Opinion
18 Civ. 3698 (LGS) (GWG)
05-28-2021
TOWAKI KOMATSU, Plaintiff, v. THE CITY OF NEW YORK, et al., Defendants.
REPORT AND RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Towaki Komatsu, proceeding pro se, brought this action against the City of New York and other city and state defendants, alleging that his constitutional rights were violated when he was barred from attending meetings held by Mayor Bill de Blasio in 2017. See Second Amended Complaint, filed August 30, 2018 (Docket # 45). Defendants filed a motion for sanctions under Fed.R.Civ.P. 37 and 41, asking the Court to dismiss plaintiff's complaint for failure to comply with court orders. The Court later sua sponte issued an order to show cause why the case should not be dismissed under the Court's inherent power based on plaintiff's conduct in this case, see Order to Show Cause, filed March 12, 2021 (Docket # 520), to which both sides responded.
See Letter from Andrew Spears, filed February 3, 2021 (Docket # 492); Letter from Andrew Spears, filed February 4, 2021 (Docket # 496); Letter from Plaintiff, filed February 11, 2021 (Docket # 507) (“Pl. Opp.”); Letter from Plaintiff, filed February 16, 2021 (Docket # 508); Letter from Andrew Spears, filed February 18, 2021 (Docket # 509); Declaration of Towaki Komatsu, filed April 16, 2021 (Docket # 548) (“Pl. Response to OSC”); Letter from Andrew Spears, filed April 30, 2021 (Docket # 564); Letter from Plaintiff, filed May 1, 2021 (Docket # 565).
For the reasons discussed below, the case should be dismissed with prejudice.
I. PROCEDURAL HISTORY
This case began on April 26, 2018, when plaintiff filed his complaint alleging that his First Amendment rights were violated after he was denied entry to a public meeting held by New York City Mayor Bill de Blasio on April 27, 2017. See Complaint, filed April 26, 2018 (Docket # 2). Plaintiff's complaint listed the City of New York (the “City”), the NYPD, and several individual police officers, one unnamed, as defendants. See id. ¶¶ 11-15. Plaintiff filed an amended complaint a month later, adding claims against various officers of the New York State Office of Court Administration for an incident that occurred on May 23, 2017. See Amended Complaint, filed May 24, 2018 (Docket # 4) ¶ 6. Plaintiff was granted leave to proceed in forma pauperis on June 4, 2018 (Docket # 5), and an order of service issued on June 6, 2018 (Docket # 8), informing plaintiff of the need to file another amended complaint after receiving information identifying the unnamed officer, id. at 4.
After service on some of the defendants was initially unsuccessful, plaintiff wrote a lengthy letter addressed to Judge Schofield in which he provided another address on which to serve those defendants and complained about his treatment by court security officers at 500 Pearl Street. See Letter from Plaintiff, filed July 20, 2018 (Docket # 20), at 1. The City identified the unnamed officer in a letter filed August 1, 2018 (Docket # 23). The undersigned then issued an order reminding plaintiff of his responsibility to amend his complaint within thirty days of that identification and ordering the City to provide an address on which to serve the remaining defendants. Order, filed August 6, 2018 (Docket # 28), at 1-2. The Court noted plaintiff's July 20 letter to Judge Schofield and stated that it was “confident that Court Security Officers will behave appropriately in their treatment of plaintiff and that no additional steps need be taken at this time.” Id. at 2. In response to this Order, plaintiff filed a letter demanding the undersigned's recusal for demonstrating “substantial bias and prejudice.” Letter from Plaintiff, filed August 7, 2018 (Docket # 29), at 1. The Court denied the recusal request, noting that “it harbors no bias or prejudice concerning plaintiff” and that “[t]he Plaintiff is a person of equal standing to the defendants and will be treated as such.” Order, filed August 9, 2018 (Docket # 35), at 1.
Plaintiff then filed two letters the next day accusing the undersigned and Judge Schofield of “egregious dereliction of duty” for allowing an alleged assault by court security officers on August 8, 2018, to occur. Letters from Plaintiff, filed August 10, 2018 (Docket ## 36-37), at 1. In the letter addressed to the undersigned, plaintiff demanded “your immediate resignation as a judge as well as the resignations of Judge Schofield and Judge McMahon, ” along with “personal protection by armed members of the Federal Protective Service Police whenever I am inside of this federal courthouse.” Docket # 36 at 4. Plaintiff further asked that this proposed armed retinue have “standing orders issued by this Court to members from that agency providing me with such protection to enjoin them to shoot any court security officers in one of their legs to disable them in the event that they come within 30 feet of me in those courthouses in areas outside of a courtroom.” Id.
Five days later, plaintiff wrote another letter to the Court, which combined with exhibits was 543 pages long. Letter from Plaintiff, filed August 15, 2018 (Docket # 38). Among other things, plaintiff indicated that he wished to again amend his complaint and add new claims and defendants, id. at 6, a request he reiterated in subsequent letters, see Docket ## 39, 41, 42, 44. He then filed a second amended complaint that substituted in the name of the formerly unnamed police officer. See Second Amended Complaint, filed August 30, 2018 (Docket # 45) (the “SAC”). The Court denied plaintiff's request to further amend his complaint along with his request that the Court seek counsel for him. Order, filed September 14, 2018 (Docket # 51), at 1-2.
Defendants indicated their intention to file a motion to dismiss. See Letter from Danielle Drasser, filed December 3, 2018 (Docket # 60). Judge Schofield set a briefing schedule for the motion. Order, filed December 19, 2018 (Docket # 70). Plaintiff then filed a letter seeking injunctive relief (see Letter from Plaintiff, filed January 3, 2019 (Docket # 71)), which was later accompanied by a proposed order to show cause. Judge Schofield initially directed that the order to show cause be docketed as a new civil action. See Order, filed January 8, 2019 (Docket # 74). After plaintiff requested reconsideration, see Letter from Plaintiff, filed January 9, 2019 (Docket # 75), Judge Schofield granted that request and denied plaintiff's application for injunctive relief on the merits, see Order, filed January 9, 2019 (Docket # 76). Plaintiff filed a new letter seeking reconsideration, see Letter from Plaintiff, filed January 10, 2019 (Docket # 79), followed by another letter seeking reconsideration and Judge Schofield's recusal, see Letter from Plaintiff, filed January 11, 2019 (Docket # 90), and another proposed order to show cause, see Unsigned Order to Show Cause, filed January 11, 2019 (Docket # 91). This was followed by yet another letter seeking reconsideration of the same order, see Letter from Plaintiff, filed January 16, 2019 (Docket # 94).
The defendants filed their motions to dismiss. See Motion to Dismiss, filed January 11, 2019 (Docket # 80); Motion to Dismiss, filed January 11, 2019 (Docket # 85). Judge Schofield construed one letter filed by plaintiff as his opposition to the motions to dismiss. See Memorandum Endorsement, filed January 23, 2019 (Docket # 101). This action by Judge Schofield prompted plaintiff to file a letter to Judge Schofield (whom he addressed as “Lorna”) stating that he was filing the letter to “order you to immediately vacate the order you issued on 1/23/19.” Letter from Plaintiff, filed January 25, 2019 (Docket # 105), at 1. Plaintiff wrote that “the following clear directive by me to you applies in this action in response to your 1/23/19 order . . . ‘Get the FUCK out of this FUCKING case now by promptly recusing your FUCKING ASS to stop violating my FUCKING rights under the U.S. Constitution in it, you FUCKING BITCH!'” Id. at 1-2 (capitalization in original). Plaintiff added that Judge Schofield was “acting as nothing more than a detestable and subservient cat's pat [sic] for the benefit of the attorneys of the defendants in this action.” Id. at 2. Plaintiff urged Judge Schofield to buy “a book entitled ‘Teaching Kids to Read for Dummies'” and to “bring it with you to prison for others to read to you while your reading comprehension remains so lackluster.” Id. at 5.
