23-7565 Alexander v. Gleeson
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 1st day of July, two thousand twenty- four.
PRESENT: DENNY CHIN, RICHARD J. SULLIVAN, BETH ROBINSON, Circuit Judges. _______________________________________
OWEN MARLON ALEXANDER,
Plaintiff-Appellant,
v. No. 23-7565
ANDREEA GLEESON, TUNECORE INC., DEVON ROACH, PADLOCK RECORDS, DR. PHILLIP NICHOLS, FACEBOOK, INSTAGRAM, WHATS APP, YOUTUBE, ARIEL VARGAS, MOLLY WASOW PARKS, NEW ROCK CITY, DEPARTMENT OF HOMELESS SERVICES, OFFICE OF THE OMBUDSMAN, LYMARIS ALBORS, JASMILKA GONZALEZ, HAMMOND JOHN, RENAIYA THOMAS, CLARA GARCIA, ACACIA NETWORK SUPER 8, BRENDA ROSEN, THOMAS WASHINGTON, AARON R MCBRYAR, ANA FISHER, DAVE BEER, FELICESADE BRANDT, DAVIDSON HEADLEY, BREAKING GROUND/ HEGEMAN AVENUE HOUSING LIMITED PARTNERSHIP, KEISHA ASHMAN, ROY A. BECOAT, JETTE JOHNSON, LUNA MALACHOWSKI BAJAK, ALYSSA WRINKLE, KRYSTLE BARKLEY, JOSHUA FLINK, SAMUEL BARTON, CAMILLE REYES, CENTER FOR URBAN COMMUNITY SERVICES (CUCS), KELLNER, HERLIHY, GETTY & FRIEDMAN, LLP, CITY OF NEW YORK POLICE DEPARTMENT/ 73 PRECINCT, P.O. ANGEL RODRIGUEZ, DR. MARTIN BRENNAN, DR. ROBERT GREEN, LYNN VAIRO, ROBERT O. STRANDER, NATASHA PAYSON, PROGRAM DEVELOPMENT SERVICES INC., CHRISTOPHER WRAY, FEDERAL BUREAU OF INVESTIGATION, MICHAEL WEISBERG, CHERY J. GONZALES, DEBRA KAPLAN, BRIAN M. COGAN, MONIQUE GUIDRY, KATHY HOCHUL, ARCHBISHOP CHRISTOPHE PIERRE, APOSTOLIC NUNCIO & THE ROMAN CATHOLIC CHURCH,
Defendants-Appellees. * _______________________________________
For Plaintiff-Appellant: OWEN MARLON ALEXANDER, pro se, New York, NY.
* The Clerk of Court is respectfully directed to amend the official case caption as set forth above.
2 Appeal from a judgment of the United States District Court for the Eastern
District of New York (Pamela K. Chen, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the October 6, 2023 judgment of the district
court is AFFIRMED.
Appellant Owen Marlon Alexander, proceeding pro se (that is,
representing himself), appeals from a judgment of the district court dismissing
his claims against various defendants, including several non-profit housing
organizations and their employees, the Roman Catholic Church, the Governor of
New York, and the internet platforms Facebook and YouTube. He alleges that
“organized corruption within the judicial branch of government, the
entertainment industry, housing industry, [and] the mental and . . . medical
health industry” caused him to be illegally evicted from his low-income housing
unit and prevented him from using an online music streaming platform, among
other asserted harms. Dist. Ct. Doc. No. 6 (“Am. Compl.”) at 3; see, e.g., id. at
15–17, 25–27, 30–31. After dismissing Alexander’s original complaint with
leave to amend, the district court dismissed the amended complaint as frivolous
3 under 28 U.S.C. § 1915(e)(2)(B). We assume the parties’ familiarity with the
remaining facts, procedural history, and issues on appeal.
