Carter v. New York State Correctional Officer McPherson, No. 9:2020cv00491 - Document 24 (N.D.N.Y 2020)
Court Description: DECISION AND ORDER: It is ORDERED that plaintiff's application to proceed in the action in forma pauperis (Dkt. No. 18 ) is DENIED pursuant to 28 U.S.C. § 1915(g) because plaintiff has acquired three strikes prior to filing this action and is not entitled to the imminent danger exception; and it is further ORDERED that this action shall be DISMISSED without prejudice unless, within 30 days of the date of this Decision and Order, plaintiff pays the Court's full filing fee of $400; and it is further ORDERED that, upon receipt of the full filing fee from plaintiff, the Clerk of the Court shall return the file to the Court for review of the complaint in accordance with 28 U.S.C. § 1915A(b); and it is further O RDERED that, if plaintiff fails to remit the filing fee as described in this Decision and Order, the Clerk of the Court shall enter judgment dismissing this action, without prejudice, without further order of the Court; and it is further ORDERED th at plaintiff's motions for injunctive relief (Dkt. Nos. 21 , 23 ) are DENIED without prejudice; and it is further ORDERED that plaintiff's motion to compel (Dkt. No. 7 ) is DENIED; and it is further ORDERED that the Clerk of the Court serve a copy of this Decision and Order on plaintiff. Signed by Senior Judge Thomas J. McAvoy on July 30, 2020.{Notice of Compliance Deadline 8/31/2020, Case Review Deadline 10/1/2020} (Copy served via regular mail)(rep)
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Carter v. New York State Correctional Officer McPherson Doc. 24 Case 9:20-cv-00491-TJM-CFH Document 24 Filed 07/30/20 Page 1 of 22 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK DAVID CARTER, Plaintiff, 9:20-CV-0491 (TJM/CFH) v. NEW YORK STATE CORRECTIONAL OFFICER McPHERSON, Defendant. APPEARANCES: DAVID CARTER 19-A-1009 Plaintiff, pro se Great Meadow Correctional Facility Box 51 Comstock, NY12821 THOMAS J. McAVOY Senior United States District Judge DECISION AND ORDER I. INTRODUCTION Pro se plaintiff David Carter ("plaintiff") commenced this civil rights action on or about January 15, 2020, by filing a complaint in the Eastern District of New York ("EDNY"). Dkt. No. 1 ("Compl."). On or about February 20, 2020, plaintiff filed a motion for injunctive relief, which was denied by EDNY District Judge LaShann DeArcy Hall on March 4, 2020. Dkt. No. 2; Docket Entry Dated Mar. 4, 2020. On March 16, 2020, plaintiff filed a motion to compel the New York State Attorney General to appear in the action. Dkt. No. 7. Without ruling on the motion to compel, District Judge DeArcy Hall thereafter transferred the action to this District Dockets.Justia.com Case 9:20-cv-00491-TJM-CFH Document 24 Filed 07/30/20 Page 2 of 22 on April 30, 2020. Dkt. No. 14. Upon receipt of the action in this District, the Court issued an Order closing the action because plaintiff had failed to pay the filing fee or file an application to proceed in forma pauperis ("IFP"). Dkt. No. 16. Plaintiff was directed to pay the filing fee or submit an IFP application if he wished to proceed with this action. Id. at 3. On May 29, 2020, the Court received plaintiff's IFP application. Dkt. No. 18. Plaintiff subsequently filed a second and third motion for injunctive relief. Dkt. Nos. 21, 23. The Clerk has forwarded plaintiff's complaint, IFP application, and motions to compel and for injunctive relief to the Court for review. II. DISCUSSION Where a plaintiff seeks leave to proceed IFP, the Court must determine whether he has demonstrated sufficient economic need to proceed without prepaying, in full, the Court's filing fee of $400. 28 U.S.C. § 1915(a). The "three strikes" provision of 28 U.S.C. § 1915 ("Section 1915"), however, bars the plaintiff from proceeding IFP if, at the time he commences the action, he filed three or more previous actions that were dismissed as frivolous, malicious, or for failure to state a claim on which relief may be granted. 28 U.S.C. § 1915(g); Chavis v. Chappius, 618 F.3d 162, 167 (2d Cir. 2010). Specifically, Section 1915(g) provides as follows: In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 2 Case 9:20-cv-00491-TJM-CFH Document 24 Filed 07/30/20 Page 3 of 22 28 U.S.C. § 1915(g). The manifest intent of Congress in enacting this "three strikes" provision was to deter the filing of multiple, frivolous civil rights suits by prison inmates. Tafari v. Hues, 473 F.3d 440, 443-44 (2d Cir. 2007) (citing Nicholas v. Tucker, 114 F.3d 17, 19 (2d Cir. 1997)). The Second Circuit has defined a frivolous claim as one that "'lacks an arguable basis either in law or in fact.'" Tafari, 473 F.3d at 442 (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)). To determine whether a dismissal satisfies the failure-to-state-a-claim prong of Section 1915, courts look to Rule 12(b)(6) of the Federal Rules of Civil Procedure for guidance. Tafari, 473 F.3d at 442. The question of whether the dismissal of a prior action constitutes a strike for purposes of Section 1915(g) is a matter of statutory interpretation and, as such, a question for the Court. Id. If the plaintiff is indigent and not barred by Section 1915(g), the Court must consider the sufficiency of the claims stated in the complaint in accordance with Section 1915(e) and 28 U.S.C. § 1915A ("Section 1915A"). In this case, plaintiff has demonstrated economic need and has filed the inmate authorization form required when inmate-plaintiffs seek IFP status in the Northern District of New York. Dkt. Nos. 18, 19. Thus, the Court must determine whether plaintiff has accumulated three strikes for purposes of Section 1915(g) prior to filing this lawsuit and, if so, whether he is entitled to the "imminent danger" exception. 28 U.S.C. § 1915(g); see also Deleon v. Doe, 361 F.3d 93, 95 (2d Cir. 2004) (concluding that a court may determine whether a plaintiff has acquired a strike only when the Section 1915(g) issue is ripe for adjudication). A. Determination of "Strikes" 3 Case 9:20-cv-00491-TJM-CFH Document 24 Filed 07/30/20 Page 4 of 22 The Court has reviewed plaintiff's litigation history on the Federal Judiciary's Public Access to Court Electronic Records ("PACER") Service. See PACER Case Locator, Advance Party Search, https://pcl.uscourts.gov/pcl/pages/search/findPartyAdvanced.jsf (last visited July 30, 2020).1 On the basis of that review, the Court finds that, as of the date that plaintiff commenced this action, he had acquired three strikes because he filed at least three previous civil actions while incarcerated that were dismissed for failure to state a claim upon which relief may be granted.2 See Carter v. Doe I, No. 12-CV-9278, Dkt. No. 16 (S.D.N.Y. filed Dec. 19, 2012) (dismissed for failure to state a claim upon which relief may be granted pursuant to Section 1915(e)(2)(B)(ii)); Carter v. Cuomo, No. 11-CV-5705, Dkt. No. 4 (E.D.N.Y. filed Nov. 17, 2011) (dismissed for failure to state a claim upon which relief may be granted pursuant to Section 1915A(b)(1)); Carter v. Doe, No. 05-CV-8432, Dkt. No. 16 (attached as Exhibit A) (S.D.N.Y. filed Sept. 30, 2005) (dismissed for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6)).3 Because plaintiff accumulated three strikes under Section 1915(g) prior to 1 The Court searched PACER's database using plaintiff's name, David Carter. That search revealed dozens of actions filed by multiple individuals named "David Carter." Upon review of each of the actions commenced by a "David Carter," the Court has concluded that the "David Carter" that commenced this action has previously filed at least 64 civil lawsuits in this Circuit while incarcerated. During its investigation concerning the previous lawsuits filed by plaintiff, the Court also discovered that plaintiff has been in the custody of the New York State Department of Corrections ("DOCCS") before and been assigned the following six DOCCS Department Identification Numbers: (1) 19-A-1009, (2) 12-A-5083, (3) 05-A-2964, (4) 01-A-5428, (5) 99-A-1615, and (6) 81-B-1007. Plaintiff's New York State Identification Number is 04613486L. 2 The Southern District of New York ("SDNY") has found that plaintiff has acquired three strikes under Section 1915(g) in at least 30 actions filed by plaintiff in that District. See, e.g., Carter v. New York City John Doe Corr. Officer Male Hispanic, No. 16-CV-3466, Dkt. No. 5 (S.D.N.Y. filed May 10, 2016). 3 Because of the age of the action, the SDNY's decision dismissing Carter v. Doe, No. 05-CV-8432, is not electronically available on PACER. With the assistance of the Second Circuit's Library, the Court nevertheless obtained a copy of the dismissal order and has attached it to this Decision and Order as Exhibit A. The action was dismissed as time-barred pursuant to Rule 12(b)(6). Carter v. Doe, No. 05-CV-8432, Dkt. No. 16 (attached as Exhibit A). The dismissal of an action based on the expiration of the statute of limitations constitutes a strike for purposes of Section 1915(g). Akassy v. Hardy, 887 F.3d 91, 95 (2d Cir. 2018). 4 Case 9:20-cv-00491-TJM-CFH Document 24 Filed 07/30/20 Page 5 of 22 commencing this action, the Court must next consider whether the "imminent danger" exception to that rules applies. B. Applicability of the "Imminent Danger" Exception Congress enacted the "imminent danger" exception contained in the final phrase of Section 1915(g) as a "safety valve" to prevent impending harms to prisoners otherwise barred from proceeding IFP. Malik v. McGinnis, 293 F.3d 559, 563 (2d Cir. 2002). Generally, the allegations relevant to this inquiry "are those in which [the plaintiff] describes physical injury, threats of violence, and deprivation of medical treatment." Chavis, 618 F.3d at 165. "[F]or a prisoner to qualify for the imminent danger exception, the danger must be present when he files his complaint–in other words, a three-strikes litigant is not excepted from the filing fee if he alleges a danger that has dissipated by the time a complaint is filed." Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009); see also Polanco v. Hopkins, 510 F.3d 152, 156 (2d Cir. 2007); Malik, 293 F.3d at 562-63. In addition, Section 1915(g) "allows a three-strikes litigant to proceed [IFP] only when there exists an adequate nexus between the claims he seeks to pursue and the imminent danger he alleges." Pettus, 554 F.3d at 296. In deciding whether such a nexus exists, the Second Circuit has instructed courts to consider "(1) whether the imminent danger of serious physical injury that a three-strikes litigant alleges is fairly traceable to unlawful conduct asserted in the complaint and (2) whether a favorable judicial outcome would redress that injury." Id. at 298-99 (emphasis omitted). "[T]hough [a court is] obligated to draw the most favorable inferences that [a pro se plaintiff's] complaint supports, [the Court] cannot invent factual allegations that [the plaintiff] has not pled." Chavis, 618 F.3d at 170. Here, plaintiff's complaint alleges that he was assaulted by another inmate on an 5 Case 9:20-cv-00491-TJM-CFH Document 24 Filed 07/30/20 Page 6 of 22 unidentified date, which resulted in a severe injuries to plaintiff's "pelvic area and lower extremities." Compl. at 2. Plaintiff alleges that defendant Great Meadow Correctional Facility ("Great Meadow C.F.") Correctional Office McPherson paid the other inmate to assault plaintiff. Id. Prior to that assault, defendant McPherson allegedly harassed plaintiff by confiscating a pair of plaintiff's sneakers and opening plaintiff's "lock/safe" without permission. Id. at 3. Defendant McPherson also spread rumors about plaintiff at Great Meadow C.F. and threatened plaintiff with "abuse" and transfer to a different prison cell. Id. at 4-5. Plaintiff further alleges that defendant McPherson "presently continues to make threats and appears before [plaintiff's] cell frequently in [a] threatening manner to harass and do odd things to place [plaintiff] in harms [sic] way with [plaintiff's] peers on a daily basis." Id. at 5. According to plaintiff, defendant McPherson "appears persistent and having a determined idea to harass, humiliate, assault [plaintiff] and possibly murder [plaintiff] by conspiring with other officers." Id. Notwithstanding the fact that the allegations set forth in the complaint attempt to paint a picture of imminent danger,4 the allegations are conclusory and vague. Importantly, plaintiff's complaint fails to assert a cognizable cause of action against defendant McPherson because the complaint asserts a claim of harassment, which, on its own, is not sufficient to state a claim under 42 U.S.C. § 1983. See Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (affirming the dismissal of a claim based only on allegations of verbal harassment 4 Plaintiff further attempts to allege imminent danger in one of his motions for injunctive relief, where he accuses defendant McPherson of "influenc[ing]" other correctional officers to assault him on May 13, 2020. Dkt. No. 21 at 4. (The assault on May 13, 2020, is the subject matter of another lawsuit recently filed by plaintiff in this District. See Carter v. Doe #1, No. 20-CV-0576 (N.D.N.Y. filed May 27, 2020).) Other than this conclusory allegation, however, there are no allegations plausibly suggesting that defendant McPherson was involved with the assault in any respect. See Dkt. No. 21 at 4. 6 Case 9:20-cv-00491-TJM-CFH Document 24 Filed 07/30/20 Page 7 of 22 absent any injury). To the extent plaintiff's complaint asserts a claim based on the confiscation and/or destruction of personal property, the allegations describe a random and unauthorized act by defendant McPherson. Compl. at 3. Under those circumstances, due process requires only a post-deprivation proceeding, and New York provides an adequate post-deprivation remedy in the Court of Claims with respect to property claims by prisoners. See Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996) (affirming the dismissal of a due process claim based on allegations that the defendants confiscated the plaintiff's glasses "because of the availability of state court post-deprivations remedies"). For that reason, even assuming that plaintiff's complaint alleged sufficient facts for purposes of Section 1915(g)'s imminent danger provision and the Court granted plaintiff IFP status, the complaint is subject to dismissal without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). In any event, although plaintiff alleges that defendant McPherson appears at his cell "in [a] threatening manner" and that defendant McPherson placed plaintiff in danger of violence by other inmates, plaintiff fails to describe defendant McPherson's specific conduct. Compl. at 5. Similarly, plaintiff's speculative belief that defendant McPherson is intent on "possibly murder[ing him]" is not plausible even if the rest of plaintiff's allegations are assumed to be true because defendant McPherson's specific conduct as alleged can be characterized only as mildly harassing behavior (e.g., confiscating plaintiff's sneakers, opening a lock/safe in plaintiff's cell). For purposes of the imminent danger analysis under Section 1915(g), it is not enough to set forth vague and conclusory allegations that do not support a cognizable legal claim. See Clark v. Morgan, No. 15-CV-10994, 2015 WL 1541890, at *2 (E.D. Mich. Apr. 7, 2015) ("Conclusory or vague allegations of some potential danger are insufficient to satisfy the exception to the three strikes rule.") (citing Thompson v. 7 Case 9:20-cv-00491-TJM-CFH Document 24 Filed 07/30/20 Page 8 of 22 Sampson, No. 10-CV-0231, 2010 WL 1027897, at *3 (W.D. Mich. Mar. 18, 2010) ("Certainly, Plaintiff's vague assertion that he would experience the 'likelihood' of imminent danger if he was not released from prison early does not suggest that the danger is real or proximate.")). In light of plaintiff's three strikes and the complaint's failure to allege imminent danger that is related to a cognizable legal cause of action, plaintiff is barred from proceeding in this action IFP, and his application for IFP status is therefore denied. If plaintiff wishes to proceed with this action, he must, within 30 days of the filing date of this Decision and Order, pay the full statutory filing fee of $400. Plaintiff is advised that his failure to timely comply with this Decision and Order will result in dismissal of this action, without prejudice, without further Order from the Court. III. CONCLUSION WHEREFORE, it is ORDERED that plaintiff's application to proceed in the action in forma pauperis (Dkt. No. 18) is DENIED pursuant to 28 U.S.C. § 1915(g) because plaintiff has acquired three strikes prior to filing this action and is not entitled to the imminent danger exception; and it is further ORDERED that this action shall be DISMISSED without prejudice unless, within 30 days of the date of this Decision and Order, plaintiff pays the Court's full filing fee of $400; and it is further ORDERED that, upon receipt of the full filing fee from plaintiff, the Clerk of the Court shall return the file to the Court for review of the complaint in accordance with 28 U.S.C. § 1915A(b); and it is further 8 Case 9:20-cv-00491-TJM-CFH Document 24 Filed 07/30/20 Page 9 of 22 ORDERED that, if plaintiff fails to remit the filing fee as described in this Decision and Order, the Clerk of the Court shall enter judgment dismissing this action, without prejudice, without further order of the Court; and it is further ORDERED that plaintiff's motions for injunctive relief (Dkt. Nos. 21, 23) are DENIED without prejudice; and it is further ORDERED that plaintiff's motion to compel (Dkt. No. 7) is DENIED; and it is further ORDERED that the Clerk of the Court serve a copy of this Decision and Order on plaintiff. IT IS SO ORDERED. 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