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Escalera v. Graham

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


May 27, 2008

WILLIAM ESCALERA, PLAINTIFF,
v.
H. GRAHAM, SUPERINTENDENT; ET AL., DEFENDANTS.

The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge

ORDER and REPORT-RECOMMENDATION

This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me by the Honorable Gary L. Sharpe, United States District Judge, to hear and determine all pretrial matters (of a non-dispositive nature) and issue report-recommendations on all dispositive matters before the Court, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Currently before the Court is Plaintiff's motion to proceed in forma pauperis. (Dkt. No. 2.) For the reasons discussed below, I deny Plaintiff's motion pursuant to 28 U.S.C. § 1915(g), and I recommend that the Court sua sponte dismiss his Complaint (pursuant to 28 U.S.C. §§ 1915[e][2][B][ii], 1915A) if he has not, within thirty (30) days of the date of this Order and Report-Recommendation, (1) paid the Court's filing fee of three hundred fifty dollars ($350), and (2) filed an Amended Complaint that complies with Fed. R. Civ. P. 8(a)(2), 10(b), and 12(b)(6).

I. SUMMARY OF PLAINTIFF'S COMPLAINT

Generally, in his Complaint, William Escalera ("Plaintiff") alleges that eight employees of Auburn Correctional Facility ("Auburn C.F."), and an unidentified number of members of the "Time Allowance Committee" at Auburn C.F. (collectively "Defendants"), violated his rights under the First, Eighth and Fourteenth Amendment in the following five ways:

(1) They were deliberately indifferent to his serious medical needs in various unspecified ways between October 5, 2004 (when he was admitted to Auburn C.F.) and April 12, 2008 (the time he dated his Complaint in this action), both before and after approximately April of 2006, when he underwent surgery to remove a bunion on the big toe of his right foot;

(2) They were deliberately indifferent to his serious medical needs when, following his making of "sick call" requests on April 4, 2008, and April 7, 2008 (presumably regarding his "seizures disorder" and "history of eczema"), he was seen by a nurse who denied his request for "medications, [a] medical shower, and appoints. to see [a] doctor";

(3) They wrongfully convicted him of disciplinary charges on February 25, 2008;

(4) They wrongfully terminated him from the Auburn C.F. Alcohol Substance Abuse Treatment ("ASAT") Program, because of the thirty (30) day sentence of keeplock confinement that was imposed on him following his disciplinary conviction on February 25, 2008, and they wrongfully denied his request to be reinstated in that Program; and

(5) They wrongfully denied him due process of law, an impartial hearing officer, and equal protection of the law during a hearing conducted on April 9, 2008, regarding a grievance that Plaintiff had filed against a correctional officer on February 10, 2008, alleging assault. (See generally Dkt. No. 1 [Plf.'s Compl.].)

II. DISCUSSION

A. Three Strikes Rule

Under the so-called "Three Strikes Rule" set forth in the federal statute governing in forma pauperis proceedings,

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.

28 U.S.C. § 1915(g).

Here, I find that, before Plaintiff brought this action on April 12, 2008, he had acquired at least five (5) "strikes" for purposes of 28 U.S.C. § 1915(e)(2):

Strike 1: Escalera v. Seligman, 05-CV-1391, Order of Dismissal (S.D.N.Y. filed Feb. 2, 2005) (Mukasey, J.) (sua sponte dismissing Plaintiff's prisoner civil rights action pursuant to 28 U.S.C. § 1915[e][2], and certifying that any appeal therefrom would not be taken in good faith), appeal dismissed, No. 05-1603, Order of Dismissal (2d Cir. filed May 11, 2005);*fn1

Strike 2: Escalera v. New York City Housing Dept., 05-CV-1446, Order of Dismissal (S.D.N.Y. filed Feb. 4, 2005) (sua sponte dismissing Plaintiff's prisoner civil rights action for failure to state claim pursuant to 28 U.S.C. § 1915[e][2][B][ii], and certifying that any appeal therefrom would not be taken in good faith) (Mukasey, J.), appeal dismissed, No. 05-1597, Order of Dismissal (2d Cir. filed June 2, 2005);

