-:
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`S
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`.LO2.E37, DQf no 32. 05!220] 8, 2307830, Pqe1 of 3
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`S.D.N.Y.—N.Y.C.
`I7-cv-9861
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`I7-cv-9863
`17-cv-9864
`17-cv-9 865
`17-cv-9866
`McMahon, CL
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`•
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`:•
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`• .
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`United Sttes Court- of Appeals
`FOR 11-10
`SECOND CIRCUIT
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`. .
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`•
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`At a stated term of the United States Court of Appeals for the Second
`Circuit, held at the Thurgood Mashall United. States Courthouse, 4.0 Foley Square,
`• in the City of New York, on the 21 day of May, two thousand eighteen.
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`Present:
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`•
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`Rosemary S. Pooler,
`Richard C. Wesley,
`Denny Chin,
`Circuit Judges.
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`. .
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`Gregory D. Kilpatrick,
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`V.
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`••'•
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`Piamtiff-Appellcint,
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`Howard A. Zucker, M.D. J.D., Commissioner of New York State
`Department.of Health Office of Professional Medical Conduct,
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`Defendant-A ppeilee.
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`18-287
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`Gregory D. K I Ipatrick,
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`Plaint iff4ppellanl,
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`R.N. Sally Dresn, MS., Officeof Professional Medical Conduct,
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`Defendaht-Appeilee.
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`18 -291
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`(.Lae ;L8287, Ddcur en 32, 05i2:l20i8. 2307830, Paq2 of 3
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`Gregory D. Kilpatrick,
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`Plaintiff Appeiici)?t,
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`v.
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`18-295
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`Mary Ellen Ella, Commissioner O.RD., Board of
`Regents, Education,
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`Defendant-AIpe flee.
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`Gregory D. Kilpatrick,
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`V.
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`Plaintiff-Appellant,
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`18-304
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`• :
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`Leslie M. Arp, Chief Investigating Unit,
`Dejndant-Appeiiee.
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`• •. Gregory D. Kilpatrick.
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`•
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`v.
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`•
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`•
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`•
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`Plaintiff -Appellant,
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`• •
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`Catherine Leahy Scott, Inspector General,
`Defndait-Appellee.
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`•
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`18-306
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`• • •
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`Gregory ft Kilpatrick,
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`V.
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`Piainiff Appellant,
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`• •
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`•: •
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`18-308
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`Governor Andrew Cumo, New. York State, Albany,
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`•
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`Defendüm-Appeilee.
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`• •
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`• •
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`2
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`J
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`Case 28-287, Document 32, 05/21/2018, 2307830, Page3 of 3
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`The proceedings docketed under .18-2.87, i8291, .18-295, 18-304, 18-306, and 18-308 are
`consolidated for purpoSeS of this order..
`Appel lant, pro se, moves for in forma pauperis status, appointment of counsel, damages, and a
`"bar order" in these six appeals from sun sponte dismissals of his actions. Upon due
`it is hereby ORDERED that the motions are DENIED and the appeals are.
`co-isideration
`DISMISSED as frivolous because they "lack[] an arguable basis either in law Orin fact" Nitzke
`v. Wi/iiars, 490 U.S. 319, 325 (1989)-, see also 28 U.S.C. § 1915(e).
`Appellant has filed a number of frivolous thatters in this court. This Court already held that the
`appeals docketed under 17-2831 and 17-3128 were frivolous. Appellant has the following
`frivolous appeals pending: 1'7-3533;.17•-3547, 17-4031, 18-287, 18- 291, 18-295, 18-304,18-306,
`and 18-308. Accordingly, Appellant is hereby warned that the continued filing of duplicative,
`vexatious, or Clearly meritless appeals, motions, or other papers, will result in the imposition of a..
`sanction, which may require Appellant to obtain permission from this Court prior to filing, any
`:fttl er submissions in this Court (a "leave-to-file" sanction). See In re Martin. Trigona, 9.F.3d
`:226, 229 (2d Cir. 1993); Sossower v Sansverie, 885 F;2d 9, 11 (2d Cir, 1989).
`FOR THE COURT:
`Catherine O'Hagan Wolfe, Clerk of Court
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`3.
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`Case 1 17 cv 09861 CM Document 4 Filed 02/23/18 Page 1 of 4
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`17-CV-9861; 17-CV-9862;
`17-CV-9863; 17-CV-9864;:
`1,7-CV-9865; 17-CV-9866 (CM)
`
`BAR ORDER UNDER
`28 U.S.C. § 1651
`COLLEEN McMAHON, Chief United States District Judge
`
`Plaintiff filed these six actions pro se On January 3, 2018, the Court dismissed them as
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`frivolous, noted that Plaintiff had filed ten other cases that were dismissed as frivolous, and
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`ordered Plaintiff to show cause within thirty days why he should not be barred from filing further
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`actions infoi ma pauperis (IFP) in this Court without prior permission On January 30, 2018,
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`Plaintiff filed a notice of appeal in every case, and he has filed eight new complaints, but he has
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`not responded to the order to show cause
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`A
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`Defective Appeal
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`As ageneral rule, "{t]he filing of a notice of appeal.. .confers jurisdiction on the court
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`of appeals and divests the district court over those aspects of the case involved in the appeal"
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`Griggs v Provident Consumer Discount Co.,459 U.S.. 56, 58 (1982) "The divestiture of
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`Jurisdiction rule is, however, not a per se rule. It is a judicially crafted rule rooted in the interest
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`ofjudicial economy
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`' United States v Rodgers, 101 F 3d 2473 251 (2d Cir, 1996) For
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`example the rule "does not apply where an appeal is frivolous[,][n]or does it apply to untimely
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`or otherwise defective appeals " China Mat.. Chartering Corp v Pactrans Air & Sea Inc., 882 F
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`Supp 2d 579, 595 (S D N Y 2012) (citation omitted)
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`Plaintiff did not submit the $400.00 in fees required to commence a civil action in this
`Court. The Court proceeded on 'the assumption that Plaintiff sought to proceed without the
`prepayment of fees (IFP)
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`

