Opinion
07-CV-136S(Sr).
March 25, 2007
DECISION and ORDER
INTRODUCTION
Plaintiff Linda Cowan has filed this pro se action against the President of the United States purportedly under the "No Fear Act" of 2002 alleging that the undersigned "illegally dumped [dismissed]" her prior employment discrimination case against her former employer, the Internal Revenue Service (00-CV-0315S) and that the President should be made aware of this and held accountable. Plaintiff has requested permission to proceed in forma pauperis (Docket No. 2) and moved for my recusal (Docket No. 3). For the reasons discussed below, plaintiff's request to proceed as a poor person is granted, the motion to recuse is denied and the complaint is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
Notification and Federal Employment Anti-Discrimination and Retaliation Act of 2002, Pub.L. 107-174, 116 Stat. 566 [ 5 USCA § 2301 Note]. See Mills v. Barre, No. Civ.A. 3:03CV735, 2004 WL 3335448 (E.D.Va., March 8, 2004 ("[S]overeign immunity [has not] been waived, jurisdiction been granted, [n]or a cause of action against the federal government been created under the No FEAR Act or the FMLA.")
Because plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a), plaintiff is granted permission to proceed in forma pauperis. Section 1915(e)(2)(B) of 28 U.S.C. provides that the Court shall dismiss a case in which in forma pauperis status has been granted if, at any time, the Court determines that the action (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.
DISCUSSION
Initially, the Court notes that a President of the United States is absolutely immune from civil suits based on his official acts. See Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982) (recognizing "absolute Presidential immunity from damages liability for acts within the `outer perimeter' of his official responsibility"); see also Clinton v. Jones, 520 U.S. 681, 694, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997). Accordingly, whatever the true nature of plaintiff's allegations against the President of the United States is, the complaint must be dismissed.
Additionally, the instant complaint is truly nothing more than a litigant's attempt to express her displeasure about the Court's dismissal of an earlier lawsuit and to have it reviewed anew or reconsidered. Plaintiff's complaint is simply frivolous and without merit, and must be dismissed.
The notice of appeal filed by plaintiff from the dismissal of her previous action was dismissed by the Court of Appeals on the ground that the appeal lacked an arguable basis in fact or law. (00-CV-0315S, Docket No. 64, Mandate).
Lastly, plaintiff's motion to recuse the undersigned for what she complains was my illegal action in dismissing her prior lawsuit is baseless and must be denied. See 28 U.S.C. § 455.
CONCLUSION
Plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a). Accordingly, plaintiff's request to proceed in forma pauperis is granted and, for the reasons discussed above, the complaint is dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (iii).The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith, and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438, 82 S. Ct. 917, 8 L. Ed.2d 21 (1962). Further requests to proceed on appeal as a poor person should be directed, on motion, to the United States Court of Appeals for the Second Circuit, in accordance with Rule 24 of the Federal Rules of Appellate Procedure.
ORDER
IT HEREBY IS ORDERED, that plaintiff's request to proceed in forma pauperis is granted;
FURTHER, that the complaint is dismissed with prejudice;
FURTHER, that plaintiff's motion to recuse the undersigned is denied; and
FURTHER, that leave to appeal to the Court of Appeals as a poor person is denied.
SO ORDERED.