In response to this filing, Judge Schofield issued an order denying plaintiff's motions for reconsideration and directing him “not to use inappropriate language in his filings with the Court.” Order, filed February 5, 2019 (Docket # 106), at 3. The order warned him that “further use of inappropriate language in his filings may result in sanctions, including dismissal of the case.” Id. The Order further laid out the standard for granting a motion for reconsideration and explained why plaintiff's motions did not satisfy that standard. Id. at 2. The Order granted plaintiff the opportunity to file an opposition to defendants' motions by February 22, 2019. Id.
Plaintiff filed numerous letters thereafter, which included requests to amend his complaint. See, e.g., Letter from Plaintiff, filed February 20, 2019 (Docket # 111); Unsigned Order to Show Cause, filed February 21, 2019 (Docket # 113); Letter from Plaintiff, filed February 21, 2019 (Docket # 114); Letter from Plaintiff, filed February 25, 2019 (Docket # 115). In response, Judge Schofield issued an order denying plaintiff's new requests to amend as futile and denying all other relief requested in his letters. See Order, filed March 1, 2019 (Docket # 118) (the “March 1 Order”). Judge Schofield noted plaintiff's “voluminous and irrelevant filings in this case, ” id. at 1, and ordered that plaintiff “shall refrain from making further filings in this case, except with respect to the disposition of the claims in the [SAC], ” id. at 3. Judge Schofield granted plaintiff another extension to file his opposition to March 14, 2019, and stated that plaintiff “may file his opposition to both motions in a single document not to exceed 50 pages.” Id. at 2.
Plaintiff promptly filed a new flurry of letters, along with the first of many interlocutory appeals. See Docket ## 121-28, filed March 1, 2019-March 6, 2019. In one of his letters, plaintiff again sought leave to amend his complaint to add new defendants and claims. See Letter from Plaintiff, filed March 5, 2019 (Docket # 127). Judge Schofield granted another extension to file his opposition to defendants' motions to dismiss. See Memorandum Endorsement, filed March 13, 2019 (Docket # 133). Plaintiff explained in a letter to the undersigned that he was refusing to follow Judge Schofield's March 1 Order limiting his filings, “[s]ince that provision illegally violates my First Amendment right to promptly petition this Court for redress of grievances, it's void and unenforceable, ” and further that he had construed Judge Schofield's use of the word “shall” (in the phrase “shall refrain from making further filings”) to mean “may.” Letter from Plaintiff, filed March 8, 2019 (Docket # 132), at 3-4. He also “order[ed]” the undersigned's recusal. Id. at 3.
Plaintiff has filed 40 notices of appeal. The Second Circuit has so far dismissed each of the appeals it has ruled upon, with the exception of one, for lack of jurisdiction because no final order has been issued in this case. See Mandate of USCA, entered August 5, 2019 (Docket # 212) (dismissing twelve of plaintiff's appeals); Mandate of USCA, entered February 10, 2020 (Docket # 314) (dismissing seven additional appeals); Mandate of USCA, entered November 3, 2020 (Docket # 431) (dismissing eleven additional appeals and denying a twelfth as premature). Another appeal was apparently dismissed for failure to file a form on time. See Mandate of USCA, entered April 14, 2020 (Docket # 341). Of the remaining eight notices, see Docket ## 468, 471, 477, 478, 488, 489, 535, 544, two were re-docketed as appeals for the district court to consider. See Appeal of Magistrate Judge Decision, filed January 29, 2021 (Docket ## 505-06). On May 13, 2021, the Court of Appeals dismissed the remaining six appeals and warned plaintiff that the continued filing of appeals from non-final orders could result in a sanction. See Mandate of USCA, entered May 13, 2021 (Docket # 570).
In response, the undersigned issued a new order, explaining that plaintiff had incorrectly interpreted the March 1 Order and that “all uses of ‘shall' in that order are mandatory.” Order, filed March 18, 2019 (Docket # 137), at 1. The Court denied plaintiff's requests for relief and, because plaintiff had up until then frequently addressed the undersigned and Judge Schofield by their first names, ordered plaintiff to “address any district judge or magistrate judge of this Court with a judicial title and not by the judge's first name, ” noting that failure to comply may result in sanctions. Id. at 1-2. This prompted another letter from plaintiff, in which he referred to the undersigned as “an inept and biased judge, ” and “order[ed]” both the undersigned and Judge Schofield “to promptly resign as federal judges.” Letter from Plaintiff, filed March 21, 2019 (Docket # 140), at 1, 3. Plaintiff also requested an extension of time to file his opposition, see Letter from Plaintiff, filed March 25, 2019 (Docket # 142), which Judge Schofield granted, see Memorandum Endorsement, filed March 28, 2019 (Docket # 145).
On April 4, 2019, plaintiff filed two fifty-page submissions in opposition to defendants' motions, explaining in the first submission that he had interpreted the page limitations in the March 1 Order to mean “that I'm not obligated to completely follow it.” Affidavit of Plaintiff, filed April 4, 2019 (Docket # 150), at 2. He submitted another request for injunctive relief, which Judge Schofield denied as barred by the March 1 Order. See Letter from Plaintiff, filed April 8, 2019 (Docket # 153); Memorandum Endorsement, filed April 9, 2019 (Docket # 154). Judge Schofield issued another order noting that the March 1 Order had limited plaintiff's overall opposition to fifty pages and ordering him to file a submission in conformity with that limitation by April 25, 2019. Order, filed April 11, 2019 (Docket # 160), at 2. Plaintiff subsequently filed another application for leave to file a further amended complaint, see Letter from Plaintiff, filed April 15, 2019 (Docket # 162), which Judge Schofield denied as barred by the March 1 Order, see Order, filed April 22, 2019 (Docket # 165).
Plaintiff requested a further extension to file his opposition, see Letter from Plaintiff, filed April 19, 2019 (Docket # 164), which was granted to May 2, 2019, see Memorandum Endorsement, filed April 24, 2019 (Docket # 166). On that date, plaintiff filed two submissions, which combined exceeded the 50-page limit. See Affidavit in Opposition, filed May 2, 2019 (Docket # 176) (30 pages); Affidavit in Opposition, filed May 2, 2019 (Docket # 177) (28 pages). Despite this lack of compliance, Judge Schofield accepted these papers. See Order, filed May 7, 2019 (Docket # 180). Defendants requested an extension to reply to May 31, 2019, which was granted. See Order, filed May 8, 2019 (Docket # 183). Plaintiff continued to file letters in the interim on unrelated matters, prompting another order from Judge Schofield. See Order, filed May 16, 2019 (Docket # 197). In that order, Judge Schofield denied plaintiff's new requests for relief, and noted the March 1 Order directing plaintiff to cease making filings unrelated to the motions to dismiss. The Order noted plaintiff's “dozens of letters seeking various forms of relief, many of which are unrelated to the disposition of the claims in the [SAC], including letters ‘ordering' the Court to undertake certain actions.” Id. at 1. Judge Schofield stated that “there is no reason for Plaintiff to make any filings with respect to this case until after the motion to dismiss is decided. If Plaintiff again violates the [March 1 Order], he is warned that his case may be dismissed or other sanctions may be imposed.” Id. at 1-2.
Plaintiff shortly filed three more letters, the first of which complained that the just-issued Order was “entirely unenforceable and illegal, ” Letter from Plaintiff, filed May 17, 2019 (Docket # 199), at 1, the second of which sought reconsideration of the Order and “all prior orders” that denied authorization to file a further amended complaint, Letter from Plaintiff, filed May 23, 2019 (Docket # 200), at 1, and the third of which complained about his treatment by court security officers, see Letter from Plaintiff, filed May 24, 2019 (Docket # 201). Judge Schofield denied plaintiff's requests for relief, again noting the prohibition on unrelated filings set forth by the March 1 Order and again warning plaintiff that his case could be dismissed for further violations. Memorandum Endorsement, filed May 29, 2019 (Docket # 202).
