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Walker v. Commissioner of N.Y.S. Dept. of Labor & Unemployment

United States District Court, E.D. New York

January 8, 2015

MICHAEL WALKER, Plaintiff,
v.
THE COMMISSIONER OF THE N.Y.S. DEPT. OF LABOR & UNEMPLOYMENT; MS. SUSAN SOLTIS; MR. RICHARD SCARDINO; HUMAN RESOURCES DEPARTMENT; CIVIL COURT OF THE CITY OF NEW YORK, KINGS COUNTY; MARC FINKELSTEIN, Housing Court Judge; NYC MARSHAL #60 DIANE POLLARD; COMMISSIONER OF THE NYC. DEPT. OF HUMAN RESOURCES; JOE TULSA; BEVERLY SANTIAGO; DYNAMEX DELIVERY SERVICES; APPELLATE TERM OF THE SUPREME COURT OF THE STATE OF NEW YORK FOR THE 2ND, 11TH AND 13TH JUDICIAL DISTRICTS; JUDGE MICHAEL L. PESCE; JUDGE THOMAS P. ALIOTTA; JUDGE DAVID ELLIOT; JOHN BOEHNER, United States House of Representatives Speaker, Defendants.

MEMORANDUM AND ORDER

JOHN GLEESON, District Judge.

On December 1, 2014, pro se plaintiff Michael Walker filed this complaint against various New York State and City government agencies and employees, his former employer and two of its employees, and New York State courts and judges, alleging, inter alia, that they have conspired to deprive him of his housing, livelihood and unemployment benefits in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"). He seeks unemployment benefits and damages. Compl. at 4-5. With his complaint, plaintiff filed an Order to Show Cause for Preliminary Injunction and Temporary Restraining Order seeking the restoration and back payment of his unemployment benefits. Plaintiff also filed a request for appointment of counsel. I grant the request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). However, except for the claims of employment discrimination against Dynamex Delivery Services ("Dynamex") and two of its employees, Joe Tulsa and Beverly Santiago, the claims in the complaint are dismissed.[1] Plaintiff's request for a temporary restraining order or preliminary injunction and his motion for appointment of counsel are denied for the reasons set forth below.

Background

The following facts are drawn from plaintiff's complaint and his order to show cause, and the matching sets of 24 exhibits he attaches to each, the factual allegations of which are assumed to be true for purposes of this Memorandum and Order. Plaintiff has suffered a series of unfortunate occurrences since 2012: he has been evicted from his apartment; hit by a car; lost his job; been denied unemployment benefits; and is currently unemployed and unable to pay his rent.

On May 25, 2012, plaintiff was evicted from the apartment he lived in with Sheryl Walker at 751 Hart Street in Brooklyn, New York by Order of the Civil Court of the City of New York, County of Kings, Index No. 10674/2011 (Respondent, Sheryl Walker). In July 2012, he was hired by Dynamex as a courier. In July 2014, plaintiff requested a modified position with Dynamex which would involve less standing due to his medical condition, edema, for which he had been receiving medical treatment for over a year. On August 14, 2014, plaintiff was hit by a car when crossing a street in the Bronx. He spent the night in the hospital, but returned to work the next day, noticeably limping. Over the course of the next two weeks he saw a series of doctors and missed work. When he returned to work, he was told that his doctors' notes were insufficient because he had already been fired. Plaintiff states that he was fired from Dynamex on August 29, 2014.

Plaintiff filed for unemployment insurance benefits, which were initially granted, but subsequently denied by the New York State Department of Labor on September 22, 2014 because he had abandoned his job. The benefits were denied again after plaintiff sought review of that decision; in a "redetermined determination" dated October 27, 2014, the benefits were denied on the ground that he failed to appear for work on three dates in August 2014. Plaintiff requested a fair hearing with the New York State Department of Labor on September 29, 2014, the status of which is not discernable from the complaint.

There is a separate (but difficult to comprehend) strain of allegations concerning Sheryl Walker's "A-1 Special Advocates LLC/NO FEAR MILLIONAIRE" and its "$100 Billion Dollar Sweat Equity Plan to create 10 million new jobs by preventing 10 Million home owners from losing their homes" which is referenced in the submissions both as plaintiff's potential future employer and as a basis for Sheryl Walker's November 12, 2014 motion to vacate the housing court eviction, a copy of which is attached to the complaint and order to show cause. The motion was denied on November 20, 2014.

On November 22, 2014, plaintiff filed a Verified Complaint with the New York State Division of Human Rights against Dynamex and two of its employees alleging violations of New York state law and the Americans with Disabilities Act. Plaintiff has also filed a sick leave complaint with the New York City Consumer Affairs Department, which was acknowledged by letter dated October 28, 2014, and submitted a letter dated November 12, 2014 to the United States Attorney's Office for the Eastern District of New York seeking criminal prosecution of the defendants named herein under the RICO Act, 18 U.S.C. §§ 1961-1968.

Read liberally, plaintiff's complaint names the following 16 defendants to this action: (1) the judge who presided over the eviction proceeding in Kings County Housing Court, Mark Finkelstein; (2) the marshal who executed the eviction warrant, Diane Pollard; (3-6) the appellate court that affirmed the eviction decision, the Appellate Term of the Supreme Court of the State of New York, and the three judges of that court who made that decision, Michael L. Pesce, Thomas P. Aliotta, and David Elliot; (7-9) Dynamex, and two of its employees, Joe Tulsa and Beverly Santiago; (10-12) the Commissioner of the New York State agency that makes unemployment insurance decisions, the New York State Department of Labor and Unemployment, and two of its employees, Susan Soltis and Richard Scardino; (13-14) the New York City Human Resources Department and its Commissioner; (15) the Civil Court of the City of New York, Kings County; and (16) the Speaker of the House of Representatives, John Boehner. Plaintiff states that the Court has jurisdiction over his claims under the RICO Act.

Standard of Review

Under 28 U.S.C. § 1915(e)(2)(B), a district court shall dismiss an in forma pauperis action where it is satisfied that the action is "(i) 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." An action is frivolous "when either: (1) the factual contentions are clearly baseless, such as when allegations are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (internal citations and quotations omitted).

Although courts must read pro se complaints with "special solicitude" and interpret them to raise the "strongest arguments that they suggest, " Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-76 (2d Cir. 2006) (internal quotations omitted), a complaint must plead enough facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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, 556 U.S. 662, 678 (2009) (citation omitted). While detailed factual allegations are not required, "[a] pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Twombly, 550 U.S. at 555). Similarly, a complaint is insufficient to state a claim "if it tenders naked assertion[s]' devoid of further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 557).

Notwithstanding the liberal pleading standard afforded to pro se litigants, plaintiff must establish that the court has subject matter jurisdiction over the action. Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000); see also Rene v. Citibank NA, 32 F.Supp.2d 539, 541-42 (E.D.N.Y. 1999) (dismissing pro se complaint for lack of subject matter jurisdiction). "[S]ubject-matter jurisdiction, because it involves the court's power to hear a case, can never be forfeited or waived." United States v. Cotton, 535 U.S. 625, 630 (2002). Courts "have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party." Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)). "Where ...


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