recommend that plaintiff's complaint be dismissed.
Over the course of this case, plaintiff has submitted eighty-two filings that run the gamut from requesting status updates of his action to sending pieces of skin to be filed with the court. In addition, at least eight of these filings appear to request no relief and serve no useful purpose at all. Countless of plaintiff's filings have contained harassing and/or threatening language that has given the court pause. Plaintiff has also sent threatening letters directly to defendants' counsel. Upon receipt of these filings, the court has explicitly warned plaintiff that vexatious and abusive court filings will not be tolerated, and has referred all letters that are objectively threatening, or may be construed to contain threatening language, to the United States Marshals Service for review. See, e.g., Dkt. No. 88 at 38 n.9; Text Order Dated Jan. 30, 2013; Text Order Dated Feb. 20, 2013.
On April 5, 2013, following notice from defendants' counsel that plaintiff had begun contacting and threatening defendants' counsel directly, the court issued a formal order warning plaintiff, one final time, that threats of the kind that he has repeatedly aired in this action will not be tolerated, and that any further filings of this nature would result in an order to show cause why I should not issue a recommendation to Judge Hurd that this matter be dismissed. Dkt. No. 109. Plaintiff subsequently filed an additional nine motions or letters with the court, Dkt. Nos. 110-13, 119-23, and sent one additional letter directly to defendants' counsel, Dkt. No. 117-1. Of those ten filings, six contained harassing and/or threatening language.
As a result of plaintiff's persistent conduct, the court issued the promised order to show cause to plaintiff on April 16, 2013. Dkt. No. 124. On April 29, 2013, plaintiff filed his response to that order and included over 200 pages of supporting documents. Dkt. No. 128. In his response, plaintiff offered no explanation for his past conduct, except to suggest that his language and behavior should be construed as sarcasm. Id. at ¶ 1.
"A court has the inherent power to supervise and control its own proceedings and to fashion an appropriate sanction-including outright dismissal of a lawsuit-for bad-faith conduct." Phelan v. Karandy, No. 11-CV-0636, 2012 WL 2235125, at *2 (N.D.N.Y. June 15, 2012) (Mordue, J.) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 43-45 (1991)). Plaintiff's submissions described in this report have clearly been filed for no other purpose than to harass defendants and the court. There is no reasonable explanation for any of plaintiff's behavior identified herein, and he has refused to alter his conduct even after being provided multiple opportunities to do so. Although plaintiff includes an apology for being "so forward and rude and ma[king] anyone feel uncomfortable" in his response to the court's order to show cause, Dkt. No. 128 at ¶ 21, it is insufficient to justify his consistent and burdensome practice of filing threatening, vexatious, and frivolous submissions in this case.
The court would only add that, before deciding to issue its recommendation that this case be dismissed, it has considered the five factors the Second Circuit has instructed courts to consider when contemplating the issuance of an anti-filing injunction. Although the court is not, at this time, referring the matter to Chief District Judge Gary L. Sharpe for consideration of that more severe sanction, out of an abundance of caution, I have considered the five factors informing such a decision, which include the following:
(1) the litigant's history of litigation and in particular whether it entailed vexatious, harassing or duplicative lawsuits; (2) the litigant's motive in pursuing the litigation, e.g., does the litigant have an objective good faith expectation of prevailing?; (3) whether the litigant is represented by counsel; (4) whether the litigant has caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel; and (5) whether other sanctions would be adequate to protect the courts and other parties.
Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986).
In evaluating the first factor, which focuses on plaintiff's litigation history, the court need not look any further than the other action pending in this district before Judge Hurd to determine that plaintiff's pattern of filing frivolous submissions has been continued in that case, as well. See, e.g., Levesque v. CVPH Med. Ctr., No. 12-CV-0960, Decision and Order (Dkt. No. 14) at 9-10 (N.D.N.Y. Oct. 9, 2012) (Hurd, J.) (finding that "it is far from clear that there is any relationship between the relief sought in plaintiff's motions [for injunctive relief] and the conduct giving rise to the complaint"). In addition, a review of the docket sheet in that case reveals that, of the forty docket entries accumulated in that case since its inception in June 2012, thirty-four are plaintiff's submissions. See generally Levesque, No. 12-CV-0960, Docket Sheet. Currently, as of the date of issuing this report, plaintiff has eight motions pending in that action. Id. Although these statistics are not dispositive, they are illustrative of plaintiff's pattern of filing voluminous submissions.
The second factor requires an inquiry into whether the plaintiff has a good-faith belief that he will prevail. In this case, the court cannot contemplate how plaintiff could perceive that the only surviving cause of action in this case, a discrimination claim pursuant to the ADA, has merit when the majority of plaintiff's submissions have failed to even mention his alleged disability. Moreover, many ...