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Michael Perkins, 95a0851 v. D.F. Napoli


November 8, 2012


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge



Plaintiff, a prisoner in the custody of the New York State Department of Corrections and Community Services (" DOCCS" ), is suing pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his federal constitutional rights. Now before the Court is Defendants' motion to revoke Plaintiff's in forma pauperis status and dismiss this action. (Docket No. [#97]). The application to dismiss is denied, but Plaintiff's in forma pauperis status is revoked and he must pay the filing fee w ithin thirty days or this action w ill be dismissed.


On June 6, 2008, Plaintiff submitted to the Court a Complaint and an application to proceed in forma pauperis (" IFP" ). The Complaint [#1] alleged that at Southport Correctional Facility (" Southport" ), Corrections Officer McGrain stole or destroyed nine books belonging to Plaintiff. The Complaint further alleged that Deputy Superintendent Marilyn Bridge and Superintendent David F. Napoli failed to remedy the situation.

The form complaint that Plaintiff used required him to list any other law suits that he had filed pertaining to his imprisonment. Plaintiff responded by listing a single action, w hich had been filed in the U.S. District Court for the Northern District of New York. Specifically, Plaintiff indicated that law suit w as against the Deputy Superintendent of Security at Clinton Correctional Facility, w hose name he claimed not to remember, Corrections Officer O'Connor, and a civilian hearing officer w hose name he claimed not to remember. Plaintiff indicated that the action had been assigned to the Honorable Law rence E. Kahn, United States District Judge for the Northern District of New York, w ho had " dismissed" the action and entered judgment for the defendants. As w ill be discussed further below , Plaintiff's representation that this w as his only prior law suit arising from his imprisonment w as indisputably incorrect.

On July 30, 2008, Plaintiff asked to amend his complaint to add claims that corrections officers at Southport had assaulted him on July 5, 2008. Plaintiff indicated that he believed that the assault w as in retaliation for him filing this action. Plaintiff further asked for injunctive relief, transferring him out of Southport " before he is assaulted again."

On August 11, 2008, Plaintiff filed a request [#6] for permission to w ithdraw this action w ithout prejudice. In that regard, Plaintiff stated that he had previously filed tw o separate actions concerning events at Southport, and that he w anted to combine them into one action, to avoid having to pay a separate filing fee for each action. On August 27, 2008, Plaintiff filed another request [#7] to w ithdraw this action, for the same reason. In both applications [#6][#7], Plaintiff indicated that Southport staff w ere interfering w ith his ability to file another action, but he did not allege that he w as in imminent danger.

On September 15, 2008, the Court issued an Order [#8] granting Plaintiff permission to proceed in forma pauperis. The Court further indicated that rather than allow ing the action to be w ithdraw n, it w ould grant Plaintiff until October 20, 2008, to file a new complaint. In that regard, the Court specifically indicated that it w ould review the new proposed complaint pursuant to 28 U.S.C. § § 1915 and 1915A.

On October 10, 2008, Plaintiff filed a proposed Amended Complaint [#10], again using the form complaint supplied by the Court. When asked to list any prior law suits that he had filed pertaining to his imprisonment (not involving the actions involved in this law suit), he again listed only the one aforementioned action in the Northern District, w hich had been assigned to Judge Kahn. This time, how ever, Plaintiff indicated that the defendants' names in that law suit w ere " Tedford, O'Connor and Drow n." When asked w hen that action w as filed and terminated, Plaintiff w rote, " Don't remember," although he indicated that judgment w as entered for the defendants. The pleading did not allege that Plaintiff w as in imminent danger.

Before the Court could issue an order regarding the proposed pleading pursuant to 28 U.S.C. § § 1915 and 1915A, Plaintiff filed tw o additional requests [#14][#15] to amend the complaint. On February 27, 2009, the Court issued a Decision and Order [#16], indicating that Plaintiff could have another opportunity to submit a proposed amended pleading, and that such pleading w ould be review ed pursuant to 28 U.S.C. § § 1915 and 1915A.

On April 8, 2009, Plaintiff filed the proposed amended pleading. Once again, w hen asked to list his prior law suits, Plaintiff listed only the one case that had been assigned to Judge Kahn. This action then proceeded through pretrial discovery.