We review a district court’s dismissal under 28 U.S.C. § 1915(e)(2) without
deference. See Hardaway v. Hartford Pub. Works Dep’t, 879 F.3d 486, 489 (2d Cir.
2018). That statute says that if a plaintiff files a lawsuit and has the required
filing fee waived, the district court may screen and dismiss the complaint if it
finds that the lawsuit “is frivolous” or “fails to state a claim on which relief may
be granted.” 28 U.S.C. § 1915(e)(2)(B)(i), (ii); see Abbas v. Dixon, 480 F.3d 636, 639
(2d Cir. 2007). We “liberally construe pleadings and briefs submitted by pro se
litigants, reading such submissions to raise the strongest arguments they
suggest.” McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017)
(internal quotation marks omitted).
At the outset, we note that Alexander’s appellate brief does not
meaningfully address the district court’s determination that his amended
complaint was frivolous. While “we accord filings from pro se litigants a high
degree of solicitude, even a litigant representing himself [must] set out
identifiable arguments in his principal brief.” Terry v. Inc. Vill. of Patchogue, 826
F.3d 631, 632–33 (2d Cir. 2016) (internal quotation marks omitted). Alexander
4 has not done so here. Instead, he principally repeats the allegations made in his
amended complaint and asserts only in passing that the district court
erroneously based its decision on “outdated” information in his previously filed
complaint, Alexander Br. at 11, 36 – an argument we find unpersuasive, since the
dismissal order makes clear that the district court considered the amended (and
operative) complaint in this action, see Alexander App’x at 17–18. By merely
pointing to his prior factual assertions, Alexander has forfeited appellate review
of the district court’s dismissal order. See LoSacco v. City of Middletown, 71 F.3d
88, 93 (2d Cir. 1995) (“[W]e need not manufacture claims of error for an appellant
proceeding pro se.”); see also Gerstenbluth v. Credit Suisse Sec. (USA) LLC, 728 F.3d
139, 142 n.4 (2d Cir. 2013) (concluding that a pro se litigant forfeited his challenge
because he only mentioned the district court’s ruling “obliquely and in passing”).
In any event, even after reviewing anew Alexander’s amended complaint,
we agree with the district court that his pleading is frivolous, or at the very least
does not state any viable legal claim upon which relief could be granted. An
action is “frivolous” when the factual allegations are “clearly baseless” (that is,
“fanciful” or “delusional”), or when the claims asserted are based on
indisputably invalid legal theories. Neitzke v. Williams, 490 U.S. 319, 325, 328
5 (1989); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998).
And even if not frivolous, a complaint must still include “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007).
Alexander’s amended complaint recounts a long series of incidents that
appear unrelated.
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23-7565 Alexander v. Gleeson
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 1st day of July, two thousand twenty- four.
PRESENT: DENNY CHIN, RICHARD J. SULLIVAN, BETH ROBINSON, Circuit Judges. _______________________________________
OWEN MARLON ALEXANDER,
Plaintiff-Appellant,
v. No. 23-7565
