UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK U.S. DISTRICT COURT
September 21, 2012
EASTERN DISTRICT OF NEW YORK DANIEL MILLER, LONG ISLAND OFFICE PLAINTIFF,
COUNTY OF NASSAU, MICHAEL J. SPOSATO, SHERIFF, MICHAEL GOLIO, CAPTAIN, INV. GARCIA, INV. JANE DOE, INV. MORRIS, INV. HENDERSON, INV. JOHN DOE, CORPORAL JOHN DOE, CORPORAL MARCIANO, CORR. OFFICER HARVEY, CORR. OFFICER MURPHY, CORR. OFFICER MENDEZ, CORR. OFFICER JOHN DOE #1, CORR. OFFICER HUBER, CORR. OFFICER BAUER, CORR. OFFICER JOHN DOE #2, CORR. OFFICER JOHN DOE #3, CORR. OFFICER JOHN DOE #4, CORR. OFFICER DEMANITO, AND CORR. OFFICER BARRETTI, DEFENDANTS.
The opinion of the court was delivered by: Seybert, District Judge:
9/21/2012 10:55 am
Incarcerated pro se plaintiff Daniel Miller ("Plaintiff")*fn1
filed a Complaint in this Court on September 4, 2012
pursuant to 42 U.S.C. § 1983 ("Section 1983") against the defendants,
accompanied by an application to proceed in forma pauperis. Plaintiff
complains that he has been the victim of discrimination because he is
a "voo doo practicioner [sic]" and a "member of the Santeria Religion"
as well as a cooperating witness against a correctional staff member,
and an accused sex offender who is perceived to be homosexual. Compl.
at pages 2, 12-13. Plaintiff claims that between April 21, 2012 and
August 3, 2012, he has been assaulted, threatened, harassed and
annoyed by the Defendants.
Because Plaintiff has had "three strikes" pursuant to 28 U.S.C. § 1915(g), and has not alleged that he is "under imminent danger of serious physical injury," his application to proceed in forma pauperis is denied. Plaintiff is directed to pay the $350.00 filing fee within fourteen (14) days of the date of this Order, and a failure to do so will lead to the dismissal of this action without further notice and judgment shall enter.
28 U.S.C. § 1915(g) bars prisoners from proceeding in forma pauperis after three or more previous claims have been dismissed as frivolous, malicious or for failure to state a claim upon which relief may be granted. Section 1915(g), often referred to as the "three strikes" rule, provides:
In no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 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 injury.
28 U.S.C. § 1915(g).
Here, Plaintiff has at least five disqualifying actions.*fn2
See Miller v. County of Nassau, 467 F. Supp. 2d 308 (E.D.N.Y. 2006) (dismissed for failure to state a claim upon which relief may be granted); Miller v. Carpinello, 06--CV--12940 (LAP), 2007 WL 4207282 (S.D.N.Y. Nov. 20, 2007) (dismissed for failure to state a claim upon which relief may be granted); Crosby v. Walsh, 03--CV--4897(ARR) (E.D.N.Y. Feb. 11, 2005) (dismissed for failure to state a claim on which relief may be granted); Miller v. County of Nassau, 00-CV-6124(JS)(WDW) (dismissed for failure to state a claim upon which relief may be granted); Miller v. Menifee, 01-CV-8414 (MBM) (dismissed as frivolous); Miller v. U.S.A., 00-CV-2082 (TPG) (S.D.N.Y.) (dismissed for failure to state a claim upon which relief may be granted).
Moreover, Plaintiff does not allege any facts indicating that he faces "imminent danger of serious physical injury." Chavis v. Chappius, 618 F.3d 162, 167 (2d Cir. 2010). To satisfy the requirement of imminent danger of serious physical injury under 28 U.S.C. § 1915(g), a plaintiff must "reveal a nexus between the imminent danger [he] alleges and the claims [he] asserts." Pettus v. Morgenthau, 554 F.3d 293, 298 (2d Cir. 2009). When a court considers whether such a nexus exists, the court must consider: (1) whether the imminent danger alleged is fairly traceable to the unlawful conduct asserted in the complaint; and (2) whether a favorable judicial outcome would redress the injury. Id. at 298-99. The imminent harm must also exist at the time the complaint is filed. Harris v. City of New York, 607 F.3d 18, 24 (2d Cir. 2010). Here, Plaintiff does not allege any facts indicating that he faces any danger of any physical injury nor can the Court reasonably construe his allegations to support a finding that he was under imminent danger of serious injury at the time he filed this action. None of the conduct described in the Complaint rises to a level where a danger of serious harm exists and largely consists of name-calling. Moreover, all of the conduct described occurred over a four-month period ending on August 3, 2012 and there are no allegations suggesting that an imminent danger of serious injury existed at the time the Complaint was filed on September 4, 2012. See, e.g., Malik v. McGinnis, 293 F.3d 559, 562-63 (2d Cir. 2002) ("Because § 1915(g) uses the present tense in setting forth the imminent danger exception, it is clear from the face of the statute that the danger must exist at the time the complaint is filed."); Saia v. Williams, No. 10-CV-0624(RNC), 2011 WL 3962269, *1 (D. Conn. Mar. 31, 2011) ("[A]llegations of past wrongs do not show an imminent danger existed when this action was brought."). Accordingly, given Plaintiff's long history of vexatious litigation, and in the absence of any claim concerning a danger of imminent serious physical injury, Plaintiff is now barred from filing this case in forma pauperis and his application is thus DENIED.
Accordingly, Plaintiff's application to proceed in forma pauperis is denied. Plaintiff is directed to pay the Court's $350.00 filing fee within fourteen (14) days of the date of this Order, and his failure to do so will lead to the dismissal of this action without further notice and judgment shall enter.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444--45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
JOANNA SEYBERT, U.S.D.J.