`

`Because Plaintiff is attempting to appeal from a nonfinal order that has not been certified
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`locutory appeal, the notice of appeal is plainly defective, and this Court retains
`for interlocutory
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`Jurisdiction 'over this action See e.g., UrntedStafes v Rodgers, 101 F3d 247, 252 (2d Cir. 1996)
`
`(deeming a notice of appeal from a nonfinal order to be "premature" and a "nullity," and holding
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`that the notice of appeal did not divest the district court of jurisdiction); Gortat v Capála Bros
`Inc., No. 07-CV-3629 (11-G), -2008. WL 5273960, at *1 (E.D.N.Y. Dec. 18, 2008) ("An exception
`[to the general rule that an appeal deprives a district court of jurisdiction] applies where it is
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`clear that the appeal is defective, for example, because the order appealed from is not final and
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`has not been certified for an interlocutory appeal."). Accordingly, the Court retains jurisdiction
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`over these cases.
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`B
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`Certification for Interlocutory Appeal
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`Certification of an interlocutory order for immediate appeal is governed by 28 U S C
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`§ 1292(b) Under that statute, certification is only appropriate if the district court determines
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`"(l) that such order involves a controlling question of law; (2) as to which there is a substantial
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`ground for difference of opinion and (3) that an immediate appeal from [that] order may
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`Materially advance the ultimate termination of the litigation." In re Facebook Inc.,IPO Sec and
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`Derivative Litg, 986 F Supp 2d 524, 529 (S D N Y 2014) (quoting 28 U S C § 1292(b))
`
`Because "interlocutory appeals are strongly disfavored in federal practice," In re Ambac Fin
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`Gip Inc Sec Litig, 693 F Supp 2d 241, 282 (S D N Y 2010), the requirements of § 1292(b)
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`must be strictly construed, and 'only exceptional circumstances will justify a departure from the
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`basic policy of postponing appellate review until after the entry of a final Judgment." Alphonse
`Hotel Corp. v Tran, No. 13-CV-7859 (DLC), 2014 WL 516642, at *3 (S.D.N.Y. Feb. 10, 2014).
`
`(quoting Flor v BOTFin Corp., 79 F 3d 281, 284 (2d Cir. 1996)) The proponent of an
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`