Strike 3: Escalera v. N.Y.P.D., 05-CV-1435, Order of Dismissal (S.D.N.Y. filed Feb. 4, 2005) (sua sponte dismissing Plaintiff's prisoner civil rights action for failure to state claim and for seeking monetary relief against defendant who is immune from such relief, pursuant to 28 U.S.C. § 1915[e][2][B][ii],[iii]) (Mukasey, J.), appeal dismissed, No. 05-1602, Order of Dismissal (2d Cir. filed Nov. 4, 2005);

Strike 4: Escalera v. Selsky, 06-CV-0837, Order of Dismissal (N.D.N.Y. filed March 8, 2007) (Kahn, J.) (dismissing Plaintiff's prisoner civil rights action for failure to comply with Order filed Nov. 6, 2006, sua sponte requiring Plaintiff, pursuant to 28 U.S.C. § 1915[e][2][B], to file amended complaint due to the failure of his original complaint to state a claim upon which relief might be granted pursuant to Fed. R. Civ. P. 8[a][2], 10[b], and 12[b][6]); and

Strike 5: Escalera v. Charwand, 04-CV-0983, Order of Dismissal (N.D.N.Y. filed March 12, 2008) (Scullin, J.), adopting Report-Recommendation (N.D.N.Y. filed Feb. 19, 2008) (Peebles, M.J.) (recommending Plaintiff's prisoner civil rights action be dismissed for failure to state claim pursuant to Fed. R. Civ. P. 12[b][6] and, in the alternative, failure to adduce sufficient evidence to create a triable issue of fact pursuant to Fed. R. Civ. P. 56).*fn2

Moreover, I find that Plaintiff has not shown that he is "under imminent danger of serious physical injury," sufficient to create an exception to the "Three Strikes Rule." See 28 U.S.C. § 1915(g) ("In no event shall a prisoner bring a civil action . . . if the prisoner has, on 3 or more prior occasions, . . . brought an action or appeal . . . that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim . . . unless the prisoner is under imminent danger of serious physical injury.") [emphasis added].

Because 28 U.S.C. § 1915(g) creates an exception for prisoners who are under imminent danger of serious physical injury when they "bring a civil action," the imminent-danger exception applies only when such danger exists at the time the action is brought, i.e., at the time the complaint is filed. See Malik v. McGinnis, 293 F.3d 559, 562-63 (2d Cir. 2002), accord, Polanco v. Hopkins, No. 07-1739, 2007 WL 4258724, at *2-3 (2d Cir. Dec. 6, 2007) (declining to overturn the Second Circuit's time-of-filing interpretation set forth in Malik v. McGinnis). Moreover, when determining whether a prisoner has qualified for the "imminent danger" exception, courts look at the non-conclusory allegations in the plaintiff's complaint.*fn3

Here, Plaintiff's Complaint, which is summarized above in Part I of this Order and Report-Recommendation, does not allege facts plausibly suggesting that, at the time that he signed his Complaint (April 12, 2008),*fn4 he was under imminent danger of serious physical injury. The closest that Plaintiff comes to making such an allegation is when he alleges that, following his making of "sick call" requests on April 4, 2008, and April 7, 2008 (presumably regarding his "seizures disorder" and "history of eczema"), he was seen by a nurse who denied his request for "medications [presumably including "Dilantin Phyentoin [sic] Sodium 100 mg."], [a] medical shower, and appoints. to see [a] doctor." (Dkt. No. 1, at 4 [Plf.'s Compl.].) Plaintiff's allegation about not receiving adequate care for his eczema through the provision of unspecified "medications" and a "medical shower" hardly alleges an imminent danger of serious physical injury.*fn5 Moreover, his allegation about not receiving adequate care for his "seizure[] disorder" (apparently) through the provision of "Dilantin Phyentoin [sic] Sodium" upon his request for that drug on April 4, 2008, and April 7, 2008, does not allege that he was under an imminent danger of serious physical injury on April 12, 2008. For example, Plaintiff does not allege that (1) the medical staff at Auburn C.F. was, on April 12, 2008, refusing to see him (to the contrary, he alleges he was seen by a nurse in response to his sick call requests on April 4, 2008, and April 7, 2008), and (2) he was altogether without Dilantin Phenytoin Sodium on April 12, 2008, or that the drug was even necessary to prevent him from suffering serious-physical-injury-causing seizures on a daily basis. It is worth noting that the crux of Plaintiff's seizure claim appears to be a disagreement with a medical care professional over his need for Dilantin Phenytoin Sodium, which generally is not even actionable under 42 U.S.C. § 1983.*fn6

Because Plaintiff had acquired at least three strikes before he brought this action, and because he does not allege facts plausibly suggesting that he was under imminent danger of serious physical injury when he brought this action, I deny his motion to proceed in forma pauperis.

