UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
December 16, 2008
ELBERT WELCH, PLAINTIFF,
T. CHARLAN, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Glenn T. Suddaby, United States District Judge
MEMORANDUM-DECISION and ORDER
On January 9, 2006, Elbert Welch ("Plaintiff") filed this pro se prisoner civil rights action pursuant to 42 U.S.C. § 1983. (Dkt. No. 1, at 7 [Plf.'s Compl., dated Jan. 9, 2006].) On June 1, 2006, the Court granted Plaintiff's motion to proceed in forma pauperis. (Dkt. No. 12.) On September 24, 2008, United States Magistrate Judge David E. Peebles filed a Report-Recommendation that Plaintiff's in forma pauperis status be revoked as having been improvidently granted, based on the "Three Strikes Rule," 42 U.S.C. § 1915(g). (Dkt. No. 53.) Plaintiff has not filed any Objections to the Report-Recommendation. (See generally Docket Sheet.) Based on a careful review of all the papers in this action, including the Report- Recommendation of Magistrate Judge Peebles, the Court can find no error (clear or otherwise) with Magistrate Judge Peebles' Report-Recommendation. The Court would add only three points to Magistrate Judge Peebles' thorough Report-Recommendation.
First, the power of a federal district court to invoke the "Three Strikes Rule" is not limited to the outset of a litigation but extends throughout the pendency of the proceeding. In other words, a federal district court has the authority to rescind or revoke the in forma pauperis status that it has previously bestowed upon a plaintiff, if the court discovers that the status had been improvidently granted.*fn1
Second, 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. 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). Here, the Court finds that, even when construed with the utmost of special solicitude, Plaintiff's Complaint does not allege facts plausibly suggesting that he was in imminent danger of serious physical injury on January 9, 2006. (See Dkt. No. 1 [Plf.'s Compl.].)*fn2 For example, Plaintiff's allegations of a conspiracy to poison him suffer from one or more of the following three defects: (1) they refer to events that occurred well before the date on which Plaintiff brought the action on January 9, 2006 (for example, because they refer to "a massive conspiracy dating back to 1979"); (2) they are merely speculative in nature (for example, because they allege that "the swelling on [Plaintiff's] upper lip . . . could well be the result of . . . tainted food served by conspirators");*fn3 (3) they are so general as to be conclusory in nature;*fn4 and/or (4) they are so implausible and fantastic as to be frivolous.*fn5 (Id. at "Attachment.")
Third, when the Court originally granted Plaintiff's motion to proceed in forma pauperis, the Court was undoubtedly relying on Plaintiff's sworn representation in his verified Complaint that his previously litigation history in federal court consisted of merely one other federal court action. (Dkt. No. 1, ¶¶ V.A.-E. [Plf.'s Compl.].) This representation was blatantly false, given Plaintiff's extensive litigation history in federal court, which is published on the Federal Judiciary's Public Access to Court Electronics Records ("PACER") Service. This representation was also highly material, given Plaintiff's accumulation of strikes during the course of that ligation history. As a result, an alternative ground for revoking Plaintiff's in forma pauperis status is that he should be sanctioned for making a material misrepresentation to the Court.*fn6
For all of these, the Court adopts the Report-Recommendation of Magistrate Judge Peebles.
Finally, a few words are necessary about Plaintiff's litigation history in this Court. The Court is fully aware of the special solicitude that Plaintiff should be afforded as a pro se civil rights litigant. However, the Court is also aware of the abusive nature of Plaintiff's litigation history in this Court, and that litigation history's impact on the resources of this Court (and the speed with which the Court has been able to decide the civil rights claims of other pro se prisoners). For example, Plaintiff's litigation history in this Court has included the filing of sixteen (16) other prisoner cases since 1996. Each of these cases sixteen other cases has been transferred or dismissed (often based on failure to state a claim or frivolousness),*fn7 except for one case (in which Plaintiff has been required to file an Amended Petition, which properly states a habeas corpus claim, by December 19, 2008, upon penalty of dismissal).*fn8 In addition, in some of these sixteen cases, Plaintiff has attempted to relitigate claims (e.g., his food-poisoning conspiracy claim) that had been previously decided and/or dismissed with prejudice.*fn9
Moreover, in some of the sixteen cases, Plaintiff has attempted to circumvent the "Three Strikes Rule" by either misrepresenting his litigation history in his sworn Complaints, or casting his prisoner civil rights claims as habeas corpus claims.*fn10 Finally, in several of the sixteen cases, Plaintiff (who is currently incarcerated in the Western District of New York) has intentionally misfiled his Complaints in this Court instead of in the Western District of New York, because he believes the judges of that District are engaged in a massive conspiracy against him.*fn11
For these reasons, Plaintiff is cautioned that, if he continues his pattern of abusive litigation in this Court, he will be subject to an Order preventing him from filing future actions in this Court without either (1) being represented by counsel or (2) obtaining prior leave of the Court. The Court notes that Plaintiff has already received a similar bar order from the Second Circuit. See Welch v. Phelps, No. 03-0045, Order (2d Cir. filed Oct. 7, 2003).
ACCORDINGLY, it is
ORDERED that United States Magistrate Judge David E. Peebles' Report-Recommendation (Dkt. No. 53) is ADOPTED in its entirety; and it is further
ORDERED that Plaintiff's in forma pauperis status is REVOKED as having been improvidently granted; and it is further
ORDERED that, if Plaintiff has not paid the Court's prior filing fee of two hundred fifty dollars ($250) within thirty (30) days of the date of this Memorandum-Decision and Order, his Complaint (Dkt. No. 1) shall be DISMISSED without further Order of this Court; and it is further
ORDERED that the parties' cross-motions for summary judgment (Dkt. Nos. 42, 43) are DENIED as moot without prejudice to renewal if Plaintiff pays the required filing fee within the prescribed period; and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order upon the parties and Magistrate Judge Peebles.