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`•
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`Case 1:17-cv-09861-CM Document 4 Filed 02/23/18 Page 3 of 4
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`interlocutory appeal bears the burden of showing that these, strict requirements are satisfied See
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`Casey v. Long Island R.R., 406 F.3d 142, 146 (2d Cin.2005).
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`The Court finds that the requirements of § 1292(b) are not met. To the extent Plaintiff
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`seeks certification of the January 3,2018 order dismissing his case as frivolous and ordering him
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`to show. cause why a.filing injunction shàuld not be imposed, the motion for certificatin is
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`denied.
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`CONCLUSION
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`The Clerk of Court is directed to mail a copy of this order to Plaintiff, noting service o
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`the docket. The Court bars Plaintiff from filing future civil actions IFP-in this Court without first
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`obtaining from the Court leave to file. See 28 U.S.C. § 1651. Plaintiff must attach a copy of his
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`proposed complaint and a copy of this order to any motion seeking leave to file. The motion
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`must be filed with the Pro Se Intake Unit of this Court. If Plaintiff violates this order and files an
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`action without first filing amotion for leave to file, the Court will dismisstheaction for failure to
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`comply with this order. Plaintiff is further warned that the continued submission of frivolous •.
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`documents may result in the imposition of additional sanctions, including monetary penalties.
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`See id.
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`•
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`•
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`No further documents will le accepted in.these cases other than those directed to the • -
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`United States Court of Appeals for the Second Circuit The Clerk is directed to close this action
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`3
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`

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`Case lil_7-C:Vj-.09861-.CM '_ Documentzi Filed 02/23/18 "Page 4 OH
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`KT“'
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`.‘‘.
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`The Cou1t certifies, pursuant to 28 US._.C § 1915(a)(3), that any appeal from this order
`fiawould not be taken'1n good faith, and therefore informapauperz‘s status is denied for the purpose I
`,1 of an appeal See Coppedge v. UnitedStates, 369 U.S. 438, 444—45 (1962)
`
`SO ORDERED.
`Dated:
`February 2-3, 2018
`i
`'.
`'-
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`NeWYo‘rk,,N¢1wYork Mg; M
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`COLLEEN MCMAHON
`, Chief United States District Judge
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`

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`Case 1:17-cv-09861-CM DocumentS Filed 02/23/18 Page 1 of 1
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`IN RE GREGORY D. KILPATRJCK. . . .
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`
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`I7-CV-9861; 17-CV-9862;
`17-CV-9863; 17-CV-9864;
`17-CV.9865; 17-CV-9866 (CM)
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`CIVIL JUDGMENT
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`Pursuant to the order. issued February 23, 2018, dismissing the complaints,
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`IT IS ORDERED, ADJUDGED AND DECREED that the complaints are dismissed
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`under 28 U.S.C. § 191 5(e)(2)(B)(i).
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`.
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`The Court certifies under 28 U.S.C.. § 1915(a)(3) that any appeal from the court's
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`judgment would not be taken in good faith.
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`•.
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`IT IS FURTHER ORDERED that the Clerk of Court mail a copy of this judgment to
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`Plaintiff and note service on the docket. .
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`SO ORDERED.
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`Dated: February 23, 2018
`New York, New York
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`COLLEEN McMAHON
`Chief United States District Judge
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`b-'
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`f
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`Case 1:17-ci-09861-CM Document 2 Filed 01/03/18 Page 1 of 7
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`UNITED STATES DISTRICT COURT ..•
`SOUTHERN DISTRICT OF NEW YORK
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`IN RE GREGORY D. KILPATRICK.
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`.
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`l7-CV-9861; 17-CV-9862;
`17-CV-9863; 17-CV-9864;
`17-CV-9865; 17-CV-9866 (CM)
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`. ...
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`ORDER OF DISMISSAL AND
`TO SHOW CAUSE UNDER..
`28 U.S.C. § 1651
`COLLEEN MMAHON, Chief United States District Judge:.
`On December 15, 2017, Plaintiff filed these six actions prose.' The complaints are
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`.
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`dismissed for the reasons set forth below.
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`.
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`STANDARD OF REVIEW
`The Court must dismiss an informapauperis complaint, or portion thereof, that is
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`frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary
`relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see
`Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir; 1998). While the law
`mandates dismissal on any of thesegrounds, the Court is obliged to construe pro se pleadings
`liberally, Harris v. Mills, 572 F.3d66,.72.(2d Cir. 2009), and interpret them to raise the "strongest
`[claims] that they suggest," Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.
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`2006) (internal quotation marks and citations omitted).
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`BACKGROUND
`Plaintiff filed these complaints alleging that state actors and private physicians have
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`. . .
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`violated his rights under the Fourteenth Amendment to the United. States Constitution. The
`named Defendants are Howard Zucker, New York State Department of Health Commissioner . .
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`Plaintiff did not submit the $400.00 in fees required to commence a civil action in. this
`Court. The Court therefore proceeds on the assumption that Plaintiff seeks to proceed without the
`prepayment of fees ("inform a pauperis," or "IFP").
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`