B. Deficiencies in Plaintiff's Complaint

Setting aside the prohibition established by the Three Strikes Rule, I find that Plaintiff's Complaint is subject to dismissal due to several pleading deficiencies:

(1) The handwriting of the Complaint is so illegible, and the paragraphs of the Complaint (which are not numbered) wander so freely from one circumstance to the next that the Complaint is confusing, ambiguous, vague and/or otherwise unintelligible under Fed. R. Civ. P. 8(a)(2) and 10(b);

(2) With regard to Plaintiff's apparent claim that he was deprived of adequate medical care for his foot between October 5, 2004, and April 12, 2005, that claim appears to be barred by the three-year limitations period governing claims brought under 42 U.S.C. § 1983 in federal courts sitting in New York State;

(3) With regard to any claim that Plaintiff was deprived of adequate medical care for his foot on or about November 30, 2006, that claim appears to be (or apparently will be) barred by the doctrines of res judicata and/or collateral estoppel since that claim is currently being litigated in the case of Escalara v. Fischer, 07-CV-1090, Complaint at 11 (N.D.N.Y. filed Oct. 15, 2007) (setting forth Plf.'s "Fourth Claim"), over which Judge Sharpe is presiding; and

(4) With regard to Plaintiff's claim that he was deprived of adequate medical care for his "seizure[] condition" and "history of eczema," his allegations about the efforts he took to exhaust his available administrative remedies regarding that claim are so specific (e.g., he filed a grievance on "4/7/08" and "4/9/08")--and yet so conspicuously devoid of any explanation of how he could have possibly appealed to, and have heard from, DOCS' Central Office Review Committee regarding that grievance by April 12, 2008--that he has effectively "pled himself out of court" with regard to that claim.*fn7

For all of these reasons, I recommend that Plaintiff's Complaint be sua sponte dismissed unless, within thirty (30) days of the date of this Order and Report-Recommendation, he (1) pays the Court's filing fee of three hundred fifty dollars ($350), and (2) files an Amended Complaint that complies with Fed. R. Civ. P. 8(a)(2), 10(b), and 12(b)(6).

ACCORDINGLY, it is

ORDERED that Plaintiff's motion to proceed in forma pauperis (Dkt. No. 2) is DENIED pursuant to 28 U.S.C. § 1915(g); and it is further

RECOMMENDED that the Court sua sponte DISMISS Plaintiff's Complaint (Dkt. No. 1), pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A, if he has not, within THIRTY (30) DAYS of the date of this Order and Report-Recommendation, (1) paid the Court's filing fee of three hundred fifty dollars ($350), and (2) filed an Amended Complaint that complies with Fed. R. Civ. P. 8(a)(2), 10(b), and 12(b)(6).

BE ADVISED that any objections to this Report-Recommendation must be filed with the Clerk of this Court within TEN (10) WORKING DAYS, PLUS THREE (3) CALENDAR DAYS (see Fed. R. Civ. P. 6[d]), from the date of this Report-Recommendation. See 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72(b), Local Rule 72.1(c), and Fed. R. Civ. P. 6(a)(2).

BE ALSO ADVISED that the District Court, on de novo review, will ordinarily refuse to consider arguments, case law and/or evidentiary material that could have been, but was not, presented to the Magistrate Judge in the first instance.*fn8

BE ALSO ADVISED that the failure to file timely objections to this Report-Recommendation will PRECLUDE LATER APPELLATE REVIEW of any Order of judgment that will be entered. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of H.H.S., 892 F.2d 15 [2d Cir. 1989]).


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