On May 12, 2011, Defendants filed the subject motion to dismiss [#97]. Specifically, Defendants indicate that the Court should revoke Plaintiff's in forma pauperis status pursuant to 28 U.S.C. § 1915(g), and dismiss the action, because prior to the date that Plaintiff commenced this action, he had at least three other actions dismissed as being frivolous, malicious, or failing to state a claim. In that regard, the relevant section states:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, w hile incarcerated or detained in any facility, brought an action or appeal in a court of the United States that w as dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon w hich relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C.A. § 1915(g) (West 2012). Alternatively, Defendants ask the Court to dismiss the action " as a sanction for [Plaintiff] omitting material litigation history in the Complaint."

In support of the application to dismiss, Defendants contend that Plaintiff had at least three dismissals prior to this action that count as strikes. Defendants cite an order dated August 18, 2010, by Judge Kahn in the case Perkins v. Rock, et al., 9:10-CV-0375 (LEK/RFT), w hich is attached to Defendants' motion. In that case, Judge Kahn found that the " three strikes" provision in § 1915(g) barred Plaintiff from proceeding in forma pauperis. In doing so, Judge Kahn relied upon a decision of the Honorable Glenn Suddaby, United States District Judge for the Northern District, w hich indicated that Plaintiff had at least three " strikes" as of September 18, 2008. See, Perkins v. Rock decision at p. 4 (quoting Perkins v. Rock, 9:10-CV-0414 (GTS/DEP), Docket No. 9, (N.D.N.Y. Jul. 26, 2010). One of the strikes referred to by Judge Suddaby w as issued by this Court, in the case of Perkins v. Doe, 08-CV-6257 CJS (Fe), in a Decision and Order dated September 8, 2008.*fn1

Tw o other strike dismissals issued prior to that decision w ere Perkins v. NYC Dept. of Corrections, 94-CV-1613, Judgment (S.D.N.Y. Mar. 10, 1994) and Perkins v. Morgenthau, 94-CV-4553, Judgment (S.D.N.Y. Jun. 21, 1994).

In response to the motion to dismiss, Plaintiff admits that the tw o above-referenced dismissals from the Southern District of New York are " strikes" w ithin the meaning of 28 U.S.C. § 1915(g). How ever, he contends that this Court's dismissal in Perkins v. Doe cannot count as a strike, since the dismissal occurred after he commenced this action. In that regard, Plaintiff contends that he commenced this action on June 6, 2008, and the Court did not dismiss Perkins v. Doe until September 8, 2008. Plaintiff further contends that his failure to list his prior law suits in his Complaints in this action w as due to an oversight.


Clearly, the Court may revoke a prisoner plaintiff's IFP status if it determines that he is in violation of the three strikes provision, which the Court already set forth above. See, generally, Harris v. City of New York, 607 F.3d 18 (2d Cir. 2010); Collazo v. Pagano, 656 F.3d 131, 133-134 (2d Cir. 2011).

Plaintiff admits that he had at least two strikes, from the Northern District of New York, before he commenced this action. However, he maintains that this Court's dismissal of Perkins v. Doe, 08-CV-6257 CJS (Fe) cannot count as a strike, since it occurred on September 8, 2008, w hich is after he commenced this action, on June 6, 2008. The Court disagrees. As set forth earlier, this case had an unusual procedural history, ow ing mainly to the fact that very early on, Plaintiff sought to amend his pleading several times, and then sought to w ithdraw it in order to save money. As a result, it w as not until September 15, 2008, that the Court granted Plaintiff's IFP application. Significantly, that date w as after Plaintiff earned his third strike, w ith the dismissal of Perkins v. Doe, on September 8, 2008.

Plaintiff's action w as not properly filed until this Court granted his IFP application. See, Romand v. Zimmerman, 881 F.Supp. 806, 809 (N.D.N.Y. 1995) (" A complaint is not properly filed until after a decision on w hether to proceed in forma pauperis has been made." ); Dzaba v. Blyth Eastman Paine Webber, No. 84 Civ. 3711 (GLG), 1985 WL 199 at * 2 (S.D.N.Y. Jan. 17, 1985) (" A complaint tendered IFP cannot technically be 'filed' until either leave to proceed IFP has been granted or the plaintiff has remitted the filing fee." ); Gibbs v. Ryan, 160 F.3d 160, 162 (3rd Cir. 1998) (" [Plaintiff's] complaint w as filed, and his action w as 'brought' w hen his motion to proceed in forma pauperis w as granted." ). The Court therefore finds that Plaintiff had three strikes before this action w as brought. In any event, it is clear that Plaintiff had three strikes before the Court granted his IFP application, w hich in the Court's view required the denial of application under 28 U.S.C. § 1915(g). The Court further finds that the " imminent danger" exception does not apply.