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`Case 1:17-cv-09861-CM Document 2 Filed 01103/18': Page 2 of 7
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`• (No. 17-CV-9861); .Sall' Drelin, Office of Professional Medical Conduct (No. 17-CV-962);
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`MaryEllen Elia, Commissioner O.P.D., Board of Regents, Education (No. 17-CV-9863); Leslie.
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`M. Arp, .Chief Investigating Unit (No. 17-CV-9864); Inspector General Catherine Leahy Scott
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`(No. 17-CV-9865); and Governor Andrew Cuomo (No. 17-CV-9866).
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`According to Plaintiff, doctors .and dentists have either negligently or intentioil1y
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`infected him with HIV, HSV-1, and HSV-2, and state officials have failed to investigate his
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`• allegations or take action against the. doctors. By way of example, Plaintiff asserts in the
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`complaint docketed in case number 17-CV-9861 that Dr. Kondaveeti refused to give him the
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`"liquid vial medicine" he needed to rid himself of viruses, and that Defendant Zucker. "needs to
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`mind his business when pla intiff has civil and criminal issues with other Jewish, Irish, Italian,
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`criminal civil issues. Zucker doesn't respect Black patients [sic] rights and responsibilities
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`regarding medical complaints, investigations, fact findings,, final determinations and decisions
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`from lower and higher subordinates." (Doe. 1 at ¶ III.) In case number 17-CV-9865, Plaintiff
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`alleges that two dentists, Kamkar and }-Ienkin, deliberately. infected him with viruses, that
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`Inspector General Scott "refused to commence an investigation, and that Governor Cuomo
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`declined to "arrest the two Caucasian Jewish dentists." (Doc. No. 1 at ¶111.) In case number 17-
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`CV-9866, Plaintiff makes similar allegations against Doctors Fields, Volterra, and Robinson, and
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`claims that Cuomo and Elia'are racists, have obstructed justice, and should be removed from
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`office. (Doc. No.. 1 at 1)
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`
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`DISCUSSION ..
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`Under the informapauperis statute, a court must dismiss .a case if it determines that the
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`action is frivolous or malicious; 28 U.S.C. §1915(e)(2)(B)(i). A claim is "frivolous when either:
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`(I) the factual contentions are clearly baseless, such as when allegations. are the product of
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`delusion or fantasy; or (2) the claim.is' based on an indisputably meritless legal theory."
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`2
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`V
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`Case 1:17-cv-09861-CM Document 2 Piled 01103/18 Page 3 of 7
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`Livingston, 141 F.3d at 437 (internal quotation marks and citation omitted). Moreover, a court
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`has "no obligation to entertain pure speculation and conjecture." Gallop v. Cheney, 642 F.3d 364,-
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`_368 (2d Cir. 2011) (finding as frivolous and baseless allegations that set forth a fantastical
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`alternative history of the September 11, 2001 terrorist attacks).
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`The Court, after reviewing Plaintiff's complaints, finds that they lack any argtble basis
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`in law or in fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989) Plaintiff's factual allegations
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`rise to the level of the irrational, and there is no legal theory on which he may rely. See
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`Livingston, 141 F.3d at 437. Plaintiff's complaints must therefore be dismissed as frivolous..See
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`28 U.S.C. § 1915(e)(2)(13)(i). In deference to Plaintiff's pro se status, the Court would normally
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`direct Plaintiff to amend his complaint, but the Court finds that the complaints cannot be cured
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`with an amendment. Where an amendment would be futile, leave to amend is not required. Hill v.
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`Curcione, 657 F.3d 1163 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40,42 (2d Cir.
`1988) (court may dismiss complaint sua sponte and without providing leave to amend "where the
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`substance of the claim pleaded is frivolous on its face")..
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`.
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`LITIGATION HISTORY
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`Plaintiff has previously filed ten other cases that the Court dismissed as frivolous and for
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`.failure to state a claim. With one exception, those cases set forth similar claims against medical -
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`providers for infecting him with viruses and state officials for. failing to act, and the Court has
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`repeatedly warned Plaintiff against filing 'Such complaints. See e.g. Kilpatrick v. Fields, No. 17-
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`CV-5115 (CM) (S.D.N.Y No'. 27, 201.7); Kilpatrick v. Coffman, No. 17CV-5 114 (CM)
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`(S.D.N.Y Oct. 4,2017); Kilpatrickv. Kondaveeti, No. 17-CV-5113 (CM) (S.D.N.Y. July 31,
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`2017); Kilpatrick v. Weiss, No. 17-CV-5 112 (CM) (S.D.N.Y. Aug. 21, 2017); Kilpatrick v.
`Henkin, No. 17-CV-5 111 (CM) (S.D.N.Y July 21, 2017); Kilpatrickv. Robinson, No. 17-CV-
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`5110 (CM) (S.D.N.Y. Oct. 13, 2017); Kilpatrcikv. Volterra, No. 17-CV-5109 (CM) (S.D.N.Y.
`
`

