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David Paul Read v. Nurse M. Bill

April 3, 2012


The opinion of the court was delivered by: Siragusa, J.



This prisoner civil rights case is before the Court on Plaintiff's motion to reconsider this Court's prior decision determining that he is not entitled to in forma pauperis status as a result of having accumulated three strikes pursuant to 28 U.S.C. § 1915(g). For the reasons stated below, the Court grants Plaintiff's motion, and upon reconsideration, adheres to its prior decision and dismisses the case for failure to pay the filing fee.


On July 26, 2011, Plaintiff filed a civil rights complaint alleging that on June 5, 11, 22 and 23, 2011, two nurses and a doctor at Groveland Correctional Facility, forced him to put his fingers in his mouth after having taken medication. Plaintiff also alleges that he spoke to the Office of Mental Health psychiatrist or therapist about the incident, which he characterized as a body cavity search, and said he felt "sexually assaulted because it personal [sic] area that was displayed for everyone including inmates waiting on line and female nurses. It's degrading." Id. In the "Relief" section of his complaint, he seeks $100,000,000.00, or medical treatment, and asks to be "in federale [sic] protection where I belong." Id. at 7. He also claims that he needs, emmediate [sic] medical care for type of medical conditions that accured [sic] to me prior to coming to Groveland. My shoulder is diagnosed with impingment syndrom, also my neck is damaged from a prior claim at Midstate Correctional where evidence concures [sic] herniaded [sic] disk [sic] 7everal [sic] (c-spine are displaced). I need emmediate [sic] medical treatment that the state officials are neglecting me of the effective medical treatment for injuries.

Compl. at 7. In a Decision and Order filed on August 8, 2011, the Honorable David G. Larimer of this court granted Plaintiff in forma pauperis status, revised the caption of this action to what is displayed above, dismissed claims against Dr. John Doe and Groveland Correctional Facility, and ordered service on the remaining defendants. Decision and Order, Aug. 8, 2011, ECF No. 3. The following month, defendants M. Bill and N. Hill moved to dismiss on the following grounds: that claims against Defendants in their official capacities were barred; that the allegations regarding a search of Plaintiff's mouth did not allege personal involvement of a named Defendant; that Plaintiff failed to allege personal injury contrary to the requirements of 42 U.S.C. § 1997e(e); and that Plaintiff's in forma pauperis status should be revoked under the tree strikes provision of 28 U.S.C. § 1915(g). Def.s' Mem. of Law at 2--4, Sept. 27, 2011, ECF No. 6. The Court issued a briefing schedule for the motion and set November 14, 2011 as the date for Plaintiff to respond. However, by the date the scheduling order was issued, Plaintiff had already responded to the motion. Therefore, the Court issued a Decision and Order on October 21, 2011, ECF No. 10. In its decision, the Court determined that Plaintiff has incurred three "strikes" and was therefore not entitled to in forma pauperis status. The Court noted that Plaintiff had not alleged he was in imminent danger. Consequently, the Court revoked Plaintiff's in forma pauperis status and ordered him to pay the requisite filing fee of $350.00 by November 21, 2011. In its decision, the Court admonished Plaintiff that, "Failure to pay the fee will result in a dismissal of this case.." Id. at 7.

On October 28, 2011, ECF No. 11, Plaintiff filed what the Court construes as a motion for reconsideration, raising for the first time allegations of serious physical injury. He referred again to the prior injuries to his neck, which he had described in the "Relief" portion of his initial complaint. ECF No. 11 at 1. He also claims that, "the State of New York prison system is not treating my pain and suffering for current injuries from an accident to my neck and constant pain and suffering due to those injuries. Plaintiff is left to the medical doctor and facility nurses to administer medication or treatment." Id. Plaintiff then discusses the case law that a prison inmate has no general constitutional right to be free from being falsely accused in a misbehavior report. Id. at 2. Finally, he contends that one of the three cases the Court reviewed and found to be a strike under 42 U.S.C. § 1997e(e), is not.