Defendants then filed their reply memoranda on May 31, 2019 (Docket ## 205-06). Plaintiff sought leave to file a sur-reply and again requested reconsideration of Judge Schofield's decisions. See Letter from Plaintiff, dated July 3, 2019, filed July 17, 2019 (Docket # 210). Judge Schofield denied both requests. Memorandum Endorsement, filed July 19, 2019 (Docket # 211). Plaintiff continued to make additional filings, including new requests for injunctive relief and requests for reconsideration. See, e.g., Unsigned Order to Show Cause, filed September 4, 2019 (Docket # 216); Unsigned Order to Show Cause, filed September 13, 2019 (Docket # 219); Letter from Plaintiff, filed September 13, 2019 (Docket # 221), at 1 (requesting immediate “reconsideration of the orders that you have issued in this action that have not permitted me to file a further amended complaint”).
Judge Schofield ruled on defendants' motions to dismiss on September 30, 2019, see Opinion and Order (Docket # 239), granting the state defendants' motion in full and the City defendants' motion in part. The undersigned then scheduled a Rule 16 conference for October 31, 2019. See Order for Conference Pursuant to Rule 16, filed October 2, 2019 (Docket # 244). The City defendants answered plaintiff's complaint on October 15, 2019. See Answer (Docket # 253). After the Rule 16 conference took place, the Court granted plaintiff's application for the Court to request counsel. See Order, filed October 31, 2019 (Docket # 260). The Court issued a scheduling order setting the close of discovery date as June 1, 2020. See Order, filed October 31, 2019 (Docket # 261), at 1. Plaintiff continued to make requests for preliminary relief. See, e.g., Unsigned Order to Show Cause, filed November 1, 2019 (Docket # 267); Unsigned Order to Show Cause, filed November 5, 2019 (Docket # 271); Unsigned Emergency Order to Show Cause, filed November 25, 2019 (Docket # 277); Unsigned Emergency Order to Show Cause, filed December 4, 2019 (Docket # 282). Judge Schofield issued an order noting that these requests did not “relate to the remaining claim in this action, ” and ordered plaintiff to “refrain from making further filings in this case, except with respect to the remaining claim or upon direction of Judge Gorenstein, ” and warned that “[f]ailure to comply with this Order may result in dismissal of this action.” Order, filed December 10, 2019 (Docket # 286).
No attorney ever volunteered to represent plaintiff.
Meanwhile, defendants had made a request to stay discovery for any claim under Monell v. Department of Social Services, 436 U.S. 658 (1978). See Letter from Hannah Faddis, filed November 20, 2019 (Docket # 275). Plaintiff's response referred to the fact that when the defendants' attorney sought to discuss discovery matters with plaintiff, he “offered to meet with them in public in Washington Square Park.” Letter from Plaintiff, filed December 5, 2019 (Docket # 284), at 4. In response, the undersigned denied defendants' request to stay Monell discovery. Order, filed December 18, 2019 (Docket # 294) (“Recording Bar Order”), at 1. That denial also noted that plaintiff had suggested in one of his filings “that it would be appropriate to have the meet-and-confer required by paragraph 2.A of the Court's Individual Practices [i.e., relating to discovery disputes] take place in public, ” but ruled that such meetings “may take place only by telephone or in the office of an attorney.” Id. The Court was aware at this time that plaintiff had previously made filings indicating that he frequently recorded his conversations with City employees and posted the recordings to the internet. See Unsigned Order to Show Cause, filed November 25, 2019 (Docket # 277), at *127; Unsigned Order to Show Cause, filed December 11, 2019 (Docket # 292), at *36. Accordingly, the Court's Order prohibited either side from making “an audio recording of any telephone conference between the parties without all participants' written permission.” Recording Bar Order at 2. The undersigned explained that this provision was made because of the need to “not inhibit the free flow of communication.” Id. Plaintiff then filed untimely requests for reconsideration of orders issued a year earlier (Docket ## 301, 304), which Judge Schofield denied. See Memorandum Endorsement, filed January 9, 2020 (Docket # 305).
* _refers to pages assigned by the ECF system.
Shortly thereafter, plaintiff sought to file a third amended complaint, see Letter from Plaintiff, filed January 31, 2020 (Docket # 312), and Judge Schofield granted him leave to file a motion making such a request, see Order, filed February 13, 2020 (Docket # 318). The undersigned set a March 16, 2020, deadline for the motion. See Order, filed March 3, 2020 (Docket # 320). Plaintiff never filed a motion by that deadline. After defendants filed a letter motion to stay discovery for 90 days due to the coronavirus pandemic, see Letter from Hannah Faddis, filed April 1, 2020 (Docket # 331), the Court granted that motion, extended the stay of discovery until the motion to amend was resolved, and extended plaintiff's deadline to file the motion to amend until May 1, 2020, see Order, filed April 10, 2020 (Docket # 339). Plaintiff subsequently filed four separate documents, combined totaling over 800 pages, purporting to be his proposed third amended complaint. See Docket ## 344-46, filed May 5, 2020; Docket # 348, filed May 4, 2020. The Court issued an order noting that the documents would not be considered because “the proposed third amended complaint must be a single document with consecutively numbered paragraphs.” Order, filed May 6, 2020 (Docket # 347). The Court extended plaintiff's time again to file a conforming document to May 27, 2020. Id. Plaintiff again filed multiple documents, which combined totaled more than 1000 pages, each of which claimed to be part of his third amended complaint. See Docket # 361, filed May 18, 2020; Docket # 362, filed May 26, 2020; Docket # 365, filed May 28, 2020. The Court refused to consider these documents for the same reasons it had refused to consider the prior ones and granted another extension to June 17, 2020, to file a proper proposed amended complaint. Memorandum Endorsement, filed June 3, 2020 (Docket # 371). This order concluded:
To ensure that plaintiff has sufficient time to prepare a single complaint that complies with Fed.R.Civ.P. 10 (requiring consecutive numbered paragraphs “each limited as far as practicable to a single set of circumstances”) and Fed.R.Civ.P. 8 (requiring a “short and plain statement of the claim”), the Court will grant an extension of three weeks from the last deadline set for the filing of the motion to amend, May 27, 2020 (Docket # 347) - that is, until June 17, 2020 - to file the proposed Third Amended Complaint.Id. Plaintiff then filed a letter requesting “more than 2 months” to make the filing. See Letter from Plaintiff, filed June 5, 2020 (Docket # 377), at 3. The Court extended the time to file to July 20, 2020, noting that this was “an unusually long extension” and that “no further extensions” would be granted. Memorandum Endorsement, filed June 8, 2020 (Docket # 378).
Plaintiff continued to make many more filings unrelated to his motion to amend (Docket ## 349-50, 353, 355), prompting another order from Judge Schofield directing him to “make no further filings that are unrelated to the motion to amend or are expressly directed by this Court or Judge Gorenstein.” Memorandum Endorsement, filed May 21, 2020 (Docket # 358). Despite this, plaintiff filed further unrelated requests (Docket ## 370, 372), resulting in another Order denying those requests and reminding plaintiff “that he was ordered to make no further filings” unrelated to the motion to amend. Order, filed June 4, 2020 (Docket # 373). Plaintiff made another unrelated filing (see Docket # 387, filed July 8, 2020), resulting in a third order in which Judge Schofield directed him to comply with prior orders limiting his filings and warning him that “if Plaintiff violates these court orders in the future by making impermissible filings, he is warned that this case will be dismissed with prejudice, ” and defining “with prejudice.” Order, filed July 13, 2020 (Docket # 391), at 2-3 (emphasis in original).
