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Edmond Gasaway v. Russell Perdue

May 30, 2012

EDMOND GASAWAY, PLAINTIFF,
v.
RUSSELL PERDUE, WARDEN, FCI RAY BROOK, ET AL. DEFENDANT.



DECISION AND ORDER

I. INTRODUCTION

This matter comes before the Court following a Report-Recommendation filed on April 9, 2012 by the Honorable David E. Peebles, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and L.R. 72.3 of the Northern District of New York. Dkt. No. 17 ("Report-Recommendation"). After fourteen days from the service thereof, the Clerk has sent the entire file to the undersigned, including the Objections by Plaintiff Edmond Gasaway ("Plaintiff"), which were filed April 18, 2012, and the Objections by Defendants, which were filed April 26, 2012. Dkt. No. 22 ("Pl.'s Objections"); Dkt. No 23 ("Def.'s Objections").

II. BACKGROUND

Plaintiff Edmond Gasaway, a pro se inmate litigant and frequent filer in federal court, who is now barred from filing any future pro se actions in this District without prior permission, has commenced this suit under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), against the warden and various other corrections workers employed at the Ray Brook Correctional Institution ("FCI Ray Brook"). Dkt. No. 1 ("Complaint"). Plaintiff alleges that he suffered various violations of his constitutional rights while confined in that prison facility, which is operated by the Bureau of Prisons ("BOP"). See generally id. In his Complaint, Plaintiff alleges, inter alia, that Defendants subjected him to cruel and unusual conditions of confinement and retaliated against him for filing grievances regarding his conditions of confinement. Id. Plaintiff claims that the retaliatory actions taken against him included denying him access to the courts and taking his property without due process. Id. Construing the Complaint liberally, it appears that Plaintiff alleges that his rights were violated under the First, Eighth, and Fourteenth Amendments to the United States Constitution. Plaintiff seeks declaratory relief as well as compensatory damages.

Plaintiff is currently incarcerated at the Ray Brook Federal Correctional Institution ("FCI Ray Brook"). Compl. at 2. Plaintiff filed this action along with an Application to proceed in forma pauperis ("IFP") on October 26, 2011. Dkt. Nos. 1, 2. On January 12, 2012, the Court issued an Order granting Plaintiff's IFP Application, authorizing the issuance of summonses for service, and directing a response to the complaint. Dkt. No. 6.

On February 28, 2012, Defendants moved in this and another pending case seeking revocation of Plaintiff's IFP status. Dkt. No. 10 ("Motion"); Gasaway v. Bureau of Prisons, No. 11-CV-1223 (LEK/DEP). Defendants argue that Plaintiff is precluded from proceeding in forma pauperis by the "three strikes" provision of 28 U.S.C. § 1915(g). Id. Defendants offers five specific prior dismissals of Plaintiff's claims as constituting "strikes" under that provision and argues, in the alternative, that in any event the Court should exercise its inherent discretionary authority to strip Plaintiff of his IFP status in light of Plaintiff's litigation history. Id. Plaintiff has since responded in opposition to Defendants' Motion, arguing that his IFP status should be upheld and that he is in imminent danger where he is currently being housed. Dkt. No. 12 ("Response"). Defendants subsequently filed a Reply to Plaintiff's Response. Dkt. No. 14. Plaintiff also moved for appointment of pro bono counsel. Dkt. No. 15.

Judge Peebles filed a Report-Recommendation and Order on April 9, 2012, recommending that: (1) the Court use its discretionary authority to revoke Plaintiff's IFP status because of his history as an abusive litigant; and (2) the Court deny Plaintiff's request for appointed counsel. Report-Rec.*fn1 Judge Peebles concluded that the dismissals of habeas petitions that Defendants had cited as strikes should not be counted as such, but that Defendants' motion should still be granted by means of the Court's discretionary authority. See generally id. On April 26, 2012, however, Defendants filed Objections, expressing disagreement not with Judge Peebles's recommended result but with his rationale. Def.'s Obj. That is, Defendants wish the Court to revoke Plaintiff's IFP status and also to conclude that he had accumulated three strikes at the time that this action began. Id. On April 18, 2012, Plaintiff also filed Objections, stating that he would "conc[ede] to" the Report-Recommendation but that he would like "all funds in relation to this action and [Gasaway v. Bureau of Prisons, No. 11-CV-1223 (LEK/DEP)] returned to his prison account without prejudice." Pl.'s Obj. at 1-2.

III. STANDARD OF REVIEW

The Court is to "make 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). Where, however, an objecting "party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the report and recommendation only for clear error." Farid v. Bouey, 554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008) (quoting McAllan v. Von Essen, 517 F. Supp. 2d 672, 679 (S.D.N.Y. 2007)) (citations and quotations omitted); see alsoBrown v. Peters, No. 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997). "A [district] judge . . . 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). The Court has considered all Objections and reviewed the record and has determined that the Report-Recommendation should be approved and adopted in its entirety for the reasons stated herein.

IV. DISCUSSION

A. Plaintiff's Objections

In his Objections, Plaintiff does not appear to contest the revocation of his IFP Application, the denial of his Motion to appoint counsel, or indeed any part of the Report-Recommendation. Rather, Plaintiff takes this opportunity to request that the Court return "all funds in relation to this action and [Gasaway v. Bureau of Prisons, No. 11-CV-1223 (LEK/DEP)] . . . to his prison account without prejudice." Pl.'s Obj. at 1-2. The Court must deny Plaintiff's request.*fn2

Pursuant to the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915(b), a party proceeding in forma pauperis is required to pay the full $350.00 filing fee, regardless of the outcome of the action. See, e.g., Goins v. DeCaro, 241 F.3d 260, 262 (2d Cir. 2001) (inmate who withdraws his appeal is not entitled to a refund of the filing fee paid or a cancellation of the remaining indebtedness); Williams v. Roberts, 116 F.3d 1126, 1127-28 (5th Cir. 1997) (plain language of the PLRA requires court to assess filing fees once matter is filed, regardless of ultimate outcome of proceeding) (citations omitted); McGore v. Wrigglesworth, 114 F.3d 601, 605 (6th Cir. 1997) ("[B]y filing the complaint or notice of appeal, the prisoner waives any objection to the fee assessment . . . .").

Additionally, the authorization form that Plaintiff signed when he commenced this action in forma pauperis expressly stated that "I understand that the total filing fee which I am obligated to pay is $350.00. I also understand that this fee will be debited from my account regardless of the outcome of my lawsuit." Dkt. No. 5. Therefore, regardless of Plaintiff's sense that his litigation may ...


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