Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Asinski v. McCraken

November 19, 2009

MITCHELL KALW ASINSKI 82-A-4795, PLAINTIFF,
v.
R. MCCRAKEN, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Siragusa, J.

DECISION & ORDER

INTRODUCTION

Defendants filed a Notice of Motion and memorandum of support on August 26, 2009 (Docket No. 4), seeking an Order pursuant to 28 U.S.C. § 1915(g) and 28 U.S.C. § 1915(e)(2) revoking Plaintiff's in forma pauperis status and a stay, alleging that Plaintiff is in violation of the "three strikes" provision of the Prisoner Litigation Reform Act of 1995, PL 104-134, 110 Stat 1321 ("PLRA"). In his response to Defendants' motion, Plaintiff has included a cross-motion seeking, in essence, to strike Defendant's motion for failure to comply with Local Rule of Civil Procedure 7.1, by failing to "file with the court, and plaintiff a copy of its declaration, affidavit or affirmation in support of its notice of motion of [A]ugust 26, 2009.." (Kalwasinksi Decl. (undated) ¶ 3.) For the reasons stated below, both applications are denied.

BACKGROUND

Plaintiff filed a complaint on June 8, 2009, asserting claims against twelve defendants, all employees of the New York State Department of Correctional Services ("DOCS"). In his complaint, Plaintiff alleges he was confined at Southport Correctional facility (Compl. ¶ 1) when, on June 15, 2006, one defendant "maliciously and sadistically attacked plaintiff with a baton knocking plaintiff to the ground, then viciously and maniacally began to brutally kick with booted feet in his groin, thighs and back area causing serious physical injury to plaintiff" (Compl. ¶ 18). He also alleges that Defendants conspired to take unlawful measures against him to cover up the attack, and specifies the measures he alleges they took. (Compl. ¶¶ 19--25.) Plaintiff enumerates the actions in his complaint, which include filing false misbehavior reports against him, destroying his property, denying him exercise, showers, cell cleanup and library services, etc. Finally, he further alleges that he "is in imminent danger of serious physical injury as defendants continue to conspire to retaliate against plaintiff by beating him and causing him other injuries for his filing of grievances and lawsuits." (Compl. ¶ 44.)

On July 14, 2009, the Court granted Plaintiff's motion to proceed in forma pauperis and directed service of the complaint. On August 26, 2009, Defendants moved to dismiss (Docket No. 4), and Plaintiff sent his response to Chambers*fn1 on October 23, 2009.

According to the DOCS Inmate Locator,*fn2 Plaintiff was originally received by DOCS on October 5, 1982, on a new commitment from Kings County, New York, following a conviction for murder in the second degree. In pleading guilty, Plaintiff admitted that he struck a three-year-old infant more than two times and the child died as a result of the injuries. People v. Kalwasinski, 160 A.D.2d 732 (N.Y. App. Div. 1990). He received a sentence of fifteen years to life.

STANDARDS OF LAW

Local Rule of Civil Procedure 71

Western District of New York Local Rule of Civil Procedure 7.1 provides in pertinent part as follows:

All pleadings, notices and other papers shall be served and filed in accordance with the Federal Rules of Civil Procedure..

Under all other circumstances, and except as ordered otherwise by the Court, notices of motion together with supporting affidavits and memoranda shall be served on the parties and filed with the Clerk at least ten business days prior to the return date of the motion.

(Loc. R. Civ. P. 7.1(a) & (c).) Federal Rule of Civil Procedure 12(b) permits any of the enumerated defenses to be made by motion; however, "Motions advancing non-Rule 12(b) defenses and objections also are authorized by several federal statutes." 5C Fed. Prac. & Proc. Civ. § 1360 (3d ed.). The Court has previously entertained a motion pursuant to the Prison Litigation Reform Act. See Burgess v. Conway, 631 F. Supp. 2d 280 (W .D.N.Y. 2009). Unlike motions for summary judgment, a motion made under the PLRA does not require supporting affidavits, and the issue of whether a prior dismissed lawsuit is a "strike" for PLRA purposes is a question of law for the Court. See Tafari v. Hues, 473 F.3d 440 (2d Cir. 2007). PLRA and "Three Strikes"

The PLRA added the following language to 28 U.S.C. § 1915:

(e)(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.