Plaintiff eventually filed four more documents, each labeled as part of his third amended complaint, and a motion to amend. See Docket # 398, filed July 17, 2020; Docket # 399, filed July 21, 2020; Docket ## 402-03, filed July 24, 2020; Docket # 404, filed July 28, 2020. The Court denied the motion, noting that it failed to comply “with Fed.R.Civ.P. 10, as well as with Fed.R.Civ.P. 8's requirement that it contain a ‘short and plain statement of the claim.'” Order, filed July 28, 2020 (Docket # 405), at 3. It also denied the motion “for the separate and independent reason that plaintiff failed to obey multiple court orders as to the format of his proposed third amended complaint and the Court finds that the denial of the motions is an appropriate sanction under Fed.R.Civ.P. 16(f)(1)(c).” Id. The Court stated that the case would proceed on the second amended complaint to the extent any claims had survived the ruling on the motion to dismiss. Id. The Court also vacated the stay of discovery and extended the close of discovery to November 30, 2020. Id. at 3-4. Plaintiff subsequently filed several more requests for reconsideration, which were denied. See Order, filed August 10, 2020 (Docket # 418); Order, filed September 10, 2020 (Docket # 424).
Several weeks later, defendants brought to the Court's attention a discovery dispute with plaintiff. See Letter from Andrew Spears, filed November 4, 2020 (Docket # 432). Plaintiff initially refused to respond to defendants' letter, claiming that he had “no legal obligation to respond” unless the letter's paragraphs were numbered, citing Fed.R.Civ.P. 10(b). Letter from Plaintiff, filed November 11, 2020 (Docket # 433), at 1. The Court explained that Rule 10(b) does not apply to documents other than “pleadings, ” and granted plaintiff additional time to respond to defendants' letter. Memorandum Endorsement, filed November 13, 2020 (Docket # 434). The Court eventually granted much of the relief sought in defendants' letter and ordered plaintiff to “serve on defendants complete responses to the interrogatories and documents requests as stated above on or before January 15, 2021.” Order, filed December 18, 2020 (Docket # 450) (the “Discovery Order”), at 7.
The parties then had a dispute about whether defendants should be required to provide responses to plaintiff's discovery requests without a confidentiality order in place. See Letter from Plaintiff, filed December 22, 2020 (Docket # 453); Letter from Andrew Spears, filed January 7, 2021 (Docket # 462). The Court denied plaintiff's motion to require document production without a confidentiality order and issued such an order over plaintiff's objection, noting that it would “assist in the administration of this case and the resolution of disputes between the parties.” Order, filed January 15, 2021 (Docket # 473), at 2. The Confidentiality Order prohibited both parties from “publicly disclos[ing] to any person or in any Court filing” information designated as confidential “unless an Order of the Court has been obtained permitting such disclosure.” Confidentiality Order, filed January 15, 2021 (Docket # 474) ¶ 2.
In response to these Orders, plaintiff filed a letter seeking reconsideration. See Letter from Plaintiff, filed January 18, 2021 (Docket # 479). In it, plaintiff referred to a recording of telephone calls with defense counsel that he had made on December 22, 2020. See id. at 1. The Court denied the request for reconsideration, see Order, filed January 29, 2021 (Docket # 485), and ordered plaintiff to show cause why he should not be sanctioned for violating the Recording Bar Order, which prohibited the recording of calls with opposing counsel, see Order to Show Cause, filed January 29, 2021 (Docket # 487).
Shortly thereafter, defendants filed a letter motion seeking sanctions based on plaintiff's failure to comply with the Discovery Order. See Letter from Andrew Spears, filed February 3, 2021 (Docket # 492). After the Court waived the pre-motion conference and set a schedule for plaintiff's response, see Order, filed February 3, 2021 (Docket # 494), plaintiff asked the undersigned to “stay all orders” relating to sanctions, which the Court denied, see Order, filed February 5, 2021 (Docket # 497) (“Reconsideration Bar Order”). The Court noted plaintiff's many untimely requests for reconsideration and ordered him to “cease making untimely applications for reconsideration in this case.” Id. It warned him that “[i]f he does so in the future, he may be sanctioned, including through a dismissal of this action.” Id. After defendants' motion was fully briefed, the Court stayed discovery in the action. See Order, filed February 23, 2021 (Docket # 512). After additional filings by plaintiff, the Court sua sponte issued an order to show cause why the case should not be dismissed under the Court's inherent power. See Order to Show Cause, filed March 12, 2021 (Docket # 520). The Court noted as follows:
Plaintiff's actions in this case have resulted in a variety of orders directed at curbing his misconduct and advancing the progress of the litigation. See Order, entered February 5, 2019, at 3 (Docket # 106) (directing plaintiff to cease using “foul” or “inappropriate” language); Order, entered March 1, 2019, at 1, 3 (Docket # 118) (directing plaintiff to cease making “voluminous and irrelevant filings”); Order, entered December 10, 2019, at 1 (Docket # 286) (same); Order, entered December 18, 2019, at 1-2 (Docket # 294) (directing parties not to record
conferences between the parties without all parties' consent); Order, entered May 6, 2020 (Docket # 347) (directing plaintiff to submit his proposed third amended complaint as “a single document with consecutively numbered paragraphs”); Memorandum Endorsement, entered May 21, 2020 (Docket # 358) (directing plaintiff to cease making unrelated filings); Order, entered February 5, 2021 (Docket # 497) (directing plaintiff to cease making untimely requests for reconsideration). Not only do these orders reflect improper conduct by plaintiff, plaintiff has violated many if not all of these orders and has done so on multiple occasions. Plaintiff has also filed numerous frivolous notices of appeals from non-final orders.
Accordingly, plaintiff is hereby ORDERED TO SHOW CAUSE why the Court should not dismiss this action, or impose another or additional sanction, pursuant to the Court's inherent power in light of plaintiff's vexatious conduct and/or repeated noncompliance with court orders throughout this action.Id. at 1-2.
Plaintiff subsequently filed a letter that included screenshots of emails that he alleged were produced by the defendants, see Letter from Plaintiff, filed March 13, 2021 (Docket # 521), and defendants in response filed a letter indicating that those emails were marked confidential and that filing them publicly violated the Court's Confidentiality Order, see Letter from Andrew Spears, filed March 17, 2021 (Docket # 523). Defendants' letter also stated that plaintiff had disclosed the substance of the emails in his public Twitter account. Id. at 2. In response, the Court placed plaintiff's letter under seal and directed plaintiff to file an affidavit “stating whether he has publicly disclosed - in any form, whether altered or otherwise - any information produced to him by the defendants that was designated as confidential under the Confidentiality Order.” Order, filed March 18, 2021 (Docket # 524), at 2. It also directed defendants to file an affidavit under seal explaining the basis for their knowledge about the Twitter account. Id. Defendants filed such an affidavit, attaching screenshots of plaintiff's Twitter Account. See Declaration of Andrew B. Spears, filed March 26, 2021 (Docket # 531) (under seal).
Meanwhile, plaintiff continued to file untimely requests for reconsideration in violation of the Reconsideration Bar Order, which were denied. See Order, filed March 26, 2021 (Docket # 530). He also continued to file letters concerning discovery, despite the stay of discovery, resulting in another order directing that he cease such filings “unless and until that stay is vacated, ” and warning him of dismissal. Order, filed April 1, 2021 (Docket # 539), at 1. After plaintiff made another application to Judge Schofield for injunctive relief, Judge Schofield ordered him to cease making applications unrelated to the order to show cause and defendants' motion for sanctions until those matters were resolved. See Memorandum Endorsement, filed April 12, 2021 (Docket # 542). In response, plaintiff filed a letter addressed to “Lorna” in which he instructed Judge Schofield to “[i]mmediately adopt and implement your own damn words” in certain other filings by “recusing your fucking self from this case.” Letter from Plaintiff, filed April 14, 2021 (Docket # 546), at 1. The letter concluded: “As a result, get the fuck out of this case now Bitch!” Id. at 3. Judge Schofield removed this letter from the public record and plaintiff was once again ordered to cease using such language. See Order, filed April 15, 2021 (Docket # 547).
