Polinski v. Oneida Cnty. Sheriff

• Decision Date: 17 April 2023
• Docket Number: 6:23-CV-0316 (DNH/ML)
• Parties: PETER JOSEPH POLINSKI, Plaintiff, v. ONEIDA COUNTY SHERIFF, in his official and individual capacities; COMPTROLLER OF CITY OF UTICA, William Moorehouse; KEYBANK OF THE CITY OF UTICA; and CITY OF UTICA, Defendants.
• Court: U.S. District Court — Northern District of New York

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PETER JOSEPH POLINSKI, Plaintiff, v. ONEIDA COUNTY SHERIFF, in his official and individual capacities; COMPTROLLER OF CITY OF UTICA, William Moorehouse; KEYBANK OF THE CITY OF UTICA; and CITY OF UTICA, Defendants.

No. 6:23-CV-0316 (DNH/ML)

United States District Court, N.D. New York

April 17, 2023

PETER JOSEPH POLINSKI Plaintiff, Pro Se

CORPORATION COUNSEL - CITY OF UTICA Counsel for Defendants Comptroller of the City of Utica and City of Utica ZACHARY OREN, ESQ. Assistant Corp. Counsel

ORDER AND REPORT-RECOMMENDATION

MIROSLAV LOVRIC, UNITED STATES MAGISTRATE JUDGE

The Clerk has sent a pro se amended complaint in the above captioned action together with an application to proceed in forma pauperis filed by Peter Joseph Polinski (“Plaintiff”) to the Court for review. (Dkt. Nos. 2, 4.) For the reasons discussed below, I grant Plaintiff's in forma pauperis application and recommend that Plaintiff's Amended Complaint be dismissed in its entirety. (Dkt. Nos. 2, 4.)

I. BACKGROUND

On March 9, 2023, Plaintiff commenced this action by filing a pro se Complaint against defendants Oneida County Sheriff, Comptroller of City of Utica, KeyBank of the City of Utica, and City of Utica (collectively “Defendants”). (Dkt. No. 1.) On March 17, 2023, Plaintiff filed an amended complaint as of right, which supersedes his original complaint. (See Dkt. No. 4 [Am. Compl.]); Int'l Controls Corp v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977) (“It is well established that an amended complaint ordinarily supersedes the original, and renders it of no legal effect.”). Thus, presently before the undersigned for review pursuant to 28 U.S.C. § 1915, is Plaintiff's Amended Complaint. (Dkt. No. 4.)

The Amended Complaint is thirty-one pages with an attached exhibit that is ninety-five pages in length. (See generally Dkt. No. 4.) The Amended Complaint and its attachment are predominantly a series of incoherent text, devoid of factual assertions. (Id.)

Although not clear from the Amended Complaint, Plaintiff appears to allege that on October 31, 2022, he provided checks to “THE CITY OF UTICA FINANCE DEPARTMENT OFFICE OF THE COMPTROLLER” but that those payments were “fraudulently transferred by [Defendants] the Comptroller of Utica and Key Bank.” (Dkt. No. 4 at 8.)

The Amended Complaint alleges that on March 1, 2023, two Oneida County Sheriffs went to Plaintiff's parents' home, where Plaintiff does not live. (Id.) Plaintiff alleges that, on March 1, 2023, he explained to an Oneida County Sheriff that “the instruments were legal tender and that the instruments needed to go to the Treasury Window” and “the authority behind the negotiable instrument law.” (Dkt. No. 4 at 9.)

Plaintiff alleges that on March 7, 2023, his father (Peter Anthony Polinski) received a phone call (from an unspecified individual) “menacing and harassing him with threats of violence, to kidnap his son with an unlawful arrest.” (Dkt. No. 4 at 8-9.)

Plaintiff's Amended Complaint lists numerous statutes, contains biblical references, and refers to, inter alia, the Magna Carta, the 1620 Mayflower Compact, and the 1689 English bill of rights. (See generally Dkt. No. 4; Dkt. No. 4 at 7.) Notwithstanding, the Amended Complaint references the following thirteen “counts” that appear to be Plaintiff's claims: (1) a claim that Defendants violated Plaintiff's constitutional rights under color of law pursuant to 42 U.S.C. § 1983; (2) a claim that Defendants conspired to interfere with Plaintiff's civil rights pursuant to 42 U.S.C. § 1985; (3) a claim of conspiracy against Defendants pursuant to 18 U.S.C. § 241; (4) a claim of deprivation of rights under color of law against Defendants pursuant to 18 U.S.C. § 242; (5) a claim that Defendants interfered with commerce pursuant to 18 U.S.C. § 1951; (6) a claim that Defendants conspired to commit an offense or defraud the United States pursuant to 18 U.S.C. § 371; (7) a claim that Defendants refused to pay as evidence of embezzlement pursuant to 18 U.S.C. § 3487; (8) a claim that Defendants committed the misdemeanor of menacing in the third degree in violation of N.Y. Penal Law § 120.15; (9) a claim that Defendants violated Plaintiff's rights pursuant to 18 U.S.C. 1961; (10) a claim that Defendants violated Plaintiff's rights pursuant to 18 U.S.C. § 875; (11) a claim that Defendants violated Plaintiff's rights pursuant to 18 U.S.C. § 471; (12) a claim that Defendants violated Plaintiff's rights pursuant to 18 U.S.C. § 641; and (13) a claim that Defendants violated Plaintiff's rights pursuant to 18 U.S.C. § 115. (Dkt. No. 4 at 25-27.)

