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Eastern District of New York v. County of Nassau

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


September 21, 2012

EASTERN DISTRICT OF NEW YORK DANIEL MILLER, LONG ISLAND OFFICE PLAINTIFF,
v.
COUNTY OF NASSAU, MICHAEL SPOSATO, SHERIFF, SERGEANT MILLER, AND CAPT. MICHAEL GOLIO, DEFENDANTS.

The opinion of the court was delivered by: Seybert, District Judge:

FILED CLERK

9/21/2012 10:56 am

U.S. DISTRICT COURT

ORDER

12003565

Incarcerated pro se plaintiff Daniel Miller ("Plaintiff")*fn1 filed a Complaint in this Court September 10, 2012 pursuant to 42 U.S.C. § 1983 ("Section 1983") against the County of Nassau, Michael Sposato, Sheriff of Nassau County, Sergeant Miller and Captain Michael Golio, accompanied by an application to proceed in forma pauperis. Plaintiff complains generally about the grievance procedure available at the Nassau County Jail and seeks to effect "[a] change in the prison grievance system to make it effective as an administrative remedy process." Compl. at ¶ V.

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.

DISCUSSION

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 be existing at the time the complaint is filed. Harris, 607 F.3d at 24. 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. 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.

CONCLUSION

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).

SO ORDERED.

JOANNA SEYBERT, U.S.D.J.


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