On April 16, 2021, plaintiff filed his response to the order to show cause. See Pl. Response to OSC. Since then, plaintiff has continued to file letters, sometimes several per day, unrelated to the pending order to show cause. He has also repeatedly made untimely requests for reconsideration. See, e.g., Letters from Plaintiff, filed April 21, 2021 (Docket ## 551-52); Letter from Plaintiff, filed April 26, 2021 (Docket # 557); Letter from Plaintiff, filed April 28, 2021 (Docket # 560); Letter from Plaintiff, filed May 20, 2021 (Docket # 574); Letter from Plaintiff, filed May 24, 2021 (Docket # 576).
II. LEGAL STANDARD
Federal district courts have “inherent authority to sanction parties appearing before [them] for acting in bad faith, vexatiously, wantonly, or for oppressive reasons.” Sassower v. Field, 973 F.2d 75, 80-81 (2d Cir. 1992) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 45-46 (1991)); accord Mickle v. Morin, 297 F.3d 114, 125 (2d Cir. 2002). Accordingly, courts have “the ability to fashion an appropriate sanction for conduct which abuses the judicial process.” Chambers, 501 U.S. at 44-45. This power “can be invoked even if procedural rules exist which sanction the same conduct, ” although “when there is bad-faith conduct in the course of litigation that could be adequately sanctioned under the Rules, the court ordinarily should rely on the Rules rather than the inherent power.” Id. at 49-50. One available sanction is dismissal with prejudice of a plaintiff's claims. Id. at 44 (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962); Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507-08 (1947)). District courts may exercise this power sua sponte. Id. (citing Link, 370 U.S. at 630-31).
“Because of their very potency, inherent powers must be exercised with restraint and discretion.” Id. In the Second Circuit, sanctions under the Court's inherent power “must be based on clear evidence and must be accompanied by a high degree of specificity in the factual findings.” Mickle, 297 F.3d at 126 (punctuation omitted). Before imposing sanctions, the Court must first “afford the person it proposes to sanction due process, i.e., notice and opportunity to be heard.” Id. (punctuation omitted). “[C]lear and convincing evidence of bad faith is a prerequisite to an award of sanctions under the court's inherent power.” Yukos Cap. S.A.R.L. v. Feldman, 977 F.3d 216, 235 (2d Cir. 2020). Because dismissal is a “drastic remedy, ” it should generally “be used only when the district judge has considered lesser alternatives.” S. New England Tel. Co. v. Glob. NAPs Inc., 624 F.3d 123, 144 (2d Cir. 2010) (discussing dismissal imposed as a sanction pursuant to Fed.R.Civ.P. 37). But, dismissal “must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.” Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976).
III. DISCUSSION
Since plaintiff filed his initial complaint on April 26, 2018 (see Complaint (Docket # 2)), the undersigned and Judge Schofield have issued numerous orders aimed at curbing plaintiff's misconduct. We have already described in chronological form a history of this case that includes numerous examples of plaintiff's repeated disobedience to court orders. We next describe some of the orders plaintiff has violated, discuss those violations, and consider what is the appropriate sanction under the inherent power of this Court.
A. Plaintiff's Disobedience of Court Orders
1. Orders Prohibiting Inappropriate Language
As the case proceeded, plaintiff quickly became displeased with court rulings, expressing his dissatisfaction with foul language, a sexist expletive and other inappropriate language. As noted, in a relatively early filing, plaintiff wrote to Judge Schofield: “Get the FUCK out of this FUCKING case now by promptly recusing your FUCKING ASS to stop violating my FUCKING rights under the U.S. Constitution in it, you FUCKING BITCH!'” Letter from Plaintiff, filed January 25, 2019 (Docket # 105), at 1-2. This behavior prompted Judge Schofield to order plaintiff to cease using “foul” or other “inappropriate” language. Order, filed February 5, 2019 (Docket # 106), at 3. The order warned plaintiff that similar behavior “may result in sanctions, including dismissal of the case.” Id.
Plaintiff has since violated this Order multiple times. For example, in a recent filing, plaintiff stated to the undersigned as follows: “you actually already fucking sanctioned me without any grounds whatsoever . . . the fucking tools weren't in the fucking toolbox so to speak to allow me to get the fucking job done in the first place with respect to being able to fully comply with the terms of your 12/18/20 discovery order by your 1/15/21 deadline.” Letter from Plaintiff, filed February 24, 2021 (Docket # 513), at 8-10. The same filing referred to a court security officer as “my bitch.” Id. at 7; see also Letter from Plaintiff, filed March 13, 2021 (Docket # 521), at 21 (referring to State Senator Jessica Ramos as “that stupid bitch”). In a recent filing, plaintiff demanded that Judge Schofield “recus[e] your fucking self” and concluded: “As a result, get the fuck out of this case now Bitch!” Letter from Plaintiff, filed April 14, 2021 (Docket # 546), at 1, 3.
Plaintiff has also recently and repeatedly disobeyed the Court's order instructing him to “address any district judge or magistrate judge of this Court with a judicial title and not by the judge's first name, ” an order that informed him that failure to comply may result in sanctions. Order, filed March 18, 2019 (Docket # 137), at 1-2. This order resulted from plaintiff repeatedly sending letters to Judge Schofield and the undersigned in which he addressed the recipient by their first names. See, e.g., Docket ## 94, 96, 103-04, 132. Plaintiff's letters after that date were in compliance with the Order but, after a ruling that plaintiff viewed as particularly unfavorable to him, plaintiff violated that order. See Letter from Plaintiff, filed April 13, 2021 (Docket # 545), at 2 (referring to Judge Schofield as “the very same total trash (Lorna)”); Letter from Plaintiff, filed April 14, 2021 (Docket # 546) (addressed to “Lorna”). That the violation was a deliberate violation of the previous order was expressed in one letter addressed to “Lorna, ” which stated, “[y]our abdication as a judge in this case terminated my need to refer to you as a judge.” Letter from Plaintiff, filed April 19, 2021 (Docket # 549), at 1.
Plaintiff has repeatedly used foul or degrading language with respect to other judges as well. See, e.g., Letter from Plaintiff, filed February 24, 2021 (Docket # 513), at 9 (complaining that Judge Steven Tiscione of the Eastern District of New York had not made a dismissal order public because “he may be preoccupied with giving blowjobs around the clock to CSOs, the USMS, and others”); Letter from Plaintiff, filed March 7, 2021 (Docket # 518), at 6 (accusing Judge Stanton of lying “about material matters of fact and law that leads me to believe that he should be spending retirement in a sanitarium or cemetery instead of still plaguing the judiciary and public”). Similar language has been used as to opposing counsel. See Letter from Plaintiff, filed November 23, 2020 (Docket # 437), at 14-15 (interrogatory propounded by defendants was akin to asking “how often the defendants and their attorneys masturbated” and “whether they licked themselves as they did so”).
As noted, plaintiff was warned early in the case that any further foul or inappropriate language would result in dismissal of the case. Order, filed February 5, 2019 (Docket # 106), at 3. Yet plaintiff persisted in repeatedly violating that Order.
2. Orders Prohibiting Certain Types of Filings
Although this case is procedurally in its early stages, it has over 580 separate docket entries. The vast majority of those entries are filings made by plaintiff. He has written hundreds of letters, often dozens of pages in length, and some of them hundreds of pages. These letters typically have nothing to do with the current stage of the case, ask for relief already denied, or repeat portions of previous letters. This behavior has prompted numerous orders directing plaintiff to cease making certain filings, starting with the March 1 Order. See March 1 Order at 1, 3 (noting plaintiff's “numerous voluminous and irrelevant filings” and ordering plaintiff to “refrain from making further filings in this case, except with respect to the disposition of the claims in the Second Amended Complaint”). The plaintiff violated the March 1 Order numerous times, resulting in further orders directing compliance with the March 1 Order, as well as other orders limiting filings, none of which had any effect. See Order, filed May 16, 2019 (Docket # 197) (noting that plaintiff had violated prior order and again directing him to cease making unrelated filings or risk sanctions); Memorandum Endorsement, filed May 29, 2019 (Docket # 202) (noting additional violations of the March 1 Order); Order, filed December 10, 2019 (Docket # 286) (directing plaintiff to cease making filings unrelated to remaining claim in case); Memorandum Endorsement, filed May 21, 2020 (Docket # 358) (“Plaintiff shall make no further filings that are unrelated to the motion to amend or are expressly directed by this Court or Judge Gorenstein.”); Order, filed July 13, 2020 (Docket # 391) (noting plaintiff had violated prior orders and again directing him to cease making unrelated filings); Order, filed April 1, 2021 (Docket # 539), at 1 (“Plaintiff is hereby ordered to stop making applications in this case relating to discovery.”).
