UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
January 23, 2012
MICHAEL JONES, PLAINTIFF,
JOSEPH SMITH ET AL., DEFENDANTS.
The opinion of the court was delivered by: Gary L. Sharpe Chief Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff pro se Michael Jones brings this action under 42 U.S.C. § 1983, alleging his constitutional rights were violated by defendants. (See Compl., Dkt. No. 1.) In a Report-Recommendation and Order (R&R) filed December 6, 2011, Magistrate Judge Andrew T. Baxter recommended that defendants' motion to revoke Jones's IFP status be granted pursuant to 28 U.S.C. § 1915(g).*fn1 (See generally R&R, Dkt. No. 83.) Pending are Jones's objections to the R&R. (See Dkt. No. 84.) For the reasons that follow, the R&R is adopted in its entirety.
II. Standard of Review
Before entering final judgment, this court routinely reviews all report and recommendation orders in cases it has referred to a magistrate judge. If a party has objected to specific elements of the magistrate judge's findings and recommendations, this court reviews those findings and recommendations de novo. See Almonte v. N.Y. State Div. of Parole,No. 04-cv-484, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). In those cases where no party has filed an objection, or only a vague or general objection has been filed, this court reviews the findings and recommendations of the magistrate judge for clear error. See id.
Jones objects to Judge Baxter's conclusion that he had, at a minimum, three strikes prior to commencing this action. (See Dkt. No. 84 at 1-4.) Specifically, Jones first claims the PACER docket sheet submitted by defendants, and considered by Judge Baxter, was "inadequate to substantiate that [his] 1993 action . . . was dismissed pursuant to 28 U.S.C. § 1915(g)." (See id. at 1.) And second, that Judge Baxter's computation of his third through seventh strikes-which was based in part on Judge Baxter's conclusion that "habeas petitions that are dismissed either as frivolous or for failure to state a claim . . . may appropriately be treated as 'strikes,'" (R&R at 12-13)-was incorrect under Second Circuit precedent. (See Dkt. No. 84 at 3.) The court disagrees with both assertions.
Jones's first objection is meritless. It is well-settled that courts are permitted to consider a docket sheet, where, as here, it articulates the basis for dismissal. (See Dkt. No. 75, Attach. 2 at 3); see Harris v. City of N.Y., 607 F.3d 18, 23-24 (2d Cir. 2010). Furthermore, a dismissal under former section 28 U.S.C. § 1915(d)-the stated basis for the dismissal on the 1993 docket sheet-was clearly a dismissal for "frivolousness." (See Dkt. No. 75, Attach. 2 at 3); see also 28 U.S.C.A. § 1915(d) (West 1995) (stating the court "may dismiss the case if . . . the action is frivolous or malicious.") Thus, Jones's claim that his 1993 action should not be considered as a strike is rejected.
Moreover, Jones's argument regarding applicability of habeas petitions to the three strikes provision is irrelevant as Judge Baxter's decision did not rest on that ground alone. (See Dkt. No. 84 at 3-4.) Judge Baxter explicitly stated that "[e]ven if the court did not count the dismissal of the [habeas] petition itself as a strike," Jones's subsequent appeals would count as two additional strikes. (See R&R at 15-16.) It follows that Jones's "objection" to an alternative basis for dismissal is insufficient to require a de novo review.
Having addressed Jones's specific objection de novo, and otherwise finding no clear error in the R&R, the court accepts and adopts Judge Baxter's R&R in its entirety.
WHEREFORE, for the foregoing reasons, it is hereby ORDERED that Magistrate Judge Andrew T. Baxter's December 6, 2011 Report-Recommendation and Order (Dkt. No. 83) is ADOPTED in its entirety; and it is further
ORDERED that defendants' motion to dismiss (Dkt. No. 75) is GRANTED; and it is further
ORDERED that Jones's IFP status is REVOKED, and this case is DISMISSED unless Jones pays the $350.00 filing fee within forty-five (45) days of the date of this Order; and it is further
ORDERED that if Jones fails to pay the $350.00 filing fee within forty-five (45) days of the date of this Order, the Clerk shall enter judgment for defendants and close this case; and it is further
ORDERED that the Clerk provide a copy of this Memorandum-Decision and Order to the parties by mail and certified mail.
IT IS SO ORDERED.