McDaniel v. The People of the City of New York

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK CURTIS MCDANIEL, Plaintiff, 20-CV-0254 (CM) -against- ORDER THE PEOPLE OF THE STATE OF NEW YORK, et al., Defendants.

COLLEEN McMAHON, Chief United States District Judge: Plaintiff, who is proceeding pro se, brings this action alleging that Defendants violated his rights. Plaintiff, who is currently detained at Rikers Island,did not submit an application to proceed in forma pauperis(IFP) and prisoner authorization, nor did he pay the filing fee.

For the reasons set forth in this order, the Court directs Plaintiff to show cause why this action should not be dismissed as duplicative of McDaniel v. People of the State of New York, ECF 1:19-CV-3526, 1.1 DISCUSSION Plaintiff has filed a53-page handwritten complaint, raising claims of false arrest, malicious prosecution, and use of excessive force, and names as Defendants: (1) “The People of the City of New York”; (2) Judges A. Drysdale,Ann D. Thompson, and Richard Tsai; (3) Assistant District Attorney (ADA) C. Rivet; (4) Detective J. Quitty; (5) Police Officers Kenneth Faulkner, Daniel Howell, and two John Doe officer-defendants; and (6) Emergency Service Unit 1This action also may be duplicative of McDaniel v. People of theState of New York, ECF 1:19-CV-8166, 1. In that action, after Plaintiff submitted several letters attempting to amend his amended complaint, the Court granted Plaintiff leave to file asecond amended complaint.

McDaniel, ECF 1:19-CV-8166, 11(issued on Nov. 22, 2019). As ofthe date of this order, Plaintiff has not filed asecond amended complaint inthat action.

Officers (ESUO)Patrick Fanning,Bobby Wilkins, and three John Doe ESUO defendants. He seeks money damages.

In addition to this action, Plaintiff has two other actions in this Court where he names many of the same individuals and raises some ofthe same allegations. See McDaniel v. People of the State of New York, ECF 1:19-CV-8166, 1; McDaniel, ECF 1:19-CV-3526, 1. As mentioned above, in the 19-CV-8166 matter, the Court granted Plaintiff leave to file a second amended complaint. ECF 1:19-CV-8166, 11. And in the 19-CV-3526 matter, Magistrate Judge Cott stayed the action pending an investigation by the Civilian Complaint Review Board.2 ECF 1:19-CV- 3526, 30.

Because the Court believes that this action may be a duplicate submission, and no useful purpose would be served by litigating this action and the19-CV-3526 action, the Court directs Plaintiff within 30 days of the dateof this order to show cause why this action should not be dismissed as duplicative of the19-CV-3526action. A declaration form is attached to this order.

Should Plaintiff wish to proceed with this new action, he should also submit the attached IFP application and prisoner authorization. If Plaintiff submits an IFP application, and the Court grants it, he shall be charged the $350.00 filing fee. See28 U.S.C. § 1915(a)(2), (b).Should the action be dismissed as duplicative, the Clerk of Court shall not charge Plaintiff the $350.00 filing

2 In addition to these two actions, Plaintiff has also filed three other actions. See McDaniel v. People of the City of New York, ECF 1:19-CV-11265, 2 (filed Dec. 6, 2019, and brought against police officers, ADAs, and judges); McDaniel v. John Doe Corr. Officer, ECF 1:19-CV-8735, 2 (filed Sept. 20, 2019, and brought against correction officers regarding an alleged failure to protect); McDaniel v. People of the State of New York, ECF 1:19-CV-7680, 1 (filed on Aug. 14, 2019, and brought against police officers, ADAs, and some of the same judges named here). fee for this action, and the Warden or Superintendent having custody of Plaintiff shall not deduct or encumber funds from Plaintiff's prison trust account for this lawsuit.

Should Plaintiff fail to respond within 30 days, the Court will dismiss the action without prejudice, and he will not be charged the $350.00 filing fee.

CONCLUSION The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket.

The Court directs Plaintiff to show cause why this action should not be dismissed as duplicative of his two pending cases, McDaniel v. People of the State of New York, ECF 1:19- CV-8166, 1, and McDaniel v. People of the State of New York, ECF 1:19-CV-3526, 1. Attached to this order are: a declaration form, an IFP application, and a prisoner authorization.

The Court certifies under 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 1s denied for the purpose of an appeal. Cf Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).

SO ORDERED.

Dated: February 3, 2020 wh New York, New York hie. Iu hich Chief United States District Judge UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Write the first and last name of each plaintiff or petitioner.

Case No. CV -against-

Write the first and last name of each defendant or respondent.

