Opinion
19-CV-2823 (AMD) (LB)
05-22-2019
CHARMANE SMITH, Plaintiff, v. ZEBRA TECHNOLOGIES CORP. and MOTOROLA, INC., Defendants.
MEMORANDUM & ORDER ANN M. DONNELLY, United States District Judge:
On May 10, 2019, the pro se plaintiff, Charmane Smith, commenced this action alleging product liability claims and claims under the Consumer Protection Act, 18 U.S.C. § 2520. (ECF No. 1.) The plaintiff also filed a one-page motion for summary judgment. (ECF No. 3.) The plaintiff's request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 (ECF No. 2) is granted solely for the purposes of this order. The plaintiff's complaint is dismissed for failure to state a claim for relief under 28 U.S.C. § 1915(e)(2)(B)(ii), and the plaintiff's motion for summary judgment is denied as moot.
BACKGROUND
The plaintiff alleges that "[t]he defendants' payment processing equipment, software and/or telephone devices enable tracking, manipulation, alteration, interference with, and/or potential cloning of personal information, availability/accessibility, spending limits, pricing and sales discounts (covert, unauthorized, and/or denial of the benefit) through point-of-sale transactions." (ECF No. 1 at 2.) The plaintiff brings claims of "wire, oral, and electronic interception" under the Consumer Protection Act, 18 U.S.C. § 2520, and product liability. (Id.) She seeks $10 million in damages. (Id.)
STANDARD OF REVIEW
A federal court must "liberally construe[ ]" pleadings by pro se parties, and interpret the complaint to raise the strongest argument it suggests. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, a complaint still 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 (2007). A claim is plausible on its face if it "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). Although all allegations contained in a complaint are assumed to be true, this tenet is "inapplicable to legal conclusions." Id. at 678. 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).
A district court must dismiss an in forma pauperis action when the action "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
DISCUSSION
The complaint does not state a plausible claim under any standard. It includes a one-sentence "statement of facts," which is a list of claims without any factual allegations about how the defendants wronged her or whether she was injured. Thus, the complaint is dismissed for failure to state a claim. 28 U.S.C. § 1915(e)(2)(B).
While pro se plaintiffs are ordinarily granted leave to amend "at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated," Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010), leave to amend "may properly be denied if the amendment would be futile," Grullon v. City of New Haven, 720 F.3d 133, 140 (2d Cir. 2013). The plaintiff lists state and federal laws, but asserts no facts that suggest a valid claim. Even if she had stated a claim, there are no facts demonstrating that any of the events about which she complains occurred in this district.
The plaintiff has an extensive litigation history; she has filed over 200 cases in federal district and appellate courts. She also filed two other complaints in this Court: Smith v. Ingenico Group, No. 19-CV-2607 (E.D.N.Y. filed Apr. 29, 2019) which is nearly identical to this complaint, and Smith v. Qosmedix, No. 19-CV-2608 (E.D.N.Y. filed May 1, 2019). Both complaints were dismissed. She is subject to filing injunctions in the following courts:
See Federal Judiciary's Public Access to Court Electronic Records ("PACER") Service. https://pcl.uscourts.gov (last visited May 20, 2019).
• Smith v. United States, No. 4:01-CV-450-Y (N.D.Tex. May 30, 2001) (enjoining plaintiff from filing cases in the Northern District of Texas without prior judicial permission);
• Smith v. Dell, Inc., No. 06-2496-B/V, 2007 WL 3232037 (W.D. Tenn. Oct. 31, 2007) (enjoining plaintiff from filing actions in forma pauperis);
• Smith v. Spitzer, 531 F.Supp.2d 360 (N.D.N.Y. 2008) (enjoining plaintiff from filing actions in the Northern District of New York without obtaining counsel or prior court approval);
• Smith v. Chase Bank, No. 11 Civ. 2270 (S.D.N.Y. Dec. 2, 2016) (enjoining plaintiff from filing any future in forma pauperis action in the Southern District of New York without first obtaining court permission).
This Court will not tolerate frivolous, repetitive, and vexatious litigation. I have warned the plaintiff that she may be subject to a filing injunction in this Court if she continues to file similar actions. Lau v. Meddaugh, 229 F.3d 121, 123 (2d Cir. 2000) (per curiam); see also Iwachiw v. N.Y. State Dep't of Motor Vehicles, 396 F.3d 525, 538 (2d Cir. 2005) (per curiam); see also Smith v. Ingenico Group, No. 19-CV-2607 (E.D.N.Y. closed May 15, 2019) (dismissing case for failure to state a claim and notifying the plaintiff that she may be subject to a filing injunction in this Court if she continues to file similar actions); Smith v. Qosmedix, No. 19-CV-2608 (E.D.N.Y. closed May 15, 2019) (same). Because it is not clear that she filed this action after that warning, I do not impose a filing injunction at this time. Future similar filings will result in an injunction.
CONCLUSION
Accordingly, the complaint, filed in forma pauperis, is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B), and the plaintiff's motion for summary judgment is denied as moot. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is respectfully directed to enter judgment and close this action.
SO ORDERED.
s/Ann M. Donnelly
Ann M. Donnelly
United States District Judge Dated: May 22, 2019
Brooklyn, New York