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Michael Hill, 90b0732 v. Patrick Griffin

January 9, 2012

MICHAEL HILL, 90B0732, PLAINTIFF,
v.
PATRICK GRIFFIN, STEVEN EVERTTS, BELENA KRUSEN, KAREN W EAVER, KATHLEEN DECISION AND W ASHBURN, GARY BELZ, CAROLYN O'DONAL, KENNETH PEARLMAN, BRIAN FISCHER, JOHN VONHAGN, ANGELA BARTLETT, DARRYL FORREST, LORI EASTW OOD, BRIAN EVANS, JEREMY CLEMENT, JAMES GILBERT, PATRICIA KLAH, JACQUILINE MACKEY DEFENDANTS.



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

ORDER

New York State Attorney General's Office 144 Exchange Boulevard, Suite 200 Rochester, NY 14614 INTRODUCTION Siragusa, J. Defendants filed a Notice of Motion, ECF. No. 6, on May 23, 2011, seeking an Order dismissing the subject complaint and an Order revoking Plaintiff's in forma pauperis ("IFP") status. The Court issued a motion scheduling order on May 25, 2011, setting July 1, 2011, for Plaintiff to respond. Plaintiff responded on June 2, 2011, ECF No. 14, and also filed a motion to amend/correct his complaint, ECF No. 13. For the reasons that follow, Defendants' request to revoke Plaintiff's IFP status is granted, Plaintiff's motion for leave to amend/correct his complaint is granted, and Defendants' motion to dismiss is granted in part, and reserved in part.

BACKGROUND

On February 28, 2011, Plaintiff filed his Complaint, ECF No. 1. He alleges thirteen claims against Defendants. The claims arise out of a dispute with the handling of Plaintiff's mail. Plaintiff, in his response to Defendants' motion, ECF No. 14, succinctly states the alleged facts of this case. He alleges that defendants W ashburn, Krusen, Bartlett, and Mackey tampered with, destroyed, failed to deliver or gave to another inmate in retaliation, his mail and book packages, and that their actions were in furtherance of a conspiracy to retaliate for prior law suits. Id. at 2-3. He also alleges that defendants Klah, Eastwood, Forrest, and Griffin acquiesced in the actions, and committed acts of their own on behalf of the other defendants. Id. He further alleges that each of these defendants knowingly failed to take corrective actions or protect Plaintiff's mail and packages, and that they otherwise conspired with each other to prevent Plaintiff from pursuing his grievances and lawsuits. Id. Finally, Plaintiff alleges that defendants Weaver, Clements, Gilbert, Evans, Vonhagn, and Belz made racial slurs and conspired to place him on tuberculosis hold, to deny him recreation, and to deny him medical treatment and information as a means to punish him. Id.

In Point 14 of their motion to dismiss, ECF No. 6, argue Defendants that Plaintiff has had three "strikes" under the Prisoner Litigation Reform Act of 1995, PL 14-134, 110 Stat. 1321 ("PLRA") and, therefore, his IFP status should be revoked and he should be required to pay the filing fee, with such payment entered on the docket on May 18, 2011. As to this issue, on May 9, 2011, the Court received Plaintiff's $350.00 filing fee, with such payment entered on the docket on May 18, 2011s. Also, Defendants seek dismissal based on Rule 12(b)(6) grounds. Because the Court grants Plaintiff's request to amend and correct his Complaint, Defendants' motion to dismiss will be held in abeyance until after Plaintiff submits his amended complaint.

STANDARDS OF LAW

Amended Complaint

The Federal Rules of Civil Procedure provide that leave to file an amended complaint "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). However, leave to amend may be denied in the face of "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment...." Foman v. Davis, 371 U.S. 178, 182 (1962); see also United States v. Continental Illinois Nat. Bank And Trust Co., 889 F.2d 1248, 1254 (2d Cir.1989). Inasmuch as Plaintiff is proceeding pro se, this Court is mindful that, [w]hen considering motions to dismiss a pro se complaint such as this, "courts must construe [the complaint] broadly, and interpret [it] to raise the strongest arguments that [it] suggests." Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000) (internal quotation marks omitted). This is especially true when dealing with pro se complaints alleging civil rights violations. See Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001). Accordingly, the plaintiffs' allegations in this case must be read so as to "raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (internal quotation marks omitted).

Weikel v. Bd. of Educ. of N.Y., 287 F.3d 138, 145--146 (2d Cir. 2002). "Three Strikes"

A motion made under 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). This Court has previously addressed the "three strikes" requirements in Kalwasinski v. McCracken, et al., No. 09-CV-6295-CJS, 2009 W L 4042973 (W .D.N.Y. Nov. 19, 2009), and in that case stated:

[t]he 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 time if the court determines that-

(A) the allegation of poverty is ...


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