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

November 8, 2012

MICHAEL PERKINS, 95A0851, PLAINTIFF
v.
D.F. NAPOLI, ET AL., DEFENDANTS



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

DECISION AND ORDER

INTRODUCTION

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.

BACKGROUND

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. ยง 1915(g) (West 2012). ...


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