Alternatively, the Court finds that revocation of Plaintiff's IFP status is w arranted, as a sanction w hich the Court may impose pursuant to its inherent authority over this action, because he repeatedly misrepresented his prior litigation history to the Court, w hich hampered the Court's ability to evaluate his IFP application. Significantly, on three occasions Plaintiff failed to disclose that he had at least tw o prior dismissals that count as strikes under 28 U.S.C. § 1915(g).

Plaintiff contends that his failure w as due to " the human (harmless) error pursuant to forgetfulness." Pl. Opposition [#103] at p. 1. This explanation is not at all credible. Rather, it appears that Plaintiff has consistently misrepresented his litigation history to this Court and to other courts, in order to evade 28 U.S.C. § 1915(g). See, e.g., Perkins v. Napoli, 09-CV-6302, Decision and Order [#90] at p. 3 (" [T]he Court w as unaw are that both Plaintiff's original Complaint [#1] and his Amended Complaint [#3] misstated the number of previous prisoner law suits that he had filed." ). For example, in the action of Perkins v. Quinn, 9:09-CV-0472 (N.D.N.Y.), Plaintiff told the Honorable Thomas J. McAvoy, Senior U.S. District Judge, that he w as not the person w ho had filed Perkins v. Doe, 08-CV-6257 in this Court. See, Decision and Order*fn2 of Judge McAvoy dated April 19, 2011, at p. 2 in Perkins v. Quinn (" In support of his motion for reconsideration, plaintiff claimed that (1) he had 'no know ledge or remembrance' of ever filing the actions determined by this Court to constitute 'strikes' for purposes of 28 U.S.C. § 1915(g); (2) 'there w as an error in the citation of docket no. 08-CV-6257' [Perkins v. Doe] because he did not file that action in the Western District of New York[.]" ) (emphasis added). As Plaintiff later admitted to Judge McAvoy, that contention w as untrue. See, id. at p. 5 (" In his motion to vacate . . . plaintiff now concedes that . . . he did file Perkins v. NYC Dept. of Corrections, 94-CV-1613; Perkins v. Morganthau, 94-CV-4553; and Perkins v. Doe, 08-CV-6257[.]" ) (emphasis added).

Accordingly, revocation of Plaintiff's IFP status is w arranted based upon his bad faith misrepresentations to the Court. See, Harris v. City of New York, 607 F.3d at 23 (" As an initial matter, w e note that Harris' s 'Prisoner Complaint' forms misrepresented how many strike suits he had filed prior to bringing the instant action. Harris should not benefit from his ow n misleading submissions[.]" ); Cameron v. Lambert, No. 07 Civ. 9258(DC), 2008 WL 4823596 at * 4 (S.D.N.Y. Nov. 7, 2008) (" Pursuant to its inherent pow er, a court may impose sanctions against a party for 'act[ing] in bad faith, vexatiously, w antonly, or for oppressive reasons.' Chambers v. NASCO, Inc., 501 U.S. 32, 45-46 (1991) (citations omitted), and for 'misconduct during the course of litigation.' Milltex Indus. Corp. v. Jacquard Lace Co., 55 F.3d 34, 37-38 (2d Cir.1995)." ). How ever, Defendants' request to dismiss the action outright is denied, and the Court w ill give Plaintiff an opportunity to pay the filing fee.


Defendant's motion to dismiss [#97] is denied. How ever, Plaintiff's in forma pauperis status is revoked. Plaintiff must pay the applicable filing fee of three hundred fifty dollars ($350) within thirty days of the filing of this Decision and Order, and his failure to pay such fee will result in a dismissal of this case without further order of the Court.

In the event that this action is dismissed for Plaintiff's failure to pay the filing fee, the Court hereby certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from this Order would not be taken in good faith and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal in forma pauperis should be directed on motion to the United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure.

So Ordered.


Charles J. Siragusa

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