Each of these orders was violated - a fact noted in many of the orders. To give merely the most recent example of plaintiff's violations, on April 12, 2021, Judge Schofield issued an order stating in pertinent part:
[P]ending before the Court is a motion for sanctions (Dkt. Nos. 492, 496) and an order to show cause (Dkt. No. 520). Until those matters are resolved, Plaintiff is directed to make no further applications except as they relate to those specific matters. Any violation of this or any other Court order may result in sanctions including dismissal.
Memorandum Endorsement, filed April 12, 2021 (Docket # 542). Plaintiff had already submitted his response to the sanctions motion at that point (see Pl. Opp.), and the Court had directed two further filings by plaintiff in response to the order to show cause and plaintiff's violation of the Confidentiality Order (Docket ## 548, 553). Notwithstanding Judge Schofield's clear order - and an unmistakable warning that any violation would result in dismissal - plaintiff has since that time violated the order at least 25 times by filing various letters and other submissions that were not directed to the order to show cause or the motion for sanctions. See Docket ## 545-46, 549-52, 554, 556-63, 566-67, 569, 573-79.
Plaintiff has commonly filed multiple requests for reconsideration of Court orders and filed requests far outside the deadline for requests for reconsideration. See Local Civil Rule 6.3 (“a notice of motion for reconsideration or reargument of a court order determining a motion shall be served within fourteen (14) days after the entry of the Court's determination of the original motion”). The Court had repeatedly noted that requests have been untimely. See Order, filed August 10, 2020 (Docket # 418); Order, filed January 13, 2021 (Docket # 470); Order, filed February 5, 2021 (Docket # 497); Order, filed March 26, 2021 (Docket # 530). Plaintiff's persistent disregard for Local Civil Rule 6.3's requirements resulted in this Court ordering him “to cease making untimely applications for reconsideration in this case, ” warning that doing so could result in sanctions, “including through a dismissal of this action.” See Reconsideration Bar Order. The same day that the Reconsideration Bar Order was filed, plaintiff requested that it be vacated, and made yet another untimely request for reconsideration. See Letter from Plaintiff, filed February 5, 2021 (Docket # 500), at 3 (requesting reconsideration of Judge Schofield's January 13, 2021 Order). This was soon followed by an additional three untimely requests for reconsideration. See Letter from Plaintiff, filed March 1, 2021 (Docket # 517), at 4 (requesting reconsideration of this court's January 15, 2021 Orders); Letter from Plaintiff, filed March 8, 2021 (Docket # 518), at 1 (same); Letter from Plaintiff, filed March 9, 2021 (Docket # 519), at 3 (seeking reconsideration of Orders dated September 30, 2019, March 1, 2019, and August 10, 2020). Plaintiff has continued to violate the Court's clear directive by making untimely requests for reconsideration of orders issued months or years before the request. See Letter from Plaintiff, filed March 31, 2021 (Docket # 538), at 1 (3 months); Letter from Plaintiff, filed April 21, 2021 (Docket # 551), at 1 (2 years, 19 months, 8 months); Letter from Plaintiff, filed April 21, 2021 (Docket # 552), at 1 (2 years, 19 months, 9 months, 8 months); Letter from Plaintiff, filed April 26, 2021 (Docket # 556), at 1 (same); Letter from Plaintiff, filed April 26, 2021 (Docket # 557), at 1 (same); Letter from Plaintiff, filed April 28, 2021 (Docket # 560), at 1 (same); Letter from Plaintiff, filed May 20, 2021 (Docket # 574), at 1 (20 months); Letter from Plaintiff, filed May 24, 2021 (Docket # 576), at 1 (same).
3. Orders Concerning Plaintiff's Proposed Amended Complaint
As detailed above, after plaintiff sought leave to file a third amended complaint, the Court set a deadline of March 16, 2020, for plaintiff's proposed motion and instructed him to “attach a copy of the proposed amended complaint to his motion to amend.” See Order, filed March 3, 2020 (Docket # 320), at 1. After plaintiff ignored this deadline, the Court granted him an extension. See Order, filed April 10, 2020 (Docket # 339), at 1. But plaintiff did not comply with the March 3 Order, instead filing a series of documents after the newly extended deadline purporting to be his third amended complaint. See Docket ## 344-46, filed May 5, 2020. The Court rejected these documents, noting that “the proposed third amended complaint must be a single document with consecutively numbered paragraphs, ” and granting him an additional extension. Order, filed May 6, 2020 (Docket # 347). The plaintiff simply disregarded this order, instead choosing to file multiple documents totaling more than a thousand pages that he claimed constituted his third amended complaint. See Docket # 361, filed May 18, 2020; Docket # 362, filed May 26, 2020; Docket # 365, filed May 28, 2020; Docket # 398, filed July 17, 2020; Docket ## 402-03, filed July 24, 2020; Docket # 404, filed July 28, 2020. The Court ultimately denied plaintiff's motion to amend in part because he “failed to obey multiple court orders as to the format of his proposed third amended complaint.” See Order, filed July 28, 2020 (Docket # 405), at 3.
4. Order Prohibiting Recording Conversations with Opposing Counsel
After discovery began, the Court issued an order prohibiting all parties from recording conversations between the parties about the case. See Recording Bar Order. The Court prohibited such recordings because plaintiff had previously made filings indicating that he frequently recorded his conversations with City employees and that he had posted the recordings to the internet. See Unsigned Order to Show Cause, filed November 25, 2019 (Docket # 277), at *127; Unsigned Order to Show Cause, filed December 11, 2019 (Docket # 292), at *36. Accordingly, to avoid inhibiting “the free flow of communication” with opposing counsel, the Court ordered that “neither side may make an audio recording of any telephone conference between the parties without all participants' written permission.” Recording Bar Order at 1-2.
Notwithstanding the Recording Bar Order, plaintiff filed a letter in which he stated that he had made an “audio recording” of a call between himself and defendants' counsel. See Letter from Plaintiff, filed January 18, 2021 (Docket # 479), at 1. The Court thereupon ordered plaintiff to show cause why he should not be sanctioned inasmuch as such a recording was a plain violation of the Recording Bar Order. See Order to Show Cause, filed January 29, 2021 (Docket # 487).
In response to the order to show cause, plaintiff did not deny that he had made the recording without written permission or that he was unaware of the Order. Letter from Plaintiff, filed February 16, 2021 (Docket # 508), at 3, 20 (referring to plaintiff as having “possibly” recorded the conversation). Instead, he asserted that the Recording Bar Order was illegal and violated his constitutional rights. Id. at 20 (the U.S. Constitution “authorized” plaintiff to disregard the Recording Bar Order “to the extent that order illegally restricted my ability and First Amendment and Fourteenth Amendment” rights).
Thus, plaintiff intentionally violated the Recording Bar Order.
