United States District Court, W.D. New York
DECISION AND ORDER
CHARLES J. SIRAGUSA, 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 Nos. [#50] [#54]). The application to revoke Plaintiff's in forma pauperis status is granted, and the action is dismissed with prejudice.
On March 27, 2006, Plaintiff submitted to the Court a Complaint and an application to proceed in forma pauperis (" IFP"). The Complaint [#1] complained about matters that allegedly occurred at Attica Correctional Facility (" Attica") and Upstate Correctional Facility (" Upstate"). At the time Plaintiff commenced this action he was housed at Marcy Correctional Facility (" Marcy"), and there is no indication that he was in imminent danger of physical harm at that time.
When filing this action, Plaintiff used a form complaint that required him to list any other law suits that he had filed pertaining to his imprisonment. Plaintiff responded by listing just three actions: Jackson v. Goord, et al., No. 97 Civ. 7149 (Southern District of New York), Jackson v. Pataki, et al., No. 00-CV-1102 (Northern District of New York) and Jackson v. Ricks, et al., No. 02-CV-0773 (Northern District of New York). Plaintiff represented that Jackson v. Goord and Jackson v. Ricks were still pending, and that Jackson v. Pataki had been "dismissed without prejudice." (Complaint [#1] at pp. 3-4). Plaintiff signed the complaint under penalty of perjury.
On May 16, 2006, the Court relied on Plaintiff's representations and granted his application to proceed in forma pauperis. (Order, Docket No. [#5]). When a prison inmate is granted leave to proceed in forma pauperis, the court filing fee is collected from his prison account over time. In Plaintiff's case, how ever, the Clerk of the Court has advised that no fees were ever collected from Plaintiff's inmate account. Accordingly, the filing fee, which was $250.00 at the time Plaintiff filed this action, remains unpaid.
This action then proceeded through pretrial discovery. On October 12, 2011, the Court issued a Decision and Order [#42], which, inter alia, denied summary judgment as to certain claims. On July 9, 2013, the Court issued a Pretrial Order [#49], scheduling this matter for trial on March 3, 2014.
On November 7, 2013, Defendants filed the subject motion [#50] to revoke Plaintiff's in forma pauperis status and dismiss the action. 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 he commenced this action, he had at least three other actions dismissed as being frivolous, malicious, or failing to state a claim. Defendants also maintain that the Court should dismiss the action with prejudice as a sanction, since Plaintiff made material misrepresentations to the Court when he indicated that he had only filed three prior law suits.
In support of the application, Defendants maintain that Plaintiff had actually filed eleven actions relating to prison conditions prior to commencing this one, not three. Furthermore, in connection with those eleven actions, Defendants maintain that four of the actions, including one that Plaintiff listed on the Complaint, Jackson v. Pataki, 00-CV-1102, and one appeal, were dismissed, as being frivolous, malicious or failing to state a claim, before he commenced this action. As support, Defendants have submitted a Memorandum Decision and Order of the Honorable Glenn T. Suddaby, United States District Judge, Northern District of New York, in the case of Jackson v. Pfau, 10-CV-1484, dated May 12, 2011, in which, inter alia, the court denied Plaintiff's application to proceed in forma pauperis, due to the fact that he had at least four prior "strike" dismissals pursuant to 28 U.S.C. § 1915(g), all of which pre-date Plaintiff's filing of this action. See, Levine Decl. [#50-1], Ex. A, at p. 10. In that regard, Judge Suddaby stated:
At least four of [Jackson's] actions or appeals have resulted in strikes' for purposes of 28 U.S.C. § 1915(g). See, Jackson v. Pataki, 00-CV-1102, Judgment (N.D.N.Y. filed March 26, 2003) (Mordue, J.) (adopting Report-Recommendation of Homer, M.J., recommending that Court grant defendant's motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12[b]); Jackson v. USA, 03-CV-0353, Order of Dismissal (S.D.N.Y. filed Jan. 16, 2003) (Mukasey, C.J.) ( sua sponte dismissing complaint pursuant to U.S.C. § 1915[e]; Jackson v. Artuz, 95-CV-8868, Order of Dismissal (S.D.N.Y. filed July 30, 1999) (Stein, J.) (granting defendants' motion for judgment on pleadings pursuant to Fed.R.Civ.P. 12[c]; Jackson v. U.S.P.S., 96-CV-5392, Order of Dismissal (S.D.N.Y. filed July 19, 1996) (Griesa, C.J.) ( sua sponte dismissing complaint pursuant to section of 28 U.S.C. § 1915 formerly designated as (d), ' currently designated as (e)(2)').
It is significant that although Plaintiff appealed Judge Suddaby's ruling, the Second Circuit affirmed, and specifically found that Judge Suddaby had not erred in denying the application to proceed in forma pauperis. Levine Decl. [#50-1], Ex. B, Jackson v. Pfau, 12-324-pr, (2d Cir. Apr. 4, 2013) (" The District Court also properly found that at least four of Jackson's prior actions or appeals resulted in strikes' for purposes of § 1915(g), and therefore properly denied his motion to proceed IFP pursuant to that section.").
Plaintiff nevertheless opposes the motion to dismiss, and indicates, first, that Defendants' counsel is acting in bad faith by bringing this motion after the courtimposed deadline for bringing dispositive motions, thereby "hindering [Plaintiff's] ability to prosecute this civil rights action." Pl. Response [#52] at ¶ 3. Plaintiff further indicates that when he drafted the Complaint, he only mentioned three prior law suits, while failing to mention eight others, because he was confined to the Special Housing Unit (" SHU"), and only had legal papers pertaining to the three listed actions in his SHU cell, while papers relating to the other eight actions were in storage. Id. at ¶ ¶ 24-26. Plaintiff further states that he was "unable to remember the exact title and cites of each of [those] cases and the manner in which they were disposed of." Id. at ¶ 26. Plaintiff also contends that the Court should deny Defendants' motion, because Defendants' counsel, who has practiced before the ...