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Polanco v. Hopkins

March 19, 2007


The opinion of the court was delivered by: Siragusa, J.



Before the Court are defendant's motion seeking a determination that plaintiff is not entitled to in forma pauperis status as a result of the three-strike rule in 28 U.S.C. § 1915(g), and plaintiff's cross-motion to declare that rule unconstitutional, as well as to enforce plaintiff's request for the production of documents, dated December 27, 2006. For the reasons set forth below, the Court grants defendants' motion, unless plaintiff pays the appropriate filing fee within 30 days of the docketing of this Decision and Order.


On December 29, 2003, plaintiff, who is a prisoner within the New York State Department of Correctional Services ("DOCS"), filed a civil rights complaint pursuant to 28 U.S.C. § 1983 alleging that his Eighth Amendment constitutional rights had been violated. At the time plaintiff commenced his lawsuit, he was housed at the Auburn Correctional Facility ("Auburn"). (Am. Compl. ¶ 3.) Plaintiff asserts two claims based on the following:

(1) that on October 10, 2002, he was exposed to mold in a shower; and (2) that in March and June of 2003 he was unjustly punished for disciplinary infractions.(Am. Compl., at 5, 10.)

Subsequently, on July 19, 2004, plaintiff's filed an amended complaint alleging that he has Acquired Immune Deficiency Syndrome and is suffering from prolonged skin infections, fungus in the finger, "immune cold," and experienced and is experiencing serious weight loss. He also alleges that he is exposed to harmful germs and opportunistic infections (which may cause death at a faster rate). In addition, he contends in his moving papers, that defendants' deliberate indifference to his health and nutritional well-being has caused him to suffer from wasting syndrome and that, together, plaintiff's allegations sufficiently allege "imminent danger" to except him from the "three-strikes" provision of 28 U.S.C. § 1915(g).

Plaintiff is an experienced litigator. In the past few years, he has had over three lawsuits or appeals dismissed as frivolous. Those include the following:

1. Polanco v. Selsky , 9:02-CV-00680-LEK-RFT (N.D.N.Y. Sep. 29, 2004). The district court granted summary judgment to defendants on September 29, 2004. Plaintiff appealed (See Docket Entry 95, Notice of Appeal dated Oct. 19, 2004), and the Court of Appeals for the Second Circuit affirmed. Polanco v. Selsky , No. No. 04-5716-PR, 142 Fed. Appx. 538, 2005 U.S. App. LEXIS 19529 (2d Cir. Sept 7, 2005). Significantly, in its opinion affirming the award of summary judgment to defendants, the Second Circuit noted that it heard ten appeals from Polanco since 1987, three of which followed a warning, issued in July 2000, against filing future frivolous appeals. At least five of these appeals (including two since the warning) were dismissed as frivolous, and none of them were meritorious.

Id. at *2 n.1 (emphasis added). Consequently,"[i]n light of the numerous frivolous claims Polanco has filed in the past, and the warning that he has received and disregarded" the Second Circuit ordered Polanco "to show cause, within twenty days of the entry of [its] order, why he should not be enjoined from filing any papers in this court without first obtaining the permission of this court" Id.

2. Polanco v Lewis , No. 6:96-CV-01426-LEK-DRH (N.D.N.Y. Jan. 23, 1999): The district court granted summary judgment and certified that "an appeal from this decision would not be taken in good faith." (Decision and Order (# 66), No. 6:96-CV-01426-LEKDRH, Jan. 23, 1999.) Plaintiff then appealed. The Court of Appeals for the Second Circuit denied Polanco's motion for in forma pauperis status, and dismissed the appeal "as frivolous within the meaning of 28 U.S.C. § 1915." (Judgment of USCA (# 70), No. 6:96-CV-01426-LEK-DRH, Jan. 31, 2000.)

3. Polanco v. Allan , No. 9:93-CV-0148-TJM-RWS (N.D.N.Y. Apr. 4, 2002). According to the docket, the Second Circuit dismissed plaintiff's appeal of the district court's order denying him a retrial "because of lack of an arguable basis in fact or law." (Mandate of USCA, Nos. 00-215 and 01-221 (Docket # 181).)

4. Polanco v. Greifinger , No. 93-CV-6300-CJS (W.D.N.Y. Jul. 28, 2000). Plaintiff's appeal of this Court's order granting summary judgment to defendants was dismissed by the Second Circuit as frivolous. (Mandate of USCA, Docket # 95, Jul. 28, 2000, "denying Appellant's motion for Assignment of Counsel and dismissing Appeal because it lacks an arguable basis in law or fact. Appellant has also been cautioned that filing any further submissions in this Court may result in sanctioning.").

5. Polanco v. McClellan , No. 95-CV-06129-CJS (W.D.N.Y. Jul. 31, 2000). Once again, plaintiff's appeal was dismissed as lacking in any arguable basis in fact, and plaintiff was cautioned that any future frivolous submissions could result ...

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