5. Order Concerning Discovery Obligations
As discovery progressed, defendants filed a motion to compel plaintiff's responses to their document requests and interrogatories, see Letter from Andrew Spears, filed November 4, 2020 (Docket # 432). After reviewing the plaintiff's objections, the Court issued a seven-page single-spaced order that exhaustively reviewed the parties' disputes, sustaining some of plaintiff's objections and overruling others. See Discovery Order. The Order gave specific instructions as to exactly which requests had to be complied with, and gave plaintiff four full weeks to respond, specifically ordering plaintiff to serve “complete responses to the interrogatories and documents requests as stated above on or before January 15, 2021.” Id. at 7. Plaintiff did not initially seek any extension of time of this deadline but - in a 14-page letter - instead made complaints about the defendants' own document production and raised other numerous irrelevant matters. See Letter from Plaintiff, filed December 22, 2020 (Docket # 453). Plaintiff also made numerous other filings during the period he was required to respond to the defendants' discovery requests, with filings containing typewritten text of nearly 100 pages in length. See Letters from Plaintiff, filed December 26-30, 2020 (Docket ## 454-56).
After making these filings, and approximately two weeks before the January 15 deadline for plaintiff to make his discovery responses, plaintiff requested an extension of time to comply with the Discovery Order, see Letter from Plaintiff, filed December 31, 2020 (Docket # 458), which the Court denied, see Memorandum Endorsement, filed January 5, 2021 (Docket # 460). After this denial, plaintiff filed a motion for a change of venue, see Letter from Plaintiff, filed January 8, 2021 (Docket # 463), and made numerous other filings, see Letters from Plaintiff, filed January 9-14, 2021 (Docket ## 464-65, 467, 469, 472).
After the deadline for plaintiff to serve his responses to defendants passed without any submission by plaintiff, defendants filed their motion seeking sanctions under Rule 37 based on plaintiff's failure to comply with the Discovery Order. See Letter from Andrew Spears, filed February 3, 2021 (Docket # 492). In his opposition to defendants' motion for sanctions, plaintiff implausibly claimed that he could not comply with the Discovery Order due to a lack of “uninterrupted Internet access.” Pl. Opp. at 4. He additionally stated that to “protect my privacy rights and those of others, ” he would not “fully comply with” the Discovery Order “because its terms impermissibly violate my rights and those of others.” Id. at 22. Plaintiff never complied with the Discovery Order.
6. Confidentiality Order
The Court issued a Confidentiality Order in this case on January 15, 2021, which prohibited parties from publicly disclosing information designated confidential without the permission of the Court. See Confidentiality Order ¶ 2. Approximately two months later, defendants filed a letter alleging that plaintiff had violated the Court's Confidentiality Order by posting material designated as confidential publicly on the docket and on Twitter, see Letter from Andrew Spears, filed March 17, 2021 (Docket # 523), and later filed an affidavit explaining the violations in detail, see Declaration of Andrew B. Spears, filed March 26, 2021 (Docket # 531) (under seal).
The Court issued an order directing plaintiff to file an affidavit responding to these allegations by March 25, 2021. See Order, filed March 18, 2021 (Docket # 524), at 2. Plaintiff failed to file any affidavit by that date. The Court issued another order instructing him to comply and warning him of sanctions. See Order, filed March 30, 2021 (Docket # 536), at 1. The Court later granted plaintiff an extension of time to file his affidavit. See Order, filed April 1, 2021 (Docket # 539).
Plaintiff eventually filed a response as required. See Declaration of Plaintiff, filed April 22, 2021 (Docket # 553). In it, he admitted to violating the Confidentiality Order, stating that
I won't deny that I performed a civic duty to uphold the public's overriding First Amendment and Fourteenth Amendment right to transparency and receive useful information leading up to the 2021 New York City government elections by publicly sharing a limited amount of information that I obtained on 2/1/21 from Mr. Spears . . . .Id. at 9. Plaintiff contended that rather than being sanctioned for such behavior, his disclosures “deserve belated praise . . . for demonstrating integrity in the face of contumacious behavior by this Court.” Id. at 10. Plaintiff closed with the following message:
To be clear, I don't mind having this case dismissed in order for the Second Circuit to then have complete jurisdiction over this case to immediately reverse orders, memo endorsements, and decisions that have been issued in this case prior to remanding this case and reassigning it . . . The sooner this case is fully in the Seconds [sic] Circuit's hands, the better. That would be a gift to me instead of a sanction.Id. at 11 (emphasis added).
In other words, plaintiff deliberately chose to violate a clear court order.
B. Assessing Plaintiff's Conduct under the Inherent Power Standard
A district court “has the inherent power to supervise and control its own proceedings and to sanction counsel or a litigant for bad-faith conduct or for disobeying the court's orders.” Mickle v. Morin, 297 F.3d 114, 125 (2d Cir. 2002). As noted, the sanction of dismissal with prejudice must be supported by “clear evidence” of misconduct and “a high degree of specificity in the factual findings, ” id. at 126, as well as a finding of “willfulness, bad faith, or reasonably serious fault.” Mitchell v. Lyons Pro. Servs., Inc., 708 F.3d 463, 467 (2d Cir. 2013) (punctuation omitted). The “district court is free to consider the full record in the case in order to select the appropriate sanction.” S. New England Tel. Co., 624 F.3d at 144 (punctuation omitted).
Here, plaintiff has repeatedly and brazenly violated court orders despite numerous warnings of the consequences. His noncompliance was plainly not inadvertent or the result of ignorance, but rather was deliberate and thus in bad faith. “Bad faith can be inferred when the actions taken are so completely without merit as to require the conclusion that they must have been undertaken for some improper purpose.” Schlaifer Nance & Co. v. Est. of Warhol, 194 F.3d 323, 338 (2d Cir. 1999) (punctuation omitted). Here, as laid out above, plaintiff has repeatedly flouted court orders, ignored deadlines, and engaged in abusive conduct.
The use of abusive language after a warning was given by the Court as described in Part III.A.1 alone would justify dismissing plaintiff's case with prejudice as a sanction pursuant to the Court's inherent power. See, e.g., Koehl v. Bernstein, 740 F.3d 860, 863 (2d Cir. 2014) (upholding dismissal of pro se complaint under court's inherent power based on plaintiff's use of “offensive, abusive, and insulting language”); Koehl v. Greene, 424 Fed.Appx. 61, 62 (2d Cir. 2011) (“The fact that Koehl was representing himself in this matter does not relieve him of his obligation to respect the dignity of the proceeding and to comply with the orders of the district court. Courts can adjudicate disputes only when the parties present reasoned arguments rather than invective-laden diatribes.”); accord Bellet v. City of Buffalo, 2011 WL 6934824, at *4 (W.D.N.Y. Dec. 30, 2011); Lynn v. Roberts, 2006 WL 2850273, at *8 (D. Kan. Oct. 4, 2006). But the foul language used by plaintiff is only a small part of plaintiff's overall abusive litigation conduct.
Plaintiff has repeatedly ignored court orders to cease making particular types of filings. See Part III.A.2. He has ignored his discovery obligations. See Part III.A.5. He has deliberately violated a specific order intended to preserve the confidentiality of materials - a violation that involved his making public material protected by a court order. See Part III.A.6. He also brazenly violated a clear order to facilitate the discovery process, which barred him from making audio recordings of opposing counsel. See Part III.A.4. He has refused to obey an order directing him to comply with Fed.R.Civ.P. 10(b) and 8(a), despite the minimal burden such compliance would entail. See Part III.A.3. This pattern of conduct demonstrates plaintiff's unwillingness to comply with even minor directives of the Court. Plaintiff justifies his conduct based on his own perception of what constitutes an order that he is prepared to obey. The Court has repeatedly warned plaintiff that the violation of its orders could result in dismissal of this case. Plaintiff's intransigence in so many different aspects of this case further demonstrates his belief that he has no obligation to abide by court instructions.
