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Sash v. Plummer

May 27, 2008

ELIOT S. SASH, PLAINTIFF,
v.
DIANNE PLUMMER, ET AL., DEFENDANT.



The opinion of the court was delivered by: Sidney H. Stein, U.S. District Judge

MEMORANDUM OPINION ORDER

Eliot Sash brings this action for damages against the United States Probation Officer who prepared Sash's pre-sentence report ("PSR") in 2003 after he pled guilty to federal crimes. Sash claims that that probation officer negligently prepared the PSR, which allegedly damaged him. He has also named the Chief U.S. Probation Officer and the U.S. Probation Department itself as defendants. Sash is representing himself in this action, which he filed while in prison. He seeks to proceed in forma pauperis ("IFP") in this lawsuit. IFP status would relieve him from paying court costs and fees. This complaint is the sixteenth federal lawsuit Sash has filed since 2003. The government, on behalf of defendants, seeks to have Sash barred from proceeding IFP pursuant to the so-called "three strikes" rule of 28 U.S.C. § 1915(g), and seeks to have Sash enjoined from filing further frivolous and vexatious litigation. Because the three strikes rule applies to this action, Sash's application to proceed IFP is denied, and this action is dismissed without prejudice to commencing the action upon payment of the requisite filing fee. However, the Court declines to impose a filing injunction on Sash at this time.

I. HISTORY OF THIS ACTION

In October of 2007, Magistrate Judge James C. Francis, to whom this action was referred for pre-trial purposes, directed Sash to show cause why his IFP status, which had been granted when he first filed this action, should not be revoked pursuant to the three strikes rule. (Order dated Oct. 18, 2007.) Sash failed to show cause, and on December 14, 2007, Judge Francis issued a Report and Recommendation recommending that Sash's complaint be dismissed pursuant to the three strikes rule, since he had previously filed while imprisoned four cases that were either frivolous or lacked a basis in law or fact. (Report and Recommendation dated Dec. 14, 2007, at 3-4.) Sash has now filed objections to the Report and Recommendation.*fn1

Sash's objections are as follows: (1) the prior actions were meritorious and never should have been dismissed; (2) the prior actions were dismissed solely because they were filed prematurely, and thus do not count as strikes under Tafari v. Hues, 473 F.3d 440, 443 (2d Cir. 2007); (3) 28 U.S.C. § 1915(g) is unconstitutional; (4) two of the strikes cited by the magistrate judge should not count because Sash was not incarcerated when he filed those cases; and (5) this action is not governed by 28 U.S.C. § 1915(g) because Sash has been released from incarceration and section 1915(g) only applies to prisoners.

II. HISTORY OF SASH'S PRIOR ACTIONS

A. Sash's Criminal History

In 2002, Sash was indicted in New York State court on twenty-three counts of filing insurance documents that falsely claimed that his wife had been killed in the World Trade Center attacks on September 11, 2001. See Sash v. Dudley, No. 05 Civ. 7498, 2006 WL 997256, at *1 (S.D.N.Y. Apr. 17, 2006). He subsequently pled guilty to one count of forgery in the second degree. Id. While those state charges were pending, Sash was arrested on federal charges for unlawfully producing and possessing New York City Police Department badges and selling counterfeit police badges. See Sash v. Schwartz, No. 04 Civ. 9634, 2007 WL 30042, at *2 (S.D.N.Y. Jan. 4, 2007). After being released on bail, he was arrested for possession of counterfeit bar code stickers for merchandise at K-Mart. Id. He eventually pled guilty in federal court to identification fraud and access device fraud and was sentenced to twenty-seven months in prison. Id.

After being released from federal incarceration, Sash was arrested again on March 6, 2006, and was found guilty of violating the terms of his supervised release by possessing police badges and police uniforms and failing to answer truthfully his probation officer's inquiries; he was sentenced to twenty-four months' imprisonment. Id.; see also United States v. Sash, 444 F. Supp. 2d 224, 227-29 (S.D.N.Y. 2006).

B. Sash's History of Litigation

As noted above, Sash has filed sixteen federal actions, ranging from several suits against former attorneys for malpractice to suits against prison officials to suits for false arrest. (See Defendants' Response to Plaintiff's Objections to the Report and Recommendation of Magistrate Judge Francis ("Def.'s Resp.") at 4-5 (listing cases).) Several of these cases have been dismissed for failure to state a claim upon which relief can be granted, see, e.g., Sash v. Parks, No. 06 Civ. 4218 (S.D.N.Y. 2006); for lack of subject matter jurisdiction, see, e.g., Sash v. Callahan, No. 05 Civ. 8798 (S.D.N.Y. 2005); or for failure to meet the requirements of a habeas petition, see, e.g., Sash v. Zenk, No. 04 Civ. 2503 (E.D.N.Y. 2004).*fn2 Sash has also taken appeals that the Second Circuit has determined "lack[] an arguable basis in fact or law," see, e.g., Sash v. Parks, No. 06-3602-cv (2d Cir. Jan. 12, 2007); Sash v. Clinton County, No. 04-0152-pr (2d Cir. Dec. 8, 2004), even after district judges had concluded that any appeal would not be taken in good faith (see, e.g., Order dated June 5, 2006, Sash v. Parks, No. 06 Civ. 4218 (S.D.N.Y.); Order dated March 24, 2004, Sash v. Clinton County, No. 03 Civ. 1321 (N.D.N.Y.)). In each of these actions, Sash had been permitted to proceed IFP.

III. THREE STRIKES RULE

A plaintiff who cannot afford to pay court costs and fees may, with the permission of the court, commence an action without paying costs or fees. 28 U.S.C. § 1915. However, 28 U.S.C. § 1915(g)-the "three strikes" clause-was added in 1996 by the Prison Litigation Reform Act ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321-66 to 1321-74 (1996), for the specific purpose of curbing what Congress believed to be abusive litigation by prisoners. See Tafari v. Hues, 473 F.3d 440, 443-44 (2d Cir. 2007). That clause provides as follows: In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding [in forma pauperis] 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.

28 U.S.C. § 1915(g). The purpose behind the three strikes clause is to "'forc[e prisoners] to go through the same thought process non-inmates go through before filing a suit, i.e., is filing this suit worth the costs?'" Tafari, 473 F.3d at 443 (quoting Rodriguez v. Cook, 169 F.3d 1176, 1181 (9th Cir. 1999)). Simply because a case is unsuccessful, however, does not mean it constitutes a "strike" under section 1915(g): the statute requires that the action or ...


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