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Burgess v. Conway

July 7, 2009


The opinion of the court was delivered by: David G. Larimer United States District Judge


Plaintiff, Herbert Burgess, appearing pro se, commenced this action under 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), has sued several DOCS employees and other defendants, alleging that defendants violated plaintiff's constitutional rights in certain respects in 2008, while plaintiff was confined at Attica Correctional Facility.

Defendants have moved to revoke plaintiff's in forma pauperis ("IFP") status and to dismiss the complaint pursuant to 28 U.S.C. § 1915(g). Section 1915(g), which is sometimes referred to as the "three strikes" provision of the Prison Litigation Reform Act ("PLRA"), provides that:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this [IFP] 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). See also Polanco v. Hopkins, 510 F.3d 152, 153 (2d Cir. 2007) ("Section 1915(g) denies in forma pauperis status--that is, the ability to file a civil action with fees paid by the Court--to an incarcerated person who has [earned three 'strikes' under the statute]") (per curiam).

Defendants' motion is granted. The record shows conclusively that plaintiff has had at least three actions or appeals dismissed on grounds falling within the categories enumerated in § 1915(g).


I. Plaintiff's "Strikes" Strike One

In Burgess v. Fischer, 07-CV-0204, plaintiff sued several DOCS officials and employees in the Northern District of New York for violations arising out of an alleged assault on plaintiff by another inmate. On March 10, 2009, District Judge Glenn Suddaby granted the defendants' motion for judgment on the pleadings. See Def. Ex. A (Dkt. #13 at 13-16). The basis for the decision was that plaintiff had, or could have, brought those same claims in at least three prior actions that he had filed in the Northern District, in all of which plaintiff had entered into stipulations of discontinuance. Id. at 14. That dismissal clearly counts as a strike, since the fatal defect in that action was not merely "technical" or procedural in nature, and could not have been remedied by the plaintiff. See Tafari v. Hues, 473 F.3d 440, 442 (2d Cir. 2007) ("the label attached to the defect is of far less significance than whether the defect is remediable").

Strike Two

In Burgess v. Tadder, 02-CV-6476, which was filed in this district, plaintiff asserted claims against several correction officers and the superintendent of Southport Correctional Facility. On October 3, 2002, then-Senior District Judge John T. Elfvin of this Court dismissed the complaint sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B) and denied permission to proceed IFP on appeal. See Def. Ex. B (Dkt. #13 at 19).

Section 1915(e)(2)(B) provides that "the court shall dismiss the case at any time if the court determines that ... the action ... is frivolous or malicious; fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief." Again, these are fundamental defects that clearly fall within the scope of § 1915(g), and indeed plaintiff in this action does not appear to contest that the dismissal of his complaint in Tadder counts as a strike.

Strike Three

On appeal from the dismissal of the complaint in Tadder, the Court of Appeals denied plaintiff's IFP request and dismissed the appeal as frivolous. See Def. Ex. B (Dkt. #13 at 19). Plaintiff contends that this should not count as a third strike because, he argues, he should be assessed no more than one strike per action.

The text of the statute itself (which refers to dismissal of "an action or appeal"), and the cases interpreting it, are clearly to the contrary, however. See, e.g., Jennings v. Natrona County Detention Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999) ("If we dismiss as frivolous the appeal of an action the district court dismissed under 28 U.S.C. § 1915(e)(2)(B), both dismissals count as strikes"); Hains v. Washington, 131 F.3d 1248, 1250 (7th Cir. 1997) ("A frivolous complaint ... followed by a frivolous appeal leads to two 'strikes' under 28 U.S.C. § 1915(g)"); Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996) ("both the frivolous appeal and a lower court's dismissal as frivolous count" as strikes); Wolfe v. Zappala, No. 2:09CV315, 2009 WL 1160932, at *2 n.6 (W.D.Pa. Apr. 28, 2009) ("There is no bar to counting the dismissal of a case in the District Court level as one strike and the dismissal of appeal ...

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