CUNNINGHAM v. SILVERSTEIN PROPERTIES &

Background

Benjamin Cunningham brought this pro se action concerning his allegedly unlawful arrest and detention at the Port Authority Bus Terminal and 4 World Trade Center in New York City in April and May 2019. He commenced the action in the District of New Jersey on October 29, 2019. The matter was transferred to the Southern District of New York on February 28, 2023. The opinion identifies the appearing defendants as the City of New York and the New York Police Department.

The opinion describes several filing injunctions and related restrictions previously imposed on Cunningham by judges in the Southern District of New York and by the United States Court of Appeals for the Second Circuit. Those restrictions required Cunningham to obtain permission before filing certain papers or lawsuits. The opinion also states that an earlier action transferred from New Jersey had been dismissed after Cunningham failed to explain why he should be allowed to litigate in the Southern District of New York despite the injunctions.

Order to Show Cause

On April 21, 2023, Chief Judge Laura Taylor Swain ordered Cunningham to submit a declaration explaining why the court should allow him to litigate this action despite what appeared to be an attempt to evade the filing injunctions by initially filing in New Jersey. Cunningham submitted a declaration on May 11, 2023. After the case was reassigned to Judge Paul A. Engelmayer, the court directed the appearing defendants to respond to the declaration. Neither defendant responded. Cunningham then made several additional filings without the court's permission.

Court's Analysis

The court reviewed Cunningham's declaration and other filings, giving them the consideration owed to a person proceeding without a lawyer. It nevertheless found that they did not satisfy, or come close to satisfying, the order to explain why Cunningham should be permitted to litigate despite the filing injunctions. The court stated that the declaration essentially restated his pleading and added claims from the earlier dismissed case. Although the declaration described the filing injunctions and dismissals, it did not explain why leave to file would be appropriate or why Cunningham had filed the action in New Jersey for a reason other than avoiding the Southern District of New York's filing restrictions.

Disposition

Because Cunningham failed to show cause, the court dismissed the action without prejudice. The dismissal was based on his failure to justify proceeding despite the filing injunctions; the opinion does not decide the merits of his allegations concerning arrest or detention. The court also certified under 28 U.S.C. § 1915(a)(3) that an appeal would not be taken in good faith and denied permission to appeal without paying filing fees. The Clerk of Court was directed to close the case and mail Cunningham a copy of the order.