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Nelson v. Spitzer

January 29, 2008

DENNIS NELSON, PLAINTIFF,
V. ELIOT SPITZER; DAVID ROCK, SUPERINTENDENT, GREAT MEADOW CORRECTIONAL FACILITY; P. BRADY, CORRECTIONAL OFFICER, GREAT MEADOW CORRECTIONAL FACILITY, BRIAN FISCHER; RICHARD POTTER; J. GUMLAW; M. CLEVELAND; ET AL., DEFENDANTS.



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

DECISION and ORDER

I. Background

Presently before the Court is complaint, together with an in forma pauperis application, filed by plaintiff Dennis Nelson, who is presently incarcerated at the Great Meadow Correctional Facility. Dkt. No. 1. Plaintiff also requests injunctive relief. Dkt. No. 4.

As is more fully discussed below, plaintiff must pay the $350.00 filing fee in full, and submit an amended complaint, before this action may be permitted to proceed.

II. Discussion.

A. In Forma Pauperis Application

Section 1915(e) directs that, when a plaintiff seeks to proceed in forma pauperis, "(2) . . . the court shall dismiss the case at any time if the court determines that -- . . . (B) the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).*fn2

Thus, the court has a responsibility to determine that a complaint may be properly maintained in this district before it may permit a plaintiff to proceed with an action in forma pauperis.*fn3 See id.

Although the court has the duty to show liberality towards pro se litigants, Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to respond, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983), there is a responsibility on the court to determine that a claim is not frivolous before permitting a plaintiff to proceed with an action in forma pauperis. See e.g. Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curiam) (holding that a district court has the power to dismiss a complaint sua sponte if the complaint is frivolous).

In the present case, the Court finds that plaintiff's financial status would qualify him to file or "commence" this action without prepaying in full the filing fee. However, 28 U.S.C. § 1915(g), as amended, provides:

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.*fn4

28 U.S.C. § 1915(g) (emphasis added). Accordingly, the Court has a responsibility to determine that a plaintiff has not brought actions, on three or more occasions, which have been dismissed as frivolous, malicious or for failure to state a claim before permitting that plaintiff to proceed with an action in forma pauperis. Id.

A review of plaintiff's prior proceedings reveals that plaintiff does have three "strikes" and, thus, should not be permitted to proceed with this action in forma pauperis. See Nelson v. Lee, 9:05-CV-1096 (DEP)(NAM), Dkt. Nos. 44 and 47; Nelson v. Hamel, 9:07-CV-540 (GLS)(RFT), Dkt. No. 4; and Nelson v. Conway, No. 04-CV-6163CJS(Fe) (W.D.N.Y. Apr. 21, 2004) (Defendants' Motion (Dkt. No. 40) Ex. B). This Court has reviewed, and concurs with, the findings of Chief District Judge Mordue, District Judges Sharpe and Siragusa, and Magistrate Judge Peebles, with respect to the prior actions filed by this plaintiff and dismissed by the federal courts, as detailed in the aforesaid cases.*fn5

Further, the Court has reviewed the complaint to determine whether plaintiff is under an imminent danger of serious physical injury. In his complaint, plaintiff alleges that staff at Great Meadow Correctional Facility are threatening to harm plaintiff if he tries to leave his cell for medical appointments to treat gangrene in his lower left leg.*fn6 Dkt. No. 1 at 5-6. Plaintiff has previously filed allegations regarding this injury, claiming denial of adequate medical treatment and alleging potential amputation of his left leg. ...


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