As relief, Plaintiff seeks damages in the amount of $39,000,000.00 from each Defendant for a total of $195,000,000.00 in compensatory damages, treble punitive damages, a “permanent injunction and restraining order . . . requiring Defendants to adopt appropriate policies related to the hiring and supervision of its police officers . . . who are . . . depriving [Plaintiff] of his Constitutional Rights”; and such other relief as may be just and proper. (Dkt. No. 4 at 29-30.)

Plaintiff also filed a motion for leave to proceed in forma pauperis. (Dkt. No. 2.)

II. PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS

“When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $402, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized, however, to permit a litigant to proceed in forma pauperis status if a party “is unable to pay” the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1).^[1] After reviewing Plaintiff's in forma pauperis application (Dkt. No. 2), the Court finds that Plaintiff meets this standard. Therefore, Plaintiff's application to proceed in forma pauperis is granted.^[2]

III. LEGAL STANDARD FOR REVIEW OF THE COMPLAINT

Although the court has a duty to show liberality toward pro se litigants, and must use extreme caution in ordering sua sponte dismissal of a pro se complaint before the adverse party or parties have been served and have had an opportunity to respond, the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed, notwithstanding payment of the filing fee. Fitzgerald v. First East Seventh Street Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000) (a district court “may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee[.]”); see also Pflaum v. Town of Stuyvesant, Columbia Cnty., N.Y., 11-CV-0335, 2016 WL 865296, at *1, n.2 (N.D.N.Y. Mar. 2, 2016) (Suddaby, C.J.) (finding that the Court had the power to address and dismiss additional theories of the plaintiff's retaliation claim sua sponte because those theories were so lacking in arguable merit as to be frivolous). In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505 F.2d 802, 804 (8th Cir. 1974).

IV. ANALYSIS

In addressing the sufficiency of a plaintiff's complaint, the court must construe his pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Having reviewed Plaintiff's Amended Complaint with this principle in mind, I recommend that all causes of action be dismissed.

Plaintiff's Amended Complaint is nearly impossible to decipher. (See generally Dkt. No. 4.) The Amended Complaint is replete with pseudo-legal jargon of the kind typically used by litigants who affiliate themselves with the sovereign citizen movement. (Id.) The sovereign citizen movement is “a loosely affiliated group who believe that the state and federal governments lack constitutional legitimacy and therefore have no authority to regulate their behavior; the FBI has labeled the sovereign citizens a domestic terrorist group.” United States v. Ulloa, 511 Fed.Appx. 105, 107 (2d Cir. 2013).

I recommend dismissal of Plaintiff's Amended Complaint because it is frivolous. By way of example, the Amended Complaint states the following:

By the grace of God almighty, and through the supremacy clause of the Constitution (Article VI Clause 2 & 3) and the below-listed treaties of supreme law, it is I alone, who shall determine my status, standing, honor and jurisdiction. I hereby invoke and stand upon all my natural rights, given by my God, which are written in the documents listed below. These, and all others, are universally known as supreme law of the land:

(Dkt. No. 4 at 7.)

“People who identify as sovereign citizens use maneuvers like [a] notary presentment to avoid paying debts or to collect debts that are not actually owed.” Balash-Ioannidou v Contour Mortg. Corp., 22-CV-4506, 2022 WL 3358082, at *2 (E.D.N.Y. Aug. 15, 2022) (citing Kesick v. Ulloa, 10-CV-1248, 2012 WL 2873364, at *3 (N.D.N.Y. July 12, 2012) (McAvoy, J.) (the plaintiff filed fraudulent papers entitled “notary presentment” with the Town of Ulster Justice Court falsely claiming that a Justice of the Ulster Town Court owed him the sum of $176,000,000.00); McKay v. U.S. Bank, 14-CV-0872, 2015 WL 5657110, at *2 (M.D. Ala. Sept. 24, 2015) (denying plaintiffs' request for declaratory judgment that the defendant was not the real mortgage holder and to quiet title based upon their mailing of a “notarial presentment” and a “notarial notice of Dishonor” to the defendant bank)); see Muhammad v. Smith, 13-CV-0760, 2014 WL 3670609, at *2 (N.D.N.Y. July 23, 2014) (D'Agostino, J.) (“Theories presented by redemptionist and sovereign citizen adherents have not only been rejected by the courts...