The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge
MEMORANDUM-DECISION and ORDER
Currently before the Court, in this pro se prisoner civil rights action filed by Eugene Sidney ("Plaintiff") against the six above-captioned individuals ("Defendants"), are the following: (1) Defendants' motion to dismiss Plaintiff's Amended Complaint, pursuant to 28 U.S.C. § 1915(g), based on Plaintiff having acquired three strikes before commencing this action, and not demonstrating the applicability of the imminent-danger exception (Dkt. No. 53); and (2) United States Magistrate Judge Andrew T. Baxter's Report-Recommendation recommending that Defendants' motion be denied (Dkt. No. 87); (3) Plaintiff's fifth and sixth motions for appointment of counsel (Dkt. Nos. 90, 91).*fn1 For the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety; Defendants' motion is denied; and Plaintiff's fifth and sixth motions for appointment of counsel are denied without prejudice.
Plaintiff filed his Complaint in this action on November 27, 2009. (Dkt. No. 1.) On April 23, 2010, Plaintiff submitted an Amended Complaint. (Dkt. No. 15.) Construed with the utmost of liberality, Plaintiff's Amended Complaint alleges that, while he was incarcerated at Upstate Correctional Facility in Malone, New York, Defendants violated his rights under the First, Eighth and/or Fourteenth Amendments to the United States Constitution in the following respects: (1) Defendants issued false misbehavior reports against him in retaliation for his engaging in protected activity; (2) Defendants violated his due process rights by issuing false misbehavior reports, and imposing sanctions, against him; (3) Defendants impeded his ability to file grievances; (4) Defendants disrupted the free-flow of his mail; (5) Defendants subjected him to inadequate conditions of confinement; and (6) Defendants conspired to deny him his constitutional rights. (See generally Dkt. No. 15 [Plf.'s Am. Compl.].) Familiarity with the factual allegations supporting these claims in Plaintiff's Amended Complaint is assumed in this Decision and Order, which is intended primarily for review by the parties.
On February 20, 2011, Defendants filed a motion to dismiss, pursuant to 28 U.S.C. § 1915(g), based on Plaintiff having accumulated "three strikes" under the Prison Litigation Reform Act ("PLRA"). (Dkt. No. 53.)
On March 10, 2011, Plaintiff submitted a response in opposition to Defendants' motion. (Dkt. No. 57.) In his response, Plaintiff "does not foolishly contest the three exhibiting samples defendats have put forth in their moving papers [as demonstrating three strikes,]" but instead argues that he has alleged facts plausibly suggesting that the imminent danger exception applies to one or more of his claims. (Id.)
On August 8, 2011, Magistrate Judge Baxter issued a Report-Recommendation recommending that Defendants' motion be denied, finding that a review of Plaintiff's litigation history revealed that Plaintiff has acquired only two strikes. (Dkt. No. 87.)
II. APPLICABLE LEGAL STANDARDS
When specific objections are made to a magistrate judge's report-recommendation, the Court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C).*fn2 When only general objections are made to a magistrate judge's report-recommendation, or where the objecting party merely reiterates the same arguments made in its original papers submitted to the magistrate judge, the Court reviews the report-recommendation for clear error or manifest injustice. See Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999).*fn3
Similarly, when a party makes no objection to a portion of a report-recommendation, the Court reviews that portion for clear error or manifest injustice. See Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) [citations omitted]; Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition [citations omitted]. After conducing the appropriate review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).
B. Legal Standard Governing a Motion to Dismiss pursuant to 28 U.S.C. § 1915(g) Magistrate Judge Baxter correctly recited the legal standard governing motions to dismiss pursuant to 28 U.S.C. § 1915(g). (Dkt. No. 87.) As a result, this standard is incorporated by reference in this Decision and Order.
A. Defendants' Motion to ...