DECLARATION

Briefly explain above the purpose of the declaration, for example, “in Opposition to Defendant’s Motion for Summary Judgment,” or “in Response to Order to Show Cause.”

I, , declare under penalty of perjury that the following facts are true and correct: In the space below, describe any facts that are relevant to the motion or that respond to a court order. You may also refer to and attach any relevant documents.

Attach additional pages and documents if necessary.

Executed on (date) Signature Name Prison Identification # (if incarcerated) Address City State Zip Code Telephone Number (if available) E-mail Address (if available) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK (full name of the plaintiff or petitioner applying (each person must submit a separate application)) CV ( ) ( ) -against- (Provide docket number, if available; if filing this with your complaint, you will not yet have a docket number.) (full name(s) of the defendant(s)/respondent(s)) APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS I am a plaintiff/petitioner in this case and declare that I am unable to pay the costs of these proceedings and I believe that I am entitled to the relief requested in this action. In support of this application to proceed in forma pauperis (IFP) (without prepaying fees or costs), I declare that the responses below are true: 1. Are you incarcerated? Yes No (If “No,” go to Question 2.)

I am being held at: Do you receive any payment from this institution? Yes No Monthly amount: If I am a prisoner, see 28 U.S.C. § 1915(h), I have attached to this document a “Prisoner Authorization” directing the facility where I am incarcerated to deduct the filing fee from my account in installments and to send to the Court certified copies of my account statements for the past six months. See 28 U.S.C. § 1915(a)(2), (b). I understand that this means that I will be required to pay the full filing fee.

2. Are you presently employed? Yes No If “yes,” my employer’s name and address are: Gross monthly pay or wages: If “no,” what was your last date of employment?

Gross monthly wages at the time: 3. In addition to your income stated above (which you should not repeat here), have you or anyone else living at the same residence as you received more than $200 in the past 12 months from any of the following sources? Check all that apply.

(a) Business, profession, or other self-employment Yes No (b) Rent payments, interest, or dividends Yes No (c) Pension, annuity, or life insurance payments L] Yes [] No (d) Disability or worker’s compensation payments L] Yes [] No (e) Gifts or inheritances L] Yes [] No (f) Any other public benefits (unemployment, social security, C Yes C No food stamps, veteran’s, etc.) (g) Any other sources L] Yes [] No If you answered “Yes” to any question above, describe below or on separate pages each source of money and state the amount that you received and what you expect to receive in the future.

If you answered “No” to all of the questions above, explain how you are paying your expenses: 4. How much money do you have in cash or in a checking, savings, or inmate account?

5. Do you own any automobile, real estate, stock, bond, security, trust, jewelry, art work, or other financial instrument or thing of value, including any item of value held in someone else’s name? If so, describe the property and its approximate value: 6. Do you have any housing, transportation, utilities, or loan payments, or other regular monthly expenses? If so, describe and provide the amount of the monthly expense: 7. List all people who are dependent on you for support, your relationship with each person, and how much you contribute to their support (only provide initials for minors under 18): 8. Do you have any debts or financial obligations not described above? If so, describe the amounts owed and to whom they are payable: Declaration: I declare under penalty of perjury that the above information is true. I understand that a false statement may result in a dismissal of my claims.

Dated Signature Name (Last, First, MI) Prison Identification # {if incarcerated) Address City State Zip Code Telephone Number E-mail Address (if available) IFP Application, page 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK (full name of the plaintiff/petitioner) CV C JC) -against- (Provide docket number, if available; if filing this with your complaint, you will not yet have a docket number.) (full name(s) of the defendant(s)/respondent(s)) PRISONER AUTHORIZATION By signing below, I acknowledge that: (1) because I filed this action as a prisoner,! I am required by statute (28 U.S.C. § 1915) to pay the full filing fees for this case, even if 1am granted the right to proceed in forma pauperis (IFP), that is, without prepayment of fees; (2) the full $350 filing fee will be deducted in installments from my prison account, even if my case is dismissed or I voluntarily withdraw it.

I authorize the agency holding me in custody to: (1) send a certified copy of my prison trust fund account statement for the past six months (from my current institution or any institution in which I was incarcerated during the past six months); (2) calculate the amounts specified by 28 U.S.C. § 1915(b), deduct those amounts from my prison trust fund, and disburse those amounts to the Court.

This authorization applies to any agency into whose custody I may be transferred and to any other district court to which my case may be transferred.

Date Signature Name (Last, First, MI) Prison Identification # Address City State Zip Code “prisoner” is “any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program.” 28 U.S.C. § 1915(h).