`

`-
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`Case 1 17-cv-09861-CM Document 2 Filed 01/03/18 Page 4 of 7
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`Oct. 10, 2017); Kilpafrick-v. kamkar, No. 17-CV-5013 (CM) (S.D.N.Y Sept. 20,2017),-
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`Kilpatrick v. US. Dep t of Veterans Affairs, No. 06-CV-9907 (KMW) (S.D.N.Y. Mar. 26, 2007)
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`-(dismissed on immunity.gro-unds and for failure to state a claim), appeal dismissed, No. 07-2040
`(20 Cir. Nov. 1, 20.07).2.
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`The Court will not tolerate the abuse of its limited resources. Plaintiff is ordered to show
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`cause why he should not be barred from -filing any further actions in this Court IFP without.first
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`obtaining permission from this Court to file hiscomplaint. See Moates v. Barkley, 147 F.3d 207,
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`208 (2d Cir. 1998) (jer curiam) ("The unequivocal rule in this circuit is that the district court
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`may not impose a filing injunction on a litigant sua sponte without providing the litigant with
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`notice and an opportunity to be heard."). Within thirty days of the. date of this order, Plaintiff.
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`must submit to this Court a written declaration setting forth good cause why the Court should not
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`impose this injunction upon him. If Plaintiff fails to submit a declaration, within the time
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`directed, or if Plaintiff's declaration does not set forth good cause why this injunction should not
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`be entered, he will be barred from filing any further actions IFP in this Court unless he first
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`obtains permission from this Court to do so.
`• . .
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`•' . CONCLUSION
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`• .
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`• The Clerk is directed to assignthese matters to my docket, mail a copy of this order to
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`Plaintiff, and note service on the docket. The complaints, filed informapauperis under 28
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`U.S.C. § 1915(a), are dismissed, as frivolous and for failure to state a claim upon which relief
`may be granted. See 28 U;S.C. §- 1915(e)(2)(13)(i), (ii). Plaintiff shall have thirty days to show
`cause by written declaration why an order should not be entered barring Plaintiff from filing any
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`

`

`-
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`iCasé.:_.l:17-cy909861—'CM Document-2: Filed 01/03/18.‘ Page 5 of 7
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`future action informa pawn-en's in. this Court without priorpermission. A Declaration form is I
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`attached to this order for Plaintiffi’sconV-enience.
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`The Court certifies, pursuant to 28'"U.S.C. § 19’15(‘a)'(3), that any appeal from this order
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`I.
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`V
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`I would not be-tak‘en in goodi'sfaith, and therefore z'nforma pauperis status is denied for the purpose
`v- of an appeal. See Copéedéé v. United States; 369 U.S.‘438,'444-45 (1962).
`'_
`i 1"
`so ORDERED.
`_
`i
`I'
`..
`i
`i
`I
`Dated:
`January 3,20i8: '
`New York, New York
`
`i
`
`. MkM
`
`Chief United States District Judge
`
`

`

`Additional material
`from this filling Is
`availabl e in the
`Clerk's Office.
`
`