The opinion of the court was delivered by: Andrew T. Baxter, United States Magistrate Judge
ORDER and REPORT-RECOMMENDATION
These matters have been referred to me for Report and Recommendation by the Honorable Gary L. Sharpe,*fn1 United States District Judge, pursuant to 28 U.S.C. § 636 (b) and Local Rules N.D.N.Y. 72.3(c).
Presently before the court is defendants' motion in each of the above cases for an order revoking plaintiff's in forma pauperis (IFP) status pursuant to 28 U.S.C. § 1915(g). (Dkt. No. 75 in 9:09-CV-1058; Dkt. No. 25 in 9:10-CV-1331). Plaintiff responded in opposition to the motion in both actions, and defendants filed replies. (Dkt. Nos. 78, 79; 31, 32). In 9:10-CV-1331, plaintiff filed a "Supplemental Response." (Dkt. No. 33). Plaintiff filed a "surreply" in 9:10-CV-1058 that was stricken by the court. (Dkt. Nos. 80, 81).
Because defendants' motions to dismiss both of plaintiff's pending cases were virtually identical, I will address both motions to dismiss in this Report-Recommendation.*fn2 On December 1, 2011, while the motions were pending, plaintiff submitted the filing fee in Jones v. Fischer, No. 9:10-CV-1331. Because plaintiff has paid the filing fee in 9:10-CV-1331, the motion to dismiss that case is moot and must be terminated. However, for the following reasons, this court agrees that plaintiff has at least three-strikes, and this court will recommend revoking plaintiff's IFP status, and dismissing Jones v. Smith, 9:09-CV-1058, unless plaintiff pays the filing fee in that case within forty-five (45) days of any order adopting this recommendation.
I. "Three Strikes" Provision of the PLRA
The "three strikes" section of the PLRA prohibits the filing of an action in forma pauperis when the plaintiff has had federal actions or appeals dismissed on at least three prior occasions, either for failure to state a claim or for frivolousness. 28 U.S.C. § 1915(g). The purpose of section 1915(g) is to "stem the tide of egregiously meritless lawsuits" by "forcing prisoners to go through the same thought process non-inmates go through before filing a suit, i.e. is filing this suit worth the costs?" Tafari v. Hues, 473 F.3d 440, 443 (2d Cir. 2007) (citations omitted).
Section 1915(g) provides that:
[i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding [in forma pauperis] if the prisoner has, on three 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. (Emphasis added). An action may be dismissed pursuant to section 1915(g), even if the court originally granted plaintiff in forma pauperis status. (Dkt. No. 29 at 10). See, e.g., Gamble v. Maynard, 9:06-CV-1543 (DNH/DEP), 2008 WL 150364, at *5 (N.D.N.Y. Jan. 14, 2008) (conditionally dismissing complaint under section 1915(g) and finding that in forma pauperis status was improvidently granted); Luevano v. Clinton, 5:10-CV-754 (GTS/ATB), 2010 WL 3338704, at *3 (N.D.N.Y. July 1, 2010). An action is "frivolous" for purposes of the statute if it "'lacks an arguable basis either in law or in fact.'" Id. at 442 (citation omitted). In determining whether a dismissal satisfies the failure to state a claim prong of the statute, courts have drawn upon the provisions of Fed. R. Civ. P. 12(b)(6) for guidance, in light of the similarity in phrasing utilized in the two provisions. Id. The three strikes provision applies to cases that were dismissed for failure to state a claim or for frivolousness even prior to the 1996 enactment of section 1915(g). Welch v. Galie, 207 F.3d 130, 132 (2d Cir. 2000).
A dismissal cannot count as a strike until after the opportunity to appeal has been exhausted or waived. See, e.g., Partee v. Connolly, 08 Civ. 4007, 2009 WL 1788375, at *2 (S.D.N.Y. June 23, 2009) (collecting cases). If a district court dismisses an action on a ground specified in section 1915(g), and an appellate court simply affirms, together the decisions constitute a single strike. Id.; Thompson v. Drug Enforcement Admin., 492 F.3d 428, 436-37 (D.C. Cir. 2007). However, when a district court dismisses an action for any of the reasons set forth under the three strikes statute, and if the subsequent appeal is dismissed as frivolous, then the two decisions count as separate strikes. Chavis v. Chappius, 618 F.3d 162, 169 (2d Cir. 2010) ("sequential dismissals on strike grounds can provide separate strikes under § 1915(g)").
If plaintiff has three strikes, section 1915(g) prevents plaintiff from filing a subsequent action in forma pauperis unless the plaintiff is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g). This exception to section 1915(g) has been interpreted to apply only if the plaintiff faces imminent danger of serious physical injury "at the time the complaint is filed." Malik v. McGinnis, 293 F.3d 559, 562-63 (2d Cir. 2002).
B. Defendants' Contentions
Defendants argue that plaintiff has seven strikes, listed in defense counsel's declaration. (Cochran Decl. ¶ 5(a)-(g) & Exs. A-B, F, H-I, Dkt. Nos. 75-1, 75-2). The first two strikes relate to one civil rights action, filed in 1993. Jones v. Coughlin, No. 93-CV-7341 (S.D.N.Y.) (Briant, J.). On October 25, 1993, District Court Judge Charles L. Briant dismissed*fn3 plaintiff's action sua sponte under former section 1915(d). (Def.s' Ex. A, Dkt. No. 75-2). The court further certified, under "section 1915(a)" that any appeal from that order would not be taken in good faith. (Id.). Notwithstanding the District Court's warning, plaintiff appealed Judge Briant's order, and on April 7, 1994, the Second Circuit denied plaintiff's motion to proceed in forma pauperis and "dismissed" the appeal. (Id. at 2).
Defendants contend that the other five strikes arise from a petition for a writ of habeas corpus that plaintiff filed, on May 30, 2002, in the Southern District of New York, challenging a September 7, 1982 conviction for robbery, for which plaintiff received a two to six-year sentence. (Def.s' Ex. C, Pet. for Habeas Corpus in Jones v. Herbert, 1:02-CV-4075 (S.D.N.Y.)). On February 2, 2004, after ordering plaintiff to file an amended petition and considering that amendment, District Judge Michael B. Mukasey dismissed the action. (Def.s' Ex. F). In his order, Judge Mukasey stated that he would not issue a certificate of appealability under 28 U.S.C. § 2253 because ...