CUNNINGHAM v. SILVERSTEIN PROPERTIES-INC. ( 2024 )

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK BENJAMIN CUNNINGHAM, Plaintiff, 24-CV-2304 (LTS) -against- ORDER OF DISMISSAL UNDER 28 U.S.C. § 1651 SILVERSTEIN PROPERTIES-INC., et al., Defendants. LAURA TAYLOR SWAIN, Chief United States District Judge: On August 2, 2016, because of Plaintiff’s “unauthorized, repetitive, and frivolous litigation,” District Judge Deborah A. Batts issued a pre-filing injunction barring Plaintiff from filing “any additional papers or lawsuits without permission of the Court.” See Cunningham v. USMS, No. 05-CV-10169, 236 (DAB), (S.D.N.Y. Aug. 2, 2016), appeal dismissed, No. 16-3222 (2d Cir. Dec. 27, 2016). Plaintiff has also been the subject of additional filing bars.1 Plaintiff originally filed this new action pro se in the United States District Court for the District of New Jersey, which transferred it here. Plaintiff alleges that on November 12, 2020, he 1 In May 2018, the United States Court of Appeals for the Second Circuit imposed a “leave-to-file sanction.” Cunningham v. Bordley, No. 17-2435 (2d Cir. May 10, 2018). In October 2018, then-Chief Judge McMahon enjoined Cunningham from continuing his repeated litigation of claims arising from an incident in 2005, and restated Judge Batts’s injunction, noting that failure to comply could result in sanctions and monetary penalties. In re Benjamin Cunningham, No. 17-CV-7809, 20 (S.D.N.Y. Oct. 10, 2018). Plaintiff has since brought several actions in New Jersey, that were transferred to this district on the basis of improper venue. See Cunningham v. Port Auth. of NY/NJ Agency, No. 23-CV-2542 (PAE) (S.D.N.Y. July 25, 2023) (plaintiff was directed to show cause “why the Court should allow him to litigate this action despite what appears to be his attempt to evade” the filing injunctions “by initially filing this action in the District of New Jersey,” and the court ultimately dismissed the action without prejudice for his failure to show cause); Cunningham v. Port Auth. Agency of NJ State & NY. State, No. 22-CV-6236, 116 (JMF) (S.D.N.Y. Sept. 28, 2022) (leave to file denied as to action transferred from the District of New Jersey), appeal dismissed, No. 22-2653 (2d Cir. Jan. 26, 2023) (holding that the appeal did “not depart from [Cunningham’s] prior pattern of vexatious filings”). was assaulted by a security guard when he attempted to serve a complaint on Defendant Silverstein Properties, Inc. at the World Trade Center. He further claims that Port Authority police officers “refused to arrest [the] security guard [and]served fake trespass notice upon [Plaintiff].” (ECF 1 at 3.) Plaintiff seeks in forma pauperis (“IFP”) status but has not sought leave to bring this action. The Court therefore dismisses the action without prejudice for Plaintiff’s failure to comply with the August 2, 2016 order. Furthermore, the Court warns Plaintiff that should he persist in filing frivolous, duplicative, and non-meritorious litigation, it may result in the imposition of additional sanctions, including monetary penalties. See 28 U.S.C. § 1651. CONCLUSION The Court dismisses the action without prejudice for Plaintiff’s failure to comply with the August 2, 2016 order. All other pending matters in this case are terminated. The Court warns Plaintiff that should he persist in filing frivolous, duplicative, and non- meritorious litigation, it may result in the imposition of additional sanctions, including monetary penalties. See 28 U.S.C. § 1651. 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 IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Court directs the Clerk of Court to enter judgment. SO ORDERED. Dated: July 8, 2024 New York, New York /s/ Laura Taylor Swain LAURA TAYLOR SWAIN Chief United States District Judge