Wellington v. Foland
| Decision Date | 24 July 2019 |
| Docket Number | 3:19-CV-0615 (GTS/ML) |
| Parties | KENNARD D. WELLINGTON, Plaintiff, v. PATROLMAN FOLAND; AARON SMITH; BRIAN BAILEY; MICHAEL HELPER; BRIAN J. SHAVER; NICHOLAS CRANDELL; BRENT DODGE; PATROLMAN PEETS; PATROLMAN GAVIN; PTL JOSHUA BILEK; DAVID WILLIAMS; GREGORY P. THOMAS; EDDY DOUGLAS; and DOMINIC H. PEERS, Defendants. |
| Court | U.S. District Court — Northern District of New York |
APPEARANCES:
KENNARD D. WELLINGTON
Pro Se
LILY A. OCKERT, ESQ.
The Clerk has sent this pro se complaint together with an application to proceed in forma pauperis filed by Kennard D. Wellington ("Plaintiff") to the Court for review. (Dkt. Nos. 1 and 2.) For the reasons discussed below, I grant Plaintiff's in forma pauperis application (Dkt. No. 2), recommend that certain of his claims be accepted for filing, that certain of his claims be dismissed with leave to amend, that certain of his claims be dismissed without leave to amend, and that the action be consolidated with another suit that is currently pending before this Court.
On or about March 26, 2019, Plaintiff commenced an action before the Supreme Court of New York, County of Broome, in which he alleged that his civil rights were violated in connection with two traffic stops and subsequent arrests that occurred on October 25, 2018, and November 11, 2018. See generally Wellington v. Foland et al., 19-CV-0457 (GTS/ML) (N.D.N.Y. removed 04/18/2019) ("Wellington I"). Wellington I was removed by the defendants in that case to this Court on April 18, 2019. (See id.) A motion for judgment on pleadings with regard to Defendant Gregory Thomas is currently pending in that action. (See id., Dkt. Nos. 7, 9, 11.)
On or about May 23, 2019, Plaintiff commenced the present action ("Wellington II") by the filing of a Complaint, which was accompanied by a motion to proceed without prepayment of fees. (Dkt. Nos. 1, 2.)
Although most of his Complaint is rambling, far from clear, and contains virtually no factual detail, construed liberally, the gravamen of Plaintiff's Complaint is that he is a "freeborn sovereign individual" and his constitutional rights were violated by Johnson City police officers Patrolman Foland, Aaron Smith, Brian Bailey, Michael Helper, Brian Shaver, Nicholas Crandell, Brent Dodge, Patrolman Peets, Patrolman Gavin, Joshua Bilek, David Williams, Eddy Douglas, and Dominic H. Peers; and Johnson City Village Judge Gregory Thomas (collectively "Defendants"). (See generally Dkt. No. 1.) However, Plaintiff's Complaint fails to disclose the role played by each of the named defendants and the circumstances giving rise to his claims.Plaintiff's Complaint is six pages long and includes an additional 106 pages of exhibits, none of which have been identified or referenced in his Complaint. (Id.)
Although it is far from evident, based on a review of Plaintiff's Complaint and attached documents, it appears that his claims center around two traffic stops that resulted in his arrests on October 25, 2018, and November 11, 2018. (Id.) Plaintiff alleges that he was arrested on October 25, 2018, and as a result of this arrest his vehicle was towed, he posted bail in the amount of $41.00, and was back. (Id. at 3.) In addition, Plaintiff alleges that he was arrested on November 11, 2018, when he was "traveling in [his] personal vehicle on state of New York public highway." (Id.) Plaintiff alleges that during the course of this arrest officers deployed a taser four times and pepper sprayed him. (Id.) Plaintiff alleges that as a result of this arrest he was released on his own recognizance. (Id.)
Plaintiff appears to assert the following six claims: (1) that he was deprived of his "right-to-travel" in violation of the Fifth Amendment and 42 U.S.C. § 1983 ("First Claim"); (2) that Defendants used excessive force in affecting his arrests in violation of the Fourth Amendment and 42 U.S.C. § 1983 ("Second Claim"); (3) that Defendants failed to intervene during the use of excessive force in violation of the Fourth Amendment and 42 U.S.C. § 1983 ("Third Claim"); (4) that Defendants discriminated against him ("Fourth Claim"); (5) that Defendants conducted an illegal search and seizure in violation of the Fourth Amendment and 42 U.S.C. § 1983 ("Fifth Claim"); and (6) that Defendants set excessive bail in violation of the Eighth Amendment and 42 U.S.C. § 1983 ("Sixth Claim"). (Id. at 2.) As relief, Defendant seeks twenty million dollars ($20,000,000.00). (Id. at 4-5.)
In an "exhibit" to his Complaint, Plaintiff attached another complaint with a caption in the Supreme Court of the State of New York, County of Queens ("Exhibit Complaint") with allegations relating to the same events giving rise to this action. (Dkt. No. 1, Attach. 1, at 3-25.)1 The Exhibit Complaint is also rambling and far from clear, but construed liberally, it alleges that on November 14, 2018, while released on bail at a court appearance, Plaintiff was "remanded" in lieu of $5,000.00 cash or $10,000.00 bond because he "straddled the bar and the judge and the court took [his] stance as aggressive" and he was "ordered to take a 730 [competency] exam." (Id. at 9-10.) In addition, the Exhibit Complaint alleges that "[o]n the 14th of November Plaintiff asked for counsel of his own choice, as is his right as set forth in the 6th Amendment of our U.S. Constitution[;] not only did Gregory P. Thomas order me incompetent counsel[,] he hadn't yet received his bar card." (Id. at 13.) The Exhibit Complaint appears to assert the following six additional causes of action: (1) Plaintiff was subjected to cruel and unusual punishment in violation of the Eighth Amendment and 42 U.S.C. § 1983 ("Seventh Claim") by requiring him to take a competency exam; (2) he was deprived of his right to counsel of his choosing in violation of the Sixth Amendment and 42 U.S.C. § 1983 ("Eighth Claim"); (3) his due process rights were violated because he was not read Miranda warnings after any of his arrests in violation of the Fifth and Fourteenth Amendments and 42 U.S.C. § 1983 ("Ninth Claim"); (4) his right to freedom of association was violated because he was appointed counsel not of his choosing inviolation of the First Amendment and 42 U.S.C. § 1983 ("Tenth Claim"); (5) his right to counsel of his choice was "encroach[ed] in violation of the Ninth and Tenth Amendments and 42 U.S.C. § 1983 ("Eleventh Claim"); and (6) conspiracy to violate his rights pursuant to 42 U.S.C. § 1985 ("Twelfth Claim"). (Id. at 3-25.)2 The Exhibit Complaint also contains a "Fee Schedule Contract" that purports to be a "legally binding contract" and alleges that "failure to sign this contract does not void this contract." (Id. at 22-24.)
For a more complete statement of Plaintiff's claims, refer to the Complaint. (Dkt. No. 1.)
When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $400, 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).3 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.4
"Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . 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).
In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The requirement that a plaintiff "show" that he or she is entitled to relief means that a complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 [2007]). Iqbal, 556 U.S. at 679 (internal citation and punctuation omitted).
"In reviewing a complaint . . . the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, Iqbal, 556 U.S. at 678.
Courts are "obligated to construe a pro se complaint liberally." Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam) (). "[E]xtreme caution should be...
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