As indicated, the Court construes Plaintiff's motion as one for reconsideration. As the Fifth Circuit has recognized, "[t]here is no motion for 'reconsideration' in the Federal Rules of Civil Procedure. See Hamilton Plaintiffs v. Williams Plaintiffs, 147 F.3d 367, 371 n. 10 (5th Cir.1998). However, a motion for reconsideration filed within ten days of the district court's judgment is construed as a Rule 59(e) motion that suspends the time for filing a notice of appeal. See id." Bass v. U.S. Dept. of Agriculture, 211 F.3d 959, 962 (5th Cir. 2000). Since the Federal Rules of Civil Procedure do not expressly provide for motions for reconsideration, such a motion may be construed as a motion to alter or amend judgment under Rule 59(e) or Rule 60(b). See Osterneck v. Ernst & Whinney, 489 U.S. 169, 174 (1989)."The standard for granting such a motion is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked-matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).


In his motion, Plaintiff contends that one of the cases the Court determined was a "strike" is not. Motion at 5, Oct. 28, 2011, ECF No. 11. Referring to Read v. Zugibe, 10 Civ. 8428 (WHP), 2011 U.S. Dist. LEXIS 45153 (S.D.N.Y. April 5, 2011), Plaintiff argues that since summary judgment was granted in that case, it was not a strike, and cites to Stallings v. Kempker, 109 Fed. App'x 832, 2004 WL 2165363, *1 (8th Cir. Sept. 15, 2004).*fn1 In that case, the Eighth Circuit wrote, "Because the district court resolved the case through summary judgment, the dismissal does not constitute a 'strike,' and we modify the judgment accordingly." Id. However, as the Court in Zugibe stated, the case was dismissed for failure to state a claim:

Plaintiff pro se David Read ("Read") brings this action pursuant to 42 U.S.C. § 1983 alleging civil rights violations arising from his conviction in Rockland County Court. Defendants Sergeant Bertolino, Sergeant Ioveino, Sergeant Byers, the Town of Haverstraw, and the Honorable William K. Nelson move to dismiss the Complaint on various abstention and immunity grounds and for failure to state a claim. For the following reasons, Defendants' motion is granted..

On a motion to dismiss, a court accepts a complaint's allegations as true and draws all reasonable inferences in the plaintiff's favor. ECA & Local 134 IBEW Joint Pension Trust of Chi. v. JP Morgan Chase Co., 553 F.3d 187, 196 (2d Cir. 2009). Because Read is proceeding pro se, this Court construes his Complaint liberally, interpreting it to raise the strongest arguments it suggests. Weixel v. Bd. of Educ. of N.Y.C., 287 F.3d 138, 146 (2d Cir. 2002); see also Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972) (stating that a pro se litigant's submissions are held to "less stringent standards than [those] drafted by lawyers"). "Under the Rooker-Feldman doctrine, federal district courts lack jurisdiction over suits 'that are, in substance, appeals from state-court judgments.'" Phillips ex rel. Green v. N.Y.C., 453 F. Supp. 2d 690, 712-13 (S.D.N.Y. 2006) (quoting Hoblock v. Albany County Bd. of Elections, 422 F.3d 77, 84 (2d Cir. 2005)); see also Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284, 125 S. Ct. 1517, 161 L. Ed. 2d 454 (2005) (noting that the doctrine applies to cases "brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced"). Application of the Rooker-Feldman doctrine requires a four-prong showing: "First, the federal-court plaintiff must have lost in state court. Second, the plaintiff must complain of injuries caused by a state-court judgment. Third, the plaintiff must invite district court review and rejection of that judgment. Fourth, the state-court judgment must have been rendered before the district court proceedings commenced . . ." Hoblock v. Albany County Bd. of Elections, 422 F.3d 77, 85 (2d Cir. 2005) (internal quotations and alterations omitted). Here, all four prongs are satisfied. Read was convicted in state court before he filed this action, and he invites this Court to review the alleged improprieties that led to that conviction. Accordingly, this Court lacks jurisdiction over this action under the Rooker-Feldman doctrine.

A corollary to this conclusion is that "a prisoner in state custody cannot use a § 1983 action to challenge the fact or duration of his confinement. He must seek federal habeas corpus relief (or appropriate state relief) instead." Wilkinson v. Dotson, 544 U.S. 74, 78, 125 S. Ct. 1242, 161 L. Ed. 2d 253 (2005). This prohibition applies when a ยง 1983 claim lies within the "core of habeas corpus," i.e., when the "prisoner's victory . . . would necessarily demonstrate the invalidity of his conviction or sentence." McKithen, 481 F.3d at 99, 102. In this case, there can be little doubt that a showing that Read's conviction was predicated on perjury and false documents "would necessarily demonstrate [its] invalidity . . ." McKithen, 481 F.3d at 102 (emphasis ...

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