Johnson v. Vercollone
- Laura Swain
- 1:23-cv-07092
- U.S. District Court · Southern District of New York
- 4
In Johnson v. Vercollone, Judge Swain dismissed the amended action for failure to state a claim against Sheriff Rossiter and denied further leave to amend.
The dismissal ended Johnson’s action against the named defendants, including Sheriff Shane Rossiter. The Trust’s claims had previously been dismissed without prejudice to the Trust retaining counsel and bringing its own action. Johnson was not given another opportunity to amend, and permission to proceed without paying fees on appeal was denied.
What happened
In Johnson v. Vercollone, Brian Van Ness Johnson brought claims involving state-law matters against several defendants, including Putnam County Sheriff Shane Rossiter. The court had previously allowed Johnson 30 days to try to state a claim against Rossiter after dismissing the claims against the other defendants.
Johnson’s second amended complaint did not allege facts supporting a claim against Rossiter. Instead, it called itself a petition seeking a court order involving a “Principal Debtor” and described the federal court proceedings in unusual terms. The court concluded that this pleading still did not state a claim for relief.
The court dismissed the action, denied further leave to amend, declined to exercise supplemental jurisdiction over any state-law claims, and directed the Clerk to enter judgment. Judge Laura Taylor Swain also ruled that an appeal would not be taken in good faith and denied permission to proceed without paying fees on appeal.
The detailed version
- Johnson v. Vercollone · No. 1:23-cv-07092
- Laura Swain
- Mar. 18, 2024
Background
Johnson, Brian Van Ness, Trustee, brought this action against Richard W. Vercollone, Ada Carpenter, Shane Rossiter, and Karine Petino. The court’s earlier order dismissed claims brought on behalf of the Brian Van Ness Johnson Trust without prejudice to the Trust retaining counsel and bringing its own action. The earlier order also dismissed claims against Vercollone and Carpenter as frivolous because they sought monetary relief from defendants the court determined were immune from that relief. It dismissed claims against Petino because the complaint did not state a claim against a private party under Section 1983. The court allowed Johnson 30 days to replead a claim against Rossiter, based on the lack of allegations that Rossiter was personally involved in the events underlying the claims.
Johnson filed two amended pleadings. The court treated the second amended complaint as the operative pleading. That complaint styled the matter as a petition for a court order requiring production of the “BODY of the PRINCIPAL DEBTOR,” described the proceedings as a “foreign proceeding,” and sought reassignment to an “American Tribunal Court.”
Reasoning
The court held that the second amended complaint did not state any facts supporting a claim against Rossiter. It therefore dismissed the claims against Rossiter for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii), a provision requiring dismissal of a claim filed without paying filing fees when the pleading fails to state a legally sufficient claim.
The court declined to allow another amendment. It explained that a court may deny further amendment when a plaintiff has already had an opportunity to correct the pleading but has not fixed its defects. The court concluded that the defects in this second amended complaint could not be cured by another amendment.
Ruling
The court dismissed the second amended complaint under 28 U.S.C. § 1915(e)(2)(B)(i)-(iii), declined to exercise supplemental jurisdiction over any state-law claims Johnson might be asserting, and directed the Clerk to enter judgment. Judge Laura Taylor Swain certified that any appeal would not be taken in good faith and denied Johnson permission to proceed without paying fees for an appeal.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.