ANDREEA GLEESON, TUNECORE INC., DEVON ROACH, PADLOCK RECORDS, DR. PHILLIP NICHOLS, FACEBOOK, INSTAGRAM, WHATS APP, YOUTUBE, ARIEL VARGAS, MOLLY WASOW PARKS, NEW ROCK CITY, DEPARTMENT OF HOMELESS SERVICES, OFFICE OF THE OMBUDSMAN, LYMARIS ALBORS, JASMILKA GONZALEZ, HAMMOND JOHN, RENAIYA THOMAS, CLARA GARCIA, ACACIA NETWORK SUPER 8, BRENDA ROSEN, THOMAS WASHINGTON, AARON R MCBRYAR, ANA FISHER, DAVE BEER, FELICESADE BRANDT, DAVIDSON HEADLEY, BREAKING GROUND/ HEGEMAN AVENUE HOUSING LIMITED PARTNERSHIP, KEISHA ASHMAN, ROY A. BECOAT, JETTE JOHNSON, LUNA MALACHOWSKI BAJAK, ALYSSA WRINKLE, KRYSTLE BARKLEY, JOSHUA FLINK, SAMUEL BARTON, CAMILLE REYES, CENTER FOR URBAN COMMUNITY SERVICES (CUCS), KELLNER, HERLIHY, GETTY & FRIEDMAN, LLP, CITY OF NEW YORK POLICE DEPARTMENT/ 73 PRECINCT, P.O. ANGEL RODRIGUEZ, DR. MARTIN BRENNAN, DR. ROBERT GREEN, LYNN VAIRO, ROBERT O. STRANDER, NATASHA PAYSON, PROGRAM DEVELOPMENT SERVICES INC., CHRISTOPHER WRAY, FEDERAL BUREAU OF INVESTIGATION, MICHAEL WEISBERG, CHERY J. GONZALES, DEBRA KAPLAN, BRIAN M. COGAN, MONIQUE GUIDRY, KATHY HOCHUL, ARCHBISHOP CHRISTOPHE PIERRE, APOSTOLIC NUNCIO & THE ROMAN CATHOLIC CHURCH,
Defendants-Appellees. * _______________________________________
For Plaintiff-Appellant: OWEN MARLON ALEXANDER, pro se, New York, NY.
* The Clerk of Court is respectfully directed to amend the official case caption as set forth above.
2 Appeal from a judgment of the United States District Court for the Eastern
District of New York (Pamela K. Chen, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the October 6, 2023 judgment of the district
court is AFFIRMED.
Appellant Owen Marlon Alexander, proceeding pro se (that is,
representing himself), appeals from a judgment of the district court dismissing
his claims against various defendants, including several non-profit housing
organizations and their employees, the Roman Catholic Church, the Governor of
New York, and the internet platforms Facebook and YouTube. He alleges that
“organized corruption within the judicial branch of government, the
entertainment industry, housing industry, [and] the mental and . . . medical
health industry” caused him to be illegally evicted from his low-income housing
unit and prevented him from using an online music streaming platform, among
other asserted harms. Dist. Ct. Doc. No. 6 (“Am. Compl.”) at 3; see, e.g., id. at
15–17, 25–27, 30–31. After dismissing Alexander’s original complaint with
leave to amend, the district court dismissed the amended complaint as frivolous
3 under 28 U.S.C. § 1915(e)(2)(B). We assume the parties’ familiarity with the
remaining facts, procedural history, and issues on appeal.
We review a district court’s dismissal under 28 U.S.C. § 1915(e)(2) without
deference. See Hardaway v. Hartford Pub. Works Dep’t, 879 F.3d 486, 489 (2d Cir.
2018). That statute says that if a plaintiff files a lawsuit and has the required
filing fee waived, the district court may screen and dismiss the complaint if it
finds that the lawsuit “is frivolous” or “fails to state a claim on which relief may
be granted.” 28 U.S.C. § 1915(e)(2)(B)(i), (ii); see Abbas v. Dixon, 480 F.3d 636, 639
(2d Cir. 2007). We “liberally construe pleadings and briefs submitted by pro se
litigants, reading such submissions to raise the strongest arguments they
suggest.” McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017)
(internal quotation marks omitted).
