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Harnett v. Tetreault

August 17, 2009

TIMOTHY HARNETT, A/K/A SHAIABDULLAH MUHAMMAD, PLAINTIFF,
v.
K.D. TETREAULT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge

REPORT-RECOMMENDATION and ORDER

Pro se Plaintiff Timothy Harnett has brought this claim, under 42 U.S.C. § 1983, alleging that the Defendants conspired to deprive him of his constitutional rights in retaliation for his filing a grievance against Defendant K.D. Tetreault. Dkt. No. 1, Compl. Accompanying the filing of his original Complaint was a Motion for leave to Proceed In Forma Pauperis ("IFP"), which was granted by the Court. Dkt. Nos. 2 & 4.

Presently before the Court is Defendants' Motion to Revoke Plaintiff's IFP Status and Conditionally Dismiss his Amended Complaint pursuant to 28 U.S.C. § 1915(g). Dkt. No. 50. Despite being granted an extension of time to do so, Plaintiff has not substantively opposed the Motion.*fn1 For the reasons that follow, it is recommended that Defendants' Motion be GRANTED.

I. DISCUSSION

A. 28 U.S.C. § 1915

Under 28 U.S.C. § 1915, individuals may seek leave of court to pursue their claims without prepayment of fees and costs and proceed with the litigation as a poor person or in forma pauperis.

28 U.S.C. § 1915(a)(1). The IFP statute enables prisoners to similarly apply for this privilege, and indeed, many, if not most, incarcerated individuals bringing civil suits have taken advantage of such opportunity. Id. at § 1915(a)(2). Also under this statute, a court may sua sponte dismiss a case if it determines at any time that such action is (1) frivolous or malicious, (2) fails to state a claim on which relief may be granted, or (3) seeks monetary relief against a defendant who is immune from such relief. Id. at § 1915(e)(2).

Recognizing the potential for prisoner abuse and seeking to relieve congestion of patently frivolous prisoner suits, Congress enacted the Prisoner Litigation Reform Act (PLRA) of 1996, which renders several restrictions on a prisoner's ability to exploit the justice system. One such mechanism is the so-called "three-strike rule" which provides that

[i]n 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).

In recognizing the legitimate government interests fostered by the PLRA amendments, the Second Circuit stated that,

[p]rior to the enactment of the in forma pauperis amendments, inmates suffered no economic disincentive to filing lawsuits. Indeed, the very nature of incarceration--prisoners have substantial free time on their hands, their basic living expenses are paid by the state and they are provided free of charge the essential resources needed to file actions and appeals, such as paper, pens, envelopes and legal materials--has fostered a "'nothing to lose and everything to gain'" environment which allows inmates indiscriminately to file suit at taxpayers' expense. See Anderson v. Coughlin, 700 F.2d 37, 42 (2d Cir. 1983) (quoting Jones v. Bales, 58 F.R.D. 453, 463-64 (N.D.Ga. 1972), aff'd, 480 F.2d 805 (5th Cir. 1973)).

Nicholas v. Tucker 114 F.3d 17, 20 (2d ...


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