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Welch v. Fisher


October 30, 2007


The opinion of the court was delivered by: Thomas J. McAVOY, Senior District Judge


I. Introduction

Presently before this Court is a civil rights complaint from pro se plaintiff Elbert Welch, together with an application to proceed in forma pauperis. Plaintiff, who has not paid the fee for this action, is presently confined in Orleans Correctional Facility. Dkt. No. 1 at 1. Plaintiff has also filed a motion seeking a temporary restraining order prohibiting defendants from confining plaintiff in the special housing unit or in disciplinary cell confinement. Dkt. No. 7.

II. Discussion

Where a plaintiff seeks leave to proceed in forma pauperis, the Court must determine whether the plaintiff has demonstrated sufficient economic to proceed without prepaying, in full, the $350.00 filing fee.*fn1 The Court must also consider whether the causes of action stated in the complaint are, inter alia, frivolous or malicious, or if they fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B); see also 28 U.S.C. § 1915A(b)(1).*fn2 In addition, the Court must determine whether the so-called "three strikes" rule of § 1915(g) bars the plaintiff from proceeding in forma pauperis or whether the plaintiff has properly invoked the "imminent danger" exception set forth therein. 28 U.S.C. § 1915(g).*fn3

By his complaint, plaintiff alleges that he is the victim of an ongoing conspiracy to poison him in order to prevent him "from testifying as a witness in the FBI investigations and litigation instituted by the United States Department of Justice" and in his own civil rights cases. Dkt. No. 1 at 6. Plaintiff is a frequent litigator in federal court and has filed numerous actions based upon this alleged conspiracy. Indeed, plaintiff's litigation history earned him "three strikes" under 28 U.S.C. § 1915(g) more than seven years ago. See Welch v. Galie, 207 F.3d 130, 132 (2d Cir. 2000). Since that date, plaintiff has continued to file civil rights complaints pursuant to 28 U.S.C. § 1983, invoking in each case the "imminent danger" exception to the three strikes rule. See e.g., Welch v. Oldenburg, 9:07-CV-0973 (FJS/DRH); Welch v. Selsky, 9:06-CV-0812 (LEK/DEP); Welch v. Charlan, 9:06-CV-00612 (LEK/DEP).*fn4

"The 'imminent danger' exception was enacted by Congress to create "a safety prevent impending harms....'" Pettus v. Mangano, 2005 WL 1123761 (E.D.N.Y. 2005) (quoting Malik v. McGinnis, 293 F.3d 559, 563 (2d. Cir. 2002)). The "imminent danger" exception was not intended to allow plaintiffs to file actions concerning claims unrelated to plaintiffs' "imminent danger," or "harms that had already occurred." Malik, 293 F.3d at 563. The alleged imminent danger must be "real or proximate," and "occurring at the time the complaint is filed." Pettus, supra at *1 (quoting Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003)). Inmate's claims of asserted imminent danger that are "conclusory or ridiculous" are not sufficient. Ciarpaglini, 352 F.3d at 331.

In a situation where the plaintiff has set forth a claim of conspiracy, "a higher burden is imposed and requires that the plaintiffs file a detailed factual pleading." Rigby v. Coughlin, 730 F. Supp. 1196, 1199 (N.D.N.Y. 1990). See Polur v. Raffe, 912 F.2d 52, 56 (2d Cir. 1990) ("[i]t is incumbent on a plaintiff to state more than conclusory allegations to avoid dismissal of a claim predicated on a conspiracy to deprive him of his constitutional rights.").

The Court is mindful of plaintiff's status as a pro se litigant and has reviewed the complaint carefully to determine whether plaintiff is under "imminent danger of serious physical injury" and whether the complaint, as drafted, states a claim upon which relief may be granted. As noted, plaintiff claims to be the victim of a long-standing conspiracy. In this action, plaintiff alleges that the defendants have "conspired to confine him to cells" and that "DOCS officials and inmates acting in concert" have contaminated his food. Dkt. No. 1 at 4-5.*fn5 In addition to monetary damages, plaintiff seeks injunctive relief restraining defendants from subjecting him to cell confinement.*fn6

Plaintiff does not provide any factual support whatsoever for his claims. Plaintiff does not allege that he was being held in disciplinary cell confinement when the complaint was filed, nor does the complaint set forth any facts regarding any previous confinements. The mere allegation that defendant Ambrose has threatened to place disciplinary charges against plaintiff is not sufficient to demonstrate that plaintiff is in imminent danger of serious physical injury, nor does it state a claim upon which relief may be granted. Plaintiff's claim of food poisoning is also wholly unsupported.*fn7

The Court has also reviewed plaintiff's motion for a temporary restraining order. Dkt. No. 7. By that motion, plaintiff alleges that he was confined to the special housing unit on September 14, 2007 following a Tier II hearing conducted by Lt. Oldenburg, who is not a defendant in this action.*fn8 Plaintiff appears to rely on this disciplinary determination as evidence of the conspiracy alleged in this action. However, because there is no basis upon which this Court could conclude that the disciplinary determination was in any way improper or without foundation, nothing in plaintiff's motion alters the Court's conclusions regarding the sufficiency of plaintiff's claims.

In sum, the Court finds that the allegations set forth in plaintiff's complaint do not demonstrate that plaintiff is under "imminent danger" of serious physical injury and he is therefore barred from proceeding with this action in forma pauperis. Moreover, the Court finds that the allegations of the complaint are not sufficient to state a claim for relief for relief under § 1983 based upon a conspiracy to deprive plaintiff of his constitutional rights, and hereby dismisses this action.

III. Conclusion

Accordingly, it is hereby

ORDERED, that plaintiff's application to proceed in forma pauperis (Dkt. No. 2) is denied pursuant to 28 U.S.C. § 1915(g), and it is further

ORDERED, that this action is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B), and it is further

ORDERED, that plaintiff's motion for injunctive relief (Dkt. No. 7) is denied as moot, and it is further

ORDERED, that the Clerk serve a copy of this Decision and Order on plaintiff by regular mail.

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