At the outset, we note that Alexander’s appellate brief does not
meaningfully address the district court’s determination that his amended
complaint was frivolous. While “we accord filings from pro se litigants a high
degree of solicitude, even a litigant representing himself [must] set out
identifiable arguments in his principal brief.” Terry v. Inc. Vill. of Patchogue, 826
F.3d 631, 632–33 (2d Cir. 2016) (internal quotation marks omitted). Alexander
4 has not done so here. Instead, he principally repeats the allegations made in his
amended complaint and asserts only in passing that the district court
erroneously based its decision on “outdated” information in his previously filed
complaint, Alexander Br. at 11, 36 – an argument we find unpersuasive, since the
dismissal order makes clear that the district court considered the amended (and
operative) complaint in this action, see Alexander App’x at 17–18. By merely
pointing to his prior factual assertions, Alexander has forfeited appellate review
of the district court’s dismissal order. See LoSacco v. City of Middletown, 71 F.3d
88, 93 (2d Cir. 1995) (“[W]e need not manufacture claims of error for an appellant
proceeding pro se.”); see also Gerstenbluth v. Credit Suisse Sec. (USA) LLC, 728 F.3d
139, 142 n.4 (2d Cir. 2013) (concluding that a pro se litigant forfeited his challenge
because he only mentioned the district court’s ruling “obliquely and in passing”).
In any event, even after reviewing anew Alexander’s amended complaint,
we agree with the district court that his pleading is frivolous, or at the very least
does not state any viable legal claim upon which relief could be granted. An
action is “frivolous” when the factual allegations are “clearly baseless” (that is,
“fanciful” or “delusional”), or when the claims asserted are based on
indisputably invalid legal theories. Neitzke v. Williams, 490 U.S. 319, 325, 328
5 (1989); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998).
And even if not frivolous, a complaint must still include “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007).
Alexander’s amended complaint recounts a long series of incidents that
appear unrelated. While he cites some statutes throughout his complaint, he
does not describe legally recognized grounds for suing anyone. Certain
allegations do not make sense or defy belief, rendering them factually frivolous.
See Denton v. Hernandez, 504 U.S. 25, 33 (1992). And many other allegations are
not connected to any legal theory with an “arguable basis in law.” Livingston, 141
F.3d at 437. Alexander alleges, for example, that the New York state judges in
his eviction proceedings “collaborated” with his landlord and its attorneys to
falsify evidence, “hack[]” his computer and cell phone, and “manipulate [him]
into thinking he had a mental health issue.” Am. Compl. at 31. Elsewhere, he
alleges that various individuals – including the Director of the Federal Bureau of
Investigation, the Governor of New York, and a Roman Catholic archbishop –
either failed to respond to his complaints about his landlord or indicated that
they could not assist him with his housing issues. See id. at 29–31. The first set
6 of allegations are not plausible, and the second set of allegations, even if true, do
not support any plausible claim for legal relief from a court.
Alexander’s more developed allegations – for example, those made
against Acacia Network, TuneCore, and their respective employees – likewise
fall short. The amended complaint alleges that employees of Acacia Network,
a non-profit organization operating the shelter where Alexander resided, bullied
him, failed to help him with his public assistance case, and denied his requests
for a reasonable accommodation. But these vague and conclusory allegations
regarding his negative interactions with the shelter’s staff do not give rise to a
plausible claim for relief. For example, they do not support a cause of action
under the Americans with Disabilities Act or related federal anti-discrimination
statutes, as Alexander does not allege a disability or that Acacia Network failed
to accommodate or otherwise discriminated against him on the basis of such
disability. See McElwee v. County of Orange, 700 F.3d 635, 640–41 (2d Cir. 2012).
Similarly, we discern no viable legal claim arising from Alexander’s allegations
that he experienced technical difficulties while using TuneCore’s online music
streaming services. See, e.g., Arista Recs., LLC v. Doe 3, 604 F.3d 110, 117 (2d Cir.
2010) (discussing elements of copyright-infringement claim); Orlander v. Staples,
7 Inc., 802 F.3d 289, 294 (2d Cir. 2015) (discussing elements of New York breach-
of-contract claim).
In short, even generously construed, the amended complaint lacks an
arguable basis in law or fact, see Neitzke, 490 U.S. at 325, or otherwise does not
state a plausible claim for relief, see Twombly, 550 U.S. at 570. The district court
therefore did not err in dismissing Alexander’s action.
We have considered Alexander’s remaining arguments and find them to
be without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court