The opinion of the court was delivered by: Hugh B. Scott United States Magistrate Judge Western District of New York
Plaintiff Robert Mason, an inmate of the Five Points Correctional Facility proceeding pro se, brought this action pursuant to 42 U.S.C. § 1983 and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12112 et seq., alleging that the defendants, all of whom are employed by the New York State Department of Correctional Services ("DOCS") at the Auburn Correctional Facility, denied him appropriate medical treatment, failed to protect him, discriminated against him, and denied him due process. (Docket No. 1 [Complaint]). By Order dated December 10, 2009, the Court granted plaintiff's motion to proceed in forma pauperis ("IFP"), and directed service of the complaint upon the defendants. (Docket No. 3).
Currently before the Court is the defendants' motion (Docket No. 11) to revoke the plaintiff's IFP status and conditionally dismiss the complaint pursuant to 28 U.S.C. § 1915(g). Plaintiff has filed a response to the defendants' motion ("response") (Docket No. 16) ("response"), and defendants have filed a reply ("reply") thereto. (Docket No. 20).
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), commonly 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 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).
In support of their motion to dismiss the complaint under § 1915(g), the defendants have submitted docket sheets detailing prior actions filed by the plaintiff that were dismissed. Defendants assert that these dismissals qualify as strikes under § 1915(g). (Docket No. 12 [Declaration in Support of Motion to Dismiss] at Exs. B-E and Docket No. 13 [Memorandum in Support of Motion to Dismiss] at 6-8). Plaintiff proffers two arguments in his response to the defendants' motion: (1) the motion should be denied because it is not based upon any "false or incorrect information on the part of the plaintiff"; (2) the motion should be denied because plaintiff has not had three or more actions dismissed for "strike" reasons. (Docket No. 16 at 2).*fn1
In considering the instant motion, the Court takes judicial notice of Mason v. Nitti-Richmond, C.O., 09 Civ. 7307 (JGK), in which the Hon. John G. Koeltl, United States District Judge for the Northern District of New York, recently revoked plaintiff Mason's IFP status. See Mason v. Nitti-Richmond, C.O., 09 Civ. 7307 (JGK), 2010 U.S. Dist. LEXIS 63819 (N.D.N.Y. June 25, 2010). In so ruling, Judge Koeltl determined that plaintiff had accrued "at least three dismissals that qualify as 'strikes' under § 1915(g)." 2010 U.S. Dist. LEXIS 63819, at *4. The dismissals of plaintiff's actions or appeals cited by Judge Koeltl in this regard are all among those cited by the defendants herein in support of their motion to revoke plaintiff's IFP status pursuant to § 1915(g).*fn2
Plaintiff's response to defendants' motion offers nothing that would call into question the defendants contention, supported by the Court's determination in Mason v. A. Nitti-Richmond, C.O., that plaintiff has accrued three strikes under § 1915(g), and that he is thus no longer entitled to proceed IFP. As noted, plaintiff's first argument in response to the defendants' motion is that the defendants did not allege that plaintiff provided any false or inaccurate information. However, as defendants note in their response, whether plaintiff in fact provided any false or incorrect information is not relevant to the question of whether he has had three actions or appeals dismissed for "strike" reasons. Plaintiff's second argument in response to the motion is that he "has not had three or more... federal actions dismissed as defined under 28 U.S.C. § 1915(g)." However, plaintiff's assertion is entirely conclusory, as he does not discuss any of the dismissals cited by the defendants, thus providing no basis for the Court to depart from Judge Koeltl's determination that he has accrued at least three strikes.*fn3
As stated above, § 1915(g) provides an exception to the three-strike rule when "the prisoner is under imminent danger of serious physical injury." Plaintiff's complaint does not assert that he was under "imminent danger of serious physical injury" at the time he commenced this action. Even more significantly, plaintiff's response to defendants' motion to conditionally dismiss his complaint pursuant to § 1915(g) does not address the defendants' contention that plaintiff did not plead and is not entitled to the "imminent danger" exception. Indeed, plaintiff's response does not contain even a pro forma assertion that he qualifies for the "imminent danger" exception. Further relevant to this issue, as defendants argue, plaintiff's claims for relief seek only monetary damages, and do not request injunctive relief, which a plaintiff asserting "imminent danger" would reasonably be expected to request. See Young v. Parks, CIV S-09-0336 GEB GGH P, 2009 U.S. Dist. LEXIS 41515, at *5 (E.D. Cal. May 15, 2009) (Magistrate's Findings and Recommendation), adopted by 2009 U.S. Dist. LEXIS 68308 (E.D. Cal. Aug. 4, 2009)) (plaintiff alleging continuing failure to provide him with proper medical treatment did not qualify for the imminent danger exception where the complaint did not seek injunctive relief: "[i]f plaintiff truly believed he was in imminent danger, he presumably would have sought an injunction."). Nor does review of plaintiff's claims that the defendants were insufficiently responsive to his alleged need for greater access to a cane, the use of a wheelchair and the opportunity for recreation which accomodates his walking disability, indicate that these violations of his rights under the Eighth Amendment and the ADA presented an "imminent danger of serious physical injury." Indeed, certain of the allegations and information included in the complaint indicate that the defendants were hardly unresponsive to plaintiff's medical needs, but that plaintiff disagreed with their decisions with respect to treatment.*fn4
Accordingly, the Court concludes that plaintiff has not met the requirement of the imminent danger exception to the "three strikes" rule. Plaintiff is therefore barred by the three strike rule of 28 U.S.C. § 1915(g) from proceeding IFP in this action.
Defendant's motion to revoke plaintiff's IFP status and conditionally dismiss the complaint pursuant to 28 U.S.C. § 1915(g) is granted. Plaintiff's IFP status is hereby revoked and the complaint is conditionally dismissed without prejudice unless plaintiff pays the entire Z350 filing fee within 30 days of this Order. If plaintiff fails to ...