Plaintiff has often justified his refusal to comply by asserting that the Court's orders are illegal and violate his constitutional rights and are thus invalid and unenforceable. See, e.g., Pl. Opp. at 22 (“I have to not fully comply with your 12/18/20 order because its terms impermissibly violate my rights and those of others”); Letter from Plaintiff, filed February 16, 2021 (Docket # 508), at 3 (“[Y]our 12/18/19 restriction on me flagrantly violated my due process, liberty, and equal protection rights . . . This means that your 12/18/19 restriction was patently unconstitutional, null, and void for that reason.”); Pl. Response to OSC at 9 (“Judge Gorenstein was prohibited in the first place from imposing a restriction on my proposed third amended complaint”); Declaration of Plaintiff, filed April 22, 2021 (Docket # 553), at 10 (“There is no question that unlawful orders are to be immediately and consistently disregarded.”).
Putting aside the fact that none of the orders issued by this Court have been unlawful, even if plaintiff's claims of illegality had merit, that would not excuse his obligation to follow court orders. The Supreme Court has stated that a “basic proposition” of litigation is “that all orders and judgments of courts must be complied with promptly. If a person to whom a court directs an order believes that order is incorrect the remedy is to appeal, but, absent a stay, he must comply promptly with the order pending appeal.” Maness v. Meyers, 419 U.S. 449, 458 (1975). Plaintiff instead has chosen to disregard the Court's orders while insulting and abusing anyone whom he perceives as an obstacle. “The special solicitude for the difficulties that a pro se plaintiff must face does not extend to the wilful, obstinate refusal to play by the basic rules of the system upon whose very power the plaintiff is calling to vindicate his rights.” McDonald v. Head Crim. Ct. Supervisor Officer, 117 F.R.D. 55, 58 (S.D.N.Y. 1987), aff'd, 850 F.2d 121 (2d Cir. 1988).
Turning next to whether plaintiff had notice that his behavior could result in the harsh sanction of dismissal, plaintiff has been warned numerous times of the possibility of sanctions. See Docket ## 106, 137, 197, 202, 286, 391, 497, 536, 539, 542, 547. Ten of those warnings have specifically mentioned that his case may be dismissed. See Docket ## 106, 197, 202, 286, 391, 497, 536, 539, 542, 547. One of those warnings explicitly defined for plaintiff's benefit what a dismissal “with prejudice” would mean. See Order, filed July 13, 2020 (Docket # 391), at 2-3. Plaintiff has acknowledged that he is aware of the possibility of dismissal and has even stated that “I seek for this case to be dismissed, ” so that the Second Circuit will have “a clear green light to exercise complete jurisdiction over this case.” Pl. Response to OSC at 4. In another filing, plaintiff wrote that
In the event that you or Judge Schofield dismiss this case in a way that would appear at first glance to be to my detriment, it really won't be because I have long sought to metaphorically throw both [of] you in the trash that I firmly believe is the proper home for both of you as I expeditiously have the Second Circuit promptly agree with me . . . .
Letter from Plaintiff, filed February 8, 2021 (Docket # 501), at 6. While plaintiff has been aware since early in this case of the possibility of dismissal for his abusive conduct and lack of compliance, see Order, filed February 5, 2019 (Docket # 106), at 3 (warning plaintiff of dismissal), plaintiff's behavior has not changed. Furthermore, plaintiff had an opportunity to be heard on this issue after the Court issued its order to show cause, in which it described many of the prior orders that plaintiff had violated and other objectionable conduct that plaintiff has engaged in. See Order to Show Cause, filed March 12, 2021 (Docket # 520). Plaintiff's response, which fails to provide any valid excuse for his repeated disobedience to court orders, has only confirmed that dismissal is an appropriate remedy for plaintiff's conduct, even if it were not one that plaintiff in fact claims to desire. See Pl. Response to OSC at 4. “Rather than attempt to explain his inappropriate [conduct], ” plaintiff instead used his Response to put forth “further allegations of bias and corruption on the part of the” judges assigned to this case, Koehl, 424 Fed.Appx. at 63. See Pl. Response to OSC at 16 (writing that the undersigned “is cut from the same soiled and cancerous cloth as HRA's management and is a dutiful and subservient cat's paw of the NYPD” and that “Judge Schofield and Judge Gorenstein are a total disgrace to people who lawfully support and defend First Amendment and Fourteenth Amendment rights in public forums in New York City”).
Any sanction less drastic than dismissal would be insufficient to curb plaintiff's misconduct. As defendants point out, see Letter from Andrew Spears, filed February 3, 2021 (Docket # 492), at 3, the Discovery Order plaintiff has entirely refused to comply with encompasses essentially the entirety of his case. Thus, a preclusion order based on his lack of compliance with that Order would have the same effect as dismissing his claims. Moreover, given plaintiff's repeated failure to comply with prior Court orders, yet another order directed at plaintiff obviously would do nothing to induce his compliance. Plaintiff has already stated his belief that orders issued by this Court do not constitute “what actually is court” and thus he sees himself as having no obligation to obey them. Pl. Opp. at 22. He has demonstrated this belief over and over again in this case. See Part III.A above. Any fine levied against plaintiff would similarly be inadequate given his repeated violations (as well as the fact that plaintiff is proceeding in forma pauperis). The inefficacy of lesser sanctions has only been confirmed by plaintiff's continued conduct in this case. He recently filed yet another unauthorized letter in which he stated that “I'll focus my time and energies away from this case until I'm able to have the Second Circuit immediately and decisively rectify how you and Judge Schofield have conducted this case . . . .” Letter from Plaintiff, filed May 1, 2021 (Docket # 565), at 4; accord Letter from Plaintiff, filed February 8, 2021 (Docket # 501), at 6. Plaintiff has thus repeatedly admitted that he has no intention of complying with court orders or attempting to move this case forward, because of his belief that all orders in the district court will be overturned in due course by the Second Circuit.
Dismissing plaintiff's claims may also deter plaintiff from similar abuses in other cases he has filed and deter other litigants from engaging in similar conduct. See Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976) (“[T]he most severe in the spectrum of sanctions . . . must be available to the district court in appropriate cases . . . to deter those who might be tempted to such conduct in the absence of such a deterrent.”).
The plaintiff's case should also be dismissed as a sanction under Fed.R.Civ.P. 37(b)(2)(A), for his failure to abide by the Court's Discovery Order, and under Fed.R.Civ.P. 41(b), for his persistent failure to comply with court orders and his “pattern of dilatory tactics, ” as evidenced by filing “groundless motions, repeated requests for continuances, ” and “persistent late filings of court ordered papers.” Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982). Rather than analyze plaintiff's conduct under those separate standards, the Court notes that they overlap substantially with the analysis for sanctioning a party under the inherent power standard. See, e.g., Daval Steel Prods. v. M/V Fakredine, 951 F.2d 1357, 1366 (2d Cir. 1991) (describing Rule 37 standard); Lyell, 682 F.2d at 42-43 (describing Rule 41 standard). But, “the inherent power of a court can be invoked even if procedural rules exist which sanction the same conduct.” Chambers v. NASCO, Inc., 501 U.S. 32, 49 (1991). We have focused our discussion on the inherent power of the Court because of the breadth of misconduct at issue and because the conduct at issue “abuses the judicial process.” Id. at 45. Nonetheless, dismissal is appropriate under Rule 37(b)(2)(A) and Rule 41(b) as well.
In sum, the Court finds that plaintiff has litigated this case in bad faith, that he had notice that his abusive conduct might lead to dismissal, that he had an opportunity to be heard on the proposed sanction of dismissal (Docket ## 520, 524), and that no sanction short of dismissal would succeed in curbing his misconduct. “[A]ll litigants, including pro ses, have an obligation to comply with court orders. When they flout that obligation they, like all litigants, must suffer the consequences of their actions.” McDonald v. Head Crim. Ct. Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988). Thus, this case should be dismissed with prejudice.
IV. CONCLUSION
For the reasons set forth above, the complaint should be dismissed with prejudice.
Defendants are directed to email a copy of this Report and Recommendation to plaintiff.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Schofield. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, PC, 596 F.3d 84, 92 (2d Cir. 2010).