Romano v. (IF) Off (Name Plate) et al, No. 1:2016cv00701 - Document 18 (W.D.N.Y. 2017)

Court Description: DECISION AND ORDER granting 14 Motion to Dismiss. Plaintiff's in forma pauperis status is hereby revoked. Plaintiff has until August 10, 2017, to pay the filing fee. If no such fee is paid by August 10, 2017, the Clerk of Court is direc ted to dismiss the complaint without prejudice without further order of the Court. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 7/14/17. (JPL) (A copy of this Decision and Order has been mailed to Plaintiff)-CLERK TO FOLLOW UP-
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Romano v. (IF) Off (Name Plate) et al Doc. 18 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ANTHONY ROMANO, DECISION AND ORDER Plaintiff, l:16-CV-00701 EAW V. (IF) OFF (NAME PLATE), Correctional Officer, and JUDITH BRIEM, Defendants. INTRODUCTION Plaintiff Anthony Romano ("Plaintiff') filed this action on August 3 1, 2016, alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983. (Dkt. 1). Plaintiff also submitted a motion for leave to proceed in forma pauperis, (Dkt. 2), which the Court granted on September 13, 2016. (Dkt. 4). On May 10, 2017, Defendant Judith Briem ("Defendant") filed a motion to revoke Plaintiffs in forma pauper is status and dismiss the complaint unless Plaintiff pays the filing fee. (Dkt. 14 ). Defendant argues that Plaintiff has had "at least three prior actions dismissed on the ground that they were frivolous, malicious, or failed to state a claim" prior to filing the instant action. (Dkt. 16). The Court ordered Plaintiff to file any response in opposition by June 1, 2017. (Dkt. 17). Plaintiff did not respond. For the reasons stated below, Defendant's motion is granted, and Plaintiffs in forma pauperis status is revoked. - 1- Dockets.Justia.com DISCUSSION Plaintiff is incarcerated at the Five Points Correctional Facility, and, as a prisoner, 1s required to abide by the provisions of 28 U.S.C. § 1915. See 28 U.S.C. § 1915. Pursuant to § l 9 l 5(g), 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. Id. § l 9 l 5(g). Where a plaintiff is granted in forma pauperis status but has violated § 1915(g)'s so-called "three strikes rule," a court may revoke the plaintiff's in forma pauperis status. Judd v. Sec'y of Conn., No. 3:l lcv879 (MRK), 2011 WL 7628681, at *2 (D. Conn. Dec. 9, 2011) (revoking the plaintiff's informa pauperis for violating the three strikes rule). "The district court may rely on the relevant docket sheets if they indicate with sufficient clarity that the prior suits were dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted." Harris v. City ofN.Y, 607 F.3d 18, 23-24 (2d Cir. 2010); see, e.g., Mason v. Nitti-Richmond, No. 09 Civ. 7307(JGK), 2010 WL 2595108, at* 1 (S.D.N.Y. June 25, 2010) ("In the context of motions to revoke IFP status, district courts routinely take judicial notice of docket sheets in order to resolve the question of how many 'strikes' the plaintiff may have for purposes of§ 1915(g)."). "[T]he three strikes rule is not an affirmative defense that must be raised in the pleadings." Harris, 607 F.3d at 23. -2- Defendant asserts that Plaintiff had accrued three strikes prior to filing this action on August 31, 2016. (Dkt. 16 at 3 ). Plaintiff1 received a strike in a Southern District of New York case in which his complaint was dismissed because it failed to state a claim upon which relief could be granted and sought "monetary relief from a defendant who [was] immune from such relief." Romanov. NYC Police Dep't, 1:04-cv-02733-MBM, Dkt. 3 (S.D.N.Y. Apr. 9, 2004). Plaintiff received another strike from the Northern District of New York when that court dismissed a second amended complaint with prejudice because it was frivolous. See Romano v. Fischer, et al., 9: 14-CV-117 6 (DNH/TWD), Dkt. 21 (N.D.N.Y. Nov. 3, 2015). Plaintiff3 received a third strike when U.S. District Judge Richard J. Arcara dismissed a complaint for failure to state a claim upon which relief may be granted. Romano v. Lisson et al., 16-CV-0081-A, Dkt. 7 (W.D.N.Y. June 16, 2016). Additionally, even under a liberal reading, the complaint does not suggest in any way that Plaintiff "is under imminent danger of serious physical harm" within the meaning of§ 191 S(g). (See Dkt. 1). The Court notes that Plaintiff has the same name, but a different Department of Corrections and Community Service ("DOCCS") number from the plaintiff in the Southern District case. The plaintiff in the Southern District case was number 02-R6674; Plaintiff's DOCCS number is OOA5352. Defendant avers that both cases were filed by the same person. (See Dkt. 16 at 3). Plaintiff has not challenged Defendant's assertion that Plaintiff, and not another "Anthony Romano," filed the Southern District case. 2 The plaintiff in the Northern District case had the same DOCCS number as Plaintiff. 3 The plaintiff in this other Western District case had the same DOCCS number as Plaintiff. -3- Because Plaintiff has received three strikes under § 191 S(g), he does not qualify for in forma pauperis status, and his previously granted in forma pauperis status is hereby revoked. Plaintiff has until August 1O, 2017, to pay the filing fee. CONCLUSION For the forgoing reasons, Defendant's motion to revoke Plaintiffs in forma pauperis status (Dkt. 14) is granted. Plaintiff has until August 10, 2017, to pay the filing fee. If the filing fee is not paid by that date, the Clerk of Court is directed to dismiss the complaint without prejudice and terminate the action without further order of the Court. SO ORDERED. Dated: July 